# Petitioners Brief — Shenandoah Valley Broadcasting, Inc. v. American Society of Composers, Authors & Publishers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1963
- **Citation:** 375 U.S. 39

## Text

ap Office-Supreme Court, U.S
ir ARY FILED

IN THE °
“ ‘ °
Supreme Court of the Hnited Ptates a) Wea
No. 323 .
we .
SHENANDOAH VALLEY BROADCASTING, INC, _ ; 4
et al., ; }-
Petitioners,
against

AMERICAN SOCIETY OF COMPOSERS, AUTHORS
AND PUBLISHERS,

Respondent.

PETITION FOR REHEARING

Raustone R. Irvine

Watrer R. Mansrietp
2 Wall Street
New York, New York | , f
Attorneys for Petitioners
Shenandoah Valley
Broadcasting, Inc., et al.

tS

P PAGE
Petitioners’ Brier Oprostna Responpent’s Petition

FOR REHEAKING 1
CoNCLUSION 9
Appenprx A, MeMoRANDUM OF PLAINTIFF la

Z CITATIONS

é .

Cases: >

,

_ American Export -Lines v. Revel, 262 F. 2d 122 (4th
Cir.) 3,7

Blossom v. Milwaukee & C. Railroad Co., 1 Wall. 655 = 2

Commercial Electrical Supply Co. v. Curtis, 288 Fed.
657 (Sth Cir.), at pp. 659-60, cert. denied, 263 U.S.
709

to

~

Dickey v. Turner, 4@F. 24 998 (6th Cir.), at p. 1001...

Division of Labor Law Enforcement v. Stanley Res-
taurants, Inc., 228 F, 2d 420, at p. 423 (9th Cir.) .. 3,7

_ Drummond vy. United States, 324 U.S. 316 at p. 318... 7

East. v. Crowdus, 302 F. 2d 645, 646-647 (8th
Cir.) «.. . 2, 3, 5, 6, 8

Fishgold vy. Sullivan Drydock & Repair Corp., 328
U.S, 275 at pp. 281-82 4 7

4

Goldlawr, Inc. v. Heiman, 273 F. 2d 729 at p. 731 (2d
Cir. 1959) ‘ 9

Gully v. Interstate Natural Gas Co., 292 U.S. 16 at
p. 19 | s

x

v P
a INDEX f

: PAGE
Hume v. City of New York, 255 Fed. 488 oa fir,
491, cert. denied, 249 U. S. 603 2
Julian v. Central Trust Co.. 193 U. S. 93, ups ——
Langnes v. Green, 282 U.S. 531 1
Minnesota Co. v. St. Paul Co., 2 Wall. 609, 632-33... 2
Oklahoma Gas & Electric Co. Vv. Oklahoma Packing
Co., ee ae Same 8
Phillips v. United States, 312 U. 8-246 at p. 254.8
United States v. American Railway Eupress Co., 265
U. S. 425, 435, —. f , 1
United States v. American Society of Composers,
Authors and Publishers, 3, 4fn
United States for the use of Browne & Bryan Lumber
Co. v. Massachusetts Bonding and Insurance Co.,
29 F. R. D. 162 (E. D. X. Y.) 7
United States v. New York, New Haven and Hart-
ford Railway Co., 276 F. 2d 525, 544-45 (2d Cir.
1960), cert. denied, po S. 961 .. 9
Virginia Land Co. x. Miami Shipbuilding Corp., 201
F. 2d 506 (5th Cir.) 7,8
Walling v. Reut¢ér Co., 321 U.S. 671 at pp. 676-678 8
Statutes : ys
Federal Rules of Civil Procedure, Rule 73(a) wae, ©
Mae S0e | His Sethe 2,5,7
e

4
\
\

‘
IN The
‘Supreme Court of the United States
OCTOBER TERM, 1963
No. 323

SHENANDOAH VALLEY Broapcastino, Inc., et al.,
. . * Petitioners,
agamst F

American Soctety or Composers, AUTHORS AND PUBLISHERS,

Respondent.

a.
7?

