§ 64.3100   Restrictions on mobile service commercial messages.

   (a) No person or entity may initiate any mobile service commercial message,
   as those terms are defined in paragraph (c)(7) of this section, unless:

   (1)  That  person or entity has the express prior authorization of the
   addressee;

   (2) That person or entity is forwarding that message to its own address;

   (3) That person or entity is forwarding to an address provided that

   (i) The original sender has not provided any payment, consideration or other
   inducement to that person or entity; and

   (ii) That message does not advertise or promote a product, service, or
   Internet website of the person or entity forwarding the message; or

   (4) The address to which that message is sent or directed does not include a
   reference to a domain name that has been posted on the FCC's wireless domain
   names  list  for  a period of at least 30 days before that message was
   initiated, provided that the person or entity does not knowingly initiate a
   mobile service commercial message.

   (b) Any person or entity initiating any mobile service commercial message
   must:

   (1) Cease sending further messages within ten (10) days after receiving such
   a request by a subscriber;

   (2)  Include  a  functioning  return  electronic mail address or other
   Internet-based mechanism that is clearly and conspicuously displayed for the
   purpose of receiving requests to cease the initiating of mobile service
   commercial messages and/or commercial electronic mail messages, and that
   does not require the subscriber to view or hear further commercial content
   other than institutional identification;

   (3)  Provide  to  a  recipient who electronically grants express prior
   authorization to send commercial electronic mail messages with a functioning
   option and clear and conspicuous instructions to reject further messages by
   the same electronic means that was used to obtain authorization;

   (4) Ensure that the use of at least one option provided in paragraphs (b)(2)
   and (b)(3) of this section does not result in additional charges to the
   subscriber;

   (5)  Identify  themselves  in  the message in a form that will allow a
   subscriber to reasonably determine that the sender is the authorized entity;
   and

   (6) For no less than 30 days after the transmission of any mobile service
   commercial message, remain capable of receiving messages or communications
   made to the electronic mail address, other Internet-based mechanism or, if
   applicable, other electronic means provided by the sender as described in
   paragraph (b)(2) and (b)(3) of this section.

   (c) Definitions. For the purpose of this subpart:

   (1) Commercial Mobile Radio Service Provider means any provider that offers
   the services defined in 47 CFR Section 20.9.

   (2) Commercial electronic mail message means the term as defined in the
   CAN-SPAM Act, 15 U.S.C 7702 and as further defined under 16 CFR 316.3. The
   term is defined as “an electronic message for which the primary purpose is
   commercial advertisement or promotion of a commercial product or service
   (including  content  on an Internet Web site operated for a commercial
   purpose).” The term “commercial electronic mail message” does not include a
   transactional or relationship message.

   (3) Domain name means any alphanumeric designation which is registered with
   or assigned by any domain name registrar, domain name registry, or other
   domain name registration authority as part of an electronic address on the
   Internet.

   (4) Electronic mail address means a destination, commonly expressed as a
   string of characters, consisting of a unique user name or mailbox and a
   reference to an Internet domain, whether or not displayed, to which an
   electronic mail message can be sent or delivered.

   (5) Electronic mail message means a message sent to a unique electronic mail
   address.

   (6) Initiate, with respect to a commercial electronic mail message, means to
   originate  or  transmit such messages or to procure the origination or
   transmission of such message, but shall not include actions that constitute
   routine conveyance of such message. For purposes of this paragraph, more
   than one person may be considered to have initiated a message. “Routine
   conveyance” means the transmission, routing, relaying, handling, or storing,
   through an automatic technical process, or an electronic mail message for
   which another person has identified the recipients or provided the recipient
   addresses.

   (7) Mobile Service Commercial Message means a commercial electronic mail
   message that is transmitted directly to a wireless device that is utilized
   by a subscriber of a commercial mobile service (as such term is defined in
   section 332(d) of the Communications Act of 1934 (47 U.S.C. 332(d)) in
   connection with such service. A commercial message is presumed to be a
   mobile service commercial message if it is sent or directed to any address
   containing a reference, whether or not displayed, to an Internet domain
   listed on the FCC's wireless domain names list. The FCC's wireless domain
   names list will be available on the FCC's website and at the Commission
   headquarters, 445 12th St., SW., Washington, DC 20554.

