Federal Internet Law & Policy
An Educational Project
Instant Messaging Dont be a FOOL; The Law is Not DIY

Instant messaging became a federal regulatory issue in the AOLTW Merger proceeding.  In that proceeding, parties petitioned the FCC to impose an interoperability requirement on AOL.  They argued that attempts at open interoperability standards had failed and that AOL was intentionally obstructing such efforts.  The FCC, under the leadership of Chairman Kennard (democrat), for the first time exercising its jurisdiction over an Internet application, declined to immediately impose interoperability obligations on AOLTW.  However, the FCC indicated that AOL would be required to make IM interoperable for future applications.  These safeguards expire five (5) years after the date of release of the Order. (Order was released on January 22, 2001; therefore the safeguards expire on January 22, 2006).  According to an FCC Public Notice:

Given AOL Time Warner's likely domination of the potentially competitive business of new, IM- based services, especially advanced, IM-based high-speed services ("AIHS") applications such as videoconferencing, the Commission concluded that a condition to prevent that merger-specific harm was merited. AOL Time Warner may not offer an AIHS application that includes the transmission and reception, utilizing a names and presence directory ("NPD") over the Internet Protocol path of AOL Time Warner broadband facilities, of one- or two-way streaming video communication using NPD protocols including live images or tape that are new features, functions, and enhancements beyond those offered in current offerings such as AIM 4.1 or ICQ 2000b, unless and until AOL Time Warner has successfully demonstrated it has complied with one of the following grounds for relief.
Grounds for Relief.
Option One.  AOL Time Warner may file a petition demonstrating that it has implemented a standard for server-to-server interoperability of NPD-based services that has been promulgated by the IETF or a widely recognized standard-setting body that is recognized as complying with National Institute of Standard Testing or Industry Standard Organization requirements for a standard setting body.  At a minimum, AOL Time Warner must demonstrate that the adopted protocol makes available to another provider of NPD-based services such data in AOL Time Warner's NPD(s) as will enable the other provider's users to know the addresses of AOL Time Warner users and detect their presence online, to the same extent that AOL Time Warner's users know each others' addresses and detect each others' presence online.  AOL Time Warner must also demonstrate that the protocol makes available to other IM providers any other information used by AOL Time Warner to implement and process transaction of AIHS services, to the extent allowed by law.  The adopted standard shall also ensure that AOL Time Warner shall afford the same quality and speed in processing transactions to and from the other provider as it affords to its own transactions of the same type. Other than specifying server-to-server interoperability as described above, we do not set any  technical criteria for interoperability.
Option Two.  AOL may file a petition demonstrating that it has entered into written contracts providing for server-to-server interoperability with significant, unaffiliated, actual or potential competing providers of NPD-based services offered to the public AOL must execute the first such contract prior to offering the video AIHS service described above. After AOL Time Warner executes the first contract, an officer of AOL Time Warner shall certify to the Commission that it is prepared to promptly negotiate in good faith, with any other requesting provider of NPD-based services. Within 180 days of executing the first contract, AOL must demonstrate that it has entered into two additional contracts with significant, unaffiliated, actual or potential competing providers.  The interoperability achieved under these contracts shall be identical to that described under Option 1 above with identical terms and conditions for technical interoperability. All parties to a contract shall agree not to alter the technical
protocol without the consent of all parties providing interoperable IM services under these agreements.  The contracts may contain different provisions for business considerations.  AOL Time Warner must submit copies of these agreements for server-to-server interoperability into the record of this proceeding within 10 days of execution of such agreement.  AOL Time Warner may redact any proprietary information or terms not related  to technical interoperability.
Option Three.  AOL Time Warner may seek relief from the condition on offering AIHS video services by filing a petition demonstrating that imposition of the condition no longer serves the public interest, convenience and necessity because there has been a material change in circumstance, including new evidence that renders the condition on offering AIHS video services no longer necessary in the public interest,
convenience, and necessity.  If AOL Time Warner proffers market share information as evidence that the condition no longer is necessary in the public interest, convenience, and necessity, AOL Time Warner must demonstrate that it has not been a dominant provider of NPD services for at least four (4) consecutive months. Procedure for Submission of Petition to the Commission.  To receive authorization to offer AIHS
video services pursuant to Options 1-3 above, AOL Time Warner shall submit a Petition to the Commission.  The Petition shall be filed with the Secretary's office and shall contain the factual and legal bases demonstrating satisfaction of one of the three options set forth above.  The Commission shall put the Petition out for Notice and Comment with a maximum of 30 days for receipt of such comments.  Petitioner may submit
a reply not more than 15 days after the closure of the comment period.  Upon the timely filing of Petitioner's reply, the Petition, comments and reply shall be submitted to the Commission for disposition. The Commission shall issue its findings and conclusions not more than 60 days after receipt of the matter.  This timeline may be altered at the discretion of the Commission upon a timely submitted request of the Petitioner.  The findings of the Commission shall be made upon clear and convincing evidence, and in the absence of such an evidentiary showing, the condition shall not be eliminated.
Reporting Requirement.  The Commission shall require AOL Time Warner to file a progress report with the Commission, 180 days after the release of the Order and every 180 days thereafter, describing in technical depth, the actions it has taken to achieve interoperability of its IM offerings and others' IM offerings.  Such reports will be placed on public notice for comment.  Any confidential or proprietary information contained in the reports may be submitted to the Commission pursuant to the terms of the  protective order in this proceeding.
Enforcement.  The Commission shall retain jurisdiction over the licensees or their successors for the purpose of enforcing the terms of this condition, for a period not to exceed five years.  The terms of this condition shall be enforced pursuant to the Commission's powers under the Communication Act.  Any party to the Order, or their successor in interest, may petition this Commission at any time for relief from the condition
 on offering AIHS video services imposed pursuant to the Order. In the event that any person wishes to bring to us a dispute about AOL's compliance with this condition, the Commission shall require that the following procedures be followed.  These procedures are designed to resolve any disputes within sixty (60) days of the first filing.  Within twenty (20) days after public notice is given of either the filing of a complaint or a showing by AOL Time Warner, any interested party shall file a response (AOL Time Warner's answer to the complaint, another person's response to AOL Time Warner's alleged showing).  Within ten (10) days after the filing of the responses, the party that made the first filing may file its reply  The complainant and AOL Time Warner shall each, with its first filing, furnish a detailed report, technical or otherwise, describing the conduct or events that are the subject of the filing.  All these filings shall be made with the Commission Secretary and shall be concurrently served on the Chief, Cable Service Bureau. The complaint or showing, as the case may be, shall be dismissed or sustained within  sixty (60) days of its filing.
Sunset.  Five (5) years after the date of release of the Order, the condition set forth in the preceding paragraphs shall expire and shall not restrain AOL Time Warner from offering video AIHS.

