Federal Register / Vol. 80, No. 187 / Monday, September 28, 2015 / Rules and Regulations 58201

airspace extending upward from 1,200 feet noncommercial educational webcasters for services electing the proxy fee in lieu above the surface bounded by a line (NEWs) over the internet, and related of the census reporting option provided beginning at lat. 46°30′29″ N., long. ° ′ ″ ° ′ ″ ephemeral recordings. The Judges in 37 CFR 380.23(g)(1). See Proposed 124 06 51 W.; to lat. 46 30 29 N., long. 3 ° ′ ″ ° ′ ″ published the proposed settlement and Rule 37 CFR 380.22(g)(1). A NEW 120 29 40 W.; to lat. 45 42 49 N., long. requested comments from the public.2 121°06′03″ W.; to lat. 44°15′10″ N., long. electing the reporting waiver in 37 CFR 121°18′13″ W.; to lat. 44°29′59″ N., long. For the reasons discussed below, the 380.23(g)(1) must pay a $100 annual 123°17′38″ W.; to lat. 44°29′59″ N., long. Judges hereby adopt the proposed proxy fee to the Collective. Proposed 124°08′036″ W. to a point 3 miles offshore; settlement, with the exception of a Rule 37 CFR 380.22(a). thence along a line 3 miles offshore to the single provision that would identify Comment Summary point of beginning. SoundExchange as the designated Issued in Seattle, Washington, on Collective for the upcoming license The Judges received nearly 60 September 21, 2015. period. The Judges defer designation of comments—some supporting and some Christopher Ramirez, the Collective for the upcoming opposing adoption of the Settlement—in licensing period until the conclusion of response to their request for comments Manager, Operations Support Group, Western Service Center. the proceeding. published in the Federal Register. Many of the comments appeared to be form [FR Doc. 2015–24434 Filed 9–25–15; 8:45 am] Background letters; hence, the number of BILLING CODE 4910–13–P The proposed SoundExchange/CBI commenters exceeded the number of settlement (Settlement) generally substantive comments. Some of the continues in effect, with certain comments came from affiliated entities. LIBRARY OF CONGRESS adjustments, the extant rates for eligible The Judges considered the views of all NEWs that were codified in 37 CFR part commenters in reaching their decision Copyright Royalty Board 380 Subpart C. The Judges adopted and all comments are posted to the those rates and terms pursuant to CRB’s Web site. The Judges discuss 37 CFR Part 380 Section 801(b)(7)(A) of the Act as part illustrative examples here. [Docket No. 2014–CRB–0001–WR (2016– of the prior webcasting determination. 2020) (Web IV)] See Digital Performance Right in Sound Comments Supporting Adoption of the Recordings and Ephemeral Recordings, Settlement Digital Performance Right in Sound 76 FR 13026 (Web-III). In its comment supporting adoption Recordings and Ephemeral Under the proposed Settlement, an of the joint proposal, CBI noted that the Recordings eligible NEW would pay a $500 annual Settlement contains fee for each of the individual channels, the same terms that NEWs have been AGENCY: Copyright Royalty Board, side channels, or stations through which Library of Congress. successfully using for several years to comply it makes Eligible Transmissions. with the statutory license for webcasting ACTION: Final rule. Proposed Rule 37 CFR 380.22(a). The copyright works. Keeping these rates and $500 fee would also serve as the terms in place will prevent disruption of SUMMARY: The Copyright Royalty Judges minimum fee for eligible NEWs. All their operation and ensure the publish final regulations that set the other NEWs would pay the royalties noncommercial educational webcasters rates and terms for the digital established under Part 380 Subpart A [remain able to provide] creators of musical performances of sound recordings by applicable to noncommercial recordings access to the noncommercial certain noncommercial educational webcasters. Proposed Rule 37 CFR educational listener market. webcasters and for the making of 380.22(c). Comment by College Broadcasters, Inc. ephemeral recordings necessary to To qualify for the rates under the in Support of Adopting The Joint facilitate those transmissions for the Settlement, a NEW’s total monthly per Settlement Between College period commencing January 1, 2016, channel or per station transmissions Broadcasters, Inc. and SoundExchange and ending on December 31, 2020. must remain below 159,140 aggregate at 1 (Nov. 26, 2014) (CBI Comment). DATES: Effective: January 1, 2016. tuning hours (ATH). If a NEW’s CBI further noted that FOR FURTHER INFORMATION CONTACT: transmissions exceed that threshold, the [T]he current Settlement continues LaKeshia Keys, Program Specialist, at NEW must pay royalties for the relevant essentially the same recordkeeping terms that (202) 707–7658, or at [email protected]. month, and for the remainder of the have been integral for NEWs to be able to SUPPLEMENTARY INFORMATION: The relevant year, in accordance with the comply with the statutory license. In Copyright Royalty Judges (Judges) otherwise applicable noncommercial particular, these recordkeeping terms include received a joint motion from rates to be determined in this an optional proxy fee, which allows NEWs to proceeding. In subsequent years, a NEW pay an additional $100 in lieu of complying SoundExchange, Inc. (SoundExchange), with ordinarily-applicable recordkeeping and College Broadcasters, Inc. (CBI) in that wishes to pay the rates under the Settlement must take affirmative steps rules, which are frequently impossible for which they announced a partial NEWs to comply with due to their more settlement of the above proceeding for not to exceed the 159,140 ATH limited budgets, older broadcasting certain internet transmissions by college threshold. Proposed Rule 37 CFR technology, and other operational radio stations and other noncommercial 380.22(b). limitations. [T]he new Settlement makes this webcasters.1 SoundExchange and CBI Commercial webcasters are required extremely necessary reporting option requested that the Judges adopt their to make detailed, census reports of all available for more stations than the previous agreement as a partial settlement of rates sound recordings they transmit. NEWs one did. It also continues to provide with limited listenership may pay the recordkeeping relief for those stations whose and terms under Section 112(e) and 114 audience size makes them ineligible for this of the Copyright Act (Act) for eligible Collective a proxy fee to avoid the nonsubscription transmissions by burden of census reporting. The Settlement increases the listenership 3 The Settlement also ‘‘makes a handful of further minor changes to the current rates and terms for 1 Joint Motion to Adopt Partial Settlement, Docket cap (from 55,000 ATH to 80,000 ATH) NEWs.’’ [SoundExchange’s] Comments Concerning No. 2014–CRB–0001–WR (2016–2020) (Oct. 7, Proposed Settlement at n.1 (Nov. 26, 2014) 2014) (Joint Motion). 2 See 79 FR 65609 (Nov. 5, 2014). (SoundExchange Comments).

