Beethoven Com v. Librarian Cong

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2004 Decided January 14, 2005

No. 02-1244

Beethoven.Com LLC., et al.,
Petitioners

v.

Librarian of Congress,
Respondent

American Federation of Television and Radio Artists, et al.,
Intervenors

Consolidated with
02-1246, 02-1247, 02-1248, 02-1249

On Petitions for Review of an Order of the
United States Department of Justice

Bruce G. Joseph argued the cause for Participant Licensee
petitioners. With him on the briefs were Karyn K. Ablin, Dineen
P. Wasylik, and Elizabeth H. Rader.

Elizabeth H. Rader and David Kushner argued the cause for
Non-Participant petitioners/intervenors. With them on the briefs
was Mark J. Prak.
 2

Michele J. Woods argued the cause for Copyright
Owners/Performers petitioners. With her on the briefs were
Ronald A. Schechter, Patricia Polach, Arthur Levine, and Laura
P. Masurovsky. Cary H. Sherman and Robert A. Garrett entered
appearances.

Mark W. Pennak, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Peter D. Keisler, Assistant Attorney General, and William
Kanter, Deputy Director.

Before: SENTELLE, HENDERSON and RANDOLPH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Three groups of Petitioners seek
review of a final rule issued by Respondent Librarian of
Congress (“Librarian”), setting copyright license rates for
webcasters. See Determination of Reasonable Rates and Terms
for the Digital Performance of Sound Recordings and Ephemeral
Recordings, 67 Fed. Reg. 45,240 (July 8, 2002) (“Final Rule”).
The Librarian’s decision was based on proceedings before a
Copyright Arbitration Royalty Panel (“CARP”). One group of
Non-Participant Petitioners-Intervenors (“Non-Participants”) did
not participate formally in the CARP proceedings, but
challenges the rates set by the Librarian based on the CARP’s
recommendations. The Non-Participants also argue that the
CARP process itself was flawed because it excluded small
webcasters and those who could not afford arbitration fees,
violating their rights to due process and freedom of expression.
The Non-Participants include Beethoven.com and three other
entities who seek to join or intervene in this case, as well as one,
Education Information Corporation (“EIC”) that only seeks to
intervene. A second group of Petitioners–Copyright Owners and
 3

performers that include the Recording Industry Association of
America (“RIAA”) and other industry groups (jointly,
“Owners”)–argue that the Librarian set rates arbitrarily low by
not adequately considering past agreements he had on the
record. The third group of Participant Licensee Petitioners
includes (1) radio broadcasters who simulcast via radio and
internet (“Simulcasters”) and (2) internet webcasters who
broadcast solely over the internet (“Webcasters”) (jointly,
“Broadcasters”). These Broadcasters, who were parties to the
CARP proceedings, claim that the Librarian’s rates were
arbitrary, contending that rates should be lowered because they
were not based on real market factors. Respondent Librarian
attacks the standing of the Non-Participants, while defending his
rate determinations. Because we hold that the Non-Participants
have no standing and seek to intervene only to impermissibly
raise new issues, we deny their petition for review and do not
permit intervention. As to the issues properly before us, raised
by the Owners and Broadcasters, we find no reversible error and
therefore deny their petitions for review. The Owners’
challenge to the payment date set by the Librarian is moot.

I. Background

A. Statutory Background

Since the enactment of the Digital Performance Right in
Sound Recordings Act of 1995, Pub. L. No. 104-39 (amending
17 U.S.C. §§ 106 & 114), copyright owners have had exclusive
rights in performances of their works by digital audio
transmission. The Digital Millennium Copyright Act of 1998
(“DMCA”), Pub. L. No. 105-304 (amending scattered sections
of 17 U.S.C.), expanded copyright protection to non-
subscription “webcasting” and created a statutory license in
performances by webcast. 17 U.S.C. § 114(f)(2). The DMCA
creates a six-month negotiation period for copyright owners and
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statutory licensees to privately determine rates and fees for these
licenses. Id. § 114(f)(2)(A). If no agreement is reached at that
time, the Librarian convenes a CARP to set rates and terms “that
most clearly represent the rates and terms that would have been
negotiated in the marketplace between a willing buyer and a
willing seller.” Id. § 114(f)(2)(B). The CARP decision is to be
based on “economic, competitive and programming information
presented by the parties,” including

(i) whether use of the service may substitute for or may
promote the sales of phonorecords or otherwise may
interfere with or may enhance the sound recording
copyright owner’s other streams of revenue from its sound
recordings; and

(ii) the relative roles of the copyright owner and the
transmitting entity in the copyrighted work and the service
made available to the public with respect to relative creative
contribution, technological contribution, capital investment,
cost, and risk.

Id. The same standards are to be used to determine the statutory
license rate for “ephemeral recordings,” the temporary copies
necessary to facilitate the transmission of sound recordings
during internet broadcasting. Id. § 112(e).

Any person entitled to a statutory license may become a
party to the CARP rate-setting proceedings by submitting
“relevant information and proposals” to the CARP. 17 U.S.C.
§ 802(c). Parties are entitled to discovery, presentation of
evidence and witnesses, and a formal trial-type hearing before
an arbitrator. 37 C.F.R. §§ 251.41, 251.43, 251.45. The CARP
then acts on the basis of the written record and precedent from
the Copyright Royalty Tribunal, other CARP decisions, and the
Librarian. Costs of the arbitration are imposed on the parties to
 5

the CARP proceeding, with the CARP determining the
allocation of costs among the parties. 17 U.S.C. § 802(c).

