05-23639. Digital Performance Right in Sound Recordings and Ephemeral Recordings for a New Subscription Service

AGENCY:

Copyright Royalty Board, Library of Congress.

ACTION:

Notice announcing commencement of proceeding with request for Petitions to Participate.

SUMMARY:

The Copyright Royalty Board of the Library of Congress is announcing the commencement of a proceeding to determine the reasonable rates and terms for the transmission and ephemeral recording statutory licenses that would apply to a new type of service. This new type of subscription service performs sound recordings on digital audio channels programmed by the licensee for transmission by a satellite television distribution service to its residential customers, where the audio channels are bundled with television channels as part of a “basic” package of service and not for a separate fee. The Board is also announcing the date by which a party who wishes to participate in the new rate proceeding must file its Petition to Participate and the accompanying $150 filing fee.

DATES:

Petitions to Participate and the filing fee are due no later than January 4, 2006.

ADDRESSES:

If hand delivered by a private party, an original and five copies of a Petition to Participate along with the $150 filing fee should be brought to Room LM-401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered by a commercial carrier, an original and five copies of a Petition to Participate along with the $150 filing fee must be delivered to the Congressional Courier Acceptance Site located at Second and D Street, NE., Monday through Friday between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Copyright Royalty Board, Library of Congress, Room 403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of a Petition to Participate along with the $150 filing fee should be addressed to: Copyright Royalty Board, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Petitions to Participate and the $150 filing fee may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT:

William J. Roberts, Jr., Senior Attorney, or Abioye E. Oyewole, CRB Program Specialist. Telephone: [phone]. Telefax: [phone].

SUPPLEMENTARY INFORMATION:

Background

On October 31, 2005, the Copyright Royalty Board (“Board”) from XM Satellite Radio, Inc. (“XM”), a Petition to Initiate and Schedule Proceeding for a New Type of Subscription Service pursuant to 17 U.S.C. 114(f)(2)(C). As characterized in the Petition, “This new type of subscription service performs sound recordings on digital audio channels programmed by the licensee for transmission by a satellite television distribution service to its residential customers, where the audio channels are bundled with television channels as part of a ‘basic’ package of service and not for a separate fee.” XM Petition at 1.

As explained in the Petition, commencing on or about November 15, 2005, DirecTV, Inc., (“DirecTV”), a provider of television service to residential consumers by satellite, would begin to include a number of music and non-music audio channels, supplied by XM in its program lineup. The XM channels will be “a part of the DirecTV basic package of service, without requiring payment of a separate subscription fee.” XM Petition at 2. This new service would utilize the statutory copyright licenses provided in 17 U.S.C. 114(d)(2) (for performance by means of subscription digital audio transmission) and 17 U.S.C. 112(e) (for ephemeral recordings solely for use in those transmissions). This Notice is issued, pursuant to 17 U.S.C. 804(b)(3)(C)(ii), to initiate the proceeding to determine the rates and terms for those licenses.

Petitions To Participate

Any party who wishes to participate in this proceeding must submit to the Board a Petition to Participate by no later than January 4, 2006. 17 U.S.C. 803(b)(1)(B). The single or joint Petition to Participate must provide all of the information required by 37 CFR 351.1(b). See, 70 FR 30906-7 (May 31, 2005). The Petition to Participate must be accompanied by a $150 filing fee. Cash will not be accepted; therefore, parties must pay the filing fee with a check or money order made payable to “Copyright Royalty Board.” If payment of the filing fee in the form of a check is returned for lack of sufficient funds, the corresponding Petition to Participate will be dismissed.

Dated: November 29, 2005.

Bruce G. Forrest,

Interim Chief Copyright Royalty Judge.