Notification of Agreements Under the Webcaster Settlement Act of 2008, 9293-9307 [E9-4439]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 74, Number 40 (Tuesday, March 3, 2009)]
[Notices]
[Pages 9293-9307]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4439]


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LIBRARY OF CONGRESS

Copyright Office


Notification of Agreements Under the Webcaster Settlement Act of 
2008

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of agreement.

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SUMMARY: The Copyright Office is publishing three agreements which set 
rates and terms for the reproduction and performance of sound 
recordings made by certain specified webcasters, under two statutory 
licenses. Webcasters who meet the eligibility requirements may choose 
to operate under the statutory licenses in accordance with the rates 
and terms set forth in the agreements published herein rather than the 
rates and terms of any determination by the Copyright Royalty Judges.

FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Attorney Advisor, or 
Tanya M. Sandros, Deputy General Counsel, Copyright GC/I&R, P.O. Box 
70400, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 
707-8366. See the final paragraph of the SUPPLEMENTARY INFORMATION for 
information on where to direct questions regarding the rates and terms 
set forth in the agreement.

SUPPLEMENTARY INFORMATION: On October 16, 2008, President Bush signed 
into law the Webcaster Settlement Act of 2008 (``WSA''), Public Law 
110-435, 122 Stat. 4974, which amends Section 114 of the Copyright Act, 
title 17 of the United States Code, as it relates to webcasters. The 
WSA allows SoundExchange, the Receiving Agent designated by the 
Librarian of Congress in his June 20, 2002, order for collecting 
royalty payments made by eligible nonsubscription transmission services 
under the Section 112 and Section 114 statutory licenses, see 67 FR 
45239 (July 8, 2002), to enter into agreements on behalf of all 
copyright owners and performers to set rates, terms and conditions for 
webcasters operating under the Section 112 and Section 114 statutory 
licenses for a period of not more than 11 years beginning on January 1, 
2005. The authority to enter into such settlement agreements expired on 
February 15, 2009.
    Unless otherwise agreed to by the parties to an agreement, the 
rates and terms set forth in such agreements apply only to the time 
periods specified in the agreement and have no precedential value in 
any proceeding concerned with the setting of rates and terms for the 
public performance or reproduction in ephemeral phonorecords or copies 
of sound recordings. To make this point clear, Congress included 
language expressly addressing the precedential value of such 
agreements. Specifically, Section 114(f)(5)(C), as added by the WSA, 
states that: ``Neither subparagraph (A) nor any provisions of any 
agreement entered into pursuant to subparagraph (A), including any rate 
structure, fees, terms, conditions, or notice and recordkeeping 
requirements set forth therein, shall be admissible as evidence or 
otherwise taken into account in any administrative, judicial, or other 
government proceeding involving the setting or adjustment of the 
royalties payable for the public performance or reproduction in 
ephemeral recordings or copies of sound recordings, the determination 
of terms or conditions related thereto, or the establishment of notice 
and recordkeeping requirements by the Copyright Royalty Judges under 
paragraph (4) or Section 112(e)(4). It is the intent of Congress that 
any royalty rates, rate structure, definitions, terms, conditions, or 
notice and recordkeeping requirements, included in such agreements 
shall be considered as a compromise motivated by the unique business, 
economic and political circumstances of small webcasters, copyright 
owners, and performers rather than as matters that would have been 
negotiated in the marketplace between a willing buyer and a willing 
seller, or otherwise meet the objectives set forth in Section 801(b). 
This subparagraph shall not apply to the extent that the receiving 
agent and a webcaster that is party to an agreement entered into 
pursuant to subparagraph (A) expressly authorize the submission of the 
agreement in a proceeding under this subSection.'' 17 U.S.C. 
114(f)(5)(C) (2009).
    On February 13, 2009, SoundExchange and the Corporation for Public 
Broadcasting (``CPB'') notified the Copyright Office that they had 
negotiated an agreement for the reproduction and performance of sound

[[Page 9294]]

recordings by small commercial webcasters under the Section 112 and 
Section 114 statutory licenses and requested that the Copyright Office 
publish the Rates and Terms in the Federal Register, as required under 
Section 114(f)(5)(B) of the Copyright Act, as amended by the WSA.
    On February 15, 2009, SoundExchange and the National Association of 
Broadcasters (``NAB'') notified the Copyright Office that they had 
negotiated an agreement for the reproduction and performance of sound 
recordings by small commercial webcasters under the Section 112 and 
Section 114 statutory licenses and requested that the Copyright Office 
publish the Rates and Terms in the Federal Register, as required under 
Section 114(f)(5)(B) of the Copyright Act, as amended by the WSA.
    On February 15, 2009, SoundExchange and the Small Webcasters \1\ 
notified the Copyright Office that they had negotiated an agreement for 
the reproduction and performance of sound recordings by small 
commercial webcasters under the Section 112 and Section 114 statutory 
licenses and requested that the Copyright Office publish the Rates and 
Terms in the Federal Register, as required under Section 114(f)(5)(B) 
of the Copyright Act, as amended by the WSA.
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    \1\ The ``Small Webcasters'' that negotiated the agreement are 
Attention Span Radio; Blogmusik (Deezer.com); Born Again Radio; 
Christmas Music 24/7; Club 80's Internet Radio; Dark Horse 
Productions; Edgewater Radio; Forever Cool (Forevercool.us); 
Indiwaves (Set YourMusicFree.com); Ludlow Media (MandarinRadio.com); 
Musical Justice; My Jazz Network; PartiRadio; Playa Cofi Jukebox 
(Tropicalglen.com); Soulsville Online; taintradio; Voice of Country; 
and Window To The World Communications (WFMT.com).
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    Thus, in accordance with the requirement set forth in amended 
Section 114(f)(5)(B), the Copyright Office is publishing the submitted 
agreements, as Appendix A (Agreement made between SoundExchange and 
CPB); Appendix B (Agreement made between SoundExchange and NAB); and 
Appendix C (Agreement made between SoundExchange and Small Webcasters), 
thereby making the rates and terms in the agreements available to any 
webcasters meeting the respective eligibility conditions of the 
agreements as an alternative to the rates and terms of any 
determination by the Copyright Royalty Judges.
    The Copyright Office has no responsibility for administering the 
rates and terms of the agreement beyond the publication of this notice. 
For this reason, questions regarding the rates and terms set forth in 
the agreement should be directed to SoundExchange (for contact 
information, see https://www.soundexchange.com).

    Dated: February 24, 2009.
Marybeth Peters,
Register of Copyrights.

    Note: The following Appendices will not be codified in the Code 
of Federal Regulations.

