34796 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Notices 

notice is to announce the Committee 

and workgroup meetings scheduled for 

September 1–2, 2009. 

DATES: The Shipyard and Longshore 

workgroups will meet on Tuesday, 

September 1, 2009, 8 a.m. to 4:30 p.m., 

and the Committee will meet on 

Wednesday, September 2, 2009, from 8 

a.m. to 4:30 p.m. 

ADDRESSES: The Committee and 

workgroups will meet at the Newport 

News Marriott Hotel, 740 Town Center 

Drive, Newport News, VA 23606 ((757) 

873–9299). Mail comments, views, or 

statements in response to this notice to 

Danielle Watson, Office of Maritime, 

OSHA, U.S. Department of Labor, Room 

N–3609, 200 Constitution Avenue, NW., 

Washington, DC 20210; phone (202) 

693–1870; fax (202) 693–1663. 

FOR FURTHER INFORMATION CONTACT: For 

general information about MACOSH 

and this meeting, contact: Amy 

Wangdahl, Acting Director, Office of 

Maritime, OSHA, U.S. Department of 

Labor, Room N–3609, 200 Constitution 

Avenue, NW., Washington, DC 20210; 

phone: (202) 693–2066. Individuals 

with disabilities wishing to attend the 

meeting should contact Danielle Watson 

at (202) 693–1870 no later than August 

18, 2009, to obtain appropriate 

accommodations. 

SUPPLEMENTARY INFORMATION: All 

MACOSH meetings are open to the 

public. All interested persons are 

invited to attend the MACOSH meeting 

at the time and location listed above. 

The MACOSH agenda will include: An 

OSHA activities update; a review of the 

minutes from the previous meeting; and 

reports from each workgroup. MACOSH 

may also discuss the following topics 

based on the workgroup reports: Surface 

preparation (29 CFR 1915 subpart C, 

Painting and Coatings); Safety and 

Health Injury Prevention Sheets (SHIPS) 

rigging guidance document; arc flash 

guidance; commercial fishing industry 

quick cards; injury and fatality data 

initiative; activities related to shipyard 

employment; scaffolding and falls (29 

CFR 1915 subpart E); welding guidance; 

break bulk cargo safety guidance; safety 

zone guidance; speed limits in marine 

terminals; and defective containers. 

Public Participation: Written data, 

views, or comments for consideration by 

MACOSH on the various agenda items 

listed above should be submitted to 

Danielle Watson at the address listed 

above. Submissions received by August 

18, 2009, will be provided to Committee 

members and will be included in the 

record of the meeting. Requests to make 

oral presentations to the Committee may 

be granted as time permits. 

Authority: This notice was prepared under 

the direction of Jordan Barab, Acting 

Assistant Secretary of Labor for Occupational 

Safety and Health, U.S. Department of Labor, 

200 Constitution Avenue, NW., Washington, 

DC 20210, pursuant to Sections 6(b)(1) and 

7(b) of the Occupational Safety and Health 

Act of 1970 (29 U.S.C. 655, 656), the Federal 

Advisory Committee Act (5 U.S.C. App. 2), 

Secretary of Labor’s Order 5–2007 (72 FR 

31160), and 29 CFR part 1912. 

Signed at Washington, DC, this 14th day of 

July, 2009. 

Jordan Barab, 

Acting Assistant Secretary of Labor for 

Occupational Safety and Health. 

[FR Doc. E9–17022 Filed 7–16–09; 8:45 am] 

BILLING CODE 4510–26–P 

LIBRARY OF CONGRESS 

Copyright Office 

Notification of Agreements Under the 

Webcaster Settlement Act of 2009 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of agreement. 

SUMMARY: The Copyright Office is 

publishing an agreement which sets 

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 agreement 

published herein rather than the rates 

and terms of any determination by the 

Copyright Royalty Judges. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ruwe, Attorney Advisor, or 

Tanya M. Sandros, Deputy General 

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

Box 70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. See the final paragraph 

of the SUPPLEMENTARY 

INFORMATION for information on 

where to direct questions regarding the 

rates and terms set forth in the 

agreement. 

SUPPLEMENTARY INFORMATION: On June 

30, 2009, President Obama signed into 

law the Webcaster Settlement Act of 

2009 (‘‘WSA’’), Pub. L. No. 111–36, 

which amends section 114 of the 

Copyright Act, title 17 of the United 

States Code, as it relates to webcasters. 

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

WSA allows SoundExchange, the 

Receiving Agent designated by the 

Librarian of Congress in his June 20, 

2002, order for collecting royalty 

payments made by eligible 

nonsubscription transmission services 

under the section 112 and section 114 

statutory licenses, see 67 FR 45239 (July 

8, 2002), to enter into agreements on 

behalf of all copyright owners and 

performers to set rates, terms and 

conditions for webcasters operating 

under the section 112 and section 114 

statutory licenses for a period of not 

more than 11 years beginning on 

January 1, 2005. The authority to enter 

into such settlement agreements shall 

expire at 11:59 p.m. Eastern time on the 

30th day after the enactment of the 

WSA. 

