25038 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. This rule 

would not have a total economic impact 

of more than $6.1 million, which is the 

maximum additional amount of fees 

that HUD has determined would be 

collected if the fee is raised to $100 per 

label. 

By annual appropriations acts, 

Congress requires HUD to collect fees 

from manufacturers of manufactured 

housing to ensure the annual 

appropriation that HUD provides in a 

given fiscal year. In addition to the 

authority to set label fees, the reports 

accompanying HUD’s recent annual 

appropriations acts reflect strong 

Congressional encouragement for HUD 

to respond to the annual appropriations 

act authority to modify the label fees to 

obtain additional funding to support the 

manufactured housing program. The 

per-unit fee would remain as has always 

been the case to be proportional in its 

impact, with greater collections from 

larger manufacturers and less 

collections from smaller manufacturers. 

HUD has concluded, generally, that, 

as is often the case with increased fees 

placed on manufacturers of products 

used by consumers, the fee increase will 

be passed through to consumer, thereby 

minimizing the impact on 

manufacturers large and small. If the 

cost of the fee is passed on to the 

consumer, the purchase price of a 

manufactured home would increase, 

and placements of new manufactured 

homes would decrease slightly below 

currently forecasted levels. If 

manufacturers absorb the cost, however, 

the effect of the increase would result in 

lower profits for the manufacturers and 

sales would remain unchanged. In 

either scenario, this change in fee 

collections would represent a transfer to 

tax payers from manufacturers of 

manufactured housing or consumers 

purchasing new manufactured housing, 

since the increased fee collections will 

replace funds collected through federal 

tax collections. 

For these reasons, HUD submits that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Notwithstanding HUD’s determination 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities, HUD 

specifically invites comments regarding 

any less burdensome alternatives to this 

rule that would meet HUD’s program 

responsibilities. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531– 

1538) (UMRA) establishes requirements 

for Federal agencies to assess the effects 

of their regulatory actions on State, 

local, and tribal governments and the 

private sector. This proposed rule does 

not impose any Federal mandates on 

any State, local, or tribal governments or 

the private sector within the meaning of 

the UMRA. 

Environmental Impact 

In accordance with 24 CFR 50.19(c)(6) 

of the HUD regulations, this rule sets 

forth fiscal requirements which do not 

constitute a development decision that 

affects the physical condition of specific 

project areas or building sites, and 

therefore is categorically excluded from 

the requirements of the National 

Environmental Policy Act and related 

Federal laws and authorities. 

Federalism Impact 

Executive Order 13132 (entitled 

‘‘Federalism’’) prohibits, to the extent 

practicable and permitted by law, an 

agency from promulgating a regulation 

that has federalism implications and 

either imposes substantial direct 

compliance costs on State and local 

governments and is not required by 

statute, or preempts State law, unless 

the relevant requirements of section 6 of 

the Executive Order are met. This rule 

does not have federalism implications 

and does not impose substantial direct 

compliance costs on State and local 

governments or preempt State law 

within the meaning of the Executive 

Order. 

List of Subjects in 24 CFR Part 3284 

Consumer protection, Manufactured 

homes. 

Accordingly, for the reasons 

discussed in this preamble, HUD 

proposes to amend 24 CFR part 3284 as 

follows: 

PART 3284—MANUFACTURED 

HOUSING PROGRAM FEE 

■ 1. The authority citation for 24 CFR 

part 3284 continues to read as follows: 

Authority: 42 U.S.C. 3535(d), 5419, and 

5424. 

■ 2. Revise § 3284.5 to read as follows: 

§ 3284.5 Amount of fee. 

Each manufacturer, as defined in 

§ 3282.7 of this chapter, must pay a fee 

of $100 per transportable section of each 

manufactured housing unit that it 

manufactures under the requirements of 

part 3280 of this chapter. 

Dated: April 29, 2014. 

Carol J. Galante, 

Assistant Secretary for Housing—Federal 

Housing Commissioner. 

[FR Doc. 2014–10129 Filed 5–1–14; 8:45 am] 

BILLING CODE 4210–67–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 370 

[Docket No. 14–CRB–0005 (RM)] 

Notice and Recordkeeping for Use of 

Sound Recordings Under Statutory 

License 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Copyright Royalty Judges 

seek written comments on two petitions 

for rulemaking seeking amendments to 

the regulations for filing notice of use 

and the delivery of records of use of 

sound recordings under two statutory 

licenses of the Copyright Act. 

DATES: Comments are due no later than 

June 2, 2014. Reply comments are due 

no later than June 16, 2014. 

ADDRESSES: The Copyright Royalty 

Board (CRB) prefers that comments and 

reply comments be submitted 

electronically to crb@loc.gov. In the 

alternative, commenters shall send a 

hard-copy original, five paper copies, 

and an electronic copy on a CD either 

by U.S. mail or hand delivery. The CRB 

will not accept multiple submissions 

from any commenter. Electronic 

documents must be in either PDF format 

containing accessible text (not an 

image); Microsoft Word; WordPerfect; 

Rich Text Format (RTF); or ASCII text 

file format (not a scanned document). 

Commenters MAY NOT submit 

comments and reply comments by an 

overnight delivery service other than the 

U.S. Postal Service Express Mail. If 

commenters choose to use the U.S. 

Postal Service (including overnight 

delivery), they must address their 

comments and reply comments to: 

Copyright Royalty Board, P.O. Box 

70977, Washington, DC 20024–0977. If 

commenters choose hand delivery by a 

private party, they must direct their 

comments and reply comments to the 

Copyright Office Public Information 

Office, Library of Congress, James 

Madison Memorial Building, Room LM– 

401, 101 Independence Avenue SE., 

Washington, DC 20559–6000. If 

commenters choose delivery by 

commercial courier, they must direct 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25039 

1Prior to the enactment of the Copyright Royalty 

and Distribution Reform Act of 2004 (Reform Act), 

Public Law 108–409, 118 Stat. 2341, responsibility 

for establishing the notice and recordkeeping 

requirements under sections 112 and 114 of the 

Copyright Act resided with the Librarian of 

Congress and the Copyright Office. The Reform Act 

transferred this responsibility to the Judges. As of 

May 31, 2005, the effective date of the Reform Act, 

the Copyright Office had promulgated regulations 

governing the filing of notices of intention to use 

the section 112 and/or 114 statutory licenses,—as 

required by 17 U.S.C. 112(e)(7)(A) and 114(f)(4)(B), 

respectively—the required data elements to be 

provided in a report of use, and the frequency of 

reporting. See 69 FR 11515 (Mar. 11, 2004) and 69 

FR 58261 (Sept. 30, 2004). The Judges carried 

forward those regulations. See 71 FR 59010–11 

(Oct. 6, 2006) (full background of Copyright Office 

notice and recordkeeping rulemaking). 

2 In 2011, SoundExchange filed with the Judges 

a petition for rulemaking to consider adopting 

regulations to authorize SoundExchange ‘‘ ‘to use 

proxy reporting data to distribute to copyright 

owners and performers certain sound recording 

royalties for periods before 2010 that are otherwise 

undistributable due to licensees’ failure to provide 

reports of use’ or their provision of ‘reports of use 

that are so deficient as to be unusable.’ ’’ Notice and 

Recordkeeping for Use of Sound Recordings Under 

Statutory License, Final rule, Docket No. RM 2011– 

5, 76 FR 45695 (Aug. 1, 2011). After soliciting 

comment on SoundExchange’s proposal, the Judges 

adopted final regulations relating to distributions 

based on proxy data. Id. 

3On November 12, 2009, before the Judges ruled 

on this motion, CBI filed a Petition for Review of 

the final regulation with the United States Court of 

Appeals for the District of Columbia Circuit ( D.C. 

Circuit) (Appeal No. 09–1276). This appeal was 

held in abeyance pending the outcome of an appeal 

of the Judges’ final determination in Docket No. 

2009–1 CRB Webcasting III. The D.C. Circuit 

concluded that appeal on July 6, 2012, holding that 

the manner by which the Judges were appointed 

was unconstitutional, dictating a statutory remedy, 

and remanding to the Judges. Intercollegiate Broad. 

Sys. v. Copyright Royalty Bd., 684 F.3d 1332, 1340– 

41 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 2735 

(2013). The Judges issued their initial determination 

on remand on January 9, 2014, and the D.C. Circuit 

transferred CBI’s appeal of the final regulation to 

the United States District Court for the District of 

Columbia. See Order, in Appeal No. 09–1276 (D.C. 

Cir. Oct. 28, 2013). By a separate document today 

in the Federal Register, the Judges have affirmed 

adoption of the final regulation. 

their comments and reply comments to 

the Congressional Courier Acceptance 

Site located at 2nd and D Street NW., 

Washington, DC, on a normal business 

day between 8:30 a.m. and 4 p.m. The 

envelope must be addressed to: 

Copyright Royalty Board, Library of 

Congress, James Madison Memorial 

Building, LM–401, 101 Independence 

Avenue SE., Washington, DC 20559– 

6000. 

