US Copyright Office: national-public-radio-reply

8/14/2019 US Copyright Office: national-public-radio-reply

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In the Matter ofSection 109 Report to Congress Docket No. 2007-1

Before theU.S. COPYR IGHT OFFICELIBRARY OF CONGRESSWashington, DC

REPLY COMMENTS OFNATIONAL PUBL IC RADIO, INC.

Pursuant to the N otice of Inquiry in the above-captioned matter, National Public Radio,Inc. ("NPR") hereby subm its its Reply C omm ents responding to the initial Comm ents submittedin this proceeding and urging the retention of the cable compulsory license, 17 U.S.C. 111.'

As N PR exp lained in its initial Comments, NP R and its M ember stations have asignificant interest in this proceeding because many N PR M ember stations have been andcontinue to be retransmitted by local cable television systems pursuant to the Section 111compulsory license. 2 The cable compu lsory licensing facilitates the distribution of pub licradio's noncommercial educational programming to the widest possible audience, while alsoprotecting the local nature of public radio and the valuable rights of NP R and its Members intheir programming. 3 In reexamining the cable and satellite compulsory licenses, we also urged

Section 109 Report to Congress, Notice of Inquiry, Docket N o. 2007, 72 Fed. Reg. 1903 9(Apr. 16, 2007) ("Notice of Inquiry").2See Comments of National Public Radio, Inc., at 2 [hereinafter "NPR Comments"].3Id. at 8-9.


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the Co pyright Office not to pursue the consolidation of the satellite and cable compulsorylicenses, at least with respect to the retransmission of public radio stations, given fundamentaldifferences between the cable and direct broadcast satellite ("D BS") platforms and the p otentialharm to public radio. 4

Based on the Com ments filed in this proceeding, the record supports retaining the twocompulsory licenses as distinct licenses, with disagreement largely confined to some of thespecific terms and conditions of the licenses. Among the users of the compulsory licensees, boththe National Cable Television Association and the Am erican Cable Association urged theretention of the Section 111 license, 5 and D irecTV recommended retention of the Section 119license. 6 Among copyright owners, many recognized the practical necessity of compulsorylicensing. 7 Even am ong those opposed to or skep tical of compulsory licensing, there was nosupport for consolidating the Section 111 and Section 119 licenses. 8

Regarding the retransmission of radio station signals, there was a general recognition ofthe value associated with that aspect of the Section 111 license. Indeed, the NationalProgramm ing Service characterized the retransmission of radio stations under Section 111 as4d. at 5-7.5ritten Statement and Com ments of the National Cable & Telecomm unicationsAssociation at 25-28 ; Comm ents of the American Cable Association at 3 -4.6 Com ments of DirecTV, Inc. at 12-13 . Echostar, the other principal DBS provider, urgedthe retention of com pulsory licensing, but recommended the creation of a new, com prehensivelicense to govern all multichannel video programming distributors. Com ments of EchostarSatellite L.L.C. at 2-4.7ee Com ments of the National Association of Broadcasters at 5-8; Joint Com ments of thePublic Television Coalition at 2-6; C omm ents of Devotional Claimants at 2.8ee Com ments of Joint Sports Claimants at 9-11. See also Program Suppliers' Commentsat 21 ("Program Suppliers also oppose any effort to create a uniform license.").

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"giv[ing] the cable industry a huge competitive advantage in all but the most rural areas ofAmerica." 9 EchoStar also expressed interest in retransmitting terrestrial radio stations throughcompulsory licensing. 10 NPR appreciates the value ascribed to the retransmission of radiostation signals, but for the reasons set forth in NPR 's initial Comm ents, we remain concerned thatthe national retransmission of radio station signals could undermine the important principle oflocalism that underlies the system of broadcasting in the United States. 1 1

The only suggestion that the Section 111 license exclude radio retransmissions consistedof a footnote in joint Comm ents submitted by the performing rights organizations, ASCAP,SESAC, and B MI (the "PROs"). 12 In arguing for the ex clusion of radio retransmissions from theSection 111 license, the PROs claimed that, "over the past thirty years, there has been evidencethat few cable systems m ake such radio signal retransmission,. 13 The PROS offered no evidenceto support this claim, however, and N PR's docum ented experience is to the contrary. Since firstestablishing its share of the cable royalties more than twenty-five years ago, 14 NPR has

9omm ents of National Programm ing Service, LLC. at 6. See also id. at 13 (urging theestablishment of a satellite carrier statutory license for the retransmission of terrestrial radiostation signals).1 0 Testimony of Eric Sahl, Senior Vice P resident, Programm ing, Echostar, U.S. CopyrightOffice, Hearing: Section 109 of the Satellite Home Viewer Act Extension and ReauthorizationAct of 2004, at 170:16-171:1 (July 23, 2007 ).1 1 See NPR Comments at 6-7.12omm ents of the American Society of Composers, Authors and Publishers, BroadcastMusic, Inc. and SESAC, Inc. at 12 n.4 [hereinafter "PRO Com ments"].13d.14 1979 Cable Royalty Distribution Determ ination, Docket No. C RT 8 0-4, 47 Fed. Reg.9879 (1982).

