52418 Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Rules and Regulations 

List of Subjects 

33 CFR Part 155 

Alaska, Hazardous substances, Oil 

pollution, Reporting and recordkeeping 

requirements. 

33 CFR Part 157 

Cargo vessels, Incorporation by 

reference, Oil pollution, Reporting and 

recordkeeping requirements. 

46 CFR Part 162 

Fire prevention, Incorporation by 

reference, Marine safety, Oil pollution, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, the interim rule 

amending 33 CFR parts 155 and 157 and 

46 CFR part 162, which was published 

at 74 FR 3377 on January 16, 2009, as 

amended by the correction published at 

74 FR 6358 on February 9, 2009, is 

adopted as a final rule with the 

following changes: 

TITLE 33—NAVIGATION AND 

NAVIGABLE WATERS 

PART 155—OIL OR HAZARDOUS 

MATERIAL POLLUTION PREVENTION 

REGULATIONS FOR VESSELS 

■ 1. The authority citation for part 155 

continues to read as follows: 

Authority: 33 U.S.C. 1231, 1321(j); 46 

U.S.C. 3703; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; Department of 

Homeland Security Delegation No. 0170.1. 

Sections 155.100 through 155.130, 150.350 

through 155.400, 155.430, 155.440, 155.470, 

155.1030(j) and (k), and 155.1065(g) are also 

issued under 33 U.S.C. 1903(b). Section 

155.490 also issued under section 4110(b) of 

Public Law 101–380. Sections 155.1110 

through 155.1150 also issued under 33 U.S.C. 

2735. 

Note: Additional requirements for vessels 

carrying oil or hazardous materials are 

contained in 46 CFR parts 30 through 40, 

150, 151, and 153. 

■ 2. In § 155.350, revise paragraph (a)(3) 

to read as follows: 

§ 155.350 Oily mixture (bilge slops)/fuel oil 

tank ballast water discharges on 

oceangoing ships of less than 400 gross 

tons. 

(a) * * * 

(3) For equipment installed after 2004 

to be approved under paragraph (a)(2) of 

this section, it must meet current 

standards in 46 CFR part 162, subpart 

162.050 by the date set forth in 

paragraphs (a)(3)(i) and (a)(3)(ii) of this 

section, unless the equipment is 

installed on a ship constructed before 

2005 and it would be unreasonable or 

impracticable to meet those current 

standards. 

(i) A ship entering international 

service for the first time since 2004, 

must comply with the requirements of 

paragraph (a)(3) of this section by the 

date of its initial survey prior to 

receiving its International Oil Pollution 

Prevention (IOPP) certificate. 

(ii) Any ship, other than a ship 

described in paragraph (a)(3)(i) of this 

section, must comply with the 

requirements of paragraph (a)(3) of this 

section by the date of the ship’s first 

drydock after October 13, 2009. 

* * * * * 

■ 3. In § 155.360, revise paragraph (a)(2) 

to read as follows: 

§ 155.360 Oily mixture (bilge slops) 

discharges on oceangoing ships of 400 

gross tons and above but less than 10,000 

gross tons, excluding ships that carry 

ballast water in their fuel oil tanks. 

(a) * * * 

(2) For equipment installed after 2004 

to be approved under paragraph (a)(1) of 

this section, it must meet current 

standards in 46 CFR part 162, subpart 

162.050 by the date set forth in 

paragraphs (a)(2)(i) and (a)(2)(ii) of this 

section, unless the equipment is 

installed on a ship constructed before 

2005 and it would be unreasonable or 

impracticable to meet those current 

standards. 

(i) A ship entering international 

service for the first time since 2004, 

must comply with the requirements of 

paragraph (a)(2) of this section by the 

date of its initial survey prior to 

receiving its International Oil Pollution 

Prevention (IOPP) certificate. 

(ii) Any ship, other than a ship 

described in paragraph (a)(2)(i) of this 

section, must comply with the 

requirements of paragraph (a)(2) of this 

section by the date of the ship’s first 

drydock after October 13, 2009. 

* * * * * 

■ 4. In § 155.370, revise paragraph (a)(4) 

to read as follows: 

§ 155.370 Oily mixture (bilge slops)/fuel oil 

tank ballast water discharges on 

oceangoing ships of 10,000 gross tons and 

above and oceangoing ships of 400 gross 

tons and above that carry ballast water in 

their fuel oil tanks. 

(a) * * * 

(4) For equipment installed after 2004 

to be approved under paragraph (a) of 

this section, it must meet current 

standards in 46 CFR part 162, subpart 

162.050 by the date set forth in 

paragraphs (a)(4)(i) and (a)(4)(ii) of this 

section, unless the equipment is 

installed on a ship constructed before 

2005 and it would be unreasonable or 

impracticable to meet those current 

standards. 

(i) A ship entering international 

service for the first time since 2004, 

must comply with the requirements of 

paragraph (a)(4) of this section by the 

date of its initial survey prior to 

receiving its International Oil Pollution 

Prevention (IOPP) certificate. 

(ii) Any ship, other than a ship 

described in paragraph (a)(4)(i) of this 

section, must comply with the 

requirements of paragraph (4) of this 

section by the date of the ship’s first 

drydock after October 13, 2009. 

* * * * * 

Dated: October 7, 2009. 

J.G. Lantz, 

Director of Commercial Regulations and 

Standards, U.S. Coast Guard. 

[FR Doc. E9–24670 Filed 10–9–09; 8:45 am] 

BILLING CODE 4910–15–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 370 

[Docket No. RM 2008–7] 

Notice and Recordkeeping for Use of 

Sound Recordings Under Statutory 

License 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Royalty Judges 

are issuing final regulations for the 

delivery and format of reports of use of 

sound recordings for the statutory 

licenses set forth in sections 112 and 

114 of the Copyright Act. 

DATES: Effective Date: November 12, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Richard Strasser, Senior Attorney, or 

Gina Giuffreda, Attorney Advisor, by 

telephone at (202) 707–7658 or e-mail at 

crb@loc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 6, 2006, the Copyright 

Royalty Judges (‘‘Judges’’) issued 

interim regulations published in the 

Federal Register for the delivery and 

format of reports of use of sound 

recordings for the statutory licenses set 

forth in sections 112 and 114 of the 

Copyright Act. 71 FR 59010. The goal of 

those interim regulations was to 

establish format and delivery 

requirements for reports of use so that 

royalty payments to copyright owners 

pursuant to section 112 and 114 licenses 

could be made from April 1, 2004, 


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1These terms include: (1) Notice of Use, (2) 

Service, (3) Preexisting Subscription Service, (4) 

New Subscription Service, (5) Nonsubscription 

Transmission Service, (6) Preexisting Satellite 

Digital Audio Radio Service, (7) Business 

Establishment Service, (8) Collective and (9) Report 

of Use. In the interest of administrative efficiency, 

the Judges proposed a new § 370.1, General 

Definitions, to provide definitions for these nine 

terms that would apply generally throughout Part 

370, unless otherwise specifically indicated. 

forward based upon actual data on the 

sound recordings transmitted by digital 

audio services. During the interval since 

the Judges issued the interim 

regulations, the Judges have monitored 

the operation of these regulations as 

well as developments in recordkeeping 

requirements agreed upon by parties to 

various settlements relating to the use of 

section 112 and 114 licenses. 

Subsequently, on December 30, 2008, 

the Judges published a notice of 

proposed rulemaking (‘‘NPRM’’) setting 

forth proposed revisions to the interim 

regulations adopted in October 2006. 73 

FR 79727. The most significant revision 

proposed by the Judges was to expand 

the reporting period to implement yearround census reporting. Further, on 

April 8, 2009, the Judges published a 

notice of inquiry (‘‘NOI’’) to obtain 

additional information concerning the 

likely costs and benefits stemming from 

the adoption of the proposed census 

reporting provision as well as 

information on any alternatives to the 

proposal that might accomplish the 

same goals as the proposal in a less 

burdensome way, particularly with 

respect to small entities. 74 FR 15901. 

With the issuance of today’s regulations, 

the Judges establish requirements for 

census reporting for all but those 

broadcasters who pay no more than the 

minimum fee for their use of the license. 

