I was trading emails a few weeks ago Elliot Noss from Tucows about the current state of the economy after being on a panel together about it, and he wrote:

The market is fascinating right now. Heated competition AND layoffs and hiring freezes. It feel like an old European hotel where there are two faucets, one is too hot and the other too cold.

While a quick rant about European hotel bathrooms could be fun…we’ll just stick to the sink analogy. As anyone who has ever tried to use one of these sinks that Elliot describes knows, they’re hard to use and illogical. Sure, sometimes you want freezing water and sometimes you want scalding water (I guess), but often, you want something in between. And the only way to achieve that is to turn on both freezing and scalding at the same time? That’s weird.

Then I was on another email thread recently with a group of CEOs, when John Henry from Ride With Loop said this:

Whatever the climate, we all surely agree there is no bad time to build a good business.

How true that is!

But here’s the worrisome part. It’s impossible to predict what’s going to happen next. We are in uncharted territory here with a land war in Europe, a partial global oil embargo of a top tier oil producer, a pandemic, supply chain problems, etc. etc. There are days and circumstances where everything feels normal. Plenty of businesses, especially in the tech sector, are kicking ass. And yet there are days and circumstances that feel like 2001 or 2009. It’s tough to navigate as a startup CEO. Yes, it’s obvious you should try to have a couple years of cash on hand, and that you should be smart about investments and not get too far ahead of revenue if you’re in certain sectors (presumably if you’re in an R&D intensive field and weren’t planning to have revenue for years on end, life isn’t all that different?). But beyond that, there’s no clear playbook.

And that’s where the worrisome line comes in. I saw Larry Summers on Meet the Press last weekend, who predicted that

a recession would come in late 2023.

Wait, what? Aren’t things messed up now? Yes, inflation is high, the stock market is down, and interest rates are creeping up. But the economy is still GROWING. Unemployment is still LOW. Summers’ point is a reminder that contraction is likely, but it may still be a ways off, it depends how the Fed handles interest rate hikes (and about a zillion other things), and it’s impossible to predict. That was more worrisome to me. If we’re navigating choppy waters now, it may not just be for a couple of quarters. It may be that 4-6 quarters from now, we are in for 2-3 quarters of contraction. That is a more than most companies are able to plan for from a cash perspective.

Frothy macro environments lead to bad businesses getting created, too many lookalike businesses popping up, or weak teams getting funded. When the tide goes out, as they say, you can see who is swimming naked. But if you’re building a good business, one that has staying power and a clear value proposition, with real people or clients paying real money for a real product or service, and if you’re serious about building a good company, keep on keeping on. Be smart about key decisions, especially investment decisions, but don’t despair or give up.

We’ll all get through this.

Why Publishing Will Never Be the Same, Part II

In Part I of this series, I talked about our experience at Return Path publishing a book back in January through a new type of print-on-demand, or self-publishing house called iUniverse and why I thought the publishing industry was in for a long, slow decline unless it changes its ways.

We had another interesting experience with iUniverse more recently that reinforces this point.  It turns out, although iUniverse is mainly a “self publisher,” they also have a traditional publishing model called their Star Program, which includes an editorial review process.  The good news for us is that they contacted us and said they liked our book so much, and sales are strong enough, that they’ve given it an Editors’ Choice and Readers’ Choice notation and they want to put it in the Star Program.  That was very exciting!  I mean, who doesn’t want to be a star?  The bad news is that the traditional model isn’t particularly compelling.  This is the deal they’ve offered:

– A 3-year exclusive for them (our current contract is non-exclusive)

– Diminished control over the IP

– Diminished royalties

– iUniverse would re-publish the book, which means (a) it would become unavailable for 6 months before the re-launch, (b) they would give it a new cover and re-edit the book, (c) we could revise the content if we want, and (d) they’d have control over all final decisions around the editorial and cover

– iUniverse would do more active marketing of the book

Ok, so this could be a compelling deal, if the “more active marketing” was really going to move the needle for us.  So we asked more about what that gets us.  The answer:

– Sending the book out for reviews (we did this within our industry but certainly not by broader business press, although we probably could do so on our own)

– Setting up book signing events (hard to imagine this is interesting for a business how-to book like this)

– Setting up interview or radio appearances (again, we did this in-industry but not broader)

– Introducing us to the buyer from Barnes & Noble retail stores (success rate unknown – too early to tell in the program’s life)

The folks at iUniverse had no idea what we could even project in terms of increased sales from these activities.  When we pushed on this a little bit more on the tangible benefits of marketing, their end comment was “the most successful books are the ones where the authors are out actively promoting them.”

