80 FR 25333 - Scope of the Copyright Royalty Judges' Continuing Jurisdiction
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 80, Issue 85 (May 4, 2015)
Copyright Office
Federal Register Volume 80, Issue 85 (May 4, 2015)
| Page Range | 25333-25335 | |
| FR Document | 2015-10305 |
[Federal Register Volume 80, Number 85 (Monday, May 4, 2015)] [Notices] [Pages 25333-25335] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-10305] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office [Docket No. 2015-02] Scope of the Copyright Royalty Judges' Continuing Jurisdiction AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Final order. ----------------------------------------------------------------------- SUMMARY: The Copyright Royalty Judges (``CRJs''), acting pursuant to statute, referred novel material questions of substantive law to the Register of Copyrights for resolution. Those questions concerned the scope of the CRJs' authority, under the statutory grant of continuing jurisdiction over ratemaking determinations, to issue a clarifying interpretation of regulations adopted pursuant to such a determination. The Register resolved those questions in a written decision that was transmitted to the CRJs. That decision is reproduced below. DATES: Effective Date: April 8, 2015. FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Assistant General Counsel, U.S. Copyright Office, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8350. SUPPLEMENTARY INFORMATION: The Copyright Royalty Judges are tasked with determining and adjusting terms and rates of royalty payments of statutory licenses under the Copyright Act. See 17 U.S.C. 801. If, in the course of proceedings before the CRJs, novel material questions of substantive law concerning the interpretation of provisions of title 17 arise, the CRJs are required by statute to refer those questions to the Register of Copyrights for resolution. 17 U.S.C. 802(f)(1)(B). On March 9, 2015, the CRJs, acting pursuant to 17 U.S.C. 802(f)(1)(B), referred novel material questions of substantive law to the Register, concerning the CRJs' authority to issue a clarifying interpretation of regulations adopted in a prior ratesetting determination. On April 8, 2015, the Register resolved those questions in a Memorandum Opinion that she transmitted to the CRJs. To provide the public with notice of the decision rendered by the Register, the Memorandum Opinion is reproduced in its entirety below. Dated: April 28, 2015. Maria A. Pallante, Register of Copyrights and Director of the U.S. Copyright Office. Before the U.S. Copyright Office Library of Congress Washington, DC 20559 In the Matter of Determination of Rates and Terms for Preexisting Subscription Services and Satellite Digital Audio Radio Services Docket No. 2006-1 CRB DSTRA (SDARS I) MEMORANDUM OPINION ON A NOVEL QUESTION OF LAW In relation to the above-captioned proceeding before the Copyright Royalty Judges (``CRJs'' or ``Judges''), questions have arisen about the proper interpretation of 17 U.S.C. 803(c)(4), which provides the CRJs with ``continuing jurisdiction'' in certain circumstances to amend a written determination after it has issued. The CRJs determined that these were novel material questions of substantive law and, as required by section 802(f)(1)(B), referred them to the Register of Copyrights for resolution. The Register hereby resolves those referred questions. I. Procedural Background On January 24, 2008, the CRJs published final royalty rates and terms under the section 112(e) and 114 statutory licenses for the period 2007 through 2012 for preexisting satellite digital audio radio services (``SDARS I''). 73 FR 4080 (Jan. 24, 2008).\1\ In that proceeding, the CRJs set a royalty rate as a percentage of the ``Gross Revenues'' of the satellite services. 73 FR at 4084. The definition of ``Gross Revenues'' adopted by the CRJs excluded several categories of revenues received by satellite services, such as revenues from channels and programming that are ``exempt from any license requirement or [are] separately licensed,'' and revenues attributable to channels and programming that are ``offered for a separate charge'' and ``use only incidental performances of sound recordings.'' 73 FR at 4102; 37 CFR 382.11 (2008) (paragraph (3)(vi)(B) & (D) of Gross Revenues definition). --------------------------------------------------------------------------- \1\ The CRJs' determination in SDARS I was appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The court affirmed the determination in all but one respect, remanding to the CRJs the single matter of specifying a royalty for the use of the section 112 statutory license. SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220 (D.C. Cir. 2009). That last issue was resolved by the CRJs in further proceedings. 75 FR 5513 (Feb. 3, 2010). --------------------------------------------------------------------------- On April 17, 2013, the CRJs adjusted the royalty rates and terms for satellite radio for the period 2013 through 2017 (``SDARS II''). 