legislation could be crafted to provide that ASCAP and BMI conduct should be considered relevant in defense of an

infringement action. At minimum, the Subcommittee should

consider an investigation into ASCAP/BMI litigation practices and their connection to licensing.

We thank the Subcommittee for its attention to these important matters. My colleagues and I would be happy to assist the Subcommittee in any way that we are able.

Mr. HUGHES. Ms. Meloy, welcome.

STATEMENT OF CATHERINE A. MELOY, GENERAL MANAGER, WGMS RADIO STATION, ON BEHALF OF THE NATIONAL RELIGIOUS BROADCASTERS MUSIC LICENSE COMMITTEE

Ms. MELOY. Thank you, Mr. Chairman.

As you stated, I am the general manager of radio station WGMS, which is an intrical part of classical music here on Capitol Hill, and in the entire Washington, DC, area. We have been in this format, and we are the longest running format in Washington, since 1947. The station is a member of the Classical Music Broadcast Association. I, in fact, was president of that association in 1992 and 1993. We are represented in our licensing dealings with ASCAP and BMI by the NRB Music License Committee, chaired by Mr. Atsinger.

I appreciate the opportunity to appear today, and to tell you, firsthand, about the problems experienced by our station in its attempt to control its music use and its licensing costs. Our experience provides an excellent example of the problems discussed by Mr. Atsinger, problems that can result from the combination of ASCAP's refusal to identify its music and the inequities of the perprogram license.

In 1991, my station began an effort to identify the licensing status of the music it played. We were told by ASCAP that it would provide information on specific titles if a list was submitted to its New York office for review.

In the fall of 1991, we submitted a list of about 40 compositions. It took more than 5 weeks to receive a response. And that response was a list which was limited to only the current status of the titles, and it did not include the data on which the titles would move into public domain.

Mr. Chairman, we determined that this service was really worthless to us. We simply could not identify the licensing status of the music we performed by waiting 5 weeks to receive only 40 titles.

Our total repertoire is over 40,000 titles. Of that total, we regularly perform 8,000 titles-more than 1,800 titles per month. At that rate, it would have taken 200 lists or more than 20 years to identify our 8,000 titles. In this age of computerization, that is inexcusable.

We next sought to obtain access to ASCAP and BMI's computerized data base of titles. Written requests were made to both organizations. Both ASCAP and BMI refused to grant us access to use their data base.

The only other resources available to users for identification of ASCAP music are the ASCAP list of members and the ASCAP symphonic catalog. Now, the latter document, the ASCAP symphonic catalog, is 17 years out of date, and does not include instrumental or chamber music.

Even if a title is in the symphonic catalog, it may have long since passed into the public domain. The list of members is equally worthless, as it does not indicate what compositions have passed into the public domain, and does not distinguish the compositions of a composer that may license only part of his or her repertoire to ASCAP.

Based on ASCAP and BMI's refusal to provide meaningful identification of their repertoires, we had no choice but to abandon our efforts as a waste of time. We simply could not dedicate the resources to this fruitless effort.

In spite of our inability to learn about the license status of the music we performed, we were firmly convinced that the overwhelming majority of our music is in the public domain. After all, most of the composers whose work we performed died before this century.

Thus, despite the uncertainty and the inability to control our performances of licensed music, we decided to use the per-program form of license issued by ASCAP and BMI.

When we went back to look at the results of 1992, we were shocked. Based on our best understanding of ASCAP's classical repertoire, we estimated that approximately 20 percent of our program contained ASCAP music. This would have led to a license fee of about 75 percent of the fee we would pay under the blanket.

While even this would have been unreasonably high for that amount of music, we figured it was better than paying the blanket license fee.

Under the per-program license, we were required to send ASCAP and BMI reams of monthly music reports, generated by our computer system. In this, we are fortunate. At least our play list is computerized. Before computerization, it required a substantial portion of the time of one employee, merely to coordinate our perprogram license reports.

In our reports, we identified approximately 22 percent of our weighted hours as containing ASCAP music. When ASCAP sent our monthly_music reports back, we discovered that they claimed 30 percent of our weighted hours contained ASCAP music.