FOR FURTHER INFORMATION CONTACT: 

Richard Strasser, Senior Attorney, or 

Gina Giuffreda, Attorney Advisor, by 

telephone at (202) 707–7658 or email 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 59010.1 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 the 

section 112 and 114 licenses could be 

made from April 1, 2004, forward based 

upon actual data on the sound 

recordings transmitted by digital audio 

services. 

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. 

Following a notice and comment 

process, the Judges published a final 

rule on October 13, 2009, amending the 

interim regulations and establishing 

requirements for census reporting for all 

but those broadcasters who pay no more 

than the minimum fee for their use of 

the license. 74 FR 52418. The final 

regulations established requirements by 

which copyright owners may receive 

reasonable notice of the use of their 

sound recordings and under which 

records of use were to 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, the 

final regulations adopted in 2009 

represented baseline requirements. In 

other words, digital audio services 

remained free to negotiate other formats 

and technical standards for data 

maintenance and delivery and to use 

those in lieu of regulations adopted by 

the Judges, upon agreement with the 

Collective. The Judges indicated that 

they had 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.2

II. Petition for Clarification and Petition 

for Rulemaking 

On October 28, 2009, College 

Broadcasters, Inc. (CBI), American 

Council on Education and 

Intercollegiate Broadcasting Systems, 

Inc. (collectively, Petitioners) made a 

motion with the Judges for clarification 

with respect to one issue raised by the 

final regulation. Petitioners noted that 

the final regulation exempted 

minimum-fee webcasters that are FCClicensed broadcasters from the census 

reporting requirement, but did not 

appear to exempt minimum-fee 

educational stations that are not FCClicensed broadcasters from the same 

requirement. See Joint Petition for 

Clarification at 2–3 (Oct. 28, 2009) (Joint 

Petition). Petitioners asked the Judges to 

‘‘clarify’’ that the exemption extended to 

minimum fee unlicensed educational 

stations.3 Id. at 4. 

The Judges have reviewed Petitioners’ 

motion for clarification and determined 

that it is not properly before the Judges. 

In their motion, Petitioners are not 

seeking a clarification of the final 

regulation; they are seeking a 

substantive change. The Judges thus 

determined that Petitioners’ motion 

should be treated as a petition for 

rulemaking and made subject to notice 

and public comment. 

The Judges received a second petition 

for rulemaking from SoundExchange, 

Inc. (SoundExchange), the sole 

Collective designated by the Judges to 

collect and distribute sound recording 

royalties under the section 112(e) and 

114 licenses. See Petition of 

SoundExchange, Inc. for a Rulemaking 

to Consider Modifications to Notice and 

Recordkeeping Requirements for Use of 

Sound Recordings Under Statutory 

License (Oct. 21, 2013) (SX Petition). 

SoundExchange proposes major 

modifications to 37 CFR part 370. 

III. Joint Petition 

Petitioners’ proposal concerns the 

applicability of requirements in the final 

regulation that parties availing 

themselves of the statutory licenses 

under 17 U.S.C. 112 and 114 report on 

all performances of sound recordings 

that are subject to the licenses. One of 

the stated goals of the final regulation 

was to move most users of sound 

recordings toward full census actual 

total performance (ATP) reporting and 

away from reporting of sampled data. 

Notice and Recordkeeping for Use of 

Sound Recordings under Statutory 

License, Final rule, Docket No. RM 

2008–7, 74 FR 52418, 52420 (Oct. 13, 

2009). The final regulation contained an 

exception, however, for ‘‘the lowest 

intensity users of sound recordings in a 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
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4Petitioners use the term ‘‘Educational Stations’’ 

to refer to any webcaster (not just FCC-licensed 

webcasters) that: 

(A) Is directly operated by, or affiliated with and 

officially sanctioned by a domestically accredited 

primary or secondary school, college, university or 

other post-secondary degree-granting educational 

institution; and 

(B) The digital audio transmission operations of 

which are, during the course of the year, staffed 

substantially by students enrolled in such 

institution; and 

(C) Is not a ‘‘public broadcasting entity’’ (as 

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

funding from the Corporation of Public 

Broadcasting pursuant to the criteria set forth in 47 

U.S.C. 396; and 

(D) Is exempt from taxation under section 501 of 

the Internal Revenue Code, has applied for such 

exemption, or is operated by a State or possession 

or any governmental entity or subordinate thereof, 

or by the United States or District of Columbia, for 

exclusively public purposes. 

Joint Petition at 2 n.1 (emphasis and citations 

omitted). While the Judges’ proposed amendment to 

the definition of ‘‘minimum fee broadcaster’’ does 

not incorporate CBI’s singular reference to 

‘‘Educational Stations,’’ the proposed amendment 

retains the substance of CBI’s proposal. See 

proposed § 370.4(b)(2). 

5As of the date its petition for rulemaking was 

filed, SoundExchange stated it received reporting 

and payments from more than 2,200 different 

services. SX Petition at 2. 

single category of users—broadcasters 

typically engaged in simulcasting their 

over-the-air broadcasts on the Web.’’ Id. 

These broadcasters, who pay no more 

than the minimum fee for their use of 

sound recordings under the statutory 

license (i.e., ‘‘minimum fee 

broadcasters’’), are permitted to 

continue reporting sampled Aggregate 

Tuning Hour (ATH) data on a quarterly 

basis. 37 CFR 370.4(d)(3)(i). All other 

services must report census ATP data on 

a monthly basis. 37 CFR 370.4(d)(3)(i). 

Petitioners point out that, unlike 

minimum fee broadcasters, Educational 

Stations 4 that only pay the minimum 

fee are subject to monthly reporting of 

census data if they do not qualify as 

broadcasters—i.e., ‘‘a type of 

Commercial Webcaster or 

Noncommercial Webcaster that owns 

and operates a terrestrial AM or FM 

radio station that is licensed by the 

Federal Communications Commission 

[‘‘FCC’’].’’ 37 CFR 380.2(b). 

Petitioners assert that the full census 

ATP reporting requirement presents a 

serious problem for unlicensed 

minimum fee Educational Stations. 

They argue that, for the same reasons 

that the Judges found it was not 

reasonable for minimum fee FCClicensed broadcasters to move toward 

full census ATP reporting, it is also not 

reasonable for minimum fee unlicensed 

Educational Stations to move toward 

full census ATP reporting. 

Therefore, Petitioners propose that the 

definition of a ‘‘minimum fee 

broadcaster’’ in 37 CFR 370.4(b)(3) be 

amended to read: ‘‘(3) A minimum fee 

broadcaster is a nonsubscription service 

whose payments for eligible 

transmissions do not exceed the annual 

minimum fee set forth in 17 U.S.C. 112 

and 114; and either (i) meets the 

definition of a broadcaster pursuant to 

§ 380.2(b) of this chapter; or (ii) is an 

Educational Station, that is, any 

webcaster that (A) is directly operated 

by, or affiliated with and officially 

sanctioned by a domestically accredited 

primary or secondary school, college, 

university or other post-secondary 

degree-granting educational institution; 

and (B) the digital audio transmission 

operations of which are, during the 

course of the year, staffed substantially 

by students enrolled in such institution; 

and (C) 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; and (D) is exempt from 

taxation under section 501 of the 

Internal Revenue Code, has applied for 

such exemption, or is operated by a 

State or possession or any governmental 

entity or subordinate thereof, or by the 

United States or District of Columbia, 

for exclusively public purposes.’’ Joint 

Petition at 4. 

Petitioners also provide for the 

Judges’ consideration alternative 

language so that the amendment 

addresses entities other than 

Educational Stations: ‘‘(3) A minimum 

fee broadcaster is a nonsubscription 

service whose payments for eligible 

transmissions do not exceed the annual 

minimum fee set forth in 17 U.S.C. 112 

and 114; and either (i) meets the 

definition of a broadcaster pursuant to 

§ 380.2(b) of this chapter; or (ii) is a 

‘noncommercial webcaster’ as defined 

in 17 U.S.C. 114(f)(5)(E)(i).’’ Id. at 4 n.5. 

The new definition of ‘‘minimum fee 

broadcaster’’ would be incorporated by 

reference in 37 CFR 370.4(d)(3)(ii), 

which provides that such entities may 

proceed with quarterly sample ATH 

data reports. 

Finally, Petitioners assert that failure 

to make the proposed change could 

cause hundreds of minimum fee paying 

FCC-unlicensed Educational Stations to 

cease operations or to become infringers 

simply because they lack an FCC 

license. Petitioners assert further that 

copyright owners and performers would 

see a decline in royalties paid and 

distributed. 

The Judges seek comment on 

Petitioners’ proposal. The Judges 

especially seek comment on how such 

unlicensed minimum fee Educational 

Stations, as defined by Petitioners, have 

been reporting under the current 

regulations. Have any ceased operations, 

as predicted by Petitioners? If so, how 

many? If not, does the need still exist for 

Petitioners’ proposed amendment? Have 

Petitioners, in the first instance, 

persuasively made their case that such 

a change is warranted? If so, should the 

Judges adopt Petitioners’ preferred 

definition, which applies only to 

Educational Stations, or the broader, 

alternate definition? 