PETITIONERS’ BRIEF OPPOSING RESPONDENT'S
_ PETITION FOR REHEARING

Respondent's petition for rehearing should be denied
because it is based on the same contention that respondent
previously advanced in opposing petitioners’ application
for a writ of certiorari. At that time respondent contended,
as an alternative ground for sustaining the Court of
Appeals’ dismissal of petitioners’ appeal to that court,
that ‘petitioners’ notice of appeal was untimely (Respond-
ent’s Brief in Opposition to Petition for Certiorari, p. 8):
‘In reversing the Court of Appeals and directing it to hear
petitioners’ appeal on the merits, this Court of necessity
passed on and rejected this contention (Langnes v. Green,
282 U. S. 531; United States v. American Railway Express
Co., 265 U. S. 425, 435). Respondent’s petition for rehear-
ing is not based’on intervening circumstances of substantial
er controlling effect, or on a point not previonsly presented

e°

2

to this Court, the only grounds for rehearing available
under Rule 58(2) of this Court, but is simply an effort to
-reargue the merits of this Court’s decision.

This, Court’s previous rejection of ‘respondent’s eon-
tention was plainly correct. This Court has described the
proceedings below as ‘‘ancillary’’ to the United States’
action against respondent. Being ancillary, the proceed-
ings on petitioners’ application were a continuation of the
original suit brought by the United States; petitioners
became parties to the original suit for the purpose of
asserting their rights under the decree in that suit, and
jurisdiction, even of the District Court, depended (in this
case necessarily so, since the particular rights asserted by
petitioners were created by the Consent Deeree) upon its
jurisdiction in the original suit. Rlossom v. Milwaukee &
C. Railroad Co., 1 Wall. 655; Minnesota Co. v. St. Paul Co.,
2 Wall. 609 (and see especially pp. 632°33); Julian v.
Central Trust Co., 193 U. S. 93 at pp. 111-13; East v.
Crowdus, 302 F. 2d 645, at pp. 646-647 (8th Cir.): Hume v.
City of New York, 2%) Fed. 488 (2d Cir.), at p. 491, cert.
denied, 249 U. 8. 603; Dickey v. Turner, 49 F. 2d 998 (6th
Cir.), at p. 1001; Commercial Electrical Supply Co. v.
Curtis, 288 Fed. 657 (8th Cir.), at pp. 659-60, cert. denied,
263 U. S. 709.

28 U. S. C. §2107 and Rule 73(a) of the Federal Rules
of Civil Procedure provide that in any action, suit or pro-
ceeding in which the United States, or an officer or agency
thereof, is a party, all the parties have 60 days from the
entry of judgment to file a notice of appeal. Under the
statute ang Rule 73(a), the only requirement for the 60-day
period to become applicable in ancillary proceedings is

that the United States continue to be a party to the original
proceedings before the district court. Hast v. Crowdus,
302 I’. 2d 645, at pp. 646-647 (Sth Cir.); ef. American
Export Lines v. Revel, 262 F. 2d 122 (4th Cir.); ef. also
Division of Labor Law Enforcement vy. Stanley Restau-
rants, Inc., 228 F. 2d 420, at p. 423 (9th Cir.). This precise
question was decided by the Court of Appeals for the
Eighth Cirenit in East v. Crowdus, 302 F. 2d 645, where
the Court concluded that the petitioner, in a proceeding
aucillary to an action brought by the SEC, had 60 days to
appeal from the district court’s dismissal of his petition
(302 F. 2d at pp. 646-647). As long as the United States
continues as a party to the original proceeding it continues
to have an interest and right to be heard in the ancillary
proceeding, and a right to appeal to the Court of Appeals
from a final order entered therein.

