Digital Performance Right in Sound Recordings and Ephemeral Recordings, 58201-58207 [2015-24506]

Agencies

• Copyright Royalty Board, Library of Congress
• Library of Congress

[Federal Register Volume 80, Number 187 (Monday, September 28, 2015)]
[Rules and Regulations]
[Pages 58201-58207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24506]


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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 380

[Docket No. 2014-CRB-0001-WR (2016-2020) (Web IV)]


Digital Performance Right in Sound Recordings and Ephemeral 
Recordings

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Royalty Judges publish final regulations that 
set the rates and terms for the digital performances of sound 
recordings by certain noncommercial educational webcasters and for the 
making of ephemeral recordings necessary to facilitate those 
transmissions for the period commencing January 1, 2016, and ending on 
December 31, 2020.

DATES: Effective: January 1, 2016.

FOR FURTHER INFORMATION CONTACT: LaKeshia Keys, Program Specialist, at 
(202) 707-7658, or at crb@loc.gov.

SUPPLEMENTARY INFORMATION: The Copyright Royalty Judges (Judges) 
received a joint motion from SoundExchange, Inc. (SoundExchange), and 
College Broadcasters, Inc. (CBI) in which they announced a partial 
settlement of the above proceeding for certain internet transmissions 
by college radio stations and other noncommercial webcasters.\1\ 
SoundExchange and CBI requested that the Judges adopt their agreement 
as a partial settlement of rates and terms under Section 112(e) and 114 
of the Copyright Act (Act) for eligible nonsubscription transmissions 
by noncommercial educational webcasters (NEWs) over the internet, and 
related ephemeral recordings. The Judges published the proposed 
settlement and requested comments from the public.\2\ For the reasons 
discussed below, the Judges hereby adopt the proposed settlement, with 
the exception of a single provision that would identify SoundExchange 
as the designated Collective for the upcoming license period. The 
Judges defer designation of the Collective for the upcoming licensing 
period until the conclusion of the proceeding.
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    \1\ Joint Motion to Adopt Partial Settlement, Docket No. 2014-
CRB-0001-WR (2016-2020) (Oct. 7, 2014) (Joint Motion).
    \2\ See 79 FR 65609 (Nov. 5, 2014).
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Background

    The proposed SoundExchange/CBI settlement (Settlement) generally 
continues in effect, with certain adjustments, the extant rates for 
eligible NEWs that were codified in 37 CFR part 380 Subpart C. The 
Judges adopted those rates and terms pursuant to Section 801(b)(7)(A) 
of the Act as part of the prior webcasting determination. See Digital 
Performance Right in Sound Recordings and Ephemeral Recordings, 76 FR 
13026 (Web-III).
    Under the proposed Settlement, an eligible NEW would pay a $500 
annual fee for each of the individual channels, side channels, or 
stations through which it makes Eligible Transmissions. Proposed Rule 
37 CFR 380.22(a). The $500 fee would also serve as the minimum fee for 
eligible NEWs. All other NEWs would pay the royalties established under 
Part 380 Subpart A applicable to noncommercial webcasters. Proposed 
Rule 37 CFR 380.22(c).
    To qualify for the rates under the Settlement, a NEW's total 
monthly per channel or per station transmissions must remain below 
159,140 aggregate tuning hours (ATH). If a NEW's transmissions exceed 
that threshold, the NEW must pay royalties for the relevant month, and 
for the remainder of the relevant year, in accordance with the 
otherwise applicable noncommercial rates to be determined in this 
proceeding. In subsequent years, a NEW that wishes to pay the rates 
under the Settlement must take affirmative steps not to exceed the 
159,140 ATH threshold. Proposed Rule 37 CFR 380.22(b).
    Commercial webcasters are required to make detailed, census reports 
of all sound recordings they transmit. NEWs with limited listenership 
may pay the Collective a proxy fee to avoid the burden of census 
reporting. The Settlement increases the listenership cap (from 55,000 
ATH to 80,000 ATH) for services electing the proxy fee in lieu of the 
census reporting option provided in 37 CFR 380.23(g)(1). See Proposed 
Rule 37 CFR 380.22(g)(1).\3\ A NEW electing the reporting waiver in 37 
CFR 380.23(g)(1) must pay a $100 annual proxy fee to the Collective. 
Proposed Rule 37 CFR 380.22(a).
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    \3\ The Settlement also ``makes a handful of further minor 
changes to the current rates and terms for NEWs.'' [SoundExchange's] 
Comments Concerning Proposed Settlement at n.1 (Nov. 26, 2014) 
(SoundExchange Comments).
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Comment Summary

    The Judges received nearly 60 comments--some supporting and some 
opposing adoption of the Settlement--in response to their request for 
comments published in the Federal Register. Many of the comments 
appeared to be form letters; hence, the number of commenters exceeded 
the number of substantive comments. Some of the comments came from 
affiliated entities. The Judges considered the views of all commenters 
in reaching their decision and all comments are posted to the CRB's Web 
site. The Judges discuss illustrative examples here.

Comments Supporting Adoption of the Settlement

    In its comment supporting adoption of the joint proposal, CBI noted 
that the Settlement contains

the same terms that NEWs have been successfully using for several 
years to comply with the statutory license for webcasting copyright 
works. Keeping these rates and terms in place will prevent 
disruption of their operation and ensure the noncommercial 
educational webcasters [remain able to provide] creators of musical 
recordings access to the noncommercial educational listener market.

