There really is a baby in that bath water.

I’ve never used that idiom before, but in this case, I feel compelled to use it in response to an article in BtoB Magazine that actually promotes the use of unsolicited commercial email (UCE). In the article, Gary Halliwell, CEO of NetProspex, says that “there’s nothing prohibiting a marketer from sending an e-mail to someone who hasn’t opted in. The recession has forced us to drop this etiquette.”

Everyone has a different definition of what spam is, yet I think we can all agree that at a baseline it starts with unsolicited commercial email — promotional messages sent to consumers who have not requested them. My feeling is that just because we are burdened by an economic recession right now does not give us license to abandon the principles of responsible, permission-based email marketing. By lowering our standards when the going gets tough, we risk losing our industry’s credibility with consumers altogether.

I’ll keep my underlying point here brief: PLEASE DON’T SEND SPAM! If you’re still new to email or striving for more education, please refer to these best practice guides which include recommendations and guidelines that the vast majority of the email industry follow:

• Direct Marketing Association US
• Direct Marketing Association UK
• Email Sender & Provider Coalition
• Messaging Anti-Abuse Working Group

We have all experienced those times when you go on vacation only to return to an inbox that resembles a wasteland of outdated offers, now-irrelevant messages, and other cyber waste.

DailyCandy has a pretty cool feature to help avoid this mess altogether. They offer a feature where subscribers can pause their email subscriptions for a given duration of time. This is kind of like putting your postal mail delivery on hold while you are on vacation or suspending newspaper delivery (for those who still get a newspaper delivered!). Of course, this technology lends itself better to those senders who email daily, just like the USPS or newspaper companies.

This feature looks to be a win-win because:

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The idea of behavioral data affecting email sender reputation first surfaced three years ago, when AOL announced that dormant addresses would factor into sender reputation. AOL explained at the time that spammers create significant numbers of fake email addresses for the sole purpose of driving down complaint percentage rates. Even so, they said that this metric should never affect legitimate emailers who have genuine (human) email recipients.

The next phase of this concept was presented by Microsoft at the Authentication and Online Trust Alliance Conference in 2008 (PDF). Microsoft’s Anti-Spam General Manager indicated that in the future they would prefer to use recipient behavioral metrics like open-rates in addition to their other spam-related metrics to determine sender reputation. While the idea was still hypothetical at the time, the mere fact that they made these statements to a room full of email senders was worth noting.

Now, we have confirmation from Yahoo! that some of these same metrics that AOL and Microsoft have considered are now implemented into Yahoo!’s anti-spam reputation processes. Of course, we’ll never know exactly what percentage of non-openers or other behavioral factors will impact deliverability, but we can say with certainty that dormant addresses and inactive users are now playing a role in determining your Yahoo! inbox success.

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“Like almost everyone who uses e-mail, I receive a ton of spam every day. Much of it offers to help me get out of debt or get rich quick. It would be funny if it weren’t so exciting.”
- Bill Gates on spam

Every so often it is prudent to take a refresher on fundamental email marketing topics and best practices. CAN-SPAM, officially known as the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, is one of the most important online marketing topics. To follow are some of the basic facts, principals and rules concerning CAN-SPAM legislation. But like most legislation, this is not a simple bill. I recommend reading the entire act to learn more details.

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In response to the news that two U.S. Senators have introduced legislation to stop unsolicited text messaging, it might be helpful to clarify whether unsolicited commercial texting is already illegal.

In 2004, the Federal Communications Commission released its Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. The primary purpose of the rules governs commercial email sent to a mobile user with an Internet domain name. (eg; anything with an @’example’.com email address.)   However, the FCC clarified in this rulemaking that short message service/text messaging via an “automatic telephone dialing system” is prohibited under the Telephone Consumer Protection Act (TCPA), which includes all phone numbers registered with the FTC Do Not Call Registry.

To be clear, ‘automatic telephone dialing systems’ are defined as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

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An interesting story trickled out in today’s New York Times about AT&T using less-than-responsible mobile messaging tactics in a recent American Idol campaign.

AT&T sent the promotional message to a “significant number” of its subscribers but did not seem to apply traditional opt-in practices to this campaign. Apparently, their standards of what constitutes spam is different from what email marketers consider it to be, with their corporate spokesman going so far as to assert that “it couldn’t be more open and transparent.”

Mr. Siegel said the message went to subscribers who had voted for “Idol” singers in the past, and other “heavy texters.” He said the message could not be classified as spam because it was free and because it allowed people to decline future missives.

First of all, what exactly is a “heavy texter?” That sounds like some sort of text messaging addict who needs a 12-step treatment program. And second, how can you blindly justify sending these people communications as if they’d opted-in?

While I’m not a compliance expert, I would guess that AT&T could have saved themselves a boatload of trouble by sending the message only to previous Idol texters, and then phrasing their message as a request to opt-in more than a straight advertisement. If I was running the show over there, my 160 characters would have gone something like this: “American Idol is back! Calling all past Idol voters: visit us online at (web address) to find out more. Would you like to receive future messages from us? Opt-in at (short code) or ignore this message to be removed.” 

That would have been rather easy, no?

The Federal Trade Commission scored a major victory yesterday in shutting down HerbalKing, one of the most prolific spam groups on the Internet.

This is obviously a big boost for legitimate email marketers around the world. No one likes receiving spam, yet it constitutes an estimated 90% of all sent email. Many spam operations have been prosecuted by the FTC in the past, but HerbalKing is “perhaps the most extensive they had ever encountered, with ties to Australia, New Zealand, India, China and the United States.”

To give you an idea of just how big HerbalKing’s operation was, consider this: they could send 10 billion e-mail messages a day. That means that HerbalKing sent more messages in a few days than legitimate, permission-based email marketers sent during all of last year.