Appendix A

Agreement Concerning Rates and Terms

    This Agreement Concerning Rates and Terms (``Agreement''), dated 
as of January 13, 2009 (``Execution Date''), is made by and between 
SoundExchange, Inc. (``SoundExchange'') and the Corporation for 
Public Broadcasting (``CPB''), on behalf of all Covered Entities 
(SoundExchange, and CPB each a ``Party'' and, jointly, the 
``Parties''). Capitalized terms used herein are defined in Article 1 
below.
    Whereas, SoundExchange is the ``receiving agent'' as defined in 
17 U.S.C. 114(f)(5)(E)(ii) designated for collecting and 
distributing statutory royalties received from Covered Entities for 
their Web Site Performances;
    Whereas, the Webcaster Settlement Act of 2008 (codified at 17 
U.S.C. 114(f)(5)) authorizes SoundExchange to enter into agreements 
for the reproduction and performance of Sound Recordings under 
Sections 112(e) and 114 of the Copyright Act that, once published in 
the Federal Register, shall be binding on all Copyright Owners and 
Performers, in lieu of any determination by the Copyright Royalty 
Judges;
    Whereas, in view of the unique business, economic and political 
circumstances of CPB, Covered Entities, SoundExchange, Copyright 
Owners and Performers at the Execution Date, the Parties have agreed 
to the royalty rates and other consideration set forth herein for 
the period January 1, 2005 through December 31, 2010;
    Now, therefore, pursuant to 17 U.S.C. 114(f)(5), and in 
consideration of the mutual promises contained in this Agreement and 
for other good and valuable consideration, the adequacy and 
sufficiency of which are hereby acknowledged, the Parties hereby 
agree as follows:

Article 1

Definitions

    The following terms shall have the meanings set forth below:
    1.1 ``Agreement'' shall have the meaning set forth in the 
preamble.
    1.2 ``ATH'' or ``Aggregate Tuning Hours'' means the total hours 
of programming that Covered Entities have transmitted during the 
relevant period to all listeners within the United States from all 
Covered Entities that provide audio programming consisting, in whole 
or in part, of Web Site Performances, less the actual running time 
of any sound recordings for which the Covered Entity has obtained 
direct licenses apart from this Agreement. By way of example, if a 
Covered Entity transmitted one hour of programming to ten (10) 
simultaneous listeners, the Covered Entity's Aggregate Tuning Hours 
would equal ten (10). If three (3) minutes of that hour consisted of 
transmission of a directly licensed recording, the Covered Entity's 
Aggregate Tuning Hours would equal nine (9) hours and thirty (30) 
minutes. As an additional example, if one listener listened to a 
Covered Entity for ten (10) hours (and none of the recordings 
transmitted during that time was directly licensed), the Covered 
Entity's Aggregate Tuning Hours would equal 10.
    1.3 ``Authorized Web Site'' means any Web Site operated by or on 
behalf of any Covered Entity that is accessed by Web Site Users 
through a Uniform Resource Locator (``URL'') owned by such Covered 
Entity and through which Web Site Performances are made by such 
Covered Entity.
    1.4 ``CPB'' shall have the meaning set forth in the preamble.
    1.5 ``Collective'' shall have the meaning set forth in 37 CFR 
380.2(c).
    1.6 ``Copyright Owners'' are Sound Recording copyright owners 
who are entitled to royalty payments made pursuant to the statutory 
licenses under 17 U.S.C. 112(e) and 114(f).
    1.7 ``Covered Entities'' means NPR, American Public Media, 
Public Radio International, and Public Radio Exchange, and, in 
calendar years 2005 through 2007, up to four-hundred and fifty (450) 
Originating Public Radio Stations as named by CPB. CPB shall notify 
SoundExchange annually of the eligible Originating Public Radio 
Stations to be considered Covered Entities hereunder (subject to the 
numerical limitations set forth herein). The number of Originating 
Public Radio Stations considered to be Covered Entities is permitted 
to grow by no more than 10 Originating Public Radio Stations per 
year beginning in calendar year 2008, such that the total number of 
Covered Entities at the end of the Term will be less than or equal 
to 480. The Parties agree that the number of Originating Public 
Radio Stations licensed hereunder as Covered Entities shall not 
exceed the maximum number permitted for a given year without 
SoundExchange's express written approval, except that CPB shall have 
the option to increase the number of Originating Public Radio 
Stations that may be considered Covered Entities as provided in 
Section 4.4.
    1.8 ``Ephemeral Phonorecord'' shall have the meaning set forth 
in Section 3.1(b).
    1.9 ``Execution Date'' shall have the meaning set forth in the 
preamble.
    1.10 ``License Fee'' shall have the meaning set forth in Section 
4.1.
    1.11 ``Music ATH'' means ATH of Web Site Performances of Sound 
Recordings of musical works.
    1.12 ``NPR'' shall mean National Public Radio, with offices at 
635 Massachusetts Avenue, NW., Washington, DC 20001.
    1.13 ``Originating Public Radio Stations'' shall mean a 
noncommercial terrestrial radio broadcast station that (i) is 
licensed as such by the Federal Communications Commission; (ii) 
originates programming and is not solely a repeater station; (iii) 
is a member or affiliate of NPR, American Public Media, Public Radio 
International, or Public Radio Exchange, a member of the National 
Federation of Community Broadcasters, or

[[Page 9295]]

another public radio station that is qualified to receive funding 
from the Corporation for Public Broadcasting pursuant to its 
criteria; (iv) qualifies as a ``noncommercial webcaster'' under 17 
U.S.C. 114(f)(5)(E)(i); and (v) either (a) offers Web Site 
Performances only as part of the mission that entitles it to be 
exempt from taxation under Section 501 of the Internal Revenue Code 
of 1986 (26 U.S.C. 501), or (b) in the case of a governmental entity 
(including a Native American tribal governmental entity), is 
operated exclusively for public purposes.
    1.14 ``Party'' shall have the meaning set forth in the preamble.
    1.15 ``Performers'' means the independent administrators 
identified in 17 U.S.C. 114(g)(2)(B) and (C) and the individuals and 
entities identified in 17 U.S.C. 114(g)(2)(D).
    1.16 ``Person'' means a natural person, a corporation, a limited 
liability company, a partnership, a trust, a joint venture, any 
governmental authority or any other entity or organization.
    1.17 ``Phonorecords'' shall have the meaning set forth in 17 
U.S.C. 101.
    1.18 ``Side Channel'' means any Internet-only program available 
on an Authorized Web Site or an archived program on such Authorized 
Web Site that, in either case, conforms to all applicable 
requirements under 17 U.S.C. 114.
    1.19 ``SoundExchange'' shall have the meaning set forth in the 
preamble and shall include any successors and assigns to the extent 
permitted by this Agreement.
    1.20 ``Sound Recording'' shall have the meaning set forth in 17 
U.S.C. 101.
    1.21 ``Term'' shall have the meaning set forth in Section 7.1.
    1.22 ``Territory'' means the United States, its territories, 
commonwealths and possessions.
    1.23 ``URL'' shall have the meaning set forth in Section 1.3.
    1.24 ``Web Site'' means a site located on the World Wide Web 
that can be located by a Web Site User through a principal URL.
    1.25 ``Web Site Performances'' means all public performances by 
means of digital audio transmissions of Sound Recordings, including 
the transmission of any portion of any Sound Recording, made through 
an Authorized Web Site in accordance with all requirements of 17 
U.S.C. 114, from servers used by a Covered Entity (provided that the 
Covered Entity controls the content of all materials transmitted by 
the server), or by a sublicensee authorized pursuant to Section 3.2, 
that consist of either (a) the retransmission of a Covered Entity's 
over-the-air terrestrial radio programming or (b) the digital 
transmission of nonsubscription Side Channels that are programmed 
and controlled by the Covered Entity. This term does not include 
digital audio transmissions made by any other means.
    1.26 ``Web Site Users'' means all those who access or receive 
Web Site Performances or who access any Authorized Web Site.