We haven’t made a decision on this one yet.  Their support is probably valuable on balance, the change in royalty structure isn’t material, and assuming we could carve out the IP issues to our satisfaction, it could be a good way to issue a second edition with less cost.  The in-store presence is really the wild card that could really tip the scales.

But the lure of legitimacy (e.g., someone else published it with an editorial review process, we didn’t just pay to play) is the biggest thing in iUniverse’s favor on this one, and that’s what I have to imagine will decrease over time for the publishing industry as it becomes easier and easier for individuals to publish content, market it, and establish credibility by having other individuals rate and review it.

Thanks to my colleague Tami Forman for her assistance on these postings (and for managing the book project!).  Tami is too modest to tell anyone, but she is a wonderful writer and has a blog that she updates not nearly often enough on food — she used to be the food editor for iVillage.

My long-time friend and former Board member Brad Feld has become a prolific writer on the startup world over the years and is the person (other than me) most responsible for me getting into that scene as well. Startup CEO is part of his Startup Revolution series, which followed me writing an essay for Do More Faster, and then writing a series of sidebars call “The Entrepreneur’s Perspective” in Venture Deals.

All Brad’s books are listed here. If you’re in the startup universe, I’d encourage you to read all of them. I’m excited to dive into his newest book, The Startup Community Way, which comes out this week from our same publisher, John Wiley & Sons. I’ve gotten part of the way through an early copy, and I love it already.

The approach Brad and his co-author Ian Hathaway take is to evolve their Boulder Thesis from the original Startup Communities book. They dive into the topic and examine it from the perspective of a complex system, which of course anything as fragmented as an ecosystem of public, private, and academic organizations is.

The book — and the whole topic, quite frankly — remind me of a great management book I read several years ago by General Stanley McChrystal called Team of Teams. Organizations have gotten more complex and have had to adapt their structures, and the most successful ones are the ones that have shifted from hierarchical structures to node-based structures, or teams of teams, where individual, agile teams operate with loose points of connection to other teams that focus on dependencies and outcomes.

In the same way, startup communities and the broader ecosystems that touch them have changed and adapted, and the successful ones have learned how to stay loosely connected to other startup communities, prioritize collaboration, and remain focused on inclusion and entrepreneurial leadership.

Why Publishing Will Never Be the Same, Part I

As you may know, we published a book earlier this year at Return Path called Sign Me Up! Sales are going quite well, in case you’re wondering, and we also launched the book’s official web site, where you can subscribe to our “email best practices” newsletter.

The process of publishing the book was fascinating and convinced me that publishing will never be the same.  Even in two parts, this will be a long post, so apologies in advance. Front to back, the process went something like this:

– We wrote the content and selected and prepared the graphics

– We hired iUniverse to publish the book for a rough total cost of $1,500

– iUniverse provided copy editing, layout, and cover design services

– Within 8 weeks, iUniverse put the book on Amazon.com and BN.com for us (in addition to their site) and properly indexed it for search, and poof — we were in business

– Any time someone places an order on any of those three sites, iUniverse prints a copy on demand, binds it, and ships it off. No fuss, no muss, no inventory, but a slightly higher unit cost than you’d get from a traditional publisher who mass prints. We receive approximately 20% of the revenue from the book sale, and iUniverse receives 80%.  I’m not sure what cut they give Amazon, but it’s hard to imagine it’s more than 10-20% of the gross

Other than the writing part (not to be minimized), how easy is that?  So of course, that made me think about the poor, poor publishing industry. It seems to me that, like many other industries, technology is revolutionizing publishing.  Here’s how:

– Publishers handle printing and inventory.  iUniverse and its competitors can do it for you in a significantly more economic way.  Print on Demand will soon be de rigeur.

