TRANSCRIPT OF PROCEEDINGS
------X
IN THE MATTER OF: )
)
DETERMINATION OF RATES AND TERMS) Docket No.
FOR DIGITAL PERFORMANCE OF SOUND) 19-CRB-0005-WR
RECORDINGS AND MAKING OF ) (2021-2025) EPHEMERAL COPIES TO FACILITATE ) THOSE PERFORMANCES (WEB V) ) ------X
OPEN SESSIONS
Pages: 2368 through 2686 (with excerpts) Place: Washington, D.C. Date: August 18, 2020
HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 [email protected] 2368
1 UNITED STATES COPYRIGHT ROYALTY JUDGES
2 The Library of Congress
3 ------X
4 IN THE MATTER OF: )
5 )
6 DETERMINATION OF RATES AND TERMS) Docket No.
7 FOR DIGITAL PERFORMANCE OF SOUND) 19-CRB-0005-WR
8 RECORDINGS AND MAKING OF ) (2021-2025)
9 EPHEMERAL COPIES TO FACILITATE ) 10 THOSE PERFORMANCES (WEB V) ) 11 ------X 12 BEFORE: THE HONORABLE JESSE M. FEDER
13 THE HONORABLE DAVID R. STRICKLER
14 THE HONORABLE STEVE RUWE
15 16 Library of Congress
17 Madison Building 18 101 Independence Avenue, S.E.
19 Washington, D.C. 20 August 18 2020 21 10:30 a.m. EST 22 REMOTE HEARING 23 VOLUME IX 24 25 Reported by: Karen Brynteson, RMR, CRR, FAPR
Heritage Reporting Corporation (202) 628-4888 2369
1 A P P E A R A N C E S:
2 ** All Appearances by Zoom Webinar **
3 On behalf of SoundExchange, The American Federation
4 of Musicians of the United States and Canada, Screen
5 Actors Guild and American Federation of Television
6 and Radio Artists (SAG-AFTRA), American Association
7 of Independent Music (A2IM), Universal Music Group
8 (UMG), Warner Music Group, Sony Music Entertainment,
9 Jagjaguwar: 10 DAVID A. HANDZO, ESQ. 11 ANDREW B. CHERRY, ESQ.
12 STEVEN R. ENGLUND, ESQ.
13 ALEX S. TREPP, ESQ. 14 DEVI M. RAO, ESQ. 15 PREVIN WARREN, ESQ. 16 LOREAL R. ROCK, ESQ. 17 SARAH J. CLARK, ESQ. 18 EMILY CHAPUIS, ESQ. 19 Jenner & Block, LLP 20 1099 New York Avenue, N.W.
21 Suite 900 22 Washington, D.C. 20001
23 202-639-6000 24 25
Heritage Reporting Corporation (202) 628-4888 2370
1 APPEARANCES (Continued):
2 On behalf of Google Inc.:
3 DAVID P. MATTERN, ESQ.
4 PETER SCHMIDT, ESQ.
5 King & Spalding LLP
6 1700 Pennsylvania Avenue, N.W.
7 2nd floor
8 Washington, D.C. 20006
9 202-737-0500 10 11 KENNETH L. STEINTHAL, ESQ.
12 King & Spalding LLP 13 706 De Haro Street 14 San Francisco, CA 94107
15 16 JASON BLAKE CUNNINGHAM, ESQ.
17 King & Spalding LLP 18 401 Congress Avenue 19 Austin, TX 78701 20 21 LIDA RAMSEY, ESQ. 22 King & Spalding LLP 23 1185 6th Avenue, Floor 35
24 New York, New York 10036
25
Heritage Reporting Corporation (202) 628-4888 2371
1 APPEARANCES (Continued):
2 On behalf of Pandora and SiriusXM Radio, Inc.:
3 BENJAMIN E. MARKS, ESQ.
4 TODD D. LARSON, ESQ.
5 JEREMY C. CAIN, ESQ.
6 JEREMY P. AUSTER, ESQ.
7 JESSICA L. FALK, ESQ.
8 LUCAS F. TESORIERO, ESQ.
9 REED L. COLLINS, ESQ. 10 Weil, Gotshal & Manges LLP
11 767 Fifth Avenue 12 New York, New York 10153
13 212-310-8007 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2372
1 APPEARANCES (Continued):
2 On behalf of National Association of Broadcasters:
3 JOSEPH WETZEL, ESQ.
4 ANDREW GASS, ESQ.
5 SADIK HUSENY, ESQ.
6 SARANG V. DAMLE, ESQ.
7 IVANA DUKANOVIC, ESQ.
8 ALICIA R. JOVAIS, ESQ.
9 BRITT N. LOVEJOY, ESQ.
10 CAROLINE ESSER, ESQ. 11 KRISTINE W. HANSON, ESQ.
12 LAUREN DEIFE, ESQ. 13 Latham & Watkins LLP 14 505 Montgomery Street 15 Suite 2000 16 San Francisco, CA 94111
17 415-391-0600 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2373
1 APPEARANCES (Continued):
2 On behalf of National Religious Broadcasters
3 Noncommercial Music License Committee:
4 KARYN K. ABLIN, ESQ.
5 THOMAS URBAN, ESQ.
6 ELIZABETH CRAIG, ESQ.
7 Fletcher, Heald & Hildreth
8 1300 N. 17th Street, Suite 1100
9 Arlington, VA 22209 10 11 ** Index appears at end of transcript.
12 13 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2374
1 P R O C E E D I N G S
2 (10:30 a.m. EDT)
3 THE CLERK: Five minutes. One minute.
4 Let's raise the curtain.
5 MR. SACK: The curtain is raised.
6 CHIEF JUDGE FEDER: Thank you, Mr. Sack.
7 Good morning. Before we resume the
8 cross-examination of Professor Tucker, are there any
9 housekeeping matters that we need to attend to?
10 MR. WARREN: Yes, Your Honor. This is -- I
11 just wanted to mention that the SoundExchange team
12 will be working from home today. We closed down our
13 office conference room out of an abundance of caution
14 because I felt ill last night. And so, hopefully,
15 there will not be any technical issues with my home
16 setup or with any of the other SoundExchange
17 attorneys, but I did just wanted to let everyone know
18 that. 19 CHIEF JUDGE FEDER: And -- and, more
20 important, I -- I hope that you are well.
21 MR. WARREN: Thank you, Your Honor.
22 CHIEF JUDGE FEDER: And not -- not sick with
23 anything serious. 24 MR. WARREN: Well, fortunately, I -- I did
25 -- I was already able to get a rapid test, and it
Heritage Reporting Corporation (202) 628-4888 2375
1 tested negative for coronavirus, so it's fortunately
2 not that.
3 CHIEF JUDGE FEDER: Very good. All right.
4 Can the host please promote Professor
5 Tucker.
6 MR. SACK: Stand by.
7 CHIEF JUDGE FEDER: Good morning, Professor
8 Tucker.
9 THE WITNESS: Good morning.
10 CHIEF JUDGE FEDER: All right. Mr. Larson,
11 you may continue your cross-examination.
12 MR. LARSON: Thank you, Your Honor.
13 Whereupon-- 14 CATHERINE TUCKER,
15 a witness, called for examination, having previously
16 been duly sworn, was examined and testified further
17 as follows: 18 CROSS-EXAMINATION -- Resumed
19 BY MR. LARSON: 20 Q. And good morning, Professor Tucker. I'd
21 like to -- 22 A. Good morning. 23 Q. Oh, do we have a big of a lag here today or
24 are we okay? 25 A. Let me just test. How is that sounding?
Heritage Reporting Corporation (202) 628-4888 2376
1 Q. Sounding good. Thanks. Let's move on to
2 your rebuttal testimony discussing Dr. Reiley's label
3 suppression experiments. It is your view, I think
4 from what we heard yesterday is that if Pandora were
5 to lose access to a major label on its free radio
6 tier, that would get reported by the media, correct?
7 A. That's correct.
8 Q. Right. And you provide some examples of
9 articles in your testimony where the media discussed
10 the catalogue size of various music services; is that
11 right? 12 A. Yes, so there are two sets of articles I
13 discuss in the media, one which reported on the
14 removal of an artist, and then there's also articles
15 which discuss the catalogue of different media
16 services. 17 Q. Right. And those -- that latter set of
18 articles discussed the catalogue size of on-demand
19 services, not interactive radio services, correct?
20 A. Yes. And that makes sense given that, due
21 to the statutory license, the catalogue, the size of
22 catalogue, you know, has never been a pertinent
23 question for lean-back services. 24 Q. Okay. Let's discuss some of those articles
25 that you cite, and I'll ask our technician to call up
Heritage Reporting Corporation (202) 628-4888 2377
1 footnote 31 of your rebuttal testimony. In footnote
2 31 you cite an article from Time Magazine called "11
3 Wildly Popular Albums You Can't Get on Spotify"; is
4 that right?
5 A. Yes, that's right.
6 Q. And Spotify is an on-demand service,
7 correct?
8 A. Yes, that's correct.
9 Q. And -- and this article doesn't say anything
10 about album availability on Internet radio services,
11 correct? 12 A. No, it doesn't because, again, they're
13 covered by the statutory license so it's not an
14 issue. 15 Q. Right. So let's look at footnote 33, if we
16 could. In footnote 33, you cite an article from
17 Digital Trends titled "Apple Music vs. Spotify".
18 Apple and Spotify are on-demand services, correct?
19 A. Yes, that's right. 20 Q. All right. And let's look up at paragraph
21 19, which is on the same page above. In paragraph
22 19, you cite an article from Business Insider.
23 Maybe you can find that, George. It's down
24 towards the bottom of the page. 25 That compares Amazon Unlimited and Prime; is
Heritage Reporting Corporation (202) 628-4888 2378
1 that right?
2 A. Yes, that's correct.
3 Q. And Amazon Unlimited and Prime are on-demand
4 services, correct?
5 A. Yes, that's right because, as I said before,
6 the catalogue issue doesn't come up for services
7 covered by the statutory license.
8 Q. Right. Now, in paragraph 19, you also cite
9 an article from -- from Consumer Reports called "Best
10 Music Streaming Services"; is that right?
11 A. Yes, I do. 12 Q. Right. And that article discusses the
13 catalogue sizes of Amazon, Apple, Spotify, and
14 Google; is that correct? 15 A. Yes, that -- that is correct. Yes.
16 Q. Right. And those are all on-demand
17 services, correct? 18 A. Yes. I'm very willing to say that these
19 articles really relate to on-demand services because
20 the range of catalogue is just, you know, because of
21 the statutory license, never an issue for
22 non-interactive services. 23 Q. Yes. I'm just asking yes/no questions,
24 Professor. You can discuss that with your counsel on
25 redirect, if you want to.
Heritage Reporting Corporation (202) 628-4888 2379
1 MR. WARREN: Objection.
2 BY MR. LARSON:
3 Q. This article also discusses certain radio
4 services, does it not?
5 CHIEF JUDGE FEDER: Excuse me, Mr. Larson.
6 Did -- did you just raise an objection, Mr. Warren?
7 MR. WARREN: I did. I just wanted to object
8 to Mr. Larson's attempt to instruct the witness to
9 only answer a yes-or-no question. I think the
10 witness is entitled to give the answer that she
11 thinks is the answer. 12 CHIEF JUDGE FEDER: If Mr. Larson is asking
13 yes-or-no questions, he can ask me to instruct the
14 witness. 15 MR. LARSON: Thank you, Your Honor. I think
16 we'll be okay for now, but I appreciate that.
17 BY MR. LARSON: 18 Q. Professor Tucker, the article that we're
19 talking about here from Consumer Reports also
20 discusses certain radio services; is that right?
21 A. Yes, it does. I mean, do you want to bring
22 up a copy? I don't have one open at the moment.
23 Q. Yes, if that will help refresh your
24 recollection, we can call that up. It's Trial
25 Exhibit 2073.
Heritage Reporting Corporation (202) 628-4888 2380
1 A. Could I -- I just mention, as an aside, I
2 don't --
3 Q. Professor, there's no -- there's no
4 question pending.
5 CHIEF JUDGE FEDER: There's no question
6 pending.
7 THE WITNESS: Oh.
8 CHIEF JUDGE FEDER: Yeah, the -- the ground
9 rules here, Professor, is that he asks the questions,
10 you answer them. If -- if there's something that you
11 feel needs elaboration, that's something that
12 SoundExchange's counsel can bring up on redirect
13 later today. 14 THE WITNESS: I really don't go against the
15 Court rules, but I have a technical issue in that I
16 can't access any of the exhibits in my folder, and
17 that's what I was just going to mention. I'm sorry.
18 CHIEF JUDGE FEDER: Okay. That -- that
19 technical issue, that's -- that's totally fair,
20 exactly. 21 Is -- is there something we can do from --
22 MR. TOTH: Your Honor --
23 CHIEF JUDGE FEDER: -- if not our end, the
24 Veritext end? 25 MR. TOTH: I'm sorry, Your Honor, I didn't
Heritage Reporting Corporation (202) 628-4888 2381
1 mean to cut you off, but she should --
2 CHIEF JUDGE FEDER: Go ahead, Mr. Toth.
3 MR. TOTH: She should be able to access them
4 now. I gave her access back this morning. If you
5 refresh your screen, you should be able to get them.
6 CHIEF JUDGE FEDER: If you just reclick the
7 link, it should come up.
8 THE WITNESS: It did. Thank you so much.
9 I'm glad I asked, and I'm sorry for that -- for --
10 for interrupting your flow, Mr. Larson.
11 MR. LARSON: No, no reason to apologize at
12 all. If there are any technical issues, please let
13 us know right away. Are we good now?
14 THE WITNESS: Yes. I've got into the
15 folder. Thank you very much. 16 BY MR. LARSON: 17 Q. Okay. If we could turn to what I believe is
18 page 8 of the -- the -- yes, we'll see here --
19 actually, could we flip back one page, George.
20 Right. You'll see here there's a description of
21 LiveXLive powered by Slacker. Do you understand that
22 to be a radio service? 23 A. Yes, that's what it says here.
24 Q. Right. And that -- that blurb on Slacker
25 does not address the catalogue size of -- of Slacker,
Heritage Reporting Corporation (202) 628-4888 2382
1 correct?
2 A. No, it doesn't for the same reason I
3 mentioned before.
4 Q. And going to the next page there's an
5 article on Pandora. That blurb does not address the
6 catalogue size of Pandora, correct?
7 A. Yes, that's correct. Again, for the same
8 reason I mentioned before.
9 Q. And going to the next page, there's a --
10 let's go one more -- there's a description of
11 SiriusXM. That's a radio service, correct?
12 A. Yes, that's right. 13 Q. And that -- that section on SiriusXM does
14 not address the catalogue size of SiriusXM, correct?
15 A. Again, it doesn't mention it for the reasons
16 I mentioned before. 17 Q. All right. Let's go back to or, I'm sorry,
18 let's move to footnote 52 of your written direct
19 testimony. Actually to paragraph 29 -- forgive me --
20 which is on page 19 of the written rebuttal
21 testimony. 22 Is that the rebuttal, George? Okay. Now,
23 yes, okay, that's fine. Actually, I want to see the
24 heading, if I could. 25 The header above paragraph 29 says that
Heritage Reporting Corporation (202) 628-4888 2383
1 public information suggested Pandora was supplying --
2 was supplying music from all record companies; is
3 that right?
4 A. Yes.
5 Q. Okay. And then if we look at paragraph 30,
6 towards the bottom, you provide a quote from a
7 Digital Trends article suggesting that Spotify and
8 Pandora's libraries are comparable. Do you see that?
9 A. Yes, I do. 10 Q. Right. Now, that quote is actually
11 referring to Pandora Premium, not Pandora's free
12 radio service, correct? 13 A. Yes, that's correct. I mean, I think the
14 key thing is that any field experiment which is
15 conducted in secrecy, you're not going to expect
16 there to be any reporting on any changes in the
17 service. 18 Q. Just to -- 19 MR. LARSON: Your Honor, I move to strike
20 that last sentence. I don't think that was
21 responsive to my question of whether the article was
22 discussing Pandora Premium. 23 MR. WARREN: Objection. I -- I think that
24 if we attempt to institute a rule where any witness
25 on cross-examination can only say the words yes or
Heritage Reporting Corporation (202) 628-4888 2384
1 no, that's going to prove to be impossible to police,
2 and I'm certain that SiriusXM's witnesses will not
3 abide by that rule either.
4 CHIEF JUDGE FEDER: I'm not going to strike
5 that response, but I will instruct the -- the
6 witness, please confine your responses to the
7 questions that are put to you. Thank you.
8 BY MR. LARSON:
9 Q. Just so the record is clear, in paragraph
10 30, the quote that's provided in your testimony from
11 Digital Trends noting that Spotify and Pandora's
12 libraries are very comparable, that's referring to
13 Pandora Premium, not Pandora's radio service; is that
14 correct? 15 A. Yes. 16 Q. Thank you. Now, I think you noted in
17 several of your responses to me that the services
18 that are at issue here operate under the statutory
19 license, which gives them access basically to all
20 sound recordings, correct? 21 A. Yes, that's what I was noting with reference
22 to all of these articles, that the question of
23 catalogue size becomes relevant when the statutory
24 license is not in play. 25 Q. So there's no reason for articles currently
Heritage Reporting Corporation (202) 628-4888 2385
1 to discuss the catalogue size of statutory radio
2 services; is that right?
3 A. What I'm saying is that they are likely --
4 it's likely to be less of an issue because of the
5 statutory license.
6 Q. Right. And so we don't actually have any
7 examples of how the press would react in a world with
8 no statutory license where a lean-back radio service
9 lost a label, do we? 10 A. So I haven't come across any articles which
11 report what would happen if the statutory license was
12 removed for some reason as a matter of law. So, no,
13 I haven't seen any articles like that.
14 Q. You talked yesterday about certain
15 situations where some high-profile artists pulled
16 their works from certain services; is that right?
17 A. Yes. So I talked both, I think, about the
18 instance of Taylor Swift and the instance with Adele.
19 Q. Right. And they pulled their -- either a
20 particular album or an entire catalogue from
21 on-demand services; is that right?
22 A. Yes, that's right. 23 Q. Right. And you've provided no evidence --
24 well, let me step back just to clarify.
25 Taylor Swift pulled her catalogue from
Heritage Reporting Corporation (202) 628-4888 2386
1 Spotify for a period of years; is that your
2 understanding?
3 A. That's right. And Adele didn't -- didn't
4 release the catalogue -- sorry, Adele -- I apologize.
5 Q. Your testimony provides no evidence that
6 Spotify lost usage or subscribers notwithstanding a
7 period of years without Taylor Swift, correct?
8 A. No, my testimony is focusing on the degree
9 of publicity that that generated, which wasn't
10 present in Dr. Reiley's experiments.
11 Q. All right. But, again, you've provided no
12 evidence as to whether Spotify lost usage or
13 subscribers during the period when it didn't have
14 Taylor Swift, right? 15 MR. WARREN: Objection, asked and answered.
16 THE WITNESS: So -- 17 CHIEF JUDGE FEDER: Professor, hold on.
18 There's a -- there's an objection pending.
19 Sustained. 20 BY MR. LARSON: 21 Q. Okay. Professor, you would acknowledge that
22 not all Spotify users are fans of the music of Taylor
23 Swift, correct? 24 MR. WARREN: Objection, calls for
25 speculation.
Heritage Reporting Corporation (202) 628-4888 2387
1 CHIEF JUDGE FEDER: The --
2 THE WITNESS: I -- I'm sorry.
3 CHIEF JUDGE FEDER: Hold on, Professor. He
4 asked if all, I think that's something the -- the
5 witness can reasonably answer. Overruled.
6 THE WITNESS: Yes, I'm -- my only hesitation
7 was because I'm a big Taylor Swift fan, but I believe
8 that there's some people who don't like Taylor Swift.
9 I'm sure that's true. 10 BY MR. LARSON: 11 Q. Okay, thank you. 12 And, in fact, the take-down that you
13 describe of Taylor Swift's music on Spotify coincided
14 with a period of massive growth on Spotify; is that
15 right? 16 A. So, yes, as I discuss in my direct
17 testimony, all these digital trends going towards
18 interactive services and making them a high-quality
19 product happened also in that period, so that's
20 correct. 21 Q. Let's talk about your Netflix and Hulu
22 example. This is in paragraph 54 of your testimony.
23 You -- you note that there was advertising by one of
24 those services highlighting the lack of content on
25 the other service; is that right?
Heritage Reporting Corporation (202) 628-4888 2388
1 A. That's correct. I had an example yesterday
2 in my cross- -- direct examination.
3 Q. Yes. Hulu and Netflix provide television
4 programming, not music programming, correct?
5 A. Yes, that's correct.
6 Q. And, more specifically, they provide
7 on-demand access to television programming; is that
8 right?
9 A. Yes, that was -- Judge Strickler and I
10 discussed that yesterday, yes. 11 Q. Right. And you've not provided any evidence
12 as to whether the loss of the programming that's
13 discussed in your testimony actually impacted
14 listening on Netflix, correct? 15 A. So, no. Again, I was talking about the
16 publicity surrounding -- reasons there was publicity
17 surrounding the removal of content.
18 Q. And you would agree many Netflix might not
19 have actually been fans of the particular programs
20 that were blacked out? 21 A. Yes. 22 MR. WARREN: Objection, calls for
23 speculation and outside the scope of the witness'
24 testimony. 25 MR. LARSON: Your Honor, if she can opine on
Heritage Reporting Corporation (202) 628-4888 2389
1 the impact of -- of losing programming on listeners
2 of a service, I think she can be asked questions
3 about whether users of the service would know or care
4 about the programming that's removed.
5 MR. WARREN: Your Honor, may I respond to
6 that?
7 CHIEF JUDGE FEDER: Yes, you may.
8 MR. WARREN: The witness' testimony really
9 isn't about the impact of losing particular
10 programming by Netflix and Hulu and -- or Spotify for
11 that matter. It's just about the fact that that loss
12 of programming would be publicized. So this entire
13 line of questioning, honestly, exceeds the scope of
14 what the witness testified about. 15 MR. LARSON: Her testimony goes beyond that
16 to opine that people who hear or read those articles
17 care about it when it happens on a music service. So
18 it seems totally fair to ask in her examples that
19 she's holding out as evidence-- 20 CHIEF JUDGE FEDER: Okay. Thank -- thank
21 you, Mr. Larson. I'll -- I'll allow it. Overruled.
22 THE WITNESS: So, again, I'm going to
23 actually answer this as a marketing professor. The
24 fact that they chose to publicize this on social
25 media and use it to engage people on social media
Heritage Reporting Corporation (202) 628-4888 2390
1 tells me that they thought it was going to be
2 interesting and intriguing content. That doesn't
3 mean that everyone, for example, loves Seinfeld.
4 BY MR. LARSON:
5 Q. Let's -- let's move on. It's your view not
6 only that the press and competitors would report on
7 the loss of the label on Pandora but that most, if
8 not all, of Pandora users would actually see those
9 articles and therefore know about the change in
10 repertoire; is that correct? 11 A. So it's my view that some would see them
12 firsthand and others would receive the information
13 through word of mouth and social media.
14 Q. Right. Now, you've not provided any
15 evidence that Pandora consumers would actually see
16 such articles, correct? 17 A. So what I've done is I've talked about the
18 -- so, first of all, I provided just the degree --
19 evidence of the degree of coverage in the case of,
20 say, the Taylor Swift or Adele instances. And then
21 I've talked about the academic literature which
22 discusses how word of mouth amplifies messaging on
23 social media. 24 Q. But you've not actually quantified how many
25 people saw or read any of the articles you cite in
Heritage Reporting Corporation (202) 628-4888 2391
1 your testimony, correct?
2 A. So, no, I enumerate the articles, and then I
3 refer to this calibration that was done about word of
4 mouth on social media in the academic literature.
5 Q. Right. And you've not provided any evidence
6 in the instance of a blackout on Pandora, if it were
7 reported, how many Pandora users would actually see
8 or read those articles, correct?
9 A. No. Instead, I explained the reasons in the
10 academic literature why I believe they would.
11 Q. Right. And you've not identified how many
12 people -- how many Pandora users would actually act
13 or make a decision with respect to their listening on
14 account of reading such articles, correct?
15 A. So, no, I have not done that. I am talking
16 predominantly about the reasons why in the real world
17 listeners would have found out about the experiment.
18 Q. Okay. So let's take it a step further. You
19 contend that Pandora users not only would hear about
20 the loss of a label but they would care about the
21 loss of a label, correct, and that they would listen
22 less as a result? 23 A. Yes, that's right. As I said, my own
24 research emphasizes the difference between secrecy in
25 a field experiment and being explicit about what's
Heritage Reporting Corporation (202) 628-4888 2392
1 happening.
2 Q. And you point to certain internal research
3 surveys from Pandora in your testimony showing that
4 music library breadth is important to Pandora users;
5 is that right?
6 A. That's right. Could you remind me of the
7 paragraph? I can go to it.
8 Q. Yeah, this is -- this is paragraph 25. And
9 I'm going to focus you on footnote 42.
10 A. So I'm seeing footnote 42 as referencing
11 some of the academic literature I was just referring
12 to about the amplification on social media.
13 Q. Yes. I actually misspoke. I meant
14 paragraph 44. Sorry, George. Footnote 44, yeah.
15 Right. 16 Right. Do you recall citing certain Pandora
17 surveys here in footnote 44? 18 A. Yes, I do. They're referring to general
19 users talking about song repetition.
20 Q. Right. And let's -- just -- just so the
21 record is clear, let's look up in paragraph 25 where
22 footnote 42 is -- is -- or footnote 44, right. This
23 is included in that. That makes your point here that
24 library breadth is important to listeners and
25 influences their decision, decisions to continue
Heritage Reporting Corporation (202) 628-4888 2393
1 using the service or switch to an alternative; is
2 that right?
3 A. That's correct.
4 Q. Okay. So with apologies to two of my
5 technicians, can we go back to footnote 44. And I'd
6 like to -- to call up one of the documents that's
7 referenced here, which is Trial Exhibit 5153. It's
8 noted as Exhibit 205 in this footnote. And this is
9 in evidence. 10 And you cite in the footnote page 4605 of
11 this document, so if we could go to 4605, which I
12 think is the 35th -- right, you're way ahead of me.
13 Right. And could we expand -- yeah, in particular
14 the -- the top, the purple row there. Yeah. Okay.
15 Are you with me, Professor?
16 A. I am. I just missed the trial exhibit
17 number, though. 18 Q. Yeah, it's Trial Exhibit 5153.
19 A. Great, yes. 20 Q. Okay. So this page tabulates Pandora user
21 concerns about song repetition, variety, the lack of
22 artists that they want, things like that, correct?
23 A. Yes, that's right. 24 Q. All right. And so the respondent group for
25 this section of the survey is users who have churned
Heritage Reporting Corporation (202) 628-4888 2394
1 from Pandora's ad-supported service; is that correct?
2 A. Yes, that's right. That's what we -- in
3 fact, this was part of my direct examination, and you
4 can see that for these users, even with access to the
5 whole catalogue, repetition is still a big issue.
6 Q. Right. Now, just let me ask, how do you
7 know that the responses of those users who have
8 churned away from Pandora are representative of the
9 users who remain on Pandora and would -- would be
10 subject to the loss of a label? 11 A. So the way I think of them is they are
12 representative of the users who have fragile loyalty
13 to Pandora, so I think that's the way to think about
14 them. 15 Q. Well, it's users who left, not users who
16 stayed, correct? 17 A. So this is definitely users who stayed, and
18 I think they're informative about those users who, in
19 the margins, Pandora risks losing.
20 Q. I think you said that's users who stayed,
21 but it's users who left, correct? Churn means users
22 who have left? 23 A. I apologize. I said that wrong. Let me try
24 and restate it. It is, of course, informative about
25 users who left, and that is, in turn, informative
Heritage Reporting Corporation (202) 628-4888 2395
1 about users who are potentially vulnerable to leaving
2 in the future.
3 Q. And -- and can you provide any
4 quantification, among the Pandora user base who has
5 remained, how many fall into that category that would
6 be represented by this finding here on this page?
7 A. So I don't want to provide a quantification
8 off the top of my head. I would refer, though, to
9 some of the appendices in my written direct
10 testimony, which does suggest there are a great many
11 Pandora users who don't seem particularly loyal or
12 consistent in their listening habits.
13 Q. Okay. Now, the percentage of users who
14 churned who said they care about lack of variety is
15 -- is 10 percent, then, on this chart, correct?
16 A. You -- you mean variety of playlists?
17 Q. Yes, not enough variety of playlists,
18 10 percent? 19 A. Yes, that's right. 20 Q. Right. And these are aided responses,
21 correct? 22 A. That's correct. That's what it says in red.
23 Q. And that means survey respondents were
24 actually prompted with that as a possible choice,
25 right?
Heritage Reporting Corporation (202) 628-4888 2396
1 A. So in an aided survey, you're given explicit
2 choices.
3 Q. Right. So -- so those users who did not
4 identify variety of playlists as a concern even when
5 prompted was 90 percent. Is that right?
6 A. So I would have to go by the survey design,
7 and I'd have to look back about whether you were
8 allowed to just pick one of these, in which case it
9 could be masking this as a latent reason, but what --
10 if, as I suspect, you're allowed to sort of pick one,
11 then we know that for 10 percent it was the key
12 issue, but for the other 90 percent, we -- we have
13 less information. 14 Q. Okay. And those who did not identify
15 Pandora, the choice, doesn't have an artist songs I
16 want, in the next column, 90 percent did not choose
17 that option, correct? 18 A. Again, I don't want to -- again, I would
19 give a similar response. We know for 10 percent it
20 was the first reason; for 90 percent we know it
21 wasn't the first reason but we don't know if it was
22 part of the decision. 23 Q. Okay. And this is in evidence, so we can
24 look at the details of the survey to figure that out,
25 I presume.
Heritage Reporting Corporation (202) 628-4888 2397
1 A. Yes, of course. Yes.
2 Q. Okay. Let's look back a page if we could.
3 And this page gives unaided reasons for churn. Do
4 you see that at the top?
5 A. Yes, I do.
6 Q. Right. So that's -- these are responses
7 people gave, when they were asked why they left
8 without being fed any possible reasons; is that
9 right? 10 A. That's what unaided means. Typically, it
11 would be a free-form text box, and it would be
12 codified. 13 Q. Right. And looking on the left several
14 lines down, only 5 percent gave the unaided response
15 that perceived song library limitations were reason
16 for churn, right? 17 A. Yes. That's certainly correct, though I
18 will just point out that if you say you prefer using
19 Spotify, that could be baked into it, so I'm not -- I
20 would just want to note that limitation with that
21 interpretation, but certainly 5 percent explicitly
22 said something like song library, well, I'm just
23 saying I prefer Spotify. 24 Q. Right. 95 percent did not choose that one,
25 correct?
Heritage Reporting Corporation (202) 628-4888 2398
1 A. So 95 percent of people did explicitly use
2 the word "library limitations," yes, that's correct.
3 Q. Okay. Let's take this one down and look at
4 Trial Exhibit 5154. And this is identified in
5 footnote 44 of your written rebuttal testimony as
6 Exhibit 206.
7 And you cite page 5338 of this document in
8 that footnote, which I believe is page 7 of the
9 document. 10 A. Right. 11 Q. Right. 12 A. Could you just repeat the trial exhibit
13 number, please? 14 Q. Sure. It is 5154. 15 A. 5154. 16 Q. Now, this -- if we can call up or highlight
17 the left-hand box, which is for ad-supported
18 listeners. This identifies limited song library or
19 perceived song library limitations as a reason for
20 churn. Is that right? 21 A. Yes, that is correct. 22 Q. Right. And here 5 percent identify not
23 enough songs or artists as a -- as a reason for
24 churn? 25 A. Yes, they do. It's quite similar to the
Heritage Reporting Corporation (202) 628-4888 2399
1 other ones. We also have answers to do with
2 preferring Spotify, which may also imply that same
3 preference, that same feeling.
4 Q. Right.
5 A. Those that explicitly said it.
6 Q. Right. And it doesn't say prefer Spotify.
7 It just says prefer to use other services, correct?
8 A. Yes, it says: I prefer to use other
9 services. And then we have information in the other
10 surveys about the fact that they would churn --
11 THE REPORTER: I'm sorry, there was an
12 interruption in the answer there. And then we have
13 information in the other surveys about the fact that
14 they would churn -- 15 THE WITNESS: -- to on-demand services.
16 THE REPORTER: Thank you.
17 BY MR. LARSON: 18 Q. Right. And to that point, looking three
19 lines up from the bottom, only 6 percent of people in
20 this group identified cannot choose what I want to
21 listen to as reason for churning, correct?
22 A. So, again, a similar answer, yes, 6 percent
23 of people specified that they can't choose what they
24 want to listen to. However, when we looked at the
25 data, people are churning to on-demand services.
Heritage Reporting Corporation (202) 628-4888 2400
1 Q. Okay. Let's take that down. I'd like to
2 move to a different topic.
3 So let's call up if we could --
4 MR. LARSON: And, Your Honor, we're going to
5 need to go into restricted session here, I think.
6 CHIEF JUDGE FEDER: Okay. For about how
7 long?
8 MR. LARSON: I would say 20 minutes or so.
9 CHIEF JUDGE FEDER: Okay. We will go into
10 restricted session for about 20 minutes. Will the
11 host please clear the virtual hearing room.
12 MR. SACK: Your Honor, please stand by. We
13 are beginning to clear the room now.
14 If you're an attendee in the Zoom meeting
15 who is not allowed to attend restricted session,
16 please leave the session by clicking the red "leave"
17 button on the bottom of the right-hand side of your
18 screen or click the "X" at the top right-hand side.
19 Your counsel will inform you when you're allowed to
20 return to the proceeding. 21 Please stand by, Your Honors and counsel,
22 while we work to clear the room. 23 (Whereupon, the trial proceeded in
24 confidential session.) 25
Heritage Reporting Corporation (202) 628-4888 2415
1 O P E N S E S S I O N
2 BY MR. LARSON:
3 Q. Professor, I'd like to just talk a bit more
4 about --
5 CHIEF JUDGE FEDER: Hold on, Mr. Larson.
6 MR. SACK: And the stream is live.
7 CHIEF JUDGE FEDER: Thank you, Mr. Sack. We
8 are now back in open session.
9 Mr. Larson, you may continue.
10 BY MR. LARSON: 11 Q. Sure. Professor, I want to shift for a
12 minute for a few questions about what it would mean
13 to Pandora users if they did learn that a major label
14 was missing on Pandora. 15 Would you agree that most Pandora users
16 aren't going to know what artists or recordings are
17 on a given major label? 18 A. So, there's certainly some people who do
19 follow labels, and there are some people who don't.
20 Q. Okay. But a significant number of Pandora
21 users would be unlikely to know what it would mean if
22 they heard that Warner wasn't on Pandora, right?
23 MR. WARREN: Objection, calls for
24 speculation and I believe is outside the scope of the
25 witness' testimony.
Heritage Reporting Corporation (202) 628-4888 2416
1 MR. LARSON: Your Honor, her testimony is
2 about what would happen if -- her contention is that
3 if people learned about a blackout on a label, that
4 they would react to that negatively. So I think it's
5 fair to probe her understanding of what those users
6 would actually know or not know or understand in that
7 situation.
8 CHIEF JUDGE FEDER: If the witness is able
9 to answer the question, she may answer the question.
10 Overruled. 11 BY MR. LARSON: 12 Q. Right. And certainly, Professor, if you
13 don't feel that you have the information to answer
14 the question, feel free to tell me that. I don't
15 want you to speculate. 16 But you would agree, would you not, that
17 many Pandora users would not know what music they
18 would be losing if they heard that Warner was not
19 available on Pandora? 20 A. So I -- I would think it highly unlikely
21 that the way the news would be reported to ever say
22 they're losing music from Warner. Instead, the news
23 reporter would list famous artists associated with
24 that label. 25 Q. Right. And --
Heritage Reporting Corporation (202) 628-4888 2417
1 A. That would be what one would expect.
2 Q. Right. And if that happened, you'd agree
3 that not all Pandora users would necessarily be fans
4 of those artists, correct?
5 A. So, again, not all, I'm sure is the case.
6 You know, I'm thinking there's going to be some
7 people who have obscure tastes in music who don't
8 like those artists, but typically news reporting
9 focuses on the most popular artists, which they think
10 would be of most interest to their readership.
11 Q. Right. But -- but, again, to get to my
12 question, not every Pandora user is going to be a fan
13 of popular music, correct? 14 A. So just because I said popular artist and
15 not just pop music, and so my guess is if there was a
16 -- you know, they would mention -- to be -- to be
17 expansive, they wouldn't just talk about pop artists
18 but they would talk about any country and western
19 stars, any more -- a hip-hop artist. I think they
20 would choose famous people from each genre. So I
21 don't think it would be limited to pop music.
22 Instead, they would focus on popular artists.
23 Q. Fair enough. But losing access to a major
24 label would not mean that every Pandora user would
25 lose music by their own favorite artist, correct?
Heritage Reporting Corporation (202) 628-4888 2418
1 A. So, certainly, it's the case that if you
2 lose a label which does not have your favorite artist
3 in it, then you wouldn't -- you would be worried
4 about a, I guess, secondary artist you like but not
5 your favorite artist.
6 Q. Okay. Pandora users can seed stations with
7 artists; is that your understanding?
8 A. Yes.
9 Q. Right. And if Pandora lost access to a
10 major label, not all Pandora users would have
11 stations seeded with artists from that label,
12 correct? 13 A. So I have not seen the distribution of data
14 on that. But, again, for the same reasons -- and it
15 depends on the sort of setup and degree of lock-in of
16 the different artists -- sorry, let me -- can I start
17 again? 18 Q. Sure. 19 A. Could you restate the question? I got lost.
20 Q. Yes. My question was if Pandora lost access
21 to a major label, not all Pandora users would have
22 stations seeded with artists from that label,
23 correct? 24 A. So for the same reasons, yes, there would --
25 I'm sure there would be some Pandora users who did
Heritage Reporting Corporation (202) 628-4888 2419
1 not have stations which were seeded by artists from
2 that label.
3 Q. Right. And I guess just to boil it down, to
4 the extent the advertisements or the media articles
5 highlighted certain big artists that were missing or
6 -- or popular music missing from the label blackout,
7 we can't assume that every Pandora user provided that
8 information is actually going to care about that,
9 correct? 10 A. So, certainly, I think one can imagine a
11 Pandora user, say someone who loves Indie labels who
12 is indifferent, and so certainly one can imagine a
13 situation where potentially a Pandora user would not
14 be concerned, for example, if they like Indie labels.
15 Q. And you've not quantified how many would be
16 or wouldn't be, right, how many -- how many Pandora
17 users would care about the loss of the label versus
18 how many would not, if they heard about it?
19 A. So, no. What I was focusing was on
20 describing why I didn't feel that Dr. Reiley's
21 experiment was -- 22 Q. Let's shift topics. 23 THE REPORTER: Can you repeat the end of
24 your answer there? 25 THE WITNESS: Why Dr. Reiley's experiment
Heritage Reporting Corporation (202) 628-4888 2420
1 was not informative for answering that question.
2 BY MR. LARSON:
3 Q. I'd like to shift topics, if we could, and I
4 would like to call up paragraph 50 of the rebuttal
5 testimony.
6 CHIEF JUDGE FEDER: Do we still need to
7 remain -- are we --
8 MR. LARSON: I think we went back to public
9 session. 10 CHIEF JUDGE FEDER: Okay, I'm sorry.
11 BY MR. LARSON: 12 Q. Can we highlight the heading in paragraph
13 50. The headline here says that streaming services
14 are competitive because it is easy for users to
15 switch. And then in paragraph 50, towards the end,
16 it says users can move readily between services.
17 I gather you still stand by that testimony,
18 Professor? 19 A. Yes, I do. But I just want to explain the
20 context is -- 21 MR. LARSON: Your Honor -- Your Honor, I
22 would ask the witness to move along. I didn't ask
23 for the context. I asked if she agreed.
24 CHIEF JUDGE FEDER: Please -- please answer
25 the question, and if more context is needed, that --
Heritage Reporting Corporation (202) 628-4888 2421
1 that can come up on redirect.
2 THE WITNESS: Of course.
3 CHIEF JUDGE FEDER: Thank you.
4 BY MR. LARSON:
5 Q. Let's look at paragraph 51. Paragraph 51
6 notes the prevalence of -- of multiple accounts that
7 users have on different services. Is that right?
8 A. Yes. Typically, users have potentially
9 multiple free accounts. 10 Q. And you agree that when people have multiple
11 service -- multiple services, they could readily or
12 fairly easily switch to one of their other services
13 if service A is degraded, correct?
14 A. So, yes, if I have a free account on Pandora
15 and the service is degraded, then it's very easy for
16 me to have -- go to, say, a free account on Spotify,
17 and Spotify would have every reason to publicize to
18 me the need for me to -- you know, why it was that I
19 should be on Spotify, not Pandora.
20 Q. Right. So you -- you qualified your answer
21 there by saying if I had free Pandora, but turning to
22 paragraph 102 of your rebuttal testimony, you note
23 there that even as to subscription users, that those
24 subscribers, in particular, may be more likely to
25 switch away if they become dissatisfied with their
Heritage Reporting Corporation (202) 628-4888 2422
1 service, correct?
2 Actually, the next sentence, if we could.
3 I'm sorry, the starting with "similarly," George, if
4 you could highlight right after the gray. Yeah.
5 Do you agree with that testimony, Professor?
6 A. Yes, I -- so, yes, that's certainly my
7 testimony. I would just note the footnote which also
8 explains how that fits into the notion of free, which
9 is what we were talking about earlier.
10 Q. Thank you. Different topic, trying to move
11 quickly here. 12 You critique Professor Shapiro for relying
13 on the Reiley experiments to conclude that the major
14 labels are not must-have for a streaming service like
15 Pandora. Do I have that right? 16 A. That is correct. 17 Q. Have you presented any evidence to support
18 the conclusion that any of the major labels are
19 must-have for streaming services like Pandora?
20 A. No. My evidence -- my testimony is focused
21 on the fact that Dr. Shapiro cannot rely on Dr.
22 Reiley's experiment to draw the conclusion that
23 labels are not must-haves. 24 Q. All right. Shifting to a different point, I
25 want to talk about what I think you've called the
Heritage Reporting Corporation (202) 628-4888 2423
1 intensity of treatment. And this came up yesterday.
2 I think you faulted Dr. Reiley because he didn't keep
3 track of how many songs certain users in the
4 treatment groups would have heard, had they not been
5 subject to the suppression.
6 Do I have that right?
7 A. That's correct.
8 Q. Right. So I take it what that means is
9 that, for a given user, we don't know if he or she
10 would have heard 5 songs or 15 songs or 20 songs by
11 the -- by the suppressed label; is that right?
12 A. That's correct. 13 Q. Right. Now, you acknowledge there's a
14 control group who did hear songs by the suppressed
15 label, right? 16 A. That is correct. 17 Q. Right. And in the control group, we do know
18 how many -- user by user, how many tracks from the
19 suppressed label those control users heard, right?
20 A. We do. We just don't know the intensity of
21 treatment for the people who were treated.
22 Q. Right. And with the experimental data as we
23 have it, we can compute how the average listening
24 across users in the treatment group compares to the
25 average listening across users in the control group,
Heritage Reporting Corporation (202) 628-4888 2424
1 correct?
2 A. So you're right that all you can look at is
3 these variable averages. And you don't have the
4 usual data you would in this kind of academic study
5 where you would be able to measure better the
6 treatment effect. And that's what Dr. Reiley has
7 done in the past.