AOLTW IM Petition

DOCKET 00-30 MO&O Order August 20, 2003 Public Notice
AOLTW Petition
AOLTW Merger Proceeding

  • "In the caphoned proceeding, the Commission approved certain license transfers attendant to the merger of Time Warner Inc. and America Online, Inc.' As a part of that approval, the Commission imposed a condition relating to the provision of advanced instant messagmg-based high-speed wdeo semces by AOL Time Warner. AOL Time Warner has now requested the elimination of this condition, pursuant to procedures specified in the Order? Public comment on the petition was solicited,) and responsive comments were received from Gerald R. Faulhaber and David J. Farber, filing jointly, who urge the Commission "to proceed cautiously," and from an individual, Dana-Renee Lee who, in a very bnef comment, suggests a requirement, clearly beyond the scope of this proceeding, that all IM providers be compahble. MCI filed a reply comment supporting elimination of the condition and arguing that it should not have been imposed in the first place. BellSouth CorporatiodBellSouth Telecommunications, Jnc. filed a reply comment supporhng denial of the pehtion. AOL Time Warner filed a reply to the initial comments. For the reasons stated below, we grant the pehtion and remove the condition."
  • Agency drops IM restrictions, CNET 8/20/03
  • FCC to allow AOL to add video features to instant- messaging software, Mercury 8/20/03
  • FCC To Allow Video On AOL Messenger, Wash Post 8/20/03
  • Former FCC officials oppose AOL reprieve, CNET 5/9/03
  • AOL Asks FCC To OK Video IM, IMToday 4/7/03
  • AOL Asks FCC To Lift IM Restriction, CNET 4/7/03
  • Papers


    Select Companies (from the early 2000s)