The requirement that the United States continue as a
party to the original proceedings is met here. Petitioners
did not preceed against respondent by way of a separate
lawsuit, but upon motion made by petitioners ‘‘at the foot
of the ASCAP final judgment’’ (R. 46a)' in United States
v. American Society of Composers, Authors and Publishers,
Civil Action No. 13-95. The Court of Appeals found that
the proceedings on petitioners’ application were ‘‘all con-
ducted under the title of the original anti-trust suit’? (Ap-
pendix to Petition for Writ of Certiorari, p. B3). The
Court of Appeals further pointed out that ‘‘the judgment
here sought to be appealed from was entered in ‘a civil

' Page references prefixed by the symbol “R.” refer to petitioners’
appendix filed in the Court of Appeals for the second Circuit, which
is Volume 1 of the record hérein.

é +

action brought in [a] District Court of the United States’
under the Sherman Act ‘wherein the United States is com-
plainant’’’ (id., p. BS).

The United States actively participated in the proceed-
ings before the district court on petitioners’ application.
Government counsel appeared before the district court in
the proceedings on petitioners’ application and advised the
court that ‘‘ we are here as the plaintiff in the original suit”’
(R. 147a).* Both orai argument and written briefs** were
submitted on behalf of the United States on the issue of the
district court’s power to grant the type of license requested
by petitioners (K. 153a). In its opinion the district court
pointed out that the United States supported petitioners’
application and then rejected the United States’ view in
favor of the respondents’ (Appendix to Petition for Writ
of Certiorari, p. ©2). The United States also actively par-
ticipated in petitioners’ appeal to the Court of Appeals,
where the United States supported respondent’s position
that the only appeal from the judgment of the district court
was directly to this Court under the Expediting Act, and
submitted both oral argument and a lengthy brief to pe
court. In this case, the issue before the District Court—
namely, whether the Consent Decree was intended to pro-
tect those dealing with ASCAP against future abuses of

Seco mel Wee

’ * To assure that the Government receives adequate notice of all
such proceedings, the decree in United States v. American Society
of Composers, Authors and Publishers specifically provides that
ASCAP shall, upon the filing of an application, “promptly give
notice thereof to the Attorney General” (35a).

** A copy of one of two briefs submitted by the Government,
entitled “Memorandum of Plaintiff,” is annexed to this brief as
Appendix A. ”

or

monopolistic power in respect of all license terms, or solely
in respect of price—was of dee» interest to the United
States. Thus the present case is even stronger than East v.
Crowdus, 302 F. 2d 645, for in that case the SEC took no
active part in the ancillary proceedings, while here the
United States did take an active part in the proceedings
on petitioners’ application.

The fact that an order entered in an ancillary proceed-
ing is not directly appealable under the Expediting Act
does not affect the applicability of 28 U. S. C. §2107, and
of Rule 73(a), to the present case, since the language and
objectives of these statutes differ. An ancillary order is
not appealable under the Expediting Act because the order,
unlike one in the original proceeding, does not necessarily
affect the final judgment. The United States, however, con-
tinues as a party within the meaning of 28 U. S. C. §2107
and Rule 73(a) because it has an interest and right to be
heard in an ancillary proceeding which affects the construc-
tion of the judgment, and since an order construing the
judgment would be res adjudicata as to all the parties to
the judgment, including the United States, the United
States must have a right to appeal therefrom to the tae
of Appeals.

Literally, the Expediting Act provides for a direct ap-
peal to this Court only from the final judemeyy in a suit
under the antitrust laws in which the United States is
the complainant. This carries with it, of course, direct ap-
pellate jurisdiction of appeals from other final orders in the
cause which necessarily and directly affect the final judg-
ment. By its earlier decision in this case, this Court has
determined that since a final order in an ancillary proceed-

ing granting or denying to a beneficiary relief specifically
created by the decree will not necessarily affect the final
judgment but on the contrary will in many cases merely
serve to resolve an essentially private controversy by ap-
plying the provisions of the decree to a particular factual
situation, appeals in such cases should take the normal
appellate route via the Courts of Appeal.

