You’ve got until February 4 to ante up to participate in any or all of the three.
A lot of attention has been devoted to the Webcasting IV decision which the Copyright Royalty Board (CRB) announced on December 16, 2015 (and then promptly revised on December 24). (Don’t be embarrassed if you’re not up to speed on all this; it was the middle of the holidays, after all. Just check out our post and you should be OK.) The ink on that decision isn’t even dry – in fact, the full decision hasn’t been published yet. We’ve seen the ultimate rates and terms for the next five years, but the rationale for those rates and terms hasn’t shown up yet.
And yet, the CRB is back at it again.
The CRB has kicked off three (count ’em, three) separate ratemaking proceedings relating to the performance of other copyrighted works. With three “Notices Announcing Commencement Of Proceeding With Request For Petitions To Participate” published in the Federal Register, the CRB has invited one and all to address 2018-2022 performance rates to be paid in connection with:
- Satellite radio and “pre-existing” subscription services;
- Reproduction and distribution of phonorecords; and
- Public broadcasting.
If you have any interest in any, or all, of these, you’ve got until February 4, 2016 to get your foot in the door. You do that by filing your Petition to Participate and ponying up a filing fee of $ 150.00 per proceeding.
CommLawBlog readers are probably least likely to feel much need to participate in the Satellite radio and “pre-existing subscription services” matter. That’s because that proceeding will set the rates and terms for digital performance of sound recordings by satellite radio services – currently only Sirius XM – and cable radio services, also a relatively limited universe. And in keeping with the “we just finished and now we’re back at it theme”, litigation appealing the rates and terms set in 2013 by the CRB for these services for the years 2013-2017 was completed just a little over a year ago.
We’re getting a bit warmer when we move to the reproduction and distribution of phonorecords. This involves the “mechanical reproduction” rate you pay to a songwriter or music publishing company when you want to make a copy of that song, most commonly as a cover version of the song on vinyl, CD or MP3 but also – importantly for many radio stations – on-demand streaming and podcasts.
The “public broadcasting” proceeding will set the rates and terms paid by noncommercial broadcasters to ASCAP, BMI and SESAC for performance of musical works via over-the-air broadcasting. While commercial radio stations are represented by the Radio Music License Committee in negotiations with ASCAP, BMI and SESAC (with the first two subject to oversight by a federal district court), noncommercial rates are set by the CRB. Just to be clear: this proceeding is NOT limited only to only public broadcasters; rather, it will set the rates for ALL noncommercial radio stations, including: (a) NPR/PBS affiliates; (b) non-NPR radio stations affiliated with educational institutions; and (c) other NCE radio stations that are neither NPR affiliates nor licensed to an educational institution. (For more detail on the nuances that differentiate these three categories, check out my post from December 2012 – but remember, the new CRB proceeding involves all three.)
So wannabe participants have about a month to decide whether they want to pay the $ 150.00 entry fee. While you may initially be inclined to take a pass, one lesson learned from the Webcasting IV proceeding is that if you don’t pay, you can’t play and if you don’t play, you leave your fate entirely in the hands of others: the CRB’s eventual ruling can be based only on the evidence and arguments contained in the record compiled in the proceeding. No matter how sensible a particular solution may seem (like continuing the previously existing category for small webcasters or microcasters), the CRB cannot include it in the final rates and terms sua sponte (a fancy Latin term for “of its own volition”).
A $ 150.00 ante may seem like a lot now, and these are neither simple nor quick proceedings: there are several different phases potentially involving a considerable amount of effort, and the whole think will play out over the next two (or more) years. So there are obvious disincentives to participation. But sitting on the sidelines and hoping someone else carries the water for you comes with the risk of bigger expense later if the rates and terms the CRB eventually adopts prove to be more burdensome than you might like.