Rates to Perform Musical Compositions in 2018-2022 Published for Noncommercial Broadcasters

Attention, noncommercial educational (NCE, a/k/a "public") broadcasters! If you have been wondering how much you'll have to pay to broadcast musical compositions this year (and beyond), wonder no more. The rates for 2018 through 2022 were published in the Federal Register on January 19.

For those new to the issue, these rates have been administered by a governmentally appointed decision maker for many decades. Congress has given that decision maker the power to determine those rates and terms for a five-year license term if broadcasters and copyright owners are unable to agree to rates on their own. Currently, that decision maker is a three-judge panel known as the "Copyright Royalty Judges" (i.e. "Judges").

It is important that you understand what the published rates do and do not cover (so that you know which other licenses you may need to use music in certain ways):

1. The rates do cover over-the-air broadcasting of musical compositions - i.e., the music and lyrics that make up a song - by NCE broadcasters.
2. The rates do not cover webcasting of musical compositions. NCE broadcasters are required to obtain additional licenses for that activity. (For stations affiliated with a college or university, however, this rate is usually folded into the so-called "campus licenses" offered by the performing rights organizations (PROs) such as ASCAP, BMI, and SESAC).
3. The rates do not cover public performances of sound recordings - i.e., specific recorded versions of a song. NCE broadcasters are required to pay additional, separate royalties to webcast sound recordings, typically under a governmentally established statutory license, with royalty collection and distribution administered by SoundExchange. NCE broadcasters are not required to pay royalties to broadcast sound recordings over the air - that activity has long been outside the scope of the exclusive rights that are recognized under U.S. copyright law.

With that background out of way, let's get to the numbers themselves. We'll focus on NCE broadcasters not eligible to receive funding from the Corporation for Public Broadcasting ("CPB"). If you are a CPB-affiliated broadcaster, contact the CPB directly for more information about your rates - they were the subject of a confidential settlement agreement and have not been publicly disclosed.

For NCE broadcasters not eligible to receive funding from the CPB, there are no big surprises - the rates simply inch up from the current royalties. Non-CPB NCE broadcasters fall into two major rate categories: those affiliated with an accredited university or other educational institution and those that are not.

If you are a non-CPB NCE broadcaster affiliated with a university, college, or other educational institution, your 2018 rates to each of ASCAP and BMI will range from $352 to $908 depending on your student enrollment, and they will increase annually to a range of $380-$983 apiece in 2022. Your 2018 SESAC rate is $155, adjusted annually by the greater of 1.5% or a specified Consumer Price Index (CPI) cost of living adjustment. And your rate to broadcast musical compositions not affiliated with ASCAP, BMI, or SESAC - including all works in the repertory of new PRO Global Music Rights (GMR) - is $1. Your total 2018 royalty to broadcast musical compositions ranges from $860 to $1,972 (depending on your student enrollment).

If you are a non-CPB NCE broadcaster not affiliated with a university, college, or other educational institution and 20% or more of your programming includes music, your 2018 rates to each of ASCAP and BMI will range from $697 to $6,214 depending on your market size (see us for more details). These rates will increase by about 2% annually to a range of $754-$6,726 apiece in 2022. Your 2018 SESAC rate ranges from $152-$1,268, increasing annually to a range of $164-$1,371 in 2022. Like the rate applicable to educationally affiliated NCE stations, your rate to broadcast musical compositions not affiliated with ASCAP, BMI, or SESAC - including all works in the repertory of GMR - is $1. Your total 2018 royalty to broadcast musical compositions ranges from $1,547 to $13,697 (again, this depends on your market size).

If you are a non-CPB NCE broadcaster that broadcasts predominantly talk-oriented programming and are in a larger market, your rates may be significantly lower. Please call us if you would like to hear more.

You may wonder why the rate for music represented by GMR - dueling against the Radio Music License Committee who, in case you hadn't noticed, has created quite a splash in the headlines in recent months - is no more than $1 per year compared with much higher ASCAP, BMI, and SESAC rates. The answer is simple.

GMR did not seek to participate in the proceeding before the Judges to set noncommercial broadcasting rates for music works. So it lost its ability to negotiate, or object to, the rates that were set in that proceeding. So, at least for the next five years, noncommercial radio stations do not need to worry about negotiating over-the-air broadcast rates with GMR. On the other hand, if you stream, GMR may still approach you regarding a license as streaming is not covered by these rates.

Finally, the proceeding also set rates for broadcasters that include musical compositions in broadcasting programs and distribute those programs to the public.

Note that if you are a non-CPB NCE broadcaster, your 2018 payments are due to ASCAP, BMI, and SESAC by January 31. If you are affiliated with CPB, please contact them directly for more information.

Still got questions? Please feel to email me at ablin@fhhlaw.com or call me at 703-812-0443.

Editor's note: Ms. Ablin represented the National Religious Broadcasters Noncommercial Music License Committee in this proceeding.