Category Archives: Legislative Update

Background on the GMR/RMLC Issues

David Oxenford - Color
David Oxenford

By: David Oxenford
Wilkinson Barker Knauer LLP
doxenford@wbklaw.com
www.broadcastlawblog.com

Commercial radio broadcasters have been seeing numerous communications over the last week about Global Music Rights (GMR) and its seemingly contentious music royalty negotiations with the Radio Music License Committee (RMLC). Many stations are confused about this controversy and what it is all about. The five questions below will hopefully shed some light on these issues. Stations need to carefully consider their options, and seek advice where necessary, to determine what they will do by January 31 with respect to the interim license that GMR has offered to stations. The questions below hopefully provide some background on these issues.

1. What is GMR and why isn’t the music they represent covered by the other organizations like BMI, ASCAP, and SESAC?

GMR is a new performing rights organization. Like ASCAP, BMI and SESAC, they represent songwriters and collect royalties from music users for the public performance of these songwriter’s compositions. They will collect not just from radio – they have already reached out to business music services that provide the music played in retail stores, restaurants and other businesses and no doubt have or will license other companies that make music available to the public. Most songwriters represented by GMR used to be represented by ASCAP or BMI, but these songwriters have withdrawn from ASCAP and BMI and joined GMR. For radio, these withdrawals became effective on January 1 of this year, when the old license agreements between ASCAP and BMI and the commercial radio industry expired.

2. What does a station need to do, in order to protect itself while negotiations are going on?

Because the penalties for playing a song without a license can be as much at $150,000 per play, stations either need to purge all GMR music from their stations or sign a license agreement with GMR. If you decide to purge their music from your stations, don’t forget about music that may appear in commercials or syndicated programming. Also remember that we are talking about the musical composition, not the recording of the song by any particular band or singer. Even the broadcast of a high school band playing a GMR song at half time of some football game, or the broadcast of a local middle school choral concert, could trigger the royalty obligation to GMR.

3. What does the “Interim License” through September mean?

The Radio Music License Committee (RMLC) is the group that represents most commercial radio broadcasters in music royalty negotiations with the various organizations that represent songwriters. They have been trying to reach a license agreement with GMR, but have not been able to reach one at rates that they consider to be an appropriate reflection of the airplay received by songs written by GMR songwriters. RMLC has actually sued GMR, arguing that GMR has violated the antitrust laws in the negotiation process, and asking that an arbitration process be set up to determine rates (and GMR has, seemingly in response, sued RMLC).

Since it was clear that no final agreement between RMLC and GMR could be reached by January 1, to avoid having stations that play GMR music being subject to lawsuits for copyright violations, GMR has offered an interim license that lasts for 9 months. Presumably, if in that time GMR and RMLC settle their disputes and arrive at a reasonable royalty rate, and that royalty rate is less than the interim rate, some credit for part of the sums paid under this interim rate could potentially be built into the new rates.

GMR has this week reached out to many station groups with specific proposals as to an interim rate. Commercial stations that did not receive information from GMR can reach out to them and ask for the rate information. GMR has given stations until January 31 to agree to that rate, sign the interim license agreement and pay the first month’s royalties. If a station does not choose to sign the interim deal and has not negotiated its own royalty agreement, and if it continues to play music written by GMR artists, then it is potentially subject to a copyright infringement lawsuit.

4. Is this going to lead to more people making demands for payment for songs broadcast on the radio?

If GMR is successful in collecting enough money to pay its songwriters more than writers receive from ASCAP and BMI, this could encourage other organizations to create similar licensing organizations. Some large publishing companies have already suggested that possibility, and there are certain other companies that specialize in maximizing royalties for songwriters that have the potential to do the same thing. However, starting a performing rights organization like ASCAP, BMI and SESAC is not easily accomplished as it requires setting up infrastructure for collection, reporting, distribution and enforcement activities. It also requires waiting for existing contracts granting performance rights to expire. Thus, new organizations are not likely to pop up overnight.

5. Is this related at all to the radio streaming waiver with SONY that the NAB is urging stations to consider?

The GMR issues all involve the rights to perform the underlying words and music to a song, not the rights to perform a recording of that song as recorded by any particular band or singer. The recording by a particular performing artist is called a “sound recording” or “master recording.” Broadcasters do not pay for the over-the-air performance of sound recordings, but they do pay performance fees when those recordings are streamed. The Sony waiver involves the digital performance right to sound recordings, and some of the rules that apply under the license for those digital performances. It is unrelated to the GMR controversy.

For more detailed information about some of these issues, I have written a number of articles discussing music rights on my Blog – www.broadcastlawblog.com.

