[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Rules and Regulations]
[Pages 41827-41833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13668]



[[Page 41827]]

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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 381

[Docket No. 21-CRB-0002-PBR (2023-2027)]


Determination of Rates and Terms for Public Broadcasting (PB IV)

AGENCY: Copyright Royalty Board (CRB), Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Royalty Judges publish final regulations that 
set rates and terms for use of certain works in connection with 
noncommercial broadcasting for the period from January 1, 2023, through 
December 31, 2027.

DATES: 
    Effective date: June 28, 2023.
    Applicability date: These rates and terms are applicable during the 
period from January 1, 2023, through December 31, 2027.

ADDRESSES: For access to the docket to read background documents or the 
comment received, go to eCRB, the Copyright Royalty Board's electronic 
filing and case management system, at https://app.crb.gov/ and search 
for docket number 21-CRB-0002-PBR (2023-2027).

FOR FURTHER INFORMATION CONTACT: Anita Brown, CRB Program Specialist, 
(202) 707-7658, [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Section 118 of the Copyright Act, title 17 of the United States 
Code, establishes a statutory license for the use of certain 
copyrighted works in connection with noncommercial television and radio 
broadcasting. Chapter 8 of the Copyright Act requires the Copyright 
Royalty Judges (Judges) to conduct proceedings every five years to 
determine the rates and terms for the section 118 license. 17 U.S.C. 
801(b)(1), 804(b)(6). In accordance with section 804(b)(6), the Judges 
commenced the proceeding to set rates and terms for the period 2023-
2027 on January 5, 2021. 86 FR 325.
    In the Federal Register notice, the Judges requested that 
interested parties submit petitions to participate. Id. Petitions to 
Participate (PTPs) were received from: The American Society of Authors, 
Composers and Publishers (ASCAP); SESAC Performing Rights, LLC; 
Broadcast Music, Inc. (BMI); Educational Media Foundation (EMF); 
Corporation for Public Broadcasting (CPB), National Public Radio (NPR), 
and the Public Broadcasting Service (PBS) (jointly, the Public 
Broadcasting Entities (PBE)); National Religious Broadcasters 
Noncommercial Music License Committee (NRBNMLC); the Church Music 
Publishers' Association (CMPA); The Harry Fox Agency (HFA); Global 
Music Rights, LLC (GMR); and David Powell.
    The Judges set the timetable for the three-month negotiation 
period, see 17 U.S.C. 803(b)(3), and directed the participants to 
submit written direct statements no later than September 10, 2021. 
Notice of Participants, Commencement of Voluntary Negotiation Period, 
and Case Scheduling Order (Feb. 9, 2021). The Judges amended the case 
schedule four times to accommodate ongoing negotiations. See, e.g., 
Order Granting Joint Motion to Postpone Submission of Written Direct 
Statements (Dec. 1, 2021). In July 2021, September 2021, November 2021, 
and December 2022 participants filed notices of settlement and proposed 
rates and terms for adoption.\1\
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    \1\ The Judges received no notice of settlement or proposed 
rates and terms from participant David Powell.
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    There are two ways copyright owners and public broadcasting 
entities \2\ may negotiate rates and terms under the section 118 
statutory license. First, copyright owners may negotiate rates and 
terms with specific public broadcasting entities for the use of all of 
the copyright owners' works covered by the license. Section 118(b)(2) 
provides that such license agreements ``shall be given effect in lieu 