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proxy option by allowing them to provide 0.5% noncommercial. Other rates WHRB—a participant in the recordkeeping data consistent with what is should be determined before such an proceeding—highlights certain feasible for them to produce. [T]his insignificant agreement should be ‘‘inadvertent drafting anomalies’’ in the Settlement also leaves room for webcasters to considered.’’ Dayton Public School proposal, which, if uncorrected, ‘‘might grow without fear that if they inadvertently District Comment (Nov. 26, 2014). grow even the tiniest bit too large they will render the proposed rates inapplicable suddenly incur recordkeeping requirements Dayton also claims that the proposed to WHRB’s simulcast stream.’’ WHRB’s that are impossible to comply with without rates in the Settlement are higher than Comments on SX–CBI Rate Proposal at first making a significant and unaffordable those paid by the Corporation for Public 1 (Nov. 27, 2014) (WHRB Comment). In investment in their station technology and Broadcasting-qualified webcasters and particular, WHRB notes that the operations. those paid by Live365 in 2009 and 2010. proposed provision addressing the CBI Comment at 3–4. Accordingly, according to Dayton, the certification requirement would CRB ‘‘needs to determine all eliminate the word ‘‘officer’’ and WSOU Seton Hall University—not a noncommercial ‘willing buyer-willing participant in the proceeding—stated: substitute ‘‘representative of the sellers’ before approving the rate in the applicable educational institution.’’ Id. Since the current agreement has been in CBI/SoundExchange Settlement.’’ at 1–2. According to WHRB, the existing place for several years and has worked to the Id. wording authorizes ‘‘student officers of satisfaction of a large number of college Dayton further contends that the the corporation with personal stations, it is prudent to extend that fair and payment of a proxy fee in lieu of successful arrangement into the future. The knowledge of the facts to certify usage.’’ proposed settlement is affordable for our reporting requirements precludes Id. at 2. Yet, none of these student station, easily implementable, and relieves accurate allocation of royalties to the officers ‘‘sits as a representative of the WSOU from burdensome reporting artists that earned them. President and Fellows of Harvard requirements while allowing royalties to be Lastly, Dayton argues that ‘‘[m]any, if College.’’ Although WHRB has a faculty paid to the rightful recipients. not most, of the web streams covered adviser, he is not broadly involved in WSOU Comment at 1 (Nov. 17, 2014). under the CBI agreement would be from the operations of the radio station so as public [entities] like public schools, to be able to certify under proposed Wayne State College—also a community colleges, and State colleges/ nonparticipant—stated: Section 380.23(f)(9). Id. at 3. WHRB universities.’’ According to Dayton, continues that the Librarian of Congress The proposed agreement . . . serves our ‘‘[m]ost State statutes forbid payments cannot compel Harvard to appoint such station well. In the past, when reporting from State entities to lobbying a representative; nor can the station or requirements were more demanding, it organizations. SoundExchange is a threatened our ability to continue streaming the Collective. WHRB contends that, as lobbying organization . . . The CRB a result, ‘‘the Board should not adopt commercially recorded music [because] the should de conflict [sic] State and station is operated by students, with faculty the rules in the form proposed in SX oversight, and thus has no actual paid Federal law, perhaps through an and CBI’s joint petition without employees. The opportunity to make an aggregator payment like is done through correcting the foregoing drafting additional payment in lieu of reporting CPB, Live365 and is proposed for IBS anomalies.’’ Id. at 5. makes an overwhelming difference for us.4 Members.’’ Id.5 IBS—a participant in the Other Comments Wayne State College Comment (Nov. 18, proceeding—‘‘takes no position on 2014). whether the [CRB] should approve the The NRBNMLC—a participant in the Comments Opposing Adoption of the rates [set forth in the settlement] for proceeding—believes that a $500 flat fee Settlement signatories’’ but, IBS contends, the and a complete reporting exemption constitute ‘‘workable rates and terms for Those opposing adoption of the proposed rates are not reasonable for the majority of educationally based NEWs.’’ NRBNMLC Comment at 2 (Nov. Settlement argue, among other things, 26, 2014). At the same time, however, that doing so before issuing a final broadcasters and webcasters that do not have paid staffs. According to IBS, CBI’s the NRBNMLC raised certain issues determination in the proceeding would with the proposal. For example, the be premature. This position is discussed membership is not representative of a majority of educationally-based NRBNMLC noted that the ATH illustratively in a comment from the definition Dayton Public School District in Dayton, broadcasters and webcasters, implying, Ohio (‘‘Dayton’’)—not a participant to without offering supporting evidence, does not unambiguously exclude . . . the proceeding—which contends that that CBI member stations have paid programming that does not include sound staffs. IBS Comments on SX–CBI’s Joint recordings at all, such as news, talk and ‘‘[n]o other commercial or sports programming. NEWs receive no noncommercial agreements have been Rate Proposal at 5 (Nov. 27, 2014). IBS implies, again without offering benefit under the Statutory Licenses from reached [and] 99.5% of the transmitting such programming, so their [SoundExchange] royalty revenue is supporting evidence, that the majority of noncommercial webcasters do not transmission of that programming should not commercial, 0.5% noncommercial. CBI adversely affect their fee liability under the have paid staff, and, therefore, [represents] only a small fraction of the Statutory Licenses in any way. Where ATH presumably would be less able to pay thresholds are used to affect the fees that 6 4 See