8 Q. Right. And you acknowledge that if one is
9 looking, is just looking, to compare the average
10 listening effect between the control and the
11 treatment group, that knowing the variation in
12 treatment between users in the treatment group isn't
13 necessary, correct? 14 A. So if you -- you can, of course, compare
15 averages. It's just very non-standard in this kind
16 of academic world. 17 Q. Right. But that's not an answer to my
18 question. My question is if you're looking to
19 compare the average listening effect between the
20 control group and the treatment group, then knowing
21 the variation in treatment between users in the
22 treatment group isn't necessary, correct?
23 A. If your aim is to only measure the
24 differences across averages -- averages, then indeed
25 you only need averages. However that's going to
Heritage Reporting Corporation (202) 628-4888 2425
1 limit what you can measure.
2 Q. Got it. You've suggested in your testimony
3 that people may behave differently at the extremes of
4 a distribution; is that right?
5 A. Yes. I was given the example of how people
6 behaved differently around zero, for example.
7 Q. Right. Zero price, correct?
8 A. So, yes. The literature that I was
9 discussing with Judge Strickler yesterday was zero
10 pricing. 11 Q. Right. And we -- we talked about this in
12 your deposition, but the support for that proposition
13 that you provide includes a paper by -- by Ariely, I
14 think is the last name -- about the price of
15 chocolates; is that correct? 16 A. Yes, there's a paper by Kristina Shampan'er
17 and Dan Ariely. 18 Q. Right. And that paper examined how people
19 reacted to chocolates with a small price versus a
20 price of zero; is that right? 21 A. That is one of the studies they report on.
22 And that one was conducted at MIT.
23 Q. Right. And that paper did not address
24 removing a feature from a product that was already
25 free, correct?
Heritage Reporting Corporation (202) 628-4888 2426
1 A. It was focused on identifying the
2 nonlinearity around zero for the price.
3 Q. So you've not provided any more specific
4 evidence that those with zero spins from the
5 suppressed label in the LSEs behave similarly to
6 those confronted with a zero price for chocolate,
7 correct?
8 A. I will just hesitate to say that I think
9 you're characterizing this nonlinearity at zero price
10 as just being about chocolates because that was one
11 of the experiments run on the paper. It has actually
12 been widely documented elsewhere. But, no, a lot of
13 this literature has focused on pricing for obvious
14 reasons. 15 Q. Okay. Just a couple more questions. I want
16 to actually go back to one thing from yesterday.
17 You testified repeatedly that Pandora's
18 ability to pay is not a constraint on the rates to be
19 set here. Do I recall that correctly?
20 A. Yes, that's correct. 21 Q. Let me ask, how do you define a constraint?
22 A. So I think it is helpful if I go back to the
23 example I gave yesterday that when might ability to
24 pay be a constraint, for example, if I had wanted a
25 life-saving drug, my willingness to pay might exceed
Heritage Reporting Corporation (202) 628-4888 2427
1 my current ability to pay, and perhaps because I was
2 sick, I wouldn't be able to borrow money in a way
3 which meant I could actually reflect my willingness
4 to pay.
5 Q. Well, let's talk -- let's put aside
6 life-saving drugs and talk about digital music
7 services, which is why we're here. Is there a
8 particular financial metric for a digital music
9 service that would signify a constraint as you're
10 using that term? For negative EBITDA, gross margin,
11 what -- what metric would you use?
12 A. So what I'm doing is, no, I'm not using a
13 financial metric for the reasons we went into in my
14 deposition. Instead, I'm looking at the underlying
15 trends and economic health of these businesses and
16 saying that, actually, all the signs are very
17 positive at the customer level and, therefore,
18 there's going to -- there's an upwards trend in
19 ability to pay, meaning that it's not going to be a
20 constraint. 21 Q. And a constraint is measured how? What
22 would we see if it were a constraint?
23 A. So if I was looking for a time when ability
24 to pay might be a constraint, it would be instances
25 when a -- you know, for example, the unit economics
Heritage Reporting Corporation (202) 628-4888 2428
1 were looking particularly unhealthy.
2 Q. And -- and can you say anything more
3 specific than unhealthy? What measure would show
4 that they were unhealthy?
5 A. Again, when we're thinking -- when I used
6 the term "unhealthy," you might laugh at it, but I'm
7 just talking about the underlying economics which are
8 going to drive each of the individual inputs into a
9 customer lifetime value calculation. So --
10 Q. You've not -- 11 A. So in my testimony is to say that for all
12 the individual inputs, we're seeing positive trends
13 for Pandora, and we're not seeing any negative
14 trends. 15 Q. Thank you. Professor, I appreciate your
16 time. That's all the questions I have for you.
17 CHIEF JUDGE FEDER: Thank you, Mr. Larson.
18 Okay. Will the host please turn off Weil's
19 video. 20 And, Mr. Damle, please turn on your video.
21 Okay. Mr. Damle, you may proceed. Are we going to
22 start in open session? 23 MR. DAMLE: Yeah. I hope to stay in open
24 session the whole time. 25 CHIEF JUDGE FEDER: Okay, thank you. You
Heritage Reporting Corporation (202) 628-4888 2429
1 may proceed.
2 CROSS-EXAMINATION
3 BY MR. DAMLE:
4 Q. Good morning, Professor Tucker. I believe
5 it's still morning for a little bit over there.
6 A. Yes, it is.
7 Q. I'm Sy Damle. I represent the National
8 Association of Broadcasters. I believe you heard my
9 disembodied voice a few times yesterday.
10 You testified yesterday about the importance
11 in improvements in machine-learning technologies
12 which have allowed the emergence of a whole new set
13 of personalized technologies; is that right?
14 A. That's correct. 15 Q. And you believe the Judges here should
16 consider the increased personalization of webcasting
17 services in setting willing buyer/willing seller
18 rates; is that right? 19 A. So the trend is about -- explains the shift
20 of consumers to on-demand streaming, which as I've
21 explained, can take -- affects competitive forces
22 within the industry. And that's what I think the
23 Judges should be taking into account.
24 Q. But you testify, do you not, that Pandora
25 has relied on improvements in machine learning to
Heritage Reporting Corporation (202) 628-4888 2430
1 introduce new personalized features on its free tier,
2 correct?
3 A. So, yes, I do give that as an example of one
4 of the things which is driving the health of
5 Pandora's product.
6 Q. And as you've defined it in your written
7 direct testimony, personalization refers to providing
8 an individualized product for one consumer, rather
9 than a product for many consumers; is that right?
10 A. Yes, it's about this revolution where, for
11 example, in an on-demand service, I can basically
12 design my own product. 13 Q. You restricted your answer there to -- to
14 on-demand service, but you would agree that Pandora's
15 free tier service is an example of a personalized
16 webcasting service as you've defined it, correct?
17 A. So Pandora's service certainly has
18 benefitted from some of these shifts in -- in machine
19 learning. Is it as personalized as on-demand?
20 Probably not. But, yes, they have benefitted from
21 these shifts. 22 Q. So you would agree that a Pandora user --
23 that Pandora's free tier service allows a user to
24 receive a station that is individualized for their
25 preferences; is that correct?
Heritage Reporting Corporation (202) 628-4888 2431
1 A. So some of the features of Pandora have
2 allowed personalization, but if, for example, I set a
3 station and seed it with a Taylor Swift song, that is
4 not going to be a fully personalized product.
5 Q. But you testified in your written direct
6 testimony of new personalized features such as
7 Pandora Modes that gives users more control over the
8 songs played on customized radio stations; is that
9 correct? 10 A. Yes, that was one of the examples I give of
11 Pandora using machine learning to improve their
12 product. 13 Q. Right. And they improved their product by
14 introducing a new personalized feature, correct?
15 A. So that was one of the ways they've used
16 this technology, yes. 17 Q. Okay. So let's turn to simulcasters.
18 You're familiar with the term "simulcast," right?
19 A. Yes, I am. 20 Q. The music content a listener hears on a
21 simulcast is the same as what's being broadcast on
22 the corresponding over-the-air radio station; is that
23 right? 24 A. That's correct. 25 Q. And so one of the features of simulcast is
Heritage Reporting Corporation (202) 628-4888 2432
1 that the content is not personalized; wouldn't you
2 agree?
3 A. So, yes, it's the case that a simulcast is
4 only personalized to the extent to which the station
5 reflects my specific interests.
6 Q. So it's only personalized to the extent that
7 a listener can select a specific broadcast radio
8 station simulcast; is that right?
9 A. That's correct. 10 Q. And I just want to be clear here, there's no
11 machine learning that serves to adjust on a
12 personalized per-user basis the content in a
13 simulcast; is that right? 14 A. So, yes. So machine learning, the nature of
15 simulcast is that the content will be the same. Of
16 course, you could -- can use machine learning for
17 serving ads, for example. 18 Q. Okay. Let's move on to another topic. So
19 you've expressed the opinion that iHeart Media is
20 well positioned to pay higher royalty rates; do I
21 have that right? 22 A. Yes, that's correct. 23 Q. And you testified yesterday that this
24 opinion is based in part on the projected growth in
25 iHeart's simulcasting business; is that right?
Heritage Reporting Corporation (202) 628-4888 2433
1 A. So that was one of the contributing factors
2 to my explanation about why digital is becoming
3 increasingly important at iHeart Media.
4 Q. Let's turn to the slide that you showed us
5 yesterday that discussed this point.
6 Chris, if you could pull that up.
7 Professor, do you see this slide on your
8 screen?
9 A. Yes, I do. 10 Q. And this is a slide that you discussed
11 yesterday, right? 12 A. That's correct. 13 Q. Now -- and here you say NAB is wrong about
14 simulcasting, which is on the rise, correct?
15 A. That's correct. 16 Q. I'd like to focus your attention on the
17 chart that is below that, the bar graph, rather. The
18 digital revenues represented in this chart include
19 more than just simulcasting revenues, do they not?
20 A. So the way that iHeart Media reports digital
21 is reported together. If you want to look at the
22 simulcasting numbers, they were in those spreadsheets
23 that I think were entered into evidence yesterday.
24 Q. Correct. But I'm just asking you about this
25 chart. This chart does not just report simulcasting
Heritage Reporting Corporation (202) 628-4888 2434
1 revenues; it reports all of iHeart's digital
2 revenues, correct?
3 A. No, that's exactly right. It's reporting
4 digital revenues.
5 Q. Correct. So it includes revenues from
6 iHeart's subscription on-demand services, right?
7 A. That's correct.
8 Q. And it includes revenues from podcasts?
9 A. Yes, it does. It's just the way it's
10 reported, these aren't broken out as categories.
11 Q. It also includes other digital revenues
12 besides revenues from streaming, correct?
13 A. Yes, it does. 14 Q. And so this chart doesn't actually show that
15 simulcast is on the rise or is expected to be on the
16 rise; isn't that right? 17 A. So this shows the growth in digital media.
18 For the rise in simulcasting, I would point you to
19 the spreadsheet which showed the increase in
20 simulcasting that was entered into evidence
21 yesterday. 22 Q. Correct. But the chart that you showed us
23 yesterday, which is here on the screen, does not show
24 that, correct? 25 A. So this particular chart, no, that's
Heritage Reporting Corporation (202) 628-4888 2435
1 associated with the increase in digital revenues.
2 Q. So it's true, is it not that your testimony
3 yesterday featured future projections of iHeart's
4 growth, correct?
5 A. Yes, as in this chart, and there were other
6 charts that were estimated figures. There were also
7 actual figures such as the data which documented the
8 increase in simulcasting.
9 Q. Okay. So rather than looking at estimates
10 and predictions, let's look at iHeart's actual
11 financial performance as reported in your own
12 testimony. 13 So if we could pull up Appendix 14 of your
14 written direct testimony. Do you recognize this as
15 Appendix 14 of your written direct testimony,
16 Professor? 17 A. Yes, I do. I'm just trying to get up my --
18 it up on my screen but, yes, I do recognize that.
19 Q. And you rely on this iHeart revenue data to
20 make the point that iHeart is well positioned to pay
21 higher royalties, correct? 22 A. So I analyze the economic trends, which --
23 which influence iHeart's performance, and I look at
24 this data as -- as evidence of the -- you know, the
25 financial health of iHeart in the way which reflects
Heritage Reporting Corporation (202) 628-4888 2436
1 these trends.
2 Q. Okay. I'd like to focus on the -- the
3 revenue figures -- figures from 2016 to -- to the 00
4 the most recently reported. You would agree,
5 wouldn't you, that iHeart's revenues have remained
6 pretty static since 2016, right?
7 A. Yes, that's what I reported yesterday, I
8 think. You know, there has been miniscule percentage
9 shift and all the growths come from the digital
10 sector. 11 Q. And iHeart actually made less revenue in
12 2017 than in 2016, right? 13 A. So iHeart Media did, but there was this
14 growth I just documented in the digital segment.
15 Q. You understand, do you not, Professor
16 Tucker, that iHeart filed for bankruptcy in 2018 and
17 only last year came out of bankruptcy?
18 A. Yes, I do. Indeed, that was something I
19 highlighted in my direct testimony.
20 Q. And you haven't been qualified as a
21 bankruptcy expert in this case, have you?
22 A. No, I have not been qualified as a
23 bankruptcy expert in these proceedings.
24 Q. And so you have no special expertise in the
25 financial analysis of companies emerging from
Heritage Reporting Corporation (202) 628-4888 2437
1 bankruptcy and the factors that make for successful
2 emergence and growth after bankruptcy, do you?
3 A. So I, of course, have an economist's
4 understanding of the effects that removing an
5 incredibly large debt load from a company has on a
6 company emerging from bankruptcy, but I am not a
7 bankruptcy lawyer or -- or technician or anything
8 like that.
9 Q. And so the bulk of the analysis that you
10 presented yesterday was based on iHeart's projected
11 growth through 2022, based on estimates, in the
12 context of a company who only came out of bankruptcy
13 about a year ago; is that right? 14 A. So that's right, though, again, I just want
15 to focus the discussion on the digital segment, which
16 is what I was focused on, and the fact that I also
17 relayed some of the numbers underlying that health of
18 that digital segment. 19 Q. So I understand that you reviewed and
20 analyzed iHeart's financials, but you haven't
21 reviewed the record labels' financials for purposes
22 of your analysis, have you? 23 A. No, though I did read Dr. Waldfogel's report
24 on the general renaissance of the music industry.
25 Q. Right. But you didn't review any record
Heritage Reporting Corporation (202) 628-4888 2438
1 label financials for your assignment, right?
2 MR. WARREN: Objection, asked and answered.
3 THE WITNESS: So, no, I did not --
4 CHIEF JUDGE FEDER: Hold on. Hold on,
5 Professor Tucker.
6 Sustained.
7 BY MR. DAMLE:
8 Q. And so for your assignment you examined the
9 detailed financial situation of only one side of the
10 hypothetical willing buyer and willing seller
11 negotiation; is that right? 12 A. So I was asked to look at whether the
13 services were well positioned to pay, and that's
14 indeed what I looked in -- in at. As I say, I think
15 my corresponding expert on the other side was
16 Dr. Waldfogel. 17 Q. Okay. Next topic. You testified yesterday
18 that broadcasters compete with a wide array of other
19 music delivery platforms, including interactive
20 services like Spotify, right? 21 A. Yes, I did. You know, one of the big
22 focuses of my report is the emergence of these
23 interactive services and the underlying economics
24 behind that. 25 Q. But you're not testifying, are you, that in
Heritage Reporting Corporation (202) 628-4888 2439
1 a willing buyer/willing seller transaction,
2 simulcasters would necessarily pay the same royalty
3 rate as Spotify, merely because they're competitors,
4 correct?
5 A. No. My testimony is that Spotify and
6 services like Spotify pose a huge challenge to and
7 competitive threat to simulcasters. And that's why
8 they're relevant.
9 Q. And there are other economic considerations
10 that might lead competitor streaming services to pay
11 different royalty rates in a free market; wouldn't
12 you agree? 13 A. Can you repeat the question? I'm sorry.
14 Q. Sure. There are economic considerations
15 that might lead competitor streaming services to pay
16 different royalty rates in a free market? Wouldn't
17 you agree? 18 A. So one of the things I go into -- yes. One
19 of the things I go into in my report is, for example,
20 that a service like Spotify which has -- you know,
21 has a whole system for upgrading users, for example,
22 you might expect to see a different contract for a
23 service like that. 24 Q. And you're referring there to upselling,
25 correct?
Heritage Reporting Corporation (202) 628-4888 2440
1 A. Yes, the upselling. I'm just giving you an
2 example from my report.
3 Q. Right. But it -- it's just one example of a
4 consideration that might lead to different rates for
5 even competitor streaming services, correct?
6 A. So that is the example in my report, yes.
7 Q. Okay. So you would agree that in an
8 unregulated market, license agreements between record
9 labels and webcasters would account for significant
10 differences between non-interactive webcasting
11 services, right? 12 A. So I think here -- so I don't know if you're
13 referring to my written direct testimony, which you
14 quoted in the opening. And I think that --
15 Q. I'm just asking a question.
16 A. Okay, great, because it seemed like you were
17 echoing the language. But, you know, in my report I
18 talk, for example, so -- repeat the question. I was
19 getting distracted because I thought we were
20 referring to that paragraph in my report you used in
21 the opening. 22 Q. I'm asking you a question. I'll do it
23 again. 24 You would agree that in an unregulated
25 market license, agreements between record labels and
Heritage Reporting Corporation (202) 628-4888 2441
1 webcasters would account for significant differences
2 between non-interactive webcasting services, right?
3 A. Yes, I give the example of the Spotify, yes.
4 Q. And there are a number of important
5 considerations that the negotiating parties would
6 consider in setting the rate to apply for a given
7 service, right?
8 A. Yes, of course, there would be
9 considerations as there would be in any negotiation.
10 Q. And those considerations could include
11 important economic differences between
12 non-interactive services, right? 13 A. So if these economic differences affected
14 underlying willingness to pay, yes, potentially.
15 Q. And they would include significant
16 competitive differences between non-interactive
17 services too, right? 18 A. In that underlying willingness to pay will
19 reflect something about the competitive condition,
20 then that is true. 21 Q. And the parties in a hypothetical
22 negotiation would consider significant programming
23 differences between non-interactive services, right?
24 A. So we've now gone to programming services,
25 and, you know, I gave the example yesterday that if
Heritage Reporting Corporation (202) 628-4888 2442
1 like the public radio, you tend to play a very
2 diffuse set of music, then potentially that could
3 enter into a negotiation in that way.
4 Q. Those considerations could also include how
5 different services promote the labels' other streams
6 of revenue, right?
7 A. So it's certainly the case that services --
8 you know, this is something else I talk about in my
9 report. I expect any service would have different,
10 you know, upselling ability, but my understanding is,
11 is that the statutory license is not going to be able
12 to account for whether or not a service is as good,
13 say, as a Spotify at upgrading -- upgrading users.
14 Q. So you conducted your analysis in this
15 proceeding under the understanding that the statutory
16 license cannot account for significant differences
17 between non-interactive webcasting services; is that
18 right? 19 A. So my understanding is, is that the
20 statutory license can't account for the fact that
21 some services might have all the nudging, the sort of
22 free-month trial, you know, they push after a free
23 month, such as Spotify, and that other services
24 perhaps, you know, take a less aggressive approach
25 towards upgrading.
Heritage Reporting Corporation (202) 628-4888 2443
1 Of course, the services that the statutory
2 license can reflect differences in different
3 broadcasters, for example, and I have got a whole
4 section on non-commercial broadcasters. And there's
5 differences there, but, say, something like upselling
6 ability, my understanding is that can't be reflected
7 in a -- in the statutory license.
8 Q. And you testified just a -- just a second
9 ago that upselling ability is an example of a
10 difference in how services might promote labels'
11 other streams of revenue, correct?
12 A. Yes, and that's the one that I -- this idea
13 of funneling is what I focus on in my report.
14 Q. And so your view is that the statutory
15 license here cannot account for significant
16 differences in how different non-interactive
17 webcasting services promote the labels' other streams
18 of revenue; is that right? 19 A. No, it's simply that it can't reflect, say,
20 the nuances of the -- say, that we found in the
21 Spotify -- the Spotify -- Spotify contract, which is
22 a very long contract and has all these different
23 provisions to basically incentivize upselling.
24 Q. But you -- you viewed it as a limitation
25 inherent in the statutory license that the statutory
Heritage Reporting Corporation (202) 628-4888 2444
1 license cannot account for significant differences
2 between non-interactive webcasting services, didn't
3 you?
4 A. So it is certainly something I want -- you
5 know, my understanding is, is that if the Judges --
6 that it is of course possible for a service, if they
7 prove to be very good upselling, to then negotiate a
8 deal which looks more like Spotify's outside of the
9 license. 10 My understanding is, is that, you know,
11 something like Spotify's license would be impossible
12 simply because not all broadcast, commercial
13 broadcasters, for example, have interactive tiers.
14 JUDGE STRICKLER: Excuse me -- excuse me,
15 counsel. 16 MR. DAMLE: Yes. 17 JUDGE STRICKLER: Professor, this -- this
18 harkens back to a conversation we had yesterday about
19 the difference with between penalties and incentives.
20 Do you recall as to whether or not there are
21 rates in the agreement between -- agreements between
22 Spotify and any of the majors in which there's a rate
23 established after the incentive period has proved
24 futile -- and I think I used the word yesterday --
25 and listeners were -- there was a bulk of listeners
Heritage Reporting Corporation (202) 628-4888 2445
1 who were intransigent with regard to being funneled?
2 MR. WARREN: Your Honor, if I may, I believe
3 we are in public session. So before the witness
4 answers that question, it may be prudent to lock the
5 courtroom.
6 JUDGE STRICKLER: I was trying to avoid it,
7 but I'll -- I'll defer to Judge Feder. I'm certainly
8 happy to lock it, if that's helpful.
9 CHIEF JUDGE FEDER: We will go into public
10 session for probably five to ten minutes. Do you
11 think that will be sufficient amount of time, Judge
12 Strickler? 13 JUDGE STRICKLER: Really depends on the
14 answers, but if we go non-public five to ten, and
15 we'll see what happens from there, I guess.
16 CHIEF JUDGE FEDER: Okay. Will the host
17 please clear the virtual hearing room.
18 MR. SACK: Thank you, Your Honor. Please
19 stand by. As a question, Your Honor, if you don't
20 mind, are the Pandora attendees allowed to stay in
21 session? 22 CHIEF JUDGE FEDER: Are we going to be
23 getting into -- I think we're getting into matters
24 concerning Spotify, so, no, they will have to leave
25 the room.
Heritage Reporting Corporation (202) 628-4888 2446
1 MR. SACK: Thank you, Your Honor. Checking
2 now. We are beginning to clear the room now.
3 If you're an attendee in the Zoom meeting
4 who is not allowed to attend restricted session,
5 please leave the session by clicking the red "leave"
6 button on the bottom of the right-hand side of your
7 screen or click the "X" at the top right-hand side.
8 Your counsel will inform you when you are allowed to
9 return to the proceeding. 10 Please stand by, Your Honors and counsel,
11 while we work to clear the room. 12 (Whereupon, the trial proceeded in
13 confidential session.) 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2449
1 O P E N S E S S I O N
2 MR. SACK: Your Honor, the room is unlocked
3 and the stream is live.
4 CHIEF JUDGE FEDER: Thank you, Mr. Sack.
5 We are back in open session. Mr. Damle, you
6 -- you may proceed.
7 BY MR. DAMLE:
8 Q. You viewed it as a limitation inherent in
9 the statutory license that the rates under that
10 statutory license cannot account for significant
11 differences between non-interactive webcasting
12 services; that was your testimony, correct?
13 A. So that is the quote you pulled out in my --
14 in your opening from my direct testimony, but, you
15 know, I've taken the chance in my direct examination
16 to explain the context of that quote.
17 Q. That is your testimony, correct? I did read
18 it correctly? 19 MR. WARREN: Objection. Objection. This
20 question has now been asked three or four times, and
21 the witness has answered it the same number of times.
22 CHIEF JUDGE FEDER: It has been asked three
23 or four times. I'm not sure the witness has actually
24 answered the question. So I will -- I will allow it.
25 Overruled.
Heritage Reporting Corporation (202) 628-4888 2450
1 THE WITNESS: Yes, you've read the sentence
2 correctly from my written direct testimony.
3 BY MR. DAMLE:
4 Q. Okay. With that, I -- I am done.
5 CHIEF JUDGE FEDER: Thank you, Mr. Damle.
6 Can you please turn off your video feed.
7 And, Mr. Cunningham, you may turn yours on, and you
8 may proceed with your cross-examination.
9 CROSS-EXAMINATION
10 BY MR. CUNNINGHAM: 11 Q. Good morning, Professor Tucker. My name is
12 Blake Cunningham. I'm from King & Spalding and I
13 represent Google in this proceeding.
14 A. Good morning. 15 Q. Now, Professor Tucker, in direct
16 examination, you stated that your written direct
17 testimony focuses on two services, Pandora and iHeart
18 Media, correct? 19 A. That's correct. They account for 85 percent
20 of revenues in the ad-supported tier.
21 Q. And, in particular, you look at whether
22 those two services are well positioned to pay higher
23 royalty rates, right? 24 A. That's correct. 25 Q. Do you know how many different webcasters
Heritage Reporting Corporation (202) 628-4888 2451
1 rely on the Section 114 statutory license?
2 A. I certainly couldn't give you an answer off
3 the top of my head, but there are obviously many
4 others composing that 15 percent outside the
5 85 percent accounted for by those two firms.
6 Q. But would it surprise you --
7 A. 85 percent of revenues.
8 Q. Would it surprise you to find out that there
9 are thousands of statutory webcasters?
10 A. So having looked at the -- say, for example,
11 the -- the non-commercial broadcasters, no, it
12 wouldn't surprise me. 13 Q. It's true, is it not, that you have not
14 sought to analyze whether or not Pandora and iHeart
15 Media are good proxies to represent the rest of the
16 webcasting industry? 17 A. So, no, it's the case, as I say, as an
18 economist it makes sense to me to look at where
19 85 percent of the revenues are coming from, given
20 that we might think of this as a weighted average.
21 Q. Thank you, Professor Tucker, but that wasn't
22 actually my question. My question is, isn't it true
23 that you have not sought to analyze whether or not
24 Pandora and iHeart Media are good proxies to
25 represent the rest of the webcasting industry? You
Heritage Reporting Corporation (202) 628-4888 2452
1 haven't done that analysis, have you?
2 MR. WARREN: Objection, vague.
3 CHIEF JUDGE FEDER: Hold on, Professor.
4 Mr. Cunningham, would you please be a little more
5 specific in your question?
6 BY MR. CUNNINGHAM:
7 Q. I'll ask it a different way. Professor
8 Tucker, although your analysis focuses on Pandora and
9 iHeart Media, you have not taken a position as to
10 whether it would be appropriate for the Judges to
11 treat the characteristics of Pandora and iHeart Media
12 as representative of the entire statutory streaming
13 industry when setting rates, correct?
14 MR. WARREN: Objection, vague.
15 CHIEF JUDGE FEDER: You may answer the
16 question, Professor Tucker. 17 THE WITNESS: So, no, I have not taken a
18 position. I have explained why I thought it was
19 important to look at them, but obviously the Judges
20 will make their own decision. 21 BY MR. CUNNINGHAM: 22 Q. I'd like to talk for a minute about
23 monetization levels for statutory streaming services.
24 Are you familiar with the term "RPM"?
25 A. Yes, I am.
Heritage Reporting Corporation (202) 628-4888 2453
1 Q. And what does RPM stand for?
2 A. So that's the radio analogy of CPM, and off
3 the top of my head, it is the revenue per thousand
4 hours.
5 Q. And would you agree that -- that RPM and the
6 other term that you used, CPM, are metrics commonly
7 used to track monetization levels on
8 advertising-supported businesses?
9 A. I hesitate because, quite honestly, RPM and
10 CPM are old-fashioned ways of thinking about pricing
11 in advertising. But they can be used as a very ad
12 hoc proxy of monetization levels. 13 Q. You used -- you, in fact, used RPM in this
14 case, didn't you? You looked at RPM data for Pandora
15 to analyze Pandora's efficiency in monetizing its
16 content? 17 A. Yes. So I certainly looked at RPM, because
18 that's what Pandora reported. I'm just -- this is my
19 marketing self talking, and just saying that, you
20 know, especially CPM is a very outdated mode of
21 thinking about monetization. I just wanted to say
22 that, but, no, of course, Pandora reports RPM and I
23 looked at those numbers. 24 Q. All right. Since --since RPM is what you
25 used, we'll stick with RPM.
Heritage Reporting Corporation (202) 628-4888 2454
1 Would it be fair to say that in conducting
2 your analysis, you only looked at RPM data for
3 Pandora and not any other services?
4 A. So I looked at the RPM data for Pandora. I
5 also actually had some CPM data, for example, for
6 Cumulus that I think was admitted into evidence
7 yesterday.
8 Q. But to be clear, Professor Tucker, you only
9 looked at RPM data for Pandora and did not compare
10 that against RPM data for any other entity?
11 A. No, Pandora reports its RPM data as part of
12 its financial reporting, so I looked at that. The
13 other data on advertising revenues was reported
14 either as revenue per station for simulcasting data
15 we looked at yesterday, or CPM data. So, no, I
16 didn't have that kind of apples-to-apples comparison
17 in the data I was looking at. 18 Q. And you have not done a quantitative
19 analysis to be able to determine how Pandora's
20 monetization levels compare to any other streaming
21 service, correct? 22 A. So I -- I do -- but I do definitely compare
23 Pandora to interactive services and its monetization
24 levels. Do you mean -- when you say "streaming
25 service," do you mean --
Heritage Reporting Corporation (202) 628-4888 2455
1 Q. I mean --
2 A. -- interactive or non-interactive?
3 Q. -- statutory streaming services.
4 A. Oh, statutory streaming service is no -- I
5 have the Pandora RPM data, but I don't try and
6 benchmark it because I don't have that data reported
7 publicly for the other services.
8 Q. Did you seek to obtain that data for the
9 other services? 10 A. So, yes, as you can see, for the other
11 services, we -- you know, I did the best I have for,
12 say, that simulcasting data and CPM data, and I
13 report what I -- you know, I report that out.
14 Q. But you didn't have the RPM data in order to
15 do an apples-to-apples comparison, as you put it
16 earlier, correct? 17 A. So, no. For example, for iHeart Media or
18 for Cumulus, the way they're reporting out the
19 revenues was different. 20 Q. And isn't it also true that your analysis
21 did not seek to compare monetization levels of iHeart
22 Media with any other statutory webcasters?
23 A. So, no, I did not -- I think my answer would
24 be very similar as before, with the caveat that
25 iHeart Media, unlike Pandora, doesn't actually public
Heritage Reporting Corporation (202) 628-4888 2456
1 RPM data.
2 Q. So your answer is that you didn't have the
3 data to do that analysis, correct?
4 A. So my answer is that iHeart Media, in the
5 way it reports its financials, unlike Pandora,
6 doesn't report RPM data.
7 Q. What about CPM data?
8 A. So, as I mentioned, I remember seeing that
9 for Cumulus. But to be honest, for reasons I can
10 explain, CPM data is less useful. But I can't -- I
11 didn't -- that's not reported either in the way that
12 iHeart Media reports its financials.
13 Q. Okay. So just so the record is clear here,
14 you did not seek to compare iHeart's monetization
15 levels, whether on a CPM basis or on an RPM basis, to
16 the rest of the webcasting industry?
17 A. So, no, my analysis on iHeart Media was, as
18 I said, talking about the various advertising
19 technologies that they embrace and using my knowledge
20 of what drives value in the industry to explain how
21 that matters, but I didn't have any specific numbers.
22 Q. Now, in your report, you discuss various
23 factors as you've mentioned that lead you to believe
24 that Pandora and iHeart Media are well positioned to
25 pay, but some of those factors are circumstances
Heritage Reporting Corporation (202) 628-4888 2457
1 unique to Pandora and iHeart Media, correct?
2 A. Yes. So, for example, the acquisition by
3 Sirius is specific to Pandora. The emergence from
4 bankruptcy is specific to iHeart Media. Some of the
5 other trends, though, you know, are digital trends
6 which are more widespread.
7 Q. Professor Tucker, I'd like to switch topics
8 and -- and discuss briefly the topic of funneling,
9 which I know we -- you've discussed with several
10 other people already. 11 It is your belief, is it not, that since Web
12 IV, there has been a substantial increase in the
13 ability of services to effectively funnel listeners
14 into paid forms of music streaming, correct?
15 A. Yes, that's something I talk about in my
16 direct testimony, where I talk about all the -- all
17 the individualized tracking we have and now other
18 ways we can better measure the effect of doing
19 nudges, and all of these things which are important
20 for monetizing a premium business model.
21 Q. All right, thank you. But you're not
22 offering an opinion regarding whether the upsell
23 potential of statutory streaming services justifies a
24 higher or lower royalty rate in this proceeding, are
25 you?
Heritage Reporting Corporation (202) 628-4888 2458
1 A. So I am -- you know, my -- I think my point
2 is focused on the idea that funneling is important.
3 It's transformed monetization in the industry as a
4 whole and that the rate should not be set so low for
5 the statutory rate as to endanger that process.
6 Q. So, Professor Tucker, I'm not sure that that
7 directly answered my question, so I'm going to -- I'm
8 going to ask the question again and, if possible, I
9 would -- I would appreciate a yes-or-no answer here.
10 You're not offering an opinion regarding
11 whether the upsell potential of statutory streaming
12 services justifies a higher or lower royalty rate,
13 are you? 14 MR. WARREN: Objection, asked and answered.
15 CHIEF JUDGE FEDER: Hold -- hold on,
16 Professor. Overruled. You may answer the question.
17 THE WITNESS: No, I am focused on expressing
18 my worries about what that means for the rate
19 setting, but I'm not using it to recommend a rate.
20 BY MR. CUNNINGHAM: 21 Q. And you're also not taking a position that
22 if the Judges were to continue the current rates as
23 they are today, that it would eliminate incentives
24 for services to migrate users from their free tiers
25 to their paid tiers, correct?
Heritage Reporting Corporation (202) 628-4888 2459
1 A. So, no, I am not taking a position.
2 Instead, I'm giving this as a general thing that as
3 an economist I'm worried about.
4 Q. Professor Tucker, yesterday you were asked
5 how has the rise of streaming impacted digital
6 piracy. And in your response, you characterized the
7 impact of streaming on piracy as "one of the amazing
8 success stories of digitization."
9 Do you recall offering that testimony?
10 A. Yes, I do. Yes. 11 Q. To be clear, nowhere in your written direct
12 testimony or written rebuttal testimony do you offer
13 empirical evidence concerning a decline in music
14 piracy resulting from increased lawful streaming
15 activity, do you? 16 A. No, I don't. I was referring there to the
17 work of John Waldfogel, who submitted a report in
18 this -- this matter, and I think he documents -- I --
19 I can't recall his testimony at this distance, but
20 certainly his book is absolutely wonderful on this
21 point. 22 Q. But -- but just to be clear, that was not
23 part of your written testimony in this case, correct?
24 MR. WARREN: Objection, vague. The -- I
25 don't know if there's any dispute that Professor
Heritage Reporting Corporation (202) 628-4888 2460
1 Tucker did discuss piracy. I'm just not sure what
2 the question is driving at.
3 CHIEF JUDGE FEDER: Mr. Cunningham? Can you
4 clarify your question, please?
5 BY MR. CUNNINGHAM:
6 Q. Professor Tucker, if I could just get a -- a
7 yes or no answer to this so that the record is clear.
8 It's true, is it not, that nowhere in your written
9 direct testimony or written rebuttal testimony do you
10 offer any empirical evidence concerning a decline in
11 music piracy? 12 A. That's not true. 13 Q. So you're testifying that in your written
14 testimony, you did offer empirical evidence
15 concerning a decline in music piracy?
16 MR. WARREN: Objection. She literally just
17 answered that question. 18 CHIEF JUDGE FEDER: Sustained.
19 BY MR. CUNNINGHAM: 20 Q. Professor Tucker, can you point to where in
21 your written testimony you offer empirical evidence
22 concerning a decline in music piracy?
23 A. Right. So this is the evidence in paragraph
24 15, and there, as you know, I point to the trends we
25 see in Appendix 1, and say, gosh, and show the
Heritage Reporting Corporation (202) 628-4888 2461
1 amazing resurgence of revenues in the music industry
2 from the period of piracy towards streaming services.
3 So I would, you know, say that -- just point
4 you to my paragraph 15 in my direct testimony, where
5 I do, indeed, cite empirical evidence.
6 Q. Chris, can we pull up paragraph 15 of the
7 written direct testimony.
8 So, Professor Tucker, where in this
9 paragraph do you cite to empirical evidence
10 concerning -- or do you -- do you list any empirical
11 evidence concerning a decline in piracy?
12 MR. WARREN: Objection. The trial
13 technician should make the footnotes viewable as
14 well. 15 THE WITNESS: Can I point you to my footnote
16 5? 17 BY MR. CUNNINGHAM: 18 Q. Sure. So would you agree, Professor Tucker,
19 that -- that footnote 5 actually concerns a decline
20 in the sales of physical recordings and does not
21 speak to piracy? 22 A. It is completely speaking to the pattern of
23 piracy, which the -- the music industry suffered in
24 this period, which I refer to in the sentence that it
25 is attached to. Physical music got displaced -- or
Heritage Reporting Corporation (202) 628-4888 2462
1 embodiments of physical music that was displaced by
2 piracy, and the -- as, you know, as I was saying,
3 John Waldfogel has written about very, very
4 compellingly, the industry has emerged from that due
5 to the attractiveness of on-demand interactive
6 services. You know, I -- I -- you know, there's a
7 sentence, there's empirical evidence. You know, I --
8 I feel it's quite clear.
9 Q. Professor, let's -- let's also look at
10 Appendix 1 if we can. 11 Chris, can you pull up Appendix 1, which was
12 cited in paragraph 15. So -- and, Chris, can you
13 expand this to show the title of the graph?
14 So, Professor, this shows U.S. recorded
15 music revenues by format, correct?
16 A. That's correct. 17 Q. And none of the revenues tracked on this
18 chart tie to piracy, do they? There's no measure of
19 piracy reflected on the chart? 20 A. So there's no measure of piracy reflected in
21 the chart, but it has been well established in the
22 academic literature that that steep decline we see in
23 recorded music downloads has -- was due to piracy.
24 So it's embodied in that steep decline. We see the
25 sort of peak around 1999 in revenues. Now we have a
Heritage Reporting Corporation (202) 628-4888 2463
1 steep decline, which has been well associated both by
2 Dr. Waldfogel and other authors with piracy, and then
3 we see the beginning of the green shoots of
4 resurgence from 2015 onwards.
5 Q. But there's nothing in this -- in this graph
6 that proves in any way that the resurgence is due to
7 piracy going away, is there?
8 A. So the resurgence is due to the
9 attractiveness of these on-demand services in being
10 able to displace piracy. There's nothing in these
11 raw numbers which have that causal relationship, but
12 as I was saying, Dr. Waldfogel does have a book which
13 does describe this. 14 Q. I'd like to switch gears slightly.
15 Dr. Tucker, when -- would you agree that when
16 discussing trends in the digital music space, your
17 written direct testimony often draws on examples from
18 the interactive music streaming market?
19 A. So when I am talking about shifts in machine
20 learning and personalization, yes, evidently that is
21 what has enabled on-demand streaming to be so
22 successful, and I make that point clearly, especially
23 in when I think of as the affirmative section at the
24 beginning. 25 Q. All right. Let's look at a few quick
Heritage Reporting Corporation (202) 628-4888 2464
1 examples. I know -- I know you've already gone over
2 this with Mr. Larson, so I don't want to belabor the
3 point, but we'll look at a few examples quickly.
4 One of the trends discussed in your written
5 direct testimony is how firms are using digital music
6 as part of their larger digital ecosystems, correct?
7 A. That's correct, yes.
8 Q. Okay. And to illustrate that firms are
9 using streaming as part of their larger ecosystems,
10 you point to Amazon and Apple as examples, correct?
11 A. Yes, though I would definitely include
12 Google in that, and as I did in my direct, I would
13 also include Sirius and Pandora. 14 Q. Okay. But -- but the actual examples that
15 you cite, you actually cite Apple and Amazon as
16 examples in your testimony, correct?
17 A. Yes. Those are the examples I go -- go into
18 in my testimony, yes. 19 Q. And neither Apple nor Amazon offers a
20 non-interactive streaming service, correct?
21 A. No, they don't. They're an example of one
22 of these interactive streaming services, which is
23 using music to draw people into their ecosystem.
24 Q. Now, in your written testimony, you also say
25 that streaming services have become increasingly
Heritage Reporting Corporation (202) 628-4888 2465
1 competitive; is that right? Do you recall that being
2 in your written testimony?
3 A. I remember it mainly -- it's probably both
4 in my direct and my rebuttal. I'm not sure which one
5 you're -- you're referring to.
6 Q. Let me ask it this way or -- or shift to a
7 slightly different question.
8 Is your contention that streaming services
9 are becoming more competitive based, in part, on a
10 belief that Apple and Spotify are facing increased
11 competition in the on-demand streaming market?
12 A. My belief about competition comes from the
13 fact that the process of digitization has enabled
14 these firms to engage in huge product quality
15 competition. So, yes. So -- so there's -- so
16 everything I say about competition is also drawing
17 from the digital trends I mentioned.
18 Q. So -- so just to be clear, because I'm not
19 sure that that squarely addressed part of my
20 question, you would agree, would you not, that Apple
21 Music and Spotify are, in fact, becoming increasingly
22 competitive with one another, correct?
23 A. Spotify and Apple Music, yes. So there is
24 competition between both of those services.
25 Q. And you would agree that Apple and Spotify
Heritage Reporting Corporation (202) 628-4888 2466
1 are becoming more competitive with other services in
2 the on-demand market as well, correct?
3 A. That is certainly true, though to some
4 extent, those are two services which have pulled
5 away.
6 MR. CUNNINGHAM: Your Honor, I am almost
7 done, but I -- I need to go restricted for the
8 remainder of my questioning, which should only be
9 five minutes. 10 CHIEF JUDGE FEDER: Okay. We will go into
11 restricted session for about five minutes, after
12 which we will take a 15-minute recess and then return
13 in open session for Ms. Ablin's cross-examination.
14 Will the host please close the virtual
15 hearing room. 16 MR. SACK: Thank you, Your Honor. Please
17 stand by. We are beginning to clear the room now.
18 If you are an attendee in the Zoom meeting
19 who is not allowed to attend restricted session,
20 please leave the session by clicking the red "leave"
21 button on the bottom of the right-hand side of your
22 screen or click the "X" at the top right-hand side.
23 Your counsel will inform you when you are allowed to
24 return to the proceeding. 25 Please stand by, Your Honors and counsel,
Heritage Reporting Corporation (202) 628-4888 2467
1 while we work to clear the room.
2 (Whereupon, the trial proceeded in
3 confidential session.)
4
5
6
7
8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2470
1 O P E N S E S S I O N
2 CHIEF JUDGE FEDER: Will the host please
3 unlock the room and reestablish the public feed.
4 MR. SACK: Thank you, Your Honor. The room
5 is unlocked and the feed is public.
6 CHIEF JUDGE FEDER: Thank you. We are
7 returning to open session.
8 Ms. Ablin, you may begin your
9 cross-examination of Professor Tucker. You are
10 muted, Ms. Ablin. 11 MS. ABLIN: Can you hear me now?
12 CHIEF JUDGE FEDER: Yes, we can. Go ahead.
13 MS. ABLIN: Thank you very much, Your Honor.
14 CROSS-EXAMINATION
15 BY MS. ABLIN: 16 Q. Good afternoon, Professor Tucker.
17 A. Good afternoon. 18 Q. Now, I'm Karyn Ablin, and I'll be asking you
19 some questions on behalf of the NRBNMLC. So you're
20 not offering any opinions on the reasonableness or
21 unreasonableness of SoundExchange's rate proposal for
22 non-commercial licensees, are you?
