In addition to the latin and urban channels, Alex wants to know why Sirius XM couldn't have better prepared its listeners:

First off, why such secrecy? Millions of subscribers were blindsided yesterday. No announcements of any kind were made over the air to let people know what was going on. To them, everything was fine on Tuesday, but all of a sudden on Wednesday, their favorite channel was deleted or changed fundamentally. This was a breach of trust between the provider and the consumer. We are the subscribers. We are paying for this service. We deserve a voice over what it is we want to hear. More importantly, we deserve input about programming we are willing to pay for.

Second, we the consumers, Congress, and the FCC were assured that allowing the merger would increase diversity and choice. Wednesday's change showed you acted in bad faith. On the XM side, we lost 75% of the Spanish music choice. To clump together the previous 4 genres of music offered by Aguila, Viva, Caricia, and Caliente into one channel shows either cultural ignorance or contempt for diversity. My congressional representatives will be hearing from me about this.

Third, the new censorship. I bought Sirius to free myself from the shackles of FM. Hot Jamz has been neutered into "The Heat," essentially a satellite version of my local R&B station. I simply couldn't listen to it today. The songs were heavily edited and censored. This is the antithesis of what Sirius once stood for, what bringing Howard from FM symbolized. Fact is, urban music is written in the vernacular. What "The Heat" did to Hot Jamz is an insult.

Fourth, continuing on the theme of less choice. Sirus XM acted in bad faith when it shrunk the available choices:

No more electronica from Boombox — now pop2k... isn't there enough pop with 90's on 9, the Pulse, and Alt Nation?

No more Old Skool. No more Punk. No more Fine tuning/free form.

No more educational radio via Discovery channel. (I'm still raw over that)

Instead we get less choice and shallower playlists on what used to be Fred, Lucy, and Ethel.

Mel et al., you really should listen to what you customers have to say.

http://www.orbitcast.com/archives/first-impressions-now-with-combined-channels-what-do-you-think.html#comments

http://newsblogs.chicagotribune.com/towerticker/2008/11/xm-radio-sirius.html?cid=138920090#comments

http://www.xmfan.com/viewtopic.php?t=96996 (these are your most ferverent fanatics, and yet their poll shows less that 33% are satisfied)

If you had asked us to begin with, you may have avoided this heartache.

Dual-sub non grata,
Alex

As an aside, if you're a Mitsubishi Outlander owner experiencing problems with Sirius updates, Andy has figured out how to fix it:

Sirius recently merged with XM and my radio received an update as part of the merger. It killed the radio in my Mitsubishi Outlander with an "Antenna Error" message. I argued with 4 or 5 CSRs at Sirius that this was not a hardware issue, the timing is too perfect. I ended up pulling the #7 fuse and it reset the radio. Voila, the radio is back up and running. However, every time they send an update I have to pull the fuse. I hope this helps other MMS owners, and I hope Sirius gets this figured out asap. This is a factory installed radio part of the Mitsubishi Multi Messaging System premium radio system.

Here's a link to my forum post: http://www.mitsubishiforum.com/fb.asp?m=240820

"Sirius XM Has Crossed the LIne" [The Motley Fool]

RELATED
"Sirius gets serious, reshuffles lineup, cuts DJs" [Cnet]
"XM, Sirius change lineups as expected" [Technologizer]
(Photo: docsearls)

Reader Matt says:

I'm probably one of the biggest fans of the Christmas holiday on the planet but the spirit isn't typically shown after Thanksgiving. I've gotten a few laughs on how many stores started with the Christmas Creep extremely early this year. Well it extends beyond the stores. After dropping my fiancee off at Logan Airport this morning, which is in Boston for those not familiar with the area, I started scanning the radio to find some decent tunes. And what did I find on Oldies 103.3? You guessed it Christmas music. When I got home and took a look at their website, http://www.oldies1033.com/ , it really put the icing on the cake. The "holiday season" has gotten out of control this year and I just wanted to share my experience with you guys.

From PC Magazine:

Pandora founder Tim Westergren...pointed out that Pandora would, under the CRB rules, have to hand over $18 million of its expected $25 million 2008 revenue to cover royalty fees—a price that could force the company out of business.

There are still two more hurdles. First, the President has to sign the bill, but it's widely expected he will. Second, Internet radio stations and copyright holders have to actually negotiate an agreement that both sides feel is fair, and that won't price webcasters out of business. But at least now there's hope that one of the web's most beloved music sites will keep streaming.

"Pandora saved" [SFGate]
(Photo: Bill in Ash Vegas)

Or something like that.

The Commission approved the controversial merger last night on a 3-2 party-line vote. The nation's only two satellite radio operators have agreed to abide by several voluntarily conditions:

• Consumers will be able to purchase small a la carte packages.
• Third parties will be allowed to design and sell their own receivers.
• Sirius-XM will soon rollout an interoperable receiver that can receive signals from both companies.
• 4% of the new conglomerate's channels will be reserved for public interest programming.
• No price hikes for three years.

The two Democratic Commissioners were receptive to a merger, but voted against the deal after the companies refused to offer strong consumer protections.

"I was hoping to forge a bipartisan solution that would offer consumers more diversity in programming, better price protection, greater choices among innovative devices and real competition with digital radio," Adelstein declared. "Instead, it appears they're going to get a monopoly with window dressing. We missed a great opportunity to reach a bipartisan agreement that would have benefited the American people."

Last week, Adelstein told reporters that he'd back the proposed union if the two parties honored a six-year price cap, include digital radio in all tuners, and "make one-quarter of their satellite capacity available for public interest and minority programming."

Both Sirius and XM received their satellite radio licenses from the FCC in 1997 under the condition that they never merge.

