United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 27, 2015 Decided June 30, 2015

No. 13-1274

INDEPENDENT PRODUCERS GROUP,

APPELLANT

v.

LIBRARIAN OF CONGRESS, REGISTER OF COPYRIGHTS, AND 

COPYRIGHT ROYALTY BOARD,

APPELLEES

MOTION PICTURE ASSOCIATION OF AMERICA, INC., ET AL.,

INTERVENORS

Consolidated with 13-1296

On Appeal From The Copyright Royalty Board

Brian D. Boydston argued the cause and filed the briefs 

for appellant Independent Producers Group.

Sonia K. McNeil, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief were 

Stuart F. Delery, Assistant Attorney General at the time the 

brief was filed, and Mark R. Freeman, Attorney.
2

Charles G. Curtis, Jr. argued the cause for intervenorappellees Joint Sports Claimants. Gregory O. Olaniran

argued the cause for intervenor-appellees MPAA-Represented 

Program Suppliers. With them on the joint brief were Robert 

Alan Garrett and Lucy Holmes Plovnick.

Ronald G. Dove, Jr., Lindsey L. Tonsager, John I. 

Stewart, Jr., Jennifer Burdman, Ann Mace, L. Kendall 

Satterfield, Victor J. Cosentino, Gregory A. Lewis, and 

Samuel Mosenkis were on the joint brief for amici curiae

Commercial Television Claimants, Public Television 

Claimants, Music Claimants, Canadian Claimants Group, and 

National Public Radio in support of appellees.

Brian D. Boydston was on the brief for intervenor 

Independent Producers Group in support of appellees. 

Before: BROWN, KAVANAUGH, and MILLETT, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH.

KAVANAUGH, Circuit Judge: Under the Copyright Act,

cable systems may retransmit over-the-air broadcasts of 

copyrighted material so long as they pay compulsory royalty 

fees for using that copyrighted material. The Librarian of 

Congress supervises the process of collecting, allocating, and 

distributing those fees. As part of the process, the Copyright 

Royalty Board – which is appointed by the Librarian of 

Congress – conducts regular proceedings to determine how to 

distribute royalty fees. Independent Producers Group, known 

as IPG, represented several copyright owners in the 2000-03 

royalty fee distribution proceeding. According to IPG, the 

Board erred in determining IPG’s royalty fees in the sports 
3

programming and program suppliers categories. IPG now 

appeals. We affirm the Board’s determination as to IPG’s 

royalty fees in those categories.

I

The Copyright Act balances two important policies: 

“ensuring the protection of intellectual property and 

encouraging the free flow of information.” National Cable 

Television Association v. Copyright Royalty Tribunal, 689 

F.2d 1077, 1078-79 (D.C. Cir. 1982). 

That balancing act is evident in the royalty fee provision 

at issue in this case. Under 17 U.S.C. § 111(c), after a 

broadcast television station transmits copyrighted material to 

its viewers, cable systems may retransmit that material 

without first obtaining the copyright owner’s permission. In 

exchange for that privilege, cable systems must deposit

statutorily prescribed royalty fees with the Register of 

Copyrights. Id. § 111(c), (d).

The Copyright Royalty Board is responsible for 

determining how to distribute those fees to the appropriate 

copyright owners. Id. § 801(b)(3). In July of each year, any 

copyright owner who claims part of that year’s pot of royalty 

fees – or an agent of that copyright owner – must file a claim 

with the Board. Id. § 111(d)(4)(A). Based on those claims, 

the Board determines “whether there exists a controversy 

concerning the distribution of royalty fees.” Id. 

§ 111(d)(4)(B).

If all claimants agree how to distribute the royalty fees, 

then the Board authorizes the Librarian of Congress to 

distribute the fees. Id. §§ 111(d)(4)(B)-(d)(4)(C), 801(b)(7). 

If the claimants cannot reach an agreement, however, the 
4

Board must “conduct a proceeding to determine the 

distribution of royalty fees.” Id. § 111(d)(4)(B); see id. 

§ 801(b)(3)(B). 

Royalty fee distribution proceedings have two phases. 