23 A. So my, my opinion is in what position to
24 afford the proposed rate, but I'm not proffering an
25 independent rate.
Heritage Reporting Corporation (202) 628-4888 2471
1 Q. And you're not giving an opinion on the
2 appropriateness of any particular rates; is that
3 correct?
4 A. So for the -- so no, instead, my opinion is
5 simply the non-commercial broadcasters are well
6 positioned to pay SoundExchange's proposed rate.
7 Q. And you haven't considered the rates that
8 would result from a non-commercial willing
9 buyer/willing seller negotiation in an effectively
10 competitive market, have you? 11 A. So, no, that -- that is not something I've
12 done. That's something other experts have done.
13 Q. And you're not aware of any non-commercial
14 webcasters who have agreed to the current rate
15 structure; is that right? 16 A. To the proposed change in -- change in the
17 non-commercial rate structure that was proposed by
18 SoundExchange? 19 Q. To the current rate structure.
20 A. So in my evidence, you know, I list
21 broadcast -- religious broadcasters who are paying
22 the current rate structure and that for me as an
23 economist implies an agreement. 24 Q. Do you recall telling me at your deposition
25 that you have not looked at this question? We can
Heritage Reporting Corporation (202) 628-4888 2472
1 pull up the page, if you haven't.
2 A. So I'm -- I'm probably now confused by your
3 question and maybe I was confused at your deposition.
4 I certainly have not -- not seen any documents which
5 express an agreement with the proposed rate
6 structure.
7 Evidently of course there were
8 non-commercial broadcasters paying these rates, and,
9 you know, I'm happy to see my deposition testimony,
10 of course. 11 Q. But other -- other than non-commercial
12 broadcasters paying the rates, you're not aware of
13 any agreements where non-commercial broadcasters
14 paying the usage fee component have agreed to those
15 rates in a negotiation; is that correct?
16 MR. WARREN: Objection, vague.
17 CHIEF JUDGE FEDER: She may answer it if
18 she's able. 19 THE WITNESS: So, no, I have not seen any
20 documents which are independent and contain a license
21 agreement between a non-commercial broadcaster and
22 SoundExchange, which, you know -- you know, embody
23 the current rates. 24 BY MS. ABLIN: 25 Q. And you didn't speak with any non-commercial
Heritage Reporting Corporation (202) 628-4888 2473
1 webcasters on any topic in connection with preparing
2 your direct or rebuttal testimony, did you?
3 MR. WARREN: Objection. I'm not sure how
4 our expert witness would've been able to speak with a
5 non-commercial webcaster, given that they would have
6 been represented by counsel in this proceeding.
7 CHIEF JUDGE FEDER: You may answer the
8 question.
9 THE WITNESS: No, I didn't.
10 BY MS. ABLIN: 11 Q. And in preparing your testimony, you also
12 didn't speak with any record companies regarding the
13 rates that they would be willing to accept from any
14 non-commercial entities, did you? 15 A. No, I didn't conduct any interviews with
16 record company executives. 17 Q. And you don't consider yourself an expert on
18 the differences in the structure and operations of
19 for-profit versus nonprofit companies, do you?
20 A. So I am not a professor of operations. I'm
21 a professor of economics and management. So I
22 wouldn't go to me for operational guidelines.
23 Q. So -- so I take it that's a no?
24 A. No, I have not got experience as a COO.
25 Q. And you don't -- you don't offer opinions on
Heritage Reporting Corporation (202) 628-4888 2474
1 how non-commercial webcasters would approach a
2 willing buyer/willing seller rate negotiation, do
3 you?
4 A. I'm so sorry, can you repeat the question?
5 Q. You don't offer opinions on how
6 non-commercial webcasters would approach a willing
7 buyer/willing seller negotiation, do you?
8 A. No. My -- my testimony is focused on the
9 ability to pay and rebutting some of your experts'
10 testimony. 11 Q. And you don't consider yourself an industry
12 expert on non-commercial radio simulcast programming
13 content, do you? 14 A. No, I'm an economist. I'm not someone who
15 does programming of content. 16 Q. And you did not perform any analysis in your
17 testimony regarding the inherent value of one genre
18 of music versus another, did you? 19 A. No. In my testimony, I didn't do any
20 measurement of the value of different genres of
21 music. 22 Q. Now, you testified during your direct
23 examination that NPR-affiliated stations use limited
24 amounts of music. Do you recall that?
25 A. Yes, I do.
Heritage Reporting Corporation (202) 628-4888 2475
1 Q. And are you aware that there are
2 NPR-affiliated radio stations that are
3 music-intensive?
4 A. So, yes, there is certainly a variety across
5 the NPR family.
6 Q. And you're also aware, I take it, that there
7 are non-commercial religious radio stations in the
8 U.S. that are talk and teaching intensive; is that
9 right? 10 A. Yes, there are. You know, there's --
11 there's two extremes, right? There's something like
12 Air1, which is very music-focused, and then of course
13 religious broadcasters who are focused mainly on
14 preaching. 15 Q. And there is a range across that spectrum
16 among religious radio stations, correct?
17 A. So yes, there is, and that is one of the
18 great -- one of the things which you see in the way
19 the current discount structure is -- is structured is
20 that it does give, as you know, this discount for
21 radio stations that don't end up using that many
22 tuning hours of -- of music. 23 Q. You have not attempted to quantify how many
24 music-intensive NPR stations there are, have you?
25 MR. WARREN: Objection, vague.
Heritage Reporting Corporation (202) 628-4888 2476
1 CHIEF JUDGE FEDER: No, I don't find that
2 vague. You may answer the question.
3 THE WITNESS: No, I have not quantified the
4 -- the range of music on different NPR stations.
5 BY MS. ABLIN:
6 Q. And you also have not attempted to quantify
7 how many talk-intensive or mixed format
8 non-commercial religious radio stations there are,
9 have you? 10 A. The -- no, the focus of my direct and
11 rebuttal testimony was on the -- the broadcasters who
12 pay for the excess tuning hours who, therefore, are
13 music-intensive. 14 Q. And you did not attempt to quantify any
15 differences in music intensity between NPR-affiliated
16 stations and non-commercial religious stations, did
17 you? 18 A. So, no, it's not the case that -- as you
19 know, the -- the proposal came in very recently based
20 on the NPR agreement, and I have not looked at the
21 range of music and the precise distribution, and I
22 have not had data on the NPR stations.
23 Instead, I am speaking as someone who has
24 listened to many NPR stations and has had that
25 experience but it's from that experience, not from
Heritage Reporting Corporation (202) 628-4888 2477
1 data.
2 Q. And at the time we spoke at your deposition
3 last February, at least, you had not listened to
4 religious radio stations for at least the last 15
5 years or so; is that -- that about right?
6 A. Yes. So I mentioned that I used to listen
7 to them when I was a Ph.D. student. But since I
8 found a church in Boston, I haven't listened to them.
9 Q. And in your direct testimony, you made a
10 number of assertions about trends that apply to the
11 webcasting market. Do you recall that?
12 A. So you're talking about the digital
13 economics trends that I highlight?
14 Q. Yes. 15 A. Yes. I discuss those digital trends in
16 detail. 17 Q. And one of the trends that you discussed was
18 the increased adoption of personalized interactive
19 channels; is that right? 20 A. That's exactly right. One of the things I
21 talk about is the renaissance due to this -- the
22 emergence of interactive stations since Web IV.
23 Q. But you're not aware of any non-commercial
24 broadcasters that offer personalized or interactive
25 channels, are you?
Heritage Reporting Corporation (202) 628-4888 2478
1 A. So I certainly know -- I'm sorry. I'm not
2 going to be able to remember them, but there are
3 services which are trying to echo some degree of
4 interactivity through religious music, especially,
5 you know, I've seen them just because they're
6 targeted towards parents who want to ensure their
7 children listen to appropriate music.
8 I can't remember them though now. And
9 evidently EMF, who we have been talking about a lot,
10 they are doing simulcasting. 11 Q. Right. So do you recall me asking you this
12 question at your deposition, whether you're aware of
13 non-commercial broadcasters that offer personalized
14 channels? 15 A. Yes, and I probably said no then, and since
16 then because I've been stuck at home like many people
17 and looking for parental activities for my children,
18 I think my knowledge may have changed. But as I say,
19 I can't even remember them right now, so I don't want
20 to testify to them. 21 Q. But I'm talking about simulcasting,
22 Professor Tucker. 23 A. I'm sorry. I thought you were talking about
24 the interactive services. I misunderstood your
25 question.
Heritage Reporting Corporation (202) 628-4888 2479
1 Q. No. So let me -- let me ask it again.
2 You're not aware of any non-commercial broadcasters
3 who engage in simulcasting that offer personalized or
4 interactive channels, correct?
5 A. So no. And the services I was just
6 mentioning are focused on interactivity. They don't
7 do simulcasting as well.
8 Q. And you also discussed the increased use of
9 ad-supported services to funnel listeners to premium
10 subscription services in your testimony. Do you
11 recall that? 12 A. Yes, I do. 13 Q. But, again, you're not aware of any
14 non-commercial broadcasters who offer premium
15 services, are you? 16 A. So no, I'm not. 17 Q. And you're not aware of any non-commercial
18 broadcasters that engage in programmatic advertising,
19 are you? 20 A. I'm hesitating just because I think I was on
21 a website where I saw a few Google display ads being
22 pulled in, which was non-commercial. But certainly
23 I'm happy to testify that, for example, the most
24 popular EMF stations don't have programmatic
25 advertising.
Heritage Reporting Corporation (202) 628-4888 2480
1 Q. And, in fact, the holders of -- are you
2 aware that the holders of a non-commercial broadcast
3 license are not allowed to advertise in their
4 programming?
5 A. Well, then that must be -- then that -- then
6 that means what I thought was a religious broadcaster
7 is not and, no, so that makes sense. That's one of
8 the reasons why it would be absence, for example,
9 from the EMF web pages that I looked at, the EMF
10 station web pages that I've looked at.
11 Q. And you're not aware of any non-commercial
12 webcasters that have self-service advertising
13 platforms, are you? 14 A. No, I'm not. 15 MS. ABLIN: Your Honors, my next set of
16 questions gets into one of Professor Tucker's
17 appendices that includes restricted session. And
18 while not all of my questions may involve it, because
19 I don't know how some of these will be answered, I'd
20 request that we go into restricted session.
21 I estimate that we'll be in it for about 20
22 minutes. 23 CHIEF JUDGE FEDER: Okay. We will go into
24 restricted session for approximately 20 minutes.
25 Will the host please clear the virtual hearing room.
Heritage Reporting Corporation (202) 628-4888 2481
1 MR. SACK: Please stand by, Your Honor. We
2 are beginning to clear the room now.
3 If you are an attendee in the Zoom meeting
4 who is not allowed to attend restricted session,
5 please leave the session by clicking the red "leave"
6 button on the bottom right-hand of your screen or
7 click the "X" on the top right-hand side.
8 Your counsel will inform you when you're
9 allowed to return to the proceeding. Please stand
10 by, Your Honors, and counsel, while we clear the
11 room. 12 (Whereupon, the trial proceeded in
13 confidential session.) 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2497
1 O P E N S E S S I O N
2 CHIEF JUDGE FEDER: Thank you, Mr. Sack. We
3 are back in open session. And you may continue your
4 cross-examination, Ms. Ablin.
5 MS. ABLIN: Thank you, Your Honor.
6 BY MS. ABLIN:
7 Q. Professor Tucker, you -- still sticking with
8 your top 5 analysis, but I'm going to now ask you
9 some general questions that hopefully will not elicit
10 a response where you need to identify any of them by
11 name. 12 You did not review the finances of any other
13 non-commercial licensees, apart from the top five as
14 part of the analyses you present in your testimony,
15 correct? 16 A. No. As I said, I looked at it after my
17 deposition but not as part of my testimony.
18 Q. And you did not study the finances of any
19 non-commercial entities whose sole operation is to
20 provide webcasting programming as part of your
21 testimony, did you? 22 A. No, I didn't identify any examples of any
23 broadcasters who were just doing simulcasting.
24 Instead the -- the nonprofits I identified all had
25 both radio, terrestrial radio and simulcasting.
Heritage Reporting Corporation (202) 628-4888 2498
1 Q. Okay. So you didn't look at any
2 non-commercial webcasters whose solely webcast in
3 your analyses presented, correct?
4 A. So I certainly didn't explicitly call them
5 out. They may have been in my data but I didn't use
6 them as an example in my testimony.
7 Q. So you don't know the amount of annual
8 revenues of the average non-commercial entity whose
9 only operation is webcasting, do you?
10 A. That is correct, I don't know that.
11 Q. And so you didn't consider in your testimony
12 whether those entities would be profitable or
13 unprofitable -- whether they are unprofitable or
14 profitable, correct? 15 A. No, though I would just point that the --
16 that they would be in the category of non-commercial
17 broadcaster that is paying the minimum fee. I do not
18 recall any examples of any such in my -- in the top
19 20 that I looked at. But they -- you know, they
20 would be paying the minimum fee, but that's what I
21 can say about them. 22 Q. But, again, your -- your analysis is not of
23 the top 20, it's only of the top five, correct, in
24 your -- in your testimony? 25 A. So you're right. In my direct testimony, I
Heritage Reporting Corporation (202) 628-4888 2499
1 only list the finances of the top five. Having
2 looked through the top 20, my recollection is none of
3 them is simulcast only, but that's not in my written
4 testimony.
5 Q. I'd like you to take a look at your written
6 rebuttal testimony, page -- it's page 70, paragraph
7 128. And let me know when you're there.
8 A. Thank you. I am there.
9 Q. And this is a section where you discuss
10 discounts that various corporations offer to
11 nonprofits; is that right? 12 A. Yes. This is where I discuss the contention
13 put forward by Dr. Steinberg and Dr. Cordes that
14 nonprofits receive discounts and that should be
15 important here. 16 Q. And neither you nor anyone working on your
17 half reviewed additional discounts that you did not
18 discuss in your testimony at the time you submitted
19 your testimony, correct? 20 A. So these are certainly examples I cited in
21 my testimony. I may have come across some since, of
22 course, because my husband works for a nonprofit but
23 these are the ones that were in my testimony.
24 Q. And you state in paragraph 128 that -- let's
25 talk about Microsoft for a moment. So you state that
Heritage Reporting Corporation (202) 628-4888 2500
1 Microsoft offers discounts for nonprofit
2 organizations that vary with the size of the
3 organization, with larger discounts for smaller
4 organizations.
5 Do you see that?
6 A. Yes, I do.
7 Q. And to support that point, you point to
8 Microsoft's Office 365 Business Premium product,
9 which you say is offered for $3 per-user per month
10 for small and mid-sized nonprofits, whereas the
11 Office 365 Nonprofit E3 product is offered for $4.50
12 per-user per month for large nonprofits.
13 Do you see that? 14 A. Yes, I do. 15 Q. But, in fact, Office 365 Business Premium
16 and Office 365 Nonprofit E3 are different products,
17 are they not? 18 A. Yes. They're products targeted at different
19 segments. One is targeted at large nonprofit
20 segment, one is targeted at smaller nonprofits.
21 Q. And the more expensive product offers more
22 robust features, correct? 23 A. So, you know, I have not reviewed the
24 features recently, but certainly it would be a
25 product given its target at large -- at large
Heritage Reporting Corporation (202) 628-4888 2501
1 nonprofits which is appropriate for an organization
2 which is large, which means it's got a different set
3 of technical -- technical requirements.
4 Q. Okay. Well, let's take a look at the web
5 pages that you cite in connection with this
6 paragraph. So we're displaying right now the web
7 page from the Microsoft Large Nonprofits web page
8 that talks about the -- the E3 product.
9 Do you see that? 10 A. Yes, I do. 11 Q. And I will ask my assistant to scroll down
12 to page 5 -- well, 5 of this, to just get you to
13 verify, if you can see this, that it offers unlimited
14 personal cloud storage, correct? 15 A. So, yes, it does. Can I just --
16 MR. WARREN: Objection, Your Honor. I'm not
17 sure what this document is. 18 CHIEF JUDGE FEDER: Ms. Ablin?
19 MS. ABLIN: Your Honor, this is just a
20 printout of the web page that Professor Tucker cited
21 in her testimony when she was talking about the
22 Microsoft discounts. That's all. 23 MR. WARREN: It's not clear to me that this
24 was at any point identified as an exhibit. And if
25 that's the case, then I don't think it's -- it should
Heritage Reporting Corporation (202) 628-4888 2502
1 be permissible for her to ask questions about it.
2 MS. ABLIN: Your Honor, I would -- I'm
3 sorry.
4 CHIEF JUDGE FEDER: Has -- has this document
5 been marked as an exhibit?
6 MS. ABLIN: So I would say -- offer two
7 points to that. Number 1, yes, it has. We're using
8 a more legible copy of it, but it has been identified
9 as an exhibit, but, Number 2, I'm not seeking to
10 admit it. I'm just seeking to use it for impeachment
11 purposes here, which does not require advance
12 disclosure. 13 MR. WARREN: Your Honor, if there is a copy
14 of this document that is in evidence, I feel like
15 that copy ought to be utilized for this line of
16 questioning. I don't see why -- I would be nervous
17 about a rule that just allows parties to supplant
18 exhibits with other copies of exhibits without any
19 disclosure to the other parties in advance.
20 CHIEF JUDGE FEDER: Can you pull up the
21 exhibit that is in evidence? 22 MS. ABLIN: Let me find out -- yes. So it
23 is Exhibit 5235. It's -- it actually -- to clarify,
24 this one is not in evidence. It was identified by
25 SoundExchange, who has proposed that it come into
Heritage Reporting Corporation (202) 628-4888 2503
1 evidence.
2 It was objected to, but I can certainly use
3 this copy, Your Honor.
4 CHIEF JUDGE FEDER: Sure. And you're using
5 it for impeachment purposes, you're not offering it
6 for admission, so you may proceed.
7 MS. ABLIN: Thank you, Your Honor.
8 BY MS. ABLIN:
9 Q. So I'll -- I'll go back to my earlier
10 question, which is -- I'll wait until our screen
11 catches up with us. 12 This E3 product talked about in Exhibit 5235
13 offers unlimited personal cloud storage, doesn't it?
14 MR. WARREN: Objection, Your Honor. I don't
15 think this is permissible impeachment. I'm not sure
16 what statement of the witness Ms. Ablin is trying to
17 impeach. 18 CHIEF JUDGE FEDER: Ms. Ablin?
19 MS. ABLIN: Let me find the page. It was
20 just -- I can describe it in general terms. It was
21 just the statement that Microsoft offers larger
22 discounts to smaller entities, and I'm simply trying
23 to establish that the two prices that were quoted
24 were different prices but they were for different
25 products.
Heritage Reporting Corporation (202) 628-4888 2504
1 It was -- they were for different product
2 line-ups.
3 MR. WARREN: But this appears to be an
4 attempt to utilize a document as a substantive
5 exhibit, rather than impeachment. I'm not sure we
6 would necessarily have any problem with that, if we
7 are the ones that offer the document into evidence
8 but I think it should be treated accordingly.
9 CHIEF JUDGE FEDER: Overruled. You may
10 continue. 11 MS. ABLIN: Thank you, Your Honor.
12 BY MS. ABLIN: 13 Q. Professor Tucker, I would just ask you to --
14 if you can confirm that the nonprofit E3 product in
15 this exhibit offers unlimited personal cloud storage
16 according to this exhibit? 17 A. I'm just -- this is page 6. Yes, it -- yes,
18 it certainly does. I just want to note that the
19 document does say that 365 is available for zero
20 price for small nonprofits at the very top of it.
21 Q. Sure. But we're -- we're talking about the
22 E3 product that you had discussed in your testimony,
23 and it also offers in the bullet below the one we're
24 looking at a 100 gigabyte in-box for e-mail, correct?
25 A. It -- yes, that is exactly what that
Heritage Reporting Corporation (202) 628-4888 2505
1 document says.
2 Q. And we'll just scroll down and talk about
3 one or two more of these. It also offers a corporate
4 video -- I'll wait until we're there -- a corporate
5 video portal for uploading and sharing corporate
6 videos across the company, correct? That's an
7 advertised product offering?
8 MR. WARREN: Objection, Your Honor. I feel
9 like we're stretching the bounds of relevance with
10 this line of questioning. 11 MS. ABLIN: Your Honor, I'm happy to move
12 on. I think I've made the point regarding some
13 features, so we can -- we can advance.
14 CHIEF JUDGE FEDER: Thank you. Please move
15 on. 16 MS. ABLIN: Your Honor, I'll just ask about
17 this before doing it, but Professor Tucker drew a
18 direct comparison between the large nonprofit product
19 and the smaller -- smaller to mid-size nonprofit
20 product called Business Premium. 21 SoundExchange chose to only offer into
22 evidence the large nonprofit page. I would like to
23 show Ms. -- Professor Tucker the related page that
24 she cited the URL for in her testimony, just to draw
25 two comparisons between the two products and then I
Heritage Reporting Corporation (202) 628-4888 2506
1 can move on, if that's acceptable.
2 MR. WARREN: Your Honor, I object to that
3 effort. If Ms. Ablin had identified that document to
4 us in advance, marked it as a reserve exhibit, then
5 that would be one thing, perhaps, but I -- I fear
6 that we're entering into a pattern of bringing things
7 up only for the first time when the witness is on the
8 stand and I don't think that's fair.
9 MS. ABLIN: May I respond, Your Honor?
10 CHIEF JUDGE FEDER: You may respond.
11 MS. ABLIN: Thank you. 12 Again, this is simply -- if you look at
13 Professor Tucker's footnotes, it's an exhibit that
14 she includes the URL for directly in her testimony
15 and she makes an assertion about it in her rebuttal
16 testimony. 17 All we did is print out the URL of a page
18 that she has cited and relied on in connection with
19 her opinions. 20 MR. WARREN: Your Honor, the experts in this
21 case rely on numerous documents that they do not
22 necessarily then -- that do not necessarily then work
23 their way on to the exhibit list for one reason or
24 another, because the participants may think they're
25 not sufficiently relevant or don't actually
Heritage Reporting Corporation (202) 628-4888 2507
1 demonstrate the point.
2 Now, the entire purpose of the exhibit list
3 is to narrow what the parties should be thinking and
4 focusing on so that we don't have to assume that
5 every little document, every little footnote, could
6 be used at trial without any advance notice. So we
7 find this highly objectionable.
8 CHIEF JUDGE FEDER: Ms. Ablin, is this on
9 the exhibit list? 10 MS. ABLIN: This one is not because it is
11 used for impeachment. 12 CHIEF JUDGE FEDER: Okay. And in what way
13 is this impeachment of -- of Professor Tucker's
14 testimony? 15 MS. ABLIN: I believe Professor Tucker was
16 testifying with respect to Microsoft, specifically
17 that larger nonprofits receive smaller discounts than
18 smaller nonprofits, which suggests that the
19 differential prices that she cites, the $3 and the
20 $4.50 are for the same product and I'm simply trying
21 to impeach that statement by showing that they're for
22 different products. 23 MR. WARREN: Your Honor, again, this is a
24 procedural objection. If Ms. Ablin wanted to make
25 that argument, she should have and could have
Heritage Reporting Corporation (202) 628-4888 2508
1 identified this as a reserve exhibit in advance. I
2 do not think that this kind of sandbagging is
3 appropriate.
4 JUDGE STRICKLER: Excuse me, Mr. Warren.
5 You say that she's making an argument. I thought she
6 was making an impeachment.
7 MR. WARREN: Well, I don't think she is. I
8 think she's disagreeing with the substantive point
9 that the witness has made and attempting to show what
10 she considers to be evidence to the contrary.
11 I don't think that's the same thing as
12 impeaching a witness in the sense that, you know,
13 showing that the witness previously said something
14 inconsistent or showing that the witness had lied or
15 something like that. You know, attempting to simply
16 raise evidence on the other side of an issue, I
17 think, stretches the bounds of impeachment far too
18 far. 19 MS. ABLIN: May I respond, Your Honor?
20 CHIEF JUDGE FEDER: Briefly.
21 MS. ABLIN: I believe impeachment is simply
22 a word described as undermining the validity of an
23 opinion. There doesn't have to be a direct
24 credibility issue at issue. It's -- it's simply
25 undermining statements that are made, which I think
Heritage Reporting Corporation (202) 628-4888 2509
1 can be verified by looking at the dictionary.
2 CHIEF JUDGE FEDER: All right. We'll take a
3 brief break. I will consult with my colleagues.
4 (Off-the-record discussion with the Judges,
5 1:39 p.m.-1:42 p.m. EDT)
6 CHIEF JUDGE FEDER: We are back on the
7 record.
8 The document -- the particular use of this
9 document is valid impeachment, and Ms. Ablin may
10 proceed. The objection is overruled.
11 MS. ABLIN: Thank you, Your Honor.
12 BY MS. ABLIN: 13 Q. So, Professor Tucker, we will look at then
14 the small -- I'll wait until our screen catches up --
15 we'll look at these small nonprofits Business Premium
16 product that you also discussed. 17 Do you see that displayed on your screen?
18 A. Yes, I'm assuming that this document you've
19 pulled up is the small one. 20 Q. Yes. If we can just blow that down a little
21 bit. 22 A. This is -- this is the paid version, not the
23 one that's given away to the zero price to small
24 nonprofits; is that right? 25 Q. Correct. This is the one that you talked
Heritage Reporting Corporation (202) 628-4888 2510
1 about in your testimony that you quoted a $3 per-user
2 per month price for.
3 A. Yes.
4 Q. Okay.
5 A. In my testimony, I mention the two different
6 product names and this is the Office 365 Nonprofit
7 Business Premium, which is a distinct -- you know,
8 and then I distinguished with the other product and
9 its different name. 10 Q. Yes. And Business Premium does not offer
11 unlimited personal cloud storage, does it?
12 MR. WARREN: Objection, Your Honor. At the
13 risk of attempting to revisit an issue you just
14 decided, I'd like to raise a new basis for my
15 objection, which is 351.10G, and that rule states
16 that new exhibits used during cross-examination "can
17 be used solely to impeach the witness' direct
18 testimony." 19 Ms. Ablin has specifically pointed out that
20 this issue arose for the first time in Ms. Tucker's
21 rebuttal testimony. For that reason, and on that
22 basis, I would move to strike the entirety of this
23 discussion about this document. 24 CHIEF JUDGE FEDER: Ms. Ablin?
25 MS. ABLIN: Your Honor, Professor Tucker
Heritage Reporting Corporation (202) 628-4888 2511
1 discussed this during her direct examination. She
2 discussed the concept of nonprofit discounts there.
3 And certainly her direct examination would be direct
4 testimony.
5 MR. WARREN: Your Honor, I'm not -- I don't
6 believe that's what the rule means or entails. And I
7 just ask for clarification on that point.
8 JUDGE STRICKLER: The -- I just point out
9 that section 351.11 about rebuttal proceedings says
10 that the proceedings shall be in the same form and
11 manner as the written -- well, the statement, the
12 rebuttal statement shall be in the same form and
13 manner as the written direct statement and it also
14 says the proceedings in the rebuttal stage shall
15 follow the -- well, the schedule ordered by the
16 copyright royalty judges. 17 CHIEF JUDGE FEDER: Thank you for pointing
18 that out, Judge Strickler. 19 It's one of the peculiarities of our rules
20 that the whole notion of rebuttal is kind of drafted
21 as an afterthought and contemplated carrying out
22 direct and rebuttal proceedings as -- as separate
23 hearings, which is a process that was abandoned
24 before I ever came on the bench. 25 We will apply the same rules for direct and
Heritage Reporting Corporation (202) 628-4888 2512
1 rebuttal. Therefore, this is valid impeachment and
2 make -- Ms. Ablin may proceed.
3 MR. WARREN: Thank you, Your Honor.
4 MS. ABLIN: Thank you, Your Honor.
5 BY MS. ABLIN:
6 Q. So, Professor Tucker, just to refresh you,
7 I'll ask that question again.
8 Microsoft's Business Premium product does
9 not offer unlimited personal cloud storage, does it?
10 A. So, no, it is a product which is focused on
11 the -- the small nonprofit sector. It offers -- it
12 focuses, therefore, on the one drive aspect of cloud
13 storage. 14 Though as you see below, they are offering
15 other benefits in the form of, say, on-line videos
16 and so on, which tend to be the most exhaustive types
17 of storage. 18 Q. And this product only offers one terabyte of
19 one drive storage, correct? 20 A. So, yes, as I was saying, this is one
21 terabyte of one drive storage, you know, as well
22 as -- you know, but it does seem to be then also
23 offering additional video storage, you know, at least
24 from a cursory reading. 25 Q. And it -- just one more question on this.
Heritage Reporting Corporation (202) 628-4888 2513
1 It only offers a 50 gigabyte in-box instead of the
2 100 gigabyte in-box that E3 offered, doesn't it?
3 A. So, yes, indeed, it is, as I make clear in
4 my written -- in the rebuttal testimony, these are
5 different products with different names targeted
6 differently at these different segments of
7 nonprofits.
8 Q. And we're going to look at just one more
9 discount and I've got one question on it. So if you
10 could take a look at your discussion of the Slack
11 discount in paragraph 128 of your rebuttal testimony.
12 Just tell me when you're there. 13 A. Yes, I'm there. 14 Q. And you state there that Slack offers
15 nonprofit organizations with 250 or fewer members a
16 free upgrade to its standard plan, while
17 organizations larger than that receive a smaller
18 discount. Do you see that? 19 A. Yes, I do. 20 Q. I'm sorry, did you respond? I did not hear.
21 A. Yes, I see the sentence referring to Slack.
22 Q. And the smaller discount you referred to,
23 sitting here today, do you know how large that
24 discount was? 25 A. So sitting here today, I would have to look
Heritage Reporting Corporation (202) 628-4888 2514
1 at the document for direct reference in footnote 277.
2 Q. Let's just do that very quickly. This is
3 the page for Slack. And do you see on this page that
4 the discount for the larger groups is, in fact,
5 85 percent, correct?
6 A. Yes.
7 Q. Okay. So we'll get off the topic of
8 discounts.
9 You've also claimed that Family Radio's
10 current situation, this came up during your direct
11 examination, is a result of unique circumstances that
12 have been well documented in the popular media; is
13 that right? 14 A. The struggles of Family Radio has
15 experienced, yes. 16 Q. And the sources -- the only sources that you
17 looked at to support your assertion in your testimony
18 were the Internet articles that you cite in the
19 footnote related to this assertion, correct?
20 A. So those are the articles which describe the
21 failure of the Doomsday predictions, yes, which I
22 cite. 23 Q. Those articles refer to a time frame dating
24 back to 2011, correct? 25 A. Those articles are reporting on both the
Heritage Reporting Corporation (202) 628-4888 2515
1 fact that the Doomsday prediction was well-publicized
2 and that it failed and they relate back to the period
3 where it didn't come to pass that there was a
4 Doomsday.
5 Q. And in your testimony, you only consider
6 Family Radio's finances for 2017 and '18, correct?
7 A. So the appendix tables are -- relate to 2017
8 and '18, yes.
9 Q. And you didn't review their finances --
10 Family Radio's finances for any year before 2017,
11 correct? 12 A. Certainly not in -- there's not a table in
13 my testimony. 14 Q. And you didn't present an analysis of
15 financial trends at Family Radio based on its
16 finances over the past decade, did you?
17 A. No, I didn't. I was simply responding to
18 the idea that Family Radio's financial struggles were
19 going to be representative of those of non-commercial
20 broadcasters. 21 Q. And you talked about the NPR/SoundExchange
22 agreement during your direct testimony yesterday. Do
23 you recall that? 24 A. Yes, I did. 25 Q. And you suggested that the government was
Heritage Reporting Corporation (202) 628-4888 2516
1 involved in NPR and that obtaining favorable rates in
2 negotiations with the government is very hard. Do
3 you recall that?
4 A. Yes, I do.
5 Q. And National Public Radio or NPR, I'll call
6 it, is a private nonprofit organization, isn't it?
7 A. So certainly it is, though, of course, the
8 body that was negotiating the agreement on behalf of
9 the NPR stations is more associated with the
10 government. 11 Q. Are you talking about the Corporation For
12 Public Broadcasting? 13 A. Yes. 14 Q. And, in fact, the Corporation For Public
15 Broadcasting also is a private nonprofit
16 organization, isn't it? 17 A. Yes, it is. I was just mentioning that it
18 was more directly related to the government.
19 Q. And neither NPR nor CPB are owned or
20 operated by the federal government, correct?
21 A. So, no, it's not the case that formally
22 either of those organizations are operated by the
23 government. 24 Q. And NPR and CPB are independent of each
25 other, correct?
Heritage Reporting Corporation (202) 628-4888 2517
1 A. So they are independent of each other, and
2 one is a -- yes.
3 Q. And non-commercial radio stations affiliated
4 with NPR also are private nonprofit organizations,
5 aren't they?
6 A. They are -- they are similarly private
7 nonprofit organizations.
8 Q. And they're not owned or operated by the
9 federal government, are they? 10 A. No, they are. As I say, the link to the
11 federal government is higher at the CPB level, but
12 they're certainly all independent private nonprofits.
13 Q. And the federal government itself did not
14 negotiate the agreement between NPR and
15 SoundExchange, did it? 16 A. So the federal government -- the CP -- no,
17 this was done by the umbrella body, which I say is
18 associated with government but is not the federal
19 government, so no, they didn't. 20 Q. Let's take a look at page 78 of your
21 rebuttal testimony. And I just have a few more
22 questions for you and we can all take -- take our
23 lunch break. 24 And are you there, Professor Tucker?
25 A. I am not there. And I apologize. Just
Heritage Reporting Corporation (202) 628-4888 2518
1 repeat the number?
2 Q. Sure, page 78 --
3 A. Yes.
4 Q. -- of your rebuttal testimony. At the very
5 top of the page.
6 A. That's right.
7 Q. So there you criticize Professor Steinberg
8 who pointed to the availability of stable federal
9 government funding to CPB and NPR stations as a
10 reason why NPR fees are higher than what
11 non-commercial religious broadcasters would agree to.
12 Do you see that, your criticism? 13 A. Yes, that was a criticism I made.
14 Dr. Steinberg said that there was an unusual
15 stability in government funding, and I was saying
16 that both the government funding is limited and
17 perhaps not as stable as Dr. Steinberg was saying.
18 Q. And NPR stations themselves, though, don't
19 pay statutory royalties to SoundExchange out of their
20 donations, do they? 21 A. So this is -- as I say, this is negotiated
22 by CPB on behalf of the stations that takes care of
23 this, so, no. 24 Q. And the money, in fact, used to pay for
25 those royalties is -- is money that comes ultimately
Heritage Reporting Corporation (202) 628-4888 2519
1 from the federal government, correct?
2 A. So CPB is certainly more financed by the
3 federal government than any individual NPR station.
4 And that's what I mean when I was saying that it was
5 linked to the government, which is why I talked about
6 negotiating with the government.
7 So I think I agree with you.
8 Q. And you also stated in your criticism that
9 CPB funding is subject to congressional review,
10 correct? 11 A. That is correct. 12 Q. And I take it that's what you meant a minute
13 ago when you said -- you suggested it is less stable;
14 is that right? 15 A. That's right. Any funding which is provided
16 by governments is subject to the political climate of
17 the day. 18 Q. But, in fact, CPB funding is appropriated
19 two years in advance, isn't it? Are you aware of
20 that? 21 A. I don't know the precise details, but I'm
22 happy to believe that if you represent it.
23 Q. And if, in fact, there is a two-year
24 advance, I think we won't take time to look at that
25 here, but if, in fact, there is a two-year advance
Heritage Reporting Corporation (202) 628-4888 2520
1 appropriation, that would insulate that funding to
2 some extent from the immediate effect of a
3 congressional reduction or elimination, wouldn't it?
4 A. It would mean that you would know it was
5 going to happen two years in advance, rather than it
6 happening immediately. Still, you know, you still
7 have potential of going off the cliff though.
8 Q. Okay. Thank you, Professor Tucker. I think
9 I'll end it there. Thank you for your time.
10 CHIEF JUDGE FEDER: Thank you, Ms. Ablin.
11 Mr. Warren, do you have any redirect?
12 MR. WARREN: I have a short redirect. I
13 won't keep the witness for very long, and then we can
14 let her go off to her appointment.
15 CHIEF JUDGE FEDER: So let's -- let's take
16 Fletcher Held down and put Weil up, please. Welcome
17 back, Mr. Larson. 18 MR. LARSON: Thank you, Your Honor.
19 CHIEF JUDGE FEDER: Please proceed.
20 MR. WARREN: Thank you, Your Honor.
21 REDIRECT EXAMINATION
22 BY MR. WARREN: 23 Q. Professor, Mr. Larson asked you some
24 questions about Pandora Decks related to churn. Do
25 you remember that?
Heritage Reporting Corporation (202) 628-4888 2521
1 A. Yes, I do.
2 Q. I'd like to direct your attention to
3 Exhibit 5154. I apologize, are we in restricted
4 session right now?
5 CHIEF JUDGE FEDER: We are not. I don't --
6 hold on. Can the host confirm that? Are we in open
7 or restricted session?
8 MR. SACK: We're in open session, Your
9 Honor. 10 CHIEF JUDGE FEDER: Thank you. Do we need
11 to go in restricted session? 12 MR. WARREN: I'm going to have the Professor
13 look at this document and maybe read from it so I
14 think it would be prudent to do that.
15 CHIEF JUDGE FEDER: Okay. So we will go --
16 is this Pandora information or -- 17 MR. WARREN: It is. 18 CHIEF JUDGE FEDER: So the Pandora
19 participants may remain in the virtual hearing room,
20 but apart from that, I ask the host to clear the
21 virtual hearing room. 22 MR. SACK: Thank you, Your Honor. We're
23 beginning to clear the room now. 24 If you're an attendee in this Zoom meeting
25 who is not allowed to attend restricted session,
Heritage Reporting Corporation (202) 628-4888 2522
1 please leave the session by clicking the red "leave"
2 button on the bottom right-hand side of your screen
3 or click the "X" at the top right-hand side.
4 Your counsel will inform you when you're
5 allowed to return to the proceeding. Please stand
6 by, Your Honors and counsel, while we work to clear
7 the room.
8 (Whereupon, the trial proceeded in
9 confidential session.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2528
1 O P E N S E S S I O N
2 AFTERNOON SESSION
3 (2:04 p.m. EDT)
4 CHIEF JUDGE FEDER: Can we get the public
5 feed back up, please.
6 MR. SACK: The feed is public, Your Honor.
7 CHIEF JUDGE FEDER: Thank you. We are on
8 the record. Good afternoon, Dr. Ford.
9 THE WITNESS: Good afternoon, Judge.
10 CHIEF JUDGE FEDER: And welcome. Would you
11 please raise your right hand. 12 Whereupon-- 13 GEORGE S. FORD,
14 having been first duly sworn, was examined and
15 testified as follows: 16 CHIEF JUDGE FEDER: Thank you. You may
17 proceed, Mr. Trepp. 18 MR. TREPP: Thank you, Your Honor. And,
19 actually, before we get started with Dr. Ford's
20 examination, just one housekeeping evidentiary
21 matter. 22 We'd like to move in Trial Exhibits 5616 and
23 5617, which are Dr. Ford's designated testimony from
24 the Web III proceeding and the SDARS III proceeding.
25 We move those in subject to all of the line-by-line
Heritage Reporting Corporation (202) 628-4888 2529
1 objections that remain, I think, before Your Honors.
2 CHIEF JUDGE FEDER: Ms. Falk?
3 MS. FALK: Your Honor, we don't have
4 objection to those exhibits being moved in, but I
5 note that the hearing testimony has not been appended
6 to those exhibits, so I would expect that
7 SoundExchange would update and file those trial
8 transcripts pursuant to the CRB regulations.
9 CHIEF JUDGE FEDER: Okay. Subject to the
10 line-by-line -- hold on, I need to get this. Subject
11 to the line-by-line objections and appending the
12 hearing testimony, Exhibits 5616 and 5617 are
13 admitted. 14 (SoundExchange Exhibit Numbers 5616 and 5617
15 were received into evidence.) 16 MR. TREPP: Thank you, Your Honor.
17 DIRECT EXAMINATION
18 BY MR. TREPP: 19 Q. So good afternoon, Dr. Ford.
20 A. Good afternoon, Alex. 21 Q. I did not think this moment would ever
22 arrive. 23 A. I was beginning to wonder.
24 Q. Well, before we -- before we get started,
25 and I know you and I have discussed this before, but
Heritage Reporting Corporation (202) 628-4888 2530
1 I want to remind you to ensure that you've closed out
2 of e-mail, completely closed out of all messaging
3 apps, you've turned off your cell phone. And I know
4 you have your written direct or rebuttal testimony in
5 front of you. But just want to confirm that you have
6 closed out of all those apps and turned off your
7 cellular device.
8 A. My cellular device is off. My phone is off
9 and I'm app-free, other than Zoom and Veritext.
10 Q. Excellent. Thank you. 11 So can you begin by telling the Judges about
12 your educational background. 13 A. Yes. I have a Ph.D. in economics from
14 Auburn University. I received that in 1994.
15 Q. And where are you currently employed?
16 A. I am today the president of Applied Economic
17 Studies, a consulting firm, and I'm also the chief
18 economist of the Phoenix Center for Advanced Legal
19 and Economic Public Policy Studies in Washington,
20 D.C. It's a 501(c)(3) nonprofit think tank.
21 Q. And in those roles, have you worked on
22 issues related to intellectual property in the music
23 industry? 24 A. Yes, I've published a few papers in that
25 area and have worked as a consultant as well.
Heritage Reporting Corporation (202) 628-4888 2531
1 Q. And before we get to your papers, do you
2 hold any teaching positions?
3 A. I have taught economics at the MBA level at
4 Samford University, and I'm also presently an adjunct
5 professor at -- at my alma mater, in Auburn
6 University, but I haven't taught yet and I'm -- I'm
7 beginning to wonder how long that might be before --
8 before I get to, at this point.
9 Q. Yeah, understandable. 10 Well, you mentioned publishing some papers.
11 About how many papers have you published?
12 A. I think at last count it was maybe 84,
13 something like that. I've published in -- in
14 economics journals and law journals for -- you know,
15 every year for most of my career. 16 Q. And have you -- have you testified before?
17 A. I've testified in -- in a number of cases.
18 I've testified before this body a number of times, as
19 well as the Canadian equivalent copyright board
20 there. I've testified before state public service
21 commissions and -- and I've been involved in some
22 antitrust cases and other matters.
23 Q. And do you recall what legal proceedings
24 you've testified in? 25 A. SDARS, I think maybe two SDARS proceedings.
Heritage Reporting Corporation (202) 628-4888 2532
1 There's the cable royalty distribution proceeding,
2 which I think was the first one I participated in,
3 and also one or two of the Web proceedings prior to
4 this one, I think.
5 Q. And were you accepted as an expert in those
6 proceedings?
7 A. I was.
8 Q. In what subjects?
9 A. Industrial economics or industrial
10 organization, which is the application of
11 microeconomics to businesses, firms, industries, and
12 regulation and public policy. 13 Q. All right. 14 MR. TREPP: Your Honors, at this time, I'd
15 like to offer Dr. Ford as an expert in industrial
16 economics. 17 CHIEF JUDGE FEDER: Ms. Falk?
18 MS. FALK: No objection.
19 CHIEF JUDGE FEDER: Without objection,
20 Dr. Ford is so qualified. 21 BY MR. TREPP: 22 Q. All right. Mr. Sayres, would you mind
23 bringing up Trial Exhibit 5615, please. Dr. Ford, do
24 you recognize this document? 25 A. I do.
