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04/09/82 National Association of v. Copyright Royalty Tribunal

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


April 9, 1982

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

ASSOCIATION, 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

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

Before J. EDWARD LUMBARD,* Senior Circuit Judge, MacKINNON and MIKVA, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

MUSIC, INC., SUPERSTATION, INC., NATIONAL PUBLIC RADIO,

PUBLIC BROADCASTING SERVICE, NATIONAL COLLEGIATE ATHLETIC

MUSIC, INC., NATIONAL ASSOCIATION OF BROADCASTERS,

SUPERSTATION, INC., PUBLIC BROADCASTING SERVICE, NATIONAL

COLLEGIATE ATHLETIC ASSOCIATION, INTERVENORS; MAJOR LEAGUE

BASEBALL, NATIONAL BASKETBALL ASSOCIATION, NATIONAL HOCKEY

MUSIC, INC., NATIONAL ASSOCIATION OF BROADCASTERS,

SUPERSTATION, INC., NATIONAL PUBLIC RADIO, PUBLIC

BROADCASTING SERVICE, NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, INTERVENORS; CANADIAN BROADCASTING

CORPORATION, PETITIONER v. COPYRIGHT ROYALTY TRIBUNAL, RESPONDENT CHRISTIAN BROADCASTING NETWORK, INC., MAJOR

LEAGUE BASEBALL, ET AL., BROADCAST MUSIC, INC., NATIONAL

ASSOCIATION OF BROADCASTERS, SUPERSTATION, INC., NATIONAL

PUBLIC RADIO, PUBLIC BROADCASTING SERVICE, NATIONAL

COLLEGIATE ATHLETIC ASSOCIATION, INTERVENORS; AMERICAN

SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, PETITIONER v.

COPYRIGHT ROYALTY TRIBUNAL, RESPONDENT CHRISTIAN

BROADCASTING NETWORK, INC., MAJOR LEAGUE BASEBALL, NATIONAL

ASSOCIATION OF BROADCASTERS, BROADCAST MUSIC, INC.,

SUPERSTATION, INC., NATIONAL PUBLIC RADIO, PUBLIC

BROADCASTING SERVICE, ET AL., NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, INTERVENORS

Nos. 80-2273, 80-2281, 80-2284, 80-2290, 80-2298 1982.CDC.93

Petitions for Review of Orders of the Copyright Royalty tribunal.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

These consolidated cases present various challenges to the first distribution of cable 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.

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. I. BACKGROUND

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). *fn1 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. *fn2 The Tribunal divided its proceeding into two "phases," based on the fact that the claimants to the Fund could easily be broken down into specific groups. "Phase I would determine the allocation of cable royalties to specific groups of claimants. Phase II would allocate royalties to individual claimants within each group." 45 Fed.Reg. 63,027 (Sept. 23, 1980). Phase I resulted in the following distribution of the $15 million Fund:

Program syndicators and movie producers 75%

Sports leagues 12%

Television broadcasters 3.25%

Public television 5.25%

Music claimants 4.5%

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:

American Socitey of Composers,

Authors and Publishers 54%

Broadcast Music, Inc. 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).

A. The Claimants

The five cases challenging the Tribunal's Decision can best be understood after identifying the various petitioners.

No. 80-2273 is brought by the National Association of Broadcasters , which represents commercial radio and television broadcasters. The Tribunal rejected NAB's contention that broadcasters deserved a substantial share of the Fund. It awarded the 3.5% share to television broadcasters, and denied any award whatsoever to commercial radio broadcasters on the ground that these retransmissions lacked "any significant marketplace value." Decision at 63,038.

No. 80-2284 is brought by the Joint Sports Claimants , a group that includes professional baseball, basketball, hockey, and soccer leagues. JSC seeks a larger award at the expense of movie producers and program syndicators, but also intervenes in No. 80-2273 to protect its 12% award from the claims of NAB.

