Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
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.
There are normally a host of regulatory obligations at the beginning of February, but because of technical issues with the FCC’s online public file and LMS systems, many February 1 dates, as well as some January regulatory deadlines, have been extended to late February.
Due to technical problems that affected FCC filings throughout the month of January, the FCC last week issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems that were due in late January and early February. The new deadline for these filings is February 28, 2023. This new deadline applies to TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1). Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline has now been further extended to February 28 by last week’s Public Notice. Note that the Public Notice is broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28. Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as the intermittent problems that have plagued the systems could persist for some time and make meeting even the extended deadline problematic, especially if you wait for the last minute to try to file. For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on this subject.
February 28 is the deadline by which EAS participants must file their EAS Test Reporting System (ETRS) Form One. Filing instructions are provided in the Public Notice issued by the FCC earlier this month (see also our articles here and here). All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions: Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point) are not required to register and file in ETRS. Carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.…
Royalties paid for the use of music by broadcasters and digital media companies, and other issues about music rights, can be an incredibly dense subject, with nuances that can be overlooked. I participated in a CLE webinar earlier this week, sponsored by the Federal Communications Bar Association, where we tried to demystify some of the issues in music licensing (see description here). I moderated a panel on the Hot Topics in Music Licensing, talking about the broadcast performance royalty, the appeal of the webcasting royalty decision, issues about the proliferation of performing rights organizations seeking royalties for the public performance of musical compositions, and more theoretical issues about the entire process of clearing music for use by broadcasters and other businesses. To highlight some of the issues, and some of the tensions in the world of music royalties, I put together the attached article. Hopefully, it provides some context on the relationship between some of these hot topics, and gives some food for thought as to how these issues can be addressed.
As 2023 begins, our “Hot Topics” panel will look at some of the current legal and policy issues in music licensing that may be relevant to the communications industry. Most of the issues we will discuss are ones that have been debated, in one form or another, in copyright circles for decades. But, as copyright can be so complicated with many stakeholders with differing interests, the chances of any final resolution to any of these issues may well be small. This article is meant to put some of those debates in context, as many of the specific issues, in one way or another, are intertwined.
The issue that likely will be the most contentious this year (and has been for decades) is the continuing effort of the recording industry to establish a public performance right in sound recordings that would apply to non-digital performances. For over 25 years, recording artists and the record labels (which usually hold the copyrights to popular recordings) have had a right to a performance royalty for digital performances. Broadcasters who stream an online simulcast of their programming, along with webcasters and others who make non-interactive digital transmissions, must pay a performance royalty, generally to SoundExchange. The rates to be paid are set by the Copyright Royalty Board. But in the US, over-the-air broadcasters, restaurants, bars, clubs, retail establishments, and others who publicly perform music pay only for the performance of the musical compositions (the “musical work”), not for the performance of the song as recorded by a particular artist (the “sound recording”). That has been a point of contention for a century, almost from the moment when recorded music first appeared, but the issue has become particularly heated in the last two decades, once the sound recording public performance right was established after being mandated by copyright legislation in the late 1990s.…
Continue Reading An Overview of the Hot Policy Topics in Music Licensing
In a Federal Register notice published today, the Copyright Royalty Board announced cost-of-living increases in the statutory royalties paid by webcasters for the public performance of sound recordings. These are the royalties paid to SoundExchange by those making noninteractive digital transmissions of sound recordings. This included broadcasters who simulcast their over-the-air programming on the internet or through mobile apps (or through other digital means including smart speakers like Alexa, see our article here). The CRB notice sets out the computations that the Board used to determine the amount of the cost-of-living increase. Those computations led to a royalty rate for 2023 of $.0024 per performance for services that do not charge a subscription fee. For subscription services, the rate will be $.0030 per performance. A performance is one song played to one listener – so for one song paid to four listeners one time each, a webcaster pays about a penny.