of any determination by the . . . Copyright Royalty Judges,'' provided 
that copies of the agreement are submitted to the Judges ``within 30 
days of execution.'' 17 U.S.C. 118(b)(2). The Judges received five 
agreements in this category for which no further action was 
required.\3\
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    \2\ A ``public broadcasting entity'' is defined as a 
``noncommercial educational broadcast station as defined in section 
397 of title 47 and any nonprofit institution or organization 
engaged in the activities described in paragraph (2) of subsection 
(c)'' of section 118. 17 U.S.C. 118(f).
    \3\ The Judges received agreements with PBE from BMI, HFA, 
SESAC, ASCAP, and GMR on October 29, 2021; November 2, 2021; 
November 2, 2021; January 28, 2022; and December 29, 2022, 
respectively.
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    Second, copyright owners and public broadcasting entities may 
negotiate rates and terms for categories of copyrighted works and uses 
that would be binding on all owners and entities using the same license 
and submit them to the Judges for approval. Section 801(b)(7)(A) of the 
Copyright Act authorizes the Judges to adopt rates and terms negotiated 
by ``some or all of the participants in a proceeding at any time during 
the proceeding'' provided they are submitted to the Judges for 
approval. This section states that the Judges shall: (1) provide an 
opportunity to comment on the agreement to non-participants who would 
be bound by the terms, rates, or other determination set by the 
agreement; and (2) provide an opportunity to comment and to object to 
participants in the proceeding who would be bound by the terms, rates, 
or other determination set by the agreement. See section 801(b)(7)(A). 
The Judges may decline to adopt the agreement as a basis for statutory 
terms and rates for participants not party to the agreement if any 
participant objects and the Judges conclude that the agreement does not 
provide a reasonable basis for setting statutory terms or rates. Id.
    The Judges received negotiated rates and terms from ASCAP (Jul. 2, 
2021), BMI (May 17, 2021), GMR (Sept. 9, 2021), and SESAC (Sept. 3, 
2021), and jointly from all four (Dec. 7, 2022) regarding rates for 
compositions in their repertories by certain public broadcasters; \4\ 
and from NRBNMLC jointly with ASCAP (Sept. 9, 2021), BMI (Sept. 10, 
2021), GMR (Sept. 9, 2021, and Dec. 7, 2022), SESAC (Sept. 10, 2021), 
and HFA (June 21, 2021) regarding rates for compositions in their 
repertories by certain other public broadcasters. The Judges received 
joint proposals from PBE and HFA regarding the fees in Sec.  381.7 
(Dec. 12, 2022); from CPB, NPR, and PBS regarding the provisions of 
Sec.  381.4 (Dec. 30, 2022); and from CPB and PBS regarding the rates 
in Sec.  381.8 (Jan. 5, 2023).
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    \4\ The joint proposal aggregates the separate proposals and is 
to be considered in place of them. See Dec. 7, 2022 Joint Proposal 
at 1 n.1.
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    The Judges published the aforementioned settlements in the Federal 
Register for comment on January 26, 2023. 88 FR 4928. Members of the 
public could comment on, and participants in this rate proceeding could 
comment on and object to, any or all of the proposed regulations and a 
proposed technical revision.\5\ Id.
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    \5\ The Judges' January 26, 2023 Federal Register document 
proposed technical revisions to Sec. Sec.  381.7(e) and 381.8(e)(1) 
to require online filing of cue sheets or summaries in lieu of 
submissions of electronic copies on compact disk or floppy diskette.
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Statutory Standard and Precedent

