NATIONAL CABLE TV v. COPYRIGHT ROYALTY TRIBUNAL proceeded as though the new rates needed error. 1091 must, however, ensure that those judgments provide a basis for popular review by requiring that the choices they reflect are informed by the views of all interested parties and are fully disclosed.102 In this case, both the Copyright Owners and NCTA have identified several occasions in which the D. The Quality of the Tribunal's Decision- Tribunal explained the basis for its conclumaking. As we explained in RIAA, and more recently in National Association of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367 (D.C.Cir.1982), we must accord substantial deference to the Tribunal's fundamentally legislative effort to set and distribute royalty fees. We appreciate the vigor with which petitioners press their opposing claims; a change in a fraction of a percent in the rates may yield a shift of millions of dollars from one group to another. Nevertheless, both ratemaking and the assessment of technological developments involve choices generally outside the competence or authority of reviewing courts. Mindful of our limitations and finding support for virtually all 100 of the Tribunal's conclusions, we cannot call its decision in this case "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 101 [6] We wish to emphasize, however, that precisely because of the technical and discretionary nature of the Tribunal's work, we must especially insist that it weigh all the relevant considerations and that it set out its conclusions in a form that permits us to determine whether it has exercised its responsibilities lawfully. Courts may not make the judgments entrusted to politically-accountable institutions. They can and an While sions with less than ideal clarity. In partic- III. CONCLUSION For the foregoing reasons, the case is remanded for the reconsideration described in Part II.C.3 of this opinion and is, in all other respects, affirmed. So ordered. 48.1 NAT. CABLE T.V. v. COPYRIGHT ROYALTY TRIBUNAL Cite as 724 F.2d 176 (1983) 177 1. Copyrights and Intellectual Property conclusions made in Federal Communication Commission's 1980 order repealing distant signal on syndicated exclusivity rules. Administrative Procedure Act's arbi trary, capricious, and abuse of discretion standard is applicable to review of Copy- 8. Copyrights and Intellectual Property right Royalty Tribunal's rate adjustment proceedings. 17 U.S.C.A. § 810. 2. Administrative Law and Procedure 763 Judicial review under the arbitrary, capricious, and abuse of discretion standard should be searching and careful. 3. Administrative Law and Procedure 751 If Congress sets precise guidelines for agency action, courts must tightly review the agency's directives to determine whether congressional instructions have been observed; if Congress entrusts novel mission to agency and specifies only grandly general guides for agency's implementation of legislative policy, judicial review must be correspondingly relaxed. 5 U.S.C.A. § 706(2)A). 4. Copyrights and Intellectual Property 48.1 48.1 Copyright Act of 1976 did not require Copyright Royalty Tribunal to base its additional distant signal adjustment on statutory declining rate schedule. 17 U.S.C.A. § 801(b)(2)(B). 9. Copyrights and Intellectual Property 48.1 Copyright Royalty Tribunal acted on the best evidence its resources permitted it to garner when it used analogies presented by copyright owners to determine additional distant signal adjustment rates. 17 U.S. C.A. § 801(b)(2)(B). 10. Copyrights and Intellectual Property 48.1 Copyright Royalty Tribunal did not err in employing market value approach to reasonable rate setting when determining additional distant signal adjustment for cable broadcasters. 17 U.S.C.A. § 801(b)(2)(B). Large measure of deference must be given to substantive rulings of Copyright 11. Administrative Law and Procedure Royalty Tribunal. 17 U.S.C.A. §§ 801(a), 810. 784 Court will accept agency's comparison of dissimilar items when the expert agency exercises its discretion to provide adjustments for the areas of difference. 12. Copyrights and Intellectual Property 48.1 It was not unreasonable for Copyright Royalty Tribunal to reject declining rate concept in setting additional distant signal adjustment for freed-up distant signals in view of evidence that cable systems pay flat fee for programming purchased on the market. 17 U.S.C.A. § 801(b)(2)(B). 13. Copyrights and Intellectual Property 48.1 Evidence sustained 3.75% additional distant signal adjustment set by Copyright Royalty Tribunal for cable broadcasters. 178 724 FEDERAL REPORTER, 2d SERIES 14. Copyrights and Intellectual Property 48.1 Substantial evidence supported Copyright Royalty Tribunal findings that cable importation of distant broadcast signals harmed local purchasers of syndicated programming and that television broadcasters were not compensated by advertisers for additional distant audiences generated by cable retransmissions; tribunal thus properly set fees to compensate copyright holders for loss of syndicated program exclusivity. 17 U.S.C.A. § 801(b)(2)(C). 15. Copyrights and Intellectual Property 48.1 It was not error for Copyright Royalty Tribunal not to establish separate fee schedule or exception for nationally available "super stations" when setting fee to compensate copyright owners for loss of syndicated exclusivity protection. 17 U.S. C.A. § 801(b)(2)(C). 