78 FR 23054 (Apr. 17, 2013) as modified, 78 FR 31842 (May, 28, 2013). In the course of that proceeding, SoundExchange criticized the manner in which Sirius XM had been excluding revenues in reliance on the SDARS I regulations, including its practice of excluding revenues attributable to sound recordings made before February 15, 1972, which are generally not subject to federal copyright protection, and thus do not fall within the section 112(e) and 114 [[Page 25334]] statutory licenses.\2\ 78 FR at 23071. In SDARS II, the CRJs maintained the exclusions from gross revenues it had adopted in SDARS I, but added a new provision specifically addressing the proper treatment of pre- 1972 sound recordings. 78 FR at 23079-81. --------------------------------------------------------------------------- \2\ See generally U.S. Copyright Office, Copyright and the Music Marketplace 53-54 (Feb. 2014). --------------------------------------------------------------------------- After the CRJs' determination in SDARS II, SoundExchange brought suit against Sirius XM on August 25, 2013 in the U.S. District Court for the District of Columbia, alleging that for the time period covered by SDARS I (2007 through 2012), Sirius XM had underpaid royalties by improperly excluding certain revenues from its gross revenue calculations, including revenues attributable to pre-1972 sound recordings. SoundExchange, Inc. v. Sirius XM Radio, Inc.,--F. Supp. 3d --, 2014 WL 4219591, *3-*5 (D.D.C. Aug. 26, 2014). Rather than seeking to have the district court to resolve the dispute itself, Sirius XM asked the court to refer the issues to the CRJs under the administrative law doctrine of ``primary jurisdiction'' because they ``involve interpreting and applying the [CRJs'] regulations on gross revenues.'' Id. at *3. As explained by the DC Circuit, under that doctrine, when a court is ``adjudicating a claim [that] would `require[] the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body,''' the court can ``suspend the judicial process `pending referral of such issues to the administrative body for its view.''' United States v. Philip Morris USA Inc., 686 F.3d 832, 837 (D.C. Cir. 2012) (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956)). SoundExchange disagreed that the doctrine applied, responding that the relevant regulatory definitions were unambiguous, and that the district court should therefore decide the case. SoundExchange, 2014 WL 4219591 at *4. The district court agreed with Sirius XM, concluding that ``the gross revenue exclusions are ambiguous and do not, on their face, make clear whether Sirius XM's approaches were permissible under the regulations,'' and that referral to the CRJs under the primary jurisdiction doctrine was therefore appropriate. Id. In response to SoundExchange's related concern that the CRJs lacked authority to resolve the issues, the district court pointed to 17 U.S.C. 803(c)(4). Id. at *5. Section 803(c)(4) provides as follows: Continuing jurisdiction.-- The Copyright Royalty Judges may issue an amendment to a written determination to correct any technical or clerical errors in the determination or to modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frustrate the proper implementation of such determination. Such amendment shall be set forth in a written addendum to the determination that shall be distributed to the participants of the proceeding and shall be published in the Federal Register. 17 U.S.C. 803(c)(4). The district court concluded that ``[n]either party is asking for a change to rates; only a clarification of the terms,'' and that such a clarification ``is within the [CRJs'] continuing jurisdiction.'' SoundExchange, 2014 WL 4219591 at *5. Accordingly, the court stayed its proceedings pending a decision by the CRJs clarifying the meaning of the regulations defining Gross Revenues. On November 24, 2014, SoundExchange petitioned the CRJs to clarify the definition of Gross Revenues adopted in SDARS I. On December 9, 2014, the CRJs reopened the SDARS I proceedings, observing that SoundExchange's petition raised a threshold jurisdictional question that potentially constituted a novel material question of substantive law that, by statute, must be referred to the Register. In the order reopening proceedings, the CRJs asked the parties to file briefs addressing the CRJs' authority to issue a clarifying interpretation of its regulations. Sirius XM took the position that the Copyright Act or, in the alternative, the Administrative Procedure Act (``APA''), gave the CRJs such authority. SoundExchange disagreed, arguing that no statute gave the CRJs authority to clarify the regulations, and that the case should therefore be returned to the district court for resolution. After considering the parties' responses, on March 9, 2015, the CRJs, acting pursuant to 17 U.S.C. 802(f)(1)(B), referred the following novel material questions of substantive law to the Register, enclosing the briefs the parties had filed: (1) Do the Judges have jurisdiction under title 17, or authority otherwise, to interpret the regulations adopted in the captioned proceeding? (2) If the Judges have authority to interpret regulations adopted in the course of a rate determination proceeding, is that authority time-limited? (3) Would the answer regarding the Judges' jurisdiction or authority be different if the terms at issue regulated a current, as opposed to a lapsed, rate period? II. Summary of Parties' Arguments The parties' dispute is focused on around