Article 2

Agreement Pursuant to Webcaster Settlement Act of 2008

    2.1 General. This Agreement is entered into pursuant to the 
Webcaster Settlement Act of 2008 (Pub. L. 110-435; to be codified at 
17 U.S.C. 114(f)(5)).
    2.2 Eligibility Conditions. The only webcasters (as defined in 
17 U.S.C. 114(f)(5)(E)(iii)) eligible to avail themselves of the 
terms of this Agreement as contemplated by 17 U.S.C. 114(f)(5)(B) 
are the Covered Entities, as expressly set forth herein. The terms 
of this Agreement shall apply to the Covered Entities in lieu of 
other rates and terms applicable under 17 U.S.C. 112 and 114.
    2.3 Agreement Nonprecedential. Consistent with 17 U.S.C. 
114(f)(5)(C), this Agreement, including any rate structure, fees, 
terms, conditions, and notice and recordkeeping requirements set 
forth therein, is nonprecedential and shall not be introduced nor 
used by any Person, including the Parties and any Covered Entities, 
admissible as evidence or otherwise taken into account in any 
administrative, judicial, or other proceeding involving the setting 
or adjustment of the royalties payable for the public performance or 
reproduction in ephemeral phonorecords or copies of sound 
recordings, the determination of terms or conditions related 
thereto, or the establishment of notice or recordkeeping 
requirements by the Copyright Royalty Judges under 17 U.S.C. 
114(f)(4) or 112(e)(4), or any administrative or judicial proceeding 
pertaining to rates, terms or reporting obligations for any yet-to-
be-created right to collect royalties for the performance of Sound 
Recordings by any technology now or hereafter known. Any royalty 
rates, rate structure, definitions, terms, conditions and notice and 
recordkeeping requirements included in this Agreement shall be 
considered as a compromise motivated by the unique business, 
economic and political circumstances of webcasters, copyright 
owners, and performers, and the pending appeal of the decision of 
the Copyright Royalty Judges by NPR on behalf of itself and its 
member stations, rather than as matters that would have been 
negotiated in the marketplace between a willing buyer and a willing 
seller, or otherwise meet the objectives set forth in Section 801(b) 
of the Copyright Act.
    2.4 Reservation of Rights. The Parties agree that the entering 
into of this Agreement shall be without prejudice to any of their 
respective positions in any proceeding with respect to the rates, 
terms or reporting obligations to be established for the making of 
Ephemeral Phonorecords or the digital audio transmission of Sound 
Recordings after the Term of this Agreement on or by Covered 
Entities under 17 U.S.C. 112 and 114 and their implementing 
regulations. The Parties further acknowledge and agree that the 
entering of this Agreement, the performance of its terms, and the 
acceptance of any payments and reporting by SoundExchange (i) do not 
express or imply any acknowledgement that CPB, Covered Entities, or 
any other persons are eligible for the statutory license of 17 
U.S.C. 112 and 114, and (ii) shall not be used as evidence that CPB, 
the Covered Entities, or any other persons are acting in compliance 
with the provisions of 17 U.S.C. 114(d)(2)(A) or (C) or any other 
applicable laws or regulations.

Article 3

Scope of Agreement

    3. General.
    (a) Public Performances. In consideration for the payment of the 
License Fee by CPB, SoundExchange agrees that Covered Entities that 
publicly perform under Section 114 all or any portion of any Sound 
Recordings through an Authorized Web Site, within the Territory, by 
means of Web Site Performances, may do so in accordance with and 
subject to the limitations set forth in this Agreement; provided 
that: (i) Such transmissions are made in strict conformity with the 
provisions of 17 U.S.C. 114(d)(2)(A) and (C); and (ii) such Covered 
Entities comply with all of the terms and conditions of this 
Agreement and all applicable copyright laws. For clarity, there is 
no limit to the number of Web Site Performances that a Covered 
Entity may transmit during the Term under the provisions of this 
Section 3.1(a), if such Web Site Performances otherwise satisfy the 
requirements of this Agreement.
    (b) Ephemeral Phonorecords. In consideration for the payment of 
the License Fee by CPB, SoundExchange agrees that Covered Entities 
that make and use solely for purposes of transmitting Web Site 
Performances as described in Section 3.1(a), within the Territory, 
Phonorecords of all or any portion of any Sound Recordings 
(``Ephemeral Phonorecords''), may do so in accordance with and 
subject to the limitations set forth in this Agreement; provided 
that: (i) Such Phonorecords are limited solely to those necessary to 
encode Sound Recordings in different formats and at different bit 
rates as necessary to facilitate Web Site Performances licensed 
hereunder; (ii) such Phonorecords are made in strict conformity with 
the provisions set forth in 17 U.S.C. 112(e)(1)(A)-(D); and (iii) 
the Covered Entities comply with 17 U.S.C. 112(a) and (e) and all of 
the terms and conditions of this Agreement.
    3.2 Limited Right to Sublicense. Rights under this Agreement are 
not sublicensable, except that a Covered Entity may employ the 
services of a third Person to provide the technical services and 
equipment necessary to deliver Web Site Performances on behalf of 
such Covered Entity pursuant to Section 3.1, but only through an 
Authorized Web Site. Any agreement between a Covered Entity and any 
third Person for such services shall (i) contain the substance of 
all terms and conditions of this Agreement and obligate such third 
Person to provide all such services in accordance with all 
applicable terms and conditions of this Agreement, including, 
without limitation, Articles 3, 5 and 6; (ii) specify that such 
third Person shall have no right to make Web Site Performances or 
any other performances or Phonorecords on its own behalf or on 
behalf of any Person or entity other than a Covered Entity through 
the Covered Entity's Authorized Web Site by

[[Page 9296]]

