From: Michael Papish Date: Fri, 5 Apr 2002 18:03:54 -0500 (Eastern Standard Time) To: pho@onehouse.com Subject: pho: WHRB's comments for the Copyright Office I thought you might be interested in the following comments we drafted for Harvard's radio station (WHRBfm) on the Copyright Office's proposed rules for webcaster's recordkeeping and reports. We also filed similar comments on behalf of the Intercollegiate Broadcasting System (a collection of 773 stations operating at domestic educational institutions) and a separate filing asking the Office to initiate an Initial Regulatory Flexibility Analysis (determine how these procedures might negatively affect small businesses). If you'd like to see copies of either, please let me know. Excerpt: Given the current state of commercial radio, small, non-profit AM/FM webcasters fulfill an important role in bringing educational and adventurous programming to listeners. WHRB urges the Copyright Office to consider the impact its ruling would have on smaller entities. Given the financial ($100,000-$150,000) and human resources burden the proposed rules for recordkeeping would cause, WHRB would have to cease webcasting its unique programming. When compared to the annual royalty fees owed by a small webcaster, these burdens are out-of-line and unnecessary. Small entities should be exempt from the reporting requirements. Alternatively, by adopting balanced guidelines such as those drafted by ASCAP, the Office can insure copyright owners receive fair compensation without unnecessarily precluding webcasters' continuing to deliver their innovative programs. michael ---- Before the UNITED STATES COPYRIGHT OFFICE LIBRARY OF CONGRESS In the Matter of NOTICE AND RECORDKEEPING FOR USE OF SOUND RECORDINGS UNDER STATUTORY LICENSE Docket No. RM 2002-1 COMMENTS OF HARVARD RADIO BROADCASTING COMPANY 1. Introductory Statement Harvard Radio Broadcasting Co., Inc. ("WHRB") respectfully offers these comments in response to the Office's Notice of Proposed Rule Making on record keeping for use of sound recordings under statutory license. WHRB submits that the guidelines proposed for Reports of Use of Sound Recordings under Statutory License are indeed "too stringent" and "unduly burdensome"(^1) for small, non-profit AM-FM webcasters. The cost of compliance is (i) unduly burdensome, (ii) disproportionately burdensome on small entities, and (iii) disproportionate to the dollar payments derived from such reports.(^2) WHRB estimates that the initial cost to it for implementing the software and hardware systems required for complying with the guidelines to be $100,000-$150,000(^3) -- which approximates the annual revenues of the station.(^4) The station derives no revenues from webcasting. In addition, it would be impractical for WHRB to compile such reports on an on-going basis using its volunteer staff. In what amounts to an extremely burdensome data-entry task, WHRB would need to independently create a master database of all sound recordings currently housed in its six libraries (750,000 estimated works)(^5) containing, for each work, the nine fields outlined by the Office in proposed Section 201.36 (e)(2)(ii). Compared to the $ 500-2000 annual royalty fees WHRB would expect to pay retroactively for the last two years and over the next several years as outlined in the February 20, 2002, report by the Copyright Arbitration Royalty Panel ("CARP"),(^6) these burdens are overwhelming, disproportionate, and unnecessary. Instead WHRB proposes that non-profit webcasters and other webcasters which fall within the category of small business(^7) be exempted from filing the Report of Use of Sound Recordings under Statutory License, as proposed. Alternatively, WHRB urges the Office to promulgate procedures similar to those employed by ASCAP in its agreement with webcasters for public performance rights. This agreement provides that webcasters which pay less than $ 10,000 annually in royalty payments need only to file reports for twelve days or less each calendar year and provides that the webcaster will make good faith efforts to furnish electronic reports in the format requested by ASCAP "provided that nothing herein or in the agreement will obligate you [the webcaster] to incur substantial additional expense to furnish such information."(^8) 2. WHRB is a Non-profit, Small Business Harvard Radio Broadcasting Co., Inc. is an eleemosynary corporation. It is the licensee of Station WHRB (FM), a Class A FM broadcast station licensed to Cambridge, Massachusetts. The corporation is tax-exempt under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(e)(3), and the station is exempt from annual regulatory fees under 47 U.S.C. § 159(h)(1). The station is owned by an independent board of trustees and is operated and administered by a volunteer staff composed of undergraduates of Harvard College, whose participation is subject to regulation by the Dean of Students.