Federal Register / Vol. 74, No. 40 / Tuesday, March 3, 2009 / Notices 9293 

Society for Testing and Materials 

(ASTM) publication ‘‘Standard 

Specification for Roof and Rock Bolts 

and Accessories’’ (ASTM F432–95). 

II. Desired Focus of Comments 

MSHA is particularly interested in 

comments that: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

A copy of the proposed information 

collection request can be obtained by 

contacting the employee listed in the 

ADDRESSES section of this notice, or 

viewed on the internet by accessing the 

MSHA home page (http:// 

www.msha.gov/) and selecting ‘‘Rules & 

Regs’’, and then selecting ‘‘FedReg. 

Docs’’. On the next screen, select 

‘‘Paperwork Reduction Act Supporting 

Statement’’ to view documents 

supporting the Federal Register Notice. 

III. Current Actions 

MSHA is seeking to continue the 

requirement for mine operators to obtain 

certification from the manufacturer that 

roof and rock bolts and accessories are 

manufactured and tested in accordance 

with the applicable American Society 

for Testing and Materials (ASTM) 

specifications and make that 

certification available to an authorized 

representative of the Secretary. 

Type of Review: Extension. 

Agency: Mine Safety and Health 

Administration. 

Title: Safety Standards for Roof Bolts 

in Metal and Nonmetal Mines and 

Underground Coal Mines. 

OMB Number: 1219–0121. 

Frequency: On occasion. 

Affected Public: Business or other forprofit. 

Respondents: 833. 

Responses: 3,292. 

Total Burden Hours: 165 hours. 

Total Burden Cost (capital/startup): 

$0. 

Total Burden Cost (operating/ 

maintaining): $0. 

Comments submitted in response to 

this notice will be summarized and/or 

included in the request for Office of 

Management and Budget approval of the 

information collection request; they will 

also become a matter of public record. 

Dated at Arlington, Virginia, this 25th day 

of February, 2009. 

John Rowlett. 

Director, Management Services Division. 

[FR Doc. E9–4417 Filed 3–2–09; 8:45 am] 

BILLING CODE 4510–43–P 

LIBRARY OF CONGRESS 

Copyright Office 

Notification of Agreements Under the 

Webcaster Settlement Act of 2008 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of agreement. 

SUMMARY: The Copyright Office is 

publishing three agreements which set 

rates and terms for the reproduction and 

performance of sound recordings made 

by certain specified webcasters, under 

two statutory licenses. Webcasters who 

meet the eligibility requirements may 

choose to operate under the statutory 

licenses in accordance with the rates 

and terms set forth in the agreements 

published herein rather than the rates 

and terms of any determination by the 

Copyright Royalty Judges. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ruwe, Attorney Advisor, or 

Tanya M. Sandros, Deputy General 

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

70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. See the final paragraph 

of the SUPPLEMENTARY INFORMATION for 

information on where to direct 

questions regarding the rates and terms 

set forth in the agreement. 

SUPPLEMENTARY INFORMATION: On 

October 16, 2008, President Bush signed 

into law the Webcaster Settlement Act 

of 2008 (‘‘WSA’’), Public Law 110–435, 

122 Stat. 4974, which amends Section 

114 of the Copyright Act, title 17 of the 

United States Code, as it relates to 

webcasters. The WSA allows 

SoundExchange, the Receiving Agent 

designated by the Librarian of Congress 

in his June 20, 2002, order for collecting 

royalty payments made by eligible 

nonsubscription transmission services 

under the Section 112 and Section 114 

statutory licenses, see 67 FR 45239 (July 

8, 2002), to enter into agreements on 

behalf of all copyright owners and 

performers to set rates, terms and 

conditions for webcasters operating 

under the Section 112 and Section 114 

statutory licenses for a period of not 

more than 11 years beginning on 

January 1, 2005. The authority to enter 

into such settlement agreements expired 

on February 15, 2009. 

Unless otherwise agreed to by the 

parties to an agreement, the rates and 

terms set forth in such agreements apply 

only to the time periods specified in the 

agreement and have no precedential 

value in any proceeding concerned with 

the setting of rates and terms for the 

public performance or reproduction in 

ephemeral phonorecords or copies of 

sound recordings. To make this point 

clear, Congress included language 

expressly addressing the precedential 

value of such agreements. Specifically, 

Section 114(f)(5)(C), as added by the 

WSA, states that: ‘‘Neither subparagraph 

(A) nor any provisions of any agreement 

entered into pursuant to subparagraph 

(A), including any rate structure, fees, 

terms, conditions, or notice and 

recordkeeping requirements set forth 

therein, shall be admissible as evidence 

or otherwise taken into account in any 

administrative, judicial, or other 

government proceeding involving the 

setting or adjustment of the royalties 

payable for the public performance or 

reproduction in ephemeral recordings or 

copies of sound recordings, the 

determination of terms or conditions 

related thereto, or the establishment of 

notice and recordkeeping requirements 

by the Copyright Royalty Judges under 

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

the intent of Congress that any royalty 

rates, rate structure, definitions, terms, 

conditions, or notice and recordkeeping 

requirements, included in such 

agreements shall be considered as a 

compromise motivated by the unique 

business, economic and political 

circumstances of small webcasters, 

copyright owners, and performers rather 

than as matters that would have been 

negotiated in the marketplace between a 

willing buyer and a willing seller, or 

otherwise meet the objectives set forth 

in Section 801(b). This subparagraph 

shall not apply to the extent that the 

receiving agent and a webcaster that is 

party to an agreement entered into 

pursuant to subparagraph (A) expressly 

authorize the submission of the 

agreement in a proceeding under this 

subSection.’’ 17 U.S.C. 114(f)(5)(C) 

(2009). 

On February 13, 2009, 

SoundExchange and the Corporation for 

Public Broadcasting (‘‘CPB’’) notified 

the Copyright Office that they had 

negotiated an agreement for the 

reproduction and performance of sound 

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9294 Federal Register / Vol. 74, No. 40 / Tuesday, March 3, 2009 / Notices 

1The ‘‘Small Webcasters’’ that negotiated the 

agreement are Attention Span Radio; Blogmusik 

(Deezer.com); Born Again Radio; Christmas Music 

24/7; Club 80’s Internet Radio; Dark Horse 

Productions; Edgewater Radio; Forever Cool 

(Forevercool.us); Indiwaves (Set 

YourMusicFree.com); Ludlow Media 

(MandarinRadio.com); Musical Justice; My Jazz 

Network; PartiRadio; Playa Cofi Jukebox 

(Tropicalglen.com); Soulsville Online; taintradio; 

Voice of Country; and Window To The World 

Communications (WFMT.com). 

recordings by small commercial 

webcasters under the Section 112 and 

Section 114 statutory licenses and 

requested that the Copyright Office 

publish the Rates and Terms in the 

Federal Register, as required under 

Section 114(f)(5)(B) of the Copyright 

Act, as amended by the WSA. 

On February 15, 2009, 

SoundExchange and the National 

Association of Broadcasters (‘‘NAB’’) 

notified the Copyright Office that they 

had negotiated an agreement for the 

reproduction and performance of sound 

recordings by small commercial 

webcasters under the Section 112 and 

Section 114 statutory licenses and 

requested that the Copyright Office 

publish the Rates and Terms in the 

Federal Register, as required under 

Section 114(f)(5)(B) of the Copyright 

Act, as amended by the WSA. 

On February 15, 2009, 

SoundExchange and the Small 

Webcasters 1 notified the Copyright 

Office that they had negotiated an 

agreement for the reproduction and 

performance of sound recordings by 

small commercial webcasters under the 

Section 112 and Section 114 statutory 

licenses and requested that the 

Copyright Office publish the Rates and 

Terms in the Federal Register, as 

required under Section 114(f)(5)(B) of 

the Copyright Act, as amended by the 

WSA. 

Thus, in accordance with the 

requirement set forth in amended 

Section 114(f)(5)(B), the Copyright 

Office is publishing the submitted 

agreements, as Appendix A (Agreement 

made between SoundExchange and 

CPB); Appendix B (Agreement made 

between SoundExchange and NAB); and 

Appendix C (Agreement made between 

SoundExchange and Small Webcasters), 

thereby making the rates and terms in 

the agreements available to any 

webcasters meeting the respective 

eligibility conditions of the agreements 

as an alternative to the rates and terms 

of any determination by the Copyright 

Royalty Judges. 

The Copyright Office has no 

responsibility for administering the 

rates and terms of the agreement beyond 

the publication of this notice. For this 

reason, questions regarding the rates 

and terms set forth in the agreement 

should be directed to SoundExchange 

(for contact information, see http:// 

www.soundexchange.com). 

Dated: February 24, 2009. 

Marybeth Peters, 

Register of Copyrights. 

Note: The following Appendices will not 

be codified in the Code of Federal 

Regulations. 

Appendix A 

Agreement Concerning Rates and Terms 

This Agreement Concerning Rates and 

Terms (‘‘Agreement’’), dated as of January 13, 

2009 (‘‘Execution Date’’), is made by and 

between SoundExchange, Inc. 

(‘‘SoundExchange’’) and the Corporation for 

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

Covered Entities (SoundExchange, and CPB 

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

Capitalized terms used herein are defined in 

Article 1 below. 

Whereas, SoundExchange is the ‘‘receiving 

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

designated for collecting and distributing 

statutory royalties received from Covered 

Entities for their Web Site Performances; 

Whereas, the Webcaster Settlement Act of 

2008 (codified at 17 U.S.C. 114(f)(5)) 

authorizes SoundExchange to enter into 

agreements for the reproduction and 

performance of Sound Recordings under 

Sections 112(e) and 114 of the Copyright Act 

that, once published in the Federal Register, 

shall be binding on all Copyright Owners and 

Performers, in lieu of any determination by 

the Copyright Royalty Judges; 

Whereas, in view of the unique business, 

economic and political circumstances of 

CPB, Covered Entities, SoundExchange, 

Copyright Owners and Performers at the 

Execution Date, the Parties have agreed to the 

royalty rates and other consideration set forth 

herein for the period January 1, 2005 through 

December 31, 2010; 

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

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

promises contained in this Agreement and 

for other good and valuable consideration, 

the adequacy and sufficiency of which are 

hereby acknowledged, the Parties hereby 

agree as follows: 

Article 1 

Definitions 

The following terms shall have the 

meanings set forth below: 

1.1 ‘‘Agreement’’ shall have the meaning 

set forth in the preamble. 

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

means the total hours of programming that 

Covered Entities have transmitted during the 

relevant period to all listeners within the 

United States from all Covered Entities that 

provide audio programming consisting, in 

whole or in part, of Web Site Performances, 

less the actual running time of any sound 

recordings for which the Covered Entity has 

obtained direct licenses apart from this 

Agreement. By way of example, if a Covered 

Entity transmitted one hour of programming 

to ten (10) simultaneous listeners, the 

Covered Entity’s Aggregate Tuning Hours 

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

that hour consisted of transmission of a 

directly licensed recording, the Covered 

Entity’s Aggregate Tuning Hours would equal 

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

additional example, if one listener listened to 

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

of the recordings transmitted during that time 

was directly licensed), the Covered Entity’s 

Aggregate Tuning Hours would equal 10. 

1.3 ‘‘Authorized Web Site’’ means any 

Web Site operated by or on behalf of any 

Covered Entity that is accessed by Web Site 

Users through a Uniform Resource Locator 

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

through which Web Site Performances are 

made by such Covered Entity. 

1.4 ‘‘CPB’’ shall have the meaning set 

forth in the preamble. 

1.5 ‘‘Collective’’ shall have the meaning 

set forth in 37 CFR 380.2(c). 

1.6 ‘‘Copyright Owners’’ are Sound 

Recording copyright owners who are entitled 

to royalty payments made pursuant to the 

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

114(f). 

1.7 ‘‘Covered Entities’’ means NPR, 

American Public Media, Public Radio 

International, and Public Radio Exchange, 

and, in calendar years 2005 through 2007, up 

to four-hundred and fifty (450) Originating 

Public Radio Stations as named by CPB. CPB 

shall notify SoundExchange annually of the 

eligible Originating Public Radio Stations to 

be considered Covered Entities hereunder 

(subject to the numerical limitations set forth 

herein). The number of Originating Public 

Radio Stations considered to be Covered 

Entities is permitted to grow by no more than 

10 Originating Public Radio Stations per year 

beginning in calendar year 2008, such that 

the total number of Covered Entities at the 

end of the Term will be less than or equal 

to 480. The Parties agree that the number of 

Originating Public Radio Stations licensed 

hereunder as Covered Entities shall not 

exceed the maximum number permitted for 

a given year without SoundExchange’s 

express written approval, except that CPB 

shall have the option to increase the number 

of Originating Public Radio Stations that may 

be considered Covered Entities as provided 

in Section 4.4. 

1.8 ‘‘Ephemeral Phonorecord’’ shall have 

the meaning set forth in Section 3.1(b). 

1.9 ‘‘Execution Date’’ shall have the 

meaning set forth in the preamble. 

1.10 ‘‘License Fee’’ shall have the 

meaning set forth in Section 4.1. 

1.11 ‘‘Music ATH’’ means ATH of Web 

Site Performances of Sound Recordings of 

musical works. 

1.12 ‘‘NPR’’ shall mean National Public 

Radio, with offices at 635 Massachusetts 

Avenue, NW., Washington, DC 20001. 

1.13 ‘‘Originating Public Radio Stations’’ 

shall mean a noncommercial terrestrial radio 

broadcast station that (i) is licensed as such 

by the Federal Communications Commission; 

(ii) originates programming and is not solely 

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

of NPR, American Public Media, Public 

Radio International, or Public Radio 

Exchange, a member of the National 

Federation of Community Broadcasters, or 

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Federal Register / Vol. 74, No. 40 / Tuesday, March 3, 2009 / Notices 9295 

another public radio station that is qualified 

to receive funding from the Corporation for 

Public Broadcasting pursuant to its criteria; 

(iv) qualifies as a ‘‘noncommercial 

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

and (v) either (a) offers Web Site 

Performances only as part of the mission that 

entitles it to be exempt from taxation under 

Section 501 of the Internal Revenue Code of 

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

governmental entity (including a Native 

American tribal governmental entity), is 

operated exclusively for public purposes. 

1.14 ‘‘Party’’ shall have the meaning set 

forth in the preamble. 

1.15 ‘‘Performers’’ means the 

independent administrators identified in 17 

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

individuals and entities identified in 17 

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

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

corporation, a limited liability company, a 

partnership, a trust, a joint venture, any 

governmental authority or any other entity or 

organization. 

