Full opinion text
MEMORANDUM AND ORDER MICHAEL H. DOLINGER, United States Magistrate Judge: This proceeding is an outgrowth of certain provisions of a Consent Decree (the “Decree”) originally entered into in 1941 by the United States Department of Justice and the American Society of Composers, Authors and Publishers (“ASCAP”). The Decree, as amended in 1950, regulates the manner in which ASCAP licenses for public performance the copyrighted music of its members. The applicants in this proceeding all function as so-called cable program suppliers. In brief, they each assemble a package of programming, which they typically transmit to numerous cable system operators. The system operators, which are licensed locally to operate in specified geographic areas, in turn transmit the programming over cable to the televisions of residents within their locale who pay subscription fees to be hooked up to the cable and receive the programming. At present, the parties have presented to the court for decision two questions that require interpretation of portions of the Decree. The first is whether the Decree requires ASCAP to issue a public performance license to the cable program suppliers that covers not only the transmission of the suppliers’ programming to the local cable system operators, but also the transmission of the programming by the system operators to the viewers. The second is whether the Decree requires ASCAP to issue to the cable program suppliers, on demand, a so-called per-program license as an alternative to its more commonly used blanket license. For the reasons that follow, I conclude that the Decree requires ASCAP to make both of these licenses available to cable program suppliers. PROCEDURAL POSTURE The current proceeding was initiated by the Turner Broadcasting System, Inc. (“TBS”) on January 13, 1989. Although styled as an application for the setting of fees under Article IX(A) of the Decree, the petition principally sought a more preliminary form of relief — an order that ASCAP make available to TBS a performance license that covered the transmission of all of its programming “through to the viewer.” Such a license — which ASCAP concedes it is required to issue to the traditional “over the air” networks — is commonly referred to as “licensing at the source,” presumably because the license is issued to the entity that is the source of the programming. The applicants assert that the relief they seek is necessary because AS-CAP announced in 1988, for the first time, that it would no longer agree to licensing at the source for the cable program suppliers — including TBS’s three cable programming services, Cable News Network, Headline News, and Turner Network Television — and would instead provide only a license that was limited to the program suppliers’ transmission of their programming to local system operators; the license would therefore not cover the transmission of the programs by the system operators to the viewing public. In effect, ASCAP was asserting a right to demand licenses from both the program supplier and the system operator for the performance of ASCAP music as part of the programming on cable television channels. TBS’s application was ultimately joined by 16 other entities, all of which also supply programming to system operators for transmission to cable viewers. All of these cable program suppliers reported that they had been stymied in seeking a license from ASCAP that would cover the public performance of ASCAP music in programming distributed by them. In each instance, AS-CAP had advised the suppliers that it did not believe itself bound to issue such a license to them, and that it intended to obtain separate licenses from both the cable program suppliers and the cable system operators. ASCAP has moved for partial summary judgment, urging dismissal of that portion of the cable program suppliers’ petitions that seeks an order compelling the issuance to them of a license that would cover programming transmissions by the system operators. ASCAP premises its motion on the contention that Article V(A) of the Decree, which requires ASCAP to issue such a license to “telecasting networks” for programming aired by the stations “affiliated” with such networks, does not cover cable program suppliers and their affiliated cable system operators. The applicants have opposed the motion, and although not formally cross-moving for summary judgment, have urged that the court grant their requested relief on the current motion. After the briefing and argument of AS-CAP’s motion, the parties agreed to broaden the scope of this proceeding to encompass another issue of decree interpretation. In the previously filed Showtime/The Movie Channel Article IX(A) proceeding, Showtime raised at trial the question of its entitlement under the Decree to a so-called per-program license from ASCAP. Ultimately, Showtime and ASCAP agreed to the withdrawal of that claim from the Showtime proceeding, and its resurrection in the current proceeding. Accordingly, the parties have agreed to expand the scope of ASCAP’s previously filed summary judgment motion to encompass the question of whether cable program suppliers are entitled, under Article VII(B) of the Decree, to a per-program license as an alternative to a blanket license. In supplemental briefing, the applicants have argued that they are “television broadcasters” within the meaning of Article VII(B) of the Decree, and hence are entitled to such a license. In response, ASCAP has pressed the argument that this term applies only to over-the-air or traditional television stations, and that accordingly it has no obligation to provide a per-program license to the applicants. With the consent of the parties, the court invited the Department of Justice, as a cosigner of the Decree, to offer its views on both issues. On each issue, the Department — although not fully agreeing with ASCAP’s interpretation of the Decree or its legal analysis — has concluded that the Decree does not obligate ASCAP to issue the types of licenses sought by the applicants. THE EVOLUTION OF THE CONSENT DECREE ASCAP is a membership association consisting of approximately 40,000 composers and music publishers. American Society of Composers, Authors and Publishers v. Showtime/The Movie Channel, Inc., 912 F.2d 563, 573 (2d Cir.1990) (reproducing Memorandum and Order of the District Court). The members own copyrights in more than three million musical compositions, see, e.g., id., and have authorized the Society to grant licenses for the public performance of those compositions. Because the formation of ASCAP represented a pooling by the members of their copyrights for the purpose of obtaining a commercial advantage in dealing with music users, ASCAP eventually attracted the attention of the Antitrust Division of the United States Department of Justice. In 1941, the Government filed suit in this court, alleging that ASCAP and its officers and members had conspired to restrain trade in violation of the Sherman Act. That suit was quickly settled by a Decree that imposed certain limitations on AS-CAP’s licensing of the performance rights to its members’ musical compositions. See United States v. ASCAP, 1940-43 Trade Cas. (CCH) ¶ 