PART 351—PROCEEDINGS Authority: 17 U.S.C. 803. Source: 70 FR 30905, May 31, 2005, unless otherwise noted. § 351.1 Initiation of proceedings. (a) Notice of commencement; solicitation of petitions to participate. Federal Register (b) Petitions to participate Royalty rate proceedings Single petition. (A) The petitioner's full name, address, telephone number, facsimile number (if any), and e-mail address (if any); and (B) A description of the petitioner's significant interest in the subject matter of the proceeding. (ii) Joint petition. (A) The full name, address, telephone number, facsimile number (if any), and e-mail address (if any) of the person filing the petition; (B) A list identifying all participants to the joint petition; (C) A description of the participants' significant interest in the subject matter of the proceeding; and (D) If the joint petition is filed by counsel or a representative of one or more of the participants that are named in the joint petition, a statement from such counsel or representative certifying that, as of the date of submission of the joint petition, such counsel or representative has the authority and consent of the participants to represent them in the royalty rate proceeding. (2) Distribution proceedings Single petition. (A) The petitioner's full name, address, telephone number, facsimile number (if any), and e-mail address (if any); (B) In a cable or satellite royalty distribution proceeding, identification of whether the petition covers a Phase I proceeding (the initial part of a distribution proceeding where royalties are divided among the categories or groups of copyright owners), a Phase II proceeding (where the money allotted to each category is subdivided among the various copyright owners within that category), or both; and (C) A description of the petitioner's significant interest in the subject matter of the proceeding. (ii) Joint petition. (A) The full name, address, telephone number, facsimile number (if any), and e-mail address (if any) of the person filing the petition; (B) A list identifying all participants to the joint petition; (C) In a cable or satellite royalty distribution proceeding, identification of whether the petition covers a Phase I proceeding (the initial part of a distribution proceeding where royalties are divided among the categories or groups of copyright owners), a Phase II proceeding (where the money allotted to each category is subdivided among the various copyright owners within that category), or both; (D) A description of the participants' significant interest in the subject matter of the proceeding; and (E) If the joint petition is filed by counsel or a representative of one or more of the participants that are named in the joint petition, a statement from such counsel or representative certifying that, as of the date of submission of the joint petition, such counsel or representative has the authority and consent of the participants to represent them in the royalty distribution proceeding. (3) Filing deadline. (4) Filing fee. (c) Acceptance and rejection of petitions to participate. (d) Late petitions to participate. [70 FR 30905, May 31, 2005, as amended at 71 FR 53327, Sept. 11, 2006; 81 FR 8650, Feb. 22, 2016; 82 FR 18574, Apr. 20, 2017] § 351.2 Voluntary negotiation period; settlement. (a) Commencement; duration. (b) Settlement Distribution proceedings. (2) Royalty rate proceedings. Federal Register [70 FR 30905, May 31, 2005, as amended at 71 FR 53328, Sept. 11, 2006] § 351.3 Controversy and further proceedings. (a) Declaration of controversy. et seq., (b) Small claims in distribution proceedings General. (2) Bad faith inflation of claim. (c) Paper proceedings Standard. sua sponte. (2) Procedure. [70 FR 30905, May 31, 2005, as amended at 71 FR 53328, Sept. 11, 2006] § 351.4 Written direct statements. (a) Required filing; deadline. (b) Required content Testimony. (2) Designated past records and testimony. i.e. (3) Claim. (c) Amended written direct statements. [70 FR 30905, May 31, 2005, as amended at 71 FR 53328, Sept. 11, 2006; 71 FR 59010, Oct. 6, 2006] § 351.5 Discovery in royalty rate proceedings. (a) Schedule. (b) Document production, depositions and interrogatories Document production. (2) Depositions and interrogatories. (c) Motions to request other relevant information and materials. (2) In determining whether such discovery motions will be granted, the Copyright Royalty Judges may consider— (i) Whether the burden or expense of producing the requested information or materials outweighs the likely benefit, taking into account the needs and resources of the participants, the importance of the issues at stake, and the probative value of the requested information or materials in resolving such issues; (ii) Whether the requested information or materials would be unreasonably cumulative or duplicative, or are obtainable from another source that is more convenient, less burdensome, or less expensive; and (iii) Whether the participant seeking the discovery had an ample opportunity by discovery in the proceeding or by other means to obtain the information sought. [71 FR 53328, Sept. 11, 2006] § 351.6 Discovery in distribution proceedings. In distribution proceedings, the Copyright Royalty Judges shall designate a 45-day period beginning with the filing of written direct statements within which parties may request of an opposing party nonprivileged underlying documents related to the written exhibits