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One of the issues being tackled by the FCC as it tries to stem the unwelcome tide of e-mail spam is the growing problem of mobile service commercial messages — “mobile spam.” In its notice of proposed rulemaking — known as the Can-Spam Act — the FCC defines mobile spam as that “transmitted directly to a wireless device that is utilized by a subscriber of commercial mobile service … in connection with that service.” Among other things, the act asks for rules which provide subscribers to commercial mobile services (a) with the ability to avoid receiving commercial messages unless express prior authorization has been given to the senders; and (b) the ability for subscribers to indicate that they do not want to receive future commercial messages from senders. Messages covered by the act are those where the primary purpose is commercial, thus obviously including advertisement of products and services. The criteria for making “primary purpose” determinations are to be promulgated by the Federal Trade Commission, which shares responsibility with the FCC and other agencies for enforcement of the act. Messages relating to product safety or security or to the terms of a subscriber’s existing business relationship with the sender are exempt. The notice raises a host of questions regarding the interpretation and enforcement of the act. It is further complicated by the marriage of technologies used to provide cellular telephone and other wireless services, on the one hand, and Internet technologies on the other. For example, one of the questions posed is whether mobile spam sent to a subscriber’s wireless device via a forward function from a server fall within the scope of the act. The FCC’s tentative answer to this question is no, on the theory that the act speaks in terms of “direct” transmissions. Moreover, without this kind of limitation the act would capture virtually all e-mail, inasmuch as subscribers can forward most e-mail to their wireless devices. Likewise, the notice poses the question as to whether the act is to be construed as prohibiting the transmission of mobile spam unless the sender first obtains approval from the recipient, or whether the burden is on the subscriber to take affirmative steps to register his or her desire not to receive such messages. The FCC suggests various means by which senders could reasonably determine that a message will be sent to a mobile subscriber. These might include, for example, the FCC’s creation of a list of domain names used for mobile service messaging subscribers or the establishment of a registry of individual e-mail addresses limited to mobile service subscribers (similar to the National Do-Not-Call registry.) Another possibility is the use of so-called “challenge-response” mechanisms that could be implemented by wireless service providers — technologies would be employed that would automatically generate a message to a sender of mobile spam advising him or her that the addressee is a mobile service subscriber. Comments regarding these proposals are due to be filed with the FCC 30 days after the notice is published in the Federal Register. Replies are due 45 days from the Federal Register publication date. Now is the time to put together your comments for filing with the FCC. Ken Keane, a partner in the Washington, D.C. office of Duane Morris, contributed to this column. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to these columns, please send him an e-mail with “Subscribe” in the subject line.

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