WANT TO REGULATE MICROSOFT? GO TO CONGRESS, NOT THE COURTS

COMMENTARY By Howard Gleckman

However the Clinton Adminstration portrays its antitrust suit against Microsoft Corp., it sure looks as if the Justice Dept. is trying to use the action to impose a full-blown scheme of regulation on the software industry.

That would be a terrible mistake. If the President really wants to regulate software, he should go to Congress, not to the courts.

That's not to say that the Hill would necessarily do a good job of it -- just look at the hash it made of the 1996 Telecommunications Act. But we do still have a Constitution, and it's the job of Congress, not judges, to regulate commerce.

At first glance, the Justice Dept.'s case might not seem that expansive. True enough, Justice raises some fairly standard objections and asks for some routine remedies. For instance, it alleges that Microsoft is forcing computer makers to include its Internet Explorer browser with the version of Windows 98 they install in their machines. To stop that practice, Justice wants the manufacturers to be able to cripple the linkage between Win98 and Internet Explorer.

A court could decide if Microsoft really did use illegal practices to force computer makers to squeeze out competitors and then could direct a remedy.

But Justice went far beyond that when it asked the courts to force Microsoft to include a single competitor's product -- Netscape Navigator --in Win98. By doing that, the government took a giant leap toward broad regulation of an entire industry.

Already, other browser makers are crying, "What about us." By forcing Microsoft to distribute only Navigator, Justice would end a monopoly, all right, but it would be creating a government-sanctioned cartel. As surely as the sun will rise tomorrow, the Joe & Harry Browser Co. will demand that it also be allowed to piggyback on Win98.

Justice would have that question -- and hundreds like it -- decided by a judge, just as Judge Harold Greene spent years micromanaging phone companies after the breakup of AT&T.

That's the wrong prescription. If Clinton wants to treat Windows or any future operating systems as if they are a common carrier, he can ask Congress to create the Federal Software Commission. But regulating a complex industry one court ruling at a time will result in mischief that we can only begin to imagine.

Gleckman, a senior correspondent in Business Week's Washington bureau, offers his views frequently for BW Online.