Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Notices 14971

DIVISION OF FOREIGN LABOR CERTIFICATIONS, HEALTH CARE FACILITY ATTESTATIONS—Continued

[Form ETA–9029]

CEO-Name/Facility name/Address State Action

date

ETA CONTROL NUMBER—6/225572 ACTION—ACCEPTED

Ms. Alecia Bristow, IHS of Nashville, 2733 McCampbell Road, Nashville, TN 37214, 615–885–0483 .......................... TN 03/02/95

ETA CONTROL NUMBER—6/225532 ACTION—ACCEPTED

Ms. Julie Martinez, Canterbury Villa of Eagle Pass, 2550 Zacatecas, Eagle Pass, TX 78852, 210–773–4488 ............. TX 03/02/95

ETA CONTROL NUMBER—6/225530 ACTION—ACCEPTED

Donald R. Cain, Cartwheel Lodge of Gonzales, 1800 Cartwheel Drive, Gonzales, TX 78629, 210–672–2887 ............. TX 03/03/95

ETA CONTROL NUMBER—6/225600 ACTION—ACCEPTED

Ms. Peggy Brisgill, Colonial Manor Care Center, 821 Hwy 81 West, New Braunfels, TX 78130, 210–625–7526 ......... TX 03/03/95

ETA CONTROL NUMBER—6/225602 ACTION—ACCEPTED

Mr. Ernest Flores, Jr., Dimmit County Memorial Hospital, P.O. Box 1016, Carrizo Springs, TX 78834, 210–876–2424 TX 03/02/95

ETA CONTROL NUMBER—6/225535 ACTION—ACCEPTED

Chris Callahan, Monument Hill Nursing Center, 120 Star Loop 92, LaGrange, TX 78945, 410–968–3144 ................... TX 03/03/95

ETA CONTROL NUMBER—6/225601 ACTION—ACCEPTED

Mr. David Nesbit, Nesbit Nursing Home, 1215 Ashby, Sequin, TX 78155, 210–379–1606 ............................................ TX 03/03/95

ETA CONTROL NUMBER—6/225603 ACTION—ACCEPTED

Harvin E Saggs, Southern Manor, Highway 90A West, Hallettsville, TX 77964, 512–798–3268 .................................... TX 03/03/95

ETA CONTROL NUMBER—6/225599 ACTION—ACCEPTED

Ms. Donna Grayson, Town and Country Manor, 625 N. Main, Boerne, TX 78006, 210–249–3085 ............................... TX 03/03/95

ETA CONTROL NUMBER—6/225604 ACTION—ACCEPTED

[FR Doc. 95–6911 Filed 3–20–95; 8:45 am]

BILLING CODE 4510–30–P

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 94–3 CARP–CD90–92]

Distribution of 1990, 1991 and 1992

Cable Royalty Funds

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notice of consolidation of

proceedings, request for notices of

intent to participate, and precontroversy

discovery schedule.

SUMMARY: The Copyright Office of the

Library of Congress is consolidating the

distribution of the 1990, 1991 and 1992

cable royalty funds into a single

proceeding. Accordingly, the Office is

requesting that claimants to the 1991

and 1992 royalty funds file a Notice of

Intent to Participate in the distribution

proceeding for those funds, if they have

not already done so. The Office is also

setting the prehearing schedule for the

1990–1992 distribution proceeding,

including the date on which

controversies will be declared and

arbitration initiated.

DATES: Notices of Intent to Participate

are due April 5, 1995.

ADDRESSES: If sent by mail, an original

and five copies of the Notice of Intent

to Participate should be addressed to:

Copyright Arbitration Royalty Panel

(CARP), P.O. Box 70977, Southwest

Station, Washington, DC 20024. If hand

delivered, an original and five copies of

the Notice of Intent to Participate

should be brought to: Office of the

Copyright General Counsel, James

Madison Memorial Building, Room 407,

First and Independence Avenue, S.E.

Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT:

William Roberts, Senior Attorney,

Copyright Arbitration Royalty Panel

(CARP), P.O. Box 70977, Southwest

Station, Washington DC 20024.

Telephone (202) 707–8380. Telefax:

(202) 707–8366.

SUPPLEMENTARY INFORMATION:

I. Background

Each year, cable systems submit

royalties to the U.S. Copyright Office for

a statutory license to retransmit

broadcast signals to their subscribers. 17

U.S.C. 111. These royalties are, in turn,

distributed to the appropriate copyright

owners by means of a cable royalty

distribution proceeding. These

proceedings were formerly conducted

by the Copyright Royalty Tribunal.

However, on December 17, 1993, the

Tribunal was abolished. Royalty

distribution proceedings are now

conducted by ad hoc copyright

arbitration royalty panels (CARPs)

convened and supported by the Library

of Congress and the Copyright Office.

