Tips & Rules for your Broadcast Emails

With the new seasons in full swing, everyone is stepping up their email marketing campaigns. This is an excellent way to reach out to your fans with news, obtain sponsorship revenue, and of course drive traffic to your Web site. As you probably know, there are regulations about sending out broadcast emails to make sure you are not sending SPAM to your fans. Well, just incase you need a refresher, below are some tips on sending out broadcast emails along with the CAN-SPAM Act. After all, with so many pieces of e-mail reaching inboxes, recipients are going to have to make eye-blink quick decisions on whether to open - or to toss - the e-mail you have sent them. How can you increase the probability that your message will get read? Follow these tips below and you'll be on your way towards optimal results in no time.

Tip Number One: Follow the CAN-SPAM Act

Over the past few years, unsolicited commercial e-mail, or "spam," has grown from being a nuisance into a significant burden on IT infrastructure. In response to increasing pressure to establish a uniform national framework, on December 8, 2003, Congress enacted the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," better known as the "CAN-SPAM Act." President Bush signed the Act on December 16, 2003, and it will become effective on January 1, 2004.

The statute sweeps broadly: it applies to all commercial e-mail messages. Consequently, every business that uses e-mail as part of its marketing efforts needs to be aware of the new rules. This Alert summarizes the highlights.

An overview of the Act

There are five major aspects to the Act. First, the Act preempts state anti-spam laws in favor of a uniform national standard. Second, the Act takes an "opt-out" approach to the regulation of commercial e-mail messages, requiring senders of commercial e-mail messages to provide a clear and conspicuous opt-out mechanism and to honor opt-out requests. Third, the Act requires that senders include certain information in commercial e-mail. Fourth, the Act prohibits a range of conduct that has been associated with abusive e-mail practices. Fifth, the Act directs the Federal Trade Commission ("FTC") to develop a plan for establishing a "Do-Not-E-mail" Registry, and gives the FTC discretion to implement such a plan not earlier than October 1, 2004.

What does the Act cover?

The Act applies to all commercial e-mail messages, not just the unsolicited advertising that most people think of as spam. The term "commercial e-mail message" includes any e-mail message whose primary purpose is to advertise or promote a commercial product or service, including Web-site content.

The statue expressly excludes "transactional or relationship messages" from the definition of "commercial e-mail message." "Transactional or relationship messages" are messages whose primary purpose is to

  1. facilitate, complete, or confirm a transaction that the parties have already agreed to (such as an e-mail sending a confirmation number for an e-commerce transaction);
  2. provide warranty, safety, or recall information about a product used or purchased by the recipient;
  3. notify the recipient of changes in terms, features, or account status in connection with an ongoing commercial relationship such as a subscription, account, or loan;
  4. provide information to employees or enrollees in a benefit plan about the relationship; or
  5. deliver goods or services, including updates or upgrades, that the recipient is entitled to receive under a prior agreement.

Congress has directed the FTC to issue regulations within the next 12 months to specify the criteria to be used in determining the primary purpose of an e-mail. The FTC also has the authority to expand or narrow the categories of messages that are treated as transactional or relationship messages.

What does the Act require?

The Act specifies a number of requirements that apply to any person who "initiates" the sending of a commercial e-mail. For instance, such a person must:

  1. not include materially false or misleading header information;
  2. not use a subject heading that would be likely to mislead a recipient about the subject of the e-mail;
  3. include a functioning return e-mail address or other Internet-based mechanism to allow the recipient to opt-out of receiving future commercial e-mail from the sender;
  4. not send a commercial e-mail message to a recipient more than ten business days after the recipient has opted out of receiving such e-mails;
  5. not sell, lease, or transfer the e-mail address of a recipient who as opted-out;
  6. include a clear and conspicuous identification that the e-mail message is an advertisement or solicitation;
  7. include a clear and conspicuous notice of the opportunity to opt out from receiving future commercial e-mail from the sender;
  8. include a valid physical mailing address for the sender; and
  9. include warning labels, in a form to be prescribed by the FTC within 120 days, in commercial e-mail containing sexually oriented material.

The term "initiate" includes both originating or transmitting a message directly or paying another to originate a message, but it does not include the routine conveyance of a message.

What does the Act prohibit?

The Act prohibits a number of "aggravated violations" relating to commercial e-mail. It is unlawful, for instance, to:

  1. "harvest" e-mail address from a Web-site or proprietary online service;
  2. use "dictionary attacks" to generate e-mail addresses;
  3. use scripts or other automated means to register multiple e-mail accounts to send unlawful e-mail messages; or
  4. knowingly relay or re-transmit unlawful e-mail messages.

The Act prohibits a person from knowingly promoting or allowing another to promote the person's trade, business, goods, or services by means of unlawful e-mail.

The Act also establishes criminal penalties for a number of abusive acts and practices used by unscrupulous spammers, including hacking into computers to send bulk spam, using open relays to deceive recipients about the source of spam, falsifying header information in bulk spam, registering for five or more e-mail accounts or two or more domain names to send bulk spam, and sending bulk spam from another's IP address.