Within 90 days after receiving the CARP report, the
Librarian must either adopt or reject its determination, adopting
it unless the rates and terms are “arbitrary or contrary to the
applicable provisions” of the statute. 17 U.S.C. § 802(f). If the
Librarian rejects the report he may set a fee based on the record
before the CARP. Id. “[A]ny aggrieved party who would be
bound by the determination” may challenge the Librarian’s
decision before this Court. Id. § 802(g). This Court then has
jurisdiction to “modify or vacate a decision of the Librarian only
if it finds, on the basis of the record before the Librarian, that the
Librarian acted in an arbitrary manner.” Id.

B. The CARP and the Librarian’s Decision

The CARP proceeding at issue here was instituted to set
rates and terms for statutory licenses during the period between
October 28, 1998 and December 31, 2002, after the period for
voluntary negotiation had expired. None of the Non-
Participants took steps to join the CARP proceedings by filing
Notices of Intent to Participate. One Non-Participant, EIC,
wrote a letter to the CARP asking permission to present an
amicus-type pleading because it had only limited interest in the
results and could not afford to participate in the full proceedings.
This request was denied. The Owners and Broadcasters did take
part in the CARP arbitration. The CARP completed its
proceedings on February 1, 2002 and presented its report to the
Librarian on February 20, 2002. See Rate Setting for Digital
Performance Right in Sound Recordings and Ephemeral
Recordings, Docket No. 2000-9, available at
http://www.copyright.gov/carp/webcasting_rates.pdf (“CARP
Report”).
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During the private negotiation period prior to the CARP
arbitration, the RIAA formed a committee of five major record
labels to develop and carry out a common strategy for engaging
in collective negotiations with prospective licensees. This
committee ultimately negotiated 26 agreements which RIAA
submitted to the CARP as evidence of market valuation of the
licenses. The CARP determined that the RIAA strategy was
targeted at supra-competitive licensing fees to conform with its
view of the “sweet spot” for the royalty rates. CARP Report at
48. RIAA then would only close deals that hit its “sweet spot”
to create a favorable record before the CARP, generally with
businesses driven by factors other than the value of the sound
performance rights. Id. The CARP found that the rates in 25 of
these agreements were higher than the majority of buyers was
willing to pay and thus did not establish a reliable benchmark.
Id. at 51. Nonetheless, it did accord them some weight by using
them to justify rounding ephemeral recording rates from 8.8
percent of performance fees up to 9 percent. Id. at 104. To
corroborate the rates in the 26 benchmark agreements, RIAA
also submitted 115 record label licensing agreements between
individual record companies and licensees. The CARP
disregarded all of these agreements because they did not involve
the same digital performance rights at issue in the proceeding.
Id. at 71.

The one RIAA benchmark given “great weight” by the
CARP was an agreement between RIAA and Yahoo!, Inc.
(“Yahoo!”), a company recognized to be a “major player” in
making sound recording transmissions (the “RIAA-Yahoo!
agreement”). CARP Report at 60-61. This weight was not
without qualifications, however. The CARP found that due to
Yahoo!’s dominant role in the industry it stood to bear a
substantial portion of any arbitration costs and thus was willing
to accept an inflated royalty rate to avoid these costs. Id. at 68.
Yahoo! also testified that it anticipated significant savings in
 7

arbitration fees and opportunity costs by making an agreement
with RIAA. Id. Even so, the rates negotiated by Yahoo! were
considerably lower than those of the 25 other agreements
offered by RIAA as benchmarks. Id. at 60. The terms of the
RIAA-Yahoo! agreement provided that Yahoo! pay $1.25
million for the first 1.5 billion performances and after that 0.05¢
per radio retransmission performance and 0.2¢ per internet-only
performance. Final Rule, 67 Fed. Reg. at 45,251.

The Broadcasters also submitted a proposed benchmark for
determining the fair market value of the performance right based
on a computation of the performance fees paid by over 800 radio
stations for rights to musical works. Using this analysis, their
expert concluded that 0.008¢ per radio retransmission and
0.014¢ per internet-only performance was appropriate. The
CARP determined that actual marketplace agreements for
webcasting were a better benchmark than a theoretical model.
CARP Report at 43. Thus it relied entirely on the RIAA-Yahoo!
agreement to set its rates and terms, while acknowledging that
this agreement was inflated. Id. at 67-69.

The CARP determination was challenged by several parties.
The Librarian rejected it in part on May 21, 2002. See Final
Rule, 67 Fed. Reg. at 45,243, citing Order, Docket No. 2000-9
CARP DTRA 1&2 (May 21, 2002). The Librarian agreed with
the CARP that the benchmark and record label agreements were
generally unreliable, but found that the CARP’s minimal
reliance on the 26 benchmark agreements to round ephemeral
rates up was arbitrary. Final Rule, 67 Fed. Reg. at 45,262.
Because he did not consider benchmarks from the 25 non-
Yahoo! agreements, he lowered ephemeral royalty rates from
the CARP’s recommendation of 9 percent of the royalty fees
paid to 8.8 percent. Id. The Librarian based his decision solely
on the RIAA-Yahoo! agreement, refusing to reduce its value to
account for any litigation cost savings Yahoo! might have
 8

realized by avoiding the CARP process. Id. at 45,255. The
Librarian abandoned the dual-rate structure adopted by CARP
to differentiate between radio retransmission and internet-only
webcasting, adopting instead a rounded-down average of the two
rates, 0.07¢ per performance. Id. at 45,255. The Librarian did
accept the $500 minimum fee recommended by the CARP–the
lowest such fee in all the benchmark submissions–reasoning that
RIAA would not have agreed to it if it was not at least sufficient
to meet costs. Id. at 45,263. Finally, although no parties had
requested the change, the Librarian altered the terms of the
CARP agreement to move the due date for royalty payments
back two months to October 20, 2002. Id. at 45,271.

