CYBER PROMOTIONS, INC. v. AMERICAN ONLINE, INC.

C.A. NO. 96-2486
AMERICAN ONLINE, INC. v. CYBER PROMOTIONS, INC.
C.A. NO. 96-5213

ORDER

The motion of American Online, Inc. for partial summary judgment on First Amendment issues is GRANTED in part and DENIED in part.

The Court declares that Cyber Promotions, Inc. does not have a right under the First Amendment to the United States Constitution or under the Constitutions of Pennsylvania and Virginia to send unsolicited e-mail advertisements over the Internet to members of American Online, Inc. and, as a result, American Online, Inc. may block any attempts by Cyber Promotions, Inc. to do so.

Cyber Promotions, Inc. shall, within ten days of the date of this Order, submit to the Court a list of the theories other than the First Amendment which it believes entitles it to send unsolicited e-mail to members of American Online, Inc.

Either party may request that we issue an Order certifying our decision for an immediate interlocutory appeal to the United States Court of Appeals for the Third Circuit.

IT IS SO ORDERED.

FOOTNOTES

FN1. In past submissions, Cyber has stated that AOL’s “e-mail bombs” occurred when AOL gathered all unsolicited e-mail sent by Cyber to undeliverable AOL addresses, altered the return path of such e-mail, and then sent the altered e-mail in a bulk transmission to Cyber’s ISPs in order to disable the ISPs.

FN2. Indeed, our Court of Appeals has observed that the exclusive public function test itself “rarely could be satisfied.” Mark, 51 F.3d at 1142. “Thus, in Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), the Court held that a private utility company, extensively regulated by the state, and apparently holding at least a partial monopoly in its territory, did not act under color of state law, in part because the state where the utility was engaged in business had ‘rejected the contention that the furnishing of utility services is either a state function or a municipal duty.’ (citation omitted). Similarly, in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the Court held that a private entity engaged in the education of maladjusted high school students did not perform an exclusively public function because ‘[the state's] legislative policy choice [to fund the public school] in no way makes these services the exclusive province of the State.’ (citation omitted); see also Black v. Indiana Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993) (private contractor providing state school bus program at state expense not performing exclusive state function).” Mark, id.

FN3. Cyber contends it is entitled to the protection of the Pennsylvania Constitution because Cyber’s e-mail originates from Pennsylvania and that it is entitled to the protection of the Virginia Constitution because AOL’s blocking actions occur in Virginia.

FN4. Pa.Cons.Stat.Ann. tit. 18 Section 3503(c)(2) provides:
It is a defense to prosecution under this section that: the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining on the premises.