Copyright Royalty Tribunal Reform Act

of 1993, P.L. 103–198, 107 Stat. 2304

(1993).

At the time Congress was considering

the abolition of the Tribunal, the

Tribunal had already begun a

proceeding to distribute the cable

royalties that were collected in 1990.

The 1990 cable royalty distribution

proceedings began on April 2, 1993. 58

FR 17387 (April 2, 1993). The

proceeding did not, however, reach a

conclusion. In light of the imminent

passage of the Copyright Royalty

Tribunal Reform Act, the Tribunal

suspended the 1990 cable royalty

distribution proceeding. Order, CRT

Docket No. 92–1–90CD (October 14,

1993).

The Copyright Royalty Tribunal

Reform Act, which was effective

immediately upon enactment, directed

the Librarian and the Copyright Office

to adopt the rules and regulations of the

Tribunal found in 37 CFR chapter 3, 17

U.S.C. 802(d), and provided that the

Tribunal’s regulations were to remain in

effect until the Librarian adopts

‘‘supplemental or superseding

regulations.’’ The Office adopted the

Tribunal’s rules and regulations on an

interim basis on December 22, 1993, and

notified the public that it intended to

begin a rulemaking proceeding to revise

and update those rules. 58 FR 67690

(December 22, 1993). In one of the first

decisions in that rulemaking, we

considered the question of how to

handle proceedings that were

suspended because of the abolition of

the Tribunal. The Office determined

that matters left pending at the Tribunal

would not be taken up where they had

been left off, but would have to be

begun anew. 59 FR 2550 (January 18,

1994). The 1990 cable distribution

would, therefore, start over from the

beginning.

We met with the cable copyright

claimants on August 11, 1994 and were

informed that they preferred to restart

the 1990 cable distribution proceeding

only after final regulations for the
14972 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Notices

CARPs were adopted and in place. The

Office honored this request and, on

December 7, 1994, published final

regulations governing the conduct of

royalty distribution and rate adjustment

proceedings prescribed by the Copyright

Royalty Tribunal Reform Act of 1993. 59

FR 63025 (December 7, 1994).

Cable royalties for the 1990, 1991,

1992 and 1993 account years are now

eligible for distribution proceedings. A

partial distribution of ninety percent of

the 1990 and 1991 royalties was made

by the Tribunal prior to its termination,

and the Copyright Office has made a

partial distribution of eighty percent of

the 1992 and 1993 royalty funds. See,

Distribution Order, CRT Docket No. 92–

1–90CD, 57 FR 41478 (September 10,

1992) (1990 royalties); Distribution

Order, CRT Docket No. 93–4–91CD

(October 6, 1993) (1991 royalties);

Order, Docket Nos. 94 CARP (92–CD)

and 94 CARP (93–CD) (September 26,

1994) (1992 and 1993 royalties).

II. Request for Comments on

Controversy

On December 15, 1994, the Copyright

Office of the Library of Congress

published a notice seeking comment as

to the existence of controversies among

claimants to the 1990 cable royalty

fund. 59 FR 64714 (December 15, 1994).

We also requested interested claimants

to file a Notice of Intent to Participate

in the 1990 cable distribution

proceeding.

In addition to seeking comments

regarding 1990 royalty fund

controversies, we solicited comments as

to whether the distribution of 1990

cable royalties should be consolidated

with other cable royalty funds collected

in subsequent years. 59 FR 64715

(1994). The 1991, 1992 and 1993 royalty

funds are ready for distribution and

could be made a part of the 1990

proceeding, if that would serve the

public interest. If the claimants favored

a consolidation, we sought comment as

to the existence of controversies in those

subsequent years. We also stated that if

we did consolidate the 1990 cable

distribution with one or more

subsequent years, we would issue a

request at that time for Notices of Intent

to Participate for those subsequent

years. 59 FR 64715.

The Comments

The Office received comments from

the following claimant groups: Program

Suppliers, Joint Sports Claimants

(consisting of the Office of the

Commissioner of Baseball, the National

Basketball Association, the National

Hockey League and the National

Collegiate Athletic Association),

National Association of Broadcasters

(NAB), Canadian Claimants, Devotional

Claimants, Music Claimants (consisting

of the American Society of Composers,

Authors and Publishers; Broadcast

Music, Inc.; and SESAC, Inc.), The

Public Broadcasting Service (PBS),

National Public Radio (NPR) and

Multimedia Entertainment, Inc.

(Multimedia). In addition to individual

comments from these groups, the Office

received a comment, styled ‘‘Joint

Comments of Copyright Owners’’

(Copyright Owners), that expresses the

collective opinion of all of the above

listed claimant groups.