    Pursuant to section 801(b)(7)(A) of the Copyright Act, the Judges 
have the authority to adopt settlements between some or all of the 
participants to a proceeding at any time during a proceeding. This 
section states that the Judges shall: (1) provide an opportunity

[[Page 41828]]

to comment on the agreement to non-participants who would be bound by 
the terms, rates, or other determination set by the agreement; and (2) 
provide an opportunity to comment and to object to participants in the 
proceeding who would be bound by the terms, rates, or other 
determination set by the agreement. See section 801(b)(7)(A). The 
Judges may decline to adopt the agreement as a basis for statutory 
terms and rates for participants not party to the agreement if any 
participant objects and the Judges conclude that the agreement does not 
provide a reasonable basis for setting statutory terms or rates. Id.
    Regardless of the comments of interested parties or participants, 
the Judges are not compelled to adopt a settlement to the extent it 
includes provisions that are inconsistent with the statutory license. 
See Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540 
(Jan. 26, 2009) (error for Judges to adopt settlement without threshold 
determination of legality); see also Review of Copyright Royalty Judges 
Determination, 73 FR 9143, 9146 (Feb. 19, 2008) (error not to set 
separate rates as required under sections 112 and 114 when parties' 
unopposed settlement combined rates in contravention of those statutory 
sections).\6\
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    \6\ The Register found that a ``paucity of evidence'' in the 
record to support a determination of separate rates for the separate 
licenses ``does not dispatch the . . . Judges' statutory 
obligations.'' Review of Copyright Royalty Judges Determination, 73 
FR 9143, 9145 (Feb. 19, 2008). The Register noted that the Judges 
have subpoena power to compel witnesses to appear and give 
testimony. Id.
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    As the Register of Copyrights (Register) observed in the 2009 
review of the Judges' decision, nothing in the statute precludes 
rejection of any portions of a settlement that would be contrary to 
provisions of the applicable license or otherwise contrary to the 
statute. 74 FR 4540. In the instance under review by the Register, the 
settlement agreement purported to alter the date(s) for payment of 
royalties granting licensees a longer period than section 115 provided. 
Id. at 4542. The Register also noted that nothing in the statute 
relating to adoption of settlements precludes the Judges from 
considering comments of non-participants ``which argue that proposed 
[settlement] provisions are contrary to statutory law.'' Id. at 4540.
    The Judges received one comment from Jacob Eisenmann. Mr. Eisenmann 
questions whether the joint proposal of ASCAP, BMI, GMR, and SESAC, 
which proposes to modify the royalty rates set forth in Sec.  381.5 
through a term providing rate options for licensed use of compositions 
in the GMR repertory by certain entities broadcasting primarily in a 
religious format, is in violation of the Establishment Clause of the 
First Amendment to the Constitution. Eisenmann Comment at 1-2. Mr. 
Eisenmann acknowledges that the history of the interpretation of the 
Establishment Clause is extensive, and points to Lynch v. Donnelly, 465 
U.S. 668 (1984), as an analytical framework for determining whether the 
challenged rates violate the Establishment Clause. Id. Mr. Eisenmann 
offers a perfunctory analysis in which he suggests that the provision 
regarding rates for compositions in the GMR repertory by certain 
entities broadcasting primarily in a religious format violates the 
Establishment Clause. Id.
    While the Judges may refuse to adopt a settlement that is 
inconsistent with the statutory license or otherwise contrary to law, 
the Judges do not find the challenged provisions regarding the GMR 
repertory to be contrary to law. Lynch v. Donnelly notes that there is 
no single test or criterion for the line-drawing process regarding 
Establishment Clause concerns of the sort suggested by Mr. Eisenmann, 
but directs inquiry as to whether a challenged action has a secular 
purpose, and whether the action impermissibly has a principal or 
primary effect to advance religion or creates excessive entanglement 
between religion and government. Lynch v. Donnelly, 465 U.S. at 679.
    The Judges are directed to 17 U.S.C. 801(b)(7)(A) to consider 
whether a settlement agreement provides a reasonable basis for setting 
statutory terms or rates, and to do so based on the record before them 
if one exists. The arrival upon and submission of settlements, 
axiomatically, may be driven in part to avoid costly and uncertain 
litigation, a motivation that is secular in nature, and the settlement 
at issue addressed a range of uses and users of GMR repertory. 
Furthermore, the setting of rates and terms, as well as the provisions 
of Chapter 8 of the Copyright Act, which facilitate and encourage 
parties to enter into settlement negotiations, serve a secular purpose.
    The Judges note that the challenged rates and terms, which were 
proposed by GMR, apply solely to the GMR repertory. Furthermore, the 
Judges observe that the challenged rates and terms address genres of 
music used under the license and the primary genre format of a 
licensee, without delineation of any particular religion. Under the 
totality of the circumstances, the Judges do not find that the 
challenged provisions impermissibly advance religion or create 
excessive entanglement between religion and government.
    In addition to finding that the challenged rates are not prohibited 
under the Establishment Clause, the Judges disagree with Mr. 
Eisenmann's assertion that the challenged rates promote any specific 
religion either in purpose or effect. By the plain language, the 
provisions address ``stations broadcasting primarily in a religious 
format'' and include a parenthetical language noting that the 
classification is ``without limitation'' particularly in relation to 
several identified genres of music.
    For the reasons set forth herein, and on the basis of the entirety 
of the record before them, the Judges find that adoption of the 
challenged rates, the product of a settlement applicable to the 
repertory of the proponent copyright owner, adequately serves a secular 
purpose and does not impermissibly advance religion or create excessive 
entanglement between religion and government. In addition, the Judges 
note the perfunctory nature of Mr. Eisenmann's comment and legal 
analysis, from which the Judges cannot ascertain a basis for rejecting 
the settlement on constitutional grounds.
    The Judges adopt the rates and terms and technical revision as 
proposed.

