40614 Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Notices 

1Appendix A (Section 5.3) & Appendix B 

(Section 6.2) expressly authorize the submission of 

the relevant agreements in a proceeding under 17 

U.S.C. 114(f). 

LIBRARY OF CONGRESS 

Copyright Office 

Notification of Agreements Under the 

Webcaster Settlement Act of 2009 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of agreements. 

SUMMARY: The Copyright Office is 

publishing four agreements which set 

rates and terms for the reproduction and 

performance of sound recordings made 

by certain webcasters under two 

statutory licenses. Webcasters who meet 

the eligibility requirements may choose 

to operate under the statutory licenses 

in accordance with the rates and terms 

set forth in the agreements published 

herein rather than the rates and terms of 

any determination by the Copyright 

Royalty Judges. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ruwe, Attorney Advisor, or 

Tanya M. Sandros, Deputy General 

Counsel, Copyright Office, GC/I&R, P.O. 

Box 70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. See the final paragraph 

of the SUPPLEMENTARY INFORMATION for 

information on where to direct 

questions regarding the rates and terms 

set forth in the agreement. 

SUPPLEMENTARY INFORMATION: On June 

30, 2009, President Obama signed into 

law the Webcaster Settlement Act of 

2009 (‘‘WSA’’), Public Law 111–36, 

which amends section 114 of the 

Copyright Act, title 17 of the United 

States Code, as it relates to webcasters. 

Section 114(f)(5) as amended by the 

WSA allows SoundExchange, the 

Receiving Agent designated by the 

Librarian of Congress in his June 20, 

2002, order for collecting royalty 

payments made by eligible 

nonsubscription transmission services 

under the section 112 and section 114 

statutory licenses, see 67 FR 45239 (July 

8, 2002), to enter into agreements on 

behalf of all copyright owners and 

performers to set rates, terms and 

conditions for webcasters operating 

under the section 112 and section 114 

statutory licenses for a period of not 

more than 11 years beginning on 

January 1, 2005. The authority to enter 

into such settlement agreements expired 

at 11:59 p.m. Eastern time on July 30, 

2009, the 30th day after the enactment 

of the WSA. 

Unless otherwise agreed to by the 

parties, the rates and terms set forth in 

the agreement apply only to the time 

periods specified in the agreement and 

have no precedential value in any 

proceeding concerned with the setting 

of rates and terms for the public 

performance or reproduction in 

ephemeral phonorecords. To make this 

point clear, Congress included language 

expressly addressing the precedential 

value of agreements made under the 

WSA. Specifically, section 114(f)(5)(C), 

states that: ‘‘Neither subparagraph (A) 

nor any provisions of any agreement 

entered into pursuant to subparagraph 

(A), including any rate structure, fees, 

terms, conditions, or notice and 

recordkeeping requirements set forth 

therein, shall be admissible as evidence 

or otherwise taken into account in any 

administrative, judicial, or other 

government proceeding involving the 

setting or adjustment of the royalties 

payable for the public performance or 

reproduction in ephemeral recordings or 

copies of sound recordings, the 

determination of terms or conditions 

related thereto, or the establishment of 

notice and recordkeeping requirements 

by the Copyright Royalty Judges under 

paragraph (4) or section 112(e)(4). It is 

the intent of Congress that any royalty 

rates, rate structure, definitions, terms, 

conditions, or notice and recordkeeping 

requirements, included in such 

agreements shall be considered as a 

compromise motivated by the unique 

business, economic and political 

circumstances of webcasters, copyright 

owners, and performers rather than as 

matters that would have been negotiated 

in the marketplace between a willing 

buyer and a willing seller, or otherwise 

meet the objectives set forth in section 

801(b). This subparagraph shall not 

apply to the extent that the receiving 

agent and a webcaster that are party to 

an agreement entered into pursuant to 

subparagraph (A) expressly authorize 

the submission of the agreement in a 

proceeding under this subsection.’’ 17 

U.S.C. 114(f)(5)(C) (2009).1

On July 30, 2009, SoundExchange 

notified the Copyright Office that it had 

negotiated four separate agreements for 

the reproduction and performance of 

sound recordings by certain webcasters 

under the section 112 and section 114 

statutory licenses. Thus, in accordance 

with the requirement set forth in section 

114(f)(5)(B), the Copyright Office is 

publishing the submitted agreements, as 

Appendix A (Agreement with Sirius XM 

Radio Inc.); Appendix B (Agreement 

with College Broadcasters, Inc.); 

Appendix C (Agreement with the 

Corporation for Public Broadcasting); 

and Appendix D (Agreement with 

Northwestern College), thereby making 

the rates and terms in the agreements 

available to any webcasters meeting the 

respective eligibility conditions of the 

agreements as an alternative to the rates 

and terms of any determination by the 

Copyright Royalty Judges. 

The Copyright Office has no 

responsibility for administering the 

rates and terms of the agreements 

beyond the publication of this notice. 

For this reason, questions regarding the 

rates and terms set forth in the 

agreements should be directed to 

SoundExchange (for contact 

information, see http:// 

www.soundexchange.com). 

Dated: August 5, 2009. 

Marybeth Peters, 

Register of Copyrights. 

Note: The following Appendix Will Not Be 

Codified in the Code of Federal Regulations. 

Appendix A—Agreed Rates and Terms for 

Webcasts by Commercial Webcasters 

Article 1—Definitions 

1.1 General. In general, words used in the 

rates and terms set forth herein (the ‘‘Rates 

and Terms’’) and defined in 17 U.S.C. 112(e) 

or 114 or 37 CFR Part 380 shall have the 

meanings specified in those provisions as in 

effect on the date hereof, with such 

exceptions or clarifications set forth in 

Section 1.2. 

1.2 Additional Definitions 

(a) ‘‘Commercial Webcaster’’ shall mean a 

webcaster as defined in 17 U.S.C. 

114(f)(5)(E)(iii) that (i) has obtained a 

compulsory license under 17 U.S.C. 112(e) 

and 114 and the implementing regulations 

therefor to make Eligible Transmissions and 

related ephemeral recordings; (ii) complies 

with all applicable provisions of Sections 

112(e) and 114 and applicable regulations; 

(iii) is not a Broadcaster (as defined in 

Section 1.2(a) of the agreement published in 

the Federal Register on March 3, 2009 at 74 

FR 9299); (iv) is not a noncommercial 

webcaster as defined in 17 U.S.C. 

114(f)(5)(E)(i); and (v) has not elected to be 

subject to any other rates and terms adopted 

pursuant to the Webcaster Settlement Act of 

2008 or the Webcaster Settlement Act of 

2009. 

(b) ‘‘Eligible Transmission’’ shall mean an 

eligible nonsubscription transmission, or a 

transmission through a new subscription 

service, made by a Commercial Webcaster 

over the Internet, that is in full compliance 

with the eligibility and other requirements of 

Sections 112(e) and 114 of the Copyright Act 

and their implementing regulations, except 

as expressly modified in these Rates and 

Terms, and of a type otherwise subject to the 

payment of royalties under 37 CFR Part 380. 

(c) ‘‘SoundExchange’’ shall mean 

SoundExchange, Inc. and shall include its 

successors and assigns. 

Article 2—Agreement Pursuant to Webcaster 

Settlement Act of 2009 

2.1 Availability of Rates and Terms. 

Pursuant to the Webcaster Settlement Act of 


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2009, and subject to the provisions set forth 

below, Commercial Webcasters may elect to 

be subject to these Rates and Terms in their 

entirety, with respect to such Commercial 

Webcasters’ Eligible Transmissions and 

related ephemeral recordings, for all of the 

period beginning on January 1, 2009, and 

ending on December 31, 2015, in lieu of other 

rates and terms from time to time applicable 

under 17 U.S.C. 112(e) and 114, by 

complying with the procedure set forth in 

Section 2.2 hereof. Any person or entity that 

does not satisfy the eligibility criteria to be 

a Commercial Webcaster must comply with 

otherwise applicable rates and terms. 

2.2 Election Process in General. To elect 

to be subject to these Rates and Terms, in lieu 

of any royalty rates and terms that otherwise 

might apply under 17 U.S.C. 112(e) and 114, 

for all of the period beginning on January 1, 

2009, and ending on December 31, 2015, a 

Commercial Webcaster shall submit to 

SoundExchange a completed and signed 

election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by the later of (i) 

15 days after publication of these Rates and 

Terms in the Federal Register; or (ii) in the 

case of a Commercial Webcaster that is not 

making Eligible Transmissions as of the 

publication of these Rates and Terms in the 

Federal Register but begins doing so at a later 

time, 30 days after the Commercial Webcaster 

begins making such Eligible Transmissions. 

Notwithstanding anything else in these Rates 

and Terms, a person or entity otherwise 

qualifying as a Commercial Webcaster that is 

participating in any way in any appeal of the 

Final Determination of the Copyright Royalty 

Judges concerning royalty rates and terms 

under Sections 112(e) and 114 of the 

Copyright Act for the period January 1, 2006, 

through December 31, 2010 published in the 

Federal Register at 72 FR 24084 (May 1, 

2007) (the ‘‘Final Determination’’), any 

proceedings on remand from such appeal, 

Docket No. 2009–1 CRB Webcasting III, as 

noticed in the Federal Register at 74 FR 318– 

19 (Jan. 5, 2009), or any other proceedings to 

determine royalty rates and terms for Eligible 

Transmissions (as defined in Section 1.2(b)) 

or related ephemeral phonorecords under 

Section 112(e) or 114 of the Copyright Act for 

all or any part of the period January 1, 2006, 

through December 31, 2015 shall not have 

the right to elect to be treated as a 

Commercial Webcaster or claim the benefit of 

these Rates and Terms, unless it withdraws 

from such proceedings prior to submitting to 

SoundExchange a completed and signed 

election form as contemplated by this Section 

2.2. 

2.3 Representation of Compliance and 

Non-waiver. By electing to operate pursuant 

to these Rates and Terms, an entity 

represents and warrants that it qualifies as a 

Commercial Webcaster. By accepting an 

election by a transmitting entity or payments 

or reporting made pursuant to these Rates 

and Terms, SoundExchange does not 

acknowledge that the transmitting entity 

qualifies as a Commercial Webcaster or that 

it has complied with the eligibility or other 

requirements of the statutory licenses under 

Sections 112(e) and 114 of the Copyright Act 

(including these Rates and Terms). It is the 

responsibility of each transmitting entity to 

ensure that it is in full compliance with 

applicable requirements of the statutory 

licenses under Sections 112(e) and 114 of the 

Copyright Act. SoundExchange is not in a 

position to, and does not, make 

determinations as to whether each of the 

many services that rely on the statutory 

licenses is eligible for statutory licensing or 

any particular royalty payment classification, 

nor does it continuously verify that such 

services are in full compliance with all 

applicable requirements. Accordingly, a 

Commercial Webcaster agrees that 

SoundExchange’s acceptance of its election, 

payment or reporting does not give or imply 

any acknowledgment that it is in compliance 

with the requirements of the statutory 

licenses (including these Rates and Terms) 

and shall not be used as evidence that it is 

in compliance with the requirements of the 

statutory licenses (including these Rates and 

Terms). SoundExchange and copyright 

owners reserve all their rights to take 

enforcement action against a transmitting 

entity that is not in compliance with all 

applicable requirements. 

Article 3—Scope 

3.1 In General. Commercial Webcasters 

that have made a timely election to be subject 

to these Rates and Terms as provided in 

Section 2.2 are entitled to publicly perform 

sound recordings within the scope of the 

statutory license provided by Section 114 by 

means of Eligible Transmissions, and to make 

related ephemeral recordings for use solely 

for purposes of such Eligible Transmissions 

within the scope of Section 112(e), in 

accordance with and subject to the 

limitations set forth in these Rates and Terms 

and in strict conformity with the provisions 

of 17 U.S.C. 112(e) and 114 and their 

implementing regulations, in lieu of other 

rates and terms from time to time applicable 

under 17 U.S.C. 112(e) and 114, for all of the 

period beginning on January 1, 2009, and 

ending on December 31, 2015. 

3.2 Applicability to All Eligible Services 

Operated by or for a Commercial Webcaster. 

If a Commercial Webcaster has made a timely 

election to be subject to these Rates and 

Terms as provided in Section 2.2, these Rates 

and Terms shall apply to all Eligible 

Transmissions made by or for the 

Commercial Webcaster. 

3.3 No Implied Rights. These Rates and 

Terms extend only to electing Commercial 

Webcasters and grant no rights, including by 

implication or estoppel, to any other person 

or except as specifically provided herein. 

Without limiting the generality of the 

foregoing, these Rates and Terms do not grant 

(i) any copyright ownership interest in any 

sound recording; (ii) any trademark or trade 

dress rights; (iii) any rights outside the 

United States (as defined in 17 U.S.C. 101); 

(iv) any rights of publicity or rights to any 

endorsement by SoundExchange or any other 

person; or (v) any rights with respect to 

performances or reproductions outside the 

scope of these Rates and Terms or the 

statutory licenses under 17 U.S.C. 112(e) and 

114. 

Article 4—Royalties 

4.1 Minimum Fees. Each Commercial 

Webcaster will pay an annual, nonrefundable 

minimum fee of $500 for each of its 

individual channels, including each of its 

individual side channels, and each of its 

individual stations, through which (in each 

case) it makes Eligible Transmissions, for 

each calendar year or part of a calendar year 

during 2009–2015 during which the 

Commercial Webcaster is a licensee pursuant 

to licenses under 17 U.S.C. 112(e) and 114, 

provided that a Commercial Webcaster shall 

not be required to pay more than $50,000 in 

minimum fees in the aggregate (for 100 or 

more channels or stations) in any one year. 

Upon payment of the minimum fee, the 

Commercial Webcaster will receive a credit 

in the amount of the minimum fee against 

any royalties payable for the same calendar 

year for the same channel or station. 

4.2 Royalty Rates. Royalties for Eligible 

Transmissions made pursuant to 17 U.S.C. 

114, and the making of related ephemeral 

recordings pursuant to 17 U.S.C. 112(e), shall 

be payable on a per-performance basis, as 

follows: 

Year Rate per 

performance 

2009 ...................................... $0.0016 

2010 ...................................... 0.0017 

2011 ...................................... 0.0018 

2012 ...................................... 0.0020 

2013 ...................................... 0.0021 

2014 ...................................... 0.0022 

2015 ...................................... 0.0024 

4.3 Ephemeral Royalty. The royalty 

payable under 17 U.S.C. 112(e) for any 

ephemeral reproductions made by a 

Commercial Webcaster and covered hereby is 

deemed to be included within the royalty 

payments set forth above. SoundExchange 

may allocate payments hereunder between 

the statutory licenses under Sections 112(e) 

and 114 in the same manner as statutory 

webcasting royalties for the period 2011– 

2015. 

4.4 Payment. Payments of all amounts 

specified in these Rates and Terms shall be 

made to SoundExchange. Minimum fees 

shall be paid by January 31 of each year. 

Once a Commercial Webcaster’s royalty 

obligation under Section 4.2 with respect to 

a channel or station for a year exceeds the 

minimum fee it has paid for that channel or 

station and year, thereby recouping the credit 

provided by Section 4.1, the Commercial 

Webcaster shall make monthly payments at 

the per-performance rates provided in 

Section 4.2 beginning with the month in 

which the minimum fee first was recouped. 

4.5 Monthly Obligations. Commercial 

Webcasters must make monthly payments 

where required by Section 4.4 and provide 

statements of account and reports of use, for 

each month on the 45th day following the 

end of the month in which the Eligible 

Transmissions subject to the payments, 

statements of account, and reports of use 

were made. 