Satellite Radio Merger Approved [Washington Post]
Report: FCC set to approve XM Radio-Sirius merger (updated) [Ars Technica]
PREVIOUSLY: XM-Sirius Merger Will Double Monthly Prices?

On Wednesday, Kieffe & Sons posted a statement on their website, apologizing to "all who were offended." As commenters pointed out, saying you're sorry that someone got offended is not the same as actually apologizing for what you said. Now, according to the Bakersfield Californian, we find out even the non-apology wasn't genuine.

“I don’t regret the sentiment at all,” said Kieffe, who bought the 48-year-old dealership from his father in 1974. “It’s what we believe.”

. . .

The dealer’s Web site Thursday bore a statement about the ad that included an apology “to all who were offended.” Kieffe said he’d been contacted by Ford Motor Co. after the manufacturer heard complaints from numerous “blog-lo-dites.” The company asked him to post something saying he was sorry if he’d offended anyone, Kieffe said.

Kieffe said he will continue using J.W. Horne for the dealer's ads. Horne also confirmed that he wrote the trolling, single-entry blog that went up on Thursday.

Ford Says "Shut Up" Ad Was a Mistake, But Dealer Stands Behind It [Bakersfield Californian]
PREVIOUSLY: California Ford Dealership Radio Ad Tells Non-Christians To "Sit Down And Shut Up"
(Photo: Amy Watts)

According to the Bakersfield Californian, Rick Kieffe, the dealership owner, said he doesn't remember approving the ad (emphasis added):

“It’s just something that went by us,” said Kieffe, who does not attend church but considers himself “a Christian spirit.” “We’re obviously sorry that it offends a given segment who identifies themselves as atheist.

Kieffe said he received a flood of angry phone calls from people around the world who saw blog posts about the story. Kieffe's advertiser, or someone claiming to be him, apparently didn't get the memo, as he has posted an unapologetic screed conflating gay marriage with the purchase of a Japanese car (seriously).

PREVIOUSLY: California Ford Dealership Radio Ad Tells Christians to "Sit Down and Shut Up"
Car Dealer Regrets Ads Telling Non-Christians to "Sit Down and Shut Up" [Bakersfield Californian]
(Photo: Amy Watts)

The ad reads:

Did you know that there are people in this country who want prayer out of schools, "Under God" out of the Pledge, and "In God We Trust" to be taken off our money?

But did you know that 86% of Americans say they believe in God? Now, since we all know that 86 out of every 100 of us are Christians who believe in God, we at Kieffe & Sons Ford wonder why we don't just tell the other 14% to sit down and shut up. I guess maybe I just offended 14% of the people who are listening to this message. Well, if that is the case, then I say that's tough, this is America folks, it's called free speech. And none of us at Kieffe & Sons Ford are afraid to speak up. Kieffe & Sons Ford on Sierra Highway in Mojave and Rosamond: if we don't see you today, by the grace of God, we'll be here tomorrow.

The ad has been running on radio stations in southern California since at least February, according to one blogger. She wrote to Ford headquarters, but received a reply that because the dealerships are independently owned and operated, she should get in touch with the management at the dealership.

Here's the audio of (most of) the ad:

The Underground Unbeliever [via BoingBoing]
(Photo: Amy Watts)
(Audio: Karen Peralta)

"We really do literally have five or six major corporations in this country that determine for the most part what Americans see, hear and read every day," said Sen. Byron L. Dorgan (D-N.D.), the lead sponsor of the resolution. "I don't think that's healthy for our country."

Dorgan has 25 senators behind his bill, including Democratic presidential candidates Hillary Rodham Clinton of New York and Barack Obama of Illinois, and is confident it will pass the Senate. A similar bill has been proposed in the House.

The Bush administration has threatened a veto, but Dorgan could try to attach the resolution to a must-pass bill to make it harder for the White House to block.

Senate panel moves against FCC media-ownership rules [L.A. Times]
S.J. 28 - A Joint Resolution Disapproving The Rule Submitted By The Federal Communications Commission With Respect To Broadcast Media Ownership [THOMAS]
Write Your Senator
Write Your Representative
PREVIOUSLY: How To Write To Congress
(AP Photo/Jae C. Hong)

Rush Thanks the Apple People [The Rush Limbaugh Show]

I recently had a situation with a Best Buy in Spokane Valley, WA. I was looking to purchase an XM satellite radio. I looked it all over and decided on which one I wanted. I picked up the box and took it to the front.

You don't need to purchase a subscription, apparently you just call once you make the purchase and talk to XM and they set up your service. While trying to make the purchase, the cashier asked for my telephone number. I politely refused to give my telephone number.

She immediately developed an attitude (like so many you describe at Best Buy in your stories). She told me that she could not sell me the radio without my home phone number. I asked her where on the sign with the price tag that it said $149 + Phone Number. She said it doesn't say that, but she could not sell it to me without my phone number. I then asked her if there was a manager who could come talk to me. The manager came over and had a brief conversation with the cashier and then refused to sell me the radio without my home phone number. Both developed the same nasty attitudes that are described so often by people with stories about Best Buy.

I politely left and walked across the street to Circuit City, but they didn't sell the model I was interested in. Now I am torn...I will never give my phone number, but there is no where left locally to buy what I am looking for.

Does privacy not mean anything anymore? I guess what struck me as odd is that I just sensed the same attitude from the Best Buy cashiers that everyone else describes. I mean, they have a god complex or something. It is just strange. Does Best Buy teach it's employees to be that way? It must or it wouldn't be such a wide spread attitude.

Any ideas?

-Travis

(Photo:dlayphoto)

Radio has moved from being in the business of empowering and educating people to Wall Street, to making money. And that's not the big corporate conglomerates, you know, that's not their fault. They were allowed to do this.

This is the fault of government who did not put the proper checks and balances so that this could not happen.

