Petition — Amusement & Music Operators Ass'n v. Copyright Royalty Tribunal

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Supreme Court, U.S.

FILED

NOV 49 1980

? DAK, JR., CLERK

IN THE —

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

AMUSEMENT AND MUSIC OPERATORS ASSOCIATION,

DON VAN BRACKEEL, DOROTHY W. CHRISTENSEN,

FRED COLLINS, JR., WALTON Lowry,

and HAROLD MorkRIS,

Petitioners,

VU.

THE COPYRIGHT ROYALTY TRIBUNAL,

MARY Lou BurcG, Chairman, THOMAS C. BRENNAN,

DouG.Las E. COULTER, CLARENCE L. JAMES, JR.,

and FRANCES GARCIA, Members,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NICHOLAS E. ALLEN

Counsel of Record.

Of Counsel: HERRICK, ALLEN,

PHILIP F. HERRICK DAVIS & BAILEY

JAMES MICHAEL BAILEY 7 1701 K Street, N.W.

SUZANNE V. RICHARDS Washington, D.C. 20006

(202) 452-1331

Washington, 0.C. «+ THIEL PRESS + (202) 638 -4621

(:)

THE QUESTIONS PRESENTED

1, Whether in view of the plain language of Sec-

tion 810 of the Copyright Act of 1976 (17 U.S.C.

810) the court of appeals erred in holding that that

section vests in that court jurisdiction to review

regulations promulgated by the Copyright Royalty

Tribunal (“Tribunal”) under Section 116(c)(5) of the

2. Whether, in view of the provisions of section

803(a) of the Copyright Act (17 U.S.C. 803(a)) and

relevant provisions of the Administrative Procedure

Act (5 U.S.C. 702-706) and of the Judicial Code

(28 U.S.C. 1331, 1361, 1651 and 2201), the district

court had jurisdiction to review the regulations pro-

mulgated by the Tribunal under section 116(c)(5) of

the Copyright Act (17 U.S.C. 166(c)(5)) and to

grant the declaratory and injunctive relief prayed for.

3. Whether, in view of the fact that on October

27, 1978 when petitioners filed their complaint in

the district court petitioners previously had filed a

petition for reconsideration by the Tribunal which

petition was then pending and was denied by the

Tribunal on November 9, 1978, the court of appeals

properly refused to act upon the complaint as the

equivalent of a timely filed petition for review under

section 810 of the Copyright Act (17 U.S.C. 810).

THE PARTIES

The parties to this proceeding are as listed in the

caption of the case except that the present chairman

of the Tribunal is Mary Lou Burg.

(3)

TABLE OF CONTENTS

THE QUESTIONS PRESENTED ......... 900 cee ceo i

THE PARTIES

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

ARGUMENT

II,

III.

IV,

Section 810 of the Copyright Act does not

confer jurisdiction upon the Court of Appeals

to review regulations promulgated by the Tri-

bunal under section 116(c)(5) of the Act. ......... 9

The District Court does have jurisdiction to

review the regulations in question under sec-

tion 1331 of the Judicial Code and section

803(a) of the Copyright Act ................

If the Court of Appeals was correct in decid-

ing it has jurisdiction under 17 U.S.C. 810 to

review the Tribunal’s regulations it should

have considered petitioners’ complaint as a

timely filed petition for review ................

The Court of Appeals has decided important

questions of law which should be settled by

this Court, specifically, the decision below

that the Court of Appeals has jurisdiction to

review the regulations of the Tribunal that

are the subject of this litigation, and the guid-

ance the Court of Appeals has imposed upon

all litigants who seek judicial review of agency

actions to file petitions in both the district

court and the court of appeals whenever there

is “‘any doubt” as to the proper choice of

EEE ee a

EE ere

(tit)

APPENDICES: Page

Appendix A — Order of district court denying temp-

porary restraining order and preliminary injunc-

a 8 ny © en la

Appendix B — Order of court of appeals denying

petitioners’ motion to overrule the district

court and granting respondents’ motion for

summary affirmance, November 11,1978 .......... 2a

App-ndix C — Order of district court granting

respondents’ motion for dismissal or in the

alternative for summary judgment and dis-

missing the complaint, February 22,1979 .......... 4a

Appendix D — Decision of the Court of Appeals

and order vacating the grant of summary judg-

ment to respondents and remanding the case

with instructions to dismiss the complaint for

lack of jurisdiction, August 7, 1980 .........5045:. 5a

Appendix E — Order denying petition for rehear-

ing, September 9,1980 ....... bic ea bat bw ob 68% 12a

Appendix F — Order denying suggestion for rehear-

ing en banc, September 9,1980 ......cccccccveces l4a

Appendix G — Order denying motion for further

reconsideration of petition for rehearing, October

Bhp BOOS Pee dedasdccevriveseseeserecsveces 16a

Appendix H — Copyright Act of 1976, extracts ........ 18a

Appendix I — Federal Reports Act, extracts ........... 24a

Appendix J — Administrative Procedure Act,

co re Pere a eee ee ee ee ee ee 27a

Appendix K — Judicial Code, extracts ........-+0005 $la

Appendix L — Regulations of the Copyright er

BEE cw hc ccc en reesdeenures o° err

Appendix M — Memorandum of Appellees sel.

dents) on issue of jurisdiction, March 10, 1980 ....... 36a

(wv)

| TABLE OF AUTHORITIES Page

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136, 142,

Pe OO eE 64S viene Uh 66 hs Cb hehe hic be 12, 13

AFL v. National Labor Relations Board, 308 U.S.

fh Re eg a ee ot eae eo 12

Califano v. Sanders, 430 U.S. 99 (1977) .........0000. 13

City of Rochester v. Bond, 608 F.2d 927, 931

CUMS PEE 7.5 bas ad ik bie wc 6.6 ew oe oe nee 11, 13

Investment Company Institute v. Board of

Governors of the Federal Reserve System,

551 F.2d 1270, 1282 (D.C. Cir. 1977) ..........06. 15

PBW Stock Exchange, Inc. v. Securities and

Exchange Commission, 485 F.2d 718 (3d

Cir. 1973), cert. denied, 416 U.S. 969

CO ick wien 2 6h a WE a ee he elke Bk bo bible’ 11

United States Constitution, Statutes, and Regulations:

Fifth Amendment, The Constitution, extract ......... 3, 6

The Administrative Procedure Act, extracts, 5

U.S.C. 702, 703, 704, 705, 706 ........ i, iii, 3, 4, 5, 18

The Copyright Act of 1976, extracts,

17 U.S.C. 116(b), 116(c), 801(b),

Be oe i, ii, iii, 3, 4, 5, 6, 9, 10, 12, 15

be ae Oe a ae ee eee 3, 15, passim

The Federal Reports Act, extracts 44 U.S.C.

POs REE 6 cS Rh dae bebe cthevdcse.s iii, 3, 4, 6

The Judicial Code, extracts, 28 U.S.C. 1254(1),

oe ee UO ere i, ii, iii, 3, 5, 13, 14

Regulations of the Copyright Royalty Tribunal

Pe ee EE 6 obs ane chee bebe tcwece iii, 3, 5

Other Authority:

Davis, Administrative ..aw Treatise, § 23.02, Supp.

Se a ak 0k 8 ok PEK en ow bee Cee Chak eee oes 14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

AMUSEMENT AND Music OPERATORS ASSOCIATION,

DON VAN BRACKEL, DoroTHY W. CHRISTENSEN,

FRED COLLINS, JR., WALTON Lowry,

and HAROLD Morris,

Petitioners,

THE COPYRIGHT ROYALTY TRIBUNAL,

Mary Lou Bure, Chairman, THomas C. BRENNAN,

Doucias E. CouLTER, CLARENCE L. JAMES, JR.,

and FRANCES GARCIA, Members,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Amusement and Music Operators Association

(“AMOA”) and the individual petitioners pray that a

writ of certiorari issue to review the judgment of

the United States Court of Appeals for the District

of Columbia Circuit, entered on August 7, 19890, the

]

denial of petition for rehearing on September 9,

1980, and the denial of motion for further recon-

sideration of petition for rehearing on October 22,

1980. The issues are whether 17 U.S.C. 810 confers

exclusive jurisdiction on the United States Court of

Appeals for the judicial review of rule-making by the

grieved by such rule-making may seek judicial review

in the federal district courts. The Court of Appeals

for the District of Columbia Circuit has decided that

it has exclusive jurisdiction; petitioners, who initiated

their review in the District Court for the District of

Columbia, believe that the district court is not only

the proper forum but that it is the exclusive forum.

