portion of their broadcast hours, and thus may be able to reduce the fees they pay under the per program license. Testimony: Religious, classical music and Facts: The broadcasters who testified protested that their license fees are too high, but did not disclose the amounts they pay to ASCAP in license fees, and the amounts their stations generate in revenues. The fact is that they pay less for an ASCAP per program license than they would pay under are ASCAP blanket license. Moreover, the fee provisions contained in the ASCAP per program licenses have been approved by the United States District Court in proceedings under the ASCAP Consent Decree. The blanket and per program fees were negotiated with an "AllIndustry" committee of radio broadcasters. The fee levels negotiated were, in effect, averages for the entire industry, including stations which used a great deal of music and those who used less. Now, the broadcasters who appeared claim that they are not similarly situated with the stations whose representatives participated in the industry-wide negotiation of those court-approved licenses. That is their burden to carry in the New England Continental Media proceeding now pending in the federal court. Testimony: It takes ten years and ten million dollars to obtain a determination of reasonable license fees under the ASCAP Consent Decree. Facts: Mr. Atsinger testified that there has been only one instance in which the federal court has determined reasonable fees for an ASCAP license after a fully litigated proceeding (the Buffalo Broadcasting proceeding involving local commercial television stations). In fact, there have been two others one involving the Showtime cable television program service, and the other involving the ABC and CBS television networks. The latter proceeding was fully litigated in less than two years, at far less cost than the Buffalo Broadcasting case. If Mr. Atsinger and his fellow broadcasters would agree to submit to Judge Conner the simple question of whether their stations are similarly situated with all other commercial radio stations, and thus entitled to the same forms of blanket and per program licenses as are reasonable and nondiscriminatory for the other stations, we would very quickly and inexpensively find out whether the existing licenses are "unfair" or their fees are "too high." Testimony: A classical music station cannot Facts: Based on her own data, Ms. Meloy has received information from ASCAP as to more than 1800 titles -0 per month for more than three years a total of more than 21,600 identifications. Because her station's music use information is computerized, she surely must know by now which are in the ASCAP repertory. Why, then, is she unable to reduce the station's program hours that contain ASCAP music? The answer, we suspect, is that her program director has determined that the station's listeners want to hear ASCAP music. In consequence, the economic decision to provide desirable programming has overridden the economic considerations that might enable the station to achieve greater savings under the per program license. Testimony: Hispanic composer members of ASCAP do not receive fair treatment. Facts: Like all composer and lyricist members of ASCAP, Hispanic composers receive royalties in proportion to the performance of their works, determined in accordance with the court-approved ASCAP survey and distribution. As a matter of fact, ASCAP employs special monitors who are skilled in the identification of Spanish-language music to ensure that surveyed performances of such music on Hispanic radio and television stations are identified to the same degree as music used on all other stations. ASCAP values its Hispanic members very highly and ASCAP, more than virtually any other organization, treats all its members equally. Music is music, whoever wrote it. Again, this is a case of users affecting a "concern" for ASCAP members when their real aim is to avoid paying properly for the musical property they are using. Conclusion On behalf of its members, the creators and copyright owners of American music, ASCAP appreciates the opportunity afforded by the Subcommittee's hearings to air the grievances expressed by those upon whom our members rely for their livelihoods. If the users involved truly recognize their obligations under the law, we have no doubt that their legitimate concerns can be worked out. We believe that, with the guidance expressed by the Chairman and the members of the Subcommittee, this desirable goal can be achieved. Dated: March 28, 1994 At the oversight hearing held by the House Subcommittee ́on Intellectual Property and the Administration of Justice on February 23 and 24, 1994, ASCAP expressed its desire to meet with you, as representatives of general establishments such as restaurants and taverns, to discuss resolution of outstanding licensing issues. Those issues include, for example, the establishment of an agreed-upon standard for. exempt uses of television sets which perform music. ASCAP would be delighted to meet with you to pursue resolution of such outstanding issues. Please call me, and we can set up a date for a prompt meeting. cc: Rep. William Hughes Sincerely, h. Ban Spittel L. BARRY KNITTEL ASCAP Building, One Lincoln Plaza, New York, NY 10023 • (212) 621-6401 • FAX (212) 873-3133 |