Comment by College Broadcasters, Inc. in Support of Adopting The Joint 
Settlement Between College Broadcasters, Inc. and SoundExchange at 1 
(Nov. 26, 2014) (CBI Comment).

    CBI further noted that

    [T]he current Settlement continues essentially the same 
recordkeeping terms that have been integral for NEWs to be able to 
comply with the statutory license. In particular, these 
recordkeeping terms include an optional proxy fee, which allows NEWs 
to pay an additional $100 in lieu of complying with ordinarily-
applicable recordkeeping rules, which are frequently impossible for 
NEWs to comply with due to their more limited budgets, older 
broadcasting technology, and other operational limitations. [T]he 
new Settlement makes this extremely necessary reporting option 
available for more stations than the previous one did. It also 
continues to provide recordkeeping relief for those stations whose 
audience size makes them ineligible for this

[[Page 58202]]

proxy option by allowing them to provide recordkeeping data 
consistent with what is feasible for them to produce. [T]his 
Settlement also leaves room for webcasters to grow without fear that 
if they inadvertently grow even the tiniest bit too large they will 
suddenly incur recordkeeping requirements that are impossible to 
comply with without first making a significant and unaffordable 
investment in their station technology and operations.

CBI Comment at 3-4.

    WSOU Seton Hall University--not a participant in the proceeding--
stated:

    Since the current agreement has been in place for several years 
and has worked to the satisfaction of a large number of college 
stations, it is prudent to extend that fair and successful 
arrangement into the future. The proposed settlement is affordable 
for our station, easily implementable, and relieves WSOU from 
burdensome reporting requirements while allowing royalties to be 
paid to the rightful recipients.

WSOU Comment at 1 (Nov. 17, 2014).

    Wayne State College--also a nonparticipant--stated:

    The proposed agreement . . . serves our station well. In the 
past, when reporting requirements were more demanding, it threatened 
our ability to continue streaming commercially recorded music 
[because] the station is operated by students, with faculty 
oversight, and thus has no actual paid employees. The opportunity to 
make an additional payment in lieu of reporting makes an 
overwhelming difference for us.\4\
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    \4\ See also WRFL-UK Student (Univ. of KY) Radio Comment (Nov. 
25, 2014) (the settlement will ``allow us to comply with the 
regulations and provide artists the royalties they deserve while 
preventing us from having to drastically change our format and 
recordkeeping methods. Such a change would create a huge cost to us 
as well as a full overhaul of our training program for students.''); 
and WRST-FM (Univ. of WI Oshkosh) Comment (Nov. 25, 2014) 
(``[m]aintaining the current rates and terms for the statutory 
license for noncommercial stations like us best serves both the 
educational needs of [our] students and allows us to serve the 
online listener'').

Wayne State College Comment (Nov. 18, 2014).

Comments Opposing Adoption of the Settlement

    Those opposing adoption of the Settlement argue, among other 
things, that doing so before issuing a final determination in the 
proceeding would be premature. This position is discussed 
illustratively in a comment from the Dayton Public School District in 
Dayton, Ohio (``Dayton'')--not a participant to the proceeding--which 
contends that ``[n]o other commercial or noncommercial agreements have 
been reached [and] 99.5% of the [SoundExchange] royalty revenue is 
commercial, 0.5% noncommercial. CBI [represents] only a small fraction 
of the 0.5% noncommercial. Other rates should be determined before such 
an insignificant agreement should be considered.'' Dayton Public School 
District Comment (Nov. 26, 2014).
    Dayton also claims that the proposed rates in the Settlement are 
higher than those paid by the Corporation for Public Broadcasting-
qualified webcasters and those paid by Live365 in 2009 and 2010. 
Accordingly, according to Dayton, the CRB ``needs to determine all 
noncommercial `willing buyer-willing sellers' before approving the rate 
in the CBI/SoundExchange Settlement.''

