NAB, Other Broadcasting Groups Favor DOJ 100% Licensing Decision

NAB, the Radio Music License Committee and Television Music License Committee in a filing released Friday jointly backed DOJ Antitrust Division’s preliminary decision on its review of the department's American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees. Music creator groups told DOJ they believe the department’s preliminary decision to clarify that 100 percent licensing, in which any partial owner of a song would be allowed to fully license that song, is required under music licensing rules will compound ongoing damage to the music industry (see 1607200035). Some individual music creators decided to boycott the request for comments (see 1607190063). ASCAP, BMI and the National Music Publishers Association were also widely expected to file comments on the preliminary decision but haven't released them or indicated what they told Justice. NAB and the broadcast music licensing groups countered music creators’ statements about 100 percent licensing, saying a DOJ endorsement of the music industry’s long-standing use of fractional licensing would have undermined “the very rationale for ASCAP’s and BMI’s continued existence in conformance with antitrust law: their ability, in the words of the Supreme Court, to afford users ‘unplanned, rapid and indemnified access to any and all of the[ir] repetor[ies] of compositions.’” Codification of fractional licensing “would, instead, deprive users of those existing procompetitive attributes, substituting in their place a need to secure rights from every partial rights claimant to countless works as a condition of their performance,” the broadcast groups said: Such a change “would entail enormous transactions costs, a practical inability to obtain comprehensive license coverage, and resulting exposure on the part of users to potentially consequential -- even ruinous -- copyright infringement damages.” A fractional licensing mandate also would “upend countless industry agreements, including with program suppliers, that have been negotiated and agreed upon in reliance on the existing music performance rights system,” the broadcast groups said. DOJ was expected to release a final decision as soon as Monday, but it’s unclear whether a request from House IP Subcommittee Vice Chairman Doug Collins, R-Ga., and four other House Judiciary Committee members for an independent review of the consent decrees (see 1607200075) will delay the department’s announcement, an industry lobbyist told us.