United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2020 Decided July 21, 2020

No. 18-1337

INDEPENDENT PRODUCERS GROUP,

APPELLANT

v.

COPYRIGHT ROYALTY BOARD AND LIBRARIAN OF CONGRESS,

APPELLEES

AMAZING FACTS, INC., ET AL.,

INTERVENORS

Consolidated with 19-1116

On Appeals from the Copyright Royalty Judges

Brian D. Boydston argued the cause and filed the briefs for 

appellant.

Martin V. Totaro, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief was 

Daniel Tenny, Attorney. Mark R. Freeman, Attorney, entered 

an appearance.
2

Matthew J. MacLean, Jessica T. Nyman, Michael A. 

Warley, Gregory O. Olaniran, Lucy Holmes Plovnick, Daniel 

A. Cantor, R. Stanton Jones, Michael Kientzle, Philip R. 

Hochberg, and Jeremy W. Dutra were on the brief for 

intervenors in support of appellees. 

Before: GRIFFITH and PILLARD, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: Under the Copyright Act, when 

a cable or satellite company retransmits programsinitially aired 

on broadcast stations, the Register of Copyrights collects 

royalty fees under a compulsory licensing scheme and later 

redistributes the fees to the appropriate copyright owners. The 

Copyright Royalty Judges (the Judges) preside over royalty 

distribution proceedings and settle disputes among royalty fee

claimants. Appellant Worldwide Subsidy Group LLC dba 

Independent Producers Group (IPG), an agent for royalty 

claimants in these proceedings, challenges a series of decisions 

by the Copyright Royalty Judges denying most of its clients’ 

royalty fee claims for programming in the devotional and 

program suppliers’ categories that was retransmitted by cable 

for 2004-2009 and by satellite for 1999-2009. IPG lost the 

right to pursue many of its clients’ claims as a result of a

discovery sanction and because, after the Judges held that IPG

was not entitled to a “presumption of validity” for either its 

representative role or the validity of the royalty claims it 

proffered, IPG failed to establish for certain claims that it was 

a duly appointed agent pressing valid claims. IPG challenges

the factual grounds for those determinations and contends they 

are so disproportionately harsh as to be an abuse of discretion. 

It also challenges as arbitrary the Judges’ final distribution 
3

methodologies for allocating the royalties to all eligible

claimants.

We affirm the Copyright Royalty Judges on all three 

challenges: the revocation of the presumption of validity, the 

imposition of discovery sanctions, and the final distribution of 

royalties.

I. Background

A. Statutory Structure

Congress has prescribed a centralized clearinghouse 

system for collecting royalty fees from anyone who retransmits 

a copyrighted television program and for distributing the fees 

to the program’s copyright holder. The Copyright Act allows 

cable and satellite operators to retransmit copyrighted 

programs without permission, requiring only that the operators

deposit a statutorily prescribed royalty fee with the Register of 

Copyrights every six months for programs retransmitted during 

that period. See 17 U.S.C. § 111(c), (d) (cable); id. § 119(a), 

(b) (satellite). The Copyright Royalty Judges annually decide 

how to distribute the resulting pool of funds to the relevant 

copyright holders. Id. § 801(b)(3).

Every July, copyright owners (or their agents) who assert 

entitlement to certain royalties for transmission of their 

programming during the preceding year file claims with the 

Judges. Id. § 111(d)(4)(A); 37 C.F.R. § 360.3. Each filing 

entity must certify that it is authorized to file the claim. See 

U.S. Copyright Royalty Judges, In re Distribution of 2004, 

2005, 2006, 2007, 2008, & 2009 Cable Royalty Funds, In re 

Distribution of 1999, 2000, 2001, 2002, 2003, 2004, 2005, 

2006, 2007, 2008, & 2009 Satellite Royalty Funds, Nos. 2012-

6 CRB CD 2004-09 (Phase II); 2012-7 CRB SD 1999-2009 
4

(Phase II), Memorandum Opinion and Ruling on Validity and 

Categorization of Claims 5 (Mar. 13, 2015) (Claims Ruling). 

Absent any challenge to that certification, the Judges afford the 

filed claim a “presumption of validity,” meaning they treat the 

claim as facially valid and the filer as duly authorized. Id. The 

Judges review these claims and “determine whether there exists 

a controversy concerning the distribution of royalty fees.” 17 

U.S.C. § 111(d)(4)(B). If there are no disputed claims, the 

Judges authorize the Librarian of Congress to distribute the 

fees to the claimants on a proportional basis. Id. Only if there 

is a controversy must the Judges conduct a proceeding to 

resolve disputes regarding the appropriate distribution. Id.