The Judges are adopting these 

regulations substantially as proposed in 

the NPRM with minor modifications in 

response to comments received. These 

final regulations establish requirements 

by which copyright owners may receive 

reasonable notice of the use of their 

sound recordings and under which 

records of use shall be kept and made 

available by entities of all sizes 

performing sound recordings. See, e.g., 

17 U.S.C. 114(f)(4)(A). As with the 

interim regulations adopted in 2006, 

today’s final regulations represent 

baseline requirements. In other words, 

digital audio services are free to 

negotiate other formats and technical 

standards for data maintenance and 

delivery and may use those in lieu of 

regulations adopted by the Judges, upon 

agreement with the Collective. We have 

no intention of codifying these 

negotiated variances in the future unless 

and until they come into such 

standardized use as to effectively 

supersede the existing regulations. 

II. This Proceeding 

The Judges’ December 30, 2008, 

NPRM set forth proposed revisions to 

the regulations governing the format and 

delivery requirements for reports of use 

of sound recordings that provided for 

three potential categories of change. 

First, the Judges proposed eliminating 

obsolete provisions of the interim 

regulations. Second, the Judges 

proposed placing definitions that were 

duplicated in various sections of the 

interim regulations into a new single 

definition section applicable throughout 

Part 370 unless otherwise defined in a 

specific section. Third, the Judges 

proposed expanded reporting to 

implement year-round census reporting. 

In connection with this expanded 

census reporting, the Judges proposed 

eliminating the aggregate tuning hours 

(‘‘ATH’’) approach previously available 

for nonsubscription services and 

requiring that such services now report 

actual total performances (‘‘ATP’’). 

However, the Judges proposed allowing 

pre-existing satellite digital audio radio 

services, new subscription services and 

business establishment services to 

achieve census reporting by continuing 

their use of the ATH option if 

technological impediments existed 

which thwarted the measurement of 

actual listenership. 73 FR 79727. In 

addition to these specific proposals, the 

Judges also solicited comments on 

technological developments which 

might warrant additional revisions to 

rules governing the method of reporting 

specific data elements and/or the 

delivery mechanism employed for 

reporting. 

In response to the NPRM, the Judges 

received 43 comments from various 

categories of interested parties: (1) 

Representatives of copyright owners and 

performers, including SoundExchange, 

the Collective charged with collecting 

and distributing royalties; (2) copyright 

users and/or their representatives, 

including the National Association of 

Broadcasters (‘‘NAB’’), College 

Broadcasters Inc. (‘‘CBI’’), Intercollegiate 

Broadcasting System (‘‘IBS’’), various 

radio broadcasters affiliated with 

educational institutions, a 

noncommercial religious broadcaster, 

and an operator of radio and Internet 

stations featuring Christian 

programming; an Internet service that 

simulcasts the over-the-air and Internetonly broadcasts of primarily 

noncommercial terrestrial radio stations; 

and (3) several software providers of 

recordkeeping solutions to radio 

stations and Webcasters. 

Most of the comments received from 

interested parties centered on the 

proposed move to full census ATP 

reporting. Comments focused on the 

technological reporting capabilities of 

small entities or less intensive users 

(particularly, users associated with 

educational institutions), as well as on 

various assertions about the costs and 

benefits of moving to full census ATP 

reporting for such users. Consequently, 

the Judges’ April 8, 2009, NOI sought to 

obtain additional, more concrete 

information concerning the likely costs 

and benefits stemming from the 

adoption of the proposed census 

reporting provision as well as 

information on any alternatives to the 

proposal that might accomplish the 

same goals as the proposal in a less 

burdensome way, particularly with 

respect to small entities. 74 FR 15901. 

In response to the NOI, the Judges 

received 14 comments and 6 reply 

comments from the following categories 

of interested parties: (1) Representatives 

of copyright owners and performers, 

including SoundExchange; (2) copyright 

users and/or their representatives and 

allied interested parties, including the 

NAB, CBI, IBS, the National Federation 

of Community Broadcasters (‘‘NFCB’’), 

various radio broadcasters affiliated 

with educational institutions, the 

American Council on Education 

(‘‘ACE’’); and (3) a software provider of 

recordkeeping solutions to radio 

stations and Webcasters. 

III. Obsolete Provisions and General 

Definitions 

Obsolete provisions proposed for 

deletion by the Judges in their December 

30th NPRM raised no concerns for 

commenting parties. Similarly, the 

deletion of duplicative definitions for 

nine common terms that appeared in 

various sections of the interim 

regulation and their replacement by a 

single definition for each of the nine 

terms in a new General Definitions 

section at the head of the proposed 

regulation 1 proved noncontroversial. 

Therefore, given the efficiency gains 

these changes will bring users, the 

Judges adopt the changes as proposed in 

the December 30, 2008, NPRM at 73 FR 

79728. 

IV. Reports of Use Content and 

Reporting Period; Census Reporting 

Current requirements for the data to 

be included in reports of use and the 

frequency of reporting still largely 

reflect interim regulations adopted on 

March 11, 2004 (69 FR 11515) by the 

Copyright Office during an earlier phase 

of the recordkeeping rulemaking process 

that predated the transfer of rulemaking 


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2Currently, services must provide the total 

number of performances of each sound recording 

during the relevant reporting period. However, the 

relevant reporting period is limited to two periods 

of seven consecutive days for each calendar quarter 

of the year. This results in an estimate of the use 

of a sound recording rather than a report of actual 

use. 

3The final rule eliminates the aggregate tuning 

hours approach to reporting previously available to 

nonsubscription services. It should be noted that 

the aggregate tuning hours payment alternative to 

the per performance rate available to certain 

Webcasters was phased out at the end of the 2007 

calendar year. Digital Performance Right in Sound 

Recordings and Ephemeral Recordings Final Rule, 

72 FR 24096 n.33. 

4This alternative requires an estimate of census 

reporting by means of reporting the following data 

for each reporting period: Aggregate tuning hours, 

channel or program name and play frequency. 

5 It should be noted that in the recent preexisting 

satellite digital audio radio service (‘‘SDARS’’) 

ratemaking proceeding, the collective 

(SoundExchange) requested that the recordkeeping 

regulations be amended to require census reporting 

and the services did not object to census reporting 

in general so long as the reporting exceptions 

currently found in § 370.3(b)(8)(i)–(iii) were 

retained. Determination of Rates and Terms for 

Preexisting Subscription Services and Satellite 

Digital Audio Radio Services Final Rule and Order, 

73 FR 4101 (January 24, 2008). The Judges’ final 

recordkeeping rule retains those exceptions in the 

new § 370.4(b)(3)(i)–(iii) adopted today. 

authority to the Judges pursuant to the 

Copyright Royalty and Distribution 

Reform Act of 2004. The Copyright 

Office in its interim regulations 

determined to phase in the new 

reporting process by requiring periodic 

reporting of sound recording 

performances, although the Copyright 

Office noted that: ‘‘[O]nce final 

regulations are implemented, yearround census reporting is likely to be 

the standard measure rather than the 

periodic reporting that will now be 

permitted on an interim basis.’’ 69 FR 

11526. Such census reporting provides 

a more complete record on which to 

base payments for the use of sound 

recordings compared to periodic 

reporting.2 After providing users with 

ample time—some five years—to 

familiarize themselves with the methods 

of acquiring and keeping the necessary 

data for compliance, the Judges now 

adopt a final regulation adopting census 

reporting for all but the lowest intensity 

users of sound recordings in a single 

category of users—broadcasters 

typically engaged in simulcasting their 

over-the-air broadcasts on the Web. All 

other nonsubscription services, such as 

pure play Webcasters, are required to 

provide full reporting of the actual total 

performances of the sound recording for 

each reporting period during the year.3

To the extent that technological 

impediments to measuring actual 

listenership continue to hamper actual 

listenership measurement with respect 

to each sound recording for preexisting 

satellite digital audio radio services, 

new subscription services or business 

establishment services, the alternative of 

census reporting by means of a 

construct utilizing aggregate tuning 

hours 4 is maintained for such services.5

A number of the most intensive users 

of the 114 and 112 licenses are already 

reporting on a census basis according to 

SoundExchange. See Comments of 

SoundExchange, Docket No. RM 2008– 

7 at 5–6 (January 29, 2009); Comments 

of SoundExchange, Docket No. RM 

2008–7 at 15–20 (May 26, 2009). 