The Broadcasters, Owners, and Non-Participants petitioned
this Court for review of the Librarian’s decision. Non-
Participants also sought in the alternative to intervene in the
case. These issues have been consolidated for review.

II. Analysis

A. Status of the Non-Participants

1. Standing

As a preliminary question we must consider whether Non-
Participants have standing before this Court. The Supreme
Court has repeatedly observed that “[f]ederal courts are courts
of limited jurisdiction. They possess only that power authorized
by Constitution and statute, which is not to be expanded by
judicial decree.” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 373, 377 (1994) (citations omitted). The
statutory grant of jurisdiction under which we review this order
of the Librarian provides for appeals “by any aggrieved party
who would be bound by the determination.” 17 U.S.C. § 802(g).
Non-Participants claim that they should be allowed to petition
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for review because they are aggrieved by the order, and the word
“party” should encompass them and all other entities both
aggrieved and “bound by the determination.” The Librarian
counters that “party” refers to a party to the CARP proceeding
below.

The language of § 802(g) has not been interpreted by any
federal court of appeals. This Court has, however, considered
similar language in other contexts. We have consistently
interpreted the Hobbs Act’s grant of jurisdiction to “any party
aggrieved” to be limited to parties to the agency proceedings
giving rise to the order. See Simmons v. ICC, 716 F.2d 40, 42
(D.C. Cir. 1983) (interpreting 28 U.S.C. § 2344). We have held
that identical language in the Bank Holding Company Act
similarly limits jurisdiction to parties to the agency proceedings.
Jones v. Board of Governors, 79 F.3d 1168, 1171 (D.C. Cir.
1996) (interpreting 12 U.S.C. § 1848). We note that the D.C.
District Court has also held that the plain meaning of this
language in the context of the Federal Election Campaign Act
limits it to parties to the administrative complaint. Judicial
Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003)
(interpreting 2 U.S.C. § 437g(a)(8)(A)). It is thus consistent
with precedent to similarly construe 17 U.S.C. § 802(g).

The plain language also mandates such a construction.
Because Congress chose to grant review to “parties,” we have no
reason to believe it meant “persons” or anything else other than
parties to the proceeding. When it means to grant broader
review, it says so, as in the Administrative Procedure Act, which
accords judicial review to any “person . . . aggrieved.” 5 U.S.C.
§ 702 (emphasis added); see Simmons, 716 F.2d at 43. We can
find no instance where Congress has used “party” to simply
mean “person.”
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Furthermore, the Congress that first enacted this language
in 1976 as 17 U.S.C. § 810 knew of our interpretation of “party
aggrieved.” See, e.g., Gage v. U.S. Atomic Energy Comm’n, 479
F.2d 1214, 1219 (D.C. Cir. 1973) (interpreting the Hobbs Act);
Easton Utilities Comm’n v. Atomic Energy Comm’n, 424 F.2d
847, 853 (D.C. Cir. 1970) (referring to interpretation of Hobbs
Act); Outward Continental North Pac. Freight Conference v.
Federal Maritime Comm’n, 385 F.2d 981, 982 n.3 (D.C. Cir.
1967) (Hobbs Act); see also First Nat. Bank of St. Charles v.
Board of Governors of Federal Reserve System, 509 F.2d 1004,
1008 (8th Cir. 1975) (Bank Holding Company Act). Assuming
as “is always appropriate . . . that our elected representatives,
like other citizens, know the law,” we take Congress’ use of
“any aggrieved party” to mean that judicial review is limited to
parties to the proceeding below, as similar language has
consistently been interpreted. Cannon v. Univ. of Chicago, 441
U.S. 677, 696-99 (1979).

2. Intervention

Although Non-Participants do not have standing before this
Court as petitioners, they have, in the alternative, requested
leave to intervene. However, “[a]n intervening party may join
issue only on a matter that has been brought before the court by
another party.” Edison Electric Institute v. EPA, No. 96-1062,
2004 U.S. App. LEXIS 25474 at *21 (D.C. Cir. Dec. 10, 2004).
Non-Participants’ brief makes First Amendment and due process
claims not addressed by any of the other petitioners properly
before this Court. The bare assertion in Non-Participants’ reply
brief that the other copyright licensee petitioners shared their
First Amendment and due process concerns, and that the briefs
“intentionally address different arguments to avoid repetitious
submissions” is not sufficient to bring Non-Participants’ claims
into the purview of this action. Non-Particip. Reply Br. at 4; see
Edison Electric, 2004 U.S. App. LEXIS 25474 at *21. We will
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not permit intervention for the purpose of raising these new
issues.