Discussion of the Comments

The Copyright Owners identify

existence of both Phase I and Phase II

controversies for the 1990 cable

distribution, and identify the existence

of a Phase I controversy for the 1991 and

1992 royalty funds. They request a

consolidation of the 1991 and 1992

distribution with the 1990 proceeding,

and propose a detailed schedule for the

45-day precontroversy discovery period.

The Copyright Owners are not, however,

in agreement as to when the

precontroversy discovery period, and

the initiation of arbitration, should

begin.

A. Existence of Controversies.

Copyright Owners state that a

controversy exists as to the Phase I

allocation of the 1990 cable royalty

fund. Copyright Owners, comments at

1–2. The Phase I parties agreed to settle

the 1990 royalty claims of NPR, the

Canadian Claimants and the Music

Claimants. These settlements were

approved by the Copyright Royalty

Tribunal during the aborted 1990 cable

distribution proceeding; therefore, no

controversy exists with respect to the

shares of the 1990 cable royalty fund for

NPR, Canadian Claimants, and Music

Claimants. See in CRT Docket No. 92–

1–90CD: ‘‘Distribution Order’’ (dated

March 29, 1993) (NPR); ‘‘Distribution

Order’’ (dated July 27, 1993) (Canadian

Claimants); and ‘‘Order’’ (dated August

16, 1993) (Music Claimants).

Copyright Owners also identify the

existence of a controversy for the Phase

I allocation of the 1991 and the 1992

cable royalties. Id. at 2. Although there

is a possibility that some of the

claimants will reach a Phase I

settlement, hearings before a CARP will

nevertheless be required. Id.

With respect to Phase II controversies,

Copyright Owners ask that the

Copyright Office schedule them after

resolution of all Phase I controversies,

and then conduct all Phase II

proceedings concurrently. Id. at 3.

Music Claimants urge that a separate

CARP panel be convened to conduct

each Phase II hearing. Music Claimants,

comments at 7.

Multimedia and NAB report the

existence of Phase II controversies for

the 1990 cable fund. Multimedia,

comments at 1; NAB, comments at 1–2.

Several other commentators, including

Program Supplier and Joint Sports

Claimants, report that they are currently

unaware of any Phase II controversies

for the 1990 fund, but reserve the right

to participate in such controversies

should they arise. See Program

Suppliers, comments at 1–2; Joint

Sports Claimants, comments at 2. See

also Canadian Claimants, comments at

2; Music Claimants, comments at 3–4;

Devotional Claimants, comments at 1.

None of the commentators are aware of

any Phase II controversies at this time

for the 1991 and 1992 cable royalty

funds; however, they express an

intention to participate in any Phase II

controversies should they arise. See e.g.

Program Suppliers, comments at 2;

Music Claimants, comments at 5–6;

Devotional Claimants, comments at 1.

B. Consolidation of Proceedings.

Copyright Owners request that the 1990,

1991, and 1992 distribution proceedings

be consolidated into a single

proceeding. Copyright Owners,

comments at 2. They state that

consolidation is necessary to reduce the

existing backlog in distribution

proceedings, created by the elimination

of the Copyright Royalty Tribunal, and

that a proceeding which covers no more

than three years would be manageable

and cost effective for the parties and the

CARP. Id. Copyright Owners do not,

however, express any opinion as to the

advisability of consolidating subsequent

royalty funds (1993, 1994, etc.) into a

single proceeding. Id. at 2–3.

NAB supports consolidation of the

1990, 1991, and 1992 cable funds into

a single proceeding, but only if the

procedural dates and schedule proposed

by Joint Sports Claimants is followed.

See discussion, infra.

C. Prehearing Schedule. Copyright

Owners urge the Copyright Office to

adopt a detailed prehearing scheduling

order which addresses the following

matters.

1. Scheduling of proceeding. Section

251.45(b)(1) prescribes a 45-day

precontroversy discovery period for the

handling of discovery and prearbitration matters. Copyright Owners

propose that the Copyright Office adopt

specific deadlines for the following

procedural steps to take place within

those 45 days:

Exchange of Written Direct Cases

Requests for Underlying Documents

Related to Written Direct Cases
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Notices 14973

Responses to Requests for Underlying

Documents

Completion of Document Production

Follow-up Requests for Underlying

Documents

Responses to Follow-up Requests

Motions Related to Document

Production to Date

Production of Documents In Response

to Follow-Up Requests

All Other Motions, Petitions and

Objections

Copyright Owners, comments at 4. In

addition, Program Suppliers urge that

parties should be free to file motions,

particularly on discovery disputes, at

any time up to the established deadline.

The Librarian could then address each

motion on an ad hoc basis, thereby

expediting the decisionmaking process.

Program Suppliers, comments at 4.

2. Nature and scope of precontroversy

discovery. Copyright Owners note that

the rules describe the nature and scope

of discovery permitted by a CARP,

§ 251.45(c), but do not articulate any

standard for precontroversy discovery.

