The FCC adopted rules for the digital operation of FM radio stations (known as HD Radio or the Ibiquity In Band On Channel system – IBOC for short) in 2007 and allowed the Media Bureau to amend those rules as technical developments warranted. In 2010, the Bureau authorized an increase in the power level of the digital portion of
A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.
Please note, this filing date…
Many Webcasters who have elected the the royalty rates set by many of the settlement agreements entered into pursuant to the Webcasters Settlement Act must file an election notice with SoundExchange by January 31 to continue to be covered by those settlement agreements. These agreements were entered into by groups of webcasters and SoundExchange, and allow the webcasters to pay royalties at rates lower than those rates set by the Copyright Royalty Board for 2006-2010. January 31 is an important date even for those webcasters who are covered by agreements that don’t demand an annual election, as most Internet radio operators must make annual minimum fee payments by January 31. SoundExchange does not send out reminders of these obligations, so Internet Radio operators must remember to make these filings on their own. The original election forms filed under settlement agreements signed by the NAB and by Sirius XM cover the entire settlement period from 2006-2015, so no election form must be filed each year, though minimum fee payments must still be made. Note that certain small broadcasters, who need not meet SoundExchange recordkeeping obligations, do need to file an election to certify that they still meet the standards necessary to count as a small broadcaster. The WSA settlement agreements that cover Pureplay webcasters, Small Commercial webcasters, Noncommercial Educational webcasters and other noncommercial webcasters all are entered into on a year-by-year basis. Thus, to continue to be covered, parties currently governed by these agreements need to file a Notice of Election to again be covered by these agreements by January 31 (though note that the SoundExchange website provides for filings by February 1, presumably as January 31 is a Sunday).
The election forms are available on the SoundExchange website, though they are not easy to find. The forms that must accompany the annual minimum fees are also on the SoundExchange website. Note that in some cases there are forms that cover both webcasters who paying under a particular settlement, as well as under the special provisions for small entities that are covered by these same agreements (e.g. Small Pureplay webcasters file a different form than other Pureplay Webcasters even though both are governed by the same agreement. Similarly Small Broadcasters file a form different than other broadcasters, though both are covered by the same agreement). These forms can be found at the links below. Click on the name of the category of webcasters for a link to our article that summarizes the particular settlement, the minimum fees required, and the qualifications for small webcasters under that deal (if there is such a provision):
- Broadcasters minimum fee form – here.
- Small broadcasters election form – here. Minimum fee payment form – here.
- Pureplay webcaster election form – here. Minimum fee payment form – here.
- Small pureplay election form – here. Minimum fee payment form – here.
- Small commercial webcaster election form – here. Minimum fee payment form – here.
- Microcaster election form – here. Minimum fee payment form – here.
- Noncommercial educational webcaster election form – here. Minimum fee payment form – here.
- Other noncommercial webcaster election form – here. Minimum fee payment form – here.
- Noncommercial microcasters election form – here. Minimum fee payment form – here.
- Satellite radio (for their webcasting operations – a deal that may also fit other commercial webcasters who are not covered by other agreements) minimum fee payment form – here.
Note that there is no specific form for NPR affiliates covered under the NPR settlement, as an organization set up by the Corporation for Public Broadcasting handles all payments and SoundExchange filings. Other companies providing Internet radio services need to pay attention to these dates – and file the necessary papers and make the required payments by the upcoming deadline.
Last Friday we posted about the FCC’s announcement that it would open a filing window in December for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments. Today, the FCC revised the timing of that window and postponed the opening until February 2010. Accordingly, rather than accepting applications for these vacant noncommercial…
The FCC today announced the opening of a filing window for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments. Applications on FCC Form 340 will be accepted from December 11th through December 18th for these vacant FM allotments in the non-reserved band between Channels 221 and 300. A full listing of the allotments that…
Even though the National Association of Broadcasters has been successful in getting about 240 Congressional Representatives (far more than a majority of the House of Representatives) to sign onto a resolution opposing the adoption of a performance royalty for the use of sound recordings by broadcasters in their over-the-air programming, the efforts to enact that legislation have not died. In fact, if anything, these efforts by the recording industry and related associations have intensified – and will be reflected in a hearing to be held by the Senate Judiciary Committee on Tuesday afternoon. While I’ve seen some commentary suggesting that this is a futile effort because of the signatures on the NAB resolution, there are many reasons that broadcasters must continue to be wary of the imposition of the royalty, and why they must keep up efforts to stop it from being enacted if they fear its potential impact.