1.17 ‘‘Phonorecords’’ shall have the 

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

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

Web Site or an archived program on such 

Authorized Web Site that, in either case, 

conforms to all applicable requirements 

under 17 U.S.C. 114. 

1.19 ‘‘SoundExchange’’ shall have the 

meaning set forth in the preamble and shall 

include any successors and assigns to the 

extent permitted by this Agreement. 

1.20 ‘‘Sound Recording’’ shall have the 

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

1.21 ‘‘Term’’ shall have the meaning set 

forth in Section 7.1. 

1.22 ‘‘Territory’’ means the United States, 

its territories, commonwealths and 

possessions. 

1.23 ‘‘URL’’ shall have the meaning set 

forth in Section 1.3. 

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

the World Wide Web that can be located by 

a Web Site User through a principal URL. 

1.25 ‘‘Web Site Performances’’ means all 

public performances by means of digital 

audio transmissions of Sound Recordings, 

including the transmission of any portion of 

any Sound Recording, made through an 

Authorized Web Site in accordance with all 

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

used by a Covered Entity (provided that the 

Covered Entity controls the content of all 

materials transmitted by the server), or by a 

sublicensee authorized pursuant to Section 

3.2, that consist of either (a) the 

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

digital transmission of nonsubscription Side 

Channels that are programmed and 

controlled by the Covered Entity. This term 

does not include digital audio transmissions 

made by any other means. 

1.26 ‘‘Web Site Users’’ means all those 

who access or receive Web Site Performances 

or who access any Authorized Web Site. 

Article 2 

Agreement Pursuant to Webcaster 

Settlement Act of 2008 

2.1 General. This Agreement is entered 

into pursuant to the Webcaster Settlement 

Act of 2008 (Pub. L. 110–435; to be codified 

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

2.2 Eligibility Conditions. The only 

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

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

of the terms of this Agreement as 

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

the Covered Entities, as expressly set forth 

herein. The terms of this Agreement shall 

apply to the Covered Entities in lieu of other 

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

112 and 114. 

2.3 Agreement Nonprecedential. 

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

Agreement, including any rate structure, fees, 

terms, conditions, and notice and 

recordkeeping requirements set forth therein, 

is nonprecedential and shall not be 

introduced nor used by any Person, 

including the Parties and any Covered 

Entities, admissible as evidence or otherwise 

taken into account in any administrative, 

judicial, or other proceeding involving the 

setting or adjustment of the royalties payable 

for the public performance or reproduction in 

ephemeral phonorecords or copies of sound 

recordings, the determination of terms or 

conditions related thereto, or the 

establishment of notice or recordkeeping 

requirements by the Copyright Royalty 

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

or any administrative or judicial proceeding 

pertaining to rates, terms or reporting 

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

collect royalties for the performance of 

Sound Recordings by any technology now or 

hereafter known. Any royalty rates, rate 

structure, definitions, terms, conditions and 

notice and recordkeeping requirements 

included in this Agreement shall be 

considered as a compromise motivated by the 

unique business, economic and political 

circumstances of webcasters, copyright 

owners, and performers, and the pending 

appeal of the decision of the Copyright 

Royalty Judges by NPR on behalf of itself and 

its member stations, rather than as matters 

that would have been negotiated in the 

marketplace between a willing buyer and a 

willing seller, or otherwise meet the 

objectives set forth in Section 801(b) of the 

Copyright Act. 

2.4 Reservation of Rights. The Parties 

agree that the entering into of this Agreement 

shall be without prejudice to any of their 

respective positions in any proceeding with 

respect to the rates, terms or reporting 

obligations to be established for the making 

of Ephemeral Phonorecords or the digital 

audio transmission of Sound Recordings after 

the Term of this Agreement on or by Covered 

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

their implementing regulations. The Parties 

further acknowledge and agree that the 

entering of this Agreement, the performance 

of its terms, and the acceptance of any 

payments and reporting by SoundExchange 

(i) do not express or imply any 

acknowledgement that CPB, Covered Entities, 

or any other persons are eligible for the 

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

and (ii) shall not be used as evidence that 

CPB, the Covered Entities, or any other 

persons are acting in compliance with the 

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

any other applicable laws or regulations. 

Article 3 

Scope of Agreement 

3. General. 

(a) Public Performances. In consideration 

for the payment of the License Fee by CPB, 

SoundExchange agrees that Covered Entities 

that publicly perform under Section 114 all 

or any portion of any Sound Recordings 

through an Authorized Web Site, within the 

Territory, by means of Web Site 

Performances, may do so in accordance with 

and subject to the limitations set forth in this 

Agreement; provided that: (i) Such 

transmissions are made in strict conformity 

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

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

comply with all of the terms and conditions 

of this Agreement and all applicable 

copyright laws. For clarity, there is no limit 

to the number of Web Site Performances that 

a Covered Entity may transmit during the 

Term under the provisions of this Section 

3.1(a), if such Web Site Performances 

otherwise satisfy the requirements of this 

Agreement. 

(b) Ephemeral Phonorecords. In 

consideration for the payment of the License 

Fee by CPB, SoundExchange agrees that 

Covered Entities that make and use solely for 

purposes of transmitting Web Site 

Performances as described in Section 3.1(a), 

within the Territory, Phonorecords of all or 

any portion of any Sound Recordings 

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

accordance with and subject to the 

limitations set forth in this Agreement; 

provided that: (i) Such Phonorecords are 

limited solely to those necessary to encode 

Sound Recordings in different formats and at 

different bit rates as necessary to facilitate 

Web Site Performances licensed hereunder; 

(ii) such Phonorecords are made in strict 

conformity with the provisions set forth in 17 

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

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

and all of the terms and conditions of this 

Agreement. 

3.2 Limited Right to Sublicense. Rights 

under this Agreement are not sublicensable, 

except that a Covered Entity may employ the 

services of a third Person to provide the 

technical services and equipment necessary 

to deliver Web Site Performances on behalf 

of such Covered Entity pursuant to Section 

3.1, but only through an Authorized Web 

Site. Any agreement between a Covered 

Entity and any third Person for such services 

shall (i) contain the substance of all terms 

and conditions of this Agreement and 

obligate such third Person to provide all such 

services in accordance with all applicable 

terms and conditions of this Agreement, 

including, without limitation, Articles 3, 5 

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

have no right to make Web Site Performances 

or any other performances or Phonorecords 

on its own behalf or on behalf of any Person 

or entity other than a Covered Entity through 

the Covered Entity’s Authorized Web Site by 

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9296 Federal Register / Vol. 74, No. 40 / Tuesday, March 3, 2009 / Notices 

virtue of this Agreement, including in the 

case of Phonorecords, pre-encoding or 

otherwise establishing a library of Sound 

Recordings that it offers to a Covered Entity 

or others for purposes of making 

performances, but instead must obtain all 

necessary licenses from SoundExchange, the 

copyright owner or another duly authorized 

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

such third Person shall have no right to grant 

any further sublicenses; and (iv) provide that 

SoundExchange is an intended third-party 

beneficiary of all such obligations with the 

right to enforce a breach thereof against such 

third party. 

3.3 Limitations. 

(a) Reproduction of Sound Recordings. 

Except as provided in Section 3.2, nothing in 

this Agreement grants Covered Entities, or 

authorizes Covered Entities to grant to any 

other Person (including, without limitation, 

any Web Site User, any operator of another 

Web Site or any authorized sublicensee), the 

right to reproduce by any means, method or 

process whatsoever, now known or hereafter 

developed, any Sound Recordings, including, 

but not limited to, transferring or 

downloading any such Sound Recordings to 

a computer hard drive, or otherwise copying 

the Sound Recording onto any other storage 

medium. 

(b) No Right of Public Performance. Except 

as provided in Section 3.2, nothing in this 

Agreement authorizes Covered Entities to 

grant to any Person the right to perform 

publicly, by means of digital transmission or 

otherwise, any Sound Recordings. 

(c) No Implied Rights. The rights granted 

in this Agreement extend only to Covered 

Entities and grant no rights, including by 

implication or estoppel, to any other Person, 

except as expressly provided in Section 3.2. 

Without limiting the generality of the 

foregoing, this Agreement does not grant to 

Covered Entities (i) any copyright ownership 

interest in any Sound Recording; (ii) any 

trademark or trade dress rights; (iii) any 

rights outside the Territory; (iv) any rights of 

publicity or rights to any endorsement by 

SoundExchange or any other Person; or (v) 

any rights outside the scope of a statutory 

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

(d) Territory. The rights granted in this 

Agreement shall be limited to the Territory. 

(e) No Syndication Rights. Nothing in this 

Agreement authorizes any Web Site 

Performances to be accessed by Web Site 

Users through any Web Site other than an 

Authorized Web Site. 

3.4 Effect of Non-Performance by any 

Covered Entity. In the event that any Covered 

Entity breaches or otherwise fails to perform 

any of the material terms of this Agreement 

it is required to perform (including any 

obligations applicable under Section 112 or 

114), or otherwise materially violates the 

terms of this Agreement or Section 112 or 

114 or their implementing regulations, the 

remedies of SoundExchange shall be specific 

to that Covered Entity only, and shall 

include, without limitation, (i) termination of 

that Covered Entity’s rights hereunder upon 

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

SoundExchange and Copyright owners under 

applicable law. SoundExchange’s remedies 

for such a breach or failure by an individual 

Covered Entity shall not include termination 

of this Agreement in its entirety or 

termination of the rights of other Covered 

Entities, except that if CPB breaches or 

otherwise fails to perform any of the material 

terms of this Agreement, or such a breach or 

failure by a Covered Entity results from CPB’s 

inducement, and CPB does not cure such 

breach or failure within thirty (30) days after 

receiving notice thereof from 

SoundExchange, then SoundExchange may 

terminate this Agreement in its entirety, and 

a prorated portion of the License Fee for the 

remainder Term shall, after deduction of any 

damages payable to SoundExchange by virtue 

of the breach or failure, be credited to 

statutory royalty obligations of Covered 

Entities to SoundExchange for the Term as 

specified by CPB. 

Article 4 

Consideration 

4.1 License Fee. The total license fee for 

all Web Site Performances and Ephemeral 

Phonorecords made during the Term shall be 

one million eight hundred and fifty thousand 

dollars ($1,850,000) (the ‘‘License Fee’’), 

unless additional payments are required as 

described in Section 4.3 or 4.4. The Parties 

acknowledge that CPB has paid 

SoundExchange two hundred and fifty 

thousand dollars ($250,000) of such amount 

prior to the Execution Date. Within ten (10) 

business days after publication of this 

Agreement in the Federal Register, CPB shall 

pay SoundExchange the balance of one 

million six hundred thousand dollars 

($1,600,000). 

4.2 Calculation of License Fee. The 

Parties acknowledge that the License Fee 

includes: (i) An annual minimum fee of five 

hundred dollars ($500) for each Covered 

Entity for each year during the Term, except 

that the annual minimum fee was calculated 

at two hundred and fifty dollars ($250) per 

year for each Covered Entity substantially all 

of the programming provided by which is 

reasonably classified as news, talk, sports or 

business programming; (ii) additional usage 

fees calculated in accordance with the 

royalty rate structure applicable to 

noncommercial webcasters under the Small 

Webcaster Settlement Act of 2002 (see 68 FR 

35,008 (June 11, 2003)); and (iii) a discount 

that reflects the administrative convenience 

to SoundExchange of receiving one payment 

that covers a large number of separate entities 

for six (6) calendar years, as well as the ‘‘time 

value’’ of money and protection from bad 

debt that arises from being paid in advance 

for calendar years 2009 and 2010. 

4.3 Total Music ATH True-Up: If the total 

Music ATH for all Covered Entities, in the 

aggregate for calendar years 2008, 2009 and 

2010 combined, as estimated in accordance 

with the methodology described in 

Attachment 1, is greater than seven hundred 

sixty four million six hundred thousand 

(764,600,000) (approximately the amount 

that would result from 10% year-over-year 

Music ATH growth in 2008, 2009 and 2010), 

CPB shall make an additional payment to 

SoundExchange for all such Music ATH in 

excess of seven hundred sixty four million 

six hundred thousand (764,600,000) for all 

Covered Entities in the aggregate at the rate 

of $0.00251 per ATH. Such payment shall be 

due no later than March 1, 2011. 

4.4 Station Growth True-Up: If the total 

number of Originating Public Radio Stations 

that wish to make Web Site Performances in 

any of calendar year 2008, 2009 and 2010 

exceeds the number of such Originating 

Public Radio Stations considered Covered 

Entities in the relevant year, and the excess 

Originating Public Radio Stations do not 

wish to pay royalties for such Web Site 

Performances apart from this Agreement, 

CPB may elect by written notice to 

SoundExchange to increase the number of 

Originating Public Radio Stations considered 

Covered Entities in the relevant year effective 

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

any such elections for all or any part of 

calendar year 2008, 2009 or 2010, CPB shall 

make an additional payment to 

SoundExchange for each calendar year or 

part thereof it elects to have an additional 

Originating Public Radio Station considered 

a Covered Entity, in the amount of five 

hundred dollars ($500) per Originating 

Public Radio Station per year. Such payment 

shall accompany the notice electing to have 

an additional Originating Public Radio 

Station considered a Covered Entity. 

4.5 Late Fee. The Parties hereby agree to 

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

that Section (and the applicable definitions 

provided in 37 CFR 380.2) were set forth 

herein. 

4.6. Payments to Third Persons. 

(a) SoundExchange and CPB agree that, 

except as provided in Section 4.6(b), all 

obligations of, inter alia, clearance, payment 

or attribution to third Persons, including, by 

way of example and not limitation, music 

publishers and performing rights 

organizations (PROs) for use of the musical 

compositions embodied in Sound 

Recordings, shall be solely the responsibility 

of CPB and the Covered Entities. 

(b) SoundExchange and CPB agree that all 

obligations of distribution of the License Fee 

to Copyright Owners and Performers in 

accordance with 37 C.F.R 380.4(g) shall be 

solely the responsibility of SoundExchange. 

In making such distribution, SoundExchange 

has discretion to allocate the License Fee 

between Section 112 and 114 in the same 

manner as the majority of other webcasting 

royalties. 

Article 5 

Reporting, Auditing and Confidentiality 

5.1 Reporting. CPB and Covered Entities 

shall submit reports of use concerning Web 

Site Performances as set forth in Attachments 

1 and 2. 

