Notice and Recordkeeping for Use of Sound Recordings Under Statutory License, 31506-31511 [2016-11746]
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Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / Rules and Regulations
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call 1–
888–REG–FAIR (1–888–734–3247). The
Coast Guard will not retaliate against
small entities that question or complain
about this rule or any policy or action
of the Coast Guard.
C. Collection of Information
This rule will not call for a new
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
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D. Federalism and Indian Tribal
Governments
A rule has implications for federalism
under Executive Order, Federalism, if it
has a substantial direct effect on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. We have analyzed
this rule under that Order and have
determined that it is consistent with the
fundamental federalism principles and
preemption requirements described in
Executive Order 13132.
Also, this rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes. If you
believe this rule has implications for
federalism or Indian tribes, please
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section
above.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such expenditure, we
do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
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Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a safety
zone during a 2-day period that will
prohibit entry within the zone without
permission of the Captain of the Port. It
is categorically excluded from further
review under paragraph 34(g) of Figure
2–1 of the Commandant Instruction. An
environmental analysis checklist
supporting this determination and a
Categorical Exclusion Determination are
available in the docket where indicated
under ADDRESSES. We seek any
comments or information that may lead
to the discovery of a significant
environmental impact from this rule.
G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures, and
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165–REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
through 6:00 p.m. on May 22, 2016.
Enforcement during the effective
periods will allow for scheduled breaks
allowing vessels to pass through the
safety zone. Notice of scheduled breaks
will be provided as indicated under (d)
Informational broadcasts.
(b) Regulations. (1) Under the general
safety zone regulations in § 165.23 of
this part, entry into this zone is
prohibited to all persons and vessels
except those vessels specifically
authorized by the Captain of the Port,
Port Arthur or a designated
representative.
(2) Persons or vessels requiring entry
into or passage through must request
permission from the Captain of the Port,
Port Arthur, or a designated
representative. They may be contacted
on VHF–FM channel 13 or 16, or by
phone at by telephone at 409–719–5070.
(3) All persons and vessels shall
comply with the lawful orders or
directions given to them by the Captain
of the Port, Port Arthur or the Captain
of the Port’s designated representative.
On-scene U.S. Coast Guard patrol
personnel include commissioned,
warrant, and petty officers of the U.S.
Coast Guard.
(c) Information broadcasts. The Coast
Guard will inform the public through
broadcast notices to mariners of channel
restrictions and Vessel Traffic Service
advisories on VHF–FM channel 65A.
Dated: April 15, 2016.
R.S. Ogrydziak,
Captain, U.S. Coast Guard, Captain of the
Port, Port Arthur, Texas.
[FR Doc. 2016–11821 Filed 5–18–16; 8:45 am]
BILLING CODE 9110–04–P
■
LIBRARY OF CONGRESS
Authority 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
Copyright Royalty Board
2. Add temporary § 165.T08–0321 to
read as follows:
[Docket No. RM 2008–7]
■
§ 165.T08–0321
Orange, Texas.
Safety Zone; Sabine River,
Location. The following area is a
safety zone: Waters of the Sabine River,
shoreline to shoreline, adjacent to the
Orange public boat ramps located in
Orange, TX. The northern boundary is
from the end of old Navy Pier One at
30°05′50″ N. 93°43′15″ W. then easterly
to the river’s eastern shore. The
southern boundary is a line shoreline to
shoreline at latitude 30°05′33″ N.
(NAD83).
(a) Effective Periods. This rule is
effective from 8:30 a.m. on May 21, 2016
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37 CFR Part 370
Notice and Recordkeeping for Use of
Sound Recordings Under Statutory
License
Copyright Royalty Board,
Library of Congress.
ACTION: Final rule.
AGENCY:
The Copyright Royalty Judges
are amending a Copyright Royalty Board
rule regarding reporting requirements
for certain Educational Stations that pay
no more than the minimum fee for their
use of sound recordings under the
applicable statutory licenses.
DATES: Effective May 19, 2016.
SUMMARY:
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Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
Kimberly Whittle at (202) 707–7658 or
at crb@loc.gov.
SUPPLEMENTARY INFORMATION:
Introduction
On May 2, 2014, the Copyright
Royalty Judges (Judges) published a
document in the Federal Register
seeking comments on two unrelated
rulemaking proposals (Proposal).1 For
the proposal that is the subject of this
document the Judges requested
comments on a proposed rule
amendment to relax certain reporting
requirements for educational stations
that pay no more than the minimum fee
for the use of sound recordings under
the statutory licenses in Sections 112(e)
and 114 of the Copyright Act. The
Judges received over twenty comments
on the proposal, most of which
supported it. For the reasons discussed
below, the Judges adopt the proposed
amendment.
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Background
On October 28, 2009, College
Broadcasters, Inc. (CBI), American
Council on Education (ACE), and
Intercollegiate Broadcasting System, Inc.
(IBS) (collectively, ‘‘Petitioners’’) filed a
motion with the Judges seeking
clarification of an issue purportedly
raised by final regulations that the
Judges adopted regarding reporting
requirements for entities that digitally
transmit sound recordings pursuant to
section 114(d)(2) of the Copyright Act or
that make ephemeral phonorecords of
sound recordings pursuant to section
112(e) of that Act.2 Joint Petition for
Clarification, Notice and Recordkeeping
for Use of Sound Recordings Under the
Statutory License, Docket No. RM 2008–
7 (Oct. 28, 2009) (Joint Petition). The
regulations at issue are found in 37 CFR
370.4, and they prescribe rules for the
maintenance and delivery of reports of
use (ROUs).3
1 See 79 FR 25038. The Judges continue to
analyze the second rulemaking proposal, submitted
by SoundExchange, Inc., and the comments
responsive thereto.
2 The release adopting the regulations appeared in
74 FR 52418 (Oct. 13, 2009). The applicable rules
are codified in 37 CFR part 370.
3 An ROU is a report required to be provided by
an entity that transmits sound recordings pursuant
to the statutory licenses in section 114(d)(2) or that
makes ephemeral recordings of sound recordings
pursuant to section 112(e) of the Copyright Act. 37
CFR 370.1(i). ROUs must be delivered to the
Collective designated by the Judges (currently
SoundExchange, Inc.). See, e.g., 37 CFR 370.4(c).
ROUs must include the name of the entity making
the transmissions, a category transmission code, the
featured artist of the sound recording, and the
sound recording title, among other information. The
current proceeding is focused only on the reporting
requirements of ‘‘nonsubscription transmission
services,’’ which are entities that provide audio
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For nonsubscription transmission
services, except those qualifying as
minimum fee broadcasters, the ROU
must include the actual total
performances of each sound recording
during the reporting period. 37 CFR
370.4(d)(2)(vi). Minimum fee
broadcasters, however, may report, as an
alternative to actual total performances,
the aggregate tuning hours, the channel
or program name, and play frequency.
37 CFR 370.4(d)(2)(vii).
Whereas most services must prepare
an ROU for each calendar month of the
year, a minimum fee broadcaster need
only prepare an ROU for a two-week
period for each calendar quarter of the
year. 37 CFR 370.4(d)(3).4 However, the
regulations exempt minimum-fee
broadcasters from the census reporting
requirement (i.e., the requirement to
report actual total performances) only if
their stations are licensed by the Federal
Communications Commission (FCC)
because the FCC licensing is part of the
definition of ‘‘broadcaster.’’ Petitioners
asked that the Judges ‘‘clarify’’ that the
regulations also exempt minimum-fee
broadcasters that are not FCC-licensed
broadcasters if they are ‘‘educational’’ in
nature. Joint Petition at 2–4.
After reviewing the Joint Petition, the
Judges concluded that Petitioners were
not seeking a clarification of the final
regulations but rather were seeking a
substantive change. In other words, the
‘‘clarification’’ that the Petitioners
sought actually amounted to a request to
amend the census reporting requirement
regulations to exempt non-FCC-licensed
minimum-fee educational webcasters.
The Judges thus determined that
Petitioners’ petition for clarification
should be treated as a petition for
rulemaking and made the Joint Petition
subject to notice and public comment.5
On May 2, 2014, the Judges published
the Proposal in the Federal Register
seeking comments on the Petitioners’
proposal.6 The Judges requested
comments on not only the Petitioners’
principal proposal, which would
exempt non-FCC-licensed minimum fee
educational webcasters from the census
reporting requirement, but also on a
programming consisting of performances of sound
recordings. See 37 CFR 370.1(e). Such services are
often referred to as webcasters.
