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This was at least in part due to Netcom”s failure to ensure that Internet Explorer accounted for fifty percent of the browsing software it shipped. Microsoft browsing software to their customers unless a subscriber specifically requested it. Microsoft therefore paid a high price to induce the most popular IAPs to encourage their customers to use Internet Explorer and discourage them from using Navigator. Microsoft also licensed Internet Explorer to them at no charge, and assisted them in customizing Internet Explorer for use with their services. In exchange, the listed IAPs agreed to offer Internet Explorer as the “standard,”” “default,”” or “preferred”” browsing software with their services. Furthermore, the Windows 98 Referral Server agreements offer no discounts on the referral fees predicated on the IAPs” adoption of any particular Microsoft technology or licensing any Microsoft product. 263. Absent the conditions Microsoft placed on inclusion in the Referral Server, the IAPs would have had no reason to limit the percentage of subscribers that used one particular browser or another.

At any rate, Microsoft did not have reason to be concerned with the appearance of its IAP partners in Netscape”s referral server, whose main exposure was to existing Navigator users interested in switching their IAPs. For example, Microsoft”s agreement with EarthLink provided that it would expire two years from its signing in August 1996 unless either party elected to terminate it sooner, and both Microsoft and EarthLink were free to terminate the agreement for show cam sex any reason on thirty days” written notice. Concentric and Earthlink eventually (by May 1998, if not sooner) reduced their Navigator shipments enough to bring them below the required percentage. Despite their delinquency, Microsoft never removed Concentric and EarthLink from the Referral Server. 269. By the end of September 1998, all of the Windows 95 Referral Server agreements had expired by their own terms. 257. Pursuant to the terms of the agreements it signed with these ten IAPs, Microsoft provided each with a listing in the Windows 95 Referral Server and mentioned them in press releases and marketing activities relating to the ICW. Microsoft browsing software, Microsoft through its Referral Server agreements exchanged valuable consideration for the commitment of the ten IAPs to convert existing subscribers from Navigator to Internet Explorer.

Microsoft browsing software. First, the agreements required the IAPs to limit their promotion of browser products other than Internet Explorer. 258. The agreements also imposed several restrictions on the ability of the IAPs in the Referral Server to promote and distribute non? In contrast to Microsoft”s agreements, Netscape”s agreements with the RBOCs imposed no restrictions on their ability to distribute other browsing software, such as Internet Explorer, whether in response to customer requests or otherwise. 264. Microsoft monitored the extent of compliance of IAPs in the Referral Server with the shipment restrictions contained in their agreements. With regard to promotion, the agreements require only that the IAPs promote Internet Explorer no less favorably than non? With respect to promotion, the revised agreements merely required the IAPs to promote Internet Explorer at least as prominently as they promoted non? Microsoft readily made this sacrifice in order to induce the important IAPs to take actions that aided Microsoft”s effort to exclude Navigator from the IAP channel.

Microsoft never formally removed an IAP from the Referral Server. This did not violate either the letter or the spirit of their agreements with Microsoft, for while the agreements prohibited the IAPs in the Windows 95 Referral Server from promoting Navigator, they did not purport to hinder Netscape in promoting those IAPs. Although AOL eventually entered a listing into the Referral Server, it waited until November 1998, after the release of Windows 98. The remaining IAPs in the Windows 95 Referral Server represented ten of the top fifteen Internet access providers in the North America. In any event, the RBOCs currently deliver Internet access to less than five percent of the Internet access subscribers in North America. Twenty?five percent was the figure specified in most of the agreements. 266. In reaction to Microsoft”s Referral Server agreements, Netscape entered into agreements of its own with five of the Regional Bell Operating Companies (RBOCs).