Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Notices 25333 

1The CRJs’ determination in SDARS I was 

appealed to the U.S. Court of Appeals for the 

District of Columbia Circuit. The court affirmed the 

determination in all but one respect, remanding to 

the CRJs the single matter of specifying a royalty for 

the use of the section 112 statutory license. 

SoundExchange, Inc. v. Librarian of Congress, 571 

F.3d 1220 (D.C. Cir. 2009). That last issue was 

resolved by the CRJs in further proceedings. 75 FR 

5513 (Feb. 3, 2010). 

TABLE E—U. S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, WORKFORCE INFORMATION

GRANTS TO STATES, PY 2015 VS PY 2014 ALLOTMENTS—Continued 

State PY 2014 PY 2015 Difference % Difference 

Utah ......................................................................................... 413,138 420,602 7,464 1.81 

Vermont ................................................................................... 287,830 287,500 (330) 0.11 

Virginia ..................................................................................... 759,585 765,965 6,380 0.84 

Washington .............................................................................. 668,760 666,958 (1,802) 0.27 

West Virginia ............................................................................ 342,636 341,935 (701) 0.20 

Wisconsin ................................................................................. 618,083 619,893 1,810 0.29 

Wyoming .................................................................................. 282,229 282,549 320 0.11 

State Total ........................................................................ 31,823,200 31,823,200 0 0.00 

Guam ....................................................................................... 93,090 93,090 0 0.00 

Virgin Islands ........................................................................... 83,710 83,710 0 0.00 

Outlying Areas Total ......................................................... 176,800 176,800 0 0.00 

Portia Wu, 

Assistant Secretary for Employment and 

Training. 

[FR Doc. 2015–10328 Filed 5–1–15; 8:45 am] 

BILLING CODE 4510–FN–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2015–02] 

Scope of the Copyright Royalty 

Judges’ Continuing Jurisdiction 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Final order. 

SUMMARY: The Copyright Royalty Judges 

(‘‘CRJs’’), acting pursuant to statute, 

referred novel material questions of 

substantive law to the Register of 

Copyrights for resolution. Those 

questions concerned the scope of the 

CRJs’ authority, under the statutory 

grant of continuing jurisdiction over 

ratemaking determinations, to issue a 

clarifying interpretation of regulations 

adopted pursuant to such a 

determination. The Register resolved 

those questions in a written decision 

that was transmitted to the CRJs. That 

decision is reproduced below. 

DATES: Effective Date: April 8, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ruwe, Assistant General 

Counsel, U.S. Copyright Office, P.O. Box 

70400, Washington, DC 20024. 

Telephone: (202) 707–8350. 

SUPPLEMENTARY INFORMATION: The 

Copyright Royalty Judges are tasked 

with determining and adjusting terms 

and rates of royalty payments of 

statutory licenses under the Copyright 

Act. See 17 U.S.C. 801. If, in the course 

of proceedings before the CRJs, novel 

material questions of substantive law 

concerning the interpretation of 

provisions of title 17 arise, the CRJs are 

required by statute to refer those 

questions to the Register of Copyrights 

for resolution. 17 U.S.C. 802(f)(1)(B). 

On March 9, 2015, the CRJs, acting 

pursuant to 17 U.S.C. 802(f)(1)(B), 

referred novel material questions of 

substantive law to the Register, 

concerning the CRJs’ authority to issue 

a clarifying interpretation of regulations 

adopted in a prior ratesetting 

determination. On April 8, 2015, the 

Register resolved those questions in a 

Memorandum Opinion that she 

transmitted to the CRJs. To provide the 

public with notice of the decision 

rendered by the Register, the 

Memorandum Opinion is reproduced in 

its entirety below. 

Dated: April 28, 2015. 

Maria A. Pallante, 

Register of Copyrights and Director of the 

U.S. Copyright Office. 

Before the U.S. Copyright Office Library 

of Congress Washington, DC 20559 

In the Matter of Determination of 

Rates and Terms for Preexisting 

Subscription Services and Satellite 

Digital Audio Radio Services 

Docket No. 2006–1 CRB DSTRA (SDARS 

I) 

MEMORANDUM OPINION ON A 

NOVEL QUESTION OF LAW 

In relation to the above-captioned 

proceeding before the Copyright Royalty 

Judges (‘‘CRJs’’ or ‘‘Judges’’), questions 

have arisen about the proper 

interpretation of 17 U.S.C. 803(c)(4), 

which provides the CRJs with 

‘‘continuing jurisdiction’’ in certain 

circumstances to amend a written 

determination after it has issued. The 

CRJs determined that these were novel 

material questions of substantive law 

and, as required by section 802(f)(1)(B), 

referred them to the Register of 

Copyrights for resolution. The Register 

hereby resolves those referred questions. 

