Supreme Court again passes on Microsoft appeal

WASHINGTON--The Supreme Court once again passed on whether it will give fast-track consideration to a breakup of the world's largest software company.

With its second pass on the case, the high court is not expected to take any action on Microsoft's antitrust appeal before Oct. 2, according to a court representative. The Supreme Court could have acted on Aug. 28 but chose not to.

While the court in rare instances has issued decisions before a scheduled date, legal experts don't predict any action before October.

The question before the court is whether Microsoft's case is significant enough to warrant an expedited appeal rather than the usual appellate process.

Microsoft wants the case to be heard by the U.S. Court of Appeals for the District of Columbia Circuit, which it feels is a more favorable venue.

In June, U.S. Solicitor General Seth Waxman, acting at the behest of the Justice Department and 19 states, asked the high court to accept the case on direct appeal, bypassing the local appeals court.

The law allowing such an appeal is known as the Expediting Act, which, since a 1974 revision, authorizes such action only in cases of national importance.

The Justice Department, which in 26 years has only twice asked the Supreme Court to take a direct appeal, contends the case is of "immense importance to our national economy."

In June, U.S. District Judge Thomas Penfield Jackson ordered that Microsoft be broken into separate operating systems and software applications companies after determining the company had violated U.S. antitrust law.

Jackson initially stayed--or put on hold--the breakup order pending the outcome of the appeal and later extended that to restrictions on Microsoft's business practices.

Many legal experts expect the Supreme Court will choose not to take the case at this time. One main reason is that the appeals court has expressed interest in the case.

"With the Court of Appeals willing to hear the case en banc and potentially only a four- or five-month delay in the process, the Supreme Court could be inclined not to take the case at this time," said Bill Kovacic, an antitrust professor at George Washington University Law School.

If the high court takes the case, it would likely issue a decision by June 2001, effectively ending the case. If the court passes the case back to the appellate level, a decision there is not expected before nine months--and more likely a year. The Supreme Court would then get another crack at the case, which would delay a final decision until summer 2002.