Further, the fact that many of the largest 

commercial Webcasters and other 

intensive users such as satellite radio 

have not filed comments in this 

proceeding clearly indicates an absence 

of controversy among more intensive 

users concerning the Judges’ proposed 

census reporting regulations. Rather, 

many of the comments focused on the 

impact of the NPRM on less-intensive 

users such as a number of 

noncommercial broadcasters affiliated 

with educational institutions. 

Both commercial and noncommercial 

broadcasters that are low-intensity users 

who typically simulcast over the Web 

appear to share a common technological 

characteristic–anachronistic systems or 

procedures that are not designed for 

easily reporting data on sound 

recordings simultaneously played as a 

Webcast. See, e.g., Comments of the 

National Association of Broadcasters, 

Docket No. RM 2008–7 at 8–9 (January 

29, 2009); Comments of the National 

Association of Broadcasters, Docket No. 

RM 2008–7 at 5 (May 26, 2009). For 

example, in some cases, the manual 

play of music without the aid of a 

computer hampers the effective 

collection of information on the usage of 

sound recordings. See, e.g., Comments 

of the National Association of 

Broadcasters, Docket No. RM 2008–7 at 

9 (January 29, 2009); Comments from 

Tom Worster and Spinitron, Docket No. 

RM 2008–7 at 3–4 (January 29, 2009); 

Reply Comments of the American 

Council on Education, Docket No. RM 

2008–7 at 2 (June 8, 2009). 

While the absence of automated 

playlists represents one particular 

approach followed by some broadcasters 

for a variety of reasons-sometimes 

creative, sometimes pedagogical, and 

sometimes financially driven (See, e.g., 

Comments of the National Association 

of Broadcasters, Docket No. RM 2008–7 

at 8–9 (January 29, 2009); Comments of 

the National Association of 

Broadcasters, Docket No. RM 2008–7 at 

4–5 (May 26, 2009); Comments of 

University of California NCE Broadcast 

Radio Stations and Associated College 

and University Broadcasters Who 

Simulcast, Docket No. RM 2008–7 at 3 

(May 26, 2009); Comments of WSOU– 

FM, Docket No. RM 2008–7 at 3–4 (May 

26, 2009))—these reasons do not 

necessarily overlap. For example, some 

low-intensity simulcasters who 

maintain partial or fully manual 

playlists may well be affiliated with 

large, financially well-endowed 

educational institutions and those 

institutions may claim to be training 

future broadcasters irrespective of the 

broadcast industry trend toward the 

adoption of automated programming; 

yet, they may choose to continue 

manual programming to allow their 

students more room to pursue a more 

creative approach to playing music 

either as part of a structured learning 

experience or as part of a less structured 

extracurricular experience. Thus, even 

in those instances where an educational 

institution’s financial resources appear 

fully capable of providing for more 

investment in newer technology for 

proper recordkeeping and reporting 

under the Copyright Act, the 

educational institution may have little 

incentive to make such investments 

given the relatively unimportant stature 

of the activity in its overall mission. As 

a result, from the user’s standpoint in 

such situations, there may appear to be 

a reasonable relationship between the 

low intensity use of Webcasting and the 

amount of resources the noncommercial 

broadcasting entity is willing to invest 

in the effort. 

Some parallel exists in a commercial 

setting where small broadcasters with 

limited resources may engage small 

numbers of listeners through simulcasts 

on the Web of their over-the-air 

programming, but may not find such 

listenership sufficiently rewarding to 

make an immediate investment in 

adapting their old technology to permit 

easier recordkeeping. Here again, from 

the user’s standpoint, there may be a 

reasonable relationship between the 

very low intensity use of Webcasting 

and the amount of resources the 

broadcasting entity is willing to invest 

in the effort. However, in the 

commercial case, broadcasters who do 

not adapt in the long run will fail as 

commercial entities to achieve the 

critical mass necessary to justify their 

presence on the Web. Therefore, they 

ultimately have a strong financial 

incentive to become more than very low 

intensity users, adapt their technology, 

ultimately achieve the same capabilities 

as their competitors on the Web and, in 

the process, attain comparable 

capabilities for full census reporting. 

Indeed, this process has been 


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6Broadcasters, as used in the NABSoundExchange settlement, do not include 

noncommercial Webcasters as they are defined in 

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

7 ‘‘Small Webcasters’’ in the NAB-SoundExchange 

settlement generally refers to those broadcasters 

who make eligible transmissions of less than 27,777 

aggregate tuning hours in a given year. This level 

of actual transmissions in a given year, under the 

rate provisions of the settlement, appears likely to 

be largely covered by the credit obtained by the 

broadcaster towards usage upon payment of the 

$500 per channel minimum fee under the 

settlement. In other words, where usage clearly 

exceeds the minimum fee credit, census reporting 

typically applies. 

8No comments were received from any pure 

commercial Webcaster claiming to be similarly 

situated. 

9The Corporation for Public Broadcasting 

(‘‘CPB’’) in its recent settlement with 

SoundExchange, pursuant to the Webcaster 

Settlement Act of 2008, has agreed on behalf of its 

covered entities to ‘‘cooperate in good faith with 

efforts by SoundExchange to develop and test a 

technological solution that facilitates reporting.’’ 

See 74 FR 9298 (March 3, 2009). 

recognized by the NAB and 

SoundExchange in their recent 

settlement pursuant to the Webcaster 

Settlement Act of 2008 (Pub. L. 110– 

435, 122 Stat. 4974), where they agreed 

to reporting requirements applicable to 

commercial broadcasters 6 that require 

census reporting for all but a small 

group of low-intensity users that qualify 

for a ‘‘small broadcaster’’ status.7 See 74 

FR 9301 (March 3, 2009). Such ‘‘small 

broadcasters’’ are not subject to the full 

census reporting applicable to other 

broadcasters in recognition of the 

‘‘unique business and operational 

circumstances currently existing with 

respect to these entities’’ and are 

granted this exception to the general 

rule ‘‘on a transitional basis for a limited 

time.’’ 74 FR 9301. Some of the 

operating circumstances that 

differentiate low-intensity commercial 

broadcasters from other low-intensity 

commercial Webcasters include the 

former’s continued use of disparate 

systems not designed in the first 

instance to provide sound recording 

performance data and their inability as 

small entities to quickly pay for the 

costs of renovating such systems.8 See 

Comments of the National Association 

of Broadcasters, Docket No. RM 2008–7 

at 4–5 (May 26, 2009). 

By contrast, many low-intensity 

noncommercial broadcasters do not 

have similarly pressing financial 

incentives or, indeed, may only be 

secondarily motivated by financial 

considerations as noted above. 

Therefore, for low-intensity 

noncommercial broadcasters, the 

transition from old technological 

equipment and approaches may well 

proceed at a slower pace until such time 

as the activity in question generates 

more support in terms of its relative 

position in the overall mission of the 

affiliated institution. This is not to say 

that a permanent exception to the 

census reporting rule for low-intensity 

noncommercial broadcasters is in order. 

Clearly, the failure to report the full 

actual number of performances of a 

sound recording is at odds with the 

purpose of the recordkeeping 

requirement to the extent that, as a 

result, many sound recordings are 

under-compensated or not compensated 

at all from the section 114 and 112 

royalties. Yet, at the same time, the lowintensity noncommercial broadcaster, 

by definition, does not enjoy the same 

pecuniary benefit from the use of the 

sound recordings at issue in this 

proceeding as does the low-intensity 

commercial broadcaster. Aggregate 

payments owed by low-intensity 

noncommercial broadcasters are 

dwarfed by payments by other users. 

Therefore, the tension between the 

relative cost of potential 

undercompensation to copyright owners 

and the relative cost of replacing 

outmoded systems employed by the 

low-intensity noncommercial 

broadcaster appears best resolved by 

allowing low-intensity noncommercial 

broadcasters to continue to report 

estimated usage on a quarterly basis in 

the same manner as under previous 

requirements until such time as either a 

reasonably priced technological solution 

is developed to facilitate census 

reporting under their current 

operational configurations and 

practices 9 or where such 

noncommercial broadcasters finally 

move to more state-of-the art technology 

and practices. 

Despite recognizing that there may be 

situations in which some low-intensity 

noncommercial broadcasters are not in 

a position to provide census reporting, 

SoundExchange nonetheless urges the 

adoption of census reporting as the 

default rule in this proceeding. The 

Judges decline to do so for this narrow 

class of users. While the rate of progress 

toward achieving census reporting 

capabilities among low-intensity 

noncommercial broadcasters is 

frustratingly slow, it would be 

unreasonable to adopt a regulation that 

may well reduce the ability of such 

users to submit reports beyond even 

their current level of effort. Such an 

action may also raise the transactions 

costs for both users and the Collective. 