They therefore recommend that the

same standard in § 251.45(c) apply to

the precontroversy discovery period,

which would allow the parties to

‘‘request of an opposing party

nonprivileged underlying documents

related to the written exhibits and

testimony.’’ Copyright Owners,

comments at 5.

3. Discovery and motions before the

CARP. Copyright Owners voice concern

that § 251.45(c) requires the CARP to

establish a discovery period following

the submission of rebuttal and direct

cases. They believe that allowing

additional discovery on direct cases

would be counterproductive to the

purpose of the precontroversy discovery

period, and that a CARP should only

allow additional direct case discovery

upon a showing of good cause.

Copyright Owners, comments at 5–6.

Thus, all discovery requests that can be

made during the precontroversy

discovery period, and all motions and

objections contemplated by § 251.45(b),

must be made at that time. Id.

4. Manner of service. Because of what

they view as a limited precontroversy

discovery period, Copyright Owners

recommend that service of all discovery

requests and responses to such requests

be by hand or fax on the party to whom

the request or response is directed.

Likewise, they propose that all motions

and responses filed during the

precontroversy discovery period be

served by means no slower that

overnight express mail. Copyright

Owners, comments at 6.

5. Start of evidentiary hearings.

Copyright Owners request that a

‘‘sufficient’’ time period be allowed

from issuance of all precontroversy

discovery rulings by the Copyright

Office and the start of the 180-day

arbitration period. Copyright Owners,

comments at 6–7.

D. Commencement of Proceedings.

The commentators disagree as to when

the precontroversy discovery period

should begin and, consequently, when

arbitration should be initiated. A

majority of the commentators support

the proposal of Joint Sports Claimants,

who propose commencement of

precontroversy discovery on August 18,

1995, and initiation of arbitration on

October 30, 1995. Program Suppliers

urge that precontroversy discovery

begin on March 31, 1995, with the 180-

day arbitration period starting on June 7,

1995. Music Claimants do not endorse

either position, but do not believe that

precontroversy discovery should begin

any time before ‘‘mid-May.’’ NPR takes

a similar approach, favoring a June start.

1. Program Suppliers proposal.

Program Suppliers argue that an

immediate start to the 1990 cable

distribution proceeding is necessary to

reduce the backlog of cable and satellite

distributions and rate adjustments

created by the elimination of the

Copyright Royalty Tribunal. Program

Suppliers, comments at 2. There have

been no compulsory license hearings

since the fall of 1993, and a number of

proceedings are or will be ripe for

decision:

—All cable compulsory license

distribution cases from 1990 forward;

—All satellite carrier compulsory

license distribution cases from 1992

forward;

—The five-year cable royalty rate

adjustment case under 17 U.S.C.

801(b)(2) (A) and (D) and 803(a)(2)

must be filed during 1995; and

—The satellite carrier fee negotiation

and arbitration under 17 U.S.C. 119(c)

must begin on July 1, 1996 with

initiation of arbitration no later than

January 1, 1997.

Id. Program Suppliers concede that

consolidation of the 1990, 1991, and

1992 cable distribution proceedings will

help to reduce this backlog, but only a

combination of consolidation and

prompt scheduling of hearings will

bring all matters up-to-date. Id. at 3.

Program Suppliers recommend that

the 45-day precontroversy discovery

period begin on March 31, 1995, and

conclude on May 10, 1995. Arbitration

would begin on June 7, 1995. Id. at 4–

5. Program Suppliers argue that under

this proposal, arbitration will be

completed by December, thereby

clearing the 1996 calendar for 1993

cable distribution, 1992 satellite

distribution, and cable rate adjustment

CARP proceedings, if necessary.

Creating the scheduling possibility for

two CARP hearings in 1996 by

completing the 1990 cable distribution

in 1995 ‘‘would help considerably to

relieve the backlog that will exist at that

time.’’ Id. at 3.

While Program Suppliers

acknowledge that their proposed

schedule is ambitious and will require

hard work by the parties, they argue that

it does not grant them any unfair

advantage. They note that the Bortz

study introduced by Joint Sports

Claimants in the 1990 distribution

proceeding before the Copyright Royalty

Tribunal, the ‘‘principal evidentiary

presentation supported by all the parties

in the 1990 hearing other than Program

Suppliers,’’ contained data for 1990,

1991 and 1992. Program Suppliers,

however, have yet to receive their

principal data, the Neilsen study, for

those same years. Id. at 6.

In addition to proposing

precontroversy discovery and

arbitration starting dates, Program

Suppliers recommend specific dates for

all precontroversy procedural deadlines

proposed in the comments of Copyright

Owners:

Filing Deadline

Written Direct Cases ......... Mar. 31, 1995.

Request for Underlying

Document Related to

Written Direct Cases.

Apr. 10, 1995.

Responses to Requests for

Underlying Documents.