OPINION BELOW

The opinion of the United States Court of Appeals

for the District of Columbia Circuit, dated August 7,

1980, has not been reported, but is set forth in its

entirety in Appendix D. The court’s orders denying

petitioners’ petition for rehearing are set forth in

Appendices E and F. The court’s order denying peti-

tioners’ motion for further consideration of the petition

for rehearing is set forth in Appendix G.

JURISDICTION

The judgment of the United States Court of Appeals

for the District of Columbia Circuit printed in Appen-

dix D, was entered August 7, 1980. That court’s orders

denying a timely petition for a rehearing en banc,

printed in Appendices E and F, were entered on

September 9, 1980. The said court’s order denying

further reconsideration of the petition for rehearing,

printed in Appendix G was entered on October 22,

1980.

The jurisdiction of the Supreme Court is invoked

pursuant to 28 U.S.C. 1254(1). The proper forum for

judicial review of agency actions under the Copyright

Act is an important question of federal law that affects

all users and suppliers of copyrighted music who are

subject to sections 111, 115, 116 and 118 of the

affects all persons who seek judicial review of federal

agencies’ rulemaking. This question should be settled by

this Court.

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

The due process clause of the Fifth Amendment to

the Constitution provides:

‘No person shall...be deprived of life, liberty or

property, without due process of law.”

Relevant provisions of the statutes (Sections 116(b),

116(c), 801(b), 803(a) and 810 of the Copyright Act,

sections 3501, 3502 and 3512 of the Federal Reports

Act, and the relevant sections of the Administrative

Procedure Act and of the Judicial Code and the regu-

lations (37 C.F.R 303.1-303.3) are lengthy and there-

fore are set out in pertinent part in Appendices H through

L. A brief summary of the statutory and regulatory

provisions follows:

Section 116(b) of the Copyright Act provides that a

jukebox ‘ operator may obtain a license for playing

copyrighted music on jukeboxes by registering the

jukeboxes with the Copyright Office and paying an

annual license fee of $8 per jukebox.

Section 116(c) provides that jukebox license fees

which are collected by the Copyright Office shall be

deposited in the United States Treasury, after deducting

expenses of the Copyright Office, and that the fees

shall be distributed to copyright owners making claims

therefor by the Copyright Royalty Tribunal after

deduction of the Tribunal’s expenses. Section 116(c)(5)

authorizes the Tribunal to promulgate regulations

whereby persons having claims to jukebox royalties can

have access to establishments where the jukeboxes are

located and to the jukeboxes therein to obtain infor-

mation concerning the amount of royalties they claim.

Section 801(b) of the Copyright Act authorizes the

Tribunal to make determinations, inter alia, as to

jukebox royalty rates (801(b)(1)) and as to distribution

of jukebox royalties {801(b)(3)).

Section 803(a) of the Copyright Act authorizes the

Tribunal to adopt regulations to govern its procedures

and methods of operatic: and provides that, except as

otherwise provided in Jhapter 8 of the Act, the

Tribunal shall be subject to Chapters 5 and 7 of the

Administrative Procedure Act.

Section 810 of the Copyright Act provides for direct

review by the United States Court of Appeals of any

final decision of the Tribunal under Section 801(b) on

the basis of the record before the Tribunal and in

accordance with Chapter 7 of the Administrative Pro-

cedure Act. .

Sections 3501, 3502 and 3512 of the Federal

Reports Act declare that information needed by federal

agencies shall be obtained with a minimum burden

upon business enterprises, especially small businesses,

and require that independent Federal regulatory agen-

cies shall submit to the Comptroller General of the

United States for his review their proposed regulations

for collection of information from business enterprises

or other persons in advance of issuance of the regula-

tions.

Relevant sections of the Administrative Procedure

Act include 702 (right of review), 703 (forum and

venue of proceeding), 704 (actions reviewable), 705

(relief pending review) and 706 (scope of review).

Relevant sections of the Judicial Code include 1331

(Federal question jurisdiction), 1361 (mandamus), 1651

(all writs), and 2201 (declaratory judgments).

Sections 303.1, 303.2 and 303.3 of the regulations

promulgated by the Tribunal under Section 116(c)(5)

of the Copyright Act prescribe the procedures whereby

persons having claims to jukebox royalties can have

access to establishments where jukeboxes are located

and to jukeboxes therein; these regulations also impose

upon jukebox operators the requirement that they must

record with the Tribunal lists of the locations of

jukeboxes they have registered with the Copyright

Office pursuant to the Copyright Act.

STATEMENT OF THE CASE

Petitioners, AMOA and five individual jukebox opera-

tors, filed a complaint on October 27, 1978 in the

United States District Court for the District of Colum-

bia against the Tribunal and its five members, who are

respondents here, for declaratory judgment and injunc-

tion to declare invalid and to enjoin enforcement of the

regulations that the Tribunal had promulgated under

section 116(c)(5) of the Copyright Act. Petitioners also

applied for a temporary restraining order and prelimi-

nary injunction.

The Tribunal promulgated the regulations on Septem-

ber 6, 1978, after extensive rulemaking proceedings that

began in December 1977. The regulations were declared

to be effective October 10, 1978, and required jukebox

operators to record with the Tribunal lists of their

jukebox locations, commencing November 1, 1978.

Operators obtaining their initial jukebox registration

after October 1, 1978 were required to record their

location lists within 30 days after registration. On

October Ist of each succeeding year operators are

required to record locations not previously reported and

all other locations where changes have been made in the

number of jukeboxes as previously reported. On Octo-

ber 18, 1978 petitioners filed a motion for reconsidera-

tion of the regulations, and the Tribunal heard and

denied the motion on November 9, 1978.

Petitioners sought relief in the district court on

several grounds: (1) the regulations, by requiring juke-

box operators to record location lists, are not author-

ized by the Copyright Act, (2) they violate the Act’s

prohibition against expense or harassment to the opera-

tors, (3) they unduly interfere with the operators’

conduct of their businesses in violation of the fifth

amendment to the Constitution, (4) they were issued in

violation of the Federal Reports Act, and (5) the

regulations are invalid because the Tribunal itself is

unconstitutionally established in the legislative branch

of the Government.

The district court, after hearing, denied petitioners’

motion for temporary restraining order and preliminary

injunction on October 30, 1978 (Appendix A), and the

Court of Appeals for the District of Columbia Circuit,

on November 1, 1978, denied petitioners’ motion to

overrule the district court and granted respondents’

cross motion for summary affirmance in Appeal No.

78-2065 (Appendix B). In those actions both the

district court and the court of appeals assumed that

they had jurisdiction, and their decisions were on the

merits. The respondents also assumed the jurisdiction of

the district court.

Thereafter, petitioners filed a motion in the district

court for summary judgment and respondents filed a

cross motion for dismissal, or, in the alternative, for

summary judgment. On February 22, 1979, the district

court granted respondents’ motion and dismissed the

complaint (Appendix C). The district court’s order was

docketed February 27, 1979. Petitioners appealed to

the United States Court of Appeals for the District of

Columbia Circuit on April 23, 1979.

While the appeal was pending, and after the parties

had filed their briefs, the court of appeals, sua sponte,

ordered the parties to brief the question whether in

view of 17 U.S.C. 810 the district court had jurisdiction

to review the regulations that are the subject of this

litigation. In their briefs on this question both parties

agreed that 17 U.S.C. 810 does not grant jurisdiction to

the court of appeals to review the Tribunal’s regulations

and that the district court has exclusive jurisdiction to

do so. Copy of the respondents’ brief is included in the

appendix (Appendix M).

