Makan Delrahim Capitol Hill

The Dept. of Justice’s top antitrust official was on Capitol Hill this week and his message to lawmakers was there still has been no decision on whether the old consent decrees governing how radio licenses music from ASCAP and BMI should be modified or killed off. Assistant Attorney General Makan Delrahim told a House Judiciary Subcommittee that his team continues to review more than 800 comments filed by music users like radio and the creative community. “The Division is reviewing those comments and continues to discuss the relevant issues with key stakeholders in the matter and will consider all information when determining whether to keep, modify, sunset, or terminate those decrees,” he testified.

But Delrahim also reiterated that he believes the pressure is on supporters of the consent decrees to justify why the nearly 80 year-old guidelines are still needed to address competitive concerns in the music marketplace. “The ASCAP decree was last amended in 2001, and the BMI decree in 1994—a surprisingly long time ago when we think about how dramatically the music industry has changed in recent years,” said Delrahim.

Delrahim has said it’s possible the Antitrust Division could give some indication of whether it plans to pursue revising or sun-setting the consent decrees as soon as year-end, although he later said such an announcement is more likely in the new year. He also said it was possible the DOJ would take no action.

The fate of the consent decrees has captured interest from some members of Congress, who have raised concerns that it could impact the changes to copyright law they passed last year as part of the Music Modernization Act (S. 2823). The bill, which was signed into law by President Trump last year, includes a provision requiring the DOJ to give Congress at least a 90-day notice that it intends to ask a federal court to make changes to the decrees.

For the most part, lawmakers are taking a wait-and-see attitude. Rep. Doug Collins (R-GA) has been among the key legislators in the review of music-related issues, and during this week’s hearing he told Delrahim he’s appreciated the willingness to move cautiously. “That is something that cannot be done without a lot of discussion as we move forward,” said Collins.

The performance rights organizations would like to see the consent decrees terminated, but both ASCAP and BMI have said they’d be willing to support an interim phase that would allow the current guidelines to be modified and then sunset at a later, unspecified date.

The National Association of Broadcasters has said it would support such an interim arrangement as long as it is dependent on Congress passing legislation that would put several of their antitrust protections into a new federal law. “Congress needs to be involved in this or else there won’t be the certainty that’s needed for all of the people who need to succeed in music,” said NAB President Gordon Smith during a recent Salt Lake City symposium.

The Antitrust Division has targeted the legacy decrees among the 1,300 it is reviewing for possible termination. Beyond the ASCAP and BMI decrees, Delrahim said this week that federal district courts have already approved the termination of hundreds of decrees in more than 70 jurisdictions nationwide. “Those efforts are now moving at full pace, and we have made great progress in eliminating legacy judgments that clog court dockets, burden defendants, and no longer serve to protect competition,” he said. That included the termination of a 93-year old decree related to the sale of amusement park tickets in Washington and several decrees governing Chicago-area businesses related to telegraphs, phonographs, and railroad strikes.