distribution royalties for the years two thousand and two thousand and three the first issue i'm going to address comes along chronologically at the i'm going to kind of move chronologically in terms of the underlying proceeding and  fundamentally different in the proceeding to distribute the one thousand nine hundred seventy eight realties i p g filed a motion to compel the motion picture association to produce all of the underlying data and electronic files but not all and as a result i did you was unable to replicate the m p a methodology now the n p a is trying to say well if you look at dr robinson's testimony she equivocates she says well i could've done this i could have got done that but came up instead of being i p g entitled to a half a percent three quarters of a percent i could use and title to as much as seven point five percent to four point six percent under an enormous increase  produce everything underlying their study not just some things ok now it could have been that if the idea of the judges had granted that order that m p a would come back and said we have nothing more but the judges didn't grant the order and so the which it did or so you know nothing exists so the point is is that had the judges who issued the order the n p a to produce everything then the n p a would have had to produce everything issue certainly with regard to the issue of precedent as we've explored in our papers there is a rich president here barred from the right of the car the c r t c before the c r b in dealing with these different issues and the car in the c r t c issued an opinion saying that your ship based studies looked at the wrong thing then in the one step further was compounded by the understanding that one of the problems with your ship based is not just that is focusing on the wrong thing your ship focuses on how many eyeballs actually see the programme whereas the decision here made by a cable system operators not how many people are going to watch how many people are going to subscribe to my service and the car recognise that was a fundamental difference and that was why the car said looking at ratings is looking at the wrong thing you have to look at what the cable system operator is  not how many people are actually watching the show and buying tide detergent because they're watching a particular show compounded with that was then the decision in ninety seven when the zero viewing issue was brought up and the course said your problem is very significant and it has to be addressed and if it's not satisfactorily addressed we should be using viewership a study saying some here may address something knowledge of the problems they have and repression element in the methodology basically what they said is dr gray said he was going to aggregate up the numbers to fill in the blanks and what that meant is as follows if you look at a picture you can see the picture of justice berger but if you focus in on that picture so much that you get down to little pixels of color and all your louis is looking at those little pixels of color it doesn't make any sense it's only when you move away that in the picture forms the problem with zero viewing is this it's as if you focus in like that so all you see are pixels but there are very few of them there just aren't that many period so that then when you focus back you don't get a picture of you just as you're going to picture this kind of like a cloud because there's to be missing ga methodology but what we're trying to say is based upon the president and the testimony regarding the zero viewing their methodology has more problems their methodology is one of the prime the presence or energies of so you should never base a distribution methodology on this that would leave just our methodology which is what we're advocating what we're asking for i want to turn quickly to the issue of canadian rights this is been misunderstood i think a little bit in the in the government's papers no and i'm glad you asked because the problem is exactly where you're going the copyright act provides not cover an act but the way that the phase one categories are set up there's a canadian broadcasters category so if are a comedian company and one of your programs is broadcast in the united states you obtain royalties only through the canadian broadcasters through however if you're an american broadcaster but show th material of yours is rebroadcast from canada back into the united states which happens i'll tell you but it does then you the american owner of that canadian originated broadcast have a right in the program suppliers category and the acknowledged that and they agreed with that what happened was was that dr gray didn't understand that distinction and dr gray said i conclude that in certain years i've used programming is seventy five thirty percent canadian ok fine but we're not going to give you any more money because we think it's a small percentage because the overall percentage of programming that comes like that from canada is only about three percent the here's the problem to give a near where  a methodology ip gets half a percentage point of the overall pot well if it's half a percentage point the overall high and they were throwing out canadian broadcasting which was anywhere from thirty percent to seventy five percent of our total motion for reconsideration saying look you made an error in a you know you can always give us these programs and they did and no one in a brief does that give an explanation for that because there simply isn't one it was a mistake research to different result and that's what the board is allowed and the worst predecessors of a lot of the times this is this is the first case that we're aware of in which the board is ever prevented a party to from presenting a methodology on on  opposing party methodology if we agree with you on this what should happen you know one of the case should be reversed and remanded and sent back to the board for further determinations and there are a number of want to russians if any do we do would we give under your theory  you are all we're asking for is for real then with an order to decide the case based upon substantial evidence and that there the board could have would could have a wide range of discretion as to how they do that they could consider the evidence is already going they could consider the evidence was already in the record which includes dr william brown's rebuttal testimony that sets for the entire month of ology they could ask to request the parties to present further evidence which which the board  opportunity to rebut its its contentions that in this matter which were not based on evidence but aside from that they don't have to do what i'm what i'm saying that would be the best option which would be decided based on the rec them because there was no objection to that admission of dr brown's testimony but they could