Apr. 14, 1995.

Completion of Document

Production.

Apr. 20, 1995.

Follow-Up Document Requests, If Any.Apr. 25, 1995.

Responses to Follow-Up

Requests.

Apr. 28, 1995.

Motions Related to Document Production to Date.May 2, 1995.

Completion of Document

Production For FollowUp Requests, If Any.

May 8, 1995.

All Other Motions, Petitions, and Objections.May 10, 1995.

Commencement of the

180-day Period.

June 7, 1995.

Start of Evidentiary Hearing.June 13, 1995.

Id. at 4–5. Program Suppliers envision

that direct case hearings would be

completed by August 4, and recommend

that further hearings be suspended until

at least September 6, 1995, during

which time the parties would exchange

rebuttal cases and conduct discovery of

the rebuttal cases. Id. at 5. They further

suggest that rebuttal hearings be

completed by the end of September, and

that proposed and reply findings of fact
14974 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Notices

and conclusions of law be briefed in

October and early November so that

‘‘the CARP decision could be issued by

December 4, the last day of the 180-day

period.’’ Id.

2. Joint Sports Claimants proposal.

Joint Sports Claimants argue that

Program Suppliers proposed schedule

does not permit sufficient preparation

time for a consolidated 1990–92

proceeding, and strongly opposes any

schedule that would begin

precontroversy discovery prior to

August 18, 1995. They submit that a

consolidated 1990–92 proceeding will

be the most complicated in which the

parties have ever participated, and will

be before arbitrators ‘‘who, presumably,

will be selected for their expertise in

dispute resolution rather than

familiarity with cable copyright issues.’’

Joint Sports Claimants, comments at 3.

Adequate preparation time is, therefore,

needed ‘‘to locate witnesses, to

commission and to complete research

and to prepare testimony and exhibits.’’

Id. at 4. Joint Sports Claimants further

note that Program Suppliers’ concern

with the current backlog of proceedings

is adequately addressed by

consolidating the 1991 and 1992 cable

distribution with the 1990 proceeding.

Id. at 5.

Joint Sports Claimants propose an

August 18, 1995 start date for

precontroversy discovery and an

October 30, 1995 initiation of

arbitration. They are supported in their

commencement proposal by NAB,

Devotional Claimants, Canadian

Claimants and PBS. See NAB,

comments at 3–4; Devotional Claimants,

comments at 2; Canadian Claimants,

comments at 1; PBS, comments at 1.

Joint Sports Claimants recommend the

following dates for the precontroversy

discovery procedural deadline schedule

proposed in the comments of the

Copyright Owners:

Filing Deadline

Written Direct Cases ......... Aug. 18, 1995.

Requests for Underlying

Documents Related to

Written Direct Cases.

Aug. 28, 1995.

Responses to Requests for

Underlying Documents.

Sept. 1, 1995.

Completion of Document

Production.

Sept. 8, 1995.

Follow-Up Requests for

Underlying Documents.

Sept. 13, 1995.

Responses to Follow-Up

Requests.

Sept. 18, 1995.

Motions Related to Document Production.Sept. 20, 1995.

Production of Documents

in Response to FollowUp Requests.

Sept. 27, 1995.

Filing Deadline

All Other Motions, Petitions

and Objections.

Oct. 2, 1995.

Commencement of 180-

Day Period.

Oct. 30, 1995.

Id. at 2. Joint Sports Claimants do not

make any scheduling proposals for the

conduct of hearings before the CARP.

3. Music Claimants and NPR. Music

Claimants and NPR do not endorse the

scheduling proposals of either Program

Suppliers or Joint Sports Claimants.

Music Claimants request that

precontroversy discovery begin no

sooner than mid-May 1995 to allow

adequate preparation time for the

written direct cases. Music Claimants,

comments at 7. NPR requests a starting

date no earlier than June, with hearings

commencing no sooner than September.

NPR, comments at 4.

III. Consolidation of Proceedings,

Notices of Intent to Participate, and

Scheduling

Having fully considered the

comments of the interested parties, the

Copyright Office is consolidating the

1991 and 1992 cable royalty distribution

with the 1990 distribution proceeding,

and is requesting that interested parties,

who have not already done so, file a

Notice of Intent to Participate for the

1991 and 1992 distribution no later than

April 5, 1995. The precontroversy

discovery period will begin on August

18, 1995, and proceed according to the

schedule described below.

Consolidation of Proceedings

The commentators report the

existence of controversies for the 1990,

1991 and 1992 cable royalty funds and

request that the Copyright Office

consolidate distribution of these funds

into a single proceeding. Although the

1993 royalty funds are available for

distribution, the commentators do not

favor consolidation of the 1993 funds.

The Office believes that consolidation of

the 1990, 1991 and 1992 royalties into

a single distribution proceeding is

manageable and cost effective, and that

addition of the 1993 funds to the

proceeding may be unduly burdensome.