the first referred question. The Register understands this question to ask, in essence, whether the CRJs have the power to issue a clarifying interpretation of their regulations. SoundExchange asserts that the provision cited by the district court, 17 U.S.C. 803(c)(4), does not give the CRJs authority to clarify the regulations at issue here. First, SoundExchange argues that resolution of legal ambiguity cannot properly be characterized as a correction of a ``technical or clerical'' error. Second, SoundExchange urges that the separate authority in section 803(c)(4) to ``modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frustrate the proper implementation of such determination'' does not apply to this case. In particular, it argues that any modification of the definition of ``Gross Revenues'' would affect the rates of royalty payments, not the terms under which those payments are made, and that the definition of ``Gross Revenues'' is accordingly not a ``term.'' In addition, SoundExchange asserts that Sirius XM's decision to exclude certain revenues from its gross revenue calculation was not an ``unforeseen circumstance[ ]'' that would ``frustrate the proper implementation of [the] determination.'' Sirius XM, in contrast, asserts that section 803(c)(4) empowers the CRJs to interpret the SDARS I regulations, and amend them to prevent an interpretation that is at odds with copyright law or the intent of its earlier determination. According to Sirius XM, such an amendment can either be considered a ``technical amendment'' that prevents a mistaken interpretation of their determination, or a ``modification'' of the terms of the royalty payment in response to unforeseen circumstances. In response to SoundExchange's point that a modification of the Gross Revenues definition would constitute an impermissible change in rates, Sirius XM urges that ``rates'' refers only to the percentage-of-revenue rate in the CRJs' determination, and ``terms'' refers broadly to ``other aspects of the determination required to implement the rates.'' In the alternative, Sirius XM argues that if section 803(c)(4) did not give the CRJs sufficient authority to clarify the meaning of the regulations, the APA independently authorizes the CRJs to do so. Sirius XM notes that section 803(a)(1) instructs the CRJs to act in accordance with the APA, and that the APA includes a provision authorizing agencies to ``issue a declaratory order to [[Page 25335]] terminate a controversy or remove uncertainty'' as part of formal adjudications. 5 U.S.C. 554(e). SoundExchange disputes that contention on the ground that, within the meaning of the APA, the CRJs engage in rulemakings, not adjudications, and therefore 5 U.S.C. 554(e) does not apply. With respect to the remaining two questions, the parties agree that if the CRJs have authority to interpret regulations adopted in the course of a rate determination proceeding, that authority would not be time limited. In addition, they agree that the CRJs' continuing jurisdiction does not depend on whether a rate period is current or lapsed. III. Register's Determination Having considered the relevant statutory language and the input from the parties, the Register determines that the CRJs have jurisdiction under section 803(c)(4) of Title 17 to clarify the meaning of the regulations adopted in SDARS I. The Register also determines that this authority is not time-limited, and that the CRJs' authority is the same whether the regulations at issue apply to a current or lapsed rate period. A. The CRJs' Continuing Jurisdiction Encompasses the Authority to Issue Clarifying Amendments to Written Determinations. As noted above, under section 803(c)(4), the CRJs ``may issue an amendment to a written determination to correct any technical or clerical errors in the determination or to modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frustrate the proper implementation of such determination.'' 17 U.S.C. 803(c)(4). As an initial matter, the Register accepts the district court's conclusion that the meaning of the relevant regulatory provisions, and the application of those provisions to the particular fact pattern presented here, is uncertain. See SoundExchange, 2014 WL 4219591, at *4 (``[T]he gross revenue exclusions are ambiguous and do not, on their face, make clear whether Sirius XM's approaches were permissible under the regulations.''). The Register concludes that the CRJs' power to ``correct any technical . . . errors'' in determinations encompasses the power to resolve ambiguity in the meaning of regulations adopted pursuant to those determinations.\3\ Such a correction is ``technical'' in the sense that it merely clarifies existing regulations to ensure they are applied in the manner intended by the CRJs. As the district court appreciated, the CRJs are in the best position to provide this type of interpretive guidance, given their familiarity with the extensive record on which the regulations are based and their general ``technical and policy expertise.'' SoundExchange, 2014 WL 4219591 at *4. This approach is also consistent with general principles of administrative law, under which courts regularly defer to agencies' reasonable interpretations of ambiguous regulations. See Auer v. Robbins, 519 U.S. 452, 461 (1997). Section 803(c)(4) provides the administrative mechanism by which the CRJs can issue such interpretations. --------------------------------------------------------------------------- \3\ As explained above, Sirius XM argues that the CRJs' power to ``modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frustrate the proper implementation of such determination'' provides an alternate source of authority to clarify the SDARS I regulations. 