National Ass'n of Broadcasters v. Copyright Royalty Tribunal, s. 84-1230
| Decision Date | 30 August 1985 |
| Docket Number | Nos. 84-1230,84-1232,s. 84-1230 |
| Citation | 772 F.2d 922 |
| Parties | , 227 U.S.P.Q. 203, 1985 Copr.L.Dec. P 25,832 The NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Multimedia Entertainment, Inc., Old-Time Gospel Hour, Motion Picture Association of America, Inc., et al., Superstation, Inc., Intervenors. The CHRISTIAN BROADCASTING NETWORK, INC., Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Turner Broadcasting System, Inc., Multimedia Entertainment, Inc., Old-Time Gospel Hour, Inc., Canadian Broadcasting Corporation, et al., Motion Picture Association of America, Inc., et al., National Association of Broadcasters, Intervenors. to 84-1234, 84-1238, 84-1396, 84-1398 to 84-1401, 84-1519, 84-1525, 84-1526, 84-1529 to 84-1531 and 84-1535. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions For Review of an Order of the Copyright Royalty tribunal.
Victor E. Ferrall, Jr., Washington, D.C., with whom John I. Stewart, Jr., David H. Solomon, Henry L. Baumann and Michael D. Berg, Washington, D.C., were on brief for petitioner/intervenor, Nat. Ass'n of Broadcasters, in Nos. 84-1230, et al.
W. Thad Adams, III, Charlotte, N.C., with whom John H. Midlen, Jr., Washington, D.C., was on joint brief for petitioners/intervenors, PTL Television Network and Old Time Gospel Hour, in Nos. 84-1230, et al.
Arthur Scheiner, Washington, D.C., with whom Dennis Lane and Richard H. Waysdorf, Washington, D.C., were on brief for petitioners/intervenors, Motion Picture Ass'n of America, Inc., et al., in Nos. 84-1230, et al.
I. Fred Koenigsberg, New York City, with whom Bernard Korman, New York City, for American Soc. of Composers, Authors and Publishers, et al. and Charles T. Duncan, Michael W. Faber, Lisa Holland Powell, Washington, D.C., for Broadcast Music, Inc., were on joint brief, for petitioners/intervenors, music claimants, in Nos. 84-1230, et al.
Grover C. Cooper, Clifford M. Harrington and Barry Gottfried, Washington, D.C., were on brief for petitioner/intervenor, The Christian Broadcasting Network, Inc., in Nos. 84-1230, et al.
David H. Lloyd, Robert Alan Garrett, Washington, D.C., for Major League Baseball; Philip R. Hochberg, Washington, D.C., for Nat. Basketball Ass'n, et al. and Judith Jurin Semo, Washington, D.C., for Nat. Collegiate Athletic Ass'n were on joint brief for petitioners/intervenors, joint sports claimants, in Nos. 84-1230, et al.
Gene A. Bechtel, Lawrence A. Horn and Jacqueline Weiss, Washington, D.C., were on brief for petitioner/intervenor, Public Broadcasting Service, in Nos. 84-1230, et al. and Nos. 84-1519, et al.
Clifford M. Harrington, Washington, D.C., with whom Grover C. Cooper and Barry H. Gottfried, Washington, D.C., for The Christian Broadcasting Network, Inc. and W. Thad Adams, III, Charlotte, N.C., and John H. Midlen, Washington, D.C., for PTL Television Network and Old-Time Gospel Hour were on the joint brief for petitioners/intervenors in Nos. 84-1519, et al.
Arnold P. Lutzker, Washington, D.C., with whom Carolyn A. Wimbly, Washington, D.C., were on briefs for intervenor, Multimedia Entertainment, Inc., in Nos. 84-1230, et al. and Nos. 84-1519, et al.
Dennis Lane, Washington, D.C., with whom Arthur Scheiner, Robert A. Garrett, Jamie S. Gorelick, Charles T. Duncan, Michael W. Faber, Washington, D.C., and Bernard Korman, New York City, were on joint brief for petitioners/intervenors, Motion Picture Ass'n, Inc., et al.
Douglas G. Thompson, Jr., Washington, D.C., was on brief for petitioners/intervenors, Canadian Broadcasting Corp., et al., in Nos. 84-1519, et al. and Nos. 84-1230, et al.
William G. Cole, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., and John F. Cordes, Atty., Dept. of Justice, Washington, D.C., were on brief for respondent, Copyright Royalty Tribunal, in Nos. 84-1230, et al. Mark W. Pennak and William Kanter, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent, Copyright Royalty Tribunal, in Nos. 84-1230, et al.
Marilyn S.G. Urwitz, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on brief for respondent, Copyright Royalty Tribunal, in Nos. 84-1519, et al.
