Judge Upholds Restraining Order Against PaeTec

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PaeTec Communications has been prohibited from removing MonsterHut from its network after a judge upheld a temporary restraining order issued in March that barred PaeTec from shutting out the e-mail marketer.

A court injunction issued this week temporarily prohibits PaeTec Communications Inc. from kicking MonsterHut off its network because of spamming allegations.

New York State Supreme Court Justice John Lane sided with MonsterHut and held PaeTec -- MonsterHut's Internet service provider -- to its contract in a decision issued Monday. PaeTec has been trying to void its contract with MonsterHut because it claims MonsterHut is a spammer.

No trial date in the case has been set.

At the heart of the issue is whether MonsterHut's contract with PaeTec allowed for a "spam threshold." According to MonsterHut, its five-year agreement, signed in December, called for a 2 percent complaint rate on e-mail messages. However, PaeTec maintains that it never set a complaint threshold and that it never agreed to let MonsterHut send spam.

PaeTec, Fairport, NY, filed more than 100 signed affidavits from Internet users claiming MonsterHut, Niagara Falls, NY, spammed them. PaeTec said it was disappointed with the judge's decision this week and was deciding whether to appeal.

In his decision, the judge agreed with MonsterHut's contention that unsolicited e-mail is not necessarily spam, according to Todd Pelow, MonsterHut's CEO.

"The judge definitely felt MonsterHut had compelling issues and reasons," he said. "They [PaeTec] wanted to change the definition of what spam is. The judge said it was a binding contract."

Pelow maintains that the company does not spam and that it is being "strong-armed" by PaeTec. He said that as a marketer, MonsterHut should be allowed to send an unsolicited prospecting e-mail to drum up new business. He agreed, however, that if the recipient subsequently opts out of further e-mail, then the company should stop sending the messages.

"It's the same scenario that MAPS [Mail Abuse Prevention System] tries to play: Everything needs to be double opted-in or it's spam," Pelow said, referring to the anti-spam organization. "PaeTec obviously does not know how the industry works."

Pelow said MonsterHut is looking forward to a trial so it can tell its side of the story.

Ray Everett-Church, an attorney and co-founder of the Coalition Against Unsolicited Commercial E-Mail, an anti-spam group, said the judge's decision is not unusual, given the contentious nature of this case.

"From what I understand, the judge upheld the temporary injunction until full trial," he said. "If that's the case, it's not terribly surprising. It's just keeping the parties standing still until the dispute can be ultimately resolved. Courts don't like disputes escalating while they're being tried, so injunctions keep everybody treading water till then."


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