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for the I have also discovered that the proposed Findings of Fact
Likewise, the Consumer Price Index file and computations for the PBS yearly adjustment for the years 1979 - 1983 is missing. I have not verified if these two files have been located subsequently.
This week I have discovered that a November 17, 1983 pleading, served on us for the 1982 jukebox appeal, taken in the 2nd Circuit, is missing. Also in that file there is an order to a motion (granting extension of time for submission of justification of evidence), but there is no motion in the file. Apparently the motion is missing or was never filed, however we have no way of knowing which occurred.
These discoveries, which were made in the course of daily operations and not upon systematic review, have cast serious doubt on the recordkeeping over the past seven years. Extensive systematic review of all 22 file drawers should be conducted.
On November 19, I brought these concerns to the attention of the other two commissioners and suggested that we employ the voluntary services of a law student as a 1985 spring semester extern to review and organize all case files. I was asked to write a memorandum justifying the use of volunteer law students, in government. My memorandum could not be completed in time for the December 1 deadline so I shall present it in time for the 1985 fall semester. (It should be noted that a student from UCLA Communications Law department was willing to pay his own airfare and expenses to be here in January for this externship. His undergraduate major was economics. His law work concentrated in Communications law and new technologies such as DBS Direct Broadcast Satellite).
In addition, all the public information files which are the only duplicates of our case archives are disordered and need a thorough review.
2) ACCOUNTING RECORDS
In trying to make further partial distributions on 1979, 1980, 1981, and 1982 cable distribution determinations, I have discovered that the history on the distribution of close to 120 million dollars has never been compiled or preserved in the central files. Apparently Commissioner Douglas Coulter made all the mathematical computations and he left no central record. I am now collecting and compiling past orders and sketchy accounting files to generate a comprehensive central file. It has taken over two weeks and is not yet completed.
Further, since we are dealing with tens of millions of dollars, we calculate to 5 figures beyond the decimal point. This means that we are actively working in numbers that can include 13 places. We should have an accountant to handle these types of computations. In the interim I am trying to get access to an accountant at the Library of Congress to verify my compu
sincere are stili distributing 1978funds, probably necessary. The Tribunal should consider hiring an accountant.
A. Testimony before congress
A cursory review of the administrative office files of our hearings revealed that we did not have copies of all of our budget or oversight hearings inhouse. I have now collected either official testimony or photocopies of all. (See charts below). I have not had time to review if we have any legislative hearings in testimony or draft form inhouse. My limited understanding indicates that there is very little here. This should be researched, collected and filed for the Commissioner's use and for preservation in our archive. I am establishing a relationship with Gilbert Gude of the Congressional Research Service. I believe his organization may be able to assist in this search and compilation.
I have just completed collecting all the chronological files of the chairman and placing same in a central research corner. They appear complete.
The central correspondence files for the Tribunal including correspondence with the legislative bodies, other agencies, interested parties and counsel, public inquiries and general office business correspondence are extremely sketchy after 1980. There appears to be no way to determine what is missing. My concern now is to try and collect all that is available and place it in one central file for the use and history of the Tribunal.
Our library contains very limited reference materials. Upon arriving I ordered the 1984 pocketpart for Title 17, USC, the Copyright Act, as our only copy had a 1979 pocketpart.
I ordered the current 37 CFR which contains our rules of procedure. The version inhouse and being distributed to the public had been superceded.
I ordered Title 47, USC, the Communications Act and the current pocketpart as the only copy inhouse is the 1970 USCA, (superceded). It has not arrived.
There was one law review article on the Tribunal, inhouse. I have determined that over thirty have been written and I will strive to purchase these.
I have purchased the last two volumes (1977 & 1978) of Copyright decisions printed by the Copyright office, to update our series. I have compiled our determinations into one notebook for the General Counsel's staff of the Copyright office so they may include our determinations in their series.
We read approximately 15 trade journals on a periodic basis. Files used to be kept of the articles of interest to the Tribunal in these periodicals. I have discovered that this collection became rather sketchy after about 1982. I had the files repaired and organized ave re-instituted the practice of clipping and preserving relevant articles for use, research and archival purposes.