How can this legislation be enacted if a majority of the House of Representatives have signed the resolution stating their opposition? First, it is important to recognize that the NAB resolution, The Local Radio Freedom Act, is nonbinding. Congressional representatives who have signed on to the resolution can take credit with their local broadcasters for having done so. When the time comes for a vote on proposed legislation, it’s possible that these same Representatives could change their mind, or be pressured by artists and labels in their districts to vote differently from their previously expressed sentiments. With a long way to go in this session of Congress, facing a vote on the royalty and seeing how committed these Representatives are to the positions that they have taken on the resolution is still a real possibility. The legislation imposing the royalty (or the "performance tax" in the words of the NAB) has passed the House Judiciary Committee, and the Speaker of the House has not yet specifically stated that the bill will not come to a full House vote, even though she has been pressed to do so by broadcast interests.
SoundExchange has posted on its website this afternoon four press releases announcing new settlements of amounts due for Internet radio music royalties. These settlements were negotiated under the provisions of the Webcaster Settlement Act of 2009. The announcement lists settlements with two noncommercial groups representing College Broadcasters and noncommercial religious broadcasters, as well as a deal with Sirius XM for their streaming of music. The fourth deal is with a group to be named later – a little mystery that sounds like something out of a trade of baseball players done right at the trading deadline. In effect, that is the case here, as yesterday was the final date for deals to be done under the terms of the WSA. These deals join the Pureplay Webcasters settlement announced earlier this month, as well as the deals with the Corporation for Public Broadcasting for NPR affiliates, the NAB for commercial broadcasters, and with microcasters done in February under the terms of the Webcasters Settlement Act of 2008 (links to our description of these deals can be found here).
The press releases do not release detailed terms. For Sirius, the release states that the parties agreed to a per performance rate which is not specified, covering webcasting royalties through 2015. These rates do not apply to Sirius performances that are done by satellite, which are covered by the Copyright Royalty Board rates recently upheld by the US Court of Appeals. Instead, these rates only cover the streaming of Sirius programming done over the Internet or to mobile devices using Internet technology. The Collegiate Broadcasters agreed to a rate that provided the flat $500 fee for the first 159,140 aggregate tuning hours a month set by the CRB decision, and then per performance fees at the NAB rates for all streaming above that amount. The religious broadcasters deal is less defined, discussing a per performance rate, but not providing any more details of the agreement. For both noncommercial groups, there are references to reduced recordkeeping requirements for some webcasters, but again, those have not yet been detailed.
Each day, there seems to be a report about broadcast stations going off the air because of the current economic downturn – some permanently (witness several Montana full-power television stations formerly owned by Equity Broadcasting whose licenses were surrendered two weeks ago), some temporary, and some being given away to charity (like Clear Channel’s announcement of its donation of 4 AM stations to the Minority Media and Telecommunications Council). Several months ago, we wrote here about the steps a broadcaster should take when taking a station off the air – notification to the FCC within 10 days of the station going silent, seeking permission to remain silent after 30 days, and making sure that tower lights are maintained even if the station is off the air. But, as this situation becomes more common, there are a couple of other issues that have recently come up that are worth mentioning – one having to do with the one year period that a station can stay off the air without forfeiting its license, and the other dealing with music royalties.