IV. SoundExchange Petition 

SoundExchange proposes several 

amendments in eight areas of the 

current regulations, which, it asserts, 

will better reflect and accommodate the 

large and growing number of services 

paying royalties under the section 112 

and 114 licenses.5 The proposed 

amendments seek ‘‘to address important 

operational problems affecting the 

accuracy of royalty distributions and to 

ensure that the regulations will remain 

workable as the digital music market 

continues to mature and the scale of 

reporting increases.’’ See SX Petition at 

2. In SoundExchange’s view, the 

suggested amendments described herein 

reflect the elements frequently reported 

incorrectly by licensees and strike the 

requisite balance between not being too 

burdensome on services and meeting 

the statutory purpose of ensuring that 

the proper copyright owners and 

performers are compensated for the use 

of their work. Id. 

A. Report of Use and Statement of 

Account Consolidation, Matching, and 

Identification 

In its petition, SoundExchange 

describes the difficulties it currently 

faces in matching (1) the royalty 

payments made by licensees to (2) the 

statement of account (SOA) ‘‘allocating 

the payment to a specific service and 

time period and reflecting the 

calculation of the payment’’ and (3) the 

report of use (ROU) ‘‘detailing the usage 

corresponding to the payment.’’ Id. at 5. 

Such difficulty, according to 

SoundExchange, results, in part, from 

licensees that offer multiple services 

consolidating their reporting and 

identifying their services in ways that 

hinder SoundExchange’s ability to 

credit payments to the appropriate 

licensee and to make accurate 

distributions based on actual usage. Id. 

SoundExchange asserts the proposed 

amendments in this area will allow 

SoundExchange easily to discern the 

relationship between payment and 

usage from the documents provided by 

the licensee. To that end, 

SoundExchange proposes a number of 

amendments. 


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6SoundExchange notes that it currently uses 

numerical identifiers on an internal basis to better 

identify accounts ‘‘easily and unambiguously.’’ Id. 

at 10. The proposed language would apply only to 

those services for which SoundExchange has 

assigned such identifier. Id. 

1. Consolidation and Matching 

First, SoundExchange seeks a 

requirement that payments, SOAs, and 

ROUs for affiliated entities be provided 

at the enterprise level, if feasible. Id. at 

7. If not, then SoundExchange seeks a 

requirement that ‘‘any consolidation of 

ROUs and SOAs for affiliated licensees 

be the same; that is, that there be a oneto-one relationship between usage 

reported in an ROU and SOA unless 

SoundExchange and the licensee agree 

otherwise.’’ Id. at 7 (footnote omitted). 

In support of its proposal, 

SoundExchange points out that the oneto-one correspondence between ROUs 

and SOAs already exists for 

broadcasters under 37 CFR 

380.13(g)(1)(viii). Id. at 8. 

SoundExchange argues that requiring a 

service to identify itself by the same 

name on its SOAs and ROUs also would 

go a long way in establishing the desired 

one-to-one relationship. Currently, 

SoundExchange explains, ‘‘a single 

service frequently may be identified by 

different names on its SOAs and ROUs.’’ 

Id. at 8. To rectify this problem, 

SoundExchange proposes amendments 

to § 370.4(e)(7)(i)(A) and (e)(5), requiring 

identification of the service on both the 

SOA and ROU by the ‘‘most specific 

service name appropriate to the level of 

consolidation . . . at the enterprise 

level, if feasible,’’ and using that same 

name on the ROU file name, 

respectively. Id. at 9. 

SoundExchange points out that it 

recognizes that services may need a 

certain amount of flexibility in the 

consolidation of their reporting, as well 

as the ability to periodically change that 

consolidation. Such flexibility, 

however, according to SoundExchange, 

hinders its ability to ‘‘relate the name 

used on a particular associated SOA and 

ROU to the specific service offerings 

and relevant parent enterprise and 

payment history.’’ Id. at 9. To 

accommodate such flexibility for the 

licensee and maintain its ability to 

properly match payments to the proper 

account, SoundExchange proposes 

amendments to §§ 370.3(d) and 

370.4(e)(7)(i)(B), requiring services to 

provide on its SOA, ROU, and payment 

an account number/identification 

number assigned by 

SoundExchange.6 Id. at 10. 

Next, SoundExchange contends that 

provision of separate ROUs should be 

required for each different type of 

service, in light of the current 

requirement that separate SOAs must be 

provided for services subject to different 

rates since payment calculations differ. 

Id. To make this requirement clear, 

SoundExchange proposes language be 

added to § 370.4(d)(1). 

2. ROU Headers and Category Codes 

SoundExchange requests that the 

Judges require the use of ROU file 

headers because such headers ‘‘identify 

the columns in the ROU to allow 

SoundExchange to (1) recognize readily 

when a licensee has submitted an ROU 

with the columns out of order . . . , and 

(2) be able to ingest such ROUs without 

manual intervention.’’ Id. at 10. 

Mandatory use of ROU file headers 

would, in SoundExchange’s opinion, 

‘‘significantly improve [its] ability to 

load ROUs without manual intervention 

and/or follow-up with the service.’’ Id. 

SoundExchange specifically proposes to 

eliminate the report generation date and 

delimiters from the header format, as 

such requirements, in its opinion, are 

unimportant, and to add several new 

lines to the header (and the reasons 

therefor): 

Station call letters, if multiple broadcast 

stations are included in the log, in order to 

allow SoundExchange to identify the scope 

of usage covered by the ROU before ingesting 

it. 

Audience measurement type (ATH 

(aggregate tuning hours) or ATP (actual total 

performances)), so it will be clear which type 

of usage is reported in the ROU. 

Checksum (total audience measurement 

reported on the ROU) in order to allow 

SoundExchange to confirm whether it 

received and ingested all of the data the 

licensee intended to provide, and thereby 

minimize effort and reduce the risk of 

inaccurate distribution if an ROU is 

corrupted. 

Character encoding format used in the file, 

in order to allow SoundExchange to read 

contents of the file as the licensee intended 

them. 

Digital signature certifying the ROU, if the 

licensee chooses to include the signature in 

the ROU itself, in order to provide a 

permissible location for the signature 

currently required under 37 CFR 370.4(d)(4). 

SX Petition at 11. 

SoundExchange acknowledges that 

licensees initially opposed providing 

name and contact information in an 

ROU header as ‘‘unnecessarily 

burdensome’’ since that information 

appears elsewhere in the ROU as well 

as in the Notice of Use. Id. at 12, citing 

71 FR 59010, 59012 (Oct. 6, 2006). 

SoundExchange attempts to refute this 

contention, arguing: (1) That 

information in the notices of use can be 

out of date, (2) licensees frequently fail 

to provide contact information in a 

cover letter or email, as currently 

required by 37 CFR 370.4(e)(3)(ii) and 

(iii), and (3) the possible separation of 

the ROU and such external documents. 

Id. at 12. Adoption of this proposal, 

SoundExchange points out, would 

render the current provisions in 

§ 370.4(e)(3)(ii) and (iii) superfluous and 

suggests their deletion. 

SoundExchange also asserts that 

adoption of its proposed amendments 

regarding consolidation, matching, and 

account numbers/identifiers, see supra, 

would enable the deletion of the current 

category codes required in 37 CFR 

370.4(d)(2)(ii). SoundExchange explains 

category codes can be useful ‘‘for 

distinguishing different types of 

transmissions with different royalty 

rates when they are combined in a 

single ROU, and for matching ROUs to 

SOAs when the matching is not 

otherwise apparent.’’ Id. at 14. This 

purpose, according to SoundExchange, 

would be fulfilled by the above 

proposed amendments. Should the 

Judges decide not to adopt the proposed 

amendments concerning consolidation 

and matching, SoundExchange requests 

retention of the category codes 

requirement, provided that such codes 

are updated to reflect current rate 

structures. SoundExchange asserts that 

such updates can be done either by the 

Judges through their notice and 

recordkeeping authority under 17 U.S.C. 

803(c)(3), or their authorization of 

SoundExchange to publish an updated 

list of codes. Id. 

3. Direct Delivery of Notices of Use 

Services intending to operate under 

the section 112 and 114 licenses of the 

Copyright Act must file a Notice of Use 

(NOU) with the Licensing Division of 

the Copyright Office. 37 CFR 370.2. 

SoundExchange describes the NOU’s 

importance to its distribution process, 

namely, information in the NOU is used 

to set up the database records of 

licensees and services from whom 

payment is expected. Id. at 13. The 

current regulations, SoundExchange 

laments, do not contain a mechanism to 

provide it with timely receipt of the 

NOU. To satisfy its operational need for 

access to NOUs, SoundExchange 

proposes changes to § 370.2(d) to 

require licensees to send copies of their 

NOUs to SoundExchange, either by mail 

or email, at the same time they file them 

with the Copyright Office. Id. at 14. 

