PART 355—ADMINISTRATIVE ASSESSMENT PROCEEDINGS Authority: 17 U.S.C. 801; 17 U.S.C. 115. Source: 84 FR 32308, July 8, 2019, unless otherwise noted. § 355.1 Proceedings in general. (a) Scope. (b) Rulings. (c) Role of Chief Judge. (1) Administer an oath or affirmation to any witness; and (2) Rule on objections and motions. § 355.2 Commencement of proceedings. (a) Commencement of initial Administrative Assessment proceeding. Federal Register (b) Adjustments of the Administrative Assessment. Federal Register Federal Register (c) Required participants. (d) Other eligible participants. (e) Petitions to participate. (1) A filing fee of $150; (2) The full name, address, telephone number, and email address of the petitioner; (3) The full name, address, telephone number, and email address of the person filing the petition and of the petitioner's representative, if either differs from the filer; and (4) Factual information sufficient to establish that the petitioner has a significant interest in the determination of the Administrative Assessment. (f) Notice of identity of petitioners. (g) Proceeding Schedule. (i) A first negotiation period of 60 days, beginning on the date of commencement of the proceeding; (ii) Filing of the opening submission by the Mechanical Licensing Collective described in § 355.3(b) or (c), with concurrent production of required documents and disclosures; (iii) A period of 60 days, beginning on the day after the date the Mechanical Licensing Collective files its opening submission, for the Digital Licensee Coordinator and any other participant in the proceeding, other than the Mechanical Licensing Collective, to serve discovery requests and complete discovery pursuant to § 355.3(d); (iv) Filing of responsive submissions by the Digital Licensee Coordinator and any other participant in the proceeding, with concurrent production of required documents and disclosures; (v) A period of 60 days, beginning on the day after the due date for filing responsive submissions, for the Mechanical Licensing Collective to serve discovery requests and complete discovery of the Digital Licensee Coordinator and any other participant in the proceeding pursuant to § 355.3(g); (vi) A second negotiation period of 14 days, commencing on the day after the end of the Mechanical Licensing Collective's discovery period; (vii) Filing of a reply submission, if any, by the Mechanical Licensing Collective; (viii) Filing of a joint pre-hearing submission by the Mechanical Licensing Collective, the Digital Licensee Coordinator, and any other participant in the hearing; and (ix) A hearing on the record. (2) The Copyright Royalty Judges may, for good cause shown and upon reasonable notice to all participants, modify the schedule, except no participant in the proceeding may rely on a schedule modification as a basis for delaying the scheduled hearing date. The Copyright Royalty Judges may alter the hearing schedule only upon a showing of extraordinary circumstances. No alteration of the schedule shall change the due date of the determination. § 355.3 Submissions and discovery. (a) Protective orders. (b) Submission by the Mechanical Licensing Collective in the initial Administrative Assessment proceeding. (2) Concurrently with the filing of the opening submission, the Mechanical Licensing Collective shall produce electronically and deliver by email to the other participants in the proceeding documents that identify and demonstrate: (i) Costs, collections, and contributions as required by 17 U.S.C. 115(d)(7) through the License Availability Date and for the three calendar years following thereafter; (ii) The reasonableness of the Collective Total Costs; (iii) The Collective's processes for requesting proposals, inviting bids, ranking and selecting the proposals and bids of potential contracting and sub-contracting parties competitively (or by another method), including processes for ensuring the absence of overlapping ownership or other overlapping economic interests between the Collective or its members and any selected contracting or sub-contracting party; and (iv) The reasons why the proposal fulfills the requirements in 17 U.S.C. 115(d)(7). (3) Concurrently with the filing of the opening submission, the Mechanical Licensing Collective shall provide electronically and deliver by email to the other participants in the proceeding written disclosures that: (i) List the individuals with material knowledge of, and availability to provide testimony concerning, the proposed initial Administrative Assessment; and (ii) For each listed individual, describe the subject(s) of his or her knowledge. (c) Submission by the Mechanical Licensing Collective in proceedings to adjust the Administrative Assessment. (2) Concurrently with the filing of the opening submission, the Mechanical Licensing Collective shall produce electronically and deliver by email to the other participants in the proceeding documents that identify and demonstrate: (i) Costs, collections, and contributions as required by 17 U.S.C. 115(d)(7) for the preceding three calendar years and the three calendar years following thereafter; (ii) For the preceding three calendar years, the amount of actual Collective Total Costs that was not sufficiently funded by the prior Administrative Assessment, or the amount of any surplus from the prior Administrative Assessment after funding actual Collective Total Costs; (iii) Actual collections from Digital Music Providers and Significant Nonblanket Licensees for the preceding three calendar years and anticipated collections for the three calendar years following thereafter; (iv) The reasonableness of the Collective Total Costs; and (v) The Collective's processes for requesting proposals, inviting bids, ranking and selecting the proposals and bids of potential contracting and sub-contracting parties competitively (or by another method), including processes for ensuring the absence of overlapping ownership or other overlapping economic interests between the Collective or its members and any selected contracting or sub-contracting party. (3) Concurrently with the filing of the opening submission, the Mechanical Licensing Collective shall provide electronically and deliver by email to the other participants in the proceeding written disclosures that: (i) List the individuals with material knowledge of, and availability to provide testimony concerning, the proposed adjusted Administrative Assessment; and (ii) For