Heritage Reporting Corporation (202) 628-4888 2533
1 Q. What is it?
2 A. It is my written rebuttal testimony in this
3 proceeding.
4 Q. And is it true and correct to the best of
5 your knowledge?
6 A. It is.
7 MR. TREPP: Your Honors, subject to any
8 line-by-line objections currently pending before you,
9 we'd move the admission of Trial Exhibit 5615.
10 MS. FALK: No objection subject to the
11 line-by-line briefing that has already been filed.
12 CHIEF JUDGE FEDER: Without objection, 5615
13 is admitted, subject to the line-by-line objections
14 that the Judges have not yet ruled on.
15 (SoundExchange Exhibit Number 5615 was
16 received into evidence.) 17 BY MR. TREPP: 18 Q. Dr. Ford, how did you become involved in
19 this case? 20 A. I was contacted by SoundExchange's
21 attorneys, Jenner & Block, and asked to do what I
22 have done before in these proceedings, which is to
23 address the question of substitution and promotion
24 between music platforms. 25 Q. And were you asked to review any written
Heritage Reporting Corporation (202) 628-4888 2534
1 direct testimony in connection with your assignment?
2 A. I was asked to look at the testimony that
3 addressed that question specifically, and also to
4 review the economists' filings as to whether those
5 contained any discussion or estimation of promotion
6 effects.
7 Q. Do you recall which service-side fact
8 witness testimony you reviewed in connection with
9 your assignment? 10 A. There were -- there were a few. The main --
11 the main testimony was by Mr. Blatter, Mr. Poleman,
12 Mr. Wheeler, I think Dr. -- I forget -- the name is
13 escaping me, but is it Duncan, I think, is it?
14 Q. And, Dr. Ford, I believe that you said you
15 reviewed the testimony from the service-side
16 economists in this case; is that -- is that correct?
17 A. Yes, I looked over the testimonies of
18 Dr. Wheeler, Orszag, Shapiro, Leonard. Dr. Leonard
19 is who I was thinking of there. 20 Q. And what did you do to analyze the testimony
21 in evidence that you reviewed? 22 A. Well, I first narrowed my attention to the
23 testimony that focused on promotional effects and
24 then reviewed that testimony. I looked at what it
25 said. I looked at the industry data, some of which
Heritage Reporting Corporation (202) 628-4888 2535
1 is included in my testimony, many public sources
2 related to the anecdotes that were provided. I
3 looked at survey evidence that's -- that's typically
4 looked at in these cases about buying interactive
5 services and non-interactive services.
6 And, as I've done before, I took the
7 anecdotes that were provided in the testimony, and,
8 in particular, Mr. Blatter's testimony, and asked to
9 schedule meetings with record label executives who
10 deal with the promotion of the songs in question, and
11 we had teleconferences in which we discussed the
12 promotion of those recordings. 13 Q. Now, Dr. Ford, before we get to a summary of
14 your opinions in the case, I just want to make sure
15 we have our terminology straight. So with that in
16 mind, can you explain what you mean when you use the
17 term "promotion" in your rebuttal testimony?
18 A. Sure. Promotion is a third-party effect to
19 an economic transaction. Substitution is also a
20 third-party effect to an economic transaction. So if
21 a platform plays music, presumably that platform will
22 generate income to the record label, and the play of
23 that music may also drive the sales or listening of
24 the music on other platforms. 25 So there's a direct effect of somebody
Heritage Reporting Corporation (202) 628-4888 2536
1 playing your music, which is their income or the
2 income directly from that platform, and there may be
3 an indirect effect, a third-party effect, where the
4 plays of the platform subject to negotiation actually
5 increases income from other sources.
6 Substitution is the opposite of that. To
7 some extent, all music services are substitutes for
8 one another, simply because they are only 24 hours in
9 a day and you can't listen to more than one song at
10 once, unless you're Chet Atkins. So they are
11 substitutes. 12 And so it's sort of the flip side of the
13 same coin, promotion and substitution. Substitution
14 occurs when the income of your service declines when
15 a platform -- or an income across all your services
16 declines when a particular platform plays your music.
17 Q. Dr. Ford, are you aware of any evidence of
18 substitution in this case? 19 A. I think there's a great deal of -- of
20 discussion on substitution. All the diversion ratio
21 analysis, for example, is based in substitution.
22 Q. And did you review or analyze evidence of
23 that substitution in your written testimony?
24 A. I did not focus on that testimony. That was
25 left to the guys who were hired to do so.
Heritage Reporting Corporation (202) 628-4888 2537
1 Q. All right. Well, why don't we turn to your
2 opinions. Based on your review and just a high
3 level, what opinions did you reach in this matter?
4 A. As I've described in my testimony and in --
5 in prior testimony, this question of promotion is a
6 tricky one. It's very difficult to think about how
7 to quantify it to a level sufficient to aid in the
8 setting of a -- of a statutory rate.
9 It's also complicated by the fact that when
10 you compute promotion, it is not the promotion that
11 you're -- not the promotion of a single label, which
12 will drive a negotiation for a single label between a
13 platform, but the promotional effect on all the
14 labels collectively. 15 And then you have to of course think about
16 what is being promoted. I mean, it used to be record
17 sales and that's pretty much gone now. Significantly
18 diminished, at least. 19 So there's just a lot of complications.
20 There's always an substitution effect that's
21 involved. There could be promotional effects, but
22 noodling those out can be quite -- quite complex.
23 I noticed as well that, that in the
24 testimony that I focused on regarding promotion,
25 there was no proposal for any rate adjustment.
Heritage Reporting Corporation (202) 628-4888 2538
1 Nobody asked for, you know, a 10 percent reduction or
2 whatever it may be. It was just talking about these
3 hit records, basically. But it didn't lead to any
4 particular recommendation.
5 And all the evidence that was presented is
6 quite anecdotal. There was no systematic empirical
7 attempt to quantify the size of any promotional
8 effect or even the presence of a promotional effect.
9 Q. And I notice on the demonstrative here, you
10 say it fails to demonstrate a systematic promotional
11 effect or a systematic relative promotional effect.
12 What do you mean by "relative promotional
13 effect"? 14 A. Well, when you're in -- you're doing a
15 benchmark analysis, your -- the benchmark rate is
16 usually a market rate, which means it has been
17 negotiated, which means it -- embedded in it is an
18 adjustment for promotion and substitution.
19 So when you convert that rate to a -- a
20 statutory rate through various means, whatever is
21 required, if you want to adjust for promotion and
22 substitution, you need to know what the relative
23 effects are. 24 So if -- if the benchmark service promotes a
25 dollar of additional sales and the -- and the
Heritage Reporting Corporation (202) 628-4888 2539
1 statutory service promotes a dollar of additional
2 sales, then there's no adjustment that needs to occur
3 for promotion because it has already been -- been
4 baked in, as the prior decisions have said, to the
5 rate.
6 JUDGE STRICKLER: Professor Ford, good
7 afternoon. This is Judge Strickler. How are you?
8 THE WITNESS: I am good, Judge. How are
9 you? 10 JUDGE STRICKLER: Fine, thank you. I have a
11 question for you. You just made of the note of the
12 fact that promotional and substitution effects are
13 baked in to a benchmark that is utilized in -- in our
14 proceedings or in similar proceedings.
15 Do you have an opinion in your written
16 testimony as to whether or not the promotional and
17 substitution effects are baked in with regard to
18 SoundExchange's other approaches towards valuation or
19 royalty calculation in this case, specifically
20 Professor Willig's Shapley Value approach or his
21 Nash-in-Nash approach? 22 THE WITNESS: That would be a great question
23 for Dr. Willig. I do say, as I mentioned earlier,
24 that the diversion ratio, depending on how you
25 compute it, would be a net effect. Okay?
Heritage Reporting Corporation (202) 628-4888 2540
1 And I can't speak directly to -- to what's
2 been done because I haven't studied it carefully,
3 but, for example, if you were doing econometric
4 analysis on actual data of accounts, then that would
5 represent some sort of net effect. And I suspect
6 when you -- you ask a survey question, depending on
7 the survey question, that it may also include -- it
8 may also involve a net effect.
9 If you ask somebody would you do this if
10 this happened, presumably that person is -- is
11 including all the -- all the relevant factors in its
12 -- in his or her response. So I think it's quite
13 possible that that's true, but I -- I made no opinion
14 in my testimony because I didn't study that issue
15 carefully. 16 JUDGE STRICKLER: I see. Well, with regard
17 to the -- to the potential substitution effect that
18 comes out of the diversion ratios, I understand your
19 point, but how could the promotion effect, if any, or
20 a relative promotion effect, if any, be teased out of
21 what survey respondents say in response to questions
22 about where they would go in the event they didn't
23 have a non-interactive service available to them?
24 THE WITNESS: You know, I think this --
25 that's an interesting question, because it's sort of
Heritage Reporting Corporation (202) 628-4888 2541
1 pointing to the -- measuring promotion and
2 substitution in this case is -- is related mainly to
3 service substitution and promotion, rather than
4 individual songs and things that appears in a lot of
5 this testimony. But if you -- if you had a survey
6 and you -- and you said, you know, what if we
7 eliminated non-interactive services, if it was
8 strongly promotional, somebody would respond: I
9 would be less likely to subscribe to a subscription
10 service or would abandon my subscription service.
11 I mean, that may be a possible
12 interpretation of the response. But, again, I
13 haven't studied this carefully and I haven't studied
14 the specific questions that were asked, but if you
15 say what would you do, then I think that the
16 substitution effect is -- is -- and the promotional
17 effect are kind of both in there, because you might
18 get a very different answer if the promotional effect
19 was very strong for a service versus if it was very
20 weak for a service. But that's --
21 JUDGE STRICKLER: But -- but, in any event,
22 it was -- none of that discussion was in your written
23 testimony, either of the designated written testimony
24 or in your current testimony, correct?
25 THE WITNESS: No, and I'm very reluctant to
Heritage Reporting Corporation (202) 628-4888 2542
1 talk about it because I really just have not worked
2 through all that to give an informed opinion about
3 it. But I did not address that in my testimony.
4 JUDGE STRICKLER: Oh.
5 THE WITNESS: It was rebuttal testimony
6 maybe.
7 JUDGE STRICKLER: Thank you, Dr. Ford.
8 THE WITNESS: Thank you.
9 BY MR. TREPP: 10 Q. And, Dr. Ford, maybe we can turn to the
11 simplified model that you did discuss in your
12 testimony. 13 So I believe you discuss a simple Nash
14 Bargaining Model in your testimony; is that right?
15 A. Yes. 16 Q. And did you mean to propose that the Judges
17 apply a Nash Bargaining Model to set rates in this
18 case? 19 A. No, the model that I presented was not
20 designed to come to some specific rate
21 recommendation. It was -- it was actually a paper
22 for publication, and has been published, trying to
23 explain that the promotion and substitution effects
24 are fully incorporated into market negotiations, and
25 then -- and the paper was specifically talking about
Heritage Reporting Corporation (202) 628-4888 2543
1 the Fair Play -- Fair Play Fair Pay Act, where the
2 music industry is attempting to eliminate the
3 statutory exclusion of terrestrial radio stations
4 from playing or from paying performance royalties.
5 And the argument that the broadcasters
6 typically make is that the legislature should set a
7 zero price because there is promotion. And,
8 basically, the paper says we don't need Congress to
9 set a zero rate, because to whatever extent promotion
10 is present, it will be incorporated into the
11 negotiation. 12 Q. And, Mr. Sayres, maybe we can go to the next
13 slide. 14 Dr. Ford, can you walk the Judges through
15 the simplified Nash Bargaining Model that you
16 discussed in your testimony at a conceptual level,
17 and then we can get into the algebra here?
18 A. Sure, I'll -- I'll try to do it quickly
19 because I think we've done this before. The two
20 parties sit down and negotiate, a record label and a
21 platform. And the record label -- the platform uses
22 the music and makes some amount of money. Here I
23 call it A, okay? In a simple, very simple Nash
24 bargain -- and this is a very simplified model in
25 order to get the thing squeezed into a few terms
Heritage Reporting Corporation (202) 628-4888 2544
1 because we're just trying to illustrate a point --
2 let's say the firm makes an amount A from using the
3 music.
4 In a very simple Nash Bargain, the two
5 parties will split that surplus, which you could
6 think of as gross profit or income, something like
7 that. They split it in half. Equal bargaining
8 power, and it's cut in half. So if it was 100, each
9 party would get 50. 10 The promotion and substitution enters into
11 this thing through an additional term, inside the
12 parentheses, the term P. So if there is a
13 promotional effect, okay, then you can see from the
14 mathematics that the promotional effect is positive,
15 which means there are profits being generated in some
16 other place, other than this negotiation that's going
17 on, and the record label will then lower the price to
18 this party, this platform, which would reflect the
19 promotional effect. 20 On the other hand, if there's a substitution
21 effect, so that the E term is negative, which means
22 profits are reduced in third-party situations, then
23 the Nash equilibrium price would rise. And what this
24 basically shows is that promotion and substitution
25 effects would be baked in to a market negotiated
Heritage Reporting Corporation (202) 628-4888 2545
1 rate, and the prior decisions have said as much.
2 So the -- the theory demonstrates -- both
3 supports that statement made in earlier decisions and
4 also addresses the -- the topic which it was
5 intended, which was the Fair Play Fair Pay Act.
6 Q. Right. And, Mr. Sayres, maybe we can go to
7 the next slide.
8 And, Dr. Ford, I believe this slide returns
9 to your point about relative promotion. Can you
10 explain how the relative promotion point you make is
11 represented in algebra on this slide?
12 A. Yeah. This is, again, a very simplified
13 model, to get rid of a lot of the ugliness that
14 accompanies these kind of models, when you try to get
15 too -- too specific about them. But you can imagine
16 if there were two market rates, okay, or if the -- or
17 if the statutory rate was set exactly like the market
18 rate, the idea, as I mentioned earlier, is that if
19 the benchmark service had a promotion and
20 substitution effects baked into it, then in order to
21 adjust for the promotion and substitution effects
22 between the benchmark and the target service, you
23 would need to know the relative substitution and
24 promotion effects between the two, which is the
25 second term in brackets there, which just says -- you
Heritage Reporting Corporation (202) 628-4888 2546
1 know, the first term in brackets, the A sub T minus A
2 sub B is saying we've got to make adjustments for the
3 income generated by this, this thing, you know, maybe
4 the non-interactive adjustment and those sorts of
5 things.
6 And then you also have to adjust for the
7 difference in the promotional effects. If there is
8 no difference, if there's no evidence of any
9 difference, then that term vanishes from the analysis
10 and you're just back to making adjustments to the --
11 the benchmark rate based on its functionality and
12 things of that nature. 13 Q. I see. And I noticed that at the bottom of
14 this slide you indicate that promotion and
15 substitution effects must be measured as the average
16 of all music played. 17 What did you mean by that?
18 A. Well, I think that's what makes this case
19 kind of interesting and a little bit different than
20 the standard negotiation that occurs in -- in the
21 market, where individual labels are negotiating with
22 platforms. Here we have a rate being set for what
23 amounts to all music, by all labels, and is paid for
24 or is paid, the royalty rate will be paid, by anybody
25 who qualifies for the statutory rate.
Heritage Reporting Corporation (202) 628-4888 2547
1 So it's not an interesting question to say
2 what would one record label do in a negotiation. And
3 it's not really interesting to say what does one
4 platform who might use the statutory rate do in terms
5 of promotion and substitution, because this rate is
6 going to apply to everybody. And to the record
7 labels by coercion.
8 And so we have to think globally about the
9 promotion and substitution effects, rather than to
10 think about what -- or use as evidence what one
11 record label would do or what one artist got promoted
12 or what one platform may be capable of doing, because
13 we can't set a rate -- if you've got one highly
14 promotional platform, you don't want to use that rate
15 and then let somebody who's not promoting at all get
16 the benefit of that rate. 17 Q. And -- and what happens, Dr. Ford, under the
18 circumstances you just described, if a particular
19 non-interactive service has better-than-average
20 promotional power? 21 A. Well, I mean, we see this in these -- in
22 these situations a lot. If -- if the statutory rate
23 is not set too low, where it already is below the
24 market rate, including the promotional adjustment for
25 this, you know, high-powered promoter, then there
Heritage Reporting Corporation (202) 628-4888 2548
1 would just be defection from the agreement. And you
2 could say I'll give you a discount on -- on your rate
3 because of the -- because of your special promotion
4 effect.
5 So I've -- I've stated in prior testimony,
6 and I can't recall if it was in this latest round,
7 but it's in the testimony that was filed, I think,
8 that, you know, you really might want to kind of have
9 no promotional effect in the statutory rate because
10 the defecting from the -- from the statutory rate is
11 -- is fine, is legal, and firms do it.
12 But -- but, you know, getting out of it on
13 the upside is not really feasible. So as -- as
14 people exit the agreement, the statutory setting in
15 special agreements, then the average promotional
16 effect of what's left over gets smaller and smaller.
17 So as people defect, the promotion effect gets
18 smaller and substitution effect becomes more
19 dominant. 20 And so the rate goes up. So that, I think
21 that the ability to defect is pretty important in --
22 in contemplating the adjustments for promotion.
23 JUDGE STRICKLER: Dr. Ford, if it turned out
24 in this case dealing with the non-interactive market,
25 if the non-interactive services as a whole, as an
Heritage Reporting Corporation (202) 628-4888 2549
1 industry, were relatively more promotional than the
2 benchmark, then I understand from your -- your
3 algebra on this page that that would -- would suggest
4 a lower benchmark -- excuse me, a lower statutory
5 rate; is that correct?
6 THE WITNESS: It would.
7 JUDGE STRICKLER: And the reason why we --
8 we see evidence in these cases, perhaps in this case
9 as well, about the efforts that are made in terms of
10 time and, more importantly perhaps, money and
11 investment in promotional departments within labels,
12 is it -- do I understand your testimony correctly to
13 be that that may result in steering the percent of
14 songs played, sound recordings played, from one label
15 to another on a service, but that all -- that
16 steering all averages out, such that you can't apply
17 it to the -- to the non-interactive services as an
18 industry? 19 THE WITNESS: I -- I completely agree with
20 that. I mean, that is -- that's why I'm kind of
21 making this point about the -- the measured for all
22 music and all the labels, is that the -- the payments
23 for -- the activity to promote is an activity to
24 promote my artists, not somebody else's. And if my
25 artist is being promoted and played, then somebody
Heritage Reporting Corporation (202) 628-4888 2550
1 else's is not.
2 So -- so when we're talking about a
3 statutory rate that applies to all labels and to all
4 the people who use -- use the statutory license, then
5 we -- then all these substitution effects, these
6 competitive effects wash out.
7 So what we really need to observe is that
8 there's a larger -- that these -- that these services
9 that claim promotional effects make the music market
10 larger than it would be without them, completely.
11 Not -- you know, excluding whatever they're paying
12 you. So that the third-party effect is -- is
13 expanding the industry in total. 14 JUDGE STRICKLER: And so --
15 THE WITNESS: Does that answer your
16 question? 17 JUDGE STRICKLER: It -- it does, but just to
18 -- just to wrap it up, so when the -- when we see all
19 this money being spent label versus -- by individual
20 labels to try to promote their music, they're either
21 trying to increase their percent relative to the
22 entire industry or to avoid losing percent to the
23 entire industry because somebody else is promoting,
24 but it has nothing to do with the ultimate rate
25 because those offsetting attempts at steering music
Heritage Reporting Corporation (202) 628-4888 2551
1 their way through promotion just wash out at the
2 industry level?
3 THE WITNESS: Yeah. I think -- I think you
4 hit the nail on the head there too. This -- the
5 amount of effort and money spent to promote could be
6 a prisoner's dilemma. I mean, it could actually
7 reduce profits in the industry overall, but if I
8 don't do it and the other guy does, you know, I'm in
9 trouble. 10 But the fact that we all do it leads to a
11 worse outcome than if none of us did it.
12 JUDGE STRICKLER: Yeah, I was thinking of it
13 -- I was thinking of it in terms of mutually assured
14 destruction in the nuclear -- nuclear problem, where
15 it would be cheaper for everybody to stop --
16 THE WITNESS: Right. 17 JUDGE STRICKLER: -- rather than to keep
18 escalating. 19 THE WITNESS: Yeah, and so that's the
20 prisoner's dilemma. And I think that these -- that
21 this -- I mean, it came to my mind that these
22 payments could be prisoner's dilemma, rather than --
23 than, oh, let's all get happy and fat by -- by
24 spending that much money on -- on particular outlets
25 for promotion.
Heritage Reporting Corporation (202) 628-4888 2552
1 JUDGE STRICKLER: Thank you, Dr. Ford.
2 THE WITNESS: Thank you.
3 MR. TREPP: Thank you, Judge.
4 BY MR. TREPP:
5 Q. Well, why don't we turn, Dr. Ford, with the
6 -- with the remaining time to the evidence that you
7 did review in this case. What type of evidence did
8 you see when you reviewed the services' testimony?
9 A. It's the same we've seen time and time
10 again, I think. We have expressions of gratitude,
11 where the label sends a note, thank-you note. You
12 have promotional events, where artists, you know,
13 have special shows on various platforms. And we have
14 stories about successful hit songs and platforms
15 playing them and claiming some sort of credit for
16 success. 17 Q. And I notice you've got that fourth bullet
18 there. 19 A. Oh, yeah. 20 Q. That does not distinguish between services.
21 What did you mean by that? 22 A. Yeah, I -- I think that the testimony in
23 this case is -- fails to distinguish between the
24 services at issue and the services that -- the
25 totality of the services that various platforms
Heritage Reporting Corporation (202) 628-4888 2553
1 provide. SiriusXM's testimony, Mr. Blatter, for
2 example, he talks about what SiriusXM is doing. But
3 SiriusXM is a satellite provider and we're not
4 setting rates for satellite services right now.
5 We're setting rates for non-interactive services that
6 SiriusXM has, as a side, as a small side, of its
7 business.
8 What we need to know is what is the
9 promotion and substitution for that service and not
10 some aggregation of the company using services that
11 aren't -- that aren't subject to this particular
12 statutory rate. 13 Q. All right. Well, why don't we take a look
14 at each of these issues in turn, and maybe we can
15 skip the fourth bullet altogether.
16 A. Yeah. 17 Q. But beginning with expressions of gratitude,
18 sort of what do you mean by that phrase?
19 A. Well, some of the evidence submitted is --
20 is e-mails and -- and letters of -- that are
21 basically thank you for playing, you know, my
22 artist's song. They come from labels, promotional
23 teams at labels. 24 And this is a common courtesy in the
25 industry. You need -- pretty much any platform that
Heritage Reporting Corporation (202) 628-4888 2554
1 plays a song is going to get a thank-you letter,
2 particularly if it's a hit song. So, you know, let's
3 just -- it's just a courtesy. It doesn't -- it
4 doesn't reflect a causal relationship between what
5 you did and the success of a particular track.
6 Q. And so do the expressions of gratitude that
7 you saw in the services' testimony in your view
8 provide any useful evidence of promotion for purposes
9 of this case? 10 A. I mean, I don't think they provide really
11 any evidence of -- of having a material promotional
12 effect. Exposure is a good thing. The record labels
13 appreciate all the services that play their music and
14 are happy to -- to thank them for doing so. That's
15 just -- that's just courtesy and -- and business
16 practice. 17 And in some cases, you know, it's -- it's --
18 these sorts of letters are asked for. So it's -- you
19 know, it's not compelling evidence of a -- of a
20 causal effect. And I don't think it speaks at all to
21 the -- to the level of promotion or substitution that
22 we need to be studying in this particular case
23 because of the way the rate is set.
24 Q. And so in this next bullet here, you talk a
25 little bit about promotional events. Can you just
Heritage Reporting Corporation (202) 628-4888 2555
1 tell the Judges what you mean by that?
2 A. Yeah, a promotional event is when one of
3 these platforms has an acoustic concert or gives a
4 band or an artist a channel for a couple of hours,
5 something along those -- interviews, things of that
6 nature.
7 I don't believe that these suggest any sort
8 of promotional effect relevant to this proceeding.
9 They may affect an individual artist, but they also
10 improve the business of the platform who's doing it.
11 If you have an exclusive concert of a
12 popular act, you may pay that act to come in and do
13 it, and you do that because you stand to gain from
14 it. And if you look back at the simple Nash bargain,
15 if -- if -- if this act increases the income of the
16 platform, even if it does cause a promotional effect
17 for that artist, that doesn't necessarily mean that
18 the rate would be just because it's the difference
19 between those two things that matters.
20 Q. And so to the promotional events that you
21 used on the services' testimony, did those provide
22 any useful evidence of promotion for purposes of this
23 matter, at least in your view? 24 A. I don't think so, no. 25 Q. All right. Well, as to the third bullet,
Heritage Reporting Corporation (202) 628-4888 2556
1 stories about particular tracks or artists, without
2 walking through your analysis of each one, can you
3 give the Judges your general view about the examples
4 offered in the testimony of, for example, Mr. Blatter
5 and Mr. Poleman?
6 A. Yeah, there are a number of examples. And I
7 spoke to the record company executives. And I've
8 done this before. And the stories are very similar
9 year after year. 10 There's always some thing that, you know,
11 makes it more interesting than the testimony says it
12 is. But as I've mentioned, the promotion of a single
13 artist, the success of a single artist is not the
14 evidence of promotion we need to set a statutory
15 rate. 16 Besides the fact that it is not clear that
17 the efforts, the plays on a particular channel is
18 really what made a song. I mean, if you -- in the
19 conversations I've had, promotion is a very complex
20 process. And most of these songs, even the guys
21 promoting them, in charge of making sure they get
22 promoted in the hit, they don't really know, you
23 know, what drives what. 24 In some cases, you know, SiriusXM will play
25 something and then it will get played on streaming.
Heritage Reporting Corporation (202) 628-4888 2557
1 In some cases, streaming plays a lot, and then
2 SiriusXM picks it up. You know, there's -- it's a
3 very complex process.
4 But I guess the real issue is we can -- we
5 can dismiss it on the fact that it's not telling us
6 what is the average promotional or substitutional
7 effect of the entire collection of services, the
8 people that use this, the statutory license. And it
9 doesn't tell us what happens to the total income of
10 all the record labels subject to the statutory
11 license. 12 So it's not even providing evidence on the
13 relevant question. 14 Q. All right, Dr. Ford. So before we move on
15 to the next slide, which I should add is -- is
16 restricted, do you have anything to add on this
17 fourth bullet? I know we've already discussed your
18 view that the evidence does not distinguish between
19 services. 20 A. Yeah, I -- yeah, and I think I said enough
21 about that. But that's -- that's pretty important.
22 You know, we can't claim credit for somebody else's
23 promotional or substitutional effects.
24 MR. TREPP: So, Your Honors, the next slide
25 that we're going to move to is restricted. I don't
Heritage Reporting Corporation (202) 628-4888 2558
1 think we need to go into restricted session. We
2 won't talk about any restricted numbers on the
3 record. But if there are any folks who are currently
4 in the webinar and can't see restricted information,
5 we'd ask that they be removed because the slide
6 contains restricted information from multiple
7 parties.
8 CHIEF JUDGE FEDER: Can -- can the host tell
9 us, are there any participants who are not permitted
10 to see restricted information? 11 MR. SACK: Could you -- if you don't mind,
12 Your Honor, could we have a little more guidance on
13 what type of -- what parties' restricted session is
14 going to be presented, so that we can figure out who
15 can't hear it? 16 CHIEF JUDGE FEDER: Mr. Trepp?
17 MR. TREPP: Yeah, it will be restricted
18 information from SiriusXM, from iHeart, and I believe
19 from one of the other NAB participants in this
20 matter. 21 MR. SACK: Your Honor, with your permission
22 I'm going to -- Mike is going to be looking and I'm
23 going to be looking, and I'm going read my
24 admonishment to have people leave the room, and then
25 we will proceed.
Heritage Reporting Corporation (202) 628-4888 2559
1 CHIEF JUDGE FEDER: Okay, thank you.
2 MR. SACK: We're beginning to clear the room
3 now. If you are an attendee in the Zoom meeting who
4 is not allowed to attend restricted session, please
5 leave the session by clicking the red "leave" button
6 on the bottom of the right-hand side of your screen
7 or click the "X" at the top right-hand side. Your
8 counsel will inform you when you are allowed to
9 return to the proceeding. 10 Please stand by, Your Honors and counsel,
11 while we work to clear the room. 12 Your Honor, the room is locked.
13 CHIEF JUDGE FEDER: We can leave the public
14 feed going, though. We're -- we're not going to have
15 anything audible that is restricted, only the
16 visuals. 17 MR. SACK: Understood, Your Honor. The feed
18 is still live. 19 CHIEF JUDGE FEDER: Thank you. You may
20 proceed, Mr. Trepp. 21 MR. TREPP: Thank you. Mr. Sayres -- great.
22 BY MR. TREPP: 23 Q. So, Dr. Ford, I think you just discussed a
24 couple of the examples in Mr. Blatter and Mr.
25 Poleman's testimony. On this slide, you say that the
Heritage Reporting Corporation (202) 628-4888 2560
1 anecdotes say nothing about catalogue-wide promotion.
2 Why is that?
3 A. Well, they're not -- we won't -- we need to
4 know what the average effect is for all the music
5 that's played, okay, to know how to adjust the rate.
6 And what we have is examples are cherry-picked, you
7 know, hit songs by very few artists. You can see on
8 the slide, I'll give you the numbers, but it's
9 obviously a pretty small share of all the content
10 that's being used. 11 So what we -- you know, if you wanted to
12 know what the average effect was, you'd draw a random
13 sample of music, try to figure out what the promotion
14 and substitution effects for each of those songs were
15 to compute some kind of average or median or whatever
16 you wanted to use, but you certainly can't do it with
17 this small of a sample. 18 Q. And so I think you've already covered this,
19 but in your view is the -- are the anecdotes in the
20 services' testimony sufficiently representative to
21 draw a conclusion about promotion?
22 A. They're not representative at all. That's
23 certainly not a random sample, but chosen because
24 they were successful. Most music is not.
25 Q. All right. Mr. Sayres, if we can go to the
Heritage Reporting Corporation (202) 628-4888 2561
1 next slide, which not restricted.
2 Dr. Ford, I understand that this figure from
3 your written testimony --
4 CHIEF JUDGE FEDER: Mr. Trepp, one moment.
5 Can we allow the people, the attendees back in? Now
6 that this -- that you're no longer displaying
7 restricted information? That was a question,
8 Mr. Trepp.
9 MR. TREPP: Oh, yes. 10 CHIEF JUDGE FEDER: Okay. Will the host
11 please unlock the -- the virtual hearing room.
12 MR. SACK: The room is unlocked, Your Honor,
13 and the feed is still live. 14 CHIEF JUDGE FEDER: Thank you, you may
15 proceed. 16 BY MR. TREPP: 17 Q. So, Dr. Ford, I understand that Figure 1
18 from your written testimony depicted here captures
19 why the services' evidence of promotion is not in
20 your view informative. 21 Can you take us through the figure starting
22 with Panel A? 23 A. Yes. I think, as I was just saying, what we
24 need is the average effect, 25 promotional/substitutional effect, net effect, from
Heritage Reporting Corporation (202) 628-4888 2562
1 all the music that's played on -- on a service. And
2 you could think of this Panel A figure as being the
3 promotion or substitution effect of each song that
4 gets played on a service.
5 And in some cases, you may promote a song.
6 In some cases, you may substitute for a song. No
7 service is either always promotional or always
8 substitutional. There can be mixes of the two. And
9 each song has its own thing. Older music, playing
10 older music may satisfy the demand to hear it.
11 Playing newer music may want people to get a copy
12 that they could play as much as they want.
13 But it's the totality of the music that's
14 played that we're interested in, the promotional
15 effect of that sum of plays. 16 On the right-hand side -- well, in this
17 Panel A, what we've got in the testimony is -- is a
18 choice set of songs from the positive -- promotion
19 positive tail of the distribution, point W. I mean,
20 these are the -- the examples that are used. These
21 are hit songs. 22 And they say this is a hit song, I played
23 it, so, therefore, it's because it's me. And that's
24 just not adequate evidence either to -- to
25 demonstrate a promotional effect or to calculate
Heritage Reporting Corporation (202) 628-4888 2563
1 what's needed to be calculated in this case.
2 Q. And would you mind also taking us through
3 Panel B and how that relates to the conclusions
4 you've drawn in this matter?
5 A. Yeah. Panel B, it just goes back to
6 relative promotion. You're wanting to compare the
7 distribution of promotion between a benchmark service
8 and a target service to make some kind of adjustment.
9 In this particular graph, the promotional effect is
10 zero for the target service, U sub T, but it's
11 negative for the benchmark service; and, therefore,
12 there would be an adjustment in that case. But in
13 order to reach that, you need to know what the
14 average promotion/substitution effect is for all
15 music, on the one hand, and then all people subject
16 to the statutory license as -- as buyers, on the --
17 on the other hand. 18 JUDGE STRICKLER: Dr. Ford, a question for
19 you. And I know this came up, I think, in Web IV or
20 maybe one of the subsequent proceedings. But if --
21 if we were to assume or to be urged that
22 non-interactive services were net substitutional, not
23 net promotional, why would we see any attempts by any
24 label to try to promote their music on a
25 non-interactive service? I think there was an expert
Heritage Reporting Corporation (202) 628-4888 2564
1 who sort of cheekily said in a prior proceeding, you
2 would see exactly the opposite; you would see the
3 labels urging Pandora and iHeart and other
4 non-interactive services, please don't play our
5 music, we don't want our music played here because --
6 but they wouldn't give them a cause, but the reason
7 -- the impetus for such a policy would be that you're
8 costing us money because the plays on non-interactive
9 services are net substitutional compared to the
10 higher royalties we could get from an interactive
11 service. 12 How would -- how would you respond to that
13 critique? 14 THE WITNESS: I think it kind of goes back
15 to what you had said earlier, Judge, about, you know,
16 nuclear proliferation. If -- if a statute allows
17 something to exist, forces something to exist, it may
18 cause behaviors, prisoner dilemma behaviors, where if
19 I don't -- if they're allowed to use it and I don't
20 encourage them to play my -- my music, then I'm going
21 to lose relative to the other labels, okay?
22 So this is, again, we're in this world where
23 the individual labels are competing for attention and
24 competing for profit. That may not make the total
25 better off, okay? It may be a worse setting, and if
Heritage Reporting Corporation (202) 628-4888 2565
1 given the option, all of them may say: I'm not going
2 to do this at all. I'm not going to allow
3 non-interactive companies to use my content.
4 But if -- if there's defection from that, or
5 if there's a mandate that you can, then -- then that
6 changes the behavior and the nature of the way firms
7 have to work to try to maintain whatever profit they
8 can get from it.
9 JUDGE STRICKLER: Well, I -- I appreciate
10 your recalling our colloquy from a -- from a moment
11 ago, but let's -- let's make this just a tiny bit
12 more practical by way of example. 13 If it were the case -- and I'm not saying it
14 is -- but if it were the case that the
15 non-interactive services were net substitutional and
16 Sony, for argument's sake, hypothetically, decided to
17 go ahead and vigorously promote its music and allow
18 its promotion department to work to get plays on the
19 non-interactive service, wouldn't Universal and
20 Warner sit back and say: Well, let them go ahead and
21 do that, because they're just going to end up
22 substituting plays on the non-interactive service,
23 which may have a -- we'll assume for the purposes of
24 this question -- is a lower royalty, a royalty that's
25 paid by interactive services.
Heritage Reporting Corporation (202) 628-4888 2566
1 So isn't that a separate issue from the
2 mutually assured destruction or prisoner's dilemma
3 problem? You have two different markets, one that
4 pays more, one that pays less. You can't stop plays
5 on the non-interactive service because they're in
6 essence -- they're statutory compulsory blanket
7 licenses, but you sure don't need to encourage the
8 loss of money and say, please, please play it more,
9 so that you substitute for the more highly valued
10 product. 11 I guess -- so that -- with that long
12 backdrop, the question is why would anyone promote at
13 all? Why would we see any of these anecdotes if the
14 non-interactive service was not promotional?
15 THE WITNESS: Well, I -- I don't think that
16 -- that the -- the individual anecdotes are really
17 speaking to the aggregate promotion question. I
18 think they speak to a record label's promotion
19 situation. 20 And in some of the services rather than the
21 others, I think it's probably more pronounced in --
22 in services that have limited playlists that you want
23 to be a part of it, to listen to. You're going to
24 get more plays on that service and make -- make more
25 money for one thing. But it could then lead to
Heritage Reporting Corporation (202) 628-4888 2567
1 success in other ways.
2 All the services to some extent do that for
3 each other. It's a -- it's a big basket of -- of
4 plays that you're trying to get in any form or
5 fashion you can to promote it. I mean, in some
6 cases, that may promote the thing that's being --
7 that's claiming to be promotional, maybe promoted by
8 something else, another service.
9 So I don't know. I think that's an
10 interesting question. I think it's a very
11 complicated question, and maybe the -- the guys that
12 write these contracts can address that with more
13 specificity than I can. Certainly. They should be
14 able to. 15 But I don't -- I think that when you impose
16 a mandate on firms, it's very important to work
17 through -- and I can't say that I have; it's an
18 interesting question and I may work on that in the
19 future -- how firm behavior changes. And how does
20 firm behavior change when you're given something for
21 free? 22 You see the terrestrial radio industry
23 trying to argue for higher rates, higher royalty
24 rates, for terrestrial radio at the same time they're
25 sending thank-you notes to terrestrial radio for
Heritage Reporting Corporation (202) 628-4888 2568
1 playing their music. It's sort of this conflict
2 between what the individual would do versus what may
3 be good for the industry as a whole.
4 JUDGE STRICKLER: Thank you, Doctor. I'm
5 sorry, were you -- did you have more to say?
6 THE WITNESS: I'm good.
7 JUDGE STRICKLER: Okay, thank you, Doctor.
8 THE WITNESS: Thank you.
9 BY MR. TREPP: 10 Q. And, Dr. Ford, let me just ask you this.
11 I'll follow up on Judge Strickler's question. Have
12 you studied how pitching to a particular
13 non-interactive service might fit into record company
14 strategy for a particular track or artist?
15 A. Maybe run that by me again?
16 Q. Have you -- have you attempted to study in
17 your written testimony how pitching to a particular
18 non-interactive service in one case or another might
19 fit into a broader record company strategy? Is that
20 something you address? 21 A. Not really, not in any, you know, formal
22 way. 23 Q. Okay. Mr. Sayres, would you mind taking us
24 to the next slide. 25 So, Dr. Ford, before I -- I yield to
Heritage Reporting Corporation (202) 628-4888 2569
1 opposing counsel here, I just want to ask you a
2 couple questions.
3 First, are you aware of any economists in
4 this case who has quantified the promotional effects
5 asserted by Mr. Blatter and Mr. Poleman or -- or any
6 other service fact witnesses?
7 A. No.
8 Q. And are you aware of any service economist
9 who has offered a specific and quantitative rate
10 adjustment based solely on promotional effects?
11 A. I haven't seen any evidence solely on
12 promotional effects, no. 13 MR. TREPP: With that, Your Honor, I have no
14 further questions. Thank you. 15 CHIEF JUDGE FEDER: Thank you, Mr. Trepp.
16 Mr. Gass, are you up next?
17 MR. GASS: I believe I am.
18 CHIEF JUDGE FEDER: Okay. Could the host
19 please take the Weil Gotshal video down. Okay. You
20 may proceed. 21 MR. GASS: Thank you, Your Honor.
22 CROSS-EXAMINATION
23 BY MR. GASS: 24 Q. Good afternoon, Dr. Ford. My name is Andy
25 Gass. I represent the National Association of
Heritage Reporting Corporation (202) 628-4888 2570
1 Broadcasters in this proceeding.
2 A. Hi, Andy.
3 Q. I take it, Dr. Ford, that you agree that
4 there are instances in which terrestrial radio is an
5 important part of the promotional mix for record
6 labels, correct?
7 A. Yes.
8 Q. So let's discuss how that might work. So
9 I'm going to walk you through a few different
10 scenarios and ask whether what I describe is
11 something that in your view does happen in the world,
12 setting aside the question of how frequently it
13 happens. 14 So scenario 1, someone hears a recording on
15 terrestrial radio and, as a result, they become
16 incrementally more likely to buy a physical copy of a
17 record or CD that contains that recording.
18 Does that happen in the world?
19 A. That's sort of the basis of the promotional
20 argument that existed for ages. I think that happens
21 rarely nowadays, but it can happen.
22 Q. My question was whether it happens? I take
23 it your answer was yes? 24 A. Yes. 25 Q. Okay. Scenario 2, someone hears a recording
Heritage Reporting Corporation (202) 628-4888 2571
1 on terrestrial radio and, as a result, they become
2 incrementally more likely to use a preexisting
3 subscription to an on-demand streaming service like
4 Spotify to listen to that recording.
5 Does that happen?
6 A. It could happen, yes.
7 Q. Could happen or it does happen?
8 A. I'm sure it does happen.
9 Q. Scenario 3, someone hears a recording on
10 terrestrial radio and, as a result, they become
11 incrementally more likely to buy a new subscription
12 that they don't already have to an on-demand
13 streaming service like Spotify. 14 Does that happen? 15 A. A single track? 16 Q. That's the question. 17 A. That seems to be a very rare event.
18 Q. Does it ever happen? 19 A. I mean, you can buy the song for a lot
20 cheaper than 10 dollars a month. 21 Q. How about someone hears ten songs on
22 terrestrial radio and they decide -- they become
23 incrementally more likely to buy a new subscription
24 to an on-demand streaming service.
25 Does that ever happen?
Heritage Reporting Corporation (202) 628-4888 2572
1 A. It's $10 a month times 12 months, so, I
2 mean, you know, look, it may. It could. But I think
3 that's for -- one song is pretty, pretty small
4 chance, yeah.
5 Q. So is that a yes or a no?
6 A. Yes.
7 Q. I'm going to offer the following definition
8 of simulcast for the purpose of the next few
9 questions. So a simulcast, bear with me, is a
10 digitally transmitted version of a terrestrial radio
11 program, to the extent that the digital signal
12 doesn't substitute out any different songs from the
13 terrestrial signal. Okay? Are you with me?
14 A. Okay. 15 Q. So with that definition in mind, let's go
16 back to my three scenarios from a moment ago and
17 modify them slightly. So scenario 1 was someone who
18 is driving in their car listening to a terrestrial
19 radio signal, but now in the modified scenario,
20 they're in their car listening to a digital app that
21 is broadcasting the simulcast -- simulcast of a
22 terrestrial radio signal. 23 So in that modified scenario, does it happen
24 that, by virtue of hearing the recording on a
25 simulcast, the person becomes -- can become
Heritage Reporting Corporation (202) 628-4888 2573
1 incrementally more likely to buy a physical version
2 of the recording on a record or CD?
3 A. Your argument that it's equal?
4 Q. Yeah, I'm saying same -- same exact song,
5 it's just -- and same scenario as 1. They just --
6 they're hearing it over a digital simulcast rather
7 than the same thing over a terrestrial radio signal.
8 Any different answer?
9 A. Well, I would say the probability that
10 somebody would do that would be lower over the
11 simulcast. 12 Q. Not my question. My question is, does it
13 happen that, by virtue of hearing that recording on
14 that simulcast, the person becomes incrementally more
15 likely to buy a physical version of the recording on
16 a record or CD? In other words, the same -- same
17 exact scenario as what you answered yes before to
18 terrestrial radio. 19 A. Well, it's not the exact situation. It's a
20 different technology. 21 Q. Correct. They're hearing it through a
22 different technological transmission signal, but
23 otherwise it's the same. Before you said yes, it
24 happens that someone hearing it on terrestrial radio
25 becomes incrementally more likely to -- to buy the
Heritage Reporting Corporation (202) 628-4888 2574
1 recording in some circumstances. I'm asking you does
2 that ever happen when they hear the exact same thing
3 on a simulcast signal?
