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(January 15, 2021)

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The U.S. Department of Justice, Antitrust Division has opened a review of the consent decrees in United States v. ASCAP, 41 Civ. 1395 (S.D.N.Y.), and United States v. BMI, 64 Civ. 3787 (S.D.N.Y.) (“Consent Decrees”). The Consent Decrees, originally entered in 1941, are the products of lawsuits brought by the United States against ASCAP and BMI under Section 1 of the Sherman Act, 15 U.S.C. § 1, to address competitive concerns arising from the market power each organization acquired through the aggregation of public performance rights held by their member songwriters and music publishers.

Since their entry in 1941, the Department has periodically reviewed the operation and effectiveness of the Consent Decrees, most recently in 2014 - 2015 [links]. Both Consent Decrees have been amended since their entry. The ASCAP Consent Decree was last amended in 2001 and the BMI Consent Decree was last amended in 1994.

Public Comments

As part of its review, the Department invites interested persons, including songwriters, publishers, licensees, and other industry stakeholders, to provide the Division with information or comments relevant to whether the Consent Decrees continue to protect competition.

In particular, the Department seeks public comments on the following issues:

  • Do the Consent Decrees continue to serve important competitive purposes today? Why or why not? Are there provisions that are no longer necessary to protect competition? Which ones and why? Are there provisions that are ineffective in protecting competition? Which ones and why?
  • What, if any, modifications to the Consent Decrees would enhance competition and efficiency?
  • Would termination of the Consent Decrees serve the public interest? If so, should termination be immediate or should there instead be a sunset period? What, if any, modifications to the Consent Decrees would provide an efficient transitionary period before any decree termination?
  • Do differences between the two Consent Decrees adversely affect competition?  How?
  • Are there differences between ASCAP/BMI and PROs that are not subject to the Consent Decrees that adversely affect competition?
  • Are existing antitrust statutes and applicable caselaw sufficient to protect competition in the absence of the Consent Decrees?

Note: Comments from the public were due by August 9, 2019 and are posted in their entirety for public review.

Privacy and Confidentiality Notice

Comments and responses thereto may be filed with the court, published in the Federal Register, or posted on the U.S. Department of Justice internet website. Information that is submitted in connection with this matter cannot be maintained as confidential by the Department of Justice. Written submissions should not include any information that the submitting person or entity seeks to preserve as private or confidential.

Updated January 15, 2021