During Phase I, claimants may group themselves into 

categories based on the kind of programming that they own. 

See 37 C.F.R. § 351.1(b)(2)(ii) (permitting claimants to file 

joint petitions to participate in Phase I proceeding); 75 Fed. 

Reg. 26,798, 26,798 (May 12, 2010) (listing categories for 

2000-03 Phase I distribution proceeding). Using evidence 

supplied by the claimants, the Board calculates the 

marketplace value of each category. It then assigns a 

percentage of the total royalty fee fund to each category based 

on its value relative to other categories. See, e.g., id. at 

26,807 (assigning percentages); see also 37 C.F.R. 

§ 351.1(b)(2)(i)(B). During Phase II, the Board subdivides

the fees allotted to each category among the individual 

claimants within that category. See id. § 351.1(b)(2)(i)(B).

Phase I and Phase II proceedings follow the same set of 

procedures. First, the Board publishes a notice of the 

proceeding in the Federal Register. 17 U.S.C. 

§ 803(b)(1)(A)(i); see 73 Fed. Reg. 18,004 (Apr. 2, 2008) 

(notice of Phase I proceeding for 2000-03); 76 Fed. Reg. 

7,590 (Feb. 10, 2011) (notice of Phase II proceeding for 2000-

03). Claimants then petition to participate in the proceeding. 

See 17 U.S.C. § 803(b)(1). A three-month voluntary 

negotiation period ensues, during which the participating 

claimants attempt to reach an agreement without assistance 

from the Board. Id. § 803(b)(3). 

At the end of the voluntary negotiation period, if any 

disputes remain, the Board plays a more active role in the 

process. See 37 C.F.R. § 351.3(a). The Board accepts written 
5

statements from the participating claimants, allows the 

participating claimants to conduct discovery, and orders a 

post-discovery settlement conference. See 17 U.S.C.

§ 803(b)(6)(C); 37 C.F.R. §§ 351.4-351.7. If the participating 

claimants are still unable to resolve their differences, the 

Board then conducts a hearing and issues a final 

determination. See 17 U.S.C. § 803(c)(1); 37 C.F.R. 

§§ 351.8-351.12. Finally, the Librarian of Congress publishes 

the Board’s determination in the Federal Register and 

distributes the royalty fees. See 17 U.S.C. § 803(c)(6).

The Board’s published determinations are subject to 

judicial review in this Court under 17 U.S.C. § 803(d)(1). We

may set aside a determination “only if it is arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law, or if the facts relied upon by the agency 

have no basis in the record.” SoundExchange, Inc. v. 

Librarian of Congress, 571 F.3d 1220, 1223 (D.C. Cir. 2009) 

(citations and internal quotation marks omitted); see 17 

U.S.C. § 803(d)(3) (Section 706 of the Administrative 

Procedure Act applies to judicial review of royalty fee 

distribution determinations).

II

Independent Producers Group, or IPG, represents several 

claimants who, by IPG’s tally, own the copyrights for over 

1,000 television programs. IPG challenges the Board’s 2000-

03 Phase II determination in the sports programming and 

program suppliers categories.1

 1 In broad strokes, the sports programming category includes 

live telecasts of professional and college team sports, and the 

program suppliers category includes syndicated series, specials, and 

movies.
6

IPG chose not to participate in Phase I of the 2000-03 

distribution proceeding. See 75 Fed. Reg. 26,798, 26,799 

(May 12, 2010) (listing participants). During Phase I, the 

participating claimants grouped themselves into eight 

categories, relying on the traditional definitions of those 

categories, and reached a partial settlement. They were not, 

however, able to reach a full settlement concerning the 

allocation of royalty fees across the eight categories. The 

Board therefore conducted a hearing and published a Phase I 

determination that allocated the royalty fees. See id. at 

26,798-99.

Claimants in the sports programming and program 

suppliers categories were subsequently unable to agree on 

how to divide up the royalty fees within those categories. See 

76 Fed. Reg. 7,590, 7,591 (Feb. 10, 2011).2 The Board

therefore commenced a Phase II proceeding. This time, IPG 

participated in the proceeding. See 78 Fed. Reg. 64,984, 

64,984 (Oct. 30, 2013). Two other entities also participated: 

the Motion Picture Association of America, or MPAA, which 

represents non-IPG claimants in the program suppliers 

category, and the Joint Sports Claimants, a consortium of 

non-IPG claimants in the sports programming category.

