Vol. 142, No. 22 — May 31, 2008

COPYRIGHT BOARD

FILE: Public Performance of Sound Recordings

Statement of Proposed Royalties to Be Collected for the Performance in Public or the Communication to the Public by Telecommunication, in Canada, of Published Sound Recordings Embodying Musical Works and Performers’ Performances of Such Works

In accordance with subsection 67.1(5) of the Copyright Act, the Copyright Board hereby publishes the statement of proposed royalties filed by the Neighbouring Rights Collective of Canada (NRCC) on March 28, 2008, with respect to royalties it proposes to collect, effective January 1, 2009, for the performance in public or the communication to the public by telecommunication, in Canada, of published sound recordings embodying musical works and performers’ performances of such works.

In accordance with the provisions of the same subsection, the Board hereby gives notice that all prospective users or their representatives who wish to object to the proposed tariffs may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than July 30, 2008.

Ottawa, May 31, 2008

8. Adjustments

Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due.

9. Interest on Late Payments

Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily, at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

10. Addresses for Notices, etc.

10.1 Anything addressed to NRCC shall be sent to 1235 Bay Street, Suite 910, Toronto, Ontario M5R 3K4, email: radio@nrdv. ca, fax number 416-962-7797, or to any other address or fax number of which the station has been notified in writing.

10.2 Anything addressed to a station shall be sent to the last address and fax number provided by that station to NRCC in writing.

11. Delivery of Notices and Payments

11.1 A notice may be delivered by hand, by postage paid mail, by fax or by email.

11.2 A payment must be delivered by hand or by postage paid mail.

11.3 All notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed.

11.4 All notices sent by fax or email shall be presumed to have been received the day they were transmitted.

B. Non-Commercial Radio Other than the Canadian Broadcasting Corporation

Note (This note is not part of the proposed tariff.)

Subsection 68.1(1) of the Copyright Act provides that, notwithstanding the tariffs approved by the Board, community systems shall pay royalties of $100 in respect of each year for the communication to the public by telecommunication of performers’ performances of musical works, or of sound recordings embodying such performers’ performances. Pursuant to this provision, NRCC recognizes that, notwithstanding this tariff filed with respect to non-profit and not-for-profit radio stations, community systems are required to pay only $100 in respect of each year.

1. Short Title

This tariff may be cited as the NRCC Non-Commercial Radio Tariff, 2009-2011.

2. Definitions

In this tariff,

“non-commercial radio station” means any AM or FM radio station other than a Canadian Broadcasting Corporation radio station, licensed under the Broadcasting Act, S.C. 1991, c. 11, by the Canadian Radio-television and Telecommunications Commission as a station owned or operated by a not-for-profit corporation, whether or not any part of its gross operating costs is funded by advertising revenues, including any campus station, community station or native station that is owned or operated on a not-for-profit basis, or any AM or FM radio station owned or operated by a similar corporation, whether or not this corporation holds a license from the Canadian Radio-television and Telecommunications Commission; (« station de radio non commerciale »)

“non-commercial low-use station” means a non-commercial radio station that (a) broadcasts published sound recordings embodying musical works and performers’ performances of musical works for less than 20 per cent of its total broadcast time during the year for which the payment is being made, and (b) keeps and makes available to NRCC complete recordings of its last 30 broadcast days. (« station non commerciale à faible utilisation »)

3. Application

3.1 This tariff sets the royalties to be paid to NRCC annually by non-commercial radio stations as equitable remuneration pursuant to section 19 of the Copyright Act for the communication to the public by telecommunication, at any time and as often as desired, in the years 2009 to 2011, of published sound recordings of musical works and of performers’ performances of musical works embodied in published sound recordings, by over-the-air radio broadcasting.

3.2 This tariff is subject to the special royalty rates set out in subsection 68.1(1) of the Copyright Act.

4. Royalties

4.1 The royalties payable to NRCC by a non-commercial radio station in respect of each year shall be 2 per cent of the non- commercial radio station’s annual gross operating costs for that year.

4.2 Notwithstanding section 4.1 above, the royalties payable to NRCC by a non-commercial low-use station in respect of each year shall be 0.86 per cent of the non-commercial low-use station’s annual gross operating costs for that year.

5. Payments, Accounts and Records

5.1 Royalties payable by a non-commercial radio station to NRCC for each calendar year shall be due on the 31st day of January of the year following the calendar year for which the royalties are being paid.

5.2 With each payment, a non-commercial radio station shall forward to NRCC a written certified declaration of the actual gross operating costs of the non-commercial radio station for the year for which the payment is made.

5.3 Following a 15-day notice to that effect from NRCC, a non-commercial radio station shall collect information on the musical contents of its programming (logs), in electronic format where available, indicating for each sound recording broadcast, at least the title of the musical work, the name of the author and composer of the work, the name of the performers or of the performing group, the title of the record album and the record label, and the date and time of broadcast. NRCC may formulate such a request no more than twice a year, each time for a period of 14 consecutive days. The non-commercial radio station shall then forward the information requested to NRCC in the 15 days following the last day of the period indicated in NRCC’s notice.

5.4 A non-commercial radio station shall keep and preserve, for a period of six months after the end of the period to which they relate, records and logs from which the information set out in section 5.3 can be readily ascertained.

5.5 A non-commercial radio station shall keep and preserve, for a period of six years after the end of the year to which they relate, accounts and records from which the information set out in section 5.2 can be readily ascertained.

5.6 NRCC may audit these accounts, records and logs at any time during the period set out in sections 5.4 and 5.5, on reasonable notice during normal business hours.

5.7 NRCC shall, upon receipt, supply a copy of the report of the audit to the non-commercial radio station which was the object of the audit.

5.8 If an audit discloses that royalties due to NRCC have been understated in any month by more than 10 per cent, the noncommercial radio station which was the object of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

5.9 Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

5.10 Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due.

6. Confidentiality

6.1 Subject to sections 6.2 and 6.3, NRCC shall treat in confidence information received from a non-commercial radio station pursuant to this tariff, unless the station consents in writing to the information being treated otherwise.

