Warns that Department’s interpretation of consent decrees “would turn the common, ordinary, everyday practice of songwriting in Nashville upside down.”

United States Senator Lamar Alexander (R-Tenn.) yesterday discussed how outdated 76-year-old consent decrees are hurting songwriters in Nashville, preventing them from being paid fair market value for their work. He warned that a new interpretation of the consent decrees that require full-work licensing instead of the current practice of fractional licensing, “would turn the common, ordinary, everyday practice of songwriting in Nashville upside down.”

In 1941, based on concerns over anticompetitive business practices, the Justice Department brought antitrust lawsuits against ASCAP and BMI.  The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) act on the behalf of songwriters to collect royalties from all the people that want to use their songs – which is how songwriters get paid. The organizations settled the lawsuits through two separate consent decrees that govern the their activities and established the two federal rate courts that determine “reasonable” royalty rates.

Alexander told a story about co-writing a song – he chatted years back with an older couple who told him they were “falling apart together.” Alexander mentioned this to Lee Brice – and he, Billy Montana and Jon Mckensie Stone wrote a song, “Falling Apart Together,” that Lee Brice put on one of his albums. Just for suggesting the title, Alexander received ¼ interest in the song – and last year got a check for $110 in royalties.

“We have thousands of songwriters in Nashville, which is the center of songwriting. Most of them are waiters, bus drivers and teachers in the meantime hoping to make a big hit. Seventy-six years ago, the Justice Department had some antitrust concerns with the two organizations that make sure songwriters are paid for their work… Under these outdated, 76-year-old consent decrees, you have rate courts that set what songwriters get paid that doesn’t reflect market value. That is the first problem,” Alexander said.

“The second problem is that the Justice Department makes interpretations based upon the consent decrees. One recent interpretation would turn the common, ordinary, everyday practice of songwriting in Nashville upside down.”   

“Consent decrees – which can go on forever – are a burden to states, a burden on private citizens and no way to govern a free society,” Alexander said today to Rod Rosenstein, Deputy Attorney General of the U.S. Department of Justice, urging Rosenstein to review outdated federal consent decrees.”

In August 2016, the Department of Justice announced a new interpretation of the ASCAP and BMI consent decrees that requires “full-work licensing” instead of the current practice of “fractional licensing.” Alexander argued the Department’s interpretation to require “full-work licensing” would require songwriters to spend their time hiring lawyers and comparing notes to make sure they are all represented by the same group instead of writing songs. Alexander added that the consent decrees governing ASCAP and BMI were put in place in 1941, which “seems too long to keep something out of the hands of democracy.”

Rosenstein said that he would think very seriously about the issues Sen. Alexander raised. 

Video of their exchange is available here.

In 2005, Alexander introduced bipartisan legislation—Federal Consent Decree Fairness Act—based on a book called, Democracy by Decree: What Happens When Courts Run Government, that would have allowed newly-elected governors, mayors and legislators to file motions to vacate consent decrees and put those issues back out into the democratic process.