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WXYC 89.3 FM
Chapel Hill, North Carolina

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WXYC Simulcast - SOS


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. We are also asking Congressional representatives to support changes to the Music Online Competition Act (HR 2724) or other legislative means of mitigating the effects of the DMCA and CARP's proposed rules.