Program Suppliers v. Librarian of Congress

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 2005 Decided May 31, 2005

No. 04-1070

PROGRAM SUPPLIERS,
APPELLANT

v.

LIBRARIAN OF CONGRESS,
APPELLEE

NATIONAL ASSOCIATION OF BROADCASTERS, ET AL.,
INTERVENORS

Consolidated with
04-1071

Appeals of an Order of the
Librarian of Congress

Gregory O. Olaniran argued the cause for appellant
Program Suppliers. With him on the briefs was Michael E.
Tucci.

Timothy C. Hester argued the cause for appellant Public
Broadcasting Service. With him on the briefs were Ronald G.
Dove, Jr., and Paul Greco.
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Mark S. Davies, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Peter
D. Keisler, Assistant Attorney General, and William G. Kanter,
Deputy Director. Anne M. Murphy, Attorney, entered an
appearance.

Robert Alan Garrett argued the cause for intervenors Joint
Sports Claimants, et al. With him on the brief were John I.
Stewart, Jr., Michael L. Lazarus, L. Kendall Satterfield, and
Victor J. Cosentino. James L. Cooper and Philip R. Hochberg
entered appearances.

Before: SENTELLE, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL , Circuit Judge: Two parties—Program Suppliers
and Public Broadcasting Service—appeal the Librarian of
Congress’s order distributing 1998 and 1999 copyright royalty
payments among classes of claimants in accordance with the
recommendation of a Copyright Arbitration Royalty Panel.
Because the Librarian’s order survives our exceptionally
deferential standard of review, we affirm.

