into the United States. American music is used throughout the world and money flows into the United States

Mr. ZELIFF. I appreciate that, and we'll certainly take that into consideration. When you look at the process of charging fees, how do you do it, what's your formula? If you can just quickly, I've just got a series of questions here, if we could just kind of quickly answer those just for the record.

Mr. BERENSON. Congressman, it really depends upon the particular universe you're referring to. Let me give you an example. The hotel, we were talking about hotels before, BMI, and I know ASCÁP does, negotiates with the industry Committee, the hotel and motel association.

Negotiations are set, then they go on and ultimately-a reasonable license fee is agreed to between the performing rights organization and the industry association. Then that fee is-basically offered to members of their constituency, the hotel industry.

With respect to the restaurateurs, we have I know BMI and I know ASCAP also has attempted to sit down with the National Restaurant Association and negotiate a license fee structure for the restaurant industry. We have been met with, "No, we cannot, we don't have that authority, or we don't want to."

Mr. ZELIFF. I understand there are obviously strong feelings on both sides, but did they not attempt to negotiate-I don't want to referee that battle. On the local universe how much revenue does ASCAP collect? How much does BMI collect? What is the total revenue you're taking in, and what's the bigger picture here?

Mr. BERENSON. I cannot speak for ASCAP, obviously, Congressman. With respect to BMI, considering revenues generated from all sources within the United States, and as I mentioned, American music is very popular outside of the United States, so we have a substantial amount of revenue coming from overseas, we're talking in the neighborhood of $325 million.

Mr. ZELIFF. So, that's a fair amount of change. What would you estimate ASCAP, are they bigger or smaller?

Mr. BERENSON. I believe they've taken

Mr. ALGER. Over $40 million.

Mr. ZELIFF. More than $40 million. Again, I don't want you to misunderstand where I'm coming from. How do we legitimately pay for legitimate costs to folks who legitimately deserve payment, and not necessarily five times but in a fair process, how do you compensate your representatives? How are they trained? I mean, are they lawyers, are they salesmen, are they independent contractors, do they get paid by commission?

Mr. BERENSON. I'm sorry, sir. I didn't have

Mr. ZELIFF. The people who you send out from BMI to call on individual businesses.

Mr. BERENSON. What we have, with respect to BMI, and I cannot speak for ASCAP in this case, we have been attempting to license-obtain licenses via telemarketing, because obviously the cost of sending someone out is very expensive. They are not lawyers, they're people.

Mr. ZELIFF. What

Mr. BERENSON. When we have a situation where a restaurateur or a hotel, a music user, for some reason wants to meet with some

one, we will send out a representative to meet with them. Those people are on salary, and there are incentives given by BMI based upon production, obviously.

Mr. ZELIFF. Let me just ask you two quick questions here. Do you think it's fair for one court to have jurisdiction, and is it fair to have people have to go to New York City? Do you think that's fair in terms of listening to disputes over licensing fee rates, and isn't there some fairer way?

Mr. BERENSON. In my estimation, Congressman, it is a very fair way, and let me explain why. Both ASCAP and BMI are under constraints by the consent decree to treat similar music users the same. With having a court, a judge, hearing this, it will be basically consistent, making sure that everything is in proper perspective.

When you have arbitrations you will have different, basically, different answers and different results throughout the country, which might very well cause a performing rights organizations to be in violation of it's consent decree by not treating someone similarly situated-users the same.

As an example, if restaurateur A on Main Street, arbitrated with BMI, and the arbitrator said you know the perfect fee for that islet's say a $150 a year, it doesn't make a difference. Restaurant B which is right across the street and down the street on the same Main Street said you know I'm going to arbitrate with BMI and you have a different arbitrator and he might say-he or she might say, Oh, yeah, I think the fee should be $250 a year.

Restauranteur A is not going to be happy-restaurant A will be very happy, restaurateur B will not be too happy that he's paying more than the guy across the street.

When you have one court administering these issues, you will have continuity, everyone is treated the same. So, you will be paying the same license fee rate, and I think the main thing, on a vast history of rate court proceedings in most instances, and I am speaking for BMI now, we haven't gone through-one rate court proceeding. Our rate court just came in about 2 years ago. We want to negotiate, and we have been successful in negotiations.