Neither of these two results would inure 

to the benefit of copyright owners. 

Most educationally affiliated 

noncommercial broadcasters and/or 

their representatives initially urged the 

Judges to allow them to continue to 

report two weeks out of every quarter 

and to continue to use ATH as a 

reporting alternative to ATP. See, e.g., 

Comments of University of California 

NCE Broadcast Radio Stations and 

Associated College and University 

Broadcasters Who Simulcast, Docket 

No. RM 2008–7 at 3 (January 28, 2009); 

Supplemental Comments of Harvard 

Radio Broadcasting Company, Docket 

No. RM 2008–7 at 22 (May 26, 2009). In 

particular, many of these comments 

urged the continuation of the two-week 

sampling approach with ATH reporting 

‘‘for educational stations paying only 

the minimum fee’’—i.e., for the lowest 

intensity users. See, e.g., Comments of 

Collegiate Broadcasters, Inc., Docket No. 

RM 2008–7 at 29 (May 26, 2009). 

However, some subsequent comments 

urged the Judges to consider, at least in 

the alternative, rolling back even the 

current two-week sampling requirement 

in favor of a complete reporting 

exemption for minimum fee users 

willing to pay an additional $100 ‘‘data 

proxy fee’’ annually. See, e.g., Reply 

Comments of Collegiate Broadcasters, 

Inc., Docket No. RM 2008–7 at 11, 16 

(June 8, 2009). Supplemental Reply 

Comments of Harvard Radio 

Broadcasting Company, Docket No. RM 

2008–7 at 20 (June 8, 2009). 

We do not agree that an additional 

data proxy fee in lieu of any reporting 

obligation represents a reasonable 

alternative to the continuation of the 

two-week sampling approach with ATH 

reporting for educational stations paying 

only the minimum fee. The data proxy 

fee alternative as proposed here 

represents a step backward in achieving 

better accuracy in reporting. As a result, 

it makes undercompensation stemming 

from inaccurate reporting even more 

problematic, inasmuch as it is the lowintensity educational station user that 

both such users and the Collective agree 

plays more diverse sound recordings. 

See, e.g., Supplemental Reply 

Comments of Harvard Radio 

Broadcasting Company, Docket No. RM 

2008–7 at 20 (June 8, 2009). Because of 

such greater diversity, many more 

sound recording copyright owners may 

well forfeit a distribution of earned 

royalties when their use is not reported 

at all. See, e.g., Reply Comments of 

SoundExchange, Inc., Docket No. RM 

2008–7 at 2 (June 8, 2009) (‘‘These 

services do not pay very much in 

royalties, but what they pay may be the 

only statutory royalties earned by the 

copyright owners and performers of 

many obscure recordings.’’). In short, it 

is hardly reasonable to propose a 

complete exemption from even the 


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10For example, there will be no differential 

impact on low-intensity, minimum fee broadcasters 

since the interim reporting regulation remains 

unchanged in the final regulation for such users. 

existing sample-based recordkeeping 

requirements, for even if the current 

requirements produce results that are 

less than perfectly accurate as collected, 

observed and administered, they at least 

provide some rational basis for royalty 

distribution to owners and performers 

who would otherwise be completely 

shut out of the royalty distribution 

process notwithstanding the use of their 

works. 

The expanded scope of census 

reporting adopted in the final regulation 

also gave rise to two ancillary changes. 

One is a minor, noncontroversial change 

to harmonize references to the 

frequency of report delivery with the 

reporting period. That is, in those 

instances where monthly reports of use 

are required, the corresponding 

reporting period is defined as one 

month; and, in those cases where 

quarterly reports of use are maintained 

as the requirement, the corresponding 

reporting period is defined as one 

quarter. Second, a change to the 

previously existing rate category codes 

was required in the new § 370.4(d)(2)(ii) 

adopted today so as to prevent 

inconsistencies with different categories 

used during prior reporting periods. 

SoundExchange proposed the use of a 

new list of category codes with the 

addition of language indicating that the 

Collective ‘‘may from time to time 

publish an updated list of categories 

then applicable under the Webcaster 

Settlement Act or regulations, and 

Services shall identify the most specific 

category then applicable to them.’’ See 

Comments of SoundExchange, Docket 

No. RM 2008–7, Proposed Regulations 

Exhibit A at 6 (January 29, 2009). On the 

other hand, another proposal instead 

recommends obsoleting and reserving 

the 2006 codes which would be no 

longer used going forward, while 

maintaining the same 2006 codes for 

categories which have not changed. See 

Comments from Tom Worster and 

Spinitron, Docket No. RM 2008–7 at 7 

(January 29, 2009). The Spinitron 

proposal is supported by the NAB as 

promoting more clarity for users. See 

Comments of the National Association 

of Broadcasters, Docket No. RM 2008–7 

at 6, (May 26, 2009). Because the Judges 

agree that this latter approach makes 

clear that anyone previously reporting 

under one of the obsolete codes must 

choose another one, we adopt the 

proposal put forward by Tom Worster 

on behalf of Spinitron as part of this 

final regulation. 

V. Additional Revisions Proposed by 

the Parties 

In addition to the specific 

recordkeeping regulatory changes 

proposed by the Judges in the December 

2008 NPRM, the Judges solicited 

comments on any technological 

developments that pointed to the need 

for further adjustment of the rules either 

in terms of the method of reporting 

specific data elements or with respect to 

the delivery mechanism employed for 

reporting. For example, the Judges 

specifically inquired as to what further 

improvements to the reporting 

regulations could be made in light of 

recent technological developments since 

the promulgation of the interim 

regulation, the new availability of 

reporting software or the advent of 

substantially reduced costs for certain 

delivery mechanism alternatives. 

While approximately 18 proposals for 

additional regulatory changes beyond 

those proposed in the December 30, 

2008 NPRM were submitted by 

SoundExchange, users and other 

interested parties, a number of the 

additional proposals went beyond the 

scope of the Judges’ specific inquiry. 

That is, such proposals did not reflect 

technological developments which 

might warrant additional revisions to 

rules governing the method of reporting 

specific data elements and/or the 

delivery mechanism being employed for 

reporting. For example, SoundExchange 

proposed the addition of late fees for 

incomplete or tardy reports of use; or, as 

another example, Frederick Wilhelms III 

proposed the addition of various detail 

to the Collective’s annual report 

requirements. See Comments of 

SoundExchange, Docket No. RM 

2008–7 at 30–32 (January 29, 2009); 

Comments of Frederick Wilhelms III, 

Docket No. RM 2008–7 at 8–9 

(January 27, 2009). 

Other proposals, such as 

SoundExchange’s request for the 

delineation of a separate certification 

form provided by SoundExchange to 

accompany the report of use (See 

Comments of SoundExchange, Docket 

No. RM 2008–7 at 30–32 (January 29, 

2009)) generated significant controversy 

concerning the design process and/or 

contents of the proposed new form, 

indicating that such proposals not only 

were likely beyond the scope of the 

Judges’ specific technological change 

inquiry, but also not yet likely ripe for 

determination. See, e.g., Comments of 

National Association of Broadcasters, 

Docket No. RM 2008–7 at 5–6 (May 26, 

2009); Reply Comments of 

SoundExchange, Docket No. RM 

2008–7 at 13 (June 8, 2009). Similarly, 

SoundExchange’s proposal to require 

nonsubscription services to provide 

copyright owner information in exactly 

the same form as it appears in the 

commercially released product met with 

objections as to practicality for some 

users that merit more detailed 

consideration than the focus of this 

proceeding permits. See, e.g., Comments 

of National Association of Broadcasters, 

Docket No. RM 2008–7 at 6–7 (May 26, 

2009). 