56,104 (S.D.N.Y. March 4, 1941). In general terms, the 1941 Decree required that ASCAP’s members give the Society only a non-exclusive agency to issue performance licenses, thus retaining for the members themselves the right to negotiate directly for such licenses or to assign that role to another person or entity. The Decree also prohibited ASCAP from “discriminating in price or terms between licensees similarly situated.” Id., Art. 11(2). The Decree addressed in some detail the manner in which ASCAP was to issue licenses for the performance of music by radio broadcasters. Thus, it prohibited AS-CAP from insisting on a license fee for commercial radio programs that was predicated in whole or part on the revenues received by the broadcaster from programs that contained no music licensed by AS-CAP. Id., Art. II(3). It also required ASCAP to issue to radio broadcasters, on request, a per-program license, and to quote fees for such a license that would not frustrate “the purpose of this subparagraph to afford radio broadcasters alternative bas[e]s of license compensation.” Id. The Decree further provided that ASCAP must issue licenses for “network radio broadcasting” that would cover, for a single license fee, “the simultaneous broadcasting of ... performance[s] by all stations on the network.” Id., Art. 11(4). Thus, ASCAP was prohibited from “requiring separate licenses for such several stations for such performance.” Id. Similarly, the Decree required ASCAP to issue to producers or distributors of electronic transcriptions or other recordings a license that covered the public performance of recordings prepared for performance on any designated radio programs. In such a circumstance ASCAP would be barred from seeking a separate license from any radio stations designated by the licensee for the performance of the recording. Id., Art. H(5). The Decree contained additional limitations on ASCAP’s licensing practices, including a requirement that it issue licenses on demand by “users other than broadcasters,” id., Art. 11(6), and that it issue to “radio broadcasters,” if so requested, “a license on a per performance or per program basis.” Id., Art. 11(7). The Decree also prohibited ASCAP and its members from withholding from performance any composition in the ASCAP repertory for the purpose of extracting “additional consideration.” Id., Art. 11(8). The Decree also addressed a variety of internal ASCAP matters, including membership eligibility, the election of its Board of Directors, and the distribution of fees to the members. Finally, it provided for monitoring by the Department of Justice and continuing jurisdiction by this court. Id., Arts. 11(9), (10), (11); III, IV, VI. The 1941 Decree was superseded in 1950 by a substantially revised agreement between the Government and ASCAP. See United States v. ASCAP, 1950-51 Trade Cas. (CCH) ¶ 62,595 (S.D.N.Y. March 14, 1950). The amendment of the Decree was apparently instigated by a number of related developments, two of which are of particular pertinence in this case. First, during the late 1940’s, radio ceased to be the only broadcast medium available to American households. Although still in its infancy, television began to be recognized as a potentially significant transmitter of programming to the American public. It therefore became necessary to address the manner in which its use of copyrighted music would be licensed by ASCAP. Second, in 1948 two federal courts were confronted with an antitrust challenge to the manner in which ASCAP was licensing the performance rights to copyrighted music incorporated in motion pictures. The controversy focussed on ASCAP’s practice of granting movie producers solely the right to incorporate the music on the soundtrack of the film — the so-called synchronization right — while withholding the right to perform the music publicly when the film was played in movie theatres. Rather than granting both rights to the movie producers, ASCAP insisted that each local film exhibitor separately obtain a public performance license for the films played in its theatres. The movie exhibitors challenged this practice, and in 1948 Judge Leibell in this court and Judge Nordbye in the District of Minnesota both concluded that ASCAP’s practice of splitting the rights necessary to exhibit the films constituted a violation of the Sherman Act. See Alden-Rochelle Inc. v. ASCAP, 80 F.Supp. 888, 893-95 (S.D.N.Y.1948); M. Witmark & Sons v. Jensen, 80 F.Supp. 843, 848-50 (D.Minn. 1948). In consequence, Judge Leibell enjoined ASCAP from dealing with the film exhibitors in the licensing of ASCAP music for public performance in films. Alden Rochelle Inc. v. ASCAP, 80 F.Supp. 900, 903-05 (S.D.N.Y.1948). In the wake of these developments, the Justice Department and ASCAP undertook negotiations to modify the 1941 Decree. See generally Timberg, “The Antitrust Aspects of Merchandising Modern Music: The ASCAP Consent Judgment of 1950”, 19 J.Law & Contemp.Probs. 294, 299-306 (1954). The final version of the amended Decree was presented in March 1950 to Judge Goddard, who had overseen the original 1941 Decree, and he approved it. The 1950 Decree contains a number of significant changes from its predecessor. The most prominent of these involve the expansion of its terms to cover television, the incorporation of provisions designed to address the issues raised in Alden-Rochelle, and the creation of a so-called rate court, with attendant terms governing the procedures for obtaining a license and court determination of any disputes concerning fees. Under the terms of the 1950 Decree, ASCAP must issue a license to “any user” who makes a written request for it, but may not issue, except on written request, a license limited to specific compositions in its repertoire. 1950 Decree, Art. VI. The Decree also specifies certain licensing requirements for specific types of users. Thus, in connection with motion pictures, the Decree embodies the holding of Alden-Rochelle and Witmark by requiring AS-CAP to issue to the movie producer, on demand, “a single license of motion picture performance rights” for the entire United States, id., Art. V(C), and barring ASCAP from negotiating with or collecting money from “any motion picture theatre exhibitors” concerning motion picture performance rights. Id., Art. IV(E). As for the broadcast media, they are treated together with wired music services, and the relevant provisions are those centrally at issue in this case. Thus, Article V(A) represents a modified version of the 1941 provision governing licensing at the source: Defendant ASCAP is hereby ordered and directed to issue, upon request, licenses for rights of public performance of compositions in the ASCAP repertory as follows: (A) To a radio broadcasting network, telecasting network or wired music service ..., on terms which authorize the simultaneous and so-called “delayed” performance by broadcasting or telecasting, or simultaneous performance by wired music service, as the case may be, of the ASCAP repertory by any, some or all of the stations in the United States affiliated with such radio network or television network or by all subscriber outlets in the United States affiliated with any wired music