[Federal Register Volume 75, Number 53 (Friday, March 19, 2010)]
[Notices]
[Pages 13306-13310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5806]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
[Docket No. RF 2009-1]
Copyright Royalty Judges' Authority to Subpoena a Nonparticipant
to Appear and Give Testimony or to Produce and Permit Inspection of
Documents or Tangible Things
AGENCY: Copyright Office, Library of Congress.
ACTION: Final order.
-----------------------------------------------------------------------
SUMMARY: The Copyright Royalty Judges, acting pursuant to statute,
referred a material question of substantive law to the Register of
Copyrights concerning their authority to subpoena a nonparticipant to
appear and give testimony or to produce and permit inspection of
documents or tangible things. The Register of Copyrights responded by
delivering a Memorandum Opinion to the Copyright Royalty Board on
February 23, 2010.
DATES: Effective Date: February 23, 2010.
FOR FURTHER INFORMATION CONTACT: Tanya Sandros, Deputy General Counsel,
or Stephen Ruwe, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.
SUPPLEMENTARY INFORMATION: In the Copyright Royalty and Distribution
Reform Act of 2004, Congress amended Title 17 to replace the copyright
arbitration royalty panels with the Copyright Royalty Judges
(``CRJs''). One of the functions of the CRJs is to make determinations
and adjustments of reasonable terms and rates of royalty payments as
provided in sections 112(e), 114, 115, 116, 118, 119 and 1004 of the
Copyright Act. The CRJs have the authority to request from the Register
of Copyrights (``Register'') an interpretation of any material question
of substantive law that relates to the construction of provisions of
Title 17 and arises during the proceeding before the CRJs. See 17
U.S.C. 802(f)(1)(A)(ii).
On January 28, 2010, the CRJs delivered to the Register an Order
referring a material question of substantive law for determination by
the Register: ``Whether the Copyright Royalty Judges have authority
under the Copyright Act to subpoena a nonparticipant to appear and give
testimony or to produce and permit inspection of documents or tangible
things?'' The CRJs also delivered to the Register the briefs filed with
the CRJs by RealNetworks, Inc., Live365, Inc., SoundExchange, Inc., CBS
Interactive, Inc., Pandora Media, Inc., and Slacker, Inc. in connection
with a motion seeking the issuance of subpoenas to nonparty witnesses,
as well as the transcripts of a hearing regarding consideration of that
motion.
The Order stated that the CRJs were requesting an interpretation of
a material question of substantive law pursuant to 17 U.S.C.
802(f)(1)(A)(ii), which allows a 14-day response period. However,
section 802(f)(1)(B)(i) provides that when the CRJs request a decision
by the Register on ``a novel material question of substantive law
concerning an interpretation of those provisions of this title that are
the subject of the proceeding'' (emphasis added), the Register shall
transmit her decision within a 30-day response period. A novel question
of law is one that ``has not been determined in prior decisions,
determinations, and rulings described in section 803(a).'' Id. On
February 11, the Register advised the CRJs that she had determined that
the material question of law that is the subject of the Order is novel
because it has not been determined in prior decisions, determinations,
and rulings described in 17 U.S.C. 803(a). See 17 U.S.C.
802(f)(1)(B)(ii).
On February 23, the Register responded in a Memorandum Opinion to
the CRJs that addressed the novel material question of law. To provide
the public with notice of the decision rendered by the Register, the
Memorandum Opinion is reproduced in its entirety, below. The timely
delivery of the Register's response requires that ``the Copyright
Royalty Judges shall apply the legal determinations embodied in the
decision of the Register of Copyrights in resolving material questions
of substantive law.'' See 17 U.S.C. 802(f)(1)(B)(I).
[[Page 13307]]
Dated: March 11, 2010
David O. Carson,
General Counsel.
Before the
U.S. Copyright Office
Library of Congress
Washington, D.C. 20559
In the Matter of
Digital Performance Right in Sound
Recordings and Ephemeral Recordings
Docket No. 2009-1
CRB Webcasting III
----------------------------------------
MEMORANDUM OPINION
ON MATERIAL QUESTIONS OF SUBSTANTIVE LAW
I. Procedural Background
On January 28, 2010, pursuant to 17 U.S.C. 802(f)(1), the Copyright
Royalty Judges (``CRJs'') referred to the Register of Copyrights a
novel material question of substantive law that has arisen in this
proceeding. The Copyright Royalty Judges included briefs that had been
submitted in December 2009 and January 2010 by the parties to the
proceeding and transcripts of a hearing held on January 12, 2010,
relating to the authority of the CRJs to subpoena a nonparticipant in a
proceeding.
