Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
As we have noted, a proceeding before the Copyright Royalty Board to set the rates to be paid to SoundExchange for the public performance of music by a non-interactive commercial webcasting service for 2026-2030 started last year, and is scheduled to be completed by the end of 2025. SoundExchange and one of the major webcasting parties remaining in the case, the NAB, this week filed with the Copyright Royalty Board a proposed settlement of the current litigation over the royalty rates to be paid to performers and copyright holders (usually the record companies). These are the royalties that commercial broadcasters pay to SoundExchange for streaming music online, including through mobile apps and to smart speakers. The current rate is $.0025 per Performance (a performance is every time a song is heard by one listener – so, for example, if a station has 10 listeners during an hour and they each hear 10 songs, that is 100 Performances). And, under the settlement, the rates will be going up, effective January 1, 2026.
The rates proposed in the settlement are as follows:
2026: $0.0028 per Performance;
2027: $0.0029 per Performance;
2028: $0.0030 per Performance;
2029: $0.0031 per Performance; and
2030: $0.0032 per Performance
The CRB case is currently set to go to trial on April 28, a week’s extension having just been granted, perhaps because of this week’s resignation of the Chief Judge of the CRB and the appointment of an interim judge (that announcement is on the CRB’s homepage). The NAB had been advocating for substantially lower rates for broadcast simulcasts given their total lack of interactivity. The argument is that simulcast streams, which simply rebroadcast the programming of a commercial broadcast station and are not influenced by “likes” or a user’s favorite songs or artists, should be charged less than those offered by services that allow some degree of user customization, tailoring the stream provided to the user based on their preferences, while still remaining a noninteractive service (see our articles here and here on the difference between noninteractive streams that pay SoundExchange at the rates set by the CRB and those offered by interactive services that must negotiate agreements with the record companies to play their songs). See our article here on the Court decision upholding the 2021-2025 royalties which rejected a similar argument by the NAB. By settling, it appears that the NAB opted for certainty in establishing rates modestly higher in each of the next five years rather than incurring the substantial cost of litigating over what the rates should be and the uncertainty that comes with any litigation – as SoundExchange was asking for rates substantially higher than those set out in the settlement. Continue Reading Settlement Between NAB and SoundExchange on Webcasting Royalty Rates for 2026-2030 – Rates are Going Up for Broadcast Simulcasts
President Biden’s signing of the Continuing Resolution last week (see our discussion here) has kept the federal government open, with the FCC and FTC having money to stay open through March 8. So the FCC will be open and thus there are February regulatory dates to which broadcasters should be paying attention.
February 1 is the deadline for radio and television station employment units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs). A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee. For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year. A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website. Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).Continue Reading February Regulatory Dates for Broadcasters – Annual EEO Public File Reports, C-Band Transition Reimbursement, Political Windows, and More
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
The Copyright Royalty Board has published in the Federal Register a correction to its notice announcing the commencement of the next proceeding to set rates for the royalties paid by webcasters (including broadcasters who stream their music through the internet) to SoundExchange for the public performance of sound recordings in the period 2026-2030. The correction is to the date by which interested parties must file a petition to participate – setting that date as February 5, 2024, not February 6 as originally stated. Thus, interested parties have a deadline one day earlier than previously announced. We wrote more about that proceeding here.
The CRB also published in the Federal Register a notice announcing that it would be auditing five broadcast companies who are streaming their signals to assess their compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. Another audit notice has gone out to a company called RFC Media, which is both a webcaster and a Business Establishment Service whose royalties are exclusively paid under Section 112 of the statute (see our article here about the CRB-set royalties for these services that provide music played in various food and retail establishments and other businesses).Continue Reading Copyright Royalty Board Issues Correction of Deadline to File Petitions to Participate in New Proceeding to Set Webcasting Royalty Rates for 2026-2030, and Issues Notices of Audits of Webcasters
Update (January 24, 2024) – The Copyright Royalty Board issued a Federal Register Notice correcting the deadline for Petitions to Participate in the WEB VI proceeding – making clear that the deadline is February 5, 2024, not February 6 as previously reported. This article has been updated with the corrected deadline. For more information, see our article here).
The Copyright Royalty Board on Friday published in the Federal Register a call for interested parties to file Petitions to Participate in the proceeding to set the royalty rates to be paid by webcasters (including broadcasters who simulcast their programming through internet-delivered channels) in the period 2026-2030. These royalties are paid by webcasters to SoundExchange for the noninteractive streaming of sound recordings. The CRB is required to review these rates every five years. These proceedings are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would agree to in a marketplace transaction. Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires. So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates by February 5, 2024 by filing a Petition to Participate. The Petition must describe the party’s interest in the proceeding and be accompanied by a filing fee of $150. The Federal Register notice provides other procedural details for filing these Petitions.
Once the Petitions to Participate are filed, the CRB will set out the rules and procedures to be followed in the proceeding. Initially, there is a 90 day period in which the parties can try to settle the case. While parties can settle at any time (subject to approval of the terms by the CRB), this initial 90-day period occurs before any litigation begins and offers parties the opportunity to avoid much of the cost of litigation. Once that period ends without a settlement, the litigation begins. Initial stages of the litigation (including the identification of witnesses, submission of the rate proposals and the evidence supporting those proposals, and the initial discovery) will likely all take place in 2024, with the hearing itself conducted in 2025, followed by final briefs summarizing the evidence and arguing about the conclusions to be drawn from that evidence. There are usually oral arguments held after the briefs are submitted. At that point, the three Copyright Royalty Judges will consider the evidence and the arguments and release their decisions late in 2025, so that parties know the new rates as of January 1, 2026. While there may be appeals of the decision that are argued well beyond the effective date of the new rates, the rates become effective while those appeals are pending.Continue Reading Copyright Royalty Board Starts WEB VI Proceeding to Set Webcasting Royalties Paid to SoundExchange for 2026-2030: Petitions to Participate Due February 5
Expecting quiet weeks, we took the holidays off from providing our weekly summary of regulatory actions of interest to broadcasters. But, during that period, there actually were many regulatory developments. Here are some of those developments, with links to where you can go to find more information as to how these actions may affect your…
Earlier this week, we covered the broadcast issues that the FCC may be facing in 2024. But the FCC is just one of the many branches of government that regulates the activities of broadcasters. There are numerous federal agencies, the Courts, Congress, and even state legislatures that all are active in adopting rules, making policies, or issuing decisions that can affect the business of broadcasting and the broader media industry. What are some of the issues we can expect to see addressed in 2024 by these authorities?
For radio, there are music rights issues galore that will be considered. Early in the year, the Copyright Royalty Board will be initiating the proceeding to set streaming royalties for webcasters (including broadcasters who stream their programming on the Internet) for 2026-2030. These proceedings, which occur every five years, are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would arrive at for the noninteractive use of sound recordings transmitted through internet-based platforms. Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires. So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates early this year, even though the proceeding is unlikely to be resolved until late 2025 (unless there is an earlier settlement)(the CRB Notice asking for petitions to participate in the proceeding is expected to be published in the Federal Register tomorrow). Initial stages of the litigation (including the identification of witnesses, the rate proposals, the evidence supporting those proposals, and the initial discovery) will likely take place this year. Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part II: What to Expect from the Courts and Agencies Other than the FCC
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