service and [t]o not require a separate license for each station or subscriber for such performances; ____ The Decree also reincorporates the old “licensing at the source” requirement with respect to manufacturers, producers and distributors of recordings, and thus limits ASCAP to a single license for recordings that are “recorded for performance on specified commercially sponsored radio programs or television programs ...” In such a case, the license to the manufacturer, producer or distributor is to cover the broadcasting of the recording “by all radio stations or television stations in the United States enumerated by the licensee without requiring separate licenses for such enumerated stations for such performance.” Id., Art. V(B). In a separate set of provisions addressed to the licensing of public performance rights for “radio broadcasting and telecasting,” ASCAP is prohibited — as it was in the 1941 Decree in connection with radio broadcasting — from imposing fees for commercial programming based upon a percentage of income received by the licensee from programs with no ASCAP music, unless requested by the licensee. Id., Art. VII(A). ASCAP is also required to issue per-program licenses “to any unlicensed radio or television broadcaster, upon written request.” Id., Art. VII(B). Under the terms of the Decree, the fees for such a license for commercial programs may be based, at the option of ASCAP, either on a fixed payment per program or on a percentage of the revenues paid by the sponsors of the program. Id., Art. VII(B)(1). In provisions of more general applicability, the Decree reiterates the requirements of its predecessor that ASCAP receive from its members only a non-exclusive right to negotiate for performance rights. Id., Art. IV(B). It also contains two anti-discrimination provisions. One prohibits ASCAP from entering into any license “which discriminates in license fees or other terms and conditions between licensees similarly situated.” Id., Art. IV(C). The other directs ASCAP “to use its best efforts to avoid any discrimination among the respective fees fixed for the various types of licenses which would deprive the licensees or prospective licensees of a génuine choice from among such various types of licenses.” Id., Art. VIII. As noted, the Decree also establishes a set of procedures for fee-setting. Article IX(A) requires ASCAP, on receipt of a written license application, to advise the applicant in writing “of the fee which it deems reasonable for the license requested.” If the parties cannot agree on a fee within sixty days, the applicant may apply to the court for the setting of “a reasonable fee.” The Decree also provides that if the court sets a fee, ASCAP must offer “a license at a comparable fee to all other applicants similarly situated who shall thereafter request a license.” Id., Art. IX(C). Finally, as with its predecessor, the 1950 Decree contains a series of provisions governing the membership and management of ASCAP, voting rights, distribution of fees, and other matters relating to internal administration, as well as a provision for the continuing jurisdiction of this court. Id., Arts. IV(E), X-XVII. ANALYSIS ASCAP seeks summary judgment with respect to both of the applicants’ requests for relief. Insofar as the applicants seek an order requiring a “through to the viewer” license under Article V(A) of the 1950 Decree, ASCAP argues principally that the applicants are not “telecasting networks” and the cable system operators are not “affiliated stations” within the meaning of Article V(A) of the Decree, and are therefore not entitled to such licensing at the source. ASCAP rests this argument on the conceded differences in the technology of cable and over-the-air television transmission and certain acknowledged dissimilarities between the financial arrangements found in the traditional over-the-air television industry and in the far newer cable television industry. Since cable television did not exist in 1950, ASCAP suggests, the drafters of the Decree could not have intended to include those novel entities within the language of the Decree. As for the per-program issue, ASCAP again rests its argument principally on the notion that cable television is a new form of mass communication. Accordingly, AS-CAP urges that it was not intended to be covered by the term “television broadcaster” found in Article VII(B) of the Decree. In resisting these arguments, the applicants suggest that the differences between the manner of operation of the over-the-air networks and the cable program suppliers are immaterial in view of the purposes of the Decree, and particularly the purposes of Articles V(A) and VII(B). They invoke the asserted functional equivalence of the original television networks and the cable program suppliers, and suggest as well that the Decree was designed to be forward-looking and to encompass all forms into which the television industry, which was still in its infancy in 1950, might thereafter evolve. Specifically with respect to the licensing-at-the-source question, the applicants assert, as an alternative argument, that even if the term “telecasting network” is narrowly defined, they should nonetheless be entitled to the same form of license as the Decree guarantees to the traditional television networks based on the anti-discrimination provision of Article IV(C). The applicants also invoke the language of Article IX, which requires ASCAP to quote a fee on demand “for the license requested.” They contend that this language entitles them, at a minimum, to any reasonable form of license that they may request, even if it is not otherwise required by the Decree. Finally, on the question of the per-program license, the applicants also cite the anti-discrimination provision of Article VIII. Specifically, they argue that it underscores the drafters’ intention that all “licensees” be given “a genuine choice” among the various types of licenses, including the per-program license. Before addressing these arguments, I briefly summarize the legal standards that govern the resolution of these matters. A. Standards for Summary Judgment For ASCAP to prevail on its motion, it must satisfy the court that there is no dispute as to any material fact and that, based on the undisputed facts, it is entitled to judgment as a matter of law. See, e.g., Montana v. First Federal Savings & Loan Ass’n, 869 F.2d 100, 103 (2d Cir.1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985). It is axiomatic that the role of the court on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d at 11; Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). See, e.g., Parsons v. Honeywell, Inc., 929 F.2d 901, 904 (2d Cir.1991); Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990); Montana v. First Fed. Sav. & Loan Ass’n, 869 F.2d at 103; Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Accord, e.g., Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir.1991). If the movant fails to meet its burden, the motion must be denied even if the opposing party does not submit any evidentiary matter to establish a genuine factual issue for trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). If the movant carries its initial burden, the burden shifts to the party opposing the motion to demonstrate a genuine dispute as to one or more of the material facts. Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. See also Citizens Bank of Clearwater v. Hunt, 927 F.2d at 710; Greater Buffalo Press, Inc. v. Federal Reserve Bank of New York, 866 F.2d 38, 42 (2d Cir.), cert. denied, 490 U.S. 1107, 109 S.Ct. 3159, 104 L.Ed.2d 1022 (1989). In responding to the motion, the opposing party cannot simply rely on its pleadings or on conclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See, e.g., Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir.1991). Rather, the opposing party must present specific evidence in support of its contention that there is a genuine dispute as to the material facts. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553; Twin Laboratories v. Weider Health & Fitness, 900 F.2d at 568; Montana v. First Fed. Sav. & Loan Ass’n, 869 F.2d at 103; Knight v. U.S. Fire Ins. Co., 804 F.2d at 12; L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1, 3-4 (2d Cir.1985). To demonstrate a “genuine dispute,” the opposing party must come forward with enough evidence to justify a reasonable jury returning a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Citizens Bank of Clearwater v. Hunt, 927 F.2d at 710; Cinema North Corp. v. Plaza at Latham Associates, 867 F.2d 135, 138 (2d Cir.1989). B. The “Licensing at the Source’’ Claim ASCAP argues that the Decree should be read as a contract; that, so read, it unambiguously precludes cable program suppliers from the protection of Article V(A)— which governs radio broadcasting networks, telecasting networks and wired music services — and that therefore summary judgment should be granted in its favor on this' portion of the applicants’ petition. As will be seen, I conclude that the language of Article V(A) does not unambiguously support ASCAP’s reading, and that with the guidance of appropriate aids to construction, it becomes apparent that in fact the applicants are covered by Article V(A). In view of this conclusion, and the absence of any disputed issues of material fact, the court will enter summary judgment for the applicants on this claim. 1. Interpreting a Consent Decree We start by noting that, in general terms, ASCAP is correct in asserting that the courts will interpret decrees with the same tools as are utilized in the construction of private contracts. This follows from the fact that “[a] consent judgment, though it is a judicial decree, is principally an agreement between the parties.” S.E.C. v. Levine, 881 F.2d 1165, 1178 (2d Cir.1989). Accordingly, decrees are generally to be interpreted consistently with their “plain meaning” or “explicit language.” See, e.g., United States v. Atlantic Refining Co., 360 U.S. 19, 22-23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054 (1959); Suarez v. Ward, 896 F.2d 28, 30 (2d Cir.1990); Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir.1985). The point of this oft-cited observation, and of the frequent admonition to read decrees within their “four corners”, is that the decree “represents a compromise between parties who have waived their right to litigation and, in the interest of avoiding the risk and expense of suit, have give[n] up something they might have won had they proceeded with the litigation____” Berger v. Heckler, 111 F.2d at 1568 (quoting United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)). Thus, we are warned that “the scope of the decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585, 81 L.Ed.2d 483 (1984). Accord, e.g., S.E.C. v. Levine, 881 F.2d at 1178-79; Berger v. Heckler, 771 F.2d at 1568. To do otherwise, by ignoring plain language and meaning, would deprive one of the parties to the decree of the benefits for which he bargained and in. exchange for which he “waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause." United States v. Armour & Co., 402 U.S. at 682, 91 S.Ct. at 1757. Accord, e.g., S.E.C. v. Levine, 881 F.2d at 1181. Notwithstanding the stringency of these strictures, they necessarily are limited to cases in which the relevant provisions of the decree have a clear and unambiguous meaning. If the language utilized has only one reasonable interpretation, see generally Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 528 (2d Cir. 1990); Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9-10 (2d Cir.1983), then the court must look exclusively to the language found in the decree. See United States v. Armour & Co., 402 U.S. at 680-83, 91 S.Ct. at 1756-58. If, however, the wording is susceptible to more than one reasonable construction, then the court must look to extrinsic evidence, as is the case with ambiguous contracts. See, e.g., United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); S.E.C. v. Levine, 881 F.2d at 1179; Schurr v. Austin Galleries of Illinois, Inc., 719 F.2d 571, 575 (2d Cir.1983). As noted by the Supreme Court in ITT, [s]uch aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. 420 U.S. at 238, 95 S.Ct. at 935. The reference in ITT to “the circumstances surrounding the formation of the consent order” encompasses not only traditional parol evidence — that is, the representations made by the negotiators to each other in the course of the negotiations, see e.g., Roberts v. Consolidated Rail Corp., 893 F.2d 21, 24 (2d Cir.1989); Pantone, Inc. v. Esselte Letraset Ltd., 691 F.Supp. 768, 774 (S.D.N.Y.1988), aff'd, 878 F.2d 601 (2d Cir.1989) — but also any meaningful indicia of the purpose, if any, of the contested provision. This point was made, somewhat elliptically, by the Supreme Court in ITT when it took pains to distinguish its prior comment in United States v. Armour & Co. that “the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” 402 U.S. at 681-82, 91 S.Ct. at 1757 (emphasis in original). As the Court noted in ITT, this comment, and similar remarks found in United States v. Atlantic Refining Co., 360 U.S. at 22-23, 79 S.Ct. at 946, and Hughes v. United States, 342 U.S. 353, 356-57, 72 S.Ct. 306, 308, 96 L.Ed. 394 (1952), all were made only after the Court had found the disputed decree language to be unambiguous. Therefore, the Court in those cases was in effect simply declining to change the parties’ prior bargain to serve the asserted policies of the statute under which the decree had been entered. See 420 U.S. at 235-37, 95 S.Ct. at 933-35. The obvious point is that if the defendant did not bargain for unambiguous language precluding the competing interpretation, the court is not limited in what data it may look to in discerning the proper meaning of the decree, and in particular it may look to equitable considerations that flow from the statute underlying the decree and the fact that, in this respect, the decree is a court order as well as a contract. See, e.g., United States v. American Cyanamid Co., 719 F.2d 558, 564 (2d Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984). The Court in ITT further distinguished the three earlier cases by noting that in each of them the Government was seeking to punish past conduct by the defendant, whereas in ITT the parties were seeking simply to define the parameters of required future conduct by the