We write as representatives of the management and staff of WXYC-FM, a
student-operated and student-funded radio station on the campus of the
University of North Carolina at Chapel Hill. We are licensed by the Federal
Communications Commission as a non-commercial, educational station. This month,
March 2002, we are marking our 25th anniversary of continuous licensed
operation.
In the summer of 1994, WXYC began simulcasting its broadcast signal on the World
Wide Web. We believe this to have been the first-ever "Webcasting" by
an officially-licensed radio station in the world. The technological means by
which we webcast are provided by Ibiblio, a university-affiliated non-profit
entity dedicated to providing free access to a wide selection of online sources.
Our Web simulcasts are listened to by a small number of persons around the
world, including UNC-CH alumni and other former Chapel Hill residents, as well
as by current local residents who are outside the limited reach of our 400 watt
broadcast signal. Compared to our regular broadcast listeners, we believe our
Internet listeners to make up a very small portion of our listening audience,
but we do consider them an important part.
Our ability to continue to offer our broadcast signal to Internet listeners is
greatly threatened by recent laws and regulations that are close to taking
effect. In particular, we are concerned about the recent rules proposed by the
Copyright Arbitration and Royalty Panel regarding royalty payments for Internet
broadcasts and the reporting requirements they would entail. We do not receive
any revenue from either our on-air broadcast nor our Webcast. Given this, we do
not feel that the premises on which CARP based its rules are applicable to us
and other stations like us. Our opposition to this legislation centers on three
problems: the royalty fees, the extent and nature of the reporting requirements,
and the content restrictions imposed on Webcast programming.
Although we acknowledge copyright
holders’ interest in sound recording royalties, there is no historical
precedent for radio stations being required to pay such royalties. Because we
merely simulcast our on-air programming on the Web, we do not feel that our
Webcast should be treated differently from our on-air signal. We understand that
copyright holders are concerned that Webcasts make their material digitally
available in a way that affects the market for their work, but the structure of
our programming and Webcast is such that this material is not likely to be
appropriated from our audio stream. All our songs are segued into one another,
and our programming is greater than the sum of its parts. Persons wanting to
download specific songs for their future personal use would find it difficult to
use our station to do that, because songs do not stand alone within our
programming and we do not announce specific songs ahead of time. Nor do we offer
an online archive of past programming -- the only online audio available is a
live simulcast of our regular broadcast programming. Moreover, we often receive
calls and e-mails from listeners wishing to obtain information on songs we
played so the listener can find the recording in stores.
And because we do not generate
revenue from the broadcast of copyrighted materials, we are not in a position to
share revenue with the copyright holder in the same way commercial radio
stations are. Our annual budget, which comes directly from the pockets of the
university’s students and has remained fairly constant for two decades, has
never exceeded $20,000. Although CARP’s proposed royalty rates do differ for
commercial and non-commercial stations, we do not feel that fees for
non-commercial stations should be calculated on a per-song, per-listener basis
at all. Rather, fees should be based on the model of publishing royalties that
radio stations traditionally pay.
In addition, the reporting
requirements that the Digital Millennium Copyright Act imposes on Internet
stations are impossibly burdensome for us. The data collection requirements
assume a standardization across and within stations that isn’t reflected the
reality of our operations. Our station library includes of tens of thousands of
vinyl records (LPs), most of which contain no UPC code and many of which have
never been issued on compact disc and are out of print. Our format is predicated
on artistic, free-form decision-making by the on-air DJ, and DJs are not limited
in the number of such (rare) recordings they may play during their shows.
Stations such as ours, in playing out of print recordings, have helped to spur a
market for reissued material since the compact disc was invented, thus
benefiting the holders of sound recording copyrights.
The data collection requirements
seem to assume predetermined playlists that draw from a relatively small catalog
of songs. The sequence of the songs we play, however, is decided on the spur of
the moment based on the overall flow of the program. Our DJs approach their
craft in a non-mechanical way, and this DJ freedom is the essential part of our
format. Because they are constantly making decisions about what to play next, it
would be impossible for our DJs to gather the required information about each
song during their shifts.
The requirements also seem to assume that most Internet broadcasts should use software and hardware that makes data collection feasible. Such technology is prohibitively expensive for our station, given our limited budget. Not only this, but many of the recordings we play are not in formats that are compatible with such software. Our station is run by student volunteers and we do not have the manpower to convert our immense library to a digitized format. In addition, the legislation requires us to provide information about our online listeners that we feel is a violation of their privacy and, moreover, is currently impossible for us to obtain.
Finally, the DMCA’s restrictions on the number of songs by the same artist
allowed to be Webcast within a specified time would affect some of our most
popular programming. For example, the Thursday Night Feature, a weekly
three-hour thematic show, frequently spotlights the work of a single artist.
WXYC has communicated to the
Copyright Arbitration Royalty Panel and the Librarian of Congress that the DMCA,
as it stands, imposes untenable standards and restrictions on non-commercial
educational radio stations that simulcast their signals over the Internet. We
have asked them to consider our situation and take appropriate action within the
parameters of their responsibilities.