B. Flexibility in Reporting Format 

SoundExchange seeks to have 

codified in the recordkeeping 

regulations the already-recognized 

ability of it and licensees to vary 

reporting requirements by agreement. 

Id. at 15, citing 71 FR at 59012 (Oct. 6, 


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7SoundExchange uses its proposal regarding 

ROU signatures to urge the Judges to exercise their 

authority under 17 U.S.C. 803(c)(4) to eliminate the 

requirement of a handwritten signature on 

statements of account provided pursuant to 37 CFR 

380.4(f)(3), 380.13(f)(3), 380.23(f)(4), and 384.4(f)(3). 

The Judges decline SoundExchange’s invitation as 

moot. The Judges addressed §§ 380.4, 380.13 and 

380.23 in their Initial Determination on Remand in 

the Webcasting III proceeding, see Determination 

After Remand of Rates and Terms for Royalty Years 

2011–2015, Docket No. 2009–1 CRB Webcasting III 

(Jan. 9, 2014), and the Judges’ adoption of the 

parties’ settlement agreement in the Business 

Establishments II proceeding removed the 

handwritten signature requirement in § 384.4(f)(3). 

See, 78 FR 66276 (Nov. 5, 2013). 

8SoundExchange defines ‘‘re-records’’ as those 

instances where an artist has recorded his/her most 

popular songs multiple times, e.g., with a different 

band, a different label, ‘‘live’’ versus original album. 

Id. at 20. 

9SoundExchange notes that ISRCs ‘‘are widely 

used by record companies and most digital 

distribution companies for purposes of rights 

administration, and are used for reporting purposes 

in direct license arrangements between record 

companies and webcasting and on-demand 

services.’’ Id. at 22. 

10SoundExchange states that licensees frequently 

report as ‘‘various’’ the artists on a compilation with 

multiple artists. Id. at 20. The Judges note that the 

Copyright Office specifically deemed such 

identification as unacceptable. See 69 FR 11524 

(Mar. 11, 2004) (‘‘[W]here the sound recording 

performed is taken from an album that contains 

various featured artists, i.e., a compilation, it is not 

acceptable to report the featured artist as ‘Various.’ 

The featured artist of the particular sound recording 

track performed must be reported.’’). 

2006)(‘‘[C]opyright owners and services 

are always free to negotiate different 

format and delivery requirements that 

suit their particular needs and situations 

. . .’’). Moreover, the proposed 

amendments, argues SoundExchange, 

will entice licensees to ‘‘do business 

with SoundExchange electronically,’’ 

which in turn will result in more 

efficiency for both SoundExchange and 

licensees. 

1. Certification/Signature Requirements 

The current regulations require that 

ROUs ‘‘include a signed statement’’ by 

the appropriate officer or representative 

attesting to the accuracy of the 

information provided in the ROU. 37 

CFR 370.4(d)(4). SoundExchange points 

out that the regulation does not require 

a handwritten signature and notes that 

in practice an electronic signature has 

been embedded in the ROU or provided 

in a cover email or ‘‘other ancillary 

document.’’ SX Petition at 16. To better 

reflect current practices and allow for 

future possibilities, SoundExchange 

proposes adding language to 

§ 370.4(d)(4) to read ‘‘Reports of Use 

shall include or be accompanied by a 

signed statement . . .’’.7

2. Character Encoding 

SoundExchange asserts that the 

current requirement that ROUs be 

provided in the form of ASCII text files 

hampers its ability to make accurate 

distributions of royalties. SX Petition at 

17. In SoundExchange’s opinion, the 

ASCII character encoding format is 

outdated and suffers from myriad 

limitations, e.g., allowance of encoding 

for only 128 characters and the inability 

to support non-Latin alphabets, 

including certain marks used in such 

alphabets, used in several other 

languages. Consequently, 

SoundExchange concludes, ‘‘many or 

most computer systems have migrated 

to more modern character encoding 

formats,’’ of which there are ‘‘many 

alternatives.’’ Id. SoundExchange 

reports that ROUs apparently are 

provided in 5 to 10 different non-ASCII 

character encoding formats, although 

licensees do not identify what formats 

they use. This lack of information, 

SoundExchange states, leaves it ‘‘trying 

to guess what character encoding was 

used, and risks loss of data if the wrong 

format is used to read the ROU when it 

is loaded.’’ Id. at 18. 

SoundExchange’s proposed solution 

to this problem is to ‘‘modernize’’ the 

regulations by: 

Recognizing the reality that services use 

encoding formats other than ASCII by 

providing flexibility for them to choose an 

appropriate encoding format. 

Requiring licensees to identify the 

character encoding format they use and 

include it in the ROU header, so that 

SoundExchange can read ROUs as they were 

intended, convert them properly, and not 

lose data. 

Requiring use of the UTF–8 encoding 

format if feasible. . . . 

Id. SoundExchange recommends use of 

the UTF–8 format because, in its 

opinion, ‘‘it can support every system of 

writing . . . [so its] use should generally 

be feasible’’; ‘‘it is probably the 

dominant character encoding format 

today, and its use has become a best 

practice’’; and ‘‘[i]t is the default 

character encoding format in major 

Linux/Unix operating system 

implementations, which tend to be used 

by larger licensees.’’ Id. Regardless of 

the preference for the UTF–8 format, 

SoundExchange makes assurances that 

it can accept other encoding formats as 

long as licensees identify the format 

used. Id. 

3. XML File Format 

Another proposal made by 

SoundExchange with regard to the 

requirement that ROUs be provided in 

text file format is to allow XML 

(Extensible Markup Language) as an 

alternative, but not mandatory, format 

for delivery of ROUs. Id. at 19. 

SoundExchange describes XML as ‘‘a 

common and flexible means of encoding 

documents’’ offering ‘‘many advantages 

over text files,’’ such as allowing ‘‘more 

flexible inclusion in ROU data files of 

information that now must be included 

in the file name or header, enabl[ing] 

variable fields . . . , facilitat[ing] 

automatic validation of ROUs, 

allow[ing] real-time streaming of ROU 

data, and otherwise simplify[ing] 

SoundExchange’s processing of ROUs.’’ 

Id. 

C. Facilitating Unambiguous 

Identification of Recordings 

SoundExchange recounts that 

throughout the history of these notice 

and recordkeeping regulations, ‘‘the 

most contentious issues have generally 

concerned the data items required to be 

reported on the individual lines of an 

ROU to identify the specific recordings 

used by a service.’’ SX Petition at 19. 

SoundExchange alleges that the current 

set of data elements do not allow for the 

unambiguous identification of 

recordings; as a result, SoundExchange 

states that a ‘‘significant number’’ of 

such recordings cannot be identified. Id. 

at 20. SoundExchange identifies three 

areas of reporting as illustrative of this 

problem: Compilations, re-records,8 and 

classical music. 

In relation to compilations and rerecords, SoundExchange characterizes 

the failure of licensees to provide the 

International Standard Recording Code 

(ISRC) 9 as the primary impediment to 

its ability to identify the sound 

recording. Id. Although licensees 

currently can report the album and label 

name as an alternative to the ISRC, see 

§ 370.4(d)(2)(v), SoundExchange 

contends that this alternative can be 

problematic with respect to 

compilations because (1) the album title 

differs from the original album on 

which the recording appeared, (2) the 

album title is ambiguous, e.g., ‘‘Greatest 

Hits,’’ and (3) the label distributing the 

compilation differs from the label 

distributing the original album. Id.10

Similar problems exist with respect to 

re-records, according to 

SoundExchange, because oftentimes 

‘‘the payees are different for each of the 

recordings due to different copyright 

owners, different ‘featured artists’ . . . 

changing membership of a featured 

band over time, different producers, and 

different nonfeatured artists.’’ Id. at 20– 

21. 

To rectify these issues, 

SoundExchange proposes requiring 

licensees to provide the ISRC (where 

available), as well as the album title and 

marketing label, as preexisting 

subscription services (PSS) currently are 


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11The regulations governing webcasting, where 

royalties are paid on a per-performance basis, 

exclude from the definition of ‘‘performance’’ those 

sound recordings not requiring a license and those 

that are licensed separately. See 37 CFR 380.2, 

380.11, and 380.21. 

12For 2012, SoundExchange states that 41% of 

the ROUs received were submitted more than five 

days late, 31% of licensees never submitted any 

ROU, and 585 licensees submitted ROUs with an 

average match rate under 50%. Moreover, according 

to SoundExchange, in 2012, 69% of licensees have 

failed at least once to submit a required ROU. Id. 

at 26. 

13 ‘‘Proxy data,’’ as defined by SoundExchange, is 

‘‘data about usage, other than the actual usage for 

which the relevant royalties were paid, which is 

used in place of (i.e., as a ‘proxy’ for) data 

concerning the actual relevant usage in making a 

royalty distribution.’’ Id. at 27 n13. 

required to do under 37 CFR 370. 