On August 7, 1980, after considering the parties’

briefs and arguments on all issues, including the issue of

jurisdiction, the court of appeals rules that the district

court did not have jurisdiction to review the regulations

but that, instead, the court of appeals has the exclusive

jurisdiction to do so under 17 U.S.C. 810. The court

ordered the case to be remanded and the complaint to

be dismissed by the district court for lack of jurisdic-

tion.

By a footnote to its decision the court of appeals

included the following comment:

‘©The complaint in the District Court was filed 37

days after the promulgation of the regulations at

issue. Petitions for review of Tribunal regulations

must be filed in the Court of Appeals within 30

days. 17 U.S.C. §810 (1976). Thus, even if we

were to treat the complaint as a petition for

review, and its filing in the District Court as tolling

the running of the period in which review may be

sought, jurisdiction still would be absent because

the District Court complaint was not filed within

30 days. See Fed R. App. P. 26(b). (court may

not enlarge the time prescribed by law for filing a

petition for review).”

On Aj aisut 20, 1980 petiticners filed a timely

petition for rehearing en banc which the court denied

September 9, 1980. Thereafter petitioners applied for a

stay of mandate and on September 19, 1980 moved for

further reconsideration of the petition for rehearing.

The motion for reconsideration was grounded upon the

above-quoted comment which shows that the court of

appeals apparently overlooked the fact that petitioners’

complaint was timely filed, i.e., petitioners filed the

ia’

complaint on October 27, 1978 at a time when

petitioners had pending at the Tribunal a motion for

reconsideration of the regulations which was filed on

October 18, 1978, and was denied by the Tribunal on

November 9, 1978. The case was pending in the district

court until February 22, 1979 when the court granted

judgment for the respondents. Therefore, there was no

delay by petitioners in seeking judicial review of the

regulations.! Accordingly, on the basis of the court’s

indicated willingness to consider the complaint as a

petition for review, had the filing been timely, peti-

tioners urged the court to reconsider the apparent

oversight and to grant the petition for rehearing. The

court denied petitioners’ motion on October 22, 1980.

ARGUMENT

‘SECTION 810 OF THE COPYRIGHT ACT DOES NOT

CONFER JURISDICTION UPON THE COURT OF AP.

PEALS TO REVIEW REGULATIONS PROMULGATED

BY THE TRIBUNAL UNDER SECTION 116(cX5) OF

THE ACT.

Section 116(b) of the Copyright Act provides for the

registration of jukeboxes and for payment of jukebox

royalty fees at the Copyright Office. Section 116(c)

provides for distribution of jukebox royalty fees by the

izes the Tribunal to prescribe procedures whereby

| Petitioners filed their complaint in the district court October

27, 1978, without waiting for the Tribunal’s action on the

petition for reconsideration because the Tribunal’s regulations

required jukebox operators to file location lists not later than

November 1, 1978.

claimants to jukebox royalty fees shall file their claims.

Section 116(c)(5) authorizes the Tribunal to promulgate

regulations whereby persons who can reasonably be

expected to have such claims may have access to

jukebox locations to obtain information to support

their claims. Section 116(c)(5) is the rulemaking author-

ity for the regulations that are the subject of this

litigation.

Section 810 provides for judicial review by the court

of appeals of final decisions of the Tribunal in

proceedings under section 801(b). Insofar as those

proceedings pertain to the jukebox royalty under

section 116 those proceedings concern only determina-

tions with respect to royalty rates under 801(b)(1) and

adjudications of disputes over distribution of royalty

fees under 801(b)(3).2, No other review jurisdiction is

conferred by section 810.

The court of appeals correctly viewed section 810 as

a special statutory procedure that conferred upon it

exclusive jurisdiction to review the final decisions of the

Tribunal in proceedings under sections 801(b)(1) and

801(b)(3). It does not follow, however, that review of

the Tribunal’s rulemaking under section 11'6(c)(5) is

encompassed within that special grant of authority.

Even though the rulemaking proceedings under sec-

tion 116(c)(5) are related by their subject matter to

2There has been no proceeding for adjudication of a jukebox

royalty dispute to date. The first jukebox royalty pool composed

of license fees collected in 1978, was distributed by the Tribunal

in 1979, by agreement of the “performing rights societies”

representing all but a small percentage of unaffiliated copyright

owners, for whom a small sum was reserved.

proceedings under section 801(b)(3) for the adjudica-

tion of disputes concerning distribution of jukebox

royalty fees, those proceedings are entirely separate and

distinct. Based upon that inter-relationship, however,

the court of appeals asserted in its decision that “‘the

statute in this matter incorporates section 116 regula-

tions into the Tribunal’s 801(b) powers,” and on that

reasoning the court concluded that section 810 gave it

exclusive jurisdiction to review the regulations under

116(c)(5).

Petitioners submit, however, that the court’s con-

clusion is merely ipsi dixit—an interpretation designed

to extend that court’s authority beyond the clear

wording of the statute, wording that explicitly limits

the scope of judicial review by that court to final

determinations concerning royalty rates and final deter-

minations concerning distribution of royalty fees.

To support its conclusion the court quoted from its

earlier decision in City of Rochester v. Bond, 603 F.2d

927, 931 (D.C. Cir. 1979), where the principle is stated

that ‘If, however, there exists a special statutory review

procedure, it is ordinarily supposed that Congress

intended that procedure to be the exciusive means of

obtaining review in those cases to which it applies”

(emphasis added). This, however, is not a case to which

the principle applies. The court of appeals simply is

wrong in its interpretation of the statute in this case.

In PBW Stock Exchange Inc. v. Securities and

Exchange Commission, 485 F.2d 718 (3d Cir. 1973),

cert. denied 416 U.S. 969 (1974), the court of appeals

for the third circuit held that it did not have jurisdic-

tion to review a rule regarding membership on securities

exchanges promulgated by the Commission under the

Securities Exchange Act. The court of appeals examined

the context and structure of the Act and its legislative

history and concluded that precedent decisions of the

Supreme Court, commencing with AFL v. National

Labor Relations Board, 308 U.S. 401 (1940), compelled

it to hold that direct review by the Court of Appeals of

the Commission’s rule was not permissible notwith-

standing provisions of the Act that vest exclusive

jurisdiction in that court to review orders of the

Commission under that Act (15 U.S.C. 78a, 78y(a)).

We submit that if the Court of Appeals of this circuit

had considered the context and structure of the

adhered to the precedent decisions of the Supreme

Court as the Court of Appeals for the third circuit had

done, this Court of Appeals would have concluded that

it too lacked jurisdiction to review the Tribunal’s

regulations that are the subject of this action.

THE DISTRICT COURT DOES HAVE JURISDICTION

TO REVIEW THE REGULATIONS IN QUESTION UN-

DER SECTION 1331 OF THE JUDICIAL CODE, AND

SECTION 803(a) OF THE COPYRIGHT ACT.

It is well settled that a party who is injured by

federal agency action is presumptively entitled to judicial

review in a federal court and that, in the absence of

a special statutory review procedure, “non-statutory”

review may be sought in a district court under any

applicable jurisdictional grant. Abbott Laboratories v.

Gardner, 387 U.S. 163, 142, 143 (1967)?

Section 1331 of the Judicial Code is now recognized

as the basic authority for district court review of

federal agency action in the absence of a special statute

authorizing review by a particular court. Califano v.

Sanders, 430 U.S. 99 (1977).

In Chapter 7 of the Administrative Procedure Act

(28 U.S.C. 701-706), which provides comprehensively

for judicial review of federal agency actions, Congress

has expressed the intent that a party who is injured by

an agency action shall have a right to relief in some

“court of competent jurisdiction.” In the absence of a

statutory provision to the contrary, the court of

competent jurisdiction is the federal district court,

which has general jurisdiction under 28 U.S.C. 1331 or

3The governing principles are summarized in City of Roches-

ter v. Bond, supra, as follows:

“‘The principles which frame our decision are unexception-

able. The first is that one who has been injured by agency

action is presumptively entitled to judicial review. This

presumption is codified in the Administrative Procedure

Act and evident in the cases, and nothing in the circum-

stances of this case suggests that appellants’ allegations

were not reviewable somewhere. Second, Congress, acting

within its constitutional powers, may freely choose the

court in which judicial review may occur. In the absence of

a statute prescribing review in a particular court, “non-

statutory’’ review may be sought in district court under

any applicable jurisdictional grant. If, however, there exists

a special statutory review procedure, it is ordinarily

supposed that Congress intended that procedure to be the

exclusive means of obtaining judicial review in those cases

to which it aplies. We think that this is so in the present

case.”’ (footnote references omitted)

other statutes (see Davis, Administrative Law Treatise,

§ 23.02, Supp. 1980).

