13306 Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Notices 

* Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

* Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

* Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

III. Current Actions 

Type of Review: New collection. 

Title: Evaluation of the TechnologyBased Learning Grants. 

OMB Number: 1205–0NEW. 

Affected Public: Individuals. 

Form(s): n/a. 

Total Respondents: 1,500. 

Frequency: One-time survey. 

Total Responses: 1,050. 

Average Time per Response: 20 

minutes. 

Estimated Total Burden Hours: 350 

(see table 1, below). 

Total Burden Cost for Respondents: 

$17,991. 

TABLE 1—ESTIMATED BURDEN HOURS

Activity Sample size Response rate Number of 

respondents Frequency 

Time per 

response 

(minutes) 

Total burden 

hours 

Monthly Administrative Data Requests ..... ........................ ........................ 20 7 ................... 120 280 

Final Administrative Data Request ............ ........................ ........................ 20 Once ............ 240 80 

Customer Survey ....................................... 1,500 70% 1,050 Once ............ 20 350 

Comments submitted in response to this 

comment request will be summarized 

and/or included in the request for Office 

of Management and Budget approval of 

the information collection request; they 

will also become a matter of public 

record. 

Dated: March 15, 2010. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. 2010–6026 Filed 3–18–10; 8:45 am] 

BILLING CODE 4510–FN–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. RF 2009–1] 

Copyright Royalty Judges’ Authority to 

Subpoena a Nonparticipant to Appear 

and Give Testimony or to Produce and 

Permit Inspection of Documents or 

Tangible Things 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final order. 

SUMMARY: The Copyright Royalty 

Judges, acting pursuant to statute, 

referred a material question of 

substantive law to the Register of 

Copyrights concerning their authority to 

subpoena a nonparticipant to appear 

and give testimony or to produce and 

permit inspection of documents or 

tangible things. The Register of 

Copyrights responded by delivering a 

Memorandum Opinion to the Copyright 

Royalty Board on February 23, 2010. 

DATES: Effective Date: February 23, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Tanya Sandros, Deputy General 

Counsel, or Stephen Ruwe, Attorney 

Advisor, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. 

SUPPLEMENTARY INFORMATION: In the 

Copyright Royalty and Distribution 

Reform Act of 2004, Congress amended 

Title 17 to replace the copyright 

arbitration royalty panels with the 

Copyright Royalty Judges (‘‘CRJs’’). One 

of the functions of the CRJs is to make 

determinations and adjustments of 

reasonable terms and rates of royalty 

payments as provided in sections 

112(e), 114, 115, 116, 118, 119 and 1004 

of the Copyright Act. The CRJs have the 

authority to request from the Register of 

Copyrights (‘‘Register’’) an interpretation 

of any material question of substantive 

law that relates to the construction of 

provisions of Title 17 and arises during 

the proceeding before the CRJs. See 17 

U.S.C. 802(f)(1)(A)(ii). 

On January 28, 2010, the CRJs 

delivered to the Register an Order 

referring a material question of 

substantive law for determination by the 

Register: ‘‘Whether the Copyright 

Royalty Judges have authority under the 

Copyright Act to subpoena a 

nonparticipant to appear and give 

testimony or to produce and permit 

inspection of documents or tangible 

things?’’ The CRJs also delivered to the 

Register the briefs filed with the CRJs by 

RealNetworks, Inc., Live365, Inc., 

SoundExchange, Inc., CBS Interactive, 

Inc., Pandora Media, Inc., and Slacker, 

Inc. in connection with a motion 

seeking the issuance of subpoenas to 

nonparty witnesses, as well as the 

transcripts of a hearing regarding 

consideration of that motion. 

The Order stated that the CRJs were 

requesting an interpretation of a 

material question of substantive law 

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

which allows a 14–day response period. 

However, section 802(f)(1)(B)(i) 

provides that when the CRJs request a 

decision by the Register on ‘‘a novel 

material question of substantive law 

concerning an interpretation of those 

provisions of this title that are the 

subject of the proceeding’’ (emphasis 

added), the Register shall transmit her 

decision within a 30–day response 

period. A novel question of law is one 

that ‘‘has not been determined in prior 

decisions, determinations, and rulings 

described in section 803(a).’’ Id. On 

February 11, the Register advised the 

CRJs that she had determined that the 

material question of law that is the 

subject of the Order is novel because it 

has not been determined in prior 

decisions, determinations, and rulings 

described in 17 U.S.C. 803(a). See 17 

U.S.C. 802(f)(1)(B)(ii). 