virtue of this Agreement, including in the case of Phonorecords, 
pre-encoding or otherwise establishing a library of Sound Recordings 
that it offers to a Covered Entity or others for purposes of making 
performances, but instead must obtain all necessary licenses from 
SoundExchange, the copyright owner or another duly authorized 
Person, as the case may be; (iii) specify that such third Person 
shall have no right to grant any further sublicenses; and (iv) 
provide that SoundExchange is an intended third-party beneficiary of 
all such obligations with the right to enforce a breach thereof 
against such third party.
    3.3 Limitations.
    (a) Reproduction of Sound Recordings. Except as provided in 
Section 3.2, nothing in this Agreement grants Covered Entities, or 
authorizes Covered Entities to grant to any other Person (including, 
without limitation, any Web Site User, any operator of another Web 
Site or any authorized sublicensee), the right to reproduce by any 
means, method or process whatsoever, now known or hereafter 
developed, any Sound Recordings, including, but not limited to, 
transferring or downloading any such Sound Recordings to a computer 
hard drive, or otherwise copying the Sound Recording onto any other 
storage medium.
    (b) No Right of Public Performance. Except as provided in 
Section 3.2, nothing in this Agreement authorizes Covered Entities 
to grant to any Person the right to perform publicly, by means of 
digital transmission or otherwise, any Sound Recordings.
    (c) No Implied Rights. The rights granted in this Agreement 
extend only to Covered Entities and grant no rights, including by 
implication or estoppel, to any other Person, except as expressly 
provided in Section 3.2. Without limiting the generality of the 
foregoing, this Agreement does not grant to Covered Entities (i) any 
copyright ownership interest in any Sound Recording; (ii) any 
trademark or trade dress rights; (iii) any rights outside the 
Territory; (iv) any rights of publicity or rights to any endorsement 
by SoundExchange or any other Person; or (v) any rights outside the 
scope of a statutory license under 17 U.S.C. 112(e) and 114.
    (d) Territory. The rights granted in this Agreement shall be 
limited to the Territory.
    (e) No Syndication Rights. Nothing in this Agreement authorizes 
any Web Site Performances to be accessed by Web Site Users through 
any Web Site other than an Authorized Web Site.
    3.4 Effect of Non-Performance by any Covered Entity. In the 
event that any Covered Entity breaches or otherwise fails to perform 
any of the material terms of this Agreement it is required to 
perform (including any obligations applicable under Section 112 or 
114), or otherwise materially violates the terms of this Agreement 
or Section 112 or 114 or their implementing regulations, the 
remedies of SoundExchange shall be specific to that Covered Entity 
only, and shall include, without limitation, (i) termination of that 
Covered Entity's rights hereunder upon written notice to CPB, and 
(ii) the rights of SoundExchange and Copyright owners under 
applicable law. SoundExchange's remedies for such a breach or 
failure by an individual Covered Entity shall not include 
termination of this Agreement in its entirety or termination of the 
rights of other Covered Entities, except that if CPB breaches or 
otherwise fails to perform any of the material terms of this 
Agreement, or such a breach or failure by a Covered Entity results 
from CPB's inducement, and CPB does not cure such breach or failure 
within thirty (30) days after receiving notice thereof from 
SoundExchange, then SoundExchange may terminate this Agreement in 
its entirety, and a prorated portion of the License Fee for the 
remainder Term shall, after deduction of any damages payable to 
SoundExchange by virtue of the breach or failure, be credited to 
statutory royalty obligations of Covered Entities to SoundExchange 
for the Term as specified by CPB.

Article 4

Consideration

    4.1 License Fee. The total license fee for all Web Site 
Performances and Ephemeral Phonorecords made during the Term shall 
be one million eight hundred and fifty thousand dollars ($1,850,000) 
(the ``License Fee''), unless additional payments are required as 
described in Section 4.3 or 4.4. The Parties acknowledge that CPB 
has paid SoundExchange two hundred and fifty thousand dollars 
($250,000) of such amount prior to the Execution Date. Within ten 
(10) business days after publication of this Agreement in the 
Federal Register, CPB shall pay SoundExchange the balance of one 
million six hundred thousand dollars ($1,600,000).
    4.2 Calculation of License Fee. The Parties acknowledge that the 
License Fee includes: (i) An annual minimum fee of five hundred 
dollars ($500) for each Covered Entity for each year during the 
Term, except that the annual minimum fee was calculated at two 
hundred and fifty dollars ($250) per year for each Covered Entity 
substantially all of the programming provided by which is reasonably 
classified as news, talk, sports or business programming; (ii) 
additional usage fees calculated in accordance with the royalty rate 
structure applicable to noncommercial webcasters under the Small 
Webcaster Settlement Act of 2002 (see 68 FR 35,008 (June 11, 2003)); 
and (iii) a discount that reflects the administrative convenience to 
SoundExchange of receiving one payment that covers a large number of 
separate entities for six (6) calendar years, as well as the ``time 
value'' of money and protection from bad debt that arises from being 
paid in advance for calendar years 2009 and 2010.
    4.3 Total Music ATH True-Up: If the total Music ATH for all 
Covered Entities, in the aggregate for calendar years 2008, 2009 and 
2010 combined, as estimated in accordance with the methodology 
described in Attachment 1, is greater than seven hundred sixty four 
million six hundred thousand (764,600,000) (approximately the amount 
that would result from 10% year-over-year Music ATH growth in 2008, 
2009 and 2010), CPB shall make an additional payment to 
SoundExchange for all such Music ATH in excess of seven hundred 
sixty four million six hundred thousand (764,600,000) for all 
Covered Entities in the aggregate at the rate of $0.00251 per ATH. 
Such payment shall be due no later than March 1, 2011.
    4.4 Station Growth True-Up: If the total number of Originating 
Public Radio Stations that wish to make Web Site Performances in any 
of calendar year 2008, 2009 and 2010 exceeds the number of such 
Originating Public Radio Stations considered Covered Entities in the 
relevant year, and the excess Originating Public Radio Stations do 
not wish to pay royalties for such Web Site Performances apart from 
this Agreement, CPB may elect by written notice to SoundExchange to 
increase the number of Originating Public Radio Stations considered 
Covered Entities in the relevant year effective as of the date of 
the notice. To the extent of any such elections for all or any part 
of calendar year 2008, 2009 or 2010, CPB shall make an additional 
payment to SoundExchange for each calendar year or part thereof it 
elects to have an additional Originating Public Radio Station 
considered a Covered Entity, in the amount of five hundred dollars 
($500) per Originating Public Radio Station per year. Such payment 
shall accompany the notice electing to have an additional 
Originating Public Radio Station considered a Covered Entity.
    4.5 Late Fee. The Parties hereby agree to the terms set forth in 
37 CFR 380.4(e) as if that Section (and the applicable definitions 
provided in 37 CFR 380.2) were set forth herein.
    4.6. Payments to Third Persons.
    (a) SoundExchange and CPB agree that, except as provided in 
Section 4.6(b), all obligations of, inter alia, clearance, payment 
or attribution to third Persons, including, by way of example and 
not limitation, music publishers and performing rights organizations 
(PROs) for use of the musical compositions embodied in Sound 
Recordings, shall be solely the responsibility of CPB and the 
Covered Entities.
    (b) SoundExchange and CPB agree that all obligations of 
distribution of the License Fee to Copyright Owners and Performers 
in accordance with 37 C.F.R 380.4(g) shall be solely the 
responsibility of SoundExchange. In making such distribution, 
SoundExchange has discretion to allocate the License Fee between 
Section 112 and 114 in the same manner as the majority of other 
webcasting royalties.

