Dole and Bork Join the Anti-Microsoft Camp

(April 21, 1998)  Microsoft's opponents announced the formation of a new lobbying group at a meeting at the National Press Club in Washington DC on Monday afternoon.  Two of its hired guns, Bob Dole and Judge Robert Bork, addressed the gathering of journalists and representatives of  computer industry companies and trade groups.

The name of the new group is "Project to Promote Competition & Innovation in the Digital Age," or "Pro Comp" for short.  Dole has been hired by Pro Comp, while Bork was hired a couple months ago by Netscape, a member of Pro Comp.

Pro Comp also includes as members other software industry competitors of Microsoft, including Oracle, Sun Microsystems, Corel, and Sybase.  The group also includes a number of companies that compete with Microsoft's online content services, such as Expedia -- including American Airlines, American Association of Travel Agents, and Preview Travel.

Bob Dole is a former Senator from Kansas, a former Senate Majority Leader, and the Republican candidate for President in 1996.  The meeting was run by Dole's former Senate staff assistant, and now Netscape lobbyist, Mike Pettit.  After opening remarks by Pettit, Dole read a brief address, and shot out the back door before anyone could ask him any questions.  Dole said:

"The Internet promises to become the newest and biggest market in our economy, and access to it ought not be controlled by any one company.  If anyone builds a toll booth to charge admission to the Internet, consumers are the ones who will inevitably suffer. ... By controlling the user interface, which is what users first see on their computers, Microsoft controls access to the explosion of information and services found on the Internet.  Microsoft already exploits that position to direct consumers to its own content sites.  ... I believe that the Justice Department is doing the right thing by investigating practices such as these."

Dole's fees, which were not disclosed, are being paid by Pro Comp, which in turn is supported by a number of member companies.  Bork said that he was hired by Netscape a "couple of months" ago, and was just asked to attend this press conference.  He ducked a question about his fees.  (Congressional lobbyists must file disclosure reports pursuant to the Lobby Disclosure Act.  However, the 1998 midyear reports are not due at the Lobby Disclosure Office until August.)

Robert Bork practiced antitrust law after law school.  He then taught antitrust law and constitutional law at Yale Law School for almost two decades.  His numerous lectures, scholarly articles, and book (The Antitrust Paradox: A Policy at War with Itself, 1978) had a profound influence on the Courts' interpretation of antitrust laws in the 1980s and 1990s.  He also served as Solicitor General (the third highest and most prestigious position in the Justice Department) under President Nixon, and as a Judge on the U.S. Court of Appeals for the District of Columbia in the 1980s.  His 1987 nomination to the Supreme Court was rejected by the Senate.

Bork stated that his role at the Pro Comp meeting was to outline the legal framework.   He asserted that Microsoft is a "monopoly" that has engaged in "predatory practices" in violation of judicial precedent and the Sherman Antitrust Act.  He did not base his legal argument on allegations of illegal tying agreements, which underlies the Department of Justice's pending action.  Nor could he have.

Bork wrote that tying agreements are not anti-competitive in his 1978 book, The Antitrust Paradox.  Rather, he based his argument on a single case from 1951 dealing with the theory of "refusals to sell."  Among the specific practices by Microsoft which he cited were restrictive agreements with ISPs and online services, and licensing agreements with OEMs which prohibit alteration of Microsoft software.

Microsoft's Public Relations Manager, Mark Murray, also attended the event, and afterwards held an impromptu press conference in the hallway of the National Press Club.  He insisted that nothing new was alleged at this event.  He also said of Judge Bork: "We are very confident that once Judge Bork understands the facts of these issues that he will agree our business practices are completely legal."  He also argued that Microsoft's channel bar includes Microsoft competitors and that "Microsoft makes it very easy for a consumer to delete a preset channel.  Three clicks of the mouse and the preset channel is history.  Netscape makes it virtually impossible for a consumer to delete a preset channel.  So maybe you ought to turn the analysis around a little bit."