It by no means follows, however, that the United States,
whose decree is in fact involved, was not properly a party
to the proceeding below (in which, as we pointed out earlier,
it took an active role), and there is nothing in the opinion
of the Court in this case to suggest that the Court meant
to rule otherwise.

The contention that respondent makes here rests on the
unstated assumptions, as the Eighth Circuit Court of Ap-
peals pointed out in East v. Crowdus, 302 F. 2d 645, at pp.
646-7, that (i) although the Government actively partici-
pated in the proceedings before the District Court, involv-
ing the proper interpretation of its antitrust consent
decree, it actually had no right to be heard therein, and
(ii) that even after having so participated, the Govern-
ment could not have taken an appeal from the decision of
the district court expressly rejecting the Government’s
proposed construction. Since the Government here actively
participated in the proceedings before the district court,
there can be no serious question but that under well-estab-
lished principles of law the construction of the decree
adopted by the district court became res adjudicata as to
it and, therefore, all other considerations aside, the Gov-
ernment could in this case have taken an appeal if it so
desired, albeit to the Court of Appeals rather than to this

Court.” Fishgold v. Suilivan Drydock & Repair Uorp., 328
U. S. 275 at pp. 281-£2; see, also, Drummond v. United
States, 324 U. S. 316 at p. 318. Accordingly, 28 U. S. C.
§2107 and Rule 73(a) give to the United States, and there-
fore by their express terms and as a matter of common
taifness to all other parties, the longer period of sixty days
in which to determine whether or not an appeal should be
taken.

The facts in Virginia Land Co. v. Miami Shipbuilding
Corp., 201 F. 2d 506 (5th Cir.), relied on by respondent, are
entirely different. In that case the Government’s money
claim had been settled and the Government had no further
interest in any aspect of the suit whatever. Moreover, the
quotation from the court’s opinion relied on by respondent
at page 3 of its brief is dictum, since the court went on to
rule that the appeal should be dismissed for lack of finality
in the order appealed from (201 F. 2d at p. 508). The
suggestion of the court that the applicability of the 60-day
provision turns on the issues presented on the appeal has

eer rejected by all courts that have subsequently consid-
\ered the point. Division of Labor Law Enforcement v.
Stanley Restaurants, Inc., 228 F. 2d 420, at p. 423 (9th
Cir.); American Export Lines v. Revel, 262 F. 2d 122, at
p. 126 (4th Cir.); United States for the use of Browne &
Bryan Lumber Co. v. Massachusetts Bonding and Insur-,
ance Co., 29 F. R. D. 162 (E. D. N. Y.).

In any event, no reason appears for remanding this
ease to the Court of Appeals for further consideration of
this jurisdictional question. If the case of Virginia Land

* See also Petitioners’ Reply To Respondent's Brief Opposing
Certiorari, p. 2.

.\

Co. v. Miami Shipbuilding Corp., 201 F. 2d 506 (Sth Cir.),
relied on by respondent, stands for the proposition for
which respondent cites it (with which we do not agree),
then that case is in conflict with the decisions of the courts
in other circuits, notably the decision of the Eighth Circuit
in East v. Crowdus, 302 F. 2d 645, and such a conflict can
only be resolved by this Court. Respondent claims to find
support for its position in certain language of this Court's
per curiam opinion. Remanding the case to the Court of
Appeals for an interpretation of this Court's opinion
_would be a meaningless gesture. If this Court is not in-
clined to dispose of respondent’s contention without fur-
ther briefs and arguments, we respectfully submit that the
Court set the case down for argument.