– Publishers handle marketing and distribution.  iUniverse gets you on Amazon.com and BN.com for free.  Amazon.com and BN.com now represent something like 12% of all book sales (cobbled together stats from iMedia Connection saying the annual online book sale run rate is now about $3 billion and the Association of American Publishers saying that the total size of the industry is $24 billion).  Google and Overture take credit cards and about 5 minutes to drive people to buy your book online.  Buzz and viral and email marketing techniques are easy and cheap.

– Publishers pay you.  Ok, this is compelling, but they only pay you (especially advances) if you’re really, really good, or a recognized author or expert. iUniverse pays as well, just in a pay-for-performance model.  Bonus points for setting yourself up as an affiliate on Amazon and BN to make even more money on the sale.  iUniverse actually pays a higher royalty (20% vs. 7.5-15% in the traditional model), so you’re probably always a fixed amount “behind” in the self-publish model, but you don’t have an agent to pay.

Unless you are dying to be accepted into literary or academic circles that require Someone & Sons to annoint you…why bother with a traditional publisher? As long as you have the up-front money and the belief that you’ll sell enough books to cover your expenses and then some, do it yourself.

In Part II, I will talk about how iUniverse pitches a “traditional publishing model” and why it only reinforces the point that the traditional model doesn’t make a lot of sense any more in many cases.

My latest book (I’m a co-author along with Brad Feld and Mahendra Ramsinghani), Startup Boards: A Field Guide to Building and Leading an Effective Board of Directors, is now live on Amazon – today is publication day! The book is a major refresh of the first edition, now eight years old. I was quoted in it extensively but not an official author – Brad and Mahendra were nice enough to share that with me this time. The book includes a lot of new material and new voices, including a great Foreword by Jocelyn Mangan from Him for Her and Illumyn. It’s aligned with Startup CEO and Startup CXO in look and in format and is designed to be an easy-to-read operator’s manual to private company boards of directors. Brad also blogged about it here.

We’ve done a lot of work around startup boards at Bolster the past couple of years, including working with over 30 CEOs to help them hire amazing new independent board members. Our landmark Board Benchmark study last year highlighted the problem with startup boards, but also the opportunity that lies within: not enough diversity on the boards, but also not nearly enough independent directors — and a lot of open seats for independent directors that could be filled. That conclusion led me to my Startup Board Mantra of 1-1-1: Independent directors from Day 1, 1 member of the management team, and 1 independent for every 1 investor.

As we posted on the Bolster blog last week, our quick refresh of the Board Benchmark study revealed some good news and some bad news about progress on diversity in the boardroom with startups. The good news is that the needle is starting to move very slowly, and that independent directors present the best opportunity to add diversity to boards. Our data shows that half of all new directors brought onto boards in the last year were independents, and of those, 57.9% were women and 31.6% were non-White board members. Those numbers are well above the prior study’s benchmarks of 36% and 23%, respectively (our experience running board searches skews even further to women and non-White directors being hired).

The bad news is how slowly the needle is moving — only 20% of open independent board seats were filled over the previous year, which is a lot of missed opportunity. The main takeaway is that while overall representation on boards is still skewed largely White and male, the demographic profile of new board appointments looks a lot different from the representation on boards today, indicating that CEOs are making intentional changes to their board composition.

Startup boards are a great way to drive grassroots change to the face of leadership in corporate America. More CEOs need to follow up by filling their open board seats and fulfilling their stated desires to improve diversity in the boardroom. This takes time and prioritization — these are the places where we see board searches either never get off the ground, or falling down once they do, for all the searches we either run or pitch at Bolster.

Hopefully Startup Boards will help the startup ecosystem get there.

As I mentioned the other day, the second edition of Startup CEO is out.  This post is a teaser for the content in one of the new chapters in this edition on Authentic Leadership.