16. Copyrights and Intellectual Property 48.1 Fact that Copyright Royalty Tribunal took more than one year to issue its decision with respect to fee imposed on cable broadcasters to compensate copyright owners for loss of syndicated exclusivity protection did not render the decision null and void. 17 U.S.C.A. §§ 801(b)(2)(C), 804(e). the Motion Picture Ass'n of America, Inc.; Bernard Korman and I. Fred Koenigsberg, New York City, for American Society of Composers, Authors and Publishers; and Charles T. Duncan, Michael W. Faber, and Joel S. Winnik, Washington, D.C., for Broadcast Music, Inc. were on the joint intervenors' brief. Richard H. Waysdorf, Washington, D.C., also entered an appearance for Motion Picture Ass'n of America, Inc., et al. Charles D. Ferris, Bruce D. Sokler, and L Gregory Ballard, Washington, D.C., were on the brief for intervenor, Turner Broadcasting System, Inc. John R. Harder, Albany, N.Y., was on the brief for intervenor, New York State Com'n on Cable Television. Victor E. Ferrall, Jr., John I. Stewart, Jr., Erwin G. Krasnow, and Michael D. Berg, Washington, D.C., were on the brief for intervenor, National Ass'n of Broadcasters. Robert F. Corazzini and Peter H. Feinberg, Washington, D.C., were on the brief for intervenor, Southern Satellite Systems, Inc. John P. Cole, Jr., Robert L. James, David M. Silverman, and James F. Ireland, III, Washington, D.C., were on the brief for intervenors, United Video, Inc., et al. David H. Lloyd, Robert S. Thorpe, and Robert Alan Garrett for Major League Appeal from an Order of the Copyright Baseball; Philip R. Hochberg, Washington, Royalty Tribunal (CRT 81–2). Robert St. John Roper, Washington, D.C., with whom Brenda L. Fox, Michael S. Schooler, and Stuart F. Feldstein, Washington, D.C., were on the brief, for petitioner. Jay E. Ricks and David J. Saylor, Washington, D.C., also entered appearances for petitioner. Bruce G. Forrest, Atty., Dept. of Justice, Washington, DC., with whom J. Paul McGrath, Asst. Atty. Gen., and William Kanter, Atty, Dept. of Justice, Washington, D.C., were on the brief, for respondent. Arthur Scheiner, Washington, D.C., with whom Dennis Lane, Washington, D.C., for D.C., for the National Basketball Ass'n and the North American Soccer League; Robert W. Coll, Washington, D.C., for the National Hockey League; Judith Jurin Semo, Washington, D.C., for the National Collegiate Athletic Ass'n; Charles T. Duncan, Michael W. Faber, and Joel S. Winnik, Washington, D.C., for Broadcast Music, Inc.; Bernard Korman, I. Fred Koenigsberg, New York City, and Benjamin L. Zelenko, Washington, D.C., for American Society of Composers, Authors and Publishers were on the joint intervenors' brief. Gary Shaver, Asst. City Atty., Longview, Tex., was on the brief for amicus curiae, City of Longview, Texas, urging that the decision should be vacated. NAT. CABLE T.V. v. COPYRIGHT ROYALTY TRIBUNAL Martin E. Firestone and Neal A. Jackson, Washington, D.C., entered appearances for intervenor, Peyton Broadcasting, Ltd. Michael S. Horne and Paul J. Berman, Washington, D.C., entered appearances for intervenor, Longview Cable Television, Co., Inc. Norman P. Leventhal, Barbara K. Kline, and Edwina Dowell, Washington, D.C., entered appearances for intervenor, SIN, Inc. Robert W. Kastenmeier, Washington, D.C., entered an appearance as amicus curiae as the Chairman of the House Subcommittee on Courts. Robert S. Golden, Jr., Asst. Atty. Gen., Hartford, Conn., State of Connecticut as amicus curiae for the State of Connecticut. Before MIKVA and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: The Copyright Act of 1976 (Act or 1976 Act)' establishes a compulsory licensing scheme encompassing phonorecords and jukebox performances of musical works, certain noncommercial broadcasting transmissions, and certain cable television retransmissions. 17 U.S.C. §§ 111, 115, 116, 118 (1982). To superintend the scheme, Congress created the Copyright Royalty Tribunal (Tribunal or CRT). Id. §§ 801810. The Tribunal is empowered to adjust royalty rates and to allocate among copyright owners royalty fees collected from copyright users. Id. §§ 111(d), 116(c), 118(b), 801(b). This petition for review concerns the Tribunal's order adjusting the compulsory licensing rates for cable television operators in response to certain Federal Communications Commission (FCC) deregulatory measures. See Adjustment of the Royalty Rate for Cable Systems; Fed 1. Pub. L. 94-553, § 101, 90 Stat. 2541 (1976) (codified at 17 U.S.C. §§ 101-810 (1982)). 179 eral Communications Commission's Deregulation of the Cable Industry, 47 Fed.Reg. 52146 (Nov. 19, 1982), reprinted in Joint Appendix (J.A.) 11-24 (CRT Decision). Petitioner National Cable Television Association, Inc. (NCTA) and several intervenors seek reversal of the CRT's final decision. Our examination of the record and consideration of the arguments tendered persuade us that the Tribunal has not abused its broad discretion to adjust rates. Because we conclude that the CRT has made adjustments we cannot characterize as unreasonable, and has adequately explained them, we affirm its decision in all respects. A principal use of cable technology, since its inception, has been the retransmission of broadcast signals to areas beyond the reach of conventional "over the air" facilities. The Copyright Act of 1909, as construed by the Supreme Court, made no provision for cable operators' copyright liability. See Teleprompter Corp. v. CBS, Inc., 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974); Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). In the 1976 Act, however, Congress expressly imposed such liability. 17 U.S.C. § 111. Individual marketplace negotiations between copyright owners and users, Congress believed, would entail inordinately high transaction costs. See HOUSE JUDICIARY COMMITTEE, COPYRIGHT LAW REVISION, H.R.REP. No. 1476, 94th Cong., 2d Sess. 89 (1976) (House Report), U.S.Code Cong. & Admin.News 1976, 5659. Congress therefore licensed cable operators to carry whatever television programming FCC rules permitted; in exchange for this permission, however, Congress required cable operators to pay royalties for carriage of distant broadcast stations' nonnetwork programming.2 17 U.S.C. § 111(c)(1), 2. The House Report explains why no fees were imposed for cable carriage of network and local nonnetwork programming: |