List of Subjects in 37 CFR Part 381

    Copyright, Music, Radio, Rates, Television.

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges amend 37 CFR part 381 as follows:

PART 381--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH 
NONCOMMERCIAL EDUCATIONAL BROADCASTING

0
1. The authority citation for part 381 continues to read as follows:

    Authority: 17 U.S.C. 118, 801(b)(1) and 803.


Sec.  381.1  [Amended]

0
2. In Sec.  381.1, remove the years ``2018'' and ``2022'' and add in 
their places the years ``2023'' and ``2027'', respectively.


0
3. In Sec.  381.4, revise paragraphs (a) and (c) to read as follows:


Sec.  381.4  Performance of musical compositions by PBS, NPR and other 
public broadcasting entities engaged in the activities set forth in 17 
U.S.C. 118(c).

    (a) Determination of royalty rate. The following rates and terms 
shall apply to

[[Page 41829]]

the performance by the Public Broadcasting Service (PBS), National 
Public Radio (NPR), and other public broadcasting entities engaged in 
activities set forth in 17 U.S.C. 118(c) of copyrighted published 
nondramatic musical compositions, except for public broadcasting 
entities covered by Sec. Sec.  381.5 and 381.6, and except for 
compositions which are the subject of voluntary license agreements: The 
royalty shall be $1.
* * * * *
    (c) Records of use. PBS and NPR shall, upon the request of a 
copyright owner of a published musical work who believes a musical 
composition of such owner has been performed under the terms of the 
schedule established in paragraph (a) of this section, permit such 
copyright owner a reasonable opportunity to examine their standard cue 
sheets listing the nondramatic performances of musical compositions on 
PBS and NPR programs. Any local PBS and NPR station that shall be 
required by the provisions of any voluntary license agreement with 
American Society of Authors, Composers and Publishers (ASCAP), 
Broadcast Music, Inc. (BMI), Global Music Rights, LLC (GMR), or SESAC 
Performing Rights, LLC (SESAC) covering the license period January 1, 
2023, to December 31, 2027, to provide a music use report shall, upon 
request of a copyright owner who believes a musical composition of such 
owner has been performed under the terms of the schedule established in 
paragraph (a), permit such copyright owner to examine the report.


0
4. In Sec.  381.5, revise paragraphs (c) through (e) to read as 
follows:


Sec.  381.5  Performance of musical compositions by public broadcasting 
entities licensed to colleges and universities.

* * * * *
    (c) 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.

                                         Table 1 to Paragraph (c)(1)(i)
----------------------------------------------------------------------------------------------------------------
                                        Number of full-time
                                             students             2023      2024      2025      2026      2027
----------------------------------------------------------------------------------------------------------------
Level 1...........................  <1,000....................      $390      $400      $410      $421      $432
Level 2...........................  1,000-4,999...............       451       463       475       487       500
Level 3...........................  5,000-9,999...............       619       635       652       669       686
Level 4...........................  10,000-19,999.............       801       822       843       865       887
Level 5...........................  20,000+...................     1,009     1,035     1,062     1,090     1,118
----------------------------------------------------------------------------------------------------------------

    (ii) Fees for stations with an authorized effective radiated power 
(ERP) of 100 Watts or less. Level 1 rates as set forth in paragraph 
(c)(1)(i) of this section, shall also apply to College Radio Stations 
with an authorized ERP, as that term is defined in 47 CFR 73.310(a), of 
100 Watts or less, as specified on its current Federal Communications 
Commission (FCC) license, regardless of the size of the student 
population.
    (2) For all such compositions in the repertory of BMI, the royalty 
rates shall be as follows:
    (i) Music fees.

