- The Washington Times - Wednesday, June 28, 2000

MIAMI America Online Inc. said yesterday that it will appeal a judge's order allowing hourly-plan subscribers to pursue a class-action suit over perceived excessive billing charges caused by pop-up advertisements.

At least 2.5 million subscribers have overpaid a total of $15 million to $20 million because pop-up ads appeared after they began to pay for additional time beyond their monthly limits, the subscribers charge.

"They're collecting incredible sums of money from advertisers," said plaintiffs' attorney Andrew Tramont. "At the same time, they're charging you for something they're getting paid to put on the screen."

AOL spokesman Rich D'Amato said the company would appeal state court Judge Fredricka Smith's June 20 decision to certify the lawsuit as a class action, believing the case without merit.

The lawsuit covers customers paying $5.95 a month for three hours of service and $9.95 a month for five hours of service. Exempt are those paying $21.95 a month for unlimited access.

The suit claims AOL doesn't tell people that it counts the time used up by pop-up advertising toward billing. The ads, which fill a subscriber's screen at intervals, are removed with mouse clicks.

"They don't come out and tell you you're being charged for the time you look at these advertisements," Mr. Tramont said. "They don't tell you that you can't access the other services when the advertisements are on the screen."

AOL now allows customers to avoid the pop-ups, but Mr. Tramont said that option was added after the lawsuit was filed last year.

Countered Mr. D'Amato: "It's simply one click to state that you are not interested in this particular pop-up. It's a matter of a few clicks if you are not interested in pop-ups at all."

A click on the "billing" option also explains that AOL keeps the meter ticking from the time users log on until they log off, indicating advertising time is billable, he said.

The lawsuit covers 10 percent to 20 percent of AOL customers from 1994 to 1999.

Sterling, Va.-based AOL, which has 23 million subscribers, fought to have the case heard in its home state, where class-action suits are barred.

But Judge Smith ruled it would be "unjust and unreasonable" to force subscribers to pursue individual small-claims cases in Virginia.

An appeal on the issue of class certification could take about six months.

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