Cyber Promotions has filed a motion with the U.S. District Court for the Eastern District of Pennsylvania in an attempt to get AOL to stop blocking Cyber Promotions' junk email, its president Sanford Wallace said today.
This time, instead of citing the First Amendment, Cyber Promotions is asking the court to issue an injunction against AOL's popular PreferredMail email filter because it is "a direct violation of federal antitrust laws."
Last week a federal court judge ruled that AOL had a right to block Cyber Promotions' email and that Cyber Promotions has no special rights under the First Amendment to send unsolicited email. PreferredMail automatically blocks email from Cyber Promotions and a host of other sites that regularly send out junk email unless a member goes to a special area to turn the feature off.
Wallace said the block violates antitrust laws because AOL has a "stranglehold" on its nearly 7 million customers, he said.
"Just because America Online gives them exclusive connectivity to the Internet does not give America Online the right to control commerce on the Internet," Wallace said.
Wallace, who has a mailing list with 1.3 million members, 1 million of whom are AOL users, said he specifically targets AOL members because they are more receptive to advertising email than the Internet public in general.
America Online members are "people who are relatively new to the Internet who do not have a preexisting view that the Internet should not be used for commercial purposes," unlike Netizens out in the Internet community at large, who are offended by junk email, Wallace said.
But Wallace has only a slim chance of winning an antitrust suit, according to experts. "It's an innovative claim that's really unlikely to succeed," said antitrust attorney Maureen McGuirl, a partner with Brown Raysman Millstein Felder & Steiner. To win an antitrust complaint, Cyber Promotions must prove that AOL has a monopoly and has locked out competition, she said.
"The fact that people can go from AOL to Prodigy or some other service...is going to be a significant problem for Cyber Promotions," McGuirl said.
Mike Godwin, staff attorney for the Electronic Frontier Foundation, put it more bluntly. "That's a loser," he said. "There's no way AOL is the only player in this market.
"It's not that AOL is attempting to dominate the commercial market. AOL lets everybody buy ads and is not the only game in town. Seven million members can walk over to CompuServe any day of the week," Godwin said.
"If AOL has the members, it's not because AOL is keeping them from going anywhere else. It's because AOL has something they want," he added. "One of the things they seem to want is not to have to deal with being spammed."
In other legal action, earlier this week Concentric Networks became the first online service provider to obtain a permanent injunction prohibiting Cyber Promotions and Wallace from sending any unsolicited commercial advertisements via email to its subscribers.
The permanent injunction was issued by the federal court for the Northern District of California as part of a resolution of Concentric Networks' October 2 lawsuit against the two defendants. Concentric Networks will also receive $5,000 from Cyber Promotions and a letter of apology from Wallace.