Monday, March 19, 2007

More CRB Challenges

The deadline for filing reconsideration petitions in the Copyright Royalty Board's Internet radio royalties proceeding was 5 p.m. on Monday. Therefore, our coverage in the PM edition did not include input from two key constituencies who requested that details of their filings be withheld until later in the day.

National Public Radio filed a motion for rehearing with the CRB on behalf of its member stations. "The decision, unless modified, will have crippling effects on the availability of public radio to fulfill its mandate to serve the public interest," the document said.

The CRB-imposed minimum $500 annual fee per NPR station or channel is "arbitrary and insupportable" and makes the "erroneous and extremely prejudicial determination that many NPR stations should be treated no differently than commercial webcasting services."

The public radio community wants a rehearing so the three-judge panel can reconsider its "aggregate tuning hour threshold" (ATH) which, if surpassed by any NPR station, would trigger additional royalty payments on a per-performance basis. At a minimum, the CRB should stay the ATH threshold and per-performance aspects of the decision until NPR can file an appeal with the U.S. Court of Appeals for the D.C. Circuit.

According to the document, the vast majority of NPR stations cannot track ATH in order to calculate the threshold nor can they keep tabs on the number of copyrighted sound recording performances in order to calculate payments due beyond the ATH threshold.

"The board's decision to dramatically raise public radio stations' rates was based on inaccurate assumptions and lack of understanding of the issues," NPR spokeswoman Andi Sporkin said in a statement. "The new rates inexplicably break with the longstanding tradition of recognizing public radio's noncommercial, nonprofit role."

Davis Wright Tremaine partner Dave Oxenford, who represents a handful of small webcasters (Accuradio, ioMedia, Digitally Imported Radio, 3wk, Radio Paradise and Discombobulated) also petitioned the CRB on behalf of his clients.

The webcasters take issue with portions of the board decision that refused to adopt a definition of "small webcaster" for purposes of determining royalties and established a minimum per-channel fee without adequately defining "channel." They also disagree with the retroactivity of the ruling and the fact that it does not provide an alternative metric for the periods going forward, according to the filing.