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The Federal Trade Commission (FTC) is requesting public comments concerning the CAN-SPAM Act. Now you can have your say during the FTC’s “Summer of Spam.”

Signed into law by President George W. Bush seventeen years ago in 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) was passed in response to a rapid increase in junk email marketing.

The CAN-SPAM Act is enforced primarily by the Federal Trade Commission (FTC). The CAN-SPAM Act may also be enforced, in certain circumstances, by various other federal agencies including the Federal Communications Commission (FCC), state attorneys general, and Internet Service Providers (ISPs).

There is no private right of action. In other words, the CAN-SPAM Act does not give consumers who have received spam email standing to file a private lawsuit for damages.

Last year, the penalties for violating the CAN-SPAM Act received a significant upgrade. In a little noticed change, effective August 1, 2016, the maximum civil penalty dollar amount for violating section 5 of the Federal Trade Commission Act, or failing to comply with COPPA or any of the FTC’s other trade regulation rules (including the CAN-SPAM Act), went up 2.5 times—from $16,000 to $40,000 per violation (with no maximum penalty). This significant increase was authorized by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.  The Act directed agencies to implement a “catch-up” inflation adjustment based on a prescribed formula.

This is a maximum dollar amount per violation, so the FTC will continue to take into account the degree of culpability, any history of prior such conduct, ability to pay, and the effect on ability to continue to do business. The Commission also has a civil penalty leniency program for small businesses that establishes criteria that the Commission will consider when determining the propriety of a penalty waiver or reduction for small businesses that are not in compliance with the law.

How effective has the CAN-SPAM Act been for the last 17 years?   

Statista reports that as of March 2017, spam messages accounted for 56.87% of email traffic worldwide. Interestingly enough, the United States ranks Number 1, with 12.08% of the global spam volume. Moreover, critics have argued that the CAN-SPAM laws are rarely enforced and CAN-SPAM cases are not easy to win because, among other things, the complaining party must prove lack of consent.

Now you can have your say during the FTC’s “Summer of Spam.” On June 28, 2017, the FTC issued 16 CFR Part 316 requesting public comments concerning the CAN-SPAM Act. The public comment period ends with summer on August 31, 2017. The FTC instructs that you can file a comment online or on paper. Specific instructions can be found in this link to 16 CFR Part 316 under Section IV.

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