3(d)(5), (6), (8). The benefits for this 

change, in SoundExchange’s opinion, 

are twofold: (1) It represents the 

‘‘easiest’’ solution for services to 

implement because ISRCs are typically 

available to the services, and (2) it 

provides the ‘‘greatest positive effect’’ to 

SoundExchange’s match rate. Id. at 22. 

With respect to classical music, 

SoundExchange charges that services’ 

incorrect identification of classical 

tracks—namely, reporting the 

composers as artists, in direct 

contravention of the Copyright Office’s 

‘‘clear instructions’’ to the contrary— 

severely hamper its ability to 

unambiguously identify the sound 

recording. Id. at 21 citing 69 FR 11523– 

24 (Mar. 11, 2004). SoundExchange 

recommends the following amendments 

to § 370.4(d)(2): 

Rather than completing the current 

featured artist field, a service would identify 

the featured artist by reporting (1) ensemble 

(i.e., name of orchestra or other group), (2) 

conductor, and (3) soloist(s), where 

applicable, to the extent that any of the 

foregoing is identified on the commercial 

product packaging. 

Rather than completing the current sound 

recording title field, a service would identify 

the sound recording title by reporting (1) 

composer, (2) title of overall work, and (3) 

title of movement or other constituent part of 

the work, if applicable. 

Id. at 24. These proposed amendments, 

in SoundExchange’s estimation, 

‘‘specify clearly the level of precision 

necessary to identify the featured artist 

and sound recording title of classical 

tracks’’ with minimal impact on text 

and XML format reports. Id. 

D. Reporting Non-Payable Tracks 

The rate structure adopted by the 

Judges in their recent decision setting 

the rates and terms under sections 112 

and 114 for satellite digital audio radio 

services (SDARs) allows services to 

exclude use of certain categories of 

sound recordings from royalty 

payments.11 See Determination of Rates 

and Terms for Preexisting Subscription 

Services and Preexisting Satellite Digital 

Audio Radio Services, Final rule and 

order, Docket No. 2011–1 CRB PSS/

Satellite II, 78 FR 23054, 23072–73 (Apr. 

17, 2013) (deductions allowed for 

directly licensed recordings and pre1972 recordings). The regulations 

governing SDARs require the service to 

identify the tracks for which it claims an 

exclusion from royalties. See 37 CFR 

382.13(h). SoundExchange requests the 

Judges to include in these notices and 

recordkeeping regulations a similar 

provision ‘‘requiring that ROUs for [any] 

service relying on the statutory licenses 

include reporting of all recordings used 

by the service, with a new field flagging 

any usage excluded from the service’s 

royalty payment.’’ Id. at 26 (footnote 

omitted). SoundExchange argues that 

requiring all services to identify any 

excluded sound recordings better 

enables SoundExchange to ensure the 

accuracy of a service’s royalty 

payments. Id. The proposed provision, 

SoundExchange points out, only affects 

those services that exclude sound 

recordings from their royalty payments. 

E. Late or Never-Delivered ROUs 

SoundExchange proposes 

amendments to address those instances 

where a licensee submits its ROU late, 

never submits an ROU, or submits an 

unusable ROU.12

1. Proxy Distribution 

First, SoundExchange seeks from the 

Judges standing authorization to use 

proxy data 13 for distribution of royalties 

in those instances where a licensee 

either fails to submit an ROU or submits 

an ROU that is unusable and the 

likelihood of SoundExchange obtaining 

meaningful information in order to 

effectuate a distribution is small. Id. at 

28. SoundExchange notes that proxy 

distributions have been authorized in 

two prior instances: (1) In 2004, the 

ROUs submitted by PSS constituted the 

proxy data for distributions to all other 

types of services for the period 1998– 

2004, see 69 FR 58261 (Sept. 30, 2004); 

and (2) in 2011, for the period 2004– 

2009, ROUs of other services of the 

same type for a particular calendar year 

served as proxy data for those services 

not submitting an ROU during that 

calendar year. See 37 CFR 370.3(i), 

370.4(f). 

Unlike in the prior instances of proxy 

distributions, where the distribution 

methodology was specified in the 

regulations, the language proposed by 

SoundExchange here is more general in 

that it does not specify a particular 

methodology. SoundExchange charges 

that ‘‘a standing regulation (as opposed 

to one targeted at a one-time 

distribution and based on an analysis of 

the situation at that time) should 

provide flexibility for SoundExchange 

to reassess the details of the distribution 

methodology from time to time to 

achieve fair results based on 

circumstances at that time and its most 

recent data and experience.’’ Id. at 29. 

Given the composition of its board of 

directors—representatives of the 

recording industry (both major and 

independent labels), recording artists, 

artist representatives and music 

organizations—SoundExchange argues 

that it is ‘‘well-situated to make a 

determination of when a proxy 

distribution is justified and of what 

precise methodology should be 

employed.’’ Id. 

The Judges recognize that the 

distribution methodology may not 

necessarily have to be specified in a 

regulation; however, the Judges believe 

that SoundExchange should have to 

disclose the methodology serving as the 

basis for a proxy distribution and afford 

copyright owners and performers an 

opportunity to object to the proffered 

methodology. Thus, the Judges seek 

comment on how to accomplish these 

goals without codification in a 

regulation. Should the amended 

regulation include language requiring 

SoundExchange to post the proffered 

methodology for a particular proxy 

distribution on its Web site and provide 

a timeframe in which affected copyright 

owners and performers may object? 

What is an adequate and reasonable 

timeframe for objections to be lodged? If 

there is an objection, what process 

should be adopted in order to resolve 

the objection? Is there some other 

process? 

2. Late Fees 

Next, SoundExchange urges the 

Judges to impose a late fee for ROUs that 

are untimely and/or noncompliant. Id. 

at 29. The proposed language offered by 

SoundExchange states, in pertinent part, 

that the late fee ‘‘shall accrue from the 

due date of the [ROU] until a fully 

compliant [ROU] is received by the 

Collective or the relevant royalties are 

distributed pursuant to [a proxy 

distribution], provided that, in the case 

of a timely provided but noncompliant 

[ROU], the Collective’’ notifies the 

Service within 90 days of ‘‘any 

noncompliance that is reasonably 


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14The proposed language mirrors that adopted by 

the Judges in §§ 380.13(e) and 380.23(e), which, 

SoundExchange acknowledges, resulted from 

settlement agreements between SoundExchange and 

certain webcasters. Id. at 30. 

15ROUs for PSS would remain 45 days after the 

close of the relevant reporting period. See 37 CFR 

370.3(b). 

16 ‘‘Minimum fee broadcasters’’ still report on a 

quarterly basis. See 37 CFR 370.4(d)(3). 

evident to the Collective.’’ 14 See SX 

Petition at Exhibit B at proposed 

§ 370.6(a). 

In support of its proposal, 

SoundExchange stresses that the ROU’s 

importance to the distribution process 

equals that of the royalty payment and 

the SOA, namely, without it, no 

distribution can be made. Id. at 30. 

SoundExchange notes that the Judges 

have imposed late fees for late payments 

and late SOAs, see, e.g., 37 CFR 

382.13(d), and argues that the same 

reasoning supports adoption of a late fee 

for ROUs, especially in light of the 

frequency with which ROUs are 

submitted in an untimely and/or 

noncompliant manner. Id. Finally, 

SoundExchange claims that in its 

experience the late fees imposed for 

SOAs promote compliance. Id. 

The Judges specifically seek comment 

on SoundExchange’s proposal to have 

the late fee accrue from the original due 

date until receipt by SoundExchange of 

a fully compliant ROU, in light of the 

Judges’ previously stated concern that a 

late fee provide ‘‘an effective incentive’’ 

to comply in a timely manner without 

being ‘‘punitive.’’ See 73 FR 4080, 4099 

(Jan. 24, 2008). Does the proposed 

language assuage that concern? If not, 

should the Judges impose a cap on the 

amount of late fees SoundExchange can 

collect? If so, what should the cap be? 

3. Accelerated Delivery of ROUs 

Finally, SoundExchange asks the 

Judges to change the due date for ROUs 

submitted by all non-PSS services from 

the current 45 days after the close of the 

relevant reporting period to 30 

days.15SX Petition at 30. The proposed 

change, in SoundExchange’s view, 

better reflects the ‘‘30-day [reporting] 

cycle for digital music services common 

under commercial music license 

agreements.’’ Id. SoundExchange 

contends the requirement of services to 

report on a monthly, rather than the 

previous quarterly, basis obviates the 

need for the 45-day due date.16 Id. 

Adoption of this proposed amendment, 

according to SoundExchange, will allow 

‘‘more time for data quality assurance 

without affecting the timing of 

distributions,’’ thereby expediting the 

distribution of royalties. Id. at 31. 

