RMLC 375

There was little doubt that the Radio Music License Committee would respond to this month’s filing by the Justice Department, which said broadcasters were using a “simplistic” misreading of the law in their antitrust case against Global Music Rights. But few probably expected the RMLC would use the sort of double-barreled rebuttal that it just delivered in federal court in Los Angeles.

In an 18-page message that could be summed up in two words—butt out—the RMLC says the Trump-era DOJ Antitrust Division has broken with previous administrations and offered its views on how district courts should address antitrust issues in private cases that it wasn’t involved in. That’s what Assistant Attorney General Makan Delrahim did earlier this month when he filed a brief in U.S. District Court in Los Angeles that was largely seen as supporting GMR.

More than just taking sides, the RMLC this week said it viewed that as a “particularly aggressive” move by a federal agency. It told District Court Judge Terry Hatter that he should reject the attempts by the Antitrust Division to “mold statutory interpretation” of the law. “There is nothing unique or difficult about that exercise that requires the court to consider the unsolicited views of a federal agency,” the RMLC said.

The radio trade group didn’t stop there. It went on to tell the Los Angeles court that it’s the DOJ that’s confused, saying the federal agency suggested the judge should reject arguments the RMLC hasn’t made in its case. At the same time, the RMLC says the Antitrust Division didn’t even address some of the key arguments that it did make. And on top of that, the RMLC says the DOJ offered its view of law that has nothing to do with the facts of the case, but rather provided a “purely academic debate” apparently as a way to show it had some interest in the outcome of the proceeding. It also calls allegations that attempts to paint arbitration as a way to resolve the case as an antitrust collusion maneuver “puzzling” and “bizarre” since most courts encourage parties to arbitrate disputes in order to avoid costly and time-consuming antitrust litigation. “The court does not owe any deference to the Division’s views on either the law or its application to the facts here,” broadcasters told Hatter.

The insertion of the DOJ into the three-year long fight between the radio industry and GMR comes as the court considers competing motions made by each side to have the other’s antitrust suit dismissed. The faceoff began in November 2016 when the RMLC filed an antitrust lawsuit in federal court in Philadelphia alleging GMR violated federal law when it allegedly created an “artificial monopoly” to squeeze higher rates from stations. Two weeks later GMR replied with an antitrust lawsuit of its own which contended the radio consortium is essentially an “illegal cartel.” In April the Philadelphia case was dismissed and the two sides have been doing battle in L.A.

The filing also opened a second battle front between the RMLC and DOJ. The other is in Washington where Delrahim and his team are considering whether to seek modifications or termination of the decades-old consent decrees that govern how radio stations license music from ASCAP and BMI. Delrahim told a House Judiciary Subcommittee last month that his team continues to review more than 800 comments filed by music users like radio and the creative community. Broadcasters, including the RMLC, have argued the consent decrees should be left intact since they prevent ASCAP and BMI from upending the music marketplace.

This month’s actions by the Antitrust Division also lend new credence to the idea that the Justice Department is posing a much larger immediate threat to the radio industry than any other federal agency. On a recent Inside Radio Podcast, National Association of Broadcasters President Gordon Smith suggested the industry has several ways to defend itself. “We’ll just keep using all the tools we have to protect our members, and that includes the Administration, the Congress and the courts,” he said.