AOL: essential for sending junk e-mail?

Micro Law S hould marketers providing e-mail advertising to sellers of weight loss, phone sex, and get-rich-quick-scheme services have a right to send unsolicited e-mail via online services such as AOL? Does the First Amendment of the US Constitution guarantee such access as a form of free speech? Do the antitrust laws prohibit AOL and other servers from denying these marketers access to an essential facility of competition? Cyber Promotions Inc. thinks so, but the federal district court in Philadelphia did not agree. Cyber sends e-mail advertising via the Internet and AOL to AOL subscribers and to subscribers of other services linked to AOL on the Net. During the period from November 4 to November 11, 1996, Cyber sent approximately 2 million unsolicited e-mail messages through AOL to AOL subscribers. AOL tried to block Cyber's e-mail by implementing a program that AOL termed " Preferred Mail—The Guard Against Junk E-Mail. " Under this system, AOL subscribers could click on a preference box cap-tioned " I want junk e-mail! " If subscribers clicked on the box, they would get unsolicited advertising, but not otherwise. Cyber argued that the Preferred Mail system has aligned Cyber in users' minds with pornog-raphers and similar undesirables, thereby creating a " virtual black list " that discourages users from accepting Cyber's messages. Cyber asserted free speech rights and antitrust claims, all of which the court rejected. As to free speech, the court's view, in a nutshell, was that Cyber should buy its own soapbox to stand on instead of demanding to use AOL's. Cyber's basic antitrust contention was that AOL was an " essential facility " akin to ownership of the only bridge over the Mississippi River at St. Louis. The court rejected this assessment of AOL's commercial importance. First, AOL has no monopoly over access to the Net. Cyber claimed that the appropriate relevant market was access to AOL subscribers—which Cyber said were a type of " electronic island to which AOL controls the only bridge. " The court said that this definition of the relevant market for assessing competitive impacts was unrealistically narrow and tailored solely for purposes of the lawsuit. Not only did CompuServe and many others provide access to the Net, but AOL's own subscribers could be reached through billboards, direct mail, newspapers, and TV. AOL's Net included only 15% of the current e-mail population and half of the Internet user population. …