Robert Bell: Will Mike Lee protect Utah’s local music scene?

UNITED STATES - SEPTEMBER 13: Sen. Mike Lee, R-Utah, attends a markup of the Senate Judiciary Committee in Dirksen Building on September 13, 2018, where Republicans voted to move the committee vote on Supreme Court nominee Brett Kavanaugh to September 20. (Photo By Tom Williams/CQ Roll Call) (CQ Roll Call via AP Images)

At his July 23 antitrust oversight hearing, will Utah’s Sen. Mike Lee, the chairman of the Senate Antitrust Subcommittee, protect the Utah music industry?

It is no secret that Utah has one of the most vibrant local music scenes in the country. From David Archuleta to Donnie and Marie Osmond to Jewel, the list of nationally recognized names that have come out of this state is a long one. While many states have talented music pools, few have as many acts that rise to cultural prominence as does The Beehive State.

The reason appears to be the overwhelming amount of passion and support its artists receive. So many small businesses in Utah, from coffee shops to restaurants, support local acts through open-mic nights – events that are highly popular and trafficked within the state, which everyone from Brady Parks and Sydney Macfarlane of The National Parks to Brandon Flowers of The Killers, used to gain the recognition that jumpstarted their careers.

Unfortunately, however, this arrangement that has allowed many of Utah’s local artists to attain a launchpad to fame is now coming under threat from an advocacy campaign in Washington, D.C., — one that Lee helped squash before, and one that he will hopefully help stop again in the coming weeks.

The primary reason that so many small businesses can promote local music within the state is that 78-year-old antitrust agreements, known as consent decrees, prevent two cartels, called ASCAP and BMI, from price-gouging the fees to play music.

As the industry’s two leading pipers, ASCAP and BMI, which oversee 90-percent of music’s public performance marketplace, perform an important market function and deserve to be paid. The issue is that the two groups have a history of using their high market share to engage in price-gouging and require oversight.

Although it is critical that their guardrails remain untouched to keep artists’ launchpads open, just weeks ago, the Department of Justice’s Antitrust Division responded positively to the organizations’ pleas to relax their restraints by initiating a review process.

When the DOJ has showed signs of being open to appeasing the music cartels in the past, Lee, Congress’ leading antitrust cop, has always taken leadership and served as a significant check on their power.

For example, in 2015, when the Obama administration began reviewing the music consent decrees, Lee went out of his way to hold a music licensing hearing that helped guide the DOJ in its decision to keep the agreements as-is. Ever since, he has remained as diligent as ever in keeping these institutions in check, asking decision-makers about the status of their consent decrees as recently as last October.

With the Trump administration’s DOJ opening a new review into the music decrees just weeks ago, it is essential that Lee get back to work protecting these free market guardrails that hold Utah’s music scene together.

The recently-passed Music Modernization Act states that “the Department of Justice shall provide timely briefings upon request of any Member of the Committee on the Judiciary of the Senate” regarding the status of any future consent decrees reviews. As such, it would be prudent for Lee to reserve a few minutes of his July 23 antitrust oversight hearing to assess the department’s progress and thinking thus far. After all, the DOJ is already over a month into its review of the music consent decrees.

Failing to obtain answers from it in the upcoming antitrust hearing can potentially make any future local music protection efforts by Congress come up too little, too late.

Robert Bell, Salt Lake City, is a Utah-based small business owner who hosts and supports live music.