In the “saw this coming” category, BMI has filed a motion in the SDNY requesting a ruling that its Consent Decree does not require it to offer an adjustable-fee blanket license (“AFBL”) to local television broadcasters. In late 2009, the Television Music License Committee (“TMLC”), which represents approximately 1,200 local television broadcasters in their negotiations with BMI, ASCAP and SESAC over the licensing of public performance rights for the music contained in all programming that isn’t supplied to the local broadcasters by ABC, CBS, NBC and Univision, filed a rate case against BMI seeking an AFBL like the one DMX has secured. See WPIX, Inc. v. Broadcast Music, Inc., 09-civ-10366-LLS (S.D.N.Y.)
In its February 16 filing, which is provided below, BMI argues that its Consent Decree requires it to provide a per-program license to broadcasters but not to non-broadcasters and to provide an AFBL to non-broadcasters, but not to broadcasters. According to BMI, because Sec. VIII(B) of its Consent Decree deals specifically with granting a per-program license to broadcasters, the operative language in Sec. XIV(A) regarding providing a license to “any, some, or all” of BMI’s repertory–the basis on which the Second Circuit concluded that BMI was obligated to provide an AFBL to the non-broadcaster applicant in United States v. Broadcast Music, Inc. (In re AEI Music Network, Inc.), 275 F.3d 168 (2d Cir. 2001)–does not apply to broadcasters. According to BMI, when it agreed to modify its Consent Decree to add Sec. XIV in 1994, it did not intend to modify its obligations under Sec. VIII, which was part of the original 1966 version.
The significant hurdle over which BMI must leap, however, appears to be the logic underlying the AEI decision. There, the Second Circuit reversed Judge Stanton’s ruling at the SDNY and found that an AFBL was a blanket license that differed only in way its fee is calculated. BMI acknowledges that it still provides a blanket license to local television broadcasters, in addition to the per-program license it also offers. BMI is apparently arguing that because it offers this per-program license, under which local television broadcasters can reduce fees to BMI by directly licensing some or all of its music needs, the fact that the Second Circuit concluded that an AFBL is exactly like a traditional blanket license but for its fee structure is irrelevant. In other words, BMI only has to offer ONE form of license under which fees can be reduced through direct or source licensing. For non-broadcasters, which aren’t entitled to a per-program license, BMI has to offer the AFBL. For broadcasters, which are entitled to the per-program license, BMI doesn’t have to offer the AFBL–the per-program license is enough.
Unfortunately for BMI, Judge Stanton is still the presiding judge in the BMI rate court, so he will hear this motion. Since Judge Stanton ruled in BMI’s favor in 2000 when this issue was litigated by a non-broadcaster only to be overruled by the Second Circuit in 2001, I’ll bet he will follow the safe route and cite the AEI decision as the applicable precedent and let the Second Circuit distinguish if they want. I’ll also bet the Second Circuit won’t distinguish because the rationale of the AEI decision is the same here: the TMLC is requesting a blanket license–which BMI acknowledges it has to provide–that differs only in the manner in which fees are calculated.
BMI’s motion is here:
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