5.2 Verification of Information. The 

Parties hereby agree to the terms set forth in 

37 CFR 380.4(h) and 380.6 as if those 

Sections (and the applicable definitions 

provided in 37 CFR 380.2) were set forth 

herein. The exercise by SoundExchange of 

any right under this Section 5.2 shall not 

prejudice any other rights or remedies of 

SoundExchange. 

5.3 Confidentiality. The Parties hereby 

agree to the terms set forth in 37 CFR § 380.5 

as if that Section (and the applicable 

definitions provided in 37 CFR § 380.2) were 

set forth herein, except that: 

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(a) The following shall be added to the end 

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

documents or information that become 

publicly known through no fault of 

SoundExchange or are known by 

SoundExchange when disclosed by CPB’’; 

(b) The following shall be added at the end 

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

of this Agreement’’; and 

(c) The following shall be added at the end 

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

Section 2.3 of this Agreement’’ 

Article 6 

Non-Participation In Further Proceedings 

CPB and any Covered Entity making Web 

Site Transmissions in reliance on this 

Agreement shall not directly or indirectly 

participate as a party, amicus curiae or 

otherwise, or in any manner give evidence or 

otherwise support or assist, in any further 

proceedings to determine royalty rates and 

terms for digital audio transmission or the 

reproduction of Ephemeral Phonorecords 

under Section 112 or 114 of the Copyright 

Act for all or any part of the Term, including 

any appeal of the Final Determination of the 

Copyright Royalty Judges, published in the 

Federal Register at 72 FR 24084 (May 1, 

2007), any proceedings on remand from such 

an appeal, or any other related proceedings, 

unless subpoenaed on petition of a third 

party (without any action by CPB or a 

Covered Entity to encourage such a petition) 

and ordered to testify in such proceeding. 

Notwithstanding anything to the contrary 

herein, any entity that is eligible to be treated 

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

elect to be treated as a Covered Entity may 

elect to participate in such proceedings. 

Article 7 

Term and Termination 

7.1 Term. The term of this Agreement 

commenced as of January 1, 2005, and ends 

as of December 31, 2010 (‘‘Term’’). As 

conditions precedent to reliance on the terms 

of this Agreement by any Covered Entity, (a) 

CPB must pay the License Fee as and when 

specified in Section 4.1, and (b) NPR must 

withdraw its appeal of the Final 

Determination of the Copyright Royalty 

Judges, published in the Federal Register at 

72 FR 24084 (May 1, 2007), which it has 

agreed to do within ten (10) days after the 

publication of this Agreement in the Federal 

Register. 

7.2 Mutual Termination. This Agreement 

may be terminated in writing upon mutual 

agreement of the Parties. 

7.3 Consequences of Termination. 

(a) Survival of Provisions. In the event of 

the expiration or termination of this 

Agreement for any reason, the terms of this 

Agreement shall immediately become null 

and void, and cannot be relied upon for 

making any further Web Site Performances or 

Ephemeral Phonorecords, except that (i) 

Articles 6 and 8 and Sections 2.3, 5.2 and 7.3 

shall remain in full force and effect; and (ii) 

Article 4 and Section 5.1 shall remain in 

effect after the expiration or termination of 

this Agreement to the extent obligations 

under Article 4 or Section 5.1 accrued prior 

to any such termination or expiration. 

(b) Applicability of Copyright Law. Any 

Web Site Performances made by a Covered 

Entity or other Originating Public Radio 

Station in violation of the terms of this 

Agreement or Section 112 or 114 or their 

implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with this Agreement), outside 

the scope of this Agreement, or after the 

expiration or termination of this Agreement 

for any reason shall be fully subject to, 

among other things, the copyright owners’ 

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

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

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

implementing regulations unless the Parties 

have entered into a new agreement for such 

Web Site Performances. 

Article 8 

Miscellaneous 

8.1 Applicable Law and Venue. This 

Agreement shall be governed by, and 

construed in accordance with, the laws of the 

District of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising directly or 

indirectly from or in connection with this 

Agreement shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC. The 

Parties and Covered Entities, to the extent 

permitted under their state or tribal law, 

consent to the jurisdiction and venue of the 

foregoing court and consent that any process 

or notice of motion or other application to 

said court or a judge thereof may be served 

inside or outside the District of Columbia by 

registered mail, return receipt requested, 

directed to the Person for which it is 

intended at its address set forth in this 

Agreement (and service so made shall be 

deemed complete five (5) days after the same 

has been posted as aforesaid) or by personal 

service or in such other manner as may be 

permissible under the rules of that court. 

8.2 Rights Cumulative. The remedies 

provided in this Agreement and available 

under applicable law shall be cumulative and 

shall not preclude assertion by any Party of 

any other rights or the seeking of any other 

remedies against the other Party hereto. This 

Agreement shall not constitute a waiver of 

any violation of Section 112 or 114 or their 

implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with this Agreement). No failure 

to exercise and no delay in exercising any 

right, power or privilege shall operate as a 

waiver of such right, power or privilege. 

Neither this Agreement nor any such failure 

or delay shall give rise to any defense in the 

nature of laches or estoppel. No single or 

partial exercise of any right, power or 

privilege granted under this Agreement or 

available under applicable law shall preclude 

any other or further exercise thereof or the 

exercise of any other right, power or 

privilege. No waiver by either Party of full 

performance by the other Party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

this Agreement and of obligations under 

applicable law thereafter or of the right to 

exercise the remedies of SoundExchange 

under Section 3.4. 

8.3 Severability. Whenever possible, each 

provision of this Agreement shall be 

interpreted in such a manner as to be 

effective and valid under applicable law, but 

if any provision of this Agreement shall be 

prohibited by or invalid under applicable 

law, such provisions shall be ineffective to 

the extent of such prohibition or invalidity, 

without invalidating the remainder of such 

provision or the remaining provisions of this 

Agreement. 

8.4 Amendment. This Agreement may be 

modified or amended only by a writing 

signed by the Parties. 

8.5 Entire Agreement. This Agreement 

expresses the entire understanding of the 

Parties and supersedes all prior and 

contemporaneous agreements and 

undertakings of the Parties with respect to 

the subject matter hereof. 

8.6 Headings. The titles used in this 

Agreement are used for convenience only 

and are not to be considered in construing or 

interpreting this Agreement. 

In witness whereof, the Parties hereto have 

executed this Agreement as of the date first 

above written. 

Attachment 1 

Reporting 

1. Definitions. The following terms shall 

have the meaning set forth below for 

purposes of this Attachment 1. All other 

capitalized terms shall have the meaning set 

forth in Article 1 of the Agreement. 

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

set forth in Section 4(a)(ii) of this Attachment 

1. 

(b) ‘‘Current Period’’ shall mean the period 

commencing with the first day after the end 

of the Historic Period and continuing to the 

end of the Term. 

(c) ‘‘Historic Period’’ shall mean the period 

from April 1, 2004 through the last day of the 

month of the Execution Date. 

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

of the following format descriptions 

characterizing the programming offered by 

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

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

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

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

album alternative. A Covered Entity’s Major 

Format Group is determined based on the 

format description best describing the 

programming of the principal broadcast 

service offered by the Covered Entity and 

will include all channels streamed. 

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

Sound Recording for which Reporting Data is 

to be provided, (1) the relevant Covered 

Entity (including call sign and community of 

license of any terrestrial broadcast station 

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

song or track performed; (3) the featured 

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

title of the commercially available album or 

other product on which the Sound Recording 

is found; (5) the marketing label of the 

commercially available album or other 

product on which the sound recording is 

found; and (6) play frequency. 

(f) ‘‘Specified Reports’’ are reports that 

provide Reporting Data concerning over-theair performances of Sound Recordings that 

are also Web Site Performances by an 

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Originating Public Radio Station. The Parties 

agree that such reports will initially be the 

ones provided by Mediaguide, Inc. or a 

successor thereto (‘‘Mediaguide’’). In the 

event that Mediaguide, or other agreed-upon 

source of Specified Reports, should cease to 

provide Reporting Data that satisfy the 

function of such reports hereunder, the 

Parties shall promptly identify and agree 

upon an alternative vendor of reports, or an 

alternative approach to providing Reporting 

Data to SoundExchange, provided that such 

alternative reports or approaches are 

available on commercial terms comparable to 

Mediaguide reports. 

2. General. 

All data required to be provided hereunder 

shall be provided to SoundExchange 

electronically in the manner provided in 37 

CFR 370.3(d), except to the extent the parties 

agree otherwise. CPB shall consult with 

SoundExchange in advance concerning the 

content and format of all data to be provided 

hereunder, and shall provide data that is 

accurate, to the best of CPB’s and the relevant 

Covered Entity’s knowledge, information and 

belief. The methods used to make estimates, 

predictions and projections of data shall be 

subject to SoundExchange’s prior written 

approval, which shall not be unreasonably 

withheld. 

3. Data for the Historic Period. 

(a) For 2004. CPB and SoundExchange 

shall use reasonable efforts to obtain 

available Specified Reports regarding 

Covered Entities for the period April 1, 2004 

through December 31, 2004. NPR has 

previously provided SoundExchange with all 

available Music ATH data from the Music 

Webcasting Report dated September, 2004, in 

the form of an Excel spreadsheet. CPB 

represents that such data includes Music 

ATH data for all Major Format Groups. 

(b) For 2005–2008. 

(i) If Covered Entities have Reporting Data, 

or other information reportable under 37 CFR 

Part 370, with respect to Web Site 

Performances during the Historic Period, 

such Covered Entities shall provide such 

information to CPB, which shall provide the 

same to SoundExchange, as soon as 

practicable, and in any event by no later than 

sixty (60) days after the end of the Historic 

Period. Such data shall be provided in a 

format consistent with Attachment 2. 

(ii) CPB and SoundExchange shall use 

reasonable efforts to obtain available 

Specified Reports regarding Covered Entities 

for the Historic Period. CPB and 

SoundExchange shall each pay one-half of 

the costs for such Specified Reports. 

(iii) CPB has previously provided 

SoundExchange with the Streaming Census 

Report dated October 18, 2007 which 

SoundExchange has accepted which includes 

estimates of total Music ATH during the 

Historic Period, and of the allocation thereof 

to Major Format Groups, Covered Entities 

and applicable period. 

4. Data Collection and Reporting for the 

Current Period. CPB shall provide data 

regarding Web Site Performances during the 

Current Period to SoundExchange, and 

Covered Entities shall provide such data to 

CPB, consistent with the following terms: 

(a) ATH and Content Logs. For each 

calendar quarter during the Current Period: 

(i) Music ATH Reporting. CPB shall 

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

Music ATH by Covered Entities reasonably 

representative of all Major Format Groups, 

having relatively high Music ATH among the 

set of Covered Entities, and representing at 

least 60% of the total Music ATH by the 

Covered Entities in 2009 and at least 80% of 

the total Music ATH by the Covered Entities 

in 2010. Such ATH reports shall be 

accompanied by the Content Logs described 

in Section 4(a)(ii) for the periods described 

therein for all Covered Entities for which 

ATH Reports are provided. All ATH Reports 

and Content Logs for a quarter shall be 

provided by CPB together in one single batch, 

but all data shall be broken out by Covered 

Entity and identify each Covered Entity’s 

Major Format Group. The ATH Reports shall 

be in a form similar to the Streaming Census 

Report dated October 18, 2007, which 

reported two hundred ten million 

(210,000,000) total Music ATH for all 

Covered Entities for calendar year 2007, 

except as otherwise provided in this Section 

4(a)(i). If the ATH Reports satisfy the 

requirements set forth above in this Section 

4(a)(i), all Covered Entities shall be deemed 

in compliance with the terms of this Section 

4(a)(i). 

(ii) Reporting Period and Data. The 

information about Music ATH referenced in 

Section 4(a)(i) shall be collected from 

Covered Entities for two 7-consecutive-day 

reporting periods per quarter in 2009 and 

2010. The first ATH Report shall be provided 

no later than 180 days after the Execution 

Date. Thereafter, the ATH Reports shall be 

provided within thirty (30) days of the end 

of each calendar quarter. During these 

reporting periods, Covered Entities described 

in Section 4(a)(i) above shall prepare logs 

containing Reporting Data for all their Web 

Site Performances (‘‘Content Logs’’). These 

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

reporting period before the ATH Report is 

submitted to SoundExchange. 

(iii) Additional Data Reporting. Each 

quarter, CPB shall, for Covered Entities 

representing the highest 20% of reported 

Music ATH in 2009 and the highest 30% of 

reported Music ATH in 2010, provide 

SoundExchange Reporting Data collected 

continuously during each 24 hour period for 

the majority of their Web Site Performances, 

along with the Covered Entity’s Music ATH, 

for the relevant quarter. If during any 

calendar quarter of the Current Period, 

additional Covered Entities, in the ordinary 

course of business, collect Reporting Data 

continuously during each 24 hour period for 

the majority of their Web Site Performances, 

CPB shall provide SoundExchange such data, 

along with each such Covered Entity’s Music 

ATH, for the relevant quarter. 

(b) ATH and Format Surveys. CPB shall 

semiannually survey all Covered Entities to 

ascertain the number, format and Music ATH 

of all channels (including but not limited to 

Side Channels) over which such Covered 

Entities make Web Site Performances. CPB 

shall provide the results of such survey to 

SoundExchange within sixty (60) days after 

the end of the semiannual period to which 

it pertains. 

(c) Consolidated Reporting. Each quarter, 

CPB shall provide the information required 

by this Section 4 in one delivery to 

SoundExchange, with a list of all Covered 

Entities indicating which are and are not 

reporting for such quarter. 

(d) Timing. Except as otherwise provided 

above, all information required to be 

provided to SoundExchange under this 

Section 4 shall be provided as soon as 

practicable, and in any event by no later than 

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

which it pertains. Such data shall be 

provided in a format consistent with 

Attachment 2. 

5. Development of Technological 

Solutions. During the Term, CPB and 

Covered Entities shall cooperate in good faith 

with efforts by SoundExchange to develop 

and test a technological solution that 

facilitates reporting. 

