CNA Staff, Apr 8, 2024 / 15:45 pm (CNA).
Religious broadcasters, with the support of Catholic media groups, are asking the Supreme Court to rule whether government officials charged them unfairly high rates in violation of their constitutional rights.
The Catholic Radio Association (CRA) and CatholicVote.org Education Fund have both filed amicus briefs in the case National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board.
The committee is arguing that the Copyright Royalty Board is subjecting religious broadcasters to a discriminatory royalty fee that violates U.S. religious freedom law.
The Copyright Royalty Board consists of three judges who “oversee the copyright law’s statutory licenses,” according to the board’s website. Those licenses “permit qualified parties to use multiple copyrighted works without obtaining separate licenses from each copyright owner.”
The legal advocacy group Alliance Defending Freedom (ADF), which forms part of the committee’s legal team, says that the Copyright Royalty Board in its 2021 rate adjustment “set [music streaming] rates that are 18 times higher for religious noncommercial webcasters with an audience above a modest 218-listener threshold than the average rate for secular NPR stations.”
John Bursch, the vice president of appellate advocacy at ADF, told CNA that the royalty board offered “no real justification” for the higher rates it mandated in 2021.
“They didn’t justify it other than to say there are some noncommercial nonreligious broadcasters who have to pay the same rates,” Bursch said. The Copyright Royalty Board did not respond to CNA’s requests for comment over the dispute.
Bursch gave an example of what he said was the stark fee disparities mandated by the 2021 rates.
“Let’s say you had a Christian station webcasting 15 Christian songs per hour,” he said.
“They’d have to pay $257,000 to play those annually, but an NPR station would have to pay $18,000.”
Religious stations “need to keep their audience intentionally low to not hit those fees,” Bursch said.
In its amicus filing, the CRA said the rule “threatens hundreds of Catholic webcasters.”
The 2021 rate adjustment “discourages Catholic webcasters from reaching more than 218 listeners a month on average — less than the size of a typical university lecture course,” the CRA said.
The group argued that stations “without substantial funding from underwriting or donations may be forced to stop webcasting.”
The CatholicVote.org Education Fund, meanwhile, argued that religious broadcasters “face the threat of discriminatory practices” under the existing rate regime.
The copyright committee’s 2021 rate schedule “imposed a substantial burden on the free exercise of religious broadcasters,” theCatholicVote filing said, arguing that the Supreme Court is “the only court that can protect the free exercise rights of religious webcasters.”
The Supreme Court has not yet said if it will hear the case. Bursch told CNA the petitioners are ultimately “just asking to be treated as well as NPR.” The lawsuit argues that the fee rates violate both the federal Religious Freedom Restoration Act as well as the First Amendment.
“The bottom line is you can’t discriminate against religious broadcasters vis-à-vis secular, public-run National Public Radio,” Bursch said.
The Copyright Royalty Board, meanwhile, last month waived its right to respond to the challengers in their Supreme Court petition, a sign that the board likely feels confident in securing a favorable outcome in the case.
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It should be noted that religious broadcasters that broadcast music have alternatives to paying the statutory fees. They could negotiate directly with the rights holders to secure the rights to broadcast the music. They could broadcast only public domain material. Or they could just stop broadcasting rights-controlled music; most EWTN affiliates, for example, probably use only royalty-free music and only as “bumper music” and don’t have to pay royalties at all. That said, I’d be interested in starting a channel of really good Catholic religious music, but that would cost me another $2000 or so a year in minimum fees even if no one listens. The statutory royalty fees can easily make or break such an idea, so it is important that they be set fairly.