Compliance Archives

CAN-SPAM Compliance = SPAM Anyway? WTF Infusionsoft?

Today, I’ve been doing battle with Infusionsoft over an email campaign to a small sample list of 3,150 dentists in nearby areas (from Louisville, KY).

To make a long story short, Infusionsoft has terminated my account even though I have been a Certified Marketing Automation Coach for nearly 2 years with them. In fact, I was in the original certification class that paid quite a bit of money (like $2,500 out of my own pocket) to get certified so I’m none too pleased that Infusionsoft and the nerds in their compliance department have taken such a stance with me, but life goes on as they say.

I have never committed any previous “violations.” I’d argue that I haven’t violated the CAN SPAM laws in this instance either, and I’ll present my side of the argument below.

In the spirit of learning and sharing experiences, I thought I’d share the details of the email in question that was sent and how it IS compliant with the CAN SPAM regulations set forth on the GOVERNMENT’S website (for a complete rundown, go here:

The Primary FTC CAN-SPAM Provisions

  1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
  2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
  3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
  4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
  5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
  6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
  7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

So there you have it in a nutshell.  Let’s look at the email I sent and determine (together) whether I’m “compliant” or not.

Initial email sent to dental pros

Initial email sent to dental pros on 12/10/09

Ok, let’s pick this thing apart as objectively as possible.

FTC Requirement #1: Don’t use false or misleading header information

The header information used my primary email address and did not hide behind any IP spoofing or multi-IP addressing schemes. Check.

FTC Requirement #2: Don’t use deceptive subject lines.

The subject line for this email was: “Couldn’t your business benefit from more qualified leads?” The email is about a free eBook on lead generation and list building for small and medium businesses. Deceptive? You tell me.  Wouldn’t a small business owner benefit from more leads coming into his/her business?

Additionally, that subject line is relevant to just about every business owner and executive out there because lead generation is the key to sustained business growth. Most people realize that, but many uninformed people still want to cry “SPAM!” at every turn no matter how relevant the offer or email happens to be.

FTC Requirement #3: Identify the message as an ad.

What is that I see just above the header image and body of the e-mail? Sure looks like “This is an advertisement.” Check.

Good old Roger isn’t trying to deceive anyone with the email . . . he knows it’s an ad, and he’s not afraid to say so.  🙂

FTC Requirement #4: Tell recipients where you’re located

My full mailing address is clearly stated in the footer section along with a phone number to reach me should someone have questions, concerns, or any other problems.  I took it one step further than required by providing the phone number.  I simply wanted people to know there was a real person behind the email that they could actually talk to.

My objective was/is to be as transparent as possible.

FTC Requirement #5: Tell recipients how to opt out of receiving future email from you.

In the footer section, there is a clear and easy way to opt-out immediately by simply clicking the link.  No more emails or messages from me once you click that. Check.

FTC Requirement #6: Honor opt-out requests promptly

As mentioned in point #5, once you click the link, that’s the end of the messages from me.  Request honored immediately. Checkmate.

FTC Requirement #7: Monitor what others are doing on your behalf

Doesn’t really apply to this situation because I wasn’t hiding behind anything.  Everything was above board and in compliance with the FTC requirements as set forth.

Now, I cannot control someone else mining my email address and sending out emails through a third party as if they were me that I do not control . . . none of us really can to be blunt.

If someone wants to scrounge up a bunch of email addresses and blast away, they can do that although it’s illegal. I can only control what originates from my own accounts and the third parties I employ to carry out those actions. You’re in the same boat so I’m preaching to the choir here.

What constitutes true “SPAM?”

Now, this all brings me to the next and primary point.  I understand that people are fed up with email marketing to a large extent, and I’m no different, but that doesn’t mean every piece of email that comes from someone unknown is SPAM.  I’m sorry . . . look at the FTC regulations again and how they have built in requirements for sending unsolicited emails. Read them and then re-read them.

Where in there does it say “you cannot email someone you don’t know or send them an unsolicited email under any circumstances?” It more or less says that if you’re going to do that, here are the requirements you must follow . . .

Just because you didn’t explicitly ask someone to email you doesn’t constitute SPAM when they do . . . very similar to the telephone.  How many calls do you get per day from people you don’t know? If you run a business, chances are the majority of incoming calls are from unknown people until they become regular customers.

Do you not agree?

The regulations don’t say you can’t ever email someone you don’t know or email them a relevant offer! The entire act was designed to dissuade repeated pharmaceutical and porn related emails that were bogging down people’s inboxes at an alarming rate.

It also was designed to make marketers responsible for the emails they send versus repeatedly sending the same garbage with no recourse for the recipient.  That’s the intent . . . there are plenty of marketers out there that violate the hell out of this even with the regulations in place.  I get that, but I’m not one of them nor are my clients!

The shady marketers setup shop through some offshore email provider and blast away . . . you’ve undoubtedly seen the emails for Viagra, Cialis, and plenty of sketchy offers out there. Let me ask you this: when you get one of those emails, how closely are they following the CAN SPAM requirements? They’re not . . . THAT is SPAM . . . not every single unsolicited email you receive on a daily basis.