4 The weeks need not be consecutive but both
must be completely within the calendar quarter. 37
CFR 370.4(d)(3)(ii).
5 79 FR at 25039.
6 79 FR 25038. In the interest of administrative
efficiency, the Judges also sought comments in the
same notice on an unrelated petition for rulemaking
that SoundExchange submitted. SoundExchange’s
proposal, which requested a broad range of changes
to CRB rules, is still pending. The current release
addresses only the census reporting requirement
proposal submitted by the Petitioners.
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broader alternative proposal that
Petitioners proffered that would expand
the census reporting exemption to
entities that are noncommercial
webcasters but that would not be
considered educational entities under
the Petitioners’ proposal.
In response to the Proposal, the
Judges received approximately twentyfour comments.7 No commenter
opposed the Petitioners’ proposal for
educational webcasters. SoundExchange
did, however, oppose Petitioners’
broader alternative proposal to exclude
from the census reporting requirements
noneducational noncommercial
webcasters. As discussed below, the
Judges are adopting the Petitioners’
proposed exemption for non-FCClicensed educational broadcasters, but
are not adopting the broader
noncommercial webcaster exemption.
Petitioners’ Rule Proposal
Petitioners propose that the definition
of a ‘‘minimum fee broadcaster’’ in 37
CFR 370.4(b)(3) be amended to include
a nonsubscription service that: (1) Is
directly operated by, or affiliated with
and officially sanctioned by a
domestically accredited primary or
secondary school, college, university, or
other post-secondary degree-granting
educational institution; and (2) the
digital audio transmission operations of
which are, during the course of the year,
staffed substantially by students
enrolled in such institution; and (3) is
not a ‘‘public broadcasting entity’’ (as
defined in 17 U.S.C. 118(g)) qualified to
receive funding from the Corporation for
Public Broadcasting (CPB) pursuant to
the criteria set forth in 47 U.S.C. 396;
and (4) is exempt from taxation under
section 501 of the Internal Revenue
Code, has applied for such exemption,
or is operated by a State or possession
or any governmental entity or
subordinate thereof, or by the United
States or District of Columbia, for
exclusively public purposes. Joint
Petition at 2 n.1. While the proposed
language upon which the Judges
requested comments did not incorporate
CBI’s singular reference to ‘‘Educational
Stations,’’ the proposal retained the
substance of the Petitioners’ proposal.
In the Proposal soliciting comment on
the proposal, in addition to seeking
7 The Judges received comments that addressed in
some fashion the Petitioners’ proposal from the
following: All-Campus Radio Network (ACRN),
Andrea Baker, CBI, IBS, KBCU–FM, KBHU–FM,
KNHC, KSSU, KUIW, KWSC–FM, KXUL, Lasell
College Radio, the National Association of
Broadcasters and Radio Music License Committee
(NAB/RMLC), NPR, SCAD Atlanta Radio,
SoundExchange, WBSU, WGSU–FM, WJCU,
WKNC–FM, WRFL–FM, WSDP–FM, WSLX, and
WSOU–FM (Seton Hall University).
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comments on the proposal generally, the
Judges also sought comments on certain
specific issues. In particular, the Judges
sought comment on how unlicensed
minimum fee ‘‘Educational Stations,’’ as
that term would be defined in
Petitioners’ proposal, have been
reporting under the current regulations.
The Judges also asked whether any such
entities have ceased operations, as
predicted by Petitioners and if so, how
many. If none ceased operations, the
Judges asked whether the need still
exists for Petitioners’ proposed
amendment. The Judges also asked
whether Petitioners have, in the first
instance, made their case persuasively
that the proposed amendment is
warranted. If the change is warranted,
the Judges asked whether they should
adopt (1) Petitioners’ preferred
definition, which applies only to
Educational Stations, or (2) the broader,
alternate definition.8
Comment Summary
Of the 24 comments the Judges
reviewed, none opposed the specific
language included in the Proposal,
although, as discussed below,
SoundExchange opposed adopting a
more expansive exemption from the
census reporting requirements for
noncommercial webcasters that are not
affiliated with an educational
organization.
All-Campus Radio Network’s (ACRN)
comment is illustrative of those that
supported the proposal. Because it has
no FCC license, ACRN cannot qualify as
a ‘‘minimum fee broadcaster’’ under 37
CFR 370.4(b)(3).9 ACRN is, however, a
Noncommercial Educational Webcaster
(NEW) as defined in 37 CFR 380.21.10
8 79
FR at 25040.
370.4(b)(3) states that a minimum fee
broadcaster is a nonsubscription service that meets
the definition of a broadcaster pursuant to
§ 380.2(b) and the service’s payments for eligible
transmissions do not exceed the annual minimum
fee established for licensees relying upon the
statutory licenses set forth in 17 U.S.C. 112 and 114.
At the time of the motion for clarification 37 CFR
380.2 defined a broadcaster as a type of Licensee
that owns and operates a terrestrial AM or FM radio
station that is licensed by the Federal
Communications Commission.
10 Under § 380.21, a NEW is a noncommercial
webcaster (as defined in 17 U.S.C. 114(f)(5)(E)(i))
that has obtained a compulsory license, complies
with all applicable provisions of the license, is
operated by or affiliated with and sanctioned by a
primary or secondary school, college or university
or other degree-granting educational institution,
and is not a public broadcasting entity qualified to
receive funding from the CPB. 17 CFR 380.21. As
part of the supporting regulations for the Section
112 and 114 webcasting licenses, § 380.21, by its
terms, expires at the end of each licensing period
(currently December 31, 2020). See 37 CFR
380.20(a). The most recent iteration of § 380.21,
which was adopted after comments in the current
rulemaking proceeding were filed, includes an
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As such, ACRN has a reporting waiver
under 37 CFR 380.23(c) and (g)(1),
which authorizes payment to the
Collective of a $100 proxy fee in lieu of
maintaining and delivering ROUs.
ACRN would like to continue to report
as a NEW indefinitely.11 In the
alternative, ACRN supports the proposal
to change 37 CFR 370.4(b)(2) so that
ACRN would qualify as a minimum fee
broadcaster.12 It views this option as
less desirable, however.
KBCU–FM, KBHU, KNHC, KSSU,
KWSC–FM, and KXUL all generally
concurred with the position of ACRN.
KUIW and Lasell College Radio, which
also support the proposal, state that they
would probably have to cease
broadcasting if the reporting provision
for NEWs were to expire and they could
not qualify as minimum fee
broadcasters.13
CBI supports continuing the reporting
requirements in § 380.23, which were
negotiated as part of a settlement with
SoundExchange, because, according to
CBI, those requirements are simpler to
follow and impose fewer obstacles than
the rules with which non-NEWS must
comply. CBI Comment at 5. CBI states
that it conducted a survey and
determined that fewer than 13% of nonFCC-licensed stations are currently able
to report actual total performance (ATP)
data. According to CBI, fewer than 18%
of those stations reported that they
would be able to find a means to comply
with full census ATP reporting should
the requirements in § 380.23 be allowed
to expire and the proposed regulations
in the Joint Petition not be adopted.14
additional requirement that the noncommercial
webcaster take 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. 37 CFR 380.21 (2015).
11 As part of the supporting regulations for the
webcasting licenses, the reporting waiver expires
every five years, unless it is renewed.
12 ACRN states that the proposed changes are
‘‘warranted only if the alternative to report under
380.23 were to not sunset [sic].’’ ACRN Comment
at 3, emphasis in original. Read in the context of
the ACRN letter as a whole, it appears that ACRN
meant that the proposed changes would be
warranted only if the alternative to report under
380.23 were to sunset.
13 KUIW Comment at 1–2. Lasell Comment at 1–
2. Each commenter recommends that the reporting
requirements applicable to NEWs be made
permanent. Such a recommendation is beyond the
scope of the proposal upon which the Judges sought
comment in the current proceeding. As such, the
Judges do not have adequate support in the record
to support adopting such a proposal.
14 Andrea Baker supports applying the
Petitioner’s preferred definition of ‘‘minimum fee
broadcaster’’ because, according to Ms. Baker, the
proposal is more likely to move users of sound
recordings away from reporting of sampled data.
