If Yesmail’s communications with the Federal Trade Commission’s lawyers were anything like our interview with FTC attorneys last week, we understand why the e-mail firm settled.
During a 15- to 20-minute interview, we quickly decided smashing cinderblocks on our heads would be less painful than trying to get clear answers out of FTC lawyers.
At first, FTC attorney LaShawn Johnson answered questions by simply restating material in the complaint and the news release published after the settlement.
Thing is, contrary to what many believe, we are at least semi-literate and had read the complaint and release. The reason we were on the phone was that there were some things that weren’t clear.
Sure, Yesmail had agreed to pay $50,717 to settle charges that its @Once unit violated the Can-Spam Act by sending e-mail on behalf of clients more than 10 days after recipients had asked it to stop using the reply button.
We figured it was unlikely @Once was purposely failing to honor opt outs, so the question was: Where did they go wrong?
Had @Once presented the “reply to” button as an opt-out option? Or were people hitting it to opt out even though it wasn’t presented as an opt-out option? If so, maybe @Once wasn’t prepared to receive opt-outs through its reply buttons.
Or did @Once experience a technical glitch? If so, the Can-Spam Act contains a safe harbor provision. Why didn’t @Once’s mistake qualify?
Folks, we may as well have been asking for an explanation of cold fusion.
When it became clear the interview was getting nowhere, Johnson left the room to get her supervisor Lisa Hone, assistant director, division of marketing practices.
“They didn’t comply with Can-Spam,” Hone said, again, basically saying no more than was in the complaint and release. “You should assume that they fell within all the requirements to bring a matter.”
But why didn’t Yesmail get safe harbor protection? We asked—again.
Rather than answer directly, Johnson chimed in and added that in order for an opt-out mechanism’s failure to qualify for “safe harbor” protection under the Can-Spam Act, the failure has to be unexpected, temporary, beyond the control of the sender and corrected within a reasonable period of time.
Hone added: “All I can say is they didn’t meet those standards,” refusing to get more specific.
Ugh.
Later that day, a short conversation with a source close to Yesmail revealed that @Once didn’t find and fix the problem fast enough for the FTC’s liking.
Got that? They didn’t do it quickly enough. Now would someone please explain what could possibly be so sensitive from the FTC’s standpoint that prevented two presumably well-educated lawyers from simply telling us where @Once went afoul of Can-Spam?
Thud. Thud. Thud. Hear that? It’s our head hitting the desk.