Article 5

Reporting, Auditing and Confidentiality

    5.1 Reporting. CPB and Covered Entities shall submit reports of 
use concerning Web Site Performances as set forth in Attachments 1 
and 2.
    5.2 Verification of Information. The Parties hereby agree to the 
terms set forth in 37 CFR 380.4(h) and 380.6 as if those Sections 
(and the applicable definitions provided in 37 CFR 380.2) were set 
forth herein. The exercise by SoundExchange of any right under this 
Section 5.2 shall not prejudice any other rights or remedies of 
SoundExchange.
    5.3 Confidentiality. The Parties hereby agree to the terms set 
forth in 37 CFR Sec.  380.5 as if that Section (and the applicable 
definitions provided in 37 CFR Sec.  380.2) were set forth herein, 
except that:

[[Page 9297]]

    (a) The following shall be added to the end of the first 
sentence of Sec.  380.5(b): ``or documents or information that 
become publicly known through no fault of SoundExchange or are known 
by SoundExchange when disclosed by CPB'';
    (b) The following shall be added at the end of Sec.  380.5(c): 
``and enforcement of the terms of this Agreement''; and
    (c) The following shall be added at the end of Sec.  
380.5(d)(4): ``subject to the provisions of Section 2.3 of this 
Agreement''

Article 6

Non-Participation In Further Proceedings

    CPB and any Covered Entity making Web Site Transmissions in 
reliance on this Agreement shall not directly or indirectly 
participate as a party, amicus curiae or otherwise, or in any manner 
give evidence or otherwise support or assist, in any further 
proceedings to determine royalty rates and terms for digital audio 
transmission or the reproduction of Ephemeral Phonorecords under 
Section 112 or 114 of the Copyright Act for all or any part of the 
Term, including any appeal of the Final Determination of the 
Copyright Royalty Judges, published in the Federal Register at 72 FR 
24084 (May 1, 2007), any proceedings on remand from such an appeal, 
or any other related proceedings, unless subpoenaed on petition of a 
third party (without any action by CPB or a Covered Entity to 
encourage such a petition) and ordered to testify in such 
proceeding. Notwithstanding anything to the contrary herein, any 
entity that is eligible to be treated as a ``Covered Entity'' but 
that that does not elect to be treated as a Covered Entity may elect 
to participate in such proceedings.

Article 7

Term and Termination

    7.1 Term. The term of this Agreement commenced as of January 1, 
2005, and ends as of December 31, 2010 (``Term''). As conditions 
precedent to reliance on the terms of this Agreement by any Covered 
Entity, (a) CPB must pay the License Fee as and when specified in 
Section 4.1, and (b) NPR must withdraw its appeal of the Final 
Determination of the Copyright Royalty Judges, published in the 
Federal Register at 72 FR 24084 (May 1, 2007), which it has agreed 
to do within ten (10) days after the publication of this Agreement 
in the Federal Register.
    7.2 Mutual Termination. This Agreement may be terminated in 
writing upon mutual agreement of the Parties.
    7.3 Consequences of Termination.
    (a) Survival of Provisions. In the event of the expiration or 
termination of this Agreement for any reason, the terms of this 
Agreement shall immediately become null and void, and cannot be 
relied upon for making any further Web Site Performances or 
Ephemeral Phonorecords, except that (i) Articles 6 and 8 and 
Sections 2.3, 5.2 and 7.3 shall remain in full force and effect; and 
(ii) Article 4 and Section 5.1 shall remain in effect after the 
expiration or termination of this Agreement to the extent 
obligations under Article 4 or Section 5.1 accrued prior to any such 
termination or expiration.
    (b) Applicability of Copyright Law. Any Web Site Performances 
made by a Covered Entity or other Originating Public Radio Station 
in violation of the terms of this Agreement or Section 112 or 114 or 
their implementing regulations (except to the extent such 
implementing regulations are inconsistent with this Agreement), 
outside the scope of this Agreement, or after the expiration or 
termination of this Agreement for any reason shall be fully subject 
to, among other things, the copyright owners' rights under 17 U.S.C. 
106(6), the remedies in 17 U.S.C. 501 et seq., the provisions of 17 
U.S.C. 112(e) and 114, and their implementing regulations unless the 
Parties have entered into a new agreement for such Web Site 
Performances.

Article 8

Miscellaneous

    8.1 Applicable Law and Venue. This Agreement shall be governed 
by, and construed in accordance with, the laws of the District of 
Columbia (without giving effect to conflicts of law principles 
thereof). All actions or proceedings arising directly or indirectly 
from or in connection with this Agreement shall be litigated only in 
the United States District Court for the District of Columbia 
located in Washington, DC. The Parties and Covered Entities, to the 
extent permitted under their state or tribal law, consent to the 
jurisdiction and venue of the foregoing court and consent that any 
process or notice of motion or other application to said court or a 
judge thereof may be served inside or outside the District of 
Columbia by registered mail, return receipt requested, directed to 
the Person for which it is intended at its address set forth in this 
Agreement (and service so made shall be deemed complete five (5) 
days after the same has been posted as aforesaid) or by personal 
service or in such other manner as may be permissible under the 
rules of that court.
    8.2 Rights Cumulative. The remedies provided in this Agreement 
and available under applicable law shall be cumulative and shall not 
preclude assertion by any Party of any other rights or the seeking 
of any other remedies against the other Party hereto. This Agreement 
shall not constitute a waiver of any violation of Section 112 or 114 
or their implementing regulations (except to the extent such 
implementing regulations are inconsistent with this Agreement). No 
failure to exercise and no delay in exercising any right, power or 
privilege shall operate as a waiver of such right, power or 
privilege. Neither this Agreement nor any such failure or delay 
shall give rise to any defense in the nature of laches or estoppel. 
No single or partial exercise of any right, power or privilege 
granted under this Agreement or available under applicable law shall 
preclude any other or further exercise thereof or the exercise of 
any other right, power or privilege. No waiver by either Party of 
full performance by the other Party in any one or more instances 
shall be a waiver of the right to require full and complete 
performance of this Agreement and of obligations under applicable 
law thereafter or of the right to exercise the remedies of 
SoundExchange under Section 3.4.
    8.3 Severability. Whenever possible, each provision of this 
Agreement shall be interpreted in such a manner as to be effective 
and valid under applicable law, but if any provision of this 
Agreement shall be prohibited by or invalid under applicable law, 
such provisions shall be ineffective to the extent of such 
prohibition or invalidity, without invalidating the remainder of 
such provision or the remaining provisions of this Agreement.
    8.4 Amendment. This Agreement may be modified or amended only by 
a writing signed by the Parties.
    8.5 Entire Agreement. This Agreement expresses the entire 
understanding of the Parties and supersedes all prior and 
contemporaneous agreements and undertakings of the Parties with 
respect to the subject matter hereof.
    8.6 Headings. The titles used in this Agreement are used for 
convenience only and are not to be considered in construing or 
interpreting this Agreement.
    In witness whereof, the Parties hereto have executed this 
Agreement as of the date first above written.

Attachment 1

Reporting

    1. Definitions. The following terms shall have the meaning set 
forth below for purposes of this Attachment 1. All other capitalized 
terms shall have the meaning set forth in Article 1 of the 
Agreement.
    (a) ``Content Logs'' shall have the meaning set forth in Section 
4(a)(ii) of this Attachment 1.
    (b) ``Current Period'' shall mean the period commencing with the 
first day after the end of the Historic Period and continuing to the 
end of the Term.
    (c) ``Historic Period'' shall mean the period from April 1, 2004 
through the last day of the month of the Execution Date.
    (d) ``Major Format Group'' shall mean each of the following 
format descriptions characterizing the programming offered by 
various Covered Entities: (i) Classical; (ii) jazz; (iii) music mix; 
(iv) news and information; (v) news/classical; (vi) news/jazz; (vii) 
news/music mix; and (viii) adult album alternative. A Covered 
Entity's Major Format Group is determined based on the format 
description best describing the programming of the principal 
broadcast service offered by the Covered Entity and will include all 
channels streamed.
    (e) ``Reporting Data'' shall mean, for each Sound Recording for 
which Reporting Data is to be provided, (1) the relevant Covered 
Entity (including call sign and community of license of any 
terrestrial broadcast station and any Side Channel(s)); (2) the 
title of the song or track performed; (3) the featured recording 
artist, group, or orchestra; (4) the title of the commercially 
available album or other product on which the Sound Recording is 
found; (5) the marketing label of the commercially available album 
or other product on which the sound recording is found; and (6) play 
frequency.
    (f) ``Specified Reports'' are reports that provide Reporting 
Data concerning over-the-air performances of Sound Recordings that 
are also Web Site Performances by an