A copyright royalty distribution proceeding has two 

phases. During Phase I, the claimants group themselves into 

categories based on the type of retransmitted broadcasting. See

37 C.F.R. § 351.1(b)(2)(i)(B); id. § 351.1(b)(ii)(C). The two 

categories relevant here are “program suppliers” and 

“devotional” programming. Claims Ruling at 1. The Judges 

then calculate the total market value of all programming in each 

category during the relevant year and, based on its relative 

value, assign each category a percentage of the annual pool of 

royalty fees. See id. § 351.1(b)(2)(i)(B). During Phase II, at 

issue here, the Judges subdivide the fees due to a particular 

category among the individual claimants in that category. Id.

Each phase follows the same set of procedures, designed 

to promote expeditious and amicable resolution among the 

claimants. After the Judges announce the commencement of 

distribution proceedings in the Federal Register, 17 U.S.C. 

§ 803(b)(1)(A)(i), claimants petition to participate, see id.

§ 803(b)(1). A claimant may file an individual petition or join 

with other claimants and share representation. 37 C.F.R. 

§ 351.1(b)(2). The Act imposes a three-month “voluntary 

negotiation period” during which participating claimants must 
5

attempt to reach agreement on their relative shares. 17 U.S.C. 

§ 803(b)(3).

As to disputes the claimants are unable to resolve through 

negotiation, the Judges accept written submissions, oversee a 

period for discovery, and order a post-discovery settlement 

period. See id. § 803(b)(6)(C); 37 C.F.R. §§ 351.4-351.7. For 

Phase I, discovery usually involves expert testimony 

categorizing programs and their market shares. For Phase II, 

discovery involves both proof that individual claimants in fact 

represent the copyright holders and expert testimony proposing 

methodologies for subdividing fees among claimants in 

specific program categories. After the post-discovery 

settlement period, the Judges hear any remaining disputes and 

issue final determinations on the merits. See 17 U.S.C. 

§ 803(c)(1); 37 C.F.R. §§ 351.8-351.12. The Librarian of 

Congress publishes those determinations in the Federal 

Register and distributes the royalty fees accordingly. 17 U.S.C. 

§ 803(c)(6).

B. Procedural History

As noted at the outset, at issue here are royalty fees for 

retransmission of programming in the devotional and program 

suppliers categories by cable providers during 2004-2009 and 

by satellite providers during 1999-2009. There are three repeat 

players who claim to represent the copyright holders of 

programs retransmitted via both cable and satellite in these 

categories: Appellant IPG, claiming royalties for programs in 

both categories; Intervenors Settling Devotional Claimants 

(SDC), claiming only for devotional programming; and 
6

Intervenors Motion Picture Association (MPA), 1 claiming only 

in the program suppliers category. 

1. The claims validity hearings

IPG, the SDC, and MPA did not participate in the Phase I 

proceedings but successfully petitioned to participate in Phase 

II. See 78 Fed. Reg. 50,113, 50,114 (Aug. 16, 2013) (cable 

retransmissions); 78 Fed. Reg. 50,114, 50,115 (Aug. 16, 2013) 

(satellite retransmissions). On December 8, 2014, the 

Copyright Royalty Judges held a five-day evidentiary hearing 

to resolve disputes over the validity and categorization of 

claims. They heard live testimony from five witnesses and 

admitted 180 exhibits. 

a. Presumption of validity

The SDC argued that IPG should be disqualified from 

participating, or at least denied the presumption of validity,

because one of the claims advanced by IPG was a fraudulent 

one on behalf of “Tracee Productions,” a fictitious entity. IPG 

had purported to represent Tracee Productions in an earlier 

proceeding and the Copyright Royalty Judges denied IPG’s 

proffered claims the presumption of validity. In response to the 

fraudulent Tracee Productions claim in the proceeding at issue 

here, the Judges stopped short of debarring IPG from 

representing claimants, instead again denying a presumption of 

validity to IPG’s certification of its authority to represent 

claimants. The Judges based that decision on two grounds: 

IPG’s failure to purge its filing of false claims and the Judges’ 

1 The Motion Picture Association was formerly the “Motion Picture 

Association of America,” or MPAA. The Judges and other parties 

commonly refer to it this way, although the correct term now seems 

to be “MPA.” See Intervenors’ Br. i.
7

sua sponte conclusion that Raul Galaz, IPG’s principal witness, 

gave false testimony concerning a document IPG produced in 

discovery. 