also WRFL–UK Student (Univ. of KY) Radio the rates set forth in the Settlement. NEWs must pay and the reporting Comment (Nov. 25, 2014) (the settlement will requirements that they must follow, discrete ‘‘allow us to comply with the regulations and 5 Comments substantially identical to those programming blocks that do not include provide artists the royalties they deserve while submitted by Dayton were also submitted by RMU sound recordings subject to the Statutory preventing us from having to drastically change our Radio Robert Morris University; WCAS Radio Licenses should not count toward meeting format and recordkeeping methods. Such a change Metropolitan State University of Denver; WLMU Le these thresholds. would create a huge cost to us as well as a full Moyne College Syracuse, NY; XTSR Towson overhaul of our training program for students.’’); University; and Zumix Radio East Boston, MA. and WRST–FM (Univ. of WI Oshkosh) Comment RMU Radio Comment (Dec. 2, 2014), WCAS Radio convention sponsorship or some such by (Nov. 25, 2014) (‘‘[m]aintaining the current rates Comment (Nov. 30, 2014), WLMU Comment (Nov. [SoundExchange]’’ the salary of CBI’s Executive and terms for the statutory license for 26, 2014), XTSR Towson University Comment (Nov. Director. Id. See also Affidavit of Fritz Kass in noncommercial stations like us best serves both the 26, 2014), Zumix Radio Comment (Dec. 1, 2014). Support of IBS’ Comments at 2 (Nov. 27, 2014). The educational needs of [our] students and allows us 6 IBS makes an unsubstantiated accusation that Judges place no weight on accusations that are to serve the online listener’’). SoundExchange indirectly funds—through ‘‘CBI unsupported by credible evidence.

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Comments of the National Religious 801(b)(7)(A) of the Copyright Act. That certification requirement might be Broadcasters Noncommercial Music provision of the Act authorizes the unworkable for some NEWs. License Committee to the Proposed Judges to adopt as a basis for statutory The Judges address these concerns in Rates and Terms for Noncommercial terms and rates an agreement turn. Educational Webcasters Submitted by concerning such matters reached among SoundExchange and CBI at 2 (Nov. 26, ‘‘some or all of the participants’’ in a Adopting the Settlement Now Would Be 2014) (NRBNMLC Comment). The proceeding ‘‘at any time during the Premature NRBNMLC ‘‘merely points out this flaw proceeding’’ except that the Judges must Section 801(b)(7)(A) of the Act is clear in the definition but does not formally provide an opportunity to comment on that the Judges have the authority to object to it.’’ Id. at 3. NRBNMLC states the agreement to those that would be adopt settlements between some or all that it ‘‘appears that NEWs will not be bound by the agreement. 17 U.S.C. of the participants to a proceeding at adversely affected by the ATH 801(b)(7)(A)(i). any time during a proceeding so long as definition even if it is construed to The Act authorizes the Judges to those that would be bound by those include talk and other programming that decline to adopt the agreement for rates and terms are given an opportunity does not include recordings in the ATH participants that are not parties to the to comment. Requiring that the adoption count’’ given that ‘‘all of them stream at agreement if a participant to the of all proposed settlements wait until levels below the 159,140 monthly ATH proceeding objects to the agreement and the conclusion of the proceeding would eligibility threshold.’’ Id. at 6–7.7 the Judges conclude, based on the undercut the policy in Section NRBNMLC also notes that not a single record before them if one exists, that the 801(b)(7)(A) to promote negotiated NEW paid more than the minimum fee agreement does not provide a reasonable settlements. Such a position would over the past three years, which means basis for setting statutory terms and unnecessarily require those participants that all NEWs streamed at levels below rates. 17 U.S.C. 801(b)(7)(A)(ii). Section that have agreed to a settlement to the ATH threshold of 159,140—the 801(b)(7)(A) limits the circumstances continue to participate in the threshold for determining whether a under which the Judges are able to proceeding until all interests were station owed fees in excess of the decline to adopt aspects of an resolved. No such requirement is in the minimum fee for those years. Id. agreement, but it does not foreclose the Act and the Judges see no reason to NRBNMLC suggests that, as a result, Judges from ascertaining whether impose one. NEWs have no economic incentive to specific provisions are contrary to law. negotiate the 159,140 ATH threshold See Review of Copyright Royalty Judges Rates Paid in Previous Agreements Are and 80,000 ATH threshold to the Determination, 74 FR 4537, 4540 (Jan. Lower highest level that SoundExchange 26, 2009). Some commenters claim that certain would accept.8 In the context of the statutory rates agreed to by certain participants in The Corporation for Public requirements regarding adoption of other contexts are lower than those Broadcasting (CPB) noted in its settlements, the Judges find that— agreed to in the Settlement. Even if true, comment on behalf of National Public notwithstanding the objections of some such a fact would be irrelevant to Radio, Inc. (NPR) —a participant in the of the commenters—this partial determining whether the current proceeding—(among others) that: ‘‘NPR Settlement provides a reasonable basis proposal forms a reasonable basis for and Public Radio do not object to the for setting statutory terms and rates and rates and terms with respect to the proposed Settlement with the therefore the Judges adopt the partial entities to which it applies in the understanding that it does not apply to Settlement, with one exception current proceeding. Indeed, in most NPR/Public Radio.’’ Comments discussed below. material respects, the rates and terms of Concerning Proposed Settlement of the Objections to the proposal can be the Settlement merely extend current Corporation for Public Broadcasting at 1 summarized as follows: (1) Adopting the rates and terms for another five years. (Nov. 26, 2014). CPB noted further that Settlement before conclusion of the The Judges have been presented with no NPR/Public Radio ‘‘has proposed terms proceeding would be premature; (2) evidence to suggest that the current and conditions for SoundExchange’s rates paid by certain other parties in rates and terms, which the Settlement licensing of NPR/Public Radio that are previous agreements are lower than would extend, have been disruptive or reasonable and appropriate for NPR/ those in the proposed Settlement; (3) overly burdensome for the entities to Public Radio; and the proposed payment of a proxy fee in lieu of which they apply, notwithstanding that Settlement does not and should not reporting precludes accurate allocation some entities during some previous have application to same.’’ Id. at 1–2. of royalties to artists; (4) colleges and years may have paid lower rates. other public entities may not pay Analysis and Finding Proxy Fee Payment in Lieu of royalties to SoundExchange due to Reporting Precludes Accurate The Judges’ authority to adopt applicable state laws prohibiting public Allocation of Royalties proposed settlements as statutory rates entities such as colleges from making and terms is codified in Section payments to lobbying organizations; (5) The Judges are also unconvinced that CBI member organizations are not the provision regarding proxy fee 7 See also WHRB Comment at 4, noting the same issue and indicating that this definition of ATH representative of NEWs because they payment in lieu of census reporting could result in a ‘‘potential overstatement of ATH generally have paid staffs and non-CBI provides a reason not to adopt the in Subsections 380.21(c) and (g) and 380.22 with all member NEWs generally do not; (6) the settlement for the upcoming rate period. the attendant consequences.’’ proposed ATH definition, which The extant regulations include this 8 The settlement would increase the listenership provision. The parties to the agreement cap for services electing the proxy reporting option includes programming other than sound from 55,000 ATH per month to 80,000 ATH per recordings, is too broad; (7) because have acknowledged that the costs of month, with certain conditions. Although not NEWs’ streaming activity is far below census reporting may outweigh its opposing the thresholds in the settlement, the thresholds set in the proposed benefits to the webcasters covered by NRBNMLC asserts that ‘‘[t]here are strong the Settlement. The current proposal indications that these thresholds actually should be settlement, they have no incentive to set higher than the proposed levels.’’ NRBNMLC negotiate higher streaming thresholds; merely continues a practice that has Comment at 8. and (8) the proposed, amended been in place for the last several years.

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Although the threshold to qualify for CBI Members Are Not Representative of ATH threshold, and therefore they have proxy fee payment in lieu of reporting NEWs Because They Have Paid Staffs no incentive to negotiate a higher would rise from 55,000 ATH to 80,000 The Judges find no persuasive threshold for the upcoming license ATH, such an increase would affect few evidence in the record before them to term. The Judges view this statement as 9 if any qualifying NEWs. Indeed, the support the argument that CBI members an affirmation that the proposed higher threshold frees more webcasters are not representative of NEWs Settlement, which carries forward the from the burdens of census reporting. generally. Even if the Judges were current ATH threshold, is a reasonable The proposal also provides additional, presented with such evidence, that fact basis for rates and terms applicable to reasonable safeguards to ensure that alone would not convince the Judges NEWs. In reaching that conclusion, webcasters that do not exceed the that the current Settlement is not a however, the Judges do not mean to threshold in subsequent months will not reasonable basis for setting rates and imply that in other contexts, with lose their NEW status (and privileges). terms for those entities that wish to respect to entities that stream at levels beyond those that are typical for NEWs, SoundExchange confirms that ‘‘the avail themselves of the Settlement. The a different streaming threshold might proxy reporting provisions in Section underlying argument appears to be that not also be reasonable. 380.23(g)(1) have proven to be a NEWs that do not have the resources to reasonable solution to the problem of pay a staff should be entitled to more Proposed Changes to the Certification distributing on a fair and cost-effective favorable terms and rates than those Requirement Might Be Unworkable for basis the relatively small pool of available under the Settlement. Even if Some NEWs royalties paid by NEWs.’’ that were true—a contention upon SoundExchange Comment at 6. The which the Judges need not opine at this WHRB takes exception to a provision Judges see no reason to disrupt a time—that fact would not suggest that in the Settlement dealing with the reporting method that appears to be the Settlement as proposed does not category of persons authorized to certify operating fairly and efficiently. form a reasonable basis for rates and a NEW’s status in statements of account. terms. Proposed settlements need not be Currently, the certifying person must be Public Entity Payments to the best possible outcome for all an ‘‘officer or other duly authorized SoundExchange May Be Prohibited by concerned; they need only form a faculty member or administrator of the State Law reasonable basis for rates and terms, and applicable educational institution.’’ 