On February 23, the Register 

responded in a Memorandum Opinion 

to the CRJs that addressed the novel 

material question of law. To provide the 

public with notice of the decision 

rendered by the Register, the 

Memorandum Opinion is reproduced in 

its entirety, below. The timely delivery 

of the Register’s response requires that 

‘‘the Copyright Royalty Judges shall 

apply the legal determinations 

embodied in the decision of the Register 

of Copyrights in resolving material 

questions of substantive law.’’ See 17 

U.S.C. 802(f)(1)(B)(I). 


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1Another participant, Live365, Inc. (‘‘Live365’’) 

separately filed a brief in which it adopted the 

relevant arguments in RealNetworks’ initial motion. 

2Pandora Media, Inc., Slacker, Inc., and CBSi 

adopted the relevant arguments SoundExchange’s 

brief. 

3 In distinguishing between ‘‘participants and 

witnesses’’ on one hand, and ‘‘nonparticipants’’ on 

the other, SoundExchange apparently does not 

recognize that the ‘‘witnesses’’ that it includes 

within the group of ‘‘participants and witnesses’’ are 

in fact nonparticipants. In the parlance of CRJ 

proceedings, a ‘‘participant’’ is a party to the 

proceeding. See 17 U.S.C. §§ 801(b)(7)(A), 

802(f)(1)(A)(ii), 802(f)(1)(B), 802(f)(1)(D), 

803(b)(1)(A)(ii), 803(b)(2)(C), 803(b)(3)(A), 803(b)(4), 

803(b)(5), 803(b)(6)(C), 803(c)(2), 803(c)(4), 

803(d)(1), 803(d)(2)(B), 805(1) 

4SoundExchange cites to the full text of section 

803(b)(6)(C)(ix), which provides that CRJs may only 

issue subpoenas where ‘‘resolution of the 

proceeding would be substantially impaired by the 

absence of such testimony or production of 

documents or tangible things.’’ 

5While SoundExchange, in its written brief, 

initially argued that the CRJs could only subpoena 

‘‘participants and witnesses’’ and that they could not 

subpoena nonparticipants, at the January 12, 2010, 

hearing, SoundExchange conceded that the statute’s 

grant of authority to subpoena a ‘‘witness’’ includes 

those who are not necessarily participants, 

provided they have previously submitted testimony 

as a witness in the relevant proceeding. Hearing 

Transcript at 76. 6Transcript at 72-74. 

Dated: March 11, 2010 

David O. Carson, 

General Counsel. 

Before the 

U.S. Copyright Office 

Library of Congress 

Washington, D.C. 20559 

In the Matter of 

Digital Performance Right in Sound 

Recordings and Ephemeral Recordings 

Docket No. 2009–1 

CRB Webcasting III ———————————————————— 

MEMORANDUM OPINION 

ON MATERIAL QUESTIONS OF 

SUBSTANTIVE LAW 

I. Procedural Background 

On January 28, 2010, pursuant to 17 

U.S.C. 802(f)(1), the Copyright Royalty 

Judges (‘‘CRJs’’) referred to the Register 

of Copyrights a novel material question 

of substantive law that has arisen in this 

proceeding. The Copyright Royalty 

Judges included briefs that had been 

submitted in December 2009 and 

January 2010 by the parties to the 

proceeding and transcripts of a hearing 

held on January 12, 2010, relating to the 

authority of the CRJs to subpoena a 

nonparticipant in a proceeding. 

After recounting the relevant statutory 

provisions of Chapter 8 of Title 17, the 

CRJs posed the following novel material 

question of substantive law: 

QUESTION: Whether the Copyright 

Royalty Judges have authority under the 

Copyright Act to subpoena a 

nonparticipant to appear and give 

testimony or to produce and permit 

inspection of documents or tangible 

things? 

As required by 17 U.S.C. 802(f)(1)(B)(i), 

the Register hereby provides her 

response to the CRJs. 

II. Statutory Authority in Chapter 8 of 

Title 17. 

