OVERVIEW 1. The TPT proposal is ambiguous and invites definitional dispute; is internally illogical and perhaps discriminatory; and if implemented, would be an expensive administrative burden. .. The language of the proposal employs terms such as "distant signal," "copyright qualifying broadcast station," and "signals...not required to be retransmitted," none of which are straightforwardly applicable, especially within the context of the FCC's complex rules on signal carriage. Even if these terms were precisely defined, the FCC would still have to undertake laborious file-by-file determinations to produce an accurate system-by-system compilation of "copyright qualifying broadcast signals." b. The essence of the TPT proposal is that copyright liabilities apply only to "non-network programming of distant stations." (Emphasis added.) Nevertheless, the TIT formula uses as the factor by which cable system revenues are adjusted for copyright purposes, the ratio of non-network program expenses to total broadcast revenues (arriving at a figure of 28 percent) rather than non-network broadcast revenues or non-network revenues net of commissions and discounts. The following table summarizes the relevant ratios, based upon PCC broadcast financial data, that would be calculated using these other measures of revenue. nera OVERVIEW 1. The TPT proposal is ambiguous and invites definitional dispute; is internally illogical and perhaps discriminatory; and if implemented, would be an expensive administrative burden. a. The language of the proposal employs terms such as "distant signal," "copyright qualifying broadcast station," and "signals...not required to be retransmitted," none of which are straightforwardly applicable, especially within the context of the FCC's complex rules on signal carriage. Even if these terms were precisely defined, the FCC would still have to undertake laborious file-by-file determinations to produce an accurate system-by-system compilation of "copyright qualifying broadcast signals." b. The essence of the TPT proposal is that copyright liabilities apply only to "non-network programming of distant stations." (Emphasis added.) Nevertheless, the TPT formula uses as the factor by which cable system revenues are adjusted for copyright purposes, the ratio of non-network program expenses to total broadcast revenues (arriving at a figure of 28 percent) rather than non-network broadcast revenues or non-network revenues net of commissions and discounts. The following table summarizes the relevant ratios, based upon PCC broadcast financial data, that would be calculated using these other measures of revenue. nera These misgivings are unwarranted. Even if the Tribunal were perceived as an executive agency, Congressional review of its recommended royalty rate ad, astment would appear permissible. As Professor Bernard Schwartz puts the matter, "Legislative approval (by failure to pass a resolution of disapproval) is merely one of the contingencies specified in the governing statute upon which the exercise of the delegated power is to take effect." " And so, too, if the Tribunal were perceived as a part of the judicial branch. As noted above, the Supreme Court exercises its rule-making and rule-amending powers subject to Congressional review. Moreover, the Court has been at pains to acknowledge the wisdom and the propriety of these arrangements. In the leading case of Sibbach v. Wilson, Mr. Justice Roberts said, for the Court The value of the reservation of the power to examine proposed rules laws and regulations before they become effective is well understood by Congress It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose.” Present adherence to the practice of Congressional review of judicially proposed rules and amendments is reflected in Public Law 93-595, which was ap proved by President Ford on January 2, 1975. Section 2(a)(1) of that law adds to Title 28 a new provision-Section 2076-which provides in pertinent part as follows: The Supreme Court of the United States shall have the power to pre scribe amendments to the Federal Rules of Evidence. Such amendments shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session of Congress, but not later than the first day of May, and until the expiration of one hundred and eighty days after they have been so reported; but if either House of Con gress within that time shall by resolution disapprove any amendment so reported it shall not take effect. Actually, of course, the Copyright Royalty Tribunal envisaged by HR 223 is not to be a part of the executive branch nor a part of the judicial branch Pursuant to Section 801(a) of HR. 2223, the Tribunal is to be "created in the Library of Congress..." The Library of Congress is, of course, an instrumental ty of Congress, 2 U.S.C. Chapter Five, passim. And thus the Tribunal, in turn is to be a subordinate instrument of Congress, assisting Congress in the exercise of its legislative functions. So viewed, H.R. 2223's provisions for Congressional review of Tribunal royalty rate adjustment proceedings are exactly congruent with the statutory provisions under which Congress has reserved power to review and annul enactments of subordinate legislative instrumentalities the legislatures of the territories since the beginning of the republic. It is notable-and indeed wholly dispositive of the immediate question-that a number of such provisions were expressly cited by the Supreme Court, in a footnote in Sibark v. Wilson, as "an analogy" supportive of the Congressional review of judicial rule-making there sustained.” CONCLUSION It is submitted that the provisions of H R. 2223 discussed above constitute a fair, orderly and constitutional mechanism for periodic adjustment of roșaity rates attendant on a system of compulsory licensing of copyrighted matter The provisions, both as applied to the new field of cable television and as applied to the old field of musical recordings, would be a distinct--and distinctly constit tional improvement upon the rigid compulsory-license-with-fixed royalty sta'ttory model which has been an important feature of the present Copyright law ever since 1909. November 11, 1975 Lot 18 H. POLLAK, # Schwartz Constitutional Law (1972) p. 140 Cf Watson, Congress Steps Out A Look 1 nited States Lines ( 74 16 1956 N 93 1975) at Congressional Contrul of the Executive, 63 Calif. I. Rev #112 8 1 15 (1541) And see the dissent of Mr Justice Harlan in Fitzgerald ense before the Curt as a vebi ie for ma: daring a charge in the m. de of trial of i ervin he hastised his brethern fiTE Palty is a jolted to a single proceeding thgh seallie rather that embodying the charge in a proped amendment to the Adimira y R, es and a 'mitting the proposed am ei iment to Congress #121 & at 15 m 17 a change the Justine Diper! |