The fraudulent “Tracee Productions” claim has a history

in which Galaz played a prominent role. Galaz in 2002 was 

criminally convicted of defrauding the Copyright Office in 

order to obtain cable retransmission royalties belonging to 

others, and among the criminal acts to which he admitted was 

fraudulent filing in several proceedings on behalf of the 

nonexistent “Tracee Productions.” See U.S. Copyright Royalty 

Judges, In re Distribution of 1998 and 1999 Cable Royalty 

Funds, No. 2008-1 CRB CD 98-99 (Phase II), Ruling and 

Order Regarding Claims 3 (June 18, 2014) (2014 Claims 

Ruling); Judgment and Commitment, United States v. Galaz, 

No. 02-cr-230 (HHK) (D.D.C. Dec. 23, 2002). Before that 

fraud came to light, Galaz had filed a fraudulent claim on 

behalf of Tracee Productions as part of his claims to the 1999 

cable royalty funds for devotional programming. 2014 Claims 

Ruling at 3. The fraudulent 1999 filing was not part of his 

criminal conviction but, by the time the Phase II proceedings 

for the 1998 and 1999 cable royalty funds for devotional 

programming commenced in 2008, the facts surrounding 

Galaz’s conviction were available to the Copyright Royalty 

Judges and IPG had not withdrawn the fraudulent Tracee 

Productions filing. The Judges therefore denied IPG the 

presumption of validity in the 1998 and 1999 proceedings 

because of its failure to withdraw its 1999 fraudulent Tracee 

Productions claim before or during those proceedings. Id. at 5-

11. In the instant proceedings, the Judges found especially 

troubling IPG’s proffer of a Tracee Productions claim in its 

1999 satellite retransmission filing because the 1998 and 1999 

proceedings put it on notice that it must purge Tracee 

Productions from its claim submissions. 
8

The Judges’ second ground for denying the presumption 

of validity was Galaz’s false testimony about IPG’s 2008

satellite claims filing. IPG filed separate lists of claims for 

satellite retransmissions and cable retransmissions. It argued 

that both lists of claims were identical. But while IPG 

produced in discovery a copy of its cable claim with 

consecutive numbers of 1 to 10, it produced a copy of its 

satellite claim that appeared incomplete, as indicated by pages 

numbered 1 to 3 and 6 to 8. Noting the missing pages, MPA 

and the SDC had moved to dismiss the claims of the 39 

claimants listed on the cable claims filing but not included in 

the satellite claims filing. When questioned at the claims 

hearing, Galaz sought to blame the Copyright Royalty Board

(CRB or the Board)2 for the missing pages. He testified that he 

personally had gone to the Board’s records office to obtain a 

copy of the claims filing and received from the Board in its 

incomplete condition the version that IPG produced in 

discovery. See Claims Hrg. Tr. vol. 2, 104:18-105:16. Galaz 

testified that he was “certain” IPG had originally filed a 

complete version with the Board, and that it was the Board that 

had lost the missing pages after IPG filed its claims but before 

Galaz retrieved the copy from the Board that (Galaz testified) 

IPG then produced in discovery in the Phase II proceeding. Id. 

vol. 5, 201:8. 

The Judges concluded that Galaz testified falsely because 

the evidence showed that the incomplete copy he claimed to 

have received from the Board and that IPG submitted in 

discovery could not in fact have come from the Board. The 

Copyright Royalty Board inscribes a sequential number on the 

first page of any received claims filing. MPA obtained a 

2 The Copyright Royalty Board is the institutional entity in the 

Library of Congress that houses the Copyright Royalty Judges and 

their staff. 37 C.F.R. § 301.1.
9

certified copy of the claims filing from the Board and produced 

it in discovery. The copy submitted by IPG in discovery and 

the certified copy obtained by MPA from the Board, both 

lacking pages 4 and 5, differed in only one respect: MPA’s 

Board-certified copy contained a handwritten “193” on the first 

page, whereas the copy IPG produced did not. Claims Ruling 

at 8. The Judges therefore concluded that Galaz could not have 

received the incomplete version submitted by IPG from the 

Board’s files, because a true copy would have included the 

Board’s handwritten number, as shown by the certified copy 

obtained by MPA. Instead, the Judges concluded, Galaz must

have received it elsewhere, “most likely IPG’s own records.” 

Id. On that basis, the Judges concluded that IPG had failed to 

submit claims on which it later sought to recover, and that 

Galaz testified falsely to the contrary.

IPG filed a motion for modification to contest the Judges’ 

conclusion that Galaz gave false testimony by submitting 

Copyright Royalty Board records that contained certain 

irregularities. The Judges rejected the motion, noting that 

IPG’s new evidence showed that the Board placed numbers on 

each of 237 satellite claim filings from 2008, so did “nothing 

more than prove the point: the CRB numbers every claim that 

it accepts for filing.” U.S. Copyright Royalty Judges, In re 

Distribution of 2004, 2005, 2006, 2007, 2008, & 2009 Cable 

Royalty Funds, In re Distribution of 1999, 2000, 2001, 2002, 

2003, 2004, 2005, 2006, 2007, 2008, & 2009 Satellite Royalty 

Funds, Nos. 2012-6 CRB CD 2004-09 (Phase II); 2012-7 CRB 

SD 1999-2009 (Phase II), Order on IPG Motions for 

Modification 2 (Apr. 9, 2015) (Modification Ruling I).