A proposal that syndicated 

programming that is simulcast by 

broadcasters should be exempted from 

recordkeeping requirements (See 

Comments of the National Association 

of Broadcasters, Docket No. RM 2008–7 

at 8 (May 26, 2009)) raises serious issues 

concerning the recordkeeping 

obligations of users and, at the same 

time, offers no solution for improving 

reports of actual use to facilitate owners 

receiving more accurate payment 

distributions. Moreover, inasmuch as 

the interim reporting regulation in place 

has functioned for some time without 

such an exemption, albeit with less 

frequent quarterly reporting 

requirements, it is not at all clear that 

the adoption of the final regulation 

proposed in the NPRM merits 

rethinking at this juncture.10 Indeed, the 

Collective suggests that any reporting 

problems for broadcasters associated 

with syndicated programming have 

been adequately addressed going 

forward in their recently completed 

NAB-SoundExchange Webcaster 

settlement agreement. See Reply 

Comments of SoundExchange, Docket 

No. RM 2008–7 at 14 (June 8, 2009). In 

short, the syndication exemption 

proposal has not been sufficiently 

developed for the Judges’ consideration 

in this proceeding. 

Similarly, SoundExchange’s proposal 

to authorize the Collective to distribute 

royalties based on a reasonable proxy 

when sufficient reports of use have not 

been filed within one year after 

receiving payment has been 

insufficiently developed in this 

proceeding. See Comments of 

SoundExchange, Docket No. RM 

2008–7 at 4–5 (May 26, 2009). It was 

raised for the first time in this 

proceeding in response to the April 8, 

2009 NOI and even SoundExchange 

admits to originally contemplating 

making this request in a subsequent 

petition. Id. at 4 n.7. 

Still other proposals, such as the 

proposal that the Collective be required 

to provide confirmation of the receipt of 

reports of use within a time certain (See, 

e.g., Comments of Tom Worster and 

Spinitron, Docket No. RM 2008–7 at 7 

(January 29, 2009)), might arguably fit 


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11Under the interim regulation, SoundExchange 

supported four methods of delivery for electronic 

data files: File Transfer Protocol (‘‘FTP’’); electronic 

mail attachment; CD–ROM delivery; and floppy 

diskette delivery. The final regulation eliminates 

floppy diskette delivery. 

within a very broad view of the Judges’ 

specific technological change inquiry, 

but were not addressed by the Collective 

in terms of either technological 

feasibility or costs of adoption (if any). 

In short, some of the proposals 

included in comments received by the 

Judges in this proceeding may merit 

further examination in a future 

rulemaking. However, they are not ripe 

for either adoption or rejection at the 

present time. 

As a result, only a small number of 

proposals put forward in the parties’ 

comments have been adopted in the 

final regulations. Some of these 

proposals relate to clarifying the final 

regulations as a result of changes made 

to the frequency reporting rule and are 

described herein above in connection 

with that rule. Of the remaining three 

party proposals adopted by the Judges, 

one adopted proposal reflects recent 

technological developments, another 

adopted proposal reflects a physical 

change of address for the Collective, and 

the remaining adopted proposal corrects 

an inconsistency in the delineation of 

the use of report dates in the NPRM. No 

controversy was raised by any of the 

commenting parties concerning these 

three proposals. 

The change in the final regulation 

adopted from comments received by the 

Judges that is directly related to 

technological developments is the 

elimination of the delivery of reports of 

use by means of floppy diskette.11 See 

Comments of SoundExchange, Docket 

No. RM 2008–7 at 25 (January 29, 2009). 

We agree with SoundExchange that the 

use of floppy diskettes has been 

rendered obsolete by recent 

technological developments and that it 

is not technologically efficient for the 

Collective to maintain old disk drives 

and equipment applicable only to such 

physical media. Moreover, delivery by 

means of CD–ROM is readily available 

and maintained in the final regulation 

for any license user needing a physical 

media delivery alternative. 

The remaining two changes adopted 

by the Judges from comments submitted 

by the parties are: (1) a correction in the 

e-mail address for the Collective to 

reports@soundexchange.com and (2) the 

consistent reference to dates of a 

reporting period throughout the final 

regulation in the format ‘‘year, month 

and day.’’ See Comments of 

SoundExchange, Docket No. RM 2008– 

7 at 29–30 (January 29, 2009). These 

changes adopted by the Judges will add 

clarity and consistency to the final 

regulation for reporting and delivery. 

List of Subjects in 37 CFR Part 370 

Copyright, Sound recordings. 

Final Regulation 

■ For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

revise 37 CFR part 370 to read as 

follows: 

PART 370—NOTICE AND 

RECORDKEEPING REQUIREMENTS 

FOR STATUTORY LICENSES 

Sec. 

370.1 General definitions. 

370.2 Notice of use of sound recordings 

under statutory license. 

370.3 Reports of use of sound recordings 

under statutory license for preexisting 

subscription services. 

370.4 Reports of use of sound recordings 

under statutory license for 

nonsubscription transmission services, 

preexisting satellite digital audio radio 

services, new subscription services and 

business establishment services. 

370.5 Designated collection and 

distribution organizations for reports of 

use of sound recordings under statutory 

license. 

Authority: 17 U.S.C. 112(e)(4), 114(f)(4)(A). 

§ 370.1 General definitions. 

For purposes of this part, the 

following definitions apply: 

(a) A Notice of Use of Sound 

Recordings Under Statutory License is a 

written notice to sound recording 

copyright owners of the use of their 

works under section 112(e) or 114(d)(2) 

of title 17, United States Code, or both, 

and is required under this part to be 

filed by a Service in the Copyright 

Office. 

(b) A Service is an entity engaged in 

either the digital transmission of sound 

recordings pursuant to section 114(d)(2) 

of title 17 of the United States Code or 

making ephemeral phonorecords of 

sound recordings pursuant to section 

112(e) of title 17 of the United States 

Code or both. The definition of a Service 

includes an entity that transmits an 

AM/FM broadcast signal over a digital 

communications network such as the 

Internet, regardless of whether the 

transmission is made by the broadcaster 

that originates the AM/FM signal or by 

a third party, provided that such 

transmission meets the applicable 

requirements of the statutory license set 

forth in 17 U.S.C. 114(d)(2). A Service 

may be further characterized as either a 

preexisting subscription service, 

preexisting satellite digital audio radio 

service, nonsubscription transmission 

service, new subscription service, 

business establishment service or a 

combination of those. 

(c) A Preexisting Subscription Service 

is defined in 17 U.S.C. 114(j)(11). 

(d) A New Subscription Service is 

defined in 17 U.S.C. 114(j)(8). 

(e) A Nonsubscription Transmission 

Service is a service that makes 

noninteractive nonsubscription digital 

audio transmissions that are not exempt 

under section 114(d)(1) of title 17 of the 

United States Code and are made as part 

of a service that provides audio 

programming consisting, in whole or in 

part, of performances of sound 

recordings, including transmissions of 

broadcast transmissions, if the primary 

purpose of the service is to provide to 

the public such audio or other 

entertainment programming, and the 

primary purpose of the service is not to 

sell, advertise, or promote particular 

products or services other than sound 

recordings, live concerts, or other 

music-related events. 

(f) A Preexisting Satellite Digital 

Audio Radio Service is defined in 17 

U.S.C. 114(j)(10). 

(g) A Business Establishment Service 

is a service that makes ephemeral 

phonorecords of sound recordings 

pursuant to section 112(e) of title 17 of 

the United States Code and is exempt 

under section 114(d)(1)(C)(iv) of title 17 

of the United States Code. 

(h) A Collective is a collection and 

distribution organization that is 

designated under one or both of the 

statutory licenses by determination of 

the Copyright Royalty Judges. 

(i) A Report of Use is a report required 

to be provided by a Service that is 

transmitting sound recordings pursuant 

to the statutory license set forth in 

section 114(d)(2) of title 17 of the 

United States Code or making 

ephemeral phonorecords of sound 

recordings pursuant to the statutory 

license set forth in section 112(e) of title 

17 of the United States Code, or both. 

§ 370.2 Notice of use of sound recordings 

under statutory license. 

(a) General. This section prescribes 

rules under which copyright owners 

shall receive notice of use of their sound 

recordings when used under either 

section 112(e) or 114(d)(2) of title 17, 

United States Code, or both. 

(b) Forms and content. A Notice of 

Use of Sound Recordings Under 

Statutory License shall be prepared on 

a form that may be obtained from the 

Copyright Office Web site or from the 

Licensing Division, and shall include 

the following information: 

(1) The full legal name of the Service 

that is either commencing digital 

transmissions of sound recordings or 


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making ephemeral phonorecords of 

sound recordings under statutory 

license or doing both. 