In 2004, Congress passed the 

Copyright Royalty and Distribution 

Reform Act (‘‘CRDRA’’). This legislation 

created the CRJs and provides, in 17 

U.S.C. 803(b)(6)(C)(ix), that: 

In proceedings to determine royalty 

rates, the Copyright Royalty Judges may 

issue a subpoena commanding a 

participant or witness to appear and give 

testimony, or to produce and permit 

inspection of documents or tangible 

things, if the Copyright Royalty Judges’ 

resolution of the proceeding would be 

substantially impaired by the absence of 

such testimony or production of 

documents or tangible things. Such 

subpoena shall specify with reasonable 

particularity the materials to be 

produced or the scope and nature of the 

required testimony. Nothing in this 

clause shall preclude the Copyright 

Royalty Judges from requesting the 

production by a nonparticipant of 

information or materials relevant to the 

resolution by the Copyright Royalty 

Judges of a material issue of fact. 

III. Summary of Parties’ Arguments 

On December 10, 2009, RealNetworks, 

Inc. (‘‘RealNetworks’’) filed a motion for 

issuance of subpoenas directing Pandora 

Media, Inc., Slacker, Inc., and CBS 

Interactive, Inc.(‘‘CBSi’’), who are not 

participants in the proceeding, to 

present corporate representative 

witnesses competent to present 

documents and testify at deposition 

with respect to factual assertions 

included in the written direct statement 

of SoundExchange, Inc. 

(‘‘SoundExchange’’) as to which 

SoundExchange has no first hand 

knowledge. RealNetworks’ motion1

focuses virtually all of its attention on 

the application of the CRJs’ regulations 

addressing the discovery stages of a 

determination. In doing so, it does not 

attempt to analyze who may be the 

proper subject of a subpoena under the 

statute. 

In response to RealNetworks’ motion, 

SoundExchange2 argues that section 

803(b)(6)(C)(ix) treats subpoenas to 

‘‘participants and witnesses’’ separately 

from requests to ‘‘nonparticipants.’’3 In 

SoundExchange’s view, ‘‘with respect to 

participants and witnesses, [the statute] 

states that the CRJs ‘may issue a 

subpoena commanding a participant or 

witness to appear and give testimony, or 

to produce and permit inspection of 

documents or tangible things,’ if certain 

conditions are met.’’4 SoundExchange 

argues that the CRJs could, under 

certain conditions, issue a subpoena in 

a given proceeding to either a 

participant or a witness whose 

testimony has been previously 

submitted to the CRJs in the given 

proceeding.5 But, under 

SoundExchange’s view, the CRJs may 

not issue subpoenas to persons who are 

neither participants nor witnesses who 

have previously submitted testimony in 

the given proceeding. SoundExchange 

asserts that ‘‘with respect to seeking 

information from nonparticipants like 

Pandora, Slacker and CBS Interactive, 

§ 803(b)(6)(C)(ix) establishes a different 

standard that limits the CRJs’ power. It 

does not include them among those 

individuals who may be subpoenaed. 

Rather, it provides that ‘[n]othing in this 

clause shall preclude the Copyright 

Royalty Judges from requesting the 

production by a nonparticipant of 

information or materials relevant to the 

resolution by the Copyright Royalty 

Judges of a material issue of fact.’’’ When 

asked by the Chief Copyright Royalty 

Judge at the hearing on the motion 

whether it was aware of any other 

federal statutes that provide for a power 

or duty but provide no mechanism for 

enforcement, SoundExchange stated 

that it was not aware of any such 

statute. SoundExchange further opined 

that the only enforcement mechanism 

available to the CRJs in the event of 

noncompliance with a subpoena would 

be the CRJs’ authority to impose 

sanctions, such as striking testimony, 

when the subpoena was directed to a 

participant or a witness whose 

testimony has been previously 

submitted by a participant. 

SoundExchange observed that this 

‘‘suggests a reason why this statute 

should be interpreted to mean the Court 

[sic] can issue subpoenas to parties, 

participants and witnesses, but not to 

nonparticipants.’’6

Having put forth an analysis of 

section 803(b)(6)(C)(ix) that involves a 

distinction between ‘‘participants and 

witnesses’’ on the one hand and 

‘‘nonparticipants’’ on the other, 

SoundExchange cites to Bobreski v. 

E.P.A, 284 F. Supp.2d 67,76 (D.D.C. 

2003) and United States v. Iannone, 610 

F.2d 943, 945–47 (D.C. Cir. 1979) for the 

proposition that subpoena power should 

not be found to exist absent an express 

statutory grant. SoundExchange then 

cites to Peters v.United States, 853 F.2d 

692, 696 (9th Cir. 1988), asserting that 

even where an agency has broad 


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7CBSi, separately filed a brief in which it adopted 

the relevant arguments in SoundExchange’s brief, 

and it reiterated many of SoundExchange’s 

arguments at the January 12, 2010, hearing. 

