National Ass'n of Broadcasters v. Copyright Royalty Tribunal
| Decision Date | 09 April 1982 |
| Docket Number | 80-2281,80-2290 and 80-2298,Nos. 80-2273,80-2284,s. 80-2273 |
| Citation | 675 F.2d 367 |
| Parties | , 214 U.S.P.Q. 161, 1982 Copr.L.Dec. P 25,382, 8 Media L. Rep. 1432 NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Major League Baseball, et al., Motion Picture Association of America, Inc., Christian Broadcasting Network, Inc., Broadcast Music, Inc., Superstation,Inc., National Public Radio, Public Broadcasting Service, National CollegiateAthleticAssociation, Intervenors. NATIONAL PUBLIC RADIO, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Major League Baseball, et al., Motion Picture Association of America, Inc., Christian Broadcasting Network, Inc., Broadcast Music, Inc., NationalAssociation of Broadcasters, Superstation, Inc., Public Broadcasting Service,National CollegiateAthletic Association, Intervenors. MAJOR LEAGUE BASEBALL, National Basketball Association, National Hockey League,and North American Soccer League, Petitioners, v. COPYRIGHT ROYALTY TRIBUNAL and the United States of America, Respondents, Motion Picture Association of America, Inc., Christian Broadcasting Network, Inc., Broadcast Music, Inc., National Association of Broadcasters,Superstation, Inc., National Public Radio, Public Broadcasting Service,National Collegiate AthleticAssociation, Intervenors. CANADIAN BROADCASTING CORPORATION, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Christian Broadcasting Network, Inc., Major League Baseball, et al., BroadcastMusic, Inc., National Association of Broadcasters, Superstation, Inc., NationalPublic Radio, Public Broadcasting Service, National Collegiate AthleticAssociation,Intervenors. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Christian Broadcasting Network, Inc., Major League Baseball, NationalAssociation of Broadcasters, Broadcast Music, Inc., Superstation, Inc., National Public Radio, Public Broadcasting Service, et al., National CollegiateAthletic Association,Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Carleton G. Eldridge, Jr., New York City, with whom Erwin G. Krasnow and James J. Popham, Washington, D. C., were on the brief, for National Association of Broadcasters, petitioner in No. 80-2273 and intervenor in Nos. 80-2281, 80-2284, 80-2290 and 80-2298. Sherman E. Katz, Washington, D. C., also entered an appearance for National Association of Broadcasters.
David H. Lloyd, Washington, D. C., with whom James F. Fitzpatrick, Robert Alan Garrett, Vicki J. Divoll and Philip R. Hochberg, Washington, D. C., were on the brief, for Major League Baseball, et al., petitioners in No. 80-2284 and intervenors in Nos. 80-2273, 80-2281, 80-2290 and 80-2298.
Jamie S. Gorelick, Washington, D. C., with whom Nathan Lewin, David O. Stewart, Ernest T. Sanchez, Marc F. G. Giattini and Janice F. Hill, Washington, D. C., were on the brief, for National Public Radio, petitioner in No. 80-2281 and intervenor in Nos. 80-2273, 80-2284, 80-2290 and 80-2298.
Susan C. Lushing, New York City, with whom Malcolm A. Hoffman, New York City, was on the brief, for Canadian Broadcasting Corporation, petitioner in No. 80-2290.
Fred I. Koenigsberg, New York City, with whom Bernard Korman and Benjamin L. Zelenko, New York City, were on the brief, for American Society of Composers, Authors and Publishers, petitioner in No. 80-2298.
John F. Cordes, Atty., Dept. of Justice, Washington, D. C., with whom Thomas S. Martin, Acting Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, and William Kanter, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondent.
Arthur Scheiner, Washington, D. C., with whom Dennis Lane, Washington, D. C., was on the brief, for Motion Picture Association of America, Inc., intervenor in Nos. 80-2273, 80-2281 and 80-2284.
Charles T. Duncan, Washington, D. C., with whom Joel S. Winnik and Michael W. Faber, Washington, D. C., were on the brief, for Broadcast Music, Inc., intervenor in Nos. 80-2273, 80-2281, 80-2284, 80-2290 and 80-2298.
Judith Jurin Semo, Washington, D. C., was on the brief for National Collegiate Athletic Association, intervenor in Nos. 80-2273, 80-2281, 80-2284, 80-2290 and 80-2298.
Grover C. Cooper and Clifford M. Harrington, Washington, D. C., entered appearances for Christian Broadcasting Network, Inc., intervenor in Nos. 80-2273, 80-2281, 80-2284, 80-2290 and 80-2298.