B. Review of the Librarian’s Decision

We turn to the issues raised by parties properly before us.
This Court has “jurisdiction to modify or vacate a decision of
the Librarian only if it finds, on the basis of the record before the
Librarian, that the Librarian acted in an arbitrary manner.” 17
U.S.C. § 802(g). This standard is “exceptionally deferential.”
Recording Indus. Ass’n of Am. v. Librarian of Congress, 176
F.3d 528, 532 (D.C. Cir. 1999). We “will uphold a royalty
award if the Librarian has offered a facially plausible
explanation for it in terms of the record evidence.” National
Ass’n of Broadcasters v. Librarian of Congress, 146 F.3d 907,
918 (D.C. Cir. 1998) (“NAB”).

Understandably, the Owners challenge the Librarian’s
ruling as setting rates too low, and the Broadcasters argue that
the rates have been set too high. The Owners initially argue that
the Librarian failed to adequately consider the 115 label
agreements and 26 RIAA benchmark agreements in setting the
royalty rates for sound recording performances and ephemeral
recordings. They also criticize the Librarian’s choices of
minimum fee and due date for payments in arrears.
Broadcasters argue that the Librarian’s reliance on the RIAA-
Yahoo! agreement was inappropriate, that he should have
adjusted rates further downward because of litigation cost
savings in that agreement, and that the rejection of the CARP’s
different rates for Simulcasters and Webcasters was
inappropriate. Under our deferential standard of review, we find
no reversible error in the Librarian’s decision.
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1. Failure to consider the RIAA’s proposed alternate
benchmarks

The Owners argue that the Librarian acted arbitrarily by
rejecting the 115 label agreements without sufficient
explanation. In their view, these agreements “provide
corroboration for RIAA’s benchmark analysis from rates
reached in the actual marketplace, unconstrained by the statutory
license.” Owners’ Br. at 23. Accordingly, the Owners maintain
that, by failing to consider the label agreements, “the Librarian
arbitrarily neglected a tremendous amount of economic and
competitive information that would have permitted him to make
a far more informed decision on rates for use of copyrighted
sound recordings.” Id. This claim is without merit.

The CARP rejected these label agreements as useful
benchmarks for two reasons. It first explained that, unlike the
26 RIAA benchmark agreements, all of which addressed the
“precise rights at issue here,” the label agreements involved
rights not subject to a statutory license. CARP Report at 71.
The CARP additionally explained that, were it inclined to rely
on these agreements, “the effect would likely be to undermine,
not corroborate, RIAA’s proposals in that many of the
agreements reflect rates below those which RIAA is proposing.”
Id. The Librarian accepted these rationales, see Final Rule at
45,248 n.20, and in so doing was not obligated to “fully
recapitulat[e]” the CARP’s analysis. NAB, 146 F.3d at 926; see
17 U.S.C. § 802(f). The Owners nevertheless maintain that the
Librarian should have looked harder at–and ultimately relied
on–these label agreements.

Their challenge cannot succeed under the deferential
standard of review applicable here. NAB, 146 F.3d at 924. The
Owners purport to attack the sufficiency of the Librarian’s
explanation for eschewing reliance on the label agreements. But
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at the bottom, their challenge seeks to undermine the substance
of the CARP’s and Librarian’s determinations regarding the
weight to ascribe to these agreements. As the NAB court
explained, “it is emphatically not [the court’s] role to
independently weigh the evidence . . . .” 146 F.3d at 930. Even
to the extent that the Owners argue that the Librarian set rates in
an arbitrary manner by failing to place some greater emphasis on
the label agreements, their contentions are unpersuasive.

Under the applicable“exceptionally deferential” standard of
review, we conclude that there is nothing “compelling” in the
label agreements, or in the CARP’s and Librarian’s treatment of
them, that would allow the court to hold that the Librarian set
the rates in an “arbitrary manner.” See NAB, 146 F.3d at 931.
The Librarian’s decision to eschew reliance on the label
agreements in favor of the RIAA-Yahoo! agreement seems
perfectly sensible because the label agreements, unlike the
RIAA-Yahoo! agreement, indisputably cover rights not subject
to the statutory licenses involved in this proceeding.
Furthermore, as the Librarian explained, the RIAA-Yahoo!
agreement was “particularly reliable and probative” not only
because it was an “actual marketplace agreement[] pertaining to
the same rights for comparable services,” but also because it
involved a successful and sophisticated market participant with
resources and bargaining power comparable to RIAA’s own.
Final Rule, 67 Fed. Reg. at 45,247-48.

At oral argument, the Owners asserted that the Librarian
inaccurately described the content of the label agreements in a
footnote, and, therefore, his estimation of the value of these
agreements was necessarily arbitrary and cannot have been
based on an in-depth analysis of the agreements. Final Rule, 67
Fed. Reg. at 45,248 n.20. The details of the Librarian’s
description are in the sealed record and redacted from the
Federal Register to protect trade secrets, but are ultimately not
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significant in our determination. The description of the
agreements was at worst harmless error, if error at all, as the
agreements were never tendered for anything more than
corroborative evidence of evidence upon which the Librarian
chose not to place great reliance. Even if described properly, the
agreements could have been no more than that – essentially a
shadow of a shadow.

