Email to mobile devices

There have been numerous blog posts about email to mobile devices, and making sure that your email displays well on the tiny screens with often lobotomized software. What few people have mentioned is the CAN SPAM laws related to sending mail to mobile devices.
While the FTC handles the bulk of the regulation related to CAN SPAM the FCC is responsible for regulating email sent to wireless devices. The act requires the FCC protect consumers from “unwanted mobile service commercial messages.” To that end there are specific regulations that apply to email sent to domains used exclusively for mobile devices that do not apply to messages that go out to non-mobile domains.
A summary of the FCC rules can be found at http://www.fcc.gov/cgb/policy/canspam.html. The FCC describes the ban to consumers thusly:

The FCC’s ban on sending unwanted e-mail messages to wireless devices applies to all “commercial messages.” The CAN-SPAM Act defines commercial messages as those for which the primary purpose is to advertise or promote a commercial product or service. The FCC’s ban does not cover “transactional or relationship” messages, or notices to facilitate a transaction you have already agreed to. These messages would include statements about an existing account or warranty information about a product you’ve purchased. The FCC’s ban also does not cover non-commercial messages, such as messages about candidates for public office.
The FCC’s ban covers messages sent to cell phones and pagers, if the message uses an Internet address that includes an Internet domain name (usually the part of the address after the individual or electronic mailbox name and the “@” symbol). The FCC’s ban does not cover “short messages,” typically sent from one mobile phone to another, that do not use an Internet address. Also, the FCC’s ban does not cover e-mail messages that you have forwarded from your computer to your wireless device (but the FTC’s rules may restrict such messages).

In order to facilitate compliance, the FCC publishes a list of domains that are used by mobile providers. Any mail to these domains is covered under the FCC regulations, as well as the FTC regulations. The FCC requires anyone sending commercial email to these domains have express prior permission.

Given the intent of Congress to afford greater protections from spam to wireless subscribers than to consumers generally, we believe that the burden must rest with the sender of MSCMs to obtain authorization from any subscriber prior to sending any MSCMs. Senders must also do so in a manner that best protects subscribers’ privacy interests. However, we decline to require senders to obtain a subscriber’s authorization in writing.
We will permit senders to obtain authorization by oral or written means, including electronic methods. A sender may obtain the subscriber’s express prior authorization to transmit MSCMs to that subscriber in writing. Written authorization may be obtained in paper form or via an electronic means such as an electronic mail message from the subscriber. It must include the subscriber’s signature and the electronic mail address to which MSCMs may be sent. Senders who choose to obtain authorization in oral format are also expected to take reasonable steps to ensure that such authorization can be verified.

If you are an ESP, you should verify with customers that they have prior authorization to send to the FCC published domains. If you are a sender, you should have different subscription policies for the FCC published domains.