The proposal would in fact allow more users to
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Neither CBI nor any other commenter
provided data on any non-licensed
entity that ceased operation due to the
ROU reporting requirement. That being
said, the great majority of commenters
that are subject to the ROU reporting
requirement appear to be paying the
$100 proxy fee in lieu of reporting (an
alternative that is now available through
2020). See Determination (final),
Determination of Royalty Rates and
Terms for Ephemeral Recording and
Webcasting Digital Performance of
Sound Recordings (Web–IV), Docket No.
14–CRB–0001–WR (2016–2020) (Mar. 2,
2016).
Not surprisingly, IBS also supports its
Joint Petition. IBS adds that it agrees
with SoundExchange’s position that
NEWs with fewer than 55,000 aggregate
tuning hours (ATH) per month should
be permitted to pay an annual $100
proxy fee in lieu of census reporting.
IBS also contends that NEWs with fewer
than 15,914 ATH monthly should pay a
$50 proxy fee and NEWS with fewer
than 6,365 ATH monthly should pay a
$20 proxy fee. IBS believes that each of
these categories should be exempt from
the $500 annual minimum fee. Reply
Comments of IBS at 1. Because IBS
made its suggestions in Reply
Comments, the Judges were unable to
include them in the Proposal, and
therefore have no basis upon which to
adopt them.
The National Association of
Broadcasters (NAB) and the Radio
Music License Committee (RMLC)
advocate an exemption from all
reporting requirements for broadcasters
that currently pay the minimum fee of
$500. They contend that many of these
entities are already exempt from
reporting requirements as long as they
pay the $100 annual proxy fee (i.e.,
small broadcasters that stream no more
than 27,777 aggregate tuning hours
(ATH) and noncommercial educational
webcasters that stream less than 55,000
annual ATH). Moreover, according to
NAB, most of these entities play
‘‘mainstream’’ music that larger
broadcasters play so the allocations of
royalties paid by these entities could be
made based on playlist data collected
from larger broadcasters. NAB/RMLC
Comment at 51–52.
According to National Public Radio,
Inc. (NPR), the current recordkeeping
and reporting system is the result of a
settlement agreement between
SoundExchange and the CPB. NPR
estimates that about 402 stations operate
choose to report sampled data. Through 2020,
however, to the extent they qualify to pay the proxy
fee in lieu of reporting, the users that would benefit
from the proposal are not reporting any sound
recording play data.
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Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / Rules and Regulations
under the agreement. NPR Comment at
7. NPR notes that it aggregates the
reports of each of these stations and
reports directly to SoundExchange on
behalf of all the stations. NPR states that
it currently operates under the
settlement agreement with
SoundExchange, and, as a result, it is
not subject to certain of the reporting
and recordkeeping requirements in the
regulations. NPR believes, however, that
the regulations should be flexible to
allow parties that are not parties to
agreements to be able to use the license
in a manner that is not overly
burdensome. NPR Comment at 1–3.
SCAD Atlanta Radio 15 is a NEW
under 37 CFR 380.21. It is a web-only,
student-run station and does not have
an FCC license so it cannot qualify as a
minimum fee broadcaster under 37 CFR
370.4(b)(3). As a NEW, SCAD Atlanta
pays the proxy fee in lieu of reporting,
as permitted under 37 CFR 380.23. It
would like to continue to report that
way and therefore requests that the
sunset provisions in the regulations be
removed. In the alternative, SCAD
Atlanta supports the proposed change to
37 CFR 370.4(b)(2), which would
qualify SCAD Atlanta as a minimum fee
broadcaster if the NEW designation
sunsets. SCAD Atlanta states that if it
lost the ability to report as a NEW and
was forced to report monthly census
data, the station would face
considerable hardship and expense.
SCAD Atlanta Comment at 2.
In its initial comment,
SoundExchange stated that the Joint
Petition is moot through 2015 (and now
presumably through 2020). According to
SoundExchange, pursuant to 37 CFR
380.23(g)(2), a NEW with usage at a
level covered by the minimum fee is
currently permitted to provide ROUs on
a sample basis as contemplated by
proposed § 370.4(b)(2) and is even
excused from reporting its ATH.
SoundExchange Comment at 3.
SoundExchange notes that such services
report play frequency in lieu of
reporting ATH or actual total
performances.
SoundExchange states that the vast
majority of NEWs are not even required
to provide sample ROUs.
SoundExchange states that, pursuant to
37 CFR 380.23(g)(1), NEWs with the
lowest intensity of usage may elect to
pay a proxy fee of $100 and forgo
providing ROUs altogether. According
15 SCAD Atlanta states that the station is
produced by students at the Atlanta location of the
Savannah College of Art and Design. The Judges
also received a substantially identical comment
from ‘‘SCAD Radio,’’ which states that the station
is produced by students at the Savannah location
of the Savannah College of Art and Design.
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to SoundExchange, for 2013, 97% of
NEWs elected this reporting waiver and
were not required to provide any ROUs.
As a result of the Web–IV
Determination, § 380.23(g)(1) and (2)
remain in effect through 2020, at which
point the Judges will determine rates
and terms for the next rate period
(2021–2025) (Web-V).
Nevertheless, SoundExchange does
not oppose the Petitioners’ proposed
definition of ‘‘Minimum Fee
Broadcaster’’ for § 370.4(b)(2).
SoundExchange highlights certain
technical errors in the proposal (i.e.,
SoundExchange opines that there
should be a comma following the phrase
‘‘officially sanctioned by’’ in
§ 370.4(b)(2)(ii) and the reference in
proposed § 370.4(b)(2)(iv) should be
Section 118(f) (rather than 118(g)).16
SoundExchange also recommends
changing the proposed term from
‘‘Minimum Fee Broadcaster’’ to
‘‘Eligible Minimum Fee Webcaster’’ (or
the like) to more accurately reflect the
fact that certain of the services covered
are not broadcasters. SoundExchange
Comment at n.2.17 According to
SoundExchange, adoption of this
proposal ‘‘seems like a reasonable
deviation from the important principle
of census reporting.’’ SoundExchange
Comment at 4.
SoundExchange does not support the
broader alternative proposal to include
internet-only noncommercial
webcasters that are not educational
webcasters (which are not currently
covered by § 380.23(g)(2)). For such
webcasters, if they are staffed by
professionals or use modern content
management technology capable of
readily generated ROUs on a census
basis, they should not be exempted from
census reporting just because they are
low-intensity noncommercial users.
SoundExchange does not believe that
the Petitioners have made the case for
a broader exemption. SoundExchange
Comment at 4.
While SoundExchange is not opposed
to the narrow proposed definition of
Minimum Fee Broadcaster in § 370.4(b)
(with the technical corrections
discussed above), SoundExchange notes
that ‘‘NEWs would like to include in the
notice and recordkeeping regulations
the outright reporting waiver and play
frequency reporting provisions of
16 The Judges adopted these technical corrections
in the final regulation.
17 The Judges believe that the term ‘‘eligible
minimum fee webcaster’’ more accurately reflects
the fact that some of the entities covered by the
definition would not satisfy the applicable
definition of broadcaster and therefore accept
SoundExchange’s suggestion in the adopted
regulation.
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31509
Section 380.23(g), but not the late fee for
ROUs provided in Section 380.23(e) or
the server log retention provisions of
Section 380.23(i).’’ SoundExchange
Reply Comments at 7. SoundExchange
does not believe that NEWs should be
given their requested ‘‘special
exemption’’ in these regulations
because, according to SoundExchange,
‘‘their concerns are addressed directly
in the terms to which CBI agreed.’’
SoundExchange Reply Comments at 8.
SoundExchange does not believe it is
fair for NEWs to pick and choose their
favorite provisions from § 380.23 that
were negotiated by CBI. SoundExchange
notes that the agreement to settle the
Web IV proceeding as to NEWs on a
basis that would generally extend the
relevant provisions of § 380.23 moots
the issues raised in the Joint Petition
through 2020. Anticipating the adoption
of such agreement, which the Judges
adopted during the Web IV proceeding,
SoundExchange found no reason for the
Judges to adopt the proposals in the
NPRM based on the Joint Petition.
SoundExchange speculates that under
such a scenario, the Judges could revisit
the question of reporting by NEWs
based on a fresh record in five years.
Otherwise, SoundExchange
recommends that the Judges either
adopt the equivalent of all the relevant
provisions of § 380.23 (i.e., the proposed
late fee for ROUs and proposed
recordkeeping provisions) or adopt only
the changes to the definition of
Minimum Fee Broadcaster proposed in
the NPRM. SoundExchange Reply
Comments at 9.
SoundExchange Settlement With CBI
In the context of the Web IV
proceeding, the Judges were presented
with two settlements that bear on the
reporting requirements at issue in this
rulemaking.18 In one settlement,
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 NEWs
over the internet, and related ephemeral
recordings. In the Federal Register
document adopting the
SoundExchange/CBI settlement, the
Judges noted:
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
18 See 80 FR 58201 (Sept. 28, 2015) (adopting
proposed settlement between SoundExchange and
CBI) and 80 FR 59588 (Oct. 2, 2015) (adopting
proposed settlement between SoundExchange and
NPR and the CPB).
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reporting. . . . 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).19
In adopting the SoundExchange/CBI
Settlement, the Judges noted the
relevance of the Settlement to the
current rulemaking proceeding:
asabaliauskas on DSK3SPTVN1PROD with RULES
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.20
In other words, although the
SoundExchange/CBI settlement
provided a means for qualifying NEWs
to pay a $100 proxy fee in lieu of census
reporting through December 31, 2020, it
does not, as the current proposal would,
provide a permanent means for entities
that meet the proposed definition of
noncommercial educational webcasters
to pay the proxy fee in lieu of census
reporting. In light of the overwhelming
support in favor of such a reporting
waiver and the lack of opposition, the
Judges find that adopting the proposed
alternative for a permanent exemption
from census reporting requirements is
beneficial and consistent with the
Copyright Act.
Given their adoption of the proposed
exemption, the Judges decline to adopt
a broader alternative proposed by
Petitioners. Notwithstanding the unique
stature of NEWs as noncommercial
entities with an educational mission,
the Judges do not believe extending the
exemption to other noncommercial
webcasters would be consistent with the
policy intended to ease reporting
obligations on NEWs. As discussed by
some of the commenters, NEWs are
often student-operated stations. The
students generally perform station
operations to supplement their
academic pursuits during a given
academic term. As a rule, with semester
and summer breaks, the stations lack
operational continuity.
Without a paid administrative staff
and adequate financial and
technological support, census reporting
would present a significant challenge
for those stations that could cause the
educational institution to discontinue
the stations to avoid the administrative
19 80
20 80
FR at 58201.
FR 58201, 58205 (Sept. 28, 2015).
VerDate Sep<11>2014
16:37 May 18, 2016
Jkt 238001
burdens. Neither the students, the
educational entity, nor the artists would
benefit from elimination of the campus
stations. The Judges agree with
SoundExchange, however, that
noncommercial noneducational
webcasters have not made the case that
they face the same challenges.
Therefore, the Judges decline to extend
the reporting requirement exemption to
noncommercial webcasters that do not
have the requisite affiliation with an
educational institution.
SoundExchange contends that in light
of the agreements SoundExchange, CPB,
CBI, and NPR reached during the Web
IV proceeding, which the Judges
adopted, the current rulemaking is
moot, at least through 2020. While the
Judges agree that many webcasters that
are eligible for either of the agreements
will choose to pay the proxy fee in lieu
of reporting, each such agreement has
conditions and limitations that would
not apply with respect to the proposal
the Judges adopt today. Moreover, by
adopting the proposal in the Petition as
a permanent rule, the Judges provide
certainty that, even if the current
agreements are not extended in
subsequent rate periods, eligible
noncommercial educational webcasters
will be able to avail themselves of the
reduced reporting requirements in
§ 370.4, regardless of whether they are
licensed with the FCC. Such certainty is
sufficient justification for adopting the
proposal.
Final Regulations
In consideration of the foregoing, the
Copyright Royalty Judges amend 37 CFR
part 370 as follows:
PART 370—NOTICE AND
RECORDKEEPING REQUIREMENTS
FOR STATUTORY LICENSES
1. The authority citation for part 370
continues to read as follows:
■
Authority: 17 U.S.C. 112(e)(4),
114(f)(4)(A).
2. Revise § 370.4(a) and (b) to read as
follows:
■
§ 370.4 Reports of use of sound
recordings under statutory license for
nonsubscription transmission services,
preexisting satellite digital audio radio
services, new subscription services and
business establishment services.
(a) General. This section prescribes
rules for the maintenance and delivery
of Reports of Use of sound recordings
under section 112(e) or section 114 of
title 17 of the United States Code, or
both, by nonsubscription transmission
services, preexisting satellite digital
audio radio services, new subscription
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services, and business establishment
services.
(b) Definitions. For purposes of this
section, the following definitions apply:
Aggregate Tuning Hours means the
total hours of programming that a
nonsubscription transmission service,
preexisting satellite digital audio radio
service, new subscription service or
business establishment service has
transmitted during the reporting period
identified in paragraph (d)(3) of this
section to all listeners within the United
States over the relevant channels or
stations, and from any archived
programs, that provide audio
programming consisting, in whole or in
part, of eligible nonsubscription service,
preexisting satellite digital audio radio
service, new subscription service or
business establishment service
transmissions, less the actual running
time of any sound recordings for which
the service has obtained direct licenses
apart from 17 U.S.C. 114(d)(2) or which
do not require a license under United
States copyright law. For example, if a
nonsubscription transmission service
transmitted one hour of programming to
10 simultaneous listeners, the
nonsubscription transmission service’s
Aggregate Tuning Hours would equal
10. If 3 minutes of that hour consisted
of transmission of a directly licensed
recording, the nonsubscription
transmission service’s Aggregate Tuning
Hours would equal 9 hours and 30
minutes. If one listener listened to the
transmission of a nonsubscription
transmission service for 10 hours (and
none of the recordings transmitted
during that time was directly licensed),
the nonsubscription transmission
service’s Aggregate Tuning Hours would
equal 10.
AM/FM Webcast means a
transmission made by an entity that
transmits an AM/FM broadcast signal
over a digital communications network
such as the Internet, regardless of
whether the transmission is made by the
broadcaster that originates the AM/FM
signal or by a third party, provided that
such transmission meets the applicable
requirements of the statutory license set
forth in 17 U.S.C. 114(d)(2).
Broadcaster means an entity 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;
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Federal Register / Vol. 81, No. 97 / Thursday, May 19, 2016 / Rules and Regulations
(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).
Eligible Minimum Fee Webcaster
means a nonsubscription transmission
service whose payments for eligible
transmissions do not exceed the annual
minimum fee established for licensees
relying upon the statutory licenses set
forth in 17 U.S.C. 112(e) and 114; and
either:
(i) Meets the definition of a
broadcaster; or
(ii) Is directly operated by, or
affiliated with and officially sanctioned
by, a domestically accredited primary or
secondary school, college, university or
other post-secondary degree-granting
educational institution; and
(A) The digital audio transmission
operations of which are, during the
course of the year, staffed substantially
by students enrolled in such institution;
and
(B) 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
(C) Is exempt from taxation under
section 501 of the Internal Revenue
Code, has applied for such exemption,
or is operated by a State or possession
or any governmental entity or
subordinate thereof, or by the United
States or District of Columbia, for
exclusively public purposes.
Minimum fee broadcaster means a
nonsubscription service that meets the
definition of a broadcaster and the
service’s payments for eligible
transmissions do not exceed the annual
minimum fee established for licensees
relying upon the statutory licenses set
forth in 17 U.S.C. 112 and 114.
Performance means each instance in
which any portion of a sound recording
is publicly performed to a Listener by
means of a digital audio transmission or
retransmission (e.g., the delivery of any
portion of a single track from a compact
disc to one Listener) but excluding the
following:
(i) A performance of a sound
recording that does not require a license
(e.g., the sound recording is not
copyrighted);
(ii) A performance of a sound
recording for which the service has
previously obtained a license from the
Copyright Owner of such sound
recording; and
(iii) An incidental performance that
both:
(A) Makes no more than incidental
use of sound recordings including, but
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16:37 May 18, 2016
Jkt 238001
not limited to, brief musical transitions
in and out of commercials or program
segments, brief performances during
news, talk and sports programming,
brief background performances during
disk jockey announcements, brief
performances during commercials of
sixty seconds or less in duration, or
brief performances during sporting or
other public events; and
(B) Other than ambient music that is
background at a public event, does not
contain an entire sound recording and
does not feature a particular sound
recording of more than thirty seconds
(as in the case of a sound recording used
as a theme song).