In the event that this Conrt should decide that peti-
tioners’ notice of appeal was not timely, we respectfully
suggest that the circumstances here warrant adoption of
the procedure frequently followed by this Court in the
exercise of its general appellate supervisory power, and
on occasion by the Courts of Appeal, where a party has
mistakenly taken an appeal to a court lacking jurisdiction
and where (as here) the question of appellate jurisdiction
was not definitely settled at the time of the appeal, by
directing the entry of a fresh decree in the district court
from which a timely appeal pursuant to the appropriate
appellate procedure may be taken. Walling v. Reuter Co.,
321 U. S. 671 at/pp. 676-678; Gully v. Interstate Natural
Gas Co., 292 U. S. 16 at p. 19; Oklahoma Gas & Electric Co.
v. Oklahoma Packing Co., 292 U. S. 386 at p. 392; Phillips
v. United States, 312 U. S. 246 at p. 254. This result could
be accomplished by this Court, in its mandate, directing the
Court of Appeals to remand the cause to the district court

for proceedings accordingly, or by directing the district
court to enter such a new decree. United States v. New
York, New Haven and Hartford Railway Co., 276 F. 2d
525, 544-45 (2d Cir. 1960), cert. denied, 362 U.S. 961; see
also Goldlawr, Inc. v. Heiman, 273 F.2d 729 at p. 731 (2d
Cir. 1959).

CONCLUSION

The Court of Appeals has already implicitly rejected
respondent’s contention that petitioners’ notice of appeal
was untimely by its determination that the United States
was a party to the proceedings below. This finding was
implicitly confirmed by this Court, which recognized that
the present proceedings were ancillary to the United
States’ action against the respondent. There is no basis,
therefore, for respondent’s contention that this case should
be remanded to the Court of Appeals for further considera.
tion of this question. The only remaining unresolved issne-
are as to the merits of the case.

For the reasons stated, respondent's petition for
rehearing should be denied. >

Respectfully submitted,

Rautstone R. Irvine
Watrer R. Mansrievp
2 Wall Street
New York, New York
Attorneys for Petitioners
Shenandoah Valley
Broadcasting, Inc., et al.

“4

? ~

APPENDIX A
UNITED STATES DISTRICT COURT

Sy Sovtuern District or New York

Civil Action No. 13-95

a.
_—

Unrrep States or AMERiIca,
2 Plaintiff,

against

American Society or Composers, AUTHORS AND PUBLISHERS,
: et al., hace
Defendants.
~ +

i> ee
In the Matter of the Application of

SHeENaNDOAH VaLLey Broapcastine,.Inxc., et al.,

> Petitioners,

For the Determination of Reasonable License Fees.

-
v

Memorandum of Plaintiff

Petitioners have applied under Section IX of the judg-
ment herein of March 14, 1950 for determination of the
reasonableness of fees for those licenses which they have
requested to play any composition in the ASCAP repertory
on all programs originated by each of the petitioner's local

[1a]

2a

Memorandum of Plaintiff

television stations, and all lecally performed filmed or
taped programs produced by others prior to February 28,
1962. ASCAP has not quoted a fee for the particular type
of license requested. These comments are submitted by the
plaintiff as the representative of the public interest in this
proceeding.

At this stage of this proceeding, it appears that the issue
posed by the application involves not only the reasonable-
ness of the fees for the licenses involved, but also the obli-
gation of the defendant,’ASCAP, to issue the type of
' licenses requested. We believe that we do not have any
particular, special competence to advise the Court concern-
ing the reasonableness of the particular license rate pro-
posed by the petitioners. We are, however, concerned with
a possible construction of this judgment which limits the
right of users of compositions of music, who as a practical
matter, must have access to the ASCAP repertory, to a
form of a license dictated by ASCAP. It is as to this latter
point that we would like to make these initial comments.