each listed individual, describe the subject(s) of his or her knowledge. (d) First discovery period. (2) The Digital Licensee Coordinator and any other participant in the proceeding, other than the Mechanical Licensing Collective, may notice and take depositions as provided in paragraph (e) of this section. (e) Depositions. (f) Responsive submissions by the Digital Licensee Coordinator and other participants. (1) Responsive submissions of the Digital Licensee Coordinator, and any other participant in the proceeding, shall consist of a written statement, including any written testimony and accompanying exhibits, stating the extent to which the filing participant agrees with the Administrative Assessment proposed by the Mechanical Licensing Collective. If the filing participant disagrees with all or part of the Administrative Assessment proposed by the Mechanical Licensing Collective, then the written statement, including any written testimony and accompanying exhibits, shall include analysis necessary to demonstrate why the Administrative Assessment proposed by the Mechanical Licensing Collective does not fulfill the requirements set forth in 17 U.S.C. 115(d)(7). (2) Concurrently with the filing of a responsive submission indicating disagreement with the Administrative Assessment proposed by the Mechanical Licensing Collective, the filing participant shall produce electronically and deliver by email to the participants in and parties to the proceeding documents that demonstrate why the Administrative Assessment proposed by the Mechanical Licensing Collective does not fulfill the requirements set forth in 17 U.S.C. 115(d)(7). (3) Concurrently with the filing of responsive submission(s), the filing participant shall provide electronically and deliver by email to the other participants in the proceeding written disclosures that: (i) List the individuals with material knowledge of, and availability to provide testimony concerning, the reasons why the Administrative Assessment proposed by the Mechanical Licensing Collective does not fulfill the requirements set forth in 17 U.S.C. 115(d)(7); and (ii) For each listed individual, describe the subject(s) of his or her knowledge. (g) Second discovery period. (2) The Mechanical Licensing Collective may notice and take depositions as provided in paragraph (e) of this section. (h) Discovery disputes. (2) In the event that two or more participants are unable to resolve a discovery dispute after good-faith consultation, a participant requesting discovery may file a motion and brief of no more than 1,500 words with the Copyright Royalty Judges. The motion must include a certification that the participant filing the motion attempted to resolve the dispute at issue in good faith, but was unable to do so. For a dispute involving the provision of documents or deposition testimony, the brief shall detail the reasons why the documents or deposition testimony are Discoverable. (3) The responding participant may file a responsive brief of no more than 1,500 words within two business days of the submission of the initial brief. (4) Absent unusual circumstances, the Copyright Royalty Judges will rule on the dispute within three business days of the filing of the responsive brief. Upon reasonable notice to the participants, the Chief Copyright Royalty Judge, or an individual Copyright Royalty Judge designated by the Chief Copyright Royalty Judge, may consider and rule on any discovery dispute in a telephone conference with the relevant participants. (i) Reply submissions by the Mechanical Licensing Collective. (j) Joint pre-hearing submission. (1) Specific areas of agreement between the parties; and (2) A concise statement of issues remaining in dispute with respect to the determination of the Administrative Assessment. § 355.4 Negotiation periods. (a) First negotiation period. (b) Second negotiation period. (c) Written notification regarding result of negotiations. (1) Whether they have reached an agreement, in whole or in part, with respect to issues in dispute regarding the Administrative Assessment, (2) The details of any agreement, (3) A description of any issues as to which they have not reached agreement, and (4) A list of other participants that intend to join in any proposed settlement resulting from the agreement of the Mechanical Licensing Collective and the Digital Licensee Coordinator. Participants, other than the settling parties, may, within five days following the filing of a proposed settlement, file in eCRB comments (not to exceed ten pages and not to exceed 2500 words exclusive of cover pages, tables of contents, tables of authorities, signature blocks, exhibits, and proof of delivery) about the proposed settlement. The settling parties may, within five days following the comment deadline, file in eCRB a joint response to any comments. § 355.5 Hearing procedures. (a) En banc panel. en banc (b) Attendance and participation. sua sponte (c) Admission of written submissions, deposition transcripts, and other documents. (d) Argument and examination of witnesses. sua sponte (e) Objections. (f) Transcript and record. https://app.crb.gov § 355.6 Determinations. (a) How made. (b) Timing. Federal Register (c) Effectiveness. (2) Any adjusted Administrative Assessment determined in a proceeding under § 355.2(b) shall take effect January 1 of the year following its publication in the Federal Register (d) Adoption of voluntary agreements. (e) Continuing authority to amend. Federal Register § 355.7 Definitions. Capitalized terms in this part that are defined terms in 17 U.S.C. 115(e) shall have the same meaning as set forth in 17 U.S.C. 115(e). In addition, for purposes of this part, the following definitions apply: Digital Licensee Coordinator Discoverable (1) Nonprivileged; (2) Relevant to consideration of whether a proposal or response thereto fulfills the requirements in 17 U.S.C. 115(d)(7); and (3) Proportional to the needs of the proceeding, considering the importance of the issues at stake in the proceeding, the requested participant's relative access to responsive information, the participants' resources, the importance of the document or deposition request in resolving or clarifying the issues presented in the proceeding, and whether the burden or expense of producing the requested document or deposition testimony outweighs its likely benefit. Documents or deposition testimony need not be admissible in evidence to be Discoverable.