Here’s a Challenge for You

Look through the emails that come to you/your business from people inquiring about something business related or looking to do business with you . . . I’d bet 80% of them are from people you don’t know, have never heard of, or have no idea what they’re emailing you for until you open the email.  Right?

If you’re receiving regular business emails from someone, trace the origins of your relationship to the first email exchange (if you can). Who emailed whom first? Were you close business acquaintances prior to that first email? Were you friends? How did the relationship start? My point is someone had to reach out to the other to get things rolling.

Furthermore, how many emails to your business account are from friends that have absolutely zero business purpose? How many of your friends’ emails were explicitly solicited? Remember, this is supposed to be your “business email” so how much junk do you have from people you actually know that aren’t looking to conduct any form of professional business with you?  It’s something to think about, isn’t it?

Email Intent

Consider this blurb from the FTC site:

What matters is the “primary purpose” of the message. To determine the primary purpose, remember that an email can contain three different types of information:

  • Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;
  • Transactional or relationship content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and
  • Other content – which is neither commercial nor transactional or relationship.

If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAM-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.”

Was I FTC CAN-SPAM Compliant?

SO I ask you, was my email in compliance with the FTC requirements for CAN-SPAM as laid out on their website?

Look, you can flame all you want about unsolicited emails, but they’re part of doing business as long as you comply with the requirements and regulations stipulated.  It’s time the over-sensitive types quit designating every unsolicited email as SPAM especially when the email passes all the tests for compliance.

The Bottom Line

I’m not recommending you ever truly SPAM anyone.  I’m merely stating that relevant commercial email that complies with the regulations set forth by the US FTC is NOT SPAM no matter how many times you want to cry it.

Furthermore, if someone requests to be taken off your list or you repeatedly email them the same stuff over and over, that’s not in compliance with the requirements either so don’t misunderstand the spirit of this post.

If I cried SPAM over every piece of unsolicited email received, I’d never have acquired that first customer, partner or referral because email is a major business communication vehicle today, and it’s one I much prefer over the telephone.

What’s Your Take?

I welcome your comments and feedback. I realize this is a touchy subject for many, but I hope we can engage in some healthy dialogue here.

Impending risks go on the front burner

Leon Gettler
February 24, 2007

LAST September, consulting firm Accenture released a global survey that had a big surprise. Despite a stable global economy, booming markets and solid growth prospects, executives in North America, Europe and Asia now regard risk management as their top priority.

Surprisingly, managing risk was put ahead of achieving growth while increasing profitability. Looking after shareholder value was near

the bottom of the list.

Today’s paradox is that growth, economic stability and solid profits are masking, and in some cases, creating new risks. This problem is captured in a new report from Britain’s corporate regulator, the Financial Services Authority. In its Financial Risk Outlook report, the FSA said things had never been better, growth was steady and there had been no bad shocks to the system.

But it warned the risks had never been greater, and that there could be significant dangers in the next 18 months. “While global economic and financial conditions remained most favourable in 2006, a set of conditions has developed in economies and markets that could become unsustainable. Furthermore, the probability of these conditions unwinding in a disorderly fashion may rise over time.”

There are at least 10 potential flashpoints ahead.

1. Raw material costs: Commodity prices are booming, fuelled by demand from the surging economies of India and China, and this has put pressure on margins. With the downturn in oil prices, the trend now is that raw material costs have been decoupled from fuel and are now driven by tight supply and growing demand. The prices are volatile and vulnerable to any shocks, such as terrorism or bad weather, hitting the supply chain.

2. China and India: Developing a China strategy is now considered an absolute must for companies aspiring to be globally competitive. The same goes for India, the world’s second fastest-growing economy. China is well advanced in turning itself into “the world’s factory” and India already controls more than half the global IT and back-office outsourcing market. The emergence of these two players presents tensions and issues for global trade.

3. Risk appetite: In a low-volatility environment, households and financial institutions have been taking on more risk.

4. Debt: As a result of rising house prices and a good job market, consumers are borrowing more, leaving them vulnerable and ill-prepared for a downturn.

5. Compliance: Regulations are piling on around the world, all designed to reduce risk. But the sheer volume of compliance requirements can stretch resources of smaller companies and result in high opportunity costs.

6. Cyber crime: Experts are predicting more electronic malfeasance and attacks. Greater technological complexity and more cross-border transactions are fertile ground.

7. Capital markets: Regulators around the world are keeping an uneasy eye on the private equity boom, which, they say, has all the signs of a bubble.

8. Geopolitical risks in a stable environment: Growth is robust and volatility remains low. Geopolitical risks, however, are growing with the continuing conflict in the Middle East and issues out of North-East Asia, particularly North Korea. Regulators, like the FSA, are concerned that financial markets are now so complex that their models for pricing risk are not that accurate.

9. Inflation: Rising oil prices have contributed to an inflationary surge and, although those prices have come down, the market remains volatile, vulnerable to potential shocks such as global warming, supply and Iran’s nuclear program. In Australia, meanwhile, inflationary pressures are rising as a result of strong wages growth.