17 U.S.C. 803(c)(4). SoundExchange contends, however, that the definition of ``Gross Revenues'' is not a ``term.'' For its part, the district court concluded that the definition was a term. SoundExchange, 2014 WL 4219591 at *5 (``Neither party is asking for a change to rates; only a clarification of terms.''). The Register need not resolve this issue, because the CRJs' separate power to ``correct any technical . . . errors'' provides a sufficient basis for the CRJs to act in this case. For the same reason, the Register need not address whether the APA separately authorizes the CRJs to clarify the SDARS I regulations. --------------------------------------------------------------------------- This understanding of section 803(c)(4) also comports with the Register's prior reading of that provision. Specifically, the Register has construed section 803(c)(4) as providing the CRJs the authority to amend their regulations to conform with the Register's interpretation of the Copyright Act. In 2009, after the CRJs issued a determination setting the rates and terms of royalty payments for making and distribution of phonorecords of musical works under 17 U.S.C. 115, the Register exercised her statutory authority to correct certain legal errors in that determination. 74 FR 4537 (Jan. 6, 2009). In particular, the Register concluded that a number of regulatory terms that the CRJs had adopted were inconsistent with the Copyright Act, including certain terms related to digital phonorecord deliveries and the retroactivity of promotional royalty rates. See 73 FR at 4541-42. Although the Register lacked the authority actually to amend the regulations adopted by the CRJs, she concluded that the CRJs could ``codify the corrections identified and made herein by the Register'' by exercising their authority under section 803(c)(4). Id. at 4543. The CRJs subsequently relied on that authority to amend the regulations and excise the erroneous regulatory provisions. 74 FR 6832, 6833 (Feb. 11, 2009). The CRJs explained that doing so would ``clarify potential confusion facing users of the license at issue'' and ``promote an efficient administration of the applicable license.'' Id. These same rationales apply with equal force here. B. The CRJs' Continuing Jurisdiction Is Not Subject to Time Limits, and Extends to Both Current and Lapsed Rate Periods. The Register agrees with the parties that the CRJs' continuing jurisdiction authority is not subject to a time limit. Nothing in the text of section 803(c)(4) indicates a time limit. And, no other provision in Title 17 would otherwise impose a time limit on the CRJs' exercise of that authority. Furthermore, the scope of the CRJs' continuing jurisdiction authority is the same whether the terms at issue concern a current or lapsed rate period. Nothing in the text of section 803(c)(4), or any other provision in Title 17, differentiates between current and lapsed rate periods for purposes of the CRJs' exercise of continuing jurisdiction. April 8, 2015 Maria A. Pallante, Register of Copyrights and Director of the United States Copyright Office [FR Doc. 2015-10305 Filed 5-1-15; 8:45 am] BILLING CODE P
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TABLE E—U. S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, WORKFORCE INFORMATION
GRANTS TO STATES, PY 2015 VS PY 2014 ALLOTMENTS—Continued
State PY 2014 PY 2015 Difference % Difference
Utah ......................................................................................... 413,138 420,602 7,464 1.81
Vermont ................................................................................... 287,830 287,500 (330) 0.11
Virginia ..................................................................................... 759,585 765,965 6,380 0.84
Washington .............................................................................. 668,760 666,958 (1,802) 0.27
West Virginia ............................................................................ 342,636 341,935 (701) 0.20
Wisconsin ................................................................................. 618,083 619,893 1,810 0.29
Wyoming .................................................................................. 282,229 282,549 320 0.11
State Total ........................................................................ 31,823,200 31,823,200 0 0.00
Guam ....................................................................................... 93,090 93,090 0 0.00
Virgin Islands ........................................................................... 83,710 83,710 0 0.00
Outlying Areas Total ......................................................... 176,800 176,800 0 0.00
Portia Wu, questions to the Register of Copyrights I. Procedural Background
Assistant Secretary for Employment and for resolution. 17 U.S.C. 802(f)(1)(B).
