12 Communications Reg. (P&F) 1206
NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner,
v.
LIBRARIAN OF CONGRESS and Register of Copyrights, Respondents,
Canadian Claimants, et al., Intervenors.
PROGRAM SUPPLIES, Petitioner,
v.
LIBRARIAN OF CONGRESS and Register of Copyrights, Respondents,
National Association of Broadcasters, Intervenor.
DEVOTIONAL CLAIMANTS, Petitioner,
v.
LIBRARIAN OF CONGRESS and Register of Copyrights, Respondents.
Nos. 96-1449, 96-1450 and 96-1451.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 29, 1998.
Decided June 26, 1998.
[
Dennis Lane argued the cause for petitioner Program Suppliers.
[
Barry H. Gottfried argued the cause for petitioner Devotional Claimants. Clifford M. Harrington, John H. Midlen, Jr., George R. Grange, II, Richard M. Campanelli and W. Thad Adams, III, were on brief.
Bruce G. Forrest, Attorney, United States Department of Justice, argued the cause for the respondents. Frank W. Hunger, Assistant Attorney General, and William G. Kanter, Attorney, United States Department of Justice, were on the brief.
Timothy C. Hester argued the cause for intervenors Canadian Claimants, et al. Michele J. Woods, L. Kendall Satterfield and Victor J. Cosentino were on brief.
Ronald A. Schechter argued the cause for amicus curiae Joint Sports Claimants. Robert Alan Garrett, Philip R. Hochberg and Judith Jurin Semo were on brief.
Before: GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.
KAREN LECRAFT HENDERSON, Circuit Judge:
A cable television system must pay royalty fees to the Register of Copyrights (Register) in exchange for the privilege of retransmitting to its subscribers certain copyrighted programming. See 17 U.S.C. § 111(d). The Librarian of Congress (Librarian) then distributes the collected royalties to the copyright owners. Id. § 111(d)(4). In Phase I of the distribution process, royalties are apportioned among eight classes of claimants. See Distribution of 1990, 1991 and 1992 Cable Royalties, 61 Fed.Reg. 55,653, 55,655 (1996) (hereinafter Librarian Decision). In Phase II awards are made to individual copyright owners within each of the classes. Id. If at either stage a controversy arises regarding the appropriate disposition of all or a portion of the royalties, the Librarian convenes a Copyright Arbitration Royalty Panel to propose a settlement. See 17 U.S.C. § 111(d)(4)(B); Majority Report of the Copyright Arbitration Royalty Panel (5/31/96) (hereinafter Panel Report). The panel's proposal is then forwarded to the Librarian, who, on the recommendation of the Register, adopts it or rejects it (in whole or in part) and distributes the disputed royalties accordingly. 17 U.S.C. § 802(f).
Each of the petitioners here is a disappointed class claimant challenging the Librarian's Phase I distribution of royalties collected for the years 1990, 1991 and 1992. Because our review of the Librarian's decision is limited, and because on our limited review none of the petitioners has established a basis to alter or modify its royalty award, we reject their challenges and affirm the Librarian.
I. BACKGROUND
In 1974 the Supreme Court ruled that a cable television system's retransmission of non-network copyrighted programing to markets distant from those to which it was originally broadcast was not a "performance" under the Copyright Act of 1909, 17 U.S.C. §§ 1 et seq., (hereinafter 1909 Act) and therefore an action for copyright infringement did not lie against the cable system. See Teleprompter Corp. v. CBS,
In response to the Fortnightly and Teleprompter decisions, and having struggled with the matter since 1965, the Ninety-Fourth Congress enacted legislation to address the retransmission royalty problem. See The Copyright Act of 1976, Pub.L. No. 94-553 (codified as amended at 17 U.S.C. §§ 101 et seq.) (hereinafter 1976 Act); see also H.R.Rep. No.94-1476, at 89 (1976), U.S. Code Cong. & Admin. News at 5659, 5703-5704 ("The difficult problem of determining the copyright liability of cable television systems has been before the Congress since 1965.") (hereinafter 1976 House Report). The 1976 Act permitted recovery of royalties for non-network programming retransmitted to distant markets but not for other types of retransmitted programming:
The Committee determined ... that there was no evidence that the retransmission of "local" broadcast signals [to the same markets served by the local broadcasters] threatens the existing market for copyright program owners. Similarly, the retransmission of network programming, including network programming which is broadcast in "distant" markets, does not injure the copyright owner. The copyright owner contracts with the network on the basis of his programming reaching all markets served by the network and is compensated accordingly.
By contrast, their [sic] transmission of distant non-network programming by cable systems causes damage to the copyright owner by distributing the program in an area beyond which it has been licensed. Such retransmission adversely affects the ability of the copyright owner to exploit the work in the distant market. It is also of direct benefit to the cable system by enhancing its ability to attract subscribers and increase revenues. For these reasons, the Committee has concluded that the copyright liability of cable television systems under the compulsory license should be limited to the retransmission of distant non-network programming.
1976 House Report at 90, U.S. Code Cong. & Admin. News at 5704-5705; accord National Ass'n of Broadcasters v. Copyright Royalty Tribunal,
Because the Congress believed "that it would be impractical and unduly burdensome to require every cable system to negotiate with every copyright owner whose work was transmitted by a cable system," 1976 House Report at 89, it established a centralized process for the collection and payment of royalties. See National Broadcasting Co. v. Copyright Royalty Tribunal,
Under the 1976 Act, if claimants could not agree on the proper distribution of collected royalties, the Tribunal declared a controversy as to the portion of royalties in dispute and conducted hearings to determine the appropriate apportionment of the funds. Id. § 804(d)-(e). The Tribunal had one year to complete its proceedings, id. § 804(e), and in its final determination it was to "state in detail the criteria that the Tribunal determined to be applicable to the particular proceeding, the various facts that it found relevant to its determination in that proceeding, and the specific reasons for its determination," id. § 803(b).
