The Copyright Royalty Board today denied the Motions for Rehearing of their decision raising the royalty rate for the use of sound recordings on Internet radio stations for 2006-2010. The Board found that the Rehearing requests did not demonstrate that there was any manifest error in the initial decision, and did not introduce any new evidence that could not have been introduced in the original hearings. Finding that these standards for rehearing were not met, the motions were all denied. The Board decision was brief, not addressing in any specifics the issues raised in the rehearing motions.
The Board did, however, decide to issue two clarifications to its decision. It decided that, for administrative convenience, they would permit royalties for a transition period to be paid on an aggregate tuning hour basis for 2006 and 2007. For 2006, the ATH rate would be $.0123 per hour for Internet-only webcasters, $.0092 per hour for broadcasters who stream their over-the-air music programming, and $.0011 for broadcast stations which use only incidental music (e.g. news/talk and sports stations). For 2007, those rates would rise to $.0169 for Internet-only webcasters, $.0127 for the simulcast of a terrestrial broadcast station’s signal for a music station, and $.0014 for the simulcast of a talk radio station. These numbers appear to assume 11.5 songs per hour for broadcasters, and 15.4 songs per hour for Internet-only stations.
The Board also issued a clarification requested by SoundExchange, determining that the royalties established in this proceeding apply to streaming received over mobile phones.
The Board did not specifically address the requests for rehearing of the $500 per channel minimum fee that could be interpreted to require a minimum fee for each stream created by a service like Pandora, and would certainly require huge royalties by services like Live 365 – regardless of how many people listen to the streams. It also did not even address the issue raised by the Broadcasters, pointing to the fact that SoundExchange had offered an expert witness in the satellite radio proceeding who contradicted the expert witness offered by SoundExchange in this case – the expert on whose testimony the CRB decision was based.
Given this decision, the next procedural step will be for the publication of this decision in the Federal Register by the Library of Congress. Once published, interested parties will have 30 days to file a notice of appeal of the decision with the US Court of Appeals for the District of Columbia.