As a threshold matter, MPAA and the Joint Sports 

Claimants disputed IPG’s authority to represent certain

claimants in the sports programming and program suppliers 

categories. The Board held a preliminary evidentiary hearing

 2 Claimants in the devotional programming category were also 

unable to reach an agreement and therefore participated in the 

Phase II proceeding. See 76 Fed. Reg. at 7,591. IPG’s appeal does 

not involve the devotional programming category. 
7

on that subject and issued two orders resolving the dispute. 

See id. at 64,987.

The orders disposed of all of IPG’s sports programming 

claims. See id. at 64,984 n.2, 64,987. The Board concluded 

that IPG had not established its authority to represent the 

Fédération Internationale de Football Association (better 

known as FIFA) and dismissed IPG’s claims on behalf of 

FIFA. The Board also determined that IPG’s claims on behalf 

of the U.S. Olympic Committee belonged in the program 

suppliers category, not the sports programming category. 

Because IPG had no remaining claims in the sports 

programming category, the Board subsequently distributed all 

royalty fees in that category to the Joint Sports Claimants. 

The orders also dismissed some, but not all, of IPG’s 

claims in the program suppliers category. The Board

therefore held a full evidentiary hearing to divide up the 

royalty fees in that category. See id. at 64,985. IPG and 

MPAA proposed competing methodologies for calculating the 

marketplace value of their claims and allocating royalty fees. 

In its final Phase II determination, the Board largely adopted 

MPAA’s methodology. See id. at 64,993-65,002.

IPG promptly appealed the Phase II determination with 

respect to both the sports programming and program suppliers 

categories. MPAA and the Joint Sports Claimants intervened.

III

IPG appeals the rejection of its sports programming 

claims as arbitrary and capricious, and as a violation of the 
8

Board’s statutory mandate to follow precedent established by 

prior determinations.3

A

The Board disposed of IPG’s sports programming claims 

in two orders, and then authorized the distribution of royalty 

fees for that category to the Joint Sports Claimants. The 

Board now contends that its orders are not subject to judicial 

review because they are not final determinations published in 

the Federal Register. We disagree and conclude that we have 

authority to proceed.

Under 17 U.S.C. § 803(d)(1), we may review appeals 

from any “determination” of the Board under 17 U.S.C. 

§ 803(c), so long as the appeal occurs within thirty days after

publication in the Federal Register. The appellant must be an

“aggrieved participant in the proceeding under [17 U.S.C. 

§ 803(b)(2)] who fully participated in the proceeding and who 

would be bound by the determination.” Id. § 803(d)(1). In 

Independent Producers Group v. Library of Congress, we 

construed Section 803(d)(1) to permit judicial review when 

the Board resolves a contested proceeding and publishes a 

determination, but not when royalty fee claimants reach a 

settlement agreement and the Board merely gives effect to 

that agreement. See 759 F.3d 100, 105-07 (D.C. Cir. 2014). 

In this case, there is no question that the Board issued a 

final determination distributing royalty fees under Section 

803(c). See 78 Fed. Reg. 64,984 (Oct. 30, 2013). There is 

 3 The Board must act in accordance with “prior determinations 

and interpretations of the Copyright Royalty Tribunal, Librarian of 

Congress, the Register of Copyrights, copyright arbitration royalty 

panels . . . , and the Copyright Royalty Judges . . . , and decisions of 

the court of appeals under this chapter.” 17 U.S.C. § 803(a)(1).
9

similarly no question that IPG is an “aggrieved participant” 

who participated fully in the Phase II proceeding. IPG

properly petitioned to participate in the proceeding, appears to 

have paid the requisite fees, and had its contentious dispute 

with the Joint Sports Claimants resolved by the Board. See 17 

U.S.C. § 803(b)(2). Thus, the sole question is whether the 

Board’s orders disposing of IPG’s claims are part and parcel 

of the final determination, such that we may review them, or 

instead are protected from judicial review.

