Yes, Virginia, There are Updates

Posted on April 2, 2009 by Kevin Goldberg

Just a quick update on some recent stories we've had on CommLawBlog.  There's a common thread running through all three.  A free CommLawBlog subscription to the first person who can find it...

  • The House of Representatives passed the Free Flow of Information Act by a voice vote late Tuesday night, less than a week after we reported to you that the House Judiciary Committee had done the same.  The fight for a federal shield law now moves to the Senate.  Unclear whether the Senate will take up HR 985  (introduced by Rep. Rick Boucher (D-VA)) or  focus on its own version, S 448, and try to reconcile the differences later.
     
  • Senator Blanche Lincoln (D-AR) introduced the "Local Radio Freedom Act" in the Senate on March 30.  This is a nonbinding resolution which serves as formal opposition to the Performance Rights Act (HR 848 and S 379) legislation that would require over-the-air broadcasters to pay royalties for performance of sound recordings for the first time ever.  The introduction of the Local Radio Freedom Act comes in the midst of a flurry of activitiy in this area.  As we earlier reported, the House Judiciary Committee held a hearing on the Performance Rights Act on March 10. That legislation now has 36 co-sponsors in the House and 6 in the Senate supporting the institution of a  performance right for over-the-air broadcasting.  

    A key Congressman, Rep. Rick Boucher (D-VA), Chair of the Subcommittee on Communications, Technology and the Internet of the House Energy and Commerce Committee, has called broadcasters to the negotiating table.  He's quoted in the April 1 edition of Communications Daily as saying: "My advice:  It's time to start talking."   The Communications Daily piece notes that this particular quote was part  of a more general statement opining that broadcasters should enter into negotiations regaridng royalty rates across all platforms, not just the over-the-air performance right.  

    We're not sure how quickly broadcasters will respond, as they appear to have the upper hand for now:  the House version of the Local Radio Freedom Act (again -- the opposition to a Performance Right), H. Con. Res. 49, now has 158 co-sponsors.  The new Senate resolution, numbered S. Con. Res 14,  boasts Senator Sam Brownback (R-KS) and Senator John Barrasso (R-WY) as co-sponsors to Senator Lincoln.
     
  • Finally, the United States Supreme Court decided not to review the constitutionality of Virginia's overly broad Anti-Spam law, which was declared unconstitutional on September 12, 2008 by the State Supreme Court.  Virginia's lawmakers are now likely to take up the matter during their next session. 
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For Just $ 150, You Too Can Save the Future of Webcasting

Posted on January 21, 2009 by Kevin Goldberg

We haven't fully resolved the ongoing controversy surrounding the copyright royalties paid by webcasters in exchange for the right to perform sound recordings during the years 2006-2010, but it's already time for non-interactive webcasters (which includes radio stations simulcasting an over-the-air signal on the Internet) to worry about another increase in the rates for 2011 and beyond.  With the appeal of Copyright Royalty Board's ("CRB")  March 2007 ratesetting decision still pending in the United States Court of Appeals for the District of Columbia Circuit, the CRB is already starting up the next ratemaking proceeding.  Of course, this also comes as the CRB considers extending the requirement that webcasters must file reports containing certain information about all songs performed from two seven day periods per quarter to a comprehensive, year round, "census" filing. 

The ratemaking proceeding is a trial-type process whereby interested parties present detailed statistical and economic evidence designed to assist the CRB in determining the value of a non-interactive performance of a sound recording (that particular version of a musical work that you hear over the Internet) under a "willing buyer/willing seller" standard. 

Anyone can participate, though the extended and intensive proceeding often deters individual webcasters from joining in the fun, especially if they believe that one or more trade associations will represent their interests.  Still, it only costs $ 150.00 and the time required to file an original and five copies of a  Petition to Participate with the Copyright Royalty Board by February 4, 2009 to reserve your right to participate.  More information regarding the details of how and where to file the Petition are available in the January 5, 2009 Federal Register  notice of this proceeding.   The substantive aspects of the Petition are remarkably simple, requiring just: 

  • The petitioner's full name, address, telephone number, facsimile number (if any), and e-mail address (if any); and
     
  • A description of the petitioner's significant interest in the subject matter of the proceeding.

You can also join up with some friends and jointly file a Petition with the following information: 

  • The full name, address, telephone number, facsimile number (if any), and e-mail address (if any) of the person filing the petition;
     
  • A list identifying all participants to the joint petition;
     
  • A description of the participants' significant interest in the subject matter of the proceeding; and
     
  • If the joint petition is filed by counsel or a representative of one or more of the participants that are named in the joint petition, a statement from such counsel or representative certifying that, as of the date of submission of the joint petition, such counsel or representative has the authority and consent of the participants to represent them in the royalty rate proceeding.

If you are webcasting and interested in participating, but have further questions about the Petition or the entire proceeding, please contact a Fletcher, Heald & Hildreth, P.L.C attorney.
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