b. Discovery sanction

The SDC also argued that IPG’s royalty claims on behalf 

of Creflo Dollar Ministries (Creflo Dollar), Benny Hinn 
10

Ministries (Benny Hinn), and Eagle Mountain International 

Church, dba Kenneth Copeland Ministries (Eagle Mountain), 

should be struck as a discovery sanction for IPG’s failure to 

produce to the SDC a particular email responsive to an SDC

discovery request. The SDC sought correspondence between 

IPG and devotional programming claimants relating to 

representation agreements. The withheld 2005 email, from a 

lawyer named David Joe to an IPG representative, concerns 

representation agreements between Joe’s “clients” and IPG. Email from David R. Joe, Brewer Anthony & Middlebrook PC, 

to Annie Lutzker, et al. (Nov. 23, 2005) (J.A. 2037). 

The parties dispute whether Joe is in fact an agent of any 

relevant “clients,” but whether or not these producers are 

accurately described as Joe’s “clients,” this email appears to 

refer to agreements between IPG and Benny Hinn, Creflo

Dollar, and Eagle Mountain. In the email itself Joe described

the “matter at hand” as “the 1999 cable distribution,” and 

identified the agreements that were “the subject of this 

discussion” as “the sole agreement with Hinn and Creflo, and 

the second of two agreements with Copeland.” Id. Joe wrote 

that “I could easily support the position that these agreements 

are not in effect because they have been breached, if you think 

they have not been unequivocally terminated,” and noted that 

any plan on IPG’s part to represent these clients at the 

distribution proceeding “needs to be put to rest immediately, 

and after it is, you should, in all candor, expect that the 

termination provisions will be invoked.” Id. 

The SDC claimed that the email was responsive to its 

discovery request. The Judges agreed, finding that IPG had 

failed to produce discovery “relating to claimants’ attempted 

termination(s) of IPG’s agency,” and disallowed IPG’s claims 

on behalf of the mentioned claimants, Creflo, Benny Hinn, and 

Eagle Mountain. Claims Ruling at 39. In contrast to the denial 
11

of the presumption of validity, which was not a sanction but a 

refusal to afford IPG a presumption that its conduct suggested 

it did not deserve, the Judges dismissed these claims as a 

sanction for IPG’s discovery violation. 

IPG twice moved to modify the discovery sanction, 

arguing that the email was irrelevant and the sanction too harsh. 

The Judges twice denied IPG’s motions, bolstering their 

decision by identifying additional discovery requests to which 

the email was responsive, yet was never produced. 

2. Distribution methodologies hearings

From April 13 to 17, 2015, the Judges held another hearing 

in which they received evidence and expert testimony 

regarding appropriate distribution methodologies for the 

royalties in the program suppliers and devotional programming 

categories. MPA offered a methodology for computing 

relative royalty shares in the program suppliers category, the 

SDC offered one for the devotional programming category, and 

IPG submitted a methodology that it contended should be used 

for both categories. The Judges faulted MPA and the SDC’s 

methodologies as supported by insufficient data, and faulted 

IPG’s methodology for “its reliance on volume, time of day, 

fees paid and number of subscribers as measurements of value” 

U.S. Copyright Royalty Judges, In re Distribution of 2004, 

2005, 2006, 2007, 2008, & 2009 Cable Royalty Funds, In re 

Distribution of 1999, 2000, 2001, 2002, 2003, 2004, 2005, 

2006, 2007, 2008, & 2009 Satellite Royalty Funds, Nos. 2012-

6 CRB CD 2004-09 (Phase II); 2012-7 CRB SD 1999-2009 

(Phase II), Order Reopening Record and Scheduling Further 

Proceedings 6 (May 4, 2016) (Order Reopening Record). The

Judges declined to adopt any of the offered methodologies and 

directed that the record be reopened. Id. at 8. The Judges “set 

aside” all submissions, evidence, and testimony from the April 
12

2015 hearing and ordered the parties to submit new evidence

for a new hearing. Id.