We conclude that the orders are subject to judicial review 

as part of the Board’s final determination. The Board issued 

its orders during an active distribution proceeding under its

authority to issue “necessary procedural or evidentiary 

rulings” at any stage of a distribution proceeding. Id.

§ 801(c). Such interlocutory orders in an agency proceeding

are normally reviewable at the end of the proceeding. See

CSX Transportation, Inc. v. Surface Transportation Board, 

774 F.3d 25, 28 (D.C. Cir. 2014) (agency interlocutory 

decision reviewable at conclusion of adjudication). The 

parties point to nothing in the Copyright Act that suggests that 

the Board’s interlocutory orders are subject to a different rule. 

If we were to conclude otherwise, we would frustrate the 

statutory scheme for judicial review of royalty fee distribution 

proceedings. The Board would be able to insulate hotly 

contested decisions from judicial review simply by fasttracking those decisions and excluding them from its

published determination.

We have jurisdiction to review the merits of IPG’s 

claims.
10

B

We now turn to IPG’s objections to the Board’s

determination respecting the sports programming category. 

IPG first contests an evidentiary sanction that the Board

imposed during the preliminary evidentiary hearing. In IPG’s 

view, that sanction was arbitrary and capricious because: (1) 

IPG had complied with its discovery obligations, and (2) even 

if IPG’s conduct warranted a sanction, the sanction chosen by 

the Board was too severe.

During discovery, the Board ordered IPG to produce 

materials relevant to its relationship with FIFA. See 

November 13, 2012 Hearing Tr. at 269, Joint Appendix at 

2800 (“IPG is directed to produce, to the extent it has not 

already done so, all documents regarding its authority to claim 

royalties on FIFA’s behalf or state that no additional 

documents exist.”). IPG interpreted that order as requiring it 

to produce only documents that helped – rather than hurt – its 

claim of authority to represent FIFA. At the preliminary 

evidentiary hearing, the Joint Sports Claimants objected that 

IPG had withheld responsive materials. IPG responded that 

its production complied with the plain terms of the discovery 

order and with the law governing discovery in distribution 

proceedings. The Board disagreed and sanctioned IPG by 

excluding several of its exhibits.

That sanction was not arbitrary and capricious. The 

Board reasonably responded to a blatant discovery violation 

by IPG.4

 4 The Board may impose discovery sanctions as a consequence 

of its statutory grant of authority to oversee discovery. See 17 

U.S.C. §§ 801(c), 803(b)(6)(C) (granting Board authority to order 

discovery and compel production of documents); Atlantic Richfield 

Co. v. Department of Energy, 769 F.2d 771, 775, 795-96 (D.C. Cir. 
11

First, an evidentiary sanction was an entirely appropriate 

response to IPG’s discovery violation. We review the 

Board’s determination that IPG did not comply with 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.” Hi-Tech Furnace Systems, Inc. v. FCC, 224 F.3d 

781, 789 (D.C. Cir. 2000) (internal quotation marks omitted). 

Reviewed in that deferential light, the evidence makes clear 

that IPG had no cause to believe that it could withhold 

prejudicial evidence. The discovery order directed IPG to 

produce “all documents regarding its authority to claim 

royalties on FIFA’s behalf.” November 13, 2012 Hearing Tr. 

at 269, Joint Appendix at 2800. The order plainly required 

IPG to produce evidence that might undermine its assertion of 

authority to represent FIFA. The Copyright Act and the 

Board’s regulations are consistent with the understanding that 

discovery related to an opposing party’s claim encompasses 

all relevant evidence – including evidence that may tend to 

undermine that claim. 17 U.S.C. § 803(b)(6) (discovery “in 

connection with” participating claimants’ written statements 

permitted); 37 C.F.R. § 351.6 (parties “may request of an 

opposing party nonprivileged underlying documents related to 

the written exhibits and testimony”). It was therefore not 

arbitrary and capricious for the Board to sanction IPG for 

violating the discovery order.

