Could ASCAP, BMI Consent Decrees Be About To End? Justice Dept. Antitrust Head To Speak At Publisher Conference
Makan Delrahim, head of the Justice Department's Antitrust Division, will be a keynote speaker at the National Music Publishers Association meeting. Delrahim recently revealed that hundreds of DOJ consent decrees are under review in order to make a determination over whether such orders should be carried out moving forward.
Guest post from The Trichordist
Really great news! It was recently announced that the head of the Justice Department’s Antitrust Division will speak at the National Music Publishers Association annual meeting in June!
As David said a few weeks ago before this announcement, Mr. Delrahim is reviewing hundreds of DOJ consent decrees that have accumulated over the decades to see if these government orders should be continued. This review includes the ASCAP and BMI consent decrees that Mr. Delrahim specifically mentioned in an address at Vanderbilt Law School earlier this year. He seems to have come to this idea all by himself.
What’s really great about this is that it could mean the end of consent decrees in a relatively short period of time. Since it’s never happened before, we don’t know exactly how the end of the consent decrees would impact ASCAP and BMI, but presumably the impact would be positive and quick. Goodbye rate court! The smart money would probably be on existing rate court cases continuing, but disallowing new cases. (Mr. Delrahim has been clear that the enforcement side would remain in place, meaning we guess that actual antitrust law violations would be dealt with case by case, just no ongoing regulatory oversight by unelected rate courts. Example would be Global Music Rights awesome antitrust case against the broadcasters after the broadcasters brought one against GMR.)
It could possibly open the door to both organizations getting into the mechanical licensing administration business in competition with whatever comes of the collective established by the Music Modernization Act (which permits voluntary licenses outside of the collective). In fact, BMI has already said they intend to pursue licensing outside of performances because their consent decree allows them to do so unlike ASCAP’s:
BMI is also evaluating the option of licensing beyond the performing right. We have long believed our consent decree allows for the licensing of multiple rights, which is why four years ago we asked the DOJ to amend our decree to clarify that ability, among other much-needed updates.
Of course, the last thing that anyone would want is for the DOJ to end the consent decrees, just to be replaced by some other bunch of regulations or bureaucracy. For once, broadcasters will just have to suck it up.
So it’s a great idea that NMPA is inviting Mr. Delrahim to speak to the publishers who are most in the position to take advantage of a new dawn in songwriter freedom. Many if not most of the NMPA members will be in the voluntary licensing category under MMA and outside the collective. They would be in a fantastic position to support a one-stop shop for performance and mechanical licensing from ASCAP and BMI in line with what SESAC/HFA can offer, and presumably GMR could do as well.