Christian Broadcasting Network, Inc. v. Copyright Royalty Tribunal, OLD-TIME
| Decision Date | 25 October 1983 |
| Docket Number | 82-1327,82-1371,82-1326,OLD-TIME,82-1372 and 82-1383,Nos. 82-1312,s. 82-1312 |
| Citation | 720 F.2d 1295 |
| Parties | , 222 U.S.P.Q. 471, 1983 Copr.L.Dec. P 25,588 The CHRISTIAN BROADCASTING NETWORK, INC., Appellant, v. The COPYRIGHT ROYALTY TRIBUNAL, Appellee, Major League Baseball, et al., Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., National Association of Broadcasters, Broadcast Music, Inc., Old-Time Gospel Hour, American Society of Composers, Authors and Publishers, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors.GOSPEL HOUR, Appellant, v. COPYRIGHT ROYALTY TRIBUNAL, Appellee, Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., National Association of Broadcasters, Broadcast Music, Inc., American Society of Composers, Authors and Publishers, Major League Baseball, et al., Christian Broadcasting Network, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. PTL TELEVISION NETWORK, Appellant, v. COPYRIGHT ROYALTY TRIBUNAL, Appellee, Major League Baseball, et al., Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., National Association of Broadcasters, Broadcast Music, Inc., Old-Time Gospel Hour, American Society of Composers, Authors and Publishers, Christian Broadcasting Network, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. The NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., Broadcast Music, Inc., Old-Time Gospel Hour, American Society of Composers, Authors and Publishers, Major League Baseball, et al., Christian Broadcasting Network, Inc., |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Dennis Lane, Washington, D.C., with whom Arthur Scheiner, Washington, D.C., was on the brief for petitioners/intervenors Motion Picture Association of America, Inc., et al., in 82-1372, 82-1312, 82-1326, 82-1327, 82-1371 and 82-1383.
W. Thad Adams, III, Charlotte, N.C., for appellant PTL Television Network in 82-1327.
Victor E. Ferrall, Jr., Washington, D.C., with whom John I. Stewart, Jr., Robert M. Halperin, Erwin G. Krasnow and Michael D. Berg, Washington, D.C., were on the brief for petitioner/intervenor National Association of Broadcasters in 82-1371, 82-1312, 82-1326, 82-1327, 82-1372 and 82-1383. James J. Popham, Washington, D.C., also entered an appearance for the National Association of Broadcasters.
Donald A. Kaul, Washington, D.C., with whom Shelley R. Grant and Edwina Dowell, Washington, D.C., were on the brief for petitioner/intervenor Spanish International Network, Inc., in 82-1383, 82-1312, 82-1326, 82-1327, 82-1371 and 82-1372.
Grover C. Cooper, Clifford M. Harrington and Richard J. Bodorff, Washington, D.C., were on the brief, for appellant/intervenor The Christian Broadcasting Network, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
John H. Midlen, Jr., Washington, D.C., was on the brief for petitioner/intervenor Old-Time Gospel Hour in 82-1326, 82-1312, 82-1327, 82-1371 and 82-1372.
Bruce G. Forrest, Atty., Dept. of Justice, Washington, D.C., with whom William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellee/respondent Copyright Royalty Tribunal.
James F. Fitzpatrick, David H. Lloyd, Robert Alan Garrett and Vicki J. Divoll for Major League Baseball, Philip R. Hochberg for National Basketball Association, et al., and Robert Coll for National Hockey League and Judith Jurin Semo, Washington, D.C., for National Collegiate Athletic Association, were on the joint brief for intervenors Major League Baseball, et al., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
Arnold P. Lutzker, Washington, D.C., was on the brief for intervenor Multimedia Program Productions, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
Bernard Korman and I. Fred Koenigsberg, New York City, were on the brief for intervenor American Society of Composers, Authors and Publishers in 82-1312, 82-1326, 82-1371, 82-1372 and 82-1383. Benjamin L. Zelenko, Washington, D.C., also entered an appearance for American Society of Composers, Authors and Publishers.
Charles T. Duncan, Michael W. Faber, Joel S. Winnik and Amy Grossman Applegate, Washington, D.C., were on the brief for intervenor Broadcast Music, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
Malcolm A. Hoffmann, New York City, was on the brief for intervenor Canadian Broadcasting Corporation in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
Lawrence A. Horn, Jacqueline Weiss and Gene A. Bechtel, Washington, D.C., were on the brief for intervenor Public Broadcasting Service in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
Jamie S. Gorelick, David O. Stewart and Janice F. Hill, Deputy Gen. Counsel, Washington, D.C., were on the brief for intervenor National Public Radio in 82-1312, 82-1326, 82-1327, 82-1371 and 82-1372.
Robert F. Corazzini and Peter H. Feinberg, Washington, D.C., for intervenor Superstation, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.
Before ROBINSON, Chief Judge, WILKEY and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
Pursuant to the 1976 Copyright Act (the Act), 17 U.S.C. Sec. 101-810 (Supp. V 1981), cable television systems may, by following specified procedures, retransmit certain copyrighted programming to their subscribers without incurring liability for copyright infringement. To avoid liability, however, cable systems must obtain a compulsory license for their operations, in part by paying royalty fees into a central fund (the Fund). This Fund is distributed annually by a federal agency, the Copyright Royalty Tribunal (the Tribunal), among copyright owners whose works were retransmitted by cable. The Tribunal's first distribution determination, for calendar year 1978, was affirmed in almost all respects by this court in National Association of Broadcasters v. Copyright Royalty Tribunal (NAB v. CRT), 675 F.2d 367 (D.C.Cir.1982). The consolidated cases now before us present various challenges to the Tribunal's second annual distribution, for calendar year 1979. With several important exceptions, we affirm the Tribunal's 1979 determination.
The 1976 Copyright Act requires that, each July, every copyright owner "claiming to be entitled to [the] compulsory license fees [deposited in the Fund] shall file a claim with the Copyright Royalty Tribunal...." 17 U.S.C. Sec. 111(d)(5)(A). The Act specifically provides that these claimants, notwithstanding any provision of the antitrust laws, "may agree among themselves as to the proportionate division of [the Fund] ... [and] may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf." Id. If, however, after the first day of August of each year, the Tribunal finds that no such agreement has been reached, the Tribunal must declare a "controversy" and conduct a "proceeding" to determine the appropriate distribution of the Fund. Id. Sec. 111(d)(5)(B).
After soliciting comments from copyright owners in October 1980 and hearing arguments at a public meeting one month later, the Tribunal declared the existence of a controversy concerning the distribution of cable royalty fees for calendar year 1979. See 45 Fed.Reg. 71,641 (1980) (); 46 Fed.Reg. 14,153 (1981) (). Shortly thereafter, the Tribunal announced that its 1979 proceeding would be conducted in two separate phases (as had been its 1978 proceeding).
Phase I was to allocate percentages of the Fund among various groups of claimants; Phase II was to resolve disputes, if any, among claimants within each group. 46 Fed.Reg. 24,619 (1981).
Following forty-two days of evidentiary hearings, the Tribunal concluded Phase I of its proceedings by allocating the $20.6 million Fund among several claimant groups:
Program syndicators and movie producers 70%
Joint sports claimants 15%
Public Broadcasting Service 5.25%
U.S. television broadcasters 4.5%
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