(^9) It has no employees within the meaning of Section 73.2080 of the FCC's rules, 47 C.F.R. § 73.2080. The station broadcasts programming 24 hours every day from its studios in a building owned by Harvard University. The station began operating as a closed-circuit AM broadcast station under Part 15 of the FCC's rules on December 2, 1940, and was licensed as a commercial FM broadcast station by the FCC in 1957. It is financially self-sustaining, and its annual operating budget (excluding depreciation) averages $ 97,162.74(^10). The principal purpose of WHRB is to offer musical, cultural, educational, informational, and other programs and materials for the entertainment and benefit of the public and for the education and training of its staff. The commercial nature of the stations's operations provides opportunities for training its undergraduate staff in marketing and finance. WHRB's daily music programming is diverse. Such broadcasts consist of classical music, jazz, and underground rock, exploring a great repertory of music left largely untouched by other commercial stations. WHRB's weekend lineup features blues and urban contemporary programs, Hillbilly at Harvard, news, and Harvard men's and women's sports. WHRB is the Boston outlet for the Metropolitan Opera's radio network. Twice a year during reading and examination periods in Boston's sixteen major institutions of higher learning, the station programs orgies(r) of particular genres of music. See Attachments III and IV for descriptions of regular and orgy(r) programming. Programming decisions are made entirely by undergraduate members. In an era where quality music is increasingly difficult to find on the domestic airwaves, WHRB has employed the Internet as a way to bring its innovative and educational programming to listeners not located in the Boston area. Starting on November 18, 1999, WHRB has retransmitted its FM signal over the internet at www.whrb.org. The internet transmission is currently identical to the FM broadcast, and the station provides no additional program information (i.e., artist name, song name, program name, etc.) for internet listeners. WHRB's internet broadcasting has proved successful in attracting both former listeners not currently residing in the Boston area and new listeners interested in the station's unique programming. The station considers the internet an important vehicle for fulfilling its charter to bring education and entertainment to the public and predicts its importance in this role to grow in the future. 3. The Statute Does Not Authorize Undue Recordkeeping Burdens. The new copyright laws related to the transmission of sound recordings were not meant to impose "new financial burdens on broadcasters or any other broad class of users."(^11) In adopting its interim rules on Notice and Recordkeeping for Digital Subscription Transmissions in June, 1998, the Office said it had considered "both adequacy of notice to copyright owners and administrative burden for Services providing notice and records." 63 Fed. Reg. 34,289, 34,293 (June 24, 1998). In its interim ruling the Office received and apparently relied on comments and information from only four commenters, viz., Recording Industry Association of America (RIAA) and three digital music subscription services operating in the United States (DMX, Inc. [DMX]; Muzak, Inc. [Muzak]; and Digital Cable Radio Associates/Music Choice [DCR]). None of these entities represents the interests or practices of small webcasters such as WHRB.(^12) The notice and rules, of course, did not apply to "eligible nonsubscription transmission services," which are the subject of the instant proceeding. As a consequence the resulting interim rules, 37 C.F.R. § 201.35-201.37, do not provide an adequate basis as a model for the proposed Reports of Use. Moreover, the requirements of the Regulatory Flexibility Act, P.L. 95-354 (1981), as amended by the Debt Limitation Act, P.L. 104-121 (1996), Title II of which is known as the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C., ch. 6, are not satisfied as to this rulemaking proceeding by the Docket No. 96-3 proceeding.(^13) At the time of its interim ruling in 1998, the Office also stated that while it was not an >> "agency" subject to the Regulatory Flexibility Act, 5 U.S.C. 601-612, >> the Register of Copyrights has considered the effect of these interim >> regulations on small businesses. The Register has determined that the >> interim regulations would not have a significant economic impact on a >> substantial number of small entities that would require provision of >> special relief for small entities in the regulations, and that the >> interim regulations are, to the extent consistent with the stated >> objectives of applicable statutes, designed to minimize any >> significant economic impact on small entities. 63 Fed. Reg. 34,289, >> 34,295 (June 24, 1998). This quoted statement is true only to the extent that there were not "a substantial number of small entities" actually transmitting digital sound recordings at the time of the ruling. That is obviously not true of the Internet in 2002.(^14) WHRB urges the Office in its new rulemaking to consider the present effects of the proposed regulations on small businesses. These comments demonstrate that the proposed rules do indeed place significant, disproportional, and unnecessary economic burdens on small business entities. 