Local TV Responds to BMI’s Motion: “We’re Entitled to AFBL”

The TV Licensing Committee, through the named plaintiff in this case, WPIX, Inc., has filed its response to BMI’s motion arguing that it is not required to offer local television stations an adjustable-fee blanket license (“AFBL”) like the one DMX secured this past year.  The argument is decidedly straightforward.

(1) BMI is required to offer any user–including local television stations–a blanket license.

(2) Under United States v. Broadcast Music, Inc. (In re Application of AEI Music Network, Inc.), 275 F.3d 168 (2d Cir. 2001) (“AEI“), an AFBL is simply a blanket license with a fee structure that adjusts to reflect the degree to which a licensee has licensed the public performance rights to works within the BMI repertory directly from BMI-member publishers.

(3) Therefore, BMI is required to offer local television stations an AFBL.

As I noted before, BMI’s argument that its consent decree presents a local television station with a Hobson’s choice between a per-program license (that local TV claims does not work for them) and a traditional blanket license, the fee for which does not vary depending on the direct licensing activities of the licensee, is a difficult one.  As WPIX argues, the per-program alternative was inserted in BMI’s consent decree at the demand of the US government as a means of curtailing BMI’s market power, not as a shield behind which BMI can hide when a licensee requests an AFBL.

The brief is below:
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