Id.
    Dayton further contends that the payment of a proxy fee in lieu of 
reporting requirements precludes accurate allocation of royalties to 
the artists that earned them.
    Lastly, Dayton argues that ``[m]any, if not most, of the web 
streams covered under the CBI agreement would be from public [entities] 
like public schools, community colleges, and State colleges/
universities.'' According to Dayton, ``[m]ost State statutes forbid 
payments from State entities to lobbying organizations. SoundExchange 
is a lobbying organization . . . The CRB should de conflict [sic] State 
and Federal law, perhaps through an aggregator payment like is done 
through CPB, Live365 and is proposed for IBS Members.'' Id.\5\
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    \5\ Comments substantially identical to those submitted by 
Dayton were also submitted by RMU Radio Robert Morris University; 
WCAS Radio Metropolitan State University of Denver; WLMU Le Moyne 
College Syracuse, NY; XTSR Towson University; and Zumix Radio East 
Boston, MA. RMU Radio Comment (Dec. 2, 2014), WCAS Radio Comment 
(Nov. 30, 2014), WLMU Comment (Nov. 26, 2014), XTSR Towson 
University Comment (Nov. 26, 2014), Zumix Radio Comment (Dec. 1, 
2014).
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    IBS--a participant in the proceeding--``takes no position on 
whether the [CRB] should approve the rates [set forth in the 
settlement] for signatories'' but, IBS contends, the proposed rates are 
not reasonable for the majority of educationally based broadcasters and 
webcasters that do not have paid staffs. According to IBS, CBI's 
membership is not representative of a majority of educationally-based 
broadcasters and webcasters, implying, without offering supporting 
evidence, that CBI member stations have paid staffs. IBS Comments on 
SX-CBI's Joint Rate Proposal at 5 (Nov. 27, 2014). IBS implies, again 
without offering supporting evidence, that the majority of 
noncommercial webcasters do not have paid staff, and, therefore, 
presumably would be less able to pay the rates set forth in the 
Settlement.\6\
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    \6\ IBS makes an unsubstantiated accusation that SoundExchange 
indirectly funds--through ``CBI convention sponsorship or some such 
by [SoundExchange]'' the salary of CBI's Executive Director. Id. See 
also Affidavit of Fritz Kass in Support of IBS' Comments at 2 (Nov. 
27, 2014). The Judges place no weight on accusations that are 
unsupported by credible evidence.
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    WHRB--a participant in the proceeding--highlights certain 
``inadvertent drafting anomalies'' in the proposal, which, if 
uncorrected, ``might render the proposed rates inapplicable to WHRB's 
simulcast stream.'' WHRB's Comments on SX-CBI Rate Proposal at 1 (Nov. 
27, 2014) (WHRB Comment). In particular, WHRB notes that the proposed 
provision addressing the certification requirement would eliminate the 
word ``officer'' and substitute ``representative of the applicable 
educational institution.'' Id. at 1-2. According to WHRB, the existing 
wording authorizes ``student officers of the corporation with personal 
knowledge of the facts to certify usage.'' Id. at 2. Yet, none of these 
student officers ``sits as a representative of the President and 
Fellows of Harvard College.'' Although WHRB has a faculty adviser, he 
is not broadly involved in the operations of the radio station so as to 
be able to certify under proposed Section 380.23(f)(9). Id. at 3. WHRB 
continues that the Librarian of Congress cannot compel Harvard to 
appoint such a representative; nor can the station or the Collective. 
WHRB contends that, as a result, ``the Board should not adopt the rules 
in the form proposed in SX and CBI's joint petition without correcting 
the foregoing drafting anomalies.'' Id. at 5.

Other Comments

    The NRBNMLC--a participant in the proceeding--believes that a $500 
flat fee and a complete reporting exemption constitute ``workable rates 
and terms for NEWs.'' NRBNMLC Comment at 2 (Nov. 26, 2014). At the same 
time, however, the NRBNMLC raised certain issues with the proposal. For 
example, the NRBNMLC noted that the ATH definition

    does not unambiguously exclude . . . programming that does not 
include sound recordings at all, such as news, talk and sports 
programming. NEWs receive no benefit under the Statutory Licenses 
from transmitting such programming, so their transmission of that 
programming should not adversely affect their fee liability under 
the Statutory Licenses in any way. Where ATH thresholds are used to 
affect the fees that NEWs must pay and the reporting requirements 
that they must follow, discrete programming blocks that do not 
include sound recordings subject to the Statutory Licenses should 
not count toward meeting these thresholds.


[[Page 58203]]


Comments of the National Religious Broadcasters Noncommercial Music 
License Committee to the Proposed Rates and Terms for Noncommercial 
Educational Webcasters Submitted by SoundExchange and CBI at 2 (Nov. 
26, 2014) (NRBNMLC Comment). The NRBNMLC ``merely points out this flaw 
in the definition but does not formally object to it.'' Id. at 3. 
NRBNMLC states that it ``appears that NEWs will not be adversely 
affected by the ATH definition even if it is construed to include talk 
and other programming that does not include recordings in the ATH 
count'' given that ``all of them stream at levels below the 159,140 
monthly ATH eligibility threshold.'' Id. at 6-7.\7\
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    \7\ See also WHRB Comment at 4, noting the same issue and 
indicating that this definition of ATH could result in a ``potential 
overstatement of ATH in Subsections 380.21(c) and (g) and 380.22 
with all the attendant consequences.''
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    NRBNMLC also notes that not a single NEW paid more than the minimum 
fee over the past three years, which means that all NEWs streamed at 
levels below the ATH threshold of 159,140--the threshold for 
determining whether a station owed fees in excess of the minimum fee 
for those years. Id. NRBNMLC suggests that, as a result, NEWs have no 
economic incentive to negotiate the 159,140 ATH threshold and 80,000 
ATH threshold to the highest level that SoundExchange would accept.\8\
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    \8\ The settlement would increase the listenership cap for 
services electing the proxy reporting option from 55,000 ATH per 
month to 80,000 ATH per month, with certain conditions. Although not 
opposing the thresholds in the settlement, NRBNMLC asserts that 
``[t]here are strong indications that these thresholds actually 
should be set higher than the proposed levels.'' NRBNMLC Comment at 
8.
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    The Corporation for Public Broadcasting (CPB) noted in its comment 
on behalf of National Public Radio, Inc. (NPR) --a participant in the 
proceeding--(among others) that: ``NPR and Public Radio do not object 
to the proposed Settlement with the understanding that it does not 
apply to NPR/Public Radio.'' Comments Concerning Proposed Settlement of 
the Corporation for Public Broadcasting at 1 (Nov. 26, 2014). CPB noted 
further that NPR/Public Radio ``has proposed terms and conditions for 
SoundExchange's licensing of NPR/Public Radio that are reasonable and 
appropriate for NPR/Public Radio; and the proposed Settlement does not 
and should not have application to same.'' Id. at 1-2.