On the Interim license issued by GMR, see my article here: http://www.broadcastlawblog.com/2016/12/articles/gmr-and-rmlc-agree-to-interim-license-for-commercial-radio-stations-providing-9-months-to-reach-final-deal-for-public-performance-of-musical-compositions/

On the litigation between GMR and RMLC see my articles here http://www.broadcastlawblog.com/2016/11/articles/rmlc-files-antitrust-lawsuit-against-gmr-and-seeks-to-enjoin-new-music-license-fees-on-radio-stations/ and here: http://www.broadcastlawblog.com/2016/12/articles/gmr-sues-rmlc-claims-antitrust-violations-for-negotiating-royalties-on-behalf-of-the-radio-industry-what-are-the-implications/

On the Sony waiver, see my article here: http://www.broadcastlawblog.com/2016/10/articles/nab-announces-agreements-with-sony-and-warner-to-waive-performance-complement-and-other-statutory-requirements-for-broadcasters-who-stream-their-signals/

For more information about some of the other potential players in music licensing, see my article here: http://www.broadcastlawblog.com/2016/07/articles/socan-buys-audiam-the-consolidation-and-fragmentation-of-music-rights-what-does-it-mean-for-music-services/

For a general summary of many of the music issues that affect broadcasters, see my article here and the presentation slides that are referenced in that article: http://www.broadcastlawblog.com/2016/08/articles/whats-up-with-music-rights-for-broadcasters-and-webcasters-a-presentation-on-pending-issues/

FCC Meeting May lead to Elimination of Public Inspection File Requirement

fcc-logo_dark-blueAccording to the Broadcast Law Blog, the FCC released a tentative agenda for the agency’s open meeting scheduled for January 31. This will be the first meeting without Chairman Wheeler, who is set to step down on January 20. The only item on the Republican-controlled FCC meeting agenda is the elimination of the requirement that broadcasters maintain a paper public file, open for public inspection, containing letters and emails from the public about station operations.

The FCC in the past had cited privacy concerns for requiring such communication be kept out of the online public file database, but the agency now says it believes the legacy paper requirement does little to ensure broadcasters are serving the public interest. This meeting may serve as an initial indication of how the regulatory treatment of broadcasters may change under the new Administration. The National Association of Broadcasters (NAB) supports the idea, saying it will “reduce the regulatory burdens” on commercial broadcasters while keeping up with 21st century communications.

Michigan Attorney Wants U.S. Supreme Court Hearing On Court Recordings

According to a report in MIRS, John Bursch, an attorney from Michigan, requested the U.S. Supreme Court to hear a case that recording courtroom proceeding should be protected by the First Amendment.

Current Michigan court rules allow recording of proceedings in courts, but the specifics of the rules require requests for coverage be made in writing to the court’s clerk, and parties in the court be notified of the recording. Judges can also remove the ability to record a proceeding at their discretion.

Bursch wants the court to rule on whether, absent a good reason to deny it, recording courtroom proceedings should be by default a constitutional right.

MAB Brings 2017 SOS to Members

capitol3The MAB would like to thank all of our members airing Governor Rick Snyder’s 2017 State of the State Address. MAB will be on-hand uplinking the Governor’s speech and the Democratic response to both commercial and public television members in the state. The clean, unhosted feed will be in HD. Public television stations will be supplied a 90-minute hosted program, anchored by Tim Skubick.

The uplink this year is provided by Central Michigan University Public Television. MAB is grateful to WCMU-TV/Central Michigan University for providing their uplink truck, staff and technical support.

Both public and commercial radio stations in the state will be receiving a 90-minute hosted program anchored by Michigan Public Radio Capitol Bureau Chief Rick Pluta.  The MAB thanks the Michigan Association of Public Broadcasters for making this program available to all stations in the state.

2017 Michigan State of the State Broadcast Feed Information

wcmu-1_300On Tuesday, January 17, 2017 at 7:00 p.m., Governor Rick Snyder will deliver his annual State of the State address to Michigan citizens. In response to a survey of our members, the MAB will provide live feeds for commercial TV and radio to use.

TV: MAB will uplink the State of the State address for commercial television. The feed will be a clean (unanchored) feed, in HD and closed-captioned. House TV may be including a signer for the hard of hearing on the video feed.

Central Michigan University Television (WCMU-TV) will once again uplink the event for MAB with their mobile uplink/production truck.

TV Satellite Information:

2017 Michigan State of the State Address
January 17, 2017, Tuesday

All Times Eastern Standard Time:

TEST PERIOD 1400 – 1430
TEST PERIOD 1830 – 1900
PROGRAM 1900 – 2000 *APPROXIMATE OUT

Our plan, as in years past, is to prefeed the Democratic Party response during the test periods, and again exactly 90 seconds following the Governor’s address (90 seconds after we fade to black).