No. 80-2298 is brought by ASCAP, an unincorporated membership association of writers and publishers of music. ASCAP makes two general claims, contending that music claimants should have received a larger share of the Fund in the Phase I proceeding, and that ASCAP should have received a larger relative share of the 4.5% music award divided by the Tribunal in the Phase II proceeding. ASCAP, BMI, and SESAC, Inc., the claimants in the Phase II proceeding, are "performing rights societies," see 17 U.S.C. § 116(e)(3), which collect licensing fees for distribution to their members. BMI is a corporation that is owned and run by the broadcasting industry. SESAC, Inc. is a family-owned corporation, much smaller than ASCAP or BMI, and has not intervened in this appeal.

Nos. 80-2281 and 80-2290 are similar because each is brought on behalf of radio claimants who were denied any award from the Tribunal. The petitioner in the latter case is the Canadian Broadcasting Corporation , which was established by section 34 of the Canadian Broadcasting Act, Can.Rev.Stat. ch. B-11 (1970). In 1978, CBC was the copyright holder of more than 5,000 hours of television programming for its French and English language networks, and 35,000 hours of AM and FM programming on the four national radio networks. The Tribunal contemplated that CBC would receive a portion of the 3.5% award given to commercial television broadcasters for its television copyrights, but refused to compensate CBC for its radio programming. The final petitioner, National Public Radio , is a private, non-profit organization that produces news, public affairs, educational, and cultural programming for its 220 member radio stations. These stations resemble the CBC radio stations in the noncommercial nature of their programming. Like CBC, NPR challenges the Tribunal's decision to award no royalties to radio claimants.

Identification of several intervenors will also promote comprehension of these cases. The Motion Picture Association of America is a national trade association of motion picture companies engaged in production and distribution of programs to television broadcasters. On this appeal, MPAA also represents syndicators of television programs, such as Hanna-Barbera Productions, King Features Syndicate, and MTM Enterprises, Inc. MPAA intervenes to defend the 75% share award to these groups of claimants and the general soundness of the Tribunal's Decision. In turn, the Tribunal relies heavily on the brief filed by MPAA. See Brief for Respondent Copyright Royalty Tribunal (Tribunal Brief) at 14. Other intervenors are BMI, which opposes the Phase II claims of ASCAP, and the National Collegiate Athletic Association , which defends the sports claimants' share against the claims of NAB.

B. The Tribunal's General Approach

The Act instructs the Tribunal to compensate claimants only for "nonnetwork" material that is retransmitted "in whole or in part beyond the local service area of the primary transmitter." 17 U.S.C. 111(d)(4). This reflects a congressional understanding that copyright owners suffer injury requiring compensation only when the secondary transmissions by cable operators reach markets ordinarily not served by the primary transmitters. See House Report at 90. Network programming, for example, which theoretically is available across the country, is not adversely affected even though it is also available on cable. Similarly, the local retransmission by cable television of a local broadcast merely duplicates programming that is already available in an area. The problem arises because cable systems can pick up broadcasts that are exclusive to one geographical area and carry those broadcasts vast distances into other markets, thereby weakening the copyright holder's ability to exploit his materials elsewhere. The Act therefore was not intended to compensate network broadcasts or even local broadcasters whose programs are retransmitted locally by a cable system in the same area. *fn3

Aside from these restrictions, however, Congress decided that "it would not be appropriate to specify particular, limiting standards for distribution" of the cable royalties, and to leave the development of such criteria to the Tribunal on the basis of "all pertinent data and considerations presented by the claimants." House Report at 97. The Tribunal concluded that "no mathematical formula or theory or combination of formulas or theories provided a satisfactory basis for the distribution of royalty fees." 45 Fed.Reg. 50,621 (July 30, 1980). Accordingly, it decided that the following criteria should guide its allocation of royalty shares:

The Tribunal determined the primary factors to be:

(a) the harm caused to copyright owners by secondary transmissions of copyrighted works by cable systems,

(b) the benefit derived by cable systems from the secondary transmissions of certain copyrighted works, and

(c) the marketplace value of the works transmitted.

The Tribunal determined the secondary factors to be:

(a) quality of copyrighted program material, and

(b) time-related considerations.

Decision at 63,035.