6.2 NRCC may share information referred to in section 6.1:

(i) with any other collecting body in Canada or elsewhere;

(ii) with the Copyright Board;

(iii) in connection with proceedings before the Copyright Board, with anyone;

(iv) to the extent required to effect the distribution of royalties, with its royalty claimants; or

(v) if ordered by law or by a court of law.

6.3 Section 6.1 does not apply to information that is publicly available, or to information obtained from someone other than the non-commercial radio station and who is not under an apparent duty of confidentiality to that station.

7. Delivery of Notices and Payments

7.1 All notices and payments to NRCC shall be sent to 1235 Bay Street, Suite 910, Toronto, Ontario M5R 3K4, fax number 416-962-7797 or to any other address or fax number of which the non-commercial radio station has been notified in writing.

7.2 All communications from NRCC to a non-commercial radio station shall be sent to the last address and fax number provided by that non-commercial radio station to NRCC in writing.

7.3 A communication or a notice may be delivered by hand, by postage paid mail or by fax. A payment must be delivered by hand or by postage paid mail.

7.4 All communications, notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed. All communications or notices sent by fax shall be presumed to have been received the day they were transmitted.

C. Canadian Broadcasting Corporation (CBC)

1. Short Title

This tariff may be cited as the NRCC CBC Radio Tariff, 2009.

2. Definitions

In this tariff,

“Act” means the Copyright Act, R.S.C. 1985, c. C-42, as modified; (« Loi »)

“CBC radio revenue” means that portion of the total revenues of the CBC, including its parliamentary appropriation for operating expenditures and its revenues from commercial activities or any other source, that is used to finance the operation of the CBC’s radio stations as reported in the annual financial accounts of the CBC; (« revenu radio de la SRC »)

“CBC radio stations” means any radio network and any radio station owned or operated by the CBC; (« stations de radio de la SRC »)

“month” means a calendar month; (« mois »)

“reference year” means the complete fiscal year of the CBC, ending March 31 of the year before the year for which payment is being made; (« année de référence »)

“year” means a calendar year. (« année »)

3. Application

3.1 This tariff sets the royalties to be paid to NRCC each month by the CBC, as equitable remuneration pursuant to section 19 of the Act, for the communication to the public by telecommunication, at any time and as often as desired, in the year 2009, of published sound recordings of musical works and of performers’ performances of musical works embodied in published sound recordings by over-the-air radio broadcasting.

3.2 This tariff does not apply to the CBC’s pay audio service operated at present under the name Galaxie, or to any audio service that is not a conventional, over-the-air broadcasting service.

4. Royalties

4.1 For the year 2009, the annual royalties payable to NRCC by CBC shall be 6 per cent of CBC radio revenue in the reference year multiplied by 0.6139.

Note: The multiplier reflects the difference between the weighted average of 21.66 per cent of the broadcast day during which CBC radio stations broadcast published sound recordings and performers’ performances eligible for remuneration under section 19 of the Act and the comparable figure of 35.28 per cent for commercial radio stations that broadcast in a music format (that is, excluding “low-use” stations as defined in NRCC Tariff 1.A).

4.2 The amount of the monthly payment made to NRCC by the CBC during each year shall be one-twelfth (1/12) of the amount calculated pursuant to paragraph 4.1 above.

5. Payments

5.1 CBC shall pay to NRCC the royalty due for a month on the first day of that month.

5.2 Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate, effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

5.3 Adjustments in the amount of royalties owed (including excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due.

6. Information

6.1 Should the CBC radio revenue not be found in the annual financial accounts of the CBC, CBC shall provide NRCC with a report each year indicating the CBC radio revenue, at the time that the annual financial accounts of the CBC are published.

6.2 In the 15 days following the end of each month, the CBC shall forward to NRCC information on the musical content of all of its network programming and a reasonable sample of regional and local programming (logs) for the CBC radio stations for that month, in electronic format where available, indicating for each sound recording broadcast, at least the title of the musical work, the name of the author and composer of the work, the name of the performers or of the performing group, the title of the record album, the record label, and the date and time of broadcast.

7. Confidentiality

7.1 Subject to sections 7.2 and 7.3, NRCC shall treat in confidence information received from the CBC pursuant to this tariff, unless the CBC consents in writing to the information being treated otherwise.

7.2 NRCC may share information referred to in section 7.1:

(i) with any other collecting body in Canada or elsewhere;

(ii) with the Copyright Board;

(iii) in connection with proceedings before the Copyright Board, with anyone;

(iv) to the extent required to effect the distribution of royalties, with its royalty claimants; or

(v) if ordered by law or by a court of law.

7.3 Section 7.1 does not apply to information that is publicly available, or to information obtained from someone other than the CBC and who is not under an apparent duty of confidentiality to the CBC.

8. Delivery of Notices and Payments

8.1 All notices and payments to NRCC shall be sent to 1235 Bay Street, Suite 910, Toronto, Ontario M5R 3K4, fax number 416-962-7797 or to any other address or fax number of which the CBC has been notified in writing.

8.2 All communications from NRCC to CBC shall be sent to the last address and fax number provided by the CBC to NRCC in writing.

8.3 A communication or a notice may be delivered by hand, by postage paid mail or by fax. A payment must be delivered by hand or by postage paid mail.

8.4 All communications, notices or payments mailed in Canada shall be presumed to have been received three business days after the day they were mailed. All communications or notices sent by fax shall be presumed to have been received the day they were transmitted.

Tariff No. 7

MOTION PICTURE THEATRES AND DRIVE-INS

1. Short Title

This tariff may be cited as the NRCC Motion Picture Theatre Tariff, 2009-2011.

2. Definitions

In this tariff,

“year” means a calendar year (« année »).

3. Application

3.1 This tariff sets the royalties to be paid to NRCC, for the benefit of performers and makers, for the performance in public of published sound recordings of musical works and performers’ performances of such works embodied in a motion picture by a motion picture theatre, drive-in or establishment exhibiting motion pictures.

3.2 This tariff does not apply to a public performance that is subject to another NRCC tariff, including NRCC Tariff 3 (Background Music).

4. Royalties

4.1 A motion picture theatre or any establishment exhibiting motion pictures may perform, at any time and as often as desired in the years 2009 to 2011, any or all of the works in NRCC’s repertoire for an annual fee of $246 per screen.