[[Page 9298]]

Originating Public Radio Station. The Parties agree that such 
reports will initially be the ones provided by Mediaguide, Inc. or a 
successor thereto (``Mediaguide''). In the event that Mediaguide, or 
other agreed-upon source of Specified Reports, should cease to 
provide Reporting Data that satisfy the function of such reports 
hereunder, the Parties shall promptly identify and agree upon an 
alternative vendor of reports, or an alternative approach to 
providing Reporting Data to SoundExchange, provided that such 
alternative reports or approaches are available on commercial terms 
comparable to Mediaguide reports.
    2. General.
    All data required to be provided hereunder shall be provided to 
SoundExchange electronically in the manner provided in 37 CFR 
370.3(d), except to the extent the parties agree otherwise. CPB 
shall consult with SoundExchange in advance concerning the content 
and format of all data to be provided hereunder, and shall provide 
data that is accurate, to the best of CPB's and the relevant Covered 
Entity's knowledge, information and belief. The methods used to make 
estimates, predictions and projections of data shall be subject to 
SoundExchange's prior written approval, which shall not be 
unreasonably withheld.
    3. Data for the Historic Period.
    (a) For 2004. CPB and SoundExchange shall use reasonable efforts 
to obtain available Specified Reports regarding Covered Entities for 
the period April 1, 2004 through December 31, 2004. NPR has 
previously provided SoundExchange with all available Music ATH data 
from the Music Webcasting Report dated September, 2004, in the form 
of an Excel spreadsheet. CPB represents that such data includes 
Music ATH data for all Major Format Groups.
    (b) For 2005-2008.
    (i) If Covered Entities have Reporting Data, or other 
information reportable under 37 CFR Part 370, with respect to Web 
Site Performances during the Historic Period, such Covered Entities 
shall provide such information to CPB, which shall provide the same 
to SoundExchange, as soon as practicable, and in any event by no 
later than sixty (60) days after the end of the Historic Period. 
Such data shall be provided in a format consistent with Attachment 
2.
    (ii) CPB and SoundExchange shall use reasonable efforts to 
obtain available Specified Reports regarding Covered Entities for 
the Historic Period. CPB and SoundExchange shall each pay one-half 
of the costs for such Specified Reports.
    (iii) CPB has previously provided SoundExchange with the 
Streaming Census Report dated October 18, 2007 which SoundExchange 
has accepted which includes estimates of total Music ATH during the 
Historic Period, and of the allocation thereof to Major Format 
Groups, Covered Entities and applicable period.
    4. Data Collection and Reporting for the Current Period. CPB 
shall provide data regarding Web Site Performances during the 
Current Period to SoundExchange, and Covered Entities shall provide 
such data to CPB, consistent with the following terms:
    (a) ATH and Content Logs. For each calendar quarter during the 
Current Period:
    (i) Music ATH Reporting. CPB shall provide reports (the ``ATH 
Reports'') of Music ATH by Covered Entities reasonably 
representative of all Major Format Groups, having relatively high 
Music ATH among the set of Covered Entities, and representing at 
least 60% of the total Music ATH by the Covered Entities in 2009 and 
at least 80% of the total Music ATH by the Covered Entities in 2010. 
Such ATH reports shall be accompanied by the Content Logs described 
in Section 4(a)(ii) for the periods described therein for all 
Covered Entities for which ATH Reports are provided. All ATH Reports 
and Content Logs for a quarter shall be provided by CPB together in 
one single batch, but all data shall be broken out by Covered Entity 
and identify each Covered Entity's Major Format Group. The ATH 
Reports shall be in a form similar to the Streaming Census Report 
dated October 18, 2007, which reported two hundred ten million 
(210,000,000) total Music ATH for all Covered Entities for calendar 
year 2007, except as otherwise provided in this Section 4(a)(i). If 
the ATH Reports satisfy the requirements set forth above in this 
Section 4(a)(i), all Covered Entities shall be deemed in compliance 
with the terms of this Section 4(a)(i).
    (ii) Reporting Period and Data. The information about Music ATH 
referenced in Section 4(a)(i) shall be collected from Covered 
Entities for two 7-consecutive-day reporting periods per quarter in 
2009 and 2010. The first ATH Report shall be provided no later than 
180 days after the Execution Date. Thereafter, the ATH Reports shall 
be provided within thirty (30) days of the end of each calendar 
quarter. During these reporting periods, Covered Entities described 
in Section 4(a)(i) above shall prepare logs containing Reporting 
Data for all their Web Site Performances (``Content Logs''). These 
Content Logs shall be compared with server-based logs of Music ATH 
throughout the reporting period before the ATH Report is submitted 
to SoundExchange.
    (iii) Additional Data Reporting. Each quarter, CPB shall, for 
Covered Entities representing the highest 20% of reported Music ATH 
in 2009 and the highest 30% of reported Music ATH in 2010, provide 
SoundExchange Reporting Data collected continuously during each 24 
hour period for the majority of their Web Site Performances, along 
with the Covered Entity's Music ATH, for the relevant quarter. If 
during any calendar quarter of the Current Period, additional 
Covered Entities, in the ordinary course of business, collect 
Reporting Data continuously during each 24 hour period for the 
majority of their Web Site Performances, CPB shall provide 
SoundExchange such data, along with each such Covered Entity's Music 
ATH, for the relevant quarter.
    (b) ATH and Format Surveys. CPB shall semiannually survey all 
Covered Entities to ascertain the number, format and Music ATH of 
all channels (including but not limited to Side Channels) over which 
such Covered Entities make Web Site Performances. CPB shall provide 
the results of such survey to SoundExchange within sixty (60) days 
after the end of the semiannual period to which it pertains.
    (c) Consolidated Reporting. Each quarter, CPB shall provide the 
information required by this Section 4 in one delivery to 
SoundExchange, with a list of all Covered Entities indicating which 
are and are not reporting for such quarter.
    (d) Timing. Except as otherwise provided above, all information 
required to be provided to SoundExchange under this Section 4 shall 
be provided as soon as practicable, and in any event by no later 
than sixty (60) days after the end of the quarter to which it 
pertains. Such data shall be provided in a format consistent with 
Attachment 2.
    5. Development of Technological Solutions. During the Term, CPB 
and Covered Entities shall cooperate in good faith with efforts by 
SoundExchange to develop and test a technological solution that 
facilitates reporting.

