BMI is adding some new, diverse, voices to its board.

Veteran TV and radio executives Alfred Liggins, III and Craig Robinson have been named directors of BMI (Broadcast Music Inc.), effective April 1.

Also Read: Alfred Liggins III

Music licensing organization BMI represents the public performance rights of 17 million works from over 1.1 million songwriters, composers and publishers.

Liggins is CEO of Urban One and chairman and CEO of its cable network TV One (Comcast is a partner). Robinson is EVP and chief diversity officer for NBCUniversal. His mother and partner, Catherine Hughes, founder of Urban One, has been a BMI board member for almost two decades. Hughes will be transitioning to honorary director in October.

Among other things, Robinson leads Comcast/NBCU's $100 million effort to "fight injustice and inequality." Robinson's mother was a Chinese American public servant and his father one of the first Black consultants for the Fair Employment Practices Commission.

Also Read: Too Long

“Both Alfred and Craig have achieved incredible success at their respective companies, and they each bring innovative leadership, unique perspectives, and key expertise that will make them invaluable additions to the Board," said BMI Board chair Caroline Beasley.

The Justice Department said there needs to be further review of two music licensing consent decrees that allow music users to secure a blanket license for rights rather than having to negotiate individually for them.

That is according to Justice Antitrust Chief Makan Delrahim in remarks at a Vanderbilt University Law School virtual event, "The Music Industry and Antitrust Law." He said there remain issues that still need to be worked out.

Those include whether performance rights organizations (PROs) should be able to expand the rights they license, and the key issues of fractional vs. full performance licensing and partial withdrawal of rights, the latter which particularly implicates streaming rights since that would allow music performers and publishers to provide blanket licenses for bars or TV shows, but negotiate individually with online streaming services. 

Also Read: BMI, ASCAP, Team on Rights Check Platform

Delrahim suggested that the decrees weren't going anywhere anytime soon since he said he thought the decrees should be reviewed every five years "to assess whether the decrees continue to achieve their objective to protect competition and whether modifications to the decrees are appropriate in light of changes in technology and the music industry."

It is a victory for broadcasters, who feared Justice could recommend ending the decrees. Justice could not end the decrees itself, but only makes recommendations to the court that issued them. 

Asked why Justice did not move to terminate, as Justice did with the Paramount consent decrees, Delrahim said there was more consensus on eliminating the Paramount decrees. He said they no longer serve their purpose and were prohibiting conduct, like block booking, that no longer really existed. By contrast, he said there were a lot of benefits for the music licensing blanket license. He cited John Bon Jovi's support of the decrees because he said they helped artists make a living. Then there other artists who disagreed.

He also said because of COVID-19 Justice was not able to engage in more granular negations on key issues. 

He pointed out that Justice has eliminated over 580 consent decrees, but in this case there was a lot of industry reliance on them.

The ASCAP/BMI decrees were the result of the Justice Department's concerns about the power music licensing organizations had by virtue of controlling those music rights, and were meant to encourage competition.

Justice two years ago launched its latest review of the 75-year-old consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), which collectively handle about 90% of music licensing rights and fees for music on video and audio platforms, including streaming services. 

Also Read: Justice Launches Official BMI/ASCAP Consent Decree Review

Broadcasters wanted the decrees to remain, arguing that a blanket license regime, rather than one where they would have to identify and get rights to each piece of music they play, is the only workable approach, a point Smith made in his testimony. 

BMI and ASCAP wanted the decrees phased out and offered up a way to do so.

The decrees circumscribe how those organizations can provide rights to public performances, but Justice, as it had earlier signaled, was reviewing those agreements to see if they should be maintained as is, terminated or modified as the 1941 decrees have been before, ASCAP most recently in 2001 and BMI in 1994. 

The decrees "require ASCAP and BMI to issue licenses covering all works in their repertory [blanket licenses] upon request from music users. If the parties are unable to agree on an appropriate price for a license, the decrees provide for a “rate court” proceeding in front of a U.S. district judge." 

The ASCAP decree requires it to “grant to any music user making a written request therefor a non-exclusive license to perform all of the works in the ASCAP repertory...." The BMI decree requires that BMI licenses provide access to those compositions, the right of public performance of which [BMI] has or hereafter shall have the right to license or sublicense.” The 2nd U.S. Circuit Court of Appeals in 2015 ruled, in the Pandora decision that ASCAP is “required to license its entire repertory to all eligible users.”