FCC Chairman Kevin Martin thinks they should be allowed to own more. Moyers speculates that Martin wants to pass media consolidation by the end of the year to keep the issue away from the Presidential campaign calender. Even pro-business Republicans oppose consolidation; Trent Lott (R-MS), the Republican whip in the Senate, is leading the fight against consolidation with North Dakota Democrat Byron Dorgan. According to correspondent Rick Karr:

There's no constituency out there saying we want more consolidation. It's essentially just the big media companies. There are no citizens groups out there saying we want more of this.

Transcript [Bill Moyers Journal]
Comment On Media Ownership Further Notice of Proposed Rulemaking, Docket - 06-121 [FCC Electronic Comment Filing System]
Write Your Senator
Write Your Representative
PREVIOUSLY: How To Write To Congress
FCC Chairman To Relax Media Ownership Rules
(Photo: fsgm)

"Currently, a company can own two television stations in the larger markets only if at least one is not among the four largest stations and if there are at least eight local stations. The rules also limit the number of radio stations that a company can own to no more than eight in each of the largest markets.

The deregulatory proposal is likely to put the agency once again at the center of a debate between the media companies, which view the restrictions as anachronistic, and civil rights, labor, religious and other groups that maintain the government has let media conglomerates grow too large."

"Mr. Martin faces obstacles within the agency to overhauling the rules. One Democrat on the commission, Michael J. Copps, is adamantly opposed to loosening the rules. The other, Jonathan S. Adelstein, has said that the agency first needs to address other media issues, including encouraging improved coverage of local events and greater ownership of stations by companies controlled by women and minorities.

Advisers to Mr. Martin said he hoped to gain the support of at least one of the Democrats, probably Mr. Adelstein, but Mr. Adelstein said in an interview on Wednesday that Mr. Martin's proposed timetable was "awfully aggressive."

"If in fact the chairman has indicated that he intends to do media ownership by December of this year, there is going to be a firestorm of protest, and I'm going to be carrying the wood."

Tim Westergren told Listening Post: "It was getting pretty close. I always had underlying optimism that sanity was going to prevail, but I was beginning to wonder." He also said that everyone who contacted their Congressperson should feel that they had an effect on the process.

"This is a direct result of lobbying pressure, so if anyone thinks their call didn't matter, it did. That's why this is happening."

Online Radio Is Saved; SoundExchange Will Not Enforce New Royalty Rates on Sunday [Wired]
(Photo:supsauce?)

Ignoring all rationality and responding only to the lobbying of the RIAA, an arbitration committee in Washington DC has drastically increased the licensing fees Internet radio sites must pay to stream songs. Pandora's fees will triple, and are retroactive for eighteen months! Left unchanged by Congress, every day will be like today as internet radio sites start shutting down and the music dies.

A bill called the "Internet Radio Equality Act" has already been introduced in both the Senate (S. 1353) and House of Representatives (H.R. 2060) to fix the problem and save Internet radio—and Pandora—from obliteration.

I'd like to ask you to call your Congressional representatives today and ask them to become co-sponsors of the bill. It will only take a few minutes and you can find your Congresspersons and their phone numbers by entering your zip code here.

Your opinion matters to your representatives - so please take just a minute to call.

Pandora

By blowtorch:

By saw:

By shovel:

By hand:

By vise:

By small fire in the desert:

A few more videos in this Opie and Anthony forum thread

"Cousin Joe" makes an interesting point, that there's never been a radio host suspension that didn't result in a firing. Is this true?

It makes for compelling footage, but if these guys really want to make a dent, they should be canceling their service. On that note, two readers wrote in to say that when they tried to cancel, XM hung up on them. Several times in a row. Brilliant retention strategy. — BEN POPKEN.

NEXT: XM Pretends To Let Customers Cancel
PREVIOUSLY: XM Radio Subscribers Are Pretty Darn Ticked Off

As you probably know, XM has touted their service as uncensored radio with the ability by the user to block specific channels. A method of self censorship that they constantly promote in their advertisements. These channels are tagged with the "XL" moniker showing the subscriber that they can put parental controls.

Recently XM has censored "The Opie and Anthony Show" for some comments that a guest made towards two governmental officials. XM made the hosts apologize and subsequently suspended them for 30 days because they (XM) did not believe they were sincere in their apology. Many believe that XM took these steps in order to look good in front of the congressional committees that are reviewing the unwanted merger between Sirius and themselves.

This has angered many XM subscribers and loyal fans of the Opie and Anthony Show and has caused them and I to cancel our subscriptions to make them understand that we will not stand for censorship and the degradation of Free Speech on a PAID service that markets itself as uncensored. This action has and will cause a hurt in XM's bottom line and will force shareholders to take notice that XM answers to their paid and future subscribers, not advertisers or organizations with an agenda.

I would like (hope) that you post this on your site and show everyone that the consumer is the one whose voice needs to be heard!

Thank you,
Al

XM Radio Suspends Opie & Anthony [XM]
***NEW***List of things YOU can do to help O&A [People Against Censorship]
XM subscribers backlash over O&A suspension [Digg]

Really though, people should use a suite of firewall, anti-viral, and anti-spyware solutions. We recently added NOD32 to our arsenal, supplanting ZoneAlarm's anti-viral.

Mainly, though, we talk about computer repair, and how often times big box retailers outsource to local tech places, so why not cut out the middleman? — BEN POPKEN

The Geek Squad Inside Scoop [Mario's Digital Cafe]

Internet radio's low overhead allows for stations to broadcast on a shoestring budget and still access a worldwide audience. For some college stations that only have small transmitters or broadcast in small communities, streaming actually becomes the main source for listeners.

The newest SoundExchange royalty rates are so dangerous to internet radio because they effectively eliminate both of these advantages to streaming. Not only will royalties see a 150 percent increase over the next five years, but a $500 fee per channel will also be introduced.