I.
Cable system operators (CSOs) make most of their money
by convincing subscribers to buy their cable services, which
typically consist of many channels. CSOs get their channels in
two ways. First, they contract to carry cable networks, such as
ESPN or CNN, that sell their programming only to CSOs.
Second, they retransmit signals broadcast by over-the-air
stations, such as independent television stations, public
broadcasting stations, or affiliates of broadcast networks like
ABC or CBS.
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Under section 111 of the Copyright Revision Act of 1976,
Pub. L. 94-553, 90 Stat. 2541, 2550, CSOs, assuming they fulfill
certain requirements irrelevant to the issues before us, commit
no copyright violations when they retransmit broadcast signals
to their subscribers. 17 U.S.C. § 111. In return for these
retransmission privileges, CSOs pay royalty fees into one or
more of three related funds maintained by the Register of
Copyrights. These funds compensate copyright owners for the
distant retransmission of non-network programming, i.e.,
retransmission that reaches viewers beyond the range of the
signal broadcast. See Nat’l Ass’n of Broadcasters v. Copyright
Royalty Tribunal, 675 F.2d 367, 373 (D.C. Cir. 1982)
(explaining that Congress focused on distant retransmission
because “the local retransmission by cable television of a local
broadcast merely duplicates programming that is already
available in an area” and on non-network programming because
network programming “theoretically is available across the
country [and thus] is not adversely affected even though it is
also available on cable”). The Librarian of Congress distributes
each year’s funds to copyright owners. See 17 U.S.C. §
111(d)(2)-(3) (2003); but see Copyright Royalty and
Distribution Reform Act of 2004, Pub. L. No. 108-419, 118 Stat.
2341 (2004) (altering the statutory framework for future
proceedings).
Ideally, copyright owners agree on the proportional
distribution of funds. See 17 U.S.C. § 111(d)(4). If they fail to
reach agreement, then the statute provides a process for sharing
the pie—a process that typically takes place in two stages. In
Phase I, royalties are distributed among classes of claimants: a
percentage goes to Program Suppliers, the copyright owners of
movies and syndicated shows; a percentage goes to the National
Association of Broadcasters (NAB), which represents copyright
owners of news programs; and so forth. In Phase II, royalties
are distributed within each class: Program Suppliers’ share, for
example, gets split among Paramount Pictures, Twentieth
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Century Fox Film Corporation, and other individual claimants.
For both phases, the adjudicative process is the same. In the
version of the statute applicable to this case, the process begins
with the Librarian appointing an ad hoc Copyright Arbitration
Royalty Panel. 17 U.S.C. § 802(a)-(b) (2003). Consisting of
three arbitrators, this “CARP” hears evidence and submits a
report to the Librarian recommending a particular distribution.
Id. § 802(c)-(f). The CARP “shall act on the basis” of the record
and precedent, including prior decisions by the Librarian, other
CARPs, and the Copyright Royalty Tribunal (a body that
adjudicated royalty disputes under an earlier version of the
statute). Id. § 802(c).
Once the CARP finishes its report, the Register advises the
Librarian whether to adopt it, and the Librarian “shall adopt” the
report unless he “finds that the determination is arbitrary or
contrary to the applicable [statutory] provisions.” Id. § 802(f).
If the Librarian rejects the report, he examines the record and
allocates the funds himself. Id. The Librarian’s decision “may
be appealed [to this court] by any aggrieved party who would be
bound by the determination.” Id. § 802(g). (Although the
parties in this case style their papers as petitions for review, the
statute’s use of the word “appeal” controls, so we treat the
“petitions” as appeals.)
This case involves the Phase I distribution of roughly $216
million in royalties for 1998 and 1999. For the first time since
the 1990-92 royalty distribution, the copyright owners failed to
agree on the Phase I distribution. The Librarian accordingly
appointed a CARP to split the royalties among the following
groups: Program Suppliers, Joint Sports Claimants (JSC),
Public Television Claimants (PTV), NAB, Music Claimants,
Canadian Claimants, Devotional Claimants, and NPR. The last
two parties settled with the others, leaving the CARP with six
claims to reconcile. The remaining parties submitted reams of
evidence, including updated versions of two reports, the Nielsen
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study and the Bortz survey, that the last Phase I CARP (the
“1990-92 CARP”) and that CARP’s predecessor, the Copyright
Royalty Tribunal, had used in making awards.
Presented to the CARP by Program Suppliers, the Nielsen
study measures what cable subscribers watch. It does this by
tracking a random set of cable-subscribing households and
recording the viewing choices of individual household members.
Aggregating this information, the study’s authors estimate how
total viewing distributes across different types of programming.
The authors found that viewers watching cable retransmissions
of distant signals in 1998 spent 59.1% of their time watching
movies/syndicated shows (Program Suppliers’ programming),
16.5% watching public television (PTV programming), 14.4%
watching news (NAB programming), 9.4% watching sports (JSC
programming), and .6% watching other programming. The
1999 Nielsen numbers showed a similar distribution.
The Bortz survey, supplied by JSC, measures what CSOs
perceive as the relative market value of different types of
programming. Researchers interview a sample of CSOs and ask
how, if they had to negotiate for the right to retransmit broadcast
signals distantly, they would allocate a fixed budget among
different types of programming. As compared to the Nielsen
study, Bortz gave a far higher value to sports and a far lower
value to movies/syndicated shows and public television.
Specifically, CSOs surveyed in 1998 said they would allocate
39.7% to movies and syndicated shows, 2.9% to public
television, 14.8% to news programs, 37% to sports, and the rest
to devotional and Canadian signals. The 1999 Bortz survey
produced similar results.
Critical to one of the two issues we face here, Bortz’s
methodology had two anti-PTV biases. First, the researchers
excluded from the otherwise random sample all CSOs that carry
only public television stations, thus leaving out those CSOs that
might be expected to assign the highest relative value to PTV.
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Second, when interviewing CSOs that distantly retransmit only
commercial signals, the researchers did not list public television
as a type of programming. Accordingly, none of these CSOs
assigned any value to public television, though they might have
done so if asked. Although this second bias had occurred in
earlier Bortz surveys, the first affected no Bortz survey prior to
1998.
In addition to the Nielsen and Bortz studies, the parties
submitted other evidence, including evidence identifying
relevant changes since 1992, the year of the last CARP award.
For purposes of this appeal, three changes merit mention.
First, WTBS, a superstation as defined in 17 U.S.C. §
119(d)(9), which generated roughly 45% of all section 111
royalties in 1992, became a cable network in 1998. With the
elimination of WTBS and another commercial superstation from
