[Federal Register: November 20, 2001 (Volume 66, Number 224)]
[Notices]
[Page 58179-58180]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2001-8 CARP CD 98-99]
Distribution of 1998 and 1999 Cable Royalty Funds
AGENCY: Copyright Office, Library of Congress.
ACTION: Request for comments and schedule.
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SUMMARY: The Copyright Office of the Library of Congress is announcing
the schedule for a Phase I CARP proceeding to distribute 1998 cable
royalty funds collected under section 111, 17 U.S.C. In addition, the
Office is seeking comment as to the advisability of consolidating the
1998 Phase I distribution proceeding with the Phase I distribution
proceeding for the 1999 cable royalty funds.
DATES: Comments on consolidation are due no later than December 20,
2001.
ADDRESSES: If hand delivered, parties shall deliver an original and
five copies of all comments on consolidation to: Office of the
Copyright General Counsel, James Madison Memorial Building, First and
Independence Avenue, SE., Room LM-403, Washington, DC 20540. If sent by
mail, comments should be addressed to: Copyright Arbitration Royalty
Panel (CARP), PO Box 70977, Southwest Station, Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
William J. Roberts, Jr., Senior Attorney for Compulsory Licenses,
Copyright Arbitration Royalty Panel (CARP), PO Box 70977, Southwest
Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax:
(202) 252-3423.
SUPPLEMENTARY INFORMATION: Each year cable systems submit royalties to
the Copyright Office for the retransmission to their subscribers of
over-the-air broadcast signals. These royalties are, in turn,
distributed in one of two ways to copyright owners whose works were
included in a retransmission of an over-the-air broadcast signal and
who timely filed a claim for royalties with the Copyright Office. The
copyright owners may either negotiate the terms of a settlement as to
the division of the royalty funds, or the Librarian of Congress may
convene a Copyright Arbitration Royalty Panel (``CARP'') to determine
the distribution of the royalty fees that remain in controversy. See 17
U.S.C. chapter 8.
On September 6, 2000, the Library of Congress published a Notice in
the Federal Register seeking comment as to the existence of
controversies for the distribution of 1998 cable royalties. 65 FR 54077
(September 6, 2000). The parties to the distribution reported both
Phase I and Phase II controversies and filed their Notices of Intent to
Participate. On October 2, 2001, the Library published a Notice in the
Federal Register seeking comments as to the existence of controversies
for the distribution of 1999 cable royalties. 66 FR 50219 (October 2,
2001). The parties to this distribution reported Phase I and Phase II
controversies as well and filed their Notices of Intent to Participate.
Both proceedings are now eligible for proceedings before a CARP.
Request for Comments
It is the preliminary view of the Library that consolidating the
1998 cable Phase I distribution proceeding with the 1999 cable Phase I
distribution proceeding will not overburden a CARP and will promote
administrative efficiency. We seek comment as to whether consolidation
is the best course of action and, if not, how the Library should
proceed with the 1999 Phase I cable distribution.
Schedule of the Proceeding
The Library is announcing the schedule of the proceeding for the
Phase I distribution of 1998 cable royalties. If, after consideration
of the comments, the Library determines that consolidation is
appropriate, the Library will issue an Order to that effect and the
schedule described below will apply to the consolidated proceeding.
A. Commencement of the Proceeding
A royalty distribution proceeding under part 251 of 37 CFR is
divided into two essential phases. The first is the 45-day
precontroversy discovery phase, during which the parties exchange their
written direct cases, exchange their documentation and evidence in
support of their written direct cases, and engage in the pre-CARP
motions practice described in Sec. 251.45. The other phase is the
proceeding before the CARP itself, including the presentation of
evidence and the submission of proposed findings by all of the
participating parties. The proceeding before the CARP may be in the
form of hearings or, in accordance with the requirements of
Sec. 251.41(b) of the rules, the proceeding may be conducted solely on
the basis of written pleadings.
B. Precontroversy Discovery Schedule and Procedures
Any party that has filed a Notice of Intent to Participate in the
Phase I 1998 cable distribution proceeding is entitled to participate
in the precontroversy discovery period. Each party may request of an
opposing party nonprivileged documents underlying facts asserted in the
opposing party's written direct case. The precontroversy discovery
period is limited to discovery of documents related to written direct
cases and any amendments made during the period.
The following is the precontroversy discovery schedule:
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Action Deadline
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Filing of Written Direct Cases........... April 1, 2002.
Requests for Underlying Documents Related April 10, 2002.
to Written Direct Cases.
Responses to Requests for Underlying April 17, 2002.
Documents.
Completion of Document Production........ April 23, 2002.
Follow-up Requests for Underlying April 29, 2002.
Documents.
Responses to Follow-up Requests.......... May 3, 2002.
Motions Related to Document Production... May 8, 2002.
Production of Documents in Response to May 10, 2002.