The Congress did not, however, prescribe the criteria or procedures according to which the Tribunal should assess a claim for royalties:[
1976 House Report at 97, U.S. Code Cong. & Admin. News at 5712. Accordingly, the Tribunal developed three primary criteria--" the harm caused to copyright owners by secondary transmissions of copyrighted works by cable systems, the benefit derived by cable systems from the secondary transmissions of certain copyrighted works, and the marketplace value of the works transmitted," NAB I,
The 1976 Act also provided for judicial review of the Tribunal's distribution decisions:
Any final decision of the Tribunal in a proceeding under section 801(b) may be appealed to the
United States Court of Appeals, within thirty days after its publication in the Federal Register, by an aggrieved party. The judicial review of the decision shall be had, in accordance with chapter 7 of title 5, on the basis of the record before the Tribunal. No court shall have jurisdiction to review a final decision of the Tribunal except as provided in this section.
17 U.S.C. § 810 (1976). Pursuant to this provision, this Court was called on to review the Tribunal's distribution of retransmission royalties for four of the first five years they were collected. See NAB I,
As time passed, however, there was insufficient work to justify the existence of a permanent body and therefore, some seventeen years after its creation, the Congress abolished the Tribunal and transferred most of its functions to an ad hoc Copyright Arbitration Royalty Panel. See The Copyright Royalty Tribunal Reform Act of 1993, Pub.L. No. 103-198 (codified in relevant part, as amended, at 17 U.S.C. §§ 801-803) (hereinafter 1993 Act). In so doing, the House Committee responsible for the legislation reasoned that
ad hoc arbitration panels are better suited to handle the functions currently handled by the Tribunal. The experience with arbitration under the Section 119 satellite compulsory license was positive, and indicates that this approach can work for the other royalty schemes in title 17. Testimony of witnesses before both Houses on the proposal supports this conclusion.
H.R.Rep. No. 103-286, at 11 (1993), U.S. Code Cong. & Admin. News at 2954, 2958 (hereinafter 1993 House Report).
The 1993 Act also transferred certain of the Tribunal's functions to the Librarian of Congress and the Register of Copyrights:
The Register of Copyrights and the Librarian of Congress will play important roles in convening and reviewing the decisions of the arbitration panels. The Copyright Office is currently the "front end" of the compulsory license system. Statements of Account [of royalties owed] for the section 111, 119, and 1005 licenses are filed with the Office. The royalties paid in under these licenses are then deposited by the Copyright Office into the United States Treasury. ... The Copyright Office also has authority to promulgate regulations for the administration of these functions. Section 806 of the Copyright Act requires the Library of Congress to provide the Copyright Royalty Tribunal with necessary administrative services, including those related to budgeting, accounting, financial reporting, travel, personnel, and procurement.
[
Id. (footnote omitted).
Accordingly, under the new distribution scheme established by the 1993 Act, an arbitration panel is now entrusted with initial responsibility for formulating a proposed distribution of disputed royalties. See 17 U.S.C. §§ 801-802. The arbitration panel has 180 days to hear evidence and develop the proposed settlement of outstanding claims. Id. § 802(e). It must "act on the basis of a fully documented written record, prior decisions of the Copyright Royalty Tribunal, prior copyright arbitration panel determinations, and rulings by the Librarian of Congress under section 801(c)." Id. § 802(c). Within the same 180-day period the panel must include its proposed settlement in a report, setting "forth the facts that the arbitration panel found relevant to its determination," and it must forward the report and accompanying written record to the Librarian:
Within 60 days after receiving the report of a copyright arbitration royalty panel under subsection (e), the Librarian of Congress, upon the recommendation of the Register of Copyrights, shall adopt or reject the determination of the arbitration panel. The Librarian shall adopt the determination of the arbitration panel unless the Librarian finds that the determination is arbitrary or contrary to the applicable provisions of this title. If the Librarian rejects the determination of the arbitration panel, the Librarian shall, before the end of that 60-day period, and after full examination of the record created in the arbitration proceeding, issue an order setting the royalty fee or distribution of fees, as the case may be. The Librarian shall cause to be published in the Federal Register the determination of the arbitration panel and the decision of the Librarian (including an order issued under the preceding sentence). The Librarian shall also publicize such determination and decision in such other manner as the Librarian considers appropriate. The Librarian shall also make the report of the arbitration panel and the accompanying record available for public inspection and copying.
Id. § 802(f).
The Librarian's decision can then be reviewed by this Court:
Any decision of the Librarian of Congress under subsection (f) with respect to a determination of an arbitration panel may be appealed, by any aggrieved party who would be bound by the determination, to the United States Court of Appeals for the District of Columbia Circuit, within 30 days after the publication of the decision in the Federal Register. If no appeal is brought within such 30-day period, the decision of the Librarian is final, and the royalty fee or determination with respect to the distribution of fees, as the case may be, shall take effect as set forth in the decision. ... The court shall have jurisdiction to modify or vacate a decision of the Librarian only if it finds, on the basis of the record before the Librarian, that the Librarian acted in an arbitrary manner. If the court modifies the decision of the Librarian, the court shall have jurisdiction to enter its own determination with respect to the amount or distribution of royalty fees and costs, to order the repayment of any excess fees, and to order the payment of any underpaid fees, and the interest pertaining respectively thereto, in accordance with its final judgment. The court may further vacate the decision of the arbitration panel and remand the case to the Librarian for arbitration proceedings in accordance with subsection (c).
Id. § 802(g).
B. The Petitioners' Challenges
The petitioners are the first to challenge a decision of the Librarian under the new royalty distribution process established by the 1993 Act. Each represents a distinct class of claimants: Program Suppliers (Programmer) represents the copyright owners of syndicated [
At issue is more than $500 million in royalties--the total amount collected for non-network programming retransmitted to distant markets in calendar years 1990, 1991 and 1992.4 The disputed royalties consist of "Basic Funds," "3.75% Funds" and "Syndex Funds," which in turn are subdivided into 1990 collections and 1991-1992 collections. The Basic Funds include all of the royalties collected from small- and medium-sized cable systems as well as the royalties collected from large cable systems for retransmissions that were permitted under the now defunct, distant signal carriage rules of the Federal Communication Commission (FCC). See Librarian Decision, 61 Fed.Reg. at 55,654. The 3.75% Funds and Syndex Funds consist of royalties collected exclusively from large cable systems for retransmissions that are now permitted as a result of the FCC's repeal of its distant signal carriage and syndication exclusivity rules, respectively.5 Id.
