Microsoft, Justice Ask Court to Limit Tunney Act Hearing

The federal government's antitrust settlement deal with Microsoft elicited an unprecedented number of comments from the public--so many that the settling partners are asking the court to limit third parties' further participation in the settlement approva

The federal governments antitrust settlement deal with Microsoft Corp. elicited an unprecedented number of comments from the public--so many that the settling partners are asking the court to limit third parties further participation in the settlement approval process, known as the Tunney Act review.

The Justice Department received more than 30,000 comments, of which approximately 7,500 support the settlement deal and approximately 15,000 oppose it. Roughly 7,000 comments "do not directly express a view in favor or against entry" of the settlement, according to the DOJ.

In a joint status report to Judge Colleen Kollar-Kotelly, the DOJ and Microsoft urged the judge to keep any additional proceedings in the Tunney Act review to a minimum. Arguing that a hearing or trial on the public interest issue "would largely defeat the purpose of a settlement," they recommended a limited, one-day hearing. The Tunney Act does not require the court to conduct any further hearings.

The DOJ and Microsoft asked that the nine states that agreed to the settlement be allowed to participate in a hearing, but that further participation from those opposing the settlement--and all other third parties--"is unwarranted and unnecessary."

They urged the U.S. District Court for the District of Columbia to hold the limited hearing quickly, preferably during the week of March 4--a week before the court plans to begin hearings in the ongoing litigation brought by nine states that did not sign onto the settlement deal.

The unprecedented outpouring of opinions expressed in this case reflects a healthy appreciation for the exercise of free speech, but not necessarily an equal amount of substantive contribution. Of the 30,000 comments received, only about 45 are considered "major" comments by the Justice Department. The DOJ characterized approximately 2,900 comments as "containing a degree of detailed substance" and another 19,500 as offering an opinion on the settlement without providing further discussion.

However, about 1,250 comments were not substantively related to the case, and at least one was pornography, which the DOJ would prefer not to publish or file with the court. Approximately 2,800 comments were "form" letters, and some offered opinions that were not helpful to the case.

"For example, a significant number of comments contain opinions concerning Microsoft generally, e.g., `I hate Microsoft, or concerning this antitrust case generally, e.g., `This case should never have been brought, but do not state whether they support or oppose entry of the RPFJ [Revised Proposed Final Judgment]," the settlement partners told the court.

Considering the massive commentary from the public, the Justice Department asked that it not be required to publish every comment. "[A]ctual publication of every comment in the Federal Register would be extraordinarily expensive and cumbersome," the DOJ said, estimating that it would cost $4 million.

Kollar-Kotelly ordered Microsoft and the Justice Department to appear in her court tomorrow morning to discuss how the Tunney Act review will proceed. The parties are considering whether to make modifications to the settlement deal and will let the court know by Feb. 27, they said.