37 the Judges find that the current proposal CFR 380.23(f)(9). Under the proposal, Concerns about state laws as they meets that standard. the certifying person could be any ‘‘duly relate to royalty deposits with authorized representative’’ of the 10 Proposed ATH Definition Is Too Broad SoundExchange as the Collective go applicable educational institution.12 to SoundExchange’s capacity as the NRBNMLC notes that the definition of WHRB contends that the current Collective rather than to the merits of ATH in § 380.21, which would carry provision authorizes student officers of the CBI/SoundExchange Settlement. It is over under the Settlement, ‘‘does not WHRB to certify statements of account worth noting, however, that unambiguously exclude . . . whereas the proposal would not. The SoundExchange has served as the programming that does not include Judges need not opine on whether Collective since the Judges issued their sound recordings at all, such as news, WHRB’s interpretation of the current (or first webcasting determination and talk and sports programming.’’ proposed) certification provision is SoundExchange has never been NRBNMLC Comment at 2. Although correct. challenged based on its organizational NRBNMLC does not object to the ATH The Judges find that the proposed status or activities. Moreover, the Judges definition, it believes this aspect of the change to § 380.23(f)(9), viewed in the are unaware of any instance in which a definition is a ‘‘flaw,’’ albeit not one that context of the proposed Settlement as a state or local government has challenged would adversely affect NEWs since, whole, is a reasonable means of a royalty payment to SoundExchange according to NRBNMLC, NEWs stream ensuring that the statement of account is based on applicable lobbying laws in at levels well below the 159,140 ATH certified by a person who is duly that state. Therefore, such concerns are level. Id. at 6–7. authorized to represent the applicable speculative at best. WHRB also expresses nebulous educational institution for this limited That being said, the Judges decline to concern over the ATH definition, noting purpose. Nothing in the provision adopt at this point the proposed that it potentially overstates ATH and expressly precludes that duly definition of ‘‘Collective’’ in the would have ‘‘the attendant authorized person from being a student, settlement that expressly designates consequences.’’ WHRB Comment at 4. independent auditor, counsel, or other SoundExchange. Designation of the Neither commenter’s concerns about the person, so long as the applicable Collective is an issue that the Judges perceived scope of the ATH definition educational institution ‘‘duly will decide in the final determination.11 are of the magnitude that would suggest authorizes’’ that person to perform the Therefore, any royalty payments made that the Settlement does not form a required task as the institution’s under the Settlement as adopted, will be reasonable basis for setting rates and representative. To be sure, the by-laws paid to the Collective the Judges terms. Indeed, the Settlement merely of a particular institution may dictate designate in the final determination. carries forward the current ATH who may or may not serve as a duly definition, which has applied without authorized representative of a particular incident over the current rate period. 9 See SoundExchange Comment at 6 (in 2013, no educational institution. Nevertheless, NEW reported exceeding the 55,000 ATH threshold Therefore, the Judges adopt without the Judges find the proposed in any month). change the proposed ATH definition. amendment to § 380.23(f)(9) to be 10 This opposition to the proposed regulatory provision assumes SoundExchange to be the NEWs Have No Incentive To Adopt reasonable in the context of the designated Collective. The Judges’ decision Higher Streaming Thresholds assumes, without deciding at this point, that 12 For the sake of consistency, the Judges will also SoundExchange continues in that role. NRBNMLC notes that during the make a corresponding change to 37 CFR 380.23(f)(4) 11 No party to the proceeding has suggested an current license period all NEWs (requiring the signature of the certifying alternate or additional Collective. streamed at a level below the 159,140 representative).

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Settlement as a whole and adopt it the proxy fee in lieu of census reporting performance of sound recordings in unchanged. does not, however, address the precise certain digital transmissions made by issue raised in that rulemaking Noncommercial Educational Webcasters Impact on Proposed Rulemaking proceeding. The Judges shall address as set forth herein in accordance with On May 2, 2014, the CRB published this issue along with a number of other the provisions of 17 U.S.C. 114, and the in the Federal Register a Notice of issues relating to Part 370 in a separate making of Ephemeral Recordings by Proposed Rulemaking in which the CRB publication focused directly on the May Noncommercial Educational Webcasters sought comments on a motion from CBI, 2, 2014, Notice of Proposed Rulemaking. as set forth herein in accordance with IBS, and American Council on the provisions of 17 U.S.C. 112(e), 13 Conclusion Education. In the notice, the Judges during the period January 1, 2016, announced that the motion—which For the reasons discussed above, the through December 31, 2020. sought ‘‘clarification’’ of certain Judges find that the agreement reached * * * * * amendments to CRB notice and voluntarily between SoundExchange ■ recordkeeping rules in 37 CFR part and CBI establishes a reasonable basis 3. Amend § 380.21 by revising the 370—was not properly before them, for setting statutory terms and rates for definitions for ‘‘Collective’’ and thereby effectively denying the motion. noncommercial educational webcasters ‘‘Noncommercial Educational Nevertheless, the CRB sought comments for the period January 1, 2016, through Webcaster’’ to read as follows: on various proposals from the moving December 31, 2020. The Judges adopt § 380.21 Definitions. parties to expand the categories of the proposed regulations that codify the * * * * * entities that could qualify for exclusions partial Settlement with the one Collective is the collection and from the census reporting requirements exception discussed above, i.e., the distribution organization specified in of 37 CFR 370. reference to SoundExchange as the § 380.2. In response, the CRB received a designated Collective.16 In adopting the number of comments from NEWs partial Settlement