2. Owners’ challenges to the treatment of RIAA’s 26
benchmark agreements

The Owners’ claims concerning the Librarian’s treatment
of the 26 RIAA benchmark agreements likewise fail. They
maintain that the Librarian acted arbitrarily, and contrary to 17
U.S.C. §§ 112 and 114, by only relying on the RIAA-Yahoo!
agreement and not the other 25 RIAA benchmark agreements.
More specifically, they assert that the Librarian acted in an
arbitrary manner by: (1) ignoring the weight the CARP gave the
other 25 benchmark agreements by adopting a unitary rate
instead of a dual rate structure; (2) rejecting the CARP’s reliance
on the ephemeral recording rate contained in eight of the 25
other agreements to set an ephemeral recording rate of 9 percent;
and (3) adjusting both the sound recording performance rate and
ephemeral recording rate downward through the “application of
rounding.” Owners’ Br. at 26. These claims all fail.

The Owners’ contentions, like the ones addressed above, are
unpersuasive under the applicable standard of review. See NAB,
146 F.3d at 924, 930. In deploying this standard, the court “will
set aside a royalty award only if [it] determine[s] that the
evidence before the Librarian compels a substantially different
award.” Id. at 918. Despite the Owners’ arguments to the
contrary, the Librarian has offered a “facially plausible
explanation . . . in terms of the record evidence” for the royalty
rates under review. Id. The Librarian thoroughly explained his
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decision to base the sound recording performance rate and
ephemeral recording rate on the terms of the RIAA-Yahoo!
agreement, as that agreement was “particularly reliable and
probative” because it reflected actual marketplace rates. See
Final Rule, 67 Fed. Reg. at 45,247-49. The Librarian further
explained how, based on the terms of the RIAA-Yahoo!
agreement, he arrived at a unitary 0.07¢ royalty rate for sound
recording performances and a rate of 8.8 percent of performance
royalties for ephemeral recordings. Id. at 45,251-53, 45,255,
45,261-62. Given the Librarian’s reliance on the RIAA-Yahoo!
agreement, the 25 other benchmark agreements–which both the
CARP and Librarian found to be unreliable–do not resonate as
evidence so compelling as to require “a substantially different
award.” NAB, 146 F.3d at 918.

Moreover, each of the Librarian’s specific decisions
challenged by the Owners is adequately explained and based on
record evidence. First, the Librarian thoroughly explained his
decisions to select a “unitary” rate for transmissions of sound
recordings – which he based on the finding that the
RIAA-Yahoo! agreement’s differential rate structure did not
reflect a true distinction in value between internet-only webcasts
and radio retransmissions – and to set the sound performance
royalty rate at the mid-point between the “blended” rate
established for the first period (1.5 billion transmissions) and
that set for the second period. See Final Rule, 67 Fed. Reg. at
45,252-53, 45,255. Furthermore, in setting the rate at the
mid-point of this “zone of reasonableness,” the Librarian
explained that “it makes more sense to use both values and take
the average of the two” because, “[i]n this way, the final unitary
rate captures the actual value of the performance made in the
initial period . . . and the projected value of the transmissions at
the agreed upon rates for the remainder of the license period;
and it falls within the range of acknowledged values for these
transmissions.” Id. at 45,255.
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Second, the Librarian explained that the CARP’s decision
to give any weight to eight of the 25 other RIAA benchmark
agreements in setting the ephemeral recording rate was arbitrary.
See id. at 45,262. Because the CARP had “previously
repudiated” these agreements, the Librarian explained that,
absent “a clear explanation,” it was arbitrary for the CARP to
use these agreements (which contained ephemeral recording
rates “around” 10 percent of the performance royalties) to justify
its decision to round the RIAA-Yahoo! 8.8 percent ephemeral
recording rate up to 9 percent. Id. at 45,261-62. As the CARP
did not clearly explain its about-face, the Librarian set the
ephemeral recording rate at 8.8 percent. See id. at 45,262. This
decision was not arbitrary because the rate was derived from the
RIAA-Yahoo! agreement, and the CARP had previously
determined that the other benchmark agreements containing
higher rates were unreliable and did not reflect going market
rates.

Third, the Librarian’s “application of rounding” was not
arbitrary. As explained above, the Librarian declined to increase
the ephemeral recording rate to 9 percent, because the CARP did
so based on agreements that it had found unreliable for
establishing marketplace rates. See id. at 45,261-62; CARP
Report at 60 (“The Panel concludes that the 25 non-Yahoo!
license agreements . . . are unreliable benchmarks.”). The
Librarian also did not act in an arbitrary manner in setting the
sound performance royalty rate at 0.07¢, rather than at 0.074¢.
As noted above, the Librarian explained why he set the zone of
reasonableness for the sound recording performance rate where
he did, and he ultimately selected a rate that fell within that
identified zone. We can require no more. See NAB, 147 F.3d at
918, 929 (“Our job, rather, is to determine whether the royalty
awards are within a ‘zone of reasonableness.’”) (citation
omitted).
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3. Minimum fee

The Owners next challenge the Librarian’s selection of a
$500 minimum fee for eligible non-subscription services. They
contend that, in accepting the CARP’s determination, the
Librarian arbitrarily failed to consider the full range of minimum
fees established in the licenses RIAA negotiated in the
marketplace, or base the annual minimum fee on the
RIAA-Yahoo! agreement. Accordingly, the Owners ask the
court to modify the Librarian’s decision by increasing the annual
minimum fee to $5,000. Because the Librarian did not act in an
“arbitrary manner” in determining the fee, we have no power to
modify it. See 17 U.S.C. § 802(g).