Unless otherwise agreed to by the 

parties, the rates and terms set forth in 

the agreement apply only to the time 

periods specified in the agreement and 

have no precedential value in any 

proceeding concerned with the setting 

of rates and terms for the public 

performance or reproduction in 

ephemeral phonorecords. To make this 

point clear, Congress included language 

expressly addressing the precedential 

value of agreements made under the 

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

states that: ‘‘Neither subparagraph (A) 

nor any provisions of any agreement 

entered into pursuant to subparagraph 

(A), including any rate structure, fees, 

terms, conditions, or notice and 

recordkeeping requirements set forth 

therein, shall be admissible as evidence 

or otherwise taken into account in any 

administrative, judicial, or other 

government proceeding involving the 

setting or adjustment of the royalties 

payable for the public performance or 

reproduction in ephemeral recordings or 

copies of sound recordings, the 

determination of terms or conditions 

related thereto, or the establishment of 

notice and recordkeeping requirements 

by the Copyright Royalty Judges under 

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

the intent of Congress that any royalty 

rates, rate structure, definitions, terms, 

conditions, or notice and recordkeeping 

requirements, included in such 

agreements shall be considered as a 

compromise motivated by the unique 

business, economic and political 

circumstances of webcasters, copyright 

owners, and performers rather than as 

matters that would have been negotiated 

in the marketplace between a willing 

buyer and a willing seller, or otherwise 

meet the objectives set forth in section 

801(b). This subparagraph shall not 

apply to the extent that the receiving 

agent and a webcaster that are party to 

an agreement entered into pursuant to 

subparagraph (A) expressly authorize 

the submission of the agreement in a 

proceeding under this subsection.’’ 17 

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

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Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Notices 34797 

On July 7, 2009, SoundExchange 

notified the Copyright Office that it had 

negotiated an agreement for the 

reproduction and performance of sound 

recordings by ‘‘Commercial Webcasters 

Including Small Pureplay Webcasters’’ 

under the section 112 and section 114 

statutory licenses. Therefore, in 

accordance with the requirement set 

forth in amended section 114(f)(5)(B), 

the Copyright Office is publishing the 

submitted agreement as Appendix A, 

thereby making the rates and terms in 

the agreement available to any 

webcasters meeting the respective 

eligibility conditions of the agreement 

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: July 13, 2009. 

Marybeth Peters, 

Register of Copyrights. 

Note: The following Appendix Will 

Not Be Codified in the Code of Federal 

Regulations. 

APPENDIX A – AGREED RATES AND 

TERMS FOR COMMERCIAL 

WEBCASTERS INCLUDING SMALL 

PUREPLAY WEBCASTERS ARTICLE 1 

– DEFINITIONS 

1.1 General. In general, words used in 

the rates and terms set forth herein (the 

‘‘Rates and Terms’’) and defined in 17 

U.S.C. § 112(e) or 114 or 37 C.F.R. 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) ‘‘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) ‘‘Bundled Service’’ means any 

package of services or products 

provided to end users by a Commercial 

Webcaster, Affiliate, or any third party 

with which a Commercial Webcaster 

has a Third Party Business Arrangement 

that meets each of the following 

requirements: 

(1) the package of products or services 

includes a digital music service through 

which Eligible Transmissions are made 

and at least one other product or service 

that does not consist only of the offering 

of Eligible Transmissions; and 

(2) the package of products or services 

that constitute any particular package is 

only offered to end users for a fee 

(whether one–time, recurring or 

otherwise) that does not differentiate 

among the various components of the 

package. The fact that the package of 

products or services, or any component 

part(s) thereof, is offered to end users for 

a limited duration without a fee (i.e., on 

a promotional basis) shall not disqualify 

the package from treatment as a 

Bundled Service. 

(c) ‘‘Commercial Webcaster’’ shall 

mean a webcaster as defined in 17 

U.S.C. § 114(f)(5)(E)(iii) that (i) has 

obtained a compulsory license under 17 

U.S.C. § § 112(e) and 114 and the 

implementing regulations therefor to 

make Eligible Transmissions and related 

ephemeral recordings; (ii) complies with 

all 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). 

(d) ‘‘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) ‘‘Eligible Transmission’’ shall 

mean an eligible nonsubscription 

transmission, or a transmission through 

a new subscription service, made by a 

Commercial Webcaster over the internet 

that is subject to the payment of 

royalties under 37 C.F.R. Part 380. 

(f) ‘‘Expenses’’ – 

(1) means all costs incurred (whether 

actually paid or not) by a Small 

Pureplay 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 U.S. 