If stations want to increase their listener capacity on one channel above 200 listeners, they will be forced to pay more for each accrued listening hour. Finally, since the settlement was supposed to have taken effect in 2007, stations are already in the position of having to retroactively pay the missed fines to SoundExchange within 90 days of receiving notice, which may again be during summer hours when stations are not operating at full capacity.

These prohibitive costs will force internet radio towards the current commercial model of terrestrial radio. College radio stations and other small stations will undoubtedly find the cost to be too high, forcing them to either stop streaming, increase advertisements, or negotiate directly with the RIAA for different terms, lengthening the already lengthy legal battle.

With SoundExchange holding all the cards, internet radio may quickly find itself being bullied into a model the recording lobby finds most profitable

RIAA Tacks on New Fees, Threatening College Radio [Harvard Crimson]
(Photo: cogdogblog)

Today, on behalf of the public radio system, NPR filed a motion for rehearing with the Copyright Royalty Board in response to its March 2, 2007 decision on rates for streaming internet music. This action is the first step in NPR's efforts to reverse the decision, and it will be followed by an appeal of the Board's decision to be filed with the U.S. Court of Appeals for the DC Circuit.

NPR Files:

PUBLIC VERSION 1 UNITED STATES COPYRIGHT ROYALTY JUDGES

____________________________________
In The Matter Of:
Docket No. 2005-1 CRB DTRA
Digital Performance Right in Sound
Recordings and Ephemeral Recordings
____________________________________

MOTION FOR REHEARING OF NATIONAL PUBLIC RADIO, ITS MEMBER STATIONS, AND ALL CORPORATION FOR PUBLIC BROADCASTING-QUALIFIED PUBLIC RADIO STATIONS (collectively "NPR")

Preliminary Statement

NPR files this motion for rehearing of the Copyright Royalty Judges' Determination of Rates and Terms herein issued on March 2, 2007 (the "Decision"). The Decision, unless modified, will have crippling effects on the ability of public radio to fulfill its mandate to serve the public interest, as it will multiply NPR's license costs several-fold and thus make cost-prohibitive any systematic effort on NPR's part to continue its prior commitments (i) to enhance online music discovery and education opportunities for its listeners and (ii) to provide more exposure for emerging and non-mainstream artists via streaming.

The manifest errors committed by the Judges in reaching their determination as to NPR are beyond the scope of a rehearing motion as contemplated by 37 C.F.R. 353. NPR intends, in due course, to appeal the Judges' Decision to the D.C. Circuit Court of Appeals. NPR thus reserves all its rights to challenge the Decision on appeal - on the grounds that it was arbitrary and capricious, an abuse of discretion and/or unsupported by sufficient evidence - insofar as it, inter alia: (i) establishes an arbitrary and insupportable annual minimum fee of $500 per NPR station or channel (which alone computes to a fee that would be approximately [[5 times]] the effective rate paid under the pre-existing voluntary license between NPR and the recording industry), and (ii) on top of that, makes the erroneous and extremely prejudicial determination that many NPR stations should be treated no differently than commercial webcasting services when they pass an arbitrary "point of convergence" with commercial webcasters - at which point they must pay royalties equal to the commercial webcasting rate on an escalating per-performance basis. Decision at 52-53, 58-60.

The instant motion is limited to specific issues that the Judges likely did not consider fully (or at all) and which, NPR believes, require a rehearing to avoid plainly inequitable outcomes that would befall NPR imminently unless addressed at this time. The crux of NPR's instant rehearing motion is that, putting aside the core merits issues which NPR will appeal, the rate structure formulated by the Judges for NPR simply is unworkable in application in two fundamental respects described below (relating to its establishment of a monthly aggregate tuning hour ("ATH") threshold which, if surpassed by any NPR station, would trigger additional royalty payments on a per-performance basis). A rehearing is necessary so the Judges may: (i) reconsider the ATH threshold and per-performance aspects of the fee structure it adopted for NPR and, upon reconsideration, withdraw or modify these aspects of their fee determination as to NPR; or (ii) at a minimum, stay the application of the ATH threshold and per-performance aspects of the Decision until NPR exhausts its appellate remedies.

Argument

THE COPYRIGHT ROYALTY JUDGES SHOULD GRANT A REHEARING TO RECONSIDER THE ATH THRESHOLD AND PER-PLAY RATE STRUCTURE SET FOR PUBLIC RADIO

A. NPR Stations Cannot Comply with the Rate Determination As Formulated

The Judges' rate determination with respect to NPR requires NPR and its stations to track two data-points on a station-by-station basis: (1) each station's monthly aggregate tuning hours; and (2) in the event the station's monthly ATH exceeds a threshold of 159,140 ATH, individual performances of sound recordings above and beyond that threshold. See Decision at 57-58, 61 (determining that NPR stations must pay $500 per station/channel annually plus a per-performance fee equal to the commercial webcasting per-play rates for those performances of sound recordings requiring a license after the station surpasses a specific ATH figure in any month). Both these data-points are essential to NPR's ability to operate under the Decision (as it pertains to NPR); and both are infeasible for NPR to track and report—thus warranting a rehearing in order to consider how, if at all, to implement the Judges' determinations in respect of NPR (both in the short and long term).