4.2 Theatres operating three days or less per week shall pay one half of the above rates.

4.3 For theatres operating for less than 12 months in each year, the fee payable, either under section 4.1 or 4.2, shall be reduced by one-twelfth for each full month during the year in which no operations occur.

5. Reporting Requirements

No later than 31 days after the end of the year, a person making a payment pursuant to section 4 shall pay the royalty for that year and report the information used to calculate the royalty.

6. Accounts and Records

6.1 A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person’s payment can be readily ascertained.

6.2 NRCC may audit these records at any time during the period set out in section 6.1 on reasonable notice and during normal business hours.

6.3 NRCC shall, upon receipt, supply a copy of the report of the audit to the person who was the subject of the audit.

6.4 If an audit discloses that royalties due to NRCC have been understated in any month by more than 10 per cent, the undertaking which was the object of the audit shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand for such payment.

7. Confidentiality

7.1 Subject to sections 7.2 and 7.3, NRCC shall treat in confidence information received pursuant to this tariff, unless the person who supplied the information consents in writing to the information being treated otherwise.

7.2 NRCC may share information referred to in section 7.1:

(a) with another collective society;

(b) with the Copyright Board;

(c) in connection with proceedings before the Copyright Board, if the collective society has first provided a reasonable opportunity for the person who supplied the information to request a confidentiality order;

(d) to the extent required to effect the distribution of royalties, with any other collecting body or with its royalty claimants; or

(e) if required by law or by a court of law.

7.3 Section 7.1 does not apply to information that is publicly available, or to information obtained from someone other than the person who supplied the information and who is not under an apparent duty of confidentiality to the person subject to this tariff.

8. Adjustments

8.1 A person making a payment under this tariff, who subsequently discovers an error in the payment, shall notify NRCC of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments in the amount of royalties owed may be made in respect of an over- payment discovered by the payor which occurred more than 12 months prior to its discovery.

8.2 When an error is discovered by NRCC at any point in time during the term of this tariff, the NRCC shall notify the person to whom the error applies, and an appropriate adjustment shall be made to the next payment due following the notification.

8.3 The 12-month limit in section 8.1 shall not apply to an error discovered by NRCC, including without limitation an error discovered pursuant to section 8.2 or an underpayment discovered through an audit conducted pursuant to section 6.2.

9. Interest on Late Payments

Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate, effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

10. Addresses for Notices, etc.

10.1 Anything addressed to NRCC shall be sent to 1235 Bay Street, Suite 910, Toronto, Ontario M5R 3K4, email: theatres@ nrdv.ca, fax number 416-962-7797, or to any other address or fax number of which the sender has been notified.

10.2 Anything addressed to a person subject to this tariff shall be sent to the last address or fax number of which NRCC has been notified in writing.

11. Delivery of Notices and Payments

11.1 A notice may be delivered by hand, by postage paid mail, by fax or by email.

11.2 A notice or payment mailed in Canada shall be presumed to have been received three business days after the day it was mailed.

11.3 A notice sent by fax or email shall be presumed to have been received the day it is transmitted.

Tariff No. 8

SIMULCASTING AND WEBCASTING

[NOTE TO PROSPECTIVE USERS: On May 20, 2008, NRCC informed the Board that it wished to amend its proposed Tariff No. 8. NRCC was advised of the Board’s position that proposed tariffs must be published as filed. NRCC therefore asked the Board to post with the proposed tariff the following notice: “NRCC no longer intends to seek remuneration for podcasting in this proposed tariff covering Simulcasting and Webcasting for the years 2009 to 2012. It is NRCC’s intention to remove any references to that effect from the proposed tariff for the entire period under examination.”]

1. Short Title

This tariff may be cited as the NRCC Simulcasting and Webcasting Tariff, 2009-2012.

2. Definitions

In this tariff,

“advertisements on the site or service” means any sponsorship, announcement, trademark, commercial message or advertisement displayed, communicated or accessible during connection to or with the site or service or to which the user’s attention is directly or indirectly guided by any means (including, but not limited to banner advertising, sponsor “hot-links,” pop-up advertising, sidebar [“skyscraper”] advertisements, floating advertisements, interstitial advertisements, electronic billboards, click-through advertising, and streaming video and audio [“unicast”] advertisements); (« publicités sur le site ou le service »)

“file” means a digital file of a published sound recording of a musical work; (« fichier »)

“gross revenues” means the total of all amounts paid by users or similar transmission services for the right to access non-interactive webcasts, simulcasts or podcasts of radio station signals and all amounts paid for the preparation, storage, display or transmission of advertisements on the site or service, whether such amounts are paid to the owner or operator of the site or service or to another person or entity. For greater certainty, gross revenues do not include revenues from interactive services, except for podcasts of radio station signals; (« revenus bruts »)

“interactive service” means one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive. If an entity offers both interactive and non-interactive services (either concurrently or at different times), the non-interactive component shall not be treated as part of an interactive service; (« service interactif »)

“non-interactive webcast” means the digital audio transmission of files via the Internet or similar transmission service, including files accessed through media players and computers — but excluding interactive services, simulcasts and podcasts of radio station signals; (« webdiffusion non interactive »)

“not-for-profit sites or services” means sites or services that do not earn subscription or advertising revenues and which have no profit or expectation of profit; (« sites ou services sans but lucratif »)

“podcast of a radio station signal” means a radio station broadcast that has been converted to an MP3 file or other audio file format for playback in a digital media player or computer; (« baladodiffusion d’un signal de station de radio »)

“similar transmission service” means a telecommunications service from which a published sound recording of a musical work is transmitted to a cellular phone or other personal communication device, utilizing the Internet and/or other transmission protocols; (« service de transmission semblable »)

“simulcast” means the digital audio transmission of radio station signals via the Internet or similar transmission service; (« diffusion simultanée »)

“sites or services,” “site,” or “service” means a site or service accessible via the Internet or similar transmission service from which content is transmitted to users; (« sites ou services, site ou
service »)

“stream ripping” means the act of copying individual songs from a site or service; (« extraction en
ligne »)

“users” means all those who receive or access Internet transmissions or transmissions from similar transmission services. (« utilisateurs »)

3. Application

3.1 This tariff sets the royalties to be paid each month to NRCC, as equitable remuneration pursuant to section 19 of the Copyright Act, for the communication to the public by telecommunication of published sound recordings of musical works.