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 a Small Pureplay 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 a Small Pureplay 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 Small Pureplay 

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 Small 

Pureplay 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) ‘‘Gross Revenues’’ means all 

revenue of any kind earned by the 

Commercial Webcaster or its Affiliates 

from all its operations, in accordance 

with U.S. Generally Accepted 

Accounting Principles, and 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. 

For the avoidance of doubt, Gross 

Revenues includes revenue from 

activities other than making Eligible 

Transmissions, including revenue from 

transmissions of sound recordings 

licensed directly from the relevant 

copyright owners. Commercial 

Webcasters with substantial revenue 

from activities other than making 

Eligible Transmissions under the 

statutory licenses in Sections 112(e) and 

114 may wish not to elect to be subject 

to these Rates and Terms. 

(h) ‘‘Small Pureplay Webcaster’’ shall 

mean a Commercial Webcaster that (a) 

together with its Affiliates, has not had 

annual Gross Revenues of more than 

$1,250,000 from its (or their) worldwide 

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activities, in any two previous calendar 

years, and (b) in any calendar year in 

which it is to be considered a Small 

Pureplay Webcaster reasonably expects 

to have, together with its Affiliates, (i) 

annual Gross Revenues of not more than 

$1,250,000 from its (or their) worldwide 

activities; and (ii) average monthly 

aggregate tuning hours for all 

programming transmitted within the 

United States, less the actual running 

time of any sound recording licensed 

directly from the relevant copyright 

owners, that is less than the relevant 

threshold from the following table: 

YEAR MAXIMUM AGGREGATE TUNING HOURS

2006–2008 7 million ATH 

2009 8 million ATH 

2010 8.5 million ATH 

2011 9 million ATH 

2012–2014 10 million ATH 

Small Pureplay Webcaster status is 

available in 2006–2014 only (not 2015). 

(i) ‘‘SoundExchange’’ shall mean 

SoundExchange, Inc. and shall include 

its successors and assigns. 

(j) ‘‘Subscription Service’’ means a 

service providing Eligible 

Transmissions that are subscription 

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

§ 114(j)(14)). 

(k) ‘‘Syndicated Service’’ means a 

service providing Eligible 

Transmissions selected or controlled, or 

made using ephemeral recordings 

controlled, by the relevant Commercial 

Webcaster but presented in such a 

manner that (i) the end user can receive 

Eligible Transmissions without visiting 

a page, interface, display, application, 

player, software or other electronic 

property predominantly associated with 

the service, or (ii) the end user can 

receive Eligible Transmissions through a 

website, application, player, software or 

other electronic property of any kind 

that is owned, controlled or branded by 

a third party, in whole or in part, 

directly or indirectly pursuant to a 

Third Party Business Arrangement. 

(l) ‘‘Third Party Business 

Arrangement’’ means any arrangement 

with a third party where the third party 

(or another party on behalf of such third 

party) provides monies or other 

consideration recognizable as revenue 

under GAAP to a Commercial Webcaster 

or an Affiliate. For the avoidance of 

doubt, the provision of a ‘‘white label’’ 

service would constitute a Third Party 

Business Agreement. 

ARTICLE 2 – AGREEMENT 

PURSUANT TO WEBCASTER 

SETTLEMENT ACT OF 2009 

2.1 Availability of Rates and Terms. 

Pursuant to the Webcaster Settlement 

Act of 2009, and subject to the 

provisions set forth below, Commercial 

Webcasters may elect to be subject to 

the rates and terms set forth herein (the 

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

with respect to such Commercial 

Webcasters’ Eligible Transmissions and 

related ephemeral recordings, for any 

calendar year that it qualifies as a 

Commercial Webcaster during 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 

Commercial Webcaster and make a 

timely election pursuant to Section 2.2 

must comply with otherwise applicable 

rates and terms. 

2.2 Election Process in General. To 

elect to be subject to these Rates and 

Terms, in lieu of any royalty rates and 

terms that otherwise might apply under 

17 U.S.C. § § 112(e) and 114, for any one 

or more calendar years that it qualifies 

as a Commercial Webcaster during the 

period beginning on January 1, 2006, 

and ending on December 31, 2015, a 

Commercial Webcaster shall submit to 

SoundExchange a completed and signed 

election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later 

than January 31 of the applicable year, 

except that election forms for 2006– 

2009 shall be due by no later than 30 

days after publication of these Rates and 

Terms in the Federal Register. On any 

such election form, the Commercial 

Webcaster must, among other things, 

certify that it qualifies as a Commercial 

Webcaster for the relevant year. Even if 

an entity has once elected to be treated 

as a Commercial Webcaster, it must 

make a separate, timely election in each 

subsequent year in which it wishes (and 

is eligible) to be treated as such. 

Notwithstanding anything else in these 

Rates and Terms, a person or entity 

otherwise qualifying as a Commercial 

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 Section 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 

Fed. Reg. 24084 (May 1, 2007) (the 

‘‘Final Determination’’) or any 

proceeding before the Copyright Royalty 

Judges to determine royalty rates and 

terms under Section 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 Fed. Reg. 

