• by Bennet Kelley , April 26, 2004

Last year, advertisers watched the progression of the CAN-SPAM Act with mild interest, only to discover to their surprise that much of the compliance burden and exposure now fell on them. And also that the law failed to differentiate between B-to-B versus B-to-C campaigns. While the law is a positive step forward for advertisers and legitimate marketers, it has added new dimensions for advertisers planning and implementing B-to-B email campaigns and increased the importance of the advertiser-marketing partner relationship.

"It's all about the list." Even in the CAN-SPAM world, the most critical step in implementing a B-to-B campaign is the first step - list selection. This involves resolving several important questions. The first question is whether the advertiser should rent a list or build its own customized list (or both). As in the consumer space, list rental is cheaper in the short term and provides immediate scale, while building your own list through a marketing partner could provide greater yield over time. Another question on the rental side is whether to use branded or compiled lists. A branded list is collected at a single source (e.g. WidgetPortal.com) and may cost twice as much as a compiled list, which has multiple sources but may include many of the same names in the branded list. An experienced diversified marketing partner can help an advertiser develop a list strategy that addresses all of these issues to enable the advertiser to achieve its marketing objectives.

Due Diligence. Once the advertiser has determined its list strategy, it must still do its due diligence on the list, its segments or selects and performance. This may include, to the extent the budget allows, testing the list or at least working with a marketing partner who is able to adapt campaigns quickly based on initial results.

In the CAN-SPAM world, due diligence must now include examining the marketing partner's or list manager's CAN-SPAM compliance efforts and knowledge of the law. This may include reviewing samples of past campaigns and discussing the company's approach to compliance. Engaging in this exercise also provides a preview of the quality of the list manager's customer service. I have had long calls with advertisers who either had other marketers or their own business people giving them CAN-SPAM interpretations based more on the path of least resistance than the language of the law, and in every case being responsive while demonstrating a firm knowledge of the law and a commitment to compliance ultimately helped close the deal.

The Company You Keep. The most significant change caused by CAN-SPAM is that advertisers must now manage opt-out lists and risk liability for failing to do so. This requires advertisers to find both an infrastructure and comfort solution. The infrastructure solution is determining how to manage and share the advertiser's opt-out requests or Do Not Send List (DNS List), which may be a daunting task for smaller advertisers. A number of list managers and marketing companies have created networks that will host and receive an advertiser's opt-out requests and allow designated marketing partners and list managers to interface with the DNS List to enable removal of opt-out addresses prior to any campaign launch.

The comfort solution is determining who to rely upon in processing and sharing your opt-out data. Advertisers managing a DNS List in-house should investigate a list manager's own opt-out practices, since who would want to rely upon a list manager who was not diligent with its own opt-out requests. It is worth noting that some list managers have left the market rather than invest in the infrastructure required to process opt-outs effectively, but there may be similar companies still in the space hoping to "get by."

The second element of the comfort solution is determining who to entrust your DNS List with. In the wrong hands your DNS List is a free data goldmine - particularly for more expensive B-to-B lists. The only way to avoid this risk is to rely on experienced and reputable companies. To the extent an advertiser uses a third party infrastructure solution; it should investigate the provider's security and enforcement procedures to minimize the risk of its DNS List being abused. Given that this is a new product, advertisers must keep in mind Henry Ford's adage that reputations are never built "based on what you're going to do." Fortunately, a number of the new infrastructure providers come from the online marketing space, which should enable an advertiser to judge their reliability.

Calvin Coolidge said that, "those who trust to chance must abide by the results of chance." Under CAN-SPAM, trusting in chance can result in significant exposure for an advertiser who, instead, must now look for marketing partners who provide both results and peace of mind. As a result, the two principal rules for survival in this new world are the old standard "it's all about the list" with a new caveat that it is also "about the company you keep."

Bennet Kelley is Vice President of Legal & Strategic Affairs for Hi-Speed Media, Inc., a ValueClick company.