4 A. I cannot exclude the possibility that that
5 might happen once a year.
6 Q. Have you studied empirically how frequently
7 it happens?
8 A. No. That's why I said once a year. There's
9 at least one. 10 Q. But you haven't -- you haven't studied the
11 question? 12 A. No. 13 Q. What is the reason why someone may be less
14 likely than they otherwise would be to purchase a
15 sound recording when they hear it on a simulcast
16 versus a terrestrial radio signal? Help me with
17 that. 18 A. Well, if they're in their car, why are they
19 listening to a stream rather than the radio?
20 MR. GASS: I move to strike the answer. I'd
21 like an answer to my question, please.
22 THE WITNESS: Okay. 23 CHIEF JUDGE FEDER: Sustained.
24 THE WITNESS: The person in a car that is
25 listening to a stream rather than the radio is
Heritage Reporting Corporation (202) 628-4888 2575
1 probably different than the person who's listening to
2 the -- the radio. Probably younger, maybe. You
3 know, maybe flipping back and forth between some
4 other service. I don't know. I mean, I could see
5 there being a difference, given the choice of
6 consumption pattern.
7 BY MR. GASS:
8 Q. Let's go to scenario 2. Scenario 2, you'll
9 recall, was someone hears a terrestrial radio signal,
10 a given sound recording, and they become
11 incrementally more likely to use a preexisting
12 subscription to an on-demand service to listen to
13 that recording. 14 Do you remember that? 15 A. Yes. 16 Q. And remember you said yes, it could happen,
17 right? 18 A. Yes. 19 Q. Swap out simulcast. Could that happen?
20 A. It could happen. 21 Q. You haven't studied how frequently it
22 happens, have you? 23 A. No. 24 MR. TREPP: Objection. I believe that
25 Mr. Gass is mischaracterizing the testimony by
Heritage Reporting Corporation (202) 628-4888 2576
1 transforming a "could" into a "would."
2 CHIEF JUDGE FEDER: Would you please
3 rephrase the question, Mr. Gass?
4 MR. GASS: Sure.
5 BY MR. GASS:
6 Q. Scenario 2 was someone hears a recording on
7 terrestrial radio and, as a result, they do, in fact,
8 become incrementally more likely to use a preexisting
9 subscription to an on-demand streaming service like
10 Spotify to listen to that recording. Does that
11 happen? That was the question. 12 Now I'm asking does that happen when the
13 person hears the same thing but on a simulcast rather
14 than a terrestrial radio signal? 15 A. I can't say what one person will do. That's
16 what you asked. 17 Q. Does it ever happen? 18 A. I have no idea. 19 Q. Okay. So you haven't performed any
20 independent empirical study of how frequently it
21 happens that someone hears a recording on any
22 non-interactive service and is then inspired to
23 select that song on an on-demand service they already
24 subscribe to, correct? 25 A. That's correct.
Heritage Reporting Corporation (202) 628-4888 2577
1 Q. And you have not performed an independent
2 empirical study of how frequently it happens that
3 someone hears a recording on any non-interactive
4 service and is then inspired to newly subscribe to an
5 on-demand service, correct?
6 A. I have not.
7 Q. Okay. One of the opinions that you're
8 offering in this proceeding is that, and I'm going to
9 quote you here, "The promotion question that matters
10 in a rate proceeding is relative promotion, that is,
11 whether the target service is on the whole more or
12 less promotional than the chosen benchmark."
13 Is that right? 14 A. Yes. 15 Q. So let's break that down, how this should
16 work in your view. In a simple benchmark analysis,
17 there are two services to consider, the benchmark and
18 the target service, correct? 19 A. Yes. 20 Q. And as a general matter, you believe that
21 the promotional effects, along with any
22 countervailing substitutional effects, of a license
23 to use sound recordings on the benchmark service are
24 baked into a negotiated license rate, right?
25 A. Yes.
Heritage Reporting Corporation (202) 628-4888 2578
1 Q. And all else equal, if the net promotional
2 effect is positive, one would expect to see a lower
3 negotiated license rate in the benchmark deal,
4 correct?
5 A. Yes.
6 Q. So, put differently, if a benchmark deal is
7 net promotional rather than net substitutional, you
8 would expect that net promotional character to be
9 reflected as a lower royalty rate than you would
10 otherwise see, right? 11 A. Yes. 12 Q. Last question about this. Let's talk about
13 how to translate a benchmark royalty rate to the
14 royalty rate that a target service should pay.
15 We -- we saw on slide 7 an equation that
16 appears in your written testimony. I just want to
17 make sure I'm understanding you correctly.
18 Your view is that if the target and the
19 benchmark generate the same income for the record
20 label and have the same net promotion effects, then
21 the benchmark royalty rate should be exactly the same
22 as the target rate, right? 23 A. In this very simplified setup, it would be
24 that way, yes. 25 Q. Right. In the equation that you proffered
Heritage Reporting Corporation (202) 628-4888 2579
1 to the court, the panel, yes?
2 A. Both of those are negotiated rates, yes.
3 Q. Right.
4 A. Yeah.
5 Q. I'm sorry, what do you mean both of them are
6 negotiated rates?
7 A. Those are market negotiations. The -- the
8 Nash price is a market negotiation.
9 Q. Right. But we're talking about translating
10 a benchmark deal to a target rate, right?
11 A. Yeah. Well, if the -- if the target rate is
12 -- is created in a way that mimics the negotiated
13 rate, then that would be true. It would be very
14 difficult to model that with a -- with a regulated
15 rate driven by other factors. 16 Q. Dr. Ford, you submitted your written
17 testimony in the rebuttal phase of this proceeding.
18 Isn't that right? 19 A. Yes. 20 Q. And by that time, the parties had already
21 submitted their written direct cases in which they
22 identified which benchmarks they'd be relying on,
23 correct? 24 A. I believe that would be correct, yes.
25 Q. And you were aware that SoundExchange was
Heritage Reporting Corporation (202) 628-4888 2580
1 invoking certain deals between record labels and
2 interactive services as benchmarks for the license at
3 issue in this proceeding, right?
4 A. I didn't study the testimony carefully. I
5 can't speak specifically about what was presented.
6 Q. You didn't know that SoundExchange was
7 invoking license agreements between record labels and
8 interactive services as a benchmark for the proper
9 rate that the CRB should set here?
10 A. I mean, that's normally the way it goes, but
11 I can't sit here and say specifically what was
12 presented in this case. 13 Q. Okay. Well, let me ask you this. Were you
14 aware that the National Association of Broadcasters
15 was invoking different deals as benchmarks for the
16 license at issue in this proceeding?
17 A. That's normally the way it goes, but I can't
18 speak of what specifically was recommended.
19 Q. Okay. So let me -- let me drill down on
20 that. 21 Were you aware that the NAB was offering as
22 benchmarks for the license at issue in this
23 proceeding license agreements that expressly
24 authorized the use of sound recordings on both a
25 simulcast service and a custom radio service?
Heritage Reporting Corporation (202) 628-4888 2581
1 A. No.
2 Q. So let me just get this straight. So
3 because you weren't aware of that, I take it that you
4 offered no analysis of whether any existing
5 real-world deals that authorized the use of sound
6 recordings on both simulcast and custom radio
7 prescribed the same royalty rate or two different
8 rates, right?
9 A. If you can point it out to me in testimony,
10 I'm happy to talk about it, but I don't think I did
11 that. 12 Q. I agree. I'm just confirming.
13 And -- and one more confirmatory question.
14 You also offered no analysis of whether, if such
15 bifurcated rate structures exist, they reflect
16 differences in net promotional effects between
17 simulcast and custom radio, did you?
18 A. No. 19 Q. And the last one of these. So because you
20 offered no such analysis, you certainly didn't see if
21 you could use those agreements with bifurcated rate
22 structures to quantify the degree to which
23 differences in net promotional effects were baked in,
24 right? 25 A. No.
Heritage Reporting Corporation (202) 628-4888 2582
1 Q. Just to make sure that we have a clear
2 record, I want to ask you the same questions with
3 respect to another set of benchmarks that the
4 National Association of Broadcasters is relying on,
5 specifically those that invoke license agreements
6 concerning public performance rights for musical
7 compositions, rather than sound recordings.
8 So were you aware that NAB was invoking such
9 agreements involving entities like ASCAP and BMI as
10 benchmarks in this proceeding? 11 A. No. 12 Q. Okay. So, again, just -- just bear with me.
13 I want to make sure that I -- I understand what that
14 means. 15 A. Okay. 16 Q. So your written testimony doesn't mention
17 those agreements at all, right? 18 A. No. 19 Q. And you offered no analysis of whether it's
20 actually true that PROs license simulcast and custom
21 radio services on the same or different terms, right?
22 A. No. 23 Q. And, as a result, again, just to be crystal
24 clear about this, you also offered no analysis of
25 whether, if the terms are substantively different,
Heritage Reporting Corporation (202) 628-4888 2583
1 they reflect differences in net promotional effects
2 between simulcast and custom radio, right?
3 A. I didn't address that.
4 Q. Right. And -- and last one of these.
5 Because you offered no such analysis, you certainly
6 didn't see if you could use these PRO agreements to
7 quantify the degree to which differences in net
8 promotional effects were baked in, right?
9 A. I did not speak to any of that.
10 Q. Okay. So, Chris, would you mind calling up
11 paragraph 3 of Dr. Ford's written rebuttal testimony,
12 please. 13 A. I'm not getting it. Am I supposed to be?
14 Q. I'm not seeing it either, but I'll just read
15 you the passage that I'm interested in.
16 A. Okay. 17 Q. So I believe that you wrote at paragraph 3
18 of your -- your written testimony, and please correct
19 me if I'm wrong, and I quote, "I am unaware of any
20 evidence demonstrating the net relative promotional
21 effects across any two music delivery platforms and
22 no evidence that would allow quantification of such
23 effects." 24 Do you recall that testimony?
25 A. I'd like to see it. Is it in this box?
Heritage Reporting Corporation (202) 628-4888 2584
1 Which one of these things in this Veritext box is the
2 testimony? Ah!
3 Q. There we go.
4 A. Yes.
5 Q. Success.
6 A. Okay. Where are we?
7 Q. Paragraph 3, the -- the very last line down
8 at the bottom there. Do you see that?
9 A. Yes. 10 Q. "I am unaware"? 11 A. Yeah. 12 Q. Would you mind reading that sentence into
13 the record? 14 A. Yeah. "As I am unaware of any evidence
15 demonstrating the net relative promotional effects
16 across any two music delivery platforms" --
17 Q. Go to the next page, thanks.
18 A. -- "and no evidence that would allow
19 quantification of such effects has been submitted in
20 this proceeding, there is no reason to adjust any
21 proposed benchmark rate on account of promotion."
22 Q. Right. But you offered that conclusion
23 without spending so much as a single word of your
24 testimony on the NAB benchmarks that we've actually
25 been discussing here, didn't you?
Heritage Reporting Corporation (202) 628-4888 2585
1 A. There was no discussion of those benchmarks
2 as being indicators of relative promotion, to my
3 knowledge.
4 Q. Okay. So assume that it is, in fact, the
5 case that in the real world, certain music rights
6 owners do license the right to use their intellectual
7 property on simulcast at a lower royalty rate than
8 they charge for custom radio.
9 On that assumption, would you agree with me
10 that those licensors must have some reason for doing
11 so? 12 A. You want to define custom radio, since you
13 defined the simulcast earlier? 14 Q. Sure. That would be a -- a non-interactive
15 service, like the -- the classic historical Pandora
16 service, that qualifies for the statutory license but
17 provides a personalized listening experience to
18 users. 19 A. Okay. So you can skip, things like that?
20 Q. Limited skips, consistent with the
21 functionality of the -- the statute.
22 A. Okay. 23 Q. Right? 24 A. All right. 25 Q. So the question then is, to the extent it's
Heritage Reporting Corporation (202) 628-4888 2586
1 true that in the real world, music rights licensors
2 actually price the licenses for simulcast differently
3 than they price the licenses for custom radio, would
4 you agree with me that they must have some reason for
5 doing that?
6 A. Well, I don't know what the reason would be,
7 but the -- is any of this statutory or -- or
8 influenced by the statutory rates?
9 Q. Well, I believe you previously wrote that
10 economic theory teaches that rational companies do
11 not give away something for nothing, right?
12 A. Yes. 13 Q. Does that ring a bell? So if indeed it is
14 the case that PROs and certain record labels are
15 charging one price for custom radio and a lower price
16 for simulcast, then unless they're acting
17 irrationally, that marginally lower price for
18 simulcast must be in exchange for something, right?
19 MR. TREPP: Objection, Your Honor. I mean,
20 counsel is now asking the witness to opine about
21 agreements that he hasn't reviewed, about motivations
22 of parties in negotiations that he is not privy to.
23 CHIEF JUDGE FEDER: Mr. Gass?
24 MR. GASS: Your Honor, the -- the witness
25 has proffered the testimony that all of the evidence
Heritage Reporting Corporation (202) 628-4888 2587
1 that NAB has offered in this proceeding concerning
2 promotional value is irrelevant.
3 I think I'm entitled to articulate what
4 NAB's theory is and then ask the witness whether he
5 still agrees that it's irrelevant.
6 MR. TREPP: If I may, Your Honor. I would
7 just submit that there's no foundation for these
8 questions. Dr. Ford has not seen the agreements, he
9 hasn't seen any negotiation documents, nobody has put
10 those in front of him. There is no basis for him to
11 answer these questions or evaluate them based on
12 material before him. 13 MR. GASS: Your Honor, to the extent that
14 the witness would like to rescind his conclusion that
15 all of this -- 16 CHIEF JUDGE FEDER: All right.
17 MR. GASS: -- testimony regarding --
18 CHIEF JUDGE FEDER: All right. Dr. Ford,
19 cannot, obviously, testify about an agreement that he
20 has not reviewed. 21 If you're asking a hypothetical question and
22 seeking Dr. Ford's opinion as an economist, you may
23 do so. So to that extent, the -- the objection is
24 sustained. 25 BY MR. GASS:
Heritage Reporting Corporation (202) 628-4888 2588
1 Q. Dr. Ford, are you aware that it is the NAB's
2 theory in this case that the market prices simulcasts
3 lower than custom radio?
4 A. No.
5 Q. So when you offered your conclusion that all
6 of the testimony concerning the promotional value of
7 radio is irrelevant in this proceeding, you did so
8 without understanding that that was the NAB's
9 position? 10 MR. TREPP: Objection. I believe we're now
11 mischaracterizing the testimony, particularly the
12 testimony that Mr. Gass had the witness read into the
13 record. 14 CHIEF JUDGE FEDER: Sustained.
15 BY MR. GASS: 16 Q. You're not trying to offer the expert
17 opinion that any testimony offered by NAB in this
18 proceeding is irrelevant as a matter of law, are you,
19 Dr. Ford? 20 A. No, I can't speak to the law.
21 Q. Right. So the Judges are the ones who get
22 to decide what is and isn't relevant to their
23 decision, correct? 24 A. Absolutely. 25 Q. And if they decide that, in fact, the market
Heritage Reporting Corporation (202) 628-4888 2589
1 prices licenses for simulcast and custom radio at
2 different royalty rates, then that might raise the
3 question why the market does so, wouldn't it?
4 MR. TREPP: Objection. Counsel is now
5 asking the witness to opine on a hypothetical legal
6 conclusion that the Judges might reach based on
7 evidence that he has never seen, which strikes me as
8 objectionable, without foundation and likely confuse
9 matters. 10 CHIEF JUDGE FEDER: Mr. Gass, please confine
11 your questions to the -- the scope of this witness'
12 expertise and testimony, which is on economics.
13 MR. GASS: Yes, Your Honor.
14 BY MR. GASS: 15 Q. Let's -- let's move on. Putting the NAB
16 witness testimony to one side, there is, in fact,
17 evidence in the record that record labels invest
18 substantially in promoting the use of their sound
19 recordings on the radio, isn't there?
20 A. Invest what? 21 Q. Invest substantially in promoting the use of
22 their sound recordings on the radio.
23 A. What do you mean by "substantial"?
24 MR. GASS: Well, Your Honor, in order to
25 answer that, let's go into restricted session, with
Heritage Reporting Corporation (202) 628-4888 2590
1 my apologies. This -- this won't take more than five
2 or ten minutes, I don't think.
3 CHIEF JUDGE FEDER: We will go briefly into
4 restricted session. Will the host -- well, first of
5 all, are there any parties that can remain in the
6 hearing room, any -- any attendees?
7 MR. GASS: Your Honor, I'm going to ask
8 questions about financial information reported by
9 record labels. So anyone who can't see that should
10 leave. Anyone who can see that can stay.
11 MR. SACK: Your Honor, I'm going to read my
12 direction, and we will go into restricted session.
13 CHIEF JUDGE FEDER: Thank you.
14 MR. SACK: Stand by. We're beginning to
15 clear the room now. 16 If you're an attendee in the Zoom meeting
17 who is not allowed to attend restricted session,
18 please leave the session by clicking the red "leave"
19 button on the bottom right-hand side of your screen
20 or click the "X" at the top right-hand side.
21 Your counsel will inform you when you are
22 allowed to return to the proceeding.
23 Please stand by, Your Honors and counsel,
24 while we work to clear the room. 25 (Whereupon, the trial proceeded in
Heritage Reporting Corporation (202) 628-4888 2591
1 confidential session.)
2
3
4
5
6
7
8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2598
1 O P E N S E S S I O N
2 MR. SACK: The room is unlocked and the
3 stream is live and public, Your Honor. Thank you.
4 CHIEF JUDGE FEDER: Thank you, Mr. Sack.
5 You may proceed, Ms. Falk.
6 MS. FALK: Thank you, Your Honor.
7 CROSS-EXAMINATION
8 BY MS. FALK:
9 Q. Good afternoon, Dr. Ford. My name is
10 Jessica Falk, and I am counsel for SiriusXM and
11 Pandora. 12 I'd like to start with afternoon with what
13 you referred to as Mr. Blatter's anecdotal evidence
14 earlier, if you recall? 15 A. Yes. 16 Q. You discussed in your testimony that
17 Mr. Blatter included what you called expressions of
18 gratitude, right? 19 A. Yes. 20 Q. And that was where various parties thanked
21 SiriusXM for playing or promoting a particular
22 artist's song, right? 23 A. Yes. 24 Q. And you understand that those expressions of
25 gratitude come from managers and record labels,
Heritage Reporting Corporation (202) 628-4888 2599
1 right?
2 A. Yes.
3 Q. Now, you don't purport to be an expert in
4 expressions of gratitude, do you?
5 A. How would you qualify as an expert in
6 expressions of gratitude?
7 Q. Well, that is my question to you. Do you
8 consider yourself an expert in expressions of
9 gratitude? 10 A. I don't even know what that means.
11 Q. Dr. Ford, you testified earlier that you are
12 an expert in industrial economics, correct?
13 A. Yes. 14 Q. You do not consider yourself in this
15 proceeding an expert in expressions of gratitude; is
16 that correct? 17 A. I am an expert in interpreting things I read
18 in economic play. 19 Q. Do you consider expressions of gratitude to
20 be economic? 21 A. I consider an expression of gratitude an
22 economic transaction. 23 Q. Why does your educational background in
24 economics and training as an economist qualify you to
25 opine on whether something is an expression of
Heritage Reporting Corporation (202) 628-4888 2600
1 gratitude?
2 A. I don't believe it's a stretch to say thank
3 you is an expression of gratitude.
4 Q. I understand that. I'm asking what in your
5 qualifications as an economist you're relying on to
6 opine as to expressions of gratitude?
7 A. Well, I suppose by qualifying as an
8 economist, I qualify as a human being.
9 Q. So I'm asking you, as an expert, what
10 qualifies you as an expert to give testimony on
11 expressions of gratitude? 12 A. An expression of gratitude is economic
13 transaction. 14 Q. You also make reference to common courtesy.
15 What qualifies you as an expert on common courtesy?
16 A. Common courtesy is a part of economic
17 transaction. 18 Q. And what is the basis for your position that
19 that is part of an economic transaction?
20 A. Because this is communications between buyer
21 and seller. 22 Q. Common courtesy? 23 A. Yes. 24 Q. Have you done any empirical analysis of
25 expressions of gratitude?
Heritage Reporting Corporation (202) 628-4888 2601
1 A. I have spoken with numerous record company
2 executives who explained the purpose of these
3 expressions of gratitude.
4 Q. Is that an empirical analysis?
5 A. It's not statistical in any means. It is
6 informative and qualitative.
7 Q. Have you done any empirical analysis on
8 common courtesy?
9 A. No. 10 Q. If we could pull up Exhibit 5615, your
11 testimony, paragraph 38, which is on exhibit page 21.
12 A. Where are we, 38? 13 Q. Yes. You write, "When promotional staff
14 sends a grateful e-mail, I believe they are sincere,
15 at least in most cases." 16 Is that an expert opinion you're providing?
17 A. Well, that's what I was told in these
18 teleconferences. 19 Q. So that anecdote, that review of that
20 anecdote, is the same as what a lay person could
21 review, though, right? 22 A. I don't get your point. 23 Q. Did you use anything in your economic
24 background to understand whether promotional staff
25 are sincere in a grateful e-mail?
Heritage Reporting Corporation (202) 628-4888 2602
1 A. I was trying to understand the economic
2 motivations beside -- behind sending these letters.
3 There's an economic motivation --
4 Q. Is it your testimony -- I'm sorry.
5 A. There's an economic motivation behind this
6 stuff.
7 Q. So let me make clear, you're discussing here
8 in this portion of your testimony that you believe
9 that these grateful e-mails are sincere. What part
10 of that is an economic analysis? 11 A. It's all economic analysis.
12 Q. How so? 13 A. Everything is economic analysis to some
14 extent, but I walked into this thing wanting to
15 figure out why you would incur the cost of sending a
16 letter to a person that you are in business with and
17 engaged in transactions with, as to why does this
18 happen. What is the cost/benefit calculus of sending
19 letters to people that play your music?
20 It's an economic question. It's business
21 decision -- 22 Q. How is the cost -- how does cost/benefit
23 analysis reflect whether someone is sincere?
24 A. Because why would you send it if you
25 weren't?
Heritage Reporting Corporation (202) 628-4888 2603
1 Q. Is that an expert opinion you're giving?
2 A. That is the economic analysis. Why would
3 you send a thank-you letter if you weren't sincere
4 about it? And you would do so if there were some
5 other economic motivation for doing it.
6 Q. And, again, what in your study as an
7 economist allows you to establish whether or not
8 someone is sincere?
9 MR. TREPP: Objection. I think this has
10 been asked and answered. 11 CHIEF JUDGE FEDER: Sustained.
12 BY MS. FALK: 13 Q. Let me go to paragraph 39 of your testimony.
14 Paragraph 39 of your testimony, you note that you
15 understand "acknowledgments of the contributions of
16 the services are sometimes responses to requests for
17 such acknowledgments by the services."
18 Do you see that? 19 A. Yes. 20 Q. You also note that SiriusXM is very needy.
21 Do you see that? 22 A. Yes. 23 Q. And you see that, in the bottom, SiriusXM,
24 you think, in your testimony, is more demanding than
25 other services? Do you see that?
Heritage Reporting Corporation (202) 628-4888 2604
1 A. Yes.
2 Q. You agree with me that these are not expert
3 opinions, right?
4 MR. TREPP: Objection, Your Honor. The
5 question presumes the answer.
6 CHIEF JUDGE FEDER: I can't understand you,
7 Mr. Trepp. Could you speak up a little?
8 THE WITNESS: Yes. I apologize. I said I
9 believe the question assumes the answer and also is
10 argumentative. 11 CHIEF JUDGE FEDER: Could you rephrase the
12 question, please? 13 BY MS. FALK: 14 Q. Sure. Is it your contention that these are
15 expert opinions? 16 MR. TREPP: Objection. I believe this also
17 calls for a legal conclusion about whether or not the
18 witness is qualified to offer that qualitative and
19 quantitative analysis presented as a whole in his
20 written rebuttal testimony. 21 And that's a question the time for which has
22 long since passed. 23 CHIEF JUDGE FEDER: Ms. Falk?
24 MS. FALK: Your Honors, I am asking the
25 witness if part of his testimony he considers an
Heritage Reporting Corporation (202) 628-4888 2605
1 expert opinion, or if this is background he's
2 incorporating in his testimony. But my question is,
3 for example, are you providing an expert opinion on
4 whether SiriusXM is needy?
5 CHIEF JUDGE FEDER: I'll overrule it. You
6 may ask your question.
7 BY MS. FALK:
8 Q. Thank you. Dr. Ford, are you providing an
9 expert opinion on the items highlighted in paragraph
10 39 of your testimony? 11 A. As what? I think you got cut off --
12 Q. The question is -- 13 A. What is it -- 14 Q. Sorry. The question is --
15 A. What was the question? 16 Q. The question is the items that are currently
17 highlighted in paragraph 39 of your testimony, that
18 sometimes the contributions of services are
19 acknowledged -- let me rephrase. 20 The question is, in your -- in paragraph 39,
21 you note that you understand the acknowledgments of
22 the contributions of the services are sometimes
23 responses to requests for such acknowledgments by the
24 services. You note that Sirius -- SiriusXM, in
25 particular, is very needy. And you note that
Heritage Reporting Corporation (202) 628-4888 2606
1 SiriusXM is more demanding than other services.
2 So my question to you is, are those expert
3 opinions?
4 A. Well, that is the -- a economic -- based in
5 economic analysis as to the explanations for why
6 activity is undertaken, and these are the responses
7 that I was given by experts in the promotional
8 business as to why they engage in this behavior. And
9 all -- all behavior is driven by cost/benefit
10 calculations. These are business transactions so it
11 falls within the realm of industrial economics.
12 Q. Is it your position, Dr. Ford, that you're
13 providing an expert opinion on whether SiriusXM is
14 needy? 15 A. I am reflecting the opinions of experts,
16 promotional staff in this area who have explained to
17 me the economic motivation for dealing in some cases
18 with SiriusXM. 19 Q. You're relaying the opinions of laypersons
20 in the record industry; is that correct?
21 A. They're not laypersons. They're experts.
22 Q. Are they qualified experts as in experts in
23 this proceeding in which you are testifying as an
24 expert? 25 MR. TREPP: Objection. I believe that calls
Heritage Reporting Corporation (202) 628-4888 2607
1 for a legal conclusion --
2 THE REPORTER: I'm sorry, Mr. Trepp, you
3 broke up there. I believe that calls for a legal
4 conclusion?
5 MR. TREPP: That is not the province of the
6 testimony.
7 CHIEF JUDGE FEDER: If Dr. Ford is able to
8 answer that question, the factual question whether
9 these -- these opinions that he -- that are reflected
10 in paragraph 39 were expressed by persons who have
11 been qualified as experts in this proceeding, he may
12 answer that question. Go ahead. 13 BY MS. FALK: 14 Q. Dr. Ford? 15 A. What's the question? 16 Q. The question, as -- as posed by Your Honor,
17 was, are you basing your opinions in this paragraph
18 on information provided to you by individuals who are
19 testifying as experts in this proceeding?
20 A. I have no idea whether they're testifying in
21 this proceeding. 22 Q. Are you providing an expert opinion that
23 SiriusXM is more demanding than other services?
24 A. That's what I was told. 25 Q. Have you done any empirical analysis to
Heritage Reporting Corporation (202) 628-4888 2608
1 assess whether SiriusXM is needy?
2 A. No.
3 Q. Have you done any empirical analysis to
4 assess whether SiriusXM is more demanding than other
5 services?
6 A. No. I'm only reflecting what I was told by
7 people in the industry.
8 Q. Shifting gears now, you recall that
9 Mr. Blatter discussed in his testimony some examples
10 of songs that SiriusXM successfully promoted, right?
11 MR. TREPP: Objection, I believe that also
12 -- that question also assumes a fact not in evidence,
13 which is that the songs were successfully promoted.
14 MS. FALK: He responds directly to
15 Mr. Blatter's testimony, Your Honor. So that's all
16 I'm asking him about. 17 CHIEF JUDGE FEDER: Overruled.
18 THE WITNESS: Repeat the question?
19 BY MS. FALK: 20 Q. Sure. So, as I say, I was moving on to a
21 different topic. You recall that Mr. Blatter
22 discusses some examples of songs that SiriusXM
23 successfully promoted in his testimony, right?
24 A. I don't know if they successfully promoted
25 them. He claims they did.
Heritage Reporting Corporation (202) 628-4888 2609
1 Q. Your testimony regarding those songs is that
2 any evidence presented at the artist level is largely
3 irrelevant, right?
4 A. Yes.
5 Q. Is it your opinion, then, that any anecdotal
6 evidence presented in this case at the artist level
7 is similarly largely irrelevant?
8 MR. TREPP: Objection. If the services have
9 evidence that they would like to put in front of
10 Dr. Ford to enable him to answer this question, then
11 that's one thing, but I don't think they have a
12 foundation for asking about the big category of any
13 evidence at the artist level in this proceeding.
14 CHIEF JUDGE FEDER: Ms. Falk?
15 MS. FALK: Yeah, counsel is breaking up a
16 little bit, but I can put up, from Mr. Ford -- from
17 Dr. Ford's testimony, he states, any evidence -- if
18 we go to Exhibit 5615, page 24, paragraph 41.
19 We just may need to get the full thing on
20 the screen. Thanks, George. 21 BY MS. FALK: 22 Q. Bottom of the paragraph. "Any evidence
23 presented at the artist level is largely irrelevant."
24 Do you see that? 25 A. Yes.
Heritage Reporting Corporation (202) 628-4888 2610
1 Q. And that's from your rebuttal testimony,
2 yes, Dr. Ford?
3 A. Yes.
4 MR. TREPP: Objection, Your Honor. We're
5 quoting one line in a paragraph, shorn from context,
6 and that is clearly designed to capture a whole
7 category of evidence that Dr. Ford has not seen, has
8 not considered, and is not being presented.
9 MS. FALK: Your Honor, I've given him the
10 context of the paragraph in his report. He's welcome
11 to look through it if he'd like. But I'm asking him
12 a question about his report. He has made this
13 statement in his testimony. 14 CHIEF JUDGE FEDER: Dr. Ford may respond to
15 this question. Overruled. 16 BY MS. FALK: 17 Q. So, Dr. Ford, my question to you is, is it
18 your opinion that any anecdotal evidence presented in
19 this case at the artist level is similarly largely
20 irrelevant? 21 A. Any? 22 Q. Yes. 23 A. Possible? 24 Q. Yes. 25 A. If you make that claim, no.
Heritage Reporting Corporation (202) 628-4888 2611
1 Q. And why would some anecdotes of artists, at
2 the artist level, be irrelevant but these are not?
3 A. Because I have no idea what the realm of
4 possibility is.
5 Q. Can you give me any situation where an
6 artist testimonial, an artist anecdote would be
7 relevant in this proceeding?
8 A. I haven't seen any in this proceeding. And
9 I haven't seen any, but I can't say that there's no
10 possibility of that being demonstrated in a world of
11 possibilities. I mean, there's no constraint on that
12 question. You know, it's like asking me if they
13 there are Sasquatch. I don't have a lot of evidence
14 of it, but I can't for sure say it's not one.
15 Q. Well, Dr. Ford, I'm not asking you about
16 Sasquatch here. My question to you, is there any
17 situation that you're aware of -- you've read the
18 testimony in this proceeding. You've relied on
19 certain record testimony in your record artist --
20 record label, rather, interviews in your testimony.
21 Can you give me any situation where an
22 artist's testimony at the artist level would be
23 relevant in this proceeding? 24 MR. TREPP: Objection. I apologize, Your
25 Honor, but, first of all, this is asked and answered,
Heritage Reporting Corporation (202) 628-4888 2612
1 and, second of all, I believe that Ms. Falk has been
2 mischaracterizing witness' testimony about what
3 material --
4 THE REPORTER: About what material?
5 MR. TREPP: He did review and did not
6 review.
7 THE REPORTER: Thank you.
8 CHIEF JUDGE FEDER: Asked and answered.
9 MS. FALK: Your Honor --
10 CHIEF JUDGE FEDER: Sustained.
11 BY MS. FALK: 12 Q. You also discuss in your testimony the
13 examples that Mr. Blatter provides about tracks that
14 became hits after SiriusXM plays, right?
15 A. I think every track that has been successful
16 SiriusXM has played. It's what they do, play hits.
17 So what's -- 18 Q. So I was -- let me restate.
19 A. Okay. 20 Q. I believe we were talking past each other.
21 A. Yeah. 22 Q. You discuss in your testimony the examples
23 that Mr. Blatter provided in his testimony about
24 tracks that became hits after SiriusXM plays,
25 correct?
Heritage Reporting Corporation (202) 628-4888 2613
1 A. I've talked about the example that
2 Mr. Blatter provided, yes.
3 Q. And if we -- actually, we can pull that
4 paragraph 41 up again. Sorry, George.
5 And you note that your analysis of these
6 examples provided by Mr. Blatter is based on -- I
7 think this may be the wrong paragraph. One second.
8 Sorry, paragraph 42. My apologies.
9 You note that your analysis of the examples
10 provided by Mr. Blatter is based on teleconferences
11 with record company staff and other available
12 information. 13 Do you see that? 14 A. Yes. 15 Q. And the other available information you
16 reference are publicly available articles, right?
17 A. Many of them, yes. 18 Q. All of them actually, right?
19 A. Yes. Yes, they're -- yeah, they're cited,
20 they're publicly available. 21 Q. And you ultimately offer a conclusion
22 regarding whether the services' examples speak to the
23 services' promotional effects, right?
24 A. Services -- I think the intent of the
25 testimony is to use these examples as evidence of the
Heritage Reporting Corporation (202) 628-4888 2614
1 services' effect.
2 Q. Well, your conclusion is that the services'
3 anecdotes are flawed and likely overstate the
4 services' promotional effects, correct?
5 A. Yes.
6 Q. But you didn't conclude that the services
7 are actually overstating their promotional effects,
8 correct?
9 A. Actually -- I can't say that I have
10 quantitative evidence to do it, but I would feel safe
11 to say they have overstated it, yes.
12 Q. Well, let me pull up your paragraph 7 of
13 your testimony, then. It's page 6.
14 You -- your conclusion here is that they
15 likely overstate, correct? 16 A. Yes. 17 Q. And as I indicated, you don't conclude that
18 they actually overstate the effects, correct?
19 A. Yeah, it's likely overstates. That's what
20 it says. 21 Q. So I'd like to talk a little bit now about
22 your -- the information underlying your assertion
23 that the services likely overstate the promotional
24 effects. 25 A. Yes.
Heritage Reporting Corporation (202) 628-4888 2615
1 Q. So just to go into your background a little
2 bit, since graduating from Auburn, you've only worked
3 as either an economist or an adjunct professor,
4 correct?
5 A. As an economist, yes.
6 Q. And your day-to-day employment is not and
7 has never been in the recorded music industry,
8 correct?
9 A. I was employed in the music industry for a
10 number of years, and I've actually recorded a record,
11 but I can't say I've held a job at a record label.
12 Q. Okay. You've never worked at any record
13 label? 14 A. No. 15 Q. And you've never worked at SiriusXM or
16 Pandora? 17 A. No. 18 Q. And you've never managed artists, correct?
19 A. No. 20 Q. So you indicate here in paragraph 7 that the
21 anecdotes likely overstate the services' promotional
22 effects, and in forming that opinion, you
23 participated in several teleconferences with record
24 company executives responsible for marketing,
25 promotion, sales, and business affairs, correct?
Heritage Reporting Corporation (202) 628-4888 2616
1 A. Yes.
2 Q. So putting aside your teleconferences with
3 record company executives, you have no personal
4 knowledge on which to base your opinion that the
5 anecdotes likely overstate the services' promotional
6 effects, correct?
7 A. No, I disagree.
8 Q. What's your personal knowledge?
9 A. The knowledge is what kind of data is
10 required to demonstrate a causal effect, and there's
11 nothing in there that would support that in empirical
12 science. 13 Q. You're saying that your personal knowledge
14 is the lack of knowledge? 15 A. My personal knowledge is what it takes to
16 produce a causal result to support a plausibly causal
17 result. It requires certain conditions to do that,
18 and these conditions do not exist in this testimony.
19 Q. You've done no empirical analysis on
20 promotional effects, correct? 21 A. That's not true. 22 Q. In this testimony, this written rebuttal
23 testimony, you've done empirical analysis on
24 promotional effects? 25 A. I didn't do it in this testimony. I believe
Heritage Reporting Corporation (202) 628-4888 2617
1 I did it the last time when we had a long series of
2 -- of sales and -- and play data, and did a little
3 bit. It wasn't very sophisticated. I haven't done a
4 large study of promotional effects. I think it would
5 be very difficult to do such a study.
6 People have tried it, and it has been not
7 very good and the results are very mixed. But when
8 -- when I -- even without the help of the industry
9 experts at the record labels, I don't think any
10 economist would look at the evidence presented and
11 conclude that this offered evidence of a causal
12 effect between SiriusXM's behavior and the success of
13 the record. 14 CHIEF JUDGE FEDER: Dr. Ford, you said: I
15 believe I did it the last time when we had a long
16 series of sales, et cetera, et cetera.
17 By "the last time," are you referring to
18 your designated testimony that was admitted earlier
19 today? 20 THE WITNESS: Did that include rebuttal or
21 no? Alex? 22 MR. TREPP: No, that doesn't include your
23 rebuttal testimony. 24 THE WITNESS: I think that was in rebuttal
25 testimony, then.
Heritage Reporting Corporation (202) 628-4888 2618
1 CHIEF JUDGE FEDER: All right, thank you.
2 THE WITNESS: Yeah.
3 BY MS. FALK:
4 Q. So, Dr. Ford, my question to you, you have
5 done no analysis, no empirical analysis on
6 promotional effects in connection with your testimony
7 in this proceeding, correct?
8 A. Correct.
9 Q. You noted during direct examination that you
10 did not focus on substitution in your testimony,
11 correct? 12 A. There was a lot of talk about substitution,
13 but my objective was to address the testimony in
14 rebuttal on promotional effects. 15 Q. So you did not, for example, rebut
16 paragraphs 12 through 17 of Mr. Blatter's testimony
17 that addressed substitution, correct?
18 A. Can you show that to me?
19 Q. I can show it to you. 20 MS. FALK: We may have to go into restricted
21 session. I believe there's some restricted
22 information in those paragraphs. It's a yes-or-no
23 question if the witness recalls whether he has
24 actually responded to any substitution testimony.
25 THE WITNESS: I can't say it until I see it.
Heritage Reporting Corporation (202) 628-4888 2619
1 CHIEF JUDGE FEDER: Okay. Then we will
2 briefly go into restricted session. Will the host
3 please clear the virtual hearing room.
4 MR. SACK: Your Honor, please stand by. We
5 are beginning to clear the room now.
6 If you are an attendee in the Zoom meeting
7 who is not allowed to attend restricted session,
8 please leave the session by clicking the red "leave"
9 button on the bottom of the right-hand side of your
10 screen or click the "X" at the top right-hand side.
11 Your counsel will inform you when you are allowed to
12 return to the proceeding. 13 Please stand by, Your Honors and counsel,
14 while we clear the room. 15 (Whereupon, the trial proceeded in
16 confidential session.) 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2622
1 O P E N S E S S I O N
2 MR. SACK: The room is unlocked and the
3 stream is live.
4 CHIEF JUDGE FEDER: We are back in open
5 session. You may proceed, Ms. Falk.
6 MS. FALK: Thank you.
7 BY MS. FALK:
8 Q. Dr. Ford, you haven't undertaken any
9 empirical analysis to determine whether SiriusXM is
10 net promotional or net substitutional in your written
11 rebuttal testimony, right? 12 A. I have not. 13 Q. And to be clear, your testimony does not
14 conclusively rule out that SiriusXM may have
15 promotional effects that would require adjusting the
16 proposed benchmark rate, correct? 17 A. Repeat that question. 18 Q. Sure. Your testimony does not conclusively
19 rule out that SiriusXM may have promotional effects
20 that would require adjusting the proposed benchmark
21 rate, correct? 22 A. I think my testimony says it doesn't matter
23 what SiriusXM does. It's the whole thing. All users
24 of the statutory license is where the promotional
25 effect has to be determined, so what SiriusXM does is
Heritage Reporting Corporation (202) 628-4888 2623
1 a piece of the puzzle; it is not the -- not really
2 answer the question.
3 MS. FALK: No further -- no further
4 questions at this time.
5 CHIEF JUDGE FEDER: Thank you, Ms. Falk.
6 We will take a 15-minute recess and then
7 continue with Mr. Mattern's cross-examination of
8 Dr. Ford.
9 (A recess was taken at 5:02 p.m. EDT, after
10 which the trial resumed at 5:18 p.m. EDT)
11 CHIEF JUDGE FEDER: Okay. If the host will
12 please reestablish the public feed, we can get
13 started. 14 MR. SACK: Stand by, Your Honor. Thank you.
15 The feed is live. 16 CHIEF JUDGE FEDER: Okay. We are back on
17 the record. 18 Mr. Mattern, please proceed with your
19 cross-examination of Dr. Ford. 20 MR. MATTERN: Thank you, Judge Feder.
21 Your Honors, we will have no questions for
22 this witness. 23 CHIEF JUDGE FEDER: Well, that was easy.
24 Do you have any redirect, Mr. Trepp?
25 MR. TREPP: I do not have any redirect and
Heritage Reporting Corporation (202) 628-4888 2624
1 thanks very much to everyone for bearing through --
2 with me through the technical issues.
3 CHIEF JUDGE FEDER: Thank you. All right.
4 Mr. Ford, Dr. Ford, you may step down. And we will
5 take a -- I think it's about a five-minute recess
6 while they reset for Dr. Shapiro's or Professor
7 Shapiro's testimony.
8 THE WITNESS: Good to see you guys again.
9 Be safe. 10 CHIEF JUDGE FEDER: You too. Thank you.
11 (The witness stood down.)
12 (A recess was taken at 5:19 p.m. EDT, after
13 which the trial resumed at 5:24 p.m. EDT)
14 CHIEF JUDGE FEDER: Thank you. We are back
15 on the record. 16 Good afternoon, Professor Shapiro.
17 THE WITNESS: Good afternoon, Chief Judge
18 Feder. 19 CHIEF JUDGE FEDER: Will you please raise
20 your right hand. 21 Whereupon-- 22 CARL SHAPIRO, 23 having been first duly sworn, was examined and
24 testified as follows: 25 CHIEF JUDGE FEDER: Thank you. You may
Heritage Reporting Corporation (202) 628-4888 2625
1 proceed, Mr. Marks.
2 MR. MARKS: Thank you, Your Honor.
3 DIRECT EXAMINATION
4 BY MR. MARKS:
5 Q. Good afternoon, Dr. Shapiro. Before we
6 begin, could I just ask you to make sure that your
7 phone is off and any e-mail programs are closed?
8 A. Okay. Yes.
9 Q. And would you please state your name for the
10 record. 11 A. Carl Shapiro. 12 Q. Do you currently hold an academic position?
13 A. Yes, I do. I'm a professor emeritus at the
14 University of California Berkeley.
15 Q. And when did you join the faculty at
16 Berkeley? 17 A. 1990. 18 Q. And have you had full-time appointments with
19 any other universities? 20 A. Yes, I was at Princeton as a professor
21 during the 1980s. 22 Q. Would you please summarize your educational
23 background in economics. 24 A. Ph.D. from MIT and also undergraduate degree
25 there.