318–20 (Jan. 5, 2009)) shall not be 

treated as a Commercial Webcaster or 

have the right to claim the benefit of 

these Rates and Terms, unless it 

withdraws from such proceeding no 

later than five business days after 

submitting to SoundExchange a 

completed and signed election form as 

contemplated by this Section 2.2. 

2.3 Election of Small Pureplay 

Webcaster Status. A Commercial 

Webcaster that elects to be subject to 

these Rates and Terms and qualifies as 

a Small Pureplay Webcaster may elect to 

be treated as a Small Pureplay 

Webcaster for any one or more calendar 

years that it so qualifies during the 

period 2006–2014. To do so, the 

Commercial Webcaster shall submit to 

SoundExchange a completed and signed 

election form (available on the 

SoundExchange Web site at http:// 

www.soundexchange.com) by no later 

than January 31 of the applicable year, 

except that election forms for 2006– 

2009 shall be due by no later than 30 

days after publication of these Rates and 

Terms in the Federal Register. On any 

such election form, the Commercial 

Webcaster must, among other things, 

certify that it qualifies as a Small 

Pureplay Webcaster for the relevant year 

and provide Gross Revenues and 

aggregate tuning hours information 

relevant to determining eligibility. Even 

if an Eligible Small Webcaster has once 

elected to be treated as a Small Pureplay 

Webcaster, it must make a separate, 

timely election in each subsequent year 

in which it wishes (and is eligible) to be 

treated as such. For the avoidance of 

doubt, if a Commercial Webcaster that 

has once made an election to be subject 

to these Rates and Terms as a Small 

Pureplay Webcaster wishes to not make 

such an election in subsequent years, 

and is eligible to be treated as an 

Eligible Small Webcaster under the 

agreement entered into by 

SoundExchange under the Webcaster 

Settlement Act and published in the 

Federal Register at 74 Fed. Reg. 9302 

(March 3, 2009), the Commercial 

Webcaster may elect to be treated as an 

Eligible Small Webcaster under such 

agreement for such subsequent years. ≤ 

2.4Representation of Compliance and 

Non–waiver. By electing to operate 

pursuant to these Rates and Terms, an 

entity represents and warrants that it 

qualifies as a Commercial Webcaster, 

and if applicable, as a Small Pureplay 

Webcaster. By accepting an election by 

a transmitting entity or payments or 

reporting made pursuant to these Rates 

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Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Notices 34799 

and Terms, SoundExchange does not 

acknowledge that the transmitting entity 

qualifies as a Commercial Webcaster, 

Small Pureplay Webcaster 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 applicable 

requirements of the statutory licenses 

under Sections 112(e) and 114 of the 

Copyright Act. SoundExchange is not in 

a position to, and does not, make 

determinations as to whether each of the 

many services that rely on the statutory 

licenses is eligible for statutory 

licensing or any particular royalty 

payment classification, nor does it 

continuously verify that such services 

are in full compliance with all 

applicable requirements. Accordingly, a 

Commercial Webcaster agrees that 

SoundExchange’s acceptance of its 

election, payment or reporting does not 

give or imply any acknowledgment that 

it is in compliance with the 

requirements of the statutory licenses 

(including these Rates and Terms) and 

shall not be used as evidence that it is 

in compliance with the requirements of 

the statutory licenses (including these 

Rates and Terms). SoundExchange and 

copyright owners reserve all their rights 

to take enforcement action against a 

transmitting entity that is not in 

compliance with all applicable 

requirements. 

ARTICLE 3 – SCOPE 

3.1In General. In consideration for the 

payment of royalties pursuant to Article 

4 and such other consideration specified 

herein, Commercial Webcasters that 

have made a timely election to be 

subject to these Rates and Terms as 

provided in Section 2.2 are entitled to 

publicly perform sound recordings 

within the scope of the statutory license 

provided by Section 114 by means of 

Eligible Transmissions, and to make 

related ephemeral recordings for use 

solely for purposes of such Eligible 

Transmissions within the scope of 

Section 112(e), in accordance with and 

subject to the limitations set forth in 

these Rates and Terms and in strict 

conformity with the provisions of 17 

U.S.C. § § 112(e) and 114 and their 

implementing regulations (except as 

otherwise specifically provided herein), 

in lieu of other rates and terms from 

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

§ 112(e) and 114, for each calendar year 

during the period beginning on January 

1, 2006, and ending on December 31, 

2015, during which they have made 

such an election. 

3.2Applicability to All Eligible 

Services Operated by or for a 

Commercial Webcaster. If a Commercial 

Webcaster has made a timely election to 

be subject to these Rates and Terms as 

provided in Section 2.2, these Rates and 

Terms shall apply to all Eligible 

Transmissions made by or for the 

Commercial Webcaster that qualify as a 

Performance under 37 C.F.R. § 380.2(i), 

and related ephemeral recordings. 