Transponder time is booked until 2030.

CLEAN FEED/POOL FEED:

Coordinates: G16/24K 99 degrees
Downlink: 12189.0000 Vertical

Data rate: 19,392,658
FEC: 3 / 4
Symbol rate: 14,028,731
Modulation: QPSK
MPEG-2 Profile: 4:2:0

The feed will be closed captioned.
Video is 1080i @ 59.94 Hz field rate. (29.97 Hz frame rate).
Video encoding is CBR 17.5 Mbps MPEG-2, open GOP-12, PID 0x31.
MPEG program number is 3.
Main Program Audio is in 5.1 Dolby Digital (AC3) at 384 Kbps on PID 0x34.
Main Program Audio is in 2.0 Dolby Digital (AC3) at 384bps on PID 0x35.
Main Program Audio is in 2.0 MPEG encoding at 192Kbps on PID 0x36.
5.1 audio is up-converted

RADIO: MAB will provide a radio feed for members.

This year, through the cooperation of Michigan’s Public Radio Broadcasters, the MAB is offering Michigan Public Radio Network’s (MPRN) State of the State coverage to commercial broadcasters.

The MPRN Capitol Bureau staff, along with reporters from Michigan Public Radio stations, will provide a 90-minute hosted broadcast from 7 to 8:30pm.

Commercial stations that wish to use this must air the following announcement before and after the broadcast: “Broadcast of the Governor’s State of State address is provided by Michigan Public Radio Network and this station.”

Commercial stations may pick up the feed off-air from their area FM public radio station for rebroadcast. A complete list of public radio stations airing the MPRN State of the State Broadcast is listed below.

The feed (via WKAR-FM/East Lansing) will also be available via Internet on the MAB website: www.michmab.com.

Public Radio Stations Airing MPRN Feed

Alpena – WCML-FM 91.7
Ann Arbor – WUOM-FM 91.7
Detroit – WDET-FM 101.9
East Lansing – WKAR-FM 90.5
Flint – WFUM-FM 91.1
Grand Rapids – WGVU-FM 88.5
Grand Rapids – WVGR-FM 104.1
Harbor Springs WCMW-FM 96.9
Harbor Springs WHBP-FM 90.1
Kalamazoo WMUK-FM 102.1
Manistee WLMN-FM 89.7
Marquette WNMU-FM 90.1
Mt. Pleasant WNMU-FM 89.5
Muskegon WGVS-FM 95.3
Oscoda WCMB-FM 95.7
Sault Ste. Marie WCMZ-FM 98.3
Standish WWCM-FM 96.9
Traverse City WICA-FM 91.5

This list may be updated…..please check www.michmab.com for the latest list.

We encourage you to carry this program live on as many of your stations as possible, to stream it on your website and to promote to your audience that you will make both it, and the Democratic response, available.

ON-SITE INFORMATION: THE DEADLINE FOR PRESS CREDENTIALS HAS PASSED.  For those stations sending trucks and/or reporters, be aware that the Capitol Building will have increased security. Anyone entering the Capitol will be required to have special credentials, including news media.

TRUCK PARKING: If you will be bringing your own truck/van, you will need to arrange on-street parking adjacent to the Capitol through City of Lansing Parking Services: (517) 483-4240 or parking@lansingmi.gov.

No cameras will be allowed in the House Chambers. The video feed will be provided by House TV. A video feed connection is available on-site for those stations who might be sending their own truck. For more information on the video (or audio) feed, contact Dave Smith, Media Operations Manager, at (517) 373-7438.

BMI Files Lawsuit Against the RMLC

According to a report in AllAccess, BMI has filed a lawsuit in Federal Rate Court to set interim fees for radio stations represented by the Radio Music License Committee (RMLC).

The RMLC’s proposed interim rate is well below BMI’s previous deal, and BMI’s lawsuit states that “the effect of which would have a significant impact on the royalties BMI pays to its songwriters, composers and music publishers. The RMLC has justified its proposed rate based upon incomplete and incorrect information regarding BMI’s radio performances. BMI disagrees fundamentally with the RMLC’s proposal and, consistent with past practices, is asking the Court to maintain its most recent rate while new terms are negotiated.”

GMR and RMLC Agree to Interim License for Commercial Radio Stations

According to the Broadcast Law Blog, the Radio Music Licensing Committee (RMLC) announced an interim agreement with the new performing rights organization Global Music Rights (GMR) that will give commercial radio stations, who decide to accept the license, the the right to play music written by songwriters represented by GMR for nine months. The announcement from the RMLC is available here. The agreement is set to last nine months.