As a result, after all the efforts, we wound up paying more than 99 percent of the amount we would have paid under the blanket license as a per-program fee in 1992. I want to state that one more time-99 percent of the blanket license fee in 1992.

ASCAP has not told us the basis for their claims, so we have not determined if they are correct. My music director, Jim Allison, has advised me that at least one of the titles that had been identified as being in the public domain on our 1991 list of 40 titles, that was Rachmaninoff's popular "Piano Concerto Number 2," was claimed by ASCAP in 1992.

Even if ASCAP's 1992 claims are correct, it highlights the difficulty that the current system presents to the correct identification of the licensed music. If, on the other hand, ASCAP is wrong, it indicates a different, and in some ways, a much more serious problem of false claiming.

We have also used a BMI per-program license. BMI's classical music repertoire is so small that only a little more than 2 percent of our program periods contain any BMI music. And it is reasonable to expect these programs contain only one BMI title. Thus, we use BMI music at a rate of less than one-fiftieth of a popular music station.

Nevertheless, in 1992, for example, we paid more than 31 percent of what we would have paid under the blanket license. Again, our fee is much higher than our use would justify.

Based on a 2-month sample of the music reports returned by ASCAP, we have been able to estimate that approximately 17 percent of our repertoire has been claimed by ASCAP.

Even assuming all of the titles claimed by ASCAP are ASCAP's, this is a far smaller percentage of ASCAP music than the 50 percent that most popular music stations perform. Nevertheless, our fee was just the same as if we used ASCAP music in every one of our programs.

Under a rational system of music licensing, we would be able to control our music use in order to control our licensing fee. Under a rational system of music licensing, the use of a single ASCAP title, in 30 percent of our program hours, would not cost us as much as the use of ASCAP music 24 hours a day. The system that exists today is simply not rational.

Mr. Chairman, the current system of music licensing does not offer a fair alternative to stations like ours that use limited amounts of copyrighted music. Despite our attempts, we have been stymied in our efforts to learn who controls the music we use.

Until we have that information, we can not realisticly determine whether the copyright music is worth performing, whether we should perform more music from the public domain, or whether we should seek alternative sources of programming.

This is a choice that every consumer should have the right to make. After this experience, I can understand why so many stations simply throw their hands up and take the blanket license.

I believe, and very strongly, that classical music stations play an important role in the culture of our Nation. But we are neither rich nor are we powerful, and there are not many of us. Even joined with other formats, we cannot spend millions of dollars to obtain licensing reform in the courts, nor should we have to.

All we ask is that we have the opportunity to pay for what we play on a reasonable basis, and that we be given the opportunity that all other consumers enjoy, to decide on our own what and how much of somebody's product we want to buy.

Thank you for your attention today. I urge you to consider the recommendations set forth in Mr. Atsinger's testimony.

Mr. HUGHES. Thank you, Ms. Meloy.

[The prepared statement of Ms. Meloy follows:]

PREPARED STATEMENT OF CATHERINE A. MELOY, GENERAL MANAGER, WGMS RADIO STATION, ON BEHALF OF THE NATIONAL RELIGIOUS BROADCASTERS MUSIC LICENSE COMMITTEE

Thank you Mr. Chairman.

My name is Cathy Meloy. I am

the General Manager of Radio Station WGMS, the station that has been an integral part of classical music here on Capitol Hill and in the entire Washington, D. C. area since 1947. I am sure you and many of your colleagues have heard our signal in a variety of places here on in the Capitol.

We

WGMS was the first FM signal licensed to Washington. have the distinction of being the longest running consistent format in the city. The station is a member of the Classical Music Broadcasters Association ("CMBA"). In fact, I was President of CMBA during 1992 and 1993. We are represented in our licensing dealings with ASCAP and BMI by the NRB Music License Committee chaired by Mr. Atsinger.

I appreciate the opportunity to appear here today to tell you first hand about the problems experienced by our station in its attempt to control its music use and its licensing costs. Our experience provides an excellent example of the problems discussed by Mr. Atsinger that can result from the combination of ASCAP's refusal to identify its music, and the inequities of the per-program license.