                                         Table 2 to Paragraph (c)(2)(i)
----------------------------------------------------------------------------------------------------------------
                                        Number of full-time
                                             students             2023      2024      2025      2026      2027
----------------------------------------------------------------------------------------------------------------
Level 1...........................  <1,000....................      $390      $400      $410      $421      $432
Level 2...........................  1,000-4,999...............       451       463       475       487       500
Level 3...........................  5,000-9,999...............       619       635       652       669       686
Level 4...........................  10,000-19,999.............       801       822       843       865       887
Level 5...........................  20,000+...................     1,009     1,035     1,062     1,090     1,118
----------------------------------------------------------------------------------------------------------------

    (ii) Fees for stations with an authorized ERP of 100 Watts or less. 
Level 1 rates, as set forth in paragraph (c)(2)(i) of this section, 
shall also apply to College Radio Stations with an authorized ERP, as 
that term is defined in 47 CFR 73.310(a), of 100 Watts or less, as 
specified on its current FCC license, regardless of the size of the 
student population.
    (3) For all such compositions in the repertory of SESAC, the 
royalty rates shall be as follows:
    (i) 2023: The 2022 rate, subject to an annual cost of living 
adjustment in accordance with paragraph (c)(3)(vi) of this section.
    (ii) 2024: The 2023 rate, subject to an annual cost of living 
adjustment in accordance with paragraph (c)(3)(vi) of this section.
    (iii) 2025: The 2024 rate, subject to an annual cost of living 
adjustment in accordance with paragraph (c)(3)(vi) of this section.
    (iv) 2026: The 2025 rate, subject to an annual cost of living 
adjustment in accordance with paragraph (c)(3)(vi) of this section.
    (v) 2027: The 2026 rate, subject to an annual cost of living 
adjustment in accordance with paragraph (c)(3)(vi) of this section.
    (vi) Such cost of living adjustment to be made in accordance with 
the greater of: (A) The change, if any, in the Consumer Price Index 
(all consumers, all items) published by the U.S. Department of Labor, 
Bureau of Labor Statistics, during the twelve (12) month period from 
the most recent Index, published before December 1 of the year 
immediately prior to the applicable year; or
    (B) One and one-half percent (1.5%).
    (4) For all such compositions in the repertory of GMR, the royalty 
rates shall be as follows:
    (i) 2023: $174.00 per station, subject to an annual cost of living 
adjustment in accordance with Sec.  381.10.
    (ii) 2024: The 2023 rate, subject to an annual cost of living 
adjustment in accordance with Sec.  381.10.
    (iii) 2025: The 2024 rate, subject to an annual cost of living 
adjustment in accordance with Sec.  381.10.

[[Page 41830]]

    (iv) 2026: The 2025 rate, subject to an annual cost of living 
adjustment in accordance with Sec.  381.10.
    (v) 2027: The 2026 rate, subject to an annual cost of living 
adjustment in accordance with Sec.  381.10.
    (vi) For stations broadcasting primarily in a religious format 
(including, without limitation, Contemporary Christian music, praise 
and worship, Gospel, Southern Gospel, Spanish religious music, 
inspirational, religious, etc.), at their option for 2023-2027, either 
the rates set forth in paragraph (c)(4) of this section or the rates 
set forth in Sec.  381.6(d)(4).
    (5) For the performance of all other such compositions: $1.
    (d) Payment of royalty rate. The public broadcasting entity shall 
pay the required royalty rate to ASCAP, BMI, SESAC, and GMR not later 
than January 31 of each year. Each annual payment to ASCAP, BMI, SESAC, 
and GMR shall be accompanied by a signed declaration stating the number 
of full-time students enrolled in the educational entity operating the 
station and/or the ERP as specified in its current FCC license. An 
exact copy of such declaration shall be furnished to each of ASCAP, 
BMI, SESAC, and GMR.
    (e) 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 shall not in any one calendar year request more than 10 
stations to furnish such reports.


0
5. Amend Sec.  381.6 by revising paragraphs (d) through (f) to read as 
follows:


Sec.  381.6  Performance of musical compositions by other public 
broadcasting entities.

* * * * *
    (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)
----------------------------------------------------------------------------------------------------------------
                                                                                 Calendar years
                                         Population count      -------------------------------------------------
                                                                  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)
----------------------------------------------------------------------------------------------------------------
                                                                                 Calendar years
                                         Population count      -------------------------------------------------
                                                                  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)
----------------------------------------------------------------------------------------------------------------
                                                                                 Calendar years
                                         Population count      -------------------------------------------------
                                                                  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

[[Page 41831]]

 
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)
----------------------------------------------------------------------------------------------------------------
                                                                                 Calendar years
                                         Population count      -------------------------------------------------
                                                                  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
----------------------------------------------------------------------------------------------------------------


[[Page 41832]]

    (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.