the broadcast station pool, the relative Nielsen viewing shares
for Program Suppliers (whose programming was featured
heavily on WTBS) fell significantly, and the relative viewing
shares for PTV rose to roughly four times their 1992 level.
Second, cable networks developed more shows that
resembled PTV programming, especially PTV’s signature
children’s programs. This competition from “look-alike” cable
networks may have affected PTV’s value compared to
commercial broadcast stations, which faced less content
competition from cable networks.
Third, in 1992 Congress passed the Cable Television
Consumer Protection and Competition Act, Pub. L. 102-385,
106 Stat. 1460, which, among other things, required CSOs to
carry a certain number of local broadcast signals from both
public television and commercial stations. See Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 630-32 (1994)
(describing the Act’s relevant provisions). These so-called
“must-carry rules” caused CSOs to significantly increase
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carriage of partially distant PTV signals (i.e., PTV signals that
CSOs carry to both subscribers within the signals’ original
broadcast range and subscribers outside that range). At the same
time, between 1992 and 1998, CSO carriage of distant PTV
signals (i.e., PTV signals carried only to subscribers outside the
signals’ original range) declined.
With this and much more evidence in hand, the CARP
recommended a distribution for the 1998 and 1999 royalties in
the three funds at issue. For the largest of these funds—the only
one we need discuss for purposes of this case—the CARP
recommended the following distribution of 1998 royalties:
37.8% to Program Suppliers; 35.8% to JSC; 14% to NAB; 5.5%
to PTV; 4% to Music Claimants; and 1.8% to Canadian
Claimants. The CARP decided on a similar distribution for the
1999 royalties.
Following the earlier CARP’s approach, the 1998-99 CARP
based this distribution on how it thought the market would value
the different programming types relative to each other in the
absence of a compulsory licensing system. This CARP differed
from the 1990-92 CARP, however, in its assessment of relative
market value. The 1990-92 CARP recognized that the Bortz
survey “focused more directly than any other evidence . . . [on]
relative market value” but found certain aspects of the survey
problematic. Most notably, the 1990-92 CARP believed that
because Bortz only looked at demand for types of programming
among CSOs, Bortz did not fully represent the relative market
value of these types since that value would turn on both the
supply of and the demand for programming. Based on this and
other concerns, the 1990-92 CARP also relied on Nielsen.
Departing from that approach, the 1998-99 CARP relied almost
exclusively on Bortz, giving two reasons for its new approach.
First, it revisited the 1990-92 CARP’s concerns about Bortz and
found them unwarranted, particularly given new evidence
introduced by the parties. Addressing the 1990-92 CARP’s
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concern that Bortz measured only demand, for example, the
CARP relied on evidence showing that “the supply of
programming remains the same, irrespective of the price.”
Accordingly, to determine relative market value the CARP only
needed to look at the demand side of the market represented by
Bortz. Second, the CARP explained that its apparent departure
from precedent continued an adjudicatory trend of relying less
on Nielsen and more on Bortz. In allocating 1983 royalties, the
Copyright Royalty Tribunal concluded that “the Nielsen Study
has features to it that . . . have led us to give it far greater weight
than any other piece of evidence.” 51 Fed. Reg. 12,792, 12,808
(Apr. 15, 1986). By comparison, in distributing 1989 royalties,
the Copyright Royalty Tribunal recognized that “both surveys
[are] essentially valid and relevant,” 57 Fed. Reg. 15,286,
15,299 (Apr. 27, 1992), and the 1990-92 CARP moved even
further from Nielsen, finding that Bortz “is . . . focused more
directly than any other evidence” on “relative market value.”
According to the 1998-99 CARP, its decision to ditch the
Nielsen study represented a logical extension of this pattern of
increased dependence on Bortz.
The CARP thus allocated awards based on Bortz except
where it found specific problems with Bortz’s methodology.
Most notably, these problems occurred with regard to PTV’s
award, due to Bortz’s two anti-PTV biases. Although the CARP
found itself “unable to quantify the adjustments that are needed
to remove the anti-PTV biases from Bortz,” it was “comfortable
establishing the PTV Bortz share . . . for both 1998 and 1999 as
the ‘floor’” for PTV’s award.
Because the CARP had no satisfactory direct measure of
PTV’s 1998/1999 relative value, it determined PTV’s award by
assessing whether circumstances warranted a change in the 5.5%
award PTV had received in 1992. Noting that “Nielsen studies
can serve as a tool for assessing changed circumstances
whenever the Bortz study can not be used,” the CARP observed
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that since 1992 PTV’s relative Nielsen ratings had risen
dramatically—in fact, almost quadrupled. The CARP stated that
this change, which it thought stemmed from WTBS’s
conversion from a broadcast station to a cable network, “by
itself, might militate in favor of raising PTV’s award.” Based
on several other factors, however, the CARP found that this
increase in viewing shares did not mean that PTV’s relative
market value had also increased. First, PTV’s 1998-99 Bortz
share had remained virtually identical to its 1992 Bortz share,
suggesting a “rational inference” that CSOs “perceived no value
enhancement in increased PTV viewing share.” Second, PTV’s
increased competition from look-alike cable networks likely
diminished the value of PTV signals relative to other broadcast
stations, which faced less competition from cable networks.
Third, the growth in PTV’s relative Nielsen viewing shares must
have resulted from increased carriage of partially distant PTV
signals—an increase that in turn stemmed from the new must-
carry rules. According to the CARP, this change demonstrated
no increase in relative market value, particularly since carriage
of distant PTV signals, more valuable to CSOs than partially
distant signals, had decreased since 1992.
In sum, because the CARP found “no persuasive evidence
that PTV’s relative value has significantly either increased or
decreased since 1990-92,” it awarded PTV exactly the same
percentage PTV received in 1992, i.e., 5.5%. This was the only
percentage the CARP left constant. Compared to the 1991-92
distribution, it gave a much lower relative award for 1998 to
Program Suppliers (37.8% as opposed to 55%) and higher
relative awards to JSC (35.8% as opposed to 29.5%) and NAB
(14% as opposed to 7.5%).
When the CARP’s determination went to the Librarian, both
Program Suppliers and Public Broadcasting Service
(PBS)—which represents virtually all PTV
claimants—challenged the proposed distribution. Program
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Suppliers objected that the CARP had relied exclusively on
Bortz and not at all on Nielsen. For its part, PBS argued that the
CARP should have found that changed circumstances justified
an increased PTV award. Finding neither argument convincing,
the Librarian followed the Register’s recommendation and
adopted the CARP’s proposed distribution. 69 Fed. Reg. 3606
(Jan. 26, 2004). Program Suppliers and PBS now appeal.