1. The Vast Majority of NPR Stations Are Unable to Track ATH In Order to Calculate the ATH Threshold.

In determining rates for public radio, the Judges appear to have relied on SoundExchange Trial Ex. 67, a rough survey conducted by NPR to investigate the webcasting activities of NPR and CPB-funded stations. Decision at 59. Specifically, the Judges noted that, according to the survey, the NPR respondent stations reported an average of 218 simultaneous connections—which the Judges equated to 159,140 ATH per month (218 x 24 hrs x 365/12). Id. (citing SX Trial Ex. at CRB-NPR000036). However, this survey itself reveals that "79% of stations that air audio on their web sites are unable to provide their station's weekly Aggregate

Tuning Hours (ATH)." SX Trial Ex. at CRB-NPR000031; see also id. at CRB-NPR000042 (same). In other words, the very document upon which the Judges relied in fashioning a monthly threshold of 159,140 ATH—after which NPR stations would be required to pay at the commercial webcaster per-performance rate—also indicated that the substantial majority of NPR stations are unable even to calculate that threshold because they are unable to compute their monthly ATH.

NPR recognizes that services generally have a responsibility to comply with governing regulations, including the implementation of reasonable reporting requirements, and also recognizes that the Judges may not be required to craft rates and regulations to accommodate every limitation faced by every service in a market. However, where it is acknowledged in the very documentation relied upon that almost 80% of the entities affected by a determination lack the systems necessary to comply with a formula that did not exist for public radio before the Judges' Decision (and which was not even proposed by any party in the proceedings), rehearing is warranted to reconsider the chosen formula/methodology.

2. NPR Stations Also Are Unable to Track the Number of Copyrighted Sound Recording Performances In Order to Calculate Their Payments Due Beyond the ATH Threshold.

Even for NPR stations that may be able to determine their monthly ATH, it is readily apparent that NPR stations generally cannot calculate, as the Decision would require (in order for NPR stations to calculate what, if anything, they owe on top of the Judges' $500 per station annual fee), the number of copyrighted sound recordings for which payment would be owed if a station exceeded the monthly ATH threshold. This is primarily a function of the fact that the predominant majority of NPR stations transmit a broad mix of programming (dominated by news, public affairs and talk); and, as NPR would elaborate upon a rehearing, it is simply not possible by any means presently known and available to NPR to extract from NPR's program streaming data how many sound recordings were or are streamed during any relevant time period (never mind to any known number of listeners).

The fact that the mix of programming streamed by NPR is as stated above was the subject of NPR witness Kenneth Stern's testimony (see Stern WDT at 6-8) and amply confirmed by the very survey document relied upon by the Judges. Among other things, the survey (SX Trial Exhibit 67) confirmed:

"The most common type of audio content currently provided by the stations is live streaming." Id. at 6. "If stations engage in live streaming, they typically mirror the live stream of their broadcast without interruption....More stations simulcast newscasts, news, public affairs and talk than any other format; this format is followed by classical music and then jazz." Id. at 10.

With respect to streaming from NPR station archived programming, "forty-eight percent of respondents provide their web-users with archived audio clips of news programming. Other music clips follow a distant second with 8%. Id at 3. Further, "[a]lmost half (46%) of stations that provide archival material on their websites cannot cite, with confidence, the hours of material made available. Of those that can, newscasts appear to comprise the largest portion of the archive (85%). Id at 11.

Finally, as to web-only programming, "[n]ews is the most common format of the small group of stations that stream web-only programming." Id at 3.

The foregoing addresses the inability of NPR and its stations to identify the number of sound recording performances occurring in their webcasts attributable to the fact that music performances occur within the broader context of such a diverse slate of programming. Beyond that, there is the additional inability to isolate out from any hypothetically known universe of sound recordings those which, in fact, would require payment at the statutory rate. Music contained in NPR broadcasts is often directly licensed or subject to some statutory exemption, such as fair use. Again, this constitutes just an additional layer of complexity on top of the overarching inability of NPR, as described above, to identify performances for which potential payments beyond $500 per station would be owed under the Judges' public radio fee formulation.

As a final layer of complexity, NPR and its stations have no systematic way of tracking how many listeners actually receive a transmission of a particular music performance at any given time. For example, in the case of live streaming, the NPR station would first have to determine whether a sound recording performance subject to the statutory license was included in the program; then it would have to determine when that performance began and ended; and then it would have to determine how many people were logged on to the stream at that time. For its archived shows, NPR would have to, again, determine which parts of its millions of hours of archived shows contained music performances subject to the statutory license, and then have to track how many listeners accessed the particular parts of archived programming containing such performances.

In sum, even were all these tasks within the realm of possibility, which NPR does not believe presently is the case, NPR submits that, upon rehearing and reconsideration, the Judges should determine that these extremely burdensome and costly tasks are not ones that a licensee (particularly a non-profit public broadcaster whose mission is to serve the public interest) should be forced to take on as a prerequisite to availing itself of a statutory license.

B. In These Circumstances. the Judges Should Withdraw the ATH Threshold and Per-Performance Metrics Applicable to Public Radio Under the Decision

In light of the circumstances set forth in sections A.1 and A.2 above, it is obvious that NPR and its stations cannot reasonably or practically comply with the Judges' rate determination applicable to public radio (other than as it relates to the to-be-appealed $500 per station/channel aspects of the Decision). This circumstance warrants a rehearing and, upon reconsideration of these issues, a withdrawal and/or modification by the Judges of the unworkable ATH threshold and per-performance metrics for public radio set forth in the Decision.

Even if the Judges are not persuaded to rescind or modify these aspects of the Decision for the entirety of the statutory license term, NPR urges the Judges—at a minimum—to rescind them for the "Retroactive Period" (January 2006-March 2007) and the duration of the appeal process herein (which would at least give NPR an opportunity to explore whether systems necessary to report and pay on a strict per-performance basis, above a designated ATH level per station, can be developed and made available to NPR at some reasonable cost—should neither the Judges nor the Court of Appeals grant NPR its requested relief). Surely the hardship to NPR associated with having to seek solutions to the aforesaid compliance problems associated with the Decision for the Retroactive Period and the immediate short term future is enormous; meanwhile, there is no countervailing economic hardship for SoundExchange, since the $500 per station/channel annual fee component of the Decision by itself would be expected to provide SoundExchange with a more than 500% increase in fees compared to those payable under the prior SoundExchange - NPR voluntary agreement.