I have researched our legislative history and collected several copies each of the House Report 94-1476, Şenate Report 94-473 and Conference Report 94-1733 for the Commissioners and for our archives.
I have reviewed the miscellaneous materials in the library and filed it into categorical files, two of which were abstracted by a volunteer law student. He reviewed the Australian and British Copyright Royalty Tribunal materials but found that our files contained information only as current as 1980. There are several more such files which need to be abstracted and updated for basic information.
There is enough library work to employ a voluntary legal extern on a permanent basis. I strongly recommend this.
5) LEGAL COUNSEL
We have retained outside counsel to do a review of our internal policies and of our hearing procedures. We expect this report in January. Meanwhile we have solicited comments on our procedure from interested parties and we shall analyze those comments along with our commissioned report to possibly restructure our rules of procedure and our internal policy practices.
I have discovered in my visits with legislators that both House and Senate Judiciary Committees have strongly advised that the Tribunal hire counsel and have appropriated funds for the FY 84 and FY 85 specifically for that purpose. Apparently the earlier Commissioners felt that a General Counsel was not necessary.
I became chairman on December 1 and on December 2 we began advertising to hire a General Counsel. We closed receipt of resumes on December 14. Needless to say we were deluged with approximately fifty extremely impressive resumes. I had hoped to start interviews on December 17 so that we might have counsel inhouse by January, however, the other commissioners felt that we should not begin interviews until January 3. Interviews have been set up in accordance with their wishes. I am hopeful that we will make our choice by January 11.
In 1977 the Tribunal determined that each commissioner shall have one confidential aide. We are presently staffed with three confidential aides. I hired my aide in August 1984. The other two aides were hired in 1977 and 1980 and have been rehired when their respective original commissioners retired. In 1977 the Tribunal also determined that each aide shall report only to their respective Commissioner despite the legislative mandate and history that states the aides shall work for the Tribunal. This segmentation of staff probably contributed to the incomplete central files. Each aide kept files for their respective Commissioner and it is apparent that much of these
files were taken with each commissioner as he and his aide departed. No one in particular was charged with maintaining a central file for the Tribunal. Therefore, it was done haphazardly if at all.
The Chairman's aide was charged with maintaining the central case files however that person changed each year. Apparently none had any paralegal training, therefore the case files for each year are organized differently. This makes retrieval of information for precedent-following purposes extremely difficult.
The budget function has remained with one aide for several years, however she reports only to her Commissioner, so requests for budget information must go through that Commissioner. Nothing is automatically circulated.
An incoming commissioner who brings his own aide, as I did, is greatly disadvantaged by the state of the central files and the segmentation of staff. If material is not obvious in the central file, the new Commissioner must ask a more senior commissioner to ask his aide to retrieve the information. The new Commissioner must then generate his own file. I have been working since Sept 26 (when Commissioner Coulter and Brennan left) on generating central files. The two senior aides have been resistant. My aide has been more successful in locating missing documents (such as testimony, etc.) by going to outside sources such as outside counsel, legislators' staffs, agency staffs, etc. The process is slow and solely dependent on the time and graciousness of outside sources. There is still a great deal of work to be done to reconstruct seven years of agency practice, policy and record-keeping.
My efforts to organize the central files and the staff into areas of expertise to maximize efficiency and communication have been resisted by two of the three aides. However, I feel that such a small agency must be organized around central files and clear delegation of work per staff member, to maximize the use of personnel and minimize recordkeeping and storage. I shall continue working towards these goals despite the inertia.
Lastly have discovered that this Tribunal has had a poor image within the Congress, within Federal agencies, before the industry, the copyright owners and the public. Part of the problem has been an isolationist attitude. I have made courtesy calls to the following offices for the purpose of introducing myself, explaining our functions, and eliciting support, particularly of legislators and federal agencies. 1) Counsel Staff to the Judiciary, U.S. Senate, 2) Counsel Staff to the Judiciary, U.S. House of Representatives, 3) Several Congressmen who oversee our Tribunal,