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submitted substantial evidence of cable retransmission of distant radio stations each year as partof the joint claim NPR files on behalf of itself and participating Member station licensees. Thatevidence demonstrates a strong desire among cable subscribers to receive NPR and N PRMem ber station programming via a cable retransmission service.

If the PRO s real point is that smaller claimants should be excluded from the Section 111distribution process, the Copyright Roy alty Board is the appropriate venue for deciding how thecable royalties should be divided and w hether to exclude small claims, such as N PR's or eventhat of the PROs. 15 W e fail to see how Congress wou ld further the public interest by

maintaining the Section 111 license w hile excluding radio cable retransmissions.The second stated reason for excluding cable radio retransmissions from the Section 111

license is the claim that "negotiating licenses in the m arket is not burdensome and can be easilyaccomplished." 16 If the PROs' first claim is unfounded , the second defies reason. The PROs c itetheir negotiations with national cable audio services and satellite digital audio services("SDA RS") as exam ples of free market licensing, but those licenses are not comparable to eitherthe Section 111 compulsory license or a freely negotiated license. The licenses between thePRO s and the S DA RS and cable audio services involve national audio services, largelydominated by musical channels, and music performing rights collectives, the two largest ofwhich have long operated pursuant to consent decrees requiring the U.S. District Court for theSouthern District of New York to act as a "rate court' and otherwise referee disputes regardingthe decrees. 17

15See 17 U.S.C. 801(a)(3).16 PRO C omm ents at 12 n.417See United States v. ASCAP, 1950-53 Trade Cas. (CCH) P62,595, 63,750 (S.D.N.Y.

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In contrast, if radio station retransmissions were excluded from the Section 111 license,individual local public radio stations, largely broadcasting news and information programming,would have to negotiate with individual cable operators across the country, after having firstnavigated a complex web of copyright interests to obtain the necessary rights. The news,cultural, and public affairs programming of NPR, other public radio producers, and public radiostations involves material from a variety of rights holders, including independent producers,freelance journalists, and individual owners of rights in dramatic and non-dramatic literaryworks and dramatic mu sical works. The category of "independent producers" alone describeseverything from well-known public radio programming series, such as Car Talk and Fresh A ir,to stand-alone radio documentaries, to discrete program elements in larger program series, suchas the Marketplace Morning Report and the Writer's Almanac, which m any NP R stationsbroadcast inside of N PR's Morning Edition.

As a result, and as we explained in our initial Comm ents, excluding radio retransmissionsfrom the Section 111 license, would likely eliminate the cable retransmission of public radiostations due to the administrative and financial burdens of direct licensing. 18 Such an outcomemay serve the PR Os' pecuniary interest in excluding a traditional cable copyright royaltyrecipient from future cable royalty distributions, but it would not serve the public interest.Accordingly, we urge the Copyright Office to recomm end the continuation of the Section 111cable license and the continued inclusion of terrestrial radio broadcast transmissions.

1950) (am ending decree to provide for the rate court); United States v. B roadcast Music, Inc.,1994 U.S. Dist. LEXIS 21476, 1996-1 Trade Cas. (CCH ) P71,378, N o. 64- CV-378 7 (S.D.N.Y.1994)) (granting motion adding rate court provision to the BM I consent decree).18PR Comm ents at 8.

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CONCLUSIONFor the foregoing reasons, NPR urges the C opyright Office to recommend the retention

of the Section 111 cable com pulsory license, distinct from the Section 119 com pulsory license.Respectfully submitted,NATIONAL PUBLIC RADIO, INC.

A. JacksonVice President for Legal AffairsGeneral Counsel and SecretaryDana Davis RehmSenior Vice PresidentStrategy & PartnershipsMichael RiksenVice President for Government R elationsGregory A. LewisAssociate General Counsel

63 5 Massachusetts Ave., NWWashington, DC 20001-3753(202) 513-2040

October 1, 2007

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US Copyright Office: national-public-radio-reply

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