C. At a Minimum, the Judges Should Stay the Application of Their Rate Determination for Public Radio Until All Appeals Are Exhausted

In light of the unknown manner and/or cost of implementation of the Judges' announced rate structure for NPR, NPR respectfully requests that—at a minimum—the Judges stay the implementation of their rate determination with respect to public radio until NPR's appeal remedies are exhausted.

Although, as noted, NPR intends to appeal the $500-per-station aspects of the Judges' ruling to the Court of Appeals, NPR plans to comply with its obligation to make the calendar year 2007 minimum per-station fees required by the Decision as NPR prosecutes its appeal. Given, as noted, the more than five-fold annual fee increase that this will entail compared to NPR's prior annual payments to SoundExchange, there would obviously be no prejudice to SoundExchange were the Judges to stay implementation of the ATH threshold and per-performance fee aspects of their Decision applicable to NPR pending the appeal process.

Conclusion

For the foregoing reasons, NPR urges the Judges to grant rehearing and, upon such rehearing, to set aside or modify the ATH threshold and per-performance aspects of their fee determination applicable to NPR (or, at a minimum, to stay implementation of such provisions pending the duration of NPR's appeal to the D.C. Circuit Court of Appeals).

March 17, 2007

Respectfully submitted,
Kenneth L. Steinthal (N.Y. Bar No. 1566199)
David J. Taylor (D.C. Bar No. 482421)
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
tel: (650) 802-3100
kenneth.steinthal@weil.com
david.taylor@weil.com
Counsel for National Public Radio, Inc.

CERTIFICATE OF SERVICE

I hereby certify that copies of the MOTION FOR REHEARING OF NATIONAL PUBLIC RADIO, ITS MEMBER STATIONS, AND ALL CORPORATION FOR PUBLIC BROADCASTING-QUALIFIED PUBLIC RADIO STATIONS were served on March 17, 2007 by overnight mail on the following parties:

Thomas J. Perrelli
Jenner & Block LLP
601 Thirteenth Street, NW
Washington, DC 20005
tperrelli@jenner.com
Counsel for SoundExchange

Kenneth Freundlich
Schleimer & Freundlich LLP
9100 Wilshire Boulevard Suite 615 - East Tower Beverly Hills, CA 90212
kfreundlich@earthlink.net Counsel for Royalty Logic, Inc.

William Malone
James R. Hobson
Miller & Van Eaton, PLLC
1155 Connecticut Avenue, NW, Suite 1000
Washington, DC 20036-4306
wmalone@millervaneaton.com
Counsel for Intercollegiate Broadcasting System, Inc. and Harvard Radio Broadcasting Co, Inc.

David D. Oxenford
Davis Wright Tremaine LLP
1500 K Street NW
Suite 450
Washington DC 20005-1272
Telephone: 202-508-6656
Facsimile: 202-508-6665
davidoxenford@dwt.com
Counsel for Accuradio, Digitally Imported, Discombobulated, LLC, Radioio, Radio Paradise, 3wk LLC, and Educational Media Foundation

Seth D. Greenstein
Constantine Cannon
1627 Eye Street, N.W., 10th Floor
Washington, DC 20006sgreenstein@constantinecannon.com
Counsel for Collegiate Broadcasters, Inc.

—MEGHANN MARCO

NPR Files Motion for Rehearing (Press Release) [NPR]
(Photo: anapoli)

PREVIOUSLY: NPR vs THE RIAA

I hope you will print my letter on your site. I had some billing trouble with XM Radio. I paid a year's subscription in full. XM acknowledged that I paid my bill in full, but they kept turning off my service for non-payment. They also raised my subscription rate 2 months after I signed up and paid. They then indicated that they would refund my year's subscription when I complained loudly enough. They reneged on the refund. They also did not follow through on getting the billing issue clarified. As I received no help at all, I sent the following letter to the management team and the head of the Customer Service Division. I have not received so much as a form letter in response. I guess they have been too busy discussing merger strategies and keeping Bob Dylan happy...

Pete writes (to XM Radio):

12/20/06


XM Radio
Mr. Joe Zarella
1500 Eckington Place, NE
Washington, DC 20002


Re: Account # 1-xxxxxxxx

Dear Mr. Zarella,

My wife and I purchased a vehicle this past year in which your Service was provided on a 3 month trial. Very happy with it, we signed up for a year of service. I paid by credit card over the phone in the amount of $144.48. August arrived and my wife paid an additional $11+ on a bill sent by XM. I then received a bill in the amount of $144.48 in September. I called XM and your customer service indicated it was a mistake and that it can be ignored, which I did. I then got another bill in the amount of $72.24 in October. I again called your company, who said (again) that I should ignore this bill. November came, and because I did not pay the $72.24 bill, my service was canceled. I called back to get the service turned and to get to the bottom of the issue. Your representative indicated that I will not receive any more bills and he would reinstate the service. Well, he did not reinstate the service, and I had to call back a couple of days later to again get my radio turned on (wherein they first pointed out that I needed to make payment). I received another bill for $72 in November. I called back to 1-800-XM-Radio, the representative (William Gorhm) and his supervisor (Tony Bennison) indicated that I can be assured that I would not be responsible for the bill and that he would somehow red flag this issue and that I should ignore. Finally, I received a bill over this past December weekend in the amount of $72.24 and a note that my service was scheduled to be canceled for non payment. Frustrated by the lack of attention, not to mention a concern that personal credit issues may arise, I canceled my subscription December 16th.