By section 803(a) of the Copyright Act Congress has

expressed the same intent, declaring that “Except as

otherwise provided in this chapter, the Tribunal shall be

subject to the provisions of the Administrative Pro-

cedure Act of June 11, 1946, as amended (c. 324, 60

Stat 237, title 5, United States Code, chapter 5,

subchapter II and chapter 7).”

Other sections of the Judicial Code provide authority

for the district court to grant the relief petitioners have

prayed for in this case: 1361 (mandamus), 1651 (all

writs) and 2201 (declaratory judgments).

IF THE COURT OF APPEALS WAS CORRECT IN

DECIDING IT HAS JURISDICTION UNDER 17 U.S.C.

810 TO REVIEW THE TRIBUNAL’S REGULATIONS IT

SHOULD HAVE CONSIDERED PETITIONERS’ COM-

PLAINT AS A TIMELY FILED PETITION FOR REVIEW.

The court of appeals indicated in the footnote to its

opinion of August 7, 1980, quoted above (page 8),

that it might have considered petitioners’ complaint as a

petition for review but for the time sequence of

petitioners’ filing of their complaint. As we have

previously shown (pages 8 and 9 above), the case was

pending in the district court from October 27, 1978, when

the complaint was filed, until February 23, 1979, when

the district court granted judgment for the respondents,

On October 17, 1978 petitioners filed a motion with the

Tribunal for reconsideration of the regulations and the

Tribunal denied the petition as its final action on the

regulations on November 9, 1978. The Tribunal’s final

decision was a matter of record in the district court

when it granted judgment for the respondents.

IV.

THE COURT OF APPEALS HAS DECIDED IMPORTANT

QUESTIONS OF LAW WHICH SHOULD BE SETTLED

BY THIS COURT, SPECIFICALLY, THE DECISION BE-

LOW THAT THE COURT OF APPEALS HAS JURISDIC-

TION TO REVIEW THE REGULATIONS OF THE

TRIBUNAL THAT ARE THE SUBJECT OF THIS LITI-

GATION, AND THE GUIDANCE THE COURT OF AP-

PEALS AS IMPOSED UPON ALL LITIGANTS WHO

SEEK JUDICIAL REVIEW OF AGENCY ACTIONS TO

FILE PETITIONS IN BOTH THE DISTRICT COURT AND

THE COURT OF APPEALS WHENEVER THERE IS

“ANY DOUBT” AS TO THE PROPER CHOICE OF

FORUM.

The decision below affects not only those persons

who have interests in jukebox royalty fees under

section 116 of the Copyright Act but it also affects all

users and suppliers of music who are subject to the

licensing requirements of the Act under sections 111

(cable television), 115 (recording of phonorecords), 116

(jukebox operation) and 118 (public broadcasting). As a

precedent, the decision below also affects all litigants

who seek judicial review of federal agencies’ rulemaking.

Petitioners submit the decision is wrong for the reasons

hereinabove stated and it should be reviewed by this

Court.

In an earlier decision, Investment Company Institute

v. Board of Governors of the Federal Reserve System,

551 F.2d 1270, 1282 (1977), which involved the issue

of choice of forum for review of agency rulemaking,

the court of appeals advised that “In the future, we

would expect competent counsel to file petitions in

both courts or at least in the court of appeals, if there

is any doubt as to the appropriate forum for judicial

review.” |

Petitioners contend there is no doubt that the proper

forum for judicial review of the Tribunal’s regulations

that are the subject of this litigation is the federal

district court acting under 28 U.S.C. 1331. Indeed, as

we have shown, petitioners clearly were prohibited by

the express wording of 17 U.S.C. 810 from seeking

review by the court of appeals of the Tribunal’s

regulations in this case.

Petitioners contend further that the court of appeals’

guidance that petitions should be filed in both courts,

in case of “any doubt,” leaves the issue of choice of

forum in a state of unacceptable uncertainty, depending

as it does upon the subjective test of “doubt” in the

mind of the person who is responsible for exercising

that choice. This guidance by the court unnecessarily

increases the already high cost of litigation and violates

the court’s own concern about the wasting of judicial

resources (see decision below, p. 9a). Under the court’s

decision we would now have the possibility of three

judicial actions: one in district court, one on appeal

from the district court, and one on direct review in the

court of appeals. This indeed constitutes a waste of

judicial resources.

The uncertain state of the law on this subject cries

out for resolution by this Court.

CONCLUSION

Accordingly, for all of the foregoing reasons, peti-

tioners urge the Court to grant a writ of certiorari.

Respectfully submitted,

NICHOLAS E, ALLEN

HERRICK, ALLEN,

DAVIS & BAILEY

1701 K Street, N.W.

Washington, D.C, 20006

(202) 452-1331

Of Counsel: Counsel of Record.

PHILIP F, HERRICK

JAMES MICHAEL BAILEY

SUZANNE V. RICHARDS

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CIVIL ACTION No, 78-2030

[Filed October 30, 1978]

AMUSEMENT AND MUSIC OPERATORS

ASSOCIATION, et al.

Plaintiffs

THE COPYRIGHT ROYALTY TRIBUNAL, et al.

Defendants.

ORDER

Upon consideration of Plaintiffs’ Motion for a Tem-

porary Restraining Order and Preliminary Injunction,

and upon consideration of the arguments of counsel

and the entire record herein, it appearing to the Court

that Plaintiffs have failed to satisfy the requirements of

Virginia Petroleum Jobbers Association v. Federal

Power Commission, 259 F.2d 921 (D.C. Cir. 1958) and

Washington Metropolitan Area Transit Commission v.

Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977),

especially in that Plaintiffs have not demonstrated any

likelihood of prevailing on the merits of this action, it

is by the Court this 30th day of October, 1978,

ORDERED, that Plaintiff’s Motion for a Temporary

Restraining Order and Preliminary Injunction is hereby

DENIED; and it is

FURTHER ORDERED, that Plaintiffs and Defen-

dants shall submit a proposed briefing schedule on the

issue of final relief within ten (10) days of the date of

this Order.

/s/ Aubrey E. Robinson, Jr.

AUBREY E. ROBINSON, JR.

United States District Judge

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-2065

CIVIL ACTION NO. 78-2030

[Filed November 1, 1978]

Amusement and Music Operators

Association, et al.,

Appellants,

The Copyright Royalty Tribunal, et al.

Before: Bazelon and Tamm, Circuit Judges

ORDER

On consideration of appellants’ motion for order

overruling the District Court’s denial of motion for

temporary restraining order and preliminary injunction,

of appellees’ motion for summary affir:nance, and of

the record on appeal herein, it is

ORDERED by the Court that appellants’ aforesaid

motion is denied. It is

FURTHER ORDERED by the Court that appellees’

motion for summary affirmance is granted.

Per Curiam

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CIVIL ACTION NO. 78-2030

[Filed February 22, 1979]

AMUSEMENT & MUSIC OPERATORS

ASSOCIATION, et al.,

Plaintiffs,

Vv.

Defendants.

ORDER

This matter having come before the Court on

Defendants’ Motion to Dismiss and/or for Summary

Judgment, Plaintiffs’ Memorandum In Opposition, and

the entire record herein,

It is this 22nd day of February, 1979,

ORDERED that Defendants’ Motion be and hereby is

granted, and it is

FURTHER ORDERED that Plaintiffs’ Complaint be

and hereby is dismissed.

/s/ Aubrey E. Robinson, Jr.

AUBREY E. ROBINSON, JR.

United States District Judge

APPENDIX D

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

Rnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1543

AMUSEMENT AND MUSIC OPERATORS ASSOCIATION,

a CORPORATION, et al., APPELLANTS

Vv.