The Librarian declared a Phase I distribution controversy and convened a copyright arbitration royalty panel (Panel) on December 4, 1995. Id. at 55,655. The Panel conducted approximately 50 days of evidentiary hearings during which it heard the testimony of more than 50 witnesses and it reviewed over 200 exhibits and hundreds of pages of written testimony submitted by the class claimants. See Panel Report at 25. The record was closed on March 29, 1996, after which the claimants submitted over one thousand pages of post-hearing briefs. Id. at 17. The three-member Panel, with one dissent, reported its proposed distribution to the Librarian on May 31, 1996. See Letter from Panel Chair to Librarian of 5/31/96. In its report, the Panel proposed the following Phase I apportionment for the non-settling class claimants:Table 1: Panel's Proposed Phase I Apportionment of Royalties
--------------------------------------------------------------
Claimants Basic Fund Basic Fund 3.75 Fund Syndex Fund
(1990) (1991-1992) (1990-1992) (1990-1992)
--------------------------------------------------------------
Programmer 55.55% 55.00% 58.60% 100.00%
--------------------------------------------------------------
NAB 7.58% 7.50% 7.50% None
--------------------------------------------------------------
Devotional 1.26% 1.25% 0.95% None
--------------------------------------------------------------
PBS 5.81% 5.75% None None
--------------------------------------------------------------
JSC 29.80% 29.50% 32.60% None
--------------------------------------------------------------
CC None 1.00% 0.35% None
--------------------------------------------------------------
Source: Panel Report at 143.
The proposed awards differed significantly from those the Tribunal had last approved before its abolition:
Table 2: Tribunal's Phase I Apportionment of 1989 Royalty Funds
-------------------------------------------------------------------------------
Claimants Basic Fund 3.75 Fund Syndex Fund
(1989) (1989) (1989)
-------------------------------------------------------------------------------
Programmer 60.00% 62.60% 95.50%
-------------------------------------------------------------------------------
NAB 5.70% 5.70% None
-------------------------------------------------------------------------------
Devotional 1.25% 0.95% None
-------------------------------------------------------------------------------
PBS 4.00% None None
-------------------------------------------------------------------------------
MC 4.50% 4.50% 4.50%
-------------------------------------------------------------------------------
JSC 23.80% 26.00% None
-------------------------------------------------------------------------------
CC 0.75% 0.25% None
-------------------------------------------------------------------------------
----------------------------------------------------------- Class Claimants Basic Funds 3.75 Funds Syndex Funds & Collection Years ----------------------------------------------------------- Programmer -1990 52.6336250% 56.0125439% 95.5000000% -1991-1992 52.5250000% 56.0131375% 95.5000000% ----------------------------------------------------------- JSC -1990 28.2355000% 31.1605620% None -1991-1992 28.1725000% 31.2299325% None ----------------------------------------------------------- NAB -1990 7.1820500% 7.1688409% None -1991-1992 7.1625000% 7.1625000% None ----------------------------------------------------------- MC -1990 4.5000000% 4.5000000% 4.5000000% -1991-1992 4.5000000% 4.5000000% 4.5000000% ----------------------------------------------------------- PBS -1990 5.5049750% None None -1991-1992 5.4912500% None None ----------------------------------------------------------- Devotional -1990 1.1938500% 0.9080532% None -1991-1992 1.1937500% 0.9072500% None ----------------------------------------------------------- CC -1990 0.7500000% 0.2500000% None -1991-1992 0.9550000% 0.1871800% None -----------------------------------------------------------
Source: Librarian Decision, 61 Fed.Reg. at 55,669.
[
II. STANDARD OF REVIEW
As provided by subsection 802(g) of the 1993 Act, we may "modify or vacate a decision of the Librarian only if [we] find[ ], on the basis of the record before the Librarian, that the Librarian acted in an arbitrary manner." See 17 U.S.C. § 802(g). The corresponding provision of the 1976 Act, section 810, permitted review of a Tribunal decision "in accordance with chapter 7 of title 5, on the basis of the record before the Tribunal." 17 U.S.C. § 810 (1976). Notwithstanding the difference in language between the 1993 Act and the 1976 Act, Devotional contends that our review of the Librarian's decision should be no different from our review of a Tribunal decision; in both instances, the Administrative Procedure Act (APA)--i.e., 5 U.S.C. § 706(2)--supplies the appropriate standard of review. Similarly, Programmer argues that the APA's arbitrary and capricious test, 5 U.S.C. § 706(2)(A), as interpreted in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.,
Conversely, the intervenors argue that the APA's arbitrary and capricious standard no longer applies: pursuant to subsection 802(f), the Librarian is obliged to adopt the Panel's proposed settlement unless he finds it "arbitrary or contrary to the applicable provisions of" Title 17; in turn, under subsection 802(g), we may modify or remand the Librarian's decision only if we conclude that he "acted in an arbitrary manner" in applying the section 802(f) standard; this "double arbitrary" standard is therefore narrower than APA review.6 The Librarian goes even further, arguing that our "judicial review role in this case is at the outer edge of cases barely reviewable under a criterion of substantive correctness."7 Librarian Br. 14.
We conclude that our review of the Librarian's distribution decision under subsection 802(g) is significantly more circumscribed than the review we made of Tribunal decisions under section 810. As a result, in applying the "arbitrary manner" standard set forth in subsection 802(g), we will set aside a royalty award only if we determine that the evidence before the Librarian compels a substantially different award. We will uphold a royalty award if the Librarian has offered a facially plausible explanation for it in terms of the record evidence. While the standard is an exceptionally deferential one, we think it is most consistent with the intent of the Congress as reflected in the language, structure and history of the 1993 Act.8
A. The Congress's Intent
Under the APA standards incorporated by section 810, judicial review of the Tribunal's royalty distribution decisions was already quite deferential. See NAB II,
the judicial task is not to weigh the evidence and fix what in our view would constitute appropriate percentages, for that would be to intrude into the function entrusted to the Tribunal. Our job, rather, is to determine whether the royalty awards are within a "zone of reasonableness"--not unreasonably high or unreasonably low--and that the CRT's decision is neither arbitrary nor capricious, and is supported by substantial evidence.
