The House of Representatives Judiciary Committee today approved a bill that would impose, for the first time, a royalty on radio broadcasters for the public performance of sound recordings in their over-the-air broadcasts. if this bill were to be adopted by the full House of Representatives and the Senate, and signed by the President, broadcasters would have to pay for the use of sound recordings (the actual recording of a song by a particular musical artist) in addition to the royalties that they already pay to ASCAP, BMI and SESAC for the public performance of the underlying musical composition. While, from the discussion at the hearing today, the bill is much amended from the original bill (about which we wrote, here) to try to address some of the issue that have been raised by critics, the Committee made clear that there were still issues that needed to be addressed – preferably through negotiations between broadcasters and the recording industry – before the bill would move on to the full House for consideration. It was, as Representative Shelia Jackson Lee of Texas stated, still a "work in progress." In fact, the Committee asked that the General Accounting Office conduct an expedited study of the impact of this legislation on radio and on musicians - but it did not wait for that study before approving the bill – despite requests from some royalty opponents that it do so.
While I have not yet seen a copy of the amended bill that Congressman John Conyers, the Chairman of the Committee, said had been completed only a few hours before the hearing, the statements made at the hearing set out some details of the changes made to the original version of the bill. First, changes were made to reduce the impact on small broadcasters – reducing royalties to as little as $500 for stations that make less than $100,000 in yearly gross revenues. Interestingly, Representative Zoe Lofgren pointed out that, in a bill that means to address the perceived inequality in royalties, a small webcaster with $100,000 in revenues would be paying $10,000 in royalties – 20 times what is proposed for the small broadcaster. And the small broadcaster who would pay $5000 for revenues up to $1.25 million in revenue would be paying 1/30th of the amount paid by a small webcaster making that same amount of revenue.
Other changes to the bill would apparently delay the effective date of the royalties – delaying the date 3 years for stations making less than $5 million in revenue, and a year for those stations making more than $5 million. It will be interesting to see the exact language of this provision – as it will likely take several years for the Copyright Royalty Board to issue a decision setting the royalty rates. Thus, even if the effective date is delayed for broadcasters so they can prepare for the new royalty, they won’t know what to prepare for, as they will not know much the royalty will be until well into that period – certainly after the 1 year delay proposed for the larger broadcasters, if the one year period runs from the adoption of the legislation as opposed to running from the date on which the royalty rate is established by the CRB.
From the statements made at the hearing, the standard for deciding cases has also been changed from the original bill – moving away from the "willing buyer, willing seller" standard used in setting the royalties for Internet radio companies toward the 801(b) standard that has been used for setting satellite radio royalties. We wrote about the difference that standard made in the satellite radio proceeding. However, importantly, from the comments made by one Congressman, the entire 801(b) set of criteria has not been incorporated in the new bill. Specifically, the new criteria omit the one factor that was the most important in cutting the satellite radio royalties from what probably would have been 14% of revenue had a "willing buyer, willing seller" analysis been used, down to 6-8% of revenues. That factor, the potential for disruption of the industry, has apparently been omitted from the criteria to be applied to broadcasters. The 801(b) criteria were applied to satellite radio and digital cable radio at the time the sound recording performance royalty was first adopted in the late 1990s as these services already existed, and it was felt that the criteria that were being used had to help make sure that these existing businesses were not severely affected by the implementation of the royalty. Using that same logic, one would think that this factor that has apparently been omitted would be crucial in setting a fair and workable royalty for radio – an industry that has existed for far longer than satellite or cable radio, and which could most certainly be adversely affected by the new royalty.
The committee discussion repeatedly highlighted the Committee members desire to not imperil broadcasters by adopting a royalty – including statement that the CRB would be instructed to take into account, in setting royalties, the impact the royalties would have on minority and female radio operators, small broadcasters, and religious and community stations. But it was not clear how this expression was to be conveyed to the Board. The exact wording used is crucial as, from their analysis in the satellite radio decision, the CRB takes its direction from the precise words in the legislation, and applies the standards of 801(b) in a very narrow way. In fact, the Board found that most of the 801(b) considerations were immaterial in reaching to their decision - only taking into account the potential impact on the stability of the industry as having any decisional impact. Thus, the wording of the instructions to the Board will be crucial.
There is much to be learned from the precise wording of the Bill, and we will address those issues in coming days, and address in more depth some of the issues raised at the hearing. But it is clear that we have not seen the last of this debate that will continue to evolve over this Congressional session. But, from today’s decision, it is clear that there is a real prospect that a performance royalty could become a reality, and radio broadcasters must consider that potential in developing their business plans for the future, and in their interactions with their elected representatives in the next weeks and months.