THE COPYRIGHT ROYALTY TRIBUNAL, et al.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil No. 78-2030)

Argued May 6, 1980 | Judgment entered

this

Decided August 7, 1986 == “**®

—

Nicholas E. Allen, with whom Philip F. Herrick, James

Michael Bailey, and Suzanne V. Richards were on the

brief, for appellants.

Michael J. Ryan, Assistant United States Attorney,

with whom Carl S. Rauh, United States Attorney at the

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

time the brief was filed, and John A. Terry, Assistant

United States Attorney, were on the brief, for appellees.

Before MCGOWAN and RoBINSON, Circuit Judges, and

OBERDORFER *, United States District Judge for the Dis-

trict of Columbia.

Opinion for the Court filed by Circuit Judge Mc-

GOWAN.

McGowan, Circuit Judge: Congress in 1976 estab-

lished a new agency, the Copyright Royalty Tribunal, and

conferred upon it certain powers with respect to the

setting of royalty rates and adjudication of royalty

claims. The Tribunal also has the power to promulgate

regulations governing access to “phonorecord players’—

jukeboxes—so that persons having claims to royalties

may determine the amount owed them by jukebox owners.

Knowing the location of jukeboxes reasonably might

be thought to be a necessary antecedent to obtaining

access to them; thus, the Tribunal in 1978 issued regula-

tions requiring jukebox operators to submit to the Tri-

bunal a list of the locations of their jukeboxes and the

number of machines at each location.

Appellant is an organization representing jukebox

owners aggrieved by the new regulations. Appellant sued

in the District Court, asking that the regulations be set

aside because, inter alia, they violated the Copyright Act,

the Federal Reports Act, and the Fifth Amendment, and

because the Tribunal itself was unconstitutionally or-

ganized as a component of the legislative branch.

The District Court denied appellant’s prayer for pre-

liminary relief, and this court summarily affirmed.’ The

parties then filed cross-motions for summary judgment

* Sitting by designation pursuant to 28 U.S.C. § 292(a).

1 Amusement & Music Operators Ass’n v. Copynght Royalty

Tribunal, No. 78-2065 (D.C. Cir. Nov. 1, 1978).

in the District Court, which entered judgment upholdin,

the regulations. This appeal followed.

Before considering any of the substantive challenges

to the regulations, we must decide whether the District

Court had jurisdiction in this case. Specifically, we must

decide whether appellant properly sought judicial review

of the regulations in the District Court, or whether it

should have come directly to the Court of Appeals.

Both parties contend that appellant correctly com-

plained in the District Court.? However, the parties can-

not by mutual consent confer subject matter jurisdic-

tion where it does not otherwise exist;* the Court, sua

sponte, must consider jurisdictional difficulties that it

perceives.* Upon consideration of the statute’s language

and structure, we hold that it mandates direct review

in the Court of Appeals of these regulations. Thus, be-

cause appellant in this case erroneously sought review

in the District Court, we vacate the decision under re-

view and remand to the District Court with instructions

to dismiss the complaint.®

2We raised the jurisdictional question swa sponte, and

permitted both parties to file supplemental briefs on that

issue prior to oral argument.

3 F.g., Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939) ;

see Green v. Department of Commerce, No. 79-1509, slip op.

at 5-6 (D.C. Cir. Feb. 26, 1980) (lack of finality is a jurisdic-

tional flaw that cannot be waived).

4 That we earlier entertained on the merits an appeal from

the denial of preliminary relief, see note 1 supra, does not

prevent us now from examining the question of jurisdiction.

Green v. Department of Commerce, No. 79-1509, slip op. at 6

n.9 (D.C. Cir. Feb. 26, 1980) ; Potomac Passengers Ass’n v.

Chesapeake & Ohio Ry., 520 F.2d 91, 95 n.22 (D.C. Cir. 1975).

5 The complaint in the District Court was filed 37 days after

the promulgation of the regulations at issue. Petitions for

The judicial review provision of the statute is 17

U.S.C. section 810. It provides:

Any final decision of the Tribunal in a proceeding

under section 801(b) may be appealed to the United

States Court of Appeals, within thirty days after its

publication in the Federal Register by an aggrieved

party. The judicial review of the decision shall be

had, in accordance with chapter 7 of title 5, on the

basis of the record before the Tribunal. No court

shall have jurisdiction to review a final decision of

the Tribunal except as provided in this section.

[Emphasis added. ]

Section 801(b) permits the Tribunal, inter alia, “to

make determinations concerning the adjustments of rea-

sonable copyright royalty rates as provided in section

115 and 116... .” (Emphasis added.) Section 116, in

turn, is the section under which these regulations were

issued.* The statute in this matter incorporates section

review of Tribunal regulations must be filed in the Court of

Appeals within 30 days. 17 U.S.C. § 810 (1976). Thus, even

if we were to treat the complaint as a petition for review,

and its filing in the District Court as tolling the running of

the period in which review may be sought, jurisdiction still

would be absent because the District Court complaint was not

filed within 30 days. See Fed. R. App. P. 26(b). (court may

not enlarge the time prescribed by law for filing a petition for

review).

17 U.S.C. section 116 provides, in pertinent part:

(5) The Copyright Royalty Tribunal shall promulgate

regulations under which persons who can reasonably be

expected to have claims may, during the year in which

performances take place, without expense to or harass-

ment of operators or proprietors of establishments in

which phonorecord players are located, have such access

to such establishments and to the phonorecord players

located therein and such opportunity to obtain informa-

116 regulations into the Tribunal’s section 801(b)

powers. Determinations under section 801(b) are, as we

have seen, reviewable only in the Court of Appeals.

Logic also supports direct review in the Court of

Appeals. In general, agency action is aptly examined

in the District Court when the court proceeding is to be

de novo and based on a new record compiled in the court

itself. Where review is to be on the agency record, the

Court of Appeals is well suited to consider the challenge

in the first instance.’ In this case, section 810 provides

that judicial review is to be conducted pursuant to the

Administrative Procedure Act (APA) “on the basis

of the record before the Tribunal.” Thus, the reviewing

court is not to compile its own record, but is to examine

the existing record to see if the Tribunal’s decision was

arbitrary, capricious, or otherwise not in accordance with

law. Judicial resources would be wasted if parties could

press their case upon the administrative agency, then

obtain review on the agency record in the District Court,

tion with respect thereto as may be reasonably necessary

to determine, by sampling procedures or otherwise, the

proportion of contribution of the musical works of each

such person to the earnings of the phonorecord players

for which fees shall have been deposited. Any person

who alleges that he or she has been denied the access

permitted under the regulations prescribed by the Copy-

right Royalty Tribunal may bring an action in the United

States District Court for the District of Columbia for

the cancellation of the compulsory license of the phono-

record player to which such access has been denied, and

the court shall have the power to declare the compulsory

license thereof invalid from the date of issue thereof.

7In this case, the Tribunal compiled a substantial record.

The Tribunal in December 1977 issued notice of proposed

rulemaking, and in May 1978 published a proposed rule. A

formal hearing was held in June 1978, at which appellant

made formal statements, and presented and cross-examined

witnesses.

10a

and then enjoy an appeal as of right to the Court of

Appeals, which would perform precisely the same func-

tion. We think that Congress intended to avoid this

redundancy by providing in section 810 for direct revie

in the Court of Appeals.

Both parties contend that jurisdiction nevertheless ex-

isted in the District Court pursuant to section 803 of the

Act, sections 553 and 701 of the APA, and sections 1331,

1361, 1651, and 2201 of the Judicial Code. None of these,

however, confers jurisdiction on the District Court to

review the instant regulations.

Appellant principally contends that the District Court

had jurisdiction pursuant to 17 U.S.C. section 803, which

provides:

§ 803. Procedures of the Tribunal

(a) The Tribunal shall adopt regulations, not in-

consistent with law, governing its procedures and

methods of operation. Except as otherwise provided

in this chapter, the Tribunal shall be subject to the

provisions of the Administrative Procedure Act of

June 11, 1946, as amended (c. 324, 60 Stat. 237,

title 5, United States Code, chapter 5, subchapter II

and chapter 7).