To be covered by this license, a station must make an election by January 31 and pay the first month’s assessment to GMR by that date.  More information and links here.

Large Market Radio Stations Must Have Complete Online Public File by Christmas Eve

fcc-logo_dark-blueThe CommLawBlog reports that most radio stations located in large markets, which have been defined by the Commission in this instance, to be the Nielsen Top-50 radio markets, will need to make sure that they have their online public files completely uploaded by December 24, 2016.

Back on June 24, 2016, full-power radio stations in the Nielsen Top-50 radio markets with 5 or more full-time employees in their employment unit (as that term is defined in the FCC’s EEO rules) were required to begin uploading virtually all public file documents to a Commission-hosted database on a going-forward basis. The exception to that rule was that stations were allowed to continue maintaining correspondence from the public in a paper file.

Now the second half of the requirement is about to kick in, as stations must upload public file documents which pre-date June 24, 2016 and that process must be completed by December 24. Exceptions to this requirement are the political file, which needs to be uploaded on a going-forward basis only and, again correspondence from the public.

Smaller Markets Take Note:

The blog reminds other stations that  Beginning March 1, 2018, the online radio requirements will apply to full-power radio stations located outside the top-50 markets and small stations in all markets.

Unlike the first group of stations, there will not be a phase-in period, but rather almost all public file documents, including documents from earlier in the license term and going-forward documents, will be required to be posted online by March 1, 2018. Exceptions are that the political file needs be uploaded on a going-forward basis only and political file documents from prior to March 1, 2018 may be retained in a paper file for the remainder of their retention period. Additionally, letters from the public need not be uploaded but must be retained in paper format.

Read more here.

FCC Chairman Wheeler to Step Down January 20

Tom Wheeler
Tom Wheeler

On December 15, FCC Chairman Tom Wheeler announced that he intends to leave the agency on January 20, 2017.  Wheeler has been head of the Commission for more than three years.

He issued the following statement:

“Serving as FCC chairman during this period of historic technological change has been the greatest honor of my professional life.  I am deeply grateful to the president for giving me this opportunity. I am especially thankful to the talented commission staff for their service and sacrifice during my tenure. Their achievements have contributed to a thriving communications sector, where robust investment and world-leading innovation continue to drive our economy and meaningful improvements in the lives of the American people.  It has been a privilege to work with my fellow commissioners to help protect consumers, strengthen public safety and cybersecurity and ensure fast, fair and open networks for all Americans.”

NAB Washington Update

Curtis LeGeyt
Curtis LeGeyt

By: Curtis LeGeyt, EVP, Government Relations
National Association of Broadcasters

I wanted to let you all know that the Senate went out of session for the year early Saturday morning (12/10), and FCC Commissioner Jessica Rosenworcel was not reconfirmed. This means her term will expire at the end of 2016 and we will begin the next Administration with either a 2-2 or 2-1 FCC, depending on the date on which Chairman Wheeler steps down (Editor note: Chairman Wheeler announced he is leaving the agency January 20, 2017.  Details here). This is noteworthy, since a 2-1 FCC would allow a Republican Interim-Chairman to begin advancing an agenda at the outset of the new year before new commissioners are nominated/confirmed.

On the legislative front, two noteworthy updates occurred before the Congress wrapped up its work this week:

First, Senators Moran (R-KS), Schatz (D-HI), Fisher (R-NE), Blumenthal (D-CT), Blunt (R-MO) and Udall (D-NM) circulated bipartisan draft legislation to the Senate Commerce Committee aimed to address any insufficiency in the FCC’s repacking budget and timeframe should either prove insufficient at the conclusion of the auction. As you are aware, the FCC is currently limited to a $1.75 billion relocation fund and 39-month timeline to successfully repack the broadcast band following the incentive auction, limitations that NAB is concerned will prove inadequate.

Circulation of this legislation in advance of the new Congress intends to signal both that this legislation should be at the top of the Commerce Committee’s agenda next year once the auction concludes and the scope of the repack is known, and that the issue is a bipartisan one. This bill is a companion to the legislation circulated by House Energy and Commerce Committee Ranking Member Frank Pallone (D-NJ) earlier this year.

Second, incoming House Energy and Commerce Chairman Greg Walden (R-OR2), Congressman John Yarmuth (D-KY3) and five other bipartisan House E&C members introduced legislation this week to repeal the FCC’s Broadcast-Newspaper Cross-Ownership ban. The legislation intends to signal to both the FCC and the next Congress that there is bipartisan support on this issue, and helps set the stage for the FCC and Congress to address the ownership rules next year.

Curtis