It has been just a few weeks since the Trump administration’s antitrust chief wrapped his two-year review of the consent decrees that govern ASCAP and BMI music licensing by concluding they should be left in place for now. Former Assistant Attorney General Makan Delrahim also shared his recommendations, including that the decrees be reviewed every five years. Some in the music community are looking to seize that opening with word of a pending petition that would ask the DOJ to begin conducting regular reviews of the decrees. Critics say their hope is to weaken the protections for radio and other music users.
The MIC Coalition – which includes radio, restaurants, bars, retailers, and live music venues – has written to President Biden saying the threat of elimination of the ASCAP or BMI consent decrees would result in “devastating outcomes” to tens of thousands of American companies and music fans. It tells the new administration that the issue is also closely intertwined with the economic business health of broadcasters and other companies that rely on the decrees, many of whom are struggling because of the pandemic. “Weakening either decree would undoubtedly expose a countless number of licensees to anticompetitive pricing and jeopardize the financial solvency of a considerable number of small businesses that often serve as the economic lifeblood for local communities throughout the country,” the Coalition said.
Music users pointed out that both the Obama and Trump administrations conducted separate reviews of the ASCAP and BMI consent decrees and concluded the guidelines are needed as safeguards against the potential leverage that the two performance rights organizations could hold over radio and other licensees.
Delrahim last month wrapped up his review of how the content decrees function, concluding there is still “significant reliance” on the decrees within the licensee community. Although Delrahim said he still believes the ASCAP and BMI guidelines are probably not the best long-term solution, for the time being he thinks they should be left in place with the DOJ monitoring how they function.
One of the more specific recommendations Delrahim left the Biden administration is the suggestion that rather than the current ad hoc basis, a regular analysis of the decrees that date to 1941 be adopted. “The ASCAP and BMI consent decrees should be reviewed every five years, to assess whether the decrees continue to achieve their objective to protect competition and whether modifications to the decrees are appropriate in light of changes in technology and the music industry,” he said.
The National Association of Broadcasters said it was “very pleased” the DOJ will not move to change the consent decrees. And while the heads of ASCAP and BMI said they were “disappointed” that no action was taken by the DOJ, they said it allowed them to “put this matter behind us for the near future.” Some others in the music community apparently don’t see it the same way.
In a separate letter to congressional leaders, the MIC Coalition said that with the Obama and Trump administrations’ reviews ending in the same stop, they believe the focus should be on looking at ways to improve transparency and strengthen the music licensing system. “Certainty in the marketplace is crucial, especially when businesses across the nation are facing so many challenges,” it said.