After recounting the relevant statutory provisions of Chapter 8 of
Title 17, the CRJs posed the following novel material question of
substantive law:
QUESTION: Whether the Copyright Royalty Judges have authority
under the Copyright Act to subpoena a nonparticipant to appear and
give testimony or to produce and permit inspection of documents or
tangible things?
As required by 17 U.S.C. 802(f)(1)(B)(i), the Register hereby provides
her response to the CRJs.
II. Statutory Authority in Chapter 8 of Title 17.
In 2004, Congress passed the Copyright Royalty and Distribution
Reform Act (``CRDRA''). This legislation created the CRJs and provides,
in 17 U.S.C. 803(b)(6)(C)(ix), that:
In proceedings to determine royalty rates, the Copyright
Royalty Judges may issue a subpoena commanding a participant or
witness to appear and give testimony, or to produce and permit
inspection of documents or tangible things, if the Copyright Royalty
Judges' resolution of the proceeding would be substantially impaired
by the absence of such testimony or production of documents or
tangible things. Such subpoena shall specify with reasonable
particularity the materials to be produced or the scope and nature
of the required testimony. Nothing in this clause shall preclude the
Copyright Royalty Judges from requesting the production by a
nonparticipant of information or materials relevant to the
resolution by the Copyright Royalty Judges of a material issue of
fact.
III. Summary of Parties' Arguments
On December 10, 2009, RealNetworks, Inc. (``RealNetworks'') filed a
motion for issuance of subpoenas directing Pandora Media, Inc.,
Slacker, Inc., and CBS Interactive, Inc.(``CBSi''), who are not
participants in the proceeding, to present corporate representative
witnesses competent to present documents and testify at deposition with
respect to factual assertions included in the written direct statement
of SoundExchange, Inc. (``SoundExchange'') as to which SoundExchange
has no first hand knowledge. RealNetworks' motion\1\ focuses virtually
all of its attention on the application of the CRJs' regulations
addressing the discovery stages of a determination. In doing so, it
does not attempt to analyze who may be the proper subject of a subpoena
under the statute.
---------------------------------------------------------------------------
\1\ Another participant, Live365, Inc. (``Live365'') separately
filed a brief in which it adopted the relevant arguments in
RealNetworks' initial motion.
---------------------------------------------------------------------------
In response to RealNetworks' motion, SoundExchange\2\ argues that
section 803(b)(6)(C)(ix) treats subpoenas to ``participants and
witnesses'' separately from requests to ``nonparticipants.''\3\ In
SoundExchange's view, ``with respect to participants and witnesses,
[the statute] states that the CRJs `may issue a subpoena commanding a
participant or witness to appear and give testimony, or to produce and
permit inspection of documents or tangible things,' if certain
conditions are met.''\4\ SoundExchange argues that the CRJs could,
under certain conditions, issue a subpoena in a given proceeding to
either a participant or a witness whose testimony has been previously
submitted to the CRJs in the given proceeding.\5\ But, under
SoundExchange's view, the CRJs may not issue subpoenas to persons who
are neither participants nor witnesses who have previously submitted
testimony in the given proceeding. SoundExchange asserts that ``with
respect to seeking information from nonparticipants like Pandora,
Slacker and CBS Interactive, Sec. 803(b)(6)(C)(ix) establishes a
different standard that limits the CRJs' power. It does not include
them among those individuals who may be subpoenaed. Rather, it provides
that `[n]othing in this clause shall preclude the Copyright Royalty
Judges from requesting the production by a nonparticipant of
information or materials relevant to the resolution by the Copyright
Royalty Judges of a material issue of fact.''' When asked by the Chief
Copyright Royalty Judge at the hearing on the motion whether it was
aware of any other federal statutes that provide for a power or duty
but provide no mechanism for enforcement, SoundExchange stated that it
was not aware of any such statute. SoundExchange further opined that
the only enforcement mechanism available to the CRJs in the event of
noncompliance with a subpoena would be the CRJs' authority to impose
sanctions, such as striking testimony, when the subpoena was directed
to a participant or a witness whose testimony has been previously
submitted by a participant. SoundExchange observed that this ``suggests
a reason why this statute should be interpreted to mean the Court [sic]
can issue subpoenas to parties, participants and witnesses, but not to
nonparticipants.''\6\
---------------------------------------------------------------------------
\2\ Pandora Media, Inc., Slacker, Inc., and CBSi adopted the
relevant arguments SoundExchange's brief.