3.2 This tariff does not apply to a communication to the public by telecommunication that is subject to another NRCC tariff, including NRCC Tariffs 1.A (Commercial Radio), 1.B (Non-Commercial Radio), 1.C (CBC), 3 (Background Music), 4 (Multi-Channel Subscription Radio Services) and 9 (Television).

4. Non-Interactive Webcasts

4.1 For sites or services offering non-interactive webcasts, 12 per cent of the gross revenues earned by the owner and operator of the site or service, with a minimum annual fee of $500 per channel up to a maximum of $50,000 annually.

4.2 For not-for-profit sites or services offering non-interactive webcasts, $60 per month.

5. Simulcasts and Podcasts of Radio Station Signals

5.1 For sites or services offering simulcasts and/or podcasts of radio station signals, 12 per cent of the gross revenues earned by the owner and operator of the site or service, with a minimum annual fee of $500 per channel up to a maximum of $50,000 annually.

5.2 For not-for-profit sites or services offering simulcasts and/or podcasts of radio station signals, $60 per month.

ADMINISTRATIVE PROVISIONS

6. Technical Protection Measures

6.1 A site or service shall implement effective measures that are commercially available and can be implemented without unreasonable costs to prevent stream ripping.

6.2 A site or service shall crossfade songs, or where the service has weighing reasons not to implement crossfading, reduce the gap between the songs to a maximum of 0 to 0.25 seconds.

7. Accounts and Records

7.1 A person subject to this tariff shall keep and preserve, for a period of six years after the end of the year to which they relate, records from which that person’s payment can be readily ascertained. Royalties shall be due no later than 60 days after the end of each quarter.

7.2 NRCC may audit these records at any time during the period set out in section 7.1 on reasonable notice and during normal business hours.

7.3 NRCC shall, upon receipt, supply a copy of the report of the audit to the person who was the subject of the audit.

7.4 If an audit discloses that royalties due to NRCC have been understated during any period by more than 10 per cent, the person who was the subject of the audit shall pay the reasonable costs of the audit within 30 days of the demand for such payment.

8. Reporting Requirements

Payment pursuant to this tariff shall be accompanied by a report showing (where applicable), with respect to the relevant quarter,

(a) title of the work, the name of the author, the name of the performer, the name of the record label, the Universal Product Code (UPC), the International Standard Recording Code (ISRC), and any alternative title used to designate the musical work or sound recording;

(b) the total number of plays of all files;

(c) the total number of subscribers to the service and the total amounts paid by them;

(d) the total number of podcasts along with the information described in section 8(a) above for each file contained within each podcast; and

(e) a breakdown of total advertising revenues associated with the service or site.

9. Confidentiality

9.1 Subject to sections 9.2 and 9.3, a collective society shall treat in confidence information received pursuant to this tariff, unless the person who supplied the information consents in writing to the information being treated otherwise.

9.2 A collective society may share information referred to in section 9.1:

(a) with another collective society;

(b) with the Copyright Board;

(c) in connection with proceedings before the Copyright Board, if the collective society has first provided a reasonable opportunity for the person who supplied the information to request a confidentiality order;

(d) to the extent required to effect the distribution of royalties, with any other collecting body or with its royalty claimants; or

(e) if required by law or by a court of law.

9.3 Section 9.1 does not apply to information that is publicly available, or to information obtained from someone other than the person who supplied the information and who is not under an apparent duty of confidentiality to that site or service.

10. Adjustments

10.1 A person making a payment under this tariff, who subsequently discovers an error in the payment, shall notify NRCC of the error, and an appropriate adjustment shall be made to the next payment due following the notification. No adjustments in the amount of royalties owed may be made in respect of an over- payment discovered by the payor which occurred more than 12 months prior to its discovery.

10.2 When an error is discovered by NRCC at any point in time during the term of this tariff, the NRCC shall notify the person to whom the error applies, and an appropriate adjustment shall be made to the next payment due following the notification.

10.3 The 12-month limit in section 10.1 shall not apply to an error discovered by NRCC, including without limitation an error discovered pursuant to section 10.2 or an underpayment discovered through an audit conducted pursuant to subsection 7.2.

11. Interest on Late Payments

Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate, effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

12. Addresses for Notices, etc.

12.1 Anything addressed to NRCC shall be sent to 1235 Bay Street, Suite 910, Toronto, Ontario M5R 3K4, email: internet@ nrdv.ca, fax number 416-962-7797, or to any other address or fax number of which the sender has been notified.

12.2 Anything addressed to an owner or operator of a site or service shall be sent to the last address or fax number of which the sender has been notified.

13. Delivery of Notices and Payments

13.1 A notice may be delivered by hand, by postage paid mail, by fax or by email.

13.2 A notice or payment mailed in Canada shall be presumed to have been received three business days after the day it was mailed.

13.3 A notice sent by fax or email shall be presumed to have been received the day it is transmitted.

Tariff No. 9

COMMERCIAL TELEVISION

Short Title

1. This tariff may be cited as the NRCC Commercial Television Tariff, 2009-2013.

Definitions

2. In this tariff,

“affiliation payment” means the amount payable by a distribution undertaking to a programming undertaking for the right to carry the signal of the programming undertaking; (« paiement
d’affiliation »

“ambient recording” means a sound recording unavoidably picked up in the background when an event is videotaped or broadcasted; (« enregistrement ambiant »)

“broadcast gross income” means the gross amount paid by any person for the use of one or more over-the-air broadcasting services or facilities provided by the station’s operator, whether such amounts are paid to the station owner or operator or to other persons, excluding the following:

(a) any such amounts received by a person other than the operator or owner of the station which form part of the base for calculation of the NRCC royalty payable by such other person under this or another tariff;

(b) income accruing from investments, rents or any other business unrelated to the station’s broadcasting activities. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the station’s broadcasting services and facilities or which results in their being used shall be included in the “broadcast gross income”;

(c) amounts received for the production of a program that is commissioned by someone other than the licensee and which becomes the property of that person;

(d) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the licensee can establish that the station was also paid normal fees for station time and facilities. NRCC may require the production of the contract granting these rights together with the billing or correspondence relating to the use of these rights by other parties;