4. The Proposal Impacts Small Station Operations. This section is intended to inform the Office of the procedures used by small AM/FM webcasters(^15) such as WHRB for transmitting and keeping records on digital sound recordings. These procedures differ from those employed by larger entities. As a result the proposed Report is not well-suited for a large number of small entities. Programming Musical programming decisions are made directly by members of WHRB. The station is divided into departments organized by genre of programming.(^16) Department directors set general programming guidelines for their members, and each department maintains and organizes their own music libraries.(^17) The station's Program Director assigns broadcasting time to each department which in turn assigns individual DJs to shifts in duration of 1.5-3 hours. Each DJ is responsible for "controlling" the station during a shift (selecting and transmitting sound recordings, answering phones, following FCC programming requirements, etc.). Musical programming can take two forms during a DJ's shift: "free-flow" shows and pre-programmed shows. * Free-flow shows - The bulk of daily programming on WHRB follows the free-flow philosophy.(^18) The typical shift begins with the DJ's pre-selecting a certain amount of musical material from the library. For some departments, DJs choose part of their show (i.e., one-fourth of selected material) from a collection put together by the Music Director for heavier rotation, e.g., new releases, and the rest of the selections come from the general library. Each DJ is responsible for following certain programming guidelines when making their selections (i.e., do not play the same artist twice in the same six-month period, do not play two different selections from the same record label in the same show,(^19) etc.). During his or her shift, the DJ determines the specific selections and playing order in real-time, often making decisions about the next piece while the current recording is still playing. * Pre-programmed shows - In general, only the Classical department creates pre-programmed shows.(^20) Here the department as a group determines the individual works which will be played and schedules their airing in bi-monthly blocks. Again, similar programming guidelines are followed when creating these schedules (multiple-year intervals before replaying the same recording, etc.). Individual DJs are responsible for playing these selections at the appropriate times during their shift. WHRB's programming philosophy stresses variety and the airing of musical works not often heard on commercial sources stands in contrast to the practices of large AM/FM webcasters and other large internet-only webcasters. Instead of relying on a rotation of 500-1,000(^21) musical works, WHRB estimates it plays 70,000-90,000 unique sound recordings annually. (For further information on WHRB's programming philosophy, see Attachment III for example of the WHRB Bi-monthly Program Guide.) In addition to making the task of creating Reports of Use more burdensome, this large rotation of music in practice reduces the importance of comprehensive recordkeeping for copyright owners. For example, at a royalty rate of $ 500 annually, each copyright owner of one of these unique sound recordings would receive an average payment of $ 0.007. Transmission As WHRB's internet webcast is largely a simulcast of the station's FM broadcast, transmission of the digital sound recording is a transparent process. The DJ plays the recording on a piece of sound equipment (CD player, turntable, reel-to-reel, etc.) which transfers an analog sound signal to a master mixing console. This console controls volume of the signal and transmits identical analog signals to the FM transmitter and a web server. The server encodes the analog signal to digital using a compression codec (WMA) in real-time and sends the file as a stream to listeners' computers via the internet. This process is identical for free-flow and pre-programmed shows. The transmission process differs from major AM/FM webcasters in two main ways. First, the radio program is created by a human in real-time. While some major AM/FM webcasters use live, human announcers, the bulk of their programming is sequenced and transmitted by computer software, making comprehensive and accurate recordkeeping simple. Secondly, WHRB stores its sound recordings in physical format (on LPs, CDs, cassettes, etc.) and encodes them digitally in real-time at the time of transmission. Most large AM/FM webcasters (and most, but not all, internet-only webcasters) store their sound recordings in digital format on a central harddrive. This makes the process of cataloging, organizing, and documenting the music library much easier. Recordkeeping: Transmissions WHRB does not keep comprehensive logs of the sound recordings it broadcasts. Pre-programmed shows maintain listings of "intended playlists," but this information is not stored in a format which would allow WHRB to generate the Report of Use outlined in § 201.36(e)(2)(ii).(^22) Current recordkeeping for free-flow programming ranges from non-existent(^23) to hand-written listings.