Petitioners seek non-exclusive, five year licenses cover- ~

ing all the compositions in the ASCAP repertory granting
the right to use such compositions on locally produced pro-
grams or on fiims or tapes produced before February 28,
_ 1962. The request does not include licenses for the right to
perform ASCAP compositions on network originated pro-
grams and on filmed or taped programs which were pro-
duced by others after the specified date (or some other
appropriate date). It appears obvious to the plaintiff that
the petitioners seek to create an economic vacuum which
will force the film and tape producers concerned to obtain

3a
Memorandum of Plaintiff

licenses from either ASCAP members (at the same time
they acquire synchronization rights) or from ASCAP itself
covering performance rights for music contained in the

tapes and films.
; Plaintiff understands that ASCAP contends that the

petitioners do not have a right to such a license under the
judgment; that the judgment. enumerates the types, of
licenses which ASCAP must grant, such as per program
license or licenses to program producers under Section V
(B); and that this is definitive of the licenses which must
be issued. Further, ASCAP seems to claim that the licenses

_in effect protect the right of a broadcaster to obtain clear-

ance at the source and benefit thereby. He may take a per
program license. He need not pay a fee for programs the

- ASCAP music in which is licensed by/an ASCAP member

or which is licensed at the source by/ASCAP under Section
V of the judgment.
Plaintiff believes that the antitrust objectives of the
1950 judgment entered in this cas@ require a construction
which permits a brozJicaster, who of\necessity must have
access to the thousands of compositions’ which ASCAP is
authorized to license, a realistic, reasonable license to per-
form ‘all the compositions in the ASCAP repertory. Stated
another way, we believe that ASCAP should not be per-
mitted, by limiting the types of licenses which it offers, to
frustrate and render null the mandate of Section VI of the
judgment that ASCAP ‘‘erant to any user makirg written
application therefor a non-exclusive license to perform all
of the compositions in the ASCAP repertory,’’ so long as
the applicant is requesting a reasonable type of license.

'

Memorandum of Plaintiff

We know that Section IX of the 1950 judgment speaks
in terms of the Court determining the reasonableness, of
the ‘‘fee’’ for a license, but it also specifies that it is the
‘*fee’’ which ASCAP deems reasonable ‘‘for the license
requested.”’ It is the strong belief of the, plaintiff that
reference in Section LX to determination of the ‘‘fee’’ does
not foreclose this Court from reviewing the terms and con-
ditions of the license requested and, looking at the objec-
tives of the judgment as a whole, determining whether
ASCAP by refusing to advise the petitioners of the fee
which it considers reasonable for the licenses requested is,
in effect, ie to comply with the rdqu'rements_ of
Sections VI and IX. ' |

It ig fundamental to the antitrust considerations in this
ease and these proceedings that while ASCAP is legally
the non-exclusive licensing agency for the performance
rights of compositions of thousands of publishers \and
writers, it is a fact that petitioners must have licenses from
ASCAP to use all of the compositions in the ASCAP
repertory since it is not practical for them to obtain such
licenses from individual owners of the copyrights involved.
Thus,.to say that the order of the 1950 judgment ‘n Section
VI leaves ASCAP free to dictate to an applicant a form of
license covering the performance of ASCAP compositions
on programs, at places or at times not desired by the ap-
plicant, permits ASCAP to exercise’ a power that comes
not from _# single copyright owner but from the amassing
of so many copyrights.

We believe that the effect of the combined terms and
objectives of Sections VI and IX of this Court’s 1950 judg-

5a

Memorandum of Plaintiff .

ment both permits and requires that ASCAP be ordered to

‘advise the petitioners of the fee which it considers reason-
able for the licenses requested, that the petitioners be
entitled to a reasonable heense which gives them the right
to perform all of the compositions in the ASCAP repertory,
all upon terms and conditions which this Court deems rea-
sonable antl in furtherance of the antitrust objectives of
this case. :

Respectfully submitted,
Pa
Joun L. Witson
ro." _ Attorney, Department’ of Justice
January 17, 1962 |

W. D. Kilgore, Jr.
Attorney, Dept. of Justice

a

@ *

ny,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0386%3A6. Public record. Not legal advice.