Heritage Reporting Corporation (202) 628-4888 2626
1 Q. And within the field of economics, do you
2 have particular areas of specialty?
3 A. Yes, my field is industrial organization and
4 I tend to work in areas of antitrust economics,
5 competitive strategy, intellectual property,
6 economics and innovation.
7 Q. And have you taught classes at Berkeley in
8 those areas?
9 A. Yes, generally. 10 Q. And have you written dozens of articles in
11 your areas of expertise that were published in
12 peer-reviewed journals? 13 A. Yes, I have. 14 Q. Judge Strickler asked Professor Willig about
15 an article called The Tragedy of the Anticommons.
16 Are you familiar with that article?
17 A. Yes, I am. 18 Q. Have you published articles on The Tragedy
19 of the Anticommons? 20 A. Yes, I have published several articles in
21 that line of work having to do with what happens when
22 we have complementary inputs. I've particularly
23 worked in the area of standard essential patents.
24 For example, if you have a cell phone, Apple makes a
25 cell phone, there will be maybe literally thousands
Heritage Reporting Corporation (202) 628-4888 2627
1 of patents that they must practice and potentially
2 infringe, to be compliant with various standards.
3 So this creates a patent thicket, as I use
4 the term. There's royalty stacking and those are the
5 same elements, underlying elements in The Tragedy of
6 the Anticommons.
7 Q. Have you written or co-written any books in
8 the field of economics?
9 A. Yes, I have. 10 Q. And does Appendix A to your written direct
11 testimony contain a list of your publications?
12 A. It does. 13 Q. In addition to your work as a professor,
14 have you worked for the Department of Justice?
15 A. Yes, I was the chief economist there in 1995
16 to '96 and again 2009 to '11. 17 Q. Have you ever been a Senate-confirmed member
18 of the President's Council of Economic Advisors?
19 A. Yes, immediately after my second tour at
20 DOJ, I went over to the White House and served as a
21 member of the Council of Economic Advisors under
22 President Obama. 23 Q. Have you been offered and accepted as an
24 expert witness in prior litigation matters?
25 A. I have.
Heritage Reporting Corporation (202) 628-4888 2628
1 Q. Approximately how many times.
2 A. I'd estimate I've testified in court roughly
3 once a year or slightly more over the past 20 years
4 or so.
5 MR. MARKS: Your Honors, at this point, I
6 offer Professor Shapiro as an expert in industrial
7 organization, antitrust economics, and the economics
8 of innovation and intellectual property rights.
9 CHIEF JUDGE FEDER: Mr. Handzo?
10 MR. HANDZO: No objection.
11 CHIEF JUDGE FEDER: Without objection,
12 Professor Shapiro is so qualified.
13 BY MR. MARKS: 14 Q. Professor Shapiro, did you prepare written
15 direct testimony in connection with this proceeding?
16 A. I did. 17 Q. Let me show you a document that's been
18 marked for identification as Exhibit 4094. Do you
19 recognize this document as your second corrected
20 written direct testimony? 21 A. Yes. 22 Q. If we can turn to page 43 of the PDF of the
23 exhibit, which is the last page before the
24 appendices. 25 Is that your signature?
Heritage Reporting Corporation (202) 628-4888 2629
1 A. Yes, it is.
2 MR. MARKS: Your Honors, I offer
3 Exhibit 4094 into evidence.
4 CHIEF JUDGE FEDER: Mr. Handzo?
5 MR. HANDZO: No objection, Your Honor,
6 subject to any line-by-line objections that we have
7 made.
8 CHIEF JUDGE FEDER: Without objection,
9 subject to any line-by-line objections, Exhibit 4094
10 is admitted. 11 (SXM/PAN Exhibit Number 4094 was received
12 into evidence.) 13 BY MR. MARKS: 14 Q. Professor Shapiro, did you prepare written
15 rebuttal testimony in connection with this
16 proceeding? 17 A. I did. 18 Q. Let me show you a document that's been
19 marked for identification as Exhibit 4107. Do you
20 recognize this document? 21 A. Yes. 22 Q. Is this your written rebuttal testimony?
23 A. Yes. 24 Q. If we can turn to the last page, please. Is
25 this your signature?
Heritage Reporting Corporation (202) 628-4888 2630
1 A. Yes.
2 MR. MARKS: Your Honors, I offer
3 Exhibit 4107 into evidence.
4 CHIEF JUDGE FEDER: Mr. Handzo?
5 MR. HANDZO: No objection, subject to the
6 pending line-by-line objections.
7 CHIEF JUDGE FEDER: Without objection,
8 Exhibit 4107 is admitted subject to any line-by-line
9 objections that the Judges have not yet ruled on.
10 (SXM/PAN Exhibit Number 4107 was received
11 into evidence.) 12 BY MR. MARKS: 13 Q. Professor Shapiro, would you please describe
14 the nature of the assignment that Pandora and
15 SiriusXM asked you to perform in connection with this
16 matter? 17 A. Certainly. They asked me to conduct an
18 economic analysis to derive proposed rates for this
19 proceeding for statutory webcasters over the 2021 to
20 '25 time period. 21 This was separately for the advertising
22 supported side and the subscription side of
23 webcasting -- excuse me, of webcasters. I also -- my
24 assignment, I guess, grew to include responding to
25 the experts for SoundExchange.
Heritage Reporting Corporation (202) 628-4888 2631
1 Q. And have you prepared slides to accompany
2 your testimony today?
3 A. Yes, I have.
4 Q. All right. Let's pull those up, please.
5 All right. Would you please give us a brief
6 high-level overview of the topics you'll be
7 addressing today and into tomorrow?
8 A. Certainly. Your Honors, the slide shows the
9 three main groupings of the testimony I'll be giving.
10 The first area, rate-setting context, is just really
11 setting the table in terms of willing buyer/willing
12 seller effective competition. The economic elements
13 we're going to be drawing on, that'll be short.
14 The second module is the bargaining model
15 approach. So this is -- parallels what you've heard
16 from Professor Willig. So I will develop a -- a
17 bargaining model, present that, which is the basis
18 for a proposed rate that I derive using that model.
19 I will respond to criticisms Professor
20 Willig has levied at that and should say the extent
21 Professor Tucker is also addressing the -- is also
22 relevant here. And I'll address that.
23 And then I will address the approach taken
24 by Professor Willig and then I'll be flipping into
25 rebuttal mode there.
Heritage Reporting Corporation (202) 628-4888 2632
1 And then the same structure, again, with the
2 benchmarking approach, where my counterpart will be
3 more -- primary counterpart will be Mr. Orszag.
4 Q. Okay. Would you please briefly summarize
5 your bargaining model approach and the conclusions as
6 to a reasonable royalty rate that you reached based
7 on that approach?
8 A. Certainly. So I should say my approach,
9 this bears much in common with what you've heard at
10 length in detail from Professor Willig. There are
11 two key inputs into the bargaining model as shown
12 here on the slide: The opportunity cost of licensing
13 as experienced by the record label, so that's the
14 seller cost in the bargaining situation.
15 And the incremental profits to the service,
16 the webcaster, from licensing. That -- that'll be
17 the buyer's willingness to pay. And then that
18 brackets what you can get in a bargaining situation.
19 I should say this will be done on a
20 per-performance basis. Then I will do
21 split-the-difference bargaining. There are multiple
22 bargains going on that all need to be made
23 consistent, and so I use the Nash-in-Nash Bargaining
24 Model to do that. 25 As indicated, there's separate derivations
Heritage Reporting Corporation (202) 628-4888 2633
1 for the advertising supported webcasters and for
2 subscription webcasters, so there's a bargaining
3 model for each side, if you will. And the rates
4 generated are shown here on the advertising-supported
5 side. The range is from 4 to 11. I will use the
6 language when I say 4, I mean cents per hundred
7 plays.
8 So the range is 4 to 11. I will focus all
9 of my testimony here on the upper end of that range
10 and the -- what lies -- what underlies that
11 calculation. 12 On the subscription side, the range is 6 to
13 16. Again, cents per hundred performances. And I
14 will focus on the 16 number and how I derived that in
15 my testimony. 16 Q. And would you please briefly summarize your
17 benchmarking approach and the conclusions as to a
18 reasonable royalty rate that you reached based on
19 that approach? 20 A. So the benchmarking approach, in many ways I
21 follow quite closely what was done in Web IV with
22 benchmarking. And, again, there are some real
23 commonalities here with Mr. Orszag, but we part
24 company pretty early in the -- in the process.
25 We both do use interactive service
Heritage Reporting Corporation (202) 628-4888 2634
1 agreements as benchmarks. And in my case, I use
2 agreements between record companies and subscription
3 on-demand services as a benchmark for the
4 subscription side, and the agreements between record
5 companies and ad-supported on-demand services as my
6 benchmark on the ad-supported side. So that's where
7 I'm already doing things differently than Mr. Orszag.
8 So I calculate the effective per-performance
9 rates in the benchmark agreements, and then I make
10 three adjustments to those rates for interactivity,
11 skips, and effective competition. Those are all
12 upward adjustments -- excuse me -- excuse me, yes,
13 upward -- I'm sorry, make three adjustments to those
14 rates. Those are all downward adjustments because we
15 start with a very high rate that has these -- well,
16 I'll explain. 17 And when I make those adjustments, I get a
18 range of advertising supported side from 6 to 12,
19 depending on exactly which adjustments are made, and
20 on the subscription side, I get 16.
21 Q. Okay. Let's -- let's dig in. What do you
22 understand to be the task of the Judges here?
23 A. So I understand the task to be to determine
24 rates that would be negotiated between a willing
25 buyer and a willing seller, absent influence of the
Heritage Reporting Corporation (202) 628-4888 2635
1 statutory license under conditions of effective
2 competition.
3 Q. And who is the willing seller in this
4 hypothetical negotiation?
5 A. So this would be an individual record
6 company offering a catalogue-wide license.
7 Q. And who is the willing buyer in this
8 hypothetical negotiation?
9 A. A non-interactive webcaster, separately in
10 the analysis will first consider -- will do both
11 ad-supported webcasters as one mode of analysis and
12 then subscription we'll do separately, since these
13 are different types of buyers. 14 Q. And you mentioned that the negotiation would
15 take place under conditions of effective competition.
16 Would you please explain what you mean by
17 effective competition? 18 A. Effective competition in a nutshell means
19 that no single seller has substantial unilateral
20 market power such as monopoly power and there's no
21 collusion or coordination among the sellers.
22 Another way to put it is that the buyers are
23 able to play the sellers off against each other in a
24 significant way to obtain lower rates than they would
25 otherwise get.
Heritage Reporting Corporation (202) 628-4888 2636
1 Q. Does Professor Willig model an effectively
2 competitive market?
3 A. No, he does not.
4 Q. Is a model with must-have suppliers
5 consistent with effective competition?
6 A. No, it is not.
7 Q. Professor Willig testified as part of his
8 direct examination about competition between major
9 labels to attract artists and produce hits.
10 Does competition between major record
11 companies to attract artists and produce hit songs
12 create an effectively competitive market to license
13 record company catalogues to streaming services?
14 A. No. And I don't believe he said it did. It
15 just seemed like he was distracting our attention to
16 this completely separate upstream market as between
17 the record companies and the artists. That's not the
18 market we're looking at here. We're looking at
19 markets that involve a licensing of recorded music to
20 webcasters. 21 JUDGE STRICKLER: Professor Shapiro, I have
22 a question for you. Good afternoon. How are you?
23 THE WITNESS: I'm good. Nice to see you,
24 Judge Strickler. 25 JUDGE STRICKLER: Same here.
Heritage Reporting Corporation (202) 628-4888 2637
1 On the slide that we were just looking at
2 and still are, the rate setting context, and
3 consistent with your testimony a moment ago, you said
4 that for there to be effective competition, no
5 individual record company can be a must-have for the
6 webcast.
7 Going back to Web IV, I recall that you
8 testified that you couldn't state or wouldn't state
9 for certain one way or the other whether the majors
10 were, in fact, must-haves. But it was your opinion,
11 ultimately adopted in Web IV, that when there was
12 steering of -- of sound recordings from, among record
13 companies, both independents in the case of Merlin
14 and Warner, in the case of a major, that that could
15 create a market with effective competition.
16 So is it -- is it, in fact, your testimony
17 that in order for there to be effective competition,
18 no company, no major can be a must-have?
19 THE WITNESS: Yes, it is. The -- we're
20 going to talk about this in the next slide, but this
21 is good. 22 The -- what we had in Web IV, Your Honor,
23 was a certain amount of steering competition. So
24 that's competition for plays at the margin. And it
25 was Merlin, not a major, who was engaging in that
Heritage Reporting Corporation (202) 628-4888 2638
1 mode of competition.
2 The primary focus of competition here,
3 certainly in Professor Willig's model and mine, is --
4 is not steering, it's competition or lack thereof to
5 be carried by a label.
6 And so what I'm saying here, first, is you
7 cannot have competition to be carried when you have
8 must-have labels. Carriage competition can affect
9 the average rate that will be agreed to. Steering
10 competition can lower the marginal rate, but not the
11 average rate when you have must-have labels.
12 JUDGE STRICKLER: And it was your opinion in
13 Web IV that the steering that changed that marginal
14 rate created a market condition that was consonant
15 with effective competition; isn't that right?
16 THE WITNESS: I think what -- I wouldn't put
17 it quite that way. I would say we derived a rate
18 from the Merlin agreement with Pandora that reflected
19 some steering competition. And so using that rate, I
20 use that rate as a -- to handle competition, steering
21 competition. 22 That did not mean the overall market was
23 competitive because the majors could still get far
24 higher average rates given their must-have power.
25 JUDGE STRICKLER: Well, you just said that
Heritage Reporting Corporation (202) 628-4888 2639
1 that made the market not competitive. Effective
2 competition, do you agree that the phrase effective
3 competition is a matter of degree to some extent,
4 rather than a matter of kind?
5 THE WITNESS: Yes, I do. What I meant was
6 the overall market rates were not at levels that
7 would reflect effective competition. I was able to
8 identify a particular marginal rate, a rate that --
9 in the agreement between Pandora and Merlin that was
10 usable as an effectively competitive rate. It wasn't
11 a statement about the market as a whole.
12 JUDGE STRICKLER: Thank you, Professor.
13 THE WITNESS: You're welcome.
14 BY MR. MARKS: 15 Q. Professor Shapiro, can a market with a
16 single monopoly supplier be effectively competitive?
17 A. No, that would basically gut the notion of
18 effective competition. 19 Q. And you've used the term must-have. What do
20 you mean when you state that a record company is a
21 must-have for a particular music service?
22 A. I mean that lacking the ability to play that
23 label's music, the music service would, in time,
24 either have to go out of business or basically so
25 transform itself that it would not really be offering
Heritage Reporting Corporation (202) 628-4888 2640
1 the same -- the same service anymore. In other words
2 -- another way to put that would be the -- the label
3 is necessary for the service to be commercially
4 viable.
5 JUDGE STRICKLER: Professor Shapiro, another
6 question for you based on what you just said.
7 You said in response to Mr. Marks' question
8 that if there was a monopoly supplier of sound
9 recordings, then it could not be a market that was
10 effectively competitive. 11 In -- in the antitrust field, which you're
12 qualified as an expert in, the mere fact that a
13 company is a monopoly doesn't mean that that
14 company's existence and behavior as a monopolist,
15 per se, constitutes a violation of the antitrust
16 laws. 17 So how do you square that with the idea that
18 if there is a monopoly seller of sound recordings,
19 the market cannot be effectively competitive?
20 Do we need to know anything about why that
21 company is a monopoly and how it performs as a
22 monopoly? 23 THE WITNESS: Well, in antitrust, we very
24 much need to know because if there was, say, a
25 Section 2 issue about whether -- the Sherman Act
Heritage Reporting Corporation (202) 628-4888 2641
1 Section 2 question about whether the company had
2 violated Sherman Act Section 2, that is, monopolized
3 or to economists done something to -- to, let's say,
4 maintain its monopoly. We would need to know what
5 conduct was involved.
6 But the mere possession of monopoly is not
7 -- is not something that I or other economists, you
8 know, antitrust law I'll venture to say is a problem.
9 In our setting here now, if there were -- if you had
10 a single monopolist, you might say they achieved
11 that, maybe they achieved it by -- on the merits but
12 then they'd still have a monopoly and the rates that
13 would result would be monopoly rates. It would not
14 be an effectively competitive market and that's -- we
15 would need to factor that in in thinking about the
16 rates that they charged. 17 JUDGE STRICKLER: So the presence of a
18 monopoly might not run afoul of Section 2 of the
19 Sherman Act, but it would still not be an effectively
20 competitive market; is that your testimony?
21 THE WITNESS: Absolutely. I think it's an
22 important principle, it's in antitrust law but just
23 as an economist that if a company obtains a monopoly
24 position by competing on the merits, simply having
25 better products, lower costs, we applaud that. We
Heritage Reporting Corporation (202) 628-4888 2642
1 may hope that competition will spring out on top of
2 that, but there's nothing wrong with what the
3 company's done. It's competed and won.
4 But for a rate-setting context, we then
5 would say great, you've a monopoly, maybe it's a
6 railroad, they were the first ones to build the track
7 and we applaud them but they're going to charge
8 monopoly rates if we have a rate-setting regime as
9 distinct from antitrust law, we would then want to
10 look at the rates and see if they were -- you know,
11 how they would be regulated depending on the -- the
12 relevant statute. 13 JUDGE STRICKLER: Thank you, Professor.
14 BY MR. MARKS: 15 Q. Professor Shapiro, what are the
16 characteristics of a market that features multiple
17 must-have suppliers? 18 A. Well, that is something that the Judges in
19 Web IV and Set 3, I believe, called complementary
20 oligopoly, which is, they didn't -- it's a good term,
21 let's just say. 22 So the characteristics of -- so we'll use
23 that term of a market with a complementary oligopoly.
24 This relates exactly to the anti-competence royalty
25 stocking. It's the same idea, you end up in that
Heritage Reporting Corporation (202) 628-4888 2643
1 market -- can end up with such a market with rates
2 that are even higher than monopoly rates. It's a
3 type of dysfunction that was first studied by Cournot
4 in 1838.
5 Q. What if we have just one must-have label,
6 not multiple? Would that still be an effectively
7 competitive market?
8 A. No, we're back to the monopoly situation
9 there. 10 Q. Another preliminary question. Do you need
11 active coordination between the labels to get
12 supracompetitive rates if there's a complementary
13 oligopoly? 14 A. No. In fact, what I just said about
15 complementary oligopoly being a type of dysfunction
16 that leads to rates above monopoly rates assumes that
17 the companies are not coordinating. If they could
18 coordinate, they might actually be able to lower
19 rates down to the monopoly level, but the problem
20 arises from having essentially multiple monopolists
21 on top of each other, which we're calling the
22 complementary oligopoly. 23 Q. Can competitive outcomes arise even with a
24 must-have seller if the buyer is a must-have
25 distributor for that seller?
Heritage Reporting Corporation (202) 628-4888 2644
1 A. No. That -- that would not be a competitive
2 situation. So -- but let me unpack that a little
3 more.
4 You just brought in the idea of a must-have
5 buyer or distributor. So let's just first define
6 what that would mean.
7 A must-have buyer would be -- and this is
8 exactly parallel to must-have seller -- a must-have
9 buyer would mean the sellers would not be
10 commercially viable if they cannot sell their product
11 through that distributor or buyer.
12 So if you have a must-have seller and a
13 must-have buyer, you've got kind of a mutual shared
14 destruction sort of situation. They need to come to
15 a deal, otherwise they're both going to be, you know,
16 in deep trouble. 17 That's not competition on either side.
18 It's -- it's this mutual shared destruction
19 situation. 20 JUDGE STRICKLER: Would that be a bilateral
21 -- excuse me, Mr. Marks, I'm sorry.
22 Professor, would that be a bilateral
23 monopoly situation? 24 THE WITNESS: I think we could use that
25 term. I'm not sure the term -- the term may be used
Heritage Reporting Corporation (202) 628-4888 2645
1 more broadly, I'm not 100 percent sure, but I think
2 it's a good term. I like it for this situation I've
3 just described.
4 And one thing I'll say is in that bilateral
5 monopoly, there's enormous gains for trade because
6 unless they come up with a deal, they're both out of
7 business.
8 So there's big bargaining going on, right,
9 because gains to trade are enormous, and one could
10 imagine, we don't know -- we can talk about what
11 happens in that bargaining outcome, but it's not
12 effective competition or anything like it.
13 BY MR. MARKS: 14 Q. Does that type of bilateral monopoly
15 situation actually arise in the licensing market for
16 non-interactive services? 17 A. No, it does not. The largest
18 non-interactive service is Pandora. And as I note in
19 my written direct testimony, Pandora accounts for, I
20 think, about 9 percent of the U.S. revenue of
21 recorded music from the major labels. So that's not
22 -- Pandora is not a must-have buyer or distributor
23 for those labels. So we do not have that situation
24 in that market. 25 Q. Does -- does that type of bilateral monopoly
Heritage Reporting Corporation (202) 628-4888 2646
1 situation actually arise in the licensing market for
2 on-demand services?
3 A. No, it does not arise there either. In that
4 case, and we're going to go through these numbers
5 later, but the largest on-demand services are Spotify
6 and Apple Music. And they each account for,
7 depending on when you measure it --
8 Q. Let's be careful about numbers while we're
9 in public session, but why don't you describe the
10 point narratively without using actual numbers and
11 we'll come back to it in restricted session, how
12 about that? 13 A. That's fine. I apologize.
14 Let's just say they are -- the two largest
15 are Apple and Spotify, and they do not have nearly
16 the share of -- on the buy side, that would -- well,
17 you can't have a monopoly because there's already two
18 of them for starters but nor is it duopoly on that.
19 There -- neither of them is necessary as a must-have
20 distributor and we'll talk about that later.
21 Q. Mr. Orszag, when he testified, referred to
22 Spotify and Apple as being must-have distributors for
23 record companies. 24 Is he using must-have in the same way that
25 you are?
Heritage Reporting Corporation (202) 628-4888 2647
1 A. No, I don't believe he is, at least as
2 regards in that setting, in that statement. As I
3 hear him, read him and hear him, he's using the term
4 must-have more loosely and he talks about how an
5 impasse, let's say, between a major record label and
6 Spotify, would cause something like significant
7 financial -- have significant financial repercussions
8 for the record company. And that's quite a different
9 question than being a must-have distributor.
10 JUDGE STRICKLER: Professor, you have used
11 -- I'm sorry, Mr. Marks. 12 Professor, you've used -- you've used the
13 phrase as others have, and as we have in Web IV as
14 well, and other cases, the phrase "must-have." In
15 the economic literature there's something known as
16 the essential facilities doctrine or essential inputs
17 doctrine, if you will. 18 Is there a difference as far as you
19 understand it between a concept of must-have as we're
20 using it in this proceeding and the concept of an
21 essential facility or an essential input?
22 THE WITNESS: Not much. I'm -- I'm
23 pondering that. It's a new question for me.
24 I don't think so. And let me explain what I
25 mean. When I think of essential inputs, the classic
Heritage Reporting Corporation (202) 628-4888 2648
1 case was the terminal -- was a railroad bridge in
2 1912 or something over the Mississippi River. One
3 company owned it and the other railroads couldn't get
4 across the river without using the bridge.
5 So they really couldn't provide services
6 without that input. If that's the notion of
7 essential, which is I think a commonly used one, then
8 it is a must-have supplier of the bridge in that
9 case. 10 JUDGE STRICKLER: Thank you, Professor.
11 BY MR. MARKS: 12 Q. Professor Shapiro, have you looked for
13 evidence of effective competition in upstream markets
14 for the licensing of recorded music to streaming
15 services? 16 A. Yes, I have, closely. 17 Q. And do you distinguish -- do you make any
18 distinctions in -- in upstream markets to license
19 sound recordings to streaming services?
20 A. Oh, well certainly. I guess I could have
21 said I've looked very closely at the presence or
22 absence of effective competition in the upstream
23 interactive market, that is the market for the
24 licensing of recorded music to interactive services.
25 And that's very important because that's
Heritage Reporting Corporation (202) 628-4888 2649
1 central to the benchmarking exercise. And I -- I
2 find that that's a complementary oligopoly.
3 The other upstream market that we tend to
4 talk about is the target market, right, the licensing
5 of recorded music to statutory -- to webcasters. And
6 that is not something in the real world that we're
7 looking at effective competition there because that's
8 governed by the statute. But we do have to model
9 that in the bargaining approach, we have to model
10 that market and that'll be important to model
11 effective competition as part of the rate-setting
12 exercise. 13 Q. You've talked a little bit already about
14 steering competition and carriage competition. Just
15 so we have a complete record, let's look at those
16 terms. 17 What do you mean by "steering"? Let's start
18 with that. 19 A. So I mean by steering when a music service
20 adjusts the mix of the performances it is making on
21 its service in order to favor less expensive music.
22 That could be steering toward a record company that
23 offers less expensive -- offers a lower royalty rate
24 or steering away from a company that has a higher
25 royalty rate than others.
Heritage Reporting Corporation (202) 628-4888 2650
1 So that's steering. And it's tied to --
2 Q. So what did -- sorry, I was going to say so
3 then if that's what steering is, then what would
4 steering-based price competition be?
5 A. Thank you. So steering-based price
6 competition, as indicated on the slide, is when a
7 record company agrees to a lower rate in order to
8 gain or protect its play share or spin share on a
9 service. 10 Q. Do you use the term steering to refer just
11 to the ability to influence some of what consumers
12 hear such as when an on-demand service like Spotify
13 programs a service-generated playlist?
14 A. No, I don't. There's no dispute, I think,
15 that Spotify can influence listening on its on-demand
16 service through the playlists that it generates. But
17 that does not by any means mean that there has been
18 steering-based price competition between the major
19 record companies to gain or protect play share on
20 Spotify. 21 Q. And why does that distinction matter for
22 purposes of your benchmarking exercise?
23 A. Because we are going to spend quite a bit of
24 time trying to figure out whether the rate paid,
25 especially by Spotify, is -- represents the forces of
Heritage Reporting Corporation (202) 628-4888 2651
1 effective competition or not. And so we need to
2 distinguish between these two notions of the notion
3 of steering-based price competition and simply
4 ability to influence listening.
5 Q. And -- and is the ability of a streaming
6 service to influence which music consumers hear
7 sufficient on its own to ensure competitive prices in
8 the upstream market for sound recording licenses?
9 A. It is not. And I think this will become, I
10 hope, even clearer when we get to the Spotify
11 analysis. 12 Q. Okay. What is carriage competition and how
13 does it differ from steering-based price competition?
14 A. So carriage competition occurs when a
15 webcaster gains significant bargaining leverage by
16 threatening to drop a record company entirely from
17 its service, that is, not to carry that record
18 company's music. 19 If that threat -- threat -- I'm going to use
20 the word threat in a neutral sense, in a bargaining
21 theory sense. If -- if the prospect that that can
22 happen gives the webcaster significant bargaining
23 leverage, then we would be seeing carriage
24 competition. 25 Q. And can there be effective carriage
Heritage Reporting Corporation (202) 628-4888 2652
1 competition if a label is must-have?
2 A. No. And this was what I was getting into
3 with Judge Strickler a few minutes ago. No, and let
4 me explain why.
5 If a webcaster -- if you have a must-have
6 label, and the webcaster, I'll again say threatens to
7 drop them, but again, I'm going to use threaten but
8 it's not a mean word, it just means a fallback, going
9 to the fallback, that's -- there's no -- there's no
10 bargaining leverage to be had from that because
11 without the must-have label, the webcaster is not
12 commercially viable. 13 So it's not possible to have carriage
14 competition when we have must-have labels. There
15 still could be elements of steering competition, and
16 that's what I relied on in Web IV to come up with a
17 rate to use as an effectively competitive rate.
18 Q. You note on the slide in the last bullet
19 that experimental evidence shows that even the major
20 record companies are not must-have for Pandora's free
21 service. 22 What evidence is that? 23 A. That's the label suppression experiments
24 that the Judges have already heard a lot about and
25 will hear more.
Heritage Reporting Corporation (202) 628-4888 2653
1 Q. And does this experimental evidence play
2 a -- a role in your rate-setting models?
3 A. It plays a big role. You know, it's very
4 important in my bargaining model, and we're going to
5 talk about it quite a bit.
6 Q. Let's turn to your bargaining model now.
7 Would you please give the Judges an overview of your
8 bargaining model approach and explain what's depicted
9 on this slide? 10 A. Certainly. This -- these are the elements
11 of the bargaining model. They're all -- I believe
12 every single one is shared with the Nash-in-Nash
13 Bargaining Model that Professor Willig included in
14 his written direct testimony. So let me walk through
15 the elements, how it works. 16 First, on this -- you see this line going
17 side to side. That is depicting the royalty rate,
18 which is what we're talking about negotiating over.
19 That's in the bold in the middle there. And
20 negotiation over a per-performance rate.
21 The -- on the left-hand side, then, you see
22 floor for royalty rate. And that's connected to that
23 box up there, it says record company opportunity cost
24 of granting license. So the -- that's the seller's
25 cost, in this case, in the bargaining situation, it's
Heritage Reporting Corporation (202) 628-4888 2654
1 an opportunity cost.
2 So that serves as a lower bound to what the
3 two parties would negotiate, the record company and
4 the webcaster. On the right-hand side, analogously
5 we have a ceiling for the royalty rate, and that's
6 based on the webcaster's willingness to pay, which is
7 the marginal profit they get, that is the profit
8 per-performance on incremental performances from
9 signing a license with this record company.
10 So those are the two, the left hand, the
11 lower and upper bounds, if you will. And then the
12 green arrow is indicating that we're going to -- the
13 model is going to predict an outcome of the
14 negotiations right in the middle. 15 So that's the first bullet below,
16 split-the-difference bargaining. So by putting the
17 negotiated rate smack in the middle of those lower
18 and upper bounds, where this is what we mean by
19 split-the-difference bargaining, and that's,
20 sometimes called Nash Bargaining because he -- his
21 original article on bargaining. 22 So any given -- any single negotiation we
23 handle in this way. But now we have a complication,
24 which is that we're -- actually need to consider
25 multiple bilateral negotiations at once. Let's say
Heritage Reporting Corporation (202) 628-4888 2655
1 multiple record companies negotiating with a
2 webcaster.
3 And the various bilateral negotiations are
4 linked in the sense that the bargaining situation
5 facing any one pair depends on what has happened with
6 the other pairs. So this is where we bring in John
7 Nash again with his Nash equilibrium concept.
8 Nash equilibrium is the dominant way of
9 handling in non-cooperative game theory this type of
10 competition and this type of situation where you've
11 got multiple things going on and you want to look for
12 something that's -- where it all fits together and
13 consistently. And that's what Nash equilibrium does,
14 a separate, also seminal work by John Nash.
15 So the Nash equilibrium part means we look
16 for a solution to all these bargains simultaneously
17 that is consistent. And when we put the Nash
18 Bargaining together with the Nash equilibrium, it's
19 called a Nash-in-Nash bargaining solution. And
20 that's what my model is based on. 21 And, again, I think every single thing I
22 just said would apply equally to Professor Willig's
23 Nash-in-Nash model in his written direct.
24 JUDGE STRICKLER: Excuse me, Mr. Marks.
25 Professor Shapiro, I don't want to get you
Heritage Reporting Corporation (202) 628-4888 2656
1 ahead of your testimony as it'll develop, so I just
2 want to ask you, will you be discussing in more
3 detail later in your testimony the decision to treat
4 the surpluses divided equally 50/50 as opposed to
5 some other division or -- or whether it should be
6 considered indeterminate or not? Is that something
7 you'll be discussing later in your testimony?
8 THE WITNESS: Well, let's do it now since
9 you asked. That's -- that's -- 10 JUDGE STRICKLER: Why not.
11 THE WITNESS: So in my written direct, I
12 address this point. I spend about a page on it. I
13 don't know the page number. 14 I give several reasons why in this case
15 it's, I will say, sensible, justifiable to use the
16 split the difference. One reason that I like quite a
17 bit is that if you -- there's literature on
18 bargaining that shows that the party that's
19 particularly impatient and needs a deal, that is, is
20 impatient, will tend to get a worse deal.
21 And the party that's more willing to wait
22 could do better. So that equates to looking at the
23 cost of capital for companies or bargaining and the
24 company that has a higher cost of capital is more
25 impatient and, therefore, might get less than 50/50.
Heritage Reporting Corporation (202) 628-4888 2657
1 So I looked at the weighted average cost of
2 capital of, I believe. The three majors and at least
3 SiriusXM, and they're very -- quite similar. I don't
4 know the numbers, but it supports the view that 50/50
5 is reasonable here. Of course, iHeart's also big.
6 You know, other -- the companies here we're talking
7 about are the big ones. I'm not -- I'm not looking
8 at little ones.
9 For that purpose, 50/50 is reasonable. I'm
10 not looking at little companies on either side, okay?
11 We have small labels, we have small services. I'm
12 looking at the big ones. 13 There are some other bases that are more
14 theoretical based on fairness and symmetry for using
15 50/50 but I like this empirical basis myself.
16 JUDGE STRICKLER: How about the risk
17 aversion issue and let me ask you particularly, in
18 the context of distinguishing the argument that
19 you're making in your Nash-in-Nash model where you
20 did not have a must-have major compared to Professor
21 Willig's where I understand that you do.
22 Why is there any reason to believe that in
23 either or both models, that the question of patience
24 will be -- or the value of patience or impatience, if
25 you will, will be the same on both sides if the -- if
Heritage Reporting Corporation (202) 628-4888 2658
1 it's the case that a non-interactive service would be
2 out of business or an interactive service would be
3 out of business if it didn't -- didn't make a deal,
4 whereas the record company arguably would, although
5 there's evidence that it might suffer a loss over
6 some shorter intermediate term by not having a
7 particularly large -- one of the larger interactive
8 services, would still survive as a record company?
9 So with that distinction between outcomes,
10 if the -- if one was to exercise their threat point,
11 why would it be reasonable to say that the split
12 should be 50/50? 13 THE WITNESS: So there's several points
14 there. First, the 50/50 split is based on timing and
15 impatience and doesn't, as far as I remember, really,
16 really bring in risk as such, okay? So that's a
17 separate issue, if I can address that in just a
18 second. 19 The other, I think, big issue, though, is
20 it's quite -- in my models, we do not have a
21 must-have label. And so if you think about what
22 happens in the negotiations, it's much more balanced
23 in the sense that without the service, the label
24 loses actually a pretty small amount of their
25 revenue, and the service loses some, depending on the
Heritage Reporting Corporation (202) 628-4888 2659
1 label, but it's not killer.
2 So -- so these things are not so imbalanced.
3 If you don't have must-have label, which is not
4 consistent with perfect -- effective competition. So
5 in my model, the imbalance you're talking about for
6 must-have doesn't arise. It is an issue in Professor
7 Willig's model.
8 JUDGE STRICKLER: That's the imbalance with
9 regard to risk? 10 THE WITNESS: Yes, it's a lot more -- so I
11 guess I would put it this way. If you have must-have
12 majors in a service, the service -- look, most of the
13 imbalance is -- imbalance is picked up by the
14 fallback position which is the service goes out of
15 business. 16 So you could say that's also very risky for
17 the service, but that would just pile on, I think,
18 the imbalance that would already be there based on
19 the must-have complementary oligopoly.
20 JUDGE STRICKLER: Well, given that Professor
21 Willig decides to split the surplus 50/50, wouldn't
22 that be from the -- from his point of view a
23 conservative approach, given that in the must-have
24 context, the -- the majors, the must-haves are
25 holding pretty much all the cards, they would be able
Heritage Reporting Corporation (202) 628-4888 2660
1 to squeeze more than 50 percent and yet he doesn't --
2 he doesn't assign that in his model?
3 THE WITNESS: Well, I'm still going to
4 consider it -- I see your point, okay. So maybe
5 they'd get 70 percent instead of 50, but 50 is
6 already so far from effective competition that I --
7 this is why we're talking about this, okay?
8 Look, if I have a monopoly over the supply
9 of water to a municipality, and I say: It's worth a
10 huge amount for you guys to have water, it cost me
11 very little. I'll split the difference with you.
12 I'll only charge people, you know, $200, a thousand
13 dollars a household a month, because you're willing
14 to pay 2,000. Or maybe I'd get 1400 because you're
15 willing to pay 2,000. 16 Either way, this is crazy, far from an
17 effective competitive rate which would be more
18 cost-based. So I don't think that's conservative by
19 him. It just shows that he isn't -- that he's not
20 going to an even, I guess, more extreme in terms of
21 the monopoly power there. 22 JUDGE STRICKLER: My question was actually
23 more narrow. And you saw my point, so maybe -- maybe
24 you did answer it. 25 I was saying just in the concept of
Heritage Reporting Corporation (202) 628-4888 2661
1 splitting the difference, given his must-have
2 assumptions, the splitting the difference part was
3 conservative. Whether the outcome is conservative
4 for effective competition was not part of my
5 question.
6 THE WITNESS: Okay. So I think that's fair,
7 yes. If you -- yes, I think that if you have a
8 must-have label, they have tremendous power and that
9 wouldn't be picked up even splitting the difference
10 but -- but maybe they would even get more because
11 it's so scary for the service not to cut a deal and
12 there would be risk there. 13 JUDGE STRICKLER: Thank you, Professor.
14 BY MR. MARKS: 15 Q. Professor Shapiro, coming back to the slide,
16 did you calculate the various elements of this model
17 on a per-performance basis? 18 A. Yes. That's indicated in the model, yes.
19 Q. Why do you do that? 20 A. Well, we're looking to set a per-performance
21 rate. This way everything is handled in those terms.
22 And that's what the model produces, a per-performance
23 rate. 24 Q. And at the conceptual level depicted in this
25 overview slide, what are the commonalities between
Heritage Reporting Corporation (202) 628-4888 2662
1 your bargaining model and Professor Willig's
2 Nash-in-Nash Bargaining Model and what are the
3 differences?
4 A. Right. So like I said, all of these
5 elements are shared, these basic elements are shared.
6 The differences are under the hood a bit, I guess.
7 There is a modeling difference in that I
8 have one model for the ad-supported webcaster, and
9 I -- that I generate results using that model. Then
10 I have a -- basically the same model with different
11 inputs for the subscription webcaster, while is he
12 has his model, includes both types of webcasters in a
13 single model. So there's what turns out as a minor
14 difference in structure that way. His is more
15 complicated, but I -- I don't object to that feature.
16 That's one difference. And then the other,
17 you know, huge difference is not the structure of the
18 model, but his assumption that the major record
19 companies are must-have. And that's -- that's
20 driving a lot and that's critical to what we're
21 talking about here. 22 Q. All right. Well, let's -- let's turn to
23 opportunity cost, the -- the first element of your
24 bargaining model. 25 Would you please explain what you mean by
Heritage Reporting Corporation (202) 628-4888 2663
1 opportunity cost here?
2 A. Okay. So, again, we're talking about the
3 opportunity cost to a record company of licensing a
4 webcaster. And I'm going to read the first bullet
5 because I wrote it to be precise. "A record
6 company's opportunity cost is equal to the royalties
7 that record company would gain from other forms of
8 listening if the record company did not license a
9 webcaster." 10 Q. Would you please walk us through how you
11 calculated the total opportunity cost to a record
12 company of licensing a non-interactive webcaster?
13 A. Yes, I will. So let me use Warner and
14 Pandora as an example, kind of a running example, so
15 a little more and easier to follow.
16 So let's ask ourselves: What's the
17 opportunity cost to Warner of licensing Pandora? So
18 the way -- this is a total opportunity cost.
19 So what we do is we're thinking, all right,
20 what if they don't license -- what if Warner does not
21 license Pandora. How much more money are they going
22 to pick up on other forms of listening? That's what
23 we're trying to measure. 24 So the way you do that is you start on
25 Pandora with the total number of performances there.
Heritage Reporting Corporation (202) 628-4888 2664
1 Now we ask: All right, there's -- Warner doesn't
2 license them, there's a Warner blackout on Pandora.
3 So the next question is what percentage or share of
4 the performances on Pandora are lost to other forms
5 of listening, because they don't have a -- Warner
6 Music.
7 So this is going to be a very important
8 variable, in much of my bargaining analysis, I call
9 it the loss rate for Warner. So this is L in my
10 variables here. 11 So we figure out how -- what share of
12 performances are lost to the webcaster because
13 they're lacking this music. So that tells us how
14 many performances have left the webcaster and are
15 potentially going to other forms of listening.
16 Now actually I'm making a conservative
17 assumption that all those listening hours do, in
18 fact, divert to other forms of listening, 100 percent
19 of them. That's -- probably in practice would be
20 somewhat less but -- so I'm going to -- maybe this
21 number I'm going to come up with a little too high.
22 So what happens to these listening hours. Yes?
23 Q. No, go ahead. 24 A. Okay. So -- so now we've got N times L is
25 the number of listening hours that have left Pandora
Heritage Reporting Corporation (202) 628-4888 2665
1 and are going to shift to other forms of listening.
2 Then the next question is how much money do record
3 companies make on those other -- those listening
4 hours, that listening time? And that's R. That's my
5 variable R, which is the average royalty,
6 everything's done per-performance here, that Warner
7 will get on these various forms of listening.
8 And I say average there because some
9 listening will shift to on-demand subscription, some
10 will shift to satellite radio, some will shift to
11 terrestrial radio. The average is taken across all
12 of those. We're going to talk about this in detail
13 soon enough. 14 And then -- so that's -- and then we have to
15 multiply by Warner's share, which is the share of all
16 that listening, and therefore money that Warner is
17 going to get from this diverted listening. And so S
18 is the correct company share of performances on the
19 webcaster and on the alternative forms of listening.
20 So, again, we take listening on Pandora,
21 that's N. N times L is how much of it leaves due to
22 the blackout. Multiplied by R, how much money that
23 generates for record companies in total. And then S
24 is Warner's share of it. So that gives us the total
25 opportunity cost for a record company, N times L
Heritage Reporting Corporation (202) 628-4888 2666
1 times R times S.
2 Q. And so is the next step of your -- or the
3 next steps, I should say, of your analysis to measure
4 the variables L for the loss rate and R for the
5 royalty rate?
6 A. No, we have to do one more step. Good try,
7 but we have to convert this total opportunity cost
8 into an opportunity cost per-performance, because all
9 the analysis is done on a per-performance basis.
10 So we have to take the number I just talked
11 about and divide it by the number of performances
12 that Warner has on Pandora. What is that? That's N
13 times S, the number of performances on Pandora times
14 Warner's share. So when we do that, we divide by N
15 times S, we're left with L times R.
16 So this is now the opportunity cost
17 per-performance, the number we're going to want to
18 work with, for Warner in my example or more generally
19 for any label, the loss rate times the revenue
20 per-performance by other forms of listening.
21 So that's -- that's the next job is to
22 measure L and R so we can multiply them together.
23 Q. All right. So let's turn now to how you
24 measured the listening hour loss rates from losing
25 access to the repertoires of the largest record
Heritage Reporting Corporation (202) 628-4888 2667
1 companies.
2 And, again, that's the variable L from your
3 formula on the preceding slide?
4 A. Correct.
5 Q. Okay. What type of evidence did you rely on
6 to measure how many performances a webcaster would
7 lose absent a license from a particular record label?
8 A. Okay. So let me just, again, repeat the
9 question we're trying to address. What share of
10 listening hours on Pandora, let's focus on their
11 ad-supported service, and all this will get done
12 again on the subscription side. 13 What share of listening hours would they
14 lose in response to a blackout, let's say Warner
15 again, we have that example. So that's what we're
16 trying to ask. 17 I should say. This is going to be quite
18 important at various points later, that the loss rate
19 we're measuring is not the loss of listening hours in
20 the first week or months. It's the longer-term
21 impact. Technically it's the present discounted
22 value of the loss of listeners measured over time.