Given the rate of inflation in the general economy, it is perhaps no surprise that the rates for 2023 represent a substantial increase from the royalties paid last year, and from those that were in place in 2021, the first year of the current 5-year royalty period. As we wrote here, when the CRB decided on the rates for 2021-2025, the nonsubscription rate was $.0021 per performance. But the CRB provided for cost of living increases. That led to rates in 2022 for commercial webcasters, including broadcasters streaming their programming on the internet, of $.0022 per performance for a nonsubscription transmission and $.0028 per performance for a subscription transmission (see our article here mentioning the 2022 increase). …
Continue Reading Copyright Royalty Board Announces Cost-of-Living Increase for 2023 Webcasting Royalties – Including Royalties for Broadcasters Who Simulcast Their Programming Online
A new Chief Copyright Royalty Judge of the Copyright Royalty Board has just been named by the Librarian of Congress. According to the Press Release announcing his appointment, David Shaw will fill that position after having previously served as an administrative law judge on the International Trade Commission for over 10 years. There, he heard complex cases dealing with detailed financial matters – experience that sounds relevant to the kinds of cases he will be deciding on the CRB. The Copyright Royalty Judges decide cases determining the marketplace value of music when setting royalty rates, and that look at the relative value of programming when deciding the distribution of cable royalties to program copyright holders. In addition to ITC experience, Shaw was a judge at the Social Security Administration and, according to his biography, worked in the General Counsel’s office at NPR early in his career. With the appointment of this new Chief Judge, we thought that it would be worth looking at some of the specific areas in which the CRB makes decisions that affect media companies.
The CRB is principally charged with rates and distributions for copyrights governed by a “statutory licenses.” A statutory license is created by Congress when it is believed that individual negotiations between copyright holders and copyright users would either be unduly complex so as to be almost unworkable or where an efficient market would not otherwise exist. Essentially, the statutory license means that the copyright owner must license the work that they own – they cannot restrict its use – if the user pays the royalties set by law or established by the CRB and abides by the conditions for use set out in the law. See our article here about music statutory licenses and our articles here and here on some of the issues with the TV statutory licenses. The conditions of use are often carefully restricted so as to only cover very specific uses under the statutory license (see our article here on the conditions placed on the use of music under the statutory license for webcasting – the public performance right for sound recordings used by noninteractive services discussed below).…
As 2021 wound down, there were significant developments on SoundExchange royalties for webcasters – including broadcasters who simulcast their on-air programming through IP channels (such as on their websites and on mobile apps). While we covered many of these matters in our weekly Sunday updates on regulatory matters of importance to broadcasters, we thought that it would be worth summarizing all of the action in one place. Most, but not all, of these developments follow from last year’s Copyright Royalty Board decision raising webcasting rates for 2021-2025 (see our article here summarizing that decision).
The CRB’s decision was published in the Federal Register in October 2021. As of that date, all webcasters, if they had not already been doing so, should be paying the higher royalties ($.0021 per song per listener in 2021 for nonsubscription streams). SoundExchange has appealed the CRB’s decision (presumably to argue the rates should have been set even higher), as have the NAB and the National Religious Broadcasters Noncommercial Music License Committee. These appeals are pending and likely will be briefed and argued sometime in 2022. If you have not trued up your payments (the increase in royalties was retroactive to January 1, 2021), consult your legal advisor as to the effect that these appeals may have on your responsibility for that true-up. …
Continue Reading A Look at Developments in SoundExchange Webcasting Royalties (Including for Broadcast Simulcasts) From the End of 2021
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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The Copyright Royalty Board (CRB) on Friday released the rates and terms for webcasting royalties for 2021-2025, and the rates are going up. While the full decision explaining the reasoning for the rate increases will not be released to the public until the parties to the case have the opportunity to seek redaction of private business information, the rates and terms themselves were released and can be found here. These new rules apply to all noninteractive webcasters including broadcasters who are simulcasting their over-the-air signals on the Internet. As detailed below, both the per-performance and annual minimum fees will be increasing for both commercial and nonprofit webcasters.
The per-performance royalty increases to $.0021 for non-subscription streams, up from the current $.0018. For subscription streams, the fee increases to $.0026 per performance from $.0023. A performance is one song played to one listener. So, if a streaming service plays one song that is heard by 100 listeners, that is 100 performances.
Continue Reading Webcasting Royalties Going Up – Copyright Royalty Board Releases Rates and Terms for 2021-2025