3.3No Implied Rights. These Rates 

and Terms extend only to electing 

Commercial Webcasters and grant no 

rights, including by implication or 

estoppel, to any other person or except 

as specifically provided herein. Without 

limiting the generality of the foregoing, 

these Rates and Terms do not grant (i) 

any copyright ownership interest in any 

sound recording; (ii) any trademark or 

trade dress rights; (iii) any rights outside 

the United States (as defined in 17 

U.S.C. § 101); (iv) any rights of publicity 

or rights to any endorsement by 

SoundExchange or any other person; or 

(v) any rights with respect to 

performances or reproductions outside 

the scope of these Rates and Terms or 

the statutory licenses under 17 U.S.C. 

§ § 112(e) and 114. 

ARTICLE 4 – ROYALTIES 

4.1 Minimum Fee. Each Commercial 

Webcaster will pay an annual, 

nonrefundable minimum fee of $25,000. 

Upon payment of the minimum fee, the 

Commercial Webcaster will receive a 

credit in the amount of the minimum 

fee paid against any royalties payable by 

it under these Rates and Terms for the 

same calendar year. 

4.2 Royalty Rates in General. 

Royalties for Eligible Transmissions 

made pursuant to 17 U.S.C. § 114, and 

the making of related ephemeral 

recordings pursuant to 17 U.S.C. 

§ 112(e), shall be payable as provided in 

this Section 4.2, except as provided in 

Section 4.3. 

(a) A Commercial Webcaster that 

makes Eligible Transmissions through a 

Bundled Service, Syndicated Service or 

Subscription Service, shall pay royalties 

for such Eligible Transmissions 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 

(b) To the extent a Commercial 

Webcaster is not required to pay 

royalties under Section 4.2(a), it shall 

pay royalties equal to the greater of the 

following (on an annual basis, as 

provided in Section 4.5): 

(i) A usage–based royalty computed 

on a per–performance basis, or in the 

years where specified on an aggregate 

tuning hour basis, as follows: 

YEAR PER PERFORMANCE

PER AGGREGATE TUNING

HOUR

2006 $0.00080 1.2¢ 

2007 $0.00084 1.26¢ 

2008 $0.00088 1.32¢ 

2009 $0.00093 

2010 $0.00097 

2011 $0.00102 

2012 $0.00110 

2013 $0.00120 

2014 $0.00130 

2015 $0.00140 

(ii) 25% of Gross Revenues from 

activities in the United States (as 

defined in 17 U.S.C. § 101). 

4.3 Royalty Rates for Small Pureplay 

Webcasters Through 2014. 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), during the period 2006– 

2014, electing Small Pureplay 

Webcasters shall pay royalties equal to 

the greater of the following (on an 

annual basis, as provided in Section 

4.5): 

(i) A percentage of Gross Revenues, as 

follows: 

YEAR PERCENTAGE

2006–2008 10% of the first $250,000 in Gross Revenues from activities in the United States (as defined in 17 U.S.C. § 101), and 12% of any Gross Revenues in excess of $250,000 from 

activities in the United States, during the applicable year 

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34800 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Notices 

YEAR PERCENTAGE

2009–2014 12% of the first $250,000 in Gross Revenues from activities in the United States, and 14% 

of any Gross Revenues in excess of $250,000 from activities in the United States, during 

the applicable year 

(ii) 7% of Expenses during the 

applicable year 

Provided, however, that Eligible 

Transmissions shall be subject to the 

royalty rates provided in Section 4.2(a) 

if they are (a) above the aggregate tuning 

hour thresholds in Section 1.2(h) or (b) 

made through a Bundled Service, 

Syndicated Service or Subscription 

Service; 

And Further Provided, however, that 

if a Commercial Webcaster has made 

payments for a calendar year based on 

the expectation that it will qualify as a 

Small Pureplay Webcaster, but it 

exceeds the $1.25 Million Gross 

Revenues cap for the year, it shall pay 

for that entire year and the following 

year (if it again exceeds $1.25 Million 

Gross Revenues cap for that following 

year) at a rate that is the greater of (x) 

a royalty determined as provided above 

in this Section 4.3 and (y) 25% of Gross 

Revenues from activities in the United 

States (as defined in 17 U.S.C. § 101), 

except that if the year in which the 

Commercial Webcaster exceeds the 

$1.25 Million Gross Revenues cap is 

2014, it shall in 2015 pay pursuant to 

Section 4.2. For the avoidance of doubt, 

the rate set forth in this paragraph shall 

be available to a Commercial Webcaster 

for no more than two years in total 

(whether those years are consecutive or 

not), and if a Commercial Webcaster has 

exceeded the $1.25 Million Gross 

Revenues cap for two previous years, it 

shall thereafter be ineligible for Small 

Pureplay Webcaster status and must 

make payments pursuant to Section 4.2. 

