r By Robert Bell, Utah-based small business owner
The music mafia is running wild and it’s up to Sen. Mike Lee to put them in their place.
Throughout the state and across the country, small businesses like mine are living in fear – fear of two mega-monopolies that will do anything to extort more cash.
Those monopolies, which have arisen artificially due to government copyright laws, are called ASCAP and BMI, and they control close to 100-percent of music’s performance rights licensing marketplace. As private businesses in the state know all too well, they give the term “a force to be reckoned with” new meaning.
It would be one thing if these organizations simply charged market rates to Utah establishments that play music and then went on their way, but there is much more to the story. In the past, they’ve tried to force Girl Scout troops to pay licenses for singing campground songs. They’ve tried to make cell phone companies pay for every cell phone ringtone that goes off. They’ve even targeted funerals and reunions in cases where families unintentionally play remembrance songs without licenses.
Utah bars, hotels, pubs, and restaurants, which happily pay licensing fees, deserve better treatment. Unidentified ASCAP and BMI employees trap owners with questions like, “If I like your music, can I get up and dance?” just so they can tack on more charges, while their frequently burly representatives show up in person, or make threating calls while using coarse language at off hours, demanding payment. ASCAP and BMI’s mafia-like behavior has gotten so bad that several states have passed laws that fine them for acting out of line.
The one thing stopping these government-created monopolies from being totally uncontrolled are federal contracts, known as consent decrees, that ASCAP and BMI settled with the Justice Department in the 1940s. These agreements prevent the two music monopolies from charging unsustainable rates to small businesses just because their market share gives them the opportunity to do so. By creating a blanket license system, which allows all small businesses to access everything in ASCAP and BMI’s catalogs at set rates, the worst predatory pricing and litigation threats have been squashed for years.
Predictably, ASCAP and BMI have ostensibly been doing everything they can to scrap or amend the consent decrees in a way that would give them more power. To the dismay of Utah business like mine, they have had some success, at least in securing a review of their case.
The Department of Justice is currently evaluating all 1,300 of the nation’s antitrust consent decrees. Based on reports and speeches from key officials, it seems that the ASCAP and BMI consent decrees has been one of its central focuses.
Fortunately for Utah establishments, a measure recently inputted into the Music Modernization Act has given Congress more clout over the DOJ’s review. This means that, as chair of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, our very own Sen. Mike Lee can have more influence over this process than any other elected official in Washington.
Sen. Lee has a proven track record of stepping up to the plate on this issue, doing everything he can to help Utah’s business owners and aspiring songwriters. The last time the music monopolies requested a review, in 2015, he went out of his way to hold a music licensing congressional hearing that guided the DOJ in its review process. When Justice decided to make no adjustments to the consent decrees 17 months later, Sen. Lee praised the agency’s thoroughness in examining this issue.
Nothing about ASCAP and BMI has changed from then to now, and this consent decree issue means just as much to us today as it did a few years ago. Small businesses across the Beehive State are praying that Sen. Lee will recognize this and devote as much time to rectifying this issue as he did in years’ past.