First, in the last few months, there have been cases which have clarified, at least to a degree, the law that states that a license will be forfeit if a station is off the air for more than a year. In one decision, the Commission’s Video Division of its Media Bureau canceled the license of a television station that had come back on the air shortly before the year of silence was to end, but only broadcast a test pattern. Finding that the station had not broadcast any programming, and that transmission of a test pattern did not constitute "broadcasting", the Division determined that the obligation to return to the air had not been met, and canceled the license. The licensee is appealing this decision, arguing that the law (Section 312g of the Communications Act) does not require that a station broadcast programming, just that it "transmit broadcast signals" within a year of the time that it went off the air. But, for now, licensees who take their stations silent should plan for returning to the air with some programming within a year, or risk the cancellation of the station license.
The Pureplay Webcasters settlement agreement, which we summarized here, was published in the Federal Register on Friday, starting the 30 day clock running for the election of the deal by existing webcasters. While this deal offers better per performance rates to large webcasters than offered by the rates established by the Copyright Royalty Board, and higher permissible listening levels to Small Commercial Pureplay webcasters than allowed under the Microcaster deal, this option still is not for everyone. For larger webcasters, there is a minimum fee of 25% of total revenue, so companies with multiple lines of business will not want to opt into the deal. For smaller webcasters, the fees are higher than under the Microcaster deal, including a $25,000 minimum yearly fee, and there are per performance rates that are charged when the webcaster offers services that are "syndicated," i.e. played through a website other than that of the webcaster itself. So electing this deal is right only for larger "small pureplay" webcasters who have revenues over $250,000 (where they will be paying royalties in excess of the $25,000 minimum fee under any deal) and those entities nearing the audience caps of the Microcaster deal. Nevertheless, for those webcasters who fit within the constraints of the deal, it offers benefits over the other existing options. The opt-in date set by the deal is August 17, 2009. The forms to opt into the the Small Pureplay webcasters agreement are here. The forms for larger Pureplay webcasters are here.
Note that this is just one of many options available to webcasters, each tailored to webcasters of specific types. Noncommercial webcasters associated with NPR or the Corporation for Public Broadcasting have their own deal, where essentially CPB pays the royalties. See our description of this deal, here. Streaming done by broadcasters, who would not want to take the "pureplay" deal as their broadcast revenues would be subject to the royalties, have their own settlement agreement, which we described here and here, setting out per performance rates different than those arrived at by the CRB. Small commercial webcasters can elect the "Microcaster" deal, which we described here. And for those entities that don’t fit under any of these categories, they will have to pay the CRB rates, which we described here and here. The Radio and Internet Newsletter recently ran a good, basic summary of these alternatives, here. Note that there still is another two week period where, under the Webcaster Settlement Act of 2009, agreements can be reached with SoundExchange by other webcaster groups to potentially pay rates that are different from any of those agreed to so far.
The US Court of Appeals for the District of Columbia today released its decision for the most part rejecting the appeals of webcasters of the 2007 decision of the Copyright Royalty Board setting Internet Radio royalty rates for the use of sound recordings. The Court generally upheld the Board’s decision, finding that the issues raised by the appealing parties did not show that the decision was "arbitrary and capricious" – a high standard of judicial review that the Courts accord when reviewing supposedly "expert" administrative agency decisions. On only one issue did the Court have concerns with the CRB’s decision – that being the question of the $500 per channel minimum fees that it had required that webcasters pay. The Court found that per channel fee, which could result in astronomical fees for some webcasters regardless of their listenership, was not supported by the record evidence, and remanded that aspect of the case to the CRB for further consideration.
The Court surprised some observers by not reaching the constitutional issue of whether the Copyright Royalty Judges were properly appointed. As we wrote before (see our posts here and here), issues were raised by appellant Royalty Logic, contending that these Judges should be appointed by the President, and not by the Librarian of Congress. In the recent Court decision on the CRB rates for satellite radio, where the issue had not even been raised, one Judge nevertheless wrote that he questioned the constitutionality of the CRB. The Court here decided not to decide the issue – finding that it had been raised too late by Royalty Logic, and raised too many fundamental issues (including whether the Register of Copyrights should herself be appointed by the President, potentially invalidating many copyrights) to be decided on the minimal briefing accorded it by the parties.