(^24) Again, most large AM/FM webcasters rely on automation software which logs all recordings broadcast over the air. Approximately twice annually ASCAP and BMI require WHRB to log all musical works broadcast over its FM channel over a 48-hour period for purposes of accurately distributing performance licensing royalties. These logs(^25) are filled in by hand at the time of broadcast and consist of three fields: artist name, song name, and album title. Recordkeeping: Music Library To prepare Reports of Use as proposed by the Office, a broadcast entity must have detailed information about its song recordings (metadata) stored in a central electronic database.(^26) Currently, WHRB has approximately 47,000 of its 750,000 sound recordings cataloged, with data for 20,000 of these recordings existing in analog (print-form) only. All 47,000 items are classical performances and represent 85% of WHRB's entire classical music library.(^27) Metadata collected on these performances include: composer, work title, performers, label, CD or record number, and time of recording. The station possesses no metadata of any type for the remaining 703,000 sound recordings. Thus, in general, sound recordings are cataloging in so far as they are physically organized by alphabetical order in the library (department) which best reflects that recording's genre. Due to the small library sizes (5,000-10,000 active sound recordings) of most major AM/FM webcasters; the fact that most of these items are well-documented, commercial recordings(^28); and these webcasters' reliance on software systems for programming, cataloging does not become the gigantic project which WHRB and other small webcasters face. 5. Burden of complying with proposed rules Small AM/FM webcasters such as WHRB, face two major tasks to reach compliance with the rules proposed by the Office for Reports of Use: 1) installing software/hardware systems capable of logging all transmitted sound recordings; and 2) generating a comprehensive metadata database for its entire library. The costs, both in cash expense and volunteer time, to accomplish these projects are extremely burdensome on the small AM/FM webcaster. In addition, complying with the proposed recordkeeping rules, regardless of upfront cost and effort, adds an extra layer of difficulty to the process of being a DJ and creates havoc for a volunteer-run organization. If the proposed rules were to be made final without change, WHRB would have to cease webcasting immediately. While the station might undertake the tasks outlined to reach compliance, doing so would take ten years and at a cost equal to or greater than the station's entire annual operating budget. These upgrades would only be completed if the station found tangible benefits from its cash and time investment other than simply reaching compliance with the Office's regulations. The following outlines specific cost estimates and procedures for completing the three upgrade tasks: Installing software/hardware to log transmitted sound recordings There are two methods for logging in digital form all songs broadcast over the air (and therefore the internet): brute force entering by hand in a database every song (and its metadata) played; or, installing a software and hardware system to aid in the task. The brute force method is not feasible. During a two minute song, the DJ is busy preparing the next recording for broadcast, a task which can involve finding and selecting the material, giving the track a cursory listen and setting up the proper electronic equipment. To ask him or her to locate information about the material and enter this into a computer in real-time will make the task impossible. The other option, and the solution employed by large AM/FM webcasters, is to install a software and hardware tracking and logging system for the station. In normal operation, this system handles the broadcasting of all sound recordings, promotional announcements and advertisements, reducing the task of the DJ to announcer or removing the need for human control entirely. However, for a small webcaster with a large, rotating playlist such as WHRB, operating an automation system in this mode runs counter to the charter of providing adventurous and unique programming. To allow the system to aid a WHRB DJ in recordkeeping, serious customization would be required.(^29) At this time, there are no computers located within WHRB's main broadcast studio. The station estimates that the cost to purchase a commercial hardware and software automation system would be $50,000-$75,000. An additional $ 20,000-$25,000 would need to be spent on customizing the package to operate correctly for WHRB's broadcast methodology and programming philosophy. Generating a comprehensive metadata database for the entire collection Without complete metadata for the sound recordings in its collection, a webcaster would need to enter all the information for a work by hand at the point of transmission. As described above, this makes the DJ's task of playing unique music impossible. However, creating this database for a large library such as WHRB's is extremely difficult. In an ideal situation, every piece of media would be assigned a unique identification number by the record label at the time of pressing. This number would be linked to a metadata record stored in a publicly available database maintained by the copyright owners. As the Office is aware, this scenario is far from the current music metadata landscape.