The US Court of Appeals for the District of Columbia Circuit today issued a decision basically upholding the royalty rates set by the Copyright Royalty Board due under Section 114 of the Copyright Act by satellite radio operators for the public performance of sound recordings.  The CRB decision, setting royalties for the years of 2007 to 2012, established rates that grew from 6% to 8% over the six year term. As we explained in our post, here, the Board looked at the the public interest factors set out by Section 801(b) of the Copyright Act, factors not applicable to Internet Radio royalties, in reaching the determination these royalties.  Particularly important was the factor which took into account the potential impact of the royalties on the stability of the businesses that would be subject to the royalty, resulting in a reduction of the perceived fair market value of the royalty from what the board determined to be about 13% of gross revenues to the 6-8% final royalty set by the Board.  The Court upheld the Board’s reasoning, rejecting SoundExchange’s challenge to the decision, though the Court did remand the case to the Board to decide the proper allocation of the royalty to the ephemeral rights covered by Section 112 of the Copyright Act.

What was perhaps most interesting about the Court’s decision was the concurring opinion of one of the three Judges, who stated that the fact that the Board’s judges were appointed by the Librarian of Congress, and not by the President, "raises a serious constitutional issue."   This was the same issue raised by Royalty Logic in challenging the constitutionality of the CRB in the webcasting proceeding (see our posts here and here).  The Judge concurred in the majority decision as none of the parties to the satellite radio case raised the constitutional issue, but this very question was squarely raised in the webcasting proceeding, and thus may well be resolved in the decision on that appeal.


Continue Reading Court Upholds Copyright Royalty Board Decision on Satellite Radio Royalties, But Questions Board’s Constitutionality

The FCC today adopted an Order revising its rules to permit the rebroadcast of AM radio stations on FM translator stations.  A copy of the Order is available here.  By this Order, the FCC formally adopted the interim policy that it has experimented with in the past year and a half since the release of the Notice of Proposed Rule Making in this proceeding.  The Commission acknowledged that the interim rule has worked well and that allowing AM stations the same flexibility to use FM translators to enhance their service is in the public interest. 

Per today’s Order:  "Specifically, AM broadcast stations will be allowed to use currently authorized FM translator stations (i.e., those now licensed or authorized in construction permits that have not expired) to rebroadcast their AM signals, provided that no portion of the 60 dBu contour of any such FM translator station extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. In addition, AM broadcast licensees with Class D facilities will be allowed to originate programming on such FM translators during periods when their AM station is not operating."

Several things to note:

First, "currently authorized FM translators" means translator stations with licenses or permits in effect as of May 1st, 2009.  As expected, there is no opportunity to seek authorization for new FM translators, and by extension, there was no need for the FCC to address the issue of priorities between LPFM stations and FM translators (which the FCC says it will address in the pending LPFM rule making).  So this rule change simply allows existing FM translator stations to rebroadcast AM stations.


Continue Reading FCC Adopts Rules Permitting AM Rebroadcasts on FM Translators

The US Senate yesterday passed the Webcaster Settlement Act of 2009, following House passage 10 days ago.  Once the Act receives the signature of President Obama, the law will go into effect, and give webcasting groups and the recording industry 30 days to reach a settlement (or settlements) on Internet radio music royalties for the

In recent months, SESAC has been writing letters to broadcasters who are streaming their signals on the Internet, asking for royalties for the performance of SESAC music on their websites.  More than one broadcaster has asked me why they have any obligation to SESAC when they are already paying SoundExchange for the music that they stream.  In fact, SoundExchange and SESAC are paid for different rights, and thus the payments to SoundExchange have no impact on the obligations that are owed to SESAC.  SESAC, along with ASCAP and BMI, represent the composers of music in collecting royalties for the public performance of their compositions.  SoundExchange, on the other hand, represents the performers of the music (and the copyright holders in those performances – usually the record companies).  In the online digital world, the SoundExchange fees cover the public performance of these recordings by particular performers (referred to as "sound recordings").  For an Internet radio company, or the online stream of a terrestrial radio station, payments must be made for both the composition and the sound recording. 

To illustrate the difference between the two rights, let’s look at an example.  On a CD released a few years ago, singer Madeleine Peyroux did a cover version of the Bob Dylan song "You’re Gonna Make Me Lonesome When You Go."  For that song, the public performance of the composition (i.e. Dylan’s words and music) is licensed through SESAC.  The actual "sound recording" of Peyroux’s version of the song would be licensed through SoundExchange, with the royalties being split between Peyroux and her record label (with backing singers and musicians receiving a small share of the SoundExchange royalty). 


