Federal Register Notice

Federal Register: June 17, 1997 (Volume 62, Number 116)]
[Notices]
[Page 32829-32830]
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LIBRARY OF CONGRESS

Determination of Statutory License Rates and Terms for Certain
Digital Subscription Transmissions of Sound Recordings

AGENCY: Copyright Office, Library of Congress.

ACTION: Announcement of the schedule for the proceeding.

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SUMMARY: The Copyright Office of the Library of Congress is announcing
the schedule for the 180 day arbitration period for determining the
rates and terms for certain digital subscription transmissions of sound
recordings, as required by the regulations governing this proceeding.

EFFECTIVE DATE: June 17, 1997.

ADDRESSES: All hearings and meetings for the determination of the
royalty fees for certain digital subscription transmissions of sound
recordings shall take place in the James Madison Building, Room 414,
First and Independence Avenue, S.E., Washington, D.C. 20540.

FOR FURTHER INFORMATION CONTACT: Nanette Petruzzelli, Acting General
Counsel, or Tanya Sandros, Attorney Advisor, at: Copyright Arbitration
Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington,
D.C. 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: Section 251.11(b) of the regulations
governing the Copyright Arbitration Royalty Panels, 37 CFR subchapter
B, provides that:

At the beginning of each proceeding, the CARP shall develop the
original schedule of the proceeding which shall be published in the
Federal Register at least seven calendar days in advance of the
first meeting. Such announcement shall state the times, dates, and
places of the meetings, the testimony to be heard, whether any of
the meetings, or any portion of a meeting, is to be closed, and if
so, which ones, and the name and telephone number of the person to
contact for further information.

This notice fulfills the requirements of Sec. 251.11(b) for the
proceeding to determine the rates and terms for transmissions of sound
recordings by certain digital subscription services.
On August 2, 1996, the Library announced the precontroversy
discovery period for this docket and requested interested parties to
file Notices of Intent to Participate. 61 FR 40464 (August 2, 1996). On
October 11, 1996, Digital Cable Radio Associates and Muzak, L.P. filed
a motion to suspend the proceeding, which DMX, Inc. joined on October
15, 1996. These three parties are collectively referred to as the
``Subscription Services'' throughout this notice. The Subscription
Services requested the suspension pending the resolution of their
motion to compel document production. On November 27, 1996, the Office
denied the motion to suspend the proceeding, but in recognition that
the precontroversy schedule was already in a de facto state of
suspension due to the Subscription Services' refusal to exchange
documents, the Office adopted a new schedule. See Order in Docket No.
96-5 CARP DSTRA (November 27, 1996). In a subsequent order, the Office
notified the parties that the 180 day arbitration period would commence
on June 2, 1997. See Order in Docket No. 96-5 CARP DSTRA (March 28,
1997). Then on June 2, 1997, the Office published a Federal Register
notice announcing the names of the arbitrators and the initiation of
the 180 day period. 62 FR 29742 (June 2, 1997).
On June 3, 1997, the parties to this proceeding met with the
arbitrators for the purpose of setting a schedule for this proceeding.
At that meeting, the parties agreed to present their cases in two
phases. Phase I will address the proposed royalty rates and phase II
will address the terms associated with those rates. The schedule for
the proceeding is as follows:

Opening Remarks for all parties....... June 9, 1997.
Presentation of Direct Cases (Phase
I):
Recording Industry Association of June 9, 1997....................... Jay Berman, Hilary Rosen.
America (RIAA).
RIAA................................ June 10, 1997...................... Zachary Horowitz, Gary Morris,
James Trautman.
RIAA................................ June 11............................ Barry Massarsky, Larry Gerbrandt.
RIAA................................ June 12............................ David Wilkofsky.
Subscription Services:
<bullet> Digital Cable Radio June 16, 1997...................... David J. Beccaro, W. Barry
Associates McCarthy, Jr.
June 17, 1997...................... Lou Simon.
<bullet> DMX, Inc................... June 17, 1997...................... Jerold H. Rubinstein, Douglas G.
Talley.
<bullet> Muzak...................... June 18, 1997...................... Bruce B. Funkhouser.
<bullet> Joint witness.............. June 19, 1997...................... John R. Woodbury, Ph.D.
Presentation of Direct Cases (Phase June 30, 1997...................... (witness list is not available for
II): July 1, 1997....................... Phase II at this time).
July 3, 1997.......................
Presentation of Rebuttal Cases: July 26-31, 1997.
Close of 180 day period............... November 28, 1997.

During this proceeding, the Subscription Services plan to present
evidence submitted under a protective order issued by the Librarian of
Congress. See Recommendation and Order in Docket No. 96-5 CARP DSTRA
(September 18, 1996). In anticipation of the need to close portions of
these meetings, the Subscription Services filed a motion on June 6,
1997, requesting the CARP to close the meetings scheduled for June 9,
11, 12, and June 16-20, 1997, because various expert witnesses and
representatives of the Subscription Services expect to discuss
substantial amounts of confidential and trade secret information on
these days. The arbitrators considered the motion on June 9, 1997,
before hearing the opening statements, and voted to close the meetings
pursuant to their authority under 37 CFR 251.13(d). This provision
allows a CARP to close its meetings ``[i]f the matter involves
privileged or confidential trade secrets or financial information.''
The record of the vote to close the meetings is as follows:

The Hon. Lenore Ehrig, Chairperson--Yes
The Hon. Thomas A. Fortkort--Yes
The Hon. Sharon T. Nelson--Yes

The regulations require that the Copyright Office publish the
original schedule for the CARP proceeding in

[[Page 32830]]

the Federal Register at least seven calendar days in advance of the
first meeting. 37 CFR 251.11(b). Pursuant to 37 CFR 251.11(d), however,
the arbitrators voted to publish the schedule on shorter notice than
the required seven days in order to maximize the allotted time to hear
the evidence and write their report. The results of the vote on the
question, whether the requirement for a seven calendar day notice
should be waived, are:

The Hon. Lenore Ehrig, Chairperson--Yes
The Hon. Thomas A. Fortkort--Yes
The Hon. Sharon T. Nelson--Yes

At this time, the Office does not have a list of any additional
persons expected to attend the closed meetings, but the Office will
provide this information to any party, upon request, when it becomes
available. Further refinements to the schedule will be announced in
open meetings and issued as orders to the parties participating in the
proceeding. All changes will be noted in the docket file of the
proceeding, as required by the Copyright Office regulations governing
the administration of CARP proceedings. 37 CFR 251.11(c).

Dated: June 11, 1997.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 97-15826 Filed 6-16-97; 8:45 am]

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