BY KURT HANSON
In a new twist to the ongoing battle regarding Internet radio royalty rates, the Librarian of Congress filed a motion with the U.S. Court of Appeals yesterday, arguing that webcasters who did not participate in the CARP are not "an aggrieved party who would be bound by the determination" and thus should not be allowed to file an appeal in court against his decision!

Librarian James Billington's argument is based on a reading of the word "party" in that phrase "an aggrieved party who would be bound by the determination" to mean a party to the CARP proceedings rather than a more straightforward layman's read (i.e., a synonym for "entity").

This is despite the fact that, to participate in the CARP process, a webcaster would have had to commit to paying an unknown portion of the million-dollar-plus cost of the proceedings "in such manner and proportion as the arbitration panels shall direct."

Thus, a webcaster without major financial resources could neither (A) afford to participate in the CARP proceedings nor, according now to Billington (pictured), can it (B) subsequently object to the decision in court!

The Librarian's motion reads, "While this language of Section 802(g) has yet to be specifically construed by this Court, in other contests, such a restriction of judicial review to 'parties' has been uniformly construed by this Court and other courts of appeals to mean that the person seeking a judicial review must have had a more than de minimus participation in the proceedings under review."

A footnote argues that the phrase in question should have used the word "person" if it was meant to include entities that were not part of the CARP proceedings.

The motion is specifically written to ask the court to throw out the petition filed jointly by the Intercollegiate Broadcasting System and the Harvard Radio Broadcasting Co.

It is unclear how the principle being argued by Billington would affect the petition filed jointly by 19 smaller commercial webcasters that included Live365.com, Radio Free Virgin, Radio Paradise, 3WK, WolfFM, Ultimate80s, Digitally Imported, Chatmasters, Internet Radio Inc. (ChoiceRadio), INETprogramming Inc., SomaFM, WhereveRadio, All Bass Radio, Internet Radio Hawaii, Classical Detroit, flareSOUND, TheRockFM.com, and HawaiianHits.com (see RAIN story here), as Live365.com was in fact a party to the CARP proceedings.

...

... It's mind-boggling to imagine that if webcasters wanted to have any participation in the royalty rate setting process, Billington is saying they would have had to commit in advance to pay an unspecified share of an unspecified CARP proceedings bill — which they might have reasonably imagined as perhaps as much as 10% of a $1,000,000 bill! That would have been an impossible commitment for most webcasters! And it is even more astounding to contemplate the possibility that webcasters who are bound by the Librarian's royalty rate determination are not "aggrieved parties who would be bound by the determination." This process stinks. -- KH ...

BY PAUL MALONEY
RealNetworks yesterday launched a new version of their streaming media player which is designed to be compatible with streaming technologies of its competitors. And to make use of this capability, they've introduced an Internet radio directory of thousands of stations which stream in a variety of formats.

Freedom, CA's KPIG-FM, the eclectic rock station heralded as a streaming pioneer among broadcasters and mourned as a tragic victim of the webcasting royalty crisis, is slated to return to streaming later this week as a feature of the new RealNetworks's premium radio service.

Real's new player and radio service
RealNetworks yesterday launched their RealOne v. 2.0 media player, which features the playback capability of every major digital media format, including MP3, Windows Media, QuickTime MPEG-4, and over 50 other digital streaming formats.

Coinciding with the release of the new player is a new content service called RadioPass, scheduled to launch later this week. In addition to the network of
over 2,000 of broadcast and Internet-only music and talk radio streams available now,
RealOne RadioPass will be a subscription-based service offering 50 commercial-free (programmed by RadioAmp) music channels, and the ability to hear nationally syndicated talk shows "on-demand."

Real rolls out the features for subscribers
Real's RadioPass will be available for a monthly subscription fee of $5.95. Subscribers to the company's "SuperPass" program can get some of the premium stations at 32 kbps (the full RadioPass subscription streams at 64 kbps), but may upgrade to the full radio service for $3.00 per month extra.

Other features of the new RealOne player include CD burning (with speeds up to "52x"), DVD playback with "full-screen theater mode," and the "TurboPlay," enhancement, which is designed for quicker playback of digital media.



The return of KPIG
One of the featured premium channels will be the KPIG stream, according to RealNetworks. The station, the first commercial broadcaster in the nation to stream, halted their Internet service last month (see RAIN coverage here), citing an inability to afford the royalty fees that will be owed to the owners of sound recording copyrights.

(Since then, the station has streamed a mix of live recordings made at its studio (that stream is available now through the RealOne player as well).)

The loss of KPIG -- considered a prime example of the vibrancy of Internet radio -- resonated both throughout the industry and with Net radio listeners. Since July 19 in fact, the story of the silencing of the stream has provided many a columnist with an opening paragraph for articles on the topic of webcast royalties.

...

... It's certainly great news for Net radio fans that the beloved KPIG will be back soon. What will be interesting to see is what this means for the long-term viability of the KPIG stream. Keep in mind that the KPIG broadcast stream will be part of Real's subscription service, which means it is unaffected by the compulsory license royalty rates (which are for "non-subscription" services only). However, they will be subject to royalties -- it's just the rates for Internet subscription services like this are yet to be determined. This means Real and KPIG have the option of negotiating with the RIAA for a rate (unless they have a deal already) and avoiding government mucking altogether. We'll be watching to see whether the subscription fees will be enough to support these services' royalty obligations. Anyway, even the free features of the new RadioPass are great. The interface is attractive and useful, with features very reminiscent of Windows Media's radio guide. It's easy to sort stations by genre, geographic origin, language, and stream quality. There's a search capability, a selection of "Editor's picks" featured stations, and a "Now Playing" window which allows the user to see the current song title in the premium channels even when they're listening to another station. Finally, the player offers a pull-down menu of talk shows currently in progress, and user customized "preset" functionality. -- PM ...

From the News-Star of Monroe, LA: "Fans of Internet radio could be looking at a bleak landscape by the end of the year. A new royalty rate for Webcasters has already caused several stations to end their Internet broadcasts, and many more may follow when the bill comes due in October.

"Locally, public radio station KEDM and commercial radio group The Radio People have already pulled their streaming audio, and other stations may follow -- including the University of Louisiana at Monroe's KXUL.

"'It will be a much smaller universe than what we see now, and we're at a point where we should be seeing growth,' said KXUL general manager Joel Willer...

"Many Internet radio fans have expressed the opinion that Webcasts only help the recording industry and wonder why the RIAA is seeking to curb them. Willer [pictured left] said everyone has a theory, but most come down to one thing -- control of the new medium.

"'In the case of the Internet, there's nothing stopping record companies themselves from starting their own services,' he said. 'Because of that, they would be in a better position if they could manipulate it so there wouldn't be a competition for ears on the Internet...'

"Willer himself has traveled to Washington on a couple of occasions for discussions of the issue. While there, he also met with representatives of the RIAA. He said they seemed open to negotiations, but tentative.

"'I approached them purely trying to come up with an agreement to work with college stations,' Willer said. 'They were reluctant to go far in a conversation with us until they have a deal with commercial Webcasters. They didn't want to set a precedent.'"

Read this entire article online here.