and testimony. However, all parties shall be given a reasonable opportunity to conduct discovery on amended statements. [71 FR 53328, Sept. 11, 2006] § 351.7 Settlement conference. A post-discovery settlement conference will be held among the participants, within 21 days after the close of discovery, outside of the presence of the Copyright Royalty Judges. Immediately after this conference the participants shall file with the Copyright Royalty Judges a written Joint Settlement Conference Report indicating the extent to which the participants have reached a settlement. [70 FR 30905, May 31, 2005, as amended at 71 FR 53329, Sept. 11, 2006] § 351.8 Pre-hearing conference. In the absence of a complete settlement in a proceeding not subject to the abbreviated procedures set forth in §§ 351.3(b) and (c), a hearing will be scheduled expeditiously so as to allow the Copyright Royalty Judges to conduct hearings and issue its final determination in the proceeding within the time allowed by the Copyright Act. Prior to the hearing, the Copyright Royalty Judges may conduct a prehearing conference to assist in setting the order of presentation of evidence and the appearance of witnesses at the hearing and to provide for the submission of pre-hearing written legal arguments. [70 FR 30905, May 31, 2005, as amended at 71 FR 53329, Sept. 11, 2006] § 351.9 Conduct of hearings. (a)(1) By panels. en banc (2) Location. (b) Role of Chief Judge. (1) Administering oaths and affirmations to all witnesses; (2) Announcing the Copyright Royalty Judges' ruling on objections and motions and all rulings with respect to introducing or excluding documentary or other evidence. In all cases, with the exception of a hearing pursuant to 17 U.S.C. 803(a)(2), it takes a majority vote to grant a motion or sustain an objection. A tie vote will result in the denial of a motion or the overruling of the objection; (c) Opening statements. (d) Notice of witnesses and prior exchange of exhibits. (e) Subpoenas. (f) Witnesses sequestered. [70 FR 30905, May 31, 2005, as amended at 71 FR 53329, Sept. 11, 2006; 86 FR 31172, June 11, 2021] § 351.10 Evidence. (a) Admissibility. (b) Examination of witnesses. (c) Exhibits Submission. (2) Separation of irrelevant portions. (3) Summary exhibits. (d) Copies. (e) Introduction of studies and analyses. (f) Objections. (g) New exhibits for use in cross-examination. [70 FR 30905, May 31, 2005, as amended at 71 FR 53329, Sept. 11, 2006; 71 FR 59010, Oct. 6, 2006] § 351.11 Rebuttal proceedings. Written rebuttal statements shall be filed at a time designated by the Copyright Royalty Judges upon conclusion of the hearing of the direct case, in the same form and manner as the written direct statement, except that the claim or the requested rate shall not have to be included if it has not changed from the written direct statement. Further proceedings at the rebuttal stage shall follow the schedule ordered by the Copyright Royalty Judges. [70 FR 30905, May 31, 2005, as amended at 71 FR 53329, Sept. 11, 2006] § 351.12 Closing the record. To close the record of a proceeding, the presiding Judge shall make an announcement that the taking of evidence has concluded. [71 FR 53330, Sept. 11, 2006] § 351.13 Transcript and record. (a) An official reporter for the recording and transcribing of hearings shall be designated by the Copyright Royalty Judges. Anyone wishing to inspect the transcript of a hearing may do so at the offices of the Copyright Royalty Board. (b) The transcript of testimony and written statements, except those portions to which an objection has been sustained, and all exhibits, documents and other items admitted in the course of a proceeding shall constitute the official written record. The written record, along with the Copyright Royalty Judges' final determination, shall be available at the Copyright Royalty Board's offices for public inspection and copying. [71 FR 53330, Sept. 11, 2006] § 351.14 Proposed findings of fact and conclusions of law. (a) Any party to the proceeding may file proposed findings of fact and conclusions, briefs or memoranda of law, or may be directed by the Copyright Royalty Judges to do so. Such filings, and any replies to them, shall take place after the record has been closed. (b) Failure to file when directed to do so shall be considered a waiver of the right to participate further in the proceeding unless good cause for the failure is shown. A party waives any objection to a provision in the determination unless the provision conflicts with a proposed finding of fact or conclusion of law filed by the party. (c) Proposed findings of fact shall be numbered by paragraph and include all basic evidentiary facts developed on the record used to support proposed conclusions, and shall contain appropriate citations to the record for each evidentiary fact. Proposed conclusions shall be stated and numbered by paragraph separately. Failure to comply with this paragraph (c) may result in the offending paragraph being stricken. [71 FR 53330, Sept. 11, 2006] § 351.15 Remand. In the event of a remand from the United States Court of Appeals for the District of Columbia Circuit of a final determination of the Copyright Royalty Judges, the parties to the proceeding shall within 45 days from the issuance of the mandate from the Court of Appeals file with the Judges written proposals for the conduct and schedule of the resolution of the remand. [74 FR 38533, Aug. 4, 2009]