I find it inane that I paid up front for the year subscription, but was later told I was not charged the correct amount. When I order from Amazon or Eddie Bauer, if there is an error, it is the company's fault, not mine-and they certainly do not come back and say "well, we meant to charge you this much...". The rep told me the total cost of the service and I paid I was told the charge was. I believe you owe me the $11 that was paid in August. I should not have to pay for your training issues...

More importantly, I paid for a year of service, I always explained to your reps, and yet I continued to be billed, and finally had service canceled because of non payment. Yet, every time I talked to someone, and transferred to a manager, there was never any hand-off, no background provided, just an attitude that it is "not really my problem". So I had to explain the situation again and again and again.

All your representatives were very clearly following the company line in that they would not (could not?) go "outside the box" and resolve my recurring billing, but it was clear that there was no clear standards for my issue, only the ability to transfer me to another department. I spoke with Simon Matty (1-800-528-5959 x47278) on 12/16/06, he indicated that XM would refund my entire subscription fee. I agreed that this seemed like the right thing to do, and he transferred me to the department that closes accounts (he indicated he would warm transfer and make them aware of our conversation-he didn't'). They (Retention Department), it turns out, were not willing to do anything for me short canceling my service (all the while telling me how they were willing to "waive" any penalty for cancellation). I asked the supervisor (Tracy N Morgan) to call Mr. Matty, she refused and said that she could did not have the ability to make outbound calls! It is now clear that Simon Matty transferred me simply to put me off, and that Ms. Morgan did not have the ability, resources, or the interest to do the right thing.

The bottom line is this. Since I have become a subscriber (and paid in full), I have received a bill from you for the last 6 months. I have had my service cut off. I have been billed a new rate after I had paid in full. Finally, I was told I was going to receive a full refund by your representative, but another rep said that was not possible. Your company has not followed through on anything it said it would. I would like you to refund my subscription in full, as your representative indicated you would.

I have had both Sirius and XM Radio, and prefer your programming over theirs. It is too bad that I have this vehicle and that the satellite radio is going to go unused ( I drive 100 miles a day). I am aware that there are much more important issues in life than having commercial free radio. I would think, however, that in the life of a company, the most important issue is a happy and satisfied customer-a customer who sees the value of your product. It is clear that your company doesn't understand this.

Sincerely,

Pete A

Acct #1-xxxxxxxx

Maumee, OH 43537

email address

419-xxx-xxxx

cc: Mr. Nate Davis
Subscription

Can anyone identify this morning show? We'd like to try and find the rest of the Black Santa clip.

It distracted us while we downloaded our video from our camera, thought about how annoying it will be to cut together all our footage from inside Best Buy, and what crappy journalists we were. Then we remembered we were bloggers. That's when the sun rose, filling the parking lot with a warm glow. — BEN POPKEN

Well, no, it doesn't. But then again, neither do Creative MP3 players more. Creative has just released a firmware update for it's Zen MicroPhoto and Zen Visin:M players, which disables the box-advertised feature of recording FM radio to your hard drive.

Isn't it nice now that EULAs allow companies to revoke your rights for their own convenience at any time?

Creative Strips FM from Zen Vision [Gizmodo]

"It's no different than what you'd hear from a group of adults having a conversation," insists Wayne Perry, president of SiCap industries. He's right there: if you've ever accidentally mistaken your pepper spray for your nasal spray, you'll know that loudly screaming "FUCK!" is probably the more restrained reaction.

The spot aired on the Howard Stern channels, where "listeners already expected some tasteful profanity." Also, descriptions of how Howard would like to yank out Kim Basinger's vocal chords so she'll shut up long enough to fellate him.

Sirius: 1st ad with 4-letter word [New York Daily News]

"Several stations rejected the spot from Dennis Mitsubishi, which boasts that sales representatives wearing "burqas" - head-to-toe traditional dress for Islamic women - will sell vehicles that can "comfortably seat 12 jihadists in the back."

"We firmly believe the ad does not in any way disrespect any religion or culture, but we feel, I guess, that maybe poking a little fun at radical extremists is fair game," dealership president Keith Dennis said on Saturday. "It was our intention to craft something around some of the buzzwords of the day and give everyone a good chuckle and be a little bit of a tension reliever."

Unfortunately for Keith, the Columbus chapter of the Council on American-Islamic Relations wasn't laughing.

"Using that as a promotional pitch when so many are dying from the criminal activity of suicide bombers, that's not funny," chapter president Asma Mobin-Uddin said. "I don't think it's appropriate when it causes real pain. It exploits or promotes misunderstanding in terms already misunderstood or misused."

Here are a few more choice quotes from the rejected radio spot:

"Our prices are lower than the evildoers' every day. Just ask the pope!"

"Friday is fatwa Friday, with free rubber swords for the kiddies."

Oh dear.

The new format was promoted as "all sex radio, all the time." Songs in last week's playlist have included "Why Don't We Do It In The Road", "Sexual Healing", "Strokin'", "I'm Too Sexy" and "Nasty". If songs aren't overtly pornographic, the sounds of intercourse are overlaid on the track.

Sounds like great radio. The newly pornographic KYFE advertise themselves as "the only radio station with a stripper pole as a broadcast antenna." If only they could get a gigantic, fifty-foot woman to dance on the roof and gyrate her pudenda against it, the image would be complete.

Naturally, local Christians are none too happy. Might I suggest placating them with some Christian themed pornography rock? For example, "Christian Woman" by Type O Negative, in which a woman masturbates with a crucifix. You're hitting all the right buttons with that one.

Religious radio is reborn... as 'porn' [Fresno Bee]

To ClearChannel VP-Creative Jim Cook's remark that, "It really is to find new uses of radio for advertisers who are continually asking us to demonstrate that our medium can successfully extend brands, can successfully reach the consumer with touchpoints that are new and surprising," our everloving stick-in-the-mud Copyranter responds, "Touchpoints. Nice touch, you marketing lexiconic Douche. The Intel chime and NBC bells are listed among the possible mnemonics. Me, I'm hearing a lot of random, annoying AFLACs in my head right now."

