Senate Antitrust Hearing Pits Songwriters Against Consumers

Mike Dowdle

For just over two hours on Tuesday, songwriters and those who profess their best interests had an audience at the Senate, but their messages were hardly harmonious, according to The National Law Journal.

The Senate Judiciary Committee’s subcommittee on antitrust, competition policy and consumer rights heard from six witnesses, each representing a different part of the country’s current music licensing landscape. The hearing was titled “How Much For a Song?: The Antitrust Decrees that Govern the Market for Music.”

To answer that question, parties big and small clashed over the relevance in the digital age of a couple of consent decrees issued by the U.S. Department of Justice in 1941 that regulate how songwriters get paid when their work gets played.

To avoid the antitrust issues that arose 70 years ago, the decree requires ASCAP and BMI to “offer a fair rate, on a non-exclusive basis, to any user requesting a license, and that they not discriminate among similar licensees,” subcommittee chairman Mike Lee, R-Utah, said Tuesday.

The Justice Department is reviewing the consent decrees for potential modifications to address disparities between the royalties performers get and the much smaller sums reserved for songwriters over digital streaming services.

The most forceful advocate for the consent decrees was Mike Dowdle, general counsel to Bonneville International. Speaking on behalf of his company and the National Association of Broadcasters, Dowdle represented television and radio interests in maintaining the regime that served them well before and after the rise of the Internet.

The consent decrees, Dowdle said, “serve as antitrust lifelines that allow ASCAP and BMI to continue to operate in spite of their anti-competitive nature." Without the consent decrees, he said, "ASCAP and BMI would have unfettered ability to extract above-market prices and terms for the rights and those works from broadcasters and other licensees.”

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