\3\ In distinguishing between ``participants and witnesses'' on
one hand, and ``nonparticipants'' on the other, SoundExchange
apparently does not recognize that the ``witnesses'' that it
includes within the group of ``participants and witnesses'' are in
fact nonparticipants. In the parlance of CRJ proceedings, a
``participant'' is a party to the proceeding. See 17 U.S.C.
Sec. Sec. 801(b)(7)(A), 802(f)(1)(A)(ii), 802(f)(1)(B),
802(f)(1)(D), 803(b)(1)(A)(ii), 803(b)(2)(C), 803(b)(3)(A),
803(b)(4), 803(b)(5), 803(b)(6)(C), 803(c)(2), 803(c)(4), 803(d)(1),
803(d)(2)(B), 805(1)
\4\ SoundExchange cites to the full text of section
803(b)(6)(C)(ix), which provides that CRJs may only issue subpoenas
where ``resolution of the proceeding would be substantially impaired
by the absence of such testimony or production of documents or
tangible things.''
\5\ While SoundExchange, in its written brief, initially argued
that the CRJs could only subpoena ``participants and witnesses'' and
that they could not subpoena nonparticipants, at the January 12,
2010, hearing, SoundExchange conceded that the statute's grant of
authority to subpoena a ``witness'' includes those who are not
necessarily participants, provided they have previously submitted
testimony as a witness in the relevant proceeding. Hearing
Transcript at 76.
\6\ Transcript at 72-74.
---------------------------------------------------------------------------
Having put forth an analysis of section 803(b)(6)(C)(ix) that
involves a distinction between ``participants and witnesses'' on the
one hand and ``nonparticipants'' on the other, SoundExchange cites to
Bobreski v. E.P.A, 284 F. Supp.2d 67,76 (D.D.C. 2003) and United States
v. Iannone, 610 F.2d 943, 945-47 (D.C. Cir. 1979) for the proposition
that subpoena power should not be found to exist absent an express
statutory grant. SoundExchange then cites to Peters v.United States,
853 F.2d 692, 696 (9th Cir. 1988), asserting that even where an agency
has broad
[[Page 13308]]
subpoena and investigatory authority, courts should be reluctant to
assume the existence of authority to issue third party subpoenas where
Congress has not specifically provided for them. SoundExchange also
argues that if the CRJs were granted the authority to issue subpoenas
to nonparticipants, then the last sentence of 803(b)(6)(C)(ix), which
authorizes them to request information from nonparticipants, would be
unnecessary, and that such an interpretation would violate an accepted
principle of statutory construction against surplusage.\7\ RealNetworks
and Live365 assert that section 803(b)(6)(C)(ix) authorizes the
issuance of subpoenas to nonparticipants and that neither the statute
nor regulations limit this power only to participants in a proceeding.
Unlike the briefs supporting the initial motion, their reply briefs
focus directly on whether the CRJs possess authority to issue subpoenas
to persons who are neither participants in the proceeding nor persons
who the participants have designated to testify. In its reply brief,
and in the January 12 hearing, RealNetworks argues that the plain
language of 803(b)(6)(C)(ix) demonstrates that the CRJs have power to
subpoena ``witnesses.'' It asserts that SoundExchange's citations to
case law assessing agencies' subpoena authority when Congress has not
provided for such power through plain language are therefore
irrelevant. RealNetworks argues that SoundExchange's analysis of
section 803(b)(6)(C)(ix) is unduly cramped and that the plain text of
the statute undermines SoundExchange's argument that ``witness'' should
be understood to mean only a witness previously designated by a
participant to give evidence in court. RealNetworks asserts that the
common meaning of ``witness'' and ``testimony'' support its proposed
plain language reading of the statute. RealNetworks also asserts that
the plain language and the legislative history of section
803(b)(6)(C)(ix) demonstrate that the CRJs have power to subpoena
``witnesses,'' not just a small subset of witnesses as SoundExchange
contends. RealNetworks offers that should the CRJs accept
SoundExchange's argument that the CRJs may only subpoena a witness
previously designated by a participant to give evidence, it would run
counter to language in the legislative history of the Copyright Royalty
and Distribution Reform Act of 2004 that explains that the subpoena
power was intended to prevent a party from circumscribing the type and
amount of evidence considered in a proceeding. H.R. Rep. No. 108-408,
at 33 (2004).