Training. On January 24, 2008, the CRJs
On March 9, 2015, the CRJs, acting published final royalty rates and terms
[FR Doc. 2015–10328 Filed 5–1–15; 8:45 am]
pursuant to 17 U.S.C. 802(f)(1)(B), under the section 112(e) and 114
BILLING CODE 4510–FN–P
referred novel material questions of statutory licenses for the period 2007
substantive law to the Register, through 2012 for preexisting satellite
concerning the CRJs’ authority to issue digital audio radio services (‘‘SDARS
LIBRARY OF CONGRESS a clarifying interpretation of regulations I’’). 73 FR 4080 (Jan. 24, 2008).1 In that
Copyright Office adopted in a prior ratesetting proceeding, the CRJs set a royalty rate as
determination. On April 8, 2015, the a percentage of the ‘‘Gross Revenues’’ of
[Docket No. 2015–02] Register resolved those questions in a the satellite services. 73 FR at 4084. The
Memorandum Opinion that she definition of ‘‘Gross Revenues’’ adopted
Scope of the Copyright Royalty by the CRJs excluded several categories
transmitted to the CRJs. To provide the
Judges’ Continuing Jurisdiction of revenues received by satellite
public with notice of the decision
AGENCY: U.S. Copyright Office, Library rendered by the Register, the services, such as revenues from
of Congress. Memorandum Opinion is reproduced in channels and programming that are
ACTION: Final order. its entirety below. ‘‘exempt from any license requirement
or [are] separately licensed,’’ and
SUMMARY: The Copyright Royalty Judges Dated: April 28, 2015. revenues attributable to channels and
(‘‘CRJs’’), acting pursuant to statute, Maria A. Pallante, programming that are ‘‘offered for a
referred novel material questions of Register of Copyrights and Director of the separate charge’’ and ‘‘use only
substantive law to the Register of U.S. Copyright Office. incidental performances of sound
Copyrights for resolution. Those recordings.’’ 73 FR at 4102; 37 CFR
Before the U.S. Copyright Office Library 382.11 (2008) (paragraph (3)(vi)(B) & (D)
questions concerned the scope of the
CRJs’ authority, under the statutory of Congress Washington, DC 20559 of Gross Revenues definition).
grant of continuing jurisdiction over In the Matter of Determination of On April 17, 2013, the CRJs adjusted
ratemaking determinations, to issue a Rates and Terms for Preexisting the royalty rates and terms for satellite
clarifying interpretation of regulations Subscription Services and Satellite radio for the period 2013 through 2017
adopted pursuant to such a Digital Audio Radio Services (‘‘SDARS II’’). 78 FR 23054 (Apr. 17,
determination. The Register resolved 2013) as modified, 78 FR 31842 (May,
those questions in a written decision Docket No. 2006–1 CRB DSTRA (SDARS
28, 2013). In the course of that
that was transmitted to the CRJs. That I) proceeding, SoundExchange criticized
decision is reproduced below. MEMORANDUM OPINION ON A the manner in which Sirius XM had
DATES: Effective Date: April 8, 2015. NOVEL QUESTION OF LAW been excluding revenues in reliance on
FOR FURTHER INFORMATION CONTACT: the SDARS I regulations, including its
Stephen Ruwe, Assistant General In relation to the above-captioned practice of excluding revenues
Counsel, U.S. Copyright Office, P.O. Box proceeding before the Copyright Royalty attributable to sound recordings made
70400, Washington, DC 20024. Judges (‘‘CRJs’’ or ‘‘Judges’’), questions before February 15, 1972, which are
Telephone: (202) 707–8350. have arisen about the proper generally not subject to federal
SUPPLEMENTARY INFORMATION: The interpretation of 17 U.S.C. 803(c)(4), copyright protection, and thus do not
Copyright Royalty Judges are tasked which provides the CRJs with fall within the section 112(e) and 114
with determining and adjusting terms ‘‘continuing jurisdiction’’ in certain
circumstances to amend a written 1 The CRJs’ determination in SDARS I was
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and rates of royalty payments of
determination after it has issued. The appealed to the U.S. Court of Appeals for the
statutory licenses under the Copyright District of Columbia Circuit. The court affirmed the
Act. See 17 U.S.C. 801. If, in the course CRJs determined that these were novel determination in all but one respect, remanding to
of proceedings before the CRJs, novel material questions of substantive law the CRJs the single matter of specifying a royalty for
material questions of substantive law and, as required by section 802(f)(1)(B), the use of the section 112 statutory license.
referred them to the Register of SoundExchange, Inc. v. Librarian of Congress, 571
concerning the interpretation of F.3d 1220 (D.C. Cir. 2009). That last issue was
provisions of title 17 arise, the CRJs are Copyrights for resolution. The Register resolved by the CRJs in further proceedings. 75 FR
required by statute to refer those hereby resolves those referred questions. 5513 (Feb. 3, 2010).
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statutory licenses.2 78 FR at 23071. In Continuing jurisdiction.— The Copyright II. Summary of Parties’ Arguments
SDARS II, the CRJs maintained the Royalty Judges may issue an amendment to
a written determination to correct any The parties’ dispute is focused on
exclusions from gross revenues it had around the first referred question. The
technical or clerical errors in the
adopted in SDARS I, but added a new determination or to modify the terms, but not Register understands this question to
provision specifically addressing the the rates, of royalty payments in response to ask, in essence, whether the CRJs have
proper treatment of pre-1972 sound unforeseen circumstances that would the power to issue a clarifying
recordings. 78 FR at 23079–81. frustrate the proper implementation of such interpretation of their regulations.