After examining the marketplace agreements offered by
RIAA, the CARP set the minimum fee based on the “lowest
value” that RIAA had accepted in one of its prior agreements.
See Final Rule, 67 Fed. Reg. at 45,262-63. This choice was not
arbitrary, as the Librarian explained, because it comported with
the CARP’s understanding of the fee’s purpose: to cover the
license administrator’s administrative costs and the value of
access to all of the sound recordings “up to the cost of the
minimum fee.” Id. at 45,262. As the Librarian observed,
“RIAA would not have negotiated a minimum fee that failed to
cover at least its administrative costs and the value of access to
all the works up to the cost of the minimum fee.” Id. The
Librarian therefore concluded, as the CARP had itself
concluded, that $500 was the appropriate minimum fee because,
“[h]ad RIAA truly believed that the $500 minimum fee was
inadequate to cover at least the administrative costs and the
value of access, . . . it would have required a higher fee.” Id. at
45,263. Accordingly, because the Librarian “plausibly
explained” his decision to adopt the CARP’s $500 minimum fee,
and because that determination “bears a rational relationship to
 18

the record evidence,” see NAB, 146 F.3d at 924, he did not act
in an “arbitrary manner” in setting a $500 minimum license fee.
See 17 U.S.C. § 802(g).

4. Setting an effective date for the payment of royalty rates

Finally, the Owners raise two challenges to the effective
date the Librarian set for the royalty rates, which, in turn,
established the deadline for full payment of arrears. They
initially maintain that, by setting an effective date different from
the date of Federal Register publication, the Librarian violated
the explicit dictates of the Copyright Act. As they see it, 17
U.S.C. § 114(f)(4)(C), which provides that “[a]ny royalty
payments in arrears shall be made on or before the twentieth day
of the month next succeeding the month in which the royalty
fees are set”(emphasis added), must be read together with §
802(f), which states that “the Librarian shall . . . issue an order
setting the royalty fee” (emphasis added), to mean that the
Librarian “sets” the royalty rate on the date it is published by the
Federal Register. Thus, in their view, by setting September 1,
2002 as the effective date instead July 8, 2002–and,
consequently, requiring full payment of arrears on October 20,
2002 instead of August 20, 2002–the Librarian violated §
114(f)(4)(C)’s plain command. The Owners additionally
maintain that, even if the Librarian is authorized by statute to
delay the effective date of a royalty rate, his decision to do so
here was nevertheless arbitrary, because it is not supported by
any record evidence.

Before determining the merits of the Owners’ contentions,
we must first determine whether we have jurisdiction to do so.
By constitutional design, a federal court is authorized only to
adjudicate “actual, ongoing controversies,” Honig v. Doe, 484
U.S. 305, 317 (1988), and thus may not “give opinions upon
moot questions or abstract propositions, or . . . declare principles
 19

or rules of law which cannot affect the matter in issue in the case
before it.” Mills v. Green, 159 U.S. 651, 653 (1895), quoted in
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992). Accordingly, if an event occurs while a case is pending
on appeal that makes it impossible for the court to grant “any
effectual relief whatever” to a prevailing party, the appeal must
be dismissed. See Mills, 159 U.S. at 653; accord, e.g., McBryde
v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001) (“If
events outrun the controversy such that the court can grant no
meaningful relief, the case must be dismissed as moot.”). As the
Owners candidly admit, the Librarian’s deadline for making
payments in arrears, as well as the earlier one desired by the
Owners, has long since passed. Because even the most
favorable of rulings could not turn back the clock on either
deadline we can offer the Owners no meaningful relief. The
issue is thus moot and this Court is without authority to address
it.

While acknowledging that the issue is ostensibly moot, the
Owners maintain that the Court may nevertheless address it
because it falls within the “capable of repetition yet evading
review” exception to the mootness doctrine. See Southern
Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). In order
to invoke this exception, however, the Owners must demonstrate
that “(1) the challenged action [is] in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there
[is] a reasonable expectation that the same complaining party
[will] be subjected to the same action again.” Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (per curiam). While the
Owners may satisfy the “evading review” element, they do not
satisfy the “capable of repetition” one.

The Supreme Court and this Court have held that “orders of
less than two years’ duration ordinarily evade review.”
Burlington N. R. Co. v. STB, 75 F.3d 685, 690 (D.C. Cir. 1996);
 20

see Southern Pacific, 219 U.S. at 514-16. Because the
Librarian’s deadline for full payment of arrears followed
publication of the royalty rate in the Federal Register by only a
few months, it was a virtual certainty that the deadline would
pass before the Owners’ challenge to it could be fully litigated
and resolved by the court. Cf. Burlington, 75 F.3d at 690 (“The
agency action here would also evade review, because of the
virtual certainty that contracts giving rise to such action will
expire before the conclusion of judicial review of the action . .
. .”). The Owners therefore meet the first element of this
exception to the mootness doctrine.