Attachment 2

Reporting Format

    1. Format for Reporting Data. All Reporting Data provided under 
Attachment 1, Sections 3(b)(i) and 4(a)(ii) shall be delivered to 
SoundExchange in accordance with the following format:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Column 1......................................  Station or Side Channel
Column 2......................................  Sound Recording Title
Column 3......................................  Featured Artist, Group or Orchestra
Column 4......................................  Album
Column 5......................................  Marketing Label
Column 6......................................  Play Frequency
----------------------------------------------------------------------------------------------------------------

    2. Format for Music ATH. All Music ATH reporting by Covered 
Entities under the following provisions of Attachment 1 shall be 
delivered to SoundExchange in accordance with the following format:
    a. Section 3(b)(i) (the ``Historic Period'')

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Column 1..........................  Station or Side Channel
Column 2..........................  Major Format Group
Column 3..........................  ATH
Column 4..........................  2004 and 2007
------------------------------------------------------------------------

    b. Section 4(a)(i) (the ``Current Period'')

[[Page 9299]]



------------------------------------------------------------------------
 
------------------------------------------------------------------------
Column 1..........................  Station or Side Channel
Column 2..........................  Major Format Group
Column 3..........................  ATH
Column 4..........................  Reporting Period
------------------------------------------------------------------------

    3. Major Format Groups. All requirements to provide ``Major 
Format Group'' as that term is defined in Attachment 1, Section 
1(d), shall correspond with one of the following:

------------------------------------------------------------------------
                           Major format groups
-------------------------------------------------------------------------
Classical
Jazz
Music Mix
News and Information
News/Classical
News/Jazz
News/Music Mix
Adult Album Alternative
------------------------------------------------------------------------

Appendix B--Agreed Rates and Terms for Broadcasters

Article 1--Definitions

    1.1 General. In general, words used in the rates and terms set 
forth herein (the ``Rates and Terms'') and defined in 17 U.S.C. 
112(e) or 114 or 37 CFR Part 380 shall have the meanings specified 
in those provisions as in effect on the date hereof, with such 
exceptions or clarifications set forth in Section 1.2.
    1.2 Additional Definitions
    (a) ``Broadcaster'' shall mean a webcaster as defined in 17 
U.S.C. 114(f)(5)(E)(iii) that (i) has a substantial business owning 
and operating one or more terrestrial AM or FM radio stations that 
are licensed as such by the Federal Communications Commission; (ii) 
has obtained a compulsory license under 17 U.S.C. 112(e) and 114 and 
the implementing regulations therefor to make Eligible Transmissions 
and related ephemeral recordings; (iii) complies with all applicable 
provisions of Sections 112(e) and 114 and applicable regulations; 
and (iv) is not a noncommercial webcaster as defined in 17 U.S.C. 
114(f)(5)(E)(i).
    (b) ``Broadcaster Webcasts'' shall mean eligible nonsubscription 
transmissions made by a Broadcaster over the internet that are not 
Broadcast Retransmissions.
    (c) ``Broadcast Retransmissions'' shall mean eligible 
nonsubscription transmissions made by a Broadcaster over the 
internet that are retransmissions of terrestrial over-the-air 
broadcast programming transmitted by the Broadcaster through its AM 
or FM radio station, including ones with substitute advertisements 
or other programming occasionally substituted for programming for 
which requisite licenses or clearances to transmit over the internet 
have not been obtained. For the avoidance of doubt, a Broadcast 
Retransmission does not include programming transmitted on an 
internet-only side channel.
    (d) ``Eligible Transmission'' shall mean either a Broadcaster 
Webcast or a Broadcast Retransmission.
    (e) ``Small Broadcaster'' shall mean a Broadcaster that, for any 
of its channels and stations (determined as provided in Section 4.1) 
over which it transmits Broadcast Retransmissions, and for all of 
its channels and stations over which it transmits Broadcaster 
Webcasts in the aggregate, in any calendar year in which it is to be 
considered a Small Broadcaster, meets the following additional 
eligibility criteria: (i) During the prior year it made Eligible 
Transmissions totaling less than 27,777 aggregate tuning hours; and 
(ii) during the applicable year it reasonably expects to make 
Eligible Transmissions totaling less than 27,777 aggregate tuning 
hours; provided that, one time during the period 2006-2015, a 
Broadcaster that qualified as a Small Broadcaster under the 
foregoing definition as of January 31 of one year, elected Small 
Broadcaster status for that year, and unexpectedly made Eligible 
Transmissions on one or more channels or stations in excess of 
27,777 aggregate tuning hours during that year, may choose to be 
treated as a Small Broadcaster during the following year 
notwithstanding clause (i) above if it implements measures 
reasonably calculated to ensure that that it will not make Eligible 
Transmissions exceeding 27,777 aggregate tuning hours during that 
following year. As to channels or stations over which a Broadcaster 
transmits Broadcast Retransmissions, the Broadcaster may elect Small 
Broadcaster status only with respect to any of its channels or 
stations that meet all of the foregoing criteria.
    (f) ``SoundExchange'' shall mean SoundExchange, Inc. and shall 
include its successors and assigns.

Article 2--Agreement Pursuant to

Webcaster Settlement Act of 2008

    2.1 Availability of Rates and Terms. Pursuant to the Webcaster 
Settlement Act of 2008, and subject to the provisions set forth 
below, Broadcasters may elect to be subject to the rates and terms 
set forth herein (the ``Rates and Terms'') in their entirety, with 
respect to such Broadcasters' Eligible Transmissions and related 
ephemeral recordings, for all of the period beginning on January 1, 
2006, and ending on December 31, 2015, in lieu of other rates and 
terms from time to time applicable under 17 U.S.C. 112(e) and 114, 
by complying with the procedure set forth in Section 2.2 hereof. Any 
person or entity that does not satisfy the eligibility criteria to 
be a Broadcaster must comply with otherwise applicable rates and 
terms.
    2.2 Election Process in General. To elect to be subject to these 
Rates and Terms, in lieu of any royalty rates and terms that 
otherwise might apply under 17 U.S.C. 112(e) and 114, for all of the 
period beginning on January 1, 2006, and ending on December 31, 
2015, a Broadcaster shall submit to SoundExchange a completed and 
signed election form (available on the SoundExchange Web site at 
https://www.soundexchange.com) by the later of (i) March 31, 2009; 
(ii) 30 days after publication of these Rates and Terms in the 
Federal Register; or (iii) in the case of a Broadcaster that is not 
making Eligible Transmissions as of the publication of these Rates 
and Terms in the Federal Register but begins doing so at a later 
time, 30 days after the Broadcaster begins making such Eligible 
Transmissions. On any such election form, the Broadcaster must, 
among other things, identify all its stations making Eligible 
Transmissions. If, subsequent to making an election, there are 
changes in the Broadcaster's corporate name or stations making 
Eligible Transmissions, or other changes in its corporate structure 
that affect the application of these Rates and Terms, the 
Broadcaster shall promptly notify SoundExchange thereof. 
Notwithstanding anything else in these Rates and Terms, a person or 
entity otherwise qualifying as a Broadcaster that has participated 
in any way in any appeal of the Final Determination of the Copyright 
Royalty Judges concerning royalty rates and terms under Sections 
112(e) and 114 of the Copyright Act for the period January 1, 2006, 
through December 31, 2010 published in the Federal Register at 72 FR 
24084 (May 1, 2007) (the ``Final Determination'') or any proceeding 
before the Copyright Royalty Judges to determine royalty rates and 
terms under Sections 112(e) and 114 of the Copyright Act for the 
period January 1, 2011, through December 31, 2015 (including Docket 
No. 2009-1 CRB Webcasting III and Docket No. 2009-2 CRB New 
Subscription II, as noticed in the Federal Register at 74 FR 318-20 
(Jan. 5, 2009)) shall not have the right to elect to be treated as a 
Broadcaster or claim the benefit of these Rates and Terms, unless it 
withdraws from such proceeding prior to submitting to SoundExchange 
a completed and signed election form as contemplated by this Section 
2.2.
    2.3 Election of Small Broadcaster Status. A Broadcaster that 
elects to be subject to these Rates and Terms and qualifies as a 
Small Broadcaster may elect to be treated as a Small Broadcaster for 
any one or more calendar years that it qualifies as a Small 
Broadcaster. To do so, the Small Broadcaster shall submit to 
SoundExchange a completed and signed election form (available on the 
SoundExchange Web site at https://www.soundexchange.com) by no later 
than January 31 of the applicable year, except that election forms 
for 2006-2009 shall be due by no later than the date for the 
election provided in Section 2.2. On any such election form, the 
Broadcaster must, among other things, certify that it qualifies as a 
Small Broadcaster; provide information about its prior year 
aggregate tuning hours and the formats of its stations (e.g., the 
genres of music they use); and provide other information requested 
by SoundExchange for use in creating a royalty distribution proxy. 
Even if a Broadcaster has once elected to be treated as a Small 
Broadcaster, it must make a separate, timely election in each 
subsequent year in which it wishes to be treated as a Small 
Broadcaster.
    2.4 Representation of Compliance and Non-waiver. By electing to 
operate pursuant to the Rates and Terms, an entity represents and 
warrants that it qualifies as a Broadcaster and/or Small 
Broadcaster, as the case may be. By accepting an election by a 
transmitting entity or payments or reporting made pursuant to these 
Rates and Terms, SoundExchange does not acknowledge that the 
transmitting entity qualifies as a Broadcaster or Small Broadcaster 
or that it