I. Procedural Background 

On January 24, 2008, the CRJs 

published final royalty rates and terms 

under the section 112(e) and 114 

statutory licenses for the period 2007 

through 2012 for preexisting satellite 

digital audio radio services (‘‘SDARS 

I’’). 73 FR 4080 (Jan. 24, 2008).1 In that 

proceeding, the CRJs set a royalty rate as 

a percentage of the ‘‘Gross Revenues’’ of 

the satellite services. 73 FR at 4084. The 

definition of ‘‘Gross Revenues’’ adopted 

by the CRJs excluded several categories 

of revenues received by satellite 

services, such as revenues from 

channels and programming that are 

‘‘exempt from any license requirement 

or [are] separately licensed,’’ and 

revenues attributable to channels and 

programming that are ‘‘offered for a 

separate charge’’ and ‘‘use only 

incidental performances of sound 

recordings.’’ 73 FR at 4102; 37 CFR 

382.11 (2008) (paragraph (3)(vi)(B) & (D) 

of Gross Revenues definition). 

On April 17, 2013, the CRJs adjusted 

the royalty rates and terms for satellite 

radio for the period 2013 through 2017 

(‘‘SDARS II’’). 78 FR 23054 (Apr. 17, 

2013) as modified, 78 FR 31842 (May, 

28, 2013). In the course of that 

proceeding, SoundExchange criticized 

the manner in which Sirius XM had 

been excluding revenues in reliance on 

the SDARS I regulations, including its 

practice of excluding revenues 

attributable to sound recordings made 

before February 15, 1972, which are 

generally not subject to federal 

copyright protection, and thus do not 

fall within the section 112(e) and 114 

mstockstill on DSK4VPTVN1PROD with NOTICES

25334 Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Notices 

2See generally U.S. Copyright Office, Copyright 

and the Music Marketplace 53–54 (Feb. 2014). 

statutory licenses.2 78 FR at 23071. In 

SDARS II, the CRJs maintained the 

exclusions from gross revenues it had 

adopted in SDARS I, but added a new 

provision specifically addressing the 

proper treatment of pre-1972 sound 

recordings. 78 FR at 23079–81. 

After the CRJs’ determination in 

SDARS II, SoundExchange brought suit 

against Sirius XM on August 25, 2013 in 

the U.S. District Court for the District of 

Columbia, alleging that for the time 

period covered by SDARS I (2007 

through 2012), Sirius XM had 

underpaid royalties by improperly 

excluding certain revenues from its 

gross revenue calculations, including 

revenues attributable to pre-1972 sound 

recordings. SoundExchange, Inc. v. 

Sirius XM Radio, Inc.,—F. Supp. 3d —, 

2014 WL 4219591, *3-*5 (D.D.C. Aug. 

26, 2014). 

Rather than seeking to have the 

district court to resolve the dispute 

itself, Sirius XM asked the court to refer 

the issues to the CRJs under the 

administrative law doctrine of ‘‘primary 

jurisdiction’’ because they ‘‘involve 

interpreting and applying the [CRJs’] 

regulations on gross revenues.’’ Id. at *3. 

As explained by the DC Circuit, under 

that doctrine, when a court is 

‘‘adjudicating a claim [that] would 

‘require[] the resolution of issues which, 

under a regulatory scheme, have been 

placed within the special competence of 

an administrative body,’’’ the court can 

‘‘suspend the judicial process ‘pending 

referral of such issues to the 

administrative body for its view.’’’ 

United States v. Philip Morris USA Inc., 

686 F.3d 832, 837 (D.C. Cir. 2012) 

(quoting United States v. W. Pac. R.R. 

Co., 352 U.S. 59, 64 (1956)). 

SoundExchange disagreed that the 

doctrine applied, responding that the 

relevant regulatory definitions were 

unambiguous, and that the district court 

should therefore decide the case. 

SoundExchange, 2014 WL 4219591 at 

*4. 

