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Letter to Assistant Attorney General Delrahim - Consider Impact on Markets and Consumers Before Taking Action to Terminate or Weaken Previous Antitrust Judgments


Dear Assistant Attorney General Delrahim:

As members of the Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights, we write in response to the Antitrust Division's recently announced initiative to terminate outdated antitrust judgments. We understand the need to periodically review antitrust judgments that do not automatically sunset to ensure that they continue to serve the goals for which they were initially implemented. At the same time, we are concerned that some judgments, which still protect competition or play a role in the functioning of certain markets, may be prematurely terminated or weakened with potentially harmful consequences to consumers, industry, and competition.

While we appreciate the benefits of having a uniform process to review and terminate obsolete consent decrees, we also recognize that the scope and industry context of each consent decree is unique. Some "legacy" consent decrees have defined the rights, obligations, and expectations of market participants for decades, protecting competition, providing certainty, and allowing for the efficient conduct of business. Whatever their deficiencies, weakening or terminating such judgments after only a 30-day public comment period could result in unnecessary harm to market participants and consumers.

Two prominent examples of industry-shaping "legacy" judgments are the Broadcast Music, Inc. (BMI) and American Society of Composers, Authors and Publishers (ASCAP) consent decrees, which have governed the licensing of public performance rights since the 1940s. We understand that the Division is reviewing these decrees under the "legacy" judgment initiative. We have heard concerns from within the music industry regarding weakening or termination the BMI and ASCAP consent decrees without an alternative regime in place, which could introduce uncertainty into public performance licensing, increase the risk of litigation for licensors and licensees, disrupt compensation to songwriters, and reduce the availability of musical works for the public.

As the music industry has developed in reliance on these consent decrees and music licensing legislation before Congress assumes the continued existence of the framework established under consent decrees, we urge the Division to allow consumers, industry representatives, and members of Congress to negotiate and develop an alternative solution -- without the threat of litigation or the market disruption that would result from altering the current regime -- before the Division takes any action to weaken or terminate these judgments.

As the Division works to assess its backlog of potentially outdated antitrust judgments, we urge you to remain mindful of the disruptive and harmful effects that terminating or weakening certain "legacy" judgments may have on markets and consumers. When considering your approach to the judgments that still have a pervasive influence on current markets, we respectfully request that the Division take appropriate action to allow relevant parties to negotiate an alternative regime before taking unilateral action by terminating or weakening these judgments. We stand ready to work with you to address these issues.

Thank you for your attention to this matter.