The Copyright Royalty Board on Friday published in the Federal Register its decision setting the royalty rates that noncommercial broadcasters will pay to the performing rights organizations for the public performance of musical compositions in over-the-air broadcasting during the period 2018-2022. The rates reflect settlements between ASCAP, BMI and SESAC and various organizations representing noncommercial broadcasters. The Corporation for Public Broadcasting agreed to one set of rates paid to cover NPR and PBS affiliates. The NRB (the religious broadcasters’ organization) agreed to another set of rates that apply to non-NPR radio stations not owned by colleges and universities, setting out rates that these noncommercial stations pay to each of the three legacy performing rights organizations. For these radio stations, the rates are based on the population served by each noncommercial station. College and university-owned stations can take advantage of a third set of rates, based primarily on the number of students in the school.
Interestingly, the newest PRO, GMR (about which we have written many times in connection with its battles with commercial radio – see for instance our articles here and here), did not file to participate in this proceeding when the proceeding began in early 2016 (see our article here on the commencement of the proceeding). The settlements approved by the CRB recognized that there may be some songwriters and publishers who are not members of ASCAP, BMI and SESAC but have music that is played on the air. A $1 fee to cover this unaffiliated music was provided in the settlement agreements. Only after these settlements were fully negotiated, filed with the CRB for approval, and published in the Federal Register as required by applicable law (well after what would otherwise have been the time for the litigation over the royalty rates had there been no settlements), GMR objected arguing that it should have been allocated royalties equal to those that SESAC is to receive. In the order published in the Federal Register on Friday, the GMR claim was rejected as being barred by the Copyright Act which effectively prohibits organizations from sitting back and ignoring a proceeding until the very last moment. Only “parties” to a proceeding, those that had timely participated in the case, are entitled under the law to object to a settlement and offer alternative proposals. Thus, for the five year period for which these royalties are in effect, this decision settles what the noncommercial broadcaster pays for the public performance rights to musical compositions for over the air broadcasts.