As I mentioned last week, the book went to press early in the COVID-19 pandemic and prior to all the protests around racial injustice surrounding the George Floyd killing, so nothing in it specifically addresses any of those issues.  In some ways, though, that may be better at the moment since the book is more about frameworks and principles than about specific responses to current events. Two of those principles, which are timeless and transcend turmoil, uncertainty, time and place, are creating space to think and reflect and being intentional in your actions. In a world in which CEOs are increasingly called upon to deal with more than traditional business (pricing, strategy, go-to market approaches, team building, etc.) it’s imperative to approach and solve challenging situations from a foundation that doesn’t waver. 

At Return Path our values were the foundation that provided a lens through which we made every decision. Well, not every decision, only the good ones. When we strayed from our core values, that got us into trouble. The other principle, outlined in Chapter 1 of the Second Edition, is leading an organization authentically.

Let me provide a couple concrete examples of what I mean by “Authentic Leadership” since the term can be interpreted many ways.

One example is to avoid what I call the “Say-Do” gap.  This is obviously a very different thread than talking about how the company relates to the outside world and current events.  But in some ways, it’s even more important.  A leader can’t truly be trusted and followed by their team without being very cognizant of, and hopefully avoiding close to 100%, any gap between the things they say or policies they create, and the things they do.  There is no faster way to generate muscle-pulling eyerolls on your team than to create a policy or a value and promptly not follow it. 

I’ll give you an example that just drove me nuts early in my career here, though there are others in the book.  I worked for a company that had an expense policy – one of those old school policies that included things like “you can spend up to $10 on a taxi home if you work past 8 pm unless it’s summer when it’s still light out at 8 pm” (or something like that).  Anyway, the policy stipulated a max an employee could spend on a hotel for a business trip, but the CEO  (who was an employee) didn’t follow that policy 100% of the time.  When called out on it, did the CEO apologize and say they would follow the policy just like everyone else? No, the CEO changed the policy in the employee handbook so that it read “blah blah blah, other than the CEO, President, or CFO, who may spend a higher dollar amount at his discretion.”

What does that say about the CEO? How engaged are employees likely to be, how much effort are they willing to devote to the company if there are special rules for the executives? You can make any rule you want — as you probably know if you have read a bunch of my posts or my book over the years, I’m a proponent of rule-light environments — but you can’t make rules for everyone else that you aren’t willing to follow yourself unless you own the whole company and don’t care what anyone thinks about you or says about you behind your back.

Beyond avoiding the Say-Do Gap, this new chapter of the book on Authentic Leadership also talks about how CEOs respond to current events in today’s increasingly politicized and polarized world.  This has always felt to me like a losing proposition for most CEOs, which I talk about quite a bit in the book.  When the world is polarized, whatever you do as CEO, whatever position you take on things, is bound to upset, alienate, or infuriate some nontrivial percentage of your workforce.  I even give some examples in the book of how I focused on using the company’s best interests and the company’s values as guideposts for reacting (or not reacting) to politically divisive or charged issues like guns or “religious liberty” laws.  I say this noting that there are some people who *believe* that their side of an issue like this is right, and the other side is wrong, but the issues have some element of nuance to them.

Today’s world feels a bit different, and I’m not sure what I would be doing if I was leading a known, scaled enterprise at this stage in the game.  The largely peaceful protests around all aspects of racial injustice in America in the wake of the murder of George Floyd — and the brutality and senselessness of that murder itself — have caused a tidal wave of dialog reaching all corners of the country and the world.  The root of this issue doesn’t feel to me like one that has a lot of nuance or a second side to the argument.  After all, what reasonable person is out there arguing that George Floyd’s death was called for, or even that black Americans don’t have a deep-seeded and widespread reasonable claim to inequality…even if their view of what to do about it differs?

I *think* what I would be doing in a broader leadership role today is figuring out what my organization could be doing to help reduce or eliminate structural racial inequality where we could based on our business, as opposed to driving my organization to take a specific political stand. I know for sure that I wouldn’t solicit feedback from a select group of people only, but I would create a space where voices from across the organization (and stakeholders outside of it as well) could be heard. That’s not a solution, but a start, and in challenging times making a little bit of headway can lead to a cascading effect. It can, if you keep the momentum.