defendant under the decree. Id. 420 U.S. at 237, 95 S.Ct. at 935. This point is of course consistent with case-law that has required that criminal statutes and injunctions be sufficiently specific to guide the defendant’s conduct before he may be punished for non-compliance. See, e.g., Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 438-39, 96 S.Ct. 2697, 2705-06, 49 L.Ed.2d 599 (1976). These same two distinctions have since been echoed by the Second Circuit, which has also emphasized that where the decree language is ambiguous and all that is at issue is future conduct, “a court of equity may, in construing the provision, consider the purpose of the provision in the overall context of the judgment at the time the judgment was entered.” United States v. American Cyanamid Co., 719 F.2d at 564. Accord, e.g., United States v. Western Elec. Co., 894 F.2d 1387, 1391-92 (D.C.Cir. 1990). See also ASCAP v. Showtime/The Movie Channel, Inc., 912 F.2d at 570 (noting that “context” of 1950 Decree reflects intent to “disinfect” ASCAP “as a potential combination in restraint of trade____”) (quoting K-91, Inc. v. Gershwin Publishing Corp., 372 F.2d 1, 4 (9th Cir.1967), cert. denied, 389 U.S. 1045, 88 S.Ct. 761, 19 L.Ed.2d 838 (1968)); cf. United States v. County of Nassau, 907 F.2d 397 (2d Cir. 1990) (per curiam) (affirming refusal to modify decree, in part based on conclusion that change “would undermine the purpose of the decree”). With an eye to these general standards, I turn to the parties’ respective interpretations of Article V(A). 2. Are the Applicants Covered by Article V(A)? a. The Purpose and Context of Article V(A) As noted, ASCAP presses the view that the coverage of the terms “telecasting network” and “stations ... affiliated with such ... television network” should be limited to the three major over-the-air networks — ABC, CBS and NBC — all of which were in existence when the Decree provision in question was drafted and approved, and should certainly not extend to the applicants. In advancing this conclusion, AS-CAP seems to make two slightly different, yet related, arguments. First, it suggests that since cable television was not yet contemplated, much less developed, by 1950, the drafters of the Decree could not have intended to include it within the scope of Article V(A). Second, ASCAP argues that in any event the method of operation of the applicants is so different, both technologically and financially, from the over-the-air television networks that they belong to an entirely different genus of mass media, and hence are not covered by the Decree. We start our analysis of ASCAP’s first argument by noting that the relevant language of Article V(A) is ambiguous. The Decree refers to “a ... telecasting network,” rather than, for example, “one of the existing television networks” or “a network that engages in telecasting by over-the-air broadcast,” and it does not define or otherwise explain this term in any respect. Although it is conceivable from the wording that the drafters may have intended to cover only the then-existing three networks, or only such entities as thereafter operated in virtually the same technological and financial manner, that reading is not compelled by the language used. An alternative reading, which is at least equally plausible solely from the face of the Decree, is that this provision was intended to cover any entity that — like the then-existing networks — assembled a unique package of television programming which it supplied to a number of locally-based telecasters with which it maintained a contractual relationship, and which in turn transmitted that programming, under the program supplier’s name, to the televisions in its locality. So construed, the Decree would cover the cable program suppliers. ASCAP’s principal argument is that the cable program suppliers are in fact so different from the over-the-air networks as to preclude application of Article V(A) to them. Again, the wording of the Decree is certainly not self-explanatory, and hence our evaluation of this argument requires a review of some aspects of the drafting and approval of the Decree. As noted, the 1941 Decree, although imposing some restrictions on ASCAP’s licensing methods generally, embodied specific limitations solely with respect to only one medium of mass communication, the radio industry. Among the limitations imposed on ASCAP in its dealings with radio broadcasters was the requirement that it must issue licenses to the radio networks that would encompass the performance of network programming “by all stations on the network,” and that it must refrain from seeking a separate license from the local stations for such programming. (1941 Decree at Art. (H)(4).) Although the Decree does not explicitly state the reason for the inclusion of this requirement, it is not difficult to discern in context. ASCAP became a target of the Government because of its potential ability to control a significant portion of the market for music used in non-dramatic public performances, whether on radio or in other settings. In the context of a network-affiliate relationship, such potential control could be very effectively exploited to extract non-competitive fees by the simple expedient of demanding not only a license from the network — which conceivably has some bargaining power by virtue of its ability to control the choice of music to be included in its network programming — but also a separate license from each of the affiliated stations, which lack this leverage since they do not control what music is included in the network programming that they air. Indeed, the Government’s 1941 complaint alleged this precise form of abuse. (See Complaint at pp. 7-8, 14-15, attached to USA Network Memorandum in Opposition at Exh. F.) By limiting ASCAP to a license with the radio networks themselves, Article 11(4) balanced the playing field to a degree and spared the local stations from facing the unenviable choice of either paying whatever ASCAP demanded or foregoing network programming. This interpretation is given added support both from other language in the 1941 Decree and from later history. Article 11(3) of the 1941 Decree required ASCAP to offer radio broadcasters a per-program license on request on terms that would not frustrate “the purpose of this subparagraph to afford radio broadcasters alternative bas[e]s of license compensation.” This language explicitly confirms the obvious— that the Decree was designed to limit AS-CAP’s ability, by pooling copyrights for large amounts of music used in radio broadcasting, to extract unreasonable fees for performance of the music. The availability of per-program licenses, if reasonably priced as compared to the alternative blanket license, was one means of accomplishing this purpose, since it gave the broadcaster the ability to minimize its fees either by limiting the number of programs on which it played ASCAP music, or possibly by seeking direct licensing from the composers, see, e.g., Buffalo Broadcasting Co. v. ASCAP, 744 F.2d 917, 926 n. 7 (2d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1181, 84 L.Ed.2d 329 (1985), a possibility that was kept at least theoretically alive by the additional