Opinion

The Music War May Determine Jeffrey Rosen’s Success at DOJ

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Posted: Dec 24, 2020 12:01 PM
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The Music War May Determine Jeffrey Rosen’s Success at DOJ

Source: AP Photo/Patrick Semansky

With William Barr providing a December 23 resignation date from his Attorney General post, all eyes are now on Jeffrey Rosen, Barr’s deputy, who will take the Department of Justice’s reins in an acting capacity after Wednesday. How will the change of leadership affect the Trump Justice Department’s last few weeks on the job?

Broadly, it won’t. The DOJ has already concluded the vast majority of its landmark initiatives, including filing its Facebook to Google lawsuits. Because the DOJ is typically bound very closely to precedent, the next few weeks of the Rosen DOJ will look very similar to how the first few months of the Biden DOJ will — a boring continuation of the status quo. It will just feature a Justice Department that slowly works with the courts to close the books on Barr’s antitrust cases.

That said, there is one outstanding DOJ agenda item still in need of closure, and Rosen can significantly impact its fate. That’s the Department’s looming decision on whether to weaken the Never Trump Big Music monopolies’ shackles or keep them as-is. 

Since September of last year, the Antitrust Division has been reviewing the antitrust consent decrees between ASCAP and BMI, the nation’s two biggest music monopolies, and the DOJ. The head of that Division recently said that the DOJ would like to make a final decision on the decrees before the end of January, meaning that Rosen should have substantial input over the Department’s ultimate determination.

Rosen, a government official who has been attuned to the ins and outs of the regulatory state for years, must be aware of the music industry’s predatory past.

When it comes to running roughshod over small businesses and consumers, ASCAP and BMI — the subjects of the ongoing DOJ investigation — are without question at the top of this long list in the music industry. Despite the music industry’s general rapport with Democrats, they have long drawn the criticism of both sides of the aisle, from Breitbart contributors to former Clinton antitrust officials to a diverse, bipartisan coalition in Congress. And for good reason.

These two monopolies, which control a combined 90-percent of music’s public performance rights, always seem to have predatory, anti-free market ambitions up their sleeves. The long list of sins they’ve been accused of includes but is not limited to price-gauging and withholding songs in their catalogs to raise rates. For a rich music executive that relishes nothing more than lining his pockets, these tactics may represent good policy. But for restaurants, coffee shops, small music venues, and radio stations that require licenses to keep their business running, they are nightmares scary enough to keep them up at night.

That’s why the DOJ signed antitrust consent decrees with them in the first place: to set rules that prohibit them from committing illicit, anti-competitive activity with their market share. The decrees state that they must license all of their songs to businesses through one all-encompassing license — meaning no price-gouging, no discriminating on the basis of one’s size or political beliefs, and no withholding songs. 

These rules aren’t controversial; they’re common sense. Still, ASCAP and BMI haven’t even seemed disciplined enough to abide by the agreements that they signed. Over the years, their seeming recalcitrance has culminated in litigation with the DOJ and even a giant settlement fee paid to the Department.

And now, despite their ostensible outright disregard for law and order, they’re asking the DOJ to weaken their agreements. On what planet does this make sense?

In an open letter to the DOJ, ASCAP and BMI have claimed that so much has changed in the music industry since the decrees’ signing that changes are long overdue. Their letter, while true, is disingenuous. A lot may have changed about the music industry as a whole, but little, if anything, has changed about ASCAP and BMI themselves. The two monopolies still have the same market share, same predatory instincts, and same disregard for the law. Why would anyone in the government lift even a pinky finger to help these unhinged monopolies when their interests are so clearly unaligned with consumers and small businesses?

Weakening the ASCAP and BMI consent decrees would come while the nation expects 100,000 restaurants to close by the year’s end and 90-percent of its music venues to shutter within the next few months. The move would also come at the same time that a decade’s-long trend of coffee shop growth is coming to a crashing halt and a tsunami of hotel closures in the U.S. continues. In this time of great vulnerability, these businesses need the government’s support, not even more roadblocks to their operational success.

There is also reason to believe that modifying the ASCAP and BMI consent decrees could affect the outcome of the Trump DOJ’s Google investigation that Rosen led. In The Washington Times, Turning Point USA Chairman Charlie Kirk explained that the resulting precedent from weakening “what is effectively the lowest common denominator for antitrust law” (the ASCAP and BMI decrees) could effectively limit the antitrust tools the DOJ can use against Big Tech. That would be a shame because, as I explained earlier, the DOJ has already filed its Google lawsuit, and absent a quick change to precedent, the Department already appears poised for a big win.

Over the next few weeks, this fight with Big Music may be the extent of Rosen’s excitement; that said, it’s far from a trivial battle. It’s an important one that could affect the fate of countless businesses. Here’s hoping that Rosen agrees with his predecessors and stands firmly on the pro-consumer side of this issue. Legal and political analysts and business owners in countless industries won’t soon forget it.

Julio Rivera is a business and political strategist, the Editorial Director for Reactionary Times, and a political commentator and columnist. His writing, which is focused on cybersecurity and politics, has been published by websites including The Hill, Newsmax, The Washington Times, Real Clear Politics, Townhall, American Thinker and many others.