23 And I show this in Appendix B of my written
24 rebuttal testimony, I think. So -- so we're trying
25 to measure this kind of I'll call it loss associated
Heritage Reporting Corporation (202) 628-4888 2668
1 with a sustained blackout. So the first thing you'd
2 like to do is, well, let me look for real-world
3 examples where there were blackouts like this for
4 statutory webcasters.
5 But, of course, you're not going to see
6 those because of the statutory license. So we need
7 to do something else to measure this.
8 Q. And what type of evidence did you rely on to
9 measure how many performances a webcaster would lose
10 absent a license from a particular record label?
11 A. So I relied on experimental evidence. But
12 I'd like to explain why you can't use survey
13 evidence, okay, because you don't have a real world
14 example. You don't have real world blackouts because
15 of the statutory license. 16 So you might try a survey, but the trouble
17 with the survey is if you asked people how much would
18 you reduce your listening to Pandora if it didn't
19 have Warner Music, it's not going to work because
20 people don't really know what the Warner catalogue is
21 like. 22 And so you can't meaningfully run a survey
23 with that. And nobody did. That would be like
24 asking somebody: Well, if you -- would you reduce
25 your flying on United Airlines -- how much would you
Heritage Reporting Corporation (202) 628-4888 2669
1 reduce your flying on United Airlines if they no
2 longer used Honeywell Avionics equipment in their
3 planes?
4 Nobody knows. Even if you asked them if
5 they didn't have Airbus planes, they no longer had
6 planes from Airbus, some people might know that, but
7 a lot of people wouldn't. So it's not really
8 useful -- you can't ask a survey question to get at
9 that. 10 So we're talking about the loss rate
11 associated with major labels. And this is a major
12 difference between me and Professor Willig. He does
13 a lot of rebuttal work attacking me that are based on
14 using survey responses to measure the loss rate. And
15 that is not valid or reliable. 16 So experiments are the way to go here. And
17 it's very natural, you say, how will people respond
18 to the loss of a major label? Well, let's suppress
19 the label and find out. And that is very well-suited
20 to asking the question, if we change the product
21 attributes of the service, so it no longer has the
22 major label, music, how will people respond to that
23 change in product attributes? 24 JUDGE STRICKLER: I have a question for you,
25 Professor. Excuse me, Mr. Marks, I'm sorry.
Heritage Reporting Corporation (202) 628-4888 2670
1 MR. MARKS: Yes.
2 JUDGE STRICKLER: In your penultimate
3 blue -- blue comment there, Dr. Willig goes astray by
4 using survey responses to generate numbers for loss
5 rates for major labels.
6 Wouldn't his response be, well, I don't go
7 astray there at all because I'm assuming that each
8 major is a must-have so, therefore, I know what the
9 loss rate is if you lose a major, it's 100 percent,
10 the non-interactive would be out of business?
11 THE WITNESS: Right. So I -- I want to make
12 very clear I'm talking about his rebuttal testimony
13 here, not his written direct testimony, Your Honor.
14 His written direct, he has -- he has loss
15 rates. He has a loss rate of 100 percent from each
16 major, their must-have. And he has a loss rate of a
17 certain amount for the Indie that we'll talk about
18 that's assumed. 19 The problem I'm talking about here -- and he
20 was not using survey results at all there, not at
21 all. It's all the rebuttal testimony where he says
22 that I've greatly underestimated the loss rate that
23 he's using surveys. And that's where I say he's gone
24 astray. 25 JUDGE STRICKLER: Thank you.
Heritage Reporting Corporation (202) 628-4888 2671
1 BY MR. MARKS:
2 Q. Professor Shapiro, in your opinion, what
3 type of experimental evidence would be most
4 informative for the purpose of measuring how many
5 listening hours a webcaster would lose to a label
6 blackout?
7 A. So this question is well-suited to running
8 an A/B experiment, that is, as I think I indicated,
9 removing the major label's music for a treatment
10 group and comparing that to a control group that sees
11 the service in its normal form. So this is -- that's
12 what I was referring to when I said you change the
13 product attributes. You remove a certain repertoire.
14 So this is -- this is a great question for
15 an A/B experiment, a field experiment. I listened to
16 Professor Tucker last day or so, and will address
17 her, but I think it's -- it's a very natural and good
18 way to proceed to answer the question at hand.
19 Q. And, okay, we'll discuss them in more
20 detail, but while we're still in public session, and
21 I know the Judges have already heard a fair amount
22 about them, but could you describe at the highest
23 level what the Pandora label suppression experiments
24 were? 25 A. Certainly. So these were conducted by Dr.
Heritage Reporting Corporation (202) 628-4888 2672
1 Reiley at Pandora. This is a -- the experiments were
2 run for three months in -- last summer. And each
3 experiment had a treatment group that is a major
4 label, music was selected, and that group, the -- the
5 attempt was to make sure that they did not hear music
6 from that label while they were on the -- the radio
7 service.
8 So --
9 Q. And while we're -- why don't we stop there
10 while we're in public session. As I said, we'll go
11 into restricted session shortly to -- to get into the
12 details. 13 Did you ask Pandora to conduct the label
14 suppression experiments? 15 A. Yes, I did. 16 Q. And did you provide detailed instructions to
17 Pandora on the experiments you wanted Pandora to run?
18 A. I did. 19 Q. And are those instructions found at Appendix
20 E to your second corrected written direct testimony?
21 A. That sounds right, yes. 22 MR. MARKS: At this point, Your Honors, I'd
23 like to go into restricted session, although all the
24 information we're going to discuss is something that
25 Pandora and SiriusXM attendees are -- can hear.
Heritage Reporting Corporation (202) 628-4888 2673
1 CHIEF JUDGE FEDER: It is 6:26. We will be
2 stopping in just a few minutes, so if you can plan
3 your -- your presentation accordingly.
4 We will now go into restricted session and
5 we'll remain in restricted session for the remainder
6 of today's proceedings.
7 Will the host please clear the virtual
8 hearing room, except for Pandora participants.
9 MR. SACK: Thank you, Your Honor, please
10 stand by. We are beginning to clear the room now.
11 If you're an attendee in the Zoom meeting
12 who is not allowed to attend restricted session,
13 please leave the session by clicking the red "leave"
14 button on the bottom right-hand side of your screen
15 or click the "X" on the top right-hand side.
16 Your counsel will inform you when you're
17 allowed to return to the proceeding. Please stand
18 by, Your Honors and counsel, while we work to clear
19 the room. 20 (Whereupon, the trial proceeded in
21 confidential session.) 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2684
1 C O N T E N T S
2 EXAMINATION DIRECT CROSS REDIRECT
3 CATHERINE TUCKER
4 By Mr. Larson 2375
5 By Mr. Damle 2429
6 By Mr. Cunningham 2450
7 By Ms. Ablin 2470
8 By Mr. Warren 2520
9 GEORGE FORD 10 By Mr. Trepp 2529 11 By Mr. Gass 2569
12 By Ms. Falk 2598
13 CARL SHAPIRO 14 By Mr. Marks 2625 15 AFTERNOON SESSION: 2528
16 17 CONFIDENTIAL SESSIONS:
18 2401-2414, 2447-2448, 2468-2469, 2482-2496,
19 2523-2527, 2592-2597, 2620-2621, 2674-2683
20 21 E X H I B I T S 22 EXHIBIT NO: MARKED/RECEIVED WITHDRAWN
23 SXM/PAN 24 4094 2629 25 4107 2630
Heritage Reporting Corporation (202) 628-4888 2685
1 EXHIBIT NO: MARKED/RECEIVED WITHDRAWN
2 SoundExchange
3 5235 2526
4 5616 2529
5 5617 2529
6 5616 2533
7
8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 2686
1 CERTIFICATE
2
3 I certify that the foregoing is a true and
4 accurate transcript, to the best of my skill and
5 ability, from my stenographic notes of this
6 proceeding.
7
8
9 8/18/20 10 Date Signature of the Court Reporter
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Heritage Reporting Corporation (202) 628-4888 Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS $ 2 2584:7 2642:19 6:26 [1] 2673:1 2668:10 30 [2] 2383:5 2384:10 6th [1] 2370:23 absolutely [3] 2459:20 [1] [9] $10 2572:1 2 2502:9 2570:25 2575:8, 31 [2] 2377:1,2 2588:24 2641:21 [1] 7 $200 2660:12 8 2576:6 2640:25 2641:1,2, 33 [2] 2377:15,16 abundance [1] 2374:13 [3] [4] $3 2500:9 2507:19 2510: 18 35 [1] 2370:23 7 2398:8 2578:15 2614: academic [8] 2390:21 [2] 1 2,000 2660:14,15 351.10G [1] 2510:15 12 2615:20 2391:4,10 2392:11 2424:4, [2] [1] [2] $4.50 2500:11 2507:20 2:04 2528:3 351.11 [1] 2511:9 70 2499:6 2660:5 16 2462:22 2625:12 [9] [1] * 20 2400:8,10 2423:10 35th [1] 2393:12 706 2370:13 accept [1] 2473:13 [1] 2480:21,24 2498:19,23 [6] 767 2371:11 [1] [3] 365 2500:8,11,15,16 acceptable 2506:1 ** 2369:2,2 2373:11 [2] 2499:2 2628:3 2504:19 2510:6 78 2517:20 2518:2 accepted [2] 2532:5 2627: [1] [1] 0 2000 2372:15 38 [2] 2601:11,12 78701 2370:19 23 20001 [1] 2369:22 00 [1] 2436:3 39 [6] 2603:13,14 2605:10, 8 access [11] 2376:5 2380: 20006 [1] 2370:8 17,20 2607:10 [1] 16 2381:3,4 2384:19 2388: 1 [1] 8 2381:18 2009 2627:16 7 2394:4 2417:23 2418:9, 8/18/20 [1] 2686:9 1 [8] 2460:25 2462:10,11 2011 [1] 2514:24 4 [1] 20 2666:25 [1] [3] 84 2531:12 2502:7 2561:17 2570:14 2015 2463:4 4 2633:5,6,8 [1] [5] accompanies 2545:14 [3] [1] 85 2450:19 2451:5,7,19 2572:17 2573:5 2016 2436:3,6,12 401 2370:18 accompany [1] 2631:1 [4] [5] 2514:5 1:39 [1] 2509:5 2017 2436:12 2515:6,7, 4094 2628:18 2629:3,9, according [1] 2504:16 10 [6] 2395:15,18 2396:11, 10 11 2684:24 9 accordingly [2] 2504:8 2018 [1] 2436:16 41 [2] 2609:18 2613:4 19 2538:1 2571:20 9 [1] 2645:20 2673:3 [2] 202-639-6000 [1] 2369:23 4107 [5] 2629:19 2630:3,8, 10:30 2368:21 2374:2 90 [4] 2396:5,12,16,20 account [15] 2391:14 2421: [7] 202-737-0500 [1] 2370:9 10 2684:25 100 2504:24 2513:2 900 [1] 2369:21 14,16 2429:23 2440:9 2020 [1] 2368:20 415-391-0600 [1] 2372:17 2544:8 2645:1 2664:18 94107 [1] 2370:14 2441:1 2442:12,16,20 2021 [1] 2630:19 42 [4] 2392:9,10,22 2613:8 2670:9,15 94111 [1] 2372:16 2443:15 2444:1 2449:10 [1] 2022 [1] 2437:11 43 [1] 2628:22 10036 2370:24 95 [2] 2397:24 2398:1 2450:19 2584:21 2646:6 [1] 205 [1] 2393:8 44 [6] 2392:14,14,17,22 101 2368:18 96 [1] 2627:16 accounted [1] 2451:5 [1] 10153 [1] 2371:12 206 2398:6 2393:5 2398:5 accounts [4] 2421:6,9 [1] [1] [2] A 102 2421:22 2073 2379:25 4605 2393:10,11 2540:4 2645:19 [1] 1099 [1] 2369:20 21 2601:11 5 a.m [2] 2368:21 2374:2 accurate [1] 2686:4 [1] 11 [4] 2377:2 2627:16 2633: 212-310-8007 2371:13 A/B [2] 2671:8,15 [2] [9] achieved 2641:10,11 [1] 5 2397:14,21 2398:22 5,8 22209 2373:9 A2IM [1] 2369:7 acknowledge [3] 2386:21 [1] 2423:10 2461:16,19 2497: 1100 [1] 2373:8 2375 2684:4 abandon [1] 2541:10 2423:13 2424:8 [2] 8 2501:12,12 114 [1] 2451:1 24 2536:8 2609:18 abandoned [1] 2511:23 acknowledged [1] 2605: 5:02 [1] 2623:9 1185 [1] 2370:23 2401-2414 [1] 2684:18 abide [1] 2384:3 [1] 19 [1] 5:18 2623:10 12 [3] 2572:1 2618:16 2634: 2429 2684:5 ability [16] 2426:18,23 [4] [1] 2624:12 acknowledgments 18 2447-2448 [1] 2684:18 5:19 2427:1,19,23 2442:10 [1] 2603:15,17 2605:21,23 [1] 5:24 2624:13 128 [3] 2499:7,24 2513:11 2450 2684:6 2443:6,9 2457:13 2474:9 [1] [8] acoustic 2555:3 [1] 50 2420:4,13,15 2513:1 1300 [1] 2373:8 2468-2469 2684:18 2548:21 2639:22 2650:11 acquisition [1] 2457:2 [1] 2544:9 2660:1,5,5 14 [2] 2435:13,15 2470 2684:7 2651:4,5 2686:5 [13] [8] across 2385:10 2423: [1] 50/50 2656:4,25 2657:4, 1400 [1] 2660:14 2482-2496 2684:18 able [18] 2374:25 2381:3,5 24,25 2424:24 2475:4,15 9,15 2658:12,14 2659:21 15 [7] 2423:10 2451:4 2460: 25 [3] 2392:8,21 2630:20 2416:8 2424:5 2427:2 [1] 2499:21 2505:6 2536:15 [1] 501(c)(3 2530:20 24 2461:4,6 2462:12 2477: 250 2513:15 2442:11 2454:19 2463:10 2583:21 2584:16 2648:4 [1] 2372:14 4 2520 [1] 2684:8 505 2472:18 2473:4 2478:2 [2] 2665:11 [1] 51 2421:5,5 15-minute [2] 2466:12 2523-2527 2684:19 2567:14 2607:7 2635:23 [9] 2391:12 2543:1 [2] 2393:7,18 act 2623:6 2526 [1] 2685:3 5153 2639:7 2643:18 2659:25 [4] 2545:5 2555:12,12,15 [1] 5154 2398:4,14,15 2521: 16 [3] 2633:13,14 2634:20 2528 2684:15 ABLIN [48] 2373:4 2470:8, 2640:25 2641:2,19 [3] 3 17 [1] 2618:16 2529 2684:10 2685:4,5 10,11,13,15,18 2472:24 [1] [1] acting 2586:16 [1] 52 2382:18 1700 [1] 2370:6 2533 2685:6 2473:10 2476:5 2480:15 [1] [3] active 2643:11 [1] 5235 2502:23 2503:12 17th [1] 2373:8 2569 2684:11 2497:4,5,6 2501:18,19 activities [1] 2478:17 [1] 2685:3 18 [3] 2368:20 2515:6,8 2592-2597 2684:19 2502:2,6,22 2503:7,8,16, activity [4] 2459:15 2549: 5338 [1] 2398:7 1838 [1] 2643:4 2598 [1] 2684:12 18,19 2504:11,12 2505:11, [1] 23,23 2606:6 [1] 54 2387:22 19 [4] 2377:21,22 2378:8 2620-2621 2684:19 16 2506:3,9,11 2507:8,10, [1] [6] Actors 2369:5 [1] 5615 2532:23 2533:9,12, 2382:20 2625 2684:14 15,24 2508:19,21 2509:9, [5] 2435:7,10 2464: 15 2601:10 2609:18 actual 19-CRB-0005-WR [1] 2629 [1] 2684:24 11,12 2510:19,24,25 2512: [5] 14 2540:4 2646:10 [1] 5616 2528:22 2529:12, 2368:7 2630 2684:25 2,4,5 2520:10 2684:7 [53] 2381:19 2382: 14 2685:4,6 actually 1912 [1] 2648:2 2674-2683 [1] 2684:19 Ablin's [1] 2466:13 [4] 19,23 2383:10 2385:6 [1] 5617 2528:23 2529:12, 1980s [1] 2625:21 277 2514:1 above [3] 2377:21 2382:25 2388:13,19 2389:23 2390: [2] 14 2685:5 1990 [1] 2625:17 29 2382:19,25 2643:16 8,15,24 2391:7,12 2392:13 [1] 1994 [1] 2530:14 2nd 2370:7 6 absence [2] 2480:8 2648: 2395:24 2416:6 2419:8 [1] 1995 2627:15 3 6 [6] 2399:19,22 2504:17 22 2422:2 2426:11,16 2427:3, 1999 [1] 2462:25 absent [3] 2634:25 2667:7 16 2434:14 2436:11 2449: 3 [5] 2571:9 2583:11,17 2614:13 2633:12 2634:18 Heritage Reporting Corporation (202) 628-4888 Sheet 1 $10 - actually Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 23 2451:22 2454:5 2455: advertise [1] 2480:3 Air1 [1] 2475:12 2577:16 2581:4,14,20 apologize [8] 2381:11 25 2461:19 2464:15 2502: advertised [1] 2505:7 Airbus [2] 2669:5,6 2582:19,24 2583:5 2600: 2386:4 2394:23 2517:25 23 2506:25 2528:19 2536: advertisements [1] 2419: Airlines [2] 2668:25 2669: 24 2601:4,7 2602:10,11,13, 2521:3 2604:8 2611:24 4 2542:21 2551:6 2582:20 4 1 23 2603:2 2604:19 2606:5 2646:13 2584:24 2586:2 2613:3,18 advertising [10] 2387:23 album [2] 2377:10 2385:20 2607:25 2608:3 2613:5,9 app [1] 2572:20 2614:7,9,18 2615:10 2618: 2453:11 2454:13 2456:18 Albums [1] 2377:3 2616:19,23 2618:5,5 2622: app-free [1] 2530:9 24 2643:18 2645:15 2646: 2479:18,25 2480:12 2630: ALEX [3] 2369:13 2529:20 9 2630:18 2635:10,11 Appearances [5] 2369:2 1 2654:24 2658:24 2660: 21 2633:1 2634:18 2617:21 2651:11 2664:8 2666:3,9 2370:1 2371:1 2372:1 22 2664:16 advertising-supported algebra [3] 2543:17 2545: analyze [6] 2435:22 2451: 2373:1 ad [1] 2453:11 [2] 2453:8 2633:4 11 2549:3 14,23 2453:15 2534:20 appears [4] 2373:11 2504: ad-supported [9] 2394:1 Advisors [2] 2627:18,21 ALICIA [1] 2372:8 2536:22 3 2541:4 2578:16 2398:17 2450:20 2479:9 affairs [1] 2615:25 allow [7] 2389:21 2449:24 analyzed [1] 2437:20 appended [1] 2529:5 2634:5,6 2635:11 2662:8 affect [2] 2555:9 2638:8 2561:5 2565:2,17 2583:22 ANDREW [2] 2369:11 appendices [3] 2395:9 2667:11 affected [1] 2441:13 2584:18 2372:4 2480:17 2628:24 add [2] 2557:15,16 affects [1] 2429:21 allowed [25] 2396:8,10 Andy [2] 2569:24 2570:2 appending [1] 2529:11 addition [1] 2627:13 affiliated [1] 2517:3 2400:15,19 2429:12 2431: anecdotal [4] 2538:6 2598: Appendix [9] 2435:13,15 additional [5] 2499:17 affirmative [1] 2463:23 2 2445:20 2446:4,8 2466: 13 2609:5 2610:18 2460:25 2462:10,11 2515: 2512:23 2538:25 2539:1 afford [1] 2470:24 19,23 2480:3 2481:4,9 anecdote [3] 2601:19,20 7 2627:10 2667:23 2672: 2544:11 afoul [1] 2641:18 2521:25 2522:5 2559:4,8 2611:6 19 address [16] 2381:25 2382: afternoon [16] 2470:16,17 2564:19 2590:17,22 2619: anecdotes [10] 2535:2,7 applaud [2] 2641:25 2642: 5,14 2425:23 2533:23 2528:2,8,9 2529:19,20 7,11 2673:12,17 2560:1,19 2566:13,16 7 2542:3 2567:12 2568:20 2539:7 2569:24 2598:9,12 allows [4] 2430:23 2502:17 2611:1 2614:3 2615:21 Apple [14] 2377:17,18 2378: 2583:3 2618:13 2631:22, 2624:16,17 2625:5 2636: 2564:16 2603:7 2616:5 13 2464:10,15,19 2465:10, 23 2656:12 2658:17 2667: 22 2684:15 alma [1] 2531:5 annual [1] 2498:7 20,23,25 2626:24 2646:6, 9 2671:16 afterthought [1] 2511:21 almost [1] 2466:6 another [13] 2432:18 2465: 15,22 addressed [3] 2465:19 ages [1] 2570:20 already [19] 2374:25 2425: 22 2474:18 2506:24 2536: apples-to-apples [2] 2534:3 2618:17 aggregate [1] 2566:17 24 2457:10 2464:1 2533: 8 2549:15 2567:8 2568:18 2454:16 2455:15 addresses [1] 2545:4 aggregation [1] 2553:10 11 2539:3 2547:23 2557: 2582:3 2635:22 2640:2,5 application [1] 2532:10 addressing [2] 2631:7,21 aggressive [1] 2442:24 17 2560:18 2571:12 2576: 2643:10 Applied [1] 2530:16 Adele [4] 2385:18 2386:3,4 ago [7] 2437:13 2443:9 23 2579:20 2634:7 2646: answer [43] 2379:9,10,11 applies [1] 2550:3 2390:20 2519:13 2565:11 2572:16 17 2649:13 2652:24 2659: 2380:10 2387:5 2389:23 apply [7] 2441:6 2477:10 adequate [1] 2562:24 2637:3 2652:3 18 2660:6 2671:21 2399:12,22 2416:9,9,13 2511:25 2542:17 2547:6 adjunct [2] 2531:4 2615:3 agree [28] 2388:18 2415:15 alternative [2] 2393:1 2419:24 2420:24 2421:20 2549:16 2655:22 adjust [6] 2432:11 2538:21 2416:16 2417:2 2421:10 2665:19 2424:17 2430:13 2451:2 appointment [1] 2520:14 2545:21 2546:6 2560:5 2422:5 2430:14,22 2432:2 although [3] 2452:8 2658: 2452:15 2455:23 2456:2,4 appointments [1] 2625:18 2584:20 2436:4 2439:12,17 2440:7, 4 2672:23 2458:9,16 2460:7 2472:17 appreciate [5] 2379:16 adjusting [2] 2622:15,20 24 2453:5 2461:18 2463: altogether [1] 2553:15 2473:7 2476:2 2541:18 2428:15 2458:9 2554:13 adjustment [8] 2537:25 15 2465:20,25 2518:11 amazing [2] 2459:7 2461:1 2550:15 2570:23 2573:8 2565:9 2538:18 2539:2 2546:4 2519:7 2549:19 2570:3 Amazon [6] 2377:25 2378: 2574:20,21 2587:11 2589: approach [17] 2442:24 2547:24 2563:8,12 2569: 2581:12 2585:9 2586:4 3,13 2464:10,15,19 25 2604:5,9 2607:8,12 2474:1,6 2539:20,21 2631: 10 2604:2 2639:2 American [3] 2369:3,5,6 2609:10 2623:2 2660:24 15,23 2632:2,5,7,8 2633: adjustments [9] 2546:2,10 agreed [4] 2420:23 2471: among [4] 2395:4 2475:16 2671:18 17,19,20 2649:9 2653:8 2548:22 2634:10,12,13,14, 14 2472:14 2638:9 2635:21 2637:12 answered [12] 2386:15 2659:23 17,19 agreement [13] 2444:21 amount [10] 2445:11 2498: 2438:2 2449:21,24 2458:7, approaches [1] 2539:18 adjusts [1] 2649:20 2471:23 2472:5,21 2476: 7 2543:22 2544:2 2551:5 14 2460:17 2480:19 2573: appropriate [4] 2452:10 admission [2] 2503:6 20 2515:22 2516:8 2517: 2637:23 2658:24 2660:10 17 2603:10 2611:25 2612: 2478:7 2501:1 2508:3 2533:9 14 2548:1,14 2587:19 2670:17 2671:21 8 appropriated [1] 2519:18 admit [1] 2502:10 2638:18 2639:9 amounts [2] 2474:24 2546: answering [1] 2420:1 appropriateness [1] 2471: admitted [6] 2454:6 2529: agreements [18] 2440:8, 23 answers [3] 2399:1 2445:4, 2 13 2533:13 2617:18 2629: 25 2444:21 2472:13 2548: amplification [1] 2392:12 14 appropriation [1] 2520:1 10 2630:8 15 2580:7,23 2581:21 amplifies [1] 2390:22 anti-competence [1] approximately [2] 2480: admonishment [1] 2558: 2582:5,9,17 2583:6 2586: analogously [1] 2654:4 2642:24 24 2628:1 24 21 2587:8 2634:1,2,4,9 analogy [1] 2453:2 Anticommons [3] 2626: apps [2] 2530:3,6 adopted [1] 2637:11 agrees [2] 2587:5 2650:7 analyses [2] 2497:14 2498: 15,19 2627:6 area [4] 2530:25 2606:16 adoption [1] 2477:18 Ah [1] 2584:2 3 antitrust [9] 2531:22 2626: 2626:23 2631:10 ads [2] 2432:17 2479:21 ahead [8] 2381:2 2393:12 analysis [53] 2436:25 2437: 4 2628:7 2640:11,15,23 areas [4] 2626:2,4,8,11 advance [10] 2502:11,19 2470:12 2565:17,20 2607: 9,22 2442:14 2452:1,8 2641:8,22 2642:9 aren't [5] 2415:16 2434:10 2505:13 2506:4 2507:6 12 2656:1 2664:23 2454:2,19 2455:20 2456:3, anybody [1] 2546:24 2517:5 2553:11,11 2508:1 2519:19,24,25 aid [1] 2537:7 17 2474:16 2497:8 2498: apart [2] 2497:13 2521:20 arguably [1] 2658:4 2520:5 aided [2] 2395:20 2396:1 22 2515:14 2536:21 2538: apologies [3] 2393:4 2590: argue [1] 2567:23 Advanced [1] 2530:18 aim [1] 2424:23 15 2540:4 2546:9 2556:2 1 2613:8 argument [6] 2507:25 Heritage Reporting Corporation (202) 628-4888 Sheet 2 actually - argument Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2508:5 2543:5 2570:20 2580:14 2582:4 20 2370:6,18,23 2371:11 base [2] 2395:4 2616:4 2569:17 2575:24 2577:20 2573:3 2657:18 assume [5] 2419:7 2507:4 average [21] 2423:23,25 based [24] 2432:24 2437: 2579:24 2583:17 2586:9 argument's [1] 2565:16 2563:21 2565:23 2585:4 2424:9,19 2451:20 2498:8 10,11 2465:9 2476:19 2588:10 2600:2 2601:14 argumentative [1] 2604: assumed [1] 2670:18 2546:15 2548:15 2557:6 2515:15 2536:21 2537:2 2602:8 2604:9,16 2606:25 10 assumes [3] 2604:9 2608: 2560:4,12,15 2561:24 2546:11 2569:10 2587:11 2607:3 2608:11 2612:1,20 Ariely [2] 2425:13,17 12 2643:16 2563:14 2638:9,11,24 2589:6 2606:4 2613:6,10 2616:25 2617:15 2618:21 arise [5] 2643:23 2645:15 assuming [2] 2509:18 2657:1 2665:5,8,11 2632:6 2633:18 2640:6 2636:14 2642:19 2647:1 2646:1,3 2659:6 2670:7 averages [6] 2424:3,15,24, 2654:6 2655:20 2657:14 2653:11 2657:2,22 arises [1] 2643:20 assumption [3] 2585:9 24,25 2549:16 2658:14 2659:18 2669:13 bell [1] 2586:13 Arlington [1] 2373:9 2662:18 2664:17 aversion [1] 2657:17 bases [1] 2657:13 below [5] 2433:17 2504:23 arose [1] 2510:20 assumptions [1] 2661:2 Avionics [1] 2669:2 basic [1] 2662:5 2512:14 2547:23 2654:15 around [3] 2425:6 2426:2 assured [2] 2551:13 2566: avoid [2] 2445:6 2550:22 basically [10] 2384:19 bench [1] 2511:24 2462:25 2 aware [22] 2471:13 2472: 2430:11 2443:23 2538:3 benchmark [29] 2455:6 array [1] 2438:18 astray [3] 2670:3,7,24 12 2475:1,6 2477:23 2478: 2543:8 2544:24 2553:21 2538:15,15,24 2539:13 arrive [1] 2529:22 Atkins [1] 2536:10 12 2479:2,13,17 2480:2,11 2639:17,24 2662:10 2545:19,22 2546:11 2549: arrow [1] 2654:12 attached [1] 2461:25 2519:19 2536:17 2569:3,8 basing [1] 2607:17 2,4 2563:7,11 2577:12,16, article [14] 2377:2,9,16,22 attacking [1] 2669:13 2579:25 2580:14,21 2581: basis [13] 2432:12 2456:15, 17,23 2578:3,6,13,19,21 2378:9,12 2379:3,18 2382: attempt [6] 2379:8 2383:24 3 2582:8 2588:1 2611:17 15 2510:14,22 2570:19 2579:10 2580:8 2584:21 5 2383:7,21 2626:15,16 2476:14 2504:4 2538:7 away [8] 2381:13 2394:8 2587:10 2600:18 2631:17 2622:16,20 2634:3,6,9 2654:21 2672:5 2421:25 2463:7 2466:5 2632:20 2657:15 2661:17 benchmarking [6] 2632:2 articles [26] 2376:9,12,14, attempted [3] 2475:23 2509:23 2586:11 2649:24 2666:9 2633:17,20,22 2649:1 18,24 2378:19 2384:22,25 2476:6 2568:16 B basket [1] 2567:3 2650:22 2385:10,13 2389:16 2390: attempting [4] 2508:9,15 bear [2] 2572:9 2582:12 benchmarks [9] 2579:22 [35] 9,16,25 2391:2,8,14 2419: 2510:13 2543:2 back 2381:4,19 2382: bearing [1] 2624:1 2580:2,15,22 2582:3,10 4 2514:18,20,23,25 2613: attempts [2] 2550:25 2563: 17 2385:24 2393:5 2396:7 bears [1] 2632:9 2584:24 2585:1 2634:1 16 2626:10,18,20 23 2397:2 2415:8 2420:8 became [2] 2612:14,24 benefit [1] 2547:16 articulate [1] 2587:3 attend [10] 2374:9 2400:15 2426:16,22 2444:18 2449: become [11] 2421:25 2464: benefits [1] 2512:15 artist [26] 2376:14 2396:15 2446:4 2466:19 2481:4 5 2497:3 2503:9 2509:6 25 2533:18 2570:15 2571: benefitted [2] 2430:18,20 2417:14,19,25 2418:2,4,5 2521:25 2559:4 2590:17 2514:24 2515:2 2520:17 1,10,22 2572:25 2575:10 BENJAMIN [1] 2371:3 2547:11 2549:25 2555:4,9, 2619:7 2673:12 2528:5 2546:10 2555:14 2576:8 2651:9 Berkeley [3] 2625:14,16 17 2556:13,13 2568:14 attendee [9] 2400:14 2446: 2561:5 2563:5 2564:14 becomes [5] 2384:23 2548: 2626:7 2609:2,6,13,23 2610:19 3 2466:18 2481:3 2521:24 2565:20 2572:16 2575:3 18 2572:25 2573:14,25 beside [1] 2602:2 2611:2,6,6,19,22 2559:3 2590:16 2619:6 2622:4 2623:16 2624:14 becoming [4] 2433:2 2465: besides [2] 2434:12 2556: artist's [3] 2553:22 2598: 2673:11 2637:7 2643:8 2646:11 9,21 2466:1 16 22 2611:22 attendees [4] 2445:20 2661:15 begin [3] 2470:8 2530:11 Best [4] 2378:9 2455:11 [1] Artists [26] 2369:6 2385:15 2561:5 2590:6 2672:25 backdrop 2566:12 2625:6 2533:4 2686:4 [6] 2393:22 2398:23 2415:16 attention [5] 2433:16 2521: background 2530:12 beginning [14] 2400:13 better [5] 2424:5 2457:18 2416:23 2417:4,8,9,17,22 2 2534:22 2564:23 2636: 2599:23 2601:24 2605:1 2446:2 2463:3,24 2466:17 2564:25 2641:25 2656:22 2418:7,11,16,22 2419:1,5 15 2615:1 2625:23 2481:2 2521:23 2529:23 better-than-average [1] [9] 2549:24 2552:12 2556:1 attorneys [2] 2374:17 baked 2397:19 2539:4, 2531:7 2553:17 2559:2 2547:19 2560:7 2611:1 2615:18 2533:21 13,17 2544:25 2545:20 2590:14 2619:5 2673:10 between [58] 2391:24 2636:9,11,17 attract [2] 2636:9,11 2577:24 2581:23 2583:8 behalf [8] 2369:3 2370:2 2420:16 2424:10,12,19,21 [1] ASCAP [1] 2582:9 attractiveness [2] 2462:5 balanced 2658:22 2371:2 2372:2 2373:2 2440:8,10,25 2441:2,11,16, [1] aside [4] 2380:1 2427:5 2463:9 band 2555:4 2470:19 2516:8 2518:22 23 2442:17 2444:2,19,21, [10] 2570:12 2616:2 attributes [3] 2669:21,23 bankruptcy 2436:16, behave [2] 2425:3 2426:5 21 2449:11 2465:24 2472: asks [1] 2380:9 2671:13 17,21,23 2437:1,2,6,7,12 behaved [1] 2425:6 21 2476:15 2505:18,25 aspect [1] 2512:12 Auburn [3] 2530:14 2531:5 2457:4 behavior [7] 2565:6 2567: 2517:14 2533:24 2537:12 [1] asserted [1] 2569:5 2615:2 bar 2433:17 19,20 2606:8,9 2617:12 2545:22,24 2552:20,23 [3] assertion [4] 2506:15 audible [1] 2559:15 bargain 2543:24 2544:4 2640:14 2554:4 2555:19 2557:18 2514:17,19 2614:22 August [1] 2368:20 2555:14 behaviors [2] 2564:18,18 2563:7 2568:2 2575:3 [39] assertions [1] 2477:10 AUSTER [1] 2371:6 Bargaining 2542:14, behind [3] 2438:24 2602:2, 2580:1,7 2581:16 2583:2 assess [2] 2608:1,4 Austin [1] 2370:19 17 2543:15 2544:7 2631: 5 2600:20 2617:12 2634:2,4, assign [1] 2660:2 authorized [2] 2580:24 14,17 2632:5,11,14,18,21, belabor [1] 2464:2 24 2636:8,10,16 2639:9 assignment [6] 2438:1,8 2581:5 23 2633:2 2645:8,11 2649: belief [3] 2457:11 2465:10, 2643:11 2647:5,19 2650: 2534:1,9 2630:14,24 authors [1] 2463:2 9 2651:15,20,22 2652:10 12 18 2651:2 2658:9 2661:25 assistant [1] 2501:11 availability [2] 2377:10 2653:4,6,8,11,13,25 2654: believe [45] 2381:17 2387: 2669:12 associated [7] 2416:23 2518:8 16,19,20,21 2655:4,18,19 7 2391:10 2398:8 2415:24 beyond [1] 2389:15 2435:1 2463:1 2516:9 available [7] 2416:19 2504: 2656:18,23 2662:1,2,24 2429:4,8,15 2445:2 2456: bifurcated [2] 2581:15,21 2517:18 2667:25 2669:11 19 2540:23 2613:11,15,16, 2664:8 23 2507:15 2508:21 2511: big [13] 2375:23 2387:7 [2] Association [6] 2369:6 20 bargains 2632:22 2655: 6 2519:22 2534:14 2542: 2394:5 2419:5 2438:21 2372:2 2429:8 2569:25 Avenue [6] 2368:18 2369: 16 13 2545:8 2555:7 2558:18 2567:3 2609:12 2645:8 Heritage Reporting Corporation (202) 628-4888 Sheet 3 argument - big Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2653:3 2657:5,7,12 2658: breaking [1] 2609:15 buyer's [1] 2632:17 CAROLINE [1] 2372:10 certainly [42] 2397:17,21 19 bridge [3] 2648:1,4,8 buyer/willing [6] 2429:17 Carriage [7] 2638:8 2649: 2415:18 2416:12 2418:1 bilateral [7] 2644:20,22 brief [2] 2509:3 2631:5 2439:1 2471:9 2474:2,7 14 2651:12,14,23,25 2652: 2419:10,12 2422:6 2430: 2645:4,14,25 2654:25 briefing [1] 2533:11 2631:11 13 17 2442:7 2444:4 2445:7 2655:3 briefly [6] 2457:8 2508:20 buyers [3] 2563:16 2635: carried [2] 2638:5,7 2451:2 2453:17 2459:20 bit [15] 2415:3 2429:5 2509: 2590:3 2619:2 2632:4 13,22 carry [1] 2651:17 2466:3 2472:4 2475:4 21 2546:19 2554:25 2565: 2633:16 buying [1] 2535:4 carrying [1] 2511:21 2478:1 2479:22 2498:4 11 2609:16 2614:21 2615: bring [4] 2379:21 2380:12 C case [49] 2390:19 2396:8 2499:20 2500:24 2503:2 2 2617:3 2649:13 2650:23 2655:6 2658:16 2417:5 2418:1 2432:3 2504:18 2511:3 2515:12 [2] 2653:5 2656:17 2662:6 bringing [2] 2506:6 2532: CA 2370:14 2372:16 2436:21 2442:7 2451:17 2516:7 2517:12 2519:2 [1] blacked [1] 2388:20 23 cable 2532:1 2453:14 2459:23 2476:18 2560:16,23 2567:13 2581: [1] blackout [8] 2391:6 2416:3 BRITT [1] 2372:9 CAIN 2371:5 2501:25 2506:21 2516:21 20 2583:5 2630:17 2631:8 [3] 2419:6 2664:2 2665:22 broadcast [5] 2431:21 calculate 2562:25 2634: 2533:19 2534:16 2535:14 2632:8 2638:3 2648:20 2667:14 2668:1 2671:6 2432:7 2444:12 2471:21 8 2661:16 2536:18 2539:19 2541:2 2653:10 2671:25 [2] blackouts [2] 2668:3,14 2480:2 calculated 2563:1 2542:18 2546:18 2548:24 CERTIFICATE [1] 2686:1 BLAKE [2] 2370:16 2450: broadcaster [3] 2472:21 2663:11 2549:8 2552:7,23 2554:9, certify [1] 2686:3 [3] 12 2480:6 2498:17 calculation 2428:9 22 2563:1,12 2565:13,14 cetera [2] 2617:16,16 blanket [1] 2566:6 Broadcasters [27] 2372:2 2539:19 2633:11 2568:18 2569:4 2580:12 challenge [1] 2439:6 [1] Blatter [13] 2534:11 2553:1 2373:2 2429:8 2438:18 calculations 2606:10 2585:5 2586:14 2588:2 chance [2] 2449:15 2572:4 [1] 2556:4 2559:24 2569:5 2443:3,4 2444:13 2451:11 calculus 2602:18 2609:6 2610:19 2634:1 change [7] 2390:9 2471:16, [1] 2598:17 2608:9,21 2612: 2471:5,21 2472:8,12,13 calibration 2391:3 2637:13,14 2646:4 2648:1, 16 2567:20 2669:20,23 [1] 13,23 2613:2,6,10 2475:13 2476:11 2477:24 California 2625:14 9 2653:25 2656:14 2658:1 2671:12 [11] Blatter's [4] 2535:8 2598: 2478:13 2479:2,14,18 call 2376:25 2379:24 cases [14] 2531:17,22 changed [2] 2478:18 2638: 13 2608:15 2618:16 2497:23 2515:20 2518:11 2393:6 2398:16 2400:3 2535:4 2549:8 2554:17 13 Block [2] 2369:19 2533:21 2543:5 2570:1 2580:14 2420:4 2498:4 2516:5 2556:24 2557:1 2562:5,6 changes [3] 2383:16 2565: blow [1] 2509:20 2582:4 2543:23 2664:8 2667:25 2567:6 2579:21 2601:15 6 2567:19 [10] blue [2] 2670:3,3 Broadcasting [3] 2516:12, called 2375:15 2377:2 2606:17 2647:14 channel [2] 2555:4 2556: blurb [2] 2381:24 2382:5 15 2572:21 2378:9 2422:25 2505:20 catalogue [18] 2376:10,15, 17 BMI [1] 2582:9 broader [1] 2568:19 2598:17 2626:15 2642:19 18,21,22 2378:6,13,20 channels [4] 2477:19,25 board [1] 2531:19 broadly [1] 2645:1 2654:20 2655:19 2381:25 2382:6,14 2384: 2478:14 2479:4 [2] body [3] 2516:8 2517:17 broke [1] 2607:3 calling 2583:10 2643: 23 2385:1,20,25 2386:4 CHAPUIS [1] 2369:18 2531:18 broken [1] 2434:10 21 2394:5 2668:20 character [1] 2578:8 [6] boil [1] 2419:3 brought [1] 2644:4 calls 2386:24 2388:22 catalogue-wide [2] 2560: characteristics [3] 2452: bold [1] 2653:19 Brynteson [2] 2368:25 2415:23 2604:17 2606:25 1 2635:6 11 2642:16,22 book [2] 2459:20 2463:12 2686:9 2607:3 catalogues [1] 2636:13 characterized [1] 2459:6 [8] books [1] 2627:7 build [1] 