---------------------------------------------------------------------------
\7\ CBSi, separately filed a brief in which it adopted the
relevant arguments in SoundExchange's brief, and it reiterated many
of SoundExchange's arguments at the January 12, 2010, hearing.
---------------------------------------------------------------------------
At the hearing, CBSi pointed out that the legislative history
relied on by RealNetworks addresses proposed statutory language that
was markedly different, and much broader, than that which was
ultimately enacted by Congress.
RealNetworks' reply brief also points out that the last sentence in
section 803(b)(6)(C)(ix) does not create surplusage because the
authority to subpoena and the authority to request are not redundant,
especially when there are distinct threshold requirements for employing
the two differing actions. Under RealNetworks' analysis, the threshold
test for issuance of a subpoena to participants and witnesses is
substantial impairment, whereas the threshold test for a request for
information from nonparticipants is relevance.
In its reply brief, Live365 goes on to argue that if the CRJs'
subpoena power were limited to participants and witnesses who have
already submitted statements to the CRJs, the subpoena power would be
effectively meaningless since other provisions allow the CRJs to compel
testimony from parties and their witnesses. See 17 U.S.C.
803(b)(6)(C)(v)-(vii). Thus, according to Live 365, Congress must have
been contemplating the ability to compel testimony from nonparticipant
third parties.
IV. Register's Determination
A review of the written submissions and oral arguments offered by
the parties and third party witnesses who supported and opposed the
motion reveals that the question is not precisely whether the CRJs have
the authority to ``subpoena a nonparticipant,'' but rather whether the
CRJs have the authority to subpoena a person who is neither a
participant in the proceeding nor a witness whose testimony has been
submitted as part of a participant's written direct statement. While
SoundExchange's initial submission posited a distinction between
participants and witnesses on the one hand and nonparticipants on the
other hand, at the time of the hearing on the motion SoundExchange
refined its position to acknowledge that some nonparticipants may
nevertheless be ``witnesses'' for purposes of 17 U.S.C.
803(b)(6)(C)(ix). Specifically, SoundExchange acknowledged that the
CRJs have the authority to subpoena a nonparticipant whose testimony
has previously been submitted by a participant in the relevant
proceeding.\8\
---------------------------------------------------------------------------
\8\ SoundExchange acknowledges that ``there are times when some
of the witnesses aren't even under the control of a participant, and
so you would have to issue a subpoena.'' Hearing Transcript at 76.
---------------------------------------------------------------------------
SoundExchange's refinement of its position is more consistent with
the language of section 803(b)(6)(C)(ix), which empowers the CRJs to
``issue a subpoena commanding a participant or witness to appear.''
(Emphasis added). The question, then, is: who may be a ``witness'' for
purposes of section 803(b)(6)(C)(ix)?
In answering that question, one must look toward established canons
of statutory construction which dictate that ``the meaning of a statute
must, in the first instance, be sought in the language in which the act
is framed, and if that is plain, and if the law is within the
constitutional authority of the law-making body which passed it, the
sole function of the courts is to enforce it according to its terms.''
Caminetti v. United States, 242 U.S. 470, 485 (1917). The plain meaning
of the first sentence of this provision clearly authorizes the issuance
of subpoenas to participants. The plain meaning of the same sentence
also authorizes the CRJs to issue subpoenas to witnesses. Therefore, it
is evident that certain persons other than participants (i.e.
nonparticipants) may be subpoenaed, provided that they are
``witnesses.'' Unfortunately, this analysis does not answer the
critical question currently before the CRJs regarding whether the
authority to subpoena ``witnesses'' is, as SoundExchange and the
proposed subjects of subpoenas suggest, limited to witnesses whose
testimony has been filed as part of a participant's written direct
statement (a limited subset of nonparticipants), or whether the
authority to subpoena witnesses includes any prospective witnesses,
which would include all nonparticipants - subject to the other criteria
regarding the probative value of their evidence.\9\
---------------------------------------------------------------------------
\9\ With regard to both participants as well as witnesses, the
CRJs may only issue a subpoena if the resolution of the proceeding
would be substantially impaired by the absence of such testimony or
production of documents or tangible things.