In related news, Consumerist.com introduced one-second vomit bags.

comment on this post

"Guess what? We like radio and listen to it frequently. We even used to work in radio.

We don't like marketing surveys that appear to be self-serving to the organizations that conduct them. We won't impugn your survey methods, because frankly, we're busy."

They respond with vim, vigor and bubbles, after the jump...

Mark replied:

"Well, Bob, maybe you should have done your homework then before drawing conclusions about who did what under whose sponsorship.

We paid for the study ourselves, it so happens. And anyone who spends any time on this blog knows full well that we call a spade a spade, whether it suits the industry or not. Look around and see for yourself.

If you're too busy writing a bubble-headed post to study up on our survey methods or at least refer to the limitations we noted in our post and our industry communications, then I suggest you acknowledge your ignorance so your readers know how full of crap you are."

We would've retorted, but Mark closed the comments, presumably to head us off from saying something like this:

"Our readers already know how full of crap we are. That's why they read.

P.S. Bob's your uncle, not my name. "

Which we emailed to him. He replied back, "I fixed the name. Sorry about that. Not intentional."

Mark is probably a fine fellow and it's not cool to hate radio, it's fool. But if the response to our survey and posts is any idication, is questionable how "beyond reproach" his numbers are. Perhaps there's stat-hoes amongst you readers that would like to check it out and report back?

If not, that's okay, we'll just let this one die. Like radio.

Previously:

• Mercury Research says The Consumerist is a Radio Hata'
  
• Radio Self-Fulfills Self-Aggrandizing Prophecy

We hate radios because it's "cool" to hate radios.

That's according to Mark Ramsey of the Radio Marketing Nexus blog. His company, Mercury Radio Research, conducted the "HD Radio vs. iPod" poll we wrote about.

Mark says,

"folks who don't brush up on what they're talking about only make themselves look like idiots when they post their stupid, half-cocked conclusions in public. If you want a biased presentation of alternatives, just see the way they present them: "gleaming, fresh iPod"? Of course, they're only kidding. But hidden within that jest is a deep dislike for radio and the "establishment" it represents- a tune as old as James Dean and his chinos."

We haven't heard that tune. Anyone got the .mp3? We'd like to put it in our shimmering, verdant iPod. And a "deep dislike for radio" and The Man it represents? Not necessarily the most astute analysis of the data set, stat boys.

His company's research, as reported in FMQB, a radio industry newsletter, found that people prefer HD radios over iPods, citing "usability." They surveyed 1000 people across America. Last time, we ran our own poll and got 777 responses, let's post it again and see if we can at least get as many as they.

Gawker Media polls require Javascript; if you're viewing this in an RSS reader, click through to view in your Javascript-enabled web browser.

See also Mark's original blog post, HD Radio preferred over iPods, which lays out some more data slices and critiques, such as, "this tradeoff is like asking folks which they'd rather have, an iron or an HD Radio?" and "It's a little slice of PR...Nothing more."

"A new survey from radio marketers Mercury asked 1,000 people, if a new iPod and an HD Radio receiver were the same price, which would they prefer. As seen in the graphs... the majority chose HD Radio, citing that a radio is simply easier to use than an iPod."

We think this is a crock of unprocessed bologna bits. Small surprise that the survey was conducted by a radio marketing group and reported on FMQB, a radio industry newsletter.

Let's do our own survey:

Gawker Media polls require Javascript; if you're viewing this in an RSS reader, click through to view in your Javascript-enabled web browser.

That said, we saw this radio ad posted on Church Marketing Sucks, and we just had to post it. Using the distinctive format of an advertisement for a Monster Truck Rally, the spot advertises St. Andrew's Episcopal Church in Alabama. Here's a partial transcript:

This SUNDAY! SUNDAY! SUNDAY! It's a SACRAMENTAL SHOWDOWN at St. Andrew's Episcopal Church in South Side! See the St. Andrews Acolyte Drill Team Amaze The Crowd With Feats of LITURGICAL ACROBATICS! Feel the OVERWHELMING TSUNAMI OF LOVE during the Singing of the Peace! And witness GIANT SIN-CRUSHING LOAVES OF BREAD and MONSTER VATS OF WINE wash away your sins during the Eucharist

Really quite clever. Apparently, it isn't an officially-sanctioned ad, instead put together by one of the church-goers on a lark, but is generating such great Episcopalian buzz that the church is debating whether or not to actually put it on the radio. Head over to Church Marketing Sucks to listen to the whole thing.

Monster Truck Church Ad [Church Marketing Sucks]

I asked the installers where they were going to install the satellite antenna because I had done my homework and found that the antenna needs a good line of sight to the satellites and should be put either on the roof or on the trunk deck for convertibles, which my Saab is. They told me they always install them on the dash by the windshield and that it works perfectly from that location. I questioned that and explained that Sirius recommends putting it outside the car for proper reception but they adamantly informed me that they had installed thousands of antennas over the past two years and the dash was fine for "perfect" reception. They also told me that the antenna cable provided in the Sirius kit I purchased would not reach all the way to the trunk so they really had no choice but to put it on the dash. I left to get something to eat and leave them to their work with any uneasy feeling about the antenna location but there was nothing further I could do at that point as they were going to install it on the dash or not at all.

It gets worse and worse and worse, until a "free" installation of his satellite radio system ends up costing him over two hundred bones. One fascinating thing about the complaint is how James Kendrick, clearly more on the ball than the Best Buy technicians who installed his system, goes through so many pains even in retrospect to meet Best Buy in the middle and be as happy with his service as he clearly wanted to be going in. When you are this fair and balanced and still end up pissed, you just know you got screwed.