Consolidation of three funds itself

represents an unprecedented

distribution, and is a major step towards

eliminating the existing backlog of

copyright compulsory license

proceedings. We are, therefore,

consolidating the 1990–92 cable royalty

funds for distribution, and will conduct

a single proceeding necessary to the

resolution of all controversies related to

these funds.

By consolidating the 1990–92

distributions, the Office will handle

Phase I and Phase II controversies in

those funds sequentially. That is, we

will first conduct a proceeding and

convene a CARP to resolve all Phase I

controversies for the 1990–92 funds,

and, after that proceeding has been

completed, we will ascertain the

existence of any Phase II controversies

and conduct separate proceedings. The

issue of whether to convene separate

CARPs for each Phase II controversy, or

to allow a single CARP to resolve more

than one controversy, will be decided at

the time the Office determines the

existence of Phase II controversies, if

any.

Notices of Intent To Participate

The Copyright Office has received

Notices of Intent to Participate from the

parties wishing to participate in the

CARP proceedings for the 1990 cable

royalty distribution. The Office noted in

the Notice requesting comments on the

existence of cable distribution

controversies that if it consolidated the

1990 cable distribution with one or

more subsequent years it would then

issue a request for Notices of Intent to

Participate for those subsequent years.

59 FR 64714, 64715 (1994).

We are consolidating the 1991 and

1992 cable distribution with the 1990

proceeding. Therefore, those claimants

who wish to present evidence to the

CARPs for distribution of the 1991 and

1992 royalties must, if they have not

already done so, file a Notice of Intent

to Participate for those years. Notices

must be filed no later than April 5,

1995. Failure to file a timely Notice of

Intent to Participate may subject the

claim to dismissal. The filing of a Notice

of Intent to Participate is thus critical to

a claimant being able to present an

effective claim.

Scheduling of the 1990–92 Cable

Distribution Proceeding

The Copyright Office is announcing

the scheduling of the precontroversy

discovery period, and other procedural

matters, for the 1990–92 cable

distribution proceeding. In addition, the

Office is announcing the date on which

the existence of controversies to the

1990–92 cable funds will be declared

and arbitration initiated, thereby

commencing the 180-day arbitration

period. Once a CARP has been

convened, the scheduling of the

arbitration period is within the

discretion of the CARP and will be

announced at that time.

A. Commencement of the Proceeding.

A royalty distribution proceeding under

part 251 of 37 CFR is divided into two
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Notices 14975

essential phases. The first is the 45-day

precontroversy discovery phase, during

which the parties exchange their written

direct cases, exchange their

documentation and evidence in support

of their written direct cases, and engage

in the pre-CARP motions practice

described in § 251.45. The other phase

is the proceedings before a CARP itself,

including the presentation of evidence

through live hearings and the

submission of proposed findings by all

of the parties. Both of these phases to a

distribution proceeding require

significant amounts of work, not just for

the parties, but for the Librarian, the

Copyright Office and the arbitrators as

well. Selection of a date to commence

a distribution proceeding is, therefore,

not dependent on the schedules of one

or more of the participating parties, but

must be weighed against the interests of

all involved.

Because there are two phases to a

distribution proceeding—

precontroversy discovery and

arbitration—there are two time periods

to be scheduled. The regulations do not

provide how much time must separate

precontroversy discovery from initiation

of arbitration. Program Suppliers and

Joint Sports Claimants, in their

proposed schedules, both recommended

a period of 28 days from the end of

precontroversy discovery to the

beginning of the 180-day arbitration

period. See Program Suppliers,

comments at 5; Joint Sports Claimants,

comments at 2. The Copyright Office

agrees that there is no reason to

schedule an inordinate amount of time

between the two; however, there must

be adequate time for the Librarian to

rule upon all motions filed within the

45-day precontroversy period. Since

motions could, and undoubtedly will be

filed on the last day of the period, a

sufficient amount of time must be

allowed to receive oppositions (7 days

from filing of motion) and replies (5

business days from date of service of

opposition), and to consider those

motions and issue decisions and orders.

Given these considerations, the

uniqueness of cable distribution for the

Office, and the complexities of the

proceedings involving three years worth

of royalties, we believe that a period of

45 days between the end of the

precontroversy discovery period and the

declaration of controversies/initiation of

arbitration is necessary for the Office to

adequately complete its task.