NAB II,
While the section 810 standard was "highly deferential," in enacting the 1993 Act the Congress apparently concluded that the standard was not deferential enough, as evidenced by the repeal of section 810 and the enactment of subsection 802(g)--a provision that contains no reference to the APA. We therefore reject Devotional's assertion that the Congress did not intend to change the standard of review applicable to royalty distribution decisions as to so hold would ignore plain evidence of the Congress's intent to the contrary, a disfavored construction. See Brewster v. Gage,
Moreover, subsection 802(g) plainly does not evince a congressional intent to subject the Librarian's decision to more searching review than we have in the past applied to a Tribunal decision. Further, we cannot ignore the simplification of review language the 1993 Act achieved: we now ask simply whether "on the basis of the record before [
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of [Title 5] or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
5 U.S.C. § 706(2). Thus, for us to conclude that acting in an "arbitrary manner" is synonymous with the list of administrative transgressions set forth in the APA would be absurd. Cf. Steadman v. SEC,
The 1993 Act also establishes a royalty distribution structure that differs from its predecessor in important respects. First, the 1993 Act inserts an additional layer of administrative review by the Register and the Librarian between the factfinder's conclusions and our review. See 17 U.S.C. § 802(e)-(f). The Tribunal, however, had both the first and last administrative word under the procedure established by the 1976 Act. See 17 U.S.C. §§ 801-810 (1976). Second, the two-stage decisionmaking process established by the 1993 Act must now be completed in 240 days whereas the Tribunal had 365 days to conclude its single-stage process under the 1976 Act. Compare 17 U.S.C. § 802(e)-(f), with 17 U.S.C. § 804(e) (1976). Third, the Panel's report must be accompanied by the written record and need set forth only "the facts that the arbitration panel found relevant to its determination," id. § 802(e), whereas the Tribunal was obliged to "state in detail the criteria that [it] determined to be applicable to the particular proceeding, the various facts that it found relevant to its determination in that proceeding, and the specific reasons for its decisions," 17 U.S.C. § 803(b) (1976).10 Fourth, and perhaps most significantly, the 1993 Act changes the paradigm for administrative decisionmaking: it replaces the Tribunal's quasi-adjudication with an arbitration undertaken by an ad hoc panel whose proposed settlement is then reviewed by final decisonmakers, the Register and the Librarian. See 1993 House Report at 11 ("The experience with arbitration under the Section 119 [of Title 17] satellite compulsory license was positive, and indicates that this approach can work for the other royalty schemes in title 17").
The foregoing structural changes are also perfectly consistent with the Congress's evident intent to facilitate expeditious and informal settlement of claims at the administrative level and to discourage resort to formal, protracted and costly judicial processes of resolving disputes.11 See id. at 13 ("[T]he panels, with the assistance of the Copyright Office, must promulgate and be governed by clear procedural and evidentiary guidelines designed to ensure fundamental fairness. Rules of discovery that can expedite the parties' presentation of their cases are particularly important in this respect, since early discovery and clear evidentiary rulings can go far in facilitating settlements and a more streamlined arbitration process."); cf. Devine [
We find additional evidence of a legislative intent to narrow the scope of judicial review in the history of the 1993 and the 1976 Acts. The Senate bill that originally gave rise to the 1976 Act would have limited judicial review of a Tribunal decision to three circumstances: "(1) The determination was procured by corruption, fraud, or undue means; (2) there was evident partiality or corruption in any of the members of the Tribunal, or (3) any member of the Tribunal was guilty of any misconduct by which the rights of any party were prejudiced." 1976 House Report at 179. This standard is materially indistinguishable from the one set forth in the Arbitration Act. See infra note 12. The House, however, concluded that the Senate's judicial review provision was "far too restrictive," 1976 House Report at 179, and thus it reported an amendment to the bill, providing "for the full scope of review provided by Chapter 7 of the Administrative Procedure Act," id. The House prevailed and section 810, providing for full APA review, became law. See H.R. Conf. Rep. No. 94-1733, at 81-82 (1976).
In enacting the 1993 Act, however, the House appears to have come around to something closer to the Senate's original proposal to limit judicial review of royalty distribution decisions to claims cognizable under the Arbitration Act. Compare infra note 12 (setting forth Arbitration Act review provision that authorizes court to set aside award where there is "evident partiality or corruption" by arbitrator), with 1993 House Report at 12-13 (1993), U.S. Code Cong. & Admin. News at 2959-2960 ("Given that many arbitrations will involve multiple parties, the Librarian of Congress and the Register of Copyrights must be scrupulous to avoid even the appearance of selecting arbitrators that may be believed, incorrectly or not, to favor one party.").
We agree nonetheless with the Librarian that there is insufficient evidence to conclude that the Congress, in enacting subsection 802(g), intended to adopt the extremely circumscribed review standard set forth in the Arbitration Act, 9 U.S.C. § 10.12 The 1993 Act does not expressly refer to the Arbitration Act and the "arbitrary manner" language of subsection 802(g) is far from synonymous with the limited procedural and ethical infirmities supporting vacatur of an arbitration award pursuant to the Arbitration Act. Cf. Office & Professional Employees,
B. Applicable Standard of Review
Having sketched the general limits of our review, we must now give content to the "arbitrary manner" standard of subsection 802(g) and in so doing define more clearly the path we follow in reviewing decisions of the Librarian. Cf. Steadman v. SEC,
More fundamentally, in framing the standard of review, we must respect the Congress's delegation of exceedingly broad authority to the Librarian, as advised by the Register and the Panel, to apportion royalties appropriately among the claimants, just as we earlier honored the expansive authority entrusted to the Tribunal to do the same:
We emerge from our analysis of these inherently subjective judgment calls and rough balancing of hotly competing claims with one overriding conclusion: it is the Tribunal [now Librarian] which Congress, for better or worse, has entrusted with an unenviable mission of dividing up the booty among copyright holders. ... [T]he broad discretion necessarily conferred on the Copyright Royalty Tribunal [now Librarian] in making its distributions is emphatically clear.