The district court agreed with Sirius 

XM, concluding that ‘‘the gross revenue 

exclusions are ambiguous and do not, 

on their face, make clear whether Sirius 

XM’s approaches were permissible 

under the regulations,’’ and that referral 

to the CRJs under the primary 

jurisdiction doctrine was therefore 

appropriate. Id. In response to 

SoundExchange’s related concern that 

the CRJs lacked authority to resolve the 

issues, the district court pointed to 17 

U.S.C. 803(c)(4). Id. at *5. Section 

803(c)(4) provides as follows: 

Continuing jurisdiction.— The Copyright 

Royalty Judges may issue an amendment to 

a written determination to correct any 

technical or clerical errors in the 

determination or to modify the terms, but not 

the rates, of royalty payments in response to 

unforeseen circumstances that would 

frustrate the proper implementation of such 

determination. Such amendment shall be set 

forth in a written addendum to the 

determination that shall be distributed to the 

participants of the proceeding and shall be 

published in the Federal Register. 

17 U.S.C. 803(c)(4). The district court 

concluded that ‘‘[n]either party is asking 

for a change to rates; only a clarification 

of the terms,’’ and that such a 

clarification ‘‘is within the [CRJs’] 

continuing jurisdiction.’’ 

SoundExchange, 2014 WL 4219591 at 

*5. Accordingly, the court stayed its 

proceedings pending a decision by the 

CRJs clarifying the meaning of the 

regulations defining Gross Revenues. 

On November 24, 2014, 

SoundExchange petitioned the CRJs to 

clarify the definition of Gross Revenues 

adopted in SDARS I. On December 9, 

2014, the CRJs reopened the SDARS I 

proceedings, observing that 

SoundExchange’s petition raised a 

threshold jurisdictional question that 

potentially constituted a novel material 

question of substantive law that, by 

statute, must be referred to the Register. 

In the order reopening proceedings, the 

CRJs asked the parties to file briefs 

addressing the CRJs’ authority to issue 

a clarifying interpretation of its 

regulations. Sirius XM took the position 

that the Copyright Act or, in the 

alternative, the Administrative 

Procedure Act (‘‘APA’’), gave the CRJs 

such authority. SoundExchange 

disagreed, arguing that no statute gave 

the CRJs authority to clarify the 

regulations, and that the case should 

therefore be returned to the district 

court for resolution. 

After considering the parties’ 

responses, on March 9, 2015, the CRJs, 

acting pursuant to 17 U.S.C. 802(f)(1)(B), 

referred the following novel material 

questions of substantive law to the 

Register, enclosing the briefs the parties 

had filed: 

(1) Do the Judges have jurisdiction 

under title 17, or authority otherwise, to 

interpret the regulations adopted in the 

captioned proceeding? 

(2) If the Judges have authority to 

interpret regulations adopted in the 

course of a rate determination 

proceeding, is that authority timelimited? 

(3) Would the answer regarding the 

Judges’ jurisdiction or authority be 

different if the terms at issue regulated 

a current, as opposed to a lapsed, rate 

period? 

II. Summary of Parties’ Arguments 

The parties’ dispute is focused on 

around the first referred question. The 

Register understands this question to 

ask, in essence, whether the CRJs have 

the power to issue a clarifying 

interpretation of their regulations. 

SoundExchange asserts that the 

provision cited by the district court, 17 

U.S.C. 803(c)(4), does not give the CRJs 

authority to clarify the regulations at 

issue here. First, SoundExchange argues 

that resolution of legal ambiguity cannot 

properly be characterized as a correction 

of a ‘‘technical or clerical’’ error. 

Second, SoundExchange urges that the 

separate authority in section 803(c)(4) to 

‘‘modify the terms, but not the rates, of 

royalty payments in response to 

unforeseen circumstances that would 

frustrate the proper implementation of 

such determination’’ does not apply to 

this case. In particular, it argues that any 

modification of the definition of ‘‘Gross 

Revenues’’ would affect the rates of 

royalty payments, not the terms under 

which those payments are made, and 

that the definition of ‘‘Gross Revenues’’ 

is accordingly not a ‘‘term.’’ In addition, 

SoundExchange asserts that Sirius XM’s 

decision to exclude certain revenues 

from its gross revenue calculation was 

not an ‘‘unforeseen circumstance[ ]’’ 

that would ‘‘frustrate the proper 

implementation of [the] determination.’’ 

