The IdoLawyer Takes The Internet Radio Controversy To Court

Brian Raftery | April 19, 2007 3:21 am
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Editor’s note: Aside from a few Clash lyrics, your Idolators know nothing about the law. Which is why we’re proud to present another missive from the IdoLawyer, an anonymous California attorney who will be weighing in on various music-related matters. While her column isn’t intended as legal advice, it is sage advice nonetheless, and today she takes a look at the institution that will help decide the fate of Internet radio:

The sky may well be falling on internet radio broadcasters now that the Copyright Royalty Board has refused to reconsider its decision imposing bankruptcy-inducing royalty rates. But hope isn’t entirely lost for the little webcasters that could, as the royalty payments may be postponed if the broadcasters take the case to the D.C. Circuit Court of Appeals. But will that court be any friendlier to the cause?

The highly respected and conservative-leaning D.C. Circuit (which served as the launching pad for the career of Chief Justice John Roberts) hears appeals from our nation’s administrative agencies. If Fox wants to challenge FCC rules about obscenity or the Sierra Club wants to challenge the EPA’s air-pollution standards, they can bring the case just across town to the E. Barrett Prettyman Courthouse–located, naturally, on Constitution Avenue. The Copyright Royalty Board, which was formed in 2004 as an arm of the Library of Congress, and which is not a part of the RIAA, has yet to make its D.C. Circuit debut.

Federal appeals courts give administrative agencies special treatment. The court isn’t going to consider whether the decision was right or wrong – that would involve way too much work and step on the toes of our nation’s paper-pushing bureaucrats, after all. Since Congress has given the copyright judges the specific authority to fill a gap in the law (in this case by setting royalty rates), the Board will be overturned only if its decision was “arbitrary, capricious, or manifestly contrary to the statute.” In short, only if it’s totally out there.

It’s tough, but not impossible, to prove that an agency action was intergalactically incorrect. Most famously, in the 80s, the Reagan administration tried to get rid of a rule requiring seat belts in all new cars. The Supreme Court determined that this policy arbitrary and capricious — i.e., ridic. The agency tried to argue that it was futile to require seat belts because so many people drove without them. Both the D.C. Circuit and the Supreme Court thought this was silly, legally speaking. The answer to passenger laziness wasn’t to ditch auto safety altogether but to require air bags — or at least to consider requiring air bags. The agency didn’t even do that. We still have seat belts as a result.

In this appeal, the D.C. Circuit will be looking at whether the Copyright Royalty Board “examined the relevant data and articulated a satisfactory explanation for its action,” and whether it can supply “rational connection between the facts found and the choice made.” With a 115-page opinion to challenge, the webcasters have their work cut out for them to prove that this decision was unreasoned and ill-considered. And, given this level of deference to the agency, their money and pleading may be better spent up the street on Capitol Hill. In the meantime this Idolawyer pledges to buy, at full retail price, the CD of any female singer-songwriter who titles her album Arbitrary and Capricious.