4.6 Past Periods. Notwithstanding 

Sections 4.4 and 4.5, a Commercial 

Webcaster’s first monthly payment after 


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electing to be subject to these Rates and 

Terms shall be adjusted to reflect any 

differences between (i) the amounts payable 

under these Rates and Terms for all of 2009 

to the end of the month for which the 

payment is made and (ii) the Commercial 

Webcaster’s previous payments for all of 

2009 to the end of the month for which the 

payment is made. Late fees under 37 CFR 

380.4(e) shall apply to any payment 

previously due and not made on time, or to 

any late payment hereunder. 

Article 5—Additional Provisions 

5.1 Applicable Regulations. To the extent 

not inconsistent with the Rates and Terms 

herein, all applicable regulations, including 

37 CFR Parts 370 and 380, shall apply to 

activities subject to these Rates and Terms. 

5.2 Participation in Specified 

Proceedings. A Commercial Webcaster that 

elects to be subject to these Rates and Terms 

agrees that it has elected to do so in lieu of 

any different statutory rates and terms that 

may otherwise apply during any part of the 

2009–2015 period and in lieu of participating 

at any time in a proceeding to set rates and 

terms for Eligible Transmissions and related 

ephemeral recordings for any part of the 

2006–2015 period. Thus, once a Commercial 

Webcaster has elected to be subject to these 

Rates and Terms, it shall not at any time 

participate as a party, intervenor, amicus 

curiae or otherwise, or give evidence or 

otherwise support or assist, in Intercollegiate 

Broadcasting Sys. v. Copyright Royalty Board 

(DC Circuit Docket Nos. 07–1123, 07–1168, 

07–1172, 07–1173, 07–1174, 07–1177, 07– 

1178, 07–1179), any proceedings on remand 

from such appeal, Digital Performance Right 

in Sound Recordings and Ephemeral 

Recordings (Copyright Royalty Judges’ 

Docket No. 2009–1 CRB Webcasting III), or 

any other proceedings to determine royalty 

rates and terms for Eligible Transmissions 

and reproduction of related ephemeral 

phonorecords under Section 112(e) or 114 of 

the Copyright Act for all or any part of the 

period 2006–2015, including any appeal of 

the foregoing or any proceedings on remand 

from such an appeal, unless subpoenaed on 

petition of a third party (without any action 

by a Commercial Webcaster to encourage or 

suggest such a subpoena or petition) and 

ordered to testify or provide documents in 

such proceeding. 

5.3 Use of Agreement in Future 

Proceedings. Pursuant to 17 U.S.C. 

114(f)(5)(C), submission of these Rates and 

Terms in a proceeding under 17 U.S.C. 114(f) 

is expressly authorized. 

5.4 Effect of Direct Licenses. Any 

copyright owner may enter into a voluntary 

agreement with any Commercial Webcaster 

setting alternative rates and terms governing 

the Commercial Webcasters’ transmission of 

copyrighted works owned by the copyright 

owner, and such voluntary agreement may be 

given effect in lieu of the Rates and Terms 

set forth herein. 

Article 6—Miscellaneous 

6.1 Acknowledgement. The parties 

acknowledge this agreement was entered into 

knowingly and willingly. The parties further 

acknowledge that any transmission made by 

a Commercial Webcaster in violation of these 

Rates and Terms or Section 112(e) or 114 or 

their implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with these Rates and Terms), 

outside the scope of these Rates and Terms 

or Section 112(e) or 114, or after the 

expiration or termination of these Rates and 

Terms shall be fully subject to, among other 

things, the copyright owners’ rights under 17 

U.S.C. 106 and the remedies in 17 U.S.C. 

501–506, and all limitations, exceptions and 

defenses available with respect thereto. 

6.2 Applicable Law and Venue. These 

Rates and Terms shall be governed by, and 

construed in accordance with, the laws of the 

District of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising directly or 

indirectly from or in connection with these 

Rates and Terms shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC. 

SoundExchange and Commercial Webcasters 

consent to the jurisdiction and venue of the 

foregoing court, waive any objection thereto 

on forum non conveniens or similar grounds, 

and consent that any process or notice of 

motion or other application to said court or 

a judge thereof may be served inside or 

outside the District of Columbia by registered 

mail, return receipt requested, directed to the 

person for which it is intended at its last 

known address (and service so made shall be 

deemed complete five (5) days after the same 

has been posted as aforesaid) or by personal 

service or in such other manner as may be 

permissible under the rules of that court. 

6.3 Rights Cumulative. The rights, 

remedies, limitations, and exceptions 

provided in these Rates and Terms and 

available under applicable law shall be 

cumulative and shall not preclude assertion 

by any party of any other rights, defenses, 

limitations, or exceptions or the seeking of 

any other remedies against another party 

hereto. These Rates and Terms shall not 

constitute a waiver of any violation of 

Section 112 or 114 or their implementing 

regulations. No failure to exercise and no 

delay in exercising any right, power or 

privilege shall operate as a waiver of such 

right, power or privilege. No single or partial 

exercise of any right, power or privilege 

granted under these Rates and Terms or 

available under applicable law shall preclude 

any other or further exercise thereof or the 

exercise of any other right, power or 

privilege. No waiver by any party of full 

performance by another party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

these Rates and Terms and of obligations 

under applicable law thereafter. 

6.4 Entire Agreement. These Rates and 

Terms represent the entire and complete 

agreement between SoundExchange and a 

Commercial Webcaster with respect to their 

subject matter and supersede all prior and 

contemporaneous agreements and 

undertakings of SoundExchange and a 

Commercial Webcaster with respect to the 

subject matter hereof. 

Appendix B—Agreed Rates and Terms for 

Noncommercial Educational Webcasters 

Article 1—Definitions 

1.1 General. In general, words used in the 

rates and terms set forth herein (the ‘‘Rates 

and Terms’’) and defined in 17 U.S.C. 112(e) 

or 114 or 37 CFR Part 380 shall have the 

meanings specified in those provisions as in 

effect on the date hereof, with such 

exceptions or clarifications set forth in 

Section 1.2. 

1.2 Additional Definitions 

1.2.1 ‘‘Noncommercial Educational 

Webcaster’’ shall mean a Noncommercial 

Webcaster (as defined in 17 U.S.C. 

114(f)(5)(E)(i)) that (i) has obtained a 

compulsory license under 17 U.S.C. 112(e) 

and 114 and the implementing regulations 

therefor to make Eligible Transmissions and 

related ephemeral recordings; (ii) complies 

with all applicable provisions of Sections 

112(e) and 114 and applicable regulations; 

(iii) is directly operated by, or is affiliated 

with and officially sanctioned by, and the 

digital audio transmission operations of 

which are staffed substantially by students 

enrolled at, a domestically-accredited 

primary or secondary school, college, 

university or other post-secondary degreegranting educational institution, and (iv) is 

not a ‘‘public broadcasting entity’’ (as defined 

in 17 U.S.C. 118(g)) qualified to receive 

funding from the Corporation for Public 

Broadcasting pursuant to the criteria set forth 

in 47 U.S.C. 396. 

1.2.2 ‘‘Eligible Transmission’’ shall mean 

an eligible nonsubscription transmission 

made by a Noncommercial Educational 

Webcaster over the Internet. 

1.2.3 ‘‘SoundExchange’’ shall mean 

SoundExchange, Inc. and shall include its 

successors and assigns. 

1.2.4 ‘‘ATH’’ or ‘‘Aggregate Tuning 

Hours’’ shall mean the total hours of 

programming that a Noncommercial 

Educational Webcaster has transmitted 

during the relevant period to all listeners 

within the United States over all channels 

and stations that provide audio programming 

consisting, in whole or in part, of Eligible 

Transmissions, including from any archived 

programs, less the actual running time of any 

sound recordings for which the 

Noncommercial Educational Webcaster has 

obtained direct licenses apart from 17 U.S.C. 

114(d)(2) or which do not require a license 

under United States copyright law. By way 

of example, if a Noncommercial Educational 

Webcaster transmitted one hour of 

programming to 10 simultaneous listeners, 

the Noncommercial Educational Webcaster’s 

Aggregate Tuning Hours would equal 10. If 

three minutes of that hour consisted of 

transmission of a directly licensed recording, 

the Noncommercial Educational Webcaster’s 

Aggregate Tuning Hours would equal 9 hours 

and 30 minutes. As an additional example, 

if one listener listened to a Noncommercial 

Educational Webcaster for 10 hours (and 

none of the recordings transmitted during 

that time was directly licensed), the 

Noncommercial Educational Webcaster’s 

Aggregate Tuning Hours would equal 10. 


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Article 2—Agreement Pursuant to Webcaster 

Settlement Act of 2009 

2.1 Availability of Rates and Terms. 

Pursuant to the Webcaster Settlement Act of 

2009, and subject to the provisions set forth 

below, Noncommercial Educational 

Webcasters may elect to be subject to the 

rates and terms set forth herein in their 

entirety, with respect to Eligible 

Transmissions and related ephemeral 

recordings, for all of any one or more 

calendar years during the period beginning 

on January 1, 2011, and ending on December 

31, 2015 (the ‘‘Term’’), in lieu of other rates 

and terms from time to time applicable under 

17 U.S.C. 112(e) and 114, by complying with 

the procedure set forth in Section 2.2.1 

hereof. In addition, Noncommercial 

Educational Webcasters may elect to be 

subject to the provisions of Article 5 only, for 

all of the period beginning on January 1, 

2009, and ending on December 31, 2010 (the 

‘‘Special Reporting Term’’), in lieu of 

reporting under 37 CFR Part 370.3, by 

complying with the procedure set forth in 

Section 2.2.3 hereof. Any person or entity 

that does not satisfy the eligibility criteria to 

be a Noncommercial Educational Webcaster 

must comply with otherwise applicable rates 

and terms. 

2.2 Election Process 

2.2.1 In General. To elect to be subject to 

these Rates and Terms, in their entirety, in 

lieu of any royalty rates and terms that 

otherwise might apply under 17 U.S.C. 112(e) 

and 114, for any calendar year during the 

Term, a Noncommercial Educational 

Webcaster shall submit to SoundExchange a 

completed and signed election form 

(available on the SoundExchange Web site at 

http://www.soundexchange.com) by January 

31st of each such calendar year or, in the case 

of a Noncommercial Educational Webcaster 

that has not made Eligible Transmissions as 

of January 31st of a calendar year within the 

Term but begins doing so at a later time that 

year and seeks to be subject to these Rates 

and Terms for that year, 45 days after the end 

of the month in which the Noncommercial 

Educational Webcaster begins making such 

Eligible Transmissions. Even if an entity has 

once elected to be treated as a 

Noncommercial Educational Webcaster, it 

must make a separate, timely election in each 

subsequent calendar year in which it wishes 

(and is eligible) to be treated as such. A 

Noncommercial Educational Webcaster may 

instead elect other available rates for which 

it is eligible. However, a Noncommercial 

Educational Webcaster may not elect 

different rates for a given calendar year after 

it has elected to be subject to these Rates and 

Terms or for any year in which it has already 

paid royalties. 

2.2.2 Contents of Election Form. On its 

election form(s) pursuant to Section 2.2.1, the 

Noncommercial Educational Webcaster must, 

among other things, provide a certification, 

signed by an officer or another duly 

authorized faculty member or administrator 

of the institution with which the 

Noncommercial Educational Webcaster is 

affiliated, on a form provided by 

SoundExchange, that the Noncommercial 

Educational Webcaster (i) qualifies as a 

Noncommercial Educational Webcaster for 

the relevant year, and (ii) did not exceed 

159,140 total ATH in any month of the prior 

year for which the Noncommercial 

Educational Webcaster did not submit a 

Statement of Account and pay required 

Usage Fees. At the same time the 

Noncommercial Educational Webcaster must 

identify all its stations making Eligible 

Transmissions. If, subsequent to making an 

election, there are changes in the 

Noncommercial Educational Webcaster’s 

corporate name or stations making Eligible 

Transmissions, or other changes in its 

corporate structure that affect the application 

of these Rates and Terms, the 

Noncommercial Educational Webcaster shall 

promptly notify SoundExchange thereof. On 

its election form(s), the Noncommercial 

Educational Webcaster must, among other 

things, identify which of the reporting 

options set forth in Section 5.1 it elects for 

the relevant year (provided that it must be 

eligible for the option it elects). 

2.2.3 Election for Special Reporting Term. 

A Noncommercial Educational Webcaster 

may elect to be subject to the provisions of 

Article 5 only, for all of the Special Reporting 

Term, in lieu of reporting under 37 CFR Part 

370.3 as it may from time to time exist. To 

do so, the Noncommercial Educational 

Webcaster shall submit to SoundExchange a 

completed and signed election form 

(available on the SoundExchange Web site at 

http://www.soundexchange.com), which 

SoundExchange may combine with its form 

of Statement of Account. Such form must be 

submitted with timely payment of the 

Noncommercial Educational Webcaster’s 

minimum fee for 2010 under 37 CFR 380.4(d) 

and the Proxy Fee described in Section 5.1.1 

for both 2009 and 2010 if applicable. On any 

such election form, the Noncommercial 

Educational Webcaster must, among other 

things, provide (i) a certification, signed by 

an officer or another duly authorized faculty 

member or administrator of the institution 

with which the Noncommercial Educational 

Webcaster is affiliated, that the 

Noncommercial Educational Webcaster 

qualifies as a Noncommercial Educational 

Webcaster for the Special Reporting Term, 

and (ii) identification of all its stations 

making Eligible Transmissions and which of 

the reporting options set forth in Section 5.1 

it elects for the Special Reporting Term 

(provided that it must be eligible for the 

option it elects for the entire Special 

Reporting Term). 

2.2.4 Participation in Specified 

Proceedings. Notwithstanding anything else 

in these Rates and Terms, a person or entity 

otherwise qualifying as a Noncommercial 

Educational Webcaster that has participated 

or is participating in any way in any appeal 

of the Final Determination of the Copyright 

Royalty Judges concerning royalty rates and 

terms under Sections 112(e) and 114 of the 

Copyright Act for the period January 1, 2006, 

through December 31, 2010 published in the 

Federal Register at 72 FR 24084 (May 1, 

2007) (the ‘‘Final Determination’’), any 

proceedings on remand from such appeal, 

Digital Performance Right in Sound 

Recordings and Ephemeral Recordings 

(Copyright Royalty Judges’ Docket No. 2009– 

1 CRB Webcasting III), Digital Performance 

Right in Sound Recordings and Ephemeral 

Recordings for a New Subscription Service 

(Copyright Royalty Judges’ Docket No. 2009– 

2 CRB New Subscription II), or any other 

proceeding to determine royalty rates or 

terms under Sections 112(e) or 114 of the 

Copyright Act for all or any part of the period 

January 1, 2006, through December 31, 2015 

(all of the foregoing, including appeals of the 

proceedings identified above, collectively 

‘‘Specified Proceedings’’) shall not have the 

right to elect to be treated as a 

Noncommercial Educational Webcaster or 

claim the benefit of these Rates and Terms, 

unless it withdraws from such proceeding(s) 

prior to submitting to SoundExchange a 

completed and signed election form as 

contemplated by Section 2.2.1 or 2.2.3, as 

applicable. In addition, once a 

Noncommercial Educational Webcaster has 

elected to be subject to these Rates and 

Terms, either for the Special Reporting Term 

or any part of the Term, it shall not at any 

time participate as a party, intervenor, 

amicus curiae or otherwise, or give evidence 

or otherwise support or assist, in any 

Specified Proceeding, unless subpoenaed on 

petition of a third party (without any action 

by a Noncommercial Educational Webcaster 

to encourage or suggest such a subpoena or 

petition) and ordered to testify or provide 

documents in such proceeding. 