10. US housing: At the moment, there is little sign of the weakness in the US housing market creating any sort of contagion that would hurt the world’s biggest economy. However, some economists are warning that higher interest rates, falling house prices and the credit ethos do not bode well for the US economy.

This list is by no means comprehensive. There are many more risks ahead, and the solutions to these are not clear. These include climate change and the prospect of pollution taxes or a credible system of tradable permits. The proponents say these would promote the development of a wider variety of alternative energy sources and encourage energy conservation but critics fear they would impose costs.

Then there is the changing face of managerial capitalism, where company managers now have to answer to fund managers when the real owners, the retail investors, are often unaware of these relationships.

Not to mention the insatiable demand for energy that has resulted in the doomsayers predicting we will run out of oil.

Globalisation and population ageing are also major flashpoints. Good risk management is about thinking into the future. What’s so unsettling is that the imponderables ahead now seem even more profound.

US employers brace for flood of age-related lawsuits

America’s rapidly-ageing workforce is going to lead to a dramatic increase in expensive age-related law suits, employers have been warned.

Author: Nic Paton

Lawyers have said they are already seeing age discrimination becoming a growing problem for employers as the baby boomer generation starts to approach the traditional age for retirement.

Even companies that have no intention to discriminate, or which are simply trying to improve their bottom line, may have policies and procedures that are evidence of age bias, said the lawyers at Epstein Becker Green Wickliff & Hall.

As the working population continued to age, it was likely employers would be on the receiving end of a surge in age bias lawsuits, the firm predicted.

In 2005, the U.S Equal Employment Opportunity Commission received more than 16,500 age discrimination charges but, with 20 per cent of the U.S workforce set to be aged over 55 by 2015, this number was only going to go up.

“This is a real crisis for employers who haven’t properly established procedures for making sure that bias does not creep into decisions and who haven’t reviewed and revised their employment policies to ensure fair practices,” said Gayla Crain, attorney at Epstein Becker Green Wickliff and Hall.

“The situation is reaching a point of no return, with the EEOC already collecting upwards of seventy-eight million dollars on age bias lawsuits alone,” she added.

A study in 2005 by the Center for Retirement Research at Boston College had concluded that a younger worker was more than 40 per cent more likely to be called for an interview than a worker aged 50 or older, she added.

“A policy or practice that seems acceptable on its face may nevertheless discriminate against the older workers in a company’s workforce. This phenomenon is known as ‘disparate impact’ and it can be expensive,” she continued.

The issue of “disparate impact” and older workers arose most frequently with respect to job termination.

When a company decided that it must reduce its workforce, it often naturally sought to cut the highest-paid employees first or the long-term employee whose performance had declined.

Yet these workers were also frequently the older ones. “A company must have a legitimate business reason for all hiring and termination decisions which may exclude older workers,” explained Marty Wickliff, attorney and managing partner of Epstein Becker Green Wickliff & Hall.

“Above all, a company should develop and strictly enforce objective standards to be used in identifying and executing employment decisions, and seek counsel if there is any doubt as to the legality of a policy,” she added.

Going Dark: Public Companies and Public Interest

switch.jpgby Leon (Sox First)

I have talked about the costs of Sarbanes-Oxley forcing companies to delist themselves and go dark. The disturbing part about that trend is that it undermines one of the great strengths of the markets in the US, Canada, Europe and Great Britain and Australia with the rise of the citizen investor.

It’s the great democratisation of the market where more citizens are the collective owners of the big companies. When society at large has some skin in the game, the companies become more accountable to society. It’s a point I examine here when I look at the trend of the “universal owner”.

Now there are many more constituents and vested interests, and that changes the game completely.

Just ask the ousted chief executive of Home Depot Robert Nardelli, a point made in this piece by The Wall Street Journal’s Alan Murray that we have here via the San Diego Daily Transcript.

The trend of so many companies going private therefore might not be in the public interest. It’s a point examined by Chicago Tribune columnist Andrew Leckey . Leckey draws on the comments made by Robert Mittelstaedt, dean of the W.P. Carey School of Business who, it must be said, is no friend of Sarbanes-Oxley. Just read his comments in this piece.

Still, Mittelstaedt now says that public companies have brought jobs, retirement plans and good investment and that the practice of private equity outfits to saddle the companies up with debt, and then unload it later might not be in the public interest.

More importantly, it undermines the way citizen investors are reshaping corporations and making them more accountable. It’s a trend examined by Stephen Davis, Jon Lukomnik, David Pitt-Watson in their new book The New Capitalists, and summed up in their piece The Capitalist Manifesto: Managing the Rise of Citizen Investors.

The citizen investor, they argue, has laid down 10 commandments for delivering value:

1. Be profitable – create value.

2. Only grow when you can create value.

3. Pay people fairly to do the right thing.

4. Do not waste capital.

5. Focus where your skills are strongest.

6.Renew the organisation.

7. Treat customers, suppliers, workers and communities fairly.

8. Seek regulations which ensure your operations do not cause collateral damage and your competitors do not gain unfair advantage.
9.Stay clear of partisan politics.

10. Communicate what you are doing and be accountable for it.

Any trend that undermines these forces has to be watched carefully. That’s in the public interest.