8SoundExchange acknowledges that ‘‘there are 

times when some of the witnesses aren’t even under 

the control of a participant, and so you would have 

to issue a subpoena.’’ Hearing Transcript at 76. 

9With regard to both participants as well as 

witnesses, the CRJs may only issue a subpoena if 

the resolution of the proceeding would be 

substantially impaired by the absence of such 

testimony or production of documents or tangible 

things. 

subpoena and investigatory authority, 

courts should be reluctant to assume the 

existence of authority to issue third 

party subpoenas where Congress has not 

specifically provided for them. 

SoundExchange also argues that if the 

CRJs were granted the authority to issue 

subpoenas to nonparticipants, then the 

last sentence of 803(b)(6)(C)(ix), which 

authorizes them to request information 

from nonparticipants, would be 

unnecessary, and that such an 

interpretation would violate an accepted 

principle of statutory construction 

against surplusage.7 RealNetworks and 

Live365 assert that section 

803(b)(6)(C)(ix) authorizes the issuance 

of subpoenas to nonparticipants and 

that neither the statute nor regulations 

limit this power only to participants in 

a proceeding. Unlike the briefs 

supporting the initial motion, their 

reply briefs focus directly on whether 

the CRJs possess authority to issue 

subpoenas to persons who are neither 

participants in the proceeding nor 

persons who the participants have 

designated to testify. In its reply brief, 

and in the January 12 hearing, 

RealNetworks argues that the plain 

language of 803(b)(6)(C)(ix) 

demonstrates that the CRJs have power 

to subpoena ‘‘witnesses.’’ It asserts that 

SoundExchange’s citations to case law 

assessing agencies’ subpoena authority 

when Congress has not provided for 

such power through plain language are 

therefore irrelevant. RealNetworks 

argues that SoundExchange’s analysis of 

section 803(b)(6)(C)(ix) is unduly 

cramped and that the plain text of the 

statute undermines SoundExchange’s 

argument that ‘‘witness’’ should be 

understood to mean only a witness 

previously designated by a participant 

to give evidence in court. RealNetworks 

asserts that the common meaning of 

‘‘witness’’ and ‘‘testimony’’ support its 

proposed plain language reading of the 

statute. RealNetworks also asserts that 

the plain language and the legislative 

history of section 803(b)(6)(C)(ix) 

demonstrate that the CRJs have power to 

subpoena ‘‘witnesses,’’ not just a small 

subset of witnesses as SoundExchange 

contends. RealNetworks offers that 

should the CRJs accept 

SoundExchange’s argument that the 

CRJs may only subpoena a witness 

previously designated by a participant 

to give evidence, it would run counter 

to language in the legislative history of 

the Copyright Royalty and Distribution 

Reform Act of 2004 that explains that 

the subpoena power was intended to 

prevent a party from circumscribing the 

type and amount of evidence considered 

in a proceeding. H.R. Rep. No. 108–408, 

at 33 (2004). 

At the hearing, CBSi pointed out that 

the legislative history relied on by 

RealNetworks addresses proposed 

statutory language that was markedly 

different, and much broader, than that 

which was ultimately enacted by 

Congress. 

RealNetworks’ reply brief also points 

out that the last sentence in section 

803(b)(6)(C)(ix) does not create 

surplusage because the authority to 

subpoena and the authority to request 

are not redundant, especially when 

there are distinct threshold 

requirements for employing the two 

differing actions. Under RealNetworks’ 

analysis, the threshold test for issuance 

of a subpoena to participants and 

witnesses is substantial impairment, 

whereas the threshold test for a request 

for information from nonparticipants is 

relevance. 

In its reply brief, Live365 goes on to 

argue that if the CRJs’ subpoena power 

were limited to participants and 

witnesses who have already submitted 

statements to the CRJs, the subpoena 

power would be effectively meaningless 

since other provisions allow the CRJs to 

compel testimony from parties and their 

witnesses. See 17 U.S.C. 803(b)(6)(C)(v)– 

(vii). Thus, according to Live 365, 

Congress must have been contemplating 

the ability to compel testimony from 

nonparticipant third parties. 