F. Correction of ROUs and SOAs 

Another impediment to its ability to 

smoothly execute the royalty 

distribution process alleged by 

SoundExchange is the ‘‘occasional’’ 

receipt of corrected ROUs and SOAs 

submitted by Services upon their own 

initiative. Id. at 31. By way of example, 

SoundExchange notes that Services 

paying on a percentage-of-revenue basis 

submit corrected SOAs to reflect an 

adjustment of their revenue for a certain 

period. Id. Submissions of corrected 

ROUs and SOAs, according to 

SoundExchange, cause major 

disruptions to the ‘‘flow of royalties 

through SoundExchange,’’ especially 

when such corrections are submitted 

after completion of the initial processing 

of a ROU/SOA. Id. To combat such 

disruptions, SoundExchange proposes 

the addition of a new § 370.6 which 

would bar licensees ‘‘from claiming 

credit for a downward adjustment in 

royalty allocations’’ when the corrected 

ROU/SOA is submitted 90 days after the 

submission of the initial ROU/SOA and 

would allow SoundExchange to 

‘‘allocate any adjustment to the usage 

reported on the service’s next ROU, 

rather than the ROU for the period being 

adjusted.’’ Id. The proposed 

amendment, in SoundExchange’s view, 

affords licensees ‘‘a fair opportunity to 

correct their own errors without 

unreasonably burdening the royalty 

distribution process.’’ Id. at 32. 

G. Recordkeeping 

SoundExchange also proposes 

amendments to the recordkeeping 

requirements. It contends that the 

current provisions in 37 CFR 370.3(h) 

and 370.4(d)(6) are useful but 

incomplete. SoundExchange contends 

that currently no clear mechanism exists 

to allow it to substantiate royalty 

payments that depend on the usage 

asserted on a service’s ROUs and SOAs. 

SoundExchange asserts that some 

services have adopted business rules 

systematically to exclude from their 

reported usage performances of less 

than a certain length, an exemption that 

SoundExchange represents is 

inconsistent with the CRB’s regulations. 

SX Petition at 33. SoundExchange 

contends that such instances of 

underreporting can be determined by 

comparing the usage reported on the 

ROUs to the original records from which 

the ROUs were generated. Id. To permit 

such comparison, SoundExchange 

proposes a change to § 370.4(d)(5) to 

require services to retain and provide 

access to unsummarized source records 

of usage in electronic form, such as 

server logs or other native data. Id. 

Where a licensee relies upon a thirdparty contractor for its transmissions, 

SoundExchange proposes that the 

licensee be required to retain either 

server logs or native records of usage, if 

practicable, or, otherwise, retain the 

native data that the contractor provided 

to the licensee. Id. 

H. Proposals SoundExchange 

Characterizes as Housekeeping 

SoundExchange also proposes a 

number of changes that it characterizes 

as ‘‘housekeeping’’ changes. Although 

the Judges take no position at this time 

on whether any of the proposed changes 

in this section should be adopted, as a 

preliminary matter the Judges question 

whether certain of these proposals are 

properly characterized as 

‘‘housekeeping.’’ 

1. Quattro Pro Template 

SoundExchange proposes that the 

Judges delete the requirement in 37 CFR 

370.4(e)(2) that SoundExchange provide 

template ROUs in Quattro Pro format, 

which SoundExchange contends is no 

longer necessary. SX Petition at 34. 

2. Inspection of ROUs 

SoundExchange also proposes that the 

Judges amend the requirement in 37 

CFR 370.5(d) regarding the right to 

inspect ROUs. Id. SoundExchange 

proposes two changes to § 370.5(d). 

First, SoundExchange proposes to 

amend the rule to give featured artists 

the same right to inspect ROUs as 

copyright owners currently have. Id. at 

36. Second, SoundExchange proposes to 

remove the last sentence of § 370.5(d), 

which requires the Collective to use its 

best efforts, including searching 

Copyright Office public records and 

published directories of sound 

recording copyright owners, to locate 

copyright owners to make available 

reports of use. Id. SoundExchange 

contends that this provision reflects an 

outdated view of the way in which the 

section 114 license is administered and 

is no longer practicable. Id. 

3. Redundant Confidentiality Provisions 

SoundExchange proposes eliminating 

confidentiality provisions in §§ 370.3(g) 

and 370.4(d)(5), which, SoundExchange 

contends, are redundant, given the 

presence of a confidentiality provision 

in § 370.5(e) that applies to ROUs 

generally. Id. 

4. Clarification of New Subscription 

Services and Definition of Aggregate 

Tuning Hours 

SoundExchange also proposes 

amendments to clarify which new 

subscription services are subject to 


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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25045 

reporting on an aggregate tuning hour 

basis and which are required to report 

performances. Id. at 37. SoundExchange 

contends that there are two principal 

types of new subscription services, one 

of which provides a ‘‘PSS-like service 

through cable and satellite television 

distributors and pays royalties pursuant 

to 37 CFR Part 383 on a percentage of 

revenue basis’’ and one of which 

provides subscription webcasting and 

pays royalties pursuant to 37 CFR Part 

380 Subpart A on a per-performance 

basis. Id. SoundExchange contends that 

the former type of service was intended 

to be permitted to use the aggregate 

tuning hour reporting method but the 

latter was not. As a result, 

SoundExchange proposes that the 

Judges amend 37 CFR 370.4(d)(2)(vii) 

and the definition of aggregate tuning 

hours in 37 CFR 370.4(b)(1) to narrow 

the types of new subscription services 

that may use the aggregate tuning hour 

reporting method. Id. at 37–38. 

SoundExchange also proposes updating 

the list of services in the aggregate 

tuning hours definition in 37 CFR 

370.4(b)(1) entitled to report on an 

aggregate tuning hour basis purportedly 

to conform to changes to that list that 

the Judges adopted in 2009. Id. at 38. 

5. Miscellaneous 

SoundExchange proposes to change 

references to SoundExchange’s office 

location in 37 CFR 370.4(e)(4). A generic 

reference would replace the address 

listed in the current rule, which, 

SoundExchange states, is no longer 

accurate. Id. 

Next, SoundExchange proposes 

changes to 37 CFR 370.5(c) to state that 

SoundExchange must file an annual 

report by September 30 of the year 

following the reporting year. 

SoundExchange contends that the 

September 30 deadline would allow 

SoundExchange to have sufficient time 

after the end of the reporting year, to 

prepare a ‘‘typical corporate annual 

report incorporating the audited 

numbers.’’ Id. at 39. According to 

SoundExchange, the proposed 

September 30 deadline would supersede 

an earlier deadline set forth in a 2007 

order from the Judges in which they 

expressed a preference for 

SoundExchange to post its annual report 

no later than the end of the first quarter 

of the year following the year that is the 

subject of the report. See Order Granting 

in Part and Denying in Part Services’ 

Motion to Compel SoundExchange to 

Provide Discovery Relating to the 

Testimony of Barrie Kessler, Docket No. 

2005–5 CRB DTNSRA, at 3 (June 6, 

2007). 

Finally, SoundExchange’s remaining 

proposed amendments seek to: (1) 

Institute a consistent convention for 

capitalization of defined terms, which, 

SoundExchange states, the current rules 

lack, id.; (2) eliminate the term ‘‘AM/FM 

Webcast’’ in 37 CFR 370.4(b)(2) because, 

according to SoundExchange, the term 

does not appear in the current 

regulations, id. at 40; and (3) refer to the 

statutory licenses consistently as section 

114 and section 112(e), unless the 

circumstance indicates a more specific 

reference, id. 

V. Conclusion 

The Judges seek comment on each of 

the proposed amendments herein and 

request that commenters give special 

attention to those issues specifically 

identified by the Judges in relation to a 

particular proposed amendment. 

The Judges stress that, by setting forth 

the proposed amendments in this 

NPRM, the Judges are neither adopting 

them nor endorsing their adoption. The 

Judges will decide whether to adopt, 

modify, or reject any of the proposed 

amendments after reviewing any 

comments they receive in response to 

this NPRM. 

List of Subjects in 37 CFR Part 370 

Copyright, Sound recordings. 

Proposed Regulations 

In consideration of the foregoing, the 

Copyright Royalty Judges propose to 

amend 37 CFR part 370 as follows. 

PART 370—NOTICE AND 

RECORDKEEPING REQUIREMENTS 

FOR STATUTORY LICENSES 

■ 1. The authority citation for part 370 

continues to read as follows: 

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

114(f)(4)(A). 

■ 2. Amend § 370.1 as follows: 

■ a. By revising paragraph (a); 

■ b. In paragraph (b), by removing 

‘‘114(d)(2)’’ and adding ‘‘114’’ in its 

place each place it appears and by 

removing ‘‘preexisting subscription 

service, preexisting satellite digital 

audio radio service, nonsubscription 

transmission service, new subscription 

service, business establishment service’’ 

and adding ‘‘Preexisting Subscription 

Service, Preexisting Satellite Digital 

Audio Radio Service, Nonsubscription 

Transmission Service, New 

Subscription Service, Business 

Establishment Service’’ in its place; 

■ c. In paragraphs (e) through (g), by 

removing ‘‘service’’ and adding 

‘‘Service’’ in its place each place it 

appears; and 

■ d. In paragraph (i), by removing 

‘‘114(d)(2)’’ and adding ‘‘114’’ in its 

place. 