(b) Every final determination of the Tribunal

shall be published in the Federal Register. It shall

state in detail the criteria that the Tribunal deter-

mined to be applicable to the particular proceeding,

the various facts that it found relevant to its deter-

mination in that proceeding, and the specific reasons

for its determination.

This section is inapposite. First, the Tribunal promul-

gated the instant regulations pursuant to section 116.

Section 803, by contrast, deals only with regulations per-

lla

taining to the Tribunal’s methods of operation.’ Second,

section 803 does not address judicial review. It provides

only that the Tribunal shall “be subject to the provisions

of the Adminisirative Procedure Act.” That language

arguably does not even provide for judicial review of

procedural regulations; in any event, it nowhere specifies

the court in which review is to occur.

Appellant alleges various other bases for jurisdiction

in the District Court, but none is effective. The Declara-

tory Judgment Act, 28 U.S.C. § 2201, and the APA do

not independently confer jurisdiction.* Nor is this an

action in the nature of mandamus within the meaning

of 28 U.S.C. sections 1861 and 1651.

Only the general federal question statute, 28 U.S.C.

section 1331, arguably confers jurisdiction on the District

Court. However, where “there exists a special statutory

review procedure, it is ordinarily supposed that Congress

intended that procedure to be the exclusive means of ob-

taining judicial review in those cases to which it applies,”

notwithstanding section 13831. City of Rochester v. Bond,

603 F.2d 927, 981 (D.C. Cir. 1979). We have seen that

section 810 is a specific jurisdictional grant of that sort;

accordingly, appellant’s invocation of the general federal

question statute is unavailing.

In sum, appellant here incorrectly sought review of the

Tribunal’s regulations in the District Court. Because the

District Court lacked jurisdiction, we vacate its grant of

summary judgment to appellee, and remand with instruc-

tions to dismiss the complaint for lack of jurisdiction.

It is so ordered.

8 Procedural regulations pursuant to section 803 have, in

fact, been promulgated. 37 C.F.R. § 301 et seg. (1979).

*F.g., Califano v. Sanders, 430 U.S. 99 (1977) (APA);

Seibert v. Baptist, 594 F.2d 423 (5th Cir. 1979) (Declaratory

Judgment Act).

12a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

September Term, 1979

No. 79-1543

CIVIL ACTION NO. 78-2030

[Filed September 9, 1980]

Amusement and Music Operators Association,

a corporation, et al.,

Appellants,

The Copyright Royalty Tribunal, et al.

BEFORE: McGowan and Robinson, Circuit Judges;

and Oberdorfer,* Judge, United States District Court

for the District of Columbia.

ORDER

Upon consideration of appellants’ petition for rehear-

ing, it is

ORDERED, by the Court, that appellants’ aforesaid

petition for rehearing is denied.

l3a

Per Curiam

FOR THE COURT:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

*Sitting by designation pursuant to Title 28 U.S.C.

§ 292(a).

l4a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1979

No. 79-1543

CIVIL ACTION NO. 78-2030

[Filed September 9, 1980]

Amusement and Music Operators Association,

a corporation, et al., °

Appellants,

The Copyright Royalty Tribunal, et al.

BEFORE: Wright, Chief Judge; McGowan, Tamm,

Robinson, MacKinnon, Robb, Wilkey, Wald, Nikva,

Edwards, and Ginsburg, Circuit Judges.

ORDER

The suggestion for rehearing en banc filed by

Le appellants (Amusement and Music Operations Assoc., a

corp., ¢t al.) having been transmitted to the full Court

and no judge in regular active service having requested a

vote with respect thereto, it is

ORDERED, by the Court, en banc, that appellants’

aforesaid suggestion for rehearing en banc is denied.

l5a

Per Curiam

FOR THE COURT:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

l6a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1980

No. 79-1543

CIVIL ACTION NO. 78-2030

[Filed October 22, 1980]

Amusement and Music Operators Association,

a corporation, et al.,

Appellants

The Copyright Royalty Tribunal, et al.

Before: McGowan and Robinson, Circuit Judges; and

Oberdorfer, United States District Court for the District

of Columbia

ORDER

It appearing that appellant Amusement and Music

Operators Association has lodged in the Clerk’s Office a

motion for further consideration of its petition for

rehearing, it is

ORDERED, by the Court, that the Clerk is directed

to file appellant’s lodged motion for further reconsid-

eration and to enter same on the docket; and it is

FURTHER ORDERED, by the Court, that appel-

lant’s motion for further reconsideration is denied.

17a

Per Curiam

FOR THE COURT

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

*Sitting by designation pursuant to Title 28 U.S.C.

§ 292(a).

18a

APPENDIX H

STATUTES:

[Extracts from the Copyright Act of 1976

17 U.S.C. 101 et seq.]

§116. Scope of exclusive rights in nondramatic musical

works: Public performances by means of coin-operated

phonorecord players

* * * * *

(b) RECORDATION OF COIN-OPERATED PHONO-

RECORD PLAYER, AFFIXATION OF CERTIFICATE,

AND ROYALTY PAYABLE UNDER COMPULSORY

LICENSE. —

(1) Any operator who wishes to obtain a compulsory

license for the public performance of works on a coin-

operated phonorecord player shall fulfill the following

requirements:

(A) Before or within one month after such per-

formances are made available on a particular phono-

record player, and during the month of January in

each succeeding year that such performances are

made available on that particular phonorecord play-

er, the operator shall file in the Copyright Office, in

accordance with requirements that the Register of

Copyrights, after consultation with the Copyright

Royalty Tribunal (if and when the Tribunal has

been constituted), shall prescribe by regulation, an

application containing the name and address of the _

operator of the phonorecord player and the manu--

facturer and serial number or other explicit identifi-

cation of the phonorecord player, and deposit with

the Register of Copyrights a royalty fee for the cur-

rent calendar year of $8 for that particular phono-

record player. If such performances are made avail-

able on a particular phonorecord player for the first

19a

time after July 1 of any year, the royalty fee to be

deposited for the remainder of that year shall be $4.

* * * * *

(1) The Register of Copyrights shall receive all fees de-

posited under this section and, after deducting the reas-

onable costs incurred by the Copyright Office under this

section, shall deposit the balance in the Treasury of the

United States, in such manner as the Secretary of the

Treasury directs. All funds held by the Secretary of the

Treasury shall be invested in interest-bearing United

States securities for later distribution with interest by the

The Register shall submit to the Copyright Royalty Tri-

bunal, on an annual basis, a detailed statement of account

covering all fees received for the relevant period provided

by subsection (b).

(2) During the month of January in each year, every

person claiming to be entitled to compulsory license fees

under this section for performances during the preceding

twelve-month period shall file a claim with the Copyright

Royalty Tribunal, in accordance with requirements that

the Tribunal shall prescribe by regulation. Such claim

shall include an agreement to accept as final, except as

provided in section 810 of this title, the determination of

the Copyright Royalty Tribunal in any controversy con-

cerning the distribution of royalty fees deposited under

subclause (A) of subsection(b)(1) of this section to which

the claimant is a party. Notwithstanding any provisions

of the antitrust laws, for purposes of this subsection any

claimants may agree among themselves as to the propor-

tionate division of compulsory licensing fees among

them, may lump their claims together and file them joint-

20a

ly or as a single claim, or may designate a common agent

to receive payment on their behalf.

(3) After the first day of October of each year, the

there exists a controversy concerning the distribution of

royalty fees deposited under subclause(A) of subsection

(b)(1). If the Tribunal determines that no such contro-

versy exists, it shall, after deducting its reasonable admin-

istrative costs under this section, distribute such fees to

the copyright owners entitled, or to their designated

agents. If it finds that such a controversy exists, it shall,

pursuant to chapter 8 of this title, conduct a proceeding

to determine the distribution of royalty fees.

(4) The fees to be distributed shall be divided as fol-

lows: |

(A) to every copyright owner not affiliated with

a performing rights society, the pro rata share of

the fees to be distributed to which such copyright

owner proves entitlement.

