Statement by Sen. Orrin Hatch (R-UT) on Senate Floor.
May 5, 1988.
Source: Senate Judiciary Committee.  This document was created by scanning a print copy, and then converting it to HTML. 

Mr. President, I am told that this afternoon in New York City Bill Gates and a number of other executives from throughout the computer and software industries will be holding a press conference urging law enforcement officials not to interfere with the release of Windows 98.

1 certainly do not begrudge Mr. Gates or others in the industry to make their views known. That is what makes our democracy work. Indeed, I would like nothing more than to see more enlightened debate on this terribly important policy issue. But I cannot help but wonder how many of these executives are on that stage because they truly want to be. It strikes me as curious that it was only after calls from Microsoft that many of these individuals saw fit to sign letters and make public appearances. Indeed, I have been told that some executives in fact hope to see the Justice Department pursue further its case against Microsoft, but have chosen to join Mr. Gates on that stage today because they feel they have little choice but do so in order not to jeopardize their relationship with the industry's most powerful and important player. I understand perfectly well that no one would publicly admit as much, but, given recent developments, I do believe it is a question worth considering.

I also think it is timely to review where we stand today as the Justice Department considers whether to bring a broader suit alleging anti-competitive or monopolistic practices by Microsoft

I first raised the question of Microsoft's seemingly exclusionary licensing practices last November. While we are not privy to all of the licensing and other practices the Justice Department has been scrutinizing, over the past few months a number of specific practices have come to light. In particular, we have learned that Microsoft not only tied the shipment of its browser, Internet Explorer, to its monopoly operating system, Windows, but also engaged in a series of licensing practices with respect to computer makers, Internet Service Providers, and Internet Content Providers which appear designed not to server consumers but rather to exclude competing browser companies from the marketplace. For a company with a monopoly in the personal computer operating system market -- and nobody other than Microsoft would dispute that the firm has monopoly power -- to use its monopoly power to exclude potential rivals clearly raises serious antitrust concerns.

Let me point out that such seemingly predatory and exclusionary practices raise concerns for even the most conservative, free-market antitrust thinkers. Judge Robert Bork, one of the most brilliant and highly respected conservative antitrust thinkers, and author of the renowned Antitrust Paradox, just yesterday explained in The New York Times why even he is troubled by what he has learned of Microsoft's practices. As Judge Bork wrote, "[w]hen a monopolist employs practices and makes agreements that exclude competitors and does so without the justification that the practices and agreements benefit consumers, the company is guilty ... of an attempt to monopolize in violation of Section 2 of the Sherman Act. when its own documents display a clear intent to monopolize through such means, the case is cold." I would ask that this article be entered into the record.

Similarly, Daniel Oliver, former chairman of the Federal Trade Commission under President Reagan, just published a piece in the May 4 edition of The National Review, Mr. Oliver, long known as a free-market proponent who generally opposes all but the most justified government intervention in the marketplace, had this to say: "If ever there was a case that raises consumer-welfare issues, this would seem to be it. Microsoft has a 90 per cent share of a world market; there are reasons to think that share will endure; Microsoft has engaged in restrictive practices; and many of those practices do not appear to have any efficiency justifications that would benefit consumers rather than the company. Where you find a dead body, a bloody knife, fingerprints, and a motive, there may have been a crime." I would ask that this article as well be entered into the record, along with a personal letter I received several weeks ago from Mr. Oliver and from Mr. James Miller, also a former chairman of the Federal Trade Commission and director of the Office of Management and Budget under President Reagan.

There are those who object that the government should not interfere with the dynamic hi-tech marketplace, I agree with those who espouse a natural, instinctive skepticism toward any government intervention in the marketplace. But enforcement of the antitrust laws may be all the more important if innovation in the most important, fast-growing sector of our present and future economy is being suffocated under the thumb of a company both willing and able to exploit its monopoly power.

The release of Windows 95 was accompanied by a theme song. As I recall, it was the Rolling Stones' hit song "Start Me Up," For innovators seeking to compete with Bill Gates, for PC makers who feel that they have little choice but to steer clear of any actions that might upset their relationship with Microsoft, and for consumers increasingly beholden to Microsoft for software products, I wonder whether the theme song for Windows 98 shouldn't be another Rolling Stones song -- "Under My Thumb."

Thank you, Mr. President. I yield the floor.