04-12142. Filing of Claims for Cable and Satellite Royalties

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Waiver of regulation.

SUMMARY:

Due to continuing delays in the receipt of mail, the Copyright Office of the Library of Congress is announcing alternative methods for the filing of claims to the cable and satellite royalty funds for the year 2003. In order to ensure that claims are received timely, claimants are encouraged to file their cable and satellite claims online, utilizing the special procedures described in this document.

EFFECTIVE DATE:

May 28, 2004.

ADDRESSES:

Online submissions should be made to the following: for cable claims http://www.copyright.gov/​carp/​cable/​claims.html; for satellite claims http://www.copyright.gov/​carp/​satellite/​claims.html. See SUPPLEMENTARY INFORMATION for information about online electronic filing through the Copyright Office website. If hand delivered by a private party, an original and two copies of each claim should be brought to: Room LM-401 of the James Madison Memorial Building and addressed as follows: Office of the General Counsel/CARP, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000 between 8:30 am and 5 pm. If delivered by a commercial courier, an original and two copies of each claim must be delivered to the Congressional Courier Acceptance Site located at 2nd and D Streets, NE., between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel/CARP, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC. If sent by mail, an original and two copies of each claim should be addressed to: Copyright Arbitration Royalty Panel (CARP), PO Box 70977, Southwest Station, Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT:

Tanya Sandros, Senior Attorney, or Gina Giuffreda, Attorney Advisor, Copyright Arbitration Royalty Panel (CARP), PO Box 70977, Southwest Station, Washington, DC 20024. Telephone: [phone]. Telefax: [phone].

SUPPLEMENTARY INFORMATION:

Background

Section 111 of the Copyright Act, 17 U.S.C., places a statutory obligation on cable systems who retransmit over-the-air broadcast signals to submit royalty fees to the Copyright Office for such retransmissions. Distribution of the royalty fees is made to copyright owners whose works were embodied in those retransmissions made by cable systems. 17 U.S.C. 111(d)(3). In order to claim eligibility for a distribution of cable royalty fees, a claimant must submit to the Copyright Office a claim during the month of July following the calendar year in which the retransmission took place. 17 U.S.C. 111(d)(4)(A). The regulations governing the content and submission of cable claims are found at 37 CFR part 252.

Likewise, copyright owners whose works were embodied in over-the-air television broadcast signals retransmitted by satellite carriers may seek a distribution of the satellite royalty fees collected by the Copyright Office. 17 U.S.C. 119. Eligibility for satellite royalty fees is predicated upon the submission of a claim in the month of July following the calendar year in which the retransmission took place. 17 U.S.C. 119(b)(4)(A). The regulations governing the content and submission of satellite claims are found at 37 CFR part 257.

As a general rule, a cable or satellite claim is considered timely filed with the Copyright Office if it is hand delivered to the correct office within the Copyright Office during the month of July, or if it is mailed to the correct address and it bears a July U.S. Postal Service postmark. See 37 CFR 252.4 (cable); 37 CFR 257.4 (satellite). However, because July 31 falls on a Saturday this year, the deadline is Monday, August 2.^[1] The regulations do not provide for the filing of cable and satellite claims by alternative methods such as electronic submission.

Unfortunately, the Office has experienced disruptions of postal service since October 17, 2001. See 66 FR 62942 (December 4, 2001) and 66 FR 63267 (December 5, 2001). While mail delivery to the Office has resumed, the Office continues to experience delays in receipt of its mail, due in part to the diversion of mail to an off-site location for screening. Consequently, during the past two years, the Office has offered and recommended alternative methods for the filing of cable and satellite claims to the 2001 and 2002 royalty funds. See 67 FR 21176 (April 30, 2002) and 68 FR 32381 (May 30, 2003). Because mail will continue to be diverted to an off-site location for screening, the Office anticipates issuing by the end of 2004 new regulations providing for a permanent system of electronic filing of claims. However, since such regulations are not in place at this time, the Office is offering and recommending the same alternative filing methods this year for claims to the 2003 royalty funds.

Moreover, claimants are strongly advised to send their claims early in the month of July. Persons submitting claims at the end of the month risk missing the deadline for submission of claims. Online forms are available and may be submitted via the Office's Web site. Note, however, that the alternative methods set forth in this Notice apply only to the filing of cable and satellite claims for the 2003 royalties which are due on or before August 2, 2004, and in no way apply to other filings with the Office. Please note that as a result of July 31 falling on a Saturday this year, cable and satellite claims are due on Monday, August 2, 2004, in accordance with 37 CFR 252.4(b) and 257.4(b).