After the CRJs’ determination in determination. Such amendment shall be set SoundExchange asserts that the
SDARS II, SoundExchange brought suit forth in a written addendum to the
determination that shall be distributed to the
provision cited by the district court, 17
against Sirius XM on August 25, 2013 in U.S.C. 803(c)(4), does not give the CRJs
participants of the proceeding and shall be
the U.S. District Court for the District of published in the Federal Register. authority to clarify the regulations at
Columbia, alleging that for the time issue here. First, SoundExchange argues
period covered by SDARS I (2007 17 U.S.C. 803(c)(4). The district court
that resolution of legal ambiguity cannot
through 2012), Sirius XM had concluded that ‘‘[n]either party is asking
properly be characterized as a correction
underpaid royalties by improperly for a change to rates; only a clarification
of a ‘‘technical or clerical’’ error.
excluding certain revenues from its of the terms,’’ and that such a
clarification ‘‘is within the [CRJs’] Second, SoundExchange urges that the
gross revenue calculations, including separate authority in section 803(c)(4) to
revenues attributable to pre-1972 sound continuing jurisdiction.’’
SoundExchange, 2014 WL 4219591 at ‘‘modify the terms, but not the rates, of
recordings. SoundExchange, Inc. v. royalty payments in response to
Sirius XM Radio, Inc.,—F. Supp. 3d —, *5. Accordingly, the court stayed its
proceedings pending a decision by the unforeseen circumstances that would
2014 WL 4219591, *3-*5 (D.D.C. Aug. frustrate the proper implementation of
26, 2014). CRJs clarifying the meaning of the
regulations defining Gross Revenues. such determination’’ does not apply to
Rather than seeking to have the On November 24, 2014, this case. In particular, it argues that any
district court to resolve the dispute SoundExchange petitioned the CRJs to modification of the definition of ‘‘Gross
itself, Sirius XM asked the court to refer clarify the definition of Gross Revenues Revenues’’ would affect the rates of
the issues to the CRJs under the adopted in SDARS I. On December 9, royalty payments, not the terms under
administrative law doctrine of ‘‘primary 2014, the CRJs reopened the SDARS I which those payments are made, and
jurisdiction’’ because they ‘‘involve proceedings, observing that that the definition of ‘‘Gross Revenues’’
interpreting and applying the [CRJs’] SoundExchange’s petition raised a is accordingly not a ‘‘term.’’ In addition,
regulations on gross revenues.’’ Id. at *3. threshold jurisdictional question that SoundExchange asserts that Sirius XM’s
As explained by the DC Circuit, under potentially constituted a novel material decision to exclude certain revenues
that doctrine, when a court is question of substantive law that, by from its gross revenue calculation was
‘‘adjudicating a claim [that] would statute, must be referred to the Register. not an ‘‘unforeseen circumstance[ ]’’
‘require[] the resolution of issues which, In the order reopening proceedings, the that would ‘‘frustrate the proper
under a regulatory scheme, have been CRJs asked the parties to file briefs implementation of [the] determination.’’
placed within the special competence of addressing the CRJs’ authority to issue Sirius XM, in contrast, asserts that
an administrative body,’’’ the court can a clarifying interpretation of its section 803(c)(4) empowers the CRJs to
‘‘suspend the judicial process ‘pending regulations. Sirius XM took the position interpret the SDARS I regulations, and
referral of such issues to the that the Copyright Act or, in the amend them to prevent an interpretation
administrative body for its view.’’’ alternative, the Administrative that is at odds with copyright law or the
United States v. Philip Morris USA Inc., Procedure Act (‘‘APA’’), gave the CRJs intent of its earlier determination.
686 F.3d 832, 837 (D.C. Cir. 2012) such authority. SoundExchange According to Sirius XM, such an
(quoting United States v. W. Pac. R.R. disagreed, arguing that no statute gave amendment can either be considered a
Co., 352 U.S. 59, 64 (1956)). the CRJs authority to clarify the ‘‘technical amendment’’ that prevents a
SoundExchange disagreed that the regulations, and that the case should mistaken interpretation of their
doctrine applied, responding that the therefore be returned to the district determination, or a ‘‘modification’’ of
relevant regulatory definitions were court for resolution. the terms of the royalty payment in
unambiguous, and that the district court After considering the parties’ response to unforeseen circumstances.