II.
Under the Copyright Revision Act of 1976, Pub. L. 94-553,
§ 810, 90 Stat. at 2598, this court reviewed decisions of the
Copyright Royalty Tribunal under standard Administrative
Procedure Act principles. Intending this court to conduct an
even more deferential review, Congress passed the Copyright
Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107
Stat. 2304, giving us “jurisdiction to modify or vacate a decision
of the Librarian only if [we] find[], on the basis of the record
before the Librarian, that the Librarian acted in an arbitrary
manner.” 17 U.S.C. § 802(g) (2003). As we explained in
National Association of Broadcasters v. Librarian of Congress,
146 F.3d 907, 918 (D.C. Cir. 1998), this new standard of review
“is significantly more circumscribed” than traditional APA
review. “[W]e will set aside a royalty award,” we held in that
case, “only if we determine that the evidence before the
Librarian compels a substantially different award.” Id. Under
this “exceptionally deferential” standard, we “will uphold a
royalty award if the Librarian has offered a facially plausible
explanation for it in terms of the record evidence.” Id. When
reviewing the Librarian’s statutory interpretation, we employ the
usual Chevron standard. Recording Indus. Ass’n of Am. v.
Librarian of Congress, 176 F.3d 528, 531 (D.C. Cir. 1999).

Program Suppliers’ Appeal
Program Suppliers are unhappy because the Librarian, in
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allocating most awards, accepted the CARP’s decision to rely
solely on the Bortz survey and not at all on the Nielsen study.
According to Program Suppliers, this violated the statutory
scheme, departed inexplicably from precedent, and at the very
least occurred without sufficient notice. We find these
arguments meritless.
Program Suppliers’ statutory argument fails for a simple
reason: the statute nowhere requires the CARP to rely on the
Nielsen study or any other direct evidence of viewing. Indeed,
Congress quite consciously provided “very little substantive
guidance” to the Copyright Royalty Tribunal, Christian
Broadcasting Network, Inc. v. Copyright Royalty Tribunal, 720
F.2d 1295, 1303 (D.C. Cir. 1983), and to the CARPs that
succeeded it, Nat’l Ass’n of Broadcasters, 146 F.3d at 927. As
the Report of the Committee on the Judiciary explained,
Congress did “not include specific provisions to guide the
Copyright Royalty [Tribunal] in determining the appropriate
division among competing copyright owners of the royalty fees
collected from cable systems.” H.R. Rep. No. 94-1476, at 97
(1976); see also Nat’l Ass’n of Broadcasters, 146 F.3d at 927
(observing that “our past decisions make clear that the Congress
delegated to the Tribunal (and now to the Librarian, the Register
and the Panel) responsibility for developing the criteria by
which claims are to be assessed”). Because Congress identified
no criteria for allocating awards, we must give the Librarian’s
approach “controlling weight unless [it is] arbitrary, capricious,
or manifestly contrary to the statute.” Chevron U.S.A., Inc. v.
Natural Res. Def. Council, 467 U.S. 837, 844 (1984); see also
Nat’l Ass’n of Broadcasters, 146 F.3d at 924. We detect nothing
either arbitrary or capricious about using relative market value
as the key criterion for allocating awards. Indeed, it makes
perfect sense to compensate copyright owners by awarding them
what they would have gotten relative to other owners absent a
compulsory licensing scheme. Nor did the CARP act
unreasonably in declining to rely on Nielsen for direct evidence
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of viewing, as Bortz adequately measured the key criterion of
relative market value. Moreover, as the CARP put it, Bortz
“subsumes inter alia all viewing data that a CSO might consider
when assessing relative value of programming groups.” In
short, the Librarian’s approach falls well within his broad
authority.
Turning to Program Suppliers’ second argument, we have
no doubt that the CARP departed from precedent. Indeed, the
Librarian never claims otherwise, and for good reason: the
1990-92 CARP relied on both Bortz and Nielsen, as had the
Copyright Royalty Tribunal in earlier decisions. And as
Program Suppliers point out, the Librarian mentioned in a 2001
order—albeit an order related to a Phase II proceeding where
Bortz could not be used—“that actual measured viewing of a
broadcast program is significant to determining the marketplace
value of that program.” 66 Fed. Reg. 66,433, 66,447 (Dec. 26,
2001). But as the Librarian explained in this case, and as
counsel for Program Suppliers acknowledged at oral argument,
the CARP “may deviate from what the [Copyright Royalty
Tribunal] or prior CARPs have done provided that it provides a
reasoned explanation.” 69 Fed. Reg. at 3615. Here, as the
Librarian recognized, the CARP not only “continued a trend
from prior decisions that placed less and less reliance on the
weight to be accorded the Nielsen study,” but also gave a
detailed, reasoned explanation for why it was doing so. See id.
The CARP found that record evidence—such as testimony that
the supply of programming types was unaffected by
price—undercut the basis for the 1990-92 CARP’s decision not
to rely solely on the Bortz survey. Having given satisfactory
reasons for rethinking the 1990-92 CARP’s concerns about
Bortz, the CARP was free to rely exclusively on that survey.
Finally, as to Program Suppliers’ argument that the CARP
unlawfully failed to give notice of its intent to abandon Nielsen,
the Librarian points out that prior Phase I decisions by the 1990-
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92 CARP and the Copyright Royalty Tribunal signaled
dwindling reliance on Nielsen and increased reliance on Bortz.
Even assuming lack of notice, however, we see nothing wrong
with the CARP’s action. While due process may require that
parties receive notice and an opportunity to introduce relevant
evidence when an agency changes its legal standard, Hatch v.
FERC, 654 F.2d 825, 835 (D.C. Cir. 1981), the CARP made no
such change. Like the 1990-92 CARP, it relied on relative
market value. Its approach differed only in how it credited
different types of evidence of relative market value. Program
Suppliers cite no case, nor are we aware of one, holding that due
process requires agencies to give advance notice of what
evidence they intend to credit.
Program Suppliers’ remaining arguments require little
attention. They complain that the CARP lacked substantial
evidence to reduce their award from the 1990-92 level. Even
were we to apply a substantial-evidence standard of review, but
see Nat’l Ass’n of Broadcasters, 146 F.3d at 918 (suggesting
that the standard is even more deferential), the CARP had
sufficient evidence to justify weighing Bortz and Nielsen
differently than did the 1990-92 CARP. Program Suppliers’
assertion that the CARP failed to reckon explicitly with a
tangential piece of evidence likewise fails. Even making the
doubtful assumption that the omission was error, it was
harmless, as the evidence was “never tendered for anything
more than corroborative evidence of evidence upon which the
Librarian chose not to place great reliance,” Beethoven.com LLC
v. Librarian of Congress, 394 F.3d 939, 947 (D.C. Cir. 2005).

