Even though the National Association of Broadcasters has been successful in getting about 240 Congressional Representatives (far more than a majority of the House of Representatives) to sign onto a resolution opposing the adoption of a performance royalty for the use of sound recordings by broadcasters in their over-the-air programming, the efforts to enact that legislation have not died. In fact, if anything, these efforts by the recording industry and related associations have intensified - and will be reflected in a hearing to be held by the Senate Judiciary Committee on Tuesday afternoon. While I've seen some commentary suggesting that this is a futile effort because of the signatures on the NAB resolution, there are many reasons that broadcasters must continue to be wary of the imposition of the royalty, and why they must keep up efforts to stop it from being enacted if they fear its potential impact.

How can this legislation be enacted if a majority of the House of Representatives have signed the resolution stating their opposition? First, it is important to recognize that the NAB resolution, The Local Radio Freedom Act, is nonbinding. Congressional representatives who have signed on to the resolution can take credit with their local broadcasters for having done so. When the time comes for a vote on proposed legislation, it's possible that these same Representatives could change their mind, or be pressured by artists and labels in their districts to vote differently from their previously expressed sentiments. With a long way to go in this session of Congress, facing a vote on the royalty and seeing how committed these Representatives are to the positions that they have taken on the resolution is still a real possibility. The legislation imposing the royalty (or the "performance tax" in the words of the NAB) has passed the House Judiciary Committee, and the Speaker of the House has not yet specifically stated that the bill will not come to a full House vote, even though she has been pressed to do so by broadcast interests.

Broadcast representatives are also afraid of another tactic being used - tacking this bill onto some other legislation making its way through Congress. Often riders are added to major pieces of legislation having nothing to do with the subject of the rider, as the sponsors know that some controversial issues may never pass if considered on their own. But, if attached to major legislation that the majority of the Congress supports and the President will not veto, the controversial legislation can be enacted. Some broadcast representatives fear that the performance royalty can be slipped into some pending legislation and cleared by Congress without ever being subject to an up or down vote on its own merits.

The hearing on Tuesday is but one more demonstration that the issue is not dead yet. The Senate would not be wasting its time if there was not still an active attempt to get the legislation through the current Congress. The hearing will feature singer Shelia E on behalf of the royalty proponents (continuing a parade of artists visiting Congress on behalf of the royalty), a representative of Rounder Records (a small record label - rarely have major label representatives testified on behalf of the royalty though they will get the lions share of the benefit - perhaps because NAB supporters would ask about past record contracts and whether they were fair to artists), Steve Newberry (a radio broadcaster and the Chair of the NAB's joint board), and Jim Winston (counsel to the National Association of Black Owned Broadcasters - a major opponent of the royalty because of its potential impact on minority-owned stations). The hearing will also examine whether all music platforms should have parity in their rates, presumably why a Vice President of Real Networks is testifying. Finally, Ralph Oman, a law professor and former Register of the Copyrights, will be on the panel appearing before the committee. The current Copyright Office chief has testified in favor of the performance royalty in past proceedings.

With the hearing coming up, both sides of the issue are gearing up for the fight, soliciting expressions of support for their positions. During the upcoming Congressional recess, the sides will also be exerting local pressure on their legislators. Broadcasters who fear the royalty will need to solidify their Congressional support, and make sure that their advocates are careful to insure that no end around is attempted in the upcoming Congressional session.