Robert F. Corazzini and Peter H. Feinberg, Washington, D. C., entered appearances for Superstation, Inc., intervenor in Nos. 80-2273, 80-2281, 80-2284, 80-2290 and 80-2298.
Gene A. Bechtel, Theodore D. Frank, Eric H. Smith and Jacqueline Weiss, Washington, D. C., entered appearances for Public Broadcasting Service, intervenor in Nos. 80-2273, 80-2281, 80-2284, 80-2290 and 80-2298.
Before J. EDWARD LUMBARD, * Senior Circuit Judge, MacKINNON and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
These consolidated cases present various challenges to the first distribution of cable In conducting its first distribution under the Act, however, the Tribunal's treatment of one of the many claimants before it may have violated the procedural requirements of the Government in the Sunshine Act, 5 U.S.C. § 552b (1976), and the Tribunal's own regulations. We therefore remand a small portion of the decision before us-a $50,000 award initially allocated to National Public Radio-for further Tribunal proceedings.
royalty fees under the 1976 Copyright Act, 17 U.S.C. § 101 et seq. (Supp. III 1979) (the Act). Respondent is a governmental agency, the Copyright Royalty Tribunal (Tribunal), whose function is to make an annual distribution of royalty fees paid by cable television operators for their retransmission of certain copyrighted programming. The Act invests the Tribunal with broad discretion in apportioning these royalty fees. Specific awards are reversible only if the agency's decision is not supported by "substantial evidence" or is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as defined by the Administrative Procedure Act, 5 U.S.C. § 706 (1976). Judged by these standards, the Tribunal's decision adequately supports and explains almost all of its royalty allocations, and these we affirm.
Cable television is one of a number of technological changes that have recently revolutionized the communications industry in America. Operation of cable systems typically involves the reception of broadcast beams by means of special antennae and transmission of these electronic signals by cable or other methods to the homes of subscribers. In Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), and Teleprompter Corp. v. CBS, Inc., 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974), the Supreme Court held that such reception and distribution of television broadcasts did not constitute a "performance" within the meaning of the Copyright Act of 1909. The Court recognized the commercial impact of its decisions, but concluded that "any ultimate resolution of the many sensitive and important problems in this field ... must be left to Congress." Teleprompter Corp. v. CBS, Inc., 415 U.S. at 414, 94 S.Ct. at 1141.
Congress responded to these decisions by enacting Section 111 of the Copyright Act of 1976, 17 U.S.C. § 111 (Supp. III 1979), which requires cable operators to pay royalties to the creators of copyrighted program material that is used by the cable systems. Congress recognized, however, that it would be impractical to require every cable operator to negotiate directly with every copyright owner. See H.R.Rep.No. 1467, 94th Cong., 2d Sess. 89 (1976) (hereinafter cited as House Report). Accordingly, the Act mandates two steps in this process. First, cable operators are required to obtain a copyright license and periodically pay royalty fees into a central fund (the Fund). 1 17 U.S.C. § 111(c), (d). Second, the Tribunal is then required to
distribute royalty fees deposited ... under section 111 and ... determine, in cases where controversy exists, the distribution of such fees.
17 U.S.C. § 801(b)(3). The Act requires that the Tribunal render its final distribution decision within one year of the start of these proceedings, and that it state the relevant criteria and facts relied on as well as the reasons for its decision. 17 U.S.C. § 803(b).
The Tribunal initiated the first royalty distribution under this scheme in August 1979, concerning cable royalties paid for the 1978 calendar year. 2 The Tribunal divided The Phase II proceedings were considerably simpler than those in Phase I because all but one of these claimant groups reached voluntary agreement on the allocation of shares within each group. The Tribunal had only to apportion the share of music claimants, and did so as follows:
its proceeding into two "phases," based on the fact that the claimants to the Fund could easily be broken down into specific groups. 45 Fed.Reg. 63,027 (Sept. 23, 1980). Phase I resulted in the following distribution of the $15 million Fund:
American Society of Composers
Authors and Publishers
(ASCAP) 54%
Broadcast Music, Inc. (BMI) 43%
SESAC, Inc. 3%
These distributions were announced in the Tribunal's final decision of September 23, 1980, 45 Fed.Reg. 63,026 (hereinafter cited as Decision).
The five cases challenging the Tribunal's Decision can best be understood after identifying the various petitioners.
No. 80-2273 is...
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