Daily Real Estate News  |  March 9, 2005  |   CAN-SPAM Rules for Wireless Devices Now Mandatory Real estate professionals who send commercial e-mails to clients, prospects, or other professionals will now need to check the Federal Communications Commission’s list of wireless domain names to ensure that they are not sending commercial e-mails to a prohibited domain. The FCC has regulated the sending of commercial e-mail messages to wireless devices since August but has made checking the domain name list mandatory starting March 9. The “mobile services commercial messages” (MSCM) rules add another layer of necessary compliance to the CAN-SPAM rules, which outlines requirements for sending commercial e-mails, says Finley Maxson, associate counsel for the NATIONAL ASSOCIATION OF REALTORSŪ and editor of the Letter of the Law, an online legal newsletter at REALTOR.org. Noncompliance of the MSCM rules will result in a $250 fine per violation, which are the same penalties for violations to the CAN-SPAM rules. “The new rules do not prohibit businesses from sending commercial e-mails to wireless devices,” Maxson says. “They just now make it mandatory for senders of commercial e-mails to now comply with the new rules.” The MSCM rules require any business seeking to send a commercial e-mail message to any wireless device—including cell phones and all handheld devices such as PDAs—to first check the FCC's wireless domain name list to assure that the commercial e-mail is not being sent to any of the listed domains. In order to be able to send commercial messages to wireless devices of those individuals, the sender needs to obtain “express prior authorization” from the MSCM recipient. The consent can be obtained orally or in writing. Commercial e-mail senders also should consult the FCC’s wireless domain names list within 30 days prior to sending commercial e-mails to a list of e-mail addresses. Although this is not required, Maxson says it is highly recommended because the rules provide a safe harbor for businesses that send a commercial e-mail to a domain that was not on the FCC list 30 days prior to the e-mail transmission. Click here to view and download the FCC's list of domain names. The MSCM rules also require senders of commercial e-mails to:

Stop sending all MSCMs within 10 days of receiving an opt-out request from a commercial mobile service subscriber.

Place a “conspicuously marked opt-out mechanism in the MSCM so that consumers can request that they no longer be sent additional MSCMs.

Provide the ability for consumers to opt out through the same electronic method by which they originally provided their consent.

Have one of the two opt-out mechanisms mentioned above be free of charge to recipients.

Clearly identify to consumers that the sender is the entity transmitting the message. For example, if a third-party vendor sends out your commercial e-mails, the e-mails need to have your business name clearly marked as the sender of the e-mail.

Keep operational the opt-out mechanism identified in the MSCM for at least 30 days following the transmission of an MSCM.

To learn more about the FCC rules, see FCC Rules Impact Senders of Commercial Electronic Mail Messages at REALTOR.org. To learn more about CAN-SPAM, see Federal Commercial E-Mail Legislation at REALTOR.org. —REALTORŪ Magazine Online