Internet Radio Fairness Act would spur innovation

The following first appeared as a Guest Post I wrote as founder/CEO of AccuRadio and a member of the Small Webcaster Alliance. It appeared on Tuesday, the eve of yesterday's subcommittee hearing.

As an Internet radio broadcaster and member of the Small Webcaster Alliance, I've been involved in the issue of copyright royalty rates for Internet radio for many years. And I've seen vividly that the current royalty rate system threatens to strangle the life out of an industry that is providing both choices for consumers and opportunities for musicians.

Both in 2002 and again in 2009, after the U.S. Copyright Office published rate-setting rulings that would have bankrupted all or most Internet radio providers, Congress had to intervene and ask record labels to negotiate a more-workable rate with webcasters.

The resulting rates are still wildly higher than those paid by other forms of digital radio (i.e., satellite radio and cable radio) and have been barely survivable for most webcasters - with many forced to exit the business entirely. Meanwhile, other companies who could spur innovation in Internet radio remain on the sidelines due to concerns over unsustainable royalty rates.

The problem with the current "willing buyer/willing seller" Internet radio standard for rate-setting is that while it is intended to lead to a market-based rate, the fact that the large record labels negotiate as a group means that a true market rate has never actually been determined.

The result has been a nightmare for our industry ever since. Copyright Office decisions have forced webcasters - the ones that were able to remain in business - to pay unreasonably high royalty rates, hindering innovation and growth.

Last year, for example, Pandora paid more than 50% of its revenue in royalty payments and as a result, as seen in their SEC filings, the company has yet to make a profit. And if the leading firm in an industry has trouble breaking even, you may reasonably (and correctly) assume that most other webcasters are struggling even more. (Note that if my Small Webcaster colleagues and I had to pay royalties at the rates determined by the Copyright Royalty Board, most of us would have to pay more than 100% of our revenues in royalties!)

That's why we support the Internet Radio Fairness Act (IRFA). It doesn't set or change royalty rates for Internet radio - it simply modernizes the rate-setting structure in a way that will help create a more viable digital music business for everyone.

To do so, the IRFA would move webcasting to the more-traditional "801(b)" rate-setting standard, which balances the interests of the copyright owners, the copyright users, and the general public. It has been used successfully for decades in most rate-setting determinations, including for other forms of digital radio like satellite radio, cable radio, and even by record labels in cases where they are the copyright users.

The "801(b)" standard is a set of four criteria that Congress typically tells the Copyright Office to use in determining a royalty rate: (1) Maximize the availability of creative works to the public. (2) Insure a fair return for copyright owners and a fair income for copyright users. (3) Reflect relative roles of capital investment, cost, and risk. (4) Minimize the disruptive impact on the industries involved.

The current confusing mix of royalty-rate setting standards for digital radio is result of piecemeal legislation enacted as each new technology was invented. The result is a system significantly out-of-sync with the realities of the 21st century marketplace. It substantially hinders the growth of Internet radio businesses and platforms - and thus hurts consumers, musicians, and innovators.

For the music industry particularly, I believe that a thriving Internet radio industry could be a godsend. Webcasters like Pandora, AccuRadio, and others are already giving significant and valuable amounts of airplay to dozens of genres of music (ranging from bluegrass to EDM), hundreds of independent record labels, and tens of thousands of artists that otherwise would be unable to use the power of radio exposure to build their fan bases.

Passage of the Internet Radio Fairness Act will foster innovation in the industry. It will create jobs, benefit artists by giving them more opportunities to be paid for their work, and benefit consumers by giving them more listening choices.

It's a piece of legislation that every innovator in the music industry should support.

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