warranted, to transmit to Congress "the recommended royalty adjustment." " To convert the professional status of the Tribunal members into a challenge to the validity of the Tribunal seems an exercise in semantics rather than in constitutional law." (3) Professor Gellhorn also expresses concern at the lack of any provision in H.R. 2223 for judicial review of Tribunal decisions in royalty adjustment proceedings. Given the architecture of Chapter 8 of H.R. 2223, it seems a fair inference that the bill does not contemplate direct judicial review of such decisions. For it is plain that direct review of such decisions is vested in, and is indeed obligatory upon. Congress, inasmuch as a veto by either the House or the Senate prevents the going into force of the Tribunal's "recommended royalty adjustment."" By contrast, when the Tribunal performs its separate and very different function of adjudicating controversies with respect to the distribution of cable television royalties (a function apparently not within the ambit of Professor Gellhorn's chief objections to H.R. 2223)," the federal district court—not Congress is the specified forum for review. However, there is not a syllable in H.R. 2223 which precludes judicial review of royalty adjustments recommended to Congress after recommended adjustments have been acquiesced in by Congress (through the failure of either chamber to act in the negative) and have gone into effect. A challenge to a new royalty rate--asserting, for example, that it is confiscatory or that the determination that it is "reasonable" is not supported by substantial evidence-would seem a fit issue for judicial determination. Moreover, the propriety of such judicial review-subsequent to Congressional acquiescence in the new royalty ratewould seem to be supported by relevant precedent: It will be recalled that in a series of statutes Congress has vested in the Supreme Court authority to promulgate, and amend, the various sets of rules governing procedure and evidence in the federal district courts, subject to review by Congress before such rules or amendments take effect." But it will also be recalled that the Supreme Court has consistently held that the validity of the rules which it and Congress have approved is open to subsequent judicial inquiry when challenged in an appropri ate case or controversy. In short, one may be permitted to hope that H.R. 2223 would be judicially construed as authorizing judicial inquiry, in an appropriate case, into the reasonableness of the royalty rate schedules attendant on H.R. 2223's system of compulsory licensing, whether those schedules be the ones initially written into H.R. 2223 or thereafter adjusted through the action of the Copyright Royalty Tribunal and the acquiescence of Congress. But for immediate purposes it suffices to say that the absence of specific provision in H.R. 2223 for judicial review of compulsory license royalty rates cannot be thought a greater constitutional infirmity than the absence of such a provision in the existing Copyright Law which has, as to musical recordings, linked compulsory licenses and fixed, legislatively declared, royalties ever since 1909. (4) Finally, Professor Gellhorn (in what may appear a rolte face from his concerns about undue Congressional delegation to the Tribunal) expresses misgivings about the propriety of the statutory reservation to each legislative chamber of authority to vote down a royalty rate adjustment recommended by the Tribunal. This device, Professor Gellhorn says, "could be objectionable as an unconsitutional effort to legislate without Presidential approval." Gellhorn Memorandum, p. 10. 14 Section 807(a). 15 Cf. Professor Gellhorn's quotation (in a footnote en p. 8 of his Memorandum) from State v. Traffic Telephone Workers Federation, 2 N.J. 335, 66 A. 2d 616 (1949), a case in which arbitrators plainly were intended to act as a "board of arbitration" As indicated in the text at note 7, supra, the court's holding was that the compulsory arbitration statute was invalid for lack of adequate standards. Moreover, to the extent that dicta expressed misgivings about the impermanence of the "board of arbitration". the dieta must be regarded as qualified by the same court's upholding of a redrafted compulsory arbitration statute a year later, in New Jersey Bell Tel. Co. v. Communications Workers, 5 NJ. 354. 75 A. 2d 721 (1950). See notes 7, 8 and 9, supra. 16 Section 807 (a). 17 See note 11. supra. 18 Section 809. The limited scope of review contemplated by Section 809 suggests that in resolving such controversies (as opposed to adjusting royalty rates) the Tribunal is expected to act in an arbitral capacity. See Copyright Law Revision, S. Rep. No. 93-983, 93rd Cong. 2nd Sess.. pp. 205-6. 1928 U.S.C. § 2072, 2075 and 2076 : 18 USC § 3771. See. e.g.. Sibbach v. Wilson, 312 U.S. 1 (1940); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438. 444 (1946); Schlagenhauf v. Holder, 379 U.S. 104 (1964). These misgivings are unwarranted. Even if the Tribunal were perceived as an executive agency, Congressional review of its recommended royalty rate adjustment 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 approved 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 prescribe 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 Congress 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 H.R. 2223 is not to be a part of the executive branch nor a part of the judicial branch. Pursuant to Section 801 (a) of H.R. 2223, the Tribunal is to be "created in the Library of Congress. . ." The Library of Congress is, of course, an instrumentality 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 notableand indeed wholly dispositive of the immediate question-that a number of such provisions were expressly cited by the Supreme Court, in a footnote in Sibbach v. Wilson, as “an analogy” supportive of the Congressional review of judicial rule-making there sustained.23 CONCLUSION It is submitted that the provisions of H.R. 2223 discussed above constitute a fair, orderly and constitutional mechanism for periodic adjustment of royalty 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 constitutional-improvement upon the rigid compulsory-license-with-fixed-royalty statutory model which has been an important feature of the present Copyright Law ever since 1909. LOUIS H. POLLAK, November 11, 1975. Schwartz, Constitutional Law (1972) p. 140. Cf. Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983 (1975). 22 312 U.S. 1. 15 (1941). And see the dissent of Mr. Justice Harlan in Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963), wherein he chastised his brethern for using a case before the Court as a vehicle for mandating a change in the mode of trial of Jones Act and admiralty claims joined in a single proceeding--a change the Justice himself though sensible-rather than embodying the change in a proposed amendment to the Admiralty Rules and submitting the proposed amendment to Congress. 23 312 U.S. at 15 n. 17. |