Analysis and Finding

    The Judges' authority to adopt proposed settlements as statutory 
rates and terms is codified in Section 801(b)(7)(A) of the Copyright 
Act. That provision of the Act authorizes the Judges to adopt as a 
basis for statutory terms and rates an agreement concerning such 
matters reached among ``some or all of the participants'' in a 
proceeding ``at any time during the proceeding'' except that the Judges 
must provide an opportunity to comment on the agreement to those that 
would be bound by the agreement. 17 U.S.C. 801(b)(7)(A)(i).
    The Act authorizes the Judges to decline to adopt the agreement for 
participants that are not parties to the agreement if a participant to 
the proceeding objects to the agreement and the Judges conclude, based 
on the record before them if one exists, that the agreement does not 
provide a reasonable basis for setting statutory terms and rates. 17 
U.S.C. 801(b)(7)(A)(ii). Section 801(b)(7)(A) limits the circumstances 
under which the Judges are able to decline to adopt aspects of an 
agreement, but it does not foreclose the Judges from ascertaining 
whether specific provisions are contrary to law. See Review of 
Copyright Royalty Judges Determination, 74 FR 4537, 4540 (Jan. 26, 
2009).
    In the context of the statutory requirements regarding adoption of 
settlements, the Judges find that--notwithstanding the objections of 
some of the commenters--this partial Settlement provides a reasonable 
basis for setting statutory terms and rates and therefore the Judges 
adopt the partial Settlement, with one exception discussed below.
    Objections to the proposal can be summarized as follows: (1) 
Adopting the Settlement before conclusion of the proceeding would be 
premature; (2) rates paid by certain other parties in previous 
agreements are lower than those in the proposed Settlement; (3) payment 
of a proxy fee in lieu of reporting precludes accurate allocation of 
royalties to artists; (4) colleges and other public entities may not 
pay royalties to SoundExchange due to applicable state laws prohibiting 
public entities such as colleges from making payments to lobbying 
organizations; (5) CBI member organizations are not representative of 
NEWs because they generally have paid staffs and non-CBI member NEWs 
generally do not; (6) the proposed ATH definition, which includes 
programming other than sound recordings, is too broad; (7) because 
NEWs' streaming activity is far below the thresholds set in the 
proposed settlement, they have no incentive to negotiate higher 
streaming thresholds; and (8) the proposed, amended certification 
requirement might be unworkable for some NEWs.
    The Judges address these concerns in turn.

Adopting the Settlement Now Would Be Premature

    Section 801(b)(7)(A) of the Act is clear that the Judges have the 
authority to adopt settlements between some or all of the participants 
to a proceeding at any time during a proceeding so long as those that 
would be bound by those rates and terms are given an opportunity to 
comment. Requiring that the adoption of all proposed settlements wait 
until the conclusion of the proceeding would undercut the policy in 
Section 801(b)(7)(A) to promote negotiated settlements. Such a position 
would unnecessarily require those participants that have agreed to a 
settlement to continue to participate in the proceeding until all 
interests were resolved. No such requirement is in the Act and the 
Judges see no reason to impose one.

Rates Paid in Previous Agreements Are Lower

    Some commenters claim that certain rates agreed to by certain 
participants in other contexts are lower than those agreed to in the 
Settlement. Even if true, such a fact would be irrelevant to 
determining whether the current proposal forms a reasonable basis for 
rates and terms with respect to the entities to which it applies in the 
current proceeding. Indeed, in most material respects, the rates and 
terms of the Settlement merely extend current rates and terms for 
another five years. The Judges have been presented with no evidence to 
suggest that the current rates and terms, which the Settlement would 
extend, have been disruptive or overly burdensome for the entities to 
which they apply, notwithstanding that some entities during some 
previous years may have paid lower rates.

Proxy Fee Payment in Lieu of Reporting Precludes Accurate Allocation of 
Royalties

    The Judges are also unconvinced that the provision regarding proxy 
fee payment in lieu of census reporting provides a reason not to adopt 
the settlement for the upcoming rate period. The extant regulations 
include this provision. The parties to the agreement have acknowledged 
that the costs of census reporting may outweigh its benefits to the 
webcasters covered by the Settlement. The current proposal merely 
continues a practice that has been in place for the last several years.

[[Page 58204]]

    Although the threshold to qualify for proxy fee payment in lieu of 
reporting would rise from 55,000 ATH to 80,000 ATH, such an increase 
would affect few if any qualifying NEWs.\9\ Indeed, the higher 
threshold frees more webcasters from the burdens of census reporting. 
The proposal also provides additional, reasonable safeguards to ensure 
that webcasters that do not exceed the threshold in subsequent months 
will not lose their NEW status (and privileges).
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    \9\ See SoundExchange Comment at 6 (in 2013, no NEW reported 
exceeding the 55,000 ATH threshold in any month).
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    SoundExchange confirms that ``the proxy reporting provisions in 
Section 380.23(g)(1) have proven to be a reasonable solution to the 
problem of distributing on a fair and cost-effective basis the 
relatively small pool of royalties paid by NEWs.'' SoundExchange 
Comment at 6. The Judges see no reason to disrupt a reporting method 
that appears to be operating fairly and efficiently.