4.4 Ephemeral Royalty. The royalty 

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

ephemeral reproductions made by a 

Commercial Webcaster and covered 

hereby is deemed to be included within 

the royalty payments set forth above. 

SoundExchange 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. 

4.5 True–Up for Greater of Royalties. 

In making monthly payments, a 

Commercial Webcaster subject to 

Section 4.2(a) or 4.3 shall, at the time a 

payment is due, calculate its liability for 

the year through the end of the 

applicable month under all relevant 

subparts of the royalty calculation, and 

pay the applicable royalty for the year 

through the end of the applicable 

month, less any amounts previously 

paid for such year. 

4.6 True–Up for Certain Corporate 

Transactions. If a transmitting entity 

that has at any time elected to be treated 

as a Small Pureplay Webcaster under 

these Rates and Terms, and has not 

ceased to qualify as such through 

growth in its business and thereafter 

paid full royalties under Section 4.2 for 

a period of at least twelve (12) full 

months, 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 a Small Pureplay 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 either – 

(i) the difference between (a) the 

payment the transmitting entity would 

have been required to make under 

Section 4.2 for each year in which it 

elected to be treated as a Small Pureplay 

Webcaster under these Rates and Terms, 

from January 1, 2006 through the date 

of such transaction, or if it elected to be 

treated as a Small Pureplay Webcaster 

under these Rates and Terms for more 

than four years between January 1, 2006 

and the date of such transaction, for the 

most recent four such years, and (b) the 

royalty payments it made under these 

Rates and Terms for such years; or 

(ii) 30% of all value inuring in 

connection with such transaction to the 

transmitting entity and its Affiliates, 

shareholders, management personnel 

and other persons and entities 

associated with the transmitting entity 

receiving value in consideration for 

such transaction, including money, and 

the fair market value of securities and 

other consideration, provided for stock 

in the transmitting entity or assets of the 

transmitting entity, the value of 

consideration provided in connection 

with any merger, and compensation that 

becomes payable to management 

personnel of the transmitting entity and 

their family members in connection 

with such transaction. 

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. 

4.7 Payment. Payments of all amounts 

specified in these Rates and Terms shall 

be made to SoundExchange. Minimum 

fees shall be paid by January 31 of each 

year, except that Small Pureplay 

Webcasters may elect to make their 

minimum payments in four equal 

quarterly installments, which shall be 

due on January 31, April 14, July 15 and 

October 15. 

4.8 Monthly Obligations. Commercial 

Webcasters must make monthly 

payments once its royalty obligation 

exceeds the minimum fee it has paid, 

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. 

4.9 Past Periods. Notwithstanding 

anything else in this Agreement, to the 

extent that a Commercial 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 the last 

day of the month in which these Rates 

and Terms are published in the Federal 

Register, 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 60 

days after publication of these Rates and 

Terms in the Federal Register, 

including late fees as provided in 

Section 4.10 from the original due date. 

4.10 Late Fees. A Commercial 

Webcaster shall pay a late fee for each 

instance in which any payment, any 

statement of account or any report of 

use is not received by SoundExchange 

in compliance with these Rates and 

Terms and applicable regulations by the 

due date. The amount of the late fee 

shall be 1.5% of 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. 

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Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Notices 34801 

ARTICLE 5 – REPORTING 

5.1 Census Reporting. Commercial 

Webcasters shall submit reports of use 

on a per–performance basis in full 

compliance with the regulations set 

forth in 37 CFR Part 370 and any 

subsequent amendments or 

modifications thereto or replacement 

regulations, except that the following 

provisions shall apply notwithstanding 

the provisions of applicable regulations 

from time to time in effect: 

(a) Commercial Webcasters shall 

submit reports of use to SoundExchange 

on a monthly basis. 

(b) As provided in Section 4.8, 

Commercial Webcasters shall submit 

reports of use by no later than the 45th 

day following the last day of the month 

to which they pertain. 

(c) Commercial Webcasters 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). 

(d) Commercial Webcasters shall 

transmit each report of use in a file the 

name of which includes the name of the 

Commercial Webcaster, exactly as it 

appears on its notice of use. 

(e) Commercial Webcasters shall 

submit reports of use with headers, as 

presently described in 37 C.F.R. 

§ 370.3(d)(7) or as may be provided by 

successor regulations. 

(f) Commercial Webcasters shall 

submit a separate statement of account 

corresponding to each of their reports of 

use, transmitted in a file the name of 

which includes the name of the 

Commercial Webcaster, exactly as it 

appears on its notice of use. 

