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of the Copright Razalty

90 STAT. 2596

PUBLIC LAW' 94-553_OCT. 19, 1976 individual waiver of the rules and regulations of the Federal Communications Commission, as such rules and regulations were in effect on April 15, 1976.

(C) In the eveni of any change in the rules and regulations of the Federal Communications Commission with respect to syndicated and sports program exclusivity after April 15, 1976, the rates established by section 111(d)(2)(B) may be adjusted to assure that such rates are reasonable in light of the changes to such rules and regulations, but any such adjustment shall apply only to the affected television broad. cast signals carried on those systems affected by the change.

(1)) The gross receipts limitations established by section 111(d) (2) (C) and (D) shall be adjusted to reflect national monetary inflation or deflation or changes in the average rates charged cable system subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar value of the exemption provided by such section; and the royalty rate specified therein shall not be subject to adjustment; and

Licensing Division (3) to distribute royalty fees deposited with the Register of Copyright to under sections 111 and 116, and to determine, in cases

where controversy exists, the distribution of such fees. Notice.

(c) As soon as possible after the date of enactment of this Ach, and no later than six months following such date, the President shall publish a notice announcing the initial appointments provided in section 802, and shall designate an order of seniority among the initially

appointed commissioners for purposes of section 802(b). 17 USC 802. $ 802. Membership of the Tribunal

(a) The Tribunal shall be composed of five commissioners appointed by the President with the advice and consent of the Senate for a term of seven years each; of the first five members appointed, three shall be designated to serve for seven years from the date of the notice specified in section 801 (c), and two shall be designated to serve for five years from such date, respectively. Commissioners shall be compensated at the highest rate now or hereafter prescribe for grade 18 of the General Schedule pay rates (5 U.S.C. 5332).

(b) Upon convening the commissioners shall elect a chairman from among the coinmissioners appointed for a full seven-year term. Such chairman shall serve for a term of one year. Thereafter, the most senior commissioner who has not previously served as chairman shall serve as chairman for a period of one year, except that, if all commissioners have served a full term as chairman, the most senior commissioner who has served the least number of terms as chairman shall be designated as chairinan.

(c) Any vacancy in the Tribunal shall not affect its powers and shall

filled, for the unexpired term of the appointment, in the same manner as the original appointment was made. 8 803. Procedures of the Tribunal

(a) The Tribunal shall adopt regulations, not inconsistent with law, governing its procedure and methods of operation. Except as otherwise provided in this chapter, the Tribunal shall be subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c

324, 60 Stal. 237, title 5, United States Code, chapter 5, subchapter II 5 USC 551, 701. and chapter 7). Publication in (b) Every final detennination of the 'Tribunal shall be published in Federal Register. the Federal Register. It shall state in detail the criteria that the Tri

bunal determined to be applicable to the particular prorecding, the

17 USC 803.

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The Tribunal is pleased to accept your invitation to appear and testify before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. Chairman Marianne Mele Hall will appear as the Tribunal's designated witness. The Tribunal would also like to introduce its General Counsel to the Subcommittee, Mr. Robert Cassler. Commissioners Edward W. Ray and Mario F. Aguero have indicated that they will be pleased to answer any questions the Subcommittee may have by written response. Commissioner Aguero will be present at the hearing, but will not testify. Enclosed please find 75 copies of our prepared statement. Included in the testimony is an Executive Summary of Chairman Hall's proposed testimony and biographical sketches of all three Commissioners and the General Counsel.

We look forward to appearing before the Subcommittee on April 23.

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The Copyright Royalty Tribunal (Tribunal) was created by $801(a) of the Public Law 94-553, the General Revision of Copyright Law of 1976, (Title 17 of the United States Code). commenced operations in November 1977 with five Commissioners appointed by President Carter and confirmed by Senate: Thomas Brennan, Douglas Coulter, Mary Lou Burg, Clarence James, Prances Garcia.

Thomas Brennan and Douglas Coulter served their full seven year terms until September 26, 1984. Mary Lou Burg served until her death in May 1983. Frances Garcia served her full five year term until September 1982. Clarence James resigned in May of 1981. The chairmanship rotates by seniority.

was

Katherine Ortega appointed by President Reagan to succeed Francis Garcia. She resigned in September 1983 to become the Treasurer of the United States. Edward W. Ray was appointed by President Reagan to succeed Clarence James.

Effective September 26, 1984, the present Tribunal consists of three President Reagan appointees: Edward W. Ray, as of Penruary 1982, Mario F. Aguero, as of May 1984 and Marianne Mele Hall, as of July 1984. Edward W. Ray and Marianne Mele Hall will serve until September 1989. Mario F. Aguero will serve until September 1991. Mrs. Hall is serving as chairman from December 1, 1984 to December 1, 1985.

TWO seats remain vacant since the expiration of the terms of Commissioners Brennan and Coulter on September 26, 1984.

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The Tribunal's statutory responsibilities are detailed in sections 111, 115, 116 and 118 of Title 17 0.8.c. The Tribunal is involved in rulemaking and in adjudication. Their rulemaking proceedings consist of setting royalty rates for the four compulsory licenses authorized under Title 17. The compulsory licenses are for :

1) secondary transmissions of copyrighted works by cable television ($111),

2)

production and distribution of phonorecords ($115), 3) public performances of musical works by coin-operated phonorecord players (jukeboxes) ($116), 4) the use of copyrighted works in connection with non-commercial broadcasting (5118).

The Tribunal's adjudication proceedings are to distribute the cable television and jukebox royalties collected, as per the foregoing, to the copyright owners. The Tribunal does not distribute royalties for phonorecords ($115) non-commercial broadcasting ($118). This is handled privately by the parties involved.

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3. GENERAL ADMINISTRATION

In keeping with the legislative history and mandate, the Copyright Royalty Tribunal has remained a small, independent, legislative agency. It is presently staffed with three confidential assistants who provide support services for the three commissioners. The recent acquisition of a Compucorp Omega 785 word processing system has increased the efficiency of this limited staff. It is anticipated that this computer will ameliorate the growing concern with the storage and retrieval of . approximately 700 cable royalty claims yearly. We also hope to fully utilize this computer to centralize, organize and store much of the administrative and case files. This will relieve concerns of space limitations in our rented offices.

House of Representatives Report No. 94-1476 (94 th Congress, 2nd Session, 1976) had indicated legislative intent that all professional responsibilities be performed by the commissioners "except where it is necessary to employ outside experts on a consulting basis." However, recent legislative hearings and proposed legislation has indicated strong recommendations by Congress that the Tribunal hire some professional staff. Pursuant thereto and in accordance with $805 ( a) of Title 17, the Tribunal has begun the selection process for hiring a General Counsel, which selection should be completed shortly.

Section 805 (b) of Title 17 allows the Tribunal to procure *temporary or intermittent services" of professionals as needed. Pursuant thereto, the Tribunal commissioned a review of its administrative and hearing procedures by the law firm of Rice, Carpenter and Carraway, Arlington, VA. This memorandum provides an excellent history, summation of procedures, comparison with other similarly situated agencies, and recommendations for internal and possible legislative reforms for the Tribunal.

There has been some Congressional concern for the hiring of a chief economist. Economic studies were not needed in PY 84, as there was limited rate-setting activities. In FY 85, the Tribunal hopes to be able to commission independent economic studies as needed as per $805(b), until such time as an economist is mandated by legislation nd so provided or.

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