Communications Article: Unleashing Instant Messaging From Regulatory Oversight
3/1/2004
Written by Mintz Levin member, Fernando Laguarda; reprinted with permission from the University of Richmond's Richmond Journal of Law & Technology.
America Online, Inc. (AOL) and Time Warner Inc. announced their intention to merge on January 10, 2000. At that time, there was a great deal of excitement about combining these two companies and harnessing the power of an increasingly broadband Internet. In addition to the Federal Trade Commission (FTC) and Federal Communications Commission (FCC), more than one thousand local communities conducted their own reviews of the merger. The FTC identified "open access" to the Time Warner Cable platform as an issue meriting specific relief.
The FCC, for its part, specifically identified "instant messaging" (IM) as an issue to be addressed by means of a merger condition. The FCC restricted the merged company's ability to offer advanced interactive high-speed IM services over its facilities (the IM Condition) in connection with its approval of the merger. This article, published by the Richmond Journal of Law & Technology in Volume X, Issue 3, Spring-2004, reviews the genesis of the IM condition and AOL Time Warner's successful effort to have the condition lifted. Part II explains the FCC's rationale for imposing the IM condition. Part IV describes the FCC's decision to lift the IM condition, and Part V sets forth additional reasons why the IM condition should have been lifted. A brief conclusion follows.
Fernando is a member in the firm's Federal Section with a diverse practice cutting across many business sectors. He provides antitrust counseling with respect to mergers, joint ventures, network formation, licensing and strategic planning. He represents multi-provider healthcare systems, media and telecommunications providers and Internet companies in state and federal antitrust investigations. Before the Federal Communications Commission, his principal focus is on cable and broadcast regulation, mergers, ownership rules, competition policy and content protection. He has litigated before administrative tribunals and federal trial and appellate courts. He has extensive experience advising clients on the Digital Performance Rights Act of 1995 and the Digital Millennium Copyright Act of 1998.
