Rupa Marya v. Warner Chappell Music Inc

Filing 126

SUPPLEMENT to MOTION for Order for (i) OVERRULING DEFENDANTS' CLAIM OF PRIVILEGE IN DOCUMENTS PRODUCED BY A NON-PARTY, OR PERMITTING A SECOND RULE 30(b)(6) DEPOSITION TO DETERMINE THE FACTUAL BASIS FOR THAT CLAIM; (ii) GRANTING RELIEF FROM THE DISCOVERY CUTOFF 123 [REDACTED] filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration Supplemental Decl of Betsy C. Manifold, # 2 Exhibit 13, # 3 Exhibit 14, # 4 Exhibit 15, # 5 Exhibit 16, # 6 Exhibit 17 [REDACTED & FILED UNDER SEAL])(Manifold, Betsy)

EXHIBIT 13

Ex. 13

3

http://www.ascap.com/licensing

GENERAL LICENSE AGREEMENT - RESTAURANTS, BARS, NIGHTCLUBS, AND SIMILAR
ESTABLISHMENTS
Agreement between American Society of Composers, Authors and Publishers ("ASCAP"), located at 2 Music Square
West, Nashville, TN 37203 and
LICENSEE Legal Name: ____________________________________________________________________________________
LICENSEE Business Name: _________________________________________________________________________________
Address: _________________________________________________________________________________________________
________________________________________________________________________________________________________
Tel: _____________________________ Fax: _____________________________ Email: _____________________________
 Corporation  Partnership  LLC
 Other __________________________
(Check one)  Individual Owner

as follows:
1.

(a) ASCAP grants, and LICENSEE accepts, for a term of one
(1) year, commencing ________________________________
and continuing thereafter for additional terms of one (1) year
each unless terminated by either party as hereinafter provided, a
license to perform publicly at the premises located at (check one)
 same legal address as above  same mailing address as
above  (other address; please complete) __________________
____________________________________________________
(the “Premises"), and not elsewhere, non-dramatic renditions of
the separate musical compositions now or hereafter during the
term hereof in the ASCAP Repertory (see definitions below).
(b) This Agreement shall operate to the benefit of, and shall be
binding upon, the parties hereto and their respective successors
and assigns. Any assignment of this Agreement shall require
ASCAP’s prior written approval. No assignment shall relieve
the parties hereto of their respective obligations hereunder as to
performances rendered, acts done and obligations incurred prior
to the effective date of the assignment, provided, however, that
assignee may accept the obligations of assignor upon written
notice to ASCAP.
(c) Either party may, on or before thirty (30) days prior to the
end of the initial term or any renewal term, give notice of
termination to the other. If such notice is given, the Agreement
shall terminate on the last day of such initial or renewal term.
(d) Upon a change in the Premises address, LICENSEE shall
notify ASCAP immediately of such new address, which shall be
incorporated herein.
2.

accompanied or unaccompanied by dialogue, pantomime, dance,
stage action, or visual representation; or (iv) performance of a
concert version of a Dramatico-Musical Work.

Grant; Term of License

Limitations on License

(a) This license does not authorize the broadcasting, telecasting
or transmission by wire or otherwise, of renditions of musical
compositions in the ASCAP Repertory to persons outside of the
Premises, other than by means of a music-on-hold telephone
system operated by LICENSEE at the Premises.
(b) This license does not authorize live concert performances at
the Premises when tickets for such live concert performances can
be purchased from or through Outside Ticket Services (see
definitions below).
(c) This license is limited to non-dramatic performances, and
does not authorize any dramatic performances. For purposes of
this Agreement, a dramatic performance shall include, but not be
limited to, the following: (i) performance of a DramaticoMusical Work (see definitions below) in its entirety; (ii)
performance of one or more musical compositions from a
Dramatico-Musical Work accompanied by dialogue, pantomime,
dance, stage action, or visual representation of the work from
which the music is taken; (iii) performance of one or more
musical compositions as part of a story or plot, whether
1

3.

License Fees and Payments
(a) In consideration of the license granted herein, LICENSEE
agrees to pay ASCAP the applicable license fee set forth in the
Rate Schedule and Statement of Operating Policy annexed hereto
and made a part hereof. LICENSEE represents and warrants that
the Statement of Operating Policy is true and correct as of the
date hereof.
(b) License fees due under this Agreement shall be paid
pursuant to either subparagraph 3(b)(i) or 3(b)(ii).
(i) Full Payment. LICENSEE shall pay the annual license
fee for the initial license term upon execution of this
Agreement and for subsequent license terms no later
than thirty (30) days after the anniversary date of this
Agreement.
(ii) Installment Payments. LICENSEE shall pay the
annual license fee in quarterly installments of onequarter (¼) the annual license fee upon execution of
this Agreement and thereafter no later than thirty (30)
days after the close of each quarterly period.
Notwithstanding the above, if any license fees from
any year remain due and owing for a period of more
than ninety (90) days, any unpaid portion of
LICENSEE’s license fees for such year(s) will be
immediately due and payable.
(c) If LICENSEE pays the annual license fee in full in
accordance with subparagraph 3(b)(i), LICENSEE shall be
entitled to a discount to the applicable license fee for such year
as set forth on the Rate Schedule, provided that no license fees
remain due and owing under this or any other prior ASCAP
license. LICENSEE will not be eligible for any discount if
LICENSEE pays its license fee in installments or pays fees for
seasonal or occasional performances.
(d) LICENSEE agrees to pay ASCAP any applicable charge
levied by banks or other financial institutions for each unpaid
check, draft or other form of monetary instrument submitted by
LICENSEE to ASCAP, but in no event less than $35.
(e) In the event LICENSEE shall be delinquent in payment of
license fees due hereunder by thirty (30) days or more,
LICENSEE agrees to pay a finance charge on the license fees
due of 1½% per month, or the maximum rate permitted by the
law of the state in which the Premises licensed hereunder are
located, whichever is less, from the date such license fees
became due.
(f) Governmental Entities (see definitions below) may impose
Ex. 13
special taxes or levies on ASCAP related to the licensing of
4

http://www.ascap.com/licensing
GENERAL LICENSE AGREEMENT – RESTAURANTS, BARS, NIGHTCLUBS, AND SIMILAR ESTABLISHMENTS

period, this license shall terminate on the expiration of that period
without further notice from ASCAP to LICENSEE.

public performances.
Accordingly, in the event that
LICENSEE's payment of fees under this Agreement causes
ASCAP to incur a liability to pay a gross receipts, sales, use,
business use, or other tax which is based on the amount of
ASCAP's receipts from LICENSEE, the number of licensees of
ASCAP, or any similar measure of ASCAP's activities, then
LICENSEE agrees to pay to ASCAP the full amount of such tax,
provided that (i) ASCAP has taken reasonable steps to be
exempted or excused from paying such tax; and (ii) ASCAP is
permitted by law to pass through such tax to its licensees.
4.

6.

Governmental Entities from time to time may enact laws that create
obstacles to ASCAP’s licensing of public performances.
Accordingly, in the event of either (a) any major interference with
the operations of ASCAP in the Governmental Entity in which
LICENSEE is located, by reason of any law of such Governmental
Entity; or (b) any substantial increase in the cost to ASCAP of
operating in such Governmental Entity, by reason of any law of
such Governmental Entity, which is applicable to the licensing of
performing rights, ASCAP shall have the right to terminate this
Agreement immediately and shall refund to LICENSEE any
unearned license fees paid in advance.

Changes in LICENSEE's Operating Policy

(a) LICENSEE agrees to give ASCAP notice of any change in
LICENSEE's Operating Policy (see definitions below) and shall,
at such time, furnish to ASCAP a current Rate Schedule and
Statement of Operating Policy and shall certify that it is true and
correct.
For purposes of this Agreement, a change in
LICENSEE's Operating Policy shall be one in effect for at least
thirty (30) days.
(b) Upon any change in LICENSEE's Operating Policy
resulting in an increase in the applicable license fee, LICENSEE
agrees to pay ASCAP the increased license fee, effective as of
the initial date of such change, whether or not written notice of
such change has been given pursuant to subparagraph 4(a)
hereof.
(c) Upon any change in LICENSEE's Operating Policy
resulting in a reduction in the applicable license fee, LICENSEE
shall be entitled to the reduction, effective as of the initial date of
such change, and to a pro rata credit for any unearned license
fees paid in advance, provided LICENSEE has given ASCAP
written notice of such change. If LICENSEE fails to give
ASCAP such written notice within thirty (30) days of such
change, any reduction and credit shall be effective thirty (30)
days after LICENSEE gives ASCAP written notice of the
change. ASCAP reserves the right to verify the basis for any
reduction and/or credit and may reject or reverse any such
reduction and/or credit if no basis for such reduction and/or
credit exists.
(d) If LICENSEE discontinues the performance of music at the
Premises, LICENSEE or ASCAP may terminate this Agreement
upon thirty (30) days notice, the termination to be effective at the
end of the thirty (30) day period. In the event of such
termination, ASCAP shall refund to LICENSEE a pro rata share
of any unearned license fees paid in advance. For purposes of
this Agreement, a discontinuance of music shall be one in effect
for at least thirty (30) days.
5.

Interference in ASCAP's Operations

7.

Notices

Notices of termination under this Agreement shall be given only if
mailed to the other party by registered or certified U.S. Mail or sent
by generally recognized same-day or overnight delivery service.
Unless stated otherwise, all other notices required or permitted to
be given by either party to the other hereunder shall, in addition to
the methods set forth above, also be given if sent by first class U.S.
Mail, facsimile or electronic mail (e-mail) transmission. Notices to
ASCAP shall be sent to the attention of VP of General Licensing as
follows: (a) if by U.S. Mail, to the ASCAP address set out above;
(b) if by facsimile, to 615-691-7795; and (c) if by electronic mail,
to [e-mail]. Notices to LICENSEE shall be sent to the
mailing address, facsimile number or electronic mail address set
out above. Each party agrees to inform the other of any change of
address and/or contact information.
8.

Definitions.
(a) “ASCAP Repertory” shall mean musical works for which
ASCAP has the right to license public performances now or
hereafter during the term of this Agreement. All compositions
written and copyrighted by ASCAP members and in the
repertory on the date this Agreement is executed are included for
the full term of this Agreement. Compositions written or
copyrighted by ASCAP members during the license term are
included for the full balance of the term.
(b) “Dramatico-Musical Work" shall mean a work such as, but
not limited to, a musical comedy, opera, play with music, revue,
or ballet.
(c) “Governmental Entities” shall mean states, territories,
dependencies, possessions or political subdivisions.
(d) “Operating Policy” shall mean all of the factors that
determine the total license fee applicable to the Premises under
the Rate Schedule.
(e) “Outside Ticket Services” shall mean third-party services
distributing tickets to the public for events at the Premises, such
as, but not limited to, Ticketmaster, Ticketweb and Ticketron.

Breach or Default

Upon any breach or default by LICENSEE of any term or condition
herein contained, ASCAP may terminate this license by giving
LICENSEE thirty (30) days notice to cure the breach or default,
and in the event that it has not been cured within the thirty (30) day

IN WITNESS WHEREOF, this Agreement has been duly executed by ASCAP and LICENSEE, this ____ day of ______________, 20__.
AMERICAN SOCIETY OF COMPOSERS,
AUTHORS AND PUBLISHERS
By:
_______________________________

LICENSEE _____________________________
By:

NAME: _______________________________

NAME: ________________________________

TITLE: _______________________________

TITLE: ________________________________

________________________________

(For ‘Title’, fill in capacity in which signed: (a) If corporation, state corporate office held; (b) If partnership, write word "partner"; (c)
If individual owner, write "individual owner.

Ex. 13

2

5

ASCAP 2010 Radio Station License Agreement
AGREEMENT made between American Society of Composers, Authors and Publishers (“ASCAP”), located at One Lincoln
Plaza, New York, New York 10023 and

for Radio Station
(Legal Name of LICENSEE)

Call Letters
and Band

Frequency

FCC Community
of License

FCC ID

(city)

(state)

Please Check Appropriate Box and Complete
A corporation organized under the laws of the State
of
A limited liability company organized under the laws of the
State of
A partnership consisting
of
An individual residing at

(“LICENSEE”, “you”, “your”) of the Radio Broadcasting station (“Station”) currently receiving mail at:
(Street Address or P.O. Box)

(City)

(State)

Location of Station:

(Zip Code)

(Telephone Number)

Check box if same as above.
(Street Address or P.O. Box)

(City)

(State)

Telephone
number:

(Zip Code)

Fax number:

Email address:
with the Radio Station Web Site URL:
http://
1.

Term.

The term of this Agreement commences as of January 1, 2010, and ends on December 31, 2016, unless earlier terminated as hereinafter
provided.
2.

Definitions.

A.
“ASCAP Repertory” means musical works for which ASCAP has the right to license for public performance now or
hereafter during the term of this Agreement. All compositions written and copyrighted by ASCAP members and in the repertory on the
date this Agreement is executed are included for the full term of this Agreement. Compositions written or copyrighted by ASCAP
members during the license term are included for the full balance of the term.
B.
“Background Music For An Announcement” means mood, atmosphere or thematic music performed as background to
an otherwise non-musical commercial, public service or station promotional announcement not exceeding sixty (60) seconds in length.
C.
“Feature Performance” means any performance that is either a principal focus of audience attention, such as a song or
other musical composition, whether performed “live” or by means of a recording, or other feature musical subject matter on a radio
Ex. 13

6

program that is not a performance as a theme or signature, bridge, cue or background music, Jingle, or in conjunction with an advertising,
promotional, or public service announcement or logo.
D.

“Gross Revenue from Radio Broadcasting” means all:
(1)

cash payments for Station’s Radio Broadcasting (as defined below) operations made by or on behalf of:
(a)

(b)

sponsors of, or donors to, your Simulcast Programs (as defined below), and

(c)

sponsors of, or donors to, your Occasional Network Programs (as defined below), and

(d)
(2)

Advertisers, sponsors, donors, Local Managers (as defined below) or any other party for the use of
the facilities of the Station,

any of the above received by any Local Manager (as defined below) and

Net Promotional Revenue (as defined below).

Such payments include all payments made to you, your employees, representatives, agents or any other person acting on your
behalf, including time brokers. Such payments shall not include payments made to independent third parties, such as networks or
program suppliers, or non-cash payments such as payments in goods or services commonly referred to as “trades” or “barter.”
E.
“Gross Revenue from New Media Transmissions” means all cash payments made by or on behalf of advertisers,
sponsors, donors, subscribers, or any other party, in connection with “New Media Transmissions” (as defined below). Such payments
include all payments made to you, your employees, representatives, agents, or any other person acting on your behalf. Such payments
shall not include payments made to independent third parties, such as networks or program suppliers, or non-cash payments such as
payments in goods or services commonly referred to as “trades” or “barter.”
F.
“Incidental Use” means any use of music other than a Feature Performance, including music used as a theme or
signature; bridge, cue or background music; Background Music For An Announcement; a Jingle; public domain music in arrangements
controlled by ASCAP on which ASCAP pays no royalties; and music which is used only incidentally to the broadcast of a news event or
sports event.
G.
“Jingle” means a commercial, promotional or public service announcement containing musical material (with or
without lyrics) originally written for commercial, promotional, or public service announcements, or a musical work originally written for
other purposes with the lyrics changed for commercial, promotional, or public service announcement purposes, not exceeding sixty (60)
seconds in length and used with the permission of the ASCAP writer or publisher member in interest.
H.
“Local Manager” means any entity not under common ownership or control of LICENSEE that is authorized to resell
10% or more of Station’s air time and (1) simulcasts or sells announcements on Station in combination with a radio station owned or
operated by the entity, which station has entered into an ASCAP Radio Station License Agreement; or (2) has assumed, contractually or
otherwise, responsibility for the management of Station and the payment of license fees.
I.
“Music-Format Station” is any station that has Feature Performances of music in the ASCAP Repertory in more than
90 of its “Weighted Program Periods” (as defined below) in any given week on its terrestrial analog signal.
J.
“Net Promotional Revenue” means all cash payments that you receive from third parties for the direct or indirect
promotion of their businesses via the broadcast facilities of the station other than paid programs or commercial announcements (such as,
but not limited to, bridal or craft shows, direct mailings, special sponsored events, or publications produced and promoted by the station),
less those out-of-the-ordinary costs, such as booth rentals, printing and mailing expenses, and cost of goods sold, that would not have
otherwise been incurred without the promotional activity. Deductible costs may not exceed the cash payments received.
K.
“New Media Transmissions” include any performances transmitted via the Internet, wireless data networks, or any
other similar transmission facilities.
L.
“Non-Music-Format Station” is any station that has Feature Performances of music in the ASCAP Repertory in 90 or
fewer of its “Weighted Program Periods” (as defined below) in any given week on its terrestrial analog signal.
M.
“Occasional Network Programs” means all programs that you cause to be broadcast simultaneously or by so-called
“delayed” or “repeat” broadcasts on any group of two or more radio stations that are affiliated with you for the purpose of broadcasting
those programs. For the purposes of this Agreement, any sports network that you operate is deemed to be an occasional network.
N.
“Program Period” means a fifteen (15) -minute period of Radio Broadcasting (as defined below) commencing on the
hour and at fifteen (15), thirty (30), and forty-five (45) minutes past the hour without regard to whether such period contains one or more
programs or announcements.
Ex. 13

2

7

O.
“Radio Broadcasting” means audio “over-the-air” broadcasts by means of Station’s FCC-licensed terrestrial analog
signals and HD/multicasting of its FCC-assigned digital facilities (sometimes referred to as “multicasting” or “HD Radio”) as identified
with the FCC’s unique station identifier or FCC Facility ID. Radio Broadcasting excludes FCC-licensed low power audio broadcasting,
with similar technical characteristics and requirements as currently defined in 47 C.F.R. § 73.801, et seq., but it includes FM Translators as
defined in 47 C.F.R. § 74.1231.
P.
deduction.

“Revenue Subject to Fee from Radio Broadcasting” means “Gross Revenues from Radio Broadcasting” less a 12%

Q.
“Revenue Subject to Fee from New Media Transmissions” means Gross Revenue from New Media Transmissions less
a 25% deduction, unless such deduction is modified pursuant to Paragraph 7 of the agreement between ASCAP and the Radio Music
License Committee (“RMLC”) that is attached as Exhibit A to this Agreement (“ASCAP/RMLC Agreement”), the terms of which are
incorporated herein by reference.
R.
“Simulcast Programs” means all programs broadcast simultaneously or by so-called “delayed” or “repeat” broadcasts
by two or more radio stations that you own or for which you act as a time broker.
S.
“Through-to-the-Audience License” means, in reference to the scope of the rights granted under this Agreement, a
license that authorizes the transmission and retransmission of any Radio Broadcast or New Media Transmission to subscribers, listeners or
viewers by whatever means so long as each entity involved in the transmission or retransmission other than LICENSEE has an economic
relationship to LICENSEE within the meaning of Section II.S of the Second Amended Final Judgment entered in United States v. ASCAP
(“AFJ2”). For the avoidance of doubt, nothing in this license shall be construed as authorizing LICENSEE to grant to bars, restaurants,
taverns, hotels, retail establishments, and other similar businesses or establishments, any right to perform publicly any of the musical
compositions licensed under this Agreement.
T.

“U.S. Territory” means the United States, its commonwealths, territories and possessions, including Puerto Rico.

U.

“Weighted Program Period” means a Program Period multiplied by the following weights:

Time Period

Applicable Weight

Weekdays:

Midnight to 6:00 a.m.
6:00 a.m. to 10:00 a.m.
10:00 a.m. to 3:00 p.m.
3:00 p.m. to 7:00 p.m.
7:00 p.m. to Midnight

0.25
1.00
0.50
0.75
0.50

Weekends

All day Saturday and Sunday

0.25

3.

ASCAP Grant of Rights and Limitations.

A.
ASCAP grants LICENSEE a non-exclusive Through-to-the-Audience License to perform publicly in the U.S. Territory,
by Radio Broadcasting or New Media Transmissions, non-dramatic performances of all musical works in the ASCAP Repertory during the
Term.
B.
This Agreement does not license the performance of any dramatico-musical works, such as operas, operettas, musical
comedies or plays, in whole or in part, or grant LICENSEE any other rights in the musical compositions licensed under this Agreement.
C.
The performances licensed hereunder may originate at any place, whether or not such place is licensed to perform
publicly the musical works licensed hereunder, and regardless of the manner, means or methods of such origination. Except as provided
in Paragraph 3.A above, nothing in this Agreement shall be deemed to authorize LICENSEE to grant to others any performance or other
rights in any of the musical compositions licensed under this Agreement or to extend to the receiver of LICENSEE’s Radio Station Signal
or to any place at which the performances licensed by this Agreement originate if other than at Station and for which a separate license for
such performances is required.
4.

License Fee; Minimum Fee; Taxes.

A.
For all periods through December 31, 2011, if Station was licensed under the terms of the 2004 Radio Station License
Agreement or the ASCAP 2010 Radio Station Interim License Agreement, the license fees due and payable, and all the additional terms
and conditions that shall be applicable hereunder for such periods, shall be as provided in the ASCAP/RMLC Agreement.
B.
If you elect to pay a license fee on the blanket basis for your Radio Broadcasting, subject to the election provisions of
Paragraphs 6.A and 6.B below, you agree to pay us a license fee of 1.7% of your Revenue Subject to Fee from Radio Broadcasting for each
year 2012 through 2016 of the Agreement.
Ex. 13

3

8

C.
If your terrestrial analog signal broadcast has 90 or fewer Weighted Program Periods per week that contain at least one
Feature Performance of music in the ASCAP Repertory, you may elect to pay a license fee on the program-period basis for your Radio
Broadcasting, subject to the election provisions of Paragraphs 6.A and 6.B below, and you agree to pay us the following license fee for
each year 2012 through 2016 of the Agreement:
(1)

a base fee of 0.2958% of Revenue Subject to Fee from Radio Broadcasting, plus

(2)
a supplemental fee, calculated based upon the number of Weighted Program Periods in your terrestrial analog
signal broadcast per week containing at least one Feature Performance of music in the ASCAP Repertory, as follows:
Weighted Program Periods Per Week with Feature Performances of
music in the ASCAP Repertory

Supplemental Fee

0
1–4
5–20
21–90
91 or more

None (“Base Fee Only”)
9% of base fee (“Minimum Supplemental Fee”)
45% of base fee (“Median Supplemental Fee”)
200% of base fee (“Maximum Supplemental Fee”)
Blanket basis only

D.
If your New Media Transmissions are limited to streaming your Radio Broadcasting via the Internet, wireless data
networks or any other similar transmission facilities, include your Revenue Subject to Fee from New Media Transmissions with your
Revenue Subject to Fee from Radio Broadcasting when calculating your license fee pursuant to either Paragraph 4.B or 4.C above.
E.
If your New Media Transmissions are not limited to streaming your Radio Broadcasting via the Internet, wireless data
networks, or any other similar transmission facilities, and if any of your New Media Transmissions contain Feature Performances of music
in the ASCAP Repertory, subject to Paragraph 6.C below, you agree to pay us a license fee of 1.7% of your Revenue Subject to Fee from
New Media Transmissions for each year 2012 through 2016 of the Agreement.
F.
If your New Media Transmissions are not limited to streaming your Radio Broadcasting via the Internet, wireless data
networks, or any other similar transmission facilities, and if all of your New Media Transmissions contain no Feature Performances of
music in the ASCAP Repertory, subject to Paragraph 6.C below, you agree to pay us a license fee of 0.2958% of your Revenue Subject to
Fee from New Media Transmissions for each year 2012 through 2016 of the Agreement.
G.

Minimum Fee.

In no event shall your total annual license fee be less than $588.

H.
Annual Reports. You will submit a report of the license fee due for each year 2012 through 2016 of this Agreement,
by April 1st of the following year, by fully completing the Statement of Account that will be made available on ASCAP’s website. For
the avoidance of any doubt, all Annual Reports must be submitted using the electronic format and Internet-based delivery transmission
methodology to be developed by ASCAP and agreed to by the RMLC, and any Annual Report attempted to be submitted to ASCAP by
LICENSEE in any other fashion will be deemed as the non-submission of an Annual Report, subject to the provisions of Paragraph 4.I.
ASCAP will promptly confirm electronically to Licensee receipt of the Annual Reports required by this Paragraph.
I.
Monthly Payments in 2012-2016. For each month in 2012, you will pay us on or before the last day of the month for
that month an “on-account” payment equal to 70.9% (representing a combination of (i) the reduction in the estimated fee based on
projected total industry fees for 2012 of $150 million and (ii) a pro rata share of the annual $15 million refund as provided in the
ASCAP/RMLC Agreement) of your monthly fee for 2011. For each month in calendar years 2013 through 2016, you will pay us on or
before the last day of the month for that month a sum equal to 1/12th of the license fee for the preceding calendar year (annualized for any
reported period less than a year), adjusted in accordance with any change in the Consumer Price Index (National, all items) between the
preceding October and the next preceding October; however, for purposes of completion of Annual Reports (as described above) in any
given year this change shall not be less than zero. If we do not receive the report required by Paragraph 4.H for any calendar year when
due, the on-account monthly payments will be in the amount of the monthly payments due for the preceding year plus 24%, and payments
at that rate will continue until the required report is received. If the Station commenced broadcasting after January 1, 2012, you will
furnish us with a good-faith estimate of your Revenue Subject to Fee from Radio Broadcasting and your Revenue Subject to Fee from New
Media Transmissions for the first year of operation, and the on-account monthly payments during the first calendar year of broadcasting
will be 1/12th of the fee provided in Paragraphs 4.B through 4.F for a station having such revenue, however in no case shall the fee for such
Station be less than the pro-rated minimum fee provided for in Paragraph 4.G above. ASCAP will promptly confirm to Licensee receipt
of the Monthly Payments required by this Paragraph.
J.
Billing or Accrual Basis. License fee reports will be made on a billing or accrual basis by all stations, except that any
station may report on a cash basis if its books have been kept on a cash basis, in which case LICENSEE shall not be entitled to the
deduction provided for in Paragraph 2.P of this Agreement and Licensee shall be entitled to one-half of the deduction provided for in
Paragraph 2.Q of this Agreement.
K.
Combination Sales. If the use of the broadcasting facilities of the station is sold in combination with any other
stations that you own, operate or control that are licensed by us under this Agreement, the combination revenue shall be allocated among
Ex. 13

4

9

the stations on a reasonable basis taking into account factors such as, but not limited to, separate sales by the stations for comparable
facilities during the report period or the immediately preceding period, and the relative ratings of the stations during the report period.
L.
Annual Adjustments. If the monthly payments you have made to us for a year pursuant to Paragraph 4.I are less than
the license fee for that year, we will invoice the additional amount due in the month following receipt of the report. If the amount that you
paid for that year exceeds the license fee due for the year, we will apply the excess payment against your future monthly payments, or will
refund it to you upon your written request if it is greater than four monthly payments required by Paragraph 4.I above.
M.
Late Payments. Subject to the separate provisions of Paragraph 5 below that govern the conduct of audits and
resolution of audit disputes, if we do not receive any payment required by this Agreement when such payment was due, ASCAP will assess
a finance charge of 1.0% per month from the date the payment was due, and ASCAP may further assess LICENSEE for the full amount of
out-of-pocket costs incurred by ASCAP in connection with collecting such amounts.
N.
Taxes. In the event the payment of any license fee to ASCAP by LICENSEE pursuant to this Agreement causes
ASCAP to become liable to pay any state or local tax that is based upon the license fees invoiced by ASCAP to licensees (excluding taxes
which may be computed based upon income), LICENSEE agrees to pay ASCAP the full amount of such tax together with LICENSEE’s
fee payment(s) as invoiced by ASCAP within normal payment terms; provided, however, that ASCAP is permitted by law to pass through
such tax to LICENSEE; and provided further that LICENSEE, and ASCAP will cooperate in making reasonable efforts to be exempt or
excused from the tax.
5.

Audits.

A.
Right to Audit. We have the right by our duly authorized representatives, at any time during customary business
hours, upon reasonable notice, to examine your books and records of account only to the extent necessary to verify any report required by
this Agreement, for a period of no more than three (3) calendar years prior to the year in which the audit is requested. We will consider
all data and information coming to our attention as a result of any such examination of books and records as confidential pursuant to
Paragraph 12 below.
B.

Audit Finance Charges.

If our audit discloses that you underpaid license fees due us:

(1)
You will pay a finance charge on the additional license fees of 1.0% per month from the date(s) the fees
should have been paid pursuant to this Agreement if the underpayment is 5% or more but not less than $1,000.
(2)
You will pay a finance charge on the additional license fees of 1.0% per month beginning thirty (30) days
after the date we bill the additional license fees to you if the underpayment is less than 5% or less than $1000.
(3)
You may dispute all or part of our audit claim. If you do, you must, within thirty (30) days from the date
that we bill the additional fees, (i) advise us, in writing, of the basis for your dispute and (ii) pay us any fees indisputably owed
together with any applicable finance charges. If there is a good-faith dispute between us with respect to all or part of the
additional fees that we have billed pursuant to this Paragraph, no finance charges will be billed with respect to the disputed fees
for a period beginning on the date we billed the fees to you and ending sixty (60) days from the date that we respond to your
written notification of the existence of a dispute.
(4)
Finance charges computed in accordance with this Paragraph and pertaining to additional fees that you
dispute in accordance with subparagraph (3) above will be adjusted pro-rata to the amount arrived at by you and us in resolution
of the dispute.
C.
Correction of Errors. You may correct computational errors on the Annual Reports required by Paragraph 4.H for the
calendar year preceding the year in which the corrected report is submitted without incurring any penalty, provided that the corrected report
is submitted to ASCAP within ninety (90) days after the Annual Report was originally due under Paragraph 4.H.

6.

Blanket/Program Period and Ownership Changes.

A.
If LICENSEE has elected to pay license fees for Radio Broadcasting on the blanket basis, LICENSEE may, as of the
first day of January, April, July, or October during any calendar year commencing January 1, 2012, upon not less than forty-five (45) days’
prior written notice to both ASCAP and the RMLC using the form attached as Exhibit B, elect to pay license fees on the program-period
basis, provided that the Station has changed from a Music-Format Station to a Non-Music-Format Station and LICENSEE is current in all
fees and reports required hereunder as of the effective date of LICENSEE’s election. ASCAP and the RMLC will promptly confirm to
LICENSEE receipt of the form required by this Paragraph.
B.
If LICENSEE has elected to pay license fees for Radio Broadcasting on the program-period basis, LICENSEE may, as
of the first day of January, April, July, or October during any calendar year commencing January 1, 2012, upon not less than forty-five (45)
days’ prior written notice to both ASCAP and the RMLC, elect to pay license fees on the blanket basis, using the form attached as Exhibit
B, provided that the Station has changed from a Non-Music Format Station to a Music-Format Station and LICENSEE is current in all
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program-period reports and fees required hereunder as of the effective date of LICENSEE’s election.
promptly confirm to LICENSEE receipt of the form required by this Paragraph.

ASCAP and the RMLC will

C.
LICENSEE may, as of the first day of January, April, July, or October during any calendar year commencing January 1,
2012, upon not less than forty-five (45) days’ prior written notice to both ASCAP and the RMLC, elect to change the basis on which it pays
license fees for New Media Transmissions using the form attached as Exhibit B. LICENSEE’s election with respect to New Media
Transmissions must comply with the requirements set forth in Paragraphs 4.D, 4.E, and 4.F above.
D.
Upon any filing to the FCC by LICENSEE for any requested change in ownership of Station, based on current FCC
Application Forms 314, 315, and 316, LICENSEE shall contemporaneously notify ASCAP of such a request.
E.
Upon any filing to the FCC by LICENSEE for any request to cease Radio Broadcasting, LICENSEE shall
contemporaneously notify ASCAP of such a request.
7.

License Breach.

In the event LICENSEE shall fail to make payment or submit any report under this Agreement when and as due, ASCAP may
give LICENSEE thirty (30) days’ notice in writing to cure such breach or default. In the event the noticed breach or default has not been
cured within thirty (30) days of receipt of said notice, ASCAP may promptly terminate this License.
8.

Indemnification.

ASCAP will indemnify, save and hold harmless and defend LICENSEE, its advertisers and their advertising agencies, and
LICENSEE’s and their officers, employees and artists, from and against all claims, demands and suits that may be made or brought against
LICENSEE or them with respect to the performance under this Agreement of any compositions in the ASCAP Repertory that are written or
copyrighted by ASCAP members. LICENSEE must give ASCAP immediate notice of any such claim, demand or suit and immediately
deliver to ASCAP all papers pertaining thereto. ASCAP will have full charge of the defense of any such claim, demand or suit, and
LICENSEE agrees to cooperate fully with ASCAP in such defense. LICENSEE may, however, engage its own counsel at its own
expense who may participate in the defense of any such action. At LICENSEE’s request, ASCAP will cooperate with and assist
LICENSEE, its advertisers and their advertising agencies and LICENSEE’s and their officers, employees and artists in the defense of any
action or proceeding brought against them or any of them with respect to the performance of any musical compositions contained in the
ASCAP Repertory, but not copyrighted or written by members of ASCAP. This Paragraph 8 does not apply to performances of any
works that may be restricted under Paragraph 13 of this Agreement.
9.

Local Management Agreement.

A.
In the event LICENSEE enters into an agreement with a Local Manager (a “Local Management Agreement”) within
thirty (30) days of such agreement (1) LICENSEE shall provide ASCAP with a copy of such agreement, and (2) Local Manager shall
execute this Agreement in the signature space provided below. By signing this Agreement, Local Manager becomes a party to this
License Agreement and shall assume, with LICENSEE, all of the rights and obligations set forth in this Agreement for the full period the
Local Management Agreement is in effect.
B.
In the event LICENSEE becomes a Local Manager by entering into a Local Management Agreement with another
station, LICENSEE shall notify ASCAP within thirty (30) days of entering into the agreement.
C.
In the event that LICENSEE and/or Local Manager do not provide to ASCAP, within sixty (60) days of entering into a
Local Management Agreement, the documentation required by Paragraph 9.A, LICENSEE shall remain responsible for timely submitting
Annual Reports as required by Paragraph 4.H and shall be obligated to pay 110% of the otherwise applicable blanket or program-period
license fees for the entire period during which the documentation required by Paragraph 9.A is overdue.
D.
In the event that LICENSEE and/or Local Manager do not provide ASCAP with the documentation required by
Paragraph 9.A within sixty (60) days of entering into a Local Management Agreement, ASCAP shall have the right to terminate this
License Agreement upon ten (10) days’ written notice.
E.
In the event that the Local Management Agreement provided to ASCAP terminates prior to its stated termination date,
LICENSEE and Local Manager shall immediately notify ASCAP of such termination.
10.

Assignment.

This Agreement shall enure to the benefit of and shall be binding upon the parties and their respective successors and assigns, but
no assignment shall relieve the parties of their respective obligations under this Agreement.
11.

Music Use Reports.

A.
All Stations. Unless ASCAP receives music use data from MediaGuide or a similar service, LICENSEE, upon written
request from ASCAP made on not less than one (1) month’s notice specifying the period to be covered, agrees to furnish to ASCAP (at
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ASCAP’s request electronically via a secure web site) a report of LICENSEE’s performances by means of Station’s Radio Broadcasting
and New Media Transmissions of all musical works, indicating the compositions performed by title, artist, or by such other convenient
method as may be designated by ASCAP, but such report need not be furnished for more than one (1) week of each calendar year of the
term of this Agreement.
B.

Program-Period Stations.

(1)
For the calendar years 2012 though 2016, LICENSEE agrees to furnish to ASCAP on thirty (30) days’
written notice a full, true, complete and accurate report, on forms furnished by ASCAP (at ASCAP’s request electronically), for
one week per calendar quarter (“Quarterly Music Report”), that shall indicate, with respect to all programming during the week,
regardless of origin, that has any Feature Performance, the following: (a) the full title of each Feature Performance; (b) the date
and time of performance; and (c) the name(s) of the writer(s)/composer(s)/publisher(s), if known, and/or recording artist(s).
ASCAP, or a representative of ASCAP, shall advise LICENSEE for which week per quarter this will be done. The Quarterly
Music Report shall be submitted with respect to all Program Periods, even if there was no Feature Performance (in which case
only the requested identifying information need be completed along with the statement “No Music Used”), but shall not be
required to include the information set forth in this subparagraph for music in programming from a radio network licensed as a
network by ASCAP, music in political programming, or music in Program Periods which LICENSEE concedes contain music in
the ASCAP Repertory. Every Program Period that contains a Feature Performance shall be listed on the report, even if the
music falls into one of the exempt categories enumerated herein. In those cases, however, the category of exemption shall be
indicated on the report form, listing the name of the network in the case of a network program. ASCAP will promptly confirm
to Licensee receipt of the reports required by this Paragraph.
(2)
Each Quarterly Music Report shall be due to ASCAP on or before 30 days after the week to which the report
pertains. For the calendar years 2012 though 2016, in the event that LICENSEE shall fail to submit any Quarterly Music Report
or fail to report performances of musical compositions as required by Paragraph 11.B (l), the following shall apply:
(a)

First Instance: ASCAP shall advise LICENSEE in writing of same and will issue LICENSEE a

warning.
(b)
Second and all Subsequent Instances: ASCAP shall advise LICENSEE in writing of same and
LICENSEE shall pay ASCAP $1,000 + 5.75 times the program period fee for each of the three months following the
month in which the report was due.
(c)
LICENSEE’s failure to report timely or correctly may not be cured by LICENSEE’s submission of
a late report for said period.
(3)
For any quarter in which LICENSEE furnishes to ASCAP a complete electronic report of its feature
Performance of musical works for 24 hours a day, for each day, LICENSEE will not be required to submit Quarterly Music
Reports.
12.

Confidentiality.

A.
ASCAP shall treat as confidential, and shall not disclose to any third party (other than its employees, directors, officers,
survey consultants, attorneys and agents, in their capacity as such, on a need-to-know basis, and other than as set forth in subparagraph B
below), any financial or other proprietary documents or information provided to ASCAP by LICENSEE in connection with this
Agreement; provided, however, that if ASCAP is served with a subpoena or other legal notice compelling the production of any such
proprietary documents or information, ASCAP shall be obligated to give prompt written notice to LICENSEE of such subpoena or other
notice. LICENSEE shall inform ASCAP in writing within seven (7) days of receiving written notification of a subpoena or other legal
notice of its intention to object to such production, in which event LICENSEE shall bear the burden of opposing such production. If the
subpoena requires a response or compliance in fewer than fourteen (14) days, ASCAP will inform LICENSEE in writing within three (3)
days of receiving the subpoena and LICENSEE must inform ASCAP of its intention to oppose the production no later than five (5) days
before compliance is called for.
B.
ASCAP is hereby authorized to provide to RMLC such of LICENSEE’s financial information provided to ASCAP
pursuant to this Agreement as RMLC may request in connection with its representation of the radio industry, unless LICENSEE notifies
ASCAP in writing to the contrary. RMLC has agreed to treat as confidential any financial information provided to it by ASCAP pursuant
to this Paragraph.
13.

Right to Restrict.

A.
ASCAP’s members may restrict the Radio Broadcasting of their compositions, up to a maximum of 500 at any given
time, only for the purpose of preventing harmful effect upon other interest under the copyrights of such works; provided, however, that (1)
limited licenses will be granted upon application to ASCAP entirely free of additional charge if the copyright owners are unable to show
reasonable hazards to their major interests likely to result from such Radio Broadcasting; (2) the right to restrict any composition will not
be exercised for the purpose of permitting the fixing or regulating of fees for the recording or transcribing of the composition; (3) in no case
will any charges, “free plugs,” or other consideration be required for permission to perform a restricted composition; and (4) in no event
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will any composition be restricted after its initial radio broadcast for the purpose of confining further radio broadcasts to a particular artist,
station, network or program.
B.
ASCAP may also in good faith restrict the Radio Broadcasting of any composition, over and above the number
specified in the preceding subparagraph, only as to which any suit has been brought or threatened on a claim that the composition infringes
a composition not contained in the ASCAP Repertory or on a claim that ASCAP does not have the right to license the public performance
of the composition by Radio Broadcasting.
14.

Miscellaneous.

A.
LICENSEE shall have the right to terminate this license on ten (10) days’ written notice in the event of termination,
suspension or any substantial alteration or variation of the terms and conditions of the governmental licenses covering the Station or any
major interference with the operations of the Station due to governmental measures or restrictions.
B.
ASCAP shall have the right to terminate this license on sixty (60) days’ notice if there is any major interference with,
or substantial increase in the cost of, our operation as a result of any law of the state, territory, dependency, possession or political
subdivision in which the Station is located which is applicable to the licensing of performing rights.
C.
Except as otherwise provided in Paragraphs 4.H, 4.I, 6.A, 6.B, and 6.C above, any notice required or permitted to be
given under this Agreement shall be in writing and shall be deemed duly given when sent by ordinary first-class U.S. mail, recognized
overnight delivery service, electronic mail or facsimile transmission to the party for whom it is intended, at its address stated above or any
other address that either party hereto may from time to time designate for such purpose. When such notice is mailed or otherwise
transmitted, it shall be deemed given upon such mailing or transmission. Any such notice sent to ASCAP shall be to the attention of the
Broadcast Licensing Department – Radio Licensing. Any such notice sent to LICENSEE shall be to the attention of the person signing
this Agreement on behalf of LICENSEE or to the General Manager or Business Manager of Station.
D.
This Agreement (including documents incorporated by reference) constitutes the entire understanding between the
parties and cannot be waived, added to or modified orally. No waiver, addition or modification shall be valid unless in writing and signed
by the parties. This Agreement, its validity, construction and effect shall be governed by the laws of the State of New York without
giving effect to its law of conflict of laws. The fact that any provisions herein are found to be void or unenforceable by a court of
competent jurisdiction shall in no way affect the validity or enforceability of any other provisions. No waiver by ASCAP of full
performance of this Agreement by LICENSEE in any one or more instances shall be deemed a waiver of the right to require full and
complete performance of this Agreement thereafter, or of the right to cancel this Agreement in accordance with the terms of this
Agreement.
IN WITNESS WHEREOF, this Agreement, made at New York, New York, has been duly executed by ASCAP and LICENSEE
on

.
(Month)

(Day)

(Year)

AMERICAN SOCIETY OF COMPOSERS,
AUTHORS AND PUBLISHERS

LICENSEE

(Full corporate or other name of station owner)
By

(Name and Title)

(Name and Title)

Ex. 13

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13

EXHIBIT A

January 24, 2012
Re: ASCAP 2010 Radio Station and Group License Agreements
Dear Mr. LoFrumento:
This letter sets forth the Agreement (“Agreement”) reached between the
American Society of Composers, Authors and Publishers (ASCAP) and the Radio Music
License Committee (RMLC) pertaining to certain provisions of the ASCAP 2010 Radio
Station License Agreement (the “Station License”) and the ASCAP 2010 Radio Group
License Agreement (the “Group License”) (together, the “2010 Licenses”) covering the
period January 1, 2010 through December 31, 2016 (the “License Term”). This
Agreement is expressly incorporated in Paragraph 2.Q of the Station License and is
binding upon all commercial radio stations that: (i) are applicants in the proceeding
captioned U.S. v. Am Soc’y of Composers, Authors and Publishers (In re Application of
the Cromwell Group, Inc., et al.) and/or are parties to the 2010 Licenses; (ii) were
signatories to letter agreements or license extension agreements extending the 2004
ASCAP Radio Station License Agreement (the “2004 License Agreement”) for the
interim license term beginning January 1, 2010 (collectively, the “Interim Radio Station
Licenses”); or (iii) are otherwise currently paying license fees to ASCAP pursuant to the
fees specified in the Interim Radio Station Licenses (collectively, the “Licensees”).
The parties agree as follows:
1. Except as otherwise provided herein, for the period January 1, 2010 through
December 31, 2011 (the “Retroactive Period”), the interim license terms and interim
license fees billed to and payable by individual radio stations (“Interim Fees”) pursuant to
the Interim Radio Station Licenses shall be considered final terms and license fees.
ASCAP’s right to collect unpaid license fees shall in no way be prejudiced by this
paragraph. The Interim Radio Station Licenses are incorporated herein by reference for
all Licensees whose licenses commenced prior to their execution of the 2010 Licenses.
The Interim Radio Station Licenses are available at www.ASCAP.com/licensing/radio
and at www.radiomlc.com.
2. For the Retroactive Period, the total fees paid by RMLC stations and by other
stations that are bound to the 2004 License Agreement and the Station License will be
reduced by $75 million. The parties have agreed upon an allocation methodology
whereby:

Ex. 13

14

a. the $75 million fee reduction will be applied in the amount of $15 million
per annum for each of the years 2012 through 2016 (the “Prospective
Period”), to be applied against the otherwise applicable blanket and
program-period fees payable by the categories of Licensees described in
subsection (b) below.
b. the annual $15 million reductions will be allocated as follows:
i. For each of the years 2012 and 2013, each Licensee1 that paid
interim license fees in full to ASCAP during the Retroactive
Period2 will receive its pro-rata share of the annual $15 million
reduction in accordance with the following formula:
Station Share of Annual Reduction = (Station
Combined 2010-2011 Interim Fees divided by
Combined 2010-2011 Interim Fees for All Stations)
multiplied by $15 million
ii. For the years 2014-2016, Licensees eligible for a share of the
remaining annual $15 million reductions will be those that paid
ASCAP either combined 2010-2011 interim blanket license fees in
excess of 1.7% of revenue subject to fee (as defined in the 2010
Radio Station License Agreement) or combined 2010-2011 interim
program-period3 base license fees in excess of 0.2958% of revenue
subject to fee.4 Such calculations shall be made using as a proxy
for its 2010-2011 revenue each Licensee’s 2012 revenues, which
are to be reported to ASCAP by April 1, 2013 in order for a station
to be eligible for a reduction. For purposes of determining
eligibility for the 2014-2016 fee reductions, Licensees will be
given a 45-day grace period for reporting their 2012 revenues.
1

For these purposes, the term “Licensee” shall include entitled legal successors to
licensees holding ASCAP licenses during the 2010-2011 period.

2

Licensees that owe past due fees for the 2010-2011 period in excess of their allocated
pro rata share for 2012 of the annual $15 million reduction will not be entitled to that
pro rata share until they pay their past due fees for the 2010-11 period. For each
subsequent year of the Prospective Period, Licensees that owe past due fees in excess
of their allocated pro rata share of the annual $15 million reduction will not be
entitled to that pro rata share until they pay their past due fees.

3

For purposes of this Agreement, the term “program-period” is used interchangeably
with the term “per-program.”

4

Stations that switched license types during the Retroactive Period are eligible to
receive a share of the 2014-2016 fee reductions so long as the combination of the
station’s blanket and per-program base fees for the Retroactive Period is greater than
it would have been had the 1.7%/0.2958% rates been in effect.
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15

Each such Licensee’s annual share of the reduction will be
determined by the following formula:
Station Share of Annual Reduction = (Amount of
Station “Overpayment” in Relation to Applicable
1.7%/0.2958% Benchmark divided by Total
“Overpayments” by All Entitled Stations)
multiplied by $15 million
3. For each month in 2012, Licensees will make an “on-account” payment equal to
78.8% of their monthly fee for 2011. In addition, Licensee will receive a credit for their
pro rata share of the $15 million fee reduction as set forth in Paragraph 2 hereof. Final
fees owing for 2012 will subsequently be calculated, and upward or downward
adjustments to 2012 fees shall be made, in accordance with the terms of the 2010
Licenses.
4. For the License Term, there will be no credit against blanket license fees to
account for otherwise-licensed ASCAP music.
5. For avoidance of doubt, the parties intend that the Group License cover only those
New Media Transmissions (as defined in the Station License) made by a radio station
owner that are not otherwise licensed under the Station License. By way of example, the
Group License is applicable to Clear Channel’s iHeartRadio transmissions that do not
originate with a terrestrial radio station. The Group License is not to be used by radio
station owners for the purpose of aggregating reporting to ASCAP for multiple terrestrial
radio stations.
6. If, as of January 1, 2015, there is reliable public information showing that
industry-wide HD/multicasting revenues account for at least 25% of total industry-wide
revenues, then each HD/multicasting channel shall be treated separately from the
Station’s terrestrial broadcast for purposes of determining whether fees should be paid on
a program-period or blanket basis (pursuant to Paragraphs 4.B and 4.C of the Station
License).
7. The deductions taken from Gross Revenues over the Prospective Period by all
Licensees will be compared to what the deductions would have been had the 12%
deduction rate been applied to all Gross Revenues (not just to Gross Revenues from
Radio Broadcasting). If the comparison over the entire Prospective Period yields a
difference of greater than $5 million in license fees, ASCAP will be entitled to a refund
of the dollars in excess of the $5 million cap.
a. In each year, as part of the Annual Adjustment process pursuant to
Paragraph 4.L of the 2010 Licenses, ASCAP will make the comparison
described above and will notify the RMLC of the results. If the $5 million
cap has been exceeded, ASCAP shall be entitled to recoup the excess by
imposing a fee on those Licensees who claimed a 25% standard deduction
for Internet, wireless, or other “new media” uses, which fee shall be
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16

calculated by allocating the total amount in excess of $5 million among
those Licensees on a pro rata basis in accordance with each Licensee’s
total license fees paid during the Prospective Period for New Media
Transmissions and Radio Group Transmissions.
b. In the event that the $5 million cap has been exceeded, ASCAP will notify
Licensees that the deduction applicable to Gross Revenues from all
activities covered by the 2010 Licenses will be 12% for the remainder of
the License Term.
c. In the event that ASCAP determines that the $5 million cap has been
exceeded, the RMLC will have the right to review ASCAP’s calculations
to verify that the $5 million cap has been exceeded.
8. ASCAP represents and warrants to the RMLC that: (i) ASCAP has the right,
power and authority to grant the rights provided for in the 2010 Licenses and in this
Agreement; (ii) there has been no material diminution of the ASCAP Repertory since
January 1, 2010; and (iii) if any ASCAP Member (as that term is defined in the ASCAP
Articles of Association) has withdrawn from ASCAP the right to license the right of
public performance of New Media Transmissions (as that term is defined in the
Compendium of ASCAP Rules and Regulations, and Policies Supplemental to the
Articles of Association) or withdraws such rights during the License Term, such
withdrawal of licensing rights from ASCAP has not precluded, and will not preclude,
ASCAP from granting a through-to-the-audience license to perform any or all of the
copyrighted musical works in the ASCAP repertory of that ASCAP Member to the
RMLC stations pursuant to this Agreement for the duration of the License Term.
9. In the event that ASCAP shall obtain the right to license performances of works in
the ASCAP Repertory by means of New Media Transmissions (as that term is used in the
2010 Licenses) beyond the U.S. Territory during the term of the 2010 Licenses,
Paragraph 3.A of the 2010 Licenses shall be deemed amended so as to include such
performances within the scope of rights granted by the License for the duration of the
term of the License.
10. If, during the term of the Licenses, any dispute arises between ASCAP and any
Licensee concerning the interpretation of any of the provisions of this letter agreement or
the Licenses which, in the judgment of ASCAP and/or the RMLC, has or may have
industry-wide impact, ASCAP and the RMLC shall first endeavor to resolve such
dispute, failing which either ASCAP or the RMLC may refer the matter to the judge with
supervisory authority over the ASCAP Consent Decree. In the event of such a reference,
either ASCAP or the RMLC, as a preliminary matter, shall be entitled to assert that the
dispute between them is not properly dealt with under the terms of this provision.
11. ASCAP and the RMLC agree to confer by no later than February 1, 2016 to seek
to agree upon final (and, if necessary, interim) license fees for periods subsequent to
December 31, 2016. Nothing herein shall affect the rights of ASCAP, the RMLC, or any
Licensees to seek a determination of reasonable fees or the fixing of interim fees for the
Ex. 13

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17

period commencing January 1, 2017, pursuant to Section IX of the ASCAP Consent
Decree.
12. ASCAP and the RMLC are entering into this Agreement without prejudice to any
arguments or positions they or any Licensee may assert in any future rate proceeding
concerning what constitutes reasonable blanket license or program-period license fees
and terms for commercial radio stations.
Please indicate your agreement to the above by signing and dating on the lines
provided below.

Very truly yours,
________________________
s/Edward Christian
Chairman
Radio Music License Committee

AGREED TO:
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS
_______________________________________
s/John LoFrumento, Chief Executive Officer
Dated: January 24, 2012___________________

Ex. 13

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18

EXHIBIT B

Radio Station Election to Change License Basis Form

ASCAP

Date:____________________________
Call
Letters:

AM
FM

Station Frequency:

ASCAP
Account Number:

FCC Community of License: City

ST

Legal Name of Licensee:
Group Owner:
Previous Program Format:
New Program Format:

Date of Change:

Check appropriate box:
Convert to Blanket Basis for Radio Broadcasting (currently licensed on Program Period Basis)
Convert to Program Period Basis for Radio Broadcasting (currently licensed on Blanket Basis)
Convert to Blanket Basis for New Media Transmissions (currently licensed on Program Period Basis)
Convert to Program Period Basis for New Media Transmissions (currently licensed on Blanket Basis)
Effective Date of Conversion*

/

/

* Please note that you are permitted to convert prospectively your station’s license type effective the following Januaiy 1st, April 1st, July 1st or
October 1st, whichever is sooner. You are required to make your request in wnting at least forty-five (45) days prior to the effective date of the
change. Your station must be current in both reports and payments due ASCAP as required by your license in order to be eligible.

Complete this section only if you are converting to a Program Period Basis
Contact:.

Contact Title:

Contact Phone #:

Contact Fax #:

Contact Email Address:
If converting to a Program Period Basis for Radio Broadcastin, please estimate the number of quarter hours
feature music is played on an average weekday, Saturday, and Sunday during each of the following time periods:
Average Weekdays: 12am-6am (max 24)
6am-10am (max 16)

Average Saturday: All Day (max 96)
Average Sunday: All Day (max 96)

10am-3pm (max 20)
3pm-7pm (max 16)
7pm-12mid (max 20)

Signature
Print Name of Signatory
Print Title of Signatory

Please Fax, Mail or Email to BOTH ASCAP and the RMLC
ASCAP
RMLC
One Lincoln Plaza
1616 Westgate Circle
New York, NY 10023
Brentwood, TN 37027
Attention: Ray Schwind,
Attention: William Velez,
VP Dir. of Broadcast Licensing
Executive Director
Fax #: [phone]
Fax #: [phone]
[e-mail]
[e-mail]
Ex. 13

19

LOCAL MANAGER ACKNOWLEDGEMENT OF
ASCAP LICENSE AGREEMENT
The undersigned LOCAL MANAGER hereby acknowledges and agrees that it
has become a party to the foregoing License Agreement and assumes, with LICENSEE,
all of the rights and obligations set forth in the foregoing License Agreement for the full
period that the LOCAL MANAGER’s Local Management Agreement with LICENSEE is
in effect.
Dated: _______________
LOCAL MANAGER:__________________________
By:_______________________________________
Title:_____________________________________
Station Call Letters:_________________________
City and State:_____________________________
Effective Date of Local Management Agreement:
_________________________________________
Address for Billing and Other Purposes:
_________________________________________
_________________________________________
_________________________________________

Ex. 13

20

LICENSE AGREEMENT-COMMON AREAS IN SHOPPING CENTERS AND
SHOPPING MALLS

Agreement between American Society of Composers, Authors and Publishers ("SOCIETY"), located at
2 Music Square West, Nashville, TN 37203
and ______________________________________________________________________________________________________
("LICENSEE"), located at
______________________________________________________________________________________________________
______________________________________________________________________________________________________
as follows:
1.

Grant and Term of License

(a) SOCIETY grants and LICENSEE accepts for a term of one year, commencing ____________________________, and
continuing thereafter for additional terms of one year each unless terminated by either party as hereinafter provided, a license to
perform publicly at common areas in the shopping center or shopping mall known as:
________________________________________ and located at: ____________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
("the premises"), and not elsewhere, non-dramatic renditions of the separate musical compositions now or hereafter during the term
hereof in the repertory of SOCIETY, and of which SOCIETY shall have the right to license such performing rights.
(b) This agreement shall enure to the benefit of and shall be binding upon the parties hereto and their respective successors and
assigns, but no assignment shall relieve the parties hereto of their respective obligations hereunder as to performances rendered, acts
done and obligations incurred prior to the effective date of the assignment.
(c) Either party may, on or before thirty days prior to the end of the initial term or any renewal term, give notice of termination to
the other. If such notice is given the agreement shall terminate on the last day of such initial or renewal term.
2.

Limitations on License

(a) This license is not assignable or transferable by operation of law or otherwise, except as provided in paragraph "1(b)" hereof,
and is limited to LICENSEE and to the premises.
(b) This license does not authorize the broadcasting, telecasting or transmission by wire or otherwise, of renditions of musical
compositions in SOCIETY'S repertory to persons outside of the premises.
(c) This license does not authorize any performance by means of a coin-operated phonorecord player (jukebox) otherwise covered
by the statutory license provisions of 17 U.S.C. §116.
(d) This license is limited to non-dramatic performances, and does not authorize any dramatic performances. For purposes of this
agreement, a dramatic performance shall include, but not be limited to, the following:

(i)
(ii)

performance of a "dramatico-musical work" (as hereinafter defined) in its entirety;
performance of one or more musical compositions from a "dramatico-musical work" (as hereinafter defined)
accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music
is taken;
(iii) performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied
by dialogue, pantomime, dance, stage action, or visual representation;
(iv) performance of a concert version of a "dramatico-musical work" (as hereinafter defined).
The term "dramatico-musical work" as used in this agreement, shall include, but not be limited to, a musical comedy, opera, play with
music, revue, or ballet.
Ex. 13

21

(e) This license is limited to LICENSEE'S performances at the premises which are given at common areas in LICENSEE'S
shopping center or shopping mall, and does not extend to performances in individual establishments, such as stores or restaurants,
located in LICENSEE'S shopping center or shopping mall.
3.

License Fees, Reports and Payments

(a) In consideration of the license granted herein, LICENSEE agrees to pay SOCIETY the applicable license fee set forth in the
rate schedule printed below and made part hereof, on January 15, April 15, July 15 and October 15 of each year for the previous
calendar quarter.
(b) LICENSEE shall submit reports to SOCIETY, on forms supplied free of charge by SOCIETY, as specified in the rate
schedule printed below and made part hereof.
4.

Breach or Default

Upon any breach or default by LICENSEE of any term or condition herein contained, SOCIETY may terminate this license by
giving LICENSEE thirty days notice to cure such breach or default, and in the event that such breach or default has not been cured
within said thirty days, this license shall terminate on the expiration of such thirty-day period without further notice from SOCIETY.
In the event of such termination, SOCIETY shall refund to LICENSEE any unearned license fees paid in advance.
5.

Interference in Society's Operations

In the event of:
(a) any major interference with the operations of SOCIETY in the state, territory, dependency, possession or political
subdivision in which LICENSEE is located, by reason of any law of such state, territory, dependency, possession or political
subdivision; or
(b) any substantial increase in the cost to SOCIETY of operating in such state, territory, dependency, possession or political
subdivision, by reason of any law of such state, territory, dependency, possession or political subdivision, which is applicable
to the licensing of performing rights,
SOCIETY shall have the right to terminate this agreement forthwith by written notice and shall refund to LICENSEE any unearned
license fees paid in advance.
6.

Notices

All notices required or permitted hereunder shall be given in writing by certified United States mail sent to either party at the address
stated above. Each party agrees to inform the other of any change of address.
IN WITNESS WHEREOF, this Agreement has been duly executed by ASCAP and LICENSEE.
this
day of
, 20 .

AMERICAN SOCIETY OF COMPOSERS,
AUTHORS AND PUBLISHERS

LICENSEE _________________________________
By

By
TITLE
(Fill in capacity in which signed: (a) If corporation, state corporate
office held; (b) If partnership, write word "partner" under signature
of signing partner; (c) If individual owner, write "individual owner"
under signature.)

Ex. 13

22

SHOPPING CENTERS
2014 Rate Schedule
I. PERFORMANCE OF LIVE MUSIC, OR PERFORMANCE OF MECHANICAL MUSIC WITH ACTS
SIZE OF SHOPPING
CENTER/SHOPPING MALL*

DAILY LICENSE FEE

Up to 300,000 Square Feet
300,000 Square Feet to 900,000 Square Feet
900,000 Square Feet and Over

$43.00
$58.00
$71.50

*Size of shopping center/shopping mall shall include all shopping center or mall areas with the sole exception of parking areas.

MAXIMUM ANNUAL LICENSE FEE
The maximum annual license fee to be paid under this Rate Schedule I. shall be $3,467.50.

CHAIN DISCOUNT
LICENSEE shall be entitled to a 20% reduction in the maximum annual license fees under this Rate Schedule I. provided said fees are
paid for at least 10 shopping centers or shopping malls operated by LICENSEE.

II. PERFORMANCE OF MUSIC BY MECHANICAL MEANS ONLY, WITHOUT ACTS
A. Annual license fee for audio-only performances
$232.50 Up to 3 Speakers
$ 47.50 Each Additional Speaker
Maximum License Fee: $1,950.00
B. Annual license fee for audio-visual performances
$350.50 Up to 3 Speakers
$ 71.00 Each Additional Speaker
Maximum License Fee: $2,943.00
If performances are given by both audio and audio-visual means, the higher license fee shall apply.

LICENSE FEES FOR CALENDAR YEAR 2015 AND THEREAFTER
The annual rates set forth in this Rate Schedule will apply for the calendar year 2014. Rates for each subsequent calendar year will be
adjusted in accordance with the increase in the Consumer Price Index, All Urban Consumers - (CPI-U) between the preceding October and
the next preceding October.

REPORT S DUE
LICENSEE shall submit reports to SOCIETY as follows:
1. An annual report, submitted with the January 15 quarterly payment of license fees, for each shopping center/shopping mall for which an
annual license fee is paid.
2. A quarterly report, submitted with each quarterly payment of license fees, for each shopping center/shopping mall for which daily license
fees under Rate Schedule I are paid. Said reports shall include all information necessary for the completion of the appropriate license fees.
Ex. 13

ASCAP, PO Box 331608-7515, Nashville, TN 37203-9998 1-800-505-4052 615-691-7795 (FAX)
Epayment Website: http://www.ascap.com/mylicense or http://www.ascap.com

23

COMMON AREAS IN INDIVIDUAL SHOPPING
CENTERS AND SHOPPING MALLS
2014 Report Form
Account Number:

Premise Name:

/

Report Period:

/

-

/

/

Section I. LIVE MUSIC PERFORMANCE OR MECHANICAL MUSIC PERFORMANCE WITH ACTS
If you are reporting live music or mechanical music with acts, complete this section, if not go to Section II.
A. Size of Shopping Center/Shopping Mall: ___________________________ Sq. ft.
B. Enter each day(s) qualifying performance(s) as a single line entry*:
Date

Name or Description of Performances

Daily ASCAP
License Fee**

1
2
3
4
5
6
7
8
9
10

$

TOTAL: (Add lines 1 through 10, plus totals from any additional report forms, but not more than $3,467.50)

.

Section II. MECHANICAL MUSIC PERFORMANCES WITHOUT ACTS
Only to be completed during first quarter of each year.
If you are reporting mechanical music performances without acts, complete this Section. If not, go to Section III.
If you use a background music supplier licensed by ASCAP, enter their name and address.
Company Name:

Address:

Do you provide your own mechanical music?

Yes

No

If "yes", complete the following, if "no" go to Section III.
Annual ASCAP Mech. License Fee**

1. Audio Only:
Number of speakers
(Maximum license fee: $1,950.00)

____

$_________

____
2. Audio-Visual: Number of speakers
(Maximum license fee: $2,943.00)
TOTAL: (Add lines 1 and 2, but not more than $2,943.00)
Section III. TOTAL LICENSE FEES DUE (Add TOTALS from Sections I. and II.)

$_________

$

.

$

.

If you are reporting more than 10 days, or need additional forms, you may photocopy this form or contact us at 1-800-505-4052.
*Size of shopping center/shopping mall shall include all shopping center or shopping mall areas with the sole exception of parking areas.
**In calculating the ASCAP license fee, please refer to the Rate Schedule on the back of this form.
Contact Person & Title

-

Phone Number:

-

Ext:

Email:

Fax Number:

-

-

Website:

I certify the above information is true and correct.
Dated:

/

/

Signature:

ASCAP, PO Box 331608-7515, Nashville, TN 37203-9998 1-800-505-4052 615-691-7795 (FAX)
Epayment Websites:http://www.ascap.com/mylicense or http://www.ascap.com

Ex. 13

24