A Less-Public Path to Changes In Antitrust

Throughout Microsoft Corp.'s long-running defense against charges that it broke antitrust laws was an intriguing subtext: Technology industries are so new and different that many aspects of traditional antitrust law don't apply.

It's a thorny issue, one that Congress might even touch on when it considers a nominee to replace R. Hewitt Pate, who resigned this week as head the antitrust division at the Justice Department.

But as usual in today's Washington, the important decisions don't get ironed out in places as public as congressional hearings. Instead, significant revisions of U.S. antitrust law are being hashed out by a group composed mainly of lawyers who represent large companies.

And Microsoft -- found to be an illegal monopolist on two continents -- is likely to have some influential allies.

The work is being carried out by an organization called the Antitrust Modernization Commission. Created by Congress in 2002, the commission is examining a series of questions that challenge long-standing antitrust enforcement policies.

The head of the 12-member commission is Deborah A. Garza, a partner at Fried, Frank, Harris, Shriver & Jacobson LLP in Washington. Garza's partner and close associate in the firm, Charles F. Rule, represents Microsoft in court proceedings that monitor the company's compliance with its consent decree with the Justice Department.

Also on the commission is John L. Warden, based in New York with the firm of Sullivan & Cromwell LLP. The gravelly-voiced Warden was Microsoft's lead outside attorney during much of its case.

Alan J. Meese, the commission's senior adviser and a law professor at William & Mary, wrote papers during the case arguing against the government's proposal to break up Microsoft into two companies.

For several months, the commission has been soliciting requests for topics to study and recommendations on the issues it decided to address. Actively participating in submitting suggestions is a task force of the American Bar Association led by Richard J. Wallis, an in-house Microsoft attorney who heads the ABA's antitrust section.

The issues the commission is tackling could have broad impact, and many are near and dear to Microsoft. Among them:

· Should state attorneys general play a role in antitrust enforcement?

More than a dozen states participated in the prosecution of Microsoft, at first joining with the federal government and then splitting away and pursuing the case further after the Justice Department settled with the company in late 2001.

· Should technology industries be treated differently under antitrust laws? In particular, the commission is looking at whether the conduct of a single firm throughout different aspects of its business warrants different treatment in "new economy" industries.

Microsoft's bundling of various features into its dominant operating system, including Web browsing and playing of audio and video, was at the heart of the antitrust cases in the United States and Europe.

The commission also is examining whether the standard for determining when a company is shutting out competitors should change.

· Should antitrust standards be different for regulated industries?

· Should criminal antitrust penalties be eliminated?

Some of the commission members -- who were appointed by the Bush administration and by members of Congress from both parties -- played roles for companies that opposed Microsoft in its antitrust litigation.

Others did tours at the Justice Department.

But none comes from a background of state antitrust enforcement or consumer advocacy.

The commission holds its meetings in public, and its actions are documented on its Web site at http://www.amc.gov/ .

Eventually, it will submit a report to the president and Congress, which will decide whether the recommendations should be turned into law.

The makeup of the panel and the questions it is examining, however, suggest that most of the focus will be on the needs of antitrust defendants, or potential defendants.

Leslie Walker is away. Her .com column will resume when she returns. Washington Post staff writer Jonathan Krim can be reached atkrimj@washpost.com.