Jamie S. Gorelick, Washington, D.C., was on brief for intervenor/petitioner, Nat. Public Radio, in Nos. 84-1230, et al.
Peter H. Feinberg, Washington, D.C., entered an appearance for intervenor, Superstation, Inc., in Nos. 84-1230, et al. and intervenor, Turner Broadcasting System, Inc., in Nos. 84-1519, et al.
Victor E. Ferrall, Jr., John I. Stewart, David H. Solomon, Henry L. Baumann and Michael D. Berg, Washington, D.C., entered appearances for intervenor, Nat. Ass'n of Broadcasters, in Nos. 84-1519, et al.
Meredith S. Senter, Jr., and Edwina E. Dowell, Washington, D.C., entered appearances for intervenor, SIN, Inc., in Nos. 84-1519, et al.
Before EDWARDS, SCALIA and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
These two cases--one consisting of ten consolidated petitions for review, National Ass'n of Broadcasters v. Copyright Royalty Tribunal, C.A. Nos. 84-1230 et al., the other of seven consolidated petitions, Christian Broadcasting Network, Inc. v. Copyright Royalty Tribunal, C.A. Nos. 84-1519 et al. 1 --return us once again to the increasingly familiar terrain of copyright royalty awards made by the Copyright Royalty Tribunal ("CRT" or "Tribunal"), a government entity established by the 1976 Copyright Act, 17 U.S.C. Secs. 101-810 (1982). These cases represent the court's third foray in as many years into this hotly contested territory, characterized by lively competition for the ever increasing annual cache of royalty dollars for cable retransmission of copyrighted programs. For the reasons that follow, we uphold the decisions under challenge and accordingly deny the petitions for review.
In view of our two prior decisions in appeals from royalty-distribution determinations by the Tribunal, see National Ass'n of Broadcasters (NAB) v. CRT, 675 F.2d 367 (D.C.Cir.1982) (); Christian Broadcasting Network, Inc. (CBN) v. CRT, 720 F.2d 1295 (D.C.Cir.1983) (), it would serve little purpose to rehearse in detail the history of the establishment and operation of the Tribunal and the Royalty Fund. Suffice it to say that in determining the manner in which owners of copyrighted programs would be compensated for cable retransmission of their programming, Congress elected to require cable operators periodically to pay royalties into a central fund, from which the Tribunal distributes the allocated amounts to copyright owners-claimants in annual proceedings. The Copyright Act contemplates that claimants may settle their respective claims, 2 but in each of the first five distributions to date a controversy has emerged requiring CRT resolution. With these consolidated cases, four of those five distributions have been appealed to this court.
At the outset, we observe what is common ground among the parties, namely that the nature of our review of CRT decisions is quite limited. A royalty determination is scarcely a typical agency adjudication. When claimants cannot agree among themselves on the appropriate distribution of the fund, they present their cases to the CRT, which resolves the dispute. Any particular royalty percentage established by the Tribunal is, moreover, doomed to be somewhat artificial; that is, it may well appear that it would have been as reasonable for the Tribunal to have fixed the percentage a little higher or a little lower. As we have previously suggested, mathematical exactitude in these matters appears well nigh impossible, NAB v. CRT, supra, 675 F.2d at 373; rough justice in dividing up the royalty pie seems to be the inevitable result of the process that Congress ordained.
In reviewing the Tribunal's determinations, the judicial task is not to weigh the evidence and fix what in our view would constitute appropriate percentages, for that would be to intrude into the function entrusted to the Tribunal. Our job, rather, is to determine whether the royalty awards are within a "zone of reasonablenesss"--not unreasonably high or unreasonably low--and that the CRT's decision is neither arbitrary nor capricious, and is supported by substantial evidence. NAB v. CRT, supra, 675 F.2d at 371, 374-75. 3
As with the Tribunal's first allocation (for calendar year 1978), much of the Tribunal's 1979 allocation was appealed to this court in CBN v. CRT, supra, 720 F.2d 1295. The CRT's allocation was upheld in all but three respects, namely, the Tribunal's decision to award no portion of the Royalty Fund to three separate groups of claimants: (1) the Devotional Claimants, 4 (2) commercial radio broadcasters, and (3) television broadcasters for their contribution to the quality of sports telecasts. On remand, the CRT reconsidered those three non-awards. The Tribunal reaffirmed its decision to award nothing to commercial radio broadcasters and to television broadcasters for the latter's contribution to sports telecasts; however, the Tribunal altered the Devotionals' zero award so as to grant them 0.35% of the total Royalty Fund. The award to the Devotionals and the reaffirmed non-award to commercial radio are now before us.
The Devotionals contend that the record evidence demonstrates that their award should have been much higher than a measly 0.35%; in contrast, several petitioners, including the Motion Picture Association of America ("MPAA") and the Public Broadcasting Service ("PBS"), claim that the Tribunal did...
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