What is the effect on state anti-spam laws?

The new federal Act supercedes any state or local law that expressly regulates commercial e-mail, except to the extent that such a law prohibits falsity or deception in commercial e-mail. Consequently, the California anti-spam act that was scheduled to take effect on January 1, 2004, which took an "opt-in" approach to e-mail and imposed strict liability on anyone who caused the transmission of unsolicited commercial e-mail, is largely pre-empted. The federal Act does not pre-empt other state laws that are not specific to e-mail, such as trespass, contract, or tort law, or computer fraud and abuse statutes.

Who can enforce the Act?

The FTC, state attorneys general, and affected internet service providers, subject to certain limitations, are authorized to enforce the Act, including by recovering multiple damages for certain aggravated violations. Unlike many state anti-spam laws, however, individual recipients of unlawful e-mail do not have the right to bring a private cause of action for damages.

What should businesses do to comply with the Act?

At the outset, it is important to emphasize that this Alert provides only a summary overview of the major features of the Act; there are many details that must be reviewed with care.

At a minimum, all businesses must review their current use of e-mail and the practices of joint marketing partners who distribute e-mail on their behalf. It will be important to establish procedures for determining if the primary purpose of an e-mail is commercial, if the e-mail is a "transactional or relationship message," and if a third party is transmitting commercial e-mail on behalf of the business. It will also be necessary to develop administrative and technical measures for honoring opt-out requests and to develop appropriate contractual provisions for agreements with marketing partners. Of course, businesses must also be sure to avoid any of the practices that are made unlawful by the Act, such as using automated means to acquire e-mail addresses.
CAN-SPAM Act overview prepared by Larry Zanger and Edward Naughton

Tip Number Two: Send often… but not too often

An e-mail marketing plan that includes regularly distributed e-mail messages to your target audiences puts you in a better position to keep awareness about your team and fan loyalty high. But figuring out how many messages are acceptable - and welcomed - by your fans is where the challenge lies, so play close attention to opt-out rates post delivery (that is, how many recipients are asking to be removed from your list after receipt). If readership drops in correlation to an increase in distribution, pull back a little and send less often. Of course, you need to use your judgment as well. Fans may be signed up for breaking news and they would be upset if they did not receive these emails whenever there is breaking news to read.

Tip Number Three: Personalize it!

As the growth rate for e-mail volume continues to increase, you must seek out better ways to ensure that your e-mails are the ones getting read, not trashed, by your fans. How do you go about achieving optimal open rates? A very good strategy is personalization. Research shows that it is significantly more likely that your e-mail message will be opened - and read - if you personalize the message in one way or another. For example, instead of a subject line that reads, "Tickets are now on sale..." use "Jared Elliott, Giants Tickets on Sale Now." This, together with a personalized intro (such as "Dear Jared") in the body of the e-mail will lead to a better response and help keep your emails from finding the deleted folder.

Tip Number Four: Include a strong offer

In short, a strong call to action that briefly explains why it is valuable, rewarding, or beneficial to open your message is a key to higher response rates. For example, if you are trying to target and increase your season ticket holders you would benefit from doing away with a subject line that reads: "Renew your Season Tickets.". This is too vague and does not tell the recipient the value of reading the message. It would be better to use something to the effect of, "Mike, Keep your Seats, Renew your Wild Tickets Now." For your merchandise, this could be expressed as "Exclusive Savings for Loyal Fans: Save 20% through Friday." The important point to remember here is that a successful e-mail campaign inspires a recipient to act using articulate, specific offers.

Tip Number Five: Target, target, target

Whether your objective is to incite a purchase, provide information, or bring fans to the Web site, targeted e-mails will help you increase effectiveness. Naturally, if a recipient feels that the message has been customized to fit their needs, they will likely be more inclined to listen to the message and explore its value. Audience segmentation can range from broad (e.g. "breaking news", "season ticket holder", "player news") to very specific (those that reside in a specific Zip Code, for example), but whatever the case, some level of targeting is associated with higher response rates.

Tip Number Six: Measure response, monitor metrics

Do you know the average open rate of your e-mail campaigns? Are you able to determine where your fans interests are by learning which articles or sections in your e-mail are most read? If you answered no to any of these above, then you are not learning what your fans value, something that could eventually translate into lost business. Don't just send out e-mail and cross your fingers that there will be measurable results. By regularly reviewing the e-mail delivery statistics you will be able to create a user profile and ultimately, use this information to shape future e-mail into a valuable, information-based resource that your fans actually look forward to reading. For e-commerce Web sites, e-mail metrics can be programmed to reveal what percentage of all recipients that received an e-mail promotion clicked through to the shopping cart to buy the product. has made significant upgrades to our e-mail marketing system over the last several months. If you would like to learn more about what these changes are designed to accomplish and how they can fit into your marketing plans, please contact Mike Svanascini at, Inc.