Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Wednesday, June 13, 2018

Assistant Attorney General Makan Delrahim Delivers Remarks at the National Music Publishers Association Annual Meeting New York, NY ~ Wednesday, June 13, 2018

See the speech here.


Antitrust enforcement by the Department of Justice has also resulted in a form of industry regulation. In the 1930s, the Antitrust Division became concerned about the competitive effects of exclusive blanket licenses, and it sued ASCAP under the antitrust laws. In 1941, ASCAP settled that lawsuit, and BMI entered into a separate, but similar settlement. The resulting consent decrees, with some modifications over the years, still regulate most aspects of public performance licensing today, more than 75 years later.


In fact, the ASCAP and BMI consent decrees are among 1300 legacy judgments the Antitrust Division has on the books. As some of you are aware, the Antitrust Division has recently set out to review many of those longstanding judgments to make sure they’re not doing more harm than good. 

Some of those longstanding decrees are remarkably out of date, like the decree for the Horseshoer’s National Protective Association judgment from 1913. In fact, we will soon be moving to eliminate dozens of out of date decrees from the books through our Judgment Termination Initiative.  

Though they’re old, the ASCAP and BMI decrees were not among that first group that we’ve sought to examine. We recognize the industry has grown up around them, and we should not take any action lightly or without due care and consideration. Unlike the Horseshoer’s National Protective Association, I am pleased to note that ASCAP and BMI still exist and remain very relevant.  


To be clear, the Antitrust Division has not reached any conclusion about whether the ASCAP and BMI decrees strike the best balance among competition, innovation, and regulation. Congress, moreover, is also paying proper attention to the industry. It is taking a hard look at the Music Modernization Act, and we look forward to seeing that legislation enacted and the results of those changes, which have involved several years of process and input from various interested parties.

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