they could request further evidence they could we believe although the board disagrees subpoena their own their own witnesses so yeah good morning sunday macneil for the government i must the panel has a different preference i'd like to start with the distribution of the religious programming royalties a party has to ensure it's not the dollar gee in its written direct statement a party who waits for rebuttal to offer this evidence prejudices the opposing party denies the judges an adversarial presentation of any critiques or flaws of that methodology and impairs the streamlined process the congress the stablished for the efficient and orderly distribution of cable on the record and here when the judges rejected one party's methodology on the merits and another party's method methodology is procedurally barred they look to the record before them to see if there was another one of them is incomplete or on the record as such that the the final determination should make go back and say well we need to supplement the record or we need to do something to provide us a better basis for making a far reasoned determination two points first of all your honor i have to disagree with your characterization of the determination  arbitrary what the judges did here was a look at the party's own proposals and they said for two of the four years in question the parties either actually agree about what an appropriate distribution might be or they've come pretty close to a very you know where time limit what is what are you supposed to do if what you mean by the record is incomplete is that the parties haven't even told the judges what they would accept as far as the distribution of our party has given them a rational basis for  does not allow the same the numbers are far apart is it is it what is your view what am i supposed to do well in that case that i think it's a hard question and the judges have never been presented with it but what they did here i what they did here really trying to figure out what they're supposed to do and the record doesn't give them a methodology and they just suppose when they come up with something completely on their own nobody gets any chance to address was coming when the party's own proposals overlapped for the year two thousand and five brown had no doubt what would happen if the proposals happen over left hand overlapped i think the judges would have been in a very difficult position the congress didn't semi to let them have reactions to it and they've got this clock ticking well i suppose that one thing they could have done in this is an issue that the court considered in the recent music choice case is looks to the distribution in the prior year it's a commonsense proposition that the world simply doesn't change overnight and so if the parties had given them absolutely nothing to go on they could have said well how did this all come out last time where the same party is in front of us do we have any reason to believe that the world looks completely different in the music choice case number for the court especially to seven seventy four act third at ten o nine the judges were confronted with evidence that they felt was seriously flawed and so as further guidance they look to the record in a prior proceeding here though we do not have that problem the copyright royalty judges recognized that the parties actually agreed on one of the four years in question and they very nearly were read on the two thousand  about bumping up against well nobody thought in this nobody proposed in this case to the judges that they extend the statutory time limit and i think it's hard to fault the judges for trying to do the job that congress set for them in the way that congress told them to do it  we have no position your honor here as a judge is recognized the fact that the settling devotional claimants waited nine months after the other parties actually after all other parties and then did their written direct didn't agree actually you said nearly agree that's correct right and so i mean that strikes me there's the there's a difference there right there is a difference your honor but again the settling devotional claimants calculated risk in this proceeding presented the judges with the problem that they had to solve their job was to find a rational way to distribute the pool of money in front of them between the two people who said that they wanted it and so what they did was they looked at the numbers and they took the figure that i p g proposed and i p g i might and and then what about two thousand and one in two thousand and three when he sued for the for two thousand and one in two thousand and three the party's proposals didn't coincide and there was also as we discuss no evidence in the record that other evidence in the record that the judges could turn to so they took the two thousand and nine of the classic situation and then one of the agencies should say we need more rather than just throwing a dart dart board but of course they didn't throw a dart your honor they looked at the two thousand and two thousand and two years and they said not only do the party substantially agree that these two numbers are close and the two thousand and one in two thousand and three that relative market value and i think he's numbers came to them without factoring in membership at all and using the methodology they said absolutely could not be credited so how can they even give that money any role in all that much as you say that number that they had any role at all in their decision making you say it's bad bad bad bad bad and we're going to use the analysis can be bad bad bad but the judges can rely on the record in making their determination and a party's own proposal its own statement about what it would accept is a part of the record and a proper basis for the judge's superannuation it's what it thought it was and i go to based on doing your honor the judges obligation is to make a decision on the record and find a rational way to look at the pot of money between two parties do we wish that the evidence in this case was better absolutely but we had a job to do we had a time to do it and and we resolved the problem that the parties presented us with in a rational way based on the agreement between the parties for two thousand the close proximity of the parties numbers in two thousand and two and relying on the commonsense proposition that at the stroke of midnight on december thirty first of two thousand everything we already know about what might be market value doesn't change  the parties the proponents the person who claims to be the designated agent of a claimant bears the burden to provide evidence that facially shows an agreement to act as the principal for another that's the standard that the judges applied here and the judges in this case appropriately concluded that things like an executed agreement is partially email strains