2.3 Representation of Compliance and 

Non-Waiver. By electing to operate pursuant 

to the Rates and Terms, either for the Special 

Reporting Term or any part of the Term, an 

entity represents and warrants that it 

qualifies as a Noncommercial Educational 

Webcaster and is eligible for the reporting 

option set forth in Section 5.1 that it elects. 

By accepting an election by a transmitting 

entity pursuant to these Rates and Terms or 

any payments or reporting made by a 

transmitting entity, SoundExchange does not 

acknowledge that the transmitting entity 

qualifies as a Noncommercial Educational 

Webcaster or for a particular reporting option 

or that it has complied with the eligibility or 

other requirements of the statutory licenses 

under Sections 112(e) and 114 of the 

Copyright Act (including these Rates and 

Terms). It is the responsibility of each 

transmitting entity to ensure that it is eligible 

for the statutory licenses under Sections 

112(e) and 114 of the Copyright Act and in 

full compliance with applicable requirements 

thereof. SoundExchange is not in a position 

to, and does not, make determinations as to 

whether each of the many services that rely 

on the statutory licenses is eligible for 

statutory licensing or any particular royalty 

payment classification, nor does it 

continuously verify that such services are in 

full compliance with all applicable 

requirements. Accordingly, a transmitting 

entity agrees that SoundExchange’s 

acceptance of its election, payment or 

reporting does not give or imply any 

acknowledgment that it is in compliance 

with the requirements of the statutory 

licenses (including these Rates and Terms) 

and shall not be used as evidence that it is 

in compliance with the requirements of the 

statutory licenses (including these Rates and 

Terms). SoundExchange and copyright 


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owners reserve all their rights to take 

enforcement action against a transmitting 

entity that is not in compliance with all 

applicable requirements that are not 

inconsistent with these Rates and Terms. 

Article 3—Scope 

3.1 In General. Noncommercial 

Educational Webcasters that have made a 

timely election to be subject to these Rates 

and Terms as provided in Section 2.2.1 are 

entitled to publicly perform sound recordings 

within the scope of the statutory license 

provided by Section 114 by means of Eligible 

Transmissions, and to make related 

ephemeral recordings for use solely for 

purposes of such Eligible Transmissions 

within the scope of Section 112(e), in 

accordance with and subject to the 

limitations set forth in these Rates and Terms 

and in strict conformity with the provisions 

of 17 U.S.C. 112(e) and 114 and their 

implementing regulations (except as 

otherwise specifically provided herein), in 

lieu of other rates and terms from time to 

time applicable under 17 U.S.C. 112(e) and 

114, for each calendar year within the Term 

that they have made a timely election to be 

subject to these Rates and Terms. 

3.2 Applicable to All Services Operated 

by or for a Noncommercial Educational 

Webcaster. If a Noncommercial Educational 

Webcaster has made a timely election to be 

subject to these Rates and Terms as provided 

in Section 2.2.1, these Rates and Terms shall 

apply to all Eligible Transmissions made by 

or for the Noncommercial Educational 

Webcaster and related ephemeral recordings. 

For clarity, a Noncommercial Educational 

Webcaster may not rely upon these Rates and 

Terms for its Eligible Transmissions of one 

broadcast channel or station and upon 

different Section 112(e) and 114 rates and 

terms for its Eligible Transmissions of other 

broadcast channels or stations. However, a 

single educational institution may have more 

than one webcasting station making Eligible 

Transmissions. If so, each such station may 

determine individually whether it elects to 

be subject to these Rates and Terms as a 

Noncommercial Educational Webcaster. It is 

expressly contemplated that within a single 

educational institution, one or more 

Noncommercial Educational Webcasters and 

one or more public broadcasting entities (as 

defined in 17 U.S.C. 118(g)) may exist 

simultaneously, each paying under a 

different set of rates and terms. 

3.3 No Implied Rights. These Rates and 

Terms extend only to electing 

Noncommercial Educational Webcasters and 

grant no rights, including by implication or 

estoppel, to any other person or entity, or 

except as specifically provided herein. 

Without limiting the generality of the 

foregoing, these Rates and Terms do not grant 

(i) any copyright ownership interest in any 

sound recording; (ii) any trademark or trade 

dress rights; (iii) any rights outside the 

United States (as defined in 17 U.S.C. 101); 

(iv) any rights of publicity or rights to any 

endorsement by SoundExchange or any other 

person; or (v) any rights with respect to 

performances or reproductions outside the 

scope of these Rates and Terms or the 

statutory licenses under 17 U.S.C. 112(e) and 

114. 

Article 4—Royalties 

4.1 Minimum Fee. Each Noncommercial 

Educational Webcaster shall pay an annual, 

nonrefundable minimum fee of $500 (the 

‘‘Minimum Fee’’) for each of its individual 

channels, including each of its individual 

side channels, and each of its individual 

stations, through which (in each case) it 

makes Eligible Transmissions, for each 

calendar year it elects to be subject to these 

Rates and Terms. For clarity, each individual 

stream (e.g., HD radio side channels, different 

stations owned by a single licensee) will be 

treated separately and be subject to a separate 

minimum. In addition, a Noncommercial 

Educational Webcaster electing the reporting 

waiver described in Section 5.1.1 shall pay 

a $100 annual fee (the ‘‘Proxy Fee’’) to 

SoundExchange. 

4.2 Additional Usage Fees. If, in any 

month, a Noncommercial Educational 

Webcaster makes total transmissions in 

excess of 159,140 Aggregate Tuning Hours 

(‘‘ATH’’) on any individual channel or 

station, the Noncommercial Educational 

Webcaster shall pay additional usage fees 

(‘‘Usage Fees’’) for the Eligible Transmissions 

it makes on that channel or station after 

exceeding 159,140 total ATH at the following 

per-performance rates: 

Year Rate per 

performance 

2011 ...................................... $0.0017 

2012 ...................................... 0.0020 

2013 ...................................... 0.0022 

2014 ...................................... 0.0023 

2015 ...................................... 0.0025 

For a Noncommercial Educational 

Webcaster unable to calculate actual total 

performances and not required to report ATH 

or actual total performances under Section 

5.1.3, the Noncommercial Educational 

Webcaster may pay Usage Fees on an ATH 

basis, provided that the Noncommercial 

Educational Webcaster shall pay Usage Fees 

at the per-performance rates provided above 

in this Section 4.2 based on the assumption 

that the number of sound recordings 

performed is 12 per hour. SoundExchange 

may distribute royalties paid on the basis of 

ATH hereunder in accordance with its 

generally-applicable methodology for 

distributing royalties paid on such basis. 

A Noncommercial Educational Webcaster 

offering more than one channel or station 

shall pay Usage Fees on a per channel or 

station basis. 

4.3 Ephemeral Royalty. The royalty 

payable under 17 U.S.C. 112(e) for any 

ephemeral reproductions made by a 

Noncommercial Educational Webcaster and 

covered hereby is deemed to be included 

within the royalty payments set forth above. 

SoundExchange may allocate payments 

hereunder between the statutory licenses 

under Sections 112(e) and 114 in the same 

manner as statutory webcasting royalties for 

the period 2011–2015. 

4.4 Statements of Account and Payment 

4.4.1 Minimum Fee. Noncommercial 

Educational Webcasters shall submit the 

Minimum Fee, and Proxy Fee if applicable, 

accompanied by a statement of account in a 

form available on the SoundExchange Web 

site at http://www.soundexchange.com 

(‘‘Statement of Account’’) by the date 

specified in Section 2.2.1 for making the 

Noncommercial Educational Webcaster’s 

election to be subject to these Rates and 

Terms for the applicable calendar year. 

4.4.2 Usage Fees. Noncommercial 

Educational Webcasters required to pay 

Usage Fees shall submit a Minimum Fee and 

Statement of Account in accordance with 

Section 4.4.1, and in addition, a Statement of 

Account accompanying any Usage Fees owed 

pursuant to Section 4.2. Such a Statement of 

Account and accompanying Usage Fees shall 

be due 45 days after the end of the month in 

which the excess usage occurred. 

4.4.3 Identification of Statements of 

Account. Noncommercial Educational 

Webcasters shall include on each of their 

Statements of Account (i) the name of the 

Noncommercial Educational Webcaster, 

exactly as it appears on its notice of use, and 

(ii) if the Statement of Account covers a 

single station only, the call letters or name 

of the station. 

4.4.4 Payment. Payments of all amounts 

specified in these Rates and Terms shall be 

made to SoundExchange. 

4.5 Late Fees. A Noncommercial 

Educational Webcaster shall pay a late fee for 

each instance in which any payment, any 

Statement of Account or any Report of Use 

(as defined in Section 5.1 below) is not 

received by SoundExchange in compliance 

with these Rates and Terms and applicable 

regulations by the due date. The amount of 

the late fee shall be 1.5% of the late payment, 

or 1.5% of the payment associated with a late 

Statement of Account or Report of Use, per 

month, compounded monthly, or the highest 

lawful rate, whichever is lower. The late fee 

shall accrue from the due date of the 

payment, Statement of Account or Report of 

Use until a fully compliant Payment, 

Statement of Account or Report of Use (as 

applicable) is received by SoundExchange, 

provided that, in the case of a timely 

provided but noncompliant Statement of 

Account or Report of Use, SoundExchange 

has notified the Noncommercial Educational 

Webcaster within 90 days regarding any 

noncompliance that is reasonably evident to 

SoundExchange. 

Article 5—Reporting 

5.1 Provision of Reports of Use. 

Noncommercial Educational Webcasters 

shall have the following three options, as 

applicable, with respect to provision of 

reports of use of sound recordings (‘‘Reports 

of Use’’): 

5.1.1 Reporting Waiver. In light of the 

unique business and operational 

circumstances currently existing with respect 

to these services, a Noncommercial 

Educational Webcaster that did not exceed 

55,000 total ATH for any individual channel 

or station for more than one calendar month 

in the immediately preceding calendar year 

and that does not expect to exceed 55,000 

total ATH for any individual channel or 

station for any calendar month during the 

applicable calendar year may elect to pay a 

nonrefundable, annual Proxy Fee of $100 in 


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lieu of providing Reports of Use for the 

calendar year. In addition, a Noncommercial 

Educational Webcaster that unexpectedly 

exceeded 55,000 total ATH on one or more 

channels or stations for more than one month 

during the immediately preceding calendar 

year may elect to pay the Proxy Fee and 

receive the reporting waiver described in this 

Section 5.1.1 during a calendar year, if it 

implements measures reasonably calculated 

to ensure that it will not make Eligible 

Transmissions exceeding 55,000 total ATH 

per month during that calendar year. 

SoundExchange shall distribute the aggregate 

royalties paid by electing Noncommercial 

Educational Webcasters based on proxy 

usage data in accordance with a methodology 

adopted by SoundExchange’s Board of 

Directors. The Proxy Fee is intended to 

defray SoundExchange’s costs associated 

with this reporting waiver, including 

development of proxy usage data. The Proxy 

Fee shall be paid by the date specified in 

Section 2.2.1 for making the Noncommercial 

Educational Webcaster’s election to be 

subject to these Rates and Terms for the 

applicable calendar year (or in the case of the 

Special Reporting Term, by the date specified 

in Section 2.2.3) and shall be accompanied 

by a certification on a form provided by 

SoundExchange, signed by an officer or 

another duly authorized faculty member or 

administrator of the applicable educational 

institution, stating that the Noncommercial 

Educational Webcaster is eligible for the 

Proxy Fee option because of its past and 

expected future usage, and if applicable, 

measures to ensure that it will not make 

excess Eligible Transmissions in the future. 

5.1.2 Sample-Basis Reports. A 

Noncommercial Educational Webcaster that 

did not exceed 159,140 total ATH for any 

individual channel or station for more than 

one calendar month in the immediately 

preceding calendar year and that does not 

expect to exceed 159,140 total ATH for any 

individual channel or station for any 

calendar month during the applicable 

calendar year may elect (as described in 

Section 2.2.2) to provide Reports of Use on 

a sample basis (two weeks per calendar 

quarter) in accordance with the regulations at 

37 CFR 370.3 as they existed at January 1, 

2009, except that notwithstanding 37 CFR 

370.3(c)(2)(vi), such an electing 

Noncommercial Educational Webcaster shall 

not be required to include ATH or actual 

total performances and may in lieu thereof 

provide channel or station name and play 

frequency (i.e., number of spins). 

Notwithstanding the foregoing, a 

Noncommercial Educational Webcaster that 

is able to report ATH or actual total 

performances is encouraged to do so. These 

Reports of Use shall be submitted to 

SoundExchange no later than January 31st of 

the year immediately following the year to 

which they pertain. 

5.1.3 Census-Basis Reports. If any of the 

following three conditions is satisfied, a 

Noncommercial Webcaster must report 

pursuant to this Section 5.1.3: (i) The 

Noncommercial Educational Webcaster 

exceeded 159,140 total ATH for any 

individual channel or station for more than 

one calendar month in the immediately 

preceding calendar year, (ii) the 

Noncommercial Educational Webcaster 

expects to exceed 159,140 total ATH for any 

individual channel or station for any 

calendar month in the applicable calendar 

year, or (iii) the Noncommercial Educational 

Webcaster otherwise does not elect (as 

described in Section 2.2.2) to be subject to 

Section 5.1.1 or 5.1.2. A Noncommercial 

Educational Webcaster required to report 

pursuant to this Section 5.1.3 shall provide 

Reports of Use to SoundExchange quarterly 

on a census reporting basis (i.e., Reports of 

Use shall include every sound recording 

performed in the relevant quarter), 

containing information otherwise complying 

with applicable regulations (but no less 

information than required by 37 CFR 370.3 

as of January 1, 2009), except that 

notwithstanding 37 CFR 370.3(c)(2)(vi), such 

a Noncommercial Educational Webcaster 

shall not be required to include ATH or 

actual total performances, and may in lieu 

thereof provide channel or station name and 

play frequency (i.e., number of spins), during 

the first calendar year it is required to report 

in accordance with this Section 5.1.3. For the 

avoidance of doubt, after a Noncommercial 

Educational Webcaster has been required to 

report in accordance with this Section 5.1.3 

for a full calendar year, it must thereafter 

include ATH or actual total performances in 

its Reports of Use. All Reports of Use under 

this Section 5.1.3 shall be submitted to 

SoundExchange no later than the 45th day 

after the end of each calendar quarter. 

5.2 Delivery of Reports. Reports of Use 

submitted by Noncommercial Educational 

Webcasters shall conform to the following 

additional requirements: 

5.2.1 Noncommercial Educational 

Webcasters shall either submit a separate 

Report of Use for each of their stations, or a 

collective report of use covering all of their 

stations but identifying usage on a station-bystation basis. 

5.2.2 Noncommercial Educational 

Webcasters shall transmit each Report of Use 

in a file the name of which includes (i) the 

name of the Noncommercial Educational 

Webcaster, exactly as it appears on its notice 

of use, and (ii) if the Report of Use covers a 

single station only, the call letters or name 

of the station. 

5.2.3 Noncommercial Educational 

Webcasters shall submit reports of use with 

headers, as such headers are described in 37 

CFR 370.3(d)(7). 