Second, IPG contends that the sanction that the Board

chose was needlessly draconian. Excluding evidence, 

however, is a permissible response to discovery order 

 

1985) (plenary grant of adjudicative authority to agency extends to 

imposition of sanctions when necessary to ensure fairness and 

maintain integrity of adjudicative process).
12

violations in certain circumstances. See, e.g., Perdue Farms, 

Inc., Cookin’ Good Division v. National Labor Relations 

Board, 144 F.3d 830, 834 (D.C. Cir. 1998); cf. Fed. R. Civ. P. 

37(b)(2)(A) (listing exclusion of evidence as acceptable 

sanction for failure to comply with discovery order). An 

exclusion order “prevents the party frustrating discovery from 

introducing evidence in support of his position on the factual 

issue respecting which discovery was sought.” Perdue 

Farms, 144 F.3d at 834 (internal quotation marks omitted). 

Without such a rule, “a party served with a discovery order in 

the course of an administrative adjudicatory proceeding has 

no incentive to comply, and ofttimes has every incentive to 

refuse to comply.” Id. (internal quotation marks omitted). 

IPG offers no basis for concluding that such a run-of-the-mill 

sanction was unduly harsh, let alone arbitrary and capricious,

in this case.5

C

The Board determined that IPG’s claims on behalf of the 

U.S. Olympic Committee did not belong in the sports 

programming category, based on the category definitions to 

which the Phase I participants had agreed.

6

 The Board

declined to permit IPG to challenge those category definitions 

during the Phase II proceeding. IPG contends that the 

Board’s refusal to reopen the category definitions during the 

Phase II proceeding was arbitrary and capricious, and violated 

 5 IPG also alleges that the sanction violated its due process 

rights. But the sanction was consistent with due process principles. 

IPG received sufficient notice that it might be sanctioned. IPG then 

had the opportunity to defend itself at a Board hearing.

6 The Phase I participants defined sports programming as 

“Live telecasts of professional and college team sports broadcast by 

U.S. and Canadian television stations, except for programs coming 

within the Canadian Claimants category.”
13

the Board’s obligation to adhere to precedent established by 

prior determinations. Neither contention has merit.

The Board’s refusal to allow IPG to belatedly challenge 

the Phase I category definitions during Phase II was not 

arbitrary and capricious. During Phase I, the Board assigns

each category a percentage of a fixed pot of royalty fees based 

on the value of the claims in that category. If the Board were 

to revise the category definitions during Phase II, some claims 

could shift between categories. The relative value of those 

categories would therefore change. That change in relative 

value would require the Board to revise its Phase I royalty fee 

allocation (and possibly even to claw back past royalty fee 

distributions).

7

 There would, in short, be no purpose to 

holding a separate Phase I proceeding if it were impossible to 

finalize the allocation of royalty fees across categories before 

moving on to Phase II.

Nor did the Board violate its statutory obligation to 

adhere to precedent established by prior determinations when 

it applied the agreed-upon definition of “sports 

programming.” See 17 U.S.C. § 803(a)(1). IPG argues that 

the Board departed from precedent established in a past 

distribution determination. In that determination, the 

Copyright Royalty Tribunal (a predecessor of the Board), 

specified that Phase I categories apply “to generic categories 

of programs.” 49 Fed. Reg. 37,653, 37,656 (Sept. 25, 1984). 

IPG takes that to mean that, under binding precedent, “sports 

programming” must include any programming of any sporting 

event. But IPG takes the statement out of context. Read in 

context, it is evident that the Tribunal was not establishing a 

 7 The Board may authorize the partial distribution of royalty 

fees even if some disputes have yet to be resolved. See 17 U.S.C.

§§ 111(d)(4)(C), 801(b)(3)(C).
14

definition of “sports programming,” but was simply 

acknowledging that “sports programming” – whatever its 

contours – was a generic category. IPG points to no Board 

precedent that has said that the “sports programming” 

category encompasses all programming of any sporting event.

In sum, no basis exists for overturning the Board’s

reasoned decision to reject IPG’s sports programming claims 

on behalf of FIFA and the U.S. Olympic Committee.

