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The present Tribunal consists of three Reagan appointees; Edward Ray, February 1982, Mario Aguero, May 1984 and Marianne Mele Hall, July 1984. Edward Ray and Marianne Mele Hall will serve until September 1989. Mario Aguero will serve until September 1991.
The Chairmanship history is as follows:
Dec. 78 78
Dec. 79 79 Dec. 88 80
May 81 81 - Dec. 81 81 - Dec. 82 82 - Dec. 83 83
Sep. 84 84 Dec. 84 84
Upon arriving at the Tribunal in July, 1984 I was immediately impressed with the lack of organization and the paucity of administrative, reference and archive materials. The following represents some of that which I have discovered and some of the actions I have taken.
Since 1977, the Tribunal has determined the distribution of over 130 million dollars representing years 1978 - 1982. There will be approximately 150 million dollars to be distributed for years 1983 and 1984 and the amount will continue to grow accordingly. It has also conducted several major rate proceedings, which impact on the record and cable industries, representing 450 million dollars and 80-100 million dollars yearly, respectively.
These hearings are contained in approximately 22 file drawers. These case files are the only official archives on this agency's proceedings. They should contain all correspondence, pleadings, motions, orders, transcripts, copies of evidence, determinations etc. There are numerous documents missing from these 22 drawers.
A cursory review of one file drawer representing the 1982 cable distribution (compiled under Chairman Thomas Brennan in 1984) revealed that the following documents were missing.
Exhibits 8-24 for Devotional claimants, Phase I proceeding, 2) Exhibits 2, 4A, 4B, 40, 5A, 5B, 50, 7 and 8 for Joint Sports claimants, Phase II proceeding, 3) Exhibits 1-12 for MPAA, Phase II proceeding 4) Exhibits 12-14 for Multimedia, Phase II
proceeding. I have approached counsel and the other commissioners and have located and replaced all of these missing documents.
Further examination of this file, in preparation for the appeal now taken in the D.C. Circuit Court reveals that the dispositions of motions before the Tribunal have not been effectively recorded and filed. (See the charts below).
9/15/83 9/19/83 9/19/83 11/4/83 11/14/83 11/18/83 11/18/83 11/23/83
NAB Request For Extension of Time
For those motions with a question mark, there appears to be no written order of disposition. It is possible that the disposition was relayed orally in the hearing or over the telephone to interested counsel. Verification of that can possibly be obtained by rereading the transcripts, which should be done. A record of all orders to all motions should be generated, for reference during the appeal and to preserve the precedent. 4/25/85 - Nothing further has been done concerning these
It should be noted that I was able to easily spot the above deficiencies in this file drawer because I sat in on these hearings. Review of the other 21 drawers of case files will be more difficult since all deficiencies must be deduced by reading the transcripts and through legal reasoning.
In daily operations I have noticed other file deficiencies. For example, in conjunction with an inquiry I discovered that all the original Pre-hearing Statements for the 1980 cable rate determination were missing. I have made copies of the copies in the public information file, as the originals appear lost.
I have also discovered that the proposed Findings of Fact for the 1982 cable rate determination is missing. 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.
These files have not been located yet.
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. 4/15/85 - The November 17, 1983 pleading has been admitted in
the 2nd circuit Court of Appeals by stipulation of the parties. The concern over the motion has not been resolved yet.
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 air fare 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).
4/25/85 - After the preparation of a 5 page memo and consider
able discourse, the Tribunal has instituted a program of utilizing legal externs (law students on a volunteer basis) to review and reorganize these files. Under normal circumstances, based on my work on the 1982 drawer, this project should take in excess of six months. We hope to have externs begin this summer.
In addition, all the public information files which are the only duplicates of our case archives are disordered and need a thorough review.
4/25/85 - This should take another 4-6 months after the master
files are completed.
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 computations. Further, since we are still distributing 1978 funds, precise operational recordkeeping for at least ten years is probably necessary. The Tribunal should consider hiring an accountant.
4/25/85 - It took 3 months but I have just completed an inten
sive compilation, centralization and analysis of all dis-
$11,873,569 in jukebox royalties for the years 1978 through
In the course of this review i determined that some parties had not received equal pro rata shares of their allocation which meant that expenses and earnings on the remaining fund were not being distributed equitably among all claimants. I corrected this situation. I also equalized pro-rata distributions to those claimants whose awards had been altered by appellate decisions.
Lastly, I determined that the percentage methodology that had heretofore been used to distribute fees was illusory in that the percentages as distributed, diminish in numerical size as the remaining fund continues to grow. In light of that realization, I reworked our partial distributions for 1979 - 1982 cable royalty fees against real doslar figures and was therefore able to distribute more of the funds while still preserving sufficient funds to protect all claims currently on appeal. Earlier I urged that the Tribunal consider hiring an accountant. I have recently written draft legislation to suggest that the Licensing Division of the Copyright Office, who collects, invests and disburses these fees, should report to the Tribunal instead of to the Register of Copyright. The only function of the Licensing Division is to collect, invest and disburse copyright royalty fees for us. They should report to us to eliminate our duplicative recordkeeping, to eliminate the superfluous reporting to and through the Copyright Register's office, to relieve the General Counsel's staff of the Copyright office of writing and interpreting our regulations and to allow us greater access, availability and coordination with this staff that serves our Tribunal. We would not then need an accountant.
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 in-house. 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 in-house. 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.