5.3 Server Logs. To the extent not already 

required by the current regulations set forth 

in 37 CFR Part 380, as they existed on 

January 1, 2009, Noncommercial Educational 

Webcasters shall retain for a period of at least 

three full calendar years server logs sufficient 

to substantiate all information relevant to 

eligibility, rate calculation and reporting 

hereunder. To the extent that a third-party 

web hosting or service provider maintains 

equipment or software for a Noncommercial 

Educational Webcaster and/or such third 

party creates, maintains, or can reasonably 

create such server logs, the Noncommercial 

Educational Webcaster shall direct that such 

server logs be created and maintained by said 

third party for a period of at least three full 

calendar years and/or that such server logs be 

provided to, and maintained by, the 

Noncommercial Educational Webcaster. 

Article 6—Additional Provisions 

6.1 Applicable Regulations. To the extent 

not inconsistent with the Rates and Terms 

herein, all applicable regulations, including 

37 CFR Parts 370 and 380, shall apply to 

activities subject to these Rates and Terms. 

Without limiting the foregoing, the 

provisions of applicable regulations for the 

retention of records and verification of 

statutory royalty payments (presently 37 CFR 

380.4(h) and 380.6) shall apply hereunder. 

Noncommercial Educational Webcasters 

shall cooperate in good faith with any such 

verification, and the exercise by 

SoundExchange of any right with respect 

thereto shall not prejudice any other rights or 

remedies of SoundExchange or sound 

recording copyright owners. 

6.2 Use of Agreement in Future 

Proceedings. Pursuant to 17 U.S.C. 

114(f)(5)(C), submission of these Rates and 

Terms in a proceeding under 17 U.S.C. 114(f) 

by any participant in such proceeding is 

expressly authorized. 

6.3 Effect of Direct Licenses. Any 

copyright owner may enter into a voluntary 

agreement with any Noncommercial 

Educational Webcaster setting alternative 

rates and terms governing the 

Noncommercial Educational Webcaster’s 

transmission of copyrighted works owned by 

the copyright owner, and such voluntary 

agreement may be given effect in lieu of the 

Rates and Terms set forth herein. 

6.4 Default. A Noncommercial 

Educational Webcaster shall comply with all 

the requirements of these Rates and Terms. 

If it fails to do so, SoundExchange may give 

written notice to the Noncommercial 

Educational Webcaster that, unless the 

breach is remedied within 30 days from the 

date of receipt of notice, the Noncommercial 

Educational Webcaster’s authorization to 

make public performances and ephemeral 

reproductions under these Rates and Terms 

may be terminated by further written notice; 

provided, however, that such period shall be 

60 (rather than 30) days in the case of any 

such notice sent by SoundExchange between 

May 15 and August 15 or between December 

1 and January 30. No such cure period shall 

apply before termination in case of material 

noncompliance that has been repeated 

multiple times so as to constitute a pattern 

of noncompliance, provided that 

SoundExchange has given at least two 

notices of noncompliance. Any transmission 

made by a Noncommercial Educational 

Webcaster in violation of these Rates and 

Terms or Section 112(e) or 114 or their 

implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with these Rates and Terms), 

outside the scope of these Rates and Terms 

or Section 112(e) or 114, or after the 

expiration or termination of these Rates and 

Terms shall be fully subject to, among other 

things, the copyright owners’ rights under 17 

U.S.C. 106 and the remedies in 17 U.S.C. 

501–506, and all limitations, exceptions and 

defenses available with respect thereto. 


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Article 7—Miscellaneous 

7.1 Acknowledgement. The parties 

acknowledge these Rates and Terms were 

entered into knowingly and willingly. 

7.2 Applicable Law and Venue. These 

Rates and Terms shall be governed by, and 

construed in accordance with, the laws of the 

District of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising directly or 

indirectly from or in connection with these 

Rates and Terms shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC. 

SoundExchange and each Noncommercial 

Educational Webcaster consent to the 

jurisdiction and venue of the foregoing court 

and consent that any process or notice of 

motion or other application to said court or 

a judge thereof may be served inside or 

outside the District of Columbia by registered 

mail, return receipt requested, directed to the 

person for which it is intended at its last 

known address (and service so made shall be 

deemed complete five (5) days after the same 

has been posted as aforesaid) or by personal 

service or in such other manner as may be 

permissible under the rules of that court. 

7.3 Rights Cumulative. The rights, 

remedies, limitations, and exceptions 

provided in these Rates and Terms and 

available under applicable law shall be 

cumulative and shall not preclude assertion 

by any party of any other rights, defenses, 

limitations, or exceptions or the seeking of 

any other remedies against another party 

hereto. These Rates and Terms shall not 

constitute a waiver of any violation of 

Section 112 or 114 or their implementing 

regulations (except to the extent such 

implementing regulations are inconsistent 

with these Rates and Terms). No failure to 

exercise and no delay in exercising any right, 

power or privilege shall operate as a waiver 

of such right, power or privilege. No single 

or partial exercise of any right, power or 

privilege granted under these Rates and 

Terms or available under applicable law shall 

preclude any other or further exercise thereof 

or the exercise of any other right, power or 

privilege. No waiver by any party of full 

performance by another party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

these Rates and Terms and of obligations 

under applicable law thereafter. 

7.4 Entire Agreement. These Rates and 

Terms represent the entire and complete 

agreement between SoundExchange and any 

Noncommercial Educational Webcaster with 

respect to their subject matter and supersede 

all prior and contemporaneous agreements 

and undertakings of SoundExchange and a 

Noncommercial Educational Webcaster with 

respect to the subject matter hereof. 

Appendix C—Agreement Concerning Rates 

and Terms for Public Radio 

This Agreement Concerning Rates and 

Terms for Public Radio (‘‘Agreement’’), dated 

as of July 30, 2009 (‘‘Execution Date’’), is 

made by and between SoundExchange, Inc. 

(‘‘SoundExchange’’) and the Corporation for 

Public Broadcasting (‘‘CPB’’), on behalf of all 

Covered Entities (SoundExchange, and CPB 

each a ‘‘Party’’ and, jointly, the ‘‘Parties’’). 

Capitalized terms used herein are defined in 

Article 1 below. 

Whereas, SoundExchange is the ‘‘receiving 

agent’’ as defined in 17 U.S.C. 114(f)(5)(E)(ii) 

designated for collecting and distributing 

statutory royalties received from Covered 

Entities for their Web Site Performances; 

Whereas, the Webcaster Settlement Act of 

2009 (Pub. L. 111–36; to be codified at 17 

U.S.C. 114(f)(5)) authorizes SoundExchange 

to enter into agreements for the reproduction 

and performance of Sound Recordings under 

Sections 112(e) and 114 of the Copyright Act 

that, once published in the Federal Register, 

shall be binding on all Copyright Owners and 

Performers, in lieu of any determination by 

the Copyright Royalty Judges; 

Whereas, in view of the unique business, 

economic and political circumstances of 

CPB, Covered Entities, SoundExchange, 

Copyright Owners and Performers at the 

Execution Date, the Parties have agreed to the 

royalty rates and other consideration set forth 

herein for the period January 1, 2011 through 

December 31, 2015; 

Now, Therefore, pursuant to 17 U.S.C. 

114(f)(5), and in consideration of the mutual 

promises contained in this Agreement and 

for other good and valuable consideration, 

the adequacy and sufficiency of which are 

hereby acknowledged, the Parties hereby 

agree as follows: 

Article 1—Definitions 

The following terms shall have the 

meanings set forth below: 

1.1 ‘‘Agreement’’ shall have the meaning 

set forth in the preamble. 

1.2 ‘‘ATH’’ or ‘‘Aggregate Tuning Hours’’ 

means the total hours of programming that 

Covered Entities have transmitted during the 

relevant period to all listeners within the 

United States from all Covered Entities that 

provide audio programming consisting, in 

whole or in part, of Web Site Performances, 

less the actual running time of any sound 

recordings for which the Covered Entity has 

obtained direct licenses apart from this 

Agreement. By way of example, if a Covered 

Entity transmitted one hour of programming 

to ten (10) simultaneous listeners, the 

Covered Entity’s Aggregate Tuning Hours 

would equal ten (10). If three (3) minutes of 

that hour consisted of transmission of a 

directly licensed recording, the Covered 

Entity’s Aggregate Tuning Hours would equal 

nine (9) hours and thirty (30) minutes. As an 

additional example, if one listener listened to 

a Covered Entity for ten (10) hours (and none 

of the recordings transmitted during that time 

was directly licensed), the Covered Entity’s 

Aggregate Tuning Hours would equal 10. 

1.3 ‘‘Authorized Web Site’’ means any 

Web Site operated by or on behalf of any 

Covered Entity that is accessed by Web Site 

Users through a Uniform Resource Locator 

(‘‘URL’’) owned by such Covered Entity and 

through which Web Site Performances are 

made by such Covered Entity. 

1.4 ‘‘CPB’’ shall have the meaning set 

forth in the preamble. 

1.5 ‘‘Collective’’ shall have the meaning 

set forth in 37 CFR 380.2(c). 

1.6 ‘‘Copyright Owners’’ are Sound 

Recording copyright owners who are entitled 

to royalty payments made pursuant to the 

statutory licenses under 17 U.S.C. 112(e) and 

114(f). 

1.7 ‘‘Covered Entities’’ means NPR, 

American Public Media, Public Radio 

International, and Public Radio Exchange, 

and, in calendar year 2011, up to fourhundred and ninety (490) Originating Public 

Radio Stations as named by CPB. CPB shall 

notify SoundExchange annually of the 

eligible Originating Public Radio Stations to 

be considered Covered Entities hereunder 

(subject to the numerical limitations set forth 

herein). The number of Originating Public 

Radio Stations considered to be Covered 

Entities is permitted to grow by no more than 

10 Originating Public Radio Stations per year 

beginning in calendar year 2012, such that 

the total number of Covered Entities at the 

end of the Term will be less than or equal 

to 530. The Parties agree that the number of 

Originating Public Radio Stations licensed 

hereunder as Covered Entities shall not 

exceed the maximum number permitted for 

a given year without SoundExchange’s 

express written approval, except that CPB 

shall have the option to increase the number 

of Originating Public Radio Stations that may 

be considered Covered Entities as provided 

in Section 4.4. 

1.8 ‘‘Ephemeral Phonorecord’’ shall have 

the meaning set forth in Section 3.1(b). 

1.9 ‘‘Execution Date’’ shall have the 

meaning set forth in the preamble. 

1.10 ‘‘License Fee’’ shall have the 

meaning set forth in Section 4.1. 

1.11 ‘‘Music ATH’’ means ATH of Web 

Site Performances of Sound Recordings of 

musical works. 

1.12 ‘‘NPR’’ shall mean National Public 

Radio, with offices at 635 Massachusetts 

Avenue, NW., Washington, DC 20001. 

1.13 ‘‘Originating Public Radio Stations’’ 

shall mean a noncommercial terrestrial radio 

broadcast station that (i) is licensed as such 

by the Federal Communications Commission; 

(ii) originates programming and is not solely 

a repeater station; (iii) is a member or affiliate 

of NPR, American Public Media, Public 

Radio International, or Public Radio 

Exchange, a member of the National 

Federation of Community Broadcasters, or 

another public radio station that is qualified 

to receive funding from the Corporation for 

Public Broadcasting pursuant to its criteria; 

(iv) qualifies as a ‘‘noncommercial 

webcaster’’ under 17 U.S.C. 114(f)(5)(E)(i); 

and (v) either (a) offers Web Site 

Performances only as part of the mission that 

entitles it to be exempt from taxation under 

section 501 of the Internal Revenue Code of 

1986 (26 U.S.C. 501), or (b) in the case of a 

governmental entity (including a Native 

American Tribal governmental entity), is 

operated exclusively for public purposes. 

1.14 ‘‘Party’’ shall have the meaning set 

forth in the preamble. 

1.15 ‘‘Performers’’ means the 

independent administrators identified in 17 

U.S.C. 114(g)(2)(B) and (C) and the 

individuals and entities identified in 17 

U.S.C. 114(g)(2)(D). 

1.16 ‘‘Person’’ means a natural person, a 

corporation, a limited liability company, a 

partnership, a trust, a joint venture, any 

governmental authority or any other entity or 

organization. 


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1.17 ‘‘Phonorecords’’ shall have the 

meaning set forth in 17 U.S.C. 101. 

1.18 ‘‘Side Channel’’ means any Internetonly program available on an Authorized 

Web Site or an archived program on such 

Authorized Web Site that, in either case, 

conforms to all applicable requirements 

under 17 U.S.C. 114. 

1.19 ‘‘SoundExchange’’ shall have the 

meaning set forth in the preamble and shall 

include any successors and assigns to the 

extent permitted by this Agreement. 

1.20 ‘‘Sound Recording’’ shall have the 

meaning set forth in 17 U.S.C. 101. 

1.21 ‘‘Term’’ shall have the meaning set 

forth in Section 7.1. 

1.22 ‘‘Territory’’ means the United States, 

its territories, commonwealths and 

possessions. 

1.23 ‘‘URL’’ shall have the meaning set 

forth in Section 1.3. 

1.24 ‘‘Web Site’’ means a site located on 

the World Wide Web that can be located by 

a Web Site User through a principal URL. 

1.25 ‘‘Web Site Performances’’ means all 

public performances by means of digital 

audio transmissions of Sound Recordings, 

including the transmission of any portion of 

any Sound Recording, made through an 

Authorized Web Site in accordance with all 

requirements of 17 U.S.C. 114, from servers 

used by a Covered Entity (provided that the 

Covered Entity controls the content of all 

materials transmitted by the server), or by a 

sublicensee authorized pursuant to Section 

3.2, that consist of either (a) the 

retransmission of a Covered Entity’s over-theair terrestrial radio programming or (b) the 

digital transmission of nonsubscription Side 

Channels that are programmed and 

controlled by the Covered Entity. This term 

does not include digital audio transmissions 

made by any other means. 

1.26 ‘‘Web Site Users’’ means all those 

who access or receive Web Site Performances 

or who access any Authorized Web Site. 

Article 2—Agreement Pursuant to Webcaster 

Settlement Act of 2009 

2.1 General. This Agreement is entered 

into pursuant to the Webcaster Settlement 

Act of 2009 (Pub. L. 111–36; to be codified 

at 17 U.S.C. 114(f)(5)). 

2.2 Eligibility Conditions. The only 

webcasters (as defined in 17 U.S.C. 

114(f)(5)(E)(iii)) eligible to avail themselves 

of the terms of this Agreement as 

contemplated by 17 U.S.C. 114(f)(5)(B) are 

the Covered Entities, as expressly set forth 

herein. The terms of this Agreement shall 

apply to the Covered Entities in lieu of other 

rates and terms applicable under 17 U.S.C. 

112 and 114. 

2.3 Agreement Nonprecedential. 

Consistent with 17 U.S.C. 114(f)(5)(C), this 

Agreement, including any rate structure, fees, 

terms, conditions, and notice and 

recordkeeping requirements set forth therein, 

is nonprecedential and shall not be 

introduced nor used by any Person, 

including the Parties and any Covered 

Entities, as evidence or otherwise taken into 

account in any administrative, judicial, or 

other proceeding involving the setting or 

adjustment of the royalties payable for the 

public performance or reproduction in 

ephemeral phonorecords or copies of sound 

recordings, the determination of terms or 

conditions related thereto, or the 

establishment of notice or recordkeeping 

requirements by the Copyright Royalty 

Judges under 17 U.S.C. 114(f)(4) or 112(e)(4), 

or any administrative or judicial proceeding 

pertaining to rates, terms or reporting 

obligations for any yet-to-be-created right to 

collect royalties for the performance of 

Sound Recordings by any technology now or 

hereafter known. Any royalty rates, rate 

structure, definitions, terms, conditions and 

notice and recordkeeping requirements 

included in this Agreement shall be 

considered as a compromise motivated by the 

unique business, economic and political 

circumstances of webcasters, copyright 

owners, and performers, and the 

participation by NPR on behalf of itself and 

its member stations in Digital Performance 

Right in Sound Recordings and Ephemeral 

Recordings, Docket No. 2009–1 CRB 

Webcasting III (the pending proceeding 

before the Copyright Royalty Judges to set 

statutory rates and terms for 2011–2015), 

rather than as matters that would have been 

negotiated in the marketplace between a 

willing buyer and a willing seller, or 

otherwise meet the objectives set forth in 

Section 801(b) of the Copyright Act. 

