I.

Attempts to Identify Licensed Music

In 1991, my station began an effort 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 five weeks to receive a

response. The list was limited to the current status of the titles and did not include the date on which the titles would move into the public domain.

Mr. Chairman, we determined that this "service" was worthless to us. We simply could not identify the licensing status of the music we performed by waiting five weeks to receive forty titles. Our total repertoire is over forty thousand titles. of that total, we regularly perform eight thousand 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 eight thousand titles. In this age of computerization, that is inexcusable.

We next sought to obtain access to ASCAP and BMI's

identification of ASCAP music are the ASCAP List of Members

and the ASCAP Symphonic Catalog.

The latter document is

seventeen years out of date, and does not include

instrumental and 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 have licensed only part of his or her repertoire to ASCAP.

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

II.

Our Experiences with the Per-Program Licenses

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 works we perform died before this century. 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.

Thus, despite the

When we went back to look at the results of 1992 we were shocked. Based on our best understanding of ASCAP's

classical repertory, we estimated that approximately 20% of

our programs contained ASCAP music. This would have led to a license fee of about 75% 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 licenses we were required to send ASCAP and BMI reams of monthly music reports generated by our computer system. In this we were 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 per-program licenses. In our

reports we identified approximately 22% of our weighted hours as containing ASCAP music.

When ASCAP sent our monthly music reports back, we discovered they had claimed that 30% of our weighted hours contained ASCAP music. As a result, after all of the effort, we wound up paying more than 99% of the amount we would have paid under the blanket license as a per-program fee in 1992.

ASCAP has not told us the basis for their claims, so we have not determined if they are correct. My Program Director 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, Rachmaninoff's popular piano concerto number 2, was claimed by ASCAP during 1992. Even if ASCAP's 1992 claims were correct, it highlights the difficulty that the

current system presents for the correct identification of licensed music. If, on the other hand, ASCAP is wrong, it indicates a different, and in some ways 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% of our programming periods contain any BMI music. And it is reasonable to expect that 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% of what we would have paid under the blanket license.

our fee is much higher than our use would justify.

III. Our Music Use

Again,

Based on a two month sample of the music reports returned by ASCAP, we have been able to estimate that approximately 17% of our repertory 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% 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 fees. Under a rational system of music licensing,

the use of a single ASCAP title in 30% 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.

Despite

Mr. Chairman, the current system of music licensing simply does not offer a fair alternative to stations like ours that use limited amounts of copyrighted music. 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 realistically determine whether the copyrighted music is worth performing, whether we should perform more music from the public domain, or whether we should seek alternative sources of programming. choice that every consumer should have the right to make. After this experience, I can understand why so many stations simply throw up their hands and take the blanket license.

This is a

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

All we ask is that we be 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.

I urge you to consider

the recommendations set forth in Mr. Atsinger's testimony.