(2) The full address, including a 

specific number and street name or rural 

route, of the place of business of the 

Service. A post office box or similar 

designation will not be sufficient except 

where it is the only address that can be 

used in that geographic location. 

(3) The telephone number and 

facsimile number of the Service. 

(4) Information on how to gain access 

to the online Web site or homepage of 

the Service, or where information may 

be posted under this section concerning 

the use of sound recordings under 

statutory license. 

(5) Identification of each license 

under which the Service intends to 

operate, including identification of each 

of the following categories under which 

the Service will be making digital 

transmissions of sound recordings: 

Preexisting subscription service, 

preexisting satellite digital audio radio 

service, nonsubscription transmission 

service, new subscription service or 

business establishment service. 

(6) The date or expected date of the 

initial digital transmission of a sound 

recording to be made under the section 

114 statutory license and/or the date or 

the expected date of the initial use of 

the section 112(e) license for the 

purpose of making ephemeral 

phonorecords of the sound recordings. 

(7) Identification of any amendments 

required by paragraph (e) of this section. 

(c) Signature. The Notice shall 

include the signature of the appropriate 

officer or representative of the Service 

that is either transmitting the sound 

recordings or making ephemeral 

phonorecords of sound recordings 

under statutory license or doing both. 

The signature shall be accompanied by 

the printed or typewritten name and the 

title of the person signing the Notice 

and by the date of the signature. 

(d) Filing notices; fees. The original 

and three copies shall be filed with the 

Licensing Division of the Copyright 

Office and shall be accompanied by the 

filing fee set forth in § 201.3(e) of this 

title. Notices shall be placed in the 

public records of the Licensing Division. 

The Notice and filing fee shall be sent 

to the Licensing Division at either the 

address listed on the form obtained from 

the Copyright Office or to: Library of 

Congress, Copyright Office, Licensing 

Division, 101 Independence Avenue, 

SE., Washington, DC 20557–6400. A 

Service that, on or after July 1, 2004, 

shall make digital transmissions and/or 

ephemeral phonorecords of sound 

recordings under statutory license shall 

file a Notice of Use of Sound Recordings 

under Statutory License with the 

Licensing Division of the Copyright 

Office prior to the making of the first 

ephemeral phonorecord of the sound 

recording and prior to the first digital 

transmission of the sound recording. 

(e) Amendment. A Service shall file a 

new Notice of Use of Sound Recordings 

under Statutory License within 45 days 

after any of the information contained in 

the Notice on file has changed, and shall 

indicate in the space provided by the 

Copyright Office that the Notice is an 

amended filing. The Licensing Division 

shall retain copies of all prior Notices 

filed by the Service. 

§ 370.3 Reports of use of sound 

recordings under statutory license for 

preexisting subscription services. 

(a) General. This section prescribes 

the rules for the maintenance and 

delivery of reports of use for sound 

recordings under section 112(e) or 

section 114(d)(2) of title 17 of the 

United States Code, or both, by 

preexisting subscription services. 

(b) Delivery. Reports of Use shall be 

delivered to Collectives that are 

identified in the records of the 

Licensing Division of the Copyright 

Office as having been designated by 

determination of the Copyright Royalty 

Judges. Reports of Use shall be delivered 

on or before the forty-fifth day after the 

close of each month. 

(c) Posting. In the event that no 

Collective is designated under the 

statutory license, or if all designated 

Collectives have terminated collection 

and distribution operations, a 

preexisting subscription service 

transmitting sound recordings under 

statutory license shall post and make 

available online its Reports of Use. 

Preexisting subscription services shall 

post their Reports of Use online on or 

before the forty-fifth day after the close 

of each month, and continue to make 

them available thereafter to all sound 

recording copyright owners for a period 

of 90 days. Preexisting subscription 

services may require use of passwords 

for access to posted Reports of Use, but 

must make passwords available in a 

timely manner and free of charge or 

other restrictions. Preexisting 

subscription services may predicate 

provision of a password upon: 

(1) Information relating to identity, 

location and status as a sound recording 

copyright owner; and 

(2) A ‘‘click-wrap’’ agreement not to 

use information in the Report of Use for 

purposes other than royalty collection, 

royalty distribution, and determining 

compliance with statutory license 

requirements, without the express 

consent of the preexisting subscription 

service providing the Report of Use. 

(d) Content. A ‘‘Report of Use of 

Sound Recordings under Statutory 

License’’ shall be identified as such by 

prominent caption or heading, and shall 

include a preexisting subscription 

service’s ‘‘Intended Playlists’’ for each 

channel and each day of the reported 

month. The ‘‘Intended Playlists’’ shall 

include a consecutive listing of every 

recording scheduled to be transmitted, 

and shall contain the following 

information in the following order: 

(1) The name of the preexisting 

subscription service or entity; 

(2) The channel; 

(3) The sound recording title; 

(4) The featured recording artist, 

group, or orchestra; 

(5) The retail album title (or, in the 

case of compilation albums created for 

commercial purposes, the name of the 

retail album identified by the 

preexisting subscription service for 

purchase of the sound recording); 

(6) The marketing label of the 

commercially available album or other 

product on which the sound recording 

is found; 

(7) The catalog number; 

(8) The International Standard 

Recording Code (ISRC) embedded in the 

sound recording, where available and 

feasible; 

(9) Where available, the copyright 

owner information provided in the 

copyright notice on the retail album or 

other product (e.g., following the 

symbol (P), that is the letter P in a circle) 

or, in the case of compilation albums 

created for commercial purposes, in the 

copyright notice for the individual 

sound recording; 

(10) The date of transmission; and 

(11) The time of transmission. 

(e) Signature. Reports of Use shall 

include a signed statement by the 

appropriate officer or representative of 

the preexisting subscription service 

attesting, under penalty of perjury, that 

the information contained in the Report 

is believed to be accurate and is 

maintained by the preexisting 

subscription service in its ordinary 

course of business. The signature shall 

be accompanied by the printed or 

typewritten name and title of the person 

signing the Report, and by the date of 

signature. 

(f) Format. Reports of Use should be 

provided on a standard machinereadable medium, such as diskette, 

optical disc, or magneto-optical disc, 

and should conform as closely as 

possible to the following specifications: 

(1) ASCII delimited format, using pipe 

characters as delimiter, with no headers 

or footers; 


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(2) Carats should surround strings; 

(3) No carats should surround dates 

and numbers; 

(4) Dates should be indicated by: 

YYYY/MM/DD; 

(5) Times should be based on a 24- 

hour clock: HH:MM:SS; 

(6) A carriage return should be at the 

end of each line; and 

(7) All data for one record should be 

on a single line. 

(g) Confidentiality. Copyright owners, 

their agents and Collectives shall not 

disseminate information in the Reports 

of Use to any persons not entitled to it, 

nor utilize the information for purposes 

other than royalty collection and 

distribution, and determining 

compliance with statutory license 

requirements, without express consent 

of the preexisting subscription service 

providing the Report of Use. 

(h) Documentation. All compulsory 

licensees shall, for a period of at least 

three years from the date of service or 

posting of the Report of Use, keep and 

retain a copy of the Report of Use. 

§ 370.4 Reports of use of sound 

recordings under statutory license for 

nonsubscription transmission services, 

preexisting satellite digital audio radio 

services, new subscription services and 

business establishment services. 

(a) General. This section prescribes 

rules for the maintenance and delivery 

of reports of use of sound recordings 

under section 112(e) or section 114(d)(2) 

of title 17 of the United States Code, or 

both, by nonsubscription transmission 

services, preexisting satellite digital 

audio radio services, new subscription 

services, and business establishment 

services. 

(b) Definitions. (1) Aggregate Tuning 

Hours are the total hours of 

programming that a nonsubscription 

transmission service, preexisting 

satellite digital audio radio service, new 

subscription service or business 

establishment service has transmitted 

during the reporting period identified in 

paragraph (d)(3) of this section to all 

listeners within the United States over 

the relevant channels or stations, and 

from any archived programs, that 

provide audio programming consisting, 

in whole or in part, of eligible 

nonsubscription service, preexisting 

satellite digital audio radio service, new 

subscription service or business 

establishment service transmissions, 

less the actual running time of any 

sound recordings for which the service 

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. For example, if a 

nonsubscription transmission service 

transmitted one hour of programming to 

10 simultaneous listeners, the 

nonsubscription transmission service’s 

Aggregate Tuning Hours would equal 

10. If 3 minutes of that hour consisted 

of transmission of a directly licensed 

recording, the nonsubscription 

transmission service’s Aggregate Tuning 

Hours would equal 9 hours and 30 

minutes. If one listener listened to the 

transmission of a nonsubscription 

transmission service for 10 hours (and 

none of the recordings transmitted 

during that time was directly licensed), 

the nonsubscription transmission 

service’s Aggregate Tuning Hours would 

equal 10. 