"The MIC Coalition is extremely pleased with today’s announcement," said the group, whose members include the National Association of Broadcasters and groups representing theater owners, restaurant owners and computer companies. "The announcement essentially reconfirms the finding of the previous Administration which concluded that the music industry has, 'developed in the context of, and in reliance on, [the ASCAP and BMI] consent decrees and that they therefore should remain in place.' We could not agree more with such sentiments. The ASCAP and BMI consent decrees guarantee a competitive and efficient licensing regime that benefits songwriters and music licensees, alike. 

"Maintaining this framework will ensure that millions of American businesses can efficiently and fairly pay for the right to play and perform live and recorded music, which is crucial as venues struggle to open their doors again in the wake of the pandemic, and as more Americans access music from an ever-growing array of platforms."

"While we were disappointed that no action was taken, we are encouraged to see how the DOJ’s

approach to these issues has evolved," said ASCAP and BMI in a joint open letter 

"We knew that reaching consensus would not be easy. It soon became clear that key industry participants could not agree on how best to move forward. Unfortunately, we also found that some were using this review to advocate for even greater restrictions in our decrees, either for their own benefit or in an effort to regulate the marketplace as a whole through BMI and ASCAP," they wrote. 

"The formal close of this review means we can put this matter behind us for the near future and continue to champion the rights of our songwriters, composers and publishers, protect the value of their creative work, and partner with our licensees to help ensure music is delivered to the public."

Music rights licensing organizations BMI and ASCAP have teamed up to try and provide one-stop rights checking for the music under their respective auspices.

The Songview platform provides each organization's percentage of rights to over 20 million songs so cable, broadcast, online program producers and others know among whom the rights fee pie must be divvied up correctly for songs they want to use in their productions.

The Songview system ingests data and shows the rights apportionment among BMI, ASCAP, and an "other" category, if any, based on rules agreed on by both parties, then supplies the reconciled data back to both, where it is displayed in searchable databases.

The databases also include, where applicable, alternate titles, songwriters and their affiliations, publishers, publisher contact info, performers, and more.

Because it allows song users to know who owns what, the data platform could come in handy if the Justice Department phases out the blanket license consent decrees, as both BMI and ASCAP support.

Justice in June 2019 launched its latest review of the decrees.

“When two companies that are fierce competitors come together on a project this ambitious to address a need identified by the marketplace, it says a lot about how important greater data transparency is to both of our organizations," said BMI president Mike O'Neill.

“This project is all about providing greater transparency for everyone who relies on this copyright data to guide important business decisions," said ASCAP president Elizabeth Matthews. "When you see the SONGVIEW checkmark, you know that the data is consistent in both ASCAP and BMI’s copyright systems."

The MIC coalition is telling the Justice Department not to later or pull the plug on longstanding music licensing consent decrees, saying that particularly in the time of pandemic that could add chaos to catastrophe. 

That came in comments in advance of next week's DOJ public workshop on the decrees and their antitrust implications.

The Justice Department last June officially launched its latest review of the 75-year-old consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), which collectively handle music licensing and fees for music on video and audio platforms. 

The decrees circumscribe how they can license rights to public performances, but Justice, as it had earlier signaled, is reviewing those agreements to see if they should be maintained as is, terminated or modified (as the 1941 decrees have been before, ASCAP most recently in 2001 and BMI in 1994). 

The decrees "require ASCAP and BMI to issue licenses covering all works in their repertory [a blanket license] upon request from music users. If the parties are unable to agree on an appropriate price for a license, the decrees provide for a “rate court” proceeding in front of a U.S. district judge." 

ASCAP and BMI have suggested changes on a glide path to removing the decrees, or what the MIC coalition suggests would be a road to ruin. 

The MIC Coalition's members are an eclectic group including the National Association of Broadcasters and the Consumer Technology Association but also the National Association of American Wineries and the Brewers Association. The unifying principle is that they all favor blanket over per-performance rights fees. 

"MIC members spend more than a billion dollars annually in fees to license the right to publicly perform musical works and we profoundly depend on the consent decrees to ensure that we can license those rights under terms that are reasonable and free from monopolistic pricing," they told Justice. 

The coalition strongly opposes any modification or termination of the decrees, which the they argue "include important, pro-competitive elements that benefit licensees, members of the songwriting community, and consumer." 