---------------------------------------------------------------------------
In determining whether ``witness'' as used in section
803(b)(6)(C)(ix) is limited to those who have already submitted
testimony to the CRJs, one must, as noted above, look to the plain
meaning of the statute. An accepted maxim of statutory construction
dictates that in the absence of a definition, a statutory term should
be construed in accordance with its natural meaning. FDIC v. Meyer, 510
U.S. 471 (1994). The
[[Page 13309]]
question here is, what is the natural meaning of the word ``witness''?
Black's Law Dictionary defines ``witness'' as ``One who sees, knows, or
vouches for something.'' Black's Law Dictionary (8th ed. 2004).
Additionally, Corpus Juris Secundum: A Contemporary Statement of
American Law as Derived from Reported Cases and Legislation, states
``The term witness, in its strict legal sense, means one who gives
evidence in a cause before a court; and in its general sense includes
all persons from whose lips testimony is extracted to be used in any
judicial proceeding, and so includes deponents and affiants as well as
persons delivering oral testimony before a court or jury.'' 97 CJS
Witnesses Sec. 1 West, 1994. Neither of these definitions deems
``witness'' to be restricted to those whose testimony has been filed
with the CRJs as part of a written, direct statement or, more
generally, to those who have already given testimony. Therefore, there
is no basis to conclude that Congress intended an alternative, more
restrictive, meaning. Instead, the Register determines that ``witness''
as used in section 803(b)(6)(C)(ix) includes anyone who knows something
that is relevant, or alternatively anyone who has or gives evidence (as
opposed to one who has given evidence) in a rate determination
proceeding. This plain meaning interpretation includes witnesses who
are nonparticipants, including those who have not previously been
designated by a participant as a witness as well as those whose
testimony has not been filed as part of a written direct statement.
The statutory interpretation principle of in pari materia, which
offers that statutes relating to the same or a closely allied subject
or object should be construed together and compared with each other,
indicates that it is also useful to look to other federal statutes that
authorize the issuance of subpoenas. 73 Am. Jur. 2d Statutes Sec. 103
(2009). The United States Code is replete with provisions that
authorize various officers of the United States to issue subpoenas, and
it is common for those provisions expressly to provide a power to
``subpoena witnesses'' or ``issue subpoenas for the attendance of
witnesses,'' or contain similar language. See, e.g., 5 U.S.C. Sec.
1305 (Office of Personnel Management & Merit Systems Protection Board
may ``subpena witnesses and records'' in certain matters relating to
administrative law judges); 8 U.S.C.A. Sec. 1229a(b)(1) (Immigration
judges ``may issue subpoenas for the attendance of witnesses and
presentation of evidence''); 2 U.S.C. Sec. 437d(a)(3) (Federal
Election Commission may ``require by subpoena, signed by the chairman
or the vice chairman, the attendance and testimony of witnesses and the
production of all documentary evidence relating to the execution of its
duties''). In each of these cases, a plain reading of the statute leads
to the conclusion that Congress was empowering the named officers to
issue subpoenas to ``witnesses'' as the term is commonly understood,
and not just to persons who were already participating in their
proceedings. The same reading is the natural reading of section
803(b)(6)(C)(ix).
In arguing for a more narrow interpretation of ``witness,''
SoundExchange, joined by the proposed subjects of subpoenas, suggests
that the final sentence of section 803(b)(6)(C)(ix) limits the CRJs'
power with regard to nonparticipants. Under SoundExchange's reading, if
section 803(b)(6)(C)(ix) were interpreted to allow the issuance of
subpoenas to nonparticipants, the last sentence of the provision would
be superfluous, and such a result would violate an accepted principle
of statutory construction. However, the final sentence of section
803(b)(6)(C)(ix), which states ``[n]othing in this clause shall
preclude the Copyright Royalty Judges from requesting the production by
a nonparticipant of information or materials relevant to the resolution
by the Copyright Royalty Judges of a material issue of fact,'' does not
address the CRJs' power to subpoena testimony. Instead, it speaks to
the power of the CRJs to request testimony. As RealNetworks accurately
points out, there may be situations where the CRJs conclude that it
might be useful to have a nonparticipant testify, but at the same time
conclude that the resolution of the proceeding would not be
substantially impaired by the absence of such testimony. In such
instances, the CRJs would not be able to subpoena the nonparticipant.
However, in such instances, the CRJs could, under the final sentence of
section 803(b)(6)(C)(ix), request the relevant testimony. Such a
scenario clearly demonstrates that the final sentence is not rendered
superfluous by a nonrestrictive interpretation of the subpoena power.
