37 CFR 381.6 — Use of Certain Copyrighted Works in Connection with Noncommercial Educational Broadcasting
Current through: 2024-07-01

Performance of musical compositions by other public broadcasting entities.

§ 381.6 Performance of musical compositions by other public broadcasting entities. (a) Scope. This section applies to the performance of copyrighted published nondramatic musical compositions by radio stations not licensed to colleges, universities, or other nonprofit educational institutions and not affiliated with NPR. In the event that a station owned by a public broadcasting entity broadcasts programming by means of an in-band, on-channel (“IBOC”) digital radio signal and such programming is different than the station's analog broadcast programming, then any such programming shall be deemed to be provided by a separate station requiring a separate royalty payment. (b) Definitions. As used in paragraphs (d) and (e) of this section, the following terms and their variant forms mean the following: (1) Feature Music shall mean any performance of a musical work, whether live or recorded, that is the principal focus of audience attention. Feature Music does not include bridge, background, or underscore music, themes or signatures, interstitial music between programs such as in public service announcements or program sponsorship identifications, brief musical transitions in and out of program segments (not to exceed 60 seconds in duration), incidental performances of music during broadcasts of public, religious, or sports events, or brief performances during news, talk, religious, and sports programming of no more than 30 seconds in duration. (2) Population Count. The combination of: (i) The number of persons estimated to reside within a station's Predicted 60 dBu Contour, based on the most recent available census data; and (ii) The nonduplicative number of persons estimated to reside in the Predicted 60 dBu Contour of any Translator or Booster Station that extends a public broadcasting entity's signal beyond the contours of a station's Predicted 60 dBu Contour. (iii) In determining Population Count, a station or a Translator or Booster Station may use and report the total population data, from a research company generally recognized in the broadcasting industry, for the radio market within which the station's community license is located. (3) Predicted 60 dBu Contour shall be calculated as set forth in 47 CFR 73.313. (4) Talk Format Station shall mean a noncommercial radio station: (i) Whose program content primarily consists of talk shows, news programs, sports, community affairs or religious sermons (or other non-music-oriented programming); (ii) That performs Feature Music in less than 20% of its programming annually; and (iii) That performs music-oriented programming for no more than four (4) programming hours during the hours from 6 a.m. to 10 p.m. each weekday, with no two (2) hours of such programming occurring consecutively, with the exception of up to five (5) weekdays during the year. (5) Weekday shall mean the 24-hour period starting at 12 a.m. through 11:59 p.m. on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays occurring between January 1 of a given year up to and including Thanksgiving day of that year. (6) Translator Station and Booster Station shall have the same meanings as set forth in 47 CFR 74.1201. (c) Voluntary license agreements. Notwithstanding the schedule of rates and terms established in this section, the rates and terms of any license agreements entered into by copyright owners and noncommercial radio stations within the scope of this section concerning the performance of copyrighted musical compositions, including performances by noncommercial radio stations, shall apply in lieu of the rates and terms of this section. (d) Royalty rate. A public broadcasting entity within the scope of this section may perform published nondramatic musical compositions subject to the following schedule of royalty rates: (1) For all such compositions in the repertory of ASCAP, the royalty rates shall be as follows: (i) Music fees for stations with 20% or more programming containing Feature Music are as follows: Table 1 to Paragraph (d)(1)(i) Population count Calendar years 2023 2024 2025 2026 2027 Level 1 0-24,999 $574 $585 $597 $609 $621 Level 2 25,000-249,999 754 769 784 800 816 Level 3 250,000-499,999 1,346 1,373 1,400 1,428 1,457 Level 4 500,000-999,999 2,017 2,057 2,098 2,140 2,183 Level 5 1,000,000-1,499,999 2,691 2,745 2,800 2,856 2,913 Level 6 1,500,000-1,999,999 3,363 3,430 3,499 3,569 3,640 Level 7 2,000,000-2,499,999 4,035 4,116 4,198 4,282 4,368 Level 8 2,500,000-2,999,999 4,708 4,802 4,898 4,996 5,096 Level 9 3,000,000 and above 6,726 6,861 6,998 7,138 7,280 (ii) Talk Format Station fees for stations with <20% Feature Music programming are as follows: Table 2 to Paragraph (d)(1)(ii) Population count Calendar years 2023 2024 2025 2026 2027 Level 1 0-24,999 $265 $270 $276 $281 $287 Level 2 25,000-249,999 574 585 597 609 621 Level 3 250,000-499,999 574 585 597 609 621 Level 4 500,000-999,999 574 585 597 609 621 Level 5 1,000,000-1,499,999 942 961 980 1,000 1,020 Level 6 1,500,000-1,999,999 1,177 1,201 1,225 1,249 1,274 Level 7 2,000,000-2,499,999 1,412 1,440 1,469 1,498 1,528 Level 8 2,500,000-2,999,999 1,647 1,680 1,714 1,748 1,783 Level 9 3,000,000 and above 2,354 2,401 2,449 2,498 2,548 (2) For all such compositions in the repertory of BMI, the royalty rates shall be as follows: (i) Music fees for stations with 20% or more programming containing Feature Music are as follows: Table 3 to Paragraph (d)(2)(i) Population count Calendar years 2023 2024 2025 2026 2027 Level 1 0-24,999 $574 $585 $597 $609 $621 Level 2 25,000-249,999 754 769 784 800 816 Level 3 250,000-499,999 1,346 1,373 1,400 1,428 1,457 Level 4 500,000-999,999 2,017 2,057 2,098 2,140 2,183 Level 5 1,000,000-1,499,999 2,691 2,745 2,800 2,856 2,913 Level 6 1,500,000-1,999,999 3,363 3,430 3,499 3,569 3,640 Level 7 2,000,000-2,499,999 4,035 4,116 4,198 4,282 4,368 Level 8 2,500,000-2,999,999 4,708 4,802 4,898 4,996 5,096 Level 9 3,000,000 and above 6,726 6,861 6,998 7,138 7,280 (ii) Talk Format Station fees for stations with <20% Feature Music programming are as follows: Table 4 to Paragraph (d)(2)(ii) Population count Calendar years 2023 2024 2025 2026 2027 Level 1 0-24,999 $265 $270 $276 $281 $287 Level 2 25,000-249,999 574 585 597 609 621 Level 3 250,000-499,999 574 585 597 609 621 Level 4 500,000-999,999 574 585 597 609 621 Level 5 1,000,000-1,499,999 942 961 980 1,000 1,020 Level 6 1,500,000-1,999,999 1,177 1,201 1,225 1,249 1,274 Level 7 2,000,000-2,499,999 1,412 1,440 1,469 1,498 1,528 Level 8 2,500,000-2,999,999 1,647 1,680 1,714 1,748 1,783 Level 9 3,000,000 and above 2,354 2,401 2,449 2,498 2,548 (3) For all such compositions in the repertory of SESAC, the royalty rates shall be as follows: (i) Music fees for stations with 20% or more programming containing Feature Music are as follows: Table 5 to Paragraph (d)(3)(i) Population count 2023 2024 2025 2026 2027 Level 1 0-24,999 $189 $192 $196 $200 $204 Level 2 25,000-249,999 189 192 196 200 204 Level 3 250,000-499,999 315 321 328 334 341 Level 4 500,000-999,999 473 482 492 502 512 Level 5 1,000,000-1,499,999 630 643 656 669 682 Level 6 1,500,000-1,999,999 789 805 821 837 854 Level 7 2,000,000-2,499,999 945 964 983 1,003 1,023 Level 8 2,500,000-2,999,999 1,104 1,126 1,149 1,172 1,195 Level 9 3,000,000 and above 1,577 1,608 1,640 1,673 1,707 (ii) Talk Format Station fees for stations with <20% Feature Music programming are as follows: Table 6 to Paragraph (d)(3)(ii) Population count 2023 2024 2025 2026 2027 Level 1 0-24,999 $130 $133 $135 $138 $141 Level 2 25,000-249,999 189 192 196 200 204 Level 3 250,000-499,999 189 192 196 200 204 Level 4 500,000-999,999 189 192 196 200 204 Level 5 1,000,000-1,499,999 221 225 229 234 239 Level 6 1,500,000-1,999,999 276 282 287 293 299 Level 7 2,000,000-2,499,999 331 337 344 351 358 Level 8 2,500,000-2,999,999 386 394 402 410 418 Level 9 3,000,000 and above 552 563 574 586 597 (4) For all such compositions in the repertory of GMR, the royalty rates shall be as follows: (i) For a public broadcasting entity within the scope of this section that is broadcasting one or more radio stations as of January 1, 2023, a single $50 fee for each such station for the entire five-year license term from 2023 through 2027; and (ii) For a public broadcasting entity within the scope of this section that begins broadcasting a radio station after January 1, 2023, but before December 31, 2027, a pro-rated amount equal to $10 multiplied by the number of full or partial years remaining in the 2023-2027 license term as of the date on which the radio station begins broadcasting ( e.g., a public broadcasting entity that begins broadcasting a radio station in 2025 shall pay $30 for that station for the remainder of the term). (5) For the performance of all other such compositions, from 2023 through 2027: $1. (e) Payment of royalty rate —(1) ASCAP, BMI, and SESAC. The public broadcasting entity shall pay the required royalty rate to ASCAP, BMI, and SESAC not later than January 31 of each year. Each annual payment shall be accompanied by a signed declaration stating the Population Count of the public broadcasting entity and the source for such Population Count. An exact copy of such declaration shall be furnished to each of ASCAP, BMI, and SESAC. Upon prior written notice thereof from ASCAP, BMI, or SESAC, a public broadcasting entity shall make its books and records relating to its Population Count available for inspection. In the event that a public broadcasting entity wishes to be deemed a Talk Format Station, then such entity shall provide a signed declaration stating that Feature Music is performed in less than 20% of its annual programming and that it complies with the caps set forth in paragraph (b)(4) of this section. An exact copy of such declaration shall be furnished to each of ASCAP, BMI, and SESAC. Upon prior written notice thereof from ASCAP, BMI, or SESAC, a public broadcasting entity shall make its program schedule or other documentation supporting its eligibility as a Talk Format Station available for inspection. (2) GMR. For fees due pursuant to paragraph (d)(4)(i) of this section, the public broadcasting entity shall pay the required royalty rate to GMR not later than January 31, 2023. For fees due pursuant to paragraph (d)(4)(ii) of this section, the public broadcasting entity shall pay the required royalty rate to GMR not later than 60 days after the public broadcasting entity begins to broadcast the radio station for which such fee is due. If a fee is paid pursuant to paragraph (d)(4)(i) or (ii) of this section for a radio station and that station changes ownership during the course of the license term but continues to fall within the scope of this section, no additional fee shall be due for that station during the 2023-2027 license term. (f) Records of use. A public broadcasting entity subject to this section shall furnish to ASCAP, BMI, SESAC, and GMR, upon request, a music-use report during one week of each calendar year. ASCAP, BMI, SESAC, and GMR each shall not in any one calendar year request more than 10 stations to furnish such reports. [72 FR 67647, Nov. 30, 2007, as amended at 77 FR 71106, Nov. 29, 2012; 83 FR 2741, Jan. 19, 2018; 88 FR 41830, June 28, 2023]