The issue remains as to what date

precontroversy discovery should begin

and, subsequently, initiation of

arbitration. The commentators are

divided. Program Suppliers believe that

precontroversy discovery should begin

at the end of March of this year to speed

the reduction of royalty funds currently

ripe for distribution, and to allow the

scheduling of more than one CARP next

year to handle distributions and/or rate

adjustments. The remainder of the

commentators argue that a March

starting time is premature because it

does not allow sufficient preparation

time for what will be the first CARP

proceeding. Music Claimants and NPR

favor commencement in mid-May and

early June, respectively. Joint Sports

Claimants state that they are opposed to

any schedule which begins the 1990–92

cable distribution proceeding prior to

August 18, 1995. They are supported by

Devotional Claimants, Canadian

Claimants, PBS, and NAB, whose

support for consolidation of the 1991

and 1992 funds with the 1990

distribution is contingent upon

acceptance of Joint Sports Claimants’

proposed schedule.

Because the commentators are so

widely divided, the obvious

compromise solution would be to split

the difference in proposed starting

dates. This would result in starting

precontroversy discovery sometime in

early June, which is NPR’s proposal.

However, in an open meeting of all

parties filing Notices of Intent to

Participate in the 1990 distribution held

at the Copyright Office, the parties

expressed strong opposition to any

compromise position, and urged the

Office to select one of the proposed

schedules. Meeting, held February 6,

1995. We are complying with the parties

wishes and are selecting a starting date

of August 18, 1995 for the 45-day

precontroversy period. The period will

conclude on October 2, followed by a

45-day period in which the Librarian

and the Copyright Office will complete

all precontroversy discovery matters

and issue all rulings. Controversies will

be declared, and the 180-day arbitration

period initiated, on November 17, 1995.

There are several reasons for selecting

these dates. First, this is the first cable

distribution proceeding under the new

CARP regime and the parties should be

afforded adequate time for preparation

of their cases and evidence. A majority

of the parties stated that they need until

August 18 to allow them sufficient time

to prepare. Second, a single distribution

proceeding for three royalty years is

unprecedented and represents a highly

complex and involved proceeding. The

difficulty of the proceeding will be

further heightened by the fact that it is

the first test of the new CARP

regulations governing cable distribution.

We, therefore believe that the parties

should have optimal preparation time to

increase the likelihood of a smooth and

efficient proceeding. Third, the Office

wishes to avoid any scheduling conflicts

with distribution proceedings of the

1992–94 DART royalty funds. We are

currently seeking comment as to the

existence of controversies for these

funds, which are eligible for distribution

after March 30, 1995. While it is

anticipated that distribution settlements

will be reached for these funds,

convocation of a CARP or CARPs may

nevertheless be necessary. It would be

extremely difficult for the Office to

conduct precontroversy discovery for

cable as well as DART at the same time.

An August 18 commencement date for

cable distribution allows the Office to

schedule a prior, nonoverlapping

precontroversy discovery period for

1992–94 DART distribution.

B. Precontroversy Discovery Schedule

and Procedures. Any party filing a

Notice of Intent to Participate in the

1990–92 cable distribution for one or

more of the royalty funds is entitled to

participate in the precontroversy

discovery period. Each party may

request of an opposing party

nonprivileged underlying documents

related to the opposing party’s written

direct case. The precontroversy

discovery period is limited to discovery

of documents related to written direct

cases and any amendments made during

the period.

Copyright Owners requested that the

Copyright Office adopt a precontroversy

discovery schedule that prescribes filing

deadlines for discovery requests,

responses and related motions. Because

Copyright Owners believe their proposal

is critical to an efficient and successful

precontroversy discovery period, we

will adopt it for purposes of this

distribution proceeding.

The following is the precontroversy

discovery procedural schedule with

corresponding deadlines:

Action Deadline

Filing of Written Direct

Cases.

Aug. 18, 1995.

Requests for Underlying

Documents Related to

Written Direct Cases.

Aug. 28, 1995.

Responses to Requests for

Underlying Documents.

Sept. 1, 1995.

Completion of Document

Production.

Sept. 8, 1995.

Follow-Up Requests for

Underlying Documents.

Sept. 13, 1995.

Responses to Follow-Up

Requests.

Sept. 18, 1995.

Motions Related to Document Production.Sept. 22, 1995.
14976 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Notices

1Motions related to the September 27 Production

of Documents in Response to Follow-Up Requests

may be filed up to the October 2 deadline for All

Other Motions, Petitions and Objections.

Action Deadline

Production of Documents

in Response to FollowUp Requests.

Sept. 27, 1995.

All Other Motions, Petitions

and Objections.

Oct. 2, 1995.

The § 251.45(b) precontroversy

discovery period begins on August 18,

1995 with the filing of written direct

cases. Each party to the proceeding must

serve by hand on that day a complete

copy of its written direct case on each

of the other parties to the proceeding, as

well as file a complete copy with the

Copyright Office.

After the filing of the written direct

cases, document production will

proceed according to the abovedescribed schedule. Thus, the parties

have until August 28 to request from

one another Underlying Documents

Related to Written Direct Cases, until

September 1 to respond to Requests for

Underlying Documents, and so forth.

