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CHRISTIAN BROADCASTING v. COPYRIGHT ROYALTY TRIB.

Nos. 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

720 F.2d 1295 (1983)

The CHRISTIAN BROADCASTING NETWORK, INC., Appellant, v. The COPYRIGHT ROYALTY TRIBUNAL, Appellee, Major League Baseball, et al., Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., National Association of Broadcasters, Broadcast Music, Inc., Old-Time Gospel Hour, American Society of Composers, Authors and Publishers, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. OLD-TIME GOSPEL HOUR, Appellant, v. COPYRIGHT ROYALTY TRIBUNAL, Appellee, Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., National Association of Broadcasters, Broadcast Music, Inc., American Society of Composers, Authors and Publishers, Major League Baseball, et al., Christian Broadcasting Network, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. PTL TELEVISION NETWORK, Appellant, v. COPYRIGHT ROYALTY TRIBUNAL, Appellee, Major League Baseball, et al., Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., National Association of Broadcasters, Broadcast Music, Inc., Old-Time Gospel Hour, American Society of Composers, Authors and Publishers, Christian Broadcasting Network, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. The NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Multimedia Program Productions, Inc., Motion Picture Association of America, Inc., et al., National Public Radio, Superstation, Inc., Broadcast Music, Inc., Old-Time Gospel Hour, American Society of Composers, Authors and Publishers, Major League Baseball, et al., Christian Broadcasting Network, Inc., Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. The MOTION PICTURE ASSOCIATION OF AMERICA, INC., Its Member Companies, and Other Program Producers and Distributors, Petitioners, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, National Public Radio, Superstation, Inc., Broadcast Music, Inc., National Association of Broadcasters, Old-Time Gospel Hour, Multimedia Program Productions, Inc., American Society of Composers, Authors and Publishers, Major League Baseball, et al., Christian Broadcasting Network, Spanish International Network, Inc., Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors. SPANISH INTERNATIONAL NETWORK, INC., Appellant, v. COPYRIGHT ROYALTY TRIBUNAL, Appellee, National Association of Broadcasters, Motion Picture Association of America, Inc., et al., Multimedia Program Productions, Inc., Superstation, Inc., American Society of Composers, Authors and Publishers, Major League Baseball, et al., Broadcast Music, Inc., Christian Broadcasting Network, Canadian Broadcasting Corporation, Public Broadcasting Service, et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided October 25, 1983.

Attorney(s) appearing for the Case

Dennis Lane, Washington, D.C., with whom Arthur Scheiner, Washington, D.C., was on the brief for petitioners/intervenors Motion Picture Association of America, Inc., et al., in 82-1372, 82-1312, 82-1326, 82-1327, 82-1371 and 82-1383.

W. Thad Adams, III, Charlotte, N.C., for appellant PTL Television Network in 82-1327.

Victor E. Ferrall, Jr., Washington, D.C., with whom John I. Stewart, Jr., Robert M. Halperin, Erwin G. Krasnow and Michael D. Berg, Washington, D.C., were on the brief for petitioner/intervenor National Association of Broadcasters in 82-1371, 82-1312, 82-1326, 82-1327, 82-1372 and 82-1383. James J. Popham, Washington, D.C., also entered an appearance for the National Association of Broadcasters.

Donald A. Kaul, Washington, D.C., with whom Shelley R. Grant and Edwina Dowell, Washington, D.C., were on the brief for petitioner/intervenor Spanish International Network, Inc., in 82-1383, 82-1312, 82-1326, 82-1327, 82-1371 and 82-1372.

Grover C. Cooper, Clifford M. Harrington and Richard J. Bodorff, Washington, D.C., were on the brief, for appellant/intervenor The Christian Broadcasting Network, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

John H. Midlen, Jr., Washington, D.C., was on the brief for petitioner/intervenor Old-Time Gospel Hour in 82-1326, 82-1312, 82-1327, 82-1371 and 82-1372.

Bruce G. Forrest, Atty., Dept. of Justice, Washington, D.C., with whom William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellee/respondent Copyright Royalty Tribunal.

James F. Fitzpatrick, David H. Lloyd, Robert Alan Garrett and Vicki J. Divoll for Major League Baseball, Philip R. Hochberg for National Basketball Association, et al., and Robert Coll for National Hockey League and Judith Jurin Semo, Washington, D.C., for National Collegiate Athletic Association, were on the joint brief for intervenors Major League Baseball, et al., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

Arnold P. Lutzker, Washington, D.C., was on the brief for intervenor Multimedia Program Productions, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

Bernard Korman and I. Fred Koenigsberg, New York City, were on the brief for intervenor American Society of Composers, Authors and Publishers in 82-1312, 82-1326, 82-1371, 82-1372 and 82-1383. Benjamin L. Zelenko, Washington, D.C., also entered an appearance for American Society of Composers, Authors and Publishers.

Charles T. Duncan, Michael W. Faber, Joel S. Winnik and Amy Grossman Applegate, Washington, D.C., were on the brief for intervenor Broadcast Music, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

Malcolm A. Hoffmann, New York City, was on the brief for intervenor Canadian Broadcasting Corporation in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

Lawrence A. Horn, Jacqueline Weiss and Gene A. Bechtel, Washington, D.C., were on the brief for intervenor Public Broadcasting Service in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

Jamie S. Gorelick, David O. Stewart and Janice F. Hill, Deputy Gen. Counsel, Washington, D.C., were on the brief for intervenor National Public Radio in 82-1312, 82-1326, 82-1327, 82-1371 and 82-1372.

Robert F. Corazzini and Peter H. Feinberg, Washington, D.C., for intervenor Superstation, Inc., in 82-1312, 82-1326, 82-1327, 82-1371, 82-1372 and 82-1383.

Before ROBINSON, Chief Judge, WILKEY and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Pursuant to the 1976 Copyright Act (the Act), 17 U.S.C. § 101-810 (Supp. V 1981), cable television systems may, by following specified procedures, retransmit certain copyrighted programming to their subscribers without incurring liability for copyright infringement. To avoid liability, however, cable systems must obtain a compulsory license for their operations, in part by paying...

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