On motion from MPA and the SDC, the Judges excluded 

all of IPG’s evidence from the new hearing for two reasons: 

First, IPG asserted without explanation that its sole witness, 

economic expert Dr. Cowan, could not appear at the hearing 

and so would not be subject to cross-examination. Second, the 

Judges’ rules require that a party wishing to rely on the 

testimony of a witness from a prior proceeding must designate 

the complete testimony of that witness and include a copy of it,

37 C.F.R. § 351.4(b)(2), but IPG failed to do so. IPG’s only 

evidence aside from Dr. Cowan’s written testimony consisted 

of citations to testimony from witnesses in past distribution

proceedings. IPG failed to include transcripts of the designated 

testimony, in violation of the Judges’ rules. See Final 

Distribution Determination: Distribution of 2004, 2005, 2006, 

2007, 2008, and 2009 Cable Royalty Funds; Distribution of 

1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 

and 2009 Satellite Royalty Funds, 84 Fed. Reg. 16,038, 16,040 

(Apr. 17, 2019) (Final Distribution Determination). The 

Judges nevertheless allowed IPG to use Dr. Cowan’s written

testimony and IPG’s other exhibits in cross-examining MPA 

and the SDC’s witnesses. Id. The Judges denied MPA and the 

SDC’s motion for summary disposition, instead conducting a 

hearing with live testimony to afford IPG the opportunity to 

cross-examine the witnesses. Id.

Following the new hearing in the reopened proceeding, the 

Judges concluded that MPA and the SDC had fixed the paucity 

of data identified in the earlier hearing. Id. at 16,043, 16,046. 

The Judges adopted MPA’s methodology and proposed 

percentages for the program suppliers category, id. at 16,045,

and adopted the SDC’s for the devotional category, id. at 

16,048.
13

II. Analysis

A. Standard of Review

We review decisions of the Copyright Royalty Judges to 

determine whether they are arbitrary, capricious, contrary to 

law or unsupported by substantial evidence. See 17 U.S.C. 

§ 803(d)(3) (incorporating by reference 5 U.S.C. § 706). “Our 

review is ‘highly deferential.’” Settling Devotional 

Claimants v. CRB, 797 F.3d 1106, 1114 (D.C. Cir. 2015) 

(quoting Intercollegiate Broad. Sys., Inc. v. CRB, 571 F.3d 69, 

79 (D.C. Cir. 2009)). Objections to the Judges’ procedural and 

evidentiary orders “merge[] into and [are] reviewable” as part 

of the final determination. Id.. We review the Judges’ 

determinations that a claimant violated its discovery 

obligations “with ‘extreme deference’ because the ‘conduct 

and extent of discovery in agency proceedings is a matter 

ordinarily entrusted to the expert agency in the first instance.’” 

Indep. Producers Grp. v. Librarian of Cong., 792 F.3d 132, 

138-39 (D.C. Cir. 2015) (quoting Hi-Tech Furnace Sys., Inc. v. 

FCC, 224 F.3d 781, 789 (D.C. Cir. 2000)). When reviewing 

royalty distribution decisions, including distribution 

methodologies, “we ask only whether the Royalty Judges’ 

assigned allocation percentages are ‘within a zone of 

reasonableness.’” Settling Devotional Claimants, 797 F.3d at 

1114 (quoting Christian Broad. Network, Inc. v. Copyright 

Royalty Tribunal, 720 F.2d 1295, 1304 (D.C. Cir. 1983)). 

B. Presumption of Validity

IPG does not question the Judges’ authority to determine 

when the presumption of validity applies, but challenges their 

withholding of the presumption here as an abuse of discretion 

for want of substantial evidence that Galaz lied. IPG further 

contends that it received constitutionally inadequate process to 
14

contest the denial of the presumption that it was an authorized 

representative pressing valid claims. Neither of these 

arguments has merit. 

IPG produced evidence that the Copyright Royalty Board 

sometimes makes mistakes, but nothing called into question the 

evidence that the Board numbered every satellite filing it 

received for 2008, the IPG filing on record with the Board 

contained such numbering, and the version IPG produced did 

not. IPG identifies a handful of instances in which the Board 

lost an entire filing or failed to number one, and it is certainly 

“not inconceivable over the course of six years for the [Board] 

to have misplaced a handful of pages from a single claim filed 

by IPG.” Appellant’s Br. 46 (emphasis added). But the 

mismatch between the claims number on the Board’s certified 

copy of IPG’s claims and that number’s absence on the copy 

produced by IPG is substantial evidence of the falsity of 

Galaz’s testimony that IPG originally filed a complete copy, 

and only received the incomplete copy in discovery from the 

Board.

The Judges’ decision to deny IPG the presumption of 

validity based on Galaz’s false testimony and the fraudulent 

Tracee Productions claim was not so severe as to be an abuse 

of discretion. The presumption allows efficient distribution of 

royalties; without it, the Judges would have to verify agentclient relationships and make copyright-ownership

determinations for each filer seeking copyright royalties. 

