How to Email Marketing Legally: A Quick Overview of the FAST Act’s Email Rules

This week, the U.S. Congress passed and signed into law the FAST Act (Fixing America’s Surface Transportation Act). Among other things, the Act amends the Telephone Consumer Protection Act (TCPA) to allow for greater governmental regulation of email marketing. Let’s take a quick look at how the TCPA—and the FAST Act—affect email marketing, and how you can comply with the new regulations.

The TCPA: Why Amending the Law Is Necessary

Before we dive into the specifics concerning the new regulations, it’s important to understand why amending the TCPA is necessary at all. The TCPA, as most people are aware, was originally passed in 1986 to protect consumers from unwanted telephone calls (often referred to as “cold calling”). The law specifically prohibits phone companies from initiating calls or emailing people without their express consent. For the most part, the law has worked well. But, as telecommunication and email have evolved, so have the ways in which people can be reached without their explicit consent.

One of the ways in which the TCPA has worked well is by defining “telephone” and “emergency” so broadly that many people would consider any type of messaging—be it a phone call, text message, or email—to be an “unwanted commercial solicitation”.

For example, suppose you’re a retail store and use email marketing to keep customers informed about your products. Without your explicit consent, a spammer could send out thousands of junk email newsletters to people who have bought products from your store. Not only is this a waste of time, but it also provides the spammer with the means to harvest personal data, including phone numbers, email addresses, and physical addresses.

To combat this, the TCPA includes a section that exempts certain types of electronic communications from its rules. Specifically, it allows for the collection of an individual’s personal data for “emergency purposes” or “natural disaster preparation or relief.” But what does “emergency” mean in this case? The TCPA doesn’t define it, and so, by default, it means that the government and any federally-regulated telecom companies can engage in telemarketing or electronic messaging without first getting your explicit consent.

To be more precise, the FAST Act defines “emergency” as the events described in the International Emergency Planning Coordination Act (IEPoca), which is a federal law that requires the President to develop a plan for coordinating the United States’ efforts to respond to terrorist attacks and natural disasters. So, in cases where the government is involved in emergency relief efforts or in cases where a telecom company is participating in such efforts, the TCPA doesn’t apply. Instead, the telemarketing or electronic messaging practices are regulated by the IEPoca and the Federal Trade Commission (FTC).

The FAST Act Changes a Little Bit of Everything

Let’s get into the nitty-gritty now, shall we? The FAST Act makes a variety of changes to the TCPA, and so the regulations concerning email marketing will likely be revised several times over the coming months and years. Here is a short list of some of the more significant changes made by the FAST Act:

  • Amends the definition of “telephone solicitation” to include any form of electronic solicitation.
  • Requires the Federal Trade Commission (FTC) to monitor the email marketing industry and issue regulations concerning the protection of consumers.
  • Allows for greater governmental involvement and oversight in cases of “emergency.”
  • Makes it illegal for companies to engage in “robo-calling.”
  • Prohibits telecom companies from charging customers for text messaging services used in emergencies and on fixed networks.
  • Requires telecom companies to disclose in their contracts that text messaging services are free in cases of emergency.
  • Revises the requirement that you get your customer’s permission before you can send them unsolicited advertisement (spam).
  • Makes it illegal for anyone to falsely describe the nature, source, or extent of an emergency or disaster. (This law goes into effect in 180 days.)
  • Gives the Federal Communications Commission (FCC) the authority to revoke broadcasting licenses in cases of willful misconduct or a pattern of misconduct. (This law goes into effect in 180 days.)
  • Extends the statute of limitations for certain telecommunications claims from two years to three years.

Most Of The Changes Will Benefit Businesses And Consumers

While the list of amendments made by the FAST Act is quite lengthy, most of these changes will benefit businesses and consumers. Indeed, the revised definition of “telephone solicitation” makes it easier for the government and telecom companies to regulate email marketing and related text messaging practices. Many people will find that the more stringent regulations imposed by the government will help to protect them from illegal or unwanted offers and advertisements, particularly in cases of emergency.

For example, under the previous TCPA rules, it was a clear violation for any type of business to call a person and ask them to buy a product or service without first getting the person’s explicit consent. This is commonly known as “cold calling,” and it is exactly what robocalling is—the indiscriminate transmission of pre-recorded messages. The FAST Act makes it a misdemeanor punishable by a $50,000 fine for any type of business to engage in such a call. In cases of emergency, the rules are a bit looser as mentioned before. So, for example, the government and telecom companies can send out mass email blasts without your explicit consent, as long as the message is related to emergency preparedness or relief. In other words, if the purpose of the email is to sell you a particular product or service, you can almost certainly assume that you did not give the entity your consent to send you the email, and the practice would be considered a violation of the TCPA.

What About The Changes To The International Emergency Planning Coordination Act (IEPoca)?

As mentioned above, the FAST Act includes an amendment to the International Emergency Planning Coordination Act (IEPoca) in the form of a section titled, “Amending the International Emergency Planning Coordination Act To Include Natural Disaster Planning.” As part of the amendment, the FAST Act requires the president to issue an annual report to Congress on the state of emergency planning in the United States.

First, the amendment ensures that the government is better prepared for natural disasters. Second, it ensures that in cases of emergency (such as a terrorist attack), the government will be able to coordinate all branches of the federal government to respond to the crisis. Third, the report serves as a transparency measure designed to hold the government accountable for preparing for and responding to these types of disasters.

In summary, the FAST Act makes it easier for the government to regulate the email marketing industry in cases of emergency, and it provides businesses and consumers with some additional protection from unwanted solicitations and advertisements. Although it’s a step in the right direction, the battle against spam will never be over, particularly as hackers and scammers constantly find new ways to get around these new regulations. So, even if you follow the rules and unsubscribe from all spam, you might still get caught in the crossfire of a scammer’s “phishing” email.

In other words, while it’s great to know that the government and telecom companies are taking steps to protect you from unwanted telemarketing calls and spam, you still need to be careful not to put yourself in harm’s way. A good rule of thumb is to never give out personal information on a non-secure website, and to be careful about clicking on links in unsolicited emails. If you have doubts about the security of a website or the veracity of an email, it’s generally a good idea to contact the company directly via phone or email.

More Information About The FAST Act

If you’re interested in learning more about the FAST Act or in finding out how the changes made by the law will affect your business, you can visit the Federal Highway Administration’s (FHWA) website, which has more information about the legislation. On the FHWA website, you will find a link to a White House fact sheet that summarizes the FAST Act.

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