(e) amounts received by an originating station acting on behalf of a group of stations which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating station pays out to the other stations participating in the broadcast. These amounts paid to each participating station are part of that station’s “gross” revenue; (« revenus de diffusion bruts »)

“cable and satellite gross income” means the gross amount paid by any person for the use of one or more broadcasting services or facilities provided by a programming undertaking, excluding the following:

(a) income accruing from investments, rents or any other business unrelated to the broadcasting activities of the programming undertaking. However, income accruing from any allied or subsidiary business that is a necessary adjunct to the broadcasting services and facilities of the programming undertaking or which results in their being used shall be included in the “cable and satellite gross income”;

(b) amounts received for the production of a program that is commissioned by someone other than the programming undertaking and which becomes the property of that person;

(c) the recovery of any amount paid to obtain the exclusive national or provincial broadcast rights to a sporting event, if the programming undertaking can establish that it was also paid normal fees for its time and facilities. NRCC may require the production of the contract granting these rights together with the billing or correspondence relating to the use of these rights by other parties;

(d) amounts received by an originating programming undertaking acting on behalf of a group of programming undertakings which do not constitute a permanent network and which broadcast a single event, simultaneously or on a delayed basis, that the originating undertaking pays out to the other programming undertakings participating in the broadcast. These amounts paid to each participating undertaking are part of that undertaking’s “cable and satellite gross income”;

(e) affiliation payments; (« revenus bruts de la diffusion par satellite et par câble »)

“cleared recording” means any sound recording, other than an ambient recording or production recording, in respect of which NRCC is not entitled to be paid equitable remuneration for its performance in public or communication to the public by telecommunication; (« enregistrement affranchi »)

“cleared program” means

(a) if the only cleared recording contained in the program is a sound recording that was cleared before 60 days after the publication of this tariff, a program containing no sound recording other than cleared recordings, ambient recordings or production recordings; and

(b) if not, a program produced by a Canadian programming undertaking and containing no sound recordings other than cleared recordings, ambient recordings or production recordings; (« émission affranchie »)

“distribution undertaking” means a distribution undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11; (« entreprise de distribution »)

“low power television station” means a low power television station as defined in section E of Part IV of the Broadcast Procedures and Rules of Industry Canada effective April 1997; (« station de radiodiffusion télévisuelle à faible puissance »)

“pay audio signal” means a programming service which provides digital music services to direct-to-home satellite or digital cable broadcasting subscribers; (« signal sonore payant »)

“premises” has the meaning attributed to it in section 2 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755 which reads:

“ ‘premises’ means

(a) a dwelling, including a single-unit residence or a single unit within a multiple-unit residence; or

(b) a room in a commercial or institutional building.”; (« local »)

“production recording” means a sound recording contained in interstitial programming such as commercials and public service announcements; (« enregistrement de production »)

“programming undertaking” means a programming undertaking as defined in the Broadcasting Act, S.C. 1991, c. 11; (« entreprise de programmation »)

“relevant month” means the month for which the royalties are payable; (« mois pertinent »)

“service area” means a service area as defined in section 2 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755, as amended by SOR/2005-148, which reads:

“ ‘service area’ means an area in which premises served in accordance with the laws and regulations of Canada by a cable transmission system are located.”; (« zone de service »)

“signal” means a television signal which contains a sound recording, other than a pay audio signal and other than a signal within the meaning of subsection 31(1) of the Copyright Act, R.S.C. 1985, c. C-42, as amended, retransmitted in accordance with subsection 31(2) of the Copyright Act. Signal includes the signals of Canadian pay and speciality services, non-Canadian speciality services, community services, community channels and other programming and non-programming services; (« signal »)

“small cable transmission system” means a small cable transmission system as defined in sections 3 and 4 of the Definition of “Small Cable Transmission System” Regulations, SOR/94-755, as amended by SOR/2005-148, which read:

“3. (1) Subject to subsections (2) to (4) and section 4, ‘small cable transmission system’ means a cable transmission system that transmits a signal, with or without a fee, to not more than 2,000 premises in the same service area.

(2) For the purpose of subsection (1), where a cable transmission system is included in the same unit as one or more other cable transmission systems, the number of premises to which the cable transmission system transmits a signal is deemed to be equal to the total number of premises to which all cable transmission systems included in that unit transmit a signal.

(3) For the purpose of subsection (2), a cable transmission system is included in the same unit as one or more other cable transmission systems where

(a) they are owned or directly or indirectly controlled by the same person or group of persons; and

(b) their service areas are each less than 5 km distant, at some point, from at least one other among them, and those service areas would constitute a series of contiguous service areas, in a linear or non-linear configuration, were it not for that distance.

(4) Subsection (2) does not apply to a cable transmission system that was included in a unit on December 31, 1993.

4. The definition set out in subsection 3(1) does not include a cable transmission system that is a master antenna system if it is located within the service area of another cable transmission system that transmits a signal, with or without a fee, to more than 2,000 premises in that service area”; (« petit système de transmission par fil »)

“sound recording” means a published sound recording of a performance of a musical work which is embodied in the soundtrack of an audiovisual work. Sound recording does not include a music video for which the soundtrack is the performance of an entire musical work; (« enregistrement sonore »)

“TVRO” means a Television Receive Only Earth Station designed for the reception of a signal transmitted by satellite; (« TVRO »)

“very low power television station” means a very low power television station as defined in section G of Part IV of the Broadcast Procedures and Rules of Industry Canada effective April 1997; (« station de radiodiffusion télévisuelle de très faible puissance »)

“year” means a calendar year. (« année »)

3. For the purposes of this tariff, in respect of a cable transmission system that is exempt from licensing pursuant to the Exemption Order for Small Cable Undertakings [Appendix I, Broadcasting Public Notice CRTC 2002-74, November 19, 2002], any reference to a service area shall be read, effective as of

(a) the date of cancellation of the relevant licence in the case of a system which held a licence on December 7, 2001; and

(b) the date the system begins operations in the case of all other systems as a reference to the area in which premises lawfully served by the cable transmission system are located.

