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Microsoft’s Rivals Seek Day in Court

February 20, 2002

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WASHINGTON (AP) _ Like anxious teens before the prom, some of America’s technological titans are trying to win a date to an obscure court hearing for one last chance to rail against bitter rival Microsoft Corp.

The object of their wooing is the judge considering whether to approve the software company’s proposed antitrust settlement with the government.

Kodak, AOL Time Warner, and SBC Communications are some of the companies lobbying for a chance to convince U.S. District Judge Colleen Kollar-Kotelly the deal is bad for Americans and the industry.

Acting on their own and through trade groups, they contend they are the ones who know how Microsoft really works.

ProComp’s ``member companies have knowledge of the software industry and its dynamics, have worked and competed with Microsoft ... and know firsthand how Microsoft can exploit loopholes in such agreements,″ ProComp lawyers wrote in their request to Kollar-Kotelly.

But Microsoft has an ally against its corporate competitors: the Justice Department.

Since last year’s announcement of a settlement, Microsoft and the government have worked side-by-side to schedule an early, quick hearing and keep other companies out of the mix. When SBC pushed to get into the hearing last week, Justice and Microsoft pushed back this week.

``Asserting no claim or defense of its own, SBC simply seeks to promote its own view of the public interest,″ Justice lawyers wrote in their filing to the judge on Tuesday. ``But the United States, and not private parties, represents the public interest in government antitrust cases.″

One antitrust lawyer said Justice is jumping the gun.

Dana Hayter of the law firm Howard Rice in San Francisco said the government’s statement assumes the conclusion of the hearing will be in its favor.

The Tunney Act, enacted in 1974, creates a gantlet of tests to make sure any government settlement is good for the economy. They include a formal hearing, as well as an open comment period so that anyone, from senators to concerned citizens, can put their thoughts on the record.

SBC, which provides telephone and Internet service in California, Nevada and several other states, finds a more sympathetic ear from the nine states still suing Microsoft. They have called an SBC executive, as well as executives from AOL, Gateway and Palm, to testify in their hearing to seek stronger penalties against Microsoft.

The government’s settlement hearing will take place March 6. Kollar-Kotelly will also have 30,000 public comments, mostly against the settlement, to aid her deliberations.

The settlement would prevent Microsoft from retaliating against partners for using non-Microsoft products; require the company to disclose some of its software blueprints so software developers can make compatible products; and make it easier for consumers to remove extra Windows features.

All of the Microsoft competitors heavily criticized of the settlement during the public comment period. Microsoft is using that fact to show that they have had their say. Legal experts don’t expect the companies to drop any new bombshells if they get into the hearing, but there could be strength in numbers.

``I don’t think that by itself anything that one of these companies might say in court will change the outcome of the hearing,″ Hayter said. ``But if the line of companies standing there waiting to tell the judge is long enough, that will create a picture for everyone, including the judge.″

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On the Net:

Microsoft: http://www.microsoft.com

Justice Department: http://www.usdoj.gov

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