But a new version of Aimster -- a file sharing program that piggybacks on AOL Instant Messenger -- may make the issue moot.
Maybe today, but likely in the next few days, the unincorporated "programming collective" responsible for Aimster will release a new version of its file-sharing software, capable of sending files between AIM and other instant message services like Microsoft's MSN Instant Messenger, Yahoo's Instant Messenger and others, said Johnny Deep, the group's spokesman.
"The FCC hasn't asked us to testify, but if they did, we would say that AOL is interoperable now, and has been for months," he said.
An FCC spokeswoman could not comment on the matter, citing the pending merger.
Aimster had about 2.5 million users in mid-November. Like the controversial file-swapping program Napster, Aimster lets music fans search for and download MP3-format songs from the hard drives of other Aimster users. Unlike Napster, the music traders cannot be anonymous -- file sharing is restricted to buddy lists. The new version of Aimster will allow file-sharing with (now-defunct) Scour software, Napster and Gnutella as well.
"A lot of these peer-to-peer messaging services are just instant-messaging services," said Deep. "That's all that Napster does; that's all that Scour does."
AOL's rivals have called for the company to open up its instant message service so users of other services can send and receive messages from AIM users. AOL has resisted, citing privacy and security concerns. While AOL has modified its servers from time to time to block rivals from achieving interoperability, Aimster software uses Aimster switches and never touches AOL's servers. Deep claims as a result AOL cannot block Aimster.
Aimster has no major financial backing, yet, and its staffers work out of their apartments and some modest space in the Rensselaer Polytechnic Institute "incubator" for startup companies in New York, said Deep. "We're hoping to announce a validated business model in the near future."
An AOL spokesperson was not immediately available, but AOL has said in the past that it will not permit third-parties to use its systems or software without permission, and has since adopted a wait-and-see posture toward Aimster.