[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Notices]
[Pages 58179-58180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28996]


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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:

[[Page 58180]]



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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