Music In the Antitrust Crosshairs

File this one under “be careful what you wish for.” Two years ago, a group of major music publishers, along with ASCAP and BMI, which collect performance royalties on behalf of songwriters and publishers, asked the Department of Justice to consider changing how it enforces the antitrust consent decrees that have governed the two leading PROs, to allow publishers to withdraw digital rights to their repertoire from the PRO blanket licenses.

DOJ took it under advisement and this week gave its answer, according to a report by Billboard, and it was not at all what the publishers were hoping for.

elizabeth_warrenUnder the decrees, ASCAP and BMI are not allowed to pick and choose which songs in their catalogs to license. They must either grant a blanket license to the entire catalog or not at all. Thus, if a song is in their catalog for one use it’s in it for all uses.

The publishers raised the issue because they were unhappy with the royalty rate that internet radio services (cough — Pandora — cough) were paying under the compulsory performance license available to broadcasters, including internet broadcasters. Those rates are set by the rate courts that oversee the consent decrees and get collected by ASCAP and BMI. Having failed to persuade the courts to raise them, the publishers wanted to be able to withdraw digital rights to their songs in the PROs’ catalogs and negotiate directly with internet broadcasters.

This week, according to the Billboard report, DOJ said no. Read More »

Netflix Flexes Its Muscles

Having played a pivotal role in persuading the Federal Communications Commission and the Department of Justice to reject Comcast’s attempted merger with Time Warner Cable, Netflix has seemingly done an about face and given its blessing to Charter Communications’ bid to acquire TWC. In a letter to the FCC dated July 15, VP of global public policy Christopher D. Libertelli said, “Netflix  supports the proposed Charter – Time Warner Cable transaction if it incorporates the merger condition proposed by Charter.”

reed_hastingsKey to the apparent change of heart was precisely that “merger condition proposed by Charter,” specifically a commitment by Charter to offer settlement-free peering with edge providers like Netflix across its entire expanded footprint.

“Charter’s new peering policy is a welcome and significant departure from the efforts of some ISPs to collect access tolls on the Internet,” Libertelli wrote. “Charter’s policy will promote efficient interconnection with on line content providers and with the transit and content delivery services that smaller online content providers rely on to reach their consumers. Charter’s endorsement of the policy as an enforceable merger condition will ensure that consumers will receive the fast connection speeds they expect.”

Charter outlined the new policy in a separate filing with the FCC, also dated July 15.

Comcast’s successful effort to impose interconnection fees on Netflix was the main reason Netflix aggressively opposed Comcast’s bid for TWC. Peering agreements were also the main focus of Netflix’s lobbying in support of net neutrality, urging the FCC to require open interconnection policies as part of its Open Internet order (in the end the FCC did not include specific rules for interconnection arrangements in its order, but set up a process for reviewing complaints against ISPs brought by consumers or edge providers). Read More »

Comcast’s Bid for Time Warner Cable Gets Bundled Away

In his statement on Comcast’s decision to drop its $45 billion bid for Time Warner Cable, Federal Communications Commission chairman Tom Wheeler made it clear his agency was concerned about the merger’s potential impact on the development of the over-the-top video market:

Today, an online video market is emerging that offers new business models and greater consumer choice. The proposed merger would have posed an unacceptable risk to competition and innovation especially given the growing importance of high-speed broadband to online video and innovative new services.

nbc-comcastSo, too, was the U.S. Justice Department, according to a separate statement by Attorney General Eric Holder:

 This is a victory not only for the Department of Justice, but also for providers of content and streaming services who work to bring innovative products to consumers across America and around the world.

It was certainly a victory for content owners and providers, many of whom, such as Discovery and Netflix, had lobbied aggressively against the merger and cheered the deal’s collapse. But “content owners and providers” is a group that very much includes Comcast, by virtue of its owning NBC Universal, lending an unavoidable measure of irony to the outcome here. Read More »

Apple’s Least-Favored Network: NBC

Ever since the Wall Street Journal reported earlier this month on Apple’s evolving plans to launch a multichannel subscription streaming video service, much has been made, largely by those already inclined to be suspicious of Comcast’s motives, of the reported absence of Comcast-owned NBC from the talks Apple is said to be holding with the other broadcast networks.

apple_tv“It appears from press reports that Comcast may be withholding its affiliated NBC Universal (“NBCU”) content in an effort to thwart the entry of potential new video competitors. Apple reportedly is planning a Fall 2015 launch for an over-the-top (“OTT”) bundle of TV channels,” the consortium Stop Mega Comcast wrote to the FCC last week. “If the reports are accurate about Apple, it would be consistent with Comcast’s prior conduct in attempting to leverage affiliated content to thwart rival services, even when faced with merger conditions.” Read More »