Play frequency means the number of
times a sound recording is publicly
performed by a Service during the
relevant period, without respect to the
number of listeners receiving the sound
recording. If a particular sound
recording is transmitted to listeners on
a particular channel or program only
once during the reporting period, then
the play frequency is one. If the sound
recording is transmitted 10 times during
the reporting period, then the play
frequency is 10.
*
*
*
*
*
Dated: May 10, 2016.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.
Approved by:
David S. Mao,
Acting Librarian of Congress.
[FR Doc. 2016–11746 Filed 5–18–16; 8:45 am]
BILLING CODE 1410–72–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2015–0353; FRL–9946–49–
Region 10]
Approval and Promulgation of
Implementation Plans; Alaska:
Updates to Incorporation by Reference
and Miscellaneous Revisions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving, and
incorporating by reference, State
Implementation Plan revisions
submitted by Alaska on May 12, 2015.
The revisions updated the incorporation
by reference of certain Federal
provisions, revised rules to reflect
changes to Federal permitting
requirements and the 2013
redesignation of the Mendenhall Valley
SUMMARY:
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31511
area of Juneau, and made minor
clarifications to Alaska air quality rules.
We note that the May 12, 2015
submission also included transportation
conformity and infrastructure
requirements. These requirements are
not being addressed in this action. We
approved the transportation conformity
revisions in a previous action on
September 8, 2015, and we intend to
address the infrastructure requirements
in a separate, future action.
DATES: This final rule is effective on
June 20, 2016.
ADDRESSES: The EPA has established a
docket for this action under Docket
Identification No. EPA–R10–OAR–
2015–0353. All documents in the docket
are listed on the https://
www.regulations.gov Web site. Although
listed in the index, some information
may not be publicly available, i.e.,
Confidential Business Information or
other information the disclosure of
which is restricted by statute. Certain
other material, such as copyrighted
material, is not placed on the Internet
and will be publicly available only in
hard copy form. Publicly available
docket materials are available either
electronically through https://
www.regulations.gov or in hard copy at
EPA Region 10, Office of Air, Waste,
and Toxics, AWT–150, 1200 Sixth
Avenue, Seattle, Washington 98101. The
EPA requests that you contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall at (206) 553–6357,
hall.kristin@epa.gov, or by using the
above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is
intended to refer to the EPA.
Table of Contents
I. Background
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. Background
On May 12, 2015, Alaska submitted
revisions to the Alaska SIP. On March
4, 2016, the EPA proposed to approve
specific revisions in the submission (81
FR 11497). Please see our proposed
rulemaking for further explanation and
the basis for our finding. The public
comment period for the proposal ended
on April 4, 2016. We received one
comment, a letter from the Alaska
E:\FR\FM\19MYR1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)]
[Rules and Regulations]
[Pages 31506-31511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11746]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 370
[Docket No. RM 2008-7]
Notice and Recordkeeping for Use of Sound Recordings Under
Statutory License
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Copyright Royalty Judges are amending a Copyright Royalty
Board rule regarding reporting requirements for certain Educational
Stations that pay no more than the minimum fee for their use of sound
recordings under the applicable statutory licenses.
DATES: Effective May 19, 2016.
[[Page 31507]]
FOR FURTHER INFORMATION CONTACT: Kimberly Whittle at (202) 707-7658 or
at crb@loc.gov.
SUPPLEMENTARY INFORMATION:
Introduction
On May 2, 2014, the Copyright Royalty Judges (Judges) published a
document in the Federal Register seeking comments on two unrelated
rulemaking proposals (Proposal).\1\ For the proposal that is the
subject of this document the Judges requested comments on a proposed
rule amendment to relax certain reporting requirements for educational
stations that pay no more than the minimum fee for the use of sound
recordings under the statutory licenses in Sections 112(e) and 114 of
the Copyright Act. The Judges received over twenty comments on the
proposal, most of which supported it. For the reasons discussed below,
the Judges adopt the proposed amendment.
---------------------------------------------------------------------------
\1\ See 79 FR 25038. The Judges continue to analyze the second
rulemaking proposal, submitted by SoundExchange, Inc., and the
comments responsive thereto.
---------------------------------------------------------------------------
Background
On October 28, 2009, College Broadcasters, Inc. (CBI), American
Council on Education (ACE), and Intercollegiate Broadcasting System,
Inc. (IBS) (collectively, ``Petitioners'') filed a motion with the
Judges seeking clarification of an issue purportedly raised by final
regulations that the Judges adopted regarding reporting requirements
for entities that digitally transmit sound recordings pursuant to
section 114(d)(2) of the Copyright Act or that make ephemeral
phonorecords of sound recordings pursuant to section 112(e) of that
Act.\2\ Joint Petition for Clarification, Notice and Recordkeeping for
Use of Sound Recordings Under the Statutory License, Docket No. RM
2008-7 (Oct. 28, 2009) (Joint Petition). The regulations at issue are
found in 37 CFR 370.4, and they prescribe rules for the maintenance and
delivery of reports of use (ROUs).\3\
---------------------------------------------------------------------------
\2\ The release adopting the regulations appeared in 74 FR 52418
(Oct. 13, 2009). The applicable rules are codified in 37 CFR part
370.
\3\ An ROU is a report required to be provided by an entity that
transmits sound recordings pursuant to the statutory licenses in
section 114(d)(2) or that makes ephemeral recordings of sound
recordings pursuant to section 112(e) of the Copyright Act. 37 CFR
370.1(i). ROUs must be delivered to the Collective designated by the
Judges (currently SoundExchange, Inc.). See, e.g., 37 CFR 370.4(c).
ROUs must include the name of the entity making the transmissions, a
category transmission code, the featured artist of the sound
recording, and the sound recording title, among other information.
The current proceeding is focused only on the reporting requirements
of ``nonsubscription transmission services,'' which are entities
that provide audio programming consisting of performances of sound
recordings. See 37 CFR 370.1(e). Such services are often referred to
as webcasters.
---------------------------------------------------------------------------
For nonsubscription transmission services, except those qualifying
as minimum fee broadcasters, the ROU must include the actual total
performances of each sound recording during the reporting period. 37
CFR 370.4(d)(2)(vi). Minimum fee broadcasters, however, may report, as
an alternative to actual total performances, the aggregate tuning
hours, the channel or program name, and play frequency. 37 CFR
370.4(d)(2)(vii).
Whereas most services must prepare an ROU for each calendar month
of the year, a minimum fee broadcaster need only prepare an ROU for a
two-week period for each calendar quarter of the year. 37 CFR
370.4(d)(3).\4\ However, the regulations exempt minimum-fee
broadcasters from the census reporting requirement (i.e., the
requirement to report actual total performances) only if their stations
are licensed by the Federal Communications Commission (FCC) because the
FCC licensing is part of the definition of ``broadcaster.'' Petitioners
asked that the Judges ``clarify'' that the regulations also exempt
minimum-fee broadcasters that are not FCC-licensed broadcasters if they
are ``educational'' in nature. Joint Petition at 2-4.
---------------------------------------------------------------------------
\4\ The weeks need not be consecutive but both must be
completely within the calendar quarter. 37 CFR 370.4(d)(3)(ii).
---------------------------------------------------------------------------
After reviewing the Joint Petition, the Judges concluded that
Petitioners were not seeking a clarification of the final regulations
but rather were seeking a substantive change. In other words, the
``clarification'' that the Petitioners sought actually amounted to a
request to amend the census reporting requirement regulations to exempt
non-FCC-licensed minimum-fee educational webcasters. The Judges thus
determined that Petitioners' petition for clarification should be
treated as a petition for rulemaking and made the Joint Petition
subject to notice and public comment.\5\
---------------------------------------------------------------------------
\5\ 79 FR at 25039.
---------------------------------------------------------------------------
On May 2, 2014, the Judges published the Proposal in the Federal
Register seeking comments on the Petitioners' proposal.\6\ The Judges
requested comments on not only the Petitioners' principal proposal,
which would exempt non-FCC-licensed minimum fee educational webcasters
from the census reporting requirement, but also on a broader
alternative proposal that Petitioners proffered that would expand the
census reporting exemption to entities that are noncommercial
webcasters but that would not be considered educational entities under
the Petitioners' proposal.