And, in line with “authentic leadership,” it’s okay to admit that you don’t have the answers, that you might not even know the questions to ask. But doing nothing, or operating in a “business as usual” way won’t make your company stronger, won’t open up new opportunities, won’t generate new ideas, and won’t sit well with your employees, who are very much thinking about these issues. 

So, in today’s challenging times I would follow my own advice, be thoughtful and reflective, and intentional in searching for common solutions.  I’d try to avoid “mob mentality” pressure — but I would also be listening carefully to my stakeholders and to my own conscience.

In the coming weeks, I’ll write posts that get into some of the other topics I cover in the book, but none of them will be as good as reading the full thing!

Startup CEO (OnlyOnce- the book!), Part II – Crowdsourcing the Outline

As I mentioned a few weeks ago here, I’m excited to be writing a book called Startup CEO:  A Field Guide to Building and Running Your Company, to be published by Wiley & Sons next summer.  Since many readers of OnlyOnce are my target audience for the book, I thought I’d post my current outline and ask for input and feedback on it.  So here it is, still a bit of a work in progress.  Please comment away and let me know what you think, what’s missing, what’s not interesting!

1           Part One: Vision and Strategy (Defining the Company)
1.1          Setting the Company’s Agenda
1.2          NIHITO! (or, “Nothing Interesting Happens in the Office”)
1.3          Setting the Business Direction
1.4          Strategic Planning, Part I: Turning Concepts Into Strategy
1.5          Strategic Planning, Part II: Creating the Plan
1.6          Defining Mission, Vision and Values
1.7          Communicating Vision and Strategy
1.8          The Role of M&A
1.9          The Art of the Pivot
1.10       How Vision and Strategy Change over Time

2           Part Two: Talent (Building the Company’s Human Capital)
2.1          Building a Team
2.2          Scaling the Team
2.3          Culture
2.4          Interviewing
2.5          Recruiting
2.6          Onboarding
2.7          Setting Goals
2.8          Feedback
2.9          Development
2.10       Compensation
2.11       Promoting
2.12       Rewarding
2.13       Managing Remote Offices and Employees
2.14       Firing: When It’s Not Working
2.15       How Talent Changes over Time

3           Part Three: Execution (Aligning Resources with Strategy)
3.1          Making Sure There’s Enough Money in the Bank
3.2          Types of Financing
3.3          Fundraising Basics
3.4          Negotiating Deals
3.5          Pros and Cons of Outside Financing
3.6          Forecasting and Budgeting
3.7          Creating a Company Operating System
3.8          Meeting Routines
3.9          Driving Alignment
3.10       A Metrics-Driven Approach to Running a Business
3.11       Learning
3.12       Post-Mortems
3.13       Thinking About Exits
3.14       How Execution Changes over Time
3.14.1      Finance
3.14.2      Execution

4           Part Four: Management And Leadership (The How of Being a CEO)
4.1          Leading an Executive Team
4.2          Critical Personal Traits
4.3          Being Collaborative
4.4          Being Decisive: Balancing Authority and Consensus
4.5          The Value of Symbolism
4.6          Getting the Most out of People
4.7          Diving Deep without Being Disruptive
4.8          Articulating Purpose
4.9          Collecting Data from the Organization
4.10       Managing in an Economic Downturn
4.11       Managing in Good Times vs. Bad Times
4.12       Communication
4.12.1      Macro (to Your Company and Customers)
4.12.2      Micro (One-on-One)
4.13       How Management and Leadership Change over Time

5           Part Five: Boards (A Unique Aspect of the CEO’s Job)
5.1          Building Your Board
5.2          Meeting Materials
5.3          Meetings
5.4          Between Meetings
5.5          Making Decisions and Maximizing Effectiveness
5.6          The Social Aspects of Running a Board
5.7          Working with the Board on Compensation
5.8          Evaluating the Board
5.9          Serving on Other Boards
5.10       How Boards Change over Time