requirement that ASCAP members give the Society only a non-exclusive agency to license their music. (1941 Decree at Art. 11(1).) The stated purpose of the per-program requirement thus accords fully with our understanding of the purpose of the “licensing at the source” provision. Subsequent events underscore our reading of Article 11(4) of the 1941 Decree and offer a clearer view of the intended scope of the equivalent provision in the 1950 Decree. As noted, ASCAP, although precluded by the 1941 Decree from splitting the performance rights in network radio programming, proceeded to use essentially the same technique in connection with the film industry. As recapitulated in Alden-Rochelle, ASCAP licensed only the “synchronization” right to the movie producer, and insisted on separate licenses for the performance rights to the music from all local movie theatre exhibitors. See Alden-Ro chelle v. ASCAP, 80 F.Supp. at 894. This practice was condemned as an antitrust violation both in Alden-Rochelle and in the parallel Minnesota litigation, M. Witmark & Sons v. Jensen, because it enabled AS-CAP to extract extortionate fees from the exhibitors, since they faced the same choice as the local radio stations before the 1941 Decree — either pay what ASCAP demanded or forego any films or programming that incorporated ASCAP music. It was apparently the holding of Alden-Rochelle and the emergence of television as a new medium of mass communication, as well as complaints to the Justice Department about the adequacy of the 1941 Decree, that gave impetus to the 1950 amendments to the Decree. (March 13, 1950 Tr. at 2, 7-8, annexed to ASCAP Memorandum). In this historical context, the 1950 Decree added provisions explicitly incorporating Alden-Rochelle-type relief for the movie industry and extended the specific protections of the 1941 Decree — including both the requirement for one license to cover the public performance of network programming and the availability of per-program licenses to radio broadcasters — to all forms of mass communication known at the time that might utilize significant amounts of ASCAP music. This effort at inclusiveness is apparent both from the face of the Decree and from the contemporaneous representations of the negotiators. As noted, the Decree addresses radio, motion pictures, wired music and television, and it contains no language limiting its application to defined segments of any of these industries. Accordingly, on its face the Decree appears to apply to television programming transmitted to the public irrespective of the technology used to make the transmission. Furthermore, the language of Article V(A) can most fairly be read to cover not only any technology for transmission of television programming into the home, but also any financial arrangement between the original packager of programming identified with the packager and the entity that transmits that packaged programming to television viewers. The problem that Article V(A) addresses is potentially found whenever programming is packaged by an entity for transmission to the public by another entity, and the solution adopted by the Decree rests on the fact that the packager has greater ability to negotiate on equal terms with ASCAP than does the affiliated telecaster. These considerations are not at all affected by the technology of transmission or by the financial arrangements between the two entities. The contemporaneous statements of the negotiators underscore these conclusions. First, each side acknowledged internally, to each other and to the court that a primary impetus for the 1950 amendment process was the Alden-Rochelle holding. {See, e.g., ASCÁP Memorandum to Hon. Vincent L. Leibell at 1-2, attached to Affidavit of Bruce D. Sokler, Esq., sworn to July 17, 1989, at Exh. E.) As noted, the central problem addressed by Alden-Rochelle was the unfair advantage obtained by ASCAP in splitting the rights between the producer and the exhibitor. This same problem was inherent in both the radio and the television industries to the extent that program suppliers fed packaged programming to affiliated local entities for broadcast, and yet could not compel ASCAP to issue a license through to the ultimate audience for that programming. It is thus not surprising to find the original 1941 protection of the radio networks re-incorporated in the 1950 Decree and extended to television and wired music — the other industries in which the same potential for abuse could be found — as well as to the movie industry in a somewhat different form, which took account of the specific holding in Alden-Rochelle. Second, it is evident from the contemporaneous documentation that both sides viewed the Decree as covering television as a generic means of program transmission. In the Spring of 1949 the parties were discussing a proposed amended version of the Decree which would include a broader provision for licensing through to the viewer than existed in the 1941 Decree. This provision was separate from one that incorporated the Alden-Rochelle holding specifically with respect to the movie industry, and included general references to “telecasting” and “television.” Thus, as early as March 1949, in an internal Justice Department memorandum, the Department’s principal negotiator, Sigmund Timberg, noted that ASCAP had already agreed to a provision requiring, for motion pictures, that licensing of performing rights be done solely through the movie producers, thus in effect concurring with the holding in Alden-Rochelle. Timberg went on to note: This should be done not only for the motion picture and radio industries, which to date have been the primary complainants against ASCAP’s activities, but seems desirable for any other industry where it is feasible to collect royalties in a similar manner. Such a provision would, of course, simplify ASCAP’s administrative operations. (Memorandum dated March 8, 1949 from Sigmund Timberg to Herbert A. Bergson at 2, attached to USA Network Memorandum at Exh. H.) Thus, early in the negotiations, the Department was apparently seeking to require licensing at the source in all situations where it could be applied. Significantly, only a short time later, AS-CAP apparently concurred in this broad approach. Thus, in another internal Justice Department memorandum, Timberg referred to ASCAP’s draft proposal and observed: This rider, along with the other new references to telecasting and television inserted on pages 4 and 5, is intended to lay the basis for licensing at the source by ASCAP for industries other than the motion picture industry. Defense counsel tell me that these industries exhaust the industrial situations where licensing at the source is feasible. (Memorandum dated May 2, 1949 from Sigmund Timberg to Harold Lasser and Beatrice Rosenberg at 2, attached to USA Network Memorandum at Exh. B.) In short, both sides understood that the “licensing-at-the-source” principle was to be imposed wherever the split rights problem was posed. Later, in July 1949, one of the ASCAP attorneys memorialized in a memorandum a meeting between representatives of the Department and of ASCAP in which the details of agreed-upon terms were discussed. In the course of the summary, the