IV. Register’s Determination 

A review of the written submissions 

and oral arguments offered by the 

parties and third party witnesses who 

supported and opposed the motion 

reveals that the question is not precisely 

whether the CRJs have the authority to 

‘‘subpoena a nonparticipant,’’ but rather 

whether the CRJs have the authority to 

subpoena a person who is neither a 

participant in the proceeding nor a 

witness whose testimony has been 

submitted as part of a participant’s 

written direct statement. While 

SoundExchange’s initial submission 

posited a distinction between 

participants and witnesses on the one 

hand and nonparticipants on the other 

hand, at the time of the hearing on the 

motion SoundExchange refined its 

position to acknowledge that some 

nonparticipants may nevertheless be 

‘‘witnesses’’ for purposes of 17 U.S.C. 

803(b)(6)(C)(ix). Specifically, 

SoundExchange acknowledged that the 

CRJs have the authority to subpoena a 

nonparticipant whose testimony has 

previously been submitted by a 

participant in the relevant proceeding.8

SoundExchange’s refinement of its 

position is more consistent with the 

language of section 803(b)(6)(C)(ix), 

which empowers the CRJs to ‘‘issue a 

subpoena commanding a participant or 

witness to appear.’’ (Emphasis added). 

The question, then, is: who may be a 

‘‘witness’’ for purposes of section 

803(b)(6)(C)(ix)? 

In answering that question, one must 

look toward established canons of 

statutory construction which dictate 

that ‘‘the meaning of a statute must, in 

the first instance, be sought in the 

language in which the act is framed, and 

if that is plain, and if the law is within 

the constitutional authority of the law– 

making body which passed it, the sole 

function of the courts is to enforce it 

according to its terms.’’ Caminetti v. 

United States, 242 U.S. 470, 485 (1917). 

The plain meaning of the first sentence 

of this provision clearly authorizes the 

issuance of subpoenas to participants. 

The plain meaning of the same sentence 

also authorizes the CRJs to issue 

subpoenas to witnesses. Therefore, it is 

evident that certain persons other than 

participants (i.e. nonparticipants) may 

be subpoenaed, provided that they are 

‘‘witnesses.’’ Unfortunately, this analysis 

does not answer the critical question 

currently before the CRJs regarding 

whether the authority to subpoena 

‘‘witnesses’’ is, as SoundExchange and 

the proposed subjects of subpoenas 

suggest, limited to witnesses whose 

testimony has been filed as part of a 

participant’s written direct statement (a 

limited subset of nonparticipants), or 

whether the authority to subpoena 

witnesses includes any prospective 

witnesses, which would include all 

nonparticipants – subject to the other 

criteria regarding the probative value of 

their evidence.9

In determining whether ‘‘witness’’ as 

used in section 803(b)(6)(C)(ix) is 

limited to those who have already 

submitted testimony to the CRJs, one 

must, as noted above, look to the plain 

meaning of the statute. An accepted 

maxim of statutory construction dictates 

that in the absence of a definition, a 

statutory term should be construed in 

accordance with its natural meaning. 

FDIC v. Meyer, 510 U.S. 471 (1994). The 


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10At the time the House Report was filed, the 

language in the pending legislation permitted the 

CRJs to issue subpoenas ‘‘only if the evidence 

requested to be produced or that would be proffered 

by the witness is relevant and material.’’ H.R. Rep. 

No. 108-408, at 8 (2004). In the enacted legislation, 

that authority was narrowed to permit the issuance 

of subpoenas ‘‘if the Copyright Royalty Judges’ 

resolution of the proceeding would be substantially 

impaired by the absence of such testimony or 

production of documents or tangible things.’’ 17 

U.S.C. 803(b)(6)(C)(ix). 

question here is, what is the natural 

meaning of the word ‘‘witness’’? Black’s 

Law Dictionary defines ‘‘witness’’ as 

‘‘One who sees, knows, or vouches for 

something.’’ Black’s Law Dictionary (8th 

ed. 2004). Additionally, Corpus Juris 

Secundum: A Contemporary Statement 

of American Law as Derived from 

Reported Cases and Legislation, states 

‘‘The term witness, in its strict legal 

sense, means one who gives evidence in 

a cause before a court; and in its general 

sense includes all persons from whose 

lips testimony is extracted to be used in 

any judicial proceeding, and so includes 

deponents and affiants as well as 

persons delivering oral testimony before 

a court or jury.’’ 97 CJS Witnesses § 1 

West, 1994. Neither of these definitions 

deems ‘‘witness’’ to be restricted to those 

whose testimony has been filed with the 

CRJs as part of a written, direct 

statement or, more generally, to those 

who have already given testimony. 