Attachment 2 

Reporting Format 

1. Format for Reporting Data. All Reporting 

Data provided under Attachment 1, Sections 

3(b)(i) and 4(a)(ii) shall be delivered to 

SoundExchange in accordance with the 

following format: 

Column 1 ...................................................................................................................................................... Station or Side Channel 

Column 2 ...................................................................................................................................................... Sound Recording Title 

Column 3 ...................................................................................................................................................... Featured Artist, Group or Orchestra 

Column 4 ...................................................................................................................................................... Album 

Column 5 ...................................................................................................................................................... Marketing Label 

Column 6 ...................................................................................................................................................... Play Frequency 

2. Format for Music ATH. All Music ATH 

reporting by Covered Entities under the 

following provisions of Attachment 1 shall be 

delivered to SoundExchange in accordance 

with the following format: 

a. Section 3(b)(i) (the ‘‘Historic Period’’) 

Column 1 ............. Station or Side Channel 

Column 2 ............. Major Format Group 

Column 3 ............. ATH 

Column 4 ............. 2004 and 2007 

b. Section 4(a)(i) (the ‘‘Current Period’’) 

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Column 1 ............. Station or Side Channel 

Column 2 ............. Major Format Group 

Column 3 ............. ATH 

Column 4 ............. Reporting Period 

3. Major Format Groups. All requirements 

to provide ‘‘Major Format Group’’ as that 

term is defined in Attachment 1, Section 

1(d), shall correspond with one of the 

following: 

Major format groups 

Classical 

Jazz 

Music Mix 

News and Information 

News/Classical 

News/Jazz 

News/Music Mix 

Adult Album Alternative 

Appendix B—Agreed Rates and Terms 

for Broadcasters 

Article 1—Definitions 

1.1 General. In general, words used in the 

rates and terms set forth herein (the ‘‘Rates 

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

or 114 or 37 CFR Part 380 shall have the 

meanings specified in those provisions as in 

effect on the date hereof, with such 

exceptions or clarifications set forth in 

Section 1.2. 

1.2 Additional Definitions 

(a) ‘‘Broadcaster’’ shall mean a webcaster 

as defined in 17 U.S.C. 114(f)(5)(E)(iii) that (i) 

has a substantial business owning and 

operating one or more terrestrial AM or FM 

radio stations that are licensed as such by the 

Federal Communications Commission; (ii) 

has obtained a compulsory license under 17 

U.S.C. 112(e) and 114 and the implementing 

regulations therefor to make Eligible 

Transmissions and related ephemeral 

recordings; (iii) complies with all applicable 

provisions of Sections 112(e) and 114 and 

applicable regulations; and (iv) is not a 

noncommercial webcaster as defined in 17 

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

(b) ‘‘Broadcaster Webcasts’’ shall mean 

eligible nonsubscription transmissions made 

by a Broadcaster over the internet that are not 

Broadcast Retransmissions. 

(c) ‘‘Broadcast Retransmissions’’ shall 

mean eligible nonsubscription transmissions 

made by a Broadcaster over the internet that 

are retransmissions of terrestrial over-the-air 

broadcast programming transmitted by the 

Broadcaster through its AM or FM radio 

station, including ones with substitute 

advertisements or other programming 

occasionally substituted for programming for 

which requisite licenses or clearances to 

transmit over the internet have not been 

obtained. For the avoidance of doubt, a 

Broadcast Retransmission does not include 

programming transmitted on an internet-only 

side channel. 

(d) ‘‘Eligible Transmission’’ shall mean 

either a Broadcaster Webcast or a Broadcast 

Retransmission. 

(e) ‘‘Small Broadcaster’’ shall mean a 

Broadcaster that, for any of its channels and 

stations (determined as provided in Section 

4.1) over which it transmits Broadcast 

Retransmissions, and for all of its channels 

and stations over which it transmits 

Broadcaster Webcasts in the aggregate, in any 

calendar year in which it is to be considered 

a Small Broadcaster, meets the following 

additional eligibility criteria: (i) During the 

prior year it made Eligible Transmissions 

totaling less than 27,777 aggregate tuning 

hours; and (ii) during the applicable year it 

reasonably expects to make Eligible 

Transmissions totaling less than 27,777 

aggregate tuning hours; provided that, one 

time during the period 2006–2015, a 

Broadcaster that qualified as a Small 

Broadcaster under the foregoing definition as 

of January 31 of one year, elected Small 

Broadcaster status for that year, and 

unexpectedly made Eligible Transmissions 

on one or more channels or stations in excess 

of 27,777 aggregate tuning hours during that 

year, may choose to be treated as a Small 

Broadcaster during the following year 

notwithstanding clause (i) above if it 

implements measures reasonably calculated 

to ensure that that it will not make Eligible 

Transmissions exceeding 27,777 aggregate 

tuning hours during that following year. As 

to channels or stations over which a 

Broadcaster transmits Broadcast 

Retransmissions, the Broadcaster may elect 

Small Broadcaster status only with respect to 

any of its channels or stations that meet all 

of the foregoing criteria. 

(f) ‘‘SoundExchange’’ shall mean 

SoundExchange, Inc. and shall include its 

successors and assigns. 

Article 2—Agreement Pursuant to 

Webcaster Settlement Act of 2008 

2.1 Availability of Rates and Terms. 

Pursuant to the Webcaster Settlement Act of 

2008, and subject to the provisions set forth 

below, Broadcasters may elect to be subject 

to the rates and terms set forth herein (the 

‘‘Rates and Terms’’) in their entirety, with 

respect to such Broadcasters’ Eligible 

Transmissions and related ephemeral 

recordings, for all of the period beginning on 

January 1, 2006, and ending on December 31, 

2015, in lieu of other rates and terms from 

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

112(e) and 114, by complying with the 

procedure set forth in Section 2.2 hereof. Any 

person or entity that does not satisfy the 

eligibility criteria to be a Broadcaster must 

comply with otherwise applicable rates and 

terms. 

2.2 Election Process in General. To elect 

to be subject to these Rates and Terms, in lieu 

of any royalty rates and terms that otherwise 

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

for all of the period beginning on January 1, 

2006, and ending on December 31, 2015, a 

Broadcaster shall submit to SoundExchange 

a completed and signed election form 

(available on the SoundExchange Web site at 

http://www.soundexchange.com) by the later 

of (i) March 31, 2009; (ii) 30 days after 

publication of these Rates and Terms in the 

Federal Register; or (iii) in the case of a 

Broadcaster that is not making Eligible 

Transmissions as of the publication of these 

Rates and Terms in the Federal Register but 

begins doing so at a later time, 30 days after 

the Broadcaster begins making such Eligible 

Transmissions. On any such election form, 

the Broadcaster must, among other things, 

identify all its stations making Eligible 

Transmissions. If, subsequent to making an 

election, there are changes in the 

Broadcaster’s corporate name or stations 

making Eligible Transmissions, or other 

changes in its corporate structure that affect 

the application of these Rates and Terms, the 

Broadcaster shall promptly notify 

SoundExchange thereof. Notwithstanding 

anything else in these Rates and Terms, a 

person or entity otherwise qualifying as a 

Broadcaster that has participated in any way 

in any appeal of the Final Determination of 

the Copyright Royalty Judges concerning 

royalty rates and terms under Sections 112(e) 

and 114 of the Copyright Act for the period 

January 1, 2006, through December 31, 2010 

published in the Federal Register at 72 FR 

24084 (May 1, 2007) (the ‘‘Final 

Determination’’) or any proceeding before the 

Copyright Royalty Judges to determine 

royalty rates and terms under Sections 112(e) 

and 114 of the Copyright Act for the period 

January 1, 2011, through December 31, 2015 

(including Docket No. 2009–1 CRB 

Webcasting III and Docket No. 2009–2 CRB 

New Subscription II, as noticed in the 

Federal Register at 74 FR 318–20 (Jan. 5, 

2009)) shall not have the right to elect to be 

treated as a Broadcaster or claim the benefit 

of these Rates and Terms, unless it 

withdraws from such proceeding prior to 

submitting to SoundExchange a completed 

and signed election form as contemplated by 

this Section 2.2. 

2.3 Election of Small Broadcaster Status. 

A Broadcaster that elects to be subject to 

these Rates and Terms and qualifies as a 

Small Broadcaster may elect to be treated as 

a Small Broadcaster for any one or more 

calendar years that it qualifies as a Small 

Broadcaster. To do so, the Small Broadcaster 

shall submit to SoundExchange a completed 

and signed election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later than 

January 31 of the applicable year, except that 

election forms for 2006–2009 shall be due by 

no later than the date for the election 

provided in Section 2.2. On any such 

election form, the Broadcaster must, among 

other things, certify that it qualifies as a 

Small Broadcaster; provide information about 

its prior year aggregate tuning hours and the 

formats of its stations (e.g., the genres of 

music they use); and provide other 

information requested by SoundExchange for 

use in creating a royalty distribution proxy. 

Even if a Broadcaster has once elected to be 

treated as a Small Broadcaster, it must make 

a separate, timely election in each 

subsequent year in which it wishes to be 

treated as a Small Broadcaster. 

2.4 Representation of Compliance and 

Non-waiver. By electing to operate pursuant 

to the Rates and Terms, an entity represents 

and warrants that it qualifies as a Broadcaster 

and/or Small Broadcaster, as the case may be. 

By accepting an election by a transmitting 

entity or payments or reporting made 

pursuant to these Rates and Terms, 

SoundExchange does not acknowledge that 

the transmitting entity qualifies as a 

Broadcaster or Small Broadcaster or that it 

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has complied with the requirements of the 

statutory licenses under Sections 112(e) and 

114 of the Copyright Act (including these 

Rates and Terms). It is the responsibility of 

each transmitting entity to ensure that it is 

in full compliance with applicable 

requirements of the statutory licenses under 

Sections 112(e) and 114 of the Copyright Act. 

SoundExchange is not in a position to, and 

does not, make determinations as to whether 

each of the many services that rely on the 

statutory licenses is eligible for statutory 

licensing or any particular royalty payment 

classification, nor does it continuously verify 

that such services are in full compliance with 

all applicable requirements. Accordingly, a 

Broadcaster agrees that SoundExchange’s 

acceptance of its election, payment or 

reporting does not give or imply any 

acknowledgment that it is in compliance 

with the requirements of the statutory 

licenses (including these Rates and Terms) 

and shall not be used as evidence that it is 

in compliance with the requirements of the 

statutory licenses (including these Rates and 

Terms). SoundExchange and copyright 

owners reserve all their rights to take 

enforcement action against a transmitting 

entity that is not in compliance with all 

applicable requirements that are not 

inconsistent with these Rates and Terms. 

Article 3—Scope 

3.1 In General. In consideration for the 

payment of royalties pursuant to Article 4 

and such other consideration specified 

herein, Broadcasters that have made a timely 

election to be subject to these Rates and 

Terms as provided in Section 2.2 are entitled 

to publicly perform sound recordings within 

the scope of the statutory license provided by 

Section 114 by means of Eligible 

Transmissions, and to make related 

ephemeral recordings for use solely for 

purposes of such Eligible Transmissions 

within the scope of Section 112(e), in 

accordance with and subject to the 

limitations set forth in these Rates and Terms 

and in strict conformity with the provisions 

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

implementing regulations (except as 

otherwise specifically provided herein or 

waived by particular copyright owners with 

respect to their respective sound recordings), 

in lieu of other rates and terms from time to 

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

114, for all of the period beginning on 

January 1, 2006, and ending on December 31, 

2015. 

3.2 Applicability to All Eligible Services 

Operated by or for a Broadcaster. If a 

Broadcaster has made a timely election to be 

subject to these Rates and Terms as provided 

in Section 2.2, these Rates and Terms shall 

apply to all Eligible Transmissions made by 

or for the Broadcaster that qualify as a 

Performance under 37 CFR 380.2(i), and 

related ephemeral recordings. For the 

avoidance of doubt, a Broadcaster may not 

rely upon these Rates and Terms for its 

Eligible Transmissions of one broadcast 

channel or station and upon different Section 

112(e) and 114 rates and terms for its Eligible 

Transmissions of other broadcast channels or 

stations. 

3.3 No Implied Rights. These Rates and 

Terms extend only to electing Broadcasters 

and grant no rights, including by implication 

or estoppel, to any other person or except as 

specifically provided herein. Without 

limiting the generality of the foregoing, these 

Rates and Terms do not grant (i) any 

copyright ownership interest in any sound 

recording; (ii) any trademark or trade dress 

rights; (iii) any rights outside the United 

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

rights of publicity or rights to any 

endorsement by SoundExchange or any other 

person; or (v) any rights with respect to 

performances or reproductions outside the 

scope of these Rates and Terms or the 

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

114. 

Article 4—Royalties 

4.1 Minimum Fees. Each Broadcaster will 

pay an annual, nonrefundable minimum fee 

of $500 for each of its individual channels, 

including each of its individual side 

channels, and each of its individual stations, 

through which (in each case) it makes 

Eligible Transmissions, for each calendar 

year or part of a calendar year during 2006– 

2015 during which the Broadcaster is a 

licensee pursuant to licenses under 17 U.S.C. 

112(e) and 114, provided that a Broadcaster 

shall not be required to pay more than 

$50,000 in minimum fees in the aggregate 

(for 100 or more channels or stations). For 

purposes of these Rates and Terms, each 

individual stream (e.g., HD radio side 

channels, different stations owned by a single 

licensee) will be treated separately and be 

subject to a separate minimum, except that 

identical streams for simulcast stations will 

be treated as a single stream if the streams 

are available at a single Uniform Resource 

Locator (URL) and performances from all 

such stations are aggregated for purposes of 

determining the number of payable 

performances hereunder. Upon payment of 

the minimum fee, the Broadcaster will 

receive a credit in the amount of the 

minimum fee against any royalties payable 

for the same calendar year for the same 

channel or station. In addition, an electing 

Small Broadcaster also shall pay a $100 

annual fee (the ‘‘Proxy Fee’’) to 

SoundExchange for the reporting waiver 

discussed in Section 5.1. 

4.2 Royalty Rates. Royalties for Eligible 

Transmissions made pursuant to 17 U.S.C. 

114, and the making of related ephemeral 

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

shall, except as provided in Section 5.3, be 

payable on a per-performance basis, as 

follows: 

Year Rate per 

performance 

2006 ...................................... $0.0008 

2007 ...................................... 0.0011 

2008 ...................................... 0.0014 

2009 ...................................... 0.0015 

2010 ...................................... 0.0016 

2011 ...................................... 0.0017 

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

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

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

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

4.3 MFN. If at any time between 

publication of this Agreement in the Federal 

Register and December 31, 2015, 

SoundExchange enters into an agreement 

with a Broadcaster specifying terms and 

conditions for the public performance of 

sound recordings within the scope of the 

statutory license provided by Section 114 by 

means of Eligible Transmissions, and the 

making of related ephemeral recordings 

within the scope of Section 112(e), upon 

principal financial or other material terms 

that are more favorable to such Broadcaster 

than the principal financial or other material 

terms set forth in these Rates and Terms, then 

SoundExchange shall afford electing 

Broadcasters hereunder the opportunity, in 

each Broadcaster’s sole discretion, to take 

advantage of the terms and conditions of 

such agreement, in their entirety, in lieu of 

these Rates and Terms, with respect to the 

Broadcaster’s Eligible Transmissions, from 

the date such more favorable terms became 

effective under such other agreement and 

continuing until the earlier of (i) the 

expiration of such other agreement, or (ii) 

December 31, 2015. 

