Webcasting Developments January-2009

Last Updated on January 12, 2009 by askcbiorg

There are a number of big things on the horizon for college stations that webcast soundrecordings either as a simulcast of their broadcast or as their sole means of reaching an audience, including those who want to start a webcast.

1.  2009 royalty payments to SoundExchange are due by 1/31/2009.  Many, but not all stations have received a letter from SoundExchange (“SX”) concerning this obligation to pay royalties for 2009.  SX will not invoice stations.  Stations need to download the appropriate “Statement of Account” from the SX web site, complete the form and submit the payment in the form of a check.  While some stations have been advised that no payment is needed while rate negotiations continue,  SX has disputed that advice in a letter mailed to many stations and CBI concurs.  Another twist on the advice stations have received is that they should continue to pay at their old rates, if they were lower than the new rates (which is true for most college stations), while rate negotiations continue.  CBI does not subscribe to this thought process as most college stations operate on limited year-to-year budgets and following this advice could financially harm your station if rate negotiations don’t end up at the old rate.

2.  Just as timely and likely more important, there are POTENTIAL changes to the recordkeeping requirements on the horizion, as proposed by the Copyright Royalty Board (“CRB”).   Currently, stations are required to keep records concerning each sound recording that is webcast for 14 days each calendar quarter.  Details concerning the information to be kept are available in the webcasting section of the site.  One of the more troubling aspect of the recordkeeping regulations currently in place is the requirement to report “aggregate tuning hours” or “ATH”.   ATH is the total number of listener hours to your stream during the reporting period.  For example, if 1 person listens to your stream for 1 hour, your ATH is 1.  If 10 people listen to your stream for 1 hour, your ATH is 10.  Through in person discussions at conferences and other means of communication, we are aware that many stations find it difficult or impossible to accurately determine ATH.  Unfortunately, the proposed rules set a higher bar for reporting your streaming audience.

Finally, the current rules do not set a deadline for submitting reports of use.  Some stations may be keeping records and not submitting reports and others might be using the lack of a deadline to continue streaming because they are not capable of cost effectively compiling the data required.  The lack of a deadline is something we knew would change and the proposed rule changes do address this issue, even if indirectly.

Here is a summary of the rule changes that are most likely to have an effect on your current or planned webcasting operations with respect to recordkeeping and the submission of that information in the form of a “report of use”.

a.  The proposed rules would require stations to submit reports of every song played (that is not exempt) for each day of the year.  This is known as “census reporting”.  The current requirement is to keep data for only 14 days per calendar quarter. 

b.  The proposed rules would require reports of use be submitted on or before the 45th day following the close of each calendar month.  As mentioned above, the current rules do not include a deadline for the submission of a report of use.

c.  The proposed rules would require stations to report “actual performances” of each song instead of ATH.  In other words, for each song played, stations would need to report the total number of devices connected to the server for each and every song played, regardless of duration.

The proposed changes allow for comment.  CBI is fully engaged in the process of developing comments before the  CRB on behalf of members.  Further, we encourage stations to submit comments before the CRB, but we are asking stations to hold off on sending rash responses that would either hurt our position or be legally impermissable.  In order to aid stations in making legally permissable responses to the request for comments, CBI will work with stations in crafting comments.  In addition, CBI will likely include station submissions in their own comments. This offer of assistance is available to all college stations, whether or not they are currently members of CBI or currently webcasting.  We are particularly interested in helping stations that are not webcasting due to the recordkeeping obligations.

Unfortunately, the CRB set a deadline of January 29, 2009 for the submission of comments on the proposed new rules.  CBI will be submitting a request for a deadline extension.

If you are planning on submitting comments on the proposed rules, please contact CBI at copyright@askcbi.org for assistance as we want to help to make sure that your comments are legally acceptable and appropriate for this proceeding.

3.  As mentioned above, rate negotiations have been authorized by congress concerning the rates for 2006-2010.   While we won’t speculate on the progress that others entities (such as commercial stations, commercial webcasters, etc) have made in these negotiations, we can say that there is nothing imminent with respect to college stations.  The deadline to reach a settlement is February 15, 2009.  As is often the case with deadlines such as this, parties come to the table at the last minute and we will keep you informed.

4.  Rates for 2011-2016 (January 1 – December 31, respectively) are to be determined via an arbitration process identicial to the one that set the current rates.  This is an extremely time intensive and costly process.  It may be possible to avoid the time and costs involved if a negotiated settlement is reached. 

CBI has brought many of these issues to attention of members in many ways.  Most recently, we have discussed the proposed new recordkeeping rules on the CBI main email list.   Some  have reacted by stating that they would stop streaming immediately.  We think this is an overreaction to proposed rules and urge stations that are currently streaming to continue to do so until the proposal to implement new rules has played out and then make an informed decision.

In summary, there is a potential for a number of changes on the horizon.  CBI will continue to post updates via its email lists and website. If you need additional information concerning webcasting, please contact us at copyright@askcbi.org.