Broadcasters to Senate: Keep ASCAP/BMI Consent Decrees
Calls Current Regime Crucial to Music Rights on TV, Radio, Web
3/10/2015 3:45 PM Eastern
By: John Eggerton
Multichannel News
http://www.multichannel.com/news/national-regulation/broadcasters-senate-keep-ascapbmi-consent-decrees/388748
Broadcasters made their case to the Senate Judiciary Committee Tuesday
(March 10) on why the committee should not overhaul the consent decrees
that allow performance licensing organizations (PROs) like ASCAP and BMI
to collectively negotiate rights to music on TV, radio and the Internet.
Making the broadcasters' case at a hearing on whether the existing,
80-year-old regime was in need of tweaking, overhauling or elimination
in the digital age was Mike Dowdle, VP and general counsel at radio
broadcaster Bonneville International.
He told the senators that despite the technological advances in how
music is performed, the consent decrees allow for a "fair and efficient
music-licensing marketplace." In their absence, he argued, the PROs
would not have that antitrust governor on their 90% share of
public-performance rights.
Dowdle pointed out that ASCAP and BMI aggregate rights from a host of
musical works and provide a blanket license for their performance at a
single price, regardless of whether an individual work is actually
performed. Without the consent decrees, which were struck with the
Department of Justice in 1941 following complaints of anticompetitive
activity, Dowdle said such control over music licenses would be a de
facto antitrust violation.
He said that the system has generally worked, though a bit more
transparency would be helpful.
Music publishers at the hearing are looking to get selectlively out of
the BMI/ASCAP regime so they can independently negotiate with digital
suppliers like Pandora, arguing they are being undervalued in digital
play. Dowdle said that can't be allowed.
"[I]n an attempt to circumvent the consent decrees, large music
publishers have sought to selectively withdraw from ASCAP and BMI, to
directly negotiate with certain digital services," he said in his
testimony. "Two federal courts interpreted the consent decrees to
prohibit such partial withdrawals, and now the PROs are asking both DOJ
and Congress to amend them. Such a modification for partial withdrawals
cannot be permitted."
While network programming is handled on that end, syndication and
commercial music is not. Dowdle said that without a blanket license,
broadcasters could be subject to significant penalties for airing music
over which it has no editorial control.
ASCAP CEO Elizabeth Matthews said that in a perfect world the consent
decrees would be removed because in the digital age it makes it harder
for songwriters and composers to be compensated. She is all for
collective licensing, which is why there is an ASCAP and BMI. It is the
government oversight through the consent decrees she thinks needs to go.
Pandora VP Christopher Harrison said that the consent decrees provide
essential protections because they require the RPO's to make licenses
available on nondiscriminatory terms and conditions.
"While music publishers and the PROs cloak their requests for increased
royalties in the rhetoric of free-market capitalism, what they really
seek is a licensing regime that is structured to insulate publishers and
PROs against the forces of competition," he said.
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