Sen. Graham’s Latest Worry: Music Licensing Marketplace Disruption


When it comes to making headlines in the last day, Republican Lindsey Graham, the senior Senator from South Carolina, has had no problem staying in the news. On Sunday (2/17), The New York Times reported that Graham will commit to finding out whether the top Justice Department officials and the FBI conspired in an “attempted bureaucratic coup” designed to remove President Trump from office, confirming that he would subpoena the former FBI director and the deputy attorney general if need be.

Then came comments on CBS’s Face The Nation that suggested the controversial construction of a U.S.-Mexico border wall is more important than the construction of a school. “Let’s just say for a moment that he took some money out of the military construction budget. I would say it is better for the middle school kids in Kentucky to have a secure border,” Graham said. “We’ll get them the school they need, but right now we’ve got a national emergency on our hands.”

Now, Graham is attracting the attention of pro-media industry lobbyists on Capitol Hill. Why? Graham is newly concerned about the status of the DOJ Antitrust Division’s Judgment Termination Program, particularly with respect to consent decrees with the nation’s two largest performing rights organizations. He warns that moving to terminate or even sunset the consent decrees without first working with Congress and his committee would be highly detrimental — even to Radio.

In a letter sent February 12 to Antitrust Division Asst. Attorney General Makan Delrahim, Graham noted that he was not pre-judging the outcome of a DOJ review of consent decrees with Broadcast Music, Inc. (BMI) or the American Society of Composers, Authors and Publishers (ASCAP).

However, he was blunt in expressing his concern that moving to terminate or even sunset the ASCAP & BMI consent decrees, without first working with Graham’s committee and the Congress as a whole to establish an alternative licensing framework, “could severely disrupt the entire music licensing marketplace.”

Graham explained that the antitrust protections of the decrees “have allowed businesses to innovate and expand music offerings, which has generated greater revenue for songwriters. As a result, the American consumer currently enjoys the world’s most vibrant music market.”

And, “while there can be disagreements over the ideal form of oversight, the reality is that the current market is functioning rather well.”

This brings Graham to note the passage in the 115th Congress of the Music Modernization Act, “the most comprehensive music licensing legislation in more than a decade.”

That legislation, Graham explained, “included a number of reforms to improve the music landscape as a whole, spanning many different types of rights. Without an alternative licensing framework first in place, any significant changes to the ASCAP & BMI consent decrees could threaten to undo the very reforms enacted into law just months ago.”

In fact, he added, “it was this concern that led the Senate to amend the MMA to require the Department to consult with Congress before sunsetting or terminating these two consent decrees specifically.”

While Graham concludes in the two-page letter that he does not contend that the current ASCAP & BMI consent decrees are the perfect solution for the marketplace, he would welcome Delrahim’s suggestions for a legislative framework that provides the needed efficiencies of collective licensing.

At the same time, this legislation would need to protect consumers from anti-competitive abuses in the marketplace.