should therefore decide the case. responses, on March 9, 2015, the CRJs, In response to SoundExchange’s point
SoundExchange, 2014 WL 4219591 at acting pursuant to 17 U.S.C. 802(f)(1)(B), that a modification of the Gross
*4. referred the following novel material Revenues definition would constitute an
The district court agreed with Sirius questions of substantive law to the impermissible change in rates, Sirius
XM, concluding that ‘‘the gross revenue Register, enclosing the briefs the parties XM urges that ‘‘rates’’ refers only to the
exclusions are ambiguous and do not, had filed: percentage-of-revenue rate in the CRJs’
on their face, make clear whether Sirius (1) Do the Judges have jurisdiction determination, and ‘‘terms’’ refers
XM’s approaches were permissible under title 17, or authority otherwise, to broadly to ‘‘other aspects of the
under the regulations,’’ and that referral interpret the regulations adopted in the determination required to implement
to the CRJs under the primary captioned proceeding? the rates.’’
jurisdiction doctrine was therefore (2) If the Judges have authority to In the alternative, Sirius XM argues
appropriate. Id. In response to interpret regulations adopted in the that if section 803(c)(4) did not give the
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SoundExchange’s related concern that course of a rate determination CRJs sufficient authority to clarify the
the CRJs lacked authority to resolve the proceeding, is that authority time- meaning of the regulations, the APA
issues, the district court pointed to 17 limited? independently authorizes the CRJs to do
U.S.C. 803(c)(4). Id. at *5. Section (3) Would the answer regarding the so. Sirius XM notes that section
803(c)(4) provides as follows: Judges’ jurisdiction or authority be 803(a)(1) instructs the CRJs to act in
different if the terms at issue regulated accordance with the APA, and that the
2 See generally U.S. Copyright Office, Copyright a current, as opposed to a lapsed, rate APA includes a provision authorizing
and the Music Marketplace 53–54 (Feb. 2014). period? agencies to ‘‘issue a declaratory order to
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terminate a controversy or remove a correction is ‘‘technical’’ in the sense regulatory provisions. 74 FR 6832, 6833
uncertainty’’ as part of formal that it merely clarifies existing (Feb. 11, 2009). The CRJs explained that
adjudications. 5 U.S.C. 554(e). regulations to ensure they are applied in doing so would ‘‘clarify potential
SoundExchange disputes that the manner intended by the CRJs. As the confusion facing users of the license at
contention on the ground that, within district court appreciated, the CRJs are issue’’ and ‘‘promote an efficient
the meaning of the APA, the CRJs in the best position to provide this type administration of the applicable
engage in rulemakings, not of interpretive guidance, given their license.’’ Id. These same rationales
adjudications, and therefore 5 U.S.C. familiarity with the extensive record on apply with equal force here.
554(e) does not apply. which the regulations are based and
their general ‘‘technical and policy B. The CRJs’ Continuing Jurisdiction Is
With respect to the remaining two
expertise.’’ SoundExchange, 2014 WL Not Subject to Time Limits, and Extends
questions, the parties agree that if the
4219591 at *4. This approach is also to Both Current and Lapsed Rate
CRJs have authority to interpret
consistent with general principles of Periods.
regulations adopted in the course of a
rate determination proceeding, that administrative law, under which courts The Register agrees with the parties
authority would not be time limited. In regularly defer to agencies’ reasonable that the CRJs’ continuing jurisdiction
addition, they agree that the CRJs’ interpretations of ambiguous authority is not subject to a time limit.
continuing jurisdiction does not depend regulations. See Auer v. Robbins, 519 Nothing in the text of section 803(c)(4)
on whether a rate period is current or U.S. 452, 461 (1997). Section 803(c)(4) indicates a time limit. And, no other
lapsed. provides the administrative mechanism provision in Title 17 would otherwise
by which the CRJs can issue such impose a time limit on the CRJs’
III. Register’s Determination interpretations. exercise of that authority. Furthermore,
Having considered the relevant This understanding of section the scope of the CRJs’ continuing
statutory language and the input from 803(c)(4) also comports with the jurisdiction authority is the same
the parties, the Register determines that Register’s prior reading of that whether the terms at issue concern a
the CRJs have jurisdiction under section provision. Specifically, the Register has current or lapsed rate period. Nothing in
803(c)(4) of Title 17 to clarify the construed section 803(c)(4) as providing the text of section 803(c)(4), or any other
meaning of the regulations adopted in the CRJs the authority to amend their provision in Title 17, differentiates
SDARS I. The Register also determines regulations to conform with the between current and lapsed rate periods
that this authority is not time-limited, Register’s interpretation of the for purposes of the CRJs’ exercise of
and that the CRJs’ authority is the same Copyright Act. In 2009, after the CRJs continuing jurisdiction.