Continue Reading SoundExchange Fees Don’t Cover SESAC Obligations

Last month, the FCC released a Public Notice requesting further comments on the proposal to increase the power of HD radio operations.  We have written about that proceeding a number of times, including posts here and here.  The increased power for the digital radio signals has been sought by many broadcasters who believe that current HD radio power levels do not  produce strong enough digital signals to penetrate buildings and fully serve radio markets.  On the other hand, other broadcasters fear that the increased power for the digital signals will create interference to existing analog stations operating on adjacent channels.  Today, the FCC set the dates for the filing of these additional comments – comments are due on July 6, with replies due on July 17

While comments have already been filed on the proposal to increase digital power, the FCC has raised a number of specific issues on which it wants comments, especially in light of the studies sponsored by NPR in cooperation with a number of other broadcasters, which seek to do a comprehensive review of the interference potential of higher powered digital operations.  NPR is shooting to have that report to the FCC in September.  The specific questions raised in the new FCC notice are:

  • Whether the FCC should wait to decide on the power increase proposal until after the NPR study is done
  • Whether current operations by radio stations operating in HD, and the various tests that have already been run, demonstrate the need for higher power operation on a permanent or provisional basis
  • Whether new standards of interference to adjacent channel stations should be adopted, and if the interference should also protect LPFM stations
  • Whether there should be specific procedures adopted to resolve any interference issues that do arise. 


Continue Reading FCC Seeks More Comments on Possible HD Radio Power Increase – Should LPFM Be Protected?

Reading the papers and watching the news this weekend, one would think that analog television is a relic of the past – something that we can all soon look back at fondly as a quaint childhood memory, never to be seen again.  Yet all the reports fail to mention that for populations that watch their over-the-air television from TV translators or Low Power TV stations, analog television is still very much a reality, and in some places will be for years until the FCC sets a deadline for the digital conversion of these stations. Many of these stations operate in rural areas or serve minority or other specialized audiences, perhaps explaining the lack of coverage in the mainstream media.  But, given all the publicity that has been accorded to the "completion" of the conversion, some of these populations may well have been confused by the process.  We’ve writtenabout this issue and how it could have created confusion in smaller markets which have service by both full-power and low power TV stations, here.

The transition of LPTV to digital raises a number of issues – including the ability of these stations to deliver radio-type programming when operating on Channel 6.  As we’ve written, LPTV stations on Channel 6 have been used to provide radio services, as Channel 6 is immediately adjacent to the FM band and can be picked up on most radio receivers..  However, when the ultimate transition of LPTV to digital is completed, the ability of these stations to provide a radio-type service will probably disappear, as the audio system used by digital television will not be picked up by analog radio receivers. 


Continue Reading Analog Television – Not Dead Yet – Not All LPTV Stations are Digital

A decision released by the FCC’s Media Bureau staff this week makes clear that the permittee of a noncommercial station, who was awarded the permit based on a 307(b) preference, cannot change transmitter sites so as to abandon service to the area that it promised to cover in order to get the preference –

In a case released this week, the FCC decided to forgive a fine that had been imposed on a radio station for not timely filing its license renewal (and for operating after the license expired without authority).  The fine was eliminated because the station’s operator had declared bankruptcy, and the persons who were in charge of

The FCC today issued a Notice of Inquiry into the use of the Portable People Meter technology of radio audience measurement now being rolled out by Arbitron in radio markets throughout the country.  Several months ago, various groups petitioned the FCC for an inquiry into the PPM, contending that it has certain methodological flaws that undercounted particular groups, including minority groups, and thus could have an impact on the financial viability of the stations listened to by such groups (see our summary  of the petitions and the issues raised by these petitions).  The Notice of Inquiry asks about those perceived flaws, about the potential impact of any flaws on the use of Arbitron market definitions for purposes of the FCC radio multiple ownership rules, and on the more general question of whether the FCC even has the jurisdiction to regulate the use of the PPM.

Specific questions on which the FCC seeks comments include:

  • Does the use of this technology really undercount minority populations?
  • If so, what has been the impact on the economics of minority-formatted stations in markets where the system is in use?
  • Are there specific information gathering techniques that should be improved in the PPM system?
  • What has been the effect on the PPM system of settlements between Arbitron and the Attorneys General of several states – where Arbitron promised to change its sampling process?
  • What is the impact of Media Ratings Council accreditation for the PPM in certain markets, and its lack of accreditation in others?
  • Do the questions about PPM reliability have any impact on the use of Arbitron to define radio markets for FCC multiple ownership purposes?
  • What is the FCC’s jurisdiction to review Arbitron’s practices in connection with the PPM? 

Details of these questions can be found in the FCC’s Notice of Inquiry at pages 12-17.


Continue Reading FCC Begins Formal Inquiry Into Arbitron PPM Audience Measurement