Public Entity Payments to SoundExchange May Be Prohibited by State Law

    Concerns about state laws as they relate to royalty deposits with 
SoundExchange as the Collective \10\ go to SoundExchange's capacity as 
the Collective rather than to the merits of the CBI/SoundExchange 
Settlement. It is worth noting, however, that SoundExchange has served 
as the Collective since the Judges issued their first webcasting 
determination and SoundExchange has never been challenged based on its 
organizational status or activities. Moreover, the Judges are unaware 
of any instance in which a state or local government has challenged a 
royalty payment to SoundExchange based on applicable lobbying laws in 
that state. Therefore, such concerns are speculative at best.
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    \10\ This opposition to the proposed regulatory provision 
assumes SoundExchange to be the designated Collective. The Judges' 
decision assumes, without deciding at this point, that SoundExchange 
continues in that role.
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    That being said, the Judges decline to adopt at this point the 
proposed definition of ``Collective'' in the settlement that expressly 
designates SoundExchange. Designation of the Collective is an issue 
that the Judges will decide in the final determination.\11\ Therefore, 
any royalty payments made under the Settlement as adopted, will be paid 
to the Collective the Judges designate in the final determination.
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    \11\ No party to the proceeding has suggested an alternate or 
additional Collective.
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CBI Members Are Not Representative of NEWs Because They Have Paid 
Staffs

    The Judges find no persuasive evidence in the record before them to 
support the argument that CBI members are not representative of NEWs 
generally. Even if the Judges were presented with such evidence, that 
fact alone would not convince the Judges that the current Settlement is 
not a reasonable basis for setting rates and terms for those entities 
that wish to avail themselves of the Settlement. The underlying 
argument appears to be that NEWs that do not have the resources to pay 
a staff should be entitled to more favorable terms and rates than those 
available under the Settlement. Even if that were true--a contention 
upon which the Judges need not opine at this time--that fact would not 
suggest that the Settlement as proposed does not form a reasonable 
basis for rates and terms. Proposed settlements need not be the best 
possible outcome for all concerned; they need only form a reasonable 
basis for rates and terms, and the Judges find that the current 
proposal meets that standard.

Proposed ATH Definition Is Too Broad

    NRBNMLC notes that the definition of ATH in Sec.  380.21, which 
would carry over under the Settlement, ``does not unambiguously exclude 
. . . programming that does not include sound recordings at all, such 
as news, talk and sports programming.'' NRBNMLC Comment at 2. Although 
NRBNMLC does not object to the ATH definition, it believes this aspect 
of the definition is a ``flaw,'' albeit not one that would adversely 
affect NEWs since, according to NRBNMLC, NEWs stream at levels well 
below the 159,140 ATH level. Id. at 6-7.
    WHRB also expresses nebulous concern over the ATH definition, 
noting that it potentially overstates ATH and would have ``the 
attendant consequences.'' WHRB Comment at 4. Neither commenter's 
concerns about the perceived scope of the ATH definition are of the 
magnitude that would suggest that the Settlement does not form a 
reasonable basis for setting rates and terms. Indeed, the Settlement 
merely carries forward the current ATH definition, which has applied 
without incident over the current rate period. Therefore, the Judges 
adopt without change the proposed ATH definition.

NEWs Have No Incentive To Adopt Higher Streaming Thresholds

    NRBNMLC notes that during the current license period all NEWs 
streamed at a level below the 159,140 ATH threshold, and therefore they 
have no incentive to negotiate a higher threshold for the upcoming 
license term. The Judges view this statement as an affirmation that the 
proposed Settlement, which carries forward the current ATH threshold, 
is a reasonable basis for rates and terms applicable to NEWs. In 
reaching that conclusion, however, the Judges do not mean to imply that 
in other contexts, with respect to entities that stream at levels 
beyond those that are typical for NEWs, a different streaming threshold 
might not also be reasonable.

Proposed Changes to the Certification Requirement Might Be Unworkable 
for Some NEWs

    WHRB takes exception to a provision in the Settlement dealing with 
the category of persons authorized to certify a NEW's status in 
statements of account. Currently, the certifying person must be an 
``officer or other duly authorized faculty member or administrator of 
the applicable educational institution.'' 37 CFR 380.23(f)(9). Under 
the proposal, the certifying person could be any ``duly authorized 
representative'' of the applicable educational institution.\12\ WHRB 
contends that the current provision authorizes student officers of WHRB 
to certify statements of account whereas the proposal would not. The 
Judges need not opine on whether WHRB's interpretation of the current 
(or proposed) certification provision is correct.
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    \12\ For the sake of consistency, the Judges will also make a 
corresponding change to 37 CFR 380.23(f)(4) (requiring the signature 
of the certifying representative).
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    The Judges find that the proposed change to Sec.  380.23(f)(9), 
viewed in the context of the proposed Settlement as a whole, is a 
reasonable means of ensuring that the statement of account is certified 
by a person who is duly authorized to represent the applicable 
educational institution for this limited purpose. Nothing in the 
provision expressly precludes that duly authorized person from being a 
student, independent auditor, counsel, or other person, so long as the 
applicable educational institution ``duly authorizes'' that person to 
perform the required task as the institution's representative. To be 
sure, the by-laws of a particular institution may dictate who may or 
may not serve as a duly authorized representative of a particular 
educational institution. Nevertheless, the Judges find the proposed 
amendment to Sec.  380.23(f)(9) to be reasonable in the context of the

[[Page 58205]]

Settlement as a whole and adopt it unchanged.