(2) An AM/FM Webcast is a 

transmission made by an entity that 

transmits an AM/FM broadcast signal 

over a digital communications network 

such as the Internet, regardless of 

whether the transmission is made by the 

broadcaster that originates the AM/FM 

signal or by a third party, provided that 

such transmission meets the applicable 

requirements of the statutory license set 

forth in 17 U.S.C. 114(d)(2). 

(3) A minimum fee broadcaster is a 

nonsubscription service that meets the 

definition of a broadcaster pursuant to 

§ 380.2(b) of this chapter and the 

service’s payments for eligible 

transmissions do not exceed the annual 

minimum fee established for licensees 

relying upon the statutory licenses set 

forth in 17 U.S.C. 112 and 114. 

(4) A performance is each instance in 

which any portion of a sound recording 

is publicly performed to a Listener by 

means of a digital audio transmission or 

retransmission (e.g., the delivery of any 

portion of a single track from a compact 

disc to one Listener) but excluding the 

following: 

(i) A performance of a sound 

recording that does not require a license 

(e.g., the sound recording is not 

copyrighted); 

(ii) A performance of a sound 

recording for which the service has 

previously obtained a license from the 

Copyright Owner of such sound 

recording; and 

(iii) An incidental performance that 

both: 

(A) Makes no more than incidental 

use of sound recordings including, but 

not limited to, brief musical transitions 

in and out of commercials or program 

segments, brief performances during 

news, talk and sports programming, 

brief background performances during 

disk jockey announcements, brief 

performances during commercials of 

sixty seconds or less in duration, or 

brief performances during sporting or 

other public events; and 

(B) Other than ambient music that is 

background at a public event, does not 

contain an entire sound recording and 

does not feature a particular sound 

recording of more than thirty seconds 

(as in the case of a sound recording used 

as a theme song). 

(5) Play frequency is the number of 

times a sound recording is publicly 

performed by a Service during the 

relevant period, without respect to the 

number of listeners receiving the sound 

recording. If a particular sound 

recording is transmitted to listeners on 

a particular channel or program only 

once during the reporting period, then 

the play frequency is one. If the sound 

recording is transmitted 10 times during 

the reporting period, then the play 

frequency is 10. 

(c) Delivery. Reports of Use shall be 

delivered to Collectives that are 

identified in the records of the 

Licensing Division of the Copyright 

Office as having been designated by 

determination of the Copyright Royalty 

Judges. Reports of Use shall be delivered 

on or before the forty-fifth day after the 

close of each reporting period identified 

in paragraph (d)(3) of this section. 

(d) Report of Use. (1) Separate reports 

not required. A nonsubscription 

transmission service, preexisting 

satellite digital audio radio service or a 

new subscription service that transmits 

sound recordings pursuant to the 

statutory license set forth in section 

114(d)(2) of title 17 of the United States 

Code and makes ephemeral 

phonorecords of sound recordings 

pursuant to the statutory license set 

forth in section 112(e) of title 17 of the 

United States Code need not maintain a 

separate Report of Use for each statutory 

license during the relevant reporting 

periods. 

(2) Content. For a nonsubscription 

transmission service, preexisting 

satellite digital audio radio service, new 

subscription service or business 

establishment service that transmits 

sound recordings pursuant to the 

statutory license set forth in section 

114(d)(2) of title 17 of the United States 

Code, or the statutory license set forth 

in section 112(e) of title 17 of the United 

States Code, or both, each Report of Use 

shall contain the following information, 

in the following order, for each sound 

recording transmitted during the 

reporting periods identified in 

paragraph (d)(3) of this section: 

(i) The name of the nonsubscription 

transmission service, preexisting 

satellite digital audio radio service, new 

subscription service or business 

establishment service making the 

transmissions, including the name of 


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the entity filing the Report of Use, if 

different; 

(ii) The category transmission code for 

the category of transmission operated by 

the nonsubscription transmission 

service, preexisting satellite digital 

audio radio service, new subscription 

service or business establishment 

service: 

(A) For eligible nonsubscription 

transmissions other than broadcast 

simulcasts and transmissions of nonmusic programming; 

(B) For eligible nonsubscription 

transmissions of broadcast simulcast 

programming not reasonably classified 

as news, talk, sports or business 

programming; 

(C) For eligible nonsubscription 

transmissions of non-music 

programming reasonably classified as 

news, talk, sports or business 

programming; 

(D) [Reserved]. 

(E) [Reserved]. 

(F) [Reserved]. 

(G) [Reserved]. 

(H) For transmissions other than 

broadcast simulcasts and transmissions 

of non-music programming made by an 

eligible new subscription service; 

(I) For transmissions of broadcast 

simulcast programming not reasonably 

classified as news, talk, sports or 

business programming made by an 

eligible new subscription service; 

(J) For transmissions of non-music 

programming reasonably classified as 

news, talk, sports or business 

programming made by an eligible new 

subscription service; and 

(K) For eligible transmissions by a 

business establishment service making 

ephemeral recordings; 

(iii) The featured artist; 

(iv) The sound recording title; 

(v) The International Standard 

Recording Code (ISRC) or, alternatively 

to the ISRC, the: 

(A) Album title; and 

(B) Marketing label; 

(vi) For a nonsubscription 

transmission service except those 

qualifying as minimum fee broadcasters: 

The actual total performances of the 

sound recording during the reporting 

period. 

(vii) For a preexisting satellite digital 

audio radio service, a new subscription 

service, a business establishment service 

or a nonsubscription service qualifying 

as a minimum fee broadcaster: The 

actual total performances of the sound 

recording during the reporting period 

or, alternatively, the 

(A) Aggregate Tuning Hours; 

(B) Channel or program name; and 

(C) Play frequency. 

(3) Reporting period. A Report of Use 

shall be prepared: 

(i) For each calendar month of the 

year by all services other than a 

nonsubscription service qualifying as a 

minimum fee broadcaster; or 

(ii) For a two-week period (two 

periods of 7 consecutive days) for each 

calendar quarter of the year by a 

nonsubscription service qualifying as a 

minimum fee broadcaster and the twoweek period need not consist of 

consecutive weeks, but both weeks must 

be completely within the calendar 

quarter. 

(4) Signature. Reports of Use shall 

include a signed statement by the 

appropriate officer or representative of 

the service attesting, under penalty of 

perjury, that the information contained 

in the Report is believed to be accurate 

and is maintained by the service in its 

ordinary course of business. The 

signature shall be accompanied by the 

printed or typewritten name and the 

title of the person signing the Report, 

and by the date of the signature. 

(5) Confidentiality. Copyright owners, 

their agents and Collectives shall not 

disseminate information in the Reports 

of Use to any persons not entitled to it, 

nor utilize the information for purposes 

other than royalty collection and 

distribution, without consent of the 

service providing the Report of Use. 

(6) Documentation. A Service shall, 

for a period of at least three years from 

the date of service or posting of a Report 

of Use, keep and retain a copy of the 

Report of Use. 

(e) Format and delivery. (1) Electronic 

format only. Reports of use must be 

maintained and delivered in electronic 

format only, as prescribed in paragraphs 

(e)(2) through (8) of this section. A hard 

copy report of use is not permissible. 

(2) ASCII text file delivery; facilitation 

by provision of spreadsheet templates. 

All report of use data files must be 

delivered in ASCII format. However, to 

facilitate such delivery, SoundExchange 

shall post and maintain on its Internet 

Web site a template for creating a report 

of use using Microsoft’s Excel 

spreadsheet and Corel’s Quattro Pro 

spreadsheet and instruction on how to 

convert such spreadsheets to ASCII text 

files that conform to the format 

specifications set forth below. Further, 

technical support and cost associated 

with the use of spreadsheets is the 

responsibility of the service submitting 

the report of use. 

