The Tunney Act, a federal law governing antitrust settlements, states that the public must have the opportunity to comment on proposed agreements, and those comments must be published in the Federal Register. The Federal Register is the official daily publication of US rules, notices, executive orders and other presidential documents.
The DOJ argues that publishing 30,000 comments - the vast majority of which were received as e-mail messages - in the Federal Register would cost taxpayers around $4m (£2.8m). Therefore on Tuesday it asked the permission of the court to publish the comments on its Web site and to make available at cost a CD-ROM containing the text of the comments. A number of CD-ROMs would also be distributed free of charge to libraries in each state.
"The alternative procedures ... will permit the public to have unprecedented access to thousands of comments received by the United States - far better access than would be achieved by publication in the Federal Register - thereby effectuating the public inspection and review purpose ... while avoiding a huge, unnecessary expenditure of millions of taxpayer dollars," the DOJ's filing said.
The DOJ also proposes to publish in the Federal Register and in the New York Times, San Jose Mercury News, and the Washington Post a notice that explains how to find the comments on its Web site. The Federal Register would also contain an index of the comments.
The DOJ would post comments to its Web site by 27 February, as well as its responses. However, some of the comments will be made available sooner. Last Friday, US District Court Judge Colleen Kollar-Kotelly asked the DOJ to make available 45 detailed comments that include analysis of the proposed settlement before the 27 February deadline. In its district court filing, the DOJ committed to making those comments available on its Web site and to the court by 15 February.
Also on 15 February, Judge Kollar-Kotelly will meet with Microsoft and the DOJ to discuss the format and precise scheduling of an early March hearing regarding the proposed settlement.