6           Part Six: Managing Yourself So You Can Manage Others
6.1          Creating a Personal Operating System
6.2          Working with an Executive Assistant
6.3          Working with a Coach
6.4          Finding Your Voice
6.5          The Importance of Peer Groups
6.6          Your Family
6.7          Taking Stock
6.8          Staying Fresh
6.9          Staying Healthy
6.10       Traveling

Book Shorts:  Sales, Sales, Sales, Sales, Sales

Jeffrey Gitomer’s Little Red Book of Selling and Little Red Book of Sales Answers were great refreshers in sales basics for you as CEO (and head of sales, and sales manager, and sales rep).  The books were a bit “self-help” flavor for my taste as a reader, but they were excellent on content, and I have two long pages of notes of “back to basics” items I need to remind myself and my team about.

Anyone at Return Path in sales/account-project management/marketing — your copy is on the way, hopefully by way of a barter I proposed with the author (sorry, Stephanie and Tami…), but in any case, we’ll buy them.  Anyone else who is interested at RP, let me know, and the copy is on me.

Some of the most critical reminders — although you have to read the books to get to get the color:

– Ask questions, don’t talk talk talk at prospects (just like the SPIN Selling methodology we always train with at Return Path)

– Never say “tell me a little bit about your business” — do the research first

– Importance of testimonials in selling

– Never blame others or blame circumstances when things go wrong.  Take control and solve the problem (good for sales and for everyone!)

Seth Responds

About an hour after I posted a not so flattering review of Seth Godin’s new book this morning, I got an email from Seth with a couple good points worth responding to here.

His main points (other than offering me a refund, which was nice) were that (a) the book itself was very clear about its content — on the book itself (back cover, inside flap, marketing copy), kind of like a ‘live album’ for a recording artist; and (b) if I thought the blog postings were worthwhile, why  did I still feel like there was a downward trend in his writing?

Ok, so these are fair points.  Let me try to clarify.  I am 99% sure that I bought the book off the Amazon.com email which said “if you enjoyed other books by Seth Godin, then here’s his latest,” which prompted my robotic one-click order without paying attention to the fine print.  That’s why I was disappointed when I got the book.  My bad, I guess, although that’s somehow an unsatisfying thought as a consumer — that I should have paid more attention to the fine print.  Live albums from musicians usually have that in the title so the marketing is clear, and they still sell a ton, probably even more so.

In re-reading my review, I actually think it’s balanced — I do say there are a bunch of circumstances where the book is a must-have — but my use of the word “sell-out” was a bit harsh given the attempts to present the book as a compendium.  But the downward trend in my mind is more than just this book.  I think a lot of Seth’s writings have been hitting the same notes for the last couple of years, while I’ve been hoping to hear his next Big Moo.

I didn’t take up Seth’s offer for a refund, as I fall somewhere between (a) and (c) in my definition of why this is a must-have.  And while I’m at it, maybe I should rethink my earlier point that this whole blog thing isn’t about conversations.

OnlyOnce is 8 years old this week, which is hard to believe. So it is fitting that I got halfway through a new post this morning, then a little alarm bell went off in my head that I had written something similar before.  The topic is around moderation versus extremes.  I first wrote about this topic in 2005 in a post called Shifting Gears but I have thought about it more recently in a different way. 

Instead of phrasing this as a struggle between “Meden Agan,” which is Greek for “everything in moderation,” and “Gor oder gornischt,” which is Yiddish for “all or nothing,” I’d like to focus here on the value of occasionally going to an extreme. And that value is around learning. Let me give three examples:

-We were having a buy vs. build conversation at work a few months back as we were considering an acquisition. Some people in the room had an emotional bias towards buy; others toward build. So we framed the debate this way:  “Would you acquire the company for $1 instead of building the technology?” (Yes!) “Would you buy it for $10mm?” (No!) Taking the conversation to the extremes allowed us to focus on a rational answer as opposed to an emotional one — where is the price where buy and build are in equilibrium?