Impact on Proposed Rulemaking

    On May 2, 2014, the CRB published in the Federal Register a Notice 
of Proposed Rulemaking in which the CRB sought comments on a motion 
from CBI, IBS, and American Council on Education.\13\ In the notice, 
the Judges announced that the motion--which sought ``clarification'' of 
certain amendments to CRB notice and recordkeeping rules in 37 CFR part 
370--was not properly before them, thereby effectively denying the 
motion. Nevertheless, the CRB sought comments on various proposals from 
the moving parties to expand the categories of entities that could 
qualify for exclusions from the census reporting requirements of 37 CFR 
370.
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    \13\ 79 FR 25038. The CRB also sought comments in the notice on 
a rulemaking petition from SoundExchange that proposed a number of 
amendments to the CRB's notice and recordkeeping requirements. That 
petition is still pending.
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    In response, the CRB received a number of comments from NEWs 
requesting that the reporting waiver in 37 CFR 380.23(g)(1) (i.e., the 
provision permitting payment of a proxy fee in lieu of census 
reporting) be extended into the next license term as a viable 
alternative to amending the CRB's reporting requirements.\14\ Moreover, 
in its comment, SoundExchange implied that amendment to the CRB 
reporting requirements for a significant number of affected parties was 
unnecessary since NEWs with the lowest intensity of usage may elect to 
pay a proxy fee of $100 and forego providing reports of use 
altogether.\15\
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    \14\ See, e.g., the following comments filed in docket number 
14-CRB-0005 (RM): ACRN Comment (June 9, 2014), KBCU-FM Comment (May 
22, 2014), KBHU-FM Comment (May 19, 2014), KSSU Comment (June 18, 
2014), KUIW Comment (June 2, 2014), KWSC-FM Comment (June 23, 2014), 
KXUL Comment (Aug. 11, 2014), Lasell College Radio Comment (May 22, 
2014), SCAD Atlanta Radio Comment (May 22, 2014), WBSU Comment (June 
10, 2014), WGSU-FM Comment (June 29, 2014), WJCU Comment (May 21, 
2014), Comments of WKNC-FM North Carolina State University (June 9, 
2014), WRFL-UK (Univ. of KY) Comment (June 25, 2014), WSDP-FM 
Comment (June 25, 2014), WSLX Comment (June 19, 2014), and WSOU-FM 
(Seton Hall University) Comment (May 28, 2014).
    \15\ SoundExchange Comment at 3. SoundExchange opposed expanding 
the reporting exclusion to include noncommercial, noneducational 
webcasters. Id. at 4.
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    Many if not most of the comments responsive to the proposed 
recordkeeping provisions were filed by NEWs that apparently would 
qualify under the proposed Settlement to pay the proxy fee in lieu of 
census reporting in the upcoming license period. Extension until 
December 31, 2020, of the proxy fee in lieu of census reporting does 
not, however, address the precise issue raised in that rulemaking 
proceeding. The Judges shall address this issue along with a number of 
other issues relating to Part 370 in a separate publication focused 
directly on the May 2, 2014, Notice of Proposed Rulemaking.

Conclusion

    For the reasons discussed above, the Judges find that the agreement 
reached voluntarily between SoundExchange and CBI establishes a 
reasonable basis for setting statutory terms and rates for 
noncommercial educational webcasters for the period January 1, 2016, 
through December 31, 2020. The Judges adopt the proposed regulations 
that codify the partial Settlement with the one exception discussed 
above, i.e., the reference to SoundExchange as the designated 
Collective.\16\ In adopting the partial Settlement and proposed 
regulations, the Judges in no way suggest that they are more or less 
inclined to adopt the reasoning or proposals of any of the parties' 
remaining in the proceeding.
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    \16\ As discussed above, the definition in Sec.  380.21 that the 
Judges adopt cross-references the Collective definition in Sec.  
380.2. The Judges also have adopted certain nonsubstantive changes 
to enhance consistency and accuracy with respect to references in 
the Noncommercial Educational Webcaster definition in Sec.  380.21. 
In all other respects, the settlement is adopted as proposed.
---------------------------------------------------------------------------

List of Subjects in 37 CFR Part 380

    Copyright, Digital audio transmissions, Performance right, Sound 
recordings.

Final Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges amend 37 CFR part 380 as follows:

PART 380--RATES AND TERMS FOR CERTAIN ELIGIBLE NONSUBSCRIPTION 
TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF 
EPHEMERAL REPRODUCTIONS

0
1. The authority citation for part 380 continues to read as follows:

    Authority:  17 U.S.C. 112(e), 114(f), 804(b)(3).

0
2. Amend Sec.  380.20 by revising paragraph (a) to read as follows:

Subpart C--Noncommercial Educational Webcasters


Sec.  380.20  General.

    (a) Scope. This subpart establishes rates and terms, including 
requirements for royalty payments, recordkeeping and reports of use, 
for the public performance of sound recordings in certain digital 
transmissions made by Noncommercial Educational Webcasters as set forth 
herein in accordance with the provisions of 17 U.S.C. 114, and the 
making of Ephemeral Recordings by Noncommercial Educational Webcasters 
as set forth herein in accordance with the provisions of 17 U.S.C. 
112(e), during the period January 1, 2016, through December 31, 2020.
* * * * *

0
3. Amend Sec.  380.21 by revising the definitions for ``Collective'' 
and ``Noncommercial Educational Webcaster'' to read as follows:


Sec.  380.21  Definitions.

