The decision of whether to further dig into radio’s consent decrees with ASCAP and BMI may soon fall to Jonathan Kanter. He was nominated by President Biden on Tuesday to become Assistant Attorney General for the Antitrust Division at the Department of Justice. That is the post that oversees not only the antitrust implications of mega-mergers, something that has been less a factor for radio in recent years, but also the scores of consent decrees already on the books such as those between radio and the performance rights organizations.
“Jonathan Kanter is a distinguished antitrust lawyer with over 20 years of experience,” the White House said in the announcement. “Throughout his career, Kanter has also been a leading advocate and expert in the effort to promote strong and meaningful antitrust enforcement and competition policy.”
Kanter, 47, is a former attorney for the U.S. Federal Trade Commission’s Bureau of Competition who most recently was in private practice. His firm specializes in pushing for federal and state antitrust law enforcement, taking on digital giants like Google in competition cases for clients such as Microsoft and Yelp. That included targeting Google for what critics have argued are unfair practices in the digital advertising space. He has also been involved with antitrust cases that have targeted Apple and Amazon. That history has led many progressives to push for his selection for the DOJ post.
“Kanter has the right expertise and holds the right values for the moment we are experiencing in tech and communications policy,” said Charlotte Slaiman, Competition Policy Director at the advocacy group Public Knowledge. “The public needs an Assistant Attorney General with both strong legal know-how and the requisite boldness to challenge gatekeepers and consolidated markets, including broadband providers and digital platforms. Jonathan Kanter fits that bill.”
Kanter’s focus on big makes him potentially less likely to focus on issues such as the ASCAP and BMI consent decrees. Former Assistant Attorney General Makan Delrahim wrapped his two-year review of the guidelines for how radio stations license music in January with recommendations for his successor. One of the more specific recommendations Delrahim left the Biden administration was the suggestion that a regular analysis of the decrees, which date back to 1941, be adopted in place of the current practice of reviewing them on ad hoc basis.
“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,” said Delrahim. But he also concluded there is still “significant reliance” on the decrees within the licensee community. While 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.
The MIC Coalition – the group of associations that includes the National Association of Broadcasters, Radio Music License Committee and groups representing stores, hotels, restaurants, bars and taverns – said it looks forward to “working closely” with Kanter to “further improve transparency and strengthen the music licensing ecosystem.” It also noted that it has worked with two previous administration to promote “competition and efficiency” by preserving the ASCAP and BMI consent decrees.
Kanter will need to be confirmed by the Senate, where he already has several key allies. “For years, Jonathan Kanter has been a leader in the effort to increase antitrust enforcement against monopolies by federal, state, and international competition authorities,” said Senator Amy Klobuchar (D-MN), who chairs the Senate’s Antitrust Subcommittee. “His deep legal experience and history of advocating for aggressive action make him an excellent choice,” she said.
Senator Elizabeth Warren (D-MA) called his nomination “tremendous news for workers and consumers” in a Twitter post. “He’s been a leader in the fight to check consolidated corporate power and strengthen competition in our markets,” she said.
With the Senate’s August recess looming, the Senate Judiciary Committee is expected to begin holding confirmation hearings for Kanter in September or October.