; and (B) on or after the license availability date, shall, before making any such digital phonorecord delivery, follow the procedure set forth in subsection (d)(2), except as provided in paragraph (3). (3) Record company download licenses Notwithstanding anything to the contrary in this section, a record company may, on or after the license availability date, obtain a license to make and distribute, or authorize the making and distribution of, digital phonorecord deliveries of musical works in the form of permanent downloads in the manner described in paragraph (2)(A). A record company that obtains a compulsory license for permanent downloads as permitted under this paragraph shall provide statements of account and pay royalties as provided in subsection (c)(5). (4) Failure to obtain license (A) Phonorecords other than digital phonorecord deliveries In the case of phonorecords made and distributed other than by means of digital phonorecord delivery, the failure to serve or file the notice of intention required by paragraph (1) forecloses the possibility of a compulsory license under paragraph (1). In the case of phonorecords made and distributed by means of digital phonorecord delivery prior to the license availability date, the failure to serve the notice of intention required by paragraph (2)(A) forecloses the possibility of a compulsory license under paragraph (2)(A). In either case, in the absence of a voluntary license, the failure to obtain a compulsory license renders the making and distribution of phonorecords, including by means of digital phonorecord delivery, actionable as acts of infringement under section 501 and subject to the remedies provided by sections 502 through 506. (B) Digital phonorecord deliveries In the case of phonorecords made and distributed by means of digital phonorecord delivery on or after the license availability date, the failure to comply with paragraph (2)(B), or, if applicable, paragraph (3), forecloses the possibility of a compulsory license under this section. In the