  • Do the IM Protocol Wars Even Matter?, CircleID 9/25/2008
  • Microsoft and Yahoo to link up messaging, FT 7/18/2006
  • AOL IM 'Away' message flaw deemed critical, NW Fusion 8/9/2004
  • Yahoo walls out Trillian, CNET 9/26/03
  • AOL IM features get FCC nod, CNET 7/16/03
  • AOL unveils new IM program, CNET 7/2/03
  • AT&T offers phone with e-mail, IM, CNET 8/4/03
  • IM from anywhere in your house, MSNBC 5/21/03
  • Microsoft to launch IM server, Inquirer 4/11/03
  • IM knocks on enterprise doors, CNET 4/11/03
  • Yahoo pushes enterprise IM, CNET 4/11/03
  • IM Experts: Do The Homework, Internet News 2/26/03
  • IM compatibility closer to reality CNET 11/3/02
  • AOL Links Instant Messenger with ICQ Tech Market 10/30/02
  • AOL IM and ICQ to interoperate, at last Register 10/30/02
  • IETF tames IM NWFusion 10/21/02
  • IM Gaining Popularity In The Enterprise, IMPlanet 9/26/02
  • IM giants told to work it out, CNET 9/13/02
  • Open IM fight all but dead, CNET 5/13/02
  • AIM Today Gets Hacked, IMPlanet 4/29/02
  • Sprint releases enterprise IM, CW 4/29/02
  • Instant messages, intercepted messages, USA Today 4/15/02
  • Companies may now monitor employees' instant messages, Nando 4/15/02
  • IM To Help Boost Telcos' Revenues, IMPlanet 3/4/02
  • IM Upstart To AOL: We're Baaack , CNET 2/22/02
  • Kinks and clashes roil IM waters , CNET 2/20/02
  • IM Start-Up Risks Wrath Of AOL , cnet 2/20/02
  • AOL Keeps IM To Itself, ASP News 2/6/02
  • Messaging Services Vexed By Interoperability Issues, Com Con 2/1/02
  • AOL Blocks Instant Messaging Start-Up, CNET 2/1/02
  • IM a Threat?, NWFusion 1/14/02
  • Commentary: IM interoperability remains in AOL's hands, CNET 2/7/01
  • AOL's IM Client Spreads Even Further, Implanet 12/14/01
  • Wall Street blocks IM traffic flow, CW 11/23/01
  • Study: Instant messaging at work jumps 110%, CW 11/15/01
  • AOL, Sun Get Buddy, Buddy, ZDNet 10/25/01
  • Free IM To Be Common In Companies, IMPlanet 10/16/01
  • IM Wars Set To Re-Ignite?, INews 10/12/01
  • AOL Instant Messaging Test With IBM Draws Criticism, Newsfactor 8/17/01
  • AOL, Lotus to conduct IM interoperability tests, CW 8/15/01
  • Interoperability Finally Coming To IM?, ABC 8/24/01
  • Why isn't instant messaging technology taking off?, NWFusion 8/10/01
  • AOL's New Instant Message: Synergy, Wash Post 8/3/01
  • AOL To Detail IM Plans, CNET 7/24/01
  • AOL May Come Up Short in IM Battle, Newsfactor 7/24/01
  • Messaging rivals can't connect, CNET 6/8/01
  • Messaging Battles Recall Browser Wars, CNET 6/8/01
  • Forrester: IM Needs A Single Network Oct 12, 2000 newsbytes
  • Instant messaging could change usatoday
  • Report: AOL Likely 'Instant' Winner Aug 22, 2000 nypost
  • Analysts: AOL Looks Safe On Instant Messaging Aug 25, 2000 excite
  • Regulators not likely to force opening of AOL's instant messaging Aug 22, 2000 usatoday
  • FTC unlikely to use messaging against AOL Time Warner Aug 22, 2000 cnet
  • Regulators Can't Force End to Instant-Messaging Conflict Aug 25, 2000 washtech
  • IM Standard: Ready, AIM? Fire! Aug 18, 2000 msnbc
  • Imici is newest instant messenger blocked by AOL Aug 18, 2000 nwfusion
  • Update: FreeIM challenges AOL's testimony on instant messaging 08/09/00 12:03 PM ET ComputerWorld Aug 9
  • AOL Out Of IM Standard Bake-Off Aug 3, 2000 infoworld
  • Instant Messaging Community Asks AOL To "Tear Down the Wall" July 27, 2000 washtech
  • FCC Gets AOLs Message on Chat ZDNet 6/28
  • AOL: IM Interoperability Is A Non-Issue InternetNews 6/28
  • AOL announces support of messaging standard NandoTimes 6/16
  • America Online's Instant Messaging Under Merger Scrutiny WashTech 6/15
  • FTC to AOL: IM Watching You ZDNET 6/15
  • To Merge, AOL May Have to Play Nice Over IM Time 6/15
  • AOL to Present Instant Messaging Proposal 'Soon' Excite 6/15
  • AOL blocks another instant messaging rival C|NET 6/12
  • AOL Instant Messaging Proposal Falls Flat InternetNews 6/16
  • AOL Will Offer IM-Sharing Plan The Standard 6/16
  • AOL Rival Asks FCC Action On IM ZDNet 4/26
  • Tribal Voice calls on FCC to remedy AOL IM issue ZDNet 4/26
  • ISPs call on FCC to ensure open access to AOL Instant Messenger ComputerWorld 4/26

  • AOL instant messaging rivals file complaint with FCC C|NET 4/26

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