NAB II,
With respect to the particular administrative scheme established by the 1993 Act, we note that although the word "arbitrary" appears in both subsections 802(g) and 802(f), our "arbitrary manner" review of the Librarian's decision is not coextensive with the Librarian's "arbitrary and legal" review of the Panel's proposed settlement. Compare 17 U.S.C. § 802(g) (authorizing court to vacate or modify decision if "the Librarian acted in an arbitrary manner ") (emphasis added), with id. § 802(f) (requiring Librarian to adopt Panel's proposed settlement unless it "is arbitrary or contrary to the applicable provisions of this title") (emphasis added). This is not a surprising administrative arrangement given the bifurcated review of royalty awards (first by the Librarian and then by this Court) and the deference to be accorded the Register's and the Librarian's expertise in royalty distribution. Cf. Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust for S. California,
Moreover, subsection 802(g) plainly limits our review to the Librarian's decision. That the Panel may have acted arbitrarily affords no basis for this Court to set aside a royalty award unless the Librarian "acted in an arbitrary manner" in ratifying the Panel's action. For example, we think the Librarian would plainly act in an arbitrary manner if, without explanation or adjustment, he adopted an award proposed by the Panel that was not supported by any evidence or that was based on evidence which could not reasonably be interpreted to support the award. [
In addition, in reviewing the Panel's proposed settlement according to the "legal" half of the "arbitrary and legal" standard of subsection 802(f), we think the Librarian would act in an arbitrary manner if he approved an award proposed by the Panel that unmistakably contravened applicable provisions of Title 17 or if he himself transgressed unequivocal statutory commands. Cf. Stark v. Wickard,
Accordingly, if the Librarian's final award to a class claimant bears a rational relationship to the record evidence, is plausibly explained and is otherwise developed in a manner that does not plainly contravene applicable statutory provisions, our task is at an end and we must uphold the award. While we acknowledge the deference that this approach accords to the Librarian's decision is unusually wide, it comports with the unusual character of the cable royalty distribution system that the Congress has devised. See American Pub. Gas Ass'n v. Federal Power Comm'n,
Applying the arbitrary manner standard of review to the individual claims raised by the petitioners, we conclude that none of them affords a basis for vacating or remanding the Librarian's decision.
A. Programmer's Claims
Programmer advances three reasons to remand the Librarian's decision: (1) his order did not catenate each award to substantial record evidence and he did not himself explain and assess the basis for each award; (2) he acceded to the Panel's illegal elimination of the "harm" criterion from the royalty apportionment calculus; (3) his order, adopting the Panel's proposed settlement as modified by the Register's recommendation, was arbitrary because it (a) endorsed the Panel's differential treatment of identically situated claimants, (b) did not remedy the Panel's improper reliance on certain evidence to determine JSC's award and (c) ratified the Panel's unduly large award to PBS, failing to take proper account of evidence suggesting a different result. None of these arguments is persuasive.
(1) Adequacy of Librarian's Order
Programmer's first argument is that the Librarian's order should have discussed the evidence before the Panel and the way in which that evidence ultimately led the Panel, and subsequently the Register and the Librarian, to conclude that each award was appropriate. In other words, it was incumbent on the Librarian to duplicate the work of the Panel and the Register in a final order so that the reasoning underlying a particular award would be less caliginous. See Programmer Br. 6 ("The Librarian's failure to create a complete picture reflects a lack of reasoned decisionmaking."). Although Programmer has not cast its argument in these terms, its claim is essentially twofold: (1) subsection 802(f) required the Librarian to issue an order that fully discussed each stage of the decisionmaking process as well as the evidentiary bases for each of the awards; (2) even if subsection 802(f) did not require this of the Librarian, it was nonetheless arbitrary for him not to issue such an order on his own. We do not agree.
First, section 802 of Title 17 cannot fairly be understood to oblige the Librarian or the Register to duplicate the work of the Panel. The two-step Chevron framework guides our assessment of the Librarian's interpretation:
Under this analysis, the court must first exhaust the traditional tools of statutory construction to determine whether the Congress has spoken to the precise question at issue.... If the court can determine congressional intent, then that interpretation must be given effect.... If, on the other hand, the statute is silent or ambiguous with respect to the specific issue, then the court will defer to a permissible agency construction of the statute.
Natural Resources Defense Council, Inc. v. Browner,
Under step one of the Chevron analysis, we look to the statutory language and structure to determine the Librarian's obligations. Cf. Steadman,
[
Moreover, we find nothing unreasonable or impermissible about the Librarian's understanding of his obligations under subsection 802(f). Cf. NAB I,
Second, under the standard of review articulated in Part II, supra, we find nothing in the Librarian's decision to adopt the Panel's proposed settlement, as modified in certain particulars by the Register's recommendation, that suggests he discharged his review obligations in an arbitrary manner. See CBN,
(2) Elimination of Harm Criterion
Programmer next argues that the Librarian acted in an arbitrary manner in approving the Panel's conclusion that the harm criterion is not a useful means by which to assess the merits of a class claim.15 This argument, like the preceding one, has two parts: (1) the Panel violated subsection 802(c) and the Librarian did not take appropriate corrective action; (2) the Panel did not sufficiently explain or support by reference to the record evidence its decision to eliminate [
Contrary to Programmer's contentions, our past decisions make clear that the Congress delegated to the Tribunal (and now to the Librarian, the Register and the Panel) responsibility for developing the criteria by which claims are to be assessed. See NAB I,
Moreover, we can find nothing in the language, structure or history of subsection 802(c) that evinces any intent to rescind the former delegation of authority to determine the appropriate criteria by which to gauge distribution claims. Subsection 802(c) merely states that "arbitration panels shall act on the basis of a fully documented written record, prior decisions of the Copyright Tribunal, prior copyright arbitration panel determinations, and rulings by the Librarian of Congress under subsection 801(c)."16 17 U.S.C. § 802(c) (emphasis added). Similarly, while the ad hoc panel is now the initial factfinder, its decision is subject to scrutiny by both the Register and the Librarian and, if the latter do not concur in the panel's rejection of prior Tribunal practice, they may force compliance with that practice. See, e.g., Librarian Decision, 61 Fed.Reg. at 55,661 (concluding that Panel should have adhered to Tribunal practice of setting final percentage awards on basis of awards to all classes, regardless whether class settled its claims or litigated them before Panel). This arrangement also dovetails with the Librarian's obligations under the arbitrary and legal review standard of subsection 802(f) as well as his authority, pursuant to subsection 801(c), to issue orders establishing the procedures the Panel and claimants are to follow. Accordingly, we defer to the Librarian's reasonable and permissible interpretation of the requirements of subsection 802(c) under the second step of the Chevron analysis.17