The revision reads as follows: 

§ 370.1 General definitions. 

* * * * * 

(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 of 

title 17, United States Code, or both, and 

is required under this part to be filed by 

a Service in the Copyright Office. 

* * * * * 

■ 3. Amend § 370.2 as follows: 

■ a. In paragraph (a), by removing 

‘‘114(d)(2)’’ and adding ‘‘114’’ in its 

place; 

■ b. In paragraph (b)(5), by removing 

‘‘subscription service, preexisting 

satellite digital audio radio service, 

nonsubscription transmission service, 

new subscription service or business 

establishment service’’ and adding 

‘‘Subscription Service, Preexisting 

Satellite Digital Audio Radio Service, 

Nonsubscription Transmission Service, 

New Subscription Service or Business 

Establishment Service’’ in its place; 

■ c. By revising paragraph (d); and 

■ d. In paragraph (e), by removing 

‘‘Recordings under’’ and adding 

‘‘Recordings Under’’ in its place. 

The revision reads as follows: 

§ 370.2 Notice of use of sound recordings 

under statutory license. 

* * * * * 

■ (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 

copy of each Notice also shall be sent 

to each Collective designated by 

determination of the Copyright Royalty 

Judges, at the physical address or 

electronic mail address posted on the 

Collective’s Web site or identified in its 

Notice of Designation as Collective 

under statutory license pursuant to 

§ 370.5(b). 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 


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25046 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

Licensing Division of the Copyright 

Office and send a copy of the Notice to 

each Collective prior to the making of 

the first ephemeral phonorecord of the 

sound recording and prior to the first 

digital transmission of the sound 

recording. 

* * * * * 

■ 4. Amend § 370.3 as follows: 

■ a. In paragraph (a), by removing 

‘‘reports of use’’ and adding ‘‘Reports of 

Use’’ in its place, by removing 

‘‘114(d)(2)’’ and adding ‘‘114’’ in its 

place, and by removing ‘‘preexisting 

subscription services’’ and adding 

‘‘Preexisting Subscription Services’’ in 

its place. 

■ b. In paragraph (c) introductory text, 

by removing ‘‘preexisting subscription 

service’’ and adding ‘‘Preexisting 

Subscription Service’’ in its place in the 

first sentence and by removing 

‘‘subscription services’’ and adding 

‘‘Subscription Services’’ in its place 

each place it appears; 

■ c. In paragraph (c)(2), by removing 

‘‘preexisting subscription service’’ and 

adding ‘‘Preexisting Subscription 

Service’’ in its place; 

■ d. Amend paragraph (d): 

■ i. By revising the introductory text; 

■ ii. In paragraph (1), by removing 

‘‘preexisting subscription service or 

entity’’ and adding ‘‘Preexisting 

Subscription Service’’ in its place; and 

■ iii. In paragraph (5), by removing 

‘‘preexisting subscription service’’ and 

adding ‘‘Preexisting Subscription 

Service’’ in its place. 

■ e. By revising paragraph (e); 

■ f. In paragraph (f), by revising the 

introductory text; 

■ g. By revising paragraph (f)(1); 

■ h. By removing paragraph (g); 

■ i. By redesignating paragraph (h) as 

paragraph (g); and 

■ j. By removing paragraph (i). 

The revisions read as follows: 

§ 370.3 Reports of use for sound 

recordings under statutory license for 

preexisting subscription services. 

* * * * * 

(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 the account number assigned to 

the Preexisting Subscription Service by 

the Collective (if the Preexisting 

Subscription Service has been notified 

of such account number by the 

Collective), the character encoding 

format used to generate the Report of 

Use (e.g., UTF–8), and the 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: 

* * * * * 

(e) Signature. Reports of Use shall 

include or be accompanied by 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, 

unless the Preexisting Subscription 

Service and the Collective have agreed 

otherwise: 

(1) Delimited text format, using pipe 

characters as delimiter, with no headers 

or footers, or XML (Extensible Markup 

Language) format, in either case with 

character encoding in the UTF–8 format 

if feasible; 

* * * * * 

■ 5. Revise § 370.4 to read as follows: 

§ 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 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 Preexisting Satellite 

Digital Audio Radio Service, a service as 

defined in § 383.2(h) of this chapter, a 

Business Establishment Service or a 

Nonsubscription Service qualifying as a 

Minimum Fee Broadcaster 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 transmissions by means of a 

Preexisting Satellite Digital Audio Radio 

Service, a service as defined in 

§ 383.2(h) of this chapter, a Business 

Establishment Service or a 

Nonsubscription Service qualifying as a 

Minimum Fee Broadcaster, less the 

actual running time of any sound 

recordings for which the Service has 

obtained direct licenses apart from 17 

U.S.C. 114 or which do not require a 

license under United States copyright 

law. For example, if a Minimum Fee 

Broadcaster transmitted one hour of 

programming to 10 simultaneous 

listeners, the Minimum Fee 

Broadcaster’s Aggregate Tuning Hours 

would equal 10. If 3 minutes of that 

hour consisted of transmission of a 

directly licensed recording, the 

Minimum Fee Broadcaster’s Aggregate 

Tuning Hours would equal 9 hours and 

30 minutes. If one listener listened to 

the transmission of a Minimum Fee 

Broadcaster for 10 hours (and none of 

the recordings transmitted during that 

time was directly licensed), the 

Minimum Fee Broadcaster’s Aggregate 

Tuning Hours would equal 10. 

(2) A Minimum Fee Broadcaster is a 

Nonsubscription Transmission Service 

whose 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(e) and 114; and 

either: 

(i) Meets the definition of a 

broadcaster pursuant to § 380.2 of this 

chapter; or 

(ii) Is directly operated by, or 

affiliated with and officially sanctioned 

by a domestically accredited primary or 

secondary school, college, university or 

other post-secondary degree-granting 

educational institution; and 

(iii) The digital audio transmission 

operations of which are, during the 

course of the year, staffed substantially 

by students enrolled in such 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; and 

(v) Is exempt from taxation under 

section 501 of the Internal Revenue 

code, has applied for such exemption, 

or is operated by a State or possession 

or any governmental entity or 

subordinate thereof, or by the United 

States or District of Columbia, for 

exclusively public purposes. 

(3) 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 


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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25047 

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). 

(4) 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 thirtieth day after the 

close of each reporting period identified 

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

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

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 

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. 

However, a provider of Services subject 

to different statutory rates shall provide 

a separate Report of Use for each such 

type of Service. When corporate 

affiliates provide multiple Services of 

the same type, they shall if feasible 

consolidate their reporting onto a single 

Report of Use for that type of Service. 

Each Report of Use must cover the same 

scope of activity (e.g., the same Service 

offering and the same channels or 

stations) as any related statement of 

account, unless the Service and the 

Collective have agreed otherwise. 

(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 

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, whether 

or not the Service is paying statutory 

royalties for the particular sound 

recording; 

(i) The name of the Nonsubscription 

Transmission Service, Preexisting 

Satellite Digital Audio Radio Service, 

New Subscription Service or Business 

Establishment Service making the 

transmissions; 

(ii) The featured artist, except in the 

case of a classical recording; 

(iii) The sound recording title, except 

in the case of a classical recording; 

(iv) The International Standard 

Recording Code (ISRC), where available 

and feasible; 

(v) The album title; 

(vi) The marketing label; 

(vii) For a Nonsubscription 

Transmission Service except those 

qualifying as Minimum Fee 

Broadcasters and for a New 

Subscription Service other than a 

service as defined in § 383.2(h) of this 

chapter: The actual total Performances 

of the sound recording during the 

reporting period; 

(viii) For a Preexisting Satellite Digital 

Audio Radio Service, a service as 

defined in § 383.2(h) of this chapter, 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; 

(ix) In the case of a classical 

recording: 

(A) The ensemble (e.g., orchestra or 

other group) identified on the 

commercial product packaging, if any; 

(B) The conductor identified on the 

commercial product packaging, if any; 

(C) The soloist(s) identified on the 

commercial product packaging, if any; 

(D) The composer of the relevant 

musical work; 

(E) The overall title of the relevant 

musical work (e.g., the name of a 

symphony); and 

(F) The title of the relevant movement 

or other constituent part of the musical 

work, if applicable; and 

(x) The letters ‘‘NLR’’ (for ‘‘no license 

required’’) if the Service has excluded 

the sound recording from its calculation 

of statutory royalties in accordance with 

regulations setting forth the applicable 

royalty rates and terms because 

transmission of the sound recording 

does not require a license, or the letters 

‘‘DL’’ (for ‘‘direct license’’) if the Service 

has excluded the sound recording from 

its calculation of statutory royalties in 

accordance with regulations setting 

forth the applicable royalty rates and 

terms because the Service has a license 

directly from the copyright owner of 

such sound recording. 

