After A Long Review, More Review Needed

The Department of Justice has been reviewing the ASCAP/BMI consent decrees since 2019, which included over 800 public comments and a two-day workshop. Assistant Attorney General Makan Delrahim said on Friday that “continued review of, and stakeholder input concerning, the decrees remains necessary to ensure the decrees continue to satisfy their purpose to protect competition and do not act as an impediment to innovation.

ASCAP CEO Elizabeth Matthews and BMI President and CEO Mike O’Neill quickly offered a joint statement that said both organizations were hoping for more direction.
“While we were disappointed that no action was taken, we are encouraged to see how the DOJ’s approach to these issues has evolved. In his closing remarks, AAG Makan Delrahim recognized several important truths that we have long understood: Songwriters are the backbone of the music marketplace and must be paid fairly; blanket licensing is incredibly efficient; ASCAP and BMI are innovating to serve the needs of the industry; greater competition and not compulsory licensing is the answer; and the value of music is best decided in a free market. While BMI and ASCAP have long advocated for updating and modernizing our consent decrees, it has become clear over the course of two different reviews by two different DOJ administrations in the past eight years that modifying or terminating our decrees would be extremely challenging.

The joint letter says the even though BMI and ASCAP have operated with consent decrees for over 80 years, they have also innovated with the changing marketplace. “We recently joined together to launch the Songview data platform in order to respond to a growing industry need to provide greater transparency around copyright ownership shares. In addition, we have each independently experimented with new forms of licenses, and we successfully advocated for provisions in the Music Modernization Act that will drive fairer negotiations and allow the introduction of more marketplace-pricing evidence in rate court proceedings.

The NAB also responded the DOJ’s decision to keep the status quo. “NAB is very pleased that the Department of Justice will not move to make changes to the ASCAP and BMI consent decrees. We appreciate the willingness of DOJ to have an open mind and to conduct a comprehensive review of all of the possible issues raised by stakeholders concerning modifying or eliminating the decrees. DOJ’s decision not to take action will ensure that ASCAP and BMI continue to fairly and efficiently license musical works in a manner that is pro-competitive. Broadcasters look forward to continuing to work with the performance rights organizations for the mutual benefit of songwriters, music licensees and listeners.”