writer recounted that ASCAP was to prepare a new draft embodying the agreed-upon provisions, and noted as one of the points that “[r]adio and television [are] to be treated alike for purposes of [the] Decree.” (Memorandum to the file dated July 6, 1949 at 3, attached to USA Network Memorandum at Exh. E.) Again, although this point seems fairly obvious from the ultimate Decree presented to the court, the language in the memorandum reinforces the evident understanding of the parties that television was being treated as a generic industry, and thus that the protections afforded in the Decree were intended to reach as far as the potential harms identified either in the prior Decree or in the Alden-Rochelle decision. Several weeks later, in what was apparently their next meeting, the negotiators continued to debate the extent to which the Alden-Rochelle holding should serve to bar any efforts by ASCAP or its members to license movie exhibitors. At that time, ASCAP apparently was taking the position that its members should be able to seek such licenses directly, whereas the Department of Justice was seeking to bar any ASCAP involvement in the acquisition of performance licenses for music in movies. Although this point was not yet resolved, ASCAP at this time agreed to the principle of “licensing at the source” for other music uses. As noted in a memorandum, “[t]his development, which will affect the motion picture, radio, wired music and electrical transcription industries, is socially desirable.” (See Memorandum dated July 22, 1949, from Sigmund Timberg to Herbert A. Bergson at 1-2, attached to USA Network Memorandum at Exh. L.) Subsequently, the intention of the Department of Justice to apply the basic holding of Alden-Rochelle more broadly was reiterated in connection with a proposed revision of the July 1949 draft amended Decree. As noted in an August 1949 internal Department memorandum, “while the 1941 Decree was entered at a time when radio licensing was of major importance, it is intended that the new judgment include television and such modification as will eliminate the practices found to be illegal in the Alden-Rochelle case.” (See Memorandum dated August 29, 1949 from Harold Lasser and Beatrice Rosenberg to Sigmund Timberg, attached to USA Network Memorandum at Exh. I.) This internal memorandum is not direct evidence of the meaning of the Decree, and in fact the revised version that it discussed was ultimately modified, in particular to retain in ASCAP the non-exclusive right to license music in motion pictures, albeit not from motion picture exhibitors. Nonetheless, the general observations made are consistent with the prior negotiations, with the final version of the Decree presented to the court in March 1950, and with the representations made to the court in connection with that presentation. As noted, the final version of the Decree gave ASCAP the right to license performance rights in motion pictures, but barred such licensing of film exhibitors. At the same time, it extended to the television and wired music industries the principle embodied in the 1941 Decree with respect to radio and in the 1948 Alden-Rochelle holding, that ASCAP and its members could not split performance rights — or performance and synchronization rights, where applicable — and thereby compel the ultimate exhibitor of programming assembled by a supplier to pay for a separate performance rights license. In presenting the proposed Decree to Judge Leibell, the Department’s memorandum noted that the Decree sought to address issues raised in Alden-Rochelle with respect to the motion picture industry, “some of which, of course, are of general applicability to ASCAP’s activities in other fields,” as well as complaints made both by ASCAP members and by “the users of ASCAP music” concerning the operation of the 1941 Decree. (See Memorandum to the court at 2-3, attached to Sokler Aff. at Exh. C.) After reviewing those new provisions that were intended specifically to enforce Alden-Rochelle, the Government turned “to other provisions, not directly related to motion picture licensing, which in our judgment eliminate actual or potential restraints suggested by the Department’s inquiry.” (Id. at 7.) After reviewing a number of other terms, it turned to Article V, which it described as “[gjeneral licensing at the source.” (Id. at 8.) In explaining this set of provisions, the Department’s memorandum made plain that the underlying principle was the same as embodied in the Alden-Rochelle decision, and that it was intended to be applied in other industries as well, where the same problems could be anticipated: The 1941 Decree required ASCAP to license performances on radio networks on a basis which permitted the network to obtain a single license for performance by all affiliated stations. (Sec. 11(4)). A similar provision covers the performance of electrical transcriptions. (Sec. 11(5)). This principle, known as “licensing at the source,” impresses us as being strongly in accord with the rationale of the Alden-Rochelle opinion. After a study of the needs of the other users of ASCAP music, it was concluded that “licensing at the source” should be made possible, not only for the radio industry, but for television networks, wired music services (such as the organization known as “Muzak”), and motion pictures. (Sec. V(A), (B) and (C) of the proposed Judgment). (Id.) This commentary, including its references to “the needs of the other users of ASCAP music”, makes it evident, once again, especially when viewed in light of the negotiating history, that the parties were agreeing to apply the “licensing at the source” principle — more precisely, licensing solely from the originator of the program rather than from its ultimate exhibitor — to all industries in which it was potentially applicable. This characterization is entirely consistent with ASCAP’s own March 1950 memorandum to Judge Liebell, in which it also reviewed the terms of the proposed 1950 Decree and its impact on the Alden-Rochelle judgment. (See Sokler Aff. at Exh. E.) In describing the Decree, ASCAP’s counsel noted that it had its origin in the Alden-Rochelle litigation (id. at 1-2) but that it contained significantly broader terms. ASCAP thus noted that the Decree provided for “licensing at the source” (id. at 3), a concept that it referred to later in discussing “Limitations on Licensing.” (Id. at 7.) In explaining these “limitations” generally, ASCAP observed: The proposed judgment imposes numerous limitations upon ASCAP’s licensing of performing rights in order to assure to users of music complete freedom of choice in obtaining a license to perform some, all or any one of the musical compositions in the ASCAP repertory at a fair and non-discriminatory rate. (Id.) The ASCAP memorandum then proceeded briefly to describe each of these limitations, including Article V, which it characterized as a requirement that AS-CAP must grant to radio broadcasting and telecasting networks or wired music services or to the manufacturer, producer or distributor of a transcription or recordation of a composition in ASCAP’s repertory for performance on specified commercial programs on an electrical transcription and