There has been the claim of cost et cetera, yeah, if you have arbitrations, notwithstanding the fact that the gentleman to my left here is not a lawyer and he doesn't want to retain counsel, you're going to have an opportunity to be represented and it's going to cost money.

Mr. ZELIFF. Well, let me just finish up and just make a kind of a statement. From a small business-it's easy for all of you to say, "OK, we'll just go get a lawyer." You're trying to keep up with all the other pressures of the business and you're trying to make ends meet, you're trying to wade through all kinds of different Government regulations, I mean you got to really be there to see it happen.

Those that haven't been there it's easy to say it's only a $1.10 a day, $1.58 a day. What I'm trying to do is I'm trying to come up with some way that small business people can understand. Do you need a lawyer, do you have to go to New York to settle a dispute, if you can't afford to go to New York

Mr. ALGER. Congressman, the Fourth Circuit Court in a 1994 decision stated that, "such a system of arbitration would subject ASCAP members to the staggering cost of participating in fee determination proceedings throughout the country." There's a portion to Section IV(c) of the AFJ which prevents ASCAP from, "entering into, recognizing, enforcing, or claiming any rights under any license for rights of public performance which discriminates in license fees or other terms and conditions between licenses similarly situated." So, there's some basis for the reason that one court is the center for solving those cases.

Mr. ZELIFF. Very well. All you have is your talent and your brain, well, that's all we have too. Very much similar kinds of operations. I accept your point, and I'd like to move on to a guy from Missouri who has a lot of country western music in his State.

Mr. SKELTON. We do that. First let me say to Pat Alger, I can't help but admire those of you who do have talent and share it with us, and I have great feelings for what you and your colleagues do. Maybe this is just the country lawyer in me coming out, I have to listen to all the witnesses, I just wonder whether or not whether everyone is assuming that all song's been written since 1914, since ASCAP was formed, for instance, what if Stuart Epperson's religious station says we're not going to do anything but play the old golden oldies-might forces is our God, 1909 or 1911 the Old Rugged Cross was written. Is ASCAP going to come and say hey what about us? And he says, no. My song's been written since 1914. What about the football games at those Dan Emmit song that many of us sing in the southern blood's in us like "Dixie" what about Steven Foster's songs? They don't come under all of this too. Where do we go from this? Where do we split in? I'm bothered with this being a country lawyer. Anybody?

Mr. BERENSON. Anyone whether it be Mr. Epperson's stations or a restaurateur, if they wanted to basically say, I'm just going to be playing public domain music, they don't need a license from BMI, they don't need a license from ASCAP, they don't need a license from SESAC. If I may just give an example, it will at the timewell-the answer's basically there's no need for a license. ASCAP would not ask for a license under those circumstances. However, at this particular juncture most people don't limit themselves to public domain music, Congressman.

Mr. SKELTON. How do you split it out? If I were to listen to Stuart Epperson's station there's some old songs, couple of which I did mention, how did you split that out, one or two or three new ones. Epperson's repertoire which you would be responsible for, it's not available. Then the Congress shall hear all along we would like a user friendly repertoire, but that does not have a disclaimer so that we can look at the list of music that you are discussing so that we're not in a position of having to buy something, when we don't know what we're buying.

Mr. ZELIFF. You have a brilliant idea one morning, and you get up and you write yourself a song all day long, and it really is a dandy; and you immediately copyright it, and it is a dandy. Hey, "Garth, Garth, I got a dandy." He says, "Hum it to me," and you do. He says, "I'm going to go from here." Now, you sell this to a

publisher. What do you do after you assume you immediately copyright it?

Mr. ALGER. Not necessarily. When you are a professional songwriter, eventually after some success you become affiliated with a publisher so that normally any song you write would be turned over to the publisher. If we proceed to promote it, as you're saying, to Garth Brooks, we would indeed copyright it and we would first probably make a demonstration tape.

Mr. BONO. When you write a song, what you do first is get the song published. Either you publish it yourself or you publish-copublish it with a publishing company, and after you publish it in the process of publishing it is copyrighted and at that point when it starts getting played on the air BMI and ASCAP then know who the publisher and who owns the copyright.

