Fans of the Department of Justice consent decrees on music licensing organizations--those fans include broadcasters and computer companies--have called on the Biden Administration and Congress to keep the decrees in place.

In letters to the President and House and Senate leaders, the MIC Coalition said its priority is a functioning music marketplace, which hinges on "an efficient, equitable and transparent music licensing system," which in turn hinges on the consent decrees.

"Millions of businesses and tens of thousands of songwriters rely upon the competitive protections and market efficiencies guaranteed through these decrees," they told Biden and the legislators.

After a lengthy review of the decrees during the Trump Administration, the Justice Department decided not to recommend lifting the decrees--which a court would have to do, citing the benefits of the decrees, the lack of consensus on lifting them, as well as the fact that, because of COVID-19, Justice was not able to engage in more granular discussions of key issues. 

The coalition pointed out that the decrees have been reviewed under the two previous administrations, Democrat and Republican, and the decision was not to lift them.

The two music licensing consent decrees, which apply to BMI and ASCAP, allow music users--like broadcasters and online streaming servcies--to secure a blanket license for music rights rather than having to negotiate individually for them.

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

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.

The coalition warned against any tweaking of the decrees as well--like rightsholder selective withdrawal or fractional licensing. "Weakening either decree would undoubtedly expose a countless number of licensees to anticompetitive pricing and jeopardize the financial solvency of a considerable number of small businesses that often serve as the economic lifeblood for local communities throughout the country."

MIC Coalition members include the National Association of Broadcasters, the Computer & Communications Association and the Consumer Technology Association.

The Department of Justice has created the a new office in the Antitrust division to oversee enforcement of consent decrees, like the one that allowed Sprint and T-Mobile to merge.

The Office of Decree Enforcement and Compliance will have the primary responsibility for enforcing consent decrees and judgments in civil matters and advise the criminal section when parties seek credit for corporate compliance programs. 

Related: DOJ Updates Vertical Merger Guidelines 

It will also be the point of contact for anyone with information on possible violations of final judgments. 

Antitrust Division chief Makan Delrahim is no big fan of conditioned mergers, arguing that those are efforts to make illegal mergers legal, with DOJ having to act as an ongoing monitor. 

“The Office of Decree Enforcement and Compliance will ensure the American consumer fully benefits from the Antitrust Division’s hard work identifying anticompetitive mergers and conduct,” said Delrahim. “We are building on our recent successes in Live Nation and CenturyLink. Those matters show how important it is to enforce our consent decrees vigilantly.” 

Last week, Justice and broadband/telecom company CenturyLink settled allegations that the company violated the conditions of its acquisition of Level 3. 

The Office of Decree Enforcement and Compliance will be headed Lawrence Reicher, most recently counsel to the assistant attorney general (Delrahim). 

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.”