(^30) In order to generate metadata, the station would need to locate and enter by hand all relevant data for 750,000 sound recordings and continue this process for the 1,000 new sound recordings acquired each week. To complete this process correctly, WHRB estimates it would need to spend $ 25,000-$50,000 on computer terminals and customized database software. More importantly, the station believes it will take approximately 10 years, give the current level of volunteer human resources, to have 70% of its collection cataloged.(^31) This fact alone, not including the estimated $ 100,000-$150,000 in costs associated with the upgrade, should demonstrate to the Office the burden for a small AM/FM webcaster in reaching compliance with the proposed rules. 6. Proposed solution WHRB urges the Copyright Office to exempt non-profit webcasters and those webcasters which qualify as small businesses from filing Reports of Use as outlined in Proposed Rulemaking Document 02-2842. Alternatively, WHRB advocates that the Office institute guidelines similar to those used by ASCAP in their Experimental License Agreement for Internet Sites & Services - Release 4.0 (See Attachment II) for reporting the use of digital musical compositions. The purpose of instituting royalty payments for digitally transmitted sound recordings was "to level the playing field by according to sound recordings most of the same performance rights that all other works capable of performance have long enjoyed." 141 Cong. Rec. S950 (daily ed. Jan. 13, 1995) (statement of Sen. Hatch). It stands to reason that these rights can be administered in a similar fashion to ASCAP's administration of rights for songwriters and composers. Historically, ASCAP has gained valuable experience in setting fair practices which respect copyright owners and broadcasters. For small entities (defined as those paying less than $ 10,000 annually in royalties to ASCAP for internet transmissions), ASCAP employs the use of sampling, asking for only 12 (or less) reports detailing all compositions transmitted in a 24-hour period by the webcaster. While ASCAP asks the webcaster to make "good-faith efforts" to furnish these reports in digital format, they are able to make alternate arrangements if this proves to incur "substantial additional expense." By adopting similar procedures, the Office can insure that small AM/FM webcasters can continue their operations while still respecting the rights of copyright owners. 7. Conclusion Given the current state of commercial radio, small, non-profit AM/FM webcasters fulfill an important role in bringing educational and adventurous programming to listeners. WHRB urges the Copyright Office to consider the impact its ruling would have on smaller entities. Given the financial ($100,000-$150,000) and human resources burden the proposed rules for recordkeeping would cause, WHRB would have to cease webcasting its unique programming. When compared to the annual royalty fees owed by a small webcaster, these burdens are out-of-line and unnecessary. Small entities should be exempt from the reporting requirements. Alternatively, by adopting balanced guidelines such as those drafted by ASCAP, the Office can insure copyright owners receive fair compensation without unnecessarily precluding webcasters' continuing to deliver their innovative programs. Respectfully submitted, HARVARD RADIO BROADCASTING CO., INC. by _____________________________ Mona Lewandoski President Station WHRB (FM) 389 Harvard Street Cambridge, Massachusetts 02138 Of counsel:(^32) William Malone Miller and Van Eaton, P.L.L.C. 1155 Connecticut Ave., N.W., # 1000 Washington, D.C. 20036-4320 April 5, 2002 Attachments: Attachment I - Financial Affidavit Attachment II - ASCAP Experimental License Attachment III - WHRB Program Guides Attachment IV - Press clippings Endnotes: 1 Section 2 of NPRM, at 67 Fed. Reg. 5761, 5762-63 (February 7, 2002). 2 Report of the Copyright Arbitration Royalty Panel, Docket No. 2000-9 CARP DTRA 1& 2 (February 20, 2002). 3 WHRB and most non-profit broadcasters do not currently maintain comprehensive logs, in digital or analog form, for material played over the air and subsequently retransmitted via the internet. Detailed costs for this estimate will be provided below in Section 5. 4 The affidavit, Attachment I hereto, recites that financial the station's average revenue is $112,891.36, of which $45, 731.46 is derived from advertising. 