These criteria explain why almost 90% of the Fund was awarded to movie producers, program syndicators, and sports claimants. The Tribunal observed that movies, syndicated programs, and sports events constitute the largest and most profitable segment of programming transmitted by cable systems, and therefore deserved commensurate compensation under the "marketplace value" standard. *fn4 The lion's share went to movie producers and program syndicators because "by any measure syndicated movies and programs comprise the largest segment of programming" transmitted by cable systems and because of the "great risks" to these producers in a market in which "the high costs of production and the low returns from network licensing make program producers dependent upon syndication to recoup their costs." Decision at 63,037. II. THE SCOPE OF REVIEW

Although most of the petitioners challenge the Tribunal's action on both substantive and procedural grounds, it seems clear that these claims are motivated essentially by each petitioner's feeling that it deserved a larger share of the Fund. Such reactions flow naturally from the not insignificant consequences of changing one or two percentage points in the distribution of $15 million, and the size of the Fund is expected to grow enormously in future years as cable systems become more widespread. *fn5

Claims of this sort are generally well beyond the expertise or authority of courts, however, and Congress made clear its awareness of our limitations by making the Tribunal the primary arbiter of these claims. The Tribunal heard some 24 days of testimony on behalf of 474 individual claimants, memorialized in 3,021 pages of transcript with 87 exhibits, during the Phase I proceeding alone. No de novo judicial inquiry into the merits of these proceedings would be constructive, even if it were permitted by the Act. Courts must be particularly cautious where, as here, numerical or percentage results are in issue. In Permian Basin Area Rate Cases, 390 U.S. 747, 88 S. Ct. 1344, 20 L. Ed. 2d 312 (1968), the Supreme Court suggested that an agency's choice of a particular number or percentage is not reviewable for exact precision, but simply for broad reasonableness. Even where the statute requires an agency's conclusions to be "supported by substantial evidence," the Court said, "courts are without authority to set aside any rate selected by the Commission which is within a "zone of reasonableness.' " Id. at 767, 88 S. Ct. at 1360 (quoting FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S. Ct. 736, 742, 86 L. Ed. 1037 (1942)). See National Ass'n of Greeting Card Publishers v. U.S. Postal Service, 197 U.S. App. D.C. 78, 607 F.2d 392, 401 (D.C.Cir.1979); Hercules, Inc. v. EPA, 194 U.S. App. D.C. 172, 598 F.2d 91, 106 (D.C.Cir.1978).

Statutory reasonableness is an abstract quality represented by an area rather than a pinpoint. It allows a substantial spread between what is unreasonable because too low and what is unreasonable because too high. To reduce the abstract concept of reasonableness to concrete expression in dollars and cents is the function of the Commission.

Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, 71 S. Ct. 692, 695, 95 L. Ed. 912 (1951).

At the same time, the Tribunal is not free to apportion the Fund with unbridled discretion. Its allocations must be neither arbitrary nor capricious, and must be supported by substantial evidence. Section 810 of the Act provides that judicial review of the Tribunal's final decisions "shall be had, in accordance with chapter 7 of title 5 (the Administrative Procedure Act), on the basis of the record before the Tribunal." 17 U.S.C. § 810. The Act therefore "provides for the full scope of judicial review provided" by the Administrative Procedure Act, House Report at 179, and this includes review under the "substantial evidence" standard. *fn6 This standard also leaves room, of course, for "the reviewing court to respect the agency's wide latitude for difficult policy choices." American Public Gas Ass'n v. FPC, 186 U.S. App. D.C. 23, 567 F.2d 1016, 1030 (D.C.Cir.1977), cert. denied, 435 U.S. 907, 98 S. Ct. 1456, 55 L. Ed. 2d 499 (1978). The existence of substantial evidence must be determined by reference to the entire record, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 465, 95 L. Ed. 456 (1951), but substantial evidence is not lacking merely because the agency chooses one conclusion from evidence that arguably supports "two inconsistent conclusions." Consolo v. FMC, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966). *fn7

