- - Sunday, September 6, 2020

Few points were made more explicit at the Republican National Convention than how conservatives are ready to throw the book at Big Tech.

On opening night, I confronted the tech giants for discriminating based on users’ politics, censoring facts while promoting Chinese-funded communist propaganda, and using predatory business practices to undercut competition and harm the American people. But it wasn’t just me. All throughout the four-day convention, speaker after speaker took Silicon Valley to task.

In truth, however, the convention’s speakers didn’t have to say a word about Big Tech for the RNC to get the message across. The overwhelming number of anti-tech invitees — a sharp contrast to years past — told the tech giants everything they needed to know about where the party now stands on their behavior. That’s likely why these behemoths did not sponsor the event like they have in years past. They believe that if this president wins a second term their days of engaging in unchecked abuse will be numbered.

But while the tech giants are understandably taking the threat incited by President Trump and Attorney General William Barr seriously, the Department of Justice’s Antitrust Division may inadvertently obstruct the administration’s progress.

Assistant Attorney General Makan Delrahim, who formerly represented Google and helped the search giant grow its ad monopoly, is considering relaxing anti-competitive restraints on monopolists within the music industry. This move could significantly benefit the tech giants’ legal case and possibly even shelter them from accountability altogether.



The antitrust consent decrees that Mr. Delrahim is considering weakening prevent two music licensing organizations, called ASCAP and BMI, from raising the cost of music artificially on all businesses that play music, including restaurants, coffee shops, radio stations and department stores.

These decrees are needed because ASCAP and BMI control 90 percent of the industry’s copyrights. Rather than compete, the individual music publishers decided to collude together through these two groups — seemingly so they could increase their leverage to raise prices on consumers and businesses.

The DOJ had them sign onto these antitrust agreements to stop this predatory activity from occurring. They permit ASCAP and BMI to retain their market share so long as they agree to the DOJ’s anti-price-gouging terms.

Even analysts who are typically skeptical of antitrust law support these music decrees because of how clear the anti-competitive case against ASCAP and BMI is. While these decrees are always important, they’re now especially critical at keeping operational costs under control for restaurants, coffee shops and some of today’s most vulnerable businesses struggling to re-open in the aftermath of lockdowns.

And yet, the Antitrust Division is considering relaxing what is effectively the lowest common denominator for antitrust law now, during an unprecedented economic crisis and right as the DOJ is getting ready to take unprecedented action against Big Tech’s monopolistic and anti-competitive practices. 

Doing so could stall the progress of the Big Tech investigation and limit the legal options at the Department’s disposal. Matt Mackowiak, chairman of the Travis County GOP, also believes that it could compromise the 50-state attorneys general investigation that Texas Attorney General Ken Paxton is leading into Google.

How are all the stories connected? Many legal experts and past DOJ officials consider these music decrees the framework that the DOJ should follow to crack down on the tech giants.

For example, a former associate deputy attorney general in the Reagan Justice Department told Fox News, “Antitrust consent decrees can get the job done [with Big Tech] just as they have in the music industry for the better part of a century — protecting these businesses’ market share and autonomy, while simply taking a light-handed regulatory approach to police and prohibit predatory behavior.” However, if Mr. Delrahim eliminates or weakens the music decrees, the precedent will be gone, and the DOJ will have no framework to mirror.

It’s not as if there is any legitimate reason to modify them. ASCAP and BMI still control 90% of the industry’s market share, and they remain just as anti-competitive as ever. One of the two predatory organizations paid a hefty fine to the DOJ as recently as four years ago to settle allegations that it conspired to raise prices by violating the terms of its decrees.

Musicians that care about ensuring fairness and accountability have even pleaded for the Justice Department to make no changes to these antitrust agreements. For example, at an August event, songwriter Jon Bon Jovi directly compared ASCAP and BMI to the Big Tech companies when he implored the DOJ, “please do not disrupt the system and change the decrees.”

Unshackling the music monopolies will protect the Big Tech giants, not consumers. This is certainly not Mr. Delrahim’s intent, but it may very well become the result if he moves forward with relaxing the competitive constraints on the music monopolies. 

The fight against Big Tech oligopolies is one of the most critical battles for our generation. For the sake of consumers’ well-being and President Trump’s legacy, all divisions of the DOJ need to unite against the common goal of fending off Big Tech, and they need to put the kibosh to any initiatives that can undercut that process before it’s too late. 

• Charlie Kirk is the founder and president of Turning Point USA and host of “The Charlie Kirk Show.” 

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