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While AM/FM streaming, due to the potential harm it could have on record sales, is more similar to webcasting than it is to over-the-air broadcasting, the fact that AM/FM stations are subject to limitations imposed by the FCC makes AM/FM streaming different from what Congress originally referred to as "webcasting." The unique aspects of AM/FM streaming combined with an ambiguous, conflicting statute, as well as no reference by Congress regarding AM/FM streaming, is overwhelming evidence that Congress did not address the issue of whether AM/FM streamers should be exempted from the section 106 public performance right by section 114(d)(1)(A).[2]
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