0
6. In Sec.  381.7, revise paragraphs (a) through (c) and (e) to read as 
follows:


Sec.  381.7  Recording rights, rates and terms.

    (a) Scope. This section establishes rates and terms for the 
recording of nondramatic performances and displays of musical works, 
other than compositions subject to voluntary license agreements, on and 
for the radio and television programs of public broadcasting entities, 
whether or not in synchronization or timed relationship with the visual 
or aural content, and for the making, reproduction, and distribution of 
copies and phonorecords of public broadcasting programs containing such 
nondramatic performances and displays of musical works solely for the 
purpose of transmission by public broadcasting entities, including 
transmission via the internet by PBS and NPR. The schedule of rates and 
terms established in this section include the making of the 
reproductions described in 17 U.S.C. 118(c)(3).
    (b) Royalty rate. (1)(i) For uses described in paragraph (a) of 
this section of a musical work in a PBS-distributed program, the 
royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in that PBS-
distributed program:

------------------------------------------------------------------------
                                                               2023-2027
------------------------------------------------------------------------
(A) Feature..................................................    $121.07
(B) Concert feature (per minute).............................      36.36
(C) Background...............................................      61.19
(D) Theme:
  (1) Single program or first series program.................      61.19
  (2) Other series program...................................      24.84
------------------------------------------------------------------------

    (ii) For such uses other than in a PBS-distributed television 
program, the royalty fee shall be calculated by multiplying the 
following per-composition rates by the number of different compositions 
in that program:

------------------------------------------------------------------------
                                                               2023-2027
------------------------------------------------------------------------
(A) Feature..................................................     $10.01
(B) Concert feature (per minute).............................       2.63
(C) Background...............................................       4.35
(D) Theme:
  (1) Single program or first series program.................       4.35
  (2) Other series program...................................       1.73
------------------------------------------------------------------------

    (iii) In the event the work is first recorded other than in a PBS-
distributed program, and such program is subsequently distributed by 
PBS, an additional royalty payment shall be made equal to the 
difference between the rate specified in this section for other than a 
PBS-distributed program and the rate specified in this section for a 
PBS-distributed program.
    (2) For uses licensed under this section of a musical work in an 
NPR program, the royalty fees shall be calculated by multiplying the 
following per-composition rates by the number of different compositions 
in any NPR program distributed by NPR. For purposes of the schedule 
established in this section, ``National Public Radio'' programs include 
all programs produced in whole or in part by NPR, or by any NPR station 
or organization under contract with NPR.

------------------------------------------------------------------------
                                                               2023-2027
------------------------------------------------------------------------
(i) Feature..................................................     $13.11
(ii) Concert feature (per minute)............................      19.24
(iii) Background.............................................       6.56
(iv) Theme:
  (A) Single program or first series program.................       6.56
  (B) Other series program...................................       2.62
------------------------------------------------------------------------

    (3) For purposes of the schedule established in this section, a 
``concert feature'' shall be deemed to be the nondramatic presentation 
in a program of all or part of a symphony, concerto, or other serious 
work originally written for concert performance, or the nondramatic 
presentation in a program of portions of a serious work originally 
written for opera performance.
    (4) For such uses other than in an NPR-produced radio program:

[[Page 41833]]



------------------------------------------------------------------------
                                                               2023-2027
------------------------------------------------------------------------
(i) Feature..................................................       $.83
(ii) Feature (concert) (per half hour).......................       1.72
(iii) Background.............................................        .42
------------------------------------------------------------------------

