US DOJ Invites Public Comments in Consent Decrees Review

After hearing impassioned arguments from songwriters, publishers, performing rights organizations, digital radio representatives and other members of the music industry, the US Department of Justice is inviting additional public input. The department asks songwriters, composers, licensees, and service providers, to provide information and/or comments relevant to whether the BMI and ASCAP consent decrees continue to protect competition.

The deadline to receive comments is Aug. 6, 2014.

Specifically, comments and information are requested for the following questions:

• Do the Consent Decrees continue to serve important competitive purposes today? Why or why not? Are there provisions that are no longer necessary to protect competition? Are there provisions that are ineffective in protecting competition?
• What, if any, modifications to the Consent Decrees would enhance competition and efficiency?
• Do differences between the two Consent Decrees adversely affect competition?
• How easy or difficult is it to acquire in a useful format the contents of ASCAP’s or BMI’s repertory? How, if at all, does the current degree of repertory transparency impact competition? Are modifications of the transparency requirements in the Consent Decrees warranted, and if so, why?
• Should the Consent Decrees be modified to allow rights holders to permit ASCAP or BMI to license their performance rights to some music users but not others? If such partial or limited grants of licensing rights to ASCAP and BMI are allowed, should there be limits on how such grants are structured?
• Should the rate-making function currently performed by the rate court be changed to a system of mandatory arbitration? What procedures should be considered to expedite resolution of fee disputes? When should the payment of interim fees begin and how should they be set?
• Should the Consent Decrees be modified to permit rights holders to grant ASCAP and BMI rights in addition to “rights of public performance”?

All comments should be submitted by email to ASCAP-BMI-decree-review@usdoj.gov and will be posted in their entirety for public review at justice.gov. Information that parties wish to keep confidential should not be included in their comments.

Comments may also be sent, preferably by courier or overnight service, to the following address:

Chief, Litigation III Section
Antitrust Division
U.S. Department of Justice
450 5th Street NW, Suite 4000
Washington, DC 20001