* * * * *
    Collective is the collection and distribution organization 
specified in Sec.  380.2.
* * * * *
    Noncommercial Educational Webcaster means a Noncommercial Webcaster 
(as defined in 17 U.S.C. 114(f)(5)(E)(i)) that
    (1) 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;
    (2) Complies with all applicable provisions of Sections 112(e) and 
114 and applicable regulations;
    (3) Is directly operated by, or is affiliated with and officially 
sanctioned by, and the digital audio transmission operations of which 
are staffed substantially by students enrolled at, a domestically 
accredited primary or secondary school, college, university or other 
post-secondary degree-granting educational institution;
    (4) Is not a ``public broadcasting entity'' (as defined in 17 
U.S.C. 118(f)) qualified to receive funding from the Corporation for 
Public Broadcasting pursuant to the criteria set forth in 47 U.S.C. 
396; and
    (5) Takes affirmative steps not to make total transmissions in 
excess of 159,140 Aggregate Tuning Hours on any individual channel or 
station in any month, if in any previous calendar year it has made 
total transmissions in excess of 159,140 Aggregate Tuning Hours on any 
individual channel or station in any month.
* * * * *

0
4. Revise Sec.  380.22 to read as follows:


Sec.  380.22  Royalty fees for the public performance of sound 
recordings and for ephemeral recordings.

    (a) Minimum fee for eligible Noncommercial Educational Webcasters. 
Each Noncommercial

[[Page 58206]]

Educational Webcaster that did not exceed 159,140 total ATH for any 
individual channel or station for more than one calendar month in the 
immediately preceding calendar year and does not expect to make total 
transmissions in excess of 159,140 Aggregate Tuning Hours on any 
individual channel or station in any calendar month during the 
applicable calendar year shall pay an annual, nonrefundable minimum fee 
of $500 (the ``Minimum Fee'') 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 it makes Eligible Transmissions 
subject to this subpart. For clarity, 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. The 
Minimum Fee shall constitute the annual per channel or per station 
royalty for all Eligible Transmissions totaling not more than 159,140 
Aggregate Tuning Hours in a month on any individual channel or station, 
and for Ephemeral Recordings to enable such Eligible Transmissions. In 
addition, a Noncommercial Educational Webcaster electing the reporting 
waiver described in Sec.  380.23(g)(1), shall pay a $100 annual fee 
(the ``Proxy Fee'') to the Collective.
    (b) Consequences of unexpectedly exceeding ATH cap. In the case of 
a Noncommercial Educational Webcaster eligible to pay royalties under 
paragraph (a) that unexpectedly makes total transmissions in excess of 
159,140 Aggregate Tuning Hours on any individual channel or station in 
any calendar month during the applicable calendar year:
    (1) The Noncommercial Educational Webcaster shall, for such month 
and the remainder of the calendar year in which such month occurs, pay 
royalties in accordance, and otherwise comply, with the provisions of 
Part 380 Subpart A applicable to noncommercial webcasters;
    (2) The Minimum Fee paid by the Noncommercial Educational Webcaster 
for such calendar year will be credited to the amounts payable under 
the provisions of Part 380 Subpart A applicable to noncommercial 
webcasters; and
    (3) The Noncommercial Educational Webcaster shall, within 45 days 
after the end of such month, notify the Collective that it has made 
total transmissions in excess of 159,140 Aggregate Tuning Hours on a 
channel or station in a month; pay the Collective any amounts for such 
month due under the provisions of Part 380 Subpart A applicable to 
noncommercial webcasters; and provide the Collective a statement of 
account pursuant to Part 380 Subpart A.
    (c) Royalties for other Noncommercial Educational Webcasters. A 
Noncommercial Educational Webcaster that is not eligible to pay 
royalties under paragraph (a) shall pay royalties in accordance, and 
otherwise comply, with the provisions of Part 380 Subpart A applicable 
to noncommercial webcasters.
    (d) Estimation of performances. In the case of a Noncommercial 
Educational Webcaster that is required to pay royalties under paragraph 
(b) or (c) on a per-performance basis, that is unable to calculate 
actual total performances, and that is not required to report actual 
total performances under Sec.  380.23(g)(3), the Noncommercial 
Educational Webcaster may pay its applicable royalties on an ATH basis, 
provided that the Noncommercial Educational Webcaster shall pay such 
royalties at the applicable per-performance rates based on the 
assumption that the number of sound recordings performed is 12 per 
hour. The Collective may distribute royalties paid on the basis of ATH 
hereunder in accordance with its generally applicable methodology for 
distributing royalties paid on such basis. In addition, and for the 
avoidance of doubt, a Noncommercial Educational Webcaster offering more 
than one channel or station shall pay per-performance royalties on a 
per-channel or -station basis.
    (e) Ephemeral royalty. The royalty payable under 17 U.S.C. 112(e) 
for any ephemeral reproductions made by a Noncommercial Educational 
Webcaster is deemed to be included within the royalty payments set 
forth in paragraphs (a) through (c) of this section and to equal 5% of 
the total royalties payable under such paragraphs.


