DOJ Forgoes Action on ASCAP/BMI Consent Decrees

posted on 1.15.2021

- Two Texans Tapped for Key Congressional Committee

The U.S. Department of Justice last week announced it has decided to take no action on the consent decrees governing ASCAP and BMI after flirting with modifying or terminating the decrees during the past four years. The decision provides broadcasters, restaurants, bars, and other industries that publicly perform music with much-needed certainty in the short term.

“DOJ’s decision not to take action will ensure that ASCAP and BMI continue to fairly and efficiently license musical works in a manner that is pro-competitive,” said NAB President and CEO Gordon Smith.

The decision is the culmination of a years-long effort by NAB to preserve the decrees after a political appointee of the Trump Administration in the DOJ, Makan Delrahim, announced at the start of his tenure that one of his major priorities was to eliminate or modify them.

Gov. Greg Abbott in late 2016 slammed the DOJ’s decision then to leave the consent decrees untouched, characterizing it as one that “is both legally flawed and threatens to harm the music industry in Texas.” 

Just months later, Delrahim made his initial pronouncement regarding the decrees. Delrahim served as assistant attorney general for antitrust and, as a political appointee, left government service with Trump, but his decision closed with an admonition that the decrees be reviewed every five years.

The review found that, while there was a desire by ASCAP and BMI and some in the music industry for reforms to the decrees, music users believe that they are generally working well.

TAB Associate Member David Oxenford of Wilkinson Barker Knauer explained in a recent blog post why the decrees are so important to broadcasters and other industries.

“They allow ASCAP and BMI to license a broad array of musical works to users, including broadcasters, on terms that cannot discriminate between similar users, at rates subject to judicial review to ensure that they are reasonable,” Oxenford said.

See Oxenford’s blog article on the initiation of the review, describing the issues the DOJ explored.

Two Texans Tapped for Energy/Commerce
A bipartisan pair of members of Congress representing the Houston area have been tapped to join the U.S. House Committee on Energy and Commerce, the committee of jurisdiction for public policy affecting Radio and Television broadcasters. They replace two Texas Republicans who retired in 2020.

Reps. Dan Crenshaw, R-Kingwood, and Lizzie Fletcher, D-Houston, were named to what is the oldest continuous standing committee in the U.S. House of Representatives. The committee was originally established in 1795 to regulate interstate and foreign commerce.

Today, the panel also is responsible for matters including telecommunications, consumer protection, food and drug safety, public health and research, environmental quality, and energy policy, all divided among six subcommittees.

Crenshaw and Fletcher succeed two Texas Republican members of Congress who retired in 2020, Bill Flores of Bryan and Pete Olson of Sugar Land.

The two join two Dallas-area members of Congress on the panel, Democrat Marc Veasey and Republican Michael Burgess.

Fletcher last week was named to the Subcommittee on Communications and Technology. The Republicans’ subcommittee assignments are pending.

Texas’ representation on the committee gives Texas broadcasters a bigger voice on concerns that advance to them for consideration. Issues such as copyright, however, also fall under the jurisdiction of the House Committee on the Judiciary.

There, Texas also is represented by four members of Congress, including Democratic Reps. Sheila Jackson-Lee and Sylvia Garcia of Houston, Veronica Escobar of El Paso; as well as Rep. Louie Gohmert, R-Tyler.

Questions? Contact TAB’s Oscar Rodriguez or call (512) 322-9944.

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