whether the regulations at issue apply to issued a determination setting the rates April 8, 2015
a current or lapsed rate period. and terms of royalty payments for Maria A. Pallante,
making and distribution of Register of Copyrights and Director of the
A. The CRJs’ Continuing Jurisdiction phonorecords of musical works under United States Copyright Office
Encompasses the Authority to Issue 17 U.S.C. 115, the Register exercised her [FR Doc. 2015–10305 Filed 5–1–15; 8:45 am]
Clarifying Amendments to Written statutory authority to correct certain BILLING CODE P
Determinations. legal errors in that determination. 74 FR
As noted above, under section 4537 (Jan. 6, 2009). In particular, the
803(c)(4), the CRJs ‘‘may issue an Register concluded that a number of
regulatory terms that the CRJs had NUCLEAR REGULATORY
amendment to a written determination
adopted were inconsistent with the COMMISSION
to correct any technical or clerical errors
in the determination or to modify the Copyright Act, including certain terms [NRC–2015–0001]
terms, but not the rates, of royalty related to digital phonorecord deliveries
payments in response to unforeseen and the retroactivity of promotional Sunshine Act Meeting Notice
circumstances that would frustrate the royalty rates. See 73 FR at 4541–42.
proper implementation of such Although the Register lacked the DATE: April 27, May 4, 11, 18, 25, June
determination.’’ 17 U.S.C. 803(c)(4). As authority actually to amend the 1, 8, 2015.
an initial matter, the Register accepts regulations adopted by the CRJs, she PLACE: Commissioners’ Conference
the district court’s conclusion that the concluded that the CRJs could ‘‘codify Room, 11555 Rockville Pike, Rockville,
meaning of the relevant regulatory the corrections identified and made Maryland.
provisions, and the application of those herein by the Register’’ by exercising STATUS: Public and Closed.
provisions to the particular fact pattern their authority under section 803(c)(4).
presented here, is uncertain. See Id. at 4543. The CRJs subsequently Week of April 27, 2015
SoundExchange, 2014 WL 4219591, at relied on that authority to amend the Thursday, April 30, 2015
*4 (‘‘[T]he gross revenue exclusions are regulations and excise the erroneous
8:55 a.m.
ambiguous and do not, on their face,
circumstances that would frustrate the proper Affirmation Session (Tentative)
make clear whether Sirius XM’s implementation of such determination’’ provides an DTE Electric Co. (Fermi Nuclear
approaches were permissible under the alternate source of authority to clarify the SDARS Power Plant, Unit 3), Docket No.
regulations.’’). I regulations. 17 U.S.C. 803(c)(4). SoundExchange
contends, however, that the definition of ‘‘Gross 52–033 (Public Meeting) (Tentative)
The Register concludes that the CRJs’
Revenues’’ is not a ‘‘term.’’ For its part, the district This meeting will be webcast live at
power to ‘‘correct any technical . . .
mstockstill on DSK4VPTVN1PROD with NOTICES
court concluded that the definition was a term. the Web address—http://www.nrc.gov/.
errors’’ in determinations encompasses SoundExchange, 2014 WL 4219591 at *5 (‘‘Neither 9 a.m.
the power to resolve ambiguity in the party is asking for a change to rates; only a
clarification of terms.’’). The Register need not Briefing on the Status of Lessons
meaning of regulations adopted
resolve this issue, because the CRJs’ separate power Learned from the Fukushima Dai-
pursuant to those determinations.3 Such to ‘‘correct any technical . . . errors’’ provides a ichi Accident (Public Meeting)
sufficient basis for the CRJs to act in this case. For
3 As explained above, Sirius XM argues that the the same reason, the Register need not address
(Contact: Jack Davis, 301—415–223)
CRJs’ power to ‘‘modify the terms, but not the rates, whether the APA separately authorizes the CRJs to This meeting will be webcast live at
of royalty payments in response to unforeseen clarify the SDARS I regulations. the Web address—http://www.nrc.gov/.
VerDate Sep<11>2014 19:40 May 01, 2015 Jkt 235001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\04MYN1.SGM 04MYN1](https://thefederalregister.org/doc/80_FR_25418/page/3.svg)
Document Created: 2018-02-21 10:22:35
Document Modified: 2018-02-21 10:22:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Final order. | |
| Dates | Effective Date: April 8, 2015. | |
| Contact | Stephen Ruwe, Assistant General Counsel, U.S. Copyright Office, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8350. | |
| FR Citation | 80 FR 25333 |
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