NAB: ASCAP and BMI Consent Decrees are Necessary

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WASHINGTON— The National Association of Broadcasters believes consent decrees governing the licensing of musical works performance rights provide protection from anti-competitive behavior by performance rights organizations, the organization said in comments filed with the Department of Justice's Antitrust Division.

The advocacy organization argued that BMI and ASCAP’s consent decrees should remain, concurring with views expressed by the Television Music License Committee and the Radio Music License Committee. Economist Steven Peterson’s analysis was also cited, which concludes that consent decrees are in the public interest due to efficient administration and enforcement of music rights licensing. PRO SESAC was given as an example of problems that occur without DOJ oversight and with blanket licensing ability; the two antitrust cases brought against SESAC were referenced, in which the ruling said the PRO had engaged in anticompetitive behavior.

“Radio and television broadcasters lack control, in certain instances, over the particular songs that are broadcast,” said NAB in the filing. “Even with respect to programming created by broadcasters, each of the PROs has aggregated such a large repertory that there is often no practical way to avoid playing music licensed by each of the PROs.”

NAB also urged the DOJ to not allow some music publishers to selectively withdraw their catalogs from the PROs for some licensees but not for others.

“If allowed to circumvent the consent decrees, those publishers will abuse their market power to extract supra-competitive rates, terms, and conditions from the blanket licensees they choose to target," NAB said of the major music publishers.

If the DOJ decides to amend the consent decrees, NAB said, then it should focus on requiring greater transparency by ASCAP and BMI. The PROs should provide more accurate and comprehensive information about the musical compositions that are being licensed, which could help develop an alternative to the anti-competitive effects of blanket licenses.

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