0
5. Amend Sec.  380.23 by:
0
a. Revising paragraph (c);
0
b. Removing and reserving paragraph (d);
0
c. Revising paragraph (f) introductory text;
0
d. Removing and reserving paragraph (f)(2); and
0
e. Revising paragraphs (f)(4), (f)(9), (g)(1), and (g)(3).
    The revisions read as follows:


Sec.  380.23  Terms for making payment of royalty fees and statements 
of account.

* * * * *
    (c) Minimum fee. Noncommercial Educational Webcasters shall submit 
the Minimum Fee, and Proxy Fee if applicable, accompanied by a 
statement of account, by January 31st of each calendar year, except 
that payment of the Minimum Fee, and Proxy Fee if applicable, by a 
Noncommercial Educational Webcaster that was not making Eligible 
Transmissions or Ephemeral Recordings pursuant to the licenses in 17 
U.S.C. 114 and/or 17 U.S.C. 112(e) as of said date but begins doing so 
thereafter shall be due by the 45th day after the end of the month in 
which the Noncommercial Educational Webcaster commences doing so. At 
the same time the Noncommercial Educational Webcaster must identify all 
its stations making Eligible Transmissions and identify which of the 
reporting options set forth in paragraph (g) of this section it elects 
for the relevant year (provided that it must be eligible for the option 
it elects).
* * * * *
    (f) Statements of account. Any payment due under Sec.  380.22(a) 
shall be accompanied by a corresponding statement of account on a form 
provided by the Collective. A statement of account shall contain the 
following information:
* * * * *
    (4) The signature of a duly authorized representative of the 
applicable educational institution;
* * * * *
    (9) A statement to the following effect:

    I, the undersigned duly authorized representative of the 
applicable educational institution, have examined this statement of 
account; hereby state that it is true, accurate, and complete to my 
knowledge after reasonable due diligence; and further certify that 
the licensee entity named herein qualifies as a Noncommercial 
Educational Webcaster for the relevant year, and did not exceed 
159,140 total ATH in any month of the prior year for which the 
Noncommercial Educational Webcaster did not submit a statement of 
account and pay any required additional royalties.

    (g) * * *
    (1) Reporting waiver. In light of the unique business and 
operational circumstances with respect to Noncommercial Educational 
Webcasters, and for the purposes of this subpart only, a Noncommercial 
Educational Webcaster that did not exceed 80,000 total ATH for any 
individual channel or station for more than one calendar month in the 
immediately preceding calendar year and that does not expect to exceed 
80,000 total ATH for any individual channel or station for any calendar 
month during the applicable calendar year may elect to pay to the 
Collective a nonrefundable, annual Proxy Fee of $100 in lieu of 
providing reports of use

[[Page 58207]]

for the calendar year pursuant to the regulations Sec.  370.4 of this 
chapter. In addition, a Noncommercial Educational Webcaster that 
unexpectedly exceeded 80,000 total ATH on one or more channels or 
stations for more than one month during the immediately preceding 
calendar year may elect to pay the Proxy Fee and receive the reporting 
waiver described in paragraph (g)(1) of this section during a calendar 
year, if it implements measures reasonably calculated to ensure that it 
will not make Eligible Transmissions exceeding 80,000 total ATH during 
any month of that calendar year. The Proxy Fee is intended to defray 
the Collective's costs associated with this reporting waiver, including 
development of proxy usage data. The Proxy Fee shall be paid by the 
date specified in paragraph (c) of this section for paying the Minimum 
Fee for the applicable calendar year and shall be accompanied by a 
certification on a form provided by the Collective, signed by a duly 
authorized representative of the applicable educational institution, 
stating that the Noncommercial Educational Webcaster is eligible for 
the Proxy Fee option because of its past and expected future usage and, 
if applicable, has implemented measures to ensure that it will not make 
excess Eligible Transmissions in the future.
* * * * *
    (3) Census-basis reports. If any of the following three conditions 
is satisfied, a Noncommercial Educational Webcaster must report 
pursuant to paragraph (g)(3) of this section:
    (i) The Noncommercial Educational Webcaster exceeded 159,140 total 
ATH for any individual channel or station for more than one calendar 
month in the immediately preceding calendar year;
    (ii) The Noncommercial Educational Webcaster expects to exceed 
159,140 total ATH for any individual channel or station for any 
calendar month in the applicable calendar year; or
    (iii) The Noncommercial Educational Webcaster otherwise does not 
elect to be subject to paragraph (g)(1) or (2) of this section.
    A Noncommercial Educational Webcaster required to report pursuant 
to paragraph (g)(3) of this section shall provide reports of use to the 
Collective quarterly on a census reporting basis in accordance with 
Sec.  370.4 of this chapter, except that, notwithstanding Sec.  
370.4(d)(2), such a Noncommercial Educational Webcaster shall not be 
required to include ATH or actual total performances, and may in lieu 
thereof provide channel or station name and play frequency, during the 
first calendar year it reports in accordance with paragraph (g)(3) of 
this section. For the avoidance of doubt, after a Noncommercial 
Educational Webcaster has been required to report in accordance with 
paragraph (g)(3) of this section for a full calendar year, it must 
thereafter include ATH or actual total performances in its reports of 
use. All reports of use under paragraph (g)(3) of this section shall be 
submitted to the Collective no later than the 45th day after the end of 
each calendar quarter.
* * * * *

    Dated: August 3, 2015.
Jesse M. Feder,
Copyright Royalty Judge.

Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 2015-24506 Filed 9-25-15; 8:45 am]
 BILLING CODE 1410-72-P