Nor has Programmer given us any basis to conclude that the Librarian "acted in an arbitrary manner" in finding that the Panel's elimination of the harm criterion was neither arbitrary nor contrary to applicable law. The policy reasons Programmer advances to support retaining the harm criterion are misdirected; those are matters for the Librarian and his agents, not this Court. Cf. NAB II,
(3) Panel's Evidentiary Findings
Finally, Programmer claims that the Librarian acted in an arbitrary manner by approving the Panel's proposed awards as adjusted by the Register's recommendation even though the Panel (1) did not evaluate market value according to a uniform set of criteria with respect to the Devotional and NAB awards, (2) did not accord similar weight to comparable evidence with respect to the JSC award and (3) did not consider some evidence that plainly detracted from its conclusions with respect to the PBS award.19 However, none of the asserted errors provides a basis for adjusting Programmer's award. Even if the awards to Devotional, NAB, JSC and PBS were arbitrary, Programmer does not explain how correcting the errors would benefit it. Indeed, to the extent Programmer's first claim suggests that Devotional's claim was undervalued, success on the claim could threaten only to reduce the Programmer award. Accordingly, because subsection 802(g) grants an appeal only to an "aggrieved party," and because Programmer has failed to show how it has been aggrieved by the Panel's allegedly arbitrary evidentiary findings regarding other classes' awards, we cannot hear the claims. See Asociacion de Compositores y Editores de Musica Latinoamericana v. Copyright Royalty Tribunal,
B. Devotional's Claims
Devotional requests that we adjust its award upward to correct for four errors that the Librarian allegedly made in approving Devotional's award, as it was adjusted by the Register's recommendation: (1) the Librarian failed to independently examine the record and make his own determination as to the appropriate share of the royalty funds to which each class was entitled; (2) the Panel awarded Devotional a share of the royalties that was nominally the same as its share of the 1989 funds, but the Librarian, without any evidentiary basis for his decision, adjusted downward the Panel's proposed award to account for certain settlements the Panel overlooked in its calculations; (3) the Librarian ratified the Panel's arbitrary failure to increase the Devotional's share as a result of the elimination of the harm criterion; (4) the Librarian acceded to the Panel's arbitrary failure to accord Devotional's viewership surveys and testimonial evidence the same weight as it gave other claimants' evidence of this kind. None of these claims warrants vacating or remanding Devotional's award.
(1) Librarian's Order
Devotional's first argument fails for the same reasons Programmer's similar argument failed. As discussed above, subsection 802(f) cannot reasonably be construed to require the Librarian to duplicate the [
(2) Librarian's Explanation of Adjustment
The contention that neither the Librarian nor the Panel articulated a rational reason for reducing Devotional's award is also without merit. The Panel erroneously predicated its proposed settlement on the assumption that 100% of the royalty funds collected for 1990-1992 were in dispute. See Panel Responses to Certified Questions at 3-5 (acknowledging that Panel did not adjust proposed awards for NPR settlement and that award to Devotional was "based on a 100% scale"). Consistent with the Register's recommendation, the Librarian corrected this mistaken assumption by adjusting all of the class awards by an appropriate percentage to account for the settlement of certain claims. See Librarian Decision, 61 Fed.Reg. at 55,661. As a result, Devotional's final share of the royalty funds was slightly lower than its share of the 1989 funds. Compare Table 2 with Table 3. Specifically, the relative difference between the Panel's proposed award and the Librarian's final award was on the order of 5.62% for the Basic Funds and 4.275% for the 3.75 Fund, corresponding to an absolute difference of 0.06 and 0.04 percentage points, respectively.
Devotional argues that because the Panel found that its circumstances had not changed, the Panel intended to award Devotional the same amount that it received in the earlier distribution (after the settlements). Because the earlier amount was a post-adjustment figure, it seems to be arguing that the Librarian should not have reduced its award in adjusting for the Panel's omission of the settlement. In Devotional's view, the reduction gave it a post-adjustment award lower than its earlier award and this lower award does not make sense in light of its unchanged circumstances. (Its argument implies that it would be happy if the Librarian had acknowledged the settlement by adjusting every other party's award, but not its.)
Even if Devotional were correct that the Panel intended to award it the same percentage it received in the earlier distribution, we are reviewing the Librarian's decision, not the Panel's. The Librarian's method of correcting the Panel's mistake was neither arbitrary nor irrational. The Librarian understood the arguments made by each party and explained why he did not accept the Panel's original judgment. In making his ultimate decision, he made a reasonable judgment that it was not necessary to reconsider the relative entitlements of each party in order to correct the Panel's mistake. We need not decide whether the Panel had intended to give Devotional a post-adjustment award equal to its earlier award because the Librarian's final figure is only slightly changed from the earlier one and remains within the zone of reasonableness. See NCT,
(3) Elimination of Harm Criterion
Devotional next argues that elimination of the harm criterion should have resulted [
Moreover, the fact that the Panel found that Devotional's circumstances had not changed since the distribution of 1989 funds does not require a different conclusion. As in past distribution proceedings, the "changed circumstances" inquiry was only one factor influencing the amount of royalties to which a class of claimants was deemed entitled and therefore the fact that this variable remained constant is no reason to presume that all other variables did, that other classes' relative shares remained the same or that this factor alone should control a class's award. Indeed, in the past we have explained the significance of the changed circumstances factor in the following manner:
We agree that, as the parties themselves recognize, it would be improper, as a matter of law, for the Tribunal to rely solely upon a standard of "changed circumstances." The invalidity of this rigid approach is strongly suggested by our two prior opinions, which expressly contemplated that in the annual determination process the claimants would improve upon the quality and sophistication of their evidentiary submissions. At the same time, it is entirely appropriate for the Tribunal to employ, as one of its analytical factors, the determination whether circumstances have changed in the course of the ensuing twelve months, inasmuch as that conclusion will obviously be relevant to the question whether an award should differ from the prior year's award. But if a claimant presents evidence tending to show that past conclusions were incorrect, the Tribunal should either conclude, after evaluation, that the new evidence is unpersuasive or, if the evidence is persuasive and stands unrebutted, adjust the award in accordance with that evidence.