simply don't suffice to answer the question whether i p g or anyone else is properly in front of them whether if the judges gave them money they would have an obligation to pass it on to somebody else specifically the copyright owners so it isn't very standardized rule that they use terms what you have to absence of any reason to believe and i p g offered none that the middleman with whom i n p a had a contract actually represented the copyright owners it was perfectly within the judge's rights to accept  i believe that the middleman in this case also had certifications from each one of the individual copyright owners are going to the record for him your honor i hope that my that my colleague from n p a my people to answer that question better than i can but the point is that the judges didn't hold n p a and i p g to a different standard they asked in each case essentially if we give you a part of this copyright royalty pie do you have any obligation to pass it along i'm sure i understand the rules with the rules are that it's the burden is on the claimant to demonstrate that it's the designated agent of the owner owners that it purports to represent and that if somebody wants to challenge it they have to provide a good reason to doubt that the evidence that the claimant has put forward is not sufficient to provide officially valid showing of authority to represent the underlying copyright owner or owners i p g here offer no reason to doubt that the middlemen actually have authority to represent the underlying copyright owners and the judges appropriately concluded that even if i produced challenge had been timely which it's important to emphasize that it was not that i p g's claim lacked merits helpful the sequence of events here all of the parties filed their written direct statements in may of two thousand and thirteen i p g and n p a that initial that prompted a discovery period at the end of that discovery period pursuant to the judge's regulations we've done all we can do on this you have your opportunity to test the veracity of other parties written direct statements those who wanted to have amended and we're simply not going to accept any more submissions on this at this stage i'm not aware of any instance where the judges have or haven't done this in the past but it was perfectly appropriate under the circumstances and the s t c cannot seriously argue that they were either surprised or that the judge's decision was unfair to make sure that no one is entering claims that they lack a forty to assert and so when i didn't make those instances right you didn't make an adequate facial showing the judges appropriately rejected the claims you have  the rationale settles the question here and it's worth noting i p g doesn't argue otherwise the order regarding ip g s authority to represent fisa is not a final determination under eight of three c this court recognized in your opinion judg millette that although the judges issue different kinds of orders it is only a final determination under eighty three c that is subject to direct review in this court the judge's order regarding ip g s representation afifa is not such an order i p g agrees and this court would not leave a party without a remedy a party who was dissatisfied with an order not suited to direct reviewing this court could do what i p g itself has done here they could go to state court or to federal court and diversity jurisdiction and if they think they were denied something by the judge's order and as a result they were paid a fee or somebody samsung that's just that sounds like a very roundabout way of doing something that would be very simple here the judge jurisdiction your honor is this court has recognized one hundred years ago does not extend to adjudicate in contractual disputes and in the case and the situation that's presented here what i p g did what it appropriately was in state court this case was then removed federal court and assert the fifo had breached a contractual obligation to it and as a result it was denied a fee that's not the sort of question that arises under the copyright act as this court has recognized as judge millette to sit in last year recognized and so far from wreaking havoc it's perfectly appropriate for the judges to conclude that those decisions it's perfectly appropriate for this court to conclude that those decisions belong in a why it's critical to understand here that what the final determination addressed was the distribution in the syndicated and religious programming categories the government doesn't contest this court's jurisdiction to address the judge's orders on the validity of claims in those two categories that maturity into the final determination but i p g's can claim about his representation of fifa in the sports programming category when that plane was addressed that resolved the last remaining controversy in the sports programming of the last remaining issue in the sports programming category only the part of his head saddle due to ongoing to stupid proceeding which wasn't the published in the federal register in the last few weeks but what the judges said in that determination was we're resolving here in a determination through a contested proceeding the distribution for the ninety nine royalties but another part of the stock identify the crammers of that argument a bit more because there's a difference between the government and i here and i p g the government argues that the march twenty first plane validity order is unreviewable in this court to the extent that it involves the supporters claims now the government concedes that it is reviewing that that order is reviewable to the extent that it involves the program suppliers and devotional claims the only difference it just strikes me as irrational to say that if the review review ability of this court turns on whether the judges were able to make in essence a summary judgment decision and result certain claims or whether they had to leave claims open until the absolute final determination that it just makes no sense and it certainly violates this court's longstanding emphasis that have judicial review of an aid agency proceedings to be concentrated in one forum and not pregnant to among many so that's the march twenty first order both the government in i p g obviously rely on this court's decision last year in i p g one it strikes me that the decisions the two orders at issue here are everything that the order in last year's decision was not last year's decision involved a settlement a ten year old settlement to which i p g had been a party i p g never settle reached any such settlement here last did not involve contested a two three b proceedings this does these warders were made in the course of the hato three b this proceedings they were based on a written record course not but in this case those orders were discussed in the farnell determination moreover