The dates listed in the schedule mark

the deadlines by which the

corresponding requests, responses and

motions must be served and filed. In the

case of document requests and all

precontroversy discovery motions,

failure to make a request or file a motion

by the prescribed deadline precludes a

party from making the request or filing

the motion at a later date. For example,

if a party fails to file a motion to compel

production of Underlying Documents

Related to Written Direct Cases by

September 22, 1995, that party is

precluded from filing that motion at a

later date with either the Copyright

Office or the CARP. In the case of

document production responses, it is

expected that parties receiving requests

will respond by the appropriate

deadline. Motions to comply with the

request may be filed beginning on the

first day after the response deadline and

up to the September 22 deadline for

motions related to document

production.1

Due to the time limitations between

the procedural steps of the

precontroversy discovery schedule, we

are requiring that all discovery requests

and responses to such requests be

served by hand or fax on the party to

whom such request or response is

directed. A complete copy of the

response or request shall also be served

on the Copyright Office. Service via the

mail, addressed to the official address in

§ 251.1, is permissible.

Filing and service of all

precontroversy motions, petitions,

objections, oppositions and replies shall

be as follows. In order to be considered

properly filed with the Librarian and/or

Copyright Office, all motions, petitions,

objections, oppositions and replies must

be brought to: Office of the Register of

Copyrights, Room 403, James Madison

Memorial Building, 101 Independence

Avenue, S.E., Washington D.C. 20540,

between the hours of 9 a.m. and 5 p.m.

Form and content of such motions,

petitions, objections, oppositions and

replies must be in compliance with

§§ 251.44(b)–(e). As provided in

§ 251.45(b), oppositions to motions,

objections and petitions must be filed

with the Copyright Office no later than

seven business days from date of filing

of such motions, objections and

petitions. Replies are due five business

days from the date of filing of

oppositions. Service of all motions,

petitions, objections, oppositions and

replies must be made on counsel or the

parties by means no slower than

overnight express mail on the same day

the pleading is filed.

Dated: March 13, 1995.

Marybeth Peters,

Register of Copyrights.

James H. Billington,

Librarian of Congress.

[FR Doc. 95–6831 Filed 3–20–95; 8:45 am]

BILLING CODE 1410–33–P

NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION

Records Schedules; Availability and

Request for Comments

AGENCY: National Archives and Records

Administration, Office of Records

Administration.

ACTION: Notice of availability of

proposed records schedules; request for

comments.

SUMMARY: The National Archives and

Records Administration (NARA)

publishes notice at least once monthly

of certain Federal agency requests for

records disposition authority (records

schedules). Records schedules identify

records of sufficient value to warrant

preservation in the National Archives of

the United States. Schedules also

authorize agencies after a specified

period to dispose of records lacking

administrative, legal, research, or other

value. Notice is published for records

schedules that (1) Propose the

destruction of records not previously

authorized for disposal, or (2) reduce

the retention period for records already

authorized for disposal. NARA invites

public comments on such schedules, as

required by 44 USC 3303a(a).

DATES: Request for copies must be

received in writing on or before May 5,

1995. Once the appraisal of the records

is completed, NARA will send a copy of

the schedule. The requester will be

given 30 days to submit comments.

ADDRESSES: Address requests for single

copies of schedules identified in this

notice to the Records Appraisal and

Disposition Division (NIR), National

Archives and Records Administration,

College Park, MD 20740. Requesters

must cite the control number assigned

to each schedule when requesting a

copy. The control number appears in

the parentheses immediately after the

name of the requesting agency.

FOR FURTHER INFORMATION CONTACT:

Each year U.S. Government agencies

create billions of records on paper, film,

magnetic tape, and other media. In order

to control this accumulation, agency

records managers prepare records

schedules specifying when the agency

no longer needs the records and what

happens to the records after this period.

Some schedules are comprehensive and

cover all the records of an agency or one

of its major subdivisions. These

comprehensive schedules provide for

the eventual transfer to the National

Archives of historically valuable records

and authorize the disposal of all other

records. Most schedules, however, cover

records of only one office or program or

a few series of records, and many are

updates of previously approved

schedules. Such schedules also may

include records that are designated for

permanent retention.

Destruction of records requires the

approval of the Archivist of the United

States. This approval is granted after a

thorough study of the records that takes

into account their administrative use by

the agency of origin, the rights of the

Government and of private persons

directly affected by the Government’s

activities, and historical or other value.

This public notice identifies the

Federal agencies and their subdivisions

requesting disposition authority,

includes the control number assigned to

each schedule, and briefly describes the

records proposed for disposal. The

records schedule contains additional

information about the records and their

disposition. Further information about

the disposition process will be

furnished to each requester.

Schedules Pending:

1. Department of the Army (N1–AU–

95–2). Polygraph technical files.