(B) to the performing rights societies, the remain-

der of the fees to be distributed in such pro rata

shares as they shall by agreement stipulate among

themselves, or, if they fail to agree, the pro rata

share to which such performing rights societies prove

entitlement.

this section, the Copyright Royalty Tribunal shall

withhold from distribution an amount sufficient to

satisfy all claims with respect to which a controversy

exists, but shall have discretion to proceed to dis-

tribute any amounts that are not in controversy.

(5) The Copyright Royalty Tribunal shall promulgate

regulations under which persons who can reasonably be

expected to have claims may, during the year in which

2la

performances take place, without expense to or harass-

ment of operators or proprietors of establishments in

which phonorecord players are located, have such access

to such establishments and to the phonorecord players

located therein and such opportunity to obtain informa-

tion with respect thereto as may be reasonably necessary

to determine, by sampling procedures or otherwise, the

proportion of contribution of the musical works of each

such person to the earnings of the phonorecord players

for which fees shall have been deposited. Any person

who alleges that he or she has been denied the access per-

mitted under the regulations prescribed by the Copyright

Royalty Tribunal may bring an action in the United

States District Court for the District of Columbia for the

cancellation of the compulsory license of the phono-

record player to which such access has been denied, and

the court shall have the power to declare the compulsory

license thereof invalid from the date of issue thereof.

* * * * *

Chapter 8. - COPYRIGHT ROYALTY TRIBUNAL

Sec.

801. Copyright Royalty Tribunal: Establishment and

purpose.

802. Membership of the Tribunal.

803. Procedures of the Tribunal.

804. Institution and conclusion of proceedings.

805. Staff of the Tribunal.

806. Administrative support of the Tribunal.

807. Deduction of costs of proceedings.

808. Reports.

809. Effective date of final determinations.

810. Judicial review.

22a

§801. Copyright Royalty Tribunal:

Establishment and purpose

(a) There is hereby created an independent Copyright

Royalty Tribunal in the legislative branch.

(b) Subject to the provisions of this chapter, the pur-

poses of the Tribunal shall be—

1) to make determinations concerning the ad-

justment of reasonable copyright royalty rates as

provided in ‘sections 115 and 116, and to make

determinations as to reasonable terms and rates of

royalty payments as provided in section 118. The

rates applicable under sections 115 and 116 shall be

calculated to achieve the following objectives:

(A) To maximize the availability of creative

works to the public;

(B) To afford the copyright owner a fair return

for his creative work and the copyright user a fair

income under existing economic conditions;

right owner and the copyright user in the product

made available to the public with respect to rela-

tive creative contribution, technological contribu-

tion, capital investment, cost, risk, and contri-

bution to the opening of new markets for creative

expression and media for their communication;

(D) To minimize any disruptive impact on the

structure of the industries involved and on gener-

ally prevailing industry practices.

+. Ore ce: 4s

(3) to distribute royalty fees deposited with the

and to determine, in cases where controversy exists,

the distribution of such fees.

* * * * *

23a

§803. Procedures of the Tribunal

(a) The Tribunal shall adopt regulations, not inconsis-

tent with law, governing its procedure and methods of

operation. Except as otherwise provided in this chapter,

the Tribunal shall be subject to the provisions of the Ad-

ministrative Procedure Act of June 11, 1946, as amended

(c. 324, 60 Stat. 237, title 5, United States Code, chapter

5, subchapter II and chapter 7),

* * * * *

§810. Judicial review

Any final decision of the Tribunal in a proceeding

under section 801(b) may be appealed to the United

States Court of Appeals, within thirty days after its pub-

lication in the Federal Register by an aggrieved party.

The judicial review of the decision shall be had, in accor-

dance with chapter 7 of title 5, on the basis of the record

before the Tribunal. No court shall have jurisdiction to

review a final decision of the Tribunal except as provided

in this section.

24a

APPENDIX I

[Extracts from the Federal Reports Act,

as amended 44 U.S.C. 3501 et seq.]

§ 3501. Information for Federal agencies

Information needed by Federal agencies shall be ob-

tained with a minimum burden upon business enterprises,

especially small business enterprises, and other persons

required to furnish the information, and at a minimum

cost to the Government. Unnecessary duplication of

efforts in obtaining information through the use of

reports, questionnaires, and other methods shall be elim-

inated as rapidly as practicable. Information collected

and tabulated by a Federal agency shall, as far as is ex-

pedient, be tabulated in a manner to maximize the use-

fulness of the information to other Federal agencies and

the public.

§ 3502. Definitions

As used in this chapter —

“Federal agency” means an executive department,

commission, independent establishment, corportation

owned or controlled by the United States, board, bureau,

division, service, office, authority, or adiministration in

the executive branch of the Government; but does not

include the General Accounting Office, independent

Federal regulatory agencies, nor the governments of the

District of Columbia and of the territories and posses-

sions of the United States, and their various subdivisions;

“person”? means an individual, partnership, association,

corporation, business trust, or legal representative, an

organized group of persons, a State or territorial govern-

ment or branch, or a political subdivision of a State or

territory or a branch of a political subdivision;

25a

“information” means facts obtained or solicited by the

use of written report forms, application forms, schedules,

questionnaires, or other similar methods calling either for

answers to identical questions from ten or more persons

other than agencies, instrumentalities, or employees of

the United States or for answers to questions from agen-

cies, instrumentalities, or employees of the United States

which are to be used for statistical compilations of gen-

eral public interest.

* * * * *

§ 3512. Information for independent regulatory agencies

(a) The Comptroller General of the United States shall

review the collection of information required by inde-

pendent Federal regulatory agencies described in section

3502 of this chapter to assure that information required

by such agencies is obtained with a minimum burden

upon business enterprises, especially small business enter-

prises, and other persons required to furnish the informa-

tion. Unnecessary duplication of efforts in obtaining

information already filed with other Federal agencies or

departments through the use of reports, questionnaires,

and other methods shall be eliminated as rapidly as prac-

ticable. Information collected and tabulated by an inde-

pendent regulatory agency shall, as far as is expedient, be

tabulated in a manner to maximize the usefulness of the

information to other Federal agencies and the public.

(b) In carrying out the policy of this section, the

Comptroller General shall review all existing information

gathering practices of independent regulatory agencies as

well as requests for additional information with a view

toward —

(1) avoiding duplication of effort by independent

regulatory agencies, and

26a

(2) minimizing the compliance burden on busi-

ness enterprises and other persons.

ulatory agency shall not conduct or sponsor the collec-

tion of information upon an identical item from ten or

more persons, other than Federal employees, unless, in

advance of adoption or revision of any plans or forms to

be used in the collection —

(1) the agency submitted to the Comptroller Gen-

eral the plans or forms, together with the copies of

pertinent regulations and of other related materials

as the Comptroller General has specified; and

(2) the Comptroller General has advised that the

information is not presently available to the inde-

pendent agency from another source within the Fed-

eral Government and has determined that the pro-

posed plans or forms are consistent with the provis-

ion of this section. The Comptroller General shall

maintain facilities for carrying out the purposes of

this section and shall render such advice to the

requestive independent regulatory agency within

forty-five days.

(d) While the Comptroller General shall determine the

availability from other Federal sources of the information

sought and the appropriateness of the forms for the col-

lection of such information, the independent regulatory

agency shall make the final determination as to the neces-

sity of the information in carrying out its statutory

responsibilities and whether to collect such information.

If no advice is received from the Comptroller General

within forty-five days, the independent regulatory agency

may immediately proceed to obtain such information.

27a

APPENDIX J

Extracts from the Administrative Procedure Act as

amended, 5 U.S.C. 702, 703, 704, 705, 706.

§ 702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a court

of the United States seeking relief other than money

damages and stating a claim that an agency or an

officer or employee thereof acted or failed to act in an

official capacity or under color of legal authority shall

not be dismissed nor relief therein be denied on the

ground that it is against the United States or that the

United States is an indispensable party. The United

States may be named as a defendant in any such action,

and a judgment or decree may be entered against the

United States: Provided, That any mandatory or injunc-

tive decree shall specify the Federal officer or officers

(by name or by title), and their successors in office,

personally responsible for compliance. Nothing herein

(1) affects other limitations on judicial review or the

power or duty of the court to dismiss any action or

deny relief on any other appropriate legal or equitable

ground; or (2) confers authority to grant ‘relief if any

other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.