5.2 Server Logs. To the extent not 

already required by the current 

regulations set forth in 37 C.F.R. Part 

380, Commercial Webcasters shall retain 

for a period of at least four years server 

logs reasonably sufficient to substantiate 

all information relevant to eligibility, 

rate calculation and reporting 

hereunder. To the extent that a third– 

party web hosting or service provider 

maintains equipment or software for a 

Commercial Webcaster and/or such 

third party creates, maintains, or can 

reasonably create such server logs, the 

Commercial 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 Commercial 

Webcaster. SoundExchange shall have 

access to all such server logs pursuant 

to applicable regulations for the 

verification of statutory royalty 

payments (presently 37 C.F.R. § 380.6). 

ARTICLE 6 – ADDITIONAL 

PROVISIONS 

6.1 Applicable Regulations. To the 

extent not inconsistent with the terms 

herein, use of sound recordings by 

Commercial Webcasters shall be 

governed by, and Commercial 

Webcasters shall comply with, 

applicable regulations, including 37 

C.F.R. Parts 370 and 380. Without 

limiting the foregoing, the provisions of 

applicable regulations for the retention 

of records and verification of statutory 

royalty payments (presently 37 C.F.R. 

§ § 380.4(h) and 380.6) shall apply 

hereunder. Commercial Webcasters 

shall cooperate in good faith with any 

such verification, and the exercise by 

SoundExchange of any right with 

respect thereto shall not prejudice any 

other rights or remedies of 

SoundExchange or sound recording 

copyright owners. 

6.2 Participation in Proceedings. A 

Commercial Webcaster that elects to be 

subject to these Rates and Terms agrees 

that it has elected to do so in lieu of any 

different statutory rates and terms that 

may otherwise apply 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 

Commercial Webcaster has elected to be 

subject to these Rates and Terms, it shall 

not at any time directly or indirectly 

participate as a party, intervenor, 

amicus curiae or otherwise, or in any 

manner give evidence or otherwise 

support or assist, 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, unless subpoenaed on 

petition of a third party (without any 

action by a Commercial Webcaster to 

encourage or suggest such a subpoena or 

petition) and ordered to testify or 

provide documents in such proceeding. 

6.3 Use of Agreement in Future 

Proceedings. Consistent with 17 U.S.C. 

§ 114(f)(5)(C), Commercial Webcasters 

and SoundExchange agree that neither 

the Webcaster Settlement Act nor any 

provisions of these Rates and Terms 

shall be admissible as evidence or 

otherwise taken into account in any 

administrative, judicial, or other 

government proceeding involving the 

setting or adjustment of the royalties 

payable for the public performance or 

reproduction in ephemeral 

phonorecords or copies of sound 

recordings, the determination of terms 

or conditions related thereto, or the 

establishment of notice or 

recordkeeping requirements by the 

Copyright Royalty Judges. These Rates 

and Terms shall be considered as a 

compromise motivated by the unique 

business, economic and political 

circumstances of Commercial 

Webcasters, copyright owners and 

performers rather than as matters that 

would have been negotiated in the 

marketplace between a willing buyer 

and a willing seller. No person or entity 

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

these Rates and Terms in any such 

proceeding. 

6.4 Effect of Direct Licenses. Any 

copyright owner may enter into a 

voluntary agreement with any 

Commercial Webcaster setting 

alternative rates and terms governing 

the Commercial Webcasters’ 

transmission of copyrighted works 

owned by the copyright owner, and 

such voluntary agreement may be given 

effect in lieu of the Rates and Terms set 

forth herein. 

6.5 Default. A Commercial 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 Commercial Webcaster 

that, unless the breach is remedied 

within 30 days from the date of notice, 

the Commercial Webcaster’s 

authorization to make public 

performances and ephemeral 

reproductions under these Rates and 

Terms is terminated by SoundExchange. 

No such cure period shall apply before 

termination in case of material 

noncompliance on a recurring basis. 

Any transmission made by a 

Commercial Webcaster in violation of 

these Rates and Terms or Section 112(e) 

or 114 or their implementing regulations 

(except to the extent such implementing 

regulations are inconsistent with these 

Rates and Terms), outside the scope of 

these Rates and Terms, or 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. 

ARTICLE 7 – MISCELLANEOUS 

7.1 Applicable Law and Venue. These 

Rates and Terms shall be governed by, 

and construed in accordance with, the 

laws of the District of Columbia 

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34802 Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / Notices 

(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, D.C. SoundExchange and 

Commercial 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. 

7.2 Rights Cumulative. The remedies 

provided in these Rates and Terms and 

available under applicable law shall be 

cumulative and shall not preclude 

assertion by any party of any other 

rights or the seeking of any other 

remedies against another party hereto. 

These Rates and Terms shall not 

constitute a waiver of any violation of 

Section 112 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. 

7.3 Entire Agreement. These Rates 

and Terms represent the entire and 

complete agreement between 

SoundExchange and a Commercial 

Webcaster with respect to the subject 

matter hereof and supersede all prior 

and contemporaneous agreements and 

undertakings of SoundExchange and a 

Commercial Webcaster with respect to 

the subject matter hereof. 