2.4 Reservation of Rights. The Parties 

agree that the entering into of this Agreement 

shall be without prejudice to any of their 

respective positions in any proceeding with 

respect to the rates, terms or reporting 

obligations to be established for the making 

of Ephemeral Phonorecords or the digital 

audio transmission of Sound Recordings after 

the Term of this Agreement on or by Covered 

Entities under 17 U.S.C. 112 and 114 and 

their implementing regulations. The Parties 

further acknowledge and agree that the 

entering of this Agreement, the performance 

of its terms, and the acceptance of any 

payments and reporting by SoundExchange 

(i) do not express or imply any 

acknowledgement that CPB, Covered Entities, 

or any other persons are eligible for the 

statutory license of 17 U.S.C. 112 and 114, 

and (ii) shall not be used as evidence that 

CPB, the Covered Entities, or any other 

persons are acting in compliance with the 

provisions of 17 U.S.C. 114(d)(2)(A) or (C) or 

any other applicable laws or regulations. 

Article 3—Scope of Agreement 

3.1 General 

(a) Public Performances. In consideration 

for the payment of the License Fee by CPB, 

SoundExchange agrees that Covered Entities 

that publicly perform under Section 114 all 

or any portion of any Sound Recordings 

through an Authorized Web Site, within the 

Territory, by means of Web Site 

Performances, may do so in accordance with 

and subject to the limitations set forth in this 

Agreement; provided that: (i) Such 

transmissions are made in strict conformity 

with the provisions of 17 U.S.C. 114(d)(2)(A) 

and (C); and (ii) such Covered Entities 

comply with all of the terms and conditions 

of this Agreement and all applicable 

copyright laws. For clarity, there is no limit 

to the number of Web Site Performances that 

a Covered Entity may transmit during the 

Term under the provisions of this Section 

3.1(a), if such Web Site Performances 

otherwise satisfy the requirements of this 

Agreement. 

(b) Ephemeral Phonorecords. In 

consideration for the payment of the License 

Fee by CPB, SoundExchange agrees that 

Covered Entities that make and use solely for 

purposes of transmitting Web Site 

Performances as described in Section 3.1(a), 

within the Territory, Phonorecords of all or 

any portion of any Sound Recordings 

(‘‘Ephemeral Phonorecords’’), may do so in 

accordance with and subject to the 

limitations set forth in this Agreement; 

provided that: (i) Such Phonorecords are 

limited solely to those necessary to encode 

Sound Recordings in different formats and at 

different bit rates as necessary to facilitate 

Web Site Performances licensed hereunder; 

(ii) such Phonorecords are made in strict 

conformity with the provisions set forth in 17 

U.S.C. 112(e)(1)(A)–(D); and (iii) the Covered 

Entities comply with 17 U.S.C. 112 (a) and 

(e) and all of the terms and conditions of this 

Agreement. 

3.2 Limited Right to Sublicense. Rights 

under this Agreement are not sublicensable, 

except that a Covered Entity may employ the 

services of a third Person to provide the 

technical services and equipment necessary 

to deliver Web Site Performances on behalf 

of such Covered Entity pursuant to Section 

3.1, but only through an Authorized Web 

Site. Any agreement between a Covered 

Entity and any third Person for such services 

shall (i) contain the substance of all terms 

and conditions of this Agreement and 

obligate such third Person to provide all such 

services in accordance with all applicable 

terms and conditions of this Agreement, 

including, without limitation, Articles 3, 5 

and 6; (ii) specify that such third Person shall 

have no right to make Web Site Performances 

or any other performances or Phonorecords 

on its own behalf or on behalf of any Person 

or entity other than a Covered Entity through 

the Covered Entity’s Authorized Web Site by 

virtue of this Agreement, including in the 

case of Phonorecords, pre-encoding or 

otherwise establishing a library of Sound 

Recordings that it offers to a Covered Entity 

or others for purposes of making 

performances, but instead must obtain all 

necessary licenses from SoundExchange, the 

copyright owner or another duly authorized 

Person, as the case may be; (iii) specify that 

such third Person shall have no right to grant 

any further sublicenses; and (iv) provide that 

SoundExchange is an intended third-party 

beneficiary of all such obligations with the 

right to enforce a breach thereof against such 

third party. 

3.3 Limitations 

(a) Reproduction of Sound Recordings. 

Except as provided in Section 3.2, nothing in 

this Agreement grants Covered Entities, or 

authorizes Covered Entities to grant to any 

other Person (including, without limitation, 

any Web Site User, any operator of another 

Web Site or any authorized sublicensee), the 

right to reproduce by any means, method or 

process whatsoever, now known or hereafter 

developed, any Sound Recordings, including, 

but not limited to, transferring or 


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downloading any such Sound Recordings to 

a computer hard drive, or otherwise copying 

the Sound Recording onto any other storage 

medium. 

(b) No Right of Public Performance. Except 

as provided in Section 3.2, nothing in this 

Agreement authorizes Covered Entities to 

grant to any Person the right to perform 

publicly, by means of digital transmission or 

otherwise, any Sound Recordings. 

(c) No Implied Rights. The rights granted 

in this Agreement extend only to Covered 

Entities and grant no rights, including by 

implication or estoppel, to any other Person, 

except as expressly provided in Section 3.2. 

Without limiting the generality of the 

foregoing, this Agreement does not grant to 

Covered Entities (i) any copyright ownership 

interest in any Sound Recording; (ii) any 

trademark or trade dress rights; (iii) any 

rights outside the Territory; (iv) any rights of 

publicity or rights to any endorsement by 

SoundExchange or any other Person; or (v) 

any rights outside the scope of a statutory 

license under 17 U.S.C. 112(e) and 114. 

(d) Territory. The rights granted in this 

Agreement shall be limited to the Territory. 

(e) No Syndication Rights. Nothing in this 

Agreement authorizes any Web Site 

Performances to be accessed by Web Site 

Users through any Web Site other than an 

Authorized Web Site. 

3.4 Effect of Non-Performance by any 

Covered Entity. In the event that any Covered 

Entity breaches or otherwise fails to perform 

any of the material terms of this Agreement 

it is required to perform (including any 

obligations applicable under Section 112 or 

114), or otherwise materially violates the 

terms of this Agreement or Section 112 or 

114 or their implementing regulations, the 

remedies of SoundExchange shall be specific 

to that Covered Entity only, and shall 

include, without limitation, (i) termination of 

that Covered Entity’s rights hereunder upon 

written notice to CPB, and (ii) the rights of 

SoundExchange and Copyright owners under 

applicable law. SoundExchange’s remedies 

for such a breach or failure by an individual 

Covered Entity shall not include termination 

of this Agreement in its entirety or 

termination of the rights of other Covered 

Entities, except that if CPB breaches or 

otherwise fails to perform any of the material 

terms of this Agreement, or such a breach or 

failure by a Covered Entity results from CPB’s 

inducement, and CPB does not cure such 

breach or failure within thirty (30) days after 

receiving notice thereof from 

SoundExchange, then SoundExchange may 

terminate this Agreement in its entirety, and 

a prorated portion of the License Fee for the 

remainder Term shall, after deduction of any 

damages payable to SoundExchange by virtue 

of the breach or failure, be credited to 

statutory royalty obligations of Covered 

Entities to SoundExchange for the Term as 

specified by CPB. 

Article 4—Consideration 

4.1 License Fee. The total license fee for 

all Web Site Performances and Ephemeral 

Phonorecords made during the Term shall be 

two million four hundred thousand dollars 

($2,400,000) (the ‘‘License Fee’’), unless 

additional payments are required as 

described in Section 4.3 or 4.4. CPB shall pay 

such amount to SoundExchange in five equal 

installments of four hundred eighty thousand 

dollars ($480,000) each, which shall be due 

December 31, 2010 and annually thereafter 

through December 31, 2014. 

4.2 Calculation of License Fee. The 

Parties acknowledge that the License Fee 

includes: (i) an annual minimum fee of five 

hundred dollars ($500) for each Covered 

Entity for each year during the Term; (ii) 

additional usage fees calculated at a royalty 

rate equal to one third the royalty rate 

applicable to commercial broadcasters under 

the Webcaster Settlement Act of 2008 (see 74 

FR 9299 (March 3, 2009)); and (iii) a discount 

that reflects the administrative convenience 

to SoundExchange of receiving annual lump 

sum payments that cover a large number of 

separate entities, as well as the protection 

from bad debt that arises from being paid in 

advance. 

4.3 Total Music ATH True-Up 

(a) If the total Music ATH for all Covered 

Entities, in the aggregate for any calendar 

year during the period 2011–2015, as 

reported or estimated in accordance with 

Attachment 1, is greater than the Music ATH 

cap for the year specified in the table below, 

CPB shall make an additional payment to 

SoundExchange for all such Music ATH in 

excess of such Music ATH cap for all 

Covered Entities in the aggregate on the basis 

of the per performance rate for the year 

specified in the table below, which shall be 

applied to excess Music ATH by assuming 

twelve (12) performances for each hour of 

excess Music ATH: 

Year Music ATH 

cap 

Per 

performance 

rate 

2011 .......... 279,500,000 $0.00057 

2012 .......... 280,897,500 0.00067 

2013 .......... 282,301,988 0.00073 

2014 .......... 283,713,497 0.00077 

2015 .......... 285,132,065 0.00083 

(b) Payments under Section 4.3(a) shall be 

due no later than March 1 of the year 

following the year to which they pertain. 

SoundExchange may distribute royalties paid 

under Section 4.3(a) in accordance with its 

generally-applicable methodology for 

distributing royalties paid on the basis of 

ATH. 

(c) Notwithstanding the foregoing 

provisions of this Section 4.3, CPB shall not 

be required to make payments under this 

Section 4.3 exceeding four hundred eighty 

thousand dollars ($480,000) in the aggregate 

during the Term. Because the limitation 

stated in the immediately preceding sentence 

is to be applied in the aggregate over the 

Term, CPB shall make all payments 

otherwise due under this Section 4.3 for 

excess Music ATH until such time as such 

payments, if any, for the Term reach four 

hundred eighty thousand dollars ($480,000) 

in the aggregate, and thereafter CPB shall owe 

no further payments under Section 4.3(a) 

regardless of the amount of excess Music 

ATH. 

4.4 Station Growth True-Up: If the total 

number of Originating Public Radio Stations 

that wish to make Web Site Performances in 

any calendar year exceeds the number of 

such Originating Public Radio Stations 

considered Covered Entities in the relevant 

year, and the excess Originating Public Radio 

Stations do not wish to pay royalties for such 

Web Site Performances apart from this 

Agreement, CPB may elect by written notice 

to SoundExchange to increase the number of 

Originating Public Radio Stations considered 

Covered Entities in the relevant year effective 

as of the date of the notice. To the extent of 

any such elections, CPB shall make an 

additional payment to SoundExchange for 

each calendar year or part thereof it elects to 

have an additional Originating Public Radio 

Station considered a Covered Entity, in the 

amount of five hundred dollars ($500) per 

Originating Public Radio Station per year. 

Such payment shall accompany the notice 

electing to have an additional Originating 

Public Radio Station considered a Covered 

Entity. 

4.5 Late Fee. The Parties hereby agree to 

the terms set forth in 37 CFR 380.4(e) as if 

that section (and the applicable definitions 

provided in 37 CFR 380.2) were set forth 

herein. 

4.6. Payments to Third Persons 

(a) SoundExchange and CPB agree that, 

except as provided in Section 4.6(b), all 

obligations of, inter alia, clearance, payment 

or attribution to third Persons, including, by 

way of example and not limitation, music 

publishers and performing rights 

organizations (PROs) for use of the musical 

compositions embodied in Sound 

Recordings, shall be solely the responsibility 

of CPB and the Covered Entities. 

(b) SoundExchange and CPB agree that all 

obligations of distribution of the License Fee 

to Copyright Owners and Performers in 

accordance with 37 CFR 380.4(g) shall be 

solely the responsibility of SoundExchange. 

In making such distribution, SoundExchange 

has discretion to allocate the License Fee 

between Section 112 and 114 in the same 

manner as the majority of other webcasting 

royalties. 

Article 5—Reporting, Auditing and 

Confidentiality 

5.1 Reporting. CPB and Covered Entities 

shall submit reports of use and other 

information concerning Web Site 

Performances as set forth in Attachments 1 

and 2. 

5.2 Verification of Information. The 

Parties hereby agree to the terms set forth in 

37 CFR 380.4(h) and 380.6 as if those 

sections (and the applicable definitions 

provided in 37 CFR 380.2) were set forth 

herein. The exercise by SoundExchange of 

any right under this Section 5.2 shall not 

prejudice any other rights or remedies of 

SoundExchange. 

5.3 Confidentiality. The Parties hereby 

agree to the terms set forth in 37 CFR 380.5 

as if that section (and the applicable 

definitions provided in 37 CFR 380.2) were 

set forth herein, except that: 

(a) The following shall be added to the end 

of the first sentence of § 380.5(b): ‘‘or 

documents or information that become 

publicly known through no fault of 


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SoundExchange or are known by 

SoundExchange when disclosed by CPB’’; 

(b) the following shall be added at the end 

of § 380.5(c): ‘‘and enforcement of the terms 

of this Agreement’’; and 

(c) the following shall be added at the end 

of § 380.5(d)(4): ‘‘subject to the provisions of 

Section 2.3 of this Agreement’’. 

Article 6—Non-Participation in Further 

Proceedings 

CPB and any Covered Entity making Web 

Site Transmissions in reliance on this 

Agreement shall not directly or indirectly 

participate as a party, amicus curiae or 

otherwise, or in any manner give evidence or 

otherwise support or assist, in any further 

proceedings to determine royalty rates and 

terms for digital audio transmission or the 

reproduction of Ephemeral Phonorecords 

under Section 112 or 114 of the Copyright 

Act for all or any part of the Term, including 

Digital Performance Right in Sound 

Recordings and Ephemeral Recordings, 

Docket No. 2009–1 CRB Webcasting III, any 

appeal of the determination in such case, any 

proceedings on remand from such an appeal, 

or any other related proceedings, unless 

subpoenaed on petition of a third party 

(without any action by CPB or a Covered 

Entity to encourage such a petition) and 

ordered to testify in such proceeding. 

Notwithstanding anything to the contrary 

herein, any entity that is eligible to be treated 

as a ‘‘Covered Entity’’ but that that does not 

elect to be treated as a Covered Entity may 

elect to participate in such proceedings. 