– With my colleague Andrea, I completed a 5-day juice fast a few weeks back. It was good and interesting on a bunch of levels. But I came away with two really interesting learnings that I only got from being extreme for a few days:  I like fruits and veggies (and veggie juices) a lot and don’t consume enough of them; and I sleep MUCH better at night on a relatively empty stomach

– Last year, I overhauled my “operating system” at work to stop interviewing all candidates for all jobs and stop doing 90-day 1:1 meetings with all new employees as well. I wrote about this in Retail, No Longer. What finally convinced me to do it was something one of my colleagues said to me, which was “Will you be able to keep these activities up when we have 500 employees?” (No) “So what is the difference if you stop now and save time vs. stopping in 6 months?” Thinking about the extreme got me to realize the full spectrum

It may not be great to live at the extremes, but I find extremes to be great places to learn and develop a good sense of what normal or moderate or real is.

Beyond CAN-SPAM:  The Nightmare Continues

Turn back the clock to the end of 2003.  A bunch of states had recently passed their own anti-spam bills, and California had just passed the then-notorious SB186.  Commercial emailers were freaking out because compliance with a patchwork of state laws for email is nearly impossible given the nature of email and given the differences between the laws.  The reult of the freakout was an expedited, and decent, though far from perfect, federal law called CAN-SPAM which, among other things, preempted most of the individual state laws under the interstate commerce clause.  Most of us noted that the federal government had never worked so swiftly in recent memory.

Now it’s mid-2005, and a new cycle of state email legislation craziness is underway, this time with Michigan and Utah in the lead.  Once again, the legislation is well-intentioned but incredibly impractical.  I haven’t heard an appropriate amount of kicking and screaming about this yet, so let me give it a shot.

The laws themselves are billed as “Child Protection Acts.”  They ban email advertising (and also other electronic forms of advertising, like IM, phone, fax) to minors for things like guns, liquor, gambling, porn, tobacco, and — one of the kickers — “anything else deemed to be harmful to minors or unlawful for minors to purchase.”  The bans are in place even if the child has requested the advertising.  The proposed solution is an email address registry of chidren’s email addresses which would act as a suppression list for mailers, is run by a third party, and costs a $7 CPM per suppression run, per state, based on the size of the input file, not the size of the matches.

Let me start running down the problems here:

1. The laws won’t work comprehensively, as people have to proactively register their addresses with state registries.

2. The laws won’t do squat to prevent international or fraudulent advertisers from hitting children with their ads.

3. People with multi-purpose “family” email addresses will have to make a black-and-white decision about being on the registry.

4. Compliance will be a nightmare.  Since emailers usually don’t have a state tied to an email address, they will have to suppress their entire file against each state’s registry.

5. Charging based on the size of the input file as opposed to the number of matches is ridiculous.  It punishes mailers with large files and is completely divorced from the “value” of the service.

6. The costs are outrageous when you add them up.  A $7 CPM seems low, but multiply it by 12 months (and some people think compliance means more than monthly suppression runs) and now multiply it by at least 2 states — with another 10 or so considering similar legislation, and all of a sudden, a mailer could be paying as much as $1 per name ON THEIR FILE per year.

7. The laws are too vague and potentially too broad.  A law that prevents advertising of anything else deemed to be harmful to minors or unlawful for minors to purchase has some weird and possibly unintended definition consequences.  One example:  apparently, in Michigan, it is illegal to sell cars to minors (odd for a state that includes Detroit and licenses drivers at age 16) — so automobile advertising is a “banned category.”  Another example:  Amazon sells DVDs that are Rated R — does that mean linking to Amazon is now problematic?

8. Anyone can sue — not just state AGs, so look out for a zillion nuisance lawsuits like the old Utah “no popup” law of 2003.

9. The laws may be unconstitutional for any number of reasons, and they may also be in conflict with CAN-SPAM’s supersede clause.

The kicker?  The laws are billed as “Child Protection Laws” — so who the heck is going to stick out their neck and sue the states to force the legality issue?  I’m all for protecting our children…and for eliminating spam for that matter, but I’m sick of governments passing laws with this level of unintended consequences.  Someone ought to make a law about that!