Therefore, there is no basis to conclude 

that Congress intended an alternative, 

more restrictive, meaning. Instead, the 

Register determines that ‘‘witness’’ as 

used in section 803(b)(6)(C)(ix) includes 

anyone who knows something that is 

relevant, or alternatively anyone who 

has or gives evidence (as opposed to one 

who has given evidence) in a rate 

determination proceeding. This plain 

meaning interpretation includes 

witnesses who are nonparticipants, 

including those who have not 

previously been designated by a 

participant as a witness as well as those 

whose testimony has not been filed as 

part of a written direct statement. 

The statutory interpretation principle 

of in pari materia, which offers that 

statutes relating to the same or a closely 

allied subject or object should be 

construed together and compared with 

each other, indicates that it is also 

useful to look to other federal statutes 

that authorize the issuance of 

subpoenas. 73 Am. Jur. 2d Statutes § 103 

(2009). The United States Code is 

replete with provisions that authorize 

various officers of the United States to 

issue subpoenas, and it is common for 

those provisions expressly to provide a 

power to ‘‘subpoena witnesses’’ or ‘‘issue 

subpoenas for the attendance of 

witnesses,’’ or contain similar language. 

See, e.g., 5 U.S.C. § 1305 (Office of 

Personnel Management & Merit Systems 

Protection Board may ‘‘subpena 

witnesses and records’’ in certain 

matters relating to administrative law 

judges); 8 U.S.C.A. § 1229a(b)(1) 

(Immigration judges ‘‘may issue 

subpoenas for the attendance of 

witnesses and presentation of 

evidence’’); 2 U.S.C. § 437d(a)(3) 

(Federal Election Commission may 

‘‘require by subpoena, signed by the 

chairman or the vice chairman, the 

attendance and testimony of witnesses 

and the production of all documentary 

evidence relating to the execution of its 

duties’’). In each of these cases, a plain 

reading of the statute leads to the 

conclusion that Congress was 

empowering the named officers to issue 

subpoenas to ‘‘witnesses’’ as the term is 

commonly understood, and not just to 

persons who were already participating 

in their proceedings. The same reading 

is the natural reading of section 

803(b)(6)(C)(ix). 

In arguing for a more narrow 

interpretation of ‘‘witness,’’ 

SoundExchange, joined by the proposed 

subjects of subpoenas, suggests that the 

final sentence of section 803(b)(6)(C)(ix) 

limits the CRJs’ power with regard to 

nonparticipants. Under 

SoundExchange’s reading, if section 

803(b)(6)(C)(ix) were interpreted to 

allow the issuance of subpoenas to 

nonparticipants, the last sentence of the 

provision would be superfluous, and 

such a result would violate an accepted 

principle of statutory construction. 

However, the final sentence of section 

803(b)(6)(C)(ix), which states ‘‘[n]othing 

in this clause shall preclude the 

Copyright Royalty Judges from 

requesting the production by a 

nonparticipant of information or 

materials relevant to the resolution by 

the Copyright Royalty Judges of a 

material issue of fact,’’ does not address 

the CRJs’ power to subpoena testimony. 

Instead, it speaks to the power of the 

CRJs to request testimony. As 

RealNetworks accurately points out, 

there may be situations where the CRJs 

conclude that it might be useful to have 

a nonparticipant testify, but at the same 

time conclude that the resolution of the 

proceeding would not be substantially 

impaired by the absence of such 

testimony. In such instances, the CRJs 

would not be able to subpoena the 

nonparticipant. However, in such 

instances, the CRJs could, under the 

final sentence of section 803(b)(6)(C)(ix), 

request the relevant testimony. Such a 

scenario clearly demonstrates that the 

final sentence is not rendered 

superfluous by a nonrestrictive 

interpretation of the subpoena power. 

The first part of section 803(b)(6)(C)(ix) 

authorizes the issuance of a subpoena to 

participants and witnesses, albeit bound 

by a finding that the absence of 

testimony would substantially impair 

the resolution of the proceeding. The 

second part of section 803(b)(6)(C)(ix), 

in a non–superfluous manner, preserves 

the ability to request testimony from a 

nonparticipant, provided that such 

testimony is relevant to the resolution of 

a material issue of fact and even if the 

absence of that testimony would not 

substantially impair the resolution of 

the proceeding. 

