Add the Digital Media Assn. (DiMA) to the parties challenging the Copyright Royalty Board's (CRB) decision setting webcaster rates for streaming sound recordings. The trade group today (March 19) filed a motion for a re-hearing with the CRB.

National Public Radio also asked the CRB for a rehearing earlier today.

"We do not believe that the Copyright Royalty Board intended to shut down the vast majority of legitimate online radio services immediately when it issued its decision, yet that is the sober reality facing many services," DiMA executive director Jonathan Potter said in a statement. "We hope that the judges will re-hear these three issues as they will have a particularly negative and immediate impact on our industry."

DiMA focused on three issues in the March 2 decision, which set 2006-2010 compulsory-license royalty rates that webcasters and simulcasters must pay to perform sound recordings on non-interactive Web sites (section 114 of the Copyright Act). According to the decision, commercial webcasters must pay per stream at rates beginning at .08 cents per stream for 2006, increasing to .19 cents by 2010. They must also pay a minimum of $500 per channel or station, which the services may recoup from royalties as they become due.

First, DiMA challenges the minimum fee charged "per channel or station." The group clarification on what would be considered to be a channel or station, hoping for a set maximum fee per service. It claims that some services offer users more than 100,000 specialized programming options, such as artist-based programs for fans of a specific artist or consumer-influenced programs reflecting listeners' musical tastes. If per channel or station means that each programming option requires a minimum payment of $500, DiMA claims that royalties could exceed revenue -- in some cases more than $50 million for some services.

Second, DiMA requests that an aggregate tuning hour (ATH) calculation be available to services as an alternative to reporting and paying royalties per stream. At the very least, the group argues, this calculation should be available until January 2008.

ATH measures the total hours that consumers listen simultaneously to the services, while per-stream measures each performance of each recording to each listener. DiMA argues that most Internet radio services have not been maintaining precise performance data for 2006 since most of them have been paying per ATH. Since the new rates are retroactive to Jan. 1, 2006, many services will not have the data necessary to calculate royalties due, the group claims. Also, for those services that can reconfigure their systems, it may require several months to complete.

Third, DiMA argues that the judges appear to have relied on a SoundExchange expert to set the rates. The group argues that SoundExchange used a different expert in a proceeding to set satellite radio rates. If the latter expert had been used for the webcaster proceeding and relied on by the judges, DiMA argues, the rates would be lower. So DiMA wants the judges to reconsider the rates.

None of the 25 parties to the proceeding may file formal replies to these motions, but any party may also appeal the decision to the federal District Court in Washington, D.C. Today (March 19) is the last day to file a motion directly with the CRB judges to request a rehearing.