Claimants are further advised that this Notice covers only the means by which claims may be accepted as timely filed; all other filing requirements, such as the content of claims, remain unchanged, except as noted herein. See 37 CFR parts 252 (cable) and 257 (satellite).

Acceptable Methods of Filing Cable and Satellite Claims for the Year 2003

Claims to the 2003 cable and satellite royalty funds may be submitted as follows:

a. Online Submission

In order to best ensure the timely receipt by the Copyright Office of cable and satellite claims, the Office strongly encourages claimants to file their claims online by or before 11:59 p.m. on August 2, 2004, via the Copyright Office Web site. The Office has devised online electronic forms for filing both single and joint cable and satellite claims. Claimants will be able to access and complete the forms via the Copyright Office Web site and may submit the forms electronically as provided in the instructions accompanying the forms. Cable forms will be posted on the Office Web site at “http://www.copyright.gov/​carp/​cable/​claims.html”. Satellite forms will be posted at “http://www. copyright.gov/carp/satellite/claims.html”. Claimants filing a joint claim may list each of their joint claimants directly on the Office's online joint claim form or may submit the list of joint claimants as a file attachment to the submission page. Lists of joint claimants sent as an attachment must be in a single file in either Adobe Portable Document (“PDF”) format, in Microsoft Word Version 2000 or earlier, in WordPerfect 9 or earlier, or (in the case of text-only files) in ASCII text. There will be a browse button on the form that will allow claimants to attach the file containing the list of joint claimants and then to submit the completed form to the Office. The attachment must contain only the names and addresses of the joint claimants. See 37 CFR 252.3(b)(1) and 257.3(b)(1).

The cable and satellite forms will be available for use from July 1, 2004, through August 2, 2004. It is critically important to follow the instructions in completing the forms before submitting them to the Office. Claims submitted online using forms or formats other than those specified in this Notice WILL NOT BE ACCEPTED by the Office. Claims filed online must be received by the Office no later than 11:59 p.m. E.D.T. on August 2, 2004. Specifically, the completed electronic forms must be received by the Office's server by that time. Any claim received after that time will be considered as untimely filed. Claimants who file electronically will receive an electronic mail message in response stating that the Office has received their submission. Therefore, claimants utilizing this filing option are required to provide an e-mail address claimants are advised to print a copy of the confirmation report and retain it as proof of a timely filing. Because of the possibility, however remote, that the Office's online filing system might be inaccessible the evening of August 2 for reasons beyond the Office's control, claimants submitting their claims online are strongly encouraged to submit their claim no later than July 31, 2004.

When filing claims online, all provisions set forth in 37 CFR parts 252 and 257 apply except §§ 252.3(b)(5) and 257.3(b)(5), which require the original signature of the claimant or of the claimant's duly authorized representative on the claim. The Office is waiving this provision for this filing period because at this time the Office is not equipped to receive and process electronic signatures. However, the Office anticipates issuing regulations providing for a permanent system of electronic filing of claims by the end of 2004.

b. Hand Delivery by Private Party

The Office encourages claimants who do not file their claims electronically to deliver their claims personally by 5 p.m. E.D.T. on any business day, during the month of July 2004 and no later than August 2, 2004. Claimants are reminded that on February 4, 2004, the Office adopted a new policy for the hand delivery of documents to the Office of the Copyright Office General Counsel. 69 FR 5371 (February 4, 2004). Therefore, claimants personally delivering their claims should deliver their claims to the Copyright Office's Public Information Office located at LM-401 of the James Madison Memorial Building. To ensure that the claims are directed to the Office of the General Counsel, an original and two copies of each claim should be placed in an envelope addressed in the following manner: Office of the General Counsel/CARP, U.S. Copyright Office, James Madison Memorial Building, LM-401, First and Independence Avenue, SE., Washington, DC 20559-6000. The Public Information Office is open Monday-Friday, 8:30 a.m. to 5 p.m., except Federal holidays.

If a claimant does not address the envelope in accordance with the instructions herein and the envelope is misdirected and consequently does not reach the Public Information Office by 5 p.m. on Monday, August 2, 2004, such claims will be considered as untimely filed and will be rejected. Claimants should also note that the Public Information Office closes promptly at 5 p.m. The Copyright Office will not accept any claim that a claimant attempts to deliver after the Public Information Office has closed.