SoundExchange correctly observes 

that the legislative history cited by 

RealNetworks was referring to proposed 

statutory text that was quite different 

from the statute as passed. However, it 

is unnecessary to look toward the 

legislative history for clarification where 

the plain meaning of the statute is clear. 

Even if there were ambiguity or lack of 

specificity in the statute, the legislative 

history that exists is consistent with the 

Register’s finding that the CRJs’ 

subpoena power is broad and not 

restricted to witnesses who have already 

submitted testimony to the CRJs. The 

legislative history evidences Congress’s 

intent to allow ‘‘the CRJs to subpoena 

additional witnesses.’’ H.R. Rep. No. 

108–408, at 33 (2004). This portion of 

the House Report indicates that 

Congress intended the word ‘‘witness’’ to 

include additional persons beyond 

merely those who have previously been 

designated by a participant to give 

evidence. While it is true that the 

language discussed in the House Report 

imparted broader authority than the 

statue as passed, there is no indication 

that in the legislation as enacted, 

Congress intended a more restrictive 

meaning of ‘‘witness.’’ Rather, it appears 

that subsequent to the filing of the 

House Report, Congress refined the 

statutory language in a way that 

required the CRJs to find a much higher 

degree of relevance and materiality 

before they would be permitted to issue 

subpoenas to witnesses, but not in any 

way that could affect the determination 

whether a particular person would be 

considered a ‘‘witness.’’10

The complete legislative history 

regarding the CRJs’ subpoena power 

indicates that the type of restrictions 

that SoundExchange currently argues 

for were largely reflected in statutory 

language that was reported by the 

Senate Judiciary Committee but that 

ultimately was not adopted by Congress. 

As laid before the Senate, H.R. 1417 

provided that the CRJs ‘‘may issue a 

subpoena commanding a participant or 


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witness in a proceeding to determine 

royalty rates to appear and give 

testimony or to produce and permit 

inspection of documents or tangible 

things.’’ 150 Cong. Rec. S10499 (daily 

ed. October 6, 2004) (Emphasis added). 

The final sentence of the relevant 

subparagraph also stated that ‘‘A 

Copyright Royalty Judge may not issue 

a subpoena under this clause to any 

person who was a participant in a 

proceeding to determine royalty rates 

and has negotiated a settlement with 

respect to those rates.’’ Id. However, 

these two limitations on the CRJs’ 

subpoena power were amended on the 

Senate floor. The floor amendment 

removed the above–referenced final 

sentence of the relevant subparagraph, 

which would have prevented the CRJs 

from issuing a subpoena to any person 

who had been a participant in a 

proceeding to determine royalty rates 

and had negotiated a settlement. The 

floor amendment also removed any 

indication that a ‘‘witness’’ must be one 

‘‘in a proceeding to determine royalty 

rates.’’ 150 Cong. Rec. S10590 (daily ed. 

October 6, 2004). The fact that these two 

restrictions, which are closely analogous 

to the one SoundExchange currently 

argues for, were not included in the 

statute as enacted indicates that 

Congress did not intend such 

limitations to be placed on the CRJs’ 

subpoena power. 

The cases cited by SoundExchange 

are also inapplicable to the current 

inquiry. Bobreski v. E.P.A, 284 F. 

Supp.2d 67 (D.D.C. 2003) addressed a 

statute that specifically withheld any 

grant of subpoena authority; United 

States v. Iannone, 610 F.2d 943 (D.C. 

Cir. 1979) spoke solely to the authority 

to subpoena the attendance and 

testimony of a witness, versus the mere 

authority to subpoena documentary 

information; and Peters v. United States, 

853 F.2d 692 (9th Cir. 1988) addressed 

limitations on an administrative 

agency’s ability to issue a very unique 

type of subpoena often referred to as 

‘‘‘John Doe’ subpoenas’’ which are 

directed in a blanket manner at 

unidentified targets. The court observed 

that such subpoenas, which are not at 

issue here, carry heightened privacy 

concerns and it was therefore ‘‘reluctant 

to assume the existence of the power to 

issue third–party subpoenas directed at 

unidentified targets where Congress has 

not provided for them specifically, nor 

provided procedural safeguards.’’ 853 

F.2d 696. 