4.4 Ephemeral Royalty. The royalty 

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

ephemeral reproductions made by a 

Broadcaster and covered hereby is deemed to 

be included within the royalty payments set 

forth above. SoundExchange has discretion to 

allocate payments hereunder between the 

statutory licenses under Sections 112(e) and 

114 in the same manner as statutory 

webcasting royalties for the period 2011– 

2015, provided that such allocation shall not, 

by virtue of a Broadcaster’s agreement to this 

Section 4.4, be considered precedent in any 

judicial, administrative, or other proceeding. 

4.5 Payment. Payments of all amounts 

specified in these Rates and Terms shall be 

made to SoundExchange. Minimum fees and, 

where applicable, the Proxy Fee shall be paid 

by January 31 of each year. Once a 

Broadcaster’s royalty obligation under 

Section 4.2 with respect to a channel or 

station for a year exceeds the minimum fee 

it has paid for that channel or station and 

year, thereby recouping the credit provided 

by Section 4.1, the Broadcaster shall make 

monthly payments at the per-performance 

rates provided in Section 4.2 beginning with 

the month in which the minimum fee first 

was recouped. 

4.6 Monthly Obligations. Broadcasters 

must make monthly payments where 

required by Section 4.5, and provide 

statements of account and reports of use, for 

each month on the 45th day following the 

end of the month in which the Eligible 

Transmissions subject to the payments, 

statements of account, and reports of use 

were made. 

4.7 Past Periods. Notwithstanding 

anything else in this Agreement, to the extent 

that a Broadcaster that elects to be subject to 

these Rates and Terms has not paid royalties 

for all or any part of the period beginning on 

January 1, 2006, and ending on February 28, 

2009, any amounts payable under these Rates 

and Terms for Eligible Transmissions during 

such period for which payment has not 

previously been made shall be paid by no 

later than April 30, 2009, including late fees 

as provided in Section 4.8 from the original 

due date. 

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4.8 Late Fees. A Broadcaster shall pay a 

late fee for each instance in which any 

payment, any statement of account or any 

report of use is not received by 

SoundExchange in compliance with these 

Rates and Terms and applicable regulations 

by the due date. The amount of the late fee 

shall be 1.5% of a late payment, or 1.5% of 

the payment associated with a late statement 

of account or report of use, per month, 

compounded monthly, or the highest lawful 

rate, whichever is lower. The late fee shall 

accrue from the due date of the payment, 

statement of account or report of use until a 

fully-compliant payment, statement of 

account or report of use is received by 

SoundExchange, provided that, in the case of 

a timely provided but noncompliant 

statement of account or report of use, 

SoundExchange has notified the Broadcaster 

within 90 days regarding any noncompliance 

that is reasonably evident to SoundExchange. 

Article 5—Reporting, Auditing and 

Confidentiality 

5.1 Small Broadcasters. While 

SoundExchange’s ultimate goal is for all 

webcasters to provide census reporting, 

requiring census reporting by the smallest 

Broadcasters at this time may present undue 

challenges for them, reduce compliance, and 

significantly increase SoundExchange’s 

distribution costs. Accordingly, on a 

transitional basis for a limited time and for 

purposes of these Rates and Terms only, and 

in light of the unique business and 

operational circumstances currently existing 

with respect to these entities, electing Small 

Broadcasters shall not be required to provide 

reports of their use of sound recordings for 

Eligible Transmissions and related ephemeral 

recordings. The immediately preceding 

sentence applies even if the Small 

Broadcaster actually makes Eligible 

Transmissions for the year exceeding 27,777 

aggregate tuning hours, so long as it qualified 

as a Small Broadcaster at the time of its 

election for that year. Instead, 

SoundExchange shall distribute the aggregate 

royalties paid by electing Small Broadcasters 

based on proxy usage data in accordance 

with a methodology adopted by 

SoundExchange’s Board of Directors. In 

addition to minimum royalties hereunder, 

electing Small Broadcasters will pay to 

SoundExchange a $100 Proxy Fee to defray 

costs associated with this reporting waiver, 

including development of proxy usage data. 

SoundExchange hopes that offering this 

option to electing Small Broadcasters will 

promote compliance with statutory license 

obligations and thereby increase the pool of 

royalties available to be distributed to 

copyright owners and performers. 

SoundExchange further hopes that selection 

of a proxy believed by SoundExchange to 

represent fairly the playlists of Small 

Broadcasters will allow payment to more 

copyright owners and performers than would 

be possible with any other reasonably 

available option. Small Broadcasters should 

assume that, effective January 1, 2016, they 

will be required to report their actual usage 

in full compliance with then-applicable 

regulations. Small Broadcasters are 

encouraged to begin to prepare to report their 

actual usage by that date, and if it is 

practicable for them to do so earlier, they 

may wish not to elect Small Broadcaster 

status. 

5.2 Reporting by Other Broadcasters in 

General. Broadcasters other than electing 

Small Broadcasters covered by Section 5.1 

shall submit reports of use on a perperformance basis in compliance with the 

regulations set forth in 37 CFR Part 370, 

except that the following provisions shall 

apply notwithstanding the provisions of 

applicable regulations from time to time in 

effect: 

(a) Broadcasters may pay for, and report 

usage in, a percentage of their programming 

hours on an aggregate tuning hour basis as 

provided in Section 5.3. 

(b) Broadcasters shall submit reports of use 

to SoundExchange on a monthly basis. 

(c) As provided in Section 4.6, 

Broadcasters shall submit reports of use by 

no later than the 45th day following the last 

day of the month to which they pertain. 

(d) Except as provided in Section 5.3, 

Broadcasters shall submit reports of use to 

SoundExchange on a census reporting basis 

(i.e., reports of use shall include every sound 

recording performed in the relevant month 

and the number of performances thereof). 

(e) Broadcasters shall either submit a 

separate report of use for each of their 

stations, or a collective report of use covering 

all of their stations but identifying usage on 

a station-by-station basis. 

(f) Broadcasters shall transmit each report 

of use in a file the name of which includes 

(i) the name of the Broadcaster, exactly as it 

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

report covers a single station only, the call 

letters of the station. 

(g) Broadcasters shall submit reports of use 

with headers, as presently described in 37 

CFR 370.3(d)(7). 

(h) Broadcasters shall submit a separate 

statement of account corresponding to each 

of their reports of use, transmitted in a file 

the name of which includes (i) the name of 

the Broadcaster, exactly as it appears on its 

notice of use, and (ii) if the statement covers 

a single station only, the call letters of the 

station. 

5.3 Limited ATH-Based Reporting. 

Recognizing the operational challenge of 

census reporting, Broadcasters generally 

reporting pursuant to Section 5.2 may pay 

for, and report usage in, a percentage of their 

programming hours on an aggregate tuning 

hours basis, if (a) census reporting is not 

reasonably practical for the programming 

during those hours, and (b) if the total 

number of hours on a single report of use, 

provided pursuant to Section 5.2, for which 

this type of reporting is used is below the 

maximum percentage set forth below for the 

relevant year: 

Year Maximum 

percentage 

2009 .......................................... 20% 

2010 .......................................... 18% 

2011 .......................................... 16% 

2012 .......................................... 14% 

2013 .......................................... 12% 

2014 .......................................... 10% 

Year Maximum 

percentage 

2015 .......................................... 8% 

To the extent that a Broadcaster chooses to 

report and pay for usage on an aggregate 

tuning hours basis pursuant to this Section 

5.3, the Broadcaster shall (i) report and pay 

based on the assumption that the number of 

sound recordings performed during the 

relevant programming hours is 12 per hour; 

(ii) pay royalties (or recoup minimum fees) 

at the per-performance rates provided in 

Section 4.2 on the basis of clause (i) above; 

(iii) include aggregate tuning hours in reports 

of use provided pursuant to Section 5.2; and 

(iv) include in reports of use provided 

pursuant to Section 5.2 complete playlist 

information for usage reported on the basis 

of aggregate tuning hours. SoundExchange 

may distribute royalties paid on the basis of 

aggregate tuning hours hereunder in 

accordance with its generally-applicable 

methodology for distributing royalties paid 

on such basis. 

5.4 Verification of Information. The 

provisions of applicable regulations for the 

retention of records and verification of 

statutory royalty payments (presently 37 CFR 

380.4(h) and 380.6) shall apply hereunder. 

The exercise by SoundExchange of any right 

under this Section 5.4 shall not prejudice any 

other rights or remedies of SoundExchange or 

sound recording copyright owners. 

5.5 Confidentiality. The provisions of 

applicable regulations concerning 

confidentiality (presently 37 CFR 380.5 (and 

the applicable definitions provided in 37 

CFR 380.2)) shall apply hereunder. 

Article 6—Additional Provisions 

6.1 Applicable Regulations. To the extent 

not inconsistent with the Rates and Terms 

herein, all applicable regulations, including 

37 CFR Parts 370 and 380, shall apply to 

activities subject to these Rates and Terms. 

6.2 Participation in Specified 

Proceedings. A Broadcaster that elects to be 

subject to these Rates and Terms agrees that 

it has elected to do so in lieu of any different 

statutory rates and terms that may otherwise 

apply during any part of the 2006–2015 

period and in lieu of participating at any time 

in a proceeding to set rates and terms for any 

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

Broadcaster has elected to be subject to these 

Rates and Terms, it shall not at any time 

participate as a party, intervenor, amicus 

curiae or otherwise, or give evidence or 

otherwise support or assist, in Intercollegiate 

Broadcasting Sys. v. Copyright Royalty Board 

(D.C. Circuit Docket Nos. 07–1123, 07–1168, 

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

1178, 07–1179), Digital Performance Right in 

Sound Recordings and Ephemeral 

Recordings (Copyright Royalty Judges’ 

Docket No. 2009–1 CRB Webcasting III), 

Digital Performance Right in Sound 

Recordings and Ephemeral Recordings for a 

New Subscription Service (Copyright Royalty 

Judges’ Docket No. 2009–2 CRB New 

Subscription II) or any successor proceedings 

to determine royalty rates and terms for 

reproduction of ephemeral phonorecords or 

digital audio transmission under Section 

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

any part of the period 2006–2015, including 

any appeal of the foregoing or any 

proceedings on remand from such an appeal, 

unless subpoenaed on petition of a third 

party (without any action by a Broadcaster to 

encourage or suggest such a subpoena or 

petition) and ordered to testify or provide 

documents in such proceeding. 

6.3 Use of Agreement in Future 

Proceedings. 

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

and except as specifically provided in 

Section 6.3(b), neither the Webcaster 

Settlement Act nor any provisions of these 

Rates and Terms shall be admissible as 

evidence or otherwise taken into account in 

any administrative, judicial, or other 

government proceeding involving the setting 

or adjustment of the royalties payable for the 

public performance or reproduction in 

ephemeral phonorecords or copies of musical 

works or sound recordings, the determination 

of terms or conditions related thereto, or the 

establishment of notice or recordkeeping 

requirements by the Copyright Royalty 

Judges. 

(b) Pursuant to 17 U.S.C. 114(f)(5)(C), 

submission of these Rates and Terms in a 

proceeding under 17 U.S.C. 114(f) is 

expressly authorized. For the avoidance of 

doubt, this Section 6.3(b) does not authorize 

participation in a proceeding by an entity 

that has agreed not to participate in the 

proceeding (pursuant to Section 6.2 or 

otherwise). 

6.4 Effect of Direct Licenses. Any 

copyright owner may enter into a voluntary 

agreement with any Broadcaster setting 

alternative Rates and Terms governing the 

Broadcasters’ transmission of copyrighted 

works owned by the copyright owner, and 

such voluntary agreement may be given effect 

in lieu of the Rates and Terms set forth 

herein. 

6.5 Default. A Broadcaster shall comply 

with all the requirements of these Rates and 

Terms. If it fails to do so, SoundExchange 

may give written notice to the Broadcaster 

that, unless the breach is remedied within 30 

days from the date of receipt of notice, the 

Broadcaster’s authorization to make public 

performances and ephemeral reproductions 

under these Rates and Terms will be 

automatically terminated. No such cure 

period shall apply before termination in case 

of material noncompliance that has been 

repeated multiple times so as to constitute a 

pattern of noncompliance, provided that 

SoundExchange has given repeated notices of 

noncompliance. Any transmission made by a 

Broadcaster in violation of these Rates and 

Terms or Section 112(e) or 114 or their 

implementing regulations (except to the 

extent such implementing regulations are 

inconsistent with these Rates and Terms), 

outside the scope of these Rates and Terms, 

or after the expiration or termination of these 

Rates and Terms shall be fully subject to, 

among other things, the copyright owners’ 

rights under 17 U.S.C. 106 and the remedies 

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

exceptions and defenses available with 

respect thereto. 

Article 7—Miscellaneous 

7.1 Acknowledgement. 

(a) The parties acknowledge this agreement 

was entered into knowingly and willingly. 

(b) This agreement is limited solely to 

webcasting royalties, and the parties 

acknowledge that it shall not be cited in 

connection with any efforts to obtain, and 

sets no precedent related to, over-the-air 

performance royalties. 

(c) The parties further agree that the 

preceding acknowledgement in Section 7.1(a) 

does not in any way imply Broadcasters’ 

agreement that the royalty rate standard set 

forth in 17 U.S.C. 114(f)(2)(B) is an 

appropriate rate standard to apply to 

Broadcasters. Broadcasters shall never be 

precluded by virtue of such 

acknowledgement from arguing in the 

context of future legislation or otherwise that 

a different royalty rate standard should apply 

to them, and SoundExchange shall never rely 

upon by such acknowledgement as a basis for 

arguing that the royalty rate standard set 

forth in 17 U.S.C. 114(f)(2)(B) should apply 

to Broadcasters. 

7.2 Applicable Law and Venue. These 

Rates and Terms shall be governed by, and 

construed in accordance with, the laws of the 

District of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising directly or 

indirectly from or in connection with these 

Rates and Terms shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC. 