In addition, claimants hand delivering their claims should note that they must follow all provisions set forth in 37 CFR parts 252 and 257.

c. Hand Delivery by Commercial Courier

Since December 29, 2003, the Library of Congress has not accepted in-person, on-site deliveries from non-governmental, commercial couriers or messengers. See 68 FR 70039 (December 16, 2003). Instead, such couriers must deliver materials for staff at the Library, including cable and satellite claims, directly to the Congressional Courier Acceptance Site (“CCAS”) located at 2nd and D Streets, NE. The CCAS will accept items from couriers with proper identification, e.g., a valid driver's license, Monday through Friday, between 8:30 a.m. and 4 p.m. The envelope containing an original and two copies of each claim should be addressed as follows: Office of the General Counsel/CARP, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC. The date of receipt as documented by CCAS will be considered the date of receipt by the Copyright Office for purposes of timely filing. Any claim received by CCAS which does not have a date stamp of August 2, 2004, or earlier, will be considered untimely for this filing period and will be rejected by the Copyright Office.

Claimants delivering their claims by commercial courier should note that they must follow all provisions set forth in 37 CFR parts 252 and 257.

d. By Mail

Sections 252.4(a)(2) and 257.4(a)(2) direct claimants filing their claims by mail to send the claims to the Copyright Arbitration Royalty Panel, PO Box 70977, Southwest Station, Washington, DC 20024. Claimants electing to send their claims by mail are encouraged to send their claims by certified mail return receipt requested, to have the certified mail receipt (PS Form 3800) stamped by the United States Postal Service, and to retain the certified mail receipt in order to secure the only acceptable proof of a timely filing by mail, should the claim reach the Office after August 2, 2004. In the event there is a question as to whether the claim was deposited with the United States Postal Service during the month of July, or by August 2, 2004, the claimant must produce the certified mail receipt (PS Form 3800) which bears a United States Postal Service postmark, indicating an appropriate date. 37 CFR 252.4(e) and 257.4(e). Claims received after July 31, or the first business day in August when appropriate, with only a business meter mark will be rejected as untimely unless the claimant is able to produce the certified mail receipt. See Universal Studios LLLP v. Peters, 308 F.Supp.2d 2004 (D.D.C. 2004); Metro-Goldwyn-Mayer Studios, Inc. v. Peters, No. 03-1079, 2004 U.S. Dist. LEXIS 5399 (D.D.C. Mar. 24, 2004).

As noted above, disruption of the mail service and delivery of incoming mail to an off-site screening center have reduced the timeliness of receipt of mail by the Copyright Office. Such delays may hamper the Office's ability to compile a claimant list and may affect the Office's ability to make partial distributions of cable and satellite funds not in controversy. Consequently, the Office suggests that claimants use the mail (and preferably certified mail, return receipt requested) only if none of the other methods outlined above are feasible.

When filing claims by this method, claimants must follow all provisions set forth in 37 CFR part 252 for cable claims and part 257 for satellite claims.

Faxes Not Accepted

Although the Copyright Office accepted the submission of 2003 Digital Audio Recording Technology (“DART”) claims via facsimile transmission, the Office has determined that, due to the high volume of cable and satellite claims received by the Office relative to DART claims, it is administratively too burdensome to permit the faxing of cable and satellite claims. Consequently, any cable or satellite claims received by the Copyright Office via facsimile transmission WILL NOT BE ACCEPTED.

Waiver of Regulation

The regulations governing the filing of cable and satellite claims require “the original signature of the claimant or of a duly authorized representative of the claimant.” § 252.3(b) (cable); § 257.3(b) (satellite). This document, however, waives these provisions as set forth herein solely for the purpose of filing claims to the 2003 cable and satellite royalty funds. The Office is not waiving the statutory deadline for filing either cable or satellite claims, a deadline the Office has no power to waive. See, United States v. Locke, 471 U.S. 84, 101 (1985). Thus, claimants are still required to file their claims by August 2, 2004.

Waiver of an agency's rules is “appropriate only if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest.” Northeast Cellular Telephone Company v. FCC, 897 F.2d 1164, 1166 (DC Cir. 1990); see also, Wait Radio v. FCC, 418 F.2d 1153 (DC Cir. 1969), cert. denied, 409 U.S. 1027 (1972). Under ordinary circumstances, the Office is reluctant to waive its regulations. However, due to the continued problems with the delivery of the mail and the transition to an electronic filing system, the Office believes that under these special circumstances the public interest will best be served by waiving, for this filing period, the requirement that cable and satellite claims bear the original signature of the claimant or of a duly authorized representative of the claimant when, and only when, such claim is filed electronically.

Dated: May 24, 2004.

Marybeth Peters,

Register of Copyrights.

Footnotes

1.  In any year in which July 31 falls on Saturday, Sunday, a holiday or other nonbusiness day within the District of Columbia or the Federal Government, claims received by the Copyright Office by the first business day in August or claims that are properly addressed and deposited with sufficient postage with the United States Postal Service and postmarked by the first business day in August, shall be considered timely filed. 37 CFR 252.4(b), 257.4(b).