A similar concern for balancing fairness to the parties against administrative efficiency and expertise informs our review of the Tribunal's procedures. We need not articulate the exact procedures that the Tribunal was required to follow in creating a record for judicial review, see United States v. Florida East Coast Railway Co., 410 U.S. 224, 244-45, 93 S. Ct. 810, 820-21, 35 L. Ed. 2d 223 (1973), because the Tribunal's procedures were clearly adequate. The Tribunal provided a full opportunity for all parties to present evidence, to test the evidence of other parties, to submit rebuttal testimony, and to brief issues at various stages of the proceeding. See generally 45 Fed.Reg. at 63,026-28. "n any administrative proceeding, the type of procedure required is related and proportionate to the degree of evidentiary support required for the agency's decision." Mobil Oil Corp. v. FPC, 157 U.S. App. D.C. 235, 483 F.2d 1238, 1259 (D.C.Cir.1973). Our assessment of the Tribunal's procedures must consider the difficulties facing the agency and the mandate given it by Congress. *fn8

These principles of review allow us to deal summarily with many of the general arguments made by the petitioners. We find no error in the distribution criteria selected by the Tribunal, *fn9 an argument pressed forcefully by NAB, and no inadequacies in the Tribunal's articulation of the bases for its allocations under these criteria. *fn10 Similarly, we reject the contention that the Tribunal should have articulated these criteria before taking evidence from the parties. The Tribunal was free to structure its proceedings in a reasonable fashion, see FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S. Ct. 437, 441, 84 L. Ed. 656 (1940), and deference is particularly due where courts review statutory interpretations by the agency "charged with the responsibility of setting (the) machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new." Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S. Ct. 350, 358, 77 L. Ed. 796 (1933). The Act explicitly contemplates that the Tribunal will announce its decisional criteria in the "final determination." 17 U.S.C. § 803. See House Report at 97 (recognizing that data and arguments advanced by parties would vitally influence the ultimate criteria used by Tribunal). In any event, the parties can hardly claim ignorance of the Tribunal's concerns during the Phase I evidentiary proceedings. After the parties had presented their direct cases and cross-examination had been concluded, the Tribunal allowed the claimants to supplement their presentations with rebuttal evidence including "any theory or evidence excluded" earlier. Tribunal Order, May 7, 1980, P 1. Many of the relevant criteria were obvious, and had been noted almost from the start. *fn11 The parties thus had a broad opportunity to adopt or attack the methodologies suggested by other claimants, and therefore had "a reasonable opportunity to know the claims of the opposing party and to meet them." Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 776, 82 L. Ed. 1129 (1938). No claimant was prejudiced more than any other by the fact that the Tribunal was conducting its initial apportionment of the Fund. Neither the Act nor the requirements of due process were violated by the Tribunal conducting that apportionment with the open-mindedness that should accompany the performance of any task for the first time. *fn12 III. INDIVIDUAL CLAIMS

Because these consolidated cases have varying degrees of complexity and merit, we discuss them separately.

A. NAB Claims for Commercial Broadcasters

NAB makes a host of arguments on behalf of commercial television and commercial radio broadcasters. These two groups of claimants were treated quite differently by the Tribunal, but in each case we affirm the Tribunal's decision.

NAB suggests several theories that are said to demonstrate that the Tribunal undercompensated commercial television broadcasters. One common strand of these theories is an emphasis on the creative work that goes into a television station's activities.

The first theory seeks compensation for each station's "broadcast day as a compilation." NAB argues that cable operators do not retransmit individual programs selectively, but simply pick up the broadcasts of particular stations in their entirety. *fn13 The broadcast stations expend considerable time and effort in compiling a broadcast day, however, and NAB suggests that this compilation itself falls within the Act's definition of a copyrightable work. The Act defines a "compilation" as "a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. § 101. As NAB emphasizes, such compilations are traditionally afforded copyright protection. *fn14

The second theory could be considered a more specific application of the first, focusing on the telecast of sports events. The Tribunal awarded a sizeable portion of the Fund to sports claimants after ruling that copyright vests in the athletic teams unless the broadcaster explicitly contracts otherwise. *fn15 NAB disputes this conclusion on several grounds. It notes that the mere performance of a sport or game could not be copyrighted at common law, *fn16 and argues that it is only the efforts of the broadcaster that create a copyrightable interest at all. *fn17 NAB also contends that because copyrights are divisible under the Act, 17 U.S.C. §§ 102, 201(d)(2), broadcasters as well as sports teams should receive some compensation for the telecasts.