The first part of section 803(b)(6)(C)(ix) authorizes the issuance of a
subpoena to participants and witnesses, albeit bound by a finding that
the absence of testimony would substantially impair the resolution of
the proceeding. The second part of section 803(b)(6)(C)(ix), in a non-
superfluous manner, preserves the ability to request testimony from a
nonparticipant, provided that such testimony is relevant to the
resolution of a material issue of fact and even if the absence of that
testimony would not substantially impair the resolution of the
proceeding.
SoundExchange correctly observes that the legislative history cited
by RealNetworks was referring to proposed statutory text that was quite
different from the statute as passed. However, it is unnecessary to
look toward the legislative history for clarification where the plain
meaning of the statute is clear. Even if there were ambiguity or lack
of specificity in the statute, the legislative history that exists is
consistent with the Register's finding that the CRJs' subpoena power is
broad and not restricted to witnesses who have already submitted
testimony to the CRJs. The legislative history evidences Congress's
intent to allow ``the CRJs to subpoena additional witnesses.'' H.R.
Rep. No. 108-408, at 33 (2004). This portion of the House Report
indicates that Congress intended the word ``witness'' to include
additional persons beyond merely those who have previously been
designated by a participant to give evidence. While it is true that the
language discussed in the House Report imparted broader authority than
the statue as passed, there is no indication that in the legislation as
enacted, Congress intended a more restrictive meaning of ``witness.''
Rather, it appears that subsequent to the filing of the House Report,
Congress refined the statutory language in a way that required the CRJs
to find a much higher degree of relevance and materiality before they
would be permitted to issue subpoenas to witnesses, but not in any way
that could affect the determination whether a particular person would
be considered a ``witness.''\10\
---------------------------------------------------------------------------
\10\ At the time the House Report was filed, the language in the
pending legislation permitted the CRJs to issue subpoenas ``only if
the evidence requested to be produced or that would be proffered by
the witness is relevant and material.'' H.R. Rep. No. 108-408, at 8
(2004). In the enacted legislation, that authority was narrowed to
permit the issuance of subpoenas ``if the Copyright Royalty Judges'
resolution of the proceeding would be substantially impaired by the
absence of such testimony or production of documents or tangible
things.'' 17 U.S.C. 803(b)(6)(C)(ix).
---------------------------------------------------------------------------
The complete legislative history regarding the CRJs' subpoena power
indicates that the type of restrictions that SoundExchange currently
argues for were largely reflected in statutory language that was
reported by the Senate Judiciary Committee but that ultimately was not
adopted by Congress. As laid before the Senate, H.R. 1417 provided that
the CRJs ``may issue a subpoena commanding a participant or
[[Page 13310]]
witness in a proceeding to determine royalty rates to appear and give
testimony or to produce and permit inspection of documents or tangible
things.'' 150 Cong. Rec. S10499 (daily ed. October 6, 2004) (Emphasis
added). The final sentence of the relevant subparagraph also stated
that ``A Copyright Royalty Judge may not issue a subpoena under this
clause to any person who was a participant in a proceeding to determine
royalty rates and has negotiated a settlement with respect to those
rates.'' Id. However, these two limitations on the CRJs' subpoena power
were amended on the Senate floor. The floor amendment removed the
above-referenced final sentence of the relevant subparagraph, which
would have prevented the CRJs from issuing a subpoena to any person who
had been a participant in a proceeding to determine royalty rates and
had negotiated a settlement. The floor amendment also removed any
indication that a ``witness'' must be one ``in a proceeding to
determine royalty rates.'' 150 Cong. Rec. S10590 (daily ed. October 6,
2004). The fact that these two restrictions, which are closely
analogous to the one SoundExchange currently argues for, were not
included in the statute as enacted indicates that Congress did not
intend such limitations to be placed on the CRJs' subpoena power.