and proposed * * * * * Noncommercial Educational requesting that the reporting waiver in regulations, the Judges in no way Webcaster means a Noncommercial 37 CFR 380.23(g)(1) (i.e., the provision suggest that they are more or less Webcaster (as defined in 17 U.S.C. permitting payment of a proxy fee in inclined to adopt the reasoning or 114(f)(5)(E)(i)) that lieu of census reporting) be extended proposals of any of the parties’ (1) Has obtained a compulsory license into the next license term as a viable remaining in the proceeding. alternative to amending the CRB’s under 17 U.S.C. 112(e) and 114 and the reporting requirements.14 Moreover, in List of Subjects in 37 CFR Part 380 implementing regulations therefor to its comment, SoundExchange implied Copyright, Digital audio make Eligible Transmissions and related that amendment to the CRB reporting transmissions, Performance right, Sound ephemeral recordings; requirements for a significant number of recordings. (2) Complies with all applicable affected parties was unnecessary since provisions of Sections 112(e) and 114 NEWs with the lowest intensity of usage Final Regulations and applicable regulations; may elect to pay a proxy fee of $100 and For the reasons set forth in the (3) Is directly operated by, or is forego providing reports of use preamble, the Copyright Royalty Judges affiliated with and officially sanctioned altogether.15 amend 37 CFR part 380 as follows: by, and the digital audio transmission Many if not most of the comments operations of which are staffed responsive to the proposed PART 380—RATES AND TERMS FOR substantially by students enrolled at, a recordkeeping provisions were filed by CERTAIN ELIGIBLE domestically accredited primary or NEWs that apparently would qualify NONSUBSCRIPTION TRANSMISSIONS, secondary school, college, university or under the proposed Settlement to pay NEW SUBSCRIPTION SERVICES AND other post-secondary degree-granting the proxy fee in lieu of census reporting THE MAKING OF EPHEMERAL educational institution; in the upcoming license period. REPRODUCTIONS (4) Is not a ‘‘public broadcasting Extension until December 31, 2020, of entity’’ (as defined in 17 U.S.C. 118(f)) ■ 1. The authority citation for part 380 qualified to receive funding from the 13 79 FR 25038. The CRB also sought comments continues to read as follows: Corporation for Public Broadcasting in the notice on a rulemaking petition from Authority: 17 U.S.C. 112(e), 114(f), pursuant to the criteria set forth in 47 SoundExchange that proposed a number of 804(b)(3). amendments to the CRB’s notice and recordkeeping U.S.C. 396; and requirements. That petition is still pending. ■ 2. Amend § 380.20 by revising (5) Takes affirmative steps not to 14 See, e.g., the following comments filed in paragraph (a) to read as follows: make total transmissions in excess of docket number 14–CRB–0005 (RM): ACRN 159,140 Aggregate Tuning Hours on any Comment (June 9, 2014), KBCU–FM Comment (May Subpart C—Noncommercial individual channel or station in any 22, 2014), KBHU–FM Comment (May 19, 2014), Educational Webcasters KSSU Comment (June 18, 2014), KUIW Comment month, if in any previous calendar year (June 2, 2014), KWSC–FM Comment (June 23, § 380.20 General. it has made total transmissions in excess 2014), KXUL Comment (Aug. 11, 2014), Lasell of 159,140 Aggregate Tuning Hours on College Radio Comment (May 22, 2014), SCAD (a) Scope. This subpart establishes Atlanta Radio Comment (May 22, 2014), WBSU rates and terms, including requirements any individual channel or station in any Comment (June 10, 2014), WGSU–FM Comment for royalty payments, recordkeeping and month. (June 29, 2014), WJCU Comment (May 21, 2014), * * * * * Comments of WKNC–FM North Carolina State reports of use, for the public University (June 9, 2014), WRFL–UK (Univ. of KY) ■ 4. Revise § 380.22 to read as follows: Comment (June 25, 2014), WSDP–FM Comment 16 As discussed above, the definition in § 380.21 (June 25, 2014), WSLX Comment (June 19, 2014), that the Judges adopt cross-references the Collective § 380.22 Royalty fees for the public and WSOU–FM (Seton Hall University) Comment definition in § 380.2. The Judges also have adopted performance of sound recordings and for (May 28, 2014). certain nonsubstantive changes to enhance ephemeral recordings. 15 SoundExchange Comment at 3. consistency and accuracy with respect to references SoundExchange opposed expanding the reporting in the Noncommercial Educational Webcaster (a) Minimum fee for eligible exclusion to include noncommercial, definition in § 380.21. In all other respects, the Noncommercial Educational noneducational webcasters. Id. at 4. settlement is adopted as proposed. Webcasters. Each Noncommercial

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Educational Webcaster that did not for such month due under the applicable, accompanied by a statement exceed 159,140 total ATH for any provisions of Part 380 Subpart A of account, by January 31st of each individual channel or station for more applicable to noncommercial calendar year, except that payment of than one calendar month in the webcasters; and provide the Collective a the Minimum Fee, and Proxy Fee if immediately preceding calendar year statement of account pursuant to Part applicable, by a Noncommercial and does not expect to make total 380 Subpart A. Educational Webcaster that was not transmissions in excess of 159,140 (c) Royalties for other Noncommercial making Eligible Transmissions or Aggregate Tuning Hours on any Educational Webcasters. A Ephemeral Recordings pursuant to the individual channel or station in any Noncommercial Educational Webcaster licenses in 17 U.S.C. 114 and/or 17 calendar month during the applicable that is not eligible to pay royalties under U.S.C. 112(e) as of said date but begins calendar year shall pay an annual, paragraph (a) shall pay royalties in doing so thereafter shall be due by the nonrefundable minimum fee of $500 accordance, and otherwise comply, with 45th day after the end of the month in (the ‘‘Minimum Fee’’) for each of its the provisions of Part 380 Subpart A which the Noncommercial Educational individual channels, including