   (8) Transactional or relationship message means the following and is further
   defined  under 16 CFR 316.3 as any electronic mail message the primary
   purpose of which is:

   (i) To facilitate, complete, or confirm a commercial transaction that the
   recipient has previously agreed to enter into with the sender;

   (ii) To provide warranty information, product recall information, or safety
   or security information with respect to a commercial product or service used
   or purchased by the recipient;

   (iii) To provide:

   (A) Notification concerning a change in the terms or features of;

   (B) Notification of a change in the recipient's standing or status with
   respect to; or

   (C) At regular periodic intervals, account balance information or other type
   of account statement with respect to a subscription, membership, account,
   loan, or comparable ongoing commercial relationship involving the ongoing
   purchase or use by the recipient of products or services offered by the
   sender;

   (D) To provide information directly related to an employment relationship or
   related  benefit  plan  in  which the recipient is currently involved,
   participating, or enrolled; or

   (E) To deliver goods or services, including product updates or upgrades,
   that the recipient is entitled to receive under the terms of a transaction
   that the recipient has previously agreed to enter into with the sender.

   (d) Express Prior Authorization may be obtained by oral or written means,
   including electronic methods.

   (1) Written authorization must contain the subscriber's signature, including
   an electronic signature as defined by 15 U.S.C. 7001 (E-Sign Act).

   (2) All authorizations must include the electronic mail address to which
   mobile  service  commercial  messages  can be sent or directed. If the
   authorization  is  made  through a website, the website must allow the
   subscriber to input the specific electronic mail address to which commercial
   messages may be sent.

   (3) Express Prior Authorization must be obtained by the party initiating the
   mobile service commercial message. In the absence of a specific request by
   the subscriber to the contrary, express prior authorization shall apply only
   to the particular person or entity seeking the authorization and not to any
   affiliated entities unless the subscriber expressly agrees to their being
   included in the express prior authorization.

   (4)  Express  Prior Authorization may be revoked by a request from the
   subscriber, as noted in paragraph (b)(2) and (b)(3) of this section.

   (5) All requests for express prior authorization must include the following
   disclosures:

   (i) That the subscriber is agreeing to receive mobile service commercial
   messages sent to his/her wireless device from a particular sender. The
   disclosure must state clearly the identity of the business, individual, or
   other entity that will be sending the messages;

   (ii) That the subscriber may be charged by his/her wireless service provider
   in connection with receipt of such messages; and

   (iii) That the subscriber may revoke his/her authorization to receive MSCMs
   at any time.

   (6) All notices containing the required disclosures must be clearly legible,
   use sufficiently large type or, if audio, be of sufficiently loud volume,
   and be placed so as to be readily apparent to a wireless subscriber. Any
   such disclosures must be presented separately from any other authorizations
   in  the document or oral presentation. If any portion of the notice is
   translated into another language, then all portions of the notice must be
   translated into the same language.

   (e) All CMRS providers must identify all electronic mail domain names used
   to  offer  subscribers  messaging specifically for wireless devices in
   connection with commercial mobile service in the manner and time-frame
   described in a public notice to be issued by the Consumer & Governmental
   Affairs Bureau.

   (f)  Each CMRS provider is responsible for the continuing accuracy and
   completeness of information furnished for the FCC's wireless domain names
   list. CMRS providers must:

   (1) File any future updates to listings with the Commission not less than 30
   days before issuing subscribers any new or modified domain name;

   (2) Remove any domain name that has not been issued to subscribers or is no
   longer in use within 6 months of placing it on the list or last date of use;
   and

   (3) Certify that any domain name placed on the FCC's wireless domain names
   list is used for mobile service messaging.

   [ 69 FR 55779 , Sept. 16, 2004, as amended at  70 FR 34666 , June 15, 2005]

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Subpart CC—Customer Account Record Exchange Requirements

   Authority: 47 U.S.C. 154, 201, 202, 222, 258 unless otherwise noted.

   Source:  70 FR 32263 , June 2, 2005, unless otherwise noted.

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