Additionally, the CRJs’ regulations 

cited by the parties are not instructive 

in answering the referred question. The 

question presented to the Register is the 

breadth of the CRJs’ statutory authority 

to issue subpoenas. In answering that 

question, the statutory language, as well 

as the relevant legislative history and 

case law, provide the appropriate 

authority. Any limitation adopted 

through regulation by the CRJs regarding 

their ability to issue subpoenas during 

the discovery process prior to the 

consideration of the underlying 

statutory question cannot inform the 

Register’s determination as to the scope 

of the CRJs’ subpoena power under the 

statute. 

Finally, Live355 argues in its reply 

brief that the CRJs would not need the 

subpoena power provided in the statute 

if it extended only to participants and 

witnesses identified in a party’s direct 

case. It maintains that the subpoena 

power would be effectively meaningless 

under this interpretation since other 

statutory provisions allow the CRJs to 

compel testimony from parties and their 

witnesses, citing 17 U.S.C. 

803(b)(6)(C)(v)–(vii). That observation is 

persuasive. The CRJs can order a 

participant to provide additional 

documentation or testimony under their 

authority to conduct the rate setting 

proceeding. They do not need subpoena 

power to compel compliance from a 

participant. The participant can comply 

with the order or, should it or its 

witnesses fail to do so, the CRJs can 

strike the affected portion of the 

participant’s testimony. This option is a 

powerful enforcement mechanism but it 

only can work with participants and 

witnesses that voluntarily appear before 

the CRJs. Subpoena power, on the other 

hand, allows the CRJs to reach 

nonparticipants who are not part of the 

proceeding and it provides the CRJs 

with tools to compel compliance from 

persons who are not initially part of the 

proceedings. While it is true that, as 

SoundExchange points out, the statutory 

authority to issue subpoenas is silent 

with regard to enforcement, that is 

irrelevant to the inquiry at hand. It is 

not uncommon for Congress to grant 

subpoena authority in a statute that 

contains no stated enforcement 

mechanism. Where Congress grants 

subpoena authority in a statute that 

contains no stated enforcement 

mechanism, enforcement is achieved 

through a U.S. district court, and may be 

sought through the assistance of the 

United States Attorney’s office. Office of 

Legal Policy, U.S. Department of Justice, 

Report to Congress on the Use of 

Administrative Subpoena Authorities by 

Executive Branch Agencies and Entities, 

Pursuant to Public Law 106–544, at 9– 

10 (2002), (available at http:// 

www.usdoj.gov/archive/index– 

olp.html). 

For the above–stated reasons, the 

Register concludes that the CRJs do have 

the authority to subpoena a witness to 

appear and give testimony or to produce 

and permit inspection of documents or 

tangible things even when that witness 

is not a participant in the proceeding 

and his or her testimony has not yet 

been submitted in the proceeding. This 

authority is restricted to instances 

where the resolution of the proceeding 

would be substantially impaired by the 

absence of such testimony or production 

of documents or tangible things. 

Additionally, Congress expressly 

preserved the CRJs’ power to request 

information from nonparticipants in 

certain cases when the CRJs do not have 

the power to issue subpoenas. This 

power to request information may be 

invoked in those instances where such 

testimony is relevant to the resolution of 

a material issue of fact, even when its 

absence would not substantially impair 

the resolution of the proceeding (and, 

therefore, a subpoena could not be 

issued). The CRJs have not asked for any 

determination regarding what may 

constitute either substantial impairment 

of resolution of the proceeding or 

relevance to the resolution of a material 

issue of fact, and therefore no guidance 

is offered on those questions. It is, 

however, pertinent to observe that while 

the statute grants the CRJs the authority 

to issue subpoenas in certain 

circumstances, it does not compel them 

to issue subpoenas in any circumstance. 

Furthermore, it is noteworthy that even 

under the broader grant of subpoena 

power in the provision initially 

introduced in the House, Congress 

stated that it ‘‘does not anticipate that 

the use of subpoena power will become 

a common occurrence’’ and that ‘‘[t]he 

CRJs are expected to exercise this power 

judiciously and only in those instances 

where they believe a subpoena is 

necessary to obtain information that the 

parties have not provided and that the 

judges deem necessary to make their 

decision.’’ H.R. Rep. No. 108–408, at 33 

(2004). 

February 22, 2010 

Marybeth Peters, 

Register of Copyrights. 

[FR Doc. 2010–5806 Filed 3–18–04; 8:45 am] 

BILLING CODE 1410–30–S 

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[NOTICE 10–027] 

Notice of Information Collection 

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