each of applicable to noncommercial Webcaster commences doing so. At the its individual side channels, and each of webcasters. same time the Noncommercial its individual stations, through which (d) Estimation of performances. In the Educational Webcaster must identify all (in each case) it makes Eligible case of a Noncommercial Educational its stations making Eligible Transmissions, for each calendar year it Webcaster that is required to pay Transmissions and identify which of the makes Eligible Transmissions subject to royalties under paragraph (b) or (c) on reporting options set forth in paragraph this subpart. For clarity, each individual a per-performance basis, that is unable (g) of this section it elects for the stream (e.g., HD radio side channels, to calculate actual total performances, relevant year (provided that it must be different stations owned by a single and that is not required to report actual eligible for the option it elects). licensee) will be treated separately and total performances under § 380.23(g)(3), * * * * * be subject to a separate minimum. The the Noncommercial Educational (f) Statements of account. Any Minimum Fee shall constitute the Webcaster may pay its applicable payment due under § 380.22(a) shall be annual per channel or per station royalties on an ATH basis, provided that accompanied by a corresponding royalty for all Eligible Transmissions the Noncommercial Educational statement of account on a form provided totaling not more than 159,140 Webcaster shall pay such royalties at the by the Collective. A statement of Aggregate Tuning Hours in a month on applicable per-performance rates based account shall contain the following any individual channel or station, and on the assumption that the number of information: for Ephemeral Recordings to enable sound recordings performed is 12 per * * * * * such Eligible Transmissions. In hour. The Collective may distribute (4) The signature of a duly authorized addition, a Noncommercial Educational royalties paid on the basis of ATH representative of the applicable Webcaster electing the reporting waiver hereunder in accordance with its educational institution; described in § 380.23(g)(1), shall pay a generally applicable methodology for $100 annual fee (the ‘‘Proxy Fee’’) to the * * * * * distributing royalties paid on such basis. (9) A statement to the following effect: Collective. In addition, and for the avoidance of (b) Consequences of unexpectedly doubt, a Noncommercial Educational I, the undersigned duly authorized exceeding ATH cap. In the case of a Webcaster offering more than one representative of the applicable educational institution, have examined this statement of Noncommercial Educational Webcaster channel or station shall pay per- eligible to pay royalties under paragraph account; hereby state that it is true, accurate, performance royalties on a per-channel and complete to my knowledge after (a) that unexpectedly makes total or -station basis. reasonable due diligence; and further certify transmissions in excess of 159,140 (e) Ephemeral royalty. The royalty that the licensee entity named herein Aggregate Tuning Hours on any payable under 17 U.S.C. 112(e) for any qualifies as a Noncommercial Educational individual channel or station in any ephemeral reproductions made by a Webcaster for the relevant year, and did not calendar month during the applicable Noncommercial Educational Webcaster exceed 159,140 total ATH in any month of calendar year: is deemed to be included within the the prior year for which the Noncommercial Educational Webcaster did not submit a (1) The Noncommercial Educational royalty payments set forth in paragraphs Webcaster shall, for such month and the statement of account and pay any required (a) through (c) of this section and to additional royalties. remainder of the calendar year in which equal 5% of the total royalties payable (g) * * * such month occurs, pay royalties in under such paragraphs. accordance, and otherwise comply, with (1) Reporting waiver. In light of the the provisions of Part 380 Subpart A ■ 5. Amend § 380.23 by: unique business and operational ■ a. Revising paragraph (c); circumstances with respect to applicable to noncommercial ■ webcasters; b. Removing and reserving paragraph Noncommercial Educational (d); Webcasters, and for the purposes of this (2) The Minimum Fee paid by the ■ Noncommercial Educational Webcaster c. Revising paragraph (f) introductory subpart only, a Noncommercial for such calendar year will be credited text; Educational Webcaster that did not ■ d. Removing and reserving paragraph to the amounts payable under the exceed 80,000 total ATH for any (f)(2); and individual channel or station for more provisions of Part 380 Subpart A ■ e. Revising paragraphs (f)(4), (f)(9), than one calendar month in the applicable to noncommercial (g)(1), and (g)(3). webcasters; and The revisions read as follows: immediately preceding calendar year (3) The Noncommercial Educational and that does not expect to exceed Webcaster shall, within 45 days after the § 380.23 Terms for making payment of 80,000 total ATH for any individual end of such month, notify the Collective royalty fees and statements of account. channel or station for any calendar that it has made total transmissions in * * * * * month during the applicable calendar excess of 159,140 Aggregate Tuning (c) Minimum fee. Noncommercial year may elect to pay to the Collective Hours on a channel or station in a Educational Webcasters shall submit the a nonrefundable, annual Proxy Fee of month; pay the Collective any amounts Minimum Fee, and Proxy Fee if $100 in lieu of providing reports of use