SoundExchange and Broadcasters consent to 

the jurisdiction and venue of the foregoing 

court and consent that any process or notice 

of motion or other application to said court 

or a judge thereof may be served inside or 

outside the District of Columbia by registered 

mail, return receipt requested, directed to the 

person for which it is intended at its last 

known address (and service so made shall be 

deemed complete five (5) days after the same 

has been posted as aforesaid) or by personal 

service or in such other manner as may be 

permissible under the rules of that court. 

7.3 Rights Cumulative. The rights, 

remedies, limitations, and exceptions 

provided in these Rates and Terms and 

available under applicable law shall be 

cumulative and shall not preclude assertion 

by any party of any other rights, defenses, 

limitations, or exceptions or the seeking of 

any other remedies against another party 

hereto. These Rates and Terms shall not 

constitute a waiver of any violation of 

Section 112 or 114 or their implementing 

regulations (except to the extent such 

implementing regulations are inconsistent 

with these Rates and Terms). No failure to 

exercise and no delay in exercising any right, 

power or privilege shall operate as a waiver 

of such right, power or privilege. No single 

or partial exercise of any right, power or 

privilege granted under these Rates and 

Terms or available under applicable law shall 

preclude any other or further exercise thereof 

or the exercise of any other right, power or 

privilege. No waiver by any party of full 

performance by another party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

these Rates and Terms and of obligations 

under applicable law thereafter. 

7.4 Entire Agreement. These Rates and 

Terms represent the entire and complete 

agreement between SoundExchange and a 

Broadcaster with respect to their subject 

matter and supersede all prior and 

contemporaneous agreements and 

undertakings of SoundExchange and a 

Broadcaster with respect to the subject matter 

hereof. 

Appendix C 

Agreed Rates and Terms 

1. General 

(a) Availability of Rates and Terms. 

Pursuant to the Webcaster Settlement Act of 

2008, and subject to the provisions of Section 

2, Eligible Small Webcasters may elect to be 

subject to the rates and terms set forth herein 

(the ‘‘Rates and Terms’’) in their entirety, 

with respect to their eligible nonsubscription 

transmissions and related ephemeral 

recordings, in lieu of other rates and terms 

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

by complying with the procedure set forth in 

Section 2 hereof. Any person or entity that 

does not satisfy the eligibility criteria to be 

an Eligible Small Webcaster during any 

calendar year during the period 2006–2015 

must comply with otherwise applicable rates 

and terms for that year. 

(b) Compliance. Any Eligible Small 

Webcaster relying upon the statutory licenses 

set forth in 17 U.S.C. 112(e) and 114 shall 

comply with the requirements of those 

Sections, these Rates and Terms and other 

applicable regulations. 

(c) Effect of Direct Licenses. These Rates 

and Terms are without prejudice to, and 

subject to, any voluntary agreements that an 

Eligible Small Webcaster may have entered 

into with any sound recording copyright 

owner. 

(d) Precedential Effect of Rates and Terms. 

Eligible Small Webcasters agree that these 

Rates and Terms (including any royalty rates, 

rate structure, fees, definitions, terms, 

conditions, or notice and recordkeeping 

requirements set forth herein), shall not be 

admissible as evidence or otherwise taken 

into account in any administrative, judicial, 

or other government proceeding, except as 

specifically provided in this Section 1(d). 

This prohibition applies to, but is not limited 

to, those proceedings involving the setting or 

adjustment of the royalties payable for the 

public performance or reproduction in 

ephemeral phonorecords or copies of sound 

recordings, the determination of terms or 

conditions related thereto, or the 

establishment of notice or recordkeeping 

requirements. These Rates and Terms shall 

be considered as a compromise motivated by 

the unique business, economic and political 

circumstances of small webcasters, copyright 

owners, and performers rather than as 

matters that would have been negotiated in 

the marketplace between a willing buyer and 

a willing seller. Eligible Small Webcasters 

shall not, in any way, seek to use in any way 

these Rates and Terms in any such 

proceeding and further agree to take 

whatever steps are appropriate to prevent use 

of such rates and terms in those proceedings. 

SoundExchange may disclose, describe or 

explain any provision of these Rates and 

Terms in any proceeding without giving it 

precedential effect. 

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2. Election for Treatment as an Eligible Small 

Webcaster 

(a) Election Process in General. An Eligible 

Small Webcaster that wishes to elect to be 

subject to these Rates and Terms with respect 

to its eligible nonsubscription transmissions 

and related ephemeral recordings, in lieu of 

any royalty rates and terms that otherwise 

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

for any calendar year that it qualifies as an 

Eligible Small Webcaster during the period 

beginning on January 1, 2006, and ending on 

December 31, 2015, shall submit to 

SoundExchange a completed and signed 

election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later than 

the first date on which the webcaster would 

be obligated under these Rates and Terms to 

make a royalty payment for such year. An 

Eligible Small Webcaster that fails to make a 

timely election shall pay royalties for the 

relevant year as otherwise provided under 17 

U.S.C. 112 and 114. 

(b) Election of Microcaster Status. An 

Eligible Small Webcaster that elects to be 

subject to these Rates and Terms and 

qualifies as a Microcaster may elect to be 

treated as a Microcaster for any one or more 

calendar years that it qualifies as a 

Microcaster. To do so, the Microcaster shall 

submit to SoundExchange a completed and 

signed election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later than 

the first date on which the Eligible Small 

Webcaster would be obligated under these 

Rates and Terms to make a royalty payment 

for each year it elects to be treated as a 

Microcaster. On any such election form, the 

Eligible Small Webcaster must, among other 

things, certify that it qualifies as a 

Microcaster; provide its prior year Gross 

Revenues, Third Party Participation 

Revenues and Aggregate Tuning Hours; and 

provide other information requested by 

SoundExchange for use in creating a royalty 

distribution proxy. Even if an Eligible Small 

Webcaster has once elected to be treated as 

a Microcaster, it must make a separate, timely 

election in each subsequent year in which it 

wishes to be treated as a Microcaster. 

(c) Participation in Proceedings. 

Notwithstanding anything else in these Rates 

and Terms, a person or entity otherwise 

qualifying as an Eligible Small Webcaster 

that has participated in any way in any 

appeal of the Final Determination of the 

Copyright Royalty Judges concerning royalty 

rates and terms under Sections 112(e) and 

114 of the Copyright Act for the period 

January 1, 2006, through December 31, 2010 

published in the Federal Register at 72 FR 

24084 (May 1, 2007) (the ‘‘Final 

Determination’’) or any proceeding before the 

Copyright Royalty Judges to determine 

royalty rates and terms under Sections 112(e) 

and 114 of the Copyright Act for the period 

January 1, 2011, through December 31, 2015 

(including Docket No. 2009–1 CRB 

Webcasting III and Docket No. 2009–2 CRB 

New Subscription II, as noticed in the 

Federal Register at 74 FR 318–20 (Jan. 5, 

2009)) shall not have the right to elect to be 

treated as an Eligible Small Webcaster or 

claim the benefit of these Rates and Terms, 

unless it withdraws from such proceeding 

and submits to SoundExchange a completed 

and signed election form within thirty (30) 

days after publication of these Rates and 

Terms in the Federal Register. An Eligible 

Small Webcaster that elects to be subject to 

these Rates and Terms for any one or more 

years agrees that it has elected to do so in 

lieu of any different statutory rates and terms 

that may otherwise apply during that year 

and in lieu of participating at any time in a 

proceeding to set rates and terms for any part 

of the 2006–2015 period. Thus, once an 

Eligible Small Webcaster has elected to be 

subject to these Rates and Terms it shall not 

at any time (even if it is no longer eligible, 

or has no longer elected to be treated, as an 

Eligible Small Webcaster) directly or 

indirectly participate as a party, amicus 

curiae or otherwise, or in any manner give 

evidence or otherwise support or assist, in 

any further proceedings to determine royalty 

rates and terms for reproduction of 

ephemeral phonorecords or digital audio 

transmission under Section 112(e) or 114 of 

the Copyright Act for all or any part of the 

period 2006–2015, including any appeal of 

the Final Determination, any proceedings on 

remand from such an appeal, any proceeding 

before the Copyright Royalty Judges to 

determine royalty rates and terms applicable 

to the statutory licenses under Sections 

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

period 2011–2015, any appeal of such 

proceeding, or any other related proceedings. 

(d) Compliance. By electing Eligible Small 

Webcaster and/or Microcaster status, a 

transmitting entity represents that it is 

eligible therefor and in compliance with all 

requirements of the statutory licenses under 

Sections 112(e) and 114 of the Copyright Act. 

By accepting an election by a transmitting 

entity or payments or reporting made 

pursuant to these Rates and Terms, 

SoundExchange does not acknowledge that 

the transmitting entity qualifies as an Eligible 

Small Webcaster or Microcaster or that it has 

complied with the requirements of the 

statutory licenses under Sections 112(e) and 

114 of the Copyright Act (including these 

Rates and Terms). It is the responsibility of 

each transmitting entity to ensure that it is 

in full compliance with the requirements of 

the statutory licenses under Sections 112(e) 

and 114 of the Copyright Act. 

SoundExchange is not in a position to, and 

does not, make determinations as to whether 

each of the many services that rely on the 

statutory licenses is eligible for statutory 

licensing or any particular royalty payment 

classification, nor does it continuously verify 

that such services are in full compliance with 

all applicable requirements. Accordingly, an 

Eligible Small Webcaster agrees that 

SoundExchange’s acceptance of its election, 

payment or reporting does not give or imply 

any acknowledgment that it is in compliance 

with the requirements of the statutory 

licenses (including these Rates and Terms) 

and shall not be used as evidence that it is 

in compliance with the requirements of the 

statutory licenses (including these Rates and 

Terms). SoundExchange and copyright 

owners reserve all their rights to take 

enforcement action against a transmitting 

entity that is not in compliance with those 

requirements. 

3. Royalty Rates for Eligible Small Webcasters 

For eligible nonsubscription transmissions 

made by an Eligible Small Webcaster during 

the period 2006–2015, except an electing 

Microcaster, the royalty rate shall be— 

(1) On any transmissions not exceeding 

5,000,000 Aggregate Tuning Hours per month 

(equivalent to approximately 6,945 average 

simultaneous listeners, listening for thirty 

consecutive days, 24 hours a day), the greater 

of (i) ten percent (10%) of the Eligible Small 

Webcaster’s first $250,000 in Gross Revenues 

and twelve percent (12%) of any Gross 

Revenues in excess of $250,000 during the 

applicable year; or (ii) seven percent (7%) of 

the Eligible Small Webcaster’s Expenses 

during the applicable year; and 

(2) On any transmissions in excess of 

5,000,000 Aggregate Tuning Hours per 

month, the commercial webcasting rates 

provided in the Final Determination (for the 

period 2006–2010) or the then-applicable 

commercial webcasting rates under Sections 

112(e) and 114 (for the period 2011–2015). 

4. Minimum Annual Fees 

(a) In General. For each year from 2006– 

2015, an Eligible Small Webcaster shall pay 

annual minimum fees as follows: 

(1) $500 for electing Microcasters, which 

shall constitute the only royalty payable 

hereunder by an electing Microcaster, except 

that an electing Microcaster also shall pay a 

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

SoundExchange for the reporting waiver 

discussed in Section 6(a), and the provisions 

of Section 5(d) shall apply; 

(2) $2,000, for Eligible Small Webcasters 

other than electing Microcasters that had 

Gross Revenues during the prior year of not 

more than $50,000 and reasonably expect 

Gross Revenues of not more than $50,000 

during the applicable year; or 

(3) $5,000, for Eligible Small Webcasters 

that had Gross Revenues during the prior 

year of more than $50,000 or reasonably 

expect Gross Revenues to exceed $50,000 

during the applicable year. 

(b) The amounts specified in Section 4(a) 

shall be paid by January 31 of each year. 

(c) All minimum fees (but not the Proxy 

Fee for the reporting waiver for Microcasters) 

shall be fully creditable toward royalties due 

for the year for which such amounts are paid, 

but not any other year. 

5. Payments 

(a) Qualification to Make Current Payments 

as Eligible Small Webcaster. If the Gross 

Revenues, plus the Third Party Participation 

Revenues and revenues from the operation of 

New Subscription Services, of a transmitting 

entity and its Affiliates have not exceeded 

$1,250,000 in any year, and the transmitting 

entity reasonably expects to be an Eligible 

Small Webcaster in a given year, the 

transmitting entity may make payments for 

that year on the assumption that it will be an 

Eligible Small Webcaster for that year for so 

long as that assumption is reasonable. 

(b) True-Up Between Gross Revenues and 

Expenses. In making monthly payments, an 

Eligible Small Webcaster shall, at the time a 

payment is due, calculate its Gross Revenues 

and Expenses for the year through the end of 

the applicable month and pay the applicable 

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percentage of Gross Revenues or Expenses, as 

the case may be, for the year through the end 

of the applicable month, less any amounts 

previously paid for such year. For the 

purposes of illustration only, if an Eligible 

Small Webcaster has $100,000 in Gross 

Revenues and $2,000 in Expenses in Month 

1, the monthly payment shall be $10,000 

(10% of aggregate gross yearly revenue up to 

$250,000). In Month 2, if the Eligible Small 

Webcaster has $100,000 in Gross Revenue 

and $2,000 in Expenses, then the Eligible 

Small Webcaster shall pay $10,000 in 

monthly payments (10% of aggregate gross 

yearly revenue for the year up to $250,000 

less the $10,000 paid in Month 1). In Month 

3, if the Eligible Small Webcaster has 

$100,000 in Gross Revenue and $2,000 in 

Expenses, then the Eligible Small Webcaster 

shall pay $11,000 in monthly payments (10% 

of aggregate gross yearly revenue for the year 

up to $250,000 plus 12% of aggregate gross 

yearly revenue for the amount above 

$250,000, less prior payments). 

(c) Effect if Eligibility Condition is 

Exceeded. Except as provided in Section 5(e), 

if a transmitting entity has made payments 

for any year based on the assumption that it 

will qualify as an Eligible Small Webcaster, 

but the actual Gross Revenues plus Third 

Party Participation Revenues and revenues 

from the operation of New Subscription 

Services in that year of the transmitting 

entity and its Affiliates exceed the Gross 

Revenue threshold provided in Section 8(e), 

then the transmitting entity shall receive a 

six (6) month grace period measured from the 

first month following the month in which 

such revenues exceed $1,250,000 (the ‘‘Grace 

Period’’). During the Grace Period, the 

transmitting entity shall pay the rates as 

specified in Section 3(a). From and after the 

date the Grace Period has expired, the 

transmitting entity will pay the commercial 

webcasting rates provided in the Final 

Determination (for 2006–2010) or the thenapplicable commercial webcasting rates 

under Sections 112(e) and 114 (for 2011– 

2015), only for periods after the expiration of 

the Grace Period. 