Article 7—Term and Termination 

7.1 Term. The term of this Agreement 

commences as of January 1, 2011, and ends 

as of December 31, 2015 (‘‘Term’’). Through 

August 27, 2009, CPB shall have the right to 

rescind this Agreement in its entirety by 

notifying SoundExchange in writing that it 

wishes to exercise such right; provided 

however, that CPB may only exercise such 

right in the event that the Board of Directors 

of CPB fails to approve CPB’s entering into 

the Agreement. As conditions precedent to 

reliance on the terms of this Agreement by 

any Covered Entity, (a) CPB must pay the 

License Fee as and when specified in Section 

4.1, and (b) NPR must withdraw from 

participation in the proceeding before the 

Copyright Royalty Judges entitled Digital 

Performance Right in Sound Recordings and 

Ephemeral Recordings, Docket No. 2009–1 

CRB Webcasting III (see 74 FR 318 (Jan. 5, 

2009)) by no later than September 3, 2009 

(which NPR has agreed to do if CPB does not 

exercise its right of rescission). 

7.2 Mutual Termination. This Agreement 

may be terminated in writing upon mutual 

agreement of the Parties. 

7.3 Consequences of Termination 

(a) Survival of Provisions. In the event of 

the expiration or termination of this 

Agreement for any reason, the terms of this 

Agreement shall immediately become null 

and void, and cannot be relied upon for 

making any further Web Site Performances or 

Ephemeral Phonorecords, except that (i) 

Articles 6 and 8 and Sections 2.3, 2.4, 3.3, 

5.2, 5.3 and 7.3 shall remain in full force and 

effect; and (ii) Article 4 and Section 5.1 shall 

remain in effect after the expiration or 

termination of this Agreement to the extent 

obligations under Article 4 or Section 5.1 

accrued prior to any such termination or 

expiration. 

(b) Applicability of Copyright Law. Any 

Web Site Performances made by a Covered 

Entity or other Originating Public Radio 

Station in violation of the terms of this 

Agreement or Section 112 or 114 or their 

implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with this Agreement), outside 

the scope of this Agreement, or after the 

expiration or termination of this Agreement 

for any reason shall be fully subject to, 

among other things, the copyright owners’ 

rights under 17 U.S.C. 106(6), the remedies 

in 17 U.S.C. 501 et seq., the provisions of 17 

U.S.C. 112(e) and 114, and their 

implementing regulations unless the Parties 

have entered into a new agreement for such 

Web Site Performances. 

Article 8—Miscellaneous 

8.1 Applicable Law and Venue. This 

Agreement shall be governed by, and 

construed in accordance with, the laws of the 

District of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising directly or 

indirectly from or in connection with this 

Agreement shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC, or if it 

does not have subject matter jurisdiction, 

other courts located in the District of 

Columbia. The Parties and Covered Entities, 

to the extent permitted under their State or 

Tribal law, consent to the jurisdiction and 

venue of the foregoing court and consent that 

any process or notice of motion or other 

application to said court or a judge thereof 

may be served inside or outside the District 

of Columbia by registered mail, return receipt 

requested, directed to the Person for which 

it is intended at its address set forth in this 

Agreement (and service so made shall be 

deemed complete five (5) days after the same 

has been posted as aforesaid) or by personal 

service or in such other manner as may be 

permissible under the rules of that court. 

8.2 Rights Cumulative. The remedies 

provided in this Agreement and available 

under applicable law shall be cumulative and 

shall not preclude assertion by any Party of 

any other rights or the seeking of any other 

remedies against the other Party hereto. This 

Agreement shall not constitute a waiver of 

any violation of Section 112 or 114 or their 

implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with this Agreement). No failure 

to exercise and no delay in exercising any 

right, power or privilege shall operate as a 

waiver of such right, power or privilege. 

Neither this Agreement nor any such failure 

or delay shall give rise to any defense in the 

nature of laches or estoppel. No single or 

partial exercise of any right, power or 

privilege granted under this Agreement or 

available under applicable law shall preclude 

any other or further exercise thereof or the 

exercise of any other right, power or 

privilege. No waiver by either Party of full 

performance by the other Party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

this Agreement and of obligations under 

applicable law thereafter or of the right to 

exercise the remedies of SoundExchange 

under Section 3.4. 

8.3 Severability. Whenever possible, each 

provision of this Agreement shall be 

interpreted in such a manner as to be 

effective and valid under applicable law, but 

if any provision of this Agreement shall be 

prohibited by or invalid under applicable 

law, such provisions shall be ineffective to 

the extent of such prohibition or invalidity, 

without invalidating the remainder of such 

provision or the remaining provisions of this 

Agreement. 

8.4 Amendment. This Agreement may be 

modified or amended only by a writing 

signed by the Parties. 

8.5 Entire Agreement. This Agreement 

expresses the entire understanding of the 

Parties and supersedes all prior and 

contemporaneous agreements and 

undertakings of the Parties with respect to 

the subject matter hereof. 

8.6 Headings. The titles used in this 

Agreement are used for convenience only 

and are not to be considered in construing or 

interpreting this Agreement. 

In Witness Whereof, the Parties hereto 

have executed this Agreement as of the date 

first above written. 

Attachment 1—Reporting 

1. Definitions. The following terms shall 

have the meaning set forth below for 

purposes of this Attachment 1. All other 

capitalized terms shall have the meaning set 

forth in Article 1 of the Agreement. 

(a) ‘‘Content Logs’’ shall have the meaning 

set forth in Section 3(a)(ii) of this Attachment 

1. 

(b) ‘‘Major Format Group’’ shall mean each 

of the following format descriptions 

characterizing the programming offered by 

various Covered Entities: (i) Classical; (ii) 

jazz; (iii) music mix; (iv) news and 

information; (v) news/classical; (vi) news/ 

jazz; (vii) news/music mix; and (viii) adult 

album alternative. A Covered Entity’s Major 

Format Group is determined based on the 

format description best describing the 

programming of the principal broadcast 

service offered by the Covered Entity and 

will include all channels streamed. 

(c) ‘‘Reporting Data’’ shall mean, for each 

Sound Recording for which Reporting Data is 

to be provided, (1) the relevant Covered 

Entity (including call sign and community of 

license of any terrestrial broadcast station 

and any Side Channel(s)); (2) the title of the 

song or track performed; (3) the featured 

recording artist, group, or orchestra; (4) the 

title of the commercially available album or 

other product on which the Sound Recording 

is found; (5) the marketing label of the 

commercially available album or other 

product on which the sound recording is 

found; and (6) play frequency. 

2. General. All data required to be 

provided hereunder shall be provided to 

SoundExchange electronically in the manner 

provided in 37 CFR 370.3(d), except to the 

extent the parties agree otherwise. CPB shall 

consult with SoundExchange in advance 


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concerning the content and format of all data 

to be provided hereunder, and shall provide 

data that is accurate, to the best of CPB’s and 

the relevant Covered Entity’s knowledge, 

information and belief. The methods used to 

make estimates, predictions and projections 

of data shall be subject to SoundExchange’s 

prior written approval, which shall not be 

unreasonably withheld. 

3. Data Collection and Reporting. CPB 

shall provide data regarding Web Site 

Performances during the Term to 

SoundExchange, and Covered Entities shall 

provide such data to CPB, consistent with the 

following terms: 

(a) ATH and Content Logs. For each 

calendar quarter during the Term: 

(i) Music ATH Reporting. CPB shall 

provide reports (the ‘‘ATH Reports’’) of 

Music ATH by all Covered Entities. Such 

ATH reports shall be accompanied by the 

Content Logs described in Section 3(a)(ii) for 

the periods described therein for all Covered 

Entities. All ATH Reports and Content Logs 

for a quarter shall be provided by CPB 

together in one single batch, but all data shall 

be broken out by Covered Entity and identify 

each Covered Entity’s Major Format Group. 

The ATH Reports shall be in a form similar 

to CPB’s Streaming Census Report dated 

October 18, 2007, except as otherwise 

provided in this Section 3(a)(i). 

(ii) Reporting Period and Data. The 

information about Music ATH referenced in 

Section 3(a)(i) shall be collected from 

Covered Entities for two 7-consecutive-day 

reporting periods per quarter. The ATH 

Reports shall be provided within thirty (30) 

days of the end of each calendar quarter. 

During these reporting periods, Covered 

Entities shall prepare logs containing 

Reporting Data for all their Web Site 

Performances (‘‘Content Logs’’). These 

Content Logs shall be compared with serverbased logs of Music ATH throughout the 

reporting period before the ATH Report is 

submitted to SoundExchange. 

(iii) Additional Data Reporting. Each 

quarter, CPB shall, for Covered Entities 

representing the highest 30% of reported 

Music ATH, provide SoundExchange 

Reporting Data collected continuously during 

each 24 hour period for the majority of their 

Web Site Performances, along with the 

Covered Entity’s Music ATH, for the relevant 

quarter. If during any calendar quarter of the 

Term, additional Covered Entities, in the 

ordinary course of business, collect Reporting 

Data continuously during each 24 hour 

period for the majority of their Web Site 

Performances, CPB shall provide 

SoundExchange such data, along with each 

such Covered Entity’s Music ATH, for the 

relevant quarter. 

(b) ATH and Format Surveys. CPB shall 

semiannually survey all Covered Entities to 

ascertain the number, format and Music ATH 

of all channels (including but not limited to 

Side Channels) over which such Covered 

Entities make Web Site Performances. CPB 

shall provide the results of such survey to 

SoundExchange within sixty (60) days after 

the end of the semiannual period to which 

it pertains. 

(c) Consolidated Reporting. Each quarter, 

CPB shall provide the information required 

by this Section 3 in one delivery to 

SoundExchange, with a list of all Covered 

Entities indicating whether any are not 

reporting for such quarter. 

(d) Timing. Except as otherwise provided 

above, all information required to be 

provided to SoundExchange under this 

Section 3 shall be provided as soon as 

practicable, and in any event by no later than 

sixty (60) days after the end of the quarter to 

which it pertains. Such data shall be 

provided in a format consistent with 

Attachment 2. 

Attachment 2—Reporting Format 

1. Format for Reporting Data. All Reporting 

Data provided under Attachment 1, Section 

3(a)(ii) shall be delivered to SoundExchange 

in accordance with the following format: 

Column 1 Station or Side Channel 

Column 2 Sound Recording Title 

Column 3 Featured Artist, Group or 

Orchestra 

Column 4 Album 

Column 5 Marketing Label 

Column 6 Play Frequency 

2. Format for Music ATH. All Music ATH 

reporting by Covered Entities under 

Attachment 1 shall be delivered to 

SoundExchange in accordance with the 

following format: 

Column 1 Station or Side Channel 

Column 2 Major Format Group 

Column 3 ATH 

Column 4 Reporting Period 

3. Major Format Groups. All requirements 

to provide ‘‘Major Format Group’’ as that 

term is defined in Attachment 1, Section 1(b), 

shall correspond with one of the following: 

Major Format Groups 

Classical 

Jazz 

Music Mix 

News and Information 

News/Classical 

News/Jazz 

News/Music Mix 

Adult Album Alternative 

Appendix D—Agreed Rates and Terms for 

Noncommercial Webcasters 

Article 1—Definitions 

1.1 General. In general, words used in the 

rates and terms set forth herein (the ‘‘Rates 

and Terms’’) and defined in 17 U.S.C. 112(e) 

or 114 or 37 CFR Part 380 shall have the 

meanings specified in those provisions as in 

effect on the date hereof, with such 

exceptions or clarifications set forth in 

Section 1.2. 

1.2 Additional Definitions 

(a) ‘‘Aggregate Tuning Hour’’ or ‘‘ATH’’ 

shall have the same meaning as set forth in 

the applicable regulations at 37 CFR 380.2(a) 

as it existed on July 30, 2009. 

(b) ‘‘Broadcast Retransmissions’’ shall 

mean Eligible Transmissions that are 

retransmissions of terrestrial over-the-air 

broadcast programming transmitted by the 

Noncommercial Webcaster through its AM or 

FM radio station, including ones with 

substitute advertisements or other 

programming occasionally substituted for 

programming for which requisite licenses or 

clearances to transmit over the Internet have 

not been obtained. For the avoidance of 

doubt, a Broadcast Retransmission does not 

include programming transmitted on an 

Internet-only side channel. 

(c) ‘‘Eligible Transmission’’ shall mean an 

eligible nonsubscription transmission made 

by a Noncommercial Webcaster over the 

Internet. 

(d) ‘‘Noncommercial Microcaster’’ shall 

mean a Noncommercial Webcaster that for 

any of its channels or stations over which it 

transmits Broadcast Retransmissions, and for 

all of its channels and stations over which it 

transmits other Eligible Transmissions in the 

aggregate, in any calendar year in which it is 

to be considered a Noncommercial 

Microcaster, meets the following additional 

eligibility criteria: (i) During the prior year 

did not make eligible nonsubscription 

transmissions exceeding 44,000 aggregate 

tuning hours; and (ii) during the applicable 

year reasonably does not expect to make 

eligible nonsubscription transmissions 

exceeding 44,000 aggregate tuning hours; 

provided that, one time during the period 

2006–2015, a Noncommercial Webcaster that 

qualified as a Noncommercial Microcaster 

under the foregoing definition as of January 

31 of one year, elected Noncommercial 

Microcaster status for that year, and 

unexpectedly made Eligible Transmissions 

on one or more channels or stations in excess 

of 44,000 aggregate tuning hours during that 

year, may choose to be treated as a 

Noncommercial Microcaster during the 

following year notwithstanding clause (i) 

above if it implements measures reasonably 

calculated to ensure that it will not make 

Eligible Transmissions exceeding 44,000 

aggregate tuning hours during that following 

year. Without limitation, as to channels or 

stations over which a Noncommercial 

Webcaster transmits Broadcast 

Retransmissions, the Noncommercial 

Webcaster may elect Noncommercial 

Microcaster status only with respect to its 

channels or stations that meet both of the 

foregoing criteria. 

(e) ‘‘Noncommercial Webcaster’’ shall 

mean a noncommercial webcaster as defined 

in 17 U.S.C. 114(f)(5)(E)(i). A Noncommercial 

Webcaster that owns or operates multiple 

terrestrial AM or FM radio stations may elect 

to treat each such terrestrial AM or FM radio 

station as a separate Noncommercial 

Webcaster. 

(f) ‘‘SoundExchange’’ shall mean 

SoundExchange, Inc. and shall include its 

successors and assigns. 

Article 2—Agreement Pursuant to Webcaster 

Settlement Act of 2009 

2.1 Availability of Rates and Terms. 

Pursuant to the Webcaster Settlement Act of 

2009, and subject to the provisions set forth 

below, a Noncommercial Webcaster may 

elect to be subject to the rates and terms set 

forth herein (the ‘‘Rates and Terms’’) in their 

entirety, with respect to such Noncommercial 

Webcaster’s Eligible Transmissions and 

related ephemeral recordings, for any 

calendar year that it qualifies as a 

Noncommercial Webcaster during the period 

beginning on January 1, 2006, and ending on 

December 31, 2015, in lieu of other rates and 


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terms from time to time applicable under 17 

U.S.C. 112(e) and 114, by complying with the 

procedure set forth in Section 2.2 hereof. Any 

person or entity that does not satisfy the 

eligibility criteria to be a Noncommercial 

Webcaster and make a timely election 

pursuant to Section 2.2 must comply with 

otherwise applicable rates and terms. 

2.2 Election Process in General. A 

Noncommercial Webcaster that wishes to 

elect to be subject to these Rates and Terms, 

in lieu of any royalty rates and terms that 

otherwise might apply under 17 U.S.C. 112(e) 

and 114, for any calendar year that it 

qualifies as a Noncommercial Webcaster 

during the period beginning on January 1, 

2006, and ending on December 31, 2015, 

shall submit to SoundExchange a completed 

and signed election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later than 

January 31 of the applicable year, except that 

election forms for 2006–2009 shall be due by 

no later than September 15, 2009. 