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for the calendar year pursuant to the year it reports in accordance with electronically through http:// regulations § 370.4 of this chapter. In paragraph (g)(3) of this section. For the www.regulations.gov or in hard copy at addition, a Noncommercial Educational avoidance of doubt, after a EPA Region 8, Office of Partnership and Webcaster that unexpectedly exceeded Noncommercial Educational Webcaster Regulatory Assistance, Air Program, 80,000 total ATH on one or more has been required to report in 1595 Wynkoop Street, Denver, channels or stations for more than one accordance with paragraph (g)(3) of this Colorado, 80202–1129. The EPA month during the immediately section for a full calendar year, it must requests that you contact the individual preceding calendar year may elect to thereafter include ATH or actual total listed in the FOR FURTHER INFORMATION pay the Proxy Fee and receive the performances in its reports of use. All CONTACT section to view the hard copy reporting waiver described in paragraph reports of use under paragraph (g)(3) of of the docket. An electronic copy of the (g)(1) of this section during a calendar this section shall be submitted to the state’s SIP compilation is also available year, if it implements measures Collective no later than the 45th day at http://www.epa.gov/region8/air/ reasonably calculated to ensure that it after the end of each calendar quarter. sip.html. will not make Eligible Transmissions * * * * * FOR FURTHER INFORMATION CONTACT: exceeding 80,000 total ATH during any Dated: August 3, 2015. Kathy Ayala, Air Program, U.S. month of that calendar year. The Proxy Environmental Protection Agency Fee is intended to defray the Jesse M. Feder, Copyright Royalty Judge. (EPA), Region 8, Mailcode 8P–AR, 1595 Collective’s costs associated with this Wynkoop Street, Denver, Colorado reporting waiver, including Approved by: 80202–1129, (303) 312–6142, development of proxy usage data. The James H. Billington, [email protected]. Proxy Fee shall be paid by the date Librarian of Congress. SUPPLEMENTARY INFORMATION: specified in paragraph (c) of this section [FR Doc. 2015–24506 Filed 9–25–15; 8:45 am] for paying the Minimum Fee for the BILLING CODE 1410–72–P I. Change in IBR Format applicable calendar year and shall be This format revision will affect the accompanied by a certification on a ‘‘Identification of plan’’ section of 40 form provided by the Collective, signed ENVIRONMENTAL PROTECTION CFR part 52, as well as the format of the by a duly authorized representative of AGENCY SIP materials that will be available for the applicable educational institution, public inspection at the National stating that the Noncommercial 40 CFR Part 52 Archives and Records Administration Educational Webcaster is eligible for the (NARA); the Air and Radiation Docket Proxy Fee option because of its past and [EPA–R08–OAR–2015–0149; FRL–9931–73– Region 8 ] and Information Center located at EPA expected future usage and, if applicable, Headquarters in Washington, DC, and has implemented measures to ensure Air Plan Approval; CO; Revised Format the EPA Region 8 Office. that it will not make excess Eligible for Material Incorporated by Reference Transmissions in the future. A. Description of a SIP * * * * * AGENCY: Environmental Protection Each state has a SIP containing the (3) Census-basis reports. If any of the Agency (EPA). control measures and strategies used to following three conditions is satisfied, a ACTION: Final rule; administrative attain and maintain the national Noncommercial Educational Webcaster change. ambient air quality standards (NAAQS) must report pursuant to paragraph (g)(3) and achieve certain other Clean Air Act SUMMARY: The Environmental Protection of this section: (Act) requirements (e.g., visibility Agency (EPA) is revising the format of (i) The Noncommercial Educational requirements, prevention of significant materials submitted by the state of Webcaster exceeded 159,140 total ATH deterioration). The SIP is extensive, Colorado that are incorporated by for any individual channel or station for containing such elements as air reference (IBR) into its State more than one calendar month in the pollution control regulations, emission Implementation Plan (SIP). The immediately preceding calendar year; inventories, monitoring network regulations affected by this format (ii) The Noncommercial Educational descriptions, attainment change have all been previously Webcaster expects to exceed 159,140 demonstrations, and enforcement submitted by Colorado and approved by total ATH for any individual channel or mechanisms. station for any calendar month in the the EPA. applicable calendar year; or DATES: This action is effective B. How EPA Enforces the SIP (iii) The Noncommercial Educational September 28, 2015. Each SIP revision submitted by Webcaster otherwise does not elect to be ADDRESSES: The EPA has established a Colorado must be adopted at the state subject to paragraph (g)(1) or (2) of this docket for this action under Docket level after undergoing reasonable notice section. Identification Number EPA–R08–OAR– and public hearing. SIPs submitted to A Noncommercial Educational 2015–0149. All documents in the docket EPA to attain or maintain the NAAQS Webcaster required to report pursuant to are listed on the http:// must include enforceable emission paragraph (g)(3) of this section shall www.regulations.gov Web site. Although limitations and other control measures, provide reports of use to the Collective listed in the index, some information schedules and timetables for quarterly on a census reporting basis in may not be publicly available, i.e., compliance. accordance with § 370.4 of this chapter, Confidential Business Information or EPA evaluates submitted SIPs to except that, notwithstanding other information the disclosure of determine if they meet the Act’s § 370.4(d)(2), such a Noncommercial which is restricted by statute. Certain requirements. If a SIP meets the Act’s Educational Webcaster shall not be other material, such as copyrighted requirements, EPA will approve the SIP. required to include ATH or actual total material, is not placed on the Internet EPA’s notice of approval is published in performances, and may in lieu thereof and will be publicly available only in the Federal Register and the approval is provide channel or station name and the hard copy form. Publicly available then codified at 40 CFR part 52. Once play frequency, during the first calendar docket materials are available either EPA approves a SIP, it is enforceable by

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