NAB's general theories are well taken. Although there is some confusion in the legislative history, *fn18 Congress clearly seemed to contemplate Tribunal recognition of the copyrightable interests claimed by NAB:

When a football game is being covered by four television cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent out to the public and in what order there is little doubt that what the cameramen and the director are doing is what constitutes "authorship."

House Report at 52. Anyone who has ever watched ABC's Monday Night Football, for example, knows that the commentary of the announcers and such effects as instant replay in slow motion add immensely to the quality of a sports telecast. *fn19 Similarly, there is little doubt that the efforts used in juggling programs and compiling a broadcast day constitute a copyrightable interest under the Act.

That the interests advanced by NAB are copyrightable does not get broadcasters to the promised land, however. The Tribunal still must address the value of these interests. It is true that the Tribunal has no authority under the Act to ignore valid copyright claims, and we find several somewhat bald statements in the Decision troublesome. See, e.g., Decision at 63,032 ("it is unnecessary for the Tribunal to analyze the ownership and remedies provisions of the Copyright Act"). By any standard, however, the theories advanced by NAB concern interests that are quantitatively de minimis. As the Tribunal observes, the work of television stations in broadcasting sports events and compiling broadcast days has minimal market value because "the public tunes in sports broadcasts mainly to see the sports performance, not the activities of the director and the cameramen." Tribunal Brief at 24. The Decision also observed that "(t)he record is void of any useful evidence that local broadcasters are harmed by cable carriage in distant markets of their locally produced programs," Decision at 63,038, and it is quite possible that distant carriage of local broadcasts is considerably beneficial to television broadcasters because the enlarged audience increases the reach of commercial advertising. *fn20 The Tribunal's award of 3.5% to commercial television broadcasters clearly falls within the "zone of reasonableness" in terms of compensating broadcasters for their activities. The character of the Tribunal's explanation for that award leaves room for improvement, but NAB's objections are greatly overstated. *fn21

NAB's second group of arguments concerns the Tribunal's refusal to make any award to commercial radio broadcasters. It is uncontested that cable systems retransmit radio programs as well as television broadcasts, and the Act clearly contemplates that the Fund may be used to compensate "nonnetwork programming consisting exclusively of aural signals" retransmitted beyond the local service area of the original transmitter. 17 U.S.C. § 111(d)(4). Because of inadequacies in the information-gathering procedures implemented by the Copyright Office, however, radio claimants found it almost impossible to establish the distant carriage of their signals. *fn22 The Tribunal therefore concluded that "(t)he record is inadequate to establish the extent of cable carriage of radio programming," and "fails to show the value of such programming ... or support a finding that the carriage of commercial radio signals is harmful to radio stations." Decision at 63,040.

These findings are entirely reasonable. The ubiquity of recorded music may be a blessing of modern times, but this fact works to the disadvantage of commercial radio claimants. As Frank Mankiewicz told the Tribunal during the Phase I proceedings in his capacity as NPR president:

Almost all commercial radio systems, or radio stations, have the same sound. I mean-what I'm saying is this, I don't see the value of a cable system, a cable operator, taking the signal of a rock and roll station from Cincinnati, and sending it to, let's say, Detroit, because there are rock stations in Detroit which provide exactly the same sound.

Tr. 5/6/80, Joint Appendix 1613. Commercial radio claimants made no showing of the "marketplace value" their signals had to cable systems, and did not suggest that they were harmed by distant carriage of their signals. Indeed, like television broadcasters, radio claimants may even be commercially benefitted by the wider dissemination of their broadcasts. The inability of these claimants to establish the extent to which their signals were retransmitted in distant areas further demonstrates the reasonableness of the Tribunal's decision.