5 WHRB currently estimates it owns approximately 75,000 pieces of media (12" LPs, 10" LPs, 7" 45's, 12" 78's, CDs, Cassette Tapes and Reels) housed in six libraries (Classical, Country, Folk, Jazz, Rock, and Urban Contemporary). At an average of 10 sound recordings per item, this would be a library of 750,000 sound recordings. In addition, WHRB estimates it adds an average of 1,000 sound recordings to its library on a weekly basis. Only one library, Classical, currently maintains a partial database of its collection which contains only four of the nine requested pieces of information (sound recording title, featured recording artist, retail album title, and record label). Part of this database is in analog format. From informal talks with other non-commercial webcasters (mainly other college radio stations which retransmit their FM/AM feeds via the internet), WHRB is actually further along than most in compiling a database of its libraries. 6 WHRB estimates it will owe the minimum $ 500 annual fee for a statutory license for public performance of sound recordings from 2000-2002. Based on WHRB's internet listener growth projections, the station estimates it might pay between $ 500-2000 annually in royalties for 2003-2005. According to the current per-performance formula recommended by the CARP, in conjunction with listener growth WHRB's royalty fees for sound recordings could grow astronomically in the years after 2005. 7 Small Business Size Standards -- Inflation Adjustment to Size Standards, 67 Fed. Reg. 3041 (January 23, 2002), amending 13 C.F.R. §121.201. 8 The full text of the section on Music Use Reports from the ASCAP license, ASCAP Experimental License Agreement for Internet Sites & Services - Release 4.0, printed in Attachment II hereto, reads as follows: "You agree to provide us with reports regarding the musical compositions contained in your Internet Transmissions. If the annual license fee payable to ASCAP is less than $10,000, you will submit such reports for no more than the first three days of each calendar quarter or for such other periods of time as we may reasonably request. If the annual license fee payable to ASCAP is $10,000 or greater, you will submit such reports for at least one week in each calendar quarter. Our requests for such reports will be sent to you in writing at least thirty days prior to the commencement of the period to be covered by the report. Your reports must be in the form attached hereto ("ASCAP Music Use Report Format"). You will make good faith efforts to furnish the information requested by us in electronic form, employing such commercially practicable technology as may be available for monitoring music use on your Internet Site or Service, or such other means or methods upon which you and we will agree, provided that nothing herein or in the agreement will obligate you to incur substantial additional expense to furnish such information." 9 Without pausing to sort out who is God and who is Caesar, the relationships between the station and the University and the FCC are as described in Matthew 22:21. 10 Financial Affidavit, Attachment I hereto. 11 Floor statement of Senator Hatch (R-Utah), Chairman of the Judiciary Committee, 141 Cong. Rec. S947 (daily ed. Jan. 13, 1995): "It should be initially noted, Mr. President, that this bill does not impose new financial burdens on broadcasters or on any other broad class of users who traditionally perform sound recordings. Those users will instead continue to be subject only to those financial burdens that they voluntarily undertake. The aim of this bill is simply to level the playing field by according to sound recordings most of the same performance rights that all other works capable of performance have long enjoyed."; S. Rpt. 128, 104 Cong. 1st Sess. 15 (1995) ("without imposing new and unreasonable burdens"). 12 Noninteractive subscription broadcasters such as DMX, Muzak, and DCR rely on the use of automation software and hardware to create their programming. In addition, all transmitted sound recordings are stored in digital format in a database which includes metadata (information about the musical works) similar to that required in Proposed Rulemaking Document 02-2842. §201.36(e)(2) (ii). As is described in Section 4, WHRB and other small webcasters rely on human DJs to create programming on-the-fly (i.e. in real-time) and store their musical works in original analog format (i.e. LP, CD, etc.). These sound recordings are encoded in digital format simultaneously with the act of transmission. 13 This inadequacy is particularly addressed by commenters in the concurrently filed Joint Motion for Issuance of an Initial Regulatory Flexibility Analysis (IRFA). 14 Indeed, the Office in the instant Notice, 67 Fed. Reg. at 5764, recognized that "the industry was young" in 1998. 15 For purposes of these remarks, WHRB is differentiating between small AM/FM webcasters and small internet-only webcasters. The Office should be aware that certain internet-only webcasters follow procedures identical to those employed at WHRB (i.e., broadcasting and encoding live transmissions simultaneously), while others rely on more automated playlist generation, maintenance, and recordkeeping techniques applicable to an internet-only broadcast environment. 16 Departments include: CM (classical music), Record Hospital (rock), Jazz, UC (urban contemporary), Blues, Hillbilly at Harvard (country), Sports and News. See http://www.whrb.org and specimen program guides attached hereto for further information. 