IV

IPG also appeals three aspects of the Board’s

determination related to the program suppliers category: (1) 

the Board’s decision to allow MPAA to represent certain 

claimants without submitting additional documentation of its 

authority to do so; (2) the Board’s dismissal of several of 

IPG’s claims; and (3) the Board’s reliance on MPAA’s 

methodology for allocating royalty fees among claimants.

A

IPG objects to the Board’s decision to allow MPAA to 

proceed with claims on behalf of 615 claimants without first 

producing additional evidence of its authority to represent 

those claimants. 

The Board required IPG to provide evidence of its 

agreements with the claimants IPG purported to directly 

represent. The Board did not, by contrast, require MPAA to 

provide evidence of its agreements with the 615 claimants

challenged by IPG. Instead, MPAA supplied only 

representation agreements with agents who in turn 

represented the claimants. IPG argues that this alleged
15

discrepancy in treatment was arbitrary and capricious, and a 

violation of due process.

IPG’s contention fails because the Board did not in fact

apply different standards to IPG and MPAA. The Board’s

practice was first to require a minimum level of 

documentation and then to request more if any evidence

called “into question” a participant’s authority to act as an 

agent, such as “a disavowal of representation by an 

underlying claimant or evidence that the claimant is 

represented by another party.” 78 Fed. Reg. 64,984, 64,988 

(Oct. 30, 2013). No claimant objected to MPAA’s authority 

to act, via an agent, on the claimant’s behalf. See id. By

contrast, several claimants disavowed IPG’s representation. 

See id. The Board’s decision to require additional

documentation from IPG but not from MPAA was therefore 

not arbitrary and capricious, or a violation of due process.

IPG also contends that the Board’s practice itself violated 

the Board’s statutory obligation to follow precedent

established by prior determinations. See 17 U.S.C. 

§ 803(a)(1). But no contrary precedent binds the Board. IPG 

cites one past proceeding in which MPAA was required to 

produce individual “program certifications” to substantiate its 

authority to represent various claimants. See 66 Fed. Reg. 

66,433, 66,449 (Dec. 26, 2001). In that proceeding, however, 

MPAA had apparently provided no evidence of its authority 

to represent the claimants before it was required to do so. See 

id. Here, in contrast, MPAA supplied agreements with the 

claimants’ agents, and the Board had no reason to doubt the 

authenticity of those agreements.
16

B

IPG also challenges as arbitrary and capricious the 

Board’s dismissal of several of IPG’s claims in the program 

suppliers category. That contention lacks merit for several 

reasons. First, the Board reasonably found that IPG’s flimsy 

evidence – including ambiguous emails and unexecuted 

copies of agreements – was insufficient to establish IPG’s 

authority to represent certain claimants. Second, as we have 

already explained, the Board did not hold IPG to a higher 

standard than it held MPAA.

IPG also claims that the Board’s treatment of IPG’s 

claims violated IPG’s procedural and substantive due process 

rights. But IPG raises those arguments in a cursory fashion, 

without relevant citations to the record or references to 

relevant case law or other authority. We therefore decline to 

entertain those arguments. See Davis v. Pension Benefit 

Guaranty Corp., 734 F.3d 1161, 1166-67 (D.C. Cir. 2013) 

(party may not “mention a possible argument in the most 

skeletal way, leaving the court to do counsel’s work, create 

the ossature for the argument, and put flesh on its bones”) 

(internal quotation marks omitted); Railway Labor 

Executives’ Association v. Railroad Retirement Board, 749 

F.2d 856, 859 n.6 (D.C. Cir. 1984) (court may decline to 

address cursorily raised issue where party fails to discuss 

relevant statutory text or case law).

C

During the Phase II proceeding, IPG and MPAA 

proposed dueling methodologies for calculating the relative 

marketplace value of their claims and allocating royalty fees

within the program suppliers category. See 78 Fed. Reg. at 

64,993-65,003. The Board ultimately relied heavily on 
17

MPAA’s methodology. See id. at 65,002. IPG argues that the 

Board was wrong to do so for five reasons.