to any person engaged in producing motion pictures, a so-called “clearance at the source” license. (V(A), (B), (C)). (Id. at 7-8.) Finally, in a concluding justification for the amended Decree, ASCAP borrowed language from the Ninth Circuit in Cutter Laboratories, Inc. v. Lyophile-Chryochem Corp., 1948-51 Trade Reg. Rep. (CCH) ¶ 62,542 (9th Cir.1948), and stated that the proposed Decree will secure to any would-be licensee an opportunity to procure just the license he wishes and no more, at reasonable nondiscriminatory royalties without making any agreement as to pricing or as to the use or sale of films, programs or records using copyrighted music. (Id. at 14-15.) In sum, the written comments of counsel for both the Government and ASCAP to the court at the time of the submission of the Decree emphasized that it was intended to apply the general rule of Alden-Rochelle to all users of ASCAP music who could benefit from it, without suggesting any artificial limitation on the scope of the pertinent provisions. Finally, in his oral statement to Judge Goddard in presenting the proposed amended Decree, the Department's counsel, Mr. Timberg, again emphasized the breadth of the sought-after relief. In his opening remarks, he noted the Department’s investigation of “numerous complaints” since 1941 “from both the users of ASCAP music and authors and composers throughout the United States,” and indicated that the proposed Decree was designed to deal with these complaints and the decisions of the courts in Alden-Rochelle and Witmark v. Jensen. (March 13, 1950 Tr. at 2, annexed to ASCAP Memorandum.) In the course of describing the new provisions, Mr. Timberg noted that the proposed Decree, “so far as it bears on licenses for radio broadcasters, remains unchanged from its predecessors.” (Id. at 8.) In contrast, however, he observed that the new Decree “does take account of new problems raised by the advent of television and the current legal controversy over motion picture performance rights.” (Id.) Mr. Timberg went on to describe Article V. After noting that the proposed Decree permitted ASCAP, “under carefully qualified and guarded limitations,” to license motion picture producers “covering the subsequent performance of [their] music in motion picture films,” he described the extension of this principle to other industries and its rationale: In like fashion, it is provided that the ASCAP music used in network telecasting be licensed at the source, that is, a single license to the originator of a telecasting program may cover the use of ASCAP music over all stations receiving the telecasted program. These provisions bring ASCAP’s licensing activities in the motion pictures and television field into conformity with what the 1941 Decree provided with respect to radio broadcasting. Such licensing at the source is intended to avoid the harassment of suits against individual stations and individual motion picture exhibitors, such as was complained of in the Alden-Rochelle suit, and makes it possible for ASCAP to license the performing right at the same time that an ASCAP member grants recording or synchronization rights, along [the] lines suggested in Judge Leibell’s opinion. (Id. at 9.) This analysis, which was fully endorsed by ASCAP’s counsel (id. at 13), once more makes it evident that the intended reach of Article V was defined in functional terms, that is, to protect the ultimate users of ASCAP music who would otherwise be subjected to “the harassment of suits” if they failed to comply with ASCAP’s fee demands. This inclusionary definition— based on a description of the harm sought to be avoided — again indicates that the term “telecasting network” is to be read in its functional sense, that is, to cover the supplying of programming by a packager to another entity for transmission, under the packager’s name, to household televisions, and should not be limited based on either the particular technology used to transmit the programs into the homes of the ultimate audience or the particular financial arrangement existing between the packager and the local transmitter of the programs. In short, the language of Article V is not self-evidently limited to over-the-air broadcasting, or to program suppliers whose financial arrangements with the ultimate transmitters of the programming mirrors that of the three major television networks extant in 1950. Moreover, the purpose of Article V, as evidenced by both the negotiating history of the Decree and the representations of the parties to the court at the time of its presentation, strongly indicates that Article V was intended to cover television generically — that is, all forms of television programming that is assembled by one entity and then distributed to a separate but affiliated entity for transmission, under the name of the program supplier, into the homes of a local audience. To construe this provision more narrowly, based on the state of technology in 1950 or financial characteristics not related to the underlying problem addressed by Article Y, would appear to contravene both the intent of the parties and the public policies embodied in the Decree. Moreover, such an interpretation would ignore the obvious fact that the Decree was entered into at a time when the television industry was in its infancy, as noted in the Government’s memorandum to Judge Liebell (Sokler Aff., Exh. C at 2) and hence could be expected to change in numerous ways, both technological and economic. The parties were of course aware of this fact and can scarcely be assumed to have intended their agreement to be so narrowly drawn as to be almost inevitably outmoded within the foreseeable future. b. Other Considerations Supporting Applicants’ Interpretation The applicants cite one additional body of evidence in support of their reading of Article V(A). As noted, ASCAP’s decision in 1988 to refuse to provide licensing at the source for cable television was a new development; previously ASCAP had routinely issued licenses to the cable program suppliers that covered the performance of their programming by the cable system operators. (See Sokler Aff. at Exhs. B, G-J.) The applicants point to this prior history as an indication of the fact that ASCAP itself always knew that Article V(A) was applicable to cable television. See, e.g., Board of Educ., Yonkers City School Dist. v. CNA Ins. Co., 839 F.2d 14, 18 (2d Cir.1988); Ocean Transport Line, Inc. v. American Philippine Fiber Indus., Inc., 743 F.2d 85, 91 (2d Cir.1984); Viacom Int’l Inc. v. Lorimar Productions, Inc., 486 F.Supp. 95, 98 n. 3 (S.D.N.Y.1980) (conduct of parties in performing contract before dispute arose is entitled to great weight in interpreting relevant contractual terms). We must exercise some caution in weighing this evidence. As ASCAP notes, almost all of these license agreements contain a provision stating, in substance, that the license is experimental in nature and shall not be “binding upon or prejudicial to any position taken by either of the parties for any period subsequent to the termination of this agreement.” (License Agreement between ASCAP and Showtime Entertainment for January 1, 1977 through December 31, 1979, at 111(C), attached to Sokler Aff. a