Sirius XM, in contrast, asserts that 

section 803(c)(4) empowers the CRJs to 

interpret the SDARS I regulations, and 

amend them to prevent an interpretation 

that is at odds with copyright law or the 

intent of its earlier determination. 

According to Sirius XM, such an 

amendment can either be considered a 

‘‘technical amendment’’ that prevents a 

mistaken interpretation of their 

determination, or a ‘‘modification’’ of 

the terms of the royalty payment in 

response to unforeseen circumstances. 

In response to SoundExchange’s point 

that a modification of the Gross 

Revenues definition would constitute an 

impermissible change in rates, Sirius 

XM urges that ‘‘rates’’ refers only to the 

percentage-of-revenue rate in the CRJs’ 

determination, and ‘‘terms’’ refers 

broadly to ‘‘other aspects of the 

determination required to implement 

the rates.’’ 

In the alternative, Sirius XM argues 

that if section 803(c)(4) did not give the 

CRJs sufficient authority to clarify the 

meaning of the regulations, the APA 

independently authorizes the CRJs to do 

so. Sirius XM notes that section 

803(a)(1) instructs the CRJs to act in 

accordance with the APA, and that the 

APA includes a provision authorizing 

agencies to ‘‘issue a declaratory order to 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 80, No. 85 / Monday, May 4, 2015 / Notices 25335 

3As explained above, Sirius XM argues that the 

CRJs’ power to ‘‘modify the terms, but not the rates, 

of royalty payments in response to unforeseen 

circumstances that would frustrate the proper 

implementation of such determination’’ provides an 

alternate source of authority to clarify the SDARS 

I regulations. 17 U.S.C. 803(c)(4). SoundExchange 

contends, however, that the definition of ‘‘Gross 

Revenues’’ is not a ‘‘term.’’ For its part, the district 

court concluded that the definition was a term. 

SoundExchange, 2014 WL 4219591 at *5 (‘‘Neither 

party is asking for a change to rates; only a 

clarification of terms.’’). The Register need not 

resolve this issue, because the CRJs’ separate power 

to ‘‘correct any technical . . . errors’’ provides a 

sufficient basis for the CRJs to act in this case. For 

the same reason, the Register need not address 

whether the APA separately authorizes the CRJs to 

clarify the SDARS I regulations. 

terminate a controversy or remove 

uncertainty’’ as part of formal 

adjudications. 5 U.S.C. 554(e). 

SoundExchange disputes that 

contention on the ground that, within 

the meaning of the APA, the CRJs 

engage in rulemakings, not 

adjudications, and therefore 5 U.S.C. 

554(e) does not apply. 

With respect to the remaining two 

questions, the parties agree that if the 

CRJs have authority to interpret 

regulations adopted in the course of a 

rate determination proceeding, that 

authority would not be time limited. In 

addition, they agree that the CRJs’ 

continuing jurisdiction does not depend 

on whether a rate period is current or 

lapsed. 

III. Register’s Determination 

Having considered the relevant 

statutory language and the input from 

the parties, the Register determines that 

the CRJs have jurisdiction under section 

803(c)(4) of Title 17 to clarify the 

meaning of the regulations adopted in 

SDARS I. The Register also determines 

that this authority is not time-limited, 

and that the CRJs’ authority is the same 

whether the regulations at issue apply to 

a current or lapsed rate period. 

A. The CRJs’ Continuing Jurisdiction 

Encompasses the Authority to Issue 

Clarifying Amendments to Written 

Determinations. 

As noted above, under section 

803(c)(4), the CRJs ‘‘may issue an 

amendment to a written determination 

to correct any technical or clerical errors 

in the determination or to modify the 

terms, but not the rates, of royalty 

payments in response to unforeseen 

circumstances that would frustrate the 

proper implementation of such 

determination.’’ 17 U.S.C. 803(c)(4). As 

an initial matter, the Register accepts 

the district court’s conclusion that the 

meaning of the relevant regulatory 

provisions, and the application of those 

provisions to the particular fact pattern 

presented here, is uncertain. See 

SoundExchange, 2014 WL 4219591, at 

*4 (‘‘[T]he gross revenue exclusions are 

ambiguous and do not, on their face, 

make clear whether Sirius XM’s 

approaches were permissible under the 

regulations.’’). 