4. For the purposes of this tariff, a cable transmission system shall be deemed to be a small cable transmission system in a given year if

(a) it is a small cable transmission system on the later of December 31 of the proceeding year or the last day of the month in which it first transmits a signal in the year; or

(b) the average number of premises, determined in accordance with the Definition of “Small Cable Transmission Systems Regulations”, the system served or was deemed to serve on the last day of each month during the proceeding year was no more than 2,000 premises.

Application

5. This tariff does not apply to uses covered by other applicable tariffs, including NRCC Tariff 3 (Background Music).

Part I — Commercial Television

6. Part I of this tariff sets the royalties to be paid for the communication to the public, as often as desired during the period 2009 to 2013, of sound recordings in NRCC’s repertoire in connection with the broadcast by a commercial programming undertaking of a signal for private or domestic use.

Election of Licence

7.1 For the broadcast by a commercial programming undertaking of a signal, the programming undertaking can elect for the standard or modified blanket licence.

7.2 A programming undertaking’s election must be in writing, and must be received by NRCC at least 30 days before the first day of the month for which the election is to take effect.

7.3 A programming undertaking’s election remains valid until it makes a further election.

7.4 A programming undertaking can make no more than two elections in a year.

7.5 A programming undertaking that has never made an election is deemed to have elected for the standard blanket licence.

Standard Blanket Licence

8.1 A programming undertaking that has elected for the standard blanket licence shall pay 1.9 per cent of the undertaking’s broadcast gross income for the second month before the month for which the licence is issued.

8.2 No later than the day before the first day of the month for which the licence is issued, the programming undertaking shall pay the fee, and report the station’s broadcast gross income for the second month before the month for which the licence is issued.

Modified Blanket Licence

9.1 A programming undertaking that has elected for the modified blanket licence shall pay the amount calculated in accordance with Form A.

9.2 No later than the last day of the month after the month for which the licence is issued, the programming undertaking shall

(a) provide to NRCC, using Form A, a report of the calculation of its licence fee;

(b) provide to NRCC, using Form B, reports identifying, in respect of each cleared program, the sound recordings used in that program;

(c) provide to NRCC any document supporting its claim that the sound recordings identified in Form B are cleared recordings, or a reference to that document, if the document was provided previously; and

(d) pay the amount payable pursuant to section 9.1.

Reporting Requirements

10. A programming undertaking that makes a payment in respect of a signal shall provide with its payment, for the relevant period:

(a) the name of the programming undertaking; and

(b) the broadcast gross income of the programming undertaking.

Part II — Pay, Specialty and Other Television Services

11. Part II of this tariff sets out the royalties to be paid for the communication to the public, as often as desired during the period 2009 to 2013, of sound recordings in NRCC’s repertoire in connection with the transmission by a distribution undertaking of a signal for private or domestic use.

Small Cable Transmission Systems and Unscrambled Low Power Television Stations

12.1 The total royalty payable in connection with the transmission of all signals shall be $10 a year where the distribution undertaking is

(a) a small cable transmission system;

(b) an unscrambled low power television station or very low power television station; or

(c) a terrestrial system which performs a function comparable to that of a cable transmission system which uses Hertzian waves to transmit the signals and which otherwise meets the definition of “small cable transmission system.”

12.2 The royalty payable pursuant to section 12.1 is due on January 31 of the relevant year or on the last day of the month after the month in which the system first transmits a signal in the relevant year.

Other Distribution Undertakings

13.1 Sections 14 to 17 and 19 apply to distribution undertakings that are not subject to section 12.

13.2 Unless otherwise provided, for the purposes of sections 14 to 17 and 19, any reference to a distribution undertaking, to affiliation payments or to premises served excludes systems subject to section 12 or payments made or premises served by such systems.

Community and Non-Programming Services

14. The total royalty payable in any month in respect of all community channels, non-programming services and other services generating neither affiliation payments nor cable and satellite gross income that are transmitted by a distribution undertaking shall be 0.14 cents per premises or TVRO served by the distribution undertaking on the last day of the relevant month.

Election of Licence

15.1 A distribution undertaking other than a service that is subject to section 14 can elect for the standard or modified blanket licence.

15.2 An election must be in writing, and must be received by NRCC at least 30 days before the first day of the month for which the election is to take effect.

15.3 An election remains valid until a further election is made.

15.4 A distribution undertaking can make no more than two elections in a year.

15.5 A distribution undertaking that has never made an election is deemed to have elected for the standard blanket licence.

Standard Blanket Licence

16.1 Subject to section 16.2 the monthly royalty payable for the transmission of the signal of a programming undertaking that has elected for the standard blanket licence is

(a) 1.9 per cent of affiliation payments payable in the relevant month by a distribution undertaking to the programming undertaking, plus

(b) X × Y× 1.9%
Z

Where

X is the cable and satellite gross income of the programming undertaking during the relevant month,

Y is the number of premises or TVROs served by the distribution undertaking and lawfully receiving the premises or TVROs signal of the programming undertaking on the last day of the relevant month,

and

Z is the total number of premises or TVROs (including those served by systems subject to section 12) lawfully receiving the signal of the programming undertaking on the last day of the relevant month.

16.2 Notwithstanding section 16.1

(a) paragraph 1(a) does not apply to non-Canadian speciality services; and

(b) the royalty rate is 0.8 per cent if a programming undertaking communicates sound recordings in NRCC’s repertoire, excluding production recordings and cleared recordings, for less than 20 per cent of the programming undertaking’s total air time and keeps and makes available to NRCC complete recordings of its last 90 broadcast days.

16.3 The royalty payable pursuant to section 16.1 is calculated in accordance with Form C if the royalties are being paid by the distribution undertaking, and in accordance with Form D if the royalties are being paid by the programming undertaking.

Modified Blanket Licence (MBL)

17.1 Subject to section 17.2, the monthly royalty payable for the transmission of a signal of a programming undertaking that has elected for the modified blanket licence is calculated in accordance with Form E.

17.2 Notwithstanding section 17.1

(a) no account is taken of cable and satellite gross income in calculating the royalty payable in respect of a non-Canadian speciality services; and

(b) the royalty rate is 0.8 per cent if a programming undertaking communicates works within NRCC’s repertoire, excluding production recordings and cleared programs, for less than 20 percent of the programming undertaking’s total air time excluding the air time of cleared programs, and keeps and makes available to NRCC complete recordings of its last 90 broadcast days.

