One question I get asked a lot concerns sending emails to wireless domains. So, I’ll lay out the answer here for all the world to see:
No unsolicited messages may be sent to a recipient on a mobile domain for any reason, period. Here’s the general rule from the FCC’s Order mandated by CAN-SPAM:
“The CAN-SPAM Act directs the Commission to issue regulations to protect consumers from ‘unwanted mobile service commercial messages.’ Thus, we adopt a general prohibition on sending commercial messages to any address referencing an Internet domain name associated with wireless subscriber messaging services.”1
This has, in one recent FCC decision, been expanded to include customers of the mobile phone company itself,2 so it’s pretty clear that the FCC is intent on enforcing this in all instances.
The one exception to this is if the recipient has given “affirmative consent”. On this point, the FCC says:
44. We note here that in the event any complaint is filed, the burden of proof rests squarely on the sender, whether authorization has been obtained in written or in oral form. We do so to avoid the likelihood that any businesses will try to fabricate authorization. Given the potential costs and inconvenience to subscribers to receive such MSCMs, it is important that such messages be sent only to those wireless devices belonging to receptive subscribers. We strongly suggest that senders take steps promptly to document that they received such authorization. Recognizing the potential for fraud by both a person signing up someone else to receive MSCMs and by businesses fabricating authorization, we recommend that the business confirm the electronic mail address with a confirmatory notice sent to the recipient requesting a reply.3
If you really want to send commercial email to wireless domains, you must ensure you have firm, documented, verifiable, and informed consent before sending any message.
So, what should best practices be?
- You should make certain that you regularly download the list of wireless domains maintained by the FCC and wash addresses in those domains from your general lists.
- You should segment your wireless domain addresses into their own list.
- You should make certain that you implement double opt-in for addresses on the wireless segment, even if you don’t use double opt-in in general.
Then it’s more a matter of following the other best practices for sending commercial email in general.
Footnotes
- In re: Rules & Regulations Implementing the CAN-SPAM Act of 2003 & Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 04-53, Report and Order, 19 FCC Rcd 15927 (2004), https://docs.fcc.gov/public/attachments/FCC-04-194A1.pdf. ↩︎
- In re Rules & Regulations Implementing the CAN-SPAM Act of 2003, CG Docket No. 04-53, Second Report and Order, 22 FCC Rcd 15036 (2007), https://docs.fcc.gov/public/attachments/FCC-07-26A1.pdf. ↩︎
- FCC, supra note 1, at p. 18 (emph. added). ↩︎
About the Author
Mickey Chandler is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