    (5) The schedule of fees covers use for a period of three years 
following the first use. Succeeding use periods will require the 
following additional payment: Additional one-year period--25 percent of 
the initial three-year fee; second three-year period--50 percent of the 
initial three-year fee; each three-year fee thereafter--25 percent of 
the initial three-year fee; provided that a 100 percent additional 
payment prior to the expiration of the first three-year period will 
cover use during all subsequent use periods without limitation. Such 
succeeding uses which are subsequent to December 31, 2022, shall be 
subject to the schedule of royalty rates established in this section.
    (6) For each use licensed under this section pursuant to paragraphs 
(b)(1)(i) and (b)(2) of this section for transmission via the internet, 
the royalty fees shall include a pro-rata share of $2,000 per calendar 
year, which share shall be determined by calculating the aggregate 
amount of royalty fees earned during that calendar year and dividing 
the sum by the amount of royalty fees earned for each use.
    (c) Payment of royalty rates. The required royalty due under 
paragraphs (b)(1), (2), and (4) of this section shall be paid to each 
known copyright owner not later than July 31 of each calendar year for 
uses during the first six months of that calendar year and not later 
than January 31 for uses during the last six months of the preceding 
calendar year. The required royalty due under paragraph (b)(6) of this 
section for each calendar year of the statutory license term shall be 
paid to each known copyright owner not later than March 31 of each 
following year for PBS- or NPR-distributed uses via the internet during 
the preceding calendar year.
* * * * *
    (e) Filing of use reports with the Copyright Royalty Judges: 
deposit of cue sheets or summaries. PBS and its stations, NPR, or other 
television public broadcasting entity shall deposit with the Copyright 
Royalty Judges via online filing in eCRB one electronic copy of their 
standard music cue sheets or summaries of same listing the recording 
pursuant to the schedule established in this section of the musical 
works of copyright owners. Such cue sheets or summaries shall be 
deposited not later than July 31 of each calendar year for recordings 
during the first six months of the calendar year and not later than 
January 31 of each calendar year for recordings during the second six 
months of the preceding calendar year. PBS and NPR shall maintain at 
their offices copies of all standard music cue sheets from which such 
music use reports are prepared. Such music cue sheets shall be 
furnished to the Copyright Royalty Judges upon their request and also 
shall be available during regular business hours at the offices of PBS 
or NPR for examination by a copyright owner who believes a musical 
composition of such owner has been recorded pursuant to the schedule.


Sec.  381.8  [Amended]

0
7. In Sec.  381.8:
0
a. In paragraph (b)(1) introductory text, add the words ``not otherwise 
licensed by the copyright owner'' at the end of the paragraph;
0
b. In paragraphs (b)(1)(i) and (ii), in the table header, remove the 
year ``2013-2017'' and add in its place the year ``2023-2027'';
0
c. In paragraph (d)(1), add the text ``, upon request,'' after ``shall 
maintain and''; and
0
d. In paragraph (f)(1), remove the year ``2017'' and add in its place 
the year ``2027''.

0
8. Revise Sec.  381.10 to read as follows:


Sec.  381.10  Cost of living adjustment.

    (a) On or before December 1, 2023, the Copyright Royalty Judges 
shall publish in the Federal Register a notice of the change in the 
cost of living as determined by the Consumer Price Index (all 
consumers, all items) during the period from the most recent Index 
published prior to December 1, 2022, to the most recent Index published 
prior to December 1, 2023. On or before each December 1 thereafter the 
Copyright Royalty Judges shall publish a notice of the change in the 
cost of living during the period from the most recent index published 
prior to the previous notice to the most recent Index published prior 
to December 1 of that year.
    (b) On the same date of the notices published pursuant to paragraph 
(a) of this section, the Copyright Royalty Judges shall publish in the 
Federal Register a revised schedule of the rates for Sec.  381.5(c)(3) 
and (4), the rates to be charged for compositions in the repertory of 
SESAC and GMR, which shall adjust the royalty amounts established in a 
dollar amount according to the greater of:
    (1) The change in the cost of living determined as provided in 
paragraph (a) of this section; or
    (2) One-and-a-half percent (1.5%).
    (3) Such royalty rates shall be fixed at the nearest dollar.
    (c) The adjusted schedule for the rates for Sec.  381.5(c)(3) and 
(4) shall become effective thirty (30) days after publication in the 
Federal Register.

    Dated: June 9, 2023.
David P. Shaw,
Chief Copyright Royalty Judge.

David R. Strickler,
Copyright Royalty Judge.

Steve Ruwe,
Copyright Royalty Judge.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2023-13668 Filed 6-27-23; 8:45 am]
BILLING CODE 1410-72-P