NAB II,
(4) Weighing of Evidence
Finally, Devotional suggests that the Panel arbitrarily accorded less weight to some of Devotional's evidence than it accorded to similar evidence introduced by other class claimants. We do not agree. To begin, it is emphatically not our role to independently weigh the evidence or determine the credibility of witnesses--two duties entrusted solely to the Panel and, before it, the Tribunal. See NAB II,
C. NAB's Claims
NAB argues that the Librarian acted in an arbitrary manner by failing to adjust its award upward (and Programmer's award downward) for certain categorization errors that were made in compiling the Nielsen results for NAB programming. The argument proceeds from the premise that the Panel, and subsequently the Register and the Librarian, intended to award NAB a percentage of royalties within the range described by the lower bound of its Nielsen survey results. The Panel and the Librarian failed to effect this intent, however, because they relied on incorrect Nielsen numbers in fixing the amount of NAB's award at 7.5% of both the Basic Fund and the 3.75 Fund--the midpoint of the lower range described by NAB's Nielsen numbers, i.e., 7.0% to 8.0%. Instead, NAB contends that the Panel, and subsequently the Librarian, should have adjusted the Nielsen results for certain alleged miscategorization errors involving two programs--"National Geographic Explorer," a NAB program, and "National Geographic on Assignment," a Programmer program--resulting in a larger award to NAB. We can find nothing in these claims to suggest that the Librarian "acted in an arbitrary manner" in declining to adjust the NAB award.
[
Moreover, even if the Panel and the Librarian had intended to tie the NAB award to the lower limits of its Nielsen viewing share, we find nothing arbitrary in the Panel's and the Librarian's successive refusals to correct the Nielsen numbers.22 It was well within the Panel's prerogative to weigh the miscategorization evidence and other testimony and conclude that, given the fact the Nielsen results were at best an imperfect proxy for market value, it did not make sense to attempt to refine the figures:
Dr. Peter Miller, in testifying for the JSC, says the Nielsen figures should be looked at with some degree of caution. He says the numbers could be biased in one direction or another but that this cannot be quantified and that we should take those numbers with "a grain of salt." We do accept those numbers in that vein. We see no need to engage in a lengthy discussion about the Nielsen methodology in light of the fact that we accept these numbers merely as a reference point and not as an absolute value. Also, in addition to being unable to quantify their various criticisms, the claimants who dispute the Nielsen survey's accuracy present no alternative evidence as to viewing.
The next question is, what do these numbers reveal about market value? Program Suppliers acknowledge that the Nielsen study does not measure value; rather, it measures tuning. Program Suppliers point out they did not ask Nielsen to interpret what the results meant, but left that to the other witnesses and the evidence. Program Suppliers agree that the Nielsen figures are not the sole determinant of market value.
Panel Report at 43; cf. NCT,
IV. CONCLUSION
In summary, we conclude that the Copyright Tribunal Reform Act of 1993 significantly narrowed the standard of review applicable to the Librarian's apportionment of cable royalties. Under the applicable standard, we find nothing in any of the petitioners' claims that warrants modification or remand of the Librarian's Phase I awards. Accordingly, the petitions for review of the decision of the Librarian, as reported in Distribution of 1990, 1991 and 1992 Cable Royalties, 61 Fed.Reg. 55,653 (1996), are
Denied.
Notes
Syndicated series and specials consist of the following:
(1) programs licensed to and broadcast by at least one U.S. commercial television station during the calendar year in question; (2) programs produced by or for broadcast by two or more U.S. television stations during the calendar year in question; and (3) programs produced by or for a U.S. commercial television station that are comprised predominantly of syndicated elements, such as music video shows, cartoon shows, "PM Magazine," and locally hosted movie shows. Syndication refers to selling programming on a market-by-market basis to broadcast television stations in the United States. "Off-network" syndication refers to programming syndicated after having first appeared on a network. "Cheers" and "Roseanne" are examples. "First run" syndication refers to programs first appearing in syndication, such as talk and game shows.
Panel Report at 11-12.
The Panel Report describes NAB's programming as follows: "[p]rograms produced by or for a U.S. commercial television station and broadcast only by that one station during the calendar year in question and not coming within the exception described in subpart (3) of the 'Program Suppliers' definition." Panel Report at 12-13 (referring to subpart (3) quoted supra at note 1)
The Librarian also awarded a share of the royalties to five other classes of copyright owners--i.e., Joint Sports Claimants (JSC), Music Claimants (MC), National Public Radio (NPR), Public Broadcasters (PBS) and Canadian Claimants (CC). PBS and CC have intervened in this litigation, filing a joint brief in support of the Librarian's distribution decision. Each of the petitioners has also joined in the portions of the intervenors' brief that are not adverse to its claims. JSC has filed an amicus curiae brief, supporting the Librarian's decision and opposing certain of the arguments advanced by the petitioners
The Tribunal, it appears, was in the midst of a distribution proceeding to determine the proper Phase I apportionment of 1990 royalties just before the Congress enacted the 1993 Act. See Librarian Decision at 55,655. When it became clear that the Tribunal would be abolished by the 1993 Act, the 1990 proceedings were suspended and, at the urging of the parties, the Librarian convened a panel to develop a proposed settlement for not only the 1990 royalties but also the 1991 and 1992 funds. Id
The 3.75% Fund is named for the formula by which the royalties are calculated--i.e., 3.75% of gross receipts. See Librarian Decision, 61 Fed.Reg. at 55,654
Any difference between a "double-arbitrary" standard and a "single-arbitrary" standard may well be illusory for if the Panel's proposed award is patently arbitrary or plainly contravenes another provision of Title 17, the Librarian's decision to approve the award without modification would constitute "act[ing] in an arbitrary manner" as well
The Register's recommendation to the Librarian (which was apparently adopted by the Librarian without alteration) suggests that the Librarian's review of the Panel's proposed settlement is indistinguishable from this Court's review of Tribunal royalty distribution decisions. See Librarian Decision, 61 Fed.Reg. at 55,656 ("Neither the [1993] Act nor its legislative history indicates what is meant specifically by 'arbitrary,' but there is no reason to conclude that the use of the term is any different than the 'arbitrary' standard described in the [APA]."). Contrary to Programmer's contention, however, the Register did not assert that our review of the Librarian's decision had not changed. See id. at 55,656-57
Even had the standard of review remained the same, we are doubtful that any of the petitioners' arguments would lead us to disturb the Librarian's Phase I apportionment. Nonetheless, given our past experience with the "highly litigious copyright-owner subculture," NAB II,
The 1993 Act also repealed subsection 803(a) of the 1976 Act, which provided that, "[e]xcept as otherwise provided in this chapter, the Tribunal shall be subject to the provisions of the Administrative Procedure Act [ ] ( ... title 5, United States Code, chapter 5, subchapter II and chapter 7)." 17 U.S.C. § 803(a) (1976). The 1993 Act's sole reference to the APA is found in subsection 802(c), which requires the Panel to conduct its proceedings "subject to subchapter II of chapter 5 of title 5"--the notice and comment provisions of the APA. See 17 U.S.C. § 802(c)
We find these changes, together with the significant structural changes effected by the 1993 Act, to be compelling evidence of the Congress's intent to limit the applicability of the APA. Thus, to the extent the petitioners argue that the strong presumption in favor of applying the APA requires us to adhere to the review standards set forth in 5 U.S.C. § 706(2), we think this is one of those unusual circumstances in which the Congress's intent is sufficiently clear to overcome the presumption. Indeed, the Supreme Court reached a similar conclusion in somewhat analogous circumstances:
Exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed in view of the statement in § 12 of the Act that modifications must be express. ... But we cannot ignore the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act.
