Applying this process to an example, let's say a newsletter publisher "PublishCo" sends an advertisement containing promotions for three companies. Under the originally proposed definition of "sender," all four entities could be considered a sender, and thus all four would be responsible for ensuring CAN-SPAM Act compliance.
But under the Final Rule, the FTC would allow PublishCo to be the "designated sender" to be responsible for all compliance tasks, no matter how many advertisers appear in the body of the message.
To be the designated sender, however, PublishCo would need to be accurately identified in the "from" line, include their physical address in the body of the email message, and provide one of the two designated opt-out mechanisms (e.g., "sending a reply electronic mail message or visiting a single Internet Web page").
The decision about whether to be a designated sender is one that a company like our fictional PublishCo will have to make with its legal counsel. But it might make sense for PublishCo to step up and be the entity identified as the designated sender, placing their address in the "from" line, and their contact information in the message body along with their unsubscribe process.
Taking on this role as the designated sender would also allow PublishCo to offer choices to subscribers about exactly which advertisements they want to receive. While we noted that the FTC expects the unsubscribe process to be simple and unencumbered with additional advertisements or appeals, the law does still permit offering an array of choices.
Simplifying the compliance process by having a "designated sender" may help avoid legal problems, but it can also help email deliverability. Think of our example above with three advertisers and a publisher. If all four entities were considered senders, each with its own boilerplate disclosures and opt-out processes, a consumer receiving such an email might be confused about whether they might need to follow four different unsubscribe processes in order to effectively communicate their desire.
Some less-than-reputable advertisers might rejoice at such a prospect: by making the unsubscribe process cumbersome, some recipients might be dissuaded from doing so or so the theory goes. But in the end, it is really all of the senders who will wind up as the ultimate losers.
When faced with a confusing or cumbersome process, consumers will take the path of least resistance and click the "Report Spam" button or report the senders to email blacklists. Anything that drives consumers to click the spam button is among the most damaging things a sender can do to its email reputation.
At my company, we have long encouraged the customers of our online reputation management services to adhere to prevailing email industry best practices. Foremost among those is compliance with the CAN-SPAM Act, including making sure that the unsubscribe process is clear and simple.
At the end of the day, if a consumer is no longer interested in your email, you want to get them off your list as quickly and from the consumer's perspective, as effortlessly as possible, in order to avoid being labeled as spam and harming your email reputation.
For those familiar with the regulatory process, it's not surprising that this one has produced a set of rules that raises almost as many questions as it answers. We will undoubtedly see a number of additional inquiries to the FTC seeking further advice as companies explore how the Final Rule affects their particular ways of doing business.
The good news from all this is that the new FTC rules will probably not have a significant adverse effect on senders who are already following the industry's best practices recommendations.