Notwithstanding the immediately preceding 

sentence, if a Noncommercial Webcaster has 

not previously made digital audio 

transmissions of sound recordings under the 

section 114 statutory license, the 

Noncommercial Webcaster may make its 

election by no later than 30 days after the 

Noncommercial Webcaster begins making 

such transmissions under the section 114 

statutory license. On any such election form, 

the Noncommercial Webcaster must, among 

other things, certify that it qualifies as a 

Noncommercial Webcaster, and 

SoundExchange shall require only such 

information on that form as is reasonably 

necessary to determine the Noncommercial 

Webcaster’s election. If a Noncommercial 

Webcaster has elected to be treated as a 

Noncommercial Webcaster in any calendar 

year, that election shall apply to subsequent 

calendar years unless the Noncommercial 

Webcaster notifies SoundExchange by 

January 31 of the relevant year that it is 

revoking that election in favor of otherwise 

applicable rates. Notwithstanding anything 

else in these Rates and Terms, a person or 

entity otherwise qualifying as a 

Noncommercial Webcaster that has 

participated in any way in the appeal of the 

Final Determination of the Copyright Royalty 

Judges concerning royalty rates and terms 

under Sections 112(e) and 114 of the 

Copyright Act for the period January 1, 2006, 

through December 31, 2010 published in the 

Federal Register at 72 FR 24084 (May 1, 

2007) (the ‘‘Final Determination’’), any 

proceedings before the Copyright Royalty 

Judges on remand from such appeal, or any 

proceeding before the Copyright Royalty 

Judges to determine royalty rates and terms 

under Sections 112(e) and 114 of the 

Copyright Act for the period January 1, 2011, 

through December 31, 2015 (including 

Docket No. 2009–1 CRB Webcasting III and 

Docket No. 2009–2 CRB New Subscription II, 

as noticed in the Federal Register at 74 FR 

318–20 (Jan. 5, 2009)) shall not have the right 

to elect to be treated as a Noncommercial 

Webcaster or claim the benefit of these Rates 

and Terms, unless, prior to submitting to 

SoundExchange a completed and signed 

election form as contemplated by this Section 

2.2, it withdraws from (a) any such 

proceedings before the Copyright Royalty 

Judges and (b) the appeal of the Final 

Determination if the U.S. Court of Appeals of 

the DC Circuit still retains jurisdiction over 

that appeal at the time such election is made. 

2.3 Election of Noncommercial 

Microcaster Status. A Noncommercial 

Webcaster that elects to be subject to these 

Rates and Terms and qualifies as a 

Noncommercial Microcaster may elect to be 

treated as a Noncommercial Microcaster for 

any one or more calendar years that it 

qualifies as a Noncommercial Microcaster. To 

do so, the Noncommercial Webcaster shall 

submit to SoundExchange a completed and 

signed election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later than 

January 31 of the applicable year, except that 

election forms for 2006–2009 shall be due by 

no later than September 15, 2009. 

Notwithstanding the immediately preceding 

sentence, if a Noncommercial Webcaster has 

not previously made digital audio 

transmissions of sound recordings under the 

section 114 statutory license, the 

Noncommercial Webcaster may make its 

election to be treated as a Noncommercial 

Microcaster by no later than 30 days after the 

Noncommercial Webcaster begins making 

such transmissions under the section 114 

statutory license. On any such election form, 

the Noncommercial Webcaster must, among 

other things, certify that it qualifies as a 

Noncommercial Microcaster; provide 

information about its prior year aggregate 

tuning hours and the genres of music it uses; 

and use commercially reasonable efforts to 

provide such other information as may be 

reasonably requested by SoundExchange for 

use in creating a royalty distribution proxy. 

Even if a Noncommercial Webcaster has once 

elected to be treated as a Noncommercial 

Microcaster, it must make a separate, timely 

election in each subsequent year in which it 

wishes to be treated as a Noncommercial 

Microcaster. 

2.4 Representation of Compliance and 

Non-waiver. By accepting an election by a 

transmitting entity or payments or reporting 

made pursuant to these Rates and Terms, 

SoundExchange does not acknowledge that 

the transmitting entity qualifies as a 

Noncommercial Webcaster or 

Noncommercial Microcaster or that it has 

complied with the eligibility or other 

requirements of the statutory licenses under 

Sections 112(e) and 114 of the Copyright Act 

(including these Rates and Terms). 

SoundExchange is not in a position to, and 

does not, make determinations as to whether 

each of the many services that rely on the 

statutory licenses is eligible for statutory 

licensing or any particular royalty payment 

classification, nor does it continuously verify 

that such services are in full compliance with 

all applicable requirements. Accordingly, a 

transmitting entity agrees that 

SoundExchange’s acceptance of its election, 

payment or reporting does not give or imply 

any acknowledgment that it is in compliance 

with the requirements of the statutory 

licenses (including these Rates and Terms). 

SoundExchange and copyright owners 

reserve all their rights to take enforcement 

action against a transmitting entity that is not 

in compliance with those requirements. 

Article 3—Scope 

3.1 In General. In consideration for the 

payment of royalties pursuant to Article 4 

and such other consideration specified 

herein, Noncommercial Webcasters that have 

made a timely election to be subject to these 

Rates and Terms as provided in Section 2.2 

are entitled to publicly perform sound 

recordings within the scope of the statutory 

license provided by Section 114 by means of 

Eligible Transmissions, and to make related 

ephemeral recordings for use solely for 

purposes of such Eligible Transmissions 

within the scope of Section 112(e), in 

accordance with and subject to the 

limitations set forth in these Rates and Terms 

and with the provisions of 17 U.S.C. 112(e) 

and 114 and their implementing regulations 

(except as otherwise specifically provided 

herein), in lieu of other rates and terms from 

time to time applicable under 17 U.S.C. 

112(e) and 114, for any calendar year that 

they qualify as a Noncommercial Webcaster, 

and have made such an election, during the 

period beginning on January 1, 2006, and 

ending on December 31, 2015. 

3.2 Applicability to All Eligible Services 

Operated by or for a Noncommercial 

Webcaster. If a Noncommercial Webcaster 

has made a timely election to be subject to 

these Rates and Terms as provided in Section 

2.2, these Rates and Terms shall apply to all 

Eligible Transmissions made by or for the 

Noncommercial Webcaster that qualify as 

Performances under 37 CFR 380.2(i), and 

related ephemeral recordings. For the 

avoidance of doubt, a Noncommercial 

Webcaster may not rely upon these Rates and 

Terms for its Eligible Transmissions of one 

broadcast channel or station and upon 

different Section 114 rates and terms for its 

Eligible Transmissions of other broadcast 

channels or stations. 

3.3 No Implied Rights. These Rates and 

Terms extend only to electing 

Noncommercial Webcasters and grant no 

rights, including by implication or estoppel, 

to any other person or except as specifically 

provided herein. Without limiting the 

generality of the foregoing, these Rates and 

Terms do not grant (i) any copyright 

ownership interest in any sound recording; 

(ii) any trademark or trade dress rights; (iii) 

any rights outside the United States (as 

defined in 17 U.S.C. 101); (iv) any rights of 

publicity or rights to any endorsement by 

SoundExchange or any other person; or (v) 

any rights with respect to performances or 

reproductions outside the scope of these 

Rates and Terms or the statutory licenses 

under 17 U.S.C. 112(e) and 114. 

Article 4—Royalties 

4.1 Minimum Fees. Each Noncommercial 

Webcaster shall pay SoundExchange an 

annual, nonrefundable minimum fee of $500 

for each of its individual channels or stations 

over which it makes Eligible Transmissions, 

including each of its individual side 

channels and each of its individual Broadcast 

Retransmission stations, for each calendar 

year or part of a calendar year during 2006– 

2015 during which the Noncommercial 


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Webcaster is a licensee pursuant to licenses 

under 17 U.S.C. 112(e) and 114. Upon 

payment of the minimum fee, the 

Noncommercial Webcaster will receive a 

credit in the amount of the minimum fee 

against any royalties payable hereunder for 

the same calendar year for the same channel 

or station. In addition, an electing 

Noncommercial Microcaster also shall pay a 

$100 annual fee (the ‘‘Proxy Fee’’) to 

SoundExchange for the reporting waiver 

discussed in Section 5.1. Minimum fees and, 

where applicable, the Proxy Fee shall be paid 

by January 31 of each year. 

4.2 Royalty Rates 

(a) The nonrefundable minimum fee 

payable under Section 4.1 shall constitute 

full payment for Eligible Transmissions 

totaling not more than 159,140 aggregate 

tuning hours per month on the relevant 

channel or station. If, in any month, a 

Noncommercial Webcaster makes Eligible 

Transmissions on a channel or station in 

excess of 159,140 aggregate tuning hours, the 

Noncommercial Webcaster shall pay 

SoundExchange additional royalties for those 

Eligible Transmissions in excess of 159,140 

aggregate tuning hours at the following rates, 

subject to an election as provided in Section 

4.3: 

(i) 2006–2010: 

(a) $0.0002176 per performance; or 

(b) $0.00251 per ATH, except in the case 

of channels or stations where substantially 

all of the programming is reasonably 

classified as news, talk, sports or business 

programming, in which case the royalty rate 

shall be $.0002 (.02¢) per aggregate tuning 

hour; 

(ii) 2011–2015: 

Year 

Per 

performance 

rate 

2011 ...................................... $0.00057 

2012 ...................................... 0.00067 

2013 ...................................... 0.00073 

2014 ...................................... 0.00077 

2015 ...................................... 0.00083 

(b) For a transitional period, to enable 

Noncommercial Webcasters to implement 

systems that enable payment on a per 

performance basis, for years 2011–2013, the 

Noncommercial Webcaster may pay for those 

Eligible Transmissions in excess of 159,140 

aggregate tuning hours on an ATH basis, 

assuming 12 performances per hour, except 

in the case of channels or stations where 

substantially all of the programming is 

reasonably classified as news, talk, sports or 

business programming, in which case the 

Noncommercial Webcaster may assume one 

performance per hour, and calculate its 

payment based on the per performance rates 

in Section 4.2(a) above. In addition, in years 

2014–2015, for a Noncommercial Webcaster 

unable to calculate actual total performances 

and not required to report ATH or actual total 

performances under Section 5.3, the 

Noncommercial Webcaster may pay for those 

Eligible Transmissions in excess of 159,140 

aggregate tuning hours on an ATH basis 

using the estimates set forth in this provision 

and calculating its payment based on the per 

performance rates in Section 4.2(a) above. 

SoundExchange may distribute royalties paid 

on the basis of ATH hereunder in accordance 

with its generally applicable methodology for 

distributing royalties paid on such basis. 

(c) For the avoidance of doubt, a 

Noncommercial Webcaster shall calculate its 

aggregate tuning hours of Eligible 

Transmissions on each channel or station 

each month and shall pay any additional 

royalties owed for such month as provided 

above in this Section 4.2, but the 

Noncommercial Webcaster shall not owe any 

additional royalties for any subsequent 

months until such time as the 

Noncommercial Webcaster again exceeds the 

159,140 aggregate tuning hour threshold on 

any channel or station during a given month. 

4.3 Election of Per Performance or 

Aggregate Tuning Hour Rate. A 

Noncommercial Webcaster must consistently 

pay any additional royalties hereunder based 

on either the per performance royalties or the 

aggregate tuning hour royalties set forth in 

Section 4.2 for all of its channels and stations 

within any calendar year. The first time each 

year a Noncommercial Webcaster is required 

to pay additional royalties under Section 4.2, 

the Noncommercial Webcaster shall elect to 

pay all of its additional royalties under 

Section 4.2 for all of its channels and stations 

during the remainder of the year based on 

either the per performance royalties or the 

aggregate tuning hour royalties set forth in 

Section 4.2. Thus, for example, a 

Noncommercial Webcaster may not in one 

month when its Eligible Transmissions 

exceed 159,140 aggregate tuning hours 

calculate its additional royalties based on the 

per performance royalty and in another 

month calculate its additional royalties based 

on the aggregate tuning hour royalty. 

4.4 Ephemeral Royalty. The royalty 

payable under 17 U.S.C. 112(e) for any 

ephemeral reproductions made by a 

Noncommercial Webcaster and covered 

hereby is deemed to be included within the 

royalty payments set forth above. 

SoundExchange may allocate payments 

hereunder between the statutory licenses 

under Sections 112(e) and 114 in the same 

manner as statutory webcasting royalties for 

the period 2011–2015. 

4.5 Statements of Account. A 

Noncommercial Webcaster shall submit to 

SoundExchange a monthly statement of 

account identifying its aggregate tuning hours 

of Eligible Transmissions for the month, 

regardless of whether the Noncommercial 

Webcaster is obligated to pay additional 

royalties under Section 4.2. Statements of 

Account, together with any payments 

required by Section 4.2, shall be due by the 

45th day after the end of each month. Each 

statement of account shall identify (i) the 

name of the Noncommercial Webcaster, 

exactly as it appears on its notice of use, and 

(ii) if the statement covers a single AM or FM 

radio station only, the call letters of the 

station. 

4.6 Past Periods. Notwithstanding 

anything else in this Agreement, to the extent 

that a Noncommercial Webcaster that elects 

to be subject to these Rates and Terms has 

not paid royalties for all or any part of the 

period beginning on January 1, 2006, and 

ending on July 31, 2009, any amounts 

payable under these Rates and Terms for 

Eligible Transmissions during such period 

for which payment has not previously been 

made shall be paid by no later than 

September 15, 2009, and for purposes of 

Section 4.7, any such outstanding payments 

shall be considered due no earlier than July 

30, 2009. If a Noncommercial Webcaster has 

paid royalties to SoundExchange under the 

17 U.S.C. 112(e) and 114 statutory licenses 

that exceed the amount due under these 

Rates and Terms, SoundExchange shall credit 

the amount of such overpayment against 

anticipated future royalties owed by that 

Noncommercial Webcaster under these Rates 

and Terms. If the Noncommercial Webcaster 

reasonably anticipates that it will not incur 

royalty payment obligations under these 

Rates and Terms that exceed the amount of 

such overpayment on or before December 31, 

2010, SoundExchange shall return any excess 

amounts previously paid by that 

Noncommercial Webcaster. 

4.7 Late Fees. A Noncommercial 

Webcaster shall pay a late fee for each 

instance in which any payment, any 

Statement of Account or any report of use is 

not received by SoundExchange in 

compliance with these Rates and Terms and 

applicable regulations by the due date. The 

amount of the late fee shall be 1.5% of the 

late payment, or 1.5% of the payment 

associated with a late Statement of Account 

or report of use, per month, compounded 

monthly, or the highest lawful rate, 

whichever is lower. The late fee shall accrue 

from the due date of the payment, statement 

of account or report of use until a fullycompliant payment, statement of account or 

report of use is received by SoundExchange, 

provided that, in the case of a timely 

provided but noncompliant statement of 

account or report of use, SoundExchange has 

notified the Noncommercial Webcaster 

within 90 days regarding any noncompliance 

that is reasonably evident to SoundExchange. 

Article 5—Reporting 

5.1 In General. On an experimental basis, 

for purposes of these Rates and Terms only, 

and in light of the unique business and 

operational circumstances currently existing 

with respect to these Noncommercial 

Webcasters, these Rates and Terms require 

less than census reporting in certain 

circumstances and require full census 

reporting in other circumstances. 