PBS’s Appeal
PBS’s challenge presents a closer question. According to
PBS, the CARP erred in concluding that no changed
circumstances since 1992 affected PTV’s relative market value.
PBS perceives two specific problems: that the CARP chose an
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inappropriate methodology and that its application of this
methodology was flawed.
Like the Librarian, we have no serious problem with the
CARP’s choice of methodology. Though the CARP could have
explained its reasoning better, its basic approach makes sense.
It began by recognizing that it had no direct measure of PTV’s
relative market value: the Bortz study contained anti-PTV
biases whose effect it could not precisely calculate, and no other
evidence reliably demonstrated PTV’s value. The CARP thus
decided to assess relative market value based upon whether
circumstances had changed since 1992, when the prior CARP
allocated 5.5% to PTV. To be sure, in considering this question,
the CARP explicitly stated that it could look at shifts in Nielsen
viewing shares, but it never suggested that it would rely
exclusively on such shifts. This left the CARP free to examine
other evidence, such as changes in the cable network market and
in the regulatory situation. Moreover, and contrary to PBS’s
argument, we see no theoretical problem with the CARP’s
decision to compare PTV’s 1992 and 1998/1999 Bortz numbers
as part of its changed circumstances evaluation. Although flaws
in the 1998/1999 Bortz surveys rendered them, standing alone,
unusable for identifying PTV’s precise relative market value, the
CARP could still compare them with past Bortz surveys to
evaluate whether overall circumstances had changed.
The CARP’s application of its otherwise sound
methodological approach is more troubling. Though
recognizing the dramatic increase in PTV’s Nielsen viewing
shares—an increase that stemmed largely from superstation
WTBS’s disappearance from the pool of broadcast signals—the
CARP nonetheless found no changed circumstances, in part
because PTV’s 1998/1999 Bortz numbers were the same as in
1992. As PBS points out, however, the CARP acknowledged
that one of the two anti-PTV flaws in Bortz—the exclusion from
the survey sample of CSOs carrying only public television
 15

