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The following comments reflect only the opinion of Commissioner
Membership of the Tribunal
Sec. 101 (a) 802 (a) and 802 (b) of Title 17.
am in support of the amendment to reduce the size of the Tribunal membership from five to three commissioners. I believe that with more precedents established by the Courts, an increase in private settlements among the parties, and the appointment of professional staff will lessen the Tribunal's future workload. I am not persuaded that a reduction in the size of the Tribunal will adversely impact on the quality of its determinations.
Staff of the Tribunal
Sec. 182 (a) Section 805 (c).
The Tribunal record will reflect my consistent support for the employment of legal counsel. The G.A.0., in a June 11, 1981 report on the operations of the Copyright Royalty Tribunal, recommended the use of expert legal counsel by the Tribunal.
I believe that presently the Tribunal has an even greater need for expert legal assistance. The technical legal advice of a General Counsel, in my opinion, will substantially improve the quality of the Tribunal's determinations.
I am in support of the Tribunal's employment of an economist, as needed. Many of the issues raised in the Tribunal's hearings are based on economic analysis and, the Tribunal should have access to the expert opinion of an economist. I do not believe, however, that there is presently a sufficient need for a permanent, full-time economist.
The satisfactory performance of the Tribunal's functions, in my opinion, can be achieved by the appointment of a General Counsel and the employment of a part-time economist without incurring a substantive budget increase.
Judicial Review of Tribunal Decisions
Sec. 103 (a) Section 810 of
I support the amendment and believe it will be helpful to the Tribunal in its rulemaking and will assist the Courts in their review of Tribunal determinations.
Adjustment of Copyright Royalty Rates by the Tribunal Sec. 104 (a) Sections 801(b) (2) (B) and 801 (b) (2) (C) of Title 17.
The GAO, in its June 11, 1981 report on the operation of the Copyright Royalty Tribunal, determined that the Tribunal had not been given a clear legislative criteria for its distribution and rate setting determinations. The Courts, on occasions, have also commented on the lack of clear legislative guidance to the Tribunal in its rulemaking. The amendments, in my opinion, will
be of invaluable assistance to the Tribunal in subsequent cable rate adjustment determinations.
Although this subject is not currently addressed in HR 6164, I recommend that the Tribunal be given limited subpoena power. The Tribunal's decisions have significant financial impact on interested parties but, it is dependent solely on the information provided by those parties. The Tribunal has been denied access to data it considers essential for a rational and informed decision. As an example, during the 1982 Cable Rate Adjustment hearings, it would have been helpful if the record could have reflected the actual purchase prices paid by "Superstations" for syndicated programming. However, neither the copyright owners nor users would voluntarily submit this data for the record.
STATEMENT OF MARIANNE HALL
May 2, 1985
I was working as an editing clerk at High Frontier where I
met Dr. Hafstad and Mr. Morse, who were working on that project.
Dr. Hafstad asked me to review a short manuscript to consider editing it for grammer, sentence structure and punctuation only. This
piece contained none of the controversial material. I reviewed the
piece and accepted the task.
The controversial material appeared
at the end of the project, as it appears at the end of the book.
I advised Dr. Hafstad not to print it because I felt that it was
"inflamatory, explosive, repugnant and distasteful." In my limited capacity, I voiced my sentiments as strongly as I could. Dr. Hafstad,
the author, decided to publish it regardless. I finished the clerical
task which I began.
For the record, I want to reiterate that I did not write the
material. I disavow it fully. I find it inflammatory, explosive,
repugnant and distasteful as I have testified.
In further response to your questions concerning the status of the Copyright Royalty Tribunal, enclosed find two of my recent work products which address some of your concerns.
on December 31, 1984, I wrote a memorandum detailing some of my concerns involving the procedural aspects of the Copyright Royalty Tribunal. This memo is an update (in boldface type) of the December 31 memo (in regular type) included herin.
April 30, 1985 UPDATE ON:
This memo has been generated to provide information on the operations of the Copyright Royalty Tribunal (Tribunal). It does not address the substantive aspects of our hearings or determinations. It discusses the following administrative concerns:
4/30/85 - Several substantive legal problems have subsequently
arisen concerning our past 1979-1982 cable distributions totaling approximately $149,000,000. Case records and administrative files to resolve these problems appear disorganized and inadequate. An-indepth analysis of substantive concerns appears necessary now. These issues, if pursued to unacceptable conclusions, can invalidate four years of cable distribution which have been consolidated and will be argued in the Court of Appeals for the D.C. Circuit on May 6, 1985. A lessor concern is violation of the Government in the Sunshine Act. Greater concerns may reveal arbitrary and capricious conduct.
The Copyright Royalty Tribunal commenced operations in November 1977 with five Carter appointees : Thomas Brennan, Douglas Coulter, Mary Lou Burg, Clarence James, Frances 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 rotated by seniority. The senior-most commissioner (Thomas Brennan) served whenever there was a default in the chairmanship.