The Tribunal reconsidered and again denied an award to commercial radio, but offered a clearer explanation. The Tribunal acknowledged that the claim was justified but unquantifiable. It reasserted that it was unable to discern a ket-place value for the de minimus input of the non-music portion of commercial radio.

mar

The determination of these remand issues was published on January 20, 1984. It has been appealed. The Justice Department has represented the CRT. We are awaiting a decision.

On

On March 7, 1983, the Tribunal had rendered a final detertermination on the 1980 cable royalty fees which was also appealed in U.S. Court of Appeals for the D.C. Circuit. February 9, 1984, upon receiving the 1979 remand decision, the Tribunal moved the court to remand the 1980 case consistent with the 1979 opinion. The motion was granted.

Upon reconsideration, the 1979 remand decision was adopted for the 1980 cable royalty determination with the exception that the distribution of the Devotionals' share be pro rata shared among all Phase I claimants as opposed to the MPAA absorbing the full impact of the Devotionals' share as was done in the 1979 remand. This reconsideration is likewise on appeal.

In FY 83, the Tribunal had declared a controversy and conducted hearings on the 1981 cable royalty distribution. The determination was rendered on February 28, 1984. Said determination also adopts the 1979 determination and is likewise awaiting the decision on the appeal of the remand.

D.

1978, 1979, 1980, 1981, 1982 Disbursement of Cable Royalty Fees

Pursuant to Slll(d)(5)(c) of Title 17 and in keeping with policy strongly promoted by Commissioner Ray during his tenancy as chairman, the Tribunal has actively disbursed fees which were deemed to not be in controversy.

On October 6, 1983, the 1978 fund which had received late fees was again totally distributed. In January and March 1984, 41% of the 1979 fund was disbursed to bring its total distribution to 91%. The 1980 fund which was 80% disbursed, was not further disbursed in FY 84. In November 1983 and August 1984, an additional 11.5% of the 1981 fund was disbursed to bring its total distribution to 96.5%. Lastly, in December 1983, 90% of the 1982 fund was disbursed.

On a yearly basis, and pursuant to $118 of Title 17, the Copyright Royalty Tribunal announces a cost of living adjustment to be applied to compulsory royalty rates paid by public broadcasting entities licensed to colleges and universities for the

performance of musical composition. The adjustment for FY 84 was determined on November 28, 1983 to be 5.4% effective January 1, 1984.

The Copyright Royalty Tribunal benefitted in FY 84 with the acquisition of a word processor/computer system and with the temporary employment of outside counsel. Distribution and disbursement of cable television and jukebox royalty fees were the primary focus, as well as the remand and reconsideration of past cable and jukebox royalty distributions. The coming year shall include statutory cable and non-commercial broadcasting rate reviews, possible reevaluation on petition, of the cable rates that were set in 1982 (due to FCC deregulation), yearly cable and jukebox royalty distribution, and hopefully the finalization of several years of appellate review in both cable and jukebox distribution cases.

In response to your joint letter of December 18, 1984 with Congressman Moorhead to Chairman Marianne Hall, enclosed are my comments on Title I of HR 6164. These comments reflect my individual views and may not represent the consensus of the Tribunal.

Sincerely,

Thank you for providing the Tribunal an opportunity to submit its views on this bill.

Committee

been informed

has not been

The following comments reflect only the opinion of Commissioner
Edward W.Ray.

Membership of the Tribunal

Sec. 101 (a) 802 (a) and 802 (b) of Title 17.

I 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

General Counsel

Sec. 102 (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.

Chief Economist

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
Title 17.

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.

Subpoena Power.

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.