we're talking about federal questions here   before the royalty judges for years and years and years without without any dispute any any issue about the boat a few days of their representation of the principle of their might be one bright line rule and that is when the alleged principal the alleged copyright owner says this fantasy may not represent me that's pretty clear whatever room cover everything  that's not what the royalty judges did here in fact if you look at the actual distribution order and that's a joint appendix sixty nine fifty eight the royalty judges acknowledge that i p g continue to dispute their determination and and that i p g in fact in this is discussed in the distribution order i p g said we disagree and we're going to appeal this and since we're going to appeal hold up on the distribution and the royalty judges respond to that history understand you're going to appeal but we're going to distribute anyway subject to and this is in footnote two of that distribution order subject to the understanding that the join  orts claimants are going to have to repay the money return the money if in fact the determination is overturned on appeal so seems to me this is a very different kind of distribution certainly not the kind of final unqualified distribution that was set up at issue last year in partly i would just note going back to your rationality of this again it just makes no sense to me to suggest that that again i don't know i don't know through or where most think here than we where i can saw i can represent to the court there we actually comply with the discovery with the discovery requirement and the judge just reviewed our position on that and they ruled on it now with respect to this new information and i think use contending that they found in another proceeding first of all this is clearly representation by counsel in a very second it's representation by counsel about an ongoing proceeding with it is i p g's believe this such a probably exists but dr green was very clear about the process he undertook and he has somewhat of an automated process that he used to generate the allocation of shares it was remember that's what happened with the i p g not the dollar gee in the devotional category the judges did not make the i p g methodology inadmissible yes they have a lot of criticisms of it and also point out they also recognize that it has some qualities and that because those that well they brought up a good point here they look focus on something good there so it's not like the judges had nothing in my d g s not the knowledge they just had criticisms of it so it goes to what weight they were going to give that methodology it wasn't a situation in which it was excluded so when we look to the judge's decision it's not a situation the words thrown out were used and that's what triggered this in my mind that it be a methodology ers use me i  not thrown out it was heavily criticised but it was not thrown out and it was in part and limited part embrace so there was something there the judges to grab onto with regard to judge those questions about the standard on the validity of claims i'm happy that was brought up because we there is a standard unfortunately it's a double or triple standard on the one hand the time in saying look you've got these four thousand some odd programs where we have there's no evidence at all the n b a has the right to represent represent or collect money on behalf of those programs all they have is contracts with middlemen and that was just that was just rock the judges didn't make it today they said now we think it's wind it got these contracts with the middlemen that's enough on the other side of the ledger right d g they practically require notarized sworn statement under oath they did not they don't but i mean they they council this is the first time that's happened it is far as i know for the very good reason that no one else did it before in prior cities the n p a in ninety g submitted their methodology is with their written direct statements and that was not the course with the s from the rules far as that goes and and that's why what happened happened with regard to who clearly claims hearing one other thing it's in our briefs that we've really got on average thirty four seconds a claim there were sti the conclusions and must necessarily have been a calculation of the end that would have done this now the same time when you're talking about something that you have not seen unless you've got someone on the inside of that opposing side saying oh it will exist that you have you can only go by a certain type of high pop i pod this is that it must exist given everything else we know which is why we're asking the judges look like you have before just issue are saying you've got to produce everything consistent with the regulation that you read a few minutes ago that's all we want because who knows there might have been some other files there too that we didn't know about or that we didn't you know hypothesize existed that's what should have been done that's the judges should have order and for gosh knows what reason they just did with thank you thank you percent the board ruling was thirty seven point one four percent a difference of almost four percent more than ten percent of i q of the allocation i can dig out of that in that year now it is true in the year two thousand that dr brown rebuttal testimony which was which was admitted evidence at appendix thirty eight forty three to two thirty eight forty six testified to was a reasonable this in the year two thousand that it was within that zone a reasonable most and that was the theory and then you have your arguments as to why that didn't work for that year especially why didn't work for the other years i understand that yes your honor and obviously with respect to all the other years they lack even that degree of argument but they only get there by considering the test that the republic has a moment of dr william brown where we established our our methodology which was admitted it and the evidence the the board doesn't provide any response why it fails to consider that evidence that was before  as this court ruled in christian broadcasting network versus father of three tribunals it is certainly the tribunals obligation to consider all the cognized will evidence placed before by the parties but even if you ignore that evidence it doesn't get around there their problem from the case rational decision making requires more than an absence of contrary evidence i also want to point out there was no surprise here dr brown testified in his written direct statement that we would rely on viewership as a measure of quality and time related considerations not methodology but rather the criteria we didn't present that criteria now the board said based on no evidence whatsoever i think he was prejudiced by not having our calculations