First, IPG claims that during discovery MPAA withheld 

important information underlying its methodology. In IPG’s 

view, the Board’s denial of IPG’s motions to compel 

production of that data – and the Board’s subsequent reliance 

on MPAA’s methodology – was arbitrary and capricious.

In royalty fee distribution proceedings, when 

methodologies are offered into evidence, the “facts and 

judgments upon which conclusions” drawn from the

methodologies “are based shall be stated clearly, together 

with any alternative courses of action considered. 

Summarized descriptions of input data, tabulations of input 

data and the input data themselves shall be retained.” 37 

C.F.R. § 351.10(e). A party may object “that an opposing 

party has not furnished unprivileged underlying documents.” 

Id. § 351.10(f).

According to IPG, MPAA flouted its obligation to 

preserve and produce information about its methodology in 

two respects: by withholding certain relevant files, and by 

failing to produce a document that IPG referred to as MPAA’s

“final integrated study.” IPG Br. 45. IPG’s expert witness 

described those materials as necessary to test the validity of 

MPAA’s methodology. But MPAA’s expert witness 

contested that conclusion. He explained that MPAA had 

“turned over” the “exact specification” of its methodology, 

and that an independent team had been able to replicate his 

work using the same materials. June 4, 2013 Hearing Tr. at 

509-11, Joint Appendix at 3564. MPAA’s expert witness also 

denied that a final integrated study existed and clarified that 

IPG’s request was based on a misunderstanding of MPAA’s 

methodology.
18

We review the Board’s discovery determinations with 

“extreme deference.” Cf. Hi-Tech Furnace Systems, Inc. v. 

FCC, 224 F.3d 781, 789 (D.C. Cir. 2000) (internal quotation 

marks omitted). Applying that deferential standard, we 

conclude that the Board reasonably credited MPAA’s expert 

witness’s testimony that MPAA had complied with its duty to 

preserve and produce information related to its methodology. 

As a result, the Board’s denial of IPG’s motions to compel

was not arbitrary and capricious.

Second, IPG contends that MPAA’s methodology 

employed an approach barred by prior determinations and that 

the Board therefore erred by adopting that methodology. See 

17 U.S.C. § 803(a)(1). Because the Board complied with the 

applicable precedent, IPG’s claim fails.

MPAA’s methodology relied on household viewership 

data to allocate royalty fees in the program suppliers category. 

See 78 Fed. Reg. at 64,993. The Board (or its predecessor 

entities) has previously questioned the appropriateness of 

relying exclusively on viewership data in the Phase I context.

See, e.g., 69 Fed. Reg. 3,606, 3,609, 3,612-16 (Jan. 26, 2004); 

57 Fed. Reg. 15,286, 15,301-302 (Apr. 27, 1992). But as the 

Librarian has explained, different considerations apply in 

Phase I and Phase II proceedings. See 66 Fed. Reg. 66,433,

66,453 (Dec. 26, 2001) (approach to calculating marketplace 

value favored in Phase I proceedings “does not translate well 

to a Phase II proceeding dealing with one program category”). 

In the Phase II context, viewership remains “significant to 

determining the marketplace value” of programming. Id. at 

66,447; see id. at 66,451 (viewership of programs “is 

probative in assessing their value in a Phase II proceeding”).
19

The Board’s acceptance of MPAA’s viewership-based 

methodology was therefore consistent with precedent from 

past Phase II proceedings.

8

Third, IPG asserts that the Board ignored yet another line 

of precedent in reaching its decision to adopt MPAA’s 

methodology. Once again, however, the Board appropriately 

followed precedent established by prior determinations in 

reaching its final determination in the 2000-03 proceeding.

The precedent cited by IPG involves the so-called “zero 

viewing problem.” 78 Fed. Reg. at 64,995 (internal quotation 

marks omitted). The problem is this: Viewership surveys –

MPAA’s source of data – occasionally indicate that no 

viewers watched a particular program. See 66 Fed. Reg. at 

66,449. But a “zero viewing” result does not mean that no 

one actually watched the program. Instead, zero viewing 

simply indicates that no one recorded in the viewership 

survey that they watched the program. See id.

