Webcaster Wake Up Call: The (Not Entirely) Shutdown Update

This is the promised follow up to our December 14, 2018 post regarding the compliance obligations for 2019 under the statutory licenses found in Sections 112 and 114 of the Copyright Act (the "statutory licenses") allowing webcasters to make public performances sound recordings via digital audio transmission and to make related temporary copies of those recordings. And let's get this right out of the way: no, the government shutdown does not extend the January 31 deadline for filing Annual Minimum Fee Statements of Account, making the initial $500 per channel annual minimum fee payment and, if applicable, electing to pay the $100 "proxy fee" in lieu of filing Reports of Use that is available to eligible Noncommercial Educational Webcasters.

That's one week away. So it's time to stop procrastinating and get on it, especially if (1) you are not entirely familiar with the SoundExchange Licensee Direct online filing portal or (2) have changes from 2018 (in which case you may need to contact SoundExchange to notify that entity of the changes prior to making your initial 2019 filings and payments.

That's not the end of the story, of course. As we also noted last month, the January 31 deadline is only the first of many for most webcasters. With certain exceptions, all webcasters must:

• File an Annual Minimum Fee Statement of Account form and pay the associated $500 per channel minimum fee on or before January 31.

• Pay any additional usage fees and file Monthly Statements of Account associated with those payments no later than 45 days after the end of the relevant month or quarter.

• File Reports of Use, also no later than 45 days after the end of the relevant month or quarter.

Those of you who were paying attention last month may have noticed that we raised another upcoming webcasting deadline: the filing of Petitions To Participate in the Copyright Royalty Board ("CRB") proceeding titled "Determination of Royalty Rates and Terms for Ephemeral Recording and Digital Performance of Sound Recordings" (but commonly referred to as "Web V"). That proceeding commenced today and will set the rates and terms for the Section 112 and 114 statutory licenses for 2021-2026. Again, most broadcasters historically have been represented by organizations such as the National Association of Broadcasters, the National Religious Broadcasters Noncommercial Music License Committee, National Public Radio, College Broadcasters, Inc., and Intercollegiate Broadcasting System. Webcasters who want to guarantee the right to have their individual say, however, must timely file a Petition to Participate, or they will be shut out.

The government shutdown tried its best to derail Web V but it seems things are back on track. The CRB initially posted this update on its website, which indicated a delay in commencing the Web V proceeding. But this morning, the CRB announced the commencement of Web V. Although the governing statute (17 U.S.C. section 803(b)(1)(A)(ii)) provides that petitions to participate are due "by no later than 30 days after publication of the notice of commencement of a proceeding," the CRB set a deadline much shorter than that-February 4, 2019, which is less than two weeks away. Filing requirements, including the accepted manners of delivery and payment of the required $150 filing fee, can be found in the Federal Register notice. If you are interested at all in having a voice in the webcasting rates that are set for the five-year term of 2021-2026, you should file a petition in advance of the deadline.