Nearly Twenty Thousand BMI Affiliates Signed BMI’s Letter to the DOJ on Consent Decree Reform

The Honorable Makan Delrahim
Assistant Attorney General
Antitrust Division, Department of Justice
950 Pennsylvania Avenue NW
Washington, D.C. 20530

Re: US DOJ Review of the BMI and ASCAP Consent Decrees

Dear Assistant Attorney General Delrahim,

Each of us is a songwriter, composer or publisher of BMI, and we are writing today in response to the DOJ’s request for public comment on the future of the BMI and ASCAP consent decrees.

First, we want to thank the DOJ for its attention to this issue. For years, BMI has advocated for the modernization of music licensing to better reflect the transformative changes in the industry, and this public comment period is an important first step. The consent decrees are outdated, and we welcome the opportunity to share our perspective on how changes to the decree could greatly benefit music creators and the entire industry – if done thoughtfully and gradually.

Bottom line: we believe that a free market with less government regulation is hands down the best way to ensure we, the music creators, can be fairly rewarded for our hard work and intellectual property. A free market would drive competition and create a more productive, efficient and level playing field for everyone involved.

However, we recognize that the BMI and ASCAP consent decrees have been in place for nearly 80 years. It would be irresponsible to get rid of them suddenly or make drastic changes to the current system, which could cause chaos in the marketplace – something we all want to avoid.

That’s why BMI and ASCAP put forward a proposal in February to ensure a smooth, orderly transition that would protect all parties. We support their recommendation that the DOJ replace the current BMI and ASCAP consent decrees with newly-formed decrees, which – like all modern consent decrees – would include a sunset provision. The new decrees would include four key provisions:

1. Allow all music users to continue to gain automatic access to the BMI and ASCAP repertoires with the immediate right to public performance. However, this right should be contingent upon a fairer, more efficient, less costly and automatic mechanism for the payment of interim fees.
2. Retain the rate court process for resolution of rate disputes, as recently reformed by the Orrin G. Hatch-Bob Goodlatte Music Modernization Act.
3. BMI and ASCAP will continue to receive non-exclusive U.S. rights from its writers and publishers, which allows licensees, songwriters, composers and publishers to still enter into direct license deals if they so choose.
4. Preserve the current forms of licenses that the industry has grown accustomed to beyond the traditional blanket license, such as the per-program license and adjustable fee blanket license.

We believe this is a compromise that will not only allow the industry to function more efficiently and effectively, but will also facilitate a thoughtful transition to a free market that will benefit everyone. Moreover, protections exist today, in the form of antitrust laws, that would continue to exist in a post-decree world and govern current parties as well as any future market entrants.

As we’ve seen over the years, some organizations may try to use this moment and BMI’s and ASCAP’s consent decrees to serve their own interests at the expense of the songwriter. However, the creative community strongly believes that the status quo is not sustainable. It’s critical that we modernize music licensing to best reflect where the industry is today, where we are heading, and ensure that music creators can thrive for decades to come.

Thank you again for your consideration of this issue.