---------------------------------------------------------------------------
\6\ 79 FR 25038. In the interest of administrative efficiency,
the Judges also sought comments in the same notice on an unrelated
petition for rulemaking that SoundExchange submitted.
SoundExchange's proposal, which requested a broad range of changes
to CRB rules, is still pending. The current release addresses only
the census reporting requirement proposal submitted by the
Petitioners.
---------------------------------------------------------------------------
In response to the Proposal, the Judges received approximately
twenty-four comments.\7\ No commenter opposed the Petitioners' proposal
for educational webcasters. SoundExchange did, however, oppose
Petitioners' broader alternative proposal to exclude from the census
reporting requirements noneducational noncommercial webcasters. As
discussed below, the Judges are adopting the Petitioners' proposed
exemption for non-FCC-licensed educational broadcasters, but are not
adopting the broader noncommercial webcaster exemption.
---------------------------------------------------------------------------
\7\ The Judges received comments that addressed in some fashion
the Petitioners' proposal from the following: All-Campus Radio
Network (ACRN), Andrea Baker, CBI, IBS, KBCU-FM, KBHU-FM, KNHC,
KSSU, KUIW, KWSC-FM, KXUL, Lasell College Radio, the National
Association of Broadcasters and Radio Music License Committee (NAB/
RMLC), NPR, SCAD Atlanta Radio, SoundExchange, WBSU, WGSU-FM, WJCU,
WKNC-FM, WRFL-FM, WSDP-FM, WSLX, and WSOU-FM (Seton Hall
University).
---------------------------------------------------------------------------
Petitioners' Rule Proposal
Petitioners propose that the definition of a ``minimum fee
broadcaster'' in 37 CFR 370.4(b)(3) be amended to include a
nonsubscription service that: (1) Is directly operated by, or
affiliated with and officially sanctioned by a domestically accredited
primary or secondary school, college, university, or other post-
secondary degree-granting educational institution; and (2) the digital
audio transmission operations of which are, during the course of the
year, staffed substantially by students enrolled in such institution;
and (3) is not a ``public broadcasting entity'' (as defined in 17
U.S.C. 118(g)) qualified to receive funding from the Corporation for
Public Broadcasting (CPB) pursuant to the criteria set forth in 47
U.S.C. 396; and (4) is exempt from taxation under section 501 of the
Internal Revenue Code, has applied for such exemption, or is operated
by a State or possession or any governmental entity or subordinate
thereof, or by the United States or District of Columbia, for
exclusively public purposes. Joint Petition at 2 n.1. While the
proposed language upon which the Judges requested comments did not
incorporate CBI's singular reference to ``Educational Stations,'' the
proposal retained the substance of the Petitioners' proposal.
In the Proposal soliciting comment on the proposal, in addition to
seeking
[[Page 31508]]
comments on the proposal generally, the Judges also sought comments on
certain specific issues. In particular, the Judges sought comment on
how unlicensed minimum fee ``Educational Stations,'' as that term would
be defined in Petitioners' proposal, have been reporting under the
current regulations. The Judges also asked whether any such entities
have ceased operations, as predicted by Petitioners and if so, how
many. If none ceased operations, the Judges asked whether the need
still exists for Petitioners' proposed amendment. The Judges also asked
whether Petitioners have, in the first instance, made their case
persuasively that the proposed amendment is warranted. If the change is
warranted, the Judges asked whether they should adopt (1) Petitioners'
preferred definition, which applies only to Educational Stations, or
(2) the broader, alternate definition.\8\
---------------------------------------------------------------------------
\8\ 79 FR at 25040.
---------------------------------------------------------------------------
Comment Summary
Of the 24 comments the Judges reviewed, none opposed the specific
language included in the Proposal, although, as discussed below,
SoundExchange opposed adopting a more expansive exemption from the
census reporting requirements for noncommercial webcasters that are not
affiliated with an educational organization.
All-Campus Radio Network's (ACRN) comment is illustrative of those
that supported the proposal. Because it has no FCC license, ACRN cannot
qualify as a ``minimum fee broadcaster'' under 37 CFR 370.4(b)(3).\9\
ACRN is, however, a Noncommercial Educational Webcaster (NEW) as
defined in 37 CFR 380.21.\10\ As such, ACRN has a reporting waiver
under 37 CFR 380.23(c) and (g)(1), which authorizes payment to the
Collective of a $100 proxy fee in lieu of maintaining and delivering
ROUs. ACRN would like to continue to report as a NEW indefinitely.\11\
In the alternative, ACRN supports the proposal to change 37 CFR
370.4(b)(2) so that ACRN would qualify as a minimum fee
broadcaster.\12\ It views this option as less desirable, however.
---------------------------------------------------------------------------
\9\ Section 370.4(b)(3) states that a minimum fee broadcaster is
a nonsubscription service that meets the definition of a broadcaster
pursuant to Sec. 380.2(b) and the service's payments for eligible
transmissions do not exceed the annual minimum fee established for
licensees relying upon the statutory licenses set forth in 17 U.S.C.
112 and 114. At the time of the motion for clarification 37 CFR
380.2 defined a broadcaster as a type of Licensee that owns and
operates a terrestrial AM or FM radio station that is licensed by
the Federal Communications Commission.
\10\ Under Sec. 380.21, a NEW is a noncommercial webcaster (as
defined in 17 U.S.C. 114(f)(5)(E)(i)) that has obtained a compulsory
license, complies with all applicable provisions of the license, is
operated by or affiliated with and sanctioned by a primary or
secondary school, college or university or other degree-granting
educational institution, and is not a public broadcasting entity
qualified to receive funding from the CPB. 17 CFR 380.21. As part of
the supporting regulations for the Section 112 and 114 webcasting
licenses, Sec. 380.21, by its terms, expires at the end of each
licensing period (currently December 31, 2020). See 37 CFR
380.20(a). The most recent iteration of Sec. 380.21, which was
adopted after comments in the current rulemaking proceeding were
filed, includes an additional requirement that the noncommercial
webcaster take 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. 37 CFR 380.21
(2015).
\11\ As part of the supporting regulations for the webcasting
licenses, the reporting waiver expires every five years, unless it
is renewed.
\12\ ACRN states that the proposed changes are ``warranted only
if the alternative to report under 380.23 were to not sunset
[sic].'' ACRN Comment at 3, emphasis in original. Read in the
context of the ACRN letter as a whole, it appears that ACRN meant
that the proposed changes would be warranted only if the alternative
to report under 380.23 were to sunset.
---------------------------------------------------------------------------
KBCU-FM, KBHU, KNHC, KSSU, KWSC-FM, and KXUL all generally
concurred with the position of ACRN. KUIW and Lasell College Radio,
which also support the proposal, state that they would probably have to
cease broadcasting if the reporting provision for NEWs were to expire
and they could not qualify as minimum fee broadcasters.\13\
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\13\ KUIW Comment at 1-2. Lasell Comment at 1-2. Each commenter
recommends that the reporting requirements applicable to NEWs be
made permanent. Such a recommendation is beyond the scope of the
proposal upon which the Judges sought comment in the current
proceeding. As such, the Judges do not have adequate support in the
record to support adopting such a proposal.
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CBI supports continuing the reporting requirements in Sec. 380.23,
which were negotiated as part of a settlement with SoundExchange,
because, according to CBI, those requirements are simpler to follow and
impose fewer obstacles than the rules with which non-NEWS must comply.
CBI Comment at 5. CBI states that it conducted a survey and determined
that fewer than 13% of non-FCC-licensed stations are currently able to
report actual total performance (ATP) data. According to CBI, fewer
than 18% of those stations reported that they would be able to find a
means to comply with full census ATP reporting should the requirements
in Sec. 380.23 be allowed to expire and the proposed regulations in
the Joint Petition not be adopted.\14\ Neither CBI nor any other
commenter provided data on any non-licensed entity that ceased
operation due to the ROU reporting requirement. That being said, the
great majority of commenters that are subject to the ROU reporting
requirement appear to be paying the $100 proxy fee in lieu of reporting
(an alternative that is now available through 2020). See Determination
(final), Determination of Royalty Rates and Terms for Ephemeral
Recording and Webcasting Digital Performance of Sound Recordings (Web-
IV), Docket No. 14-CRB-0001-WR (2016-2020) (Mar. 2, 2016).