When they are able to rely on the presumption, the Judges need 

only resolve the particular disputes, if any, that parties may 

raise concerning the distribution of royalty fees. The relative 

efficiency of such a system requires the good faith of its 

participants but is seriously threatened by fraud or other abuse 

of the presumption. The system accommodates the Judges’

excuse of good-faith mistakes, but it certainly does not require 
15

the Judges to treat every irregularity as a good-faith error. The

Judges’ denial of the presumption to claims pressed by 

claimants who appear not to have acted in good faith and, in 

the absence of evidence supporting claims bereft of the

presumption, their grant of royalties only to unquestioned 

claims and claimants is reasonable and non-arbitrary.

The only effect on IPG of the Judges’ setting aside the 

presumption was to place a burden on IPG to establish its 

authority to represent the copyright holders on whose behalf it 

claimed royalties. “To maintain the viability of this claims 

distribution process, to preserve the reliability of the 

information presented to the Judges and to prevent the abuse of 

asymmetric information by participants, the elimination of the 

presumption of prima facie validity as to the claims IPG 

purports to represent constitutes a measured and proper 

response.” 2014 Claims Ruling at 11. Indeed, the Judges’

response was mild in view of IPG’s repeat filing of fraudulent 

claims for a “client” previously found to be fictional and 

Galaz’s obfuscatory testimony about IPG’s faulty filing. IPG’s 

loss of a large number of claims is no draconian sanction but 

rather the predictable and reasonable result of IPG’s failure to 

document its authority to represent the copyright holders, its 

failure to file a complete set of claims on their behalf, and 

Galaz’s attempt to cover up the latter failure by blaming the 

Board.

There is no question here that the process IPG received 

was constitutionally adequate. IPG received notice that the 

presumption might be denied from both the MPA and the 

SDC’s written submissions requesting that relief. IPG had the 

opportunity at a hearing to testify and present evidence in 

support of its position. The Judges further considered IPG’s 

position as urged in its motion for modification. IPG had all 
16

the process it was due. See Indep. Producers Grp., 792 F.3d at 

139 n.5.

C. Discovery Sanction

IPG argues that its failure to produce the David Joe email 

was not a violation of any discovery obligation and that, even 

if it were, the sanction of dismissing the claims of the three 

producers IPG purported to represent was an abuse of 

discretion. It also argues that the Judges could not, consistent 

with due process principles, impose anything other than a 

monetary sanction without prior notice to IPG and a finding of 

prejudice to the SDC. We hold that the sanction, while harsh,

was not arbitrary and capricious and did not violate due 

process.

Because the Copyright Royalty Judges are closer to the 

facts at hand and better able to determine what may or may not 

fall within the scope of discovery, we review their

determinations that a claimant has violated its discovery 

obligations with “extreme deference.” Indep. Producers Grp., 

792 F.3d at 142 (quoting Hi-Tech Furnace Sys., 224 F.3d at 

789). Even viewing their ruling without such deference, it is 

plain that the David Joe email is responsive to several of the 

SDC’s discovery requests. For example, the SDC’s Document 

Request Number Six requested “copies of all correspondence 

between IPG and Claimants with respect to the Devotional 

Representation Agreements,” U.S. Copyright Royalty Judges, 

In re Distribution of 2004, 2005, 2006, 2007, 2008, & 2009 

Cable Royalty Funds, In re Distribution of 1999-2009 Satellite 

Royalty Funds, Nos. 2012-6 CRB CD 2004-09 (Phase II); 

2012-7 CRB SD 1999-2009 (Phase II), Settling Devotional 

Claimants’ Written Rebuttal Statement on Claims Issues Only 

15-16 & n.4 (Oct. 15, 2014) (SDC Written Rebuttal Statement), 

and the SDC’s Follow-Up Request Number Six requested 
17

documents “relating to termination or attempted termination of 

IPG by any claimant,” Modification Ruling I at 5 n.5. Whether, 

as IPG contends, the David Joe email itself announced no

termination or attempted termination is beside the point; the 

email is clearly a communication “relating to” IPG’s 

representation agreements and their potential termination. As 

the Judges noted, the very purpose of requesting all documents 

“relating to” a disputed issue is that “[t]he producing party 

does not make a judgment call regarding what evidence might 

be probative, persuasive, or admissible.” Id. at 4. IPG’s failure 

to produce a plainly responsive document, even accounting for 

IPG’s own reading of the document as ultimately exculpatory, 

was a blatant discovery violation.

Whether the imposed sanction was reasonable presents a 

closer question. We evaluate the choice of sanction under the 

same standards by which we judge other administrative 

actions, reversing only if—taking account of the nature of their 

authority and the context in which they have exercised it—

“their decision is arbitrary, capricious, contrary to law, or not 

based on substantial evidence.” Settling Devotional Claimants, 

797 F.3d at 1114 (citation omitted). It is not for us to determine 

whether the Copyright Judges’ choice was the one we also 

would have taken. Just as they are equipped to make the factual 

determination as to whether a discovery violation has occurred, 

the Judges are better positioned to evaluate the appropriate 

severity of a sanction in the context of the discovery violation’s 

impact on the participants and the overall proceeding. 