[[Page 9300]]

has complied with the requirements of the statutory licenses under 
Sections 112(e) and 114 of the Copyright Act (including these Rates 
and Terms). It is the responsibility of each transmitting entity to 
ensure that it is in full compliance with applicable requirements of 
the statutory licenses under Sections 112(e) and 114 of the 
Copyright Act. SoundExchange is not in a position to, and does not, 
make determinations as to whether each of the many services that 
rely on the statutory licenses is eligible for statutory licensing 
or any particular royalty payment classification, nor does it 
continuously verify that such services are in full compliance with 
all applicable requirements. Accordingly, a Broadcaster agrees that 
SoundExchange's acceptance of its election, payment or reporting 
does not give or imply any acknowledgment that it is in compliance 
with the requirements of the statutory licenses (including these 
Rates and Terms) and shall not be used as evidence that it is in 
compliance with the requirements of the statutory licenses 
(including these Rates and Terms). SoundExchange and copyright 
owners reserve all their rights to take enforcement action against a 
transmitting entity that is not in compliance with all applicable 
requirements that are not inconsistent with these Rates and Terms.

Article 3--Scope

    3.1 In General. In consideration for the payment of royalties 
pursuant to Article 4 and such other consideration specified herein, 
Broadcasters that have made a timely election to be subject to these 
Rates and Terms as provided in Section 2.2 are entitled to publicly 
perform sound recordings within the scope of the statutory license 
provided by Section 114 by means of Eligible Transmissions, and to 
make related ephemeral recordings for use solely for purposes of 
such Eligible Transmissions within the scope of Section 112(e), in 
accordance with and subject to the limitations set forth in these 
Rates and Terms and in strict conformity with the provisions of 17 
U.S.C. 112(e) and 114 and their implementing regulations (except as 
otherwise specifically provided herein or waived by particular 
copyright owners with respect to their respective sound recordings), 
in lieu of other rates and terms from time to time applicable under 
17 U.S.C. 112(e) and 114, for all of the period beginning on January 
1, 2006, and ending on December 31, 2015.
    3.2 Applicability to All Eligible Services Operated by or for a 
Broadcaster. If a Broadcaster has made a timely election to be 
subject to these Rates and Terms as provided in Section 2.2, these 
Rates and Terms shall apply to all Eligible Transmissions made by or 
for the Broadcaster that qualify as a Performance under 37 CFR 
380.2(i), and related ephemeral recordings. For the avoidance of 
doubt, a Broadcaster may not rely upon these Rates and Terms for its 
Eligible Transmissions of one broadcast channel or station and upon 
different Section 112(e) and 114 rates and terms for its Eligible 
Transmissions of other broadcast channels or stations.
    3.3 No Implied Rights. These Rates and Terms extend only to 
electing Broadcasters and grant no rights, including by implication 
or estoppel, to any other person or except as specifically provided 
herein. Without limiting the generality of the foregoing, these 
Rates and Terms do not grant (i) any copyright ownership interest in 
any sound recording; (ii) any trademark or trade dress rights; (iii) 
any rights outside the United States (as defined in 17 U.S.C. 101); 
(iv) any rights of publicity or rights to any endorsement by 
SoundExchange or any other person; or (v) any rights with respect to 
performances or reproductions outside the scope of these Rates and 
Terms or the statutory licenses under 17 U.S.C. 112(e) and 114.

Article 4--Royalties

    4.1 Minimum Fees. Each Broadcaster will pay an annual, 
nonrefundable minimum fee of $500 for each of its individual 
channels, including each of its individual side channels, and each 
of its individual stations, through which (in each case) it makes 
Eligible Transmissions, for each calendar year or part of a calendar 
year during 2006-2015 during which the Broadcaster is a licensee 
pursuant to licenses under 17 U.S.C. 112(e) and 114, provided that a 
Broadcaster shall not be required to pay more than $50,000 in 
minimum fees in the aggregate (for 100 or more channels or 
stations). For purposes of these Rates and Terms, each individual 
stream (e.g., HD radio side channels, different stations owned by a 
single licensee) will be treated separately and be subject to a 
separate minimum, except that identical streams for simulcast 
stations will be treated as a single stream if the streams are 
available at a single Uniform Resource Locator (URL) and 
performances from all such stations are aggregated for purposes of 
determining the number of payable performances hereunder. Upon 
payment of the minimum fee, the Broadcaster will receive a credit in 
the amount of the minimum fee against any royalties payable for the 
same calendar year for the same channel or station. In addition, an 
electing Small Broadcaster also shall pay a $100 annual fee (the 
``Proxy Fee'') to SoundExchange for the reporting waiver discussed 
in Section 5.1.
    4.2 Royalty Rates. Royalties for Eligible Transmissions made 
pursuant to 17 U.S.C. 114, and the making of related ephemeral 
recordings pursuant to 17 U.S.C. 112(e), shall, except as provided 
in Section 5.3, be payable on a per-performance basis, as follows:

------------------------------------------------------------------------
                                                             Rate per
                          Year                              performance
------------------------------------------------------------------------
2006....................................................         $0.0008
2007....................................................          0.0011
2008....................................................          0.0014
2009....................................................          0.0015
2010...........................