Marcello v. Bonds,
While the legislative history of the 1993 Act states that "[a] clear report setting forth the panel's reasoning and findings will greatly assist the Librarian of Congress" in conducting his review of the report, a "clear report" is not required under subsection 802(e). 1993 House Report at 13
Indeed, almost two years will have elapsed from the date of the Librarian's final decision to judicial resolution of the parties' claims for royalties that were collected, in some instances, more than eight years ago
Under the Arbitration Act, a district court is authorized to set aside an arbitrator's award only in the following circumstances:
(1) Where the award was procured by corruption, fraud, or undue means.
(2) Where there was evident partiality or corruption in the arbitrators, or either of them.
(3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a).
To the extent the petitioners claim that the Librarian's decision is not entitled to deference because ad hoc arbitration members do not possess expertise in the area of cable royalties, we think their claim misapprehends the source of our solicitude towards the administrative decisionmaker's expertise. The Panel, as the initial factfinder, is in the best position to weigh evidence and gauge credibility. See Concrete Pipe, infra; cf. Asociacion de Compositores Y Editores de Musica Latinoamericana v. Copyright Royalty Tribunal,
Contrary to Programmer's suggestion, we find nothing improper in the Register's submission of questions to the Panel to clarify its reasons for proposing a particular award. As with the Librarian's decision, subsection 802(f) does not elaborate on the content of the Register's recommendation to the Librarian. In the face of such legislative silence, Chevron deference is due the Register's interpretation, which is plainly not unreasonable. Further, to the extent Programmer suggests that the Register's "remand" to the Panel impermissibly lengthened the Librarian's review period and that the Librarian's decision should be set aside on this basis, we disagree. Even if correct, a missed deadline in a case such as this cannot justify invalidation of the Librarian's decision. See NCT,
The Register's recommendation, adopted by the Librarian, described the Panel's rejection of the harm criterion as follows:
It is clear from the Panel's answer [to certified questions about the harm criterion] that, rather than treating all parties as equally harmed and awarding equal shares of harm credit, the Panel effectively determined that the harm criterion was a complete nonfactor. The panel did not consider harm to be of any value in determining the distribution percentages, instead it emphasized the marketplace value criteria. As a result, all parties received a zero credit for harm, and the evidence presented by the parties regarding this factor was given no weight.
Librarian Decision, 61 Fed.Reg. at 55,658.
Subsection 801(c) provides:
The Librarian of Congress, upon the recommendation of the Register of Copyrights, may, before a copyright arbitration royalty panel is convened, make any necessary procedural or evidentiary rulings that would apply to the proceedings conducted by such panel.
17 U.S.C. § 801(c).
Accordingly, we also defer to the Librarian's and the Panel's reasonable interpretation of the "harm" criterion as applied by the Tribunal in the past
The Panel responded to the Register's certified questions regarding the harm criterion as follows:
[T]he panel found that evidence of harm was not quantifiable and did not establish that any one party was entitled to a harm credit more than any other party. Other than identifying that a claimant whose program was transmitted without compensation has been harmed, it did not lend any appreciable information on relative market value. At least two expert witnesses testified that "harm" is merely another way of describing, or an aspect of, the supply side of the market, just as "benefit" is another way of describing, or an aspect of, the buyer's side of the market.
Panel Responses to Certified Questions at 4; accord Panel Report at 20-25 (concluding that " 'market value' is the only logical and legal touchstone" by which to assess the merits of various class claims).
To the extent Programmer claims that subsection 802(f) allows the Librarian only two choices--adoption or rejection of the Panel's report in toto--we find nothing in the language of the provision that requires that interpretation and thus we accord the Librarian's reasonable interpretation deference under Chevron. Cf. NBC,
Nor is the mere fact that Devotional's award represented a compromise between differing expert views of the value of its programming a sufficient basis for finding the compromise figure arbitrary. See NAB II,
The Nielsen and Bortz surveys were the principal and most important statistical evidence before the Panel. See Panel Report at 27-66. The Nielsen survey assesses the percentage of viewers each type of programming attracts whereas the Bortz survey calculates the value of the types of programming to cable transmitters--which does not correlate perfectly to shares of viewers because cable companies may be more interested in acquiring certain kinds of programming to diversify their offerings even though the programming may have a narrower following. Id
In Devotional's case, the uncorrected Bortz numbers show no clear trend: for 1989 cable operators were willing to pay 4.3% of specified funds for the Devotional programming; for 1990 they paid 3.8%; for 1991 they paid 4.3% and for 1992 they paid 3.9%. Similarly, the Nielsen numbers for the same period do not reflect any meaningful trend: for 1989, the Nielsen number was 0.22% of viewers according to the survey methodology then in use; for 1990 the number, using a different methodology, was 1.0%; for 1991, the number was less than 1.0%; for 1992, the number was once again 1.00%.
We reject any suggestion by NAB that the Panel was obligated to correct the Nielsen figures simply because the Tribunal had undertaken such a task in the past. Just as the Panel was authorized to dispense with the harm criterion because it found the criterion unhelpful, it was not required to follow the Tribunal's lead on the miscategorization errors given its assessment of the imprecision of the evidence. See supra discussion, Part III.A(2)