Follow-up Requests.
All Other Motions, Petitions, and May 15, 2002.
Objections.
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The precontroversy discovery period, as specified by Sec. 251.45(b)
of the rules, will begin on April 1, 2002, with the filing of written
direct cases by each party. Each party in this proceeding who has filed
a Notice of Intent to Participate must file a written direct case on
the date prescribed above. Failure to submit a timely filed written
direct case will result in dismissal of that party's claim. Parties
must comply with the form and content of written direct cases as
prescribed in 37 CFR 251.43. Each party to the proceeding must deliver
a complete copy of its written direct case to each of the other parties
to the proceeding, as well as file a complete copy with the Copyright
Office by close of business on April 1, 2002, the first day of the 45-
day period.
After the filing of the written direct cases, document production
will proceed according to the above-described schedule. Each party may
request underlying documents related to each of the other parties'
written direct cases by April 10, 2002, and responses to those requests
are due by April 17, 2002. Documents which are produced as a result of
the requests must be exchanged by April 23, 2002. It is important to
note that all initial document requests must be made by the April 10,
2002 deadline. Thus, for example, if one party asserts facts that
expressly rely on the results of a particular study that was not
included in the written direct case, another party desiring production
of that study must make its request by April 10, 2002; otherwise, the
requesting party is not entitled to production of the study.
The precontroversy discovery schedule also establishes deadlines
for follow-up discovery requests. Follow-up requests are due by April
29, 2001, and responses to those requests are due by May 3, 2001. Any
documentation produced as a result of a follow-up request must be
exchanged by May 10, 2002. An example of a follow-up request would be
as follows. In the above example, one party expressly relies on the
results of a particular study which is not included in its written
direct case. As noted above, a party desiring production of that study
or survey must make its request by April 10, 2002. If, after receiving
a copy of the study, the reviewing party determines that the study
heavily relies on the results of a statistical survey, it would be
appropriate for that party to make a follow-up request for production
of the statistical survey by the April 29, 2002, deadline. Again,
failure to make a timely follow-up request would waive the requesting
party's right to request production of the survey.
In addition to the deadlines for document requests and production,
there are two deadlines for the filing of precontroversy motions.
Motions related to document production must be filed by May 8, 2002.
Typically, these motions are motions to compel production of requested
documents for failure to produce them, but they may also be motions for
protective orders. Finally, all other motions, petitions and objections
must be filed by May 15, 2002, the final day of the 45-day
precontroversy discovery period. These motions, petitions, and
objections include, for example, petitions to dispense with formal
hearings under Sec. 251.41(b).
Due to the time limitations between the procedural steps of the
precontroversy discovery schedule, we are requiring that all discovery
requests and responses to such requests be served by hand or fax on the
party to whom such response or request is directed. Filing of requests
and responses with the Copyright Office is neither required nor
encouraged.
Filing and service of all precontroversy motions, petitions,
objections, oppositions, and replies shall be as follows. In order to
be considered properly filed with the Librarian and/or Copyright
Office, all pleadings must be delivered to the Copyright Office no
later than 5 p.m. of the filing deadline date. Parties may deliver the
pleadings to: Office of the Register of Copyrights, Room LM-403, James
Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC
20540; or alternatively, parties may send their pleadings by Federal
Express to: Copyright Arbitration Royalty Panel (CARP), CARP
Specialist, (Tel. 202-707-8380), Federal Express, 208 Second Street,
SE., Washington, DC 20003, provided that the filing reaches the
Copyright Office by the deadline. The Office cautions parties to use
only the Federal Express address listed in this Order, to include the
telephone number of the Office, and to direct the package to the
attention of the CARP Specialist. The Federal Express office will
notify the Copyright Office upon receipt of a properly addressed
package and the Copyright Office will make arrangements to pick up the
package the same day. Under no circumstances will the Office make
arrangements to retrieve a package from any other Federal Express
location or track a misdirected package. Each party bears the
responsibility for insuring that the filings are in the Copyright
Office by the deadline.
The form and content of all motions, petitions, objections,
oppositions, and replies filed with the Office must be in compliance
with Secs. 251.44(b)-(e). As provided in Sec. 251.45(b), oppositions to
any motions or petitions must be filed with the Office no later than
seven business days from the date of filing of such motion or petition.
Replies are due five business days from the date of filing of such
oppositions. Service of all motions, petitions, objections,
oppositions, and replies must be made on counsel or the parties by
means no slower than overnight express mail on the same day the
pleading is filed.
C. Initiation of Arbitration
The 180-day arbitration period will be initiated on July 15, 2002.
The schedule of the arbitration proceeding will be established by the
CARP after the three arbitrators have been selected.
Dated: November 15, 2001.
David O. Carson,
General Counsel.
[FR Doc. 01-28996 Filed 11-19-01; 8:45 am]
BILLING CODE 1410-33-P