They included a reference to COVID-19, saying that the impact of the virus on their members, including on the ad revenues of broadcasters and bar and restaurant tabs, translates to a catastrophic economic hit that has revealed for many the "tenuous" nature of the thin green line, as it were, between staying in business and shuttering. 

"Creating more uncertainty – and even chaos – in the music licensing space by modifying or terminating the existing consent decrees would be a risky proposition at the best of times, and even absent the threat of the current pandemic," it said. "It would effectively eliminate critical safeguards that help provide business certainty and protect MIC members from anti-competitive behavior; thereby making our path to recovery in a post-COVID environment extremely more difficult." 

The prospect that "third parties [could] undercut...federal enforcement decisions" - such as the pending T-Mobile/Sprint merger - is one of the greatest concerns in the new antitrust environment, Assistant Attorney General Makan Delrahim explained in remarks to the monthly luncheon of the Media Institute in Washington on Wednesday (Feb. 5). He reminded the policy-centric audience that the Federal Communications Commission, the Department of Justice and many states approved the merger last year. But then attorneys general from 10 states and the District of Columbia sued to prevent the alliance; a decision is still pending.

"So, we have two specialized federal agencies reviewing the T-Mobile/Sprint transaction" and deeming it legal, Delrahim said. "Yet, we have a minority of states and the District of Columbia trying to undo that relief across the entire country. If you find this situation odd, you’re not alone."

"We often work closely with our state attorneys general partners in enforcement actions," he continued. "Here, however, a small group of state attorneys general did not reach consensus." Delrahim contended that such actions are "incompatible with the orderly operation of our antitrust merger laws and telecommunications regulations. It creates the risk that a small subset of states, or even perhaps just one, could undermine beneficial transactions and settlements nationwide."

Delrahim fretted, "That any state, or even any individual, can undo the nationwide relief secured by the federal government and approved by a federal court."

"That would wreak havoc on parties’ ability to merge, on the government’s ability to settle cases, and cause real uncertainty in the market for mergers and acquisitions," he added, noting that "Permitting states to undermine federal enforcement also would be contrary to congressional intent."

The AAG's passionate example emphasized the core of his remarks, which focused on DoJ's efforts to "reform" and "modernize" the Antitrust Division's merger review process.

"As a benchmark to measure success, we committed that we would aim to resolve most merger investigations within six months of filing," Delrahim said. After about 18 months of efforts, he said current initial merger reviews take about 5.4 months, and for cases that involve any challenge "the average time to notification is 5.7 months."

Steering Clear of Tech Examination and Media Issues

Delrahim ducked questions about DoJ's broad antitrust investigation of major digital platform firms (Google, Amazon, Apple and Facebook), announced in July. Initially, the agency expected to complete that probe by the end of 2019.

Early this week, Delrahim was recused from the Google portion that probe because of a potential conflict of interest. Before joining DoJ, Delrahim in private practice represented Google in its 2007 acquisition of DoubleClick, an ad-tech firm.

Separately, Delrahim touched briefly on the long-pending examination of the 1941 consent decrees affecting BMI and ASCAP music licensing agreements. Last year, he said that DoJ expected to decide by the end of 2019 whether those restrictions should be amended, eliminated or maintained as is.

On Wednesday he would only say that the agency's review is not comparable to its November 2019 termination of the half-century-old Paramount consent decree affecting studio ownership of exhibition facilities.

The Justice Department has officially launched its latest review of the 75-year-old consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), which collectively handle music licensing and fees for music on video and audio platforms .

The decrees circumscribe how they can license rights to public performances, but Justice, as it had earlier signaled, is reviewing those agreements to see if they should be maintained as is, terminated or modified (as the 1941 decrees have been before, ASCAP most recently in 2001 and BMI in 1994.

The decrees "require ASCAP and BMI to issue licenses covering all works in their repertory upon request from music users. If the parties are unable to agree on an appropriate price for a license, the decrees provide for a “rate court” proceeding in front of a U.S. district judge."

Antitrust chief called it the latest in a series of necessary reviews of the decrees. "It is important for the Division to reassess periodically whether these decrees continue to serve the American consumer and whether they should be changed to achieve greater efficiency and enhance competition in light of innovations in the industry," he said.

