Whether approving noncommercial rates that favor NPR's secular speech over religious speech violates the Religious Freedom Restoration Act (RFRA) or the First Amendment

QUESTIONS PRESENTED The Copyright Royalty Board sets default royalty rates for webcasting sound recordings. Recently, the Board adopted rates requiring noncommercial religious webcasters to pay over 18 times the secular NPR-webcaster rate to communicate religious messages to listeners above a modest 218-averagelistener threshold. The D.C. Circuit upheld that disparate burden based on the Board treating some secular webcasters as poorly as religious webcasters. The result is suppression of online religious speech. The D.C. Circuit also affirmed unexplained Board departures from precedent regarding who bears the burden of proof in 17 U.S.C. 114(f) rate-setting proceedings and the evidence required to meet that burden. Its decision presents three important legal questions: 1. Whether approving noncommercial rates that favor NPR’s secular speech over religious speech violates the Religious Freedom Restoration Act (RFRA) or the First Amendment. 2. Whether 17 U.S.C. 114(f)(4)’s bar on considering Webcaster Settlement Act (WSA) agreements in rate-setting proceedings extends to analyses valuing rates in non-WSA agreements. 3. Whether the Board’s unexplained inversion of the burden of proof in a 17 U.S.C. 114(f(1) ratesetting its unexplained new requirement of expert testimony to meet that burden—violates the Administrative Procedure Act.