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CRB Rejects Rehearing Requests

CRB Denies Rehearing – The Copyright Royalty Board (CRB) rejected the various requests for a rehearing concerning the webcasting rates and terms for 2006-2010 for non-interactive services.  CBI, DiMA, IBS (joint response with WHRB), NPR, Radio Broadcasters, Small Commercial Webcasters, and SoundExchange filed motions in this portion of the proceeding. The complete decision is available here.

From the Order…

On March 2,2007, the Copyright Royalty Judges issued a Determination of Ratesand Terms in this matter (“Initial Determination”). Pursuant to 17 U.S.C. 803(c)(2) and 37 C.F.R. Part 353, the parties in the proceeding filed various motions for rehearing, reconsideration or clarification.’ On March 20,2007, the Judges requested that the parties respond to the motions that had been filed to determine the positions of each party on each of the issues raised in these motions and file written arguments to support those positions. Order on Motions for Rehearing. The parties filed various responses per our request. Having reviewed all motions, responses to those motions, and written arguments, the Judges now deny all such motions. Nevertheless, as discussed below, the Judges have determined that certain areas of the Initial Determination warrant clarification.

Additionally, certain parties request relief from the recordkeeping and reporting

requirements established in the Initial Determination (see, e.g., Joint Motion of IBS and WHRB (FM) for Partial Reconsideration, and CBI’s Memorandum in Support of Motion for Rehearing). These requests are not germane to this proceeding and will be addressed in a future proceeding. See Initial Determination at 98.

Parties to the proceeding also asked the CRB to place a stay (hold) on implementing the new rates until all legal appeals have been exhausted. Citing statute, the CRB denied those motions.

Other parties request that the Judges stay implementation of certain of the rates

and terms established in the Initial Determination until all administrative appeals and judicial review are complete. … Section 803(c)(2)(E)(ii) of the Copyright Act states that “[tlhe pendency of a motion for a rehearing under this paragraph shall not relieve persons obligated to make royalty payments who would be affected by the determination on that motion from providing the statements of account and any reports of use, to the extent required, and paying the royalties required under the relevant determination or regulations.” 17 U.S.C. 803(c)(2)(E)(ii). Finally, Section 803(c)(2)(E)(iii) of the Copyright Act states that “[n]otwithstanding clause (ii), whenever royalties described in clause (ii) are paid to a person other than the Copyright Office, the entity designated by the [Judges] to which such royalties are paid by the copyright user.. .shall, within 60 days after the motion for rehearing is resolved or, if the motion is granted, within 60 days after the rehearing is concluded, return any excess amounts previously paid to the extent necessary to comply with the final determination of royalty rates by the [Judges]. Any underpayment of royalties resulting from a rehearing shall be paid within the same period.” 17 U.S.C. 803(c)(2)(E)(iii). As these sections of the Copyright Act indicate, Congress, not the Judges, determined the effective dates for the royalty rates and terms the Judges established under Copyright Act Sections 1 14 and 1 12. Moreover, Congress determined that these rates would go into effect, notwithstanding any pending motions for rehearing. Finally, Congress set forth the remedy that would apply should those rates later be determined to result in an overpayment or underpayment of royalties. The provisions of these sections are clear and we will follow the statute. As a result, the motions for a stay are DENIED.

Some parties to the proceeding asked whether Aggregate Tuning Hours (ATH) could be used to determine rates. In short the CRB said no.  It did, however, establish a transition period through 2007.

The following ATH usage rate calculation options will be available

for the transition period of 2006 and 2007:


                            Other                       Simulcast                Non-Music

                       Programming           Programming          Programming


Fees             $0.01 17 per ATH       $0.0088 per ATH   $0.0008 per ATH

2006            $0.0123 per ATH       $0.0092 per ATH    $0.001 1 per ATH

2007            $0.0169 per ATH       $0.0127 per ATH     $0.0014 per ATH

where “Non-Music Programming” is defined as Broadcaster programming reasonably classified as news, talk, sports or business programming; “Broadcast Simulcast Programming” is defined as Broadcaster simulcast programming not reasonably classified as news, talk, sports or business programming; and “Other Programming” is defined as programming other than either Broadcaster simulcast programming or Broadcaster programming reasonably classified as news, talk, sports or business programming.

The CRB did “clarify” a portion of its initial determination at the request of SoundExcange (SX). SX asked that the CRB replace the term “Internet transmissions” with “digital audio transmissions” to include the transmission by other technologies and services, such as cell phones.

From here, the parties, if they wish to appeal, must file with the courts within 30 days of the publication of the determination in the Federal Register, by the Register of Copyrights (ROC).  The ROC may intervene IF the ROC determines there are legal errors in the CRB decision.  Expect the publication to come around April 30, 2007.


April 16, 2007 - Posted by | Rates, Recordkeeping, Reports of Use, Uncategorized, Webcasting

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