17.3 The royalties payable pursuant to sections 17.1 and 17.2 shall be paid on or before the last day of the third month following the relevant month.

17.4 Amounts paid pursuant to lines B and C of Form E on account of a programming undertaking incorrectly claimed as a cleared program are not refundable.

Reporting Requirements

18. The following information shall also be provided to NRCC with respect to any system for which royalties are being paid pursuant to section 12.1:

(a) the number of premises served in the system on the later of December 31 of the proceeding year or the last day of the month in which the system first transmitted a signal in the relevant year;

(b) if the small cable transmission system qualifies as such by reason of paragraph 4(b), the number of premises, determined in accordance with the Definitions of “Small Cable Transmission” Regulations, the system served or was deemed to serve on the last day of each month during the preceding year;

(c) if the system is a master antenna system and is located within the service area of another cable transmission system, the name of that other system and a statement to the effect that the other system transmits a signal, with or without a fee, to not more than 2,000 premises in its service area; and

(d) if the system is included in a unit within the meaning of the Definition of “Small Cable Transmission System” Regulations,

(i) the date the system was included in the unit,

(ii) the names of all the systems included in the unit,

(iii) the names of the person or group of persons who own or who directly or indirectly control the systems included in the unit, and

(iv) the nature of the control exercised by these persons.

19.1 The following shall also be provided with respect to any programming undertaking that has elected for the standard blanket licence pursuant to section 16 or the modified blanket licence pursuant to section 17:

(a) no later than the last day of the month following the relevant month a distribution undertaking shall provide to NRCC and to each programming undertaking whose signal it transmitted during the relevant month:

(i) the number of premises or TVROs served by the distribution undertaking and lawfully receiving that signal on the last day of the relevant month, and

(ii) the amount of the distribution undertaking’s affiliation payment for that signal for the relevant month;

(b) no later than the last day of the second month following the relevant month, a programming undertaking that does not intend to pay the royalty owed in respect of its signal for the relevant month shall provide to NRCC and to each distribution undertaking that transmitted its signal during the relevant month:

(i) the number obtained by dividing its cable and satellite gross income for the relevant month by the total number of premises or TVROs (including those served by systems subject to section 12) lawfully receiving its signal during the relevant month,

(ii) if the programming undertaking has elected for the modified blanket licence, the percentage of its cable and satellite gross income that was generated by cleared programs in the relevant month and the percentage of total air time of cleared programs during that month, and

(iii) if the programming undertaking claims that it complied with subsections 16.2(b) or 17.2(b), a notice to that effect;

(c) a programming undertaking referred to in subsection (b) shall also provide to NRCC, by the date mentioned in subsection (b):

(i) its cable and satellite gross income during the relevant month,

(ii) the total number of premises or TVROs (including those served by systems subject to section 12) lawfully receiving the signal of the programming undertaking on the last day of the relevant month, and

(iii) the total number of premises or TVROs (excluding those served by systems subject to section 12) lawfully receiving the signal of the programming undertaking on the last day of the relevant month;

(d) no later than the last day of the second month following the relevant month, a programming undertaking that has elected for the modified blanket licence shall provide to NRCC, using Form F, reports identifying, in respect of each cleared program, the sound recordings used in that program as well as any document supporting its claim that each sound recording identified in Form F is a cleared recording, or reference to that document, if the document was provided previously;

(e) a programming undertaking that makes a payment shall provide to NRCC with its payment the total amount of affiliation payments payable to it for the relevant month and the calculation of the royalty for the relevant month, using the applicable form;

(f) a distribution undertaking that makes a payment shall provide to NRCC with its payment, for the relevant month and in respect of each programming undertaking whose signal it transmitted during the relevant month:

(i) the name of the programming undertaking, the name of its signal and the amount of the affiliation payment,

(ii) the number of premises or TVROs served by the distribution undertaking and lawfully receiving the signal of the programming undertaking on the last day of the relevant month, and

(iii) the calculation of the royalty, using the applicable form.

Part III — Administrative Provisions

Records and Audits

20. Part III of this tariff applies to each of Parts I and II of this tariff.

21.1 A broadcasting undertaking that makes a payment in respect of a signal shall keep and preserve, for a period of six months after the end of the month to which it relates, records from which payments to be made under sections 8 and 9 can be readily ascertained.

21.2 A distribution undertaking that makes a payment in respect of a television signal shall keep and preserve, for a period of six months after the end of the month to which it relates, records from which payment to be made under sections 12, 16 and 17 can be readily ascertained.

21.3 NRCC may audit these records at any time during the period set out in sections 21.1 or 21.2, on reasonable notice and during normal business hours.

21.4 NRCC shall, upon receipt, supply a copy of the report of the audit to the undertaking, which was the object of the audit.

21.5 If an audit discloses that royalties due to NRCC have been understated in any month by more than 10 per cent, the undertaking which was the object of the audit shall pay the amount of the understatement and the reasonable costs of the audit within 30 days of the demand by NRCC for such payment.

Confidentiality

22.1 Subject to sections 22.2 and 22.3, NRCC shall treat in confidence information received pursuant to this tariff, unless the undertaking who supplied the information consents in writing to the information being treated otherwise.

22.2 NRCC may share information referred to in section 22.1:

(i) with the Copyright Board,

(ii) in connection with proceedings before the Copyright Board if NRCC has first provided a reasonable opportunity for the undertaking providing the information to request a confidentiality order,

(iii) to the extent required to effect the distribution of royalties, with any other collecting body or with its royalty claimants, or

(iv) if ordered by law or by a court of law.

22.3 Section 22.1 does not apply to information that is publicly available, or to information obtained from someone other than the undertaking and who is not under an apparent duty of confidentiality to that undertaking.

Adjustments

23. Adjustments in the amount of royalties owed (i.e. excess payments), as a result of the discovery of an error or otherwise, shall be made on the date the next royalty payment is due. No adjustments in the amount of royalties owed may be made in respect of an error or otherwise which occurred more than 12 months prior to its discovery.

Interest on Late Payments

24. Any amount not received by the due date shall bear interest from that date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.

Addresses for Notices, etc.