They fail, however, to satisfy their burden under the second
half of the test. For an action to be “capable of repetition” there
must be “a reasonable expectation that the same complaining
party would be subjected to the same action again.” Weinstein,
423 U.S. at 149. Courts have “interpreted ‘same action’ to refer
to particular agency policies, regulations, guidelines, or
recurrent identical agency actions.” Public Utilities Comm’n of
Cal. v. FERC, 236 F.3d 708, 714-15 (D.C. Cir. 2001). In an
effort to satisfy this element of the exception, the Owners offer
that “royalty payments in arrears may be due for 2003-04,
because certain statutory licensees take the position that rates are
not yet in place. When rates are set, the Librarian might choose
once again to delay the payment deadline.” Owners’ Br. at 30
n.16. Because the Librarian must initiate royalty rate adjustment
proceedings at two-year intervals following January 2000, there
is at least a theoretical possibility that, in a proceeding in which
the Owners will almost certainly be involved, the Librarian will
again set an effective date for the royalty rate that is later than
the Federal Register publication date. See 17 U.S.C. §§
112(e)(7) & 114(f)(2)(C)(i)(II). A “theoretical possibility,”
however, is not sufficient to qualify as “capable of repetition.”
Murphy v. Hunt, 455 U.S. 478, 482 (1982); accord Public
Utilities Comm’n of Cal., 236 F.3d at 714. There must instead
 21

be a “reasonable expectation” or “demonstrated probability” that
the action will recur. Murphy, 455 U.S. at 482; Public Utilities
Comm’n of Cal., 236 F.3d at 714. Given that the Librarian’s
choice of the challenged effective date was apparently motivated
by factors unique to this proceeding and unlikely to recur–i.e.,
the burden placed on licensees who must pay all royalties owed
since October 1998 and the need for the Copyright Office to
promulgate rules necessary for distributing royalty fees, see
Final Rule, 67 Fed. Reg. at 45,271–the Owners have failed to
demonstrate that there is any “reasonable expectation” that the
Librarian will alter payment dates again. Thus this issue is
moot. “[A]s a matter of course, [we] vacate[] agency orders in
cases that have become moot by the time of judicial review.”
American Family Life Assur. Co. v. FCC, 129 F.3d 625, 630
(D.C. Cir. 1997), citing A. L. Mechling Barge Lines, Inc. v.
United States, 368 U.S. 324, 329 (1961).

5. Broadcasters’ challenge to reliance on the RIAA-Yahoo!
agreement

The Broadcasters claim that the Librarian acted arbitrarily
by adopting the CARP’s use of the RIAA-Yahoo! agreement
because it was not comparable to market rates. The Librarian
must establish “rates and terms that most clearly represent the
rates and terms that would have been negotiated in the
marketplace between a willing buyer and a willing seller.” 17
U.S.C. § 114(f)(2)(B). “In establishing such rates and terms, the
[CARP] may consider the rates and terms for comparable types
of digital audio transmission services and comparable
circumstances under voluntary license agreements . . . .” 17
U.S.C. § 114(f)(2)(B)(ii) (emphasis added).

The Broadcasters argue the RIAA-Yahoo! agreement is not
comparable because it was negotiated in a nascent market
controlled by an allegedly monopolistic group that employed
 22

market power to set fees it knew would be used as CARP
evidence. Specifically, the Broadcasters claim that there was no
direct evidence of a competitive market because the RIAA
Negotiating Committee represented over 90% of all copyrighted
sound recordings. Broadcasters point to the “cartel’s” inability
to conclude agreements with more than merely 26 of the
hundreds of broadcasters in the marketplace, and its inability to
reach agreement with any radio broadcaster, as evidence of its
monopolistic power. Broadcasters’ Br. at 21 (citing CARP
Report at 50).

The Broadcasters’ argument ultimately fails because it rests
simply on a challenge to the merits of the Librarian’s decision
to rely on the RIAA-Yahoo! agreement as competitive. Again,
we do not examine the correctness of the Librarian’s decision
regarding Yahoo!’s competitiveness or the weight the CARP
afforded witnesses testifying about the RIAA-Yahoo!
agreement, but question only whether the Librarian explained
his decision on comparability in “facially plausible” terms
according to record evidence. See NAB, 146 F.3d at 918. The
Librarian discussed this issue at some length. See Final Rule, 67
Fed. Reg. at 45,246-56.

The Librarian noted that the RIAA-Yahoo! agreement
merited significant weight because “(1) Yahoo! was a successful
and sophisticated business which, to date, had made well over
half of all DMCA-compliant performances; [and] (2) it had
comparable resources and bargaining power to those RIAA
brought to the table.” Id. at 45,248. The Librarian did not
merely parrot the CARP’s conclusions, but criticized the weight
it gave to the RIAA-Yahoo! agreement’s rate distinction
between webcasting and simulcasting. Id. He concluded that
“the different rates do not actually represent the parties’
understanding of the value of the performance right for these
types of transmissions,” but resulted from other interests of the
 23

parties during negotiations. Id. at 45,248, 45,251. The Librarian
also cited record facts supporting a finding that the Yahoo!
agreement was statutorily comparable, noting RIAA’s assertions
that “many webcasters affirmatively stated that Yahoo! is a
competitor” and that “the number of the performances made by
Yahoo! on its Internet-only channels is roughly equivalent to the
number of performances made by the other webcasters in this
proceeding . . . .” Id. at 45,249. The Librarian’s consideration
of the record evidence and explanation of his reasoning are
certainly “facially plausible” and sufficient to withstand our
“exceptionally deferential” review. NAB, 146 F.3d at 918, 930.

6. Failure to include litigation costs in the valuation of the
RIAA-Yahoo! agreement

The Broadcasters next argue the Librarian acted in an
arbitrary manner by refusing to adjust the weight given to the
RIAA-Yahoo! agreement to account for savings in litigation
costs that Yahoo! achieved by negotiating its rate before the
CARP convened.