§ 703. Form and venue of proceeding

The form of proceeding for judicial review is the

special statutory review proceeding relevant to the

28a

subject matter in a court specified by statute or, in the

absence or inadequacy thereof, any applicable form of

legal action, including actions for declaratory judgments

or writs of prohibitory or mandatory injunction or

habeas corpus, in a court of competent jurisdiction. If

no special statutory review proceeding is applicable, the

action for judicial review may be brought against the

United States, the agency by its official title, or the

appropriate officer. Except to the extent that prior,

adequate, and exclusive opportunity for judicial review

is provided by law, agency action is subject to judicial

review in civil or criminal proceedings for judicial

enforcement.

§ 704. Actions reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review. A

preliminary, procedural, or intermediate agency action

or ruling not directly reviewable is subject to review on

the review of the final agency action. Except as

otherwise expressly required by statute, agency action

otherwise final is final for the purposes of this section

whether or not there has been presented or determined

an application for a declaratory order, for any form of

reconsideration, or, unless the agency otherwise requires

by rule and provides that the action meanwhile is

inoperative, for an appeal to superior agency authority.

§ 705. Relief pending review

When an agency finds that justice so requires, it may

postpone the effective date of action taken by it,

pending judicial review. On such conditions as may be

>»

29a

required and to the extent necessary to prevent ir-

reparable injury, the reviewing court, including the

court to which a case may be taken on appeal from or

on application for certiorari or other writ to a reviewing

court, may issue all necessary and appropriate process

to postpone the effective date of an agency action or to

preserve status or rights pending conclusion of the

review proceedings.

§ 706. Scope of review

To the extent necessary to decision and when

presented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability

of the terms of an agency action, The reviewing court

shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an agency

hearing provided by statute; or

30a

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of

prejudicial error.

3la

APPENDIX K

Extracts from the Judicial Code, as amended 28 U.S.C.

1331, 1361, 1651, 2201

§ 1331. Federal question; amount in controversy; costs

(a) The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy

exceeds the sum or value of $10,000, exclusive of

interest and costs, and arises under the Constitution,

laws, or treaties of the United States except that no

such sum or value shall be required in any such action

brought against the United States, any agency thereof,

or any officer or employee thereof in his official

capacity.

§ 1361. Action to compel an officer of the United

States to perform his duty

The district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an

officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.

§ 1651. Writs

(a) The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by

a justice or judge of a court which has jurisdiction.

32a

§ 2201. Creation of remedy

In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes, any court of the

United States, upon the filing of an appropriate

pleading, may declare the rights and other legal rela-

tions of any interested party seeking such declaration,

whether or not further relief is or could be sought. Any

such declaration shall have the force and effect of a

final judgment or decree and shall be reviewable as

such.

33a

APPENDIX L

REGULATIONS:

[Extracts from the Copyright Royalty Tribunal’s

Regulations under 17 U.S.C. 116(c)(5)]

FEDERAL REGISTER, VOL. 43, NO. 177 — TUES-

DAY, SEPTEMBER 12, 1978

§ 303.1 General.

This regulation prescribes the procedures pursuant to

17 U.S.C. 116 by which persons who can reasonably be

expected to have claims to royalty fees paid by the oper-

ators of coin-operated phonorecord players under the

compulsory license established by 17 U.S.C. 116 may

have access to the establishments in which such phono-

record players are located and to the phonorecord players

located therein to obtain information which may be reas-

onably necessary to determine the proportion of contri-

bution of the musical works of each such person to the

earnings of the phonorecord players for which fees shall

have been deposited. The terms “operator” and “‘coin-

operated phonorecord player’ have the meanings given

to them by paragraph (3) of section 116 of title 17.

§303.2 Access to establishments and phonorecord

players.

A person, or authorized representatives of such person,

who can reasonably be expected to have claims to royalty

fees paid by the operators of phonorecord players shall

have access to the establishments in which such phono-

record players are located during customary business

hours on regular business days. Such access shall be only

for the purpose of obtaining information concerning the

performance of musical works by the phonorecord play-

ers. The right of access shall be exercised in such a man-

ner as not to cause any significant interference with the

normal functioning of an establishment.

34a

$303.3 Recording of location listings in Copyright

Royalty Tribunal.

(a) Not later than November 1, 1978, every operator

of a phonorecord player who has filed in the Copyright

Office an application for a phonorecord player compul-

sory license according to the requirements of 17 U.S.C.

116 and the regulations of the Copyright Office and been

issued prior to October 1, 1978 a Copyright Office

phonorecord player certificate, shall record in the offices

of the Copyright Royalty Tribunal a list identifying the

location cr locations where licensed phonorecord players

of the operator are placed, and the number of phonorec-

ord players at any location with more than one such

player.

(b) Every operator of a phonorecord player who subse-

quent to October 1, 1978, obtains his initial Copyright

Office phonorecord certificate shall record in the office

of the Copyright Royalty Tribunal within thirty days

after the issuance of the initial certificate a list identify-

ing the location or locations where licensed phonorecord

players of the operator are placed, and the number of

phonorecord players at any location with more than one

such player.

phonorecord player who alters the number of licensed

phonorecord players at a location reported under para-

graph (a) or (b) of this section, or who has provided a

licensed phonorecord player or players to a location not

previously reported to the Copyright Royalty Tribunal

shall report to the Copyright Royalty Tribunal the

revised number of phonorecord players or that new loca-

tion and the number of licensed phonorecord players at

the location.

35a

(d) The location listing required under this section

shall include the full address of the location, including a

specific number and street name or rural route.

Approved; September 6, 1978.

THOMAS C,. BRENNAN,

Chairman,

[FR Doc. 78-25559 Filed 9-11-78; 8:45 am]

36a

APPENDIX M

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1543

(C.A. No. 78-2030)

AMUSEMENT AND MUSIC OPERATORS

ASSOCIATION, et al.,

Appellants,

Appellees.

MEMORANDUM OF APPELLEES

Pursuant to this Court’s order of February 29, 1980,

appellees respectfully submit their views as to whether,

in view of 17 U.S.C. §810, the district court had

jurisdiction over this case.

Pursuant to 17 U.S.C. §810, authority to conduct

judicial review of final decisions of the Copyright

Royalty Tribunal in proceedings under 17 U.S.C.

§801(b), viz., final decisions regarding determination of

vested exclusively in the United States Court of

Appeals. Any other judicial review of final decisions of

the Tribunal is precluded by 17 U.S.C. §810. The

instant case, however, does not involve a final decision

by the Tribunal regarding rate determination or distri-

bution of royalties, and does not arise out of a

37a

proceeding under 17 U.S.C. §801(b). Instead, this

matter constitutes a challenge by appellants to the.

authority of the Tribunal to issue regulations pursuant

to the mandate contained in 17 U.S.C. § 116(c)(5).

Those regulations, regarding access of copyright owners

to establishments containing jukeboxes, were adopted

by the Tribunal following full procedurai rulemaking,

including notice of and the opportunity to comment

upon the proposed regulations. Judicial review of these

regulations then commenced in the district court pur-

suant to, inter alia, 17 U.S.C. § 803(a). To the extent

that the Tribunal “decided” to adopt the regulations

after hearings on the matter, appellees submit that such

a decision is not contemplated within the purview of 17

U.S.C. §810, and that the usual judicial review afforded

in district court upon challenge to a regulation is not

precluded by that section which is intended to cover

other proceedings of the Tribunal specified therein.

Accordingly, for the reasons stated, it is the position

of appellees that the district court had jurisdiction over

the subject matter of this action.

/s/ Charles F. C. Ruff

CHARLES F. C. RUFF

United States Attorney

/s/ John A. Terry

JOHN A. TERRY

Assistant United States Attorney

/s/ Michael J. Ryan

MICHAEL J. RYAN

Assistant United States Attorney

38a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

memorandum was mailed to counsel for appellants,

Nicholas E. Allen, Esquire, and Philip F. Herrick,

Esquire, 1701 K Street, N.W., Washington, D.C. 20006

on this 10th day of March 1980.

/s/ Michael J. Ryan

MICHAEL J. RYAN

Assistant United States Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.