25.1 Anything that a licensee under this tariff sends to NRCC shall be sent to 1235 Bay Street, Suite 910, Toronto, Ontario M5R 3K4, email: television@nrdv.ca, fax number 416-962-7797, or to any other address or fax number of which the undertaking has been notified.

25.2 Anything that NRCC sends to a licensee under this tariff shall be sent to the last address of which NRCC has been notified.

Delivery of Notices and Payments

26.1 A notice may be delivered by hand, by postage paid mail or by fax.

26.2 A notice or payment mailed in Canada shall be presumed to have been received three business days after the day it was mailed.

26.3 A notice sent by fax shall be presumed to have been received the day it is transmitted.

FORM A

CALCULATION OF LICENCE FEE FOR A MODIFIED BLANKET LICENCE (MBL) FOR THE MONTH OF ______________________

FORM B

SOUND RECORDING REPORT FOR CLEARED PROGRAMS

Television Station: _____________________________________________________________

Program Title and Episode Number: ________________________________________________

Air Date: ____________________________________________________________________

Producer: ____________________________________________________________________

Broadcast Gross Income from Program: ____________________________________________

Please complete the following report for EVERY sound recording included in the program.

Please provide, for each sound recording, a copy of any document on which you rely to conclude that the sound recording is a cleared recording, or a reference to that document, if you provided it previously.

FORM C

CALCULATION OF LICENCE FEE FOR A STANDARD BLANKET LICENCE FOR THE MONTH OF ____________ (Payment by the distribution undertaking).

Name of the distribution undertaking: _________________________________

Name of the programming undertaking or television signal on account of which the royalties are being paid (please provide one form per programming undertaking or signal): ____________________________

(A) 1.9% × amounts payable by the distribution for the right to carry the signal for the relevant month:
_______________________________________________

(B) 1.9% × number supplied by the programming undertaking to paragraph 19(b)(i) × number of premises or TVROs served by the distribution undertaking and lawfully receiving the signal of the programming undertaking on the last day of the relevant month:
________________________________________

(C) TOTAL LICENCE FEE FOR THE MONTH (A + B):
__________________________________________

Please remit the amount set out in (C)

NOTE: If the programming undertaking claims that it complies with subsection 16.2(b) the applicable rate is 0.8%.

FORM D

CALCULATION OF LICENCE FEE FOR A STANDARD BLANKET LICENCE FOR THE MONTH OF ___________ (Payment by the programming undertaking).

Name of the programming undertaking or signal: _________________________________________

List of the distribution undertakings on account of which royalties are being paid: _______________

(A) 1.9% × total amount payable by the relevant distribution undertakings for the right to carry the signal of the programming undertaking for the relevant month: ____________________________________

(B) X × Y × 1.9%: _____________________
Z

Where

X is the cable and satellite gross income of the programming undertaking during the relevant month

Y is the total number of premises or TVROs served by the distribution undertakings and lawfully receiving the signal of the programming undertaking on the last day of the relevant month

Z is the total number of premises or TVROs (including those served by systems subject to section 12 of the tariff) receiving the signal of the programming undertaking on the last day of that month

(C) TOTAL LICENCE FEE FOR THE MONTH (A + B):
__________________________________________________

Please remit the amount set out in (C)

NOTE: If the programming undertaking claims that it complies with subsection 16.2(b), the applicable royalty rate is 0.8%.

FORM E

CALCULATION OF LICENCE FEE FOR A MODIFIED BLANKET LICENCE (MBL) FOR THE MONTH OF _______________

For the purposes of this form and for the month for which the royalties are being calculated:

“Affiliation payments” does not include payments made by systems subject to section 12 of the tariff (small systems).

“Total affiliation payments” means

(a) if a distribution undertaking fills the form, the affiliation payments payable by the distribution undertaking to the relevant programming undertaking for that month; and

(b) if the programming undertaking fills the form, the affiliation payments payable to the programming undertaking by all the distribution undertakings that carried its signal during that month.

“Affiliation payments from cleared programs” means the total affiliation payments multiplied by the percentage of total air time attributable to cleared programs in that month. (That figure is provided by the programming undertaking pursuant to subparagraph 19(b)(ii) of the tariff if a distribution undertaking fills the form.)

“Affiliation payments from programs other than cleared programs” means the difference between total affiliation payments and affiliation payments from cleared programs.

“Total cable and satellite gross income” means

(a) if a distribution undertaking fills the form, the number provided by the programming undertaking for that month pursuant to subparagraph 19(b)(i) of the tariff multiplied by the number of premises or TVROs served by the distribution undertaking and lawfully receiving the signal of the programming undertaking on the last day of that month; and

(b) if a programming undertaking fills the form, the undertaking’s cable and satellite gross income for that month multiplied by the ratio of the total number of premises or TVROs (excluding those served by systems subject to section 12 of the tariff) lawfully receiving its signal on the last day of that month over the total number of premises or TVROs (including those served by systems subject to section 12 of the tariff) lawfully receiving its signal on the last day of that month.

“Cable and satellite gross income from cleared programs” means the total cable and satellite gross income multiplied by the percentage of cable and satellite gross income from cleared programs. (That figure is provided by the programming undertaking pursuant to subparagraph 19(b)(ii) of the tariff if a distribution undertaking fills the form.)

“Cable and satellite gross income from programs other than cleared programs” means the difference between total cable and satellite gross income and cable and satellite gross income from cleared programs.

If the distribution undertaking fills the form, one form must be completed with respect to each programming undertaking that has elected for the MBL that the distribution undertaking transmits in the relevant month. If the programming undertaking fills the form, only one form needs to be completed.

NOTE: If the programming undertaking claims that it complies with subsection 17.2(b), the applicable royalty rate is 0.8%.

FORM F

SOUND RECORDING REPORT FOR CLEARED PROGRAMS

Signal / Channel: _____________________________________________________________

Program Title and Episode Number: ______________________________________________

Air Date: ___________________________________________________________________

Producer: __________________________________________________________________

Cable and Satellite Gross Income from Program: ____________________________________

Please complete the following report for EVERY sound recording included in the program.

Please provide, for each sound recording, a copy of any document on which you rely to conclude that the sound recording is a cleared recording, or a reference to that document, if you provided it previously.