(3) Delivery mechanism. The data 

contained in a report of use may be 

delivered by File Transfer Protocol 

(FTP), e-mail, or CD–ROM according to 

the following specifications: 

(i) A service delivering a report of use 

via FTP must obtain a username, 

password and delivery instructions from 

SoundExchange. SoundExchange shall 

maintain on a publicly available portion 

of its Web site instructions for applying 

for a username, password and delivery 

instructions. SoundExchange shall have 

15 days from date of request to respond 

with a username, password and delivery 

instructions. 

(ii) A service delivering a report of use 

via e-mail shall append the report as an 

attachment to the e-mail. The main body 

of the e-mail shall identify: 

(A) The full name and address of the 

service; 

(B) The contact person’s name, 

telephone number and e-mail address; 

(C) The start and end date of the 

reporting period; 

(D) The number of rows in the data 

file. If the report of use is a file using 

headers, counting of the rows should 

begin with row 15. If the report of use 

is a file without headers, counting of the 

rows should begin with row 1; and 

(E) The name of the file attached. 

(iii) A service delivering a report of 

use via CD–ROM must compress the 

reporting data to fit onto a single CD– 

ROM per reporting period. Each CD– 

ROM shall be submitted with a cover 

letter identifying: 

(A) The full name and address of the 

service; 

(B) The contact person’s name, 

telephone number and e-mail address; 

(C) The start and end date of the 

reporting period; 

(D) The number of rows in the data 

file. If the report of use is a file using 

headers, counting of the rows should 

begin with row 15. If the report of use 

is a file without headers, counting of the 

rows should begin with row 1; and 

(E) The name of the file attached. 

(4) Delivery address. Reports of use 

shall be delivered to SoundExchange at 

the following address: SoundExchange, 

Inc., 1121 14th Street, NW., Suite 700, 

Washington, DC 20005; (Phone) (202) 

640–5858; (Facsimile) (202) 640–5859; 

(E-mail) reports@soundexchange.com. 

SoundExchange shall forward electronic 

copies of these reports of use to all other 

collectives defined in this section. 

(5) File naming. Each data file 

contained in a report of use must be 

given a name by the service followed by 

the start and end date of the reporting 

period. The start and end date must be 

separated by a dash and in the format 

of year, month, and day (YYYYMMDD). 

Each file name must end with the file 

type extension of ‘‘.txt’’. (Example: 

AcmeMusicCo20050101–20050331.txt). 

(6) File type and compression. (i) All 

data files must be in ASCII format. 

(ii) A report of use must be 

compressed in one of the following 

zipped formats: 


CPrice-Sewell on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / Rules and Regulations 52427 

(A) .zip—generated using utilities 

such as WinZip and/or UNIX zip 

command; 

(B) .Z—generated using UNIX 

compress command; or 

(C) .gz—generated using UNIX gzip 

command. 

(iii) Zipped files shall be named in the 

same fashion as described in paragraph 

(e)(5) of this section, except that such 

zipped files shall use the applicable file 

extension compression name described 

in this paragraph (e)(6). 

(7) Files with headers. (i) If a service 

elects to submit files with headers, the 

following elements, in order, must 

occupy the first 14 rows of a report of 

use: 

(A) Name of service; 

(B) Name of contact person; 

(C) Street address of the service; 

(D) City, state and zip code of the 

service; 

(E) Telephone number of the contact 

person; 

(F) E-mail address of the contact 

person; 

(G) Start of the reporting period 

(YYYYMMDD); 

(H) End of the reporting period 

(YYYYMMDD); 

(I) Report generation date 

(YYYYMMDD); 

(J) Number of rows in data file, 

beginning with 15th row; 

(K) Text indicator character; 

(L) Field delimiter character; 

(M) Blank line; and 

(N) Report headers (Featured Artist, 

Sound Recording Title, etc.). 

(ii) Each of the rows described in 

paragraphs (e)(7)(i)(A) through (F) of 

this section must not exceed 255 

alphanumeric characters. Each of the 

rows described in paragraphs (e)(7)(i)(G) 

through (I) of this section should not 

exceed eight alphanumeric characters. 

(iii) Data text fields, as required by 

paragraph (d) of this section, begin on 

row 15 of a report of use with headers. 

A carriage return must be at the end of 

each row thereafter. Abbreviations 

within data fields are not permitted. 

(iv) The text indicator character must 

be unique and must never be found in 

the report’s data content. 

(v) The field delimiter character must 

be unique and must never be found in 

the report’s data content. Delimiters 

must be used even when certain 

elements are not being reported; in such 

case, the service must denote the blank 

data field with a delimiter in the order 

in which it would have appeared. 

(8) Files without headers. If a service 

elects to submit files without headers, 

the following format requirements must 

be met: 

(i) ASCII delimited format, using pipe 

(|) characters as delimiters, with no 

headers or footers; 

(ii) Carats (∧) should surround strings; 

(iii) No carats (∧) should surround 

dates and numbers; 

(iv) A carriage return must be at the 

end of each line; 

(v) All data for one record must be on 

a single line; and 

(vi) Abbreviations within data fields 

are not permitted. 

§ 370.5 Designated collection and 

distribution organizations for reports of use 

of sound recordings under statutory 

license. 

(a) General. This section prescribes 

rules under which reports of use shall 

be collected and distributed under 

section 114(f) of title 17 of the United 

States Code, and under which reports of 

such use shall be kept and made 

available. 

(b) Notice of Designation as Collective 

under Statutory License. A Collective 

shall file with the Licensing Division of 

the Copyright Office and post and make 

available online a ‘‘Notice of 

Designation as Collective under 

Statutory License,’’ which shall be 

identified as such by prominent caption 

or heading, and shall contain the 

following information: 

(1) The Collective name, address, 

telephone number and facsimile 

number; 

(2) A statement that the Collective has 

been designated for collection and 

distribution of performance royalties 

under statutory license for digital 

transmission of sound recordings; and 

(3) Information on how to gain access 

to the online Web site or home page of 

the Collective, where information may 

be posted under this part concerning the 

use of sound recordings under statutory 

license. The address of the Licensing 

Division is: Library of Congress, 

Copyright Office, Licensing Division, 

101 Independence Avenue, SE., 

Washington, DC 20557–6400. 

(c) Annual Report. The Collective will 

post and make available online, for the 

duration of one year, an Annual Report 

on how the Collective operates, how 

royalties are collected and distributed, 

and what the Collective spent that fiscal 

year on administrative expenses. 

(d) Inspection of Reports of Use by 

copyright owners. The Collective shall 

make copies of the Reports of Use for 

the preceding three years available for 

inspection by any sound recording 

copyright owner, without charge, during 

normal office hours upon reasonable 

notice. The Collective shall predicate 

inspection of Reports of Use upon 

information relating to identity, location 

and status as a sound recording 

copyright owner, and the copyright 

owner’s written agreement not to utilize 

the information for purposes other than 

royalty collection and distribution, and 

determining compliance with statutory 

license requirements, without express 

consent of the Service providing the 

Report of Use. The Collective shall 

render its best efforts to locate copyright 

owners in order to make available 

reports of use, and such efforts shall 

include searches in Copyright Office 

public records and published directories 

of sound recording copyright owners. 

(e) Confidentiality. Copyright owners, 

their agents, and Collectives shall not 

disseminate information in the Reports 

of Use to any persons not entitled to it, 

nor utilize the information for purposes 

other than royalty collection and 

distribution, and determining 

compliance with statutory license 

requirements, without express consent 

of the Service providing the Report of 

Use. 

(f) Termination and dissolution. If a 

Collective terminates its collection and 

distribution operations prior to the close 

of its term of designation, the Collective 

shall notify the Licensing Division of 

the Copyright Office, the Copyright 

Royalty Board and all Services 

transmitting sound recordings under 

statutory license, by certified or 

registered mail. The dissolving 

Collective shall provide each such 

Service with information identifying the 

copyright owners it has served. 

Dated: October 7, 2009. 

James Scott Sledge, 

Chief U.S. Copyright Royalty Judge. 

[FR Doc. E9–24556 Filed 10–9–09; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0620; FRL–8956–9] 

Revisions to the California State 

Implementation Plan, San Diego Air 

Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the San 

Diego Air Pollution Control District 

portion of the California State 

Implementation Plan (SIP). These 

revisions concern volatile organic 

compound (VOC) emissions from cold 


CPrice-Sewell on DSKGBLS3C1PROD with RULES