(d) Effect if Microcaster Eligibility 

Condition is Exceeded. Except as provided in 

Section 5(e), if a transmitting entity has made 

payments and not reported usage for any year 

based on the assumption that it will qualify 

as a Microcaster, but the actual Gross 

Revenues plus Third Party Participation 

Revenues, Expenses, or Aggregate Tuning 

Hours in that year of the transmitting entity 

and its Affiliates exceed a threshold provided 

in Section 8(h), then the transmitting entity’s 

payments for that entire year shall 

retroactively be adjusted as provided in this 

Section 5(d). By no later than January 31 of 

the following year, the transmitting entity 

shall notify SoundExchange whether it elects 

to be treated for the entire year in which such 

threshold was exceeded as either an Eligible 

Small Webcaster but not a Microcaster, or as 

a transmitting entity fully subject to the Final 

Determination (for 2006–2010) or to the thenapplicable commercial webcasting rates 

under Sections 112(e) and 114 (for 2011– 

2015) (whichever of the foregoing it elects, 

the ‘‘Elected Status’’). At the same time, the 

transmitting entity must pay all amounts that 

would have been due for that year if it had 

originally elected the Elected Status, less any 

royalties previously paid hereunder as a 

Microcaster for that year (but not less the 

Proxy Fee). The transmitting entity need not 

provide reports of use for that year, and 

SoundExchange may distribute the royalties 

paid by the transmitting entity for that year 

based on the proxy usage data applicable to 

Microcasters. For the year following the year 

in which such threshold was exceeded, the 

transmitting entity must comply with 

applicable requirements as either an Eligible 

Small Webcaster but not a Microcaster, or as 

a transmitting entity fully subject to the Final 

Determination (for 2006–2010) or to the thenapplicable commercial webcasting rates 

under Sections 112(e) and 114 (for 2011– 

2015). 

(e) True-Up for Certain Corporate 

Transactions. If a transmitting entity that has 

at any time elected to be treated as an Eligible 

Small Webcaster under these Rates and 

Terms, and has not ceased to qualify as an 

Eligible Small Webcaster through growth in 

its business and thereafter paid full 

commercial webcasting rates for a period of 

at least twelve (12) full months (after any 

Grace Period applicable under Section 5(c)), 

becomes a party to or subject of any merger, 

sale of stock or all or substantially all of its 

assets, or other corporate restructuring, such 

that, upon the consummation of such 

transaction, the transmitting entity or its 

successor (including a purchaser of all or 

substantially all of its assets) does not 

qualify, or reasonably expect to qualify, as an 

Eligible Small Webcaster for the then-current 

year, then the transmitting entity or its 

successor shall, within thirty (30) days after 

the consummation of such transaction, pay to 

SoundExchange the difference between (1) 

the payment the transmitting entity would 

have been required to make under the 

commercial webcasting rates provided in the 

Final Determination (for 2006–2010) or under 

the then-applicable commercial webcasting 

rates under Sections 112(e) and 114 (for 

2011–2015) for each year in which it elected 

to be treated as an Eligible Small Webcaster 

under these Rates and Terms, from January 

1, 2006 through the date of such transaction, 

and (2) the royalty payments it made under 

these Rates and Terms for each such year. 

The burden of proof shall be on the 

transmitting entity or its successor to 

demonstrate its actual usage for purposes of 

determining the payment it would have been 

required to make under such commercial 

webcasting rates for each such year. If the 

transmitting entity has insufficient records to 

determine the payment it would have been 

required to make under such commercial 

webcasting rates for each such year, then 

such calculation shall be made on the basis 

of the assumption that it made transmissions 

of 5,000,000 Aggregate Tuning Hours per 

month, and 15.375 performances per each 

such Aggregate Tuning Hour, during the 

relevant period. 

(f) Remittance. Payments of all amounts 

specified in these Rates and Terms shall be 

made to SoundExchange as provided in 

Section 7(a). Eligible Small Webcasters shall 

not be entitled to a refund of any amounts 

paid to SoundExchange, but if an Eligible 

Small Webcaster makes an overpayment of 

royalties (other than payments of minimums) 

during a year, SoundExchange shall, at its 

discretion, either refund the overpayment or 

give the Eligible Small Webcaster a credit in 

the amount of its overpayment, which credit 

shall be available to be applied to its 

payments for the immediately following year 

only. 

(g) Ephemeral Recordings Royalty. 

SoundExchange has discretion to allocate 

payments hereunder between the statutory 

licenses under Sections 112(e) and 114 in the 

same manner as the majority of other 

webcasting royalties. 

(h) Past Periods. Notwithstanding anything 

else in this Agreement, to the extent that an 

Eligible Small Webcaster that elects to be 

subject to these Rates and Terms has not paid 

royalties for all or any part of the period 

beginning on January 1, 2006, and ending on 

February 28, 2009, any amounts payable 

under these Rates and Terms for eligible 

nonsubscription transmissions during such 

period for which payment has not previously 

been made shall be paid by no later than 

April 30, 2009, including late fees as 

provided in Section 5(i) from the original due 

date. 

(i) Late Fee. An Eligible Small Webcaster 

shall pay a late fee for each instance in which 

any payment, any statement of account or 

any report of use is not received by 

SoundExchange in full compliance with 

these Rates and Terms and applicable 

regulations by the due date. The amount of 

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

or 1.5% of the payment associated with a late 

statement of account or report of use, per 

month, or the highest lawful rate, whichever 

is lower. The late fee shall accrue from the 

due date of the payment, statement of 

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

report of use is received by SoundExchange. 

6. Notice and Recordkeeping 

(a) Microcasters. SoundExchange believes 

that accurate census reporting by services is 

the best way for it to obtain data for making 

fair royalty distributions to copyright owners 

and performers, and for that reason, Section 

6(b) generally requires census reporting by 

Eligible Small Webcasters. However, 

SoundExchange has observed a low level of 

compliance by the smallest webcasters with 

the payment and notice and recordkeeping 

requirements imposed by applicable 

regulations. Moreover, where 

SoundExchange has received reports of use 

from the smallest webcasters, it has had to 

devote levels of resources to processing those 

reports that are high relative to the usage and 

payment involved. While SoundExchange’s 

ultimate goal is for all webcasters to provide 

census reporting, requiring census reporting 

by the smallest webcasters at this time may 

further reduce compliance and significantly 

increase distribution costs. 

Accordingly, on a transitional basis for a 

limited time and for purposes of these Rates 

and Terms only, and in light of the unique 

business and operational circumstances 

currently existing with respect to these 

services, electing Microcasters shall not be 

required to provide reports of their use of 

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sound recordings for eligible nonsubscription 

transmissions and related ephemeral 

recordings. Instead, SoundExchange shall 

distribute the aggregate royalties paid by 

electing Microcasters based on proxy usage 

data in accordance with a methodology 

adopted by SoundExchange’s Board of 

Directors. In addition to minimum royalties 

hereunder, electing Microcasters will pay to 

SoundExchange a $100 Proxy Fee to defray 

costs associated with this reporting waiver, 

including development of proxy usage data. 

SoundExchange hopes that offering this 

option to electing Microcasters will promote 

compliance with statutory license obligations 

and thereby increase the pool of royalties 

available to be distributed to copyright 

owners and performers. SoundExchange 

further hopes that selection of a proxy 

believed by SoundExchange to represent 

fairly the playlists of the smallest webcasters 

will allow payment to more copyright owners 

and performers than would be possible with 

any other reasonably available option. 

Microcasters should assume that, effective 

January 1, 2016, they will be required to 

report their actual usage in full compliance 

with then-applicable regulations. 

Microcasters are encouraged to begin to 

prepare to report their actual usage by that 

date, and if it is practicable for them to do 

so earlier, they may wish not to elect 

Microcaster status. 

(b) Reports to Be Provided by other Eligible 

Small Webcasters. As a condition of these 

Rates and Terms, except as provided in 

Section 6(a), an Eligible Small Webcaster 

shall submit reports of use of sound 

recordings to SoundExchange covering the 

following for all of its eligible 

nonsubscription transmissions, on a channel 

by channel basis: 

(1) The featured recording artist, group or 

orchestra; 

(2) The sound recording title; 

(3) The title of the retail album or other 

product (or, in the case of compilation 

albums created for commercial purposes, the 

name of the retail album upon which the 

track was originally released); 

(4) The marketing label of the 

commercially available album or other 

product on which the sound recording is 

found; 

(5) The International Standard Recording 

Code (‘‘ISRC’’) embedded in the sound 

recording, if available; 

(6) The copyright owner information 

provided in the copyright notice on the retail 

album or other product (e.g., following the 

symbol (P) (the letter P in a circle) or, in the 

case of compilation albums created for 

commercial purposes, in the copyright notice 

for the individual track); 

(7) The Aggregate Tuning Hours, on a 

monthly basis, for each channel provided by 

the Eligible Small Webcaster as computed by 

a recognized industry ratings service or as 

computed by the Eligible Small Webcaster 

from its server logs; 

(8) The channel for each transmission of 

each sound recording; and 

(9) The start date and time of each 

transmission of each sound recording. 

If at any time during the period through 

December 31, 2015, Eligible Small 

Webcasters would be required under 

regulations applicable to the Section 112(e) 

or 114 statutory license to provide reports of 

use more extensive than provided in this 

Section 6(b), then any incremental 

information required by such regulations 

shall be provided under these Rates and 

Terms in addition to the information 

identified above. 

(c) Provision of Reports. Reports of use 

described in Section 6(b) shall be provided 

at the same time royalty payments are due 

under Section 7(a). 

(d) Server Logs. To the extent not already 

required by the current regulations set forth 

in 37 CFR Part 380, all Eligible Small 

Webcasters shall retain for a period of at least 

four (4) years server logs sufficient to 

substantiate all information relevant to 

eligibility, rate calculation and reporting 

hereunder. To the extent that a third-party 

web hosting or service provider maintains 

equipment or software for an Eligible Small 

Webcaster and/or such third party creates, 

maintains, or can reasonably create such 

server logs, the Eligible Small Webcaster 

shall direct that such server logs be created 

and maintained by said third party for a 

period of at least four years and/or that such 

server logs be provided to, and maintained 

by, the Eligible Small Webcaster. 

SoundExchange shall have access to the same 

pursuant to applicable regulations for the 

verification of statutory royalty payments 

(presently 37 CFR 380.6). 

7. Additional Provisions 

(a) Monthly Obligations. All Eligible Small 

Webcasters except electing Microcasters must 

make monthly payments, provide statements 

of account, and submit reports of use as 

described in Section 6 for each month on the 

forty-fifth (45th) day following the month in 

which the transmissions subject to the 

payments, statements of account, and reports 

of use were made. 

(b) Proof of Eligibility. At all times, the 

burden of proof shall be on the Eligible Small 

Webcaster to demonstrate eligibility for the 

Rates and Terms set forth herein and for 

Microcaster status, and at all times the 

obligation shall be on the Eligible Small 

Webcaster to maintain records sufficient to 

determine eligibility. Failure to retain 

sufficient records to determine eligibility 

shall constitute a violation of these Rates and 

Terms and shall render a transmitting entity 

ineligible for the rates and terms set forth 

herein. An Eligible Small Webcaster that 

elects to be governed by the rates and terms 

set forth herein shall make available to 

SoundExchange, within thirty (30) days after 

SoundExchange’s written request at any time 

during the three (3) years following a period 

during which it is to be treated as an Eligible 

Small Webcaster for purposes of these Rates 

and Terms, sufficient evidence to support its 

eligibility as an Eligible Small Webcaster 

and/or Microcaster during that period, 

including but not limited to an accounting of 

all Affiliate and Third Party Participation 

Revenue, and Aggregate Tuning Hours on a 

monthly basis. Any proof of eligibility 

provided hereunder shall be provided with a 

certification signed by the Eligible Small 

Webcaster if a natural person, or by an officer 

or partner of the Eligible Small Webcaster if 

the Eligible Small Webcaster is a corporation 

or partnership, stating, under penalty of 

perjury, that the information provided is 

accurate and the person signing is authorized 

to act on behalf of the Eligible Small 

Webcaster. 

(c) Default. An Eligible Small Webcaster 

shall comply with all the requirements of 

these Rates and Terms. If it fails to do so, 

SoundExchange may give written notice to 

the Eligible Small Webcaster that, unless the 

breach is remedied within thirty days from 

the date of notice and not repeated, the 

Eligible Small Webcaster’s authorization to 

make public performances and ephemeral 

reproductions under these Rates and Terms 

will be automatically terminated. Such 

termination renders any public performances 

and ephemeral reproductions as to which the 

breach relates actionable as acts of 

infringement under 17 U.S.C. 501 and fully 

subject to the remedies provided by 17 U.S.C. 

502–506. 

(d) Applicable Regulations. To the extent 

not inconsistent with the terms herein, use of 

sound recordings by Eligible Small 

Webcasters shall be governed by, and Eligible 

Small Webcasters shall comply with, 

applicable regulations, including 37 CFR Part 

380. Without limiting the foregoing, the 

provisions of applicable regulations for the 

retention of records and verification of 

statutory royalty payments (presently 37 CFR 

380.4(h) and 380.6) shall apply hereunder. 

Eligible Small Webcasters shall cooperate in 

good faith with any such verification, and the 

exercise by SoundExchange of any right with 

respect thereto shall not prejudice any other 

rights or remedies of SoundExchange or 

sound recording copyright owners. 

(e) Applicable Law and Venue. These Rates 

and Terms shall be governed by, and 

construed in accordance with, the laws of the 

District of Columbia (without giving effect to 

conflicts of law principles thereof). All 

actions or proceedings arising directly or 

indirectly from or in connection with these 

Rates and Terms shall be litigated only in the 

United States District Court for the District of 

Columbia located in Washington, DC. 

SoundExchange and Eligible Small 

Webcasters consent to the jurisdiction and 

venue of the foregoing court and consent that 

any process or notice of motion or other 

application to said court or a judge thereof 

may be served inside or outside the District 

of Columbia by registered mail, return receipt 

requested, directed to the person for which 

it is intended at its last known address (and 

service so made shall be deemed complete 

five (5) days after the same has been posted 

as aforesaid) or by personal service or in such 

other manner as may be permissible under 

the rules of that court. 