signals—was for all practical purposes new to the 1998/1999
Bortz surveys. Accordingly, if “true” Bortz valuation (i.e.,
Bortz valuation absent all biases) had remained the same in 1992
and 1998/1999, then due to the new bias, one would have
expected Bortz numbers to decrease in 1998/1999. Put another
way, unless some increase had occurred in the true Bortz
valuation, the numbers should not have remained constant.
Indeed, the CARP recognized as much, stating that “the lack of
increase in PTV’s Bortz share,” as opposed to the increase in its
Nielsen viewing share, “might be explained partially” by the
new bias. Yet the CARP still used the parity of PTV’s 1992 and
1998/1999 Bortz numbers to conclude that no changed
circumstances had occurred.
Though viewed in isolation, the CARP’s reliance on the
parity of Bortz numbers seems problematic, the CARP relied on
additional factors to conclude that circumstances had in fact not
changed since 1992. Specifically, the CARP pointed to the rise
of PTV’s look-alike cable network competitors, the regulatory
changes that led to an increase in CSOs’ partially distant
carriage of PTV signals, and the decrease in CSOs’ distant-only
carriage of PTV signals—all factors that convinced the CARP
that the growth in PTV’s Nielsen viewing shares stemmed from
factors other than an increase in PTV’s relative market value.
Particularly given our exceptionally deferential standard of
review, we think these factors provide a “facially plausible
explanation,” Nat’l Ass’n of Broadcasters, 146 F.3d at 918, for
the CARP’s conclusion of no changed circumstances. Put
differently, because the evidence does not “compel[] a
substantially different award,” id., we have no basis for setting
aside the Librarian’s decision to accept the CARP’s
recommendation.
The Librarian’s decision is affirmed.
So ordered.