IPG submits various inadmissible estimations of the 

proportion of the royalties to which these three producers might 

otherwise have been entitled, but the Copyright Royalty Board

does not dispute that the dismissal of their claims was a 

substantial loss to IPG. IPG contends that, under the standard 

applicable when a district court dismisses a litigant’s claims as 
18

a discovery sanction, the Judges’ sanction was invalid. In civil 

litigation in federal court, a sanction of claim dismissal must be 

justified by “(1) prejudice to the other party, (2) prejudice to 

the judicial system requiring the district court ‘to modify its 

own docket and operations to accommodate the delay,’ [or] 

(3) the need ‘to sanction conduct that is disrespectful to the 

court and to deter similar conduct in the future.’” Butera v. 

District of Columbia, 235 F.3d 637, 661 (D.C. Cir. 2001) 

(quoting Webb v. District of Columbia, 146 F.3d 964, 971 

(D.C. Cir. 1998)); see also id. (noting district court authority to 

sanction pursuant to Federal Rule of Civil Procedure 37(b)(2) 

and the court’s inherent power to protect the integrity of the 

judicial process).

We do not think that standard is applicable here. The 

discovery and sanctions regime in federal district courts is 

materially different from discovery and claim verification in 

distribution proceedings under the Copyright Act. The 

Copyright Royalty Judges do not derive their sanctioning 

power from authorities governing Article III courts; instead, 

Congress empowered these specialist Judges to supervise 

disbursement of broadcast royalties. The Act empowers the 

Judges to “make any necessary procedural or evidentiary 

rulings” in the royalty proceedings. 17 U.S.C. § 801(c). And 

their “plenary grant of adjudicative authority” includes power 

to impose “sanctions when necessary to ensure fairness and 

maintain [the] integrity” of the copyright claims process. 

Indep. Producers Grp., 792 F.3d at 138 n.4 (citing Atl.

Richfield Co. v. Dep’t of Energy, 769 F.2d 771, 775, 795-96 

(D.C. Cir. 1985)). In contrast to litigation in federal court, the 

copyright royalties distribution process is largely clerical, 

designed to enable good-faith participants to recover their 

royalties through a streamlined, amicable, administrative

procedure. The administrative hearings backstop the clerical 

process, and even they stop short of full adversary trials. 
19

Rather, where disputes arise over submitted royalty claims, the 

Act provides for a period to further encourage amicable 

settlement and, failing that, discovery and hearings geared 

toward expeditious resolution by the Judges. IPG has cited no 

authority to import discovery-sanction standards designed for 

adversarial adjudication in federal district court into 

proceedings crafted by Congress to suit the specific needs of 

routine royalty disbursement to holders of broadcast 

copyrights. 

The Judges’ choice of sanction in this case, while severe, 

was not unreasonable. IPG withheld an email plainly 

responsive to SDC discovery requests, and the Judges 

responded by dismissing the directly implicated claims—those

mentioned in the email. The Judges “reasonably responded to 

a blatant discovery violation by IPG,” Indep. Producers Grp., 

792 F.3d at 138, and so long as the sanction falls within 

reasonable parameters, we must affirm even if a lesser sanction 

might have sufficed to preserve the integrity of distribution 

proceedings. IPG had notice that the Judges might dismiss its 

clients’ claims because the SDC requested that the claims be 

struck. IPG then had the opportunity to argue against dismissal

at a hearing and in two subsequent motions for modification, 

which satisfies the requirements of due process. 

D. Distribution methodologies

Finally, IPG objects to the final royalty distribution 

methodologies selected by the Judges, contending that the 

Judges had previously rejected those very methodologies for 

insufficient evidence. It also argues that the exclusion of IPG’s 

expert reports as noncompliant with the Judges’ published rules 

elevated “form over substance” and, because it left IPG’s 

claims fatally unsupported, was an abuse of discretion. 

Appellant’s Br. 70. We hold that the Judges’ distribution 
20

methodology decisions were well “within a zone of 

reasonableness.” Settling Devotional Claimants, 797 F.3d at 

1114 (quotation marks and citation omitted).

First, the Judges were within their discretion in holding 

that IPG’s expert reports failed to conform to the Judges’

published regulationsin that IPG failed to attach copies of prior 

testimony that it wished to designate in the new proceeding. 

See 84 Fed. Reg. at 16,040 n.12 (citing 37 C.F.R. 

