CBI 2010 Webcasting Guide for Educational Stations

In order to webcast, either as a webcast-only station or as a simulcast webcast of your broadcast station, you need to comply with certain requirements:

1. File a “Notice of Use of Sound Recordings under Statutory License” form with the Copyright Royalty Board (“CRB”), along with a $25 filing fee.  This only needs to be done once.  If you are unsure if your station has already filed the notice and fee, you may check the Copyright Office web site.

2. Each year, you will need to pay SoundExchange the minimum annual fee of $500.[1] The fee is due on a calendar year basis, with fees due by January 31 of each year.  If you want to start webcasting in 2010, you will need to complete the Minimum Fee Invoice (in excel format) [2] for Noncommercial webcasters.  You will need to pay the minimum fee again in January of 2011.

3. Be aware of your options concerning recordkeeping and fees and then make the appropriate selection for your situation. Both rates and recordkeeping requirements will be a factor in your choice.  There are three basic choices available:

a. Follow the reports of use rules as set forth by the regulations established by the Copyright Royalty Judges (“CRJs”).  For minimum-fee-only broadcasters (webcasters with and FCC licensed station), this means sample reports with ATH.[3] For unlicensed stations, this means census reporting including ATP data, [4] regardless of audience size.[5] There is no option to pay a proxy fee or file reports without audience data.

b. Follow the reporting options under the noncommercial settlement.  This option only makes sense if you are capable of reporting ATH and have an audience larger than 159,140 ATH per month, because the rates for webcasting with an audience of this size are lower than the current statutory rates and those rates agreed to by CBI at this level of usage.  Keep in mind the need to report ATH with this option.  In addition to reports of use, the station must submit to SoundExchange monthly Statements of Accounts.  Due to the complexity of the agreement, we will not cover the detailed differences in this document.  If you have questions, please contact us directly so we can walk you through the details.

c. Follow the reporting options under the CBI Noncommerical Educational Webcaster (“NEW”) settlement.  In order to take advantage of the special reporting options in 2009/2010 you must recordkeeping election form (in pdf format) in order to opt-in.[6] This form allows you to choose from three options. [7]

i.       Reporting Waiver – This option allows stations with a monthly ATH of less than 55,000 (approximately 75 average concurrent listeners for the entire month) to pay a $100 annual fee in lieu of reporting any data.  Note that you are not required to pay the $100 fee if you choose to supply SoundExchange with sample-basis reports.

ii.      Sample-Basis Reports – This requires stations with more than 55,000 monthly ATH and less than 159,000 monthly ATH to supply SoundExchange with sample reports[8] of use for two periods of seven consecutive days during each calendar quarter.  This mimics the current regulations, with the major exception that stations do not need to report the ATH.  These reports of use are due by January 31 of each year.

iii.      Census-Basis Reports – Stations exceeding 159,000 monthly ATH must provide “census” reports.  This means reporting every song played throughout the year.  Reports are due no later than the 45th day after the end of each calendar quarter.  ATH data is not required to be submitted with the report of use, however, the station must use ATH in order to calculate the additional royalties owed.  If this situation applies to you, please contact CBI as you have options to consider that will save you money.

4. One of the requirements of webcasters is that they don’t exceed the “Sound Recording Performance Complement”, which means that in a three-hour period the station can transmit no more than: 1) three songs from one album or compact disc, if no more than two of these are played in a row; or 2) four songs by the same featured artist or from the same box set, if no more than three of these are played in a row.  See our page detailing this requirement.

5. The digital service must provide a text display for the receiving device, at the time the sound recording is performed, of the title of the sound recording, the album title, and the name of the featured recording artist. See our detailed page concerning this requirement.

6. Archived programming cannot be made available unless it meets certain requirements.  Contact CBI for details if you wish to make available archived programs.

NOTES:

  1. CBI and SoundExchange have asked the CRJs to adopt the terms of their negotiated agreement in order to make the terms available to all stations without the need to opt-in for the period of 2011-2015.  If the terms of this agreement are not adopted by the CRJs, stations will still be able to opt-in to this settlement.  Further, if the terms are not adopted, stations will be able to choose either the terms of this settlement or the terms adopted by the CRJs for 2011-2015 each calendar year.
  2. This document is provided for general information purposes only and is not meant to substitute for legal advice.

[1] A number of organizations representing webcasters, including CBI, appealed the amount of the minimum fee to the DC Circuit Court of Appeals.  The Court agreed that the amount of the minimum fee, as set by the CRJs for non-commercial stations was, “arbitrary, capricious, and not supported by record evidence and remand[ed] that portion of the determination to the Copyright Royalty Judges.”  For a number of reasons, CBI did not pursue the remand and reached a settlement with SX for the period of 2011-2015.  IBS was the only organization that opted to continue to fight the minimum fee in the remand proceeding and lost.  The minimum fee for 2006 – 2010 was set at $500.

[2] Some stations may want to opt-in to the Noncommercial agreement.  This is not the same as the Noncommercial Educational Settlement.  Details of the differences will be outlined later.  In short, if your station will exceed an average of 218 concurrent listeners for an entire calendar month, the Noncommercial Settlement will provide you with MUCH lower rates, but require your station to provide more detailed recordkeeping.  For most Educational Stations (College/High School) the Noncommercial agreement is not the right choice.  If you have questions, feel free to contact CBI.

[3] ATH is a calculation of the total number of hours that people listen to a webcast.  For example, if one person listens for one hour, the ATH would be one.  If 10 people listen for that same hour, the ATH would be 10.

[4] ATP means reporting the actual specific number of connections to your stream for any portion of each song played.

[5] CBI has filed a motion with the CRB requesting the Educational Stations without an FCC license also be allowed to file sample reports of use. CBI has also filed an appeal of the CRB decision in the DC Appellate Court.

[6] Stations must opt to take advantage of the settlement negotiated by CBI by completing this form.  If they do not, the station will be required to comply with existing recordkeeping requirements.  Opting to use the special reporting option in 2009/10 will not bind stations to the negotiated settlement in 2011.  In other words, if the current rate setting process results in lower fees or better recordkeeping options in the future, stations will be able to change to the most favorable option.

[7] Stations that exceeded the ATH caps in 2009 or 2010 may still opt to choose any of these options, provided that the station implements measures reasonably calculated to ensure that it will not make eligible transmissions exceeding the appropriate cap.

[8] Reports of use under the settlement require that the reporting of artist, album, song, label, and other data in the format specified, however, this settlement does not require ATH data.