Texas Governor Urges DOJ Reconsider PRO Consent Decrees Decision, Drawing Industry Praise
Texas Gov. Greg Abbott urged DOJ to “reconsider” its decision in its review of the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees. Justice's Antitrust Division said earlier this month it decided against altering the existing decrees to allow music publishers to partially withdraw from the agreements, and clarified that the department continues to believe the existing documents mandate 100 percent licensing (see 1608040066). Abbott’s Monday letter to Attorney General Loretta Lynch followed earlier concerns expressed by members of Congress (see 1608260056).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The decision “is both legally flawed and threatens to harm the music industry in Texas,” Abbott said in the letter. Abbott, a Republican, said he's seeking reconsideration of DOJ’s finding in his role in leading the Texas Music Office, which promotes the state’s music industry. The ASCAP and BMI consent decrees “should be amended to recognize and legitimize” the performing rights organizations’ fractional licensing practices, which “represents the status quo, and most music users recognize this fact,” Abbott said. “It is the DOJ’s new interpretation of the consent decrees that would disrupt the market, not fractional licensing.”
Abbott disputed DOJ’s claim the consent decrees mandate 100 percent licensing, calling the department’s clarifying language a “drastic change in course” that will have “severe consequences” for the music industry. The finding “is based on a technical construction of the decrees’ terms rather than a contextual understanding of the decrees’ role in resolving discrete legal claims that had nothing to do with the full-work license issue,” Abbott said: “There is no indication that these consent decrees were intended to address the issue of full-work licenses or that full-work licenses were even at issue in the underlying litigation” that resulted in the consent decrees’ creation. Justice didn’t comment Tuesday.
Abbott’s letter drew praise from music industry officials who have criticized DOJ’s handling of the consent decrees review since the department announced its decision. Two tech sector lobbyists said they didn’t believe Abbott’s letter would have an impact because his argument is similar to ones that the PROs and music publishers made to DOJ during the review. Abbott was correct that it’s “likely that the DOJ decision will result in certain music not being played by users that would have been played had they” not addressed 100 percent licensing in the decision, said Future of Music Coalition National Organizing Director Kevin Erickson. “It seems plausible that certain music licensees might cease playing music altogether, for fear of playing the wrong thing in an increasingly fragmented music licensing marketplace.”
It’s not surprising Abbott decided to wade into the debate over DOJ’s consent decrees decision given the economic impact that the music industry has in Texas, said music industry attorney Chris Castle. “From his perspective, if you have problems with songwriters,” that can have an impact on other facets of Texas’ music industry and other parts of the state’s economy, said Castle. Music industry issues “hit close to home on a lot of levels” in Texas, and the same could be true in states beyond major industry bases like California, New York and Tennessee, he said: “It wouldn’t surprise me” if other state governments also decide to voice opposition to DOJ’s finding given that a variety of states have entertainment offices and commissions that pay attention to music industry issues.