States ask to extend Microsoft oversight

WASHINGTON — In an eleventh-hour request, a group of six states and Washington, D.C., on Tuesday asked a judge to extend the terms of Microsoft's antitrust settlement through 2012.

Most of those provisions are scheduled to expire in November.

"Microsoft continues to have a stranglehold on the two products, Windows and [Internet Explorer], that almost all consumers use for accessing these Web services and applications," Stephen Houck, a lawyer for the California Group representing the states, told U.S. District Judge Colleen Kollar-Kotelly.

The group requested the extension to maintain oversight over Microsoft, particularly over its new operating system, Windows Vista.

The terms of the consent decree were set in 2002.

In court filings in August, neither the California Group nor the other plaintiffs had requested an extension.

In fact, the Department of Justice and other states known as the New York Group agreed Microsoft was complying with the requirements and indicated the decree has been successful.

In its filing last month, the California Group argued the decree had been ineffective in reducing Microsoft's market dominance.

Microsoft owned 92 percent of the PC operating-systems market in 2006, down from 97 percent in 2002.

It held 85 percent of the Web-browser market last year, where Firefox has made some inroads. Its share of the browser market was 95 percent in 2002, according to the filing.

"These are the same plaintiffs who in August issued a filing saying they didn't like the decree," said Rick Rule, an attorney for Microsoft. "Now they're asking for it to be extended."

Because the other parties of the suit were told of this proposal late last week, Kollar-Kotelly asked the California Group to file a written proposal by Oct. 15 explaining the terms and rationale behind the extension.

Microsoft will have until Oct. 19 to request a time frame for its response.

"The California Group is facing a difficult burden in persuading the court to extend the decree," said Andrew Gavil, a Howard University law professor and co-author of a book on Microsoft's antitrust case.

"The terms of the decree say they have to prove to the court that Microsoft has engaged in willful and systematic violations of the decree," he said.

Both sides have also questioned the effectiveness of the decree.

Kollar-Kotelly said that its effectiveness should not be measured by Microsoft's market share, because the 2002 decree did not specifically set out to reduce Microsoft's dominance. Its intent was to correct Microsoft's anticompetitive practices, she said.

Extending the decree five years could put the case in the hands of a new presidential administration with a different regulatory philosophy, Gavel said.

Before the states and Microsoft respond, they will have a benchmark to guide them: The European Union, which is to announce its own landmark Microsoft antitrust decision Monday.