NAB contends, however, that the denial of even a token award to radio claimants violates the mandatory language of the Act, "which states that the Tribunal "shall ' distribute royalties to any copyright owner whose work was distantly carried on a cable system and "was included in non-network programming consisting exclusively of aural signals.' " Brief for Petitioner NAB (NAB Brief) at 68. It is true, as Justice Cardozo stated in Escoe v. Zerbst, 295 U.S. 490, 493, 55 S. Ct. 818, 820, 79 L. Ed. 1566 (1935), that the word "shall" is "the language of command." See Association of American Railroads v. Costle, 183 U.S. App. D.C. 362, 562 F.2d 1310, 1312 (D.C.Cir.1977); National Treasury Employees Union v. Nixon, 160 U.S. App. D.C. 321, 492 F.2d 587, 601 (D.C.Cir.1974). The argument quotes the statute out of context, however. Section 111(d)(4) requires that the Fund be distributed "among" designated copyright owners, and makes it clear that royalty recipients must qualify under the terms of that section. It was not arbitrary or capricious for the Tribunal to conclude that commercial radio claimants did not qualify for an award under the criteria set by the Tribunal, nor was it a violation of the statutory commands of the Act.

B. JSC (sports claimants)

The JSC arguments focus on the Tribunal's rejection of the criteria proposed by the sports claimants for apportionment of the Fund, and on whether substantial evidence supports the Tribunal's apportionment decision even under the Tribunal's own criteria. Our discussion in Part II supra explains why neither of these contentions has merit. The

In contrast to owners of movies and syndicated programs which can produce revenues repeatedly in different market situations, once a sports event has been telecast, it is thereafter usually of no further monetary value to the copyright owner.

Decision at 63,038. The truth of this observation will appear to anyone who has ever tried to cure insomnia with late-night television reruns, and even JSC seems to concede the point in its brief. *fn23 Although sports programs may command a higher audience share than most movies or programs, it was not unreasonable for the Tribunal to find that "deficiencies" in JSC's evidentiary presentation undermined its claim to some extent. *fn24 In view of the wide latitude that Congress gave the Tribunal in allocating cable royalties, the decision to give sports claimants 12% of the Fund is by no means unsupported by substantial evidence.

C. ASCAP music claims

Our observations in Part II supra also explain why we reject ASCAP's first general claim, concerning the total share of the Fund awarded to music claimants. The argument once again comes down to methodology, and the Tribunal's refusal to rely blindly on the data put forward by ASCAP was not unreasonable. *fn25 The two approaches lead to a difference of only three percentage points of the Fund, and we cannot say that the Tribunal's choice falls outside a zone of reasonableness.

ASCAP's second challenge, concerning its relative share of the award to music claimants generally, has somewhat greater force. Two of the five Tribunal members agreed with ASCAP in their dissent from the Phase II determination, and ASCAP makes a succession of strong arguments concerning the strength of its supporting evidence and the weakness of the evidence cited by the Tribunal. *fn26 It is not necessary to devote considerable attention to this claim, however. The Tribunal did not act unreasonably in concluding that the BMI and ASCAP shares of the music industry have been converging since 1972, and therefore in refusing to allocate the music share between these two claimants along the lines of a more sharply skewed division in that year. *fn27 As we have emphasized throughout this opinion, the Tribunal's numerical apportionments are entitled to considerable deference, and its decision is not unsupported by substantial evidence merely because other divisions were possible.

D. NPR and CBC (noncommercial radio claimants)

CBC and NPR, the final two petitioners, present what in many ways are the most difficult questions in this case. Each submitted claims to the Tribunal on behalf of their member stations, and as program originators. Each of these noncommercial radio claimants made a stronger showing that their signals were the subject of distant carriage by cable systems than did commercial radio claimants. *fn28 The Tribunal acknowledged that noncommercial radio differs greatly from commercial radio because its programs are less duplicative:

The record contains testimony that "in almost every community in which a public radio station exists, it provided a service that is not otherwise available" and that the value to a cable system of carrying a public radio station may be greater than "transmitting most commercial radio stations from one market to another because they are almost identical."

Decision at 63,040. Nevertheless, the Tribunal declined to make an award from the Fund to the radio stations represented by CBC or NPR.