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\14\ Andrea Baker supports applying the Petitioner's preferred
definition of ``minimum fee broadcaster'' because, according to Ms.
Baker, the proposal is more likely to move users of sound recordings
away from reporting of sampled data. The proposal would in fact
allow more users to choose to report sampled data. Through 2020,
however, to the extent they qualify to pay the proxy fee in lieu of
reporting, the users that would benefit from the proposal are not
reporting any sound recording play data.
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Not surprisingly, IBS also supports its Joint Petition. IBS adds
that it agrees with SoundExchange's position that NEWs with fewer than
55,000 aggregate tuning hours (ATH) per month should be permitted to
pay an annual $100 proxy fee in lieu of census reporting. IBS also
contends that NEWs with fewer than 15,914 ATH monthly should pay a $50
proxy fee and NEWS with fewer than 6,365 ATH monthly should pay a $20
proxy fee. IBS believes that each of these categories should be exempt
from the $500 annual minimum fee. Reply Comments of IBS at 1. Because
IBS made its suggestions in Reply Comments, the Judges were unable to
include them in the Proposal, and therefore have no basis upon which to
adopt them.
The National Association of Broadcasters (NAB) and the Radio Music
License Committee (RMLC) advocate an exemption from all reporting
requirements for broadcasters that currently pay the minimum fee of
$500. They contend that many of these entities are already exempt from
reporting requirements as long as they pay the $100 annual proxy fee
(i.e., small broadcasters that stream no more than 27,777 aggregate
tuning hours (ATH) and noncommercial educational webcasters that stream
less than 55,000 annual ATH). Moreover, according to NAB, most of these
entities play ``mainstream'' music that larger broadcasters play so the
allocations of royalties paid by these entities could be made based on
playlist data collected from larger broadcasters. NAB/RMLC Comment at
51-52.
According to National Public Radio, Inc. (NPR), the current
recordkeeping and reporting system is the result of a settlement
agreement between SoundExchange and the CPB. NPR estimates that about
402 stations operate
[[Page 31509]]
under the agreement. NPR Comment at 7. NPR notes that it aggregates the
reports of each of these stations and reports directly to SoundExchange
on behalf of all the stations. NPR states that it currently operates
under the settlement agreement with SoundExchange, and, as a result, it
is not subject to certain of the reporting and recordkeeping
requirements in the regulations. NPR believes, however, that the
regulations should be flexible to allow parties that are not parties to
agreements to be able to use the license in a manner that is not overly
burdensome. NPR Comment at 1-3.
SCAD Atlanta Radio \15\ is a NEW under 37 CFR 380.21. It is a web-
only, student-run station and does not have an FCC license so it cannot
qualify as a minimum fee broadcaster under 37 CFR 370.4(b)(3). As a
NEW, SCAD Atlanta pays the proxy fee in lieu of reporting, as permitted
under 37 CFR 380.23. It would like to continue to report that way and
therefore requests that the sunset provisions in the regulations be
removed. In the alternative, SCAD Atlanta supports the proposed change
to 37 CFR 370.4(b)(2), which would qualify SCAD Atlanta as a minimum
fee broadcaster if the NEW designation sunsets. SCAD Atlanta states
that if it lost the ability to report as a NEW and was forced to report
monthly census data, the station would face considerable hardship and
expense. SCAD Atlanta Comment at 2.
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\15\ SCAD Atlanta states that the station is produced by
students at the Atlanta location of the Savannah College of Art and
Design. The Judges also received a substantially identical comment
from ``SCAD Radio,'' which states that the station is produced by
students at the Savannah location of the Savannah College of Art and
Design.
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In its initial comment, SoundExchange stated that the Joint
Petition is moot through 2015 (and now presumably through 2020).
According to SoundExchange, pursuant to 37 CFR 380.23(g)(2), a NEW with
usage at a level covered by the minimum fee is currently permitted to
provide ROUs on a sample basis as contemplated by proposed Sec.
370.4(b)(2) and is even excused from reporting its ATH. SoundExchange
Comment at 3. SoundExchange notes that such services report play
frequency in lieu of reporting ATH or actual total performances.
SoundExchange states that the vast majority of NEWs are not even
required to provide sample ROUs. SoundExchange states that, pursuant to
37 CFR 380.23(g)(1), NEWs with the lowest intensity of usage may elect
to pay a proxy fee of $100 and forgo providing ROUs altogether.
According to SoundExchange, for 2013, 97% of NEWs elected this
reporting waiver and were not required to provide any ROUs. As a result
of the Web-IV Determination, Sec. 380.23(g)(1) and (2) remain in
effect through 2020, at which point the Judges will determine rates and
terms for the next rate period (2021-2025) (Web-V).
Nevertheless, SoundExchange does not oppose the Petitioners'
proposed definition of ``Minimum Fee Broadcaster'' for Sec.
370.4(b)(2). SoundExchange highlights certain technical errors in the
proposal (i.e., SoundExchange opines that there should be a comma
following the phrase ``officially sanctioned by'' in Sec.
370.4(b)(2)(ii) and the reference in proposed Sec. 370.4(b)(2)(iv)
should be Section 118(f) (rather than 118(g)).\16\ SoundExchange also
recommends changing the proposed term from ``Minimum Fee Broadcaster''
to ``Eligible Minimum Fee Webcaster'' (or the like) to more accurately
reflect the fact that certain of the services covered are not
broadcasters. SoundExchange Comment at n.2.\17\ According to
SoundExchange, adoption of this proposal ``seems like a reasonable
deviation from the important principle of census reporting.''
SoundExchange Comment at 4.
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\16\ The Judges adopted these technical corrections in the final
regulation.
\17\ The Judges believe that the term ``eligible minimum fee
webcaster'' more accurately reflects the fact that some of the
entities covered by the definition would not satisfy the applicable
definition of broadcaster and therefore accept SoundExchange's
suggestion in the adopted regulation.
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SoundExchange does not support the broader alternative proposal to
include internet-only noncommercial webcasters that are not educational
webcasters (which are not currently covered by Sec. 380.23(g)(2)). For
such webcasters, if they are staffed by professionals or use modern
content management technology capable of readily generated ROUs on a
census basis, they should not be exempted from census reporting just
because they are low-intensity noncommercial users. SoundExchange does
not believe that the Petitioners have made the case for a broader
exemption. SoundExchange Comment at 4.
While SoundExchange is not opposed to the narrow proposed
definition of Minimum Fee Broadcaster in Sec. 370.4(b) (with the
technical corrections discussed above), SoundExchange notes that ``NEWs
would like to include in the notice and recordkeeping regulations the
outright reporting waiver and play frequency reporting provisions of
Section 380.23(g), but not the late fee for ROUs provided in Section
380.23(e) or the server log retention provisions of Section
380.23(i).'' SoundExchange Reply Comments at 7. SoundExchange does not
believe that NEWs should be given their requested ``special exemption''
in these regulations because, according to SoundExchange, ``their
concerns are addressed directly in the terms to which CBI agreed.''
SoundExchange Reply Comments at 8.
SoundExchange does not believe it is fair for NEWs to pick and
choose their favorite provisions from Sec. 380.23 that were negotiated
by CBI. SoundExchange notes that the agreement to settle the Web IV
proceeding as to NEWs on a basis that would generally extend the
relevant provisions of Sec. 380.23 moots the issues raised in the
Joint Petition through 2020. Anticipating the adoption of such
agreement, which the Judges adopted during the Web IV proceeding,
SoundExchange found no reason for the Judges to adopt the proposals in
the NPRM based on the Joint Petition. SoundExchange speculates that
under such a scenario, the Judges could revisit the question of
reporting by NEWs based on a fresh record in five years. Otherwise,
SoundExchange recommends that the Judges either adopt the equivalent of
all the relevant provisions of Sec. 380.23 (i.e., the proposed late
fee for ROUs and proposed recordkeeping provisions) or adopt only the
changes to the definition of Minimum Fee Broadcaster proposed in the
NPRM. SoundExchange Reply Comments at 9.