SoundExchange hopes that offering 

graduated reporting options to electing 

Noncommercial Webcasters will promote 

compliance with statutory license obligations 

and thereby increase the pool of royalties 

available to be distributed to copyright 

owners and performers. 

5.2 Noncommercial Microcasters. 

Electing Noncommercial Microcasters shall 

not be required to provide reports of their use 

of sound recordings for Eligible 

Transmissions and related ephemeral 

recordings. The immediately preceding 

sentence applies even if the Noncommercial 

Microcaster actually makes Eligible 

Transmissions for the year exceeding 44,000 

aggregate tuning hours, so long as it qualified 


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as a Noncommercial Microcaster at the time 

of its election for that year. Instead, 

SoundExchange shall distribute the aggregate 

royalties paid by electing Noncommercial 

Microcasters based on proxy usage data in 

accordance with a methodology adopted by 

SoundExchange’s Board of Directors. In 

addition to minimum royalties hereunder, 

electing Noncommercial Microcasters shall 

pay to SoundExchange a $100 Proxy Fee to 

defray costs associated with this reporting 

waiver, including development of proxy 

usage data. SoundExchange hopes that 

selection of a proxy believed by 

SoundExchange to represent fairly the 

playlists of the smallest webcasters will 

allow payment to more copyright owners and 

performers than would be possible with any 

other reasonably available option. If it is 

practicable for a Noncommercial Webcaster 

to report its usage pursuant to Section 5.4, it 

may wish not to elect Noncommercial 

Microcaster status. 

5.3 Census Reporting for Services Paying 

Usage-Based Additional Royalties for 2011– 

2015. Beginning in 2011, a Noncommercial 

Webcaster must report its usage as provided 

in this Section 5.3 in the year following any 

year in which its average monthly Eligible 

Transmissions exceeds 159,140 aggregate 

tuning hours (i) on any channel or station 

over which it transmits Broadcast 

Retransmissions, or (ii) for all of its channels 

and stations over which it transmits other 

Eligible Transmissions in the aggregate. Such 

Noncommercial Webcasters shall submit 

reports of use in full compliance with thenapplicable regulations (presently 37 CFR 

370.3), except that notwithstanding the 

provisions of applicable regulations from 

time to time in effect, Noncommercial 

Webcasters shall submit reports of use on a 

census reporting basis (i.e., reports of use 

shall include every sound recording 

performed in the relevant quarter and the 

number of plays thereof) and may report on 

an aggregate tuning hour basis as set forth in 

5.4(a) below, and the provisions of Section 

5.5 shall apply. Such reports must be 

submitted for any such channel or station 

over which it transmits Broadcast 

Retransmissions, and for all of its channels 

and stations over which it transmits other 

Eligible Transmissions in the aggregate, if the 

same had average monthly Eligible 

Transmissions exceeding 159,140 aggregate 

tuning hours. For the avoidance of doubt, if 

a Noncommercial Webcaster providing 

reports on a census basis pursuant to this 

provision does not make average monthly 

Eligible Transmissions exceeding 159,140 

aggregate tuning hours on a channel or 

station for which it is submitting census 

reports pursuant to this section in a given 

calendar year, the Noncommercial Webcaster 

is entitled to revert to providing reports on 

a sample basis in accordance with Section 

5.4(b) (i.e., two weeks per calendar quarter) 

beginning in the following calendar year. 

5.4 Other Reporting by Noncommercial 

Webcasters. A Noncommercial Webcaster 

that is not a Noncommercial Microcaster and 

is not required to report its usage under 

Section 5.3 must report its usage as provided 

in this Section 5.4. Such Noncommercial 

Webcasters shall submit reports of use in 

compliance with then-applicable regulations 

(presently 37 CFR 370.3), except that 

notwithstanding the provisions of applicable 

regulations from time to time in effect: 

(a) Such Noncommercial Webcasters may 

report on an aggregate tuning hour basis (i.e., 

reporting their total ATH on a channel, 

program or station) in lieu of providing 

actual total performances. 

(b) Such Noncommercial Webcasters may 

report on a sample basis as presently 

provided in 37 CFR 370.3(c)(3) (i.e., reporting 

their usage for two weeks per calendar 

quarter). 

(c) The provisions of Section 5.5 shall 

apply. 

5.5 Detailed Requirements for Reports of 

Use. Notwithstanding the provisions of 

applicable regulations from time to time in 

effect, the following provisions shall apply to 

all reports of use required hereunder: 

(a) Noncommercial Webcasters shall 

submit reports of use to SoundExchange on 

a quarterly basis. 

(b) Noncommercial Webcasters shall 

submit reports of use by no later than the 

45th day following the last day of the quarter 

to which they pertain. 

(c) Noncommercial Webcasters that are 

broadcasters transmitting Broadcast 

Retransmissions shall either submit a 

separate report of use for each of their 

stations transmitting Broadcast 

Retransmissions, or a collective report of use 

covering all of their stations but identifying 

usage on a station-by-station basis. 

(d) Noncommercial Webcasters shall 

transmit each report of use in a file the name 

of which includes (i) the name of the 

Noncommercial Webcaster, exactly as it 

appears on its notice of use, and (ii) if the 

report covers a single AM or FM radio station 

only, the call letters of the station. 

Article 6—Additional Provisions 

6.1 Applicable Regulations. To the extent 

not inconsistent with the terms herein, use of 

sound recordings by Noncommercial 

Webcasters shall be governed by, and 

Noncommercial Webcasters shall comply 

with, applicable regulations, including 37 

CFR Parts 370 and 380. Without limiting the 

foregoing, the provisions of applicable 

regulations for the retention of records and 

verification of statutory royalty payments 

(presently 37 CFR 380.4(h) and 380.6) shall 

apply hereunder. Noncommercial Webcasters 

shall cooperate in good faith with any such 

verification, and the exercise by 

SoundExchange of any right with respect 

thereto shall not prejudice any other rights or 

remedies of SoundExchange or sound 

recording copyright owners. 

6.2 Participation in Proceedings. A 

Noncommercial Webcaster that elects to be 

subject to these Rates and Terms agrees that 

it has elected to do so in lieu of any different 

statutory rates and terms that may otherwise 

apply during any part of the 2006–2015 

period and in lieu of participating at any time 

in a proceeding to set rates and terms for any 

part of the 2006–2015 period. Thus, once a 

Noncommercial Webcaster has elected to be 

subject to these Rates and Terms, it shall not 

at any time directly or indirectly participate 

as a party, intervenor, amicus curiae or 

otherwise, or in any manner give evidence or 

otherwise support or assist except pursuant 

to a subpoena or other formal discovery 

request, in any further proceedings to 

determine royalty rates and terms for 

reproduction of ephemeral phonorecords or 

digital audio transmission under Section 

112(e) or 114 of the Copyright Act for all or 

any part of the period 2006–2015, including 

any appeal of the Final Determination, any 

proceedings on remand from such an appeal, 

any proceeding before the Copyright Royalty 

Judges to determine royalty rates and terms 

applicable to the statutory licenses under 

Sections 112(e) and 114 of the Copyright Act 

for the period 2011–2015, any appeal of such 

proceeding, or any other related proceedings. 

6.3 Use of Agreement in Future 

Proceedings. Noncommercial Webcasters and 

SoundExchange agree that neither the 

Webcaster Settlement Act nor any provisions 

of these Rates and Terms shall be admissible 

as evidence or otherwise taken into account 

in any administrative, judicial, or other 

government proceeding involving the setting 

or adjustment of the royalties payable for the 

public performance or reproduction in 

ephemeral phonorecords or copies of sound 

recordings, the determination of terms or 

conditions related thereto, or the 

establishment of notice or recordkeeping 

requirements by the Copyright Royalty 

Judges. These Rates and Terms shall be 

considered as a compromise motivated by the 

unique business, economic and political 

circumstances of Noncommercial 

Webcasters, copyright owners and performers 

rather than as matters that would have been 

negotiated in the marketplace between a 

willing buyer and a willing seller. No person 

or entity may, in any way, seek to use in any 

way these Rates and Terms in any such 

proceeding. 

6.4 Effect of Direct Licenses. Any 

copyright owner may enter into a voluntary 

agreement with any Noncommercial 

Webcaster setting alternative rates and terms 

governing the Noncommercial Webcasters’ 

transmission of copyrighted works owned by 

the copyright owner, and such voluntary 

agreement may be given effect in lieu of the 

Rates and Terms set forth herein. 

6.5 Default. A Noncommercial Webcaster 

shall comply with all the requirements of 

these Rates and Terms. If it fails to comply 

in all material respects with the requirements 

of these Rates and Terms, SoundExchange 

may give written notice to the 

Noncommercial Webcaster that, unless the 

breach is remedied within 30 days from the 

date of receipt of notice, the Noncommercial 

Webcaster’s authorization to make public 

performances and ephemeral reproductions 

under these Rates and Terms may be 

terminated upon further written notice. No 

such cure period shall apply before 

termination in case of material 

noncompliance that has been repeated 

multiple times so as to constitute a pattern 

of noncompliance, provided that 

SoundExchange has given repeated notices of 

noncompliance. Any transmission made by a 

Noncommercial Webcaster outside the scope 

of Section 112(e) or 114 or these Rates and 

Terms, or after the expiration or termination 

of these Rates and Terms shall be fully 


jlentini on DSKJ8SOYB1PROD with NOTICES
40628 Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Notices 

subject to, among other things, the copyright 

owners’ rights under 17 U.S.C. 106 and the 

remedies in 17 U.S.C. 501–506, and all 

limitations, exceptions and defenses 

available with respect thereto. 

Article 7—Miscellaneous 

7.1 Applicable Law. These Rates and 

Terms shall be governed by, and construed 

in accordance with, the laws of the District 

of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising under these 

Rates and Terms shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC, or if it 

does not have subject matter jurisdiction, in 

other courts located in Washington, DC. 

SoundExchange and Noncommercial 

Webcasters consent to the jurisdiction and 

venue of the foregoing courts and consent 

that any process or notice of motion or other 

application to said courts or a judge thereof 

may be served inside or outside the District 

of Columbia by registered mail, return receipt 

requested, directed to the person for which 

it is intended at its last known address (and 

service so made shall be deemed complete 

five (5) days after the same has been posted 

as aforesaid) or by personal service or in such 

other manner as may be permissible under 

the rules of that court. 

7.2 Rights Cumulative. The remedies 

provided in these Rates and Terms and 

available under applicable law shall be 

cumulative and shall not preclude assertion 

by any party of any other rights or the 

seeking of any other remedies against another 

party hereto. These Rates and Terms shall not 

constitute a waiver of any violation of 

Section 112(e) or 114 or their implementing 

regulations (except to the extent such 

implementing regulations are inconsistent 

with these Rates and Terms). No failure to 

exercise and no delay in exercising any right, 

power or privilege shall operate as a waiver 

of such right, power or privilege. Neither 

these Rates and Terms nor any such failure 

or delay shall give rise to any defense in the 

nature of laches or estoppel. No single or 

partial exercise of any right, power or 

privilege granted under these Rates and 

Terms or available under applicable law shall 

preclude any other or further exercise thereof 

or the exercise of any other right, power or 

privilege. No waiver by any party of full 

performance by another party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

these Rates and Terms and of obligations 

under applicable law thereafter. 

7.3 Entire Agreement. These Rates and 

Terms represent the entire and complete 

agreement between SoundExchange and a 

Noncommercial Webcaster with respect to 

their subject matter and supersede all prior 

and contemporaneous agreements and 

undertakings of SoundExchange and a 

Noncommercial Webcaster with respect to 

the subject matter hereof. 

[FR Doc. E9–19299 Filed 8–11–09; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL SCIENCE FOUNDATION 

Agency Information Collection 

Activities: Comment Request 

AGENCY: National Science Foundation. 

ACTION: Submission for OMB Review; 

Comment Request. 

SUMMARY: The National Science 

Foundation (NSF) has submitted the 

following information collection 

requirement to OMB for review and 

clearance under the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. This is the second notice for public 

comment; the first was published in the 

Federal Register at 74 FR 12153, and no 

substantial comments were received. 

NSF is forwarding the proposed renewal 

submission to the Office of Management 

and Budget (OMB) for clearance 

simultaneously with the publication of 

this second notice. The full submission 

may be found at: http:// 

www.reginfo.gov/public/do/PRAMain. 

Comments regarding (a) whether the 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; (b) the accuracy of the 

agency’s estimate of burden including 

the validity of the methodology and 

assumptions used; (c) ways to enhance 

the quality, utility and clarity of the 

information to be collected; or (d) ways 

to minimize the burden of the collection 

of information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology should be 

addressed to: Office of Information and 

Regulatory Affairs of OMB, Attention: 

Desk Officer for National Science 

Foundation, 725 17th Street, NW., Room 

10235, Washington, DC 20503, and to 

Suzanne Plimpton, Reports Clearance 

Officer, National Science Foundation, 

4201 Wilson Boulevard, Suite 295, 

Arlington, Virginia 22230 or send e-mail 

to splimpto@nsf.gov. Comments 

regarding these information collections 

are best assured of having their full 

effect if received within 30 days of this 

notification. Copies of the submission(s) 

may be obtained by calling 703–292– 

7556. 

FOR FURTHER INFORMATION CONTACT: 

Written comments regarding the 

information collection and requests for 

copies of the proposed information 

collection request should be addressed 

to Suzanne Plimpton, Reports Clearance 

Officer, National Science Foundation, 

4201 Wilson Blvd., Rm. 295, Arlington, 

VA, 22230, or by e-mail to 

splimpto@nsf.gov. 

NSF may not conduct or sponsor a 

collection of information unless the 

collection of information displays a 

currently valid OMB control number 

and the agency informs potential 

persons who are to respond to the 

collection of information that such 

persons are not required to respond to 

the collection of information unless it 

displays a currently valid OMB control 

number. 

SUPPLEMENTARY INFORMATION: Title of 

Collection: Research in Disabilities 

Education Program On-Line Project Data 

Management System. 

OMB Control No.: 3145–0164. 

Abstract 

The National Science Foundation 

(NSF) requests a reinstatement of the 

information collection for the Program 

for Persons with Disabilities, now called 

the Research in Disabilities Education 

(RDE) program. This on-line, annual 

data collection will describe and track 

the impact of RDE program funding on 

Nation’s science, technology, 

engineering and mathematics (STEM) 

education and STEM workforce. 

NSF funds grants, contracts, and 

cooperative agreements to colleges, 

universities, and other eligible 

institutions, and provides graduate 

research fellowships to individuals in 

all parts of the United States and 

internationally. The Directorate for 

Education and Human Resources (EHR), 

a unit within NSF, promotes rigor and 

vitality within the Nation’s STEM 

education enterprise to further the 

development of the 21st century’s STEM 

workforce and public scientific literacy. 

EHR does this through diverse projects 

and programs that support research, 

extension, outreach, and hands-on 

activities serving STEM learning and 

research at all institutional (e.g. preschool through postdoctoral) levels in 

formal and informal settings; and 

individuals of all ages (birth and 

beyond). The RDE program focuses 

specifically on broadening the 

participation and achievement of people 

with disabilities in all fields of STEM 

education and associated professional 

careers. The RDE program has been 

funding this objective since 1994 under 

the prior name Program for Persons with 

Disabilities. Particular emphasis is 

placed on contributing to the knowledge 

base by addressing disability related 

differences in secondary and postsecondary STEM learning and in the 

educational, social and pre-professional 

experiences that influence student 

interest, academic performance, 

retention in STEM degree programs, 


jlentini on DSKJ8SOYB1PROD with NOTICES