(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 or be accompanied by 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) 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. During that period, a 

Service shall also keep and retain in 


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25048 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

machine-readable form unsummarized 

source records of usage underlying the 

Report of Use, such as server logs. If the 

Service uses a third-party contractor to 

make transmissions and it is not 

practicable for the Service to obtain and 

retain unsummarized source records of 

usage underlying the Report of Use, the 

Service shall keep and retain the 

original data concerning usage that is 

provided by the contractor to the 

Service. 

(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 (7) of this section. A hard 

copy Report of Use is not permissible. 

(2) File format: facilitation by 

provision of spreadsheet templates. All 

Report of Use data files must be 

delivered in text or XML (Extensible 

Markup Language) format, with 

character encoding in the UTF–8 format 

if feasible. 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 

instruction on how to convert such 

spreadsheets to UTF–8 text files that 

conform to the format specifications set 

forth below. Further, technical support 

and cost associated with the use of the 

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 any mechanism agreed 

upon between the Service and 

SoundExchange, or by File Transfer 

Protocol (FTP), email, 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 email shall append the Report 

as an attachment to the email. 

(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. 

(4) Delivery address. Reports of Use 

shall be delivered to SoundExchange at 

the physical or electronic mail address 

posted on its Web site or identified in 

its Notice of Designation as Collective 

under statutory license pursuant to 

§ 370.5(b). SoundExchange shall 

forward electronic copies of these 

Reports of Use to any 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, consisting 

of the most specific service name 

appropriate to the scope of usage 

reflected in the Report of Use and 

statement of account, 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 text or XML 

(Extensible Markup Language) format, 

with character encoding in the UTF–8 

format if feasible. 

(ii) A Report of Use must be 

compressed in one of the following 

zipped formats: 

(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) Services 

shall submit files with headers, in 

which the following elements, in order, 

must occupy the first 17 rows of a 

Report of Use: 

(A) Name of Service as it appears on 

the relevant statement of account, which 

shall be the most specific service name 

appropriate to the scope of usage 

reflected in the Report of Use and 

statement of account; 

(B) The account number assigned to 

the Service by the Collective for the 

relevant Service offering (if the Service 

has been notified of such account 

number by the Collective); 

(C) Name of contact person; 

(D) Street address of the Service; 

(E) City, state and zip code of the 

Service; 

(F) Telephone number of the contact 

person; 

(G) Email address of the contact 

person; 

(H) Start of the reporting period 

(YYYYMMDD); 

(I) End of the reporting period 

(YYYYMMDD); 

(J) Station call letters, if multiple 

broadcast stations are included in the 

Report of Use, or otherwise a blank line; 

(K) Number of rows in data file, 

beginning with 18th row; 

(L) Checksum (the total of the 

audience measurements reported on the 

Report of Use); 

(M) Audience measurement type 

(ATP if the Service reports actual total 

Performances, ATH if the Service 

reports Aggregate Tuning Hours); 

(N) Character encoding format used to 

generate the Report of Use (e.g., UTF– 

8); 

(O) Digital signature pursuant to 

paragraph (d)(4) of this section, if 

included in the Report of Use; 

(P) Blank line; and 

(Q) Report headers (Featured Artist, 

Sound Recording Title, etc.). 

(ii) Each of the rows described in 

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

this section must not exceed 255 

alphanumeric characters. Each of the 

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

and (I) of this section should not exceed 

eight alphanumeric characters. 

(iii) Data text fields, as required by 

paragraph (d)(2) of this section, begin on 

row 18 of a Report of Use. 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. 

■ 6. Amend § 370.5 as follows: 

■ a. By revising paragraph (a); 

■ b. In paragraph (c), by adding ‘‘The 

Collective should post its Annual 

Report by no later than September 30 of 

the year following the year that is the 

subject of the report.’’ after 

‘‘administrative expenses.’’; 

■ c. By revising paragraph (d); and 

■ d. By adding new paragraph (g). 

The revisions and addition read as 

follows: 

§ 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 made available under 

section 112(e) and 114 of title 17 of the 

United States Code. 

* * * * * 

(d) Inspection of Reports of Use by 

copyright owners and featured artists. 

The Collective shall make copies of the 

Reports of Use for the preceding three 


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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25049 

years available for inspection by any 

sound recording copyright owner or 

featured artist, 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 or featured artist, and 

the copyright owner’s or featured artist’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. 

* * * * * 

(g) Authority to agree to special 

reporting arrangements. A Collective is 

authorized to agree with Services 

concerning reporting requirements to 

apply in lieu of the requirements set 

forth in this part. 

■ 7. Add new §§ 370.6 and 370.7 to read 

as follows: 

§ 370.6 Late reports of use. 

(a) Late fee. A Service shall pay a late 

fee for each instance in which any 

Report of Use is not received by the 

Collective in compliance with the 

regulations in this part by the due date. 

Such late fee shall be a monthly 

percentage of the payment associated 

with the late Report of Use, where such 

percentage is the percentage rate 

specified for late payments in the 

applicable regulations setting forth 

royalty rates and terms for Services of 

that type. The late fee shall accrue from 

the due date of the Report of Use until 

a fully compliant Report of Use is 

received by the Collective or the 

relevant royalties are distributed 

pursuant to paragraph (b) of this section, 

provided that, in the case of a timely 

provided but noncompliant Report of 

Use, the Collective has notified the 

Service within 90 days regarding any 

noncompliance that is reasonably 

evident to the Collective. 

(b) Proxy distribution. In any case in 

which a Service has not provided a 

compliant Report of Use required under 

this part for use of sound recordings 

under section 112(e) or section 114 of 

title 17 of the United States Code, or 

both, and the board of directors of the 

Collective determines that further efforts 

to seek missing Reports of Use from the 

Service would not be warranted, the 

Collective may determine that it will 

distribute the royalties associated with 

the Service’s missing Reports of Use on 

the basis of a proxy data set approved 

by the board of directors of the 

Collective. 

§ 370.7 Correction of reports of use and 

statements of account. 

If a Service discovers that it has 

submitted a Report of Use or statement 

of account for a particular reporting 

period that is in error, the Service 

should promptly deliver to the 

Collective a corrected Report of Use or 

statement of account, as applicable. 

However, more than 90 days after the 

Service’s first submission of a Report of 

Use or statement of account for a 

particular reporting period, as the case 

may be, the Service cannot claim credit 

for a reduction in royalties by 

submitting a corrected Report of Use or 

statement of account for the reporting 

period. Subject to the foregoing, when a 

Service submits a corrected Report of 

Use or statement of account for a prior 

reporting period, the Collective may 

allocate any upward or permitted 

downward adjustment in the Service’s 

royalty obligations to the usage reported 

on the Service’s next Report of Use 

provided in the ordinary course. 

Dated: February 20, 2014. 

Suzanne M. Barnett, 

Chief U.S. Copyright Royalty Judge. 

[FR Doc. 2014–09798 Filed 5–1–14; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R10–OAR–2012–0557; FRL–9910–30– 

Region 10] 

Approval and Promulgation of 

Implementation Plans; Swinomish 

Indian Tribal Community; Tribal 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

approve a Tribal implementation plan 

(TIP) submitted by the Swinomish 

Indian Tribal Community (SITC or the 

Tribe). The TIP was submitted to the 

EPA on June 28, 2012, and 

supplementary submittals were received 

on September 24, 2013, November 18, 

2013, and January 28, 2014. The TIP 

establishes regulations for open burning 

that will apply to all persons within the 

exterior boundaries of the Swinomish 

Reservation (the Reservation). The EPA 

approved the SITC for treatment in the 

same manner as a State (TAS) to 

regulate open burning on the 

Swinomish Reservation under the Clean 

Air Act (CAA or the Act) on February 

16, 2010. This action proposes to 

federally approve the TIP. If the EPA 

finalizes this approval, the provisions of 

the TIP would become federally 

enforceable. Upon the effective date of 

a final action to approve the TIP, the 

SITC’s open burning TIP would replace 

the Federal Implementation Plan (FIP) 

provisions regulating open burning 

within the exterior boundaries of the 

Swinomish Reservation. 

DATES: Comments must be received on 

or before June 2, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2012–0557, by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. EMail: vaupel.claudia@epa.gov. 

C. Mail: Claudia Vergnani Vaupel, 

U.S. EPA Region 10, Office of Air, 

Waste, and Toxics (AWT–107), 1200 

Sixth Avenue, Suite 900, Seattle, 

Washington 98101. 

D. Hand Delivery: U.S. EPA Region 10 

Mailroom, 9th Floor, 1200 Sixth 

Avenue, Seattle, Washington 98101. 

Attention: Claudia Vergnani Vaupel, 

Office of Air, Waste, and Toxics (AWT– 

107). Such deliveries are only accepted 

during normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2012– 

0557. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information that 

you consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If the EPA cannot read your 

comment due to technical difficulties 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS