This appeal concerns determination of the proper royalty that ASCAP is entitled to receive for a blanket public performance license for music in the ASCAP repertory that is embodied in television and radio content to be delivered to viewers and listeners using mobile telephones.
When the parties could not agree on a price for the performance rights to the music component of Mobi’s offerings, ASCAP sought a reasonable rate in the District Court for the Southern District of New York, acting as a rate court pursuant to a consent decree. Following a bench trial, the District Court
(Denise Cote, District Judge) issued a judgment on July 7, 2010, establishing various royalty rates, depending on the nature of the programming, and designating the revenue bases to which those rates apply. See In re Application of MobiTV, Inc., 712 F. Supp. 2d 206 (S.D.N.Y. 2010). ASCAP appealed, contending that the District Court’s rate formulation should have been based on the retail
revenues received by the wireless carriers from sales to their customers, rather than the content providers’ wholesale revenues paid by Mobi. The Second Circuit disagreed with ASCAP and AFFIRMED.