Document Type

Article

Publication Date

2004

Volume

10

Abstract

INTRODUCTION: { 1 } 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 {2} The FCC, for its part, specifically identified "instant messaging" ("IM") as an issue to be addressed by means of a merger condition.4 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 reviews the genesis of the IM condition and AOL Time Warner's ("Time Warner" or "AOL Time Warner")6 successful effort to have the condition lifted. Part II explains the FCC's rationale for imposing the IM condition. Part III describes Time Warner's arguments in support of lifting 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.

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