(f) Rights Cumulative. The remedies 

provided in these Rates and Terms and 

available under applicable law shall be 

cumulative and shall not preclude assertion 

by any party of any other rights or the 

seeking of any other remedies against another 

party hereto. These Rates and Terms shall not 

constitute a waiver of any violation of 

Section 112 or 114 or their implementing 

regulations (except to the extent such 

implementing regulations are inconsistent 

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with these Rates and Terms). No failure to 

exercise and no delay in exercising any right, 

power or privilege shall operate as a waiver 

of such right, power or privilege. Neither 

these Rates and Terms nor any such failure 

or delay shall give rise to any defense in the 

nature of laches or estoppel. No single or 

partial exercise of any right, power or 

privilege granted under these Rates and 

Terms or available under applicable law shall 

preclude any other or further exercise thereof 

or the exercise of any other right, power or 

privilege. No waiver by any party of full 

performance by another party in any one or 

more instances shall be a waiver of the right 

to require full and complete performance of 

these Rates and Terms and of obligations 

under applicable law thereafter. 

(g) Entire Agreement. These Rates and 

Terms represent the entire and complete 

agreement between SoundExchange and an 

Eligible Small Webcaster with respect to their 

subject matter and supersede all prior and 

contemporaneous agreements and 

undertakings of SoundExchange and an 

Eligible Small Webcaster with respect to the 

subject matter hereof. 

8. Definitions 

As used in these Rates and Terms, the 

following terms shall have the following 

meanings: 

(a) An ‘‘Affiliate’’ of a transmitting entity 

is a person or entity that directly, or 

indirectly through one or more 

intermediaries— 

(1) Has securities or other ownership 

interests representing more than 50 percent 

of such person’s or entity’s voting interests 

beneficially owned by— 

(A) Such transmitting entity; or 

(B) A person or entity beneficially owning 

securities or other ownership interests 

representing more than 50 percent of the 

voting interests of the transmitting entity; 

(2) Beneficially owns securities or other 

ownership interests representing more than 

50 percent of the voting interests of the 

transmitting entity; or 

(3) Otherwise Controls, is Controlled by, or 

is under common Control with the 

transmitting entity. 

(b) The term ‘‘Aggregate Tuning Hours’’ 

has the meaning given that term in 37 CFR 

§ 380.2(a), as published in the Final 

Determination. 

(c) A ‘‘Beneficial Owner’’ of a security or 

other ownership interest is any person or 

entity who, directly or indirectly, through 

any contract, arrangement, understanding, 

relationship, or otherwise, has or shares 

voting power with respect to such security or 

other ownership interest. 

(d) The term ‘‘Control’’ means the 

possession, direct or indirect, of the power to 

direct or cause the direction of the 

management and policies of a person or 

entity, whether through the ownership of 

voting securities, by contract or otherwise. 

(e) An ‘‘Eligible Small Webcaster’’ is a 

person or entity that (i) has obtained a 

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

and 114 and the implementing regulations 

therefor to make eligible nonsubscription 

transmissions over the Internet and related 

ephemeral recordings; (ii) complies with all 

provisions of Sections 112(e) and 114 and 

applicable regulations; (iii) is not a 

noncommercial webcaster as defined in 17 

U.S.C. 114(f)(5)(E)(i); and (iv) in any calendar 

year in which it is to be considered an 

Eligible Small Webcaster has, together with 

its Affiliates, annual Gross Revenues plus 

Third Party Participation Revenues and 

revenues from the operation of New 

Subscription Services of not more than 

$1,250,000. In determining qualification 

under this Section 8(e), a transmitting entity 

shall exclude— 

(1) Income of an Affiliate that is a natural 

person, other than income such natural 

person derives from another Affiliate of such 

natural person that is either a media or 

entertainment related business that provides 

audio or other entertainment programming, 

or a business that primarily operates an 

Internet or wireless service; and 

(2) Gross Revenues of any Affiliate that is 

not engaged in a media or entertainment 

related business that provides audio or other 

entertainment programming, and is not 

engaged in a business that primarily operates 

an Internet or wireless service, if the only 

reason such Affiliate is Affiliated with the 

transmitting entity is that (i) it is under 

common Control of the same natural person 

or (ii) both are beneficially owned by the 

same natural person. 

In the case of a person or entity that offers 

both eligible nonsubscription transmissions 

(as defined in 17 U.S.C. 114(j)(6)) and a New 

Subscription Service, these Rates and Terms 

apply only to the Eligible Small Webcaster’s 

eligible nonsubscription transmissions and 

not the New Subscription Service. 

(f) The term ‘‘Expenses’’— 

(1) Means all costs incurred (whether 

actually paid or not) by an Eligible Small 

Webcaster, except that capital costs shall be 

treated as Expenses allocable to a period only 

to the extent of charges for amortization or 

depreciation of such costs during such period 

as are properly allocated to such period in 

accordance with United States generally 

accepted accounting principles (‘‘GAAP’’); 

(2) Includes the fair market value of all 

goods, services, or other non-cash 

consideration (including real, personal, 

tangible, and intangible property) provided 

by an Eligible Small Webcaster to any third 

party in lieu of a cash payment and the fair 

market value of any goods or services 

purchased for or provided to an Eligible 

Small Webcaster by an Affiliate of such 

webcaster; and 

(3) Shall not include— 

(A) The imputed value of personal services 

rendered by up to 5 natural persons who are, 

directly or indirectly, owners of the Eligible 

Small Webcaster, and for which no 

compensation has been paid; 

(B) The imputed value of occupancy of 

residential property for which no Federal 

income tax deduction is claimed as a 

business expense; 

(C) Costs of purchasing phonorecords of 

sound recordings used in the Eligible Small 

Webcaster’s service; 

(D) Royalties paid for the public 

performance of sound recordings; or 

(E) The reasonable costs of collecting 

overdue accounts receivable, provided that 

the reasonable costs of collecting any single 

overdue account receivable may not exceed 

the actual account receivable. 

(g) The term ‘‘Gross Revenues’’—(1) Means 

all revenue of any kind earned by a person 

or entity, less— 

(A) Revenue from sales of phonorecords 

and digital phonorecord deliveries of sound 

recordings; 

(B) The person or entity’s actual costs of 

other products and services actually sold 

through a service that makes eligible 

nonsubscription transmissions, and related 

sales and use taxes imposed on such 

transactions, costs of shipping such products, 

allowance for bad debts, and credit card and 

similar fees paid to unrelated third parties; 

(C) Revenue from the operation of a New 

Subscription Service for which royalties are 

paid in accordance with provisions of 17 

U.S.C. 112 and 114; and 

(D) Revenue from the sale of assets in 

connection with the sale of all or 

substantially all of the assets of such person’s 

or entity’s business, or from the sale of 

capital assets; and 

(2) Includes— 

(A) All cash or cash equivalents; 

(B) The fair market value of goods, 

services, or other non-cash consideration 

(including real, personal, tangible, and 

intangible property); 

(C) In-kind and cash donations and other 

gifts (but not capital contributions made in 

exchange for an equity interest in the 

recipient); and 

(D) Amounts earned by such person or 

entity but paid to an Affiliate of such person 

or entity in lieu of payment to such person 

or entity. 

Gross revenues shall be calculated in 

accordance with U.S. Generally Accepted 

Accounting Principles (GAAP), except that a 

transmitting entity that computes Federal 

taxable income on the basis of the cash 

receipts and disbursements method of 

accounting for any taxable year may compute 

its gross receipts for any period included in 

such taxable year on the same basis. 

(h) A ‘‘Microcaster’’ is an Eligible Small 

Webcaster that, together with its Affiliates, in 

any calendar year in which it is to be 

considered a Microcaster, meets the 

following additional eligibility criteria: (i) 

Transmits sound recordings only by means of 

eligible nonsubscription transmissions (as 

defined in 17 U.S.C. 114(j)(6)); (ii) had 

annual Gross Revenues plus Third Party 

Participation Revenues during the prior year 

of not more than $5,000 and reasonably 

expects Gross Revenues plus Third Party 

Participation Revenues during the applicable 

year of not more than $5,000; (iii) has 

Expenses during the prior year of not more 

than $10,000 and reasonably expects 

Expenses during the applicable year of not 

more than $10,000; and (iv) during the prior 

year did not make eligible nonsubscription 

transmissions exceeding 18,067 Aggregate 

Tuning Hours, and during the applicable year 

reasonably does not expect to make eligible 

nonsubscription transmissions exceeding 

18,067 Aggregate Tuning Hours. 

(i) The term ‘‘New Subscription Service’’ 

has the meaning given that term in 17 U.S.C. 

114(j)(8). 

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Federal Register / Vol. 74, No. 40 / Tuesday, March 3, 2009 / Notices 9307 

(j) The ‘‘Third Party Participation 

Revenues’’ of a transmitting entity are 

revenues of any kind earned by a person or 

entity, other than the transmitting entity, 

including those: 

(1) That relate to the public performance of 

sound recordings and are subject to an 

economic arrangement in which the 

transmitting entity receives anything of 

value; or 

(2) That are earned by such person or 

entity from the sale of advertising of any kind 

in connection with the transmitting entity’s 

eligible nonsubscription transmissions. 

By way of example only, a transmitting 

entity’s Third Party Participation Revenues 

would include revenues earned by the 

transmitting entity’s proprietor, a marketing 

partner of the transmitting entity, or an 

aggregator through which the transmitting 

entity’s transmissions are available, by virtue 

of the transmitting entity’s transmissions. 

[FR Doc. E9–4439 Filed 3–2–09; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice. 

SUMMARY: NARA is giving public notice 

that the agency proposes to request 

extension of a currently approved 

information collection, Financial 

Disclosure Report, Standard Form 714, 

which is required as a condition of 

access to specifically designated 

classified information along with a 

favorably adjudicated personnel 

security background investigation or 

reinvestigation that results in the 

granting or updating of a security 

clearance. Additionally, NARA 

proposes to make changes to the 

Standard Form 714 and the instructions 

to the form. Specific proposed changes 

will be provided upon request to NARA 

at the addresses provided below. The 

public is invited to comment on the 

proposed information collection 

pursuant to the Paperwork Reduction 

Act of 1995. 

DATES: Written comments must be 

received on or before May 4, 2009 to be 

assured of consideration. 

ADDRESSES: Comments should be sent 

to: Paperwork Reduction Act Comments 

(NHP), Room 4400, National Archives 

and Records Administration, 8601 

Adelphi Rd., College Park, MD 20740– 

6001; or faxed to 301–713–7409; or 

electronically mailed to 

tamee.fechhelm@nara.gov. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the proposed information 

collection and supporting statement 

should be directed to Tamee Fechhelm 

at telephone number 301–837–1694, or 

fax number 301–713–7409. 

SUPPLEMENTARY INFORMATION: Pursuant 

to the Paperwork Reduction Act of 1995 

(Pub. L. 104–13), NARA invites the 

general public and other Federal 

agencies to comment on proposed 

information collections. The comments 

and suggestions should address one or 

more of the following points: (a) 

Whether the proposed information 

collection is necessary for the proper 

performance of the functions of NARA; 

(b) the accuracy of NARA’s estimate of 

the burden of the proposed information 

collection; (c) ways to enhance the 

quality, utility, and clarity of the 

information to be collected; (d) ways, 

including the use of information 

technology, to minimize the burden of 

the collection of information on all 

respondents; and (e) whether small 

businesses are affected by this 

collection. The comments that are 

submitted will be summarized and 

included in the NARA request for Office 

of Management and Budget (OMB) 

approval. All comments will become a 

matter of public record. In this notice, 

NARA is soliciting comments 

concerning the following information 

collection: 

Title: Financial Disclosure Report. 

OMB number: 3095–0058. 

Agency form number: Standard Form 

714. 

Type of review: Regular. 

Affected public: Business or other forprofit. 

Estimated number of respondents: 

25,897. 

Estimated time per response: 2 hours. 

Frequency of response: On occasion. 

Estimated total annual burden hours: 

51,794 hours. 

Abstract: Executive Order 12958, as 

amended, ‘‘Classified National Security 

Information’’ authorizes the Information 

Security Oversight Office to develop 

standard forms that promote the 

implementation of the Government’s 

security classification program. These 

forms promote consistency and 

uniformity in the protection of classified 

information. 

The Financial Disclosure Report 

contains information that is used to 

assist in making eligibility 

determinations for access to specifically 

designated classified information 

pursuant to Executive Order 12968, 

‘‘Access to Classified Information,’’ by 

appropriately trained adjudicative 

personnel. The data may later be used 

as part of a review process to evaluate 

continued eligibility for access to such 

specifically designated classified 

information or as evidence in legal 

proceedings. 

The Financial Disclosure Report helps 

law enforcement entities obtain 

pertinent information in the preliminary 

stages of potential espionage and 

counter terrorism cases. 

Dated: February 26, 2009. 

Martha Morphy, 

Assistant Archivist for Information Services. 

[FR Doc. E9–4502 Filed 3–2–09; 8:45 am] 

BILLING CODE 7515–01–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice. 

SUMMARY: NARA is giving public notice 

that the agency proposes to request 

extensions of two currently approved 

information collections. The first is a 

survey of Customer Satisfaction at the 

National Personnel Records Center 

(Military Personnel Records [MPR] 

facility) of the National Archives and 

Records Administration. The second is 

voluntary survey of museum visitors at 

each Presidential library. The 

information provides feedback about 

our visitors’ experiences at the libraries. 

The public is invited to comment on the 

proposed information collection 

pursuant to the Paperwork Reduction 

Act of 1995. 

DATES: Written comments must be 

received on or before May 4, 2009 to be 

assured of consideration. 

ADDRESSES: Comments should be sent 

to: Paperwork Reduction Act Comments 

(NHP), Room 4400, National Archives 

and Records Administration, 8601 

Adelphi Rd, College Park, MD 20740– 

6001; faxed to 301–713–7409; or 

electronically mailed to 

tamee.fechhelm@nara.gov. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the proposed information 

collection and supporting statement 

should be directed to Tamee Fechhelm 

at telephone number 301–837–1694; fax 

number 301–713–7409; or 

tamee.fechhelm@nara.gov. 

SUPPLEMENTARY INFORMATION: Pursuant 

to the Paperwork Reduction Act of 1995 

(Pub. L. 104–13), NARA invites the 

mstockstill on PROD1PC66 with NOTICES