The NAB brief reminded the court that it owes no deference to the views of the DOJ, and then proceeded to lay out why the DOJ's point of view was wrong with regards to the antitrust lawsuit filed by GMR against the RMLC in December 2016 in response to the RMLC filing an antitrust lawsuit in November 2016 against GMR.
It made the case that buying groups are not engaging in anticompetitive practices if "buying collaborations…are reasonably related to an efficiency." The RMLC represents about 10,000 U.S. radio stations, and negotiates music licenses with the U.S. performance rights organizations. The NAB brief notes that the PROs have been under active DOJ supervision for decades, which refers to the consent decree signed by GMR's larger competitors, ASCAP and BMI. But those consent decrees don't apply to GMR, which is less than one-tenth the size of each of those two PROs in terms of revenue and exponentially smaller in terms of the number of songwriters it represents, about 80 writers versus the more than one million songwriters ASCAP and BMI represent, when combined.
Nevertheles, the NAB brief concludes by urging the court to dismiss the GMR claims against the RMLC. In its response to the NAB brief, the GMR filing says the document doesn't fulfill any needed criteria like bringing in unique information or perspectives other than that the NAB will be affected by the outcome of the lawsuits. It also says that the NAB brief is six months past the deadline for such a filing — although the brief was in response to the December statement of interest from the DOJ.
The GMR brief points out that the NAB brief merely parrots the RMLC, saying that is hardly surprising "given that over a half a dozen of the same radio conglomerates run both organizations."
The judge has to decide is which organization is displaying anticompetitive behavior. Is the RMLC, which represents 10,000 radio stations that collectively bring in an estimated $14 billion in revenue, using its size to collude to impact the pricing for licensing music? As for GMR, which has about $90 million in revenue, is it acting as a monopoly in setting the pricing for licensing the songs it controls?
"Because NAB's proposed amicus brief is untimely, unhelpful and wrong, we respectfully request that the court deny NAB's motion for leave to file," stated the filing, made on behalf of GMR by the law firm O'Melveny & Myers LLP.