During the 1993-97 distribution proceeding, MPAA 

presented evidence riddled with zero viewing data points. 

The Librarian of Congress described that as an “egregious” 

deficiency in MPAA’s methodology. Id. After MPAA failed 

to account for the zero viewing problem with persuasive 

expert testimony, the Librarian concluded that MPAA’s 

methodology was unreliable. See id. at 66,450. The Librarian 

advised MPAA that in the future it should

 8 The Board did not accept MPAA’s methodology wholesale, 

however. It recognized that the viewership-based approach suffers 

from certain limitations. See 78 Fed. Reg. at 64,995. In response to 

some of IPG’s objections to MPAA’s methodology, the Board

adjusted the royalty fee allocation in IPG’s favor. Id. at 65,003.
20

present convincing evidence, backed by testimony of 

a statistical expert, that demonstrates the causes for 

the large amounts of zero viewing and explains in 

detail the effect of the zero viewing on the reliability 

of the results of the survey. In addition, MPAA 

needs to take steps to improve the measurement of 

broadcasts in the survey to reduce the number of 

zero viewing hours, thereby increasing the reliability 

of its study. 

Id.

In the 2000-03 proceeding, the Board concluded that 

MPAA had heeded the Librarian’s advice. MPAA “provided 

adequate evidence to demonstrate, to the satisfaction of the 

[Board], that the incidence of so-called ‘zero viewing’ does 

not preclude the [Board’s] reliance” on viewership data,

“subject to adjustments in the allocations to acknowledge 

some imprecision arising out of the ‘zero viewing’ sample 

points.” 78 Fed. Reg. at 64,995. The Board gave credence to

MPAA’s explanation that zero viewing results are “important 

elements of information, rather than defects in the process.” 

Id. The Board also accepted expert witness testimony that 

“when those zeros are included with non-zero data from the 

sample in a regression that correlates local and distant 

viewing, the zeros are placed in an appropriate statistical 

context.” Id. Ultimately, after weighing all of IPG’s 

objections, the Board gave substantial weight to MPAA’s 

methodology, subject to adjustment to account for “certain 

imperfections” in that methodology. Id. at 65,002. 

All in all, the Board reasonably concluded that MPAA 

presented the sort of “convincing evidence” that precedent 

required. 66 Fed. Reg. at 66,450. The Board therefore did 

not violate its statutory obligation to follow precedent 
21

established by prior determinations by accepting the results of 

MPAA’s methodology.

Fourth, IPG contends that the Board ignored a significant 

defect in MPAA’s methodology. MPAA mistakenly failed to 

include certain data related to Canadian and Mexican 

television stations in its calculations. See 78 Fed. Reg. at 

64,997. When the Board reviewed the data provided by IPG, 

however, the Board concluded that the error did not

disproportionately harm IPG and skew the royalty fee 

allocation in MPAA’s favor. Id. at 64,998 (error “did not 

have a significant effect on the relative shares computed by 

MPAA”). In other words, the Board found that MPAA’s 

error was harmless and declined to increase IPG’s royalty fee 

award. In IPG’s view, the Board’s conclusion was arbitrary 

and capricious.

Should MPAA have fixed its error? Perhaps. But the 

Board reasonably concluded that IPG did not suffer harm 

from the error. The Board “examine[d] the relevant data and 

articulate[d] a satisfactory explanation for its action including 

a rational connection between the facts found and the choice 

made.” Motor Vehicles Manufacturers Association of the 

United States, Inc. v. State Farm Mutual Automobile 

Insurance Co., 463 U.S. 29, 43 (1983) (internal quotation 

marks omitted). Thus, the Board permissibly elected not to 

increase IPG’s award in response to a minor error in MPAA’s 

methodology.

Fifth, IPG claims that by accepting MPAA’s 

methodology the Board improperly attributed several 

programs to MPAA, rather than to IPG. IPG cites one 

example (“Critter Gitters”). But IPG does not develop that 

argument, and we see no basis for upsetting the Board’s 

determination on that ground.
22

* * *

We affirm the Board’s determination as to IPG’s royalty 

fees in the sports programming and program suppliers 

categories.

So ordered.