17 Many college and other small AM/FM webcasters do not maintain their own music libraries and instead rely on their rotating cast of DJs to provide their own music. 18 On weekdays this includes all rock and jazz programming. On weekends it includes urban contemporary, blues and country. Saturday and Sunday afternoons and Friday evening classical broadcasts are also "free-flow" programming. A total of 130 out of 168 of weekly programming hours (77%) are free-flow. 19 Some departments, such as rock, further refine these guidelines to achieve programming diversity by not playing any musical works from a major record label. 20 Informal conversation with other small AM/FM webcasters indicate very few use pre-programmed shows for any of their programming. 21 The typical major commercial FM radio station will air only 500-1,000 different musical works over a one-year period. 22 Each scheduled musical work is hand-entered as a single entry and not linked to a central database of metadata about the musical works. The FCC deleted its requirement for radio broadcasters to maintain program logs over twenty years ago. Deregulation of Radio, 84 F.C.C. 2d 968, 49 P&F R.R. 2d 1, 5 (1981). 23 Jazz, blues, urban contemporary and country maintain no broadcast records or logs. 24 Each DJ in the rock department writes the artist and song name of each transmitted recording in a communal book. 25 ASCAP and BMI notify the station in writing as to the scheduling of these periods and provide the station with physical log books in which to record this information. 26 Without metadata stored in a database, the nine items required for the proposed Report of Use would need to be entered by hand for the 90,000 unique sound recordings transmitted annually. 27 Cataloging presents substantial problems in practice. The Classical department began entering information on its collection into a database format in the 1960s via punch card entry. Station members went to a room at Harvard that had punch card machines and typed in up to 80 characters, not many for both works and lists of performers. These cards were kept in order in boxes, with new ones sorted into the boxes by hand. From-time-to-time, they would be run through a line printer. The station still has a few of the old print-outs. The results were less than ideal, with titles and performers abbreviated in ways that varied from inputting session to inputting session. In the early 70's, members used a DEC PDP-10 at the Business School to input information about classical LPs. Inconsistency was still a problem as younger members were also used for data entry tasks. And as it turned out, a fair amount of the inputting was never merged with the main file and was completely lost. In 1986-7, the classical department began a new effort to catalog CDs which were beginning to enter its collection. Using an excel database, they have managed to input by hand a fair amount of the CD library. Inconsistent data types and duplicate entries (i.e., piano concerto no. 2 in C, concerto for piano and orchestra no. 2 in C, piano concerto in C, etc.) still exist and can be traced to errors committed multiple years ago. 28 Private, third-party sources for metadata on most major, commercial releases exist from companies such as Muze, AMG, and Loudeye. For example, XM Satellite Radio relies on Loudeye to encode and provide comprehensive metadata on all sound recordings broadcast over their digital network. 29 One possible scenario would be to create an internal barcode scheme for all media in the station's libraries. For purposes of recordkeeping, the DJ would swipe the media (CD, LP, etc.) into a computer located in the broadcast studio. The computer would link to a central database with full metadata for the album, the DJ would pick the correct track and the system would add the selection to the broadcast log. This scenario assumes that the station has compiled comprehensive metadata on its entire collection. As mentioned earlier, WHRB currently has partial information for only 47,000 of 750,000 sound recordings. The process and burden for completing this task is outlined in the next section. 30 In reality, there are multiple, privately-owned and competing attempts at creating this standard by companies such as Muze, AMG, Loudeye, Gracenote and even the RIAA itself. None of these databases is comprehensive and all suffer major lapses in most of the independent, obscure, and rare items which WHRB prides itself on collecting. 31 This estimate is based on WHRB's experience in cataloging its classical collection, a task which was started in the 1960s and currently covers 85% of the collection. In addition, it should be pointed out that classical music is inherently better documented than the average independent rock, country, urban or jazz release. For example, the rock department has approximately 5,000 7" 45s which have been titled by the artist by hand. With the advent of CD recording technology and home studios, the trend in self-releasing material has increased, making the task of cataloging more difficult. 32 Required to be served under P.L. 89-332, 5 U.S.C. § 500(f).