The ASCAP decree requires it to “grant to any music user making a written request therefor a non-exclusive license to perform all of the works in the ASCAP repertory...." The BMI decree requires that BMI licenses provide access to those compositions, the right of public performance of which [BMI] has or hereafter shall have the right to license or sublicense.” The 2nd U.S. Circuit Court of Appeals in 2015 ruled, in the Pandora decision that ASCAP is “required to license its entire repertory to all eligible users.”

President Donald Trump signaled last October, when signing the Hatch-Goodlatte Music Modernization Act into law (it updated the music licensing framework for the digital age and provided congressional oversight of the Justice consent decree review, that if the DOJ review leads to a decision to eliminate them, he would try to provide notice to Congress, but was giving no guarantees, depending on the circumstances.

The bill also provided for congressional overnight of the Justice Department review of the long-standing consent decrees. Graham wants to do some of that overseeing.

Delrahim had signaled a year ago that his division was taking a fresh look at the decrees, and with a fairly critical eye, at the decrees. Justice also reviewed the decrees in 2015, under a previous Administration, but left them in place.

One of the key issues is whether music licensing organizations can collect fees for fractional rights under blanket licenses. The court concluded that the decrees neither required full licensing of musical works nor prevented fractional licensing. Fractional licenses are works with multiple authors using different licensing organizations, so, say, BMI has some fraction, rather than all, of the rights.

Justice is seeking outside stakeholder input as part of the review. That public comment period closes July 10.

ASCAP and BMI have already proposed a modification to interim, time-limited consent decrees which it noted in commenting on the launch of the review Wednesday: “The DOJ’s long-anticipated review of the BMI and ASCAP consent decrees and call for public comment represent an opportunity to do what BMI has been advocating for years – modernize music licensing," it said. "BMI and ASCAP have already issued an open letter in which we share a proposed solution for the industry that will benefit music creators and licensees alike. We look forward to working with the DOJ, licensees and our other music partners to help ensure a smooth process that safeguards a vibrant future for music.”

Senate Judiciary Committee chair Sen. Lindsey Graham (R-S.C..) has asked the Justice Department to hold off on lifting the consent decrees on music licensing groups ASCAP and BMI until he has had a chance to discuss them with antitrust chief Makan Delrahim.

The decrees affect how those organizations collect fees from programmers and distributors for music in their content.

In a letter this week to Delrahim, Graham said the decrees appeared still to be working well. 

According to Justice, which struck the decrees with the organizations back in 1941, the ASCAP decree requires it to “grant to any music user making a written request therefor a non-exclusive license to perform all of the works in the ASCAP repertory . . . .” The BMI decree requires that BMI licenses provide access t o“those compositions, the right of public performance of which [BMI] has or hereafter shall have the right to license or sublicense.” The Second Circuit Court of Appeals in 2015 ruled, in the Pandora decision, that ASCAP is “required to license its entire repertory to all eligible users.”

Related: Senate Judiciary Approves Music Licensing Bill

“The purpose of my letter is not to prejudge the outcome of your review, but rather to express my concern that moving to terminate or even sunset the ASCAP & BMI consent decrees, without first working with my committee and the Congress as a whole to establish an alternative licensing framework, could severely disrupt the entire music licensing marketplace," said Graham.

President Trump signaled last October, when signing the Hatch-Goodlatte Music Modernization Act into law, that if the DOJ review of the consent decrees leads to a decision to lift them, he would try to provide notice to Congress, but was giving no guarantees depending on the circumstances. 

The bill provided for congressional overnight of the Justice Department review of the long-standing consent decrees. Graham wants to do some of that overseeing.

Delrahim had signaled almost a year ago that his division was taking a fresh look, and with a fairly critical eye, at the consent decrees—they date from 1941—under which performance royalty organizations (PROs) collect their fees.

Justice also reviewed the decrees in 2015.

One of the key issues is whether music licensing organizations can collect fees for fractional rights under blanket licenses. The court concluded that the decrees neither required full licensing of musical works nor prevented fractional licensing.

Fractional licenses are works with multiple authors using different licensing organizations, so, say, BMI has some fraction, rather than all, of the rights.

Graham does not say that the decrees are the perfect solution to the current marketplace, but he wants a committee staff-level discussion that includes licensors and licensees before Justice takes any action.

This story has been revised. It originally misidentified the letter as from former Alabama senator and attorney general Jeff Sessions.