As in the case of commercial radio claimants, however, the chief obstacle faced by NPR and CBC was showing the extent that their programs were the subject of distant carriage by cable systems. NPR argues that this difficulty is not relevant to its right to recover royalties, not only because of the mandatory language of section 111(d)(4) but also because NPR met every threshold showing required by the Tribunal of claimants to the Fund. *fn29 NPR further argues that the question of whether to grant compensation is qualitatively different than the question of how much that compensation should be. Because Congress created a compensable property interest in works that are the subject of cable retransmission, NPR suggests, the failure to obtain such compensation from the Fund may amount to a violation of the Fifth Amendment. See 122 Cong.Rec. 32,009 (remarks of Representative Danielson) (without royalty compensation, a copyright holder is "denied the exclusive right to his property which is guaranteed by the Constitution"). NPR therefore urges that outright exclusion of claimants be reviewed with more judicial scrutiny than are the Tribunal's percentage allocations. NPR Brief at 28-43.

Even under the close scrutiny suggested by NPR, however, we find no error in the Tribunal's action. Several times during the Phase I proceeding, NPR candidly admitted its difficulty in demonstrating that its member stations were the subject of any significant distant carriage by cable systems. *fn30 A sampling approach to this problem would have been perfectly valid, but the surveys introduced by NPR were incomplete. *fn31 The Tribunal heard testimony that of some 4,000 FM stations in the country, only 900 are noncommercial and only 213 of these are NPR stations. Only 61 of these NPR stations submitted claims, and a number of these claims concerned retransmissions of an extremely limited scope. *fn32 CBC's case was diminished by its failure to offer statistical evidence until the Tribunal had moved into Phase II of its proceedings, thus making the proffer untimely. Moreover, it appears that the reliability of the CBC data is not beyond question. See MPAA Brief at 37 n.40 (call numbers of Canadian stations include "a number of non-existent stations and a number of commercial privately owned stations"). In short, the Tribunal's assessment of the evidence in the record put forward to support CBC and NPR claims was not unreasonable. IV. THE NEED FOR A REMAND

The Tribunal's handling of NPR's claim raises several procedural questions. In July 1980, after the close of its Phase I evidentiary proceedings, the Tribunal issued a "summary statement of its Phase I determination." 45 Fed.Reg. 50,621 (July 25, 1981). Although it observed that "the record made in this proceeding provides no basis for an allocation of royalty fees to commercial radio," id. at 50,622 (emphasis added), the Tribunal initially came to an entirely different conclusion regarding public radio. It stated that "the Tribunal, in its final determination, will provide" an allocation of 0.25% to NPR. Id.

After issuing this summary of its determinations, the Tribunal rejected repeated attempts "to reopen Phase I issues to the prejudice of other claimants." It explained:

Once the Tribunal has reached such a determination in an adjudication proceeding, it may not be subsequently reversed if the reversal would prejudice the rights of claimants.

Decision at 63,039. Apart from three days of hearings on the Phase II issues that concerned only the music claimants, the Tribunal noticed no meetings on the 1978 royalty distribution, and NPR contends that there is no public record of further meetings. NPR Brief at 22.

In the final decision, however, the Tribunal restated each of the allocations announced in its earlier summary-with one exception. The award that had been earmarked for NPR was rescinded and added to the 5% that had previously been designated for the Public Broadcast Service , public television. Only two statements in the Decision refer to this change. The first applies to radio claims generally: "The record is inadequate to establish the extent of cable carriage of radio programming." Decision at 63,040. The second applies specifically to NPR:

Prior to the adoption of our final decision in this proceeding, a motion was made and adopted for reconsideration of our award to NPR. Upon reconsideration, a majority of the Tribunal determined that the record in this proceeding is inadequate to support any award to NPR and therefore we have set aside our preliminary determination.

Id.

NPR attacks this Tribunal action on forceful procedural grounds. The Tribunal's regulations modeled after the Government in the Sunshine Act, 5 U.S.C. § 552b (1976), require that all meetings be preceded by seven days' notice in the Federal Register, that all meetings be open to the public, and that records of all meetings be maintained. 37 C.F.R. 301.11 (1979). NPR contends that the Tribunal reversed its initial decision in violation of these procedural requirements, and without giving NPR notice of that proposed action or an opportunity to respond. See Morgan v. United States, 304 U.S. 1, 19, 58 S. Ct. 773, 776, 82 L. Ed. 1129 (1938) (parties are "entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command"). NPR also observes that the Act requires the Tribunal to

state in detail the criteria that the Tribunal determined to be applicable to the particular proceeding, the various facts that it found relevant to its determination in that proceeding, and the specific reasons for its determination.