The Register concludes that the CRJs’ 

power to ‘‘correct any technical . . . 

errors’’ in determinations encompasses 

the power to resolve ambiguity in the 

meaning of regulations adopted 

pursuant to those determinations.3 Such 

a correction is ‘‘technical’’ in the sense 

that it merely clarifies existing 

regulations to ensure they are applied in 

the manner intended by the CRJs. As the 

district court appreciated, the CRJs are 

in the best position to provide this type 

of interpretive guidance, given their 

familiarity with the extensive record on 

which the regulations are based and 

their general ‘‘technical and policy 

expertise.’’ SoundExchange, 2014 WL 

4219591 at *4. This approach is also 

consistent with general principles of 

administrative law, under which courts 

regularly defer to agencies’ reasonable 

interpretations of ambiguous 

regulations. See Auer v. Robbins, 519 

U.S. 452, 461 (1997). Section 803(c)(4) 

provides the administrative mechanism 

by which the CRJs can issue such 

interpretations. 

This understanding of section 

803(c)(4) also comports with the 

Register’s prior reading of that 

provision. Specifically, the Register has 

construed section 803(c)(4) as providing 

the CRJs the authority to amend their 

regulations to conform with the 

Register’s interpretation of the 

Copyright Act. In 2009, after the CRJs 

issued a determination setting the rates 

and terms of royalty payments for 

making and distribution of 

phonorecords of musical works under 

17 U.S.C. 115, the Register exercised her 

statutory authority to correct certain 

legal errors in that determination. 74 FR 

4537 (Jan. 6, 2009). In particular, the 

Register concluded that a number of 

regulatory terms that the CRJs had 

adopted were inconsistent with the 

Copyright Act, including certain terms 

related to digital phonorecord deliveries 

and the retroactivity of promotional 

royalty rates. See 73 FR at 4541–42. 

Although the Register lacked the 

authority actually to amend the 

regulations adopted by the CRJs, she 

concluded that the CRJs could ‘‘codify 

the corrections identified and made 

herein by the Register’’ by exercising 

their authority under section 803(c)(4). 

Id. at 4543. The CRJs subsequently 

relied on that authority to amend the 

regulations and excise the erroneous 

regulatory provisions. 74 FR 6832, 6833 

(Feb. 11, 2009). The CRJs explained that 

doing so would ‘‘clarify potential 

confusion facing users of the license at 

issue’’ and ‘‘promote an efficient 

administration of the applicable 

license.’’ Id. These same rationales 

apply with equal force here. 

B. The CRJs’ Continuing Jurisdiction Is 

Not Subject to Time Limits, and Extends 

to Both Current and Lapsed Rate 

Periods. 

The Register agrees with the parties 

that the CRJs’ continuing jurisdiction 

authority is not subject to a time limit. 

Nothing in the text of section 803(c)(4) 

indicates a time limit. And, no other 

provision in Title 17 would otherwise 

impose a time limit on the CRJs’ 

exercise of that authority. Furthermore, 

the scope of the CRJs’ continuing 

jurisdiction authority is the same 

whether the terms at issue concern a 

current or lapsed rate period. Nothing in 

the text of section 803(c)(4), or any other 

provision in Title 17, differentiates 

between current and lapsed rate periods 

for purposes of the CRJs’ exercise of 

continuing jurisdiction. 

April 8, 2015 

Maria A. Pallante, 

Register of Copyrights and Director of the 

United States Copyright Office 

[FR Doc. 2015–10305 Filed 5–1–15; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

[NRC–2015–0001] 

Sunshine Act Meeting Notice 

DATE: April 27, May 4, 11, 18, 25, June 

1, 8, 2015. 

PLACE: Commissioners’ Conference 

Room, 11555 Rockville Pike, Rockville, 

Maryland. 

STATUS: Public and Closed. 

Week of April 27, 2015 

Thursday, April 30, 2015 

8:55 a.m. 

Affirmation Session (Tentative) 

DTE Electric Co. (Fermi Nuclear 

Power Plant, Unit 3), Docket No. 

52–033 (Public Meeting) (Tentative) 

This meeting will be webcast live at 

the Web address—http://www.nrc.gov/. 

9 a.m. 

Briefing on the Status of Lessons 

Learned from the Fukushima Daiichi Accident (Public Meeting) 

(Contact: Jack Davis, 301—415–223) 

This meeting will be webcast live at 

the Web address—http://www.nrc.gov/. 

mstockstill on DSK4VPTVN1PROD with NOTICES