The cases cited by SoundExchange are also inapplicable to the
current inquiry. Bobreski v. E.P.A, 284 F. Supp.2d 67 (D.D.C. 2003)
addressed a statute that specifically withheld any grant of subpoena
authority; United States v. Iannone, 610 F.2d 943 (D.C. Cir. 1979)
spoke solely to the authority to subpoena the attendance and testimony
of a witness, versus the mere authority to subpoena documentary
information; and Peters v. United States, 853 F.2d 692 (9th Cir. 1988)
addressed limitations on an administrative agency's ability to issue a
very unique type of subpoena often referred to as ```John Doe'
subpoenas'' which are directed in a blanket manner at unidentified
targets. The court observed that such subpoenas, which are not at issue
here, carry heightened privacy concerns and it was therefore
``reluctant to assume the existence of the power to issue third-party
subpoenas directed at unidentified targets where Congress has not
provided for them specifically, nor provided procedural safeguards.''
853 F.2d 696.
Additionally, the CRJs' regulations cited by the parties are not
instructive in answering the referred question. The question presented
to the Register is the breadth of the CRJs' statutory authority to
issue subpoenas. In answering that question, the statutory language, as
well as the relevant legislative history and case law, provide the
appropriate authority. Any limitation adopted through regulation by the
CRJs regarding their ability to issue subpoenas during the discovery
process prior to the consideration of the underlying statutory question
cannot inform the Register's determination as to the scope of the CRJs'
subpoena power under the statute.
Finally, Live355 argues in its reply brief that the CRJs would not
need the subpoena power provided in the statute if it extended only to
participants and witnesses identified in a party's direct case. It
maintains that the subpoena power would be effectively meaningless
under this interpretation since other statutory provisions allow the
CRJs to compel testimony from parties and their witnesses, citing 17
U.S.C. 803(b)(6)(C)(v)-(vii). That observation is persuasive. The CRJs
can order a participant to provide additional documentation or
testimony under their authority to conduct the rate setting proceeding.
They do not need subpoena power to compel compliance from a
participant. The participant can comply with the order or, should it or
its witnesses fail to do so, the CRJs can strike the affected portion
of the participant's testimony. This option is a powerful enforcement
mechanism but it only can work with participants and witnesses that
voluntarily appear before the CRJs. Subpoena power, on the other hand,
allows the CRJs to reach nonparticipants who are not part of the
proceeding and it provides the CRJs with tools to compel compliance
from persons who are not initially part of the proceedings. While it is
true that, as SoundExchange points out, the statutory authority to
issue subpoenas is silent with regard to enforcement, that is
irrelevant to the inquiry at hand. It is not uncommon for Congress to
grant subpoena authority in a statute that contains no stated
enforcement mechanism. Where Congress grants subpoena authority in a
statute that contains no stated enforcement mechanism, enforcement is
achieved through a U.S. district court, and may be sought through the
assistance of the United States Attorney's office. Office of Legal
Policy, U.S. Department of Justice, Report to Congress on the Use of
Administrative Subpoena Authorities by Executive Branch Agencies and
Entities, Pursuant to Public Law 106-544, at 9-10 (2002), (available at
http://www.usdoj.gov/archive/index-olp.html).
For the above-stated reasons, the Register concludes that the CRJs
do have the authority to subpoena a witness to appear and give
testimony or to produce and permit inspection of documents or tangible
things even when that witness is not a participant in the proceeding
and his or her testimony has not yet been submitted in the proceeding.
This authority is restricted to instances where the resolution of the
proceeding would be substantially impaired by the absence of such
testimony or production of documents or tangible things. Additionally,
Congress expressly preserved the CRJs' power to request information
from nonparticipants in certain cases when the CRJs do not have the
power to issue subpoenas. This power to request information may be
invoked in those instances where such testimony is relevant to the
resolution of a material issue of fact, even when its absence would not
substantially impair the resolution of the proceeding (and, therefore,
a subpoena could not be issued). The CRJs have not asked for any
determination regarding what may constitute either substantial
impairment of resolution of the proceeding or relevance to the
resolution of a material issue of fact, and therefore no guidance is
offered on those questions. It is, however, pertinent to observe that
while the statute grants the CRJs the authority to issue subpoenas in
certain circumstances, it does not compel them to issue subpoenas in
any circumstance. Furthermore, it is noteworthy that even under the
broader grant of subpoena power in the provision initially introduced
in the House, Congress stated that it ``does not anticipate that the
use of subpoena power will become a common occurrence'' and that
``[t]he CRJs are expected to exercise this power judiciously and only
in those instances where they believe a subpoena is necessary to obtain
information that the parties have not provided and that the judges deem
necessary to make their decision.'' H.R. Rep. No. 108-408, at 33
(2004).
February 22, 2010
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010-5806 Filed 3-18-04; 8:45 am]
BILLING CODE 1410-30-S