SoundExchange Settlement With CBI
In the context of the Web IV proceeding, the Judges were presented
with two settlements that bear on the reporting requirements at issue
in this rulemaking.\18\ In one settlement, 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 NEWs over the
internet, and related ephemeral recordings. In the Federal Register
document adopting the SoundExchange/CBI settlement, the Judges noted:
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\18\ See 80 FR 58201 (Sept. 28, 2015) (adopting proposed
settlement between SoundExchange and CBI) and 80 FR 59588 (Oct. 2,
2015) (adopting proposed settlement between SoundExchange and NPR
and the CPB).
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
[[Page 31510]]
reporting. . . . 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).\19\
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\19\ 80 FR at 58201.
In adopting the SoundExchange/CBI Settlement, the Judges noted the
---------------------------------------------------------------------------
relevance of the Settlement to the current rulemaking proceeding:
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.\20\
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\20\ 80 FR 58201, 58205 (Sept. 28, 2015).
In other words, although the SoundExchange/CBI settlement provided
a means for qualifying NEWs to pay a $100 proxy fee in lieu of census
reporting through December 31, 2020, it does not, as the current
proposal would, provide a permanent means for entities that meet the
proposed definition of noncommercial educational webcasters to pay the
proxy fee in lieu of census reporting. In light of the overwhelming
support in favor of such a reporting waiver and the lack of opposition,
the Judges find that adopting the proposed alternative for a permanent
exemption from census reporting requirements is beneficial and
consistent with the Copyright Act.
Given their adoption of the proposed exemption, the Judges decline
to adopt a broader alternative proposed by Petitioners. Notwithstanding
the unique stature of NEWs as noncommercial entities with an
educational mission, the Judges do not believe extending the exemption
to other noncommercial webcasters would be consistent with the policy
intended to ease reporting obligations on NEWs. As discussed by some of
the commenters, NEWs are often student-operated stations. The students
generally perform station operations to supplement their academic
pursuits during a given academic term. As a rule, with semester and
summer breaks, the stations lack operational continuity.
Without a paid administrative staff and adequate financial and
technological support, census reporting would present a significant
challenge for those stations that could cause the educational
institution to discontinue the stations to avoid the administrative
burdens. Neither the students, the educational entity, nor the artists
would benefit from elimination of the campus stations. The Judges agree
with SoundExchange, however, that noncommercial noneducational
webcasters have not made the case that they face the same challenges.
Therefore, the Judges decline to extend the reporting requirement
exemption to noncommercial webcasters that do not have the requisite
affiliation with an educational institution.
SoundExchange contends that in light of the agreements
SoundExchange, CPB, CBI, and NPR reached during the Web IV proceeding,
which the Judges adopted, the current rulemaking is moot, at least
through 2020. While the Judges agree that many webcasters that are
eligible for either of the agreements will choose to pay the proxy fee
in lieu of reporting, each such agreement has conditions and
limitations that would not apply with respect to the proposal the
Judges adopt today. Moreover, by adopting the proposal in the Petition
as a permanent rule, the Judges provide certainty that, even if the
current agreements are not extended in subsequent rate periods,
eligible noncommercial educational webcasters will be able to avail
themselves of the reduced reporting requirements in Sec. 370.4,
regardless of whether they are licensed with the FCC. Such certainty is
sufficient justification for adopting the proposal.
Final Regulations
In consideration of the foregoing, the Copyright Royalty Judges
amend 37 CFR part 370 as follows:
PART 370--NOTICE AND RECORDKEEPING REQUIREMENTS FOR STATUTORY
LICENSES
0
1. The authority citation for part 370 continues to read as follows:
Authority: 17 U.S.C. 112(e)(4), 114(f)(4)(A).
0
2. Revise Sec. 370.4(a) and (b) to read as follows:
Sec. 370.4 Reports of use of sound recordings under statutory license
for nonsubscription transmission services, preexisting satellite
digital audio radio services, new subscription services and business
establishment services.
(a) General. This section prescribes rules for the maintenance and
delivery of Reports of Use of sound recordings under section 112(e) or
section 114 of title 17 of the United States Code, or both, by
nonsubscription transmission services, preexisting satellite digital
audio radio services, new subscription services, and business
establishment services.
(b) Definitions. For purposes of this section, the following
definitions apply:
Aggregate Tuning Hours means the total hours of programming that a
nonsubscription transmission service, preexisting satellite digital
audio radio service, new subscription service or business establishment
service has transmitted during the reporting period identified in
paragraph (d)(3) of this section to all listeners within the United
States over the relevant channels or stations, and from any archived
programs, that provide audio programming consisting, in whole or in
part, of eligible nonsubscription service, preexisting satellite
digital audio radio service, new subscription service or business
establishment service transmissions, less the actual running time of
any sound recordings for which the service has obtained direct licenses
apart from 17 U.S.C. 114(d)(2) or which do not require a license under
United States copyright law. For example, if a nonsubscription
transmission service transmitted one hour of programming to 10
simultaneous listeners, the nonsubscription transmission service's
Aggregate Tuning Hours would equal 10. If 3 minutes of that hour
consisted of transmission of a directly licensed recording, the
nonsubscription transmission service's Aggregate Tuning Hours would
equal 9 hours and 30 minutes. If one listener listened to the
transmission of a nonsubscription transmission service for 10 hours
(and none of the recordings transmitted during that time was directly
licensed), the nonsubscription transmission service's Aggregate Tuning
Hours would equal 10.
AM/FM Webcast means a transmission made by an entity that transmits
an AM/FM broadcast signal over a digital communications network such as
the Internet, regardless of whether the transmission is made by the
broadcaster that originates the AM/FM signal or by a third party,
provided that such transmission meets the applicable requirements of
the statutory license set forth in 17 U.S.C. 114(d)(2).
Broadcaster means an entity 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;
[[Page 31511]]
(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).
Eligible Minimum Fee Webcaster means a nonsubscription transmission
service whose payments for eligible transmissions do not exceed the
annual minimum fee established for licensees relying upon the statutory
licenses set forth in 17 U.S.C. 112(e) and 114; and either:
(i) Meets the definition of a broadcaster; or
(ii) Is directly operated by, or affiliated with and officially
sanctioned by, a domestically accredited primary or secondary school,
college, university or other post-secondary degree-granting educational
institution; and
(A) The digital audio transmission operations of which are, during
the course of the year, staffed substantially by students enrolled in
such institution; and
(B) 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
(C) Is exempt from taxation under section 501 of the Internal
Revenue Code, has applied for such exemption, or is operated by a State
or possession or any governmental entity or subordinate thereof, or by
the United States or District of Columbia, for exclusively public
purposes.
Minimum fee broadcaster means a nonsubscription service that meets
the definition of a broadcaster and the service's payments for eligible
transmissions do not exceed the annual minimum fee established for
licensees relying upon the statutory licenses set forth in 17 U.S.C.
112 and 114.
Performance means each instance in which any portion of a sound
recording is publicly performed to a Listener by means of a digital
audio transmission or retransmission (e.g., the delivery of any portion
of a single track from a compact disc to one Listener) but excluding
the following:
(i) A performance of a sound recording that does not require a
license (e.g., the sound recording is not copyrighted);
(ii) A performance of a sound recording for which the service has
previously obtained a license from the Copyright Owner of such sound
recording; and
(iii) An incidental performance that both:
(A) Makes no more than incidental use of sound recordings
including, but not limited to, brief musical transitions in and out of
commercials or program segments, brief performances during news, talk
and sports programming, brief background performances during disk
jockey announcements, brief performances during commercials of sixty
seconds or less in duration, or brief performances during sporting or
other public events; and
(B) Other than ambient music that is background at a public event,
does not contain an entire sound recording and does not feature a
particular sound recording of more than thirty seconds (as in the case
of a sound recording used as a theme song).
Play frequency means the number of times a sound recording is
publicly performed by a Service during the relevant period, without
respect to the number of listeners receiving the sound recording. If a
particular sound recording is transmitted to listeners on a particular
channel or program only once during the reporting period, then the play
frequency is one. If the sound recording is transmitted 10 times during
the reporting period, then the play frequency is 10.
* * * * *
Dated: May 10, 2016.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.
Approved by:
David S. Mao,
Acting Librarian of Congress.
[FR Doc. 2016-11746 Filed 5-18-16; 8:45 am]
BILLING CODE 1410-72-P