The Broadcasters assert that the Librarian refused to make
an adjustment to account for litigation cost savings while
acknowledging that it would be appropriate. They cite Yahoo!
testimony from the sealed record giving an estimate of costs the
company saved by avoiding the CARP proceeding, maintaining
that this savings put the effective rate of the RIAA-Yahoo!
agreement well below the “zone of reasonableness” determined
by the Librarian. This misstates the Librarian’s position, which
is that any adjustment from such savings is so uncertain that
even without the adjustment the rate was likely already within
the statutory zone of reasonableness. Specifically, the Librarian
found that although “Webcasters had argued for a downward
adjustment . . . to compensate for litigation cost savings” and “it
is reasonable to assume that the rates in the Yahoo! agreement
 24

are slightly higher” because of the litigation cost savings, “there
is a problem in making an adjustment to the proposed rate where
the record contains no information quantifying the added value
of the factors that purportedly resulted in inflated rates.” Final
Rule, 67 Fed. Reg. at 45,255. He concluded that, “because the
Register is recommending a rate in the middle of the ‘zone of
reasonableness,’ it is safe to conclude that the recommended rate
falls into that zone of reasonableness even taking these factors
into account.” Id.

The key question is not whether the Librarian’s decision to
refrain from adjusting for litigation costs was correct, but
whether he based his decision not to adjust the rates on a
“facially plausible” explanation of the record evidence. See
NAB, 146 F.3d at 918. This question is a close one, because the
Librarian devoted only the above-quoted sentences to the issue
and did not discuss it at length. However, because of our
extremely deferential review we find that the Librarian’s
explanation at least provides a “facially plausible” account of
the reasons for his decision.

7. The use of different rates for Simulcasters and
Webcasters

Broadcasters finally argue that the Librarian acted in an
arbitrary manner by rejecting the portion of the CARP’s
decision that set different rates for Simulcasters and Webcasters.
Broadcasters point to record evidence showing that Yahoo! did
not believe it could pass on the rates it had negotiated to its
simulcasters. Final Rule, 67 Fed. Reg. at 45,254. They also
highlight that the CARP found “essentially undisputed
testimony that traditional over-the-air radio play has a
tremendous promotional impact on phonorecord sales.” CARP
Report at 74-75. On the basis of such record evidence, they
claim that the Librarian was bound to accept the CARP’s
 25

recommendation to apply lower rates to Simulcasters than
Webcasters, and that to reject the CARP’s decision on this point
was arbitrary.

These contentions fail because the Librarian adequately
cites and explains record evidence to support his contrary
decision. The Librarian rejected the CARP’s reasoning,
pointing out that “the Yahoo! agreement established rates for
retransmissions of the same types of radio station signals as
those directly streamed by commercial broadcasters” such that
the “burden of proof” was put on the Broadcasters to
“distinguish between the direct transmission of their programs
over the Internet and the retransmission of the same
programming made by a third-party.” Id. at 45,254. Finding
that they were “unable to offer any compelling evidence on this
point,” the Librarian concluded that the “Panel was unable to
distinguish between commercial broadcasters and radio
retransmissions,” and therefore should have set the same rates
for the two. Id. The Librarian plausibly reasoned that the rates
should be the same, stating

an examination of the record clearly shows that both
[Simulcasters’ and Webcasters’] business models are
fundamentally comparable in at least one all-important
way: they simulcast AM/FM programs over the Internet to
anyone anywhere in the world who chooses to listen. Even
accepting the fact that [Simulcasters] say their fundamental
business is to provide programming to their local audiences,
the potential for reaching a wider audience cannot be
denied. Given that the record indicates that 70% of
Yahoo!’s radio retransmissions are to listeners within 150
miles of the originating radio station’s transmitter, Yahoo!’s
business with respect to radio retransmissions seems to be
very similar.
 26

Id. Whether correct or not, the Librarian’s decision to counter
the CARP on this point is plausibly explained in terms of the
record before him.

Broadcasters nonetheless further argue that the Librarian
arbitrarily disregarded their contention that the RIAA-Yahoo!
rates were not representative of market prices because
Broadcasters “never would have agreed to the rates that Yahoo!
paid because their purposes for streaming differ from Yahoo!’s
purposes.” Id. In support of this argument, Broadcasters
similarly cite record testimony that “Yahoo! feared broadcasters
[using its services] would be unwilling to absorb the rates
Yahoo! negotiated for streaming AM/FM programming.” Id.
Contrary to the Broadcasters’ assertions, the Librarian did not
avoid grappling with this evidence, but plausibly explained that
it was not persuasive because, since Yahoo! concluded no
agreements with the Broadcasters on this point, “no
determination could be made as to whether the broadcasters
would have accepted the rate and paid it, or rejected it out of
hand.” Id. at 45,255. We do not examine the correctness of this
contention, but simply affirm that the Librarian adequately
explained his decision based on record evidence. He acted
within his prerogative to find the RIAA’s arguments more
persuasive than the Broadcasters’. Thus, the Librarian did not
act arbitrarily in accepting the Register’s decision, in opposition
to the CARP’s, to set the same rate for Simulcasters and
Webcasters.

III. Conclusion

For the reasons given above we deny intervention to the
Non-Participants, deny the petition for review, and vacate the
Librarian’s determination of the effective date for payment as
moot.