§ 351.4(b)(2)). The Judges fairly allowed IPG to use the 

reports in cross-examining the SDC and MPA’s experts, but 

IPG failed to undermine the experts. When the Judges faulted 

IPG for lacking evidence or expert analysis to rebut the SDC 

and MPA’s experts, they were not automatically ruling against 

IPG for its want of an expert, but legitimately noting that 

“[c]riticism by IPG’s counsel is not a substitute for expert 

rebuttal testimony.” Id. at 16,046. 

Second, the Judges reasonably adopted the SDC and 

MPA’s methodologies once they both fixed the evidentiary 

problems the Judges had initially identified. The Judges must 

apportion royalties among rightsholders for specific programs 

in each program-category pool. To do so, they must determine 

the relative marketplace value of those programs—a 

calculation highly dependent on viewership. See Indep. 

Producers Grp., 792 F.3d at 142. For cable and satellite 

retransmission royalties, the relevant viewership data quantify 

distant viewership, as the royalties are for retransmissions 

elsewhere of locally aired programs. The Judges initially 

faulted MPA and the SDC for lacking data showing a 

correlation between local ratings and distant viewership 

sufficient to justify quantifying distant viewership as a function 

of local ratings. See Order Reopening Record at 2-5. 
21

MPA’s methodology apportioned royalties in the program 

suppliers category based on the respective number of hours that 

cable and satellite subscribers viewed MPA-represented and 

IPG-represented programs. 84 Fed. Reg. at 16,042. Because 

obtaining distant viewership data for every year was 

prohibitively expensive, MPA’s expert initially used local 

viewing data from 2000 to 2009 and distant viewing data from 

2000 to 2003 to calculate the relationship between them and 

used that formula to predict distant viewership for the years 

such data were unavailable. See Order Reopening Record at 3. 

The Judges held that there were too many reasons the 

relationship between known local and distant viewing data 

from 2000-2003 would not validly project unknown distant 

viewership based on known local viewership data for the 2004-

2009 period. They found the evidence inadequate without 

either (1) more contemporaneous data from which to derive a 

relationship or (2) other evidence that could persuade the 

Judges such data were not needed for the methodology to be 

reliable. Id. at 4. In the new hearing, MPA supplied distant 

viewership data from 2008-2009, 84 Fed. Reg. at 16,042, and 

its expert relied on the new and previously submitted data to 

explain that the relationship between local and distant data 

observed from 2000 to 2003 did not change significantly for 

the period from 2008 to 2009, see id. at 16,043. The Judges 

reasonably held that the additional two years of distant viewing 

data beyond what was submitted in the initial hearing satisfied 

their first concern, and the similarity of the relationship 

rendered reliable the expert’s extrapolation regarding the years 

for which data remained unavailable. See id. The Judges 

reasonably accepted the new evidence as remedying their 

earlier evidentiary concerns and adopted the methodology.

The Judges had initially faulted the SDC’s methodology 

for similar problems, as its expert, extrapolating from local data 

from the periods in question, relied on distant viewing data 
22

limited to February 1999 for what the expert claimed was a 

statistically significant correlation between local and distant 

viewership. Order Reopening Record at 5. The Judges 

concluded that the SDC’s methodology suffered from a 

“critical lack of data,” both because there was no evidentiary 

basis to conclude that a correlation “in the 1999 data continues 

unchanged throughout the entire succeeding decade” and 

because, even for the local data, the SDC’s expert had relied on 

evidence from a single month in each year from 1999 to 2003. 

Id. As it had with MPA’s data, the Judges held the SDC’s 

methodology faulty absent more contemporaneous distant 

viewing data and more local ratings data, or grounds to 

conclude such data were not necessary. Id. 

In the reopened proceeding, the SDC remedied both those 

evidentiary deficiencies to the Judges’ satisfaction. The SDC’s 

expert added distant viewership data from 1999 through 2003

at four different times during in each year. 84 Fed. Reg. at 

16,045. And he gathered complete local data for the years 2004 

to 2009 and used the data to demonstrate that program ratings 

from a single month (i.e., February) were representative of 

ratings throughout the year. 

The Judges held that the SDC and MPA’s additional data 

“presented a quantum of persuasive evidence and analysis 

demonstrating a positive correlation between local ratings and 

distant viewing that is consistent over time.” Id. at 16,046

(emphasis added). IPG has offered no evidence or argument 

that calls into question the reasonableness of the Judges’

conclusion, other than to raise a broadside objection to any 

viewership-based methodology in Phase II proceedings—an 

objection that we have repeatedly rejected. See, e.g., Settling 

Devotional Claimants v. CRB, Nos. 15-1084, 15-1093, 2017 

WL 1483329, at *1 (D.C. Cir. Feb. 10, 2017); Indep. Producers 

Grp., 792 F.3d at 142.
23

* * *

For the foregoing reasons, we affirm the final 

determination of the Copyright Royalty Judges and the 

underlying orders challenged on appeal.

So ordered.