So they collect-when Mr. Sensenbrenner pointed out how much money's being collected they are collecting for little songwriters. There are some songwriters that have four songs that give them an annuity for the rest of their lives. So, this is not two major corporations just collecting this multitude of millions of dollars and keeping it. They distribute it to every songwriter in America. So, when they publish it is then played on the air and we need somebody to keep a cohesive record for us of how it's played and then we get our performance royalties from those songs and that as I say can be annuities for many, many songwriters and many little guys it's not big guys.

Mr. SKELTON. Congressman-and Mr. Alger

Mr. ALGER. Money follows the dollar, so to speak. If I have a song put on country stations those songs are identified. Eventually, dribbles and drabs add up to dollars and every quarter I get a check. This is essentially the way we're paid.

Chair MEYERS. Mr. Berenson, would you like to respond to that? Mr. BERENSON. Just they're numbers. We're talking about discussing the money coming in; right? BMI represents 120,000 different songwriters and composers. Approximately 60,000 music publishers. We have 180,000 different affiliates, and BMI's operating as a nonprofit organization. We don't keep any money. All the money, as in the case of ASCAP goes to the creators of the music. Chair MEYERS. Are you unwilling to publish a list of the music and of the composers that you represent?

Mr. BERENSON. Madam Chair, we do. As was said, when we opened. BMI offers for sale at $25, our cost, a CD Rom, which is updated I believe once a year or every 6 months, I'm not exactly sure. We offer an 800 number for people to call and ask us whether specific music compositions are in our repertoire. The restaurateurs were saying that this was something that they had to have. BMI kept track of the number of calls we received from restaurateurs calling to find out what was in the BMI repertoire. Less than 10 have ever come in from restaurateurs. We offer on the Internet our repertoire to anybody who has access to a computer, at no cost, can dial it up and see what is in our repertoire.

Chair MEYERS. I think I'd like to pursue that on my own time a little later, but I would like to refer to Ms. Kelly, who is our next questioner.

Ms. KELLY. Thank you, Madam Chair.

Chair MEYERS. Could we have that repertoire for our records, please?

Mr. ALGER. I have a copy of my repertoire which was run off of ASCAP's system yesterday. If you would like to see a copy.

Mr. EPPERSON. Are we speaking of repertoires without disclaimers?

Chair MEYERS. I don't know what the disclaimer says.

Mr. EPPERSON. That in effect, this repertoire is something that we cannot stand by in terms of figuring fees to radio stations and restaurants.

Mr. BERENSON. BMI has a disclaimer. It's accurate as of the time it was prepared. I can't say that it's an accurate item after its prepared. It just doesn't work that way. The reason compositions take a while to be put on the system is, as Congressman Bono said, first the music is created, it is then published, and then it has to be put in BMI's repertoire. We have to receive notification of it to put it on our system.

Chair MEYERS. We have had a request for this for the record, and I presume that you will profide it if that's the most accurate. Mr. LAFALCE. May I ask also that you simply advise the Committee of how to access this.

Mr. ALGER. Printout also, Madam Chair, of our current listings. Chair MEYERS. Thank you very much. Ms. Kelly.

Ms. KELLY. Thank you, Madam Chair. I want to thank all of the witnesses here who highlighted a lot of different points. I have basically three questions that I'd like fast answers too because my time is also limited here.

I want to pick up on something that our-that the Chair has brought up. I'd like to ask Mr. Berenson how you determine what songwriters get, what amount of fees?

Mr. BERENSON. I speak for BMI here. This information is put into a computer and statistically it-an independent agency comes to BMI-economists, and checked our sample and it was found to be 99.9 percent accurate. So using this survey as basis, we pay our affiliates for radio performances. Concert music as an example, when I say "concert music" I'm referring to-let's assume classical music

Ms. KELLY. I don't mean to cut you off, but I have very limited time and I want to go to the other part of that. What amounthow do you determine the amount of the fee?

Mr. BERENSON. BMI publishes a payment schedule. Which says you'll get paid-any affiliate will get paid so many, so many cents per performance. So, many dollars a performance. We have a published schedule that is available to anyone. If you would like I would be more than happy to supply you with a copy of it.

Ms. KELLY. I think that's something the Committee would like to see.

Mr. ALGER. ASCAP has its own system.

Ms. KELLY. If ASCAP has its own system, I think it would be helpful to us to have a chance to see that also.

Ms. KELLY.I also want to know what percentage of the money that ASCAP and BMI collect for the licensing fee goes into the administration cost of the operation and the percentage of the money