17 U.S.C. § 803(b). NPR contends that the summary statement given by the Tribunal for its rescission of the award to NPR was a conclusion rather than a statement of "reasons," see Connecticut Light & Power Co. v. FERC, 201 U.S. App. D.C. 8, 627 F.2d 467 (D.C.Cir.1980), and that the rescission is flawed by the Tribunal's failure to explain "why it ha(s) chosen to reject the reasoning of its initial decision." National Ass'n of Food Chains, Inc. v. ICC, 175 U.S. App. D.C. 346, 535 F.2d 1308, 1318 (D.C.Cir.1976).

We find these procedural arguments troubling. The record would be clearer had NPR filed a motion for reconsideration of these questions, but NPR had no administrative recourse because the Tribunal's rules prohibit the reopening of a proceeding following a final determination. *fn33 Neither the Tribunal nor the MPAA paid serious attention to NPR's procedural arguments in their briefs, see Tribunal Brief at 28 n.18; MPAA Brief at 39 n.44. But the record reflects no date or notice of the meeting at which "a motion was made and adopted for reconsideration" of the Tribunal's initial award to NPR, and the Tribunal's explanation for that change does seem conclusory. The Sunshine Act states that a court "otherwise authorized by law to review agency action" may "inquire into violations by the agency and afford such relief as it deems appropriate." 5 U.S.C. § 552b(h)(2). We are also required by the Administrative Procedure Act, 5 U.S.C. § 706(2), to set aside agency action found to be "without observance of procedure required by law."

Accordingly, that portion of the Tribunal's decision retracting its initial award of 0.25% to NPR and allocating that amount to PBS is remanded to the agency. The Tribunal is instructed to allocate this amount in accordance with its procedural regulations and the requirements of the Sunshine Act, or to explain that it has already done so. See Communications Systems, Inc. v. FCC, 193 U.S. App. D.C. 412, 595 F.2d 797 (D.C.Cir.1978) (no violation of Sunshine Act where FCC members do not discuss agenda items at meetings but simply circulate papers and use notation procedures for voting). The Tribunal should also provide a specific statement of the reasons for its allocation of this amount, as required by the Copyright Act, 17 U.S.C. § 803(b). The way is open, of course, for the Tribunal to reinstate its initial allocation to NPR if it returns to the view that substantial evidence supports that allocation. See notes 28 & 29 supra. On the record before us, the apparent procedural flaws in the Tribunal's treatment of NPR do not allow us to affirm its retraction of the 0.25% initial allocation.

HOLDING

Congress enacted the Copyright Act of 1976 partly to compensate copyright owners for retransmission of their works by cable systems, thereby creating a property interest that had not hitherto been recognized in the law. The Tribunal faced a difficult task in conducting the initial distribution of cable royalties because of the number of claimants and the inescapably qualitative problem of evaluating their competing claims. It was impossible to satisfy all the claimants, whose combined requests totaled roughly three times more than the finite amount of the Fund. We are satisfied that the Tribunal's resolution of the problem confronting it was reasonable, that its decisional criteria comported with congressional intent, and that its distribution of royalty shares finds rational support in the administrative record.

It may be observed that agitation over the Tribunal's initial apportionment has been somewhat overstated. The allocation of the 1978 Fund will not displace the operation of relevant market forces in the future. Now that the Tribunal's methods are known, for example, broadcasters will bargain more knowledgeably with sports teams about telecasts of sports events, and representatives of music, programs, and movies may contract accordingly with television broadcasters. In any event, as the size of the Fund grows, the dispute over how to slice the pie may be more vigorous but it will also be more structured. The umpire has established precedents on which the players may rely in submitting their claims. The Tribunal's decision has achieved an initial allocation of the Fund that is well within the metes prescribed by Congress. With the exception of its retraction of the initial allocation to NPR, which we remand on procedural grounds, its decision is upheld.

It is so ordered.

APPELLATE PANEL: FOOTNOTES

* For the Second Circuit, sitting by designation pursuant to 28 U.S.C. 294(d).

Opinion for the Court filed by Circuit Judge MIKVA.


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