[FR Doc. E9–17092 Filed 7–16–09; 8:45 am] 

BILLING CODE 1410–30–S 

MISSISSIPPI RIVER COMMISSION 

Sunshine Act Meetings 

AGENCY HOLDING THE MEETINGS: 

Mississippi River Commission 

TIME AND DATE: 9 a.m., August 14, 2009. 

PLACE: On board MISSISSIPPI V at City 

Front, St. Louis, MO. 

STATUS: Open to the public. 

MATTERS TO BE CONSIDERED: (1) 

Summary report by President of the 

Commission on national and regional 

issues affecting the U.S. Army Corps of 

Engineers and Commission programs 

and projects on the Mississippi River 

and its tributaries; (2) District 

Commander’s overview of current 

project issues within the St. Louis 

District; and (3) Presentations by local 

organizations and members of the 

public giving views or comments on any 

issue affecting the programs or projects 

of the Commission and the Corps of 

Engineers. 

TIME AND DATE: 9 a.m., August 17, 2009. 

PLACE: On board MISSISSIPPI V at River 

Park, Tiptonville, TN. 

STATUS: Open to the public. 

MATTERS TO BE CONSIDERED: (1) 

Summary report by President of the 

Commission on national and regional 

issues affecting the U.S. Army Corps of 

Engineers and Commission programs 

and projects on the Mississippi River 

and its tributaries; (2) District 

Commander’s overview of current 

project issues within the Memphis 

District; and (3) Presentations by local 

organizations and members of the 

public giving views or comments on any 

issue affecting the programs or projects 

of the Commission and the Corps of 

Engineers. 

TIME AND DATE: 9 a.m., August 18, 2009. 

PLACE: On board MISSISSIPPI V at Mud 

Island, Memphis, TN. 

STATUS: Open to the public. 

MATTERS TO BE CONSIDERED: (1) 

Summary report by President of the 

Commission on national and regional 

issues affecting the U.S. Army Corps of 

Engineers and Commission programs 

and projects on the Mississippi River 

and its tributaries; (2) District 

Commander’s overview of current 

project issues within the Memphis 

District; and (3) Presentations by local 

organizations and members of the 

public giving views or comments on any 

issue affecting the programs or projects 

of the Commission and the Corps of 

Engineers. 

TIME AND DATE: 9 a.m., August 19, 2009. 

PLACE: On board MISSISSIPPI V at City 

Front, Greenville, MS. 

STATUS: Open to the public. 

MATTERS TO BE CONSIDERED: (1) 

Summary report by President of the 

Commission on national and regional 

issues affecting the U.S. Army Corps of 

Engineers and Commission programs 

and projects on the Mississippi River 

and its tributaries; (2) District 

Commander’s overview of current 

project issues within the Vicksburg 

District, and (3) Presentations by local 

organizations and members of the 

public giving views or comments on any 

issue affecting the programs or projects 

of the Commission and the Corps of 

Engineers. 

TIME AND DATE: 9 a.m., August 21, 2009. 

PLACE: On board MISSISSIPPI V at Port 

Commission Dock, Morgan City, LA. 

STATUS: Open to the public. 

MATTERS TO BE CONSIDERED: (1) 

Summary report by President of the 

Commission on national and regional 

issues affecting the U.S. Army Corps of 

Engineers and Commission programs 

and projects on the Mississippi River 

and its tributaries; (2) District 

Commander’s overview of current 

project issues within the New Orleans 

District; and (3) Presentations by local 

organizations and members of the 

public giving views or comments on any 

issue affecting the programs or projects 

of the Commission and the Corps of 

Engineers. 

CONTACT PERSON FOR MORE INFORMATION: 

Mr. Stephen Gambrell, telephone 601– 

634–5766. 

George T. Shepard, 

Colonel, EN, Secretary, Mississippi River 

Commission. 

[FR Doc. E9–17157 Filed 7–15–09; 11:15 am] 

BILLING CODE 3720–58–P 

NATIONAL SCIENCE FOUNDATION 

Proposal Review Panel for Materials 

Research; Notice of Meeting 

In accordance with the Federal 

Advisory Committee Act (Pub. L. 92– 

463 as amended), the National Science 

Foundation announces the following 

meeting: 

Name: Site visit review of the Materials 

Research Science and Engineering Center 

(MRSEC) at Cornell University by NSF 

Division of Materials Research (DMR) #1203. 

Dates and Times: Sunday, August 23, 

2009; 6 p.m.–9 p.m., Monday, August 24, 

2009; 7:45 a.m.–9 p.m., Tuesday, Aug 25, 

2009; 8 a.m.–4:30 p.m. 

Place: Ithaca, NY. 

Type of Meeting: Part-Open. 

Contact Person: Dr. Thomas Rieker, 

Program Director, Materials Research Science 

and Engineering Centers Program, Division of 

mstockstill on DSKH9S0YB1PROD with NOTICES