U.S. Government Decree of Music Licensing Consent Decrees End with No Action Taken

In 2019, the antitrust division of the U.S. Department of Justice (DOJ) initiated another review of the critically important antitrust consent decrees that underpin the music licensing marketplace. In 2016, after a thorough, multi-year review based on an extensive public record, the DOJ rejected proposed modifications from ASCAP and BMI that would weaken the consent decrees and reaffirmed their fundamental protections. Recently, despite no discernable changes in the marketplace, the DOJ again initiated a review of these decrees with a strong interest in terminating them. However, in January 2021, the DOJ ended another review of the decrees without modifying or sunsetting them, an outcome that pleased broadcasters, who had strongly opposed any significant modification or termination. After consulting with stakeholders over their concerns over eliminating the decrees, the DOJ concluded that there was insufficient consensus to take any action and left the decrees intact.

The two largest performing rights organizations (PROs) - ASCAP and BMI - license public performances of songs to virtually every venue and music platform in the United States. The music one hears on a favorite television show, during the broadcast of live events, on the radio, at a store or restaurant or through a favorite customized stream, are all licensed through PROs. The catalogs of ASCAP and BMI cover more than 90% of the market for the performances of musical works. To ensure they operate consistently with antitrust laws, the DOJ entered into antitrust consent decrees with these two PROs that provide them with the ability to conduct business in a fair, efficient and equitable manner that benefits both songwriters and licensees.

To comply with copyright laws, broadcasters obtain licenses from ASCAP and BMI to play the songs the PROs control. These licenses can cover all the works in each organization's repertoire and provide a more efficient way to obtain necessary public performance rights than negotiating with every copyright owner individually. Therefore, terminating the decrees, even over an extended period of time (sunsetting), without an effective alternative licensing framework in place would have brought chaos to the music marketplace, threatening the availability of music to consumers on every platform and in every venue across the country, an outcome recognized by the DOJ in its recently closed review.

However, although the DOJ review has now ended, in order to avoid harming licensees, songwriters and consumers and raising serious questions about the ability of the public to continue enjoying music, NAB will continue to work with Congress to ensure that the decrees remain supported.

If you have any questions, please contact NAB's Bijou Mgbojikwe at bmgbojikwe@nab.org or (202) 429-3185.