2642:6 came 2423:1 2436:17 catches [2] 2503:11 2509: characterizing [1] 2426:9 borrow [1] 2427:2 Building [1] 2368:17 2437:12 2476:19 2511:24 14 charge [4] 2556:21 2585:8 Boston [1] 2477:8 bulk [2] 2437:9 2444:25 2514:10 2551:21 2563:19 categories [1] 2434:10 2642:7 2660:12 [1] both [21] 2385:17 2463:1 bullet [9] 2504:23 2552:17 Canada 2369:4 category [4] 2395:5 2498: charged [1] 2641:16 [1] 2465:3,24 2497:25 2514: 2553:15 2554:24 2555:25 Canadian 2531:19 16 2609:12 2610:7 charging [1] 2586:15 [11] 25 2518:16 2541:17 2545: 2557:17 2652:18 2654:15 cannot 2399:20 2422: CATHERINE [2] 2375:14 chart [12] 2395:15 2433:17, 2 2579:2,5 2580:24 2581:6 2663:4 21 2442:16 2443:15 2444: 2684:3 18,25,25 2434:14,22,25 2633:25 2635:10 2637:13 Business [24] 2377:22 1 2449:10 2574:4 2587:19 causal [7] 2463:11 2554:4, 2435:5 2462:18,19,21 2644:15 2645:6 2657:23, 2432:25 2457:20 2500:8, 2638:7 2640:19 2644:10 20 2616:10,16,16 2617:11 charts [1] 2435:6 [1] 25 2662:12 15 2505:20 2509:15 2510: capable 2547:12 cause [4] 2555:16 2564:6, cheaper [2] 2551:15 2571: [3] bottom [16] 2377:24 2383: 7,10 2512:8 2553:7 2554: capital 2656:23,24 18 2647:6 20 6 2399:19 2400:17 2446:6 15 2555:10 2602:16,20 2657:2 caution [1] 2374:13 Checking [1] 2446:1 [1] 2466:21 2481:6 2522:2 2606:8,10 2615:25 2639: capture 2610:6 caveat [1] 2455:24 cheekily [1] 2564:1 [1] 2546:13 2559:6 2584:8 24 2645:7 2658:2,3 2659: captures 2561:18 CD [3] 2570:17 2573:2,16 CHERRY [1] 2369:11 [4] 2590:19 2603:23 2609:22 15 2670:10 car 2572:18,20 2574:18, ceiling [1] 2654:5 cherry-picked [1] 2560:6 2619:9 2673:14 businesses [3] 2427:15 24 cell [3] 2530:3 2626:24,25 Chet [1] 2536:10 [1] bound [1] 2654:2 2453:8 2532:11 cards 2659:25 cellular [2] 2530:7,8 CHIEF [137] 2374:6,19,22 [7] bounds [4] 2505:9 2508:17 button [9] 2400:17 2446:6 care 2389:3,17 2391:20 Center [1] 2530:18 2375:3,7,10 2379:5,12 2654:11,18 2466:21 2481:6 2522:2 2395:14 2419:8,17 2518: central [1] 2649:1 2380:5,8,18,23 2381:2,6 box [5] 2397:11 2398:17 2559:5 2590:19 2619:9 22 cents [2] 2633:6,13 2384:4 2386:17 2387:1,3 [1] 2583:25 2584:1 2653:23 2673:14 career 2531:15 certain [18] 2379:3,20 2389:7,20 2400:6,9 2415:5, [1] brackets [3] 2545:25 2546: buy [8] 2570:16 2571:11,19, careful 2646:8 2384:2 2385:14,16 2392:2, 7 2416:8 2420:6,10,24 [4] 1 2632:18 23 2573:1,15,25 2646:16 carefully 2540:2,15 16 2419:5 2423:3 2580:1 2421:3 2428:17,25 2438:4 breadth [2] 2392:4,24 buyer [11] 2438:10 2600:20 2541:13 2580:4 2585:5 2586:14 2611:19 2445:9,16,22 2449:4,22 [3] break [3] 2509:3 2517:23 2634:25 2635:7 2643:24 CARL 2624:22 2625:11 2616:17 2637:9,23 2670: 2450:5 2452:3,15 2458:15 2577:15 2644:5,7,9,11,13 2645:22 2684:13 17 2671:13 2460:3,18 2466:10 2470:2, Heritage Reporting Corporation (202) 628-4888 Sheet 4 big - CHIEF Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 6,12 2472:17 2473:7 2476: clarify [3] 2385:24 2460:4 commercial [1] 2444:12 2652:1,14,15 2655:10 conditions [4] 2616:17,18 1 2480:23 2497:2 2501:18 2502:23 commercially [3] 2640:3 2659:4 2660:6 2661:4 2635:1,15 2502:4,20 2503:4,18 2504: CLARK [1] 2369:17 2644:10 2652:12 competitive [28] 2420:14 conduct [4] 2473:15 2630: 9 2505:14 2506:10 2507:8, classes [1] 2626:7 commissions [1] 2531:21 2429:21 2439:7 2441:16, 17 2641:5 2672:13 12 2508:20 2509:2,6 2510: classic [2] 2585:15 2647: Committee [1] 2373:3 19 2465:1,9,22 2466:1 conducted [4] 2383:15 24 2511:17 2520:10,15,19 25 common [7] 2553:24 2600: 2471:10 2550:6 2626:5 2425:22 2442:14 2671:25 2521:5,10,15,18 2528:4,7, clear [42] 2384:9 2392:21 14,15,16,22 2601:8 2632:9 2636:2,12 2638:23 2639:1, conducting [1] 2454:1 10,16 2529:2,9 2530:17 2400:11,13,22 2432:10 commonalities [2] 2633: 10,16 2640:10,19 2641:14, conference [1] 2374:13 2532:17,19 2533:12 2558: 2445:17 2446:2,11 2454:8 23 2661:25 20 2643:7,23 2644:1 2651: confidential [9] 2400:24 8,16 2559:1,13,19 2561:4, 2456:13 2459:11,22 2460: commonly [2] 2453:6 7 2652:17 2660:17 2446:13 2467:3 2481:13 10,14 2569:15,18 2574:23 7 2462:8 2465:18 2466:17 2648:7 competitor [3] 2439:10,15 2522:9 2591:1 2619:16 2576:2 2586:23 2587:16, 2467:1 2480:25 2481:2,10 communications [1] 2440:5 2673:21 2684:17 18 2588:14 2589:10 2590: 2501:23 2513:3 2521:20, 2600:20 competitors [2] 2390:6 confine [2] 2384:6 2589:10 3,13 2598:4 2603:11 2604: 23 2522:6 2556:16 2559:2, companies [23] 2383:2 2439:3 confirm [3] 2504:14 2521: 6,11,23 2605:5 2607:7 11 2582:1,24 2590:15,24 2436:25 2473:12,19 2565: complementary [8] 2626: 6 2530:5 2608:17 2609:14 2610:14 2602:7 2619:3,5,14 2622: 3 2586:10 2634:2,5 2636: 22 2642:19,23 2643:12,15, confirmatory [1] 2581:13 2612:8,10 2617:14 2618:1 13 2670:12 2673:7,10,18 11,17 2637:13 2643:17 22 2649:2 2659:19 confirming [1] 2581:12 2619:1 2622:4 2623:5,11, clearer [1] 2651:10 2646:23 2650:19 2652:20 complete [1] 2649:15 conflict [1] 2568:1 16,23 2624:3,10,14,17,19, clearly [2] 2463:22 2610:6 2655:1 2656:23 2657:6,10 completely [5] 2461:22 confronted [1] 2426:6 25 2627:15 2628:9,11 CLERK [1] 2374:3 2662:19 2665:3,23 2667:1 2530:2 2549:19 2550:10 confuse [1] 2589:8 2629:4,8 2630:4,7 2673:1 click [9] 2400:18 2446:7 company [41] 2437:5,6,12 2636:16 confused [2] 2472:2,3 children [2] 2478:7,17 2466:22 2481:7 2522:3 2473:16 2505:6 2553:10 complex [3] 2537:22 2556: Congress [4] 2368:2,16 chocolate [1] 2426:6 2559:7 2590:20 2619:10 2556:7 2568:13,19 2601:1 19 2557:3 2370:18 2543:8 chocolates [3] 2425:15,19 2673:15 2613:11 2615:24 2616:3 compliant [1] 2627:2 congressional [2] 2519:9 2426:10 clicking [9] 2400:16 2446: 2633:24 2635:6 2636:13 complicated [3] 2537:9 2520:3 choice [4] 2395:24 2396: 5 2466:20 2481:5 2522:1 2637:5,18 2639:20 2640: 2567:11 2662:15 connected [1] 2653:22 15 2562:18 2575:5 2559:5 2590:18 2619:8 13,21 2641:1,23 2647:8 complication [1] 2654:23 connection [9] 2473:1 choices [1] 2396:2 2673:13 2648:3 2649:22,24 2650:7 complications [1] 2537: 2501:5 2506:18 2534:1,8 choose [5] 2396:16 2397: cliff [1] 2520:7 2651:16 2653:23 2654:3,9 19 2618:6 2628:15 2629:15 24 2399:20,23 2417:20 climate [1] 2519:16 2656:24 2658:4,8 2663:3,7, component [1] 2472:14 2630:15 chose [2] 2389:24 2505:21 close [1] 2466:14 8,12 2665:18,25 composing [1] 2451:4 conservative [5] 2659:23 chosen [2] 2560:23 2577: closed [5] 2374:12 2530:1, company's [4] 2640:14 compositions [1] 2582:7 2660:18 2661:3,3 2664:16 12 2,6 2625:7 2642:3 2651:18 2663:6 compulsory [1] 2566:6 consider [15] 2429:16 Chris [5] 2433:6 2461:6 closely [3] 2633:21 2648: comparable [2] 2383:8 compute [4] 2423:23 2537: 2441:6,22 2473:17 2474: 2462:11,12 2583:10 16,21 2384:12 10 2539:25 2560:15 11 2498:11 2515:5 2577: church [1] 2477:8 cloud [6] 2501:14 2503:13 compare [9] 2424:9,14,19 concept [5] 2511:2 2647: 17 2599:8,14,19,21 2635: Churn [8] 2394:21 2397:3, 2504:15 2510:11 2512:9, 2454:9,20,22 2455:21 19,20 2655:7 2660:25 10 2654:24 2660:4 16 2398:20,24 2399:10,14 12 2456:14 2563:6 conceptual [2] 2543:16 consideration [1] 2440:4 2520:24 co-written [1] 2627:7 compared [2] 2564:9 2657: 2661:24 considerations [6] 2439:9, churned [3] 2393:25 2394: codified [1] 2397:12 20 concern [1] 2396:4 14 2441:5,9,10 2442:4 8 2395:14 coercion [1] 2547:7 compares [2] 2377:25 concerned [1] 2419:14 considered [3] 2471:7 churning [2] 2399:21,25 coin [1] 2536:13 2423:24 concerning [10] 2445:24 2610:8 2656:6 circumstances [4] 2456: coincided [1] 2387:13 comparing [1] 2671:10 2459:13 2460:10,15,22 considers [2] 2508:10 25 2514:11 2547:18 2574: colleagues [1] 2509:3 comparison [3] 2454:16 2461:10,11 2582:6 2587:1 2604:25 1 collection [1] 2557:7 2455:15 2505:18 2588:6 consistent [7] 2395:12 cite [15] 2376:25 2377:2,16, collectively [1] 2537:14 comparisons [1] 2505:25 concerns [2] 2393:21 2585:20 2632:23 2636:5 22 2378:8 2390:25 2393: COLLINS [1] 2371:9 compelling [1] 2554:19 2461:19 2637:3 2655:17 2659:4 10 2398:7 2461:5,9 2464: colloquy [1] 2565:10 compellingly [1] 2462:4 concert [2] 2555:3,11 consistently [1] 2655:13 15,15 2501:5 2514:18,22 collusion [1] 2635:21 compete [1] 2438:18 conclude [4] 2422:13 consonant [1] 2638:14 cited [6] 2462:12 2499:20 column [1] 2396:16 competed [1] 2642:3 2614:6,17 2617:11 constitutes [1] 2640:15 2501:20 2505:24 2506:18 come [17] 2378:6 2381:7 competing [3] 2564:23,24 conclusion [13] 2422:18, constraint [9] 2426:18,21, 2613:19 2385:10 2421:1 2436:9 2641:24 22 2560:21 2584:22 2587: 24 2427:9,20,21,22,24 cites [1] 2507:19 2499:21 2502:25 2515:3 competition [58] 2465:11, 14 2588:5 2589:6 2604:17 2611:11 citing [1] 2392:16 2542:20 2553:22 2555:12 12,15,16,24 2631:12 2634: 2607:1,4 2613:21 2614:2, consult [1] 2509:3 claim [3] 2550:9 2557:22 2598:25 2644:14 2645:6 11 2635:2,15,17,18 2636:5, 14 consultant [1] 2530:25 2610:25 2646:11 2652:16 2664:21 8,10 2637:4,15,17,23,24 conclusions [3] 2563:3 consulting [1] 2530:17 claimed [1] 2514:9 comes [3] 2465:12 2518: 2638:1,2,4,7,8,10,15,19,20, 2632:5 2633:17 Consumer [3] 2378:9 claiming [2] 2552:15 2567: 25 2540:18 21 2639:2,3,7,18 2642:1 conclusively [2] 2622:14, 2379:19 2430:8 7 coming [2] 2451:19 2661: 2644:17 2645:12 2648:13, 18 consumers [5] 2390:15 claims [1] 2608:25 15 22 2649:7,11,14,14 2650:4, condition [2] 2441:19 2429:20 2430:9 2650:11 clarification [1] 2511:7 comment [1] 2670:3 6,18 2651:1,3,12,13,14,24 2638:14 2651:6 Heritage Reporting Corporation (202) 628-4888 Sheet 5 CHIEF - consumers Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS consumption [1] 2575:6 2383:12,13 2384:14,20 2589:4 2590:21,23 2598: 21 2458:20 2460:3,5,19 decisions [4] 2392:25 contacted [1] 2533:20 2386:7,23 2387:20 2388:1, 10 2609:15 2619:11,13 2461:17 2466:6 2684:6 2539:4 2545:1,3 contain [2] 2472:20 2627: 4,5,14 2390:10,16 2391:1, 2673:16,18 current [9] 2427:1 2458:22 Decks [1] 2520:24 11 8,14,21 2393:3,22 2394:1, count [1] 2531:12 2471:14,19,22 2472:23 decline [9] 2459:13 2460: contained [1] 2534:5 16,21 2395:15,21,22 2396: counterpart [2] 2632:2,3 2475:19 2514:10 2541:24 10,15,22 2461:11,19 2462: contains [2] 2558:6 2570: 17 2397:17,25 2398:2,21 countervailing [1] 2577: currently [6] 2384:25 2530: 22,24 2463:1 17 2399:7,21 2417:4,13,25 22 15 2533:8 2558:3 2605:16 declines [2] 2536:14,16 contemplated [1] 2511:21 2418:12,23 2419:9 2421: country [1] 2417:18 2625:12 deep [1] 2644:16 contemplating [1] 2548: 13 2422:1,16 2423:7,12,16 couple [4] 2426:15 2555:4 cursory [1] 2512:24 defect [2] 2548:17,21 22 2424:1,13,22 2425:7,15,25 2559:24 2569:2 curtain [2] 2374:4,5 defecting [1] 2548:10 contend [1] 2391:19 2426:7,20 2429:14 2430:2, Cournot [1] 2643:3 custom [11] 2580:25 2581: defection [2] 2548:1 2565: content [12] 2387:24 2388: 16,25 2431:9,14,24 2432:9, course [18] 2394:24 2397: 6,17 2582:20 2583:2 2585: 4 17 2390:2 2431:20 2432:1, 22 2433:12,14,15,24 2434: 1 2421:2 2424:14 2432:16 8,12 2586:3,15 2588:3 defer [1] 2445:7 12,15 2453:16 2474:13,15 2,5,7,12,22,24 2435:4,21 2437:3 2441:8 2443:1 2589:1 define [3] 2426:21 2585:12 2560:9 2565:3 2439:4,25 2440:5 2443:11 2444:6 2453:22 2472:7,10 customer [2] 2427:17 2644:5 contention [4] 2416:2 2449:12,17 2450:18,19,24 2475:12 2499:22 2516:7 2428:9 defined [3] 2430:6,16 2585: 2465:8 2499:12 2604:14 2452:13 2454:21 2455:16 2537:15 2657:5 2668:5 customized [1] 2431:8 13 context [12] 2420:20,23,25 2456:3 2457:1,14 2458:25 Court [4] 2380:15 2579:1 cut [4] 2381:1 2544:8 2605: definitely [3] 2394:17 2454: 2437:12 2449:16 2610:5, 2459:23 2462:15,16 2464: 2628:2 2686:10 11 2661:11 22 2464:11 10 2631:10 2637:2 2642:4 6,7,10,16,20 2465:22 2466: courtesy [8] 2553:24 2554: D definition [2] 2572:7,15 2657:18 2659:24 2 2471:3 2472:15 2475:16 3,15 2600:14,15,16,22 degraded [2] 2421:13,15 [4] continue [7] 2375:11 2392: 2479:4 2497:15 2498:3,10, 2601:8 D.C 2368:19 2369:22 degree [9] 2386:8 2390:18, 25 2415:9 2458:22 2497:3 14,23 2499:19 2500:22 courtroom [1] 2445:5 2370:8 2530:20 19 2418:15 2478:3 2581: [13] 2504:10 2623:7 2501:14 2504:24 2505:6 coverage [1] 2390:19 DAMLE 2372:6 2428: 22 2583:7 2625:24 2639:3 Continued [4] 2370:1 2509:25 2512:19 2514:5, covered [3] 2377:13 2378: 20,21,23 2429:3,7 2438:7 DEIFE [1] 2372:12 2371:1 2372:1 2373:1 19,24 2515:6,11 2516:20, 7 2560:18 2444:16 2449:5,7 2450:3,5 delivery [3] 2438:19 2583: contract [3] 2439:22 2443: 25 2519:1,10,11 2533:4 CP [1] 2517:16 2684:5 21 2584:16 [1] 21,22 2534:16 2541:24 2549:5 CPB [8] 2516:19,24 2517: Dan 2425:17 demand [1] 2562:10 [36] contracts [1] 2567:12 2570:6 2573:21 2576:24, 11 2518:9,22 2519:2,9,18 data 2399:25 2418:13 demanding [4] 2603:24 contrary [1] 2508:10 25 2577:5,18 2578:4 2579: CPM [10] 2453:2,6,10,20 2423:22 2424:4 2435:7,19, 2606:1 2607:23 2608:4 contributing [1] 2433:1 23,24 2583:18 2588:23 2454:5,15 2455:12 2456:7, 24 2453:14 2454:2,4,5,9, demonstrate [4] 2507:1 contributions [3] 2603:15 2599:12,16 2606:20 2612: 10,15 10,11,13,14,15,17 2455:5, 2538:10 2562:25 2616:10 2605:18,22 25 2614:4,8,15,18 2615:4, CRAIG [1] 2373:6 6,8,12,12,14 2456:1,3,6,7, demonstrated [1] 2611:10 control [8] 2423:14,17,19, 8,18,25 2616:6,20 2618:7, crazy [1] 2660:16 10 2476:22 2477:1 2498:5 demonstrates [1] 2545:2 25 2424:10,20 2431:7 8,11,17 2622:16,21 2665: CRB [2] 2529:8 2580:9 2534:25 2540:4 2616:9 demonstrating [2] 2583: 2671:10 18 2667:4 create [2] 2636:12 2637:15 2617:2 20 2584:15 [1] conversation [1] 2444:18 corrected [2] 2628:19 created [2] 2579:12 2638: Date 2686:10 demonstrative [1] 2538:9 [1] conversations [1] 2556: 2672:20 14 dating 2514:23 department [2] 2565:18 [3] 19 correctly [5] 2426:19 2449: creates [1] 2627:3 DAVID 2368:13 2369:10 2627:14 convert [2] 2538:19 2666:7 18 2450:2 2549:12 2578: credibility [1] 2508:24 2370:3 departments [1] 2549:11 [3] COO [1] 2473:24 17 credit [2] 2552:15 2557:22 day 2519:17 2536:9 depending [6] 2539:24 coordinate [1] 2643:18 corresponding [2] 2431: critical [1] 2662:20 2671:16 2540:6 2634:19 2642:11 [1] coordinating [1] 2643:17 22 2438:15 criticism [3] 2518:12,13 day-to-day 2615:6 2646:7 2658:25 [1] coordination [2] 2635:21 cost [22] 2602:15,22 2632: 2519:8 De 2370:13 depends [3] 2418:15 2445: [12] 2643:11 12,14 2653:23,25 2654:1 criticisms [1] 2631:19 deal 2444:8 2535:10 13 2655:5 COPIES [2] 2368:9 2502: 2656:23,24 2657:1 2660: criticize [1] 2518:7 2536:19 2578:3,6 2579:10 depicted [3] 2561:18 2653: 18 10 2662:23 2663:1,3,6,11, critique [2] 2422:12 2564: 2644:15 2645:6 2656:19, 8 2661:24 copy [7] 2379:22 2502:8,13, 17,18 2665:25 2666:7,8,16 13 20 2658:3 2661:11 depicting [1] 2653:17 [2] 15 2503:3 2562:11 2570: cost-based [1] 2660:18 cross [2] 2388:2 2684:2 dealing 2548:24 2606: deposition [8] 2425:12 16 cost/benefit [3] 2602:18, cross-examination [16] 17 2427:14 2471:24 2472:3,9 [3] COPYRIGHT [3] 2368:1 22 2606:9 2374:8 2375:11,18 2383: deals 2580:1,15 2581:5 2477:2 2478:12 2497:17 [1] 2511:16 2531:19 costing [1] 2564:8 25 2429:2 2450:8,9 2466: debt 2437:5 derivations [1] 2632:25 [1] Cordes [1] 2499:13 costs [1] 2641:25 13 2470:9,14 2497:4 2510: decade 2515:16 derive [2] 2630:18 2631:18 [3] coronavirus [1] 2375:1 couldn't [4] 2451:2 2637:8 16 2569:22 2598:7 2623:7, decide 2571:22 2588: derived [2] 2633:14 2638: corporate [3] 2505:3,4,5 2648:3,5 19 22,25 17 [2] Corporation [2] 2516:11, Council [2] 2627:18,21 CRR [1] 2368:25 decided 2510:14 2565: describe [8] 2387:13 2463: 14 counsel [27] 2378:24 2380: crystal [1] 2582:23 16 13 2503:20 2514:20 2570: [1] corporations [1] 2499:10 12 2400:19,21 2444:15 Cumulus [3] 2454:6 2455: decides 2659:21 10 2630:13 2646:9 2671: [7] correct [179] 2376:6,7,19 2446:8,10 2466:23,25 18 2456:9 decision 2391:13 2392: 22 2377:7,8,11,18 2378:2,4, 2473:6 2481:8,10 2522:4,6 CUNNINGHAM [14] 2370: 25 2396:22 2452:20 2588: described [4] 2508:22 14,15,17 2382:1,6,7,11,14 2559:8,10 2569:1 2586:20 16 2450:7,10,12 2452:4,6, 23 2602:21 2656:3 2537:4 2547:18 2645:3 Heritage Reporting Corporation (202) 628-4888 Sheet 6 consumption - described Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS describing [1] 2419:20 DIGITAL [30] 2368:7 2377: 22 doing [15] 2427:12 2457:18 2515:22 2618:9 2625:21 description [2] 2381:20 17 2383:7 2384:11 2387: discussing [8] 2376:2 2478:10 2497:23 2505:17 dysfunction [2] 2643:3,15 2382:10 17 2427:6,8 2433:2,18,20 2383:22 2425:9 2463:16 2538:14 2540:3 2547:12 E design [2] 2396:6 2430:12 2434:1,4,11,17 2435:1 2584:25 2602:7 2656:2,7 2553:2 2554:14 2555:10 [5] designated [3] 2528:23 2436:9,14 2437:15,18 discussion [8] 2437:15 2585:10 2586:5 2603:5 e-mail 2504:24 2530:2 2541:23 2617:18 2457:5 2459:5 2463:16 2509:4 2510:23 2513:10 2634:7 2601:14,25 2625:7 [2] designed [2] 2542:20 2464:5,6 2465:17 2477:12, 2534:5 2536:20 2541:22 DOJ [1] 2627:20 e-mails 2553:20 2602:9 [7] 2610:6 15 2572:11,20 2573:6 2585:1 dollar [2] 2538:25 2539:1 E3 2500:11,16 2501:8 destruction [4] 2551:14 digitally [1] 2572:10 disembodied [1] 2429:9 dollars [2] 2571:20 2660: 2503:12 2504:14,22 2513: 2566:2 2644:14,18 digitization [2] 2459:8 dismiss [1] 2557:5 13 2 [19] detail [5] 2477:16 2632:10 2465:13 displace [1] 2463:10 dominant [2] 2548:19 each 2417:20 2428:8 2656:3 2665:12 2671:20 dilemma [5] 2551:6,20,22 displaced [2] 2461:25 2655:8 2516:24 2517:1 2544:8 detailed [2] 2438:9 2672: 2564:18 2566:2 2462:1 donations [1] 2518:20 2553:14 2556:2 2560:14 16 diminished [1] 2537:18 display [1] 2479:21 done [31] 2390:17 2391:3, 2562:3,9 2567:3 2612:20 details [3] 2396:24 2519: direct [62] 2382:18 2387:16 displayed [1] 2509:17 15 2424:7 2450:4 2452:1 2633:3 2635:23 2643:21 21 2672:12 2388:2 2394:3 2395:9 displaying [2] 2501:6 2454:18 2466:7 2471:12, 2646:6 2670:7,15 2672:2 [11] DETERMINATION [1] 2430:7 2431:5 2435:14,15 2561:6 12 2517:17 2533:22 2535: earlier 2422:9 2455:16 2368:6 2436:19 2440:13 2449:14, dispute [2] 2459:25 2650: 6 2540:2 2543:19 2556:8 2503:9 2539:23 2545:3,18 determine [3] 2454:19 15 2450:2,15,16 2457:16 14 2600:24 2601:7 2607:25 2564:15 2585:13 2598:14 2622:9 2634:23 2459:11 2460:9 2461:4,7 dissatisfied [1] 2421:25 2608:3 2616:19,23 2617:3 2599:11 2617:18 [1] determined [1] 2622:25 2463:17 2464:5,12 2465:4 distance [1] 2459:19 2618:5 2632:19 2633:21 early 2633:24 [1] develop [2] 2631:16 2656: 2473:2 2474:22 2476:10 distinct [2] 2510:7 2642:9 2641:3 2642:3 2665:6 easier 2663:15 [1] 1 2477:9 2498:25 2505:18 distinction [2] 2650:21 2666:9 2667:11 easily 2421:12 [3] DEVI [1] 2369:14 2508:23 2510:17 2511:1,3, 2658:9 Doomsday [3] 2514:21 easy 2420:14 2421:15 device [2] 2530:7,8 3,13,22,25 2514:1,10 2515: distinctions [1] 2648:18 2515:1,4 2623:23 [1] dictionary [1] 2509:1 22 2521:2 2529:17 2530:4 distinguish [5] 2552:20,23 down [18] 2374:12 2377:23 EBITDA 2427:10 [1] differ [1] 2651:13 2534:1 2535:25 2579:21 2557:18 2648:17 2651:2 2397:14 2398:3 2400:1 echo 2478:3 [1] difference [19] 2391:24 2618:9 2625:3 2627:10 distinguished [1] 2510:8 2419:3 2501:11 2505:2 echoing 2440:17 [1] 2443:10 2444:19 2546:7,8, 2628:15,20 2636:8 2645: distinguishing [1] 2657: 2509:20 2520:16 2543:20 econometric 2540:3 [35] 9 2555:18 2575:5 2647:18 19 2653:14 2655:23 2656: 18 2569:19 2577:15 2580:19 economic 2427:15 2656:16 2660:11 2661:1,2, 11 2670:13,14 2672:20 distracted [1] 2440:19 2584:7 2624:4,11 2643:19 2435:22 2439:9,14 2441: 9 2662:7,14,16,17 2669:12 2684:2 distracting [1] 2636:15 downloads [1] 2462:23 11,13 2530:16,19 2535:19, differences [21] 2424:24 direction [1] 2590:12 distribution [6] 2418:13 downward [1] 2634:14 20 2586:10 2599:18,20,22 2440:10 2441:1,11,13,16, directly [6] 2458:7 2506:14 2425:4 2476:21 2532:1 dozens [1] 2626:10 2600:12,16,19 2601:23 23 2442:16 2443:2,5,16 2516:18 2536:2 2540:1 2562:19 2563:7 drafted [1] 2511:20 2602:1,3,5,10,11,13,20 2444:1 2449:11 2473:18 2608:14 distributor [6] 2643:25 draw [5] 2422:22 2464:23 2603:2,5 2606:4,5,17 2627: 2476:15 2581:16,23 2583: disagree [1] 2616:7 2644:5,11 2645:22 2646: 2505:24 2560:12,21 18,21 2630:18 2631:12 1,7 2662:3,6 disagreeing [1] 2508:8 20 2647:9 drawing [2] 2465:16 2631: 2647:15 [21] different [51] 2376:15 2400: disclosure [2] 2502:12,19 distributors [1] 2646:22 13 economics 2427:25 2 2418:16 2421:7 2422:10, discount [9] 2475:19,20 diversion [3] 2536:20 drawn [1] 2563:4 2428:7 2438:23 2473:21 24 2439:11,16,22 2440:4 2513:9,11,18,22,24 2514:4 2539:24 2540:18 draws [1] 2463:17 2477:13 2530:13 2531:3, 2442:5,9 2443:2,16,22 2548:2 divert [1] 2664:18 drew [1] 2505:17 14 2532:9,16 2589:12 2450:25 2452:7 2455:19 discounted [1] 2667:21 diverted [1] 2665:17 drill [1] 2580:19 2599:12,24 2606:11 2625: 2465:7 2474:20 2476:4 discounts [10] 2499:10,14, divide [2] 2666:11,14 drive [6] 2428:8 2512:12,19, 23 2626:1,4,6 2627:8 2628: 2500:16,18 2501:2 2503: 17 2500:1,3 2501:22 2503: divided [1] 2656:4 21 2535:23 2537:12 7,7 [16] 24,24 2504:1 2507:22 22 2507:17 2511:2 2514:8 division [1] 2656:5 driven [2] 2579:15 2606:9 economist 2451:18 2510:5,9 2513:5,5,6 2541: discuss [20] 2376:13,15,24 Docket [1] 2368:6 drives [2] 2456:20 2556:23 2459:3 2471:23 2474:14 18 2546:19 2566:3 2570:9 2378:24 2385:1 2387:16 Doctor [2] 2568:4,7 driving [4] 2430:4 2460:2 2530:18 2569:8 2587:22 2572:12 2573:8,20,22 2456:22 2457:8 2460:1 doctrine [2] 2647:16,17 2572:18 2662:20 2599:24 2600:5,8 2603:7 2575:1 2580:15 2581:7 2477:15 2499:9,12,18 document [23] 2393:11 drop [2] 2651:16 2652:7 2615:3,5 2617:10 2627:15 2582:21,25 2589:2 2608: 2542:11,13 2570:8 2612: 2398:7,9 2501:17 2502:4, drug [1] 2426:25 2641:23 [1] 21 2635:13 2647:8 2662: 12,22 2671:19 2672:24 14 2504:4,7,19 2505:1 drugs [1] 2427:6 economist's 2437:3 [4] 10 discussed [21] 2376:9,18 2506:3 2507:5 2509:8,9,18 due [7] 2376:20 2462:4,23 economists 2534:16 differential [1] 2507:19 2388:10,13 2433:5,10 2510:23 2514:1 2521:13 2463:6,8 2477:21 2665:21 2569:3 2641:3,7 [1] differently [6] 2425:3,6 2457:9 2464:4 2477:17 2532:24 2628:17,19 2629: DUKANOVIC [1] 2372:7 economists' 2534:4 [1] 2513:6 2578:6 2586:2 2479:8 2504:22 2509:16 18,20 duly [3] 2375:16 2528:14 ecosystem 2464:23 [2] 2634:7 2511:1,2 2529:25 2535:11 documented [4] 2426:12 2624:23 ecosystems 2464:6,9 [7] difficult [3] 2537:6 2579:14 2543:16 2557:17 2559:23 2435:7 2436:14 2514:12 Duncan [1] 2534:13 EDT 2374:2 2509:5 2617:5 2598:16 2608:9 documents [6] 2393:6 duopoly [1] 2646:18 2528:3 2623:9,10 2624:12, diffuse [1] 2442:2 discusses [5] 2378:12 2459:18 2472:4,20 2506: during [8] 2386:13 2474:22 13 [3] dig [1] 2634:21 2379:3,20 2390:22 2608: 21 2587:9 2510:16 2511:1 2514:10 educational 2530:12 Heritage Reporting Corporation (202) 628-4888 Sheet 7 describing - educational Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2599:23 2625:22 embodiments [1] 2462:1 entitled [2] 2379:10 2587:3 2393:9 2396:23 2422:17, 13,22 2613:6,9,22,25 2668: effect [56] 2424:6,10,19 embody [1] 2472:22 entity [2] 2454:10 2498:8 20 2426:4 2433:23 2434: 3 2457:18 2520:2 2535:18, embrace [1] 2456:19 enumerate [1] 2391:2 20 2435:24 2454:6 2459: exceed [1] 2426:25 20,25 2536:3,3 2537:13,20 emerged [1] 2462:4 EPHEMERAL [1] 2368:9 13 2460:10,14,21,23 2461: exceeds [1] 2389:13 2538:8,8,11,11,13 2539:25 emergence [5] 2429:12 Equal [4] 2544:7 2573:3 5,9,11 2462:7 2471:20 Excellent [1] 2530:10 2540:5,8,17,19,20 2541:16, 2437:2 2438:22 2457:3 2578:1 2663:6 2502:14,21,24 2503:1 except [1] 2673:8 17,18 2544:13,14,19,21 2477:22 equally [2] 2655:22 2656:4 2504:7 2505:22 2508:10, excess [1] 2476:12 2548:4,9,16,17,18 2550:12 emerging [2] 2436:25 equates [1] 2656:22 16 2529:15 2533:16 2534: exchange [1] 2586:18 2554:12,20 2555:8,16 2437:6 equation [2] 2578:15,25 21 2535:3 2536:17,22 exclude [1] 2574:4 2557:7 2560:4,12 2561:24, emeritus [1] 2625:13 equilibrium [6] 2544:23 2538:5 2546:8 2547:10 excluding [1] 2550:11 25,25 2562:3,15,25 2563:9, EMF [4] 2478:9 2479:24 2655:7,8,13,15,18 2549:8 2552:6,7 2553:19 exclusion [1] 2543:3 14 2578:2 2614:1 2616:10 2480:9,9 equipment [1] 2669:2 2554:8,11,19 2555:22 exclusive [1] 2555:11 2617:12 2622:25 EMILY [1] 2369:18 equivalent [1] 2531:19 2556:14 2557:12,18 2561: Excuse [11] 2379:5 2444: effective [27] 2631:12 emphasizes [1] 2391:24 escalating [1] 2551:18 19 2562:24 2569:11 2583: 14,14 2508:4 2549:4 2630: 2634:8,11 2635:1,15,17,18 empirical [22] 2459:13 escaping [1] 2534:13 20,22 2584:14,18 2586:25 23 2634:12,12 2644:21 2636:5 2637:4,15,17 2638: 2460:10,14,21 2461:5,9,10 especially [4] 2453:20 2589:7,17 2598:13 2608: 2655:24 2669:25 15 2639:1,2,7,18 2645:12 2462:7 2538:6 2576:20 2463:22 2478:4 2650:25 12 2609:2,6,9,13,17,22 executives [6] 2473:16 2648:13,22 2649:7,11 2577:2 2600:24 2601:4,7 ESQ [34] 2369:10,11,12,13, 2610:7,18 2611:13 2613: 2535:9 2556:7 2601:2 2651:1,25 2659:4 2660:6, 2607:25 2608:3 2616:11, 14,15,16,17,18 2370:3,4, 25 2614:10 2617:10,11 2615:24 2616:3 17 2661:4 19,23 2618:5 2622:9 2657: 11,16,21 2371:3,4,5,6,7,8, 2629:3,12 2630:3,11 2648: exercise [4] 2649:1,12 effectively [12] 2457:13 15 9 2372:3,4,5,6,7,8,9,10,11, 13 2652:19,22 2653:1 2650:22 2658:10 2471:9 2636:1,12 2639:10, empirically [1] 2574:6 12 2373:4,5,6 2658:5 2667:5 2668:8,11, exhaustive [1] 2512:16 16 2640:10,19 2641:14,19 employed [2] 2530:15 essence [1] 2566:6 13 2671:3 Exhibit [42] 2379:25 2393: 2643:6 2652:17 2615:9 essential [7] 2626:23 2647: evidentiary [1] 2528:20 7,8,16,18 2398:4,6,12 effects [48] 2437:4 2534:6, employment [1] 2615:6 16,16,21,21,25 2648:7 evidently [3] 2463:20 2472: 2501:24 2502:5,9,21,23 23 2537:21 2538:23 2539: enable [1] 2609:10 essentially [1] 2643:20 7 2478:9 2503:12 2504:5,15,16 12,17 2542:23 2544:25 enabled [2] 2463:21 2465: ESSER [1] 2372:10 exact [4] 2573:4,17,19 2506:4,13,23 2507:2,9 2545:20,21,24 2546:7,15 13 EST [1] 2368:21 2574:2 2508:1 2521:3 2529:14 2547:9 2550:5,6,9 2557:23 encourage [2] 2564:20 establish [2] 2503:23 2603: exactly [10] 2380:20 2434: 2532:23 2533:9,15 2601: 2560:14 2569:4,10,12 2566:7 7 3 2477:20 2504:25 2545: 10,11 2609:18 2628:18,23 2577:21,22 2578:20 2581: end [11] 2373:11 2380:23, established [2] 2444:23 17 2564:2 2578:21 2634: 2629:3,9,11,19 2630:3,8, 16,23 2583:1,8,21,23 2584: 24 2419:23 2420:15 2475: 2462:21 19 2642:24 2644:8 10 2684:22 2685:1 15,19 2613:23 2614:4,7,18, 21 2520:9 2565:21 2633:9 estimate [2] 2480:21 2628: examination [16] 2375:15 exhibits [8] 2380:16 2502: 24 2615:22 2616:6,20,24 2642:25 2643:1 2 2388:2 2394:3 2449:15 18,18 2510:16 2528:22 2617:4 2618:6,14 2622:15, endanger [1] 2458:5 estimated [1] 2435:6 2450:16 2474:23 2511:1,3 2529:4,6,12 19 engage [5] 2389:25 2465: estimates [2] 2435:9 2437: 2514:11 2520:21 2528:20 exist [4] 2564:17,17 2581: efficiency [1] 2453:15 14 2479:3,18 2606:8 11 2529:17 2618:9 2625:3 15 2616:18 effort [2] 2506:3 2551:5 engaged [1] 2602:17 estimation [1] 2534:5 2636:8 2684:2 existed [1] 2570:20 efforts [2] 2549:9 2556:17 engaging [1] 2637:25 et [2] 2617:16,16 examined [5] 2375:16 existence [1] 2640:14 either [17] 2384:3 2385:19 ENGLUND [1] 2369:12 evaluate [1] 2587:11 2425:18 2438:8 2528:14 existing [1] 2581:4 2454:14 2456:11 2516:22 enormous [2] 2645:5,9 even [19] 2394:4 2396:4 2624:23 exit [1] 2548:14 2541:23 2550:20 2562:7, enough [5] 2395:17 2398: 2421:23 2440:5 2478:19 example [47] 2387:22 expand [2] 2393:13 2462: 24 2583:14 2615:3 2639: 23 2417:23 2557:20 2665: 2538:8 2555:16 2556:20 2388:1 2390:3 2419:14 13 24 2644:17 2646:3 2657: 13 2557:12 2599:10 2617:8 2425:5,6 2426:23,24 2427: expanding [1] 2550:13 10,23 2660:16 ensure [3] 2478:6 2530:1 2643:2,23 2651:10 2652: 25 2430:3,11,15 2431:2 expansive [1] 2417:17 elaboration [1] 2380:11 2651:7 19 2660:20 2661:9,10 2432:17 2439:19,21 2440: expect [7] 2383:15 2417:1 element [1] 2662:23 entails [1] 2511:6 2669:4 2,3,6,18 2441:3,25 2443:3, 2439:22 2442:9 2529:6 elements [9] 2627:5,5 enter [1] 2442:3 event [4] 2540:22 2541:21 9 2444:13 2451:10 2454:5 2578:2,8 2631:12 2652:15 2653:10, entered [2] 2433:23 2434: 2555:2 2571:17 2455:17 2457:2 2464:21 expected [1] 2434:15 15 2661:16 2662:5,5 20 events [3] 2552:12 2554: 2479:23 2480:8 2498:6 expensive [3] 2500:21 elicit [1] 2497:9 entering [1] 2506:6 25 2555:20 2536:21 2540:3 2553:2 2649:21,23 eliminate [2] 2458:23 2543: enters [1] 2544:10 everybody [2] 2547:6 2556:4 2565:12 2605:3 experience [4] 2473:24 2 Entertainment [1] 2369:8 2551:15 2613:1 2618:15 2626:24 2476:25,25 2585:17 eliminated [1] 2541:7 entire [7] 2385:20 2389:12 everyone [3] 2374:17 2390: 2663:14,14 2666:18 2667: experienced [2] 2514:15 elimination [1] 2520:3 2452:12 2507:2 2550:22, 3 2624:1 15 2668:14 2632:13 ELIZABETH [1] 2373:6 23 2557:7 everything [3] 2465:16 examples [28] 2376:8 experiment [10] 2383:14 else's [3] 2549:24 2550:1 entirely [1] 2651:16 2602:13 2661:21 2385:7 2389:18 2431:10 2391:17,25 2419:21,25 2557:22 entirety [1] 2510:22 everything's [1] 2665:6 2463:17 2464:1,3,10,14,16, 2422:22 2671:8,15,15 elsewhere [1] 2426:12 entities [5] 2473:14 2497: evidence [94] 2385:23 17 2497:22 2498:18 2499: 2672:3 embedded [1] 2538:17 19 2498:12 2503:22 2582: 2386:5,12 2388:11 2389: 20 2556:3,6 2559:24 2560: experimental [5] 2423:22 embodied [1] 2462:24 9 19 2390:15,19 2391:5 6 2562:20 2608:9,22 2612: 2652:19 2653:1 2668:11 Heritage Reporting Corporation (202) 628-4888 Sheet 8 educational - experimental Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2671:3 fact [38] 2387:12 2389:11, feature [3] 2425:24 2431: 2671:15 focused [12] 2422:20 2426: experiments [10] 2376:3 24 2394:3 2399:10,13 14 2662:15 Fifth [1] 2371:11 1,13 2437:16 2458:2,17 2386:10 2422:13 2426:11 2422:21 2437:16 2442:20 featured [1] 2435:3 figure [10] 2396:24 2558: 2474:8 2475:13 2479:6 2652:23 2669:16 2671:23 2453:13 2465:13,21 2480: features [8] 2430:1 2431:1, 14 2560:13 2561:2,17,21 2512:10 2534:23 2537:24 2672:1,14,17 1 2500:15 2514:4 2515:1 6,25 2500:22,24 2505:13 2562:2 2602:15 2650:24 focuses [5] 2417:9 2438: expert [33] 2436:21,23 2516:14 2518:24 2519:18, 2642:16 2664:11 22 2450:17 2452:8 2512: 2438:15 2473:4,17 2474: 23,25 2534:7 2537:9 2539: February [1] 2477:3 figures [4] 2435:6,7 2436:3, 12 12 2532:5,15 2563:25 12 2551:10 2556:16 2557: fed [1] 2397:8 3 focusing [3] 2386:8 2419: 2588:16 2599:3,5,8,12,15, 5 2569:6 2576:7 2585:4 FEDER [138] 2368:12 2374: file [1] 2529:7 19 2507:4 17 2600:9,10,15 2601:16 2588:25 2589:16 2608:12 6,19,22 2375:3,7,10 2379: filed [3] 2436:16 2533:11 folder [2] 2380:16 2381:15 2603:1 2604:2,15 2605:1,3, 2637:10,16 2640:12 2643: 5,12 2380:5,8,18,23 2381: 2548:7 folks [1] 2558:3 9 2606:2,13,24 2607:22 14 2664:18 2,6 2384:4 2386:17 2387:1, filings [1] 2534:4 follow [5] 2415:19 2511:15 2627:24 2628:6 2640:12 factor [1] 2641:15 3 2389:7,20 2400:6,9 2415: financed [1] 2519:2 2568:11 2633:21 2663:15 expertise [3] 2436:24 factors [6] 2433:1 2437:1 5,7 2416:8 2420:6,10,24 finances [7] 2497:12,18 following [1] 2572:7 2589:12 2626:11 2456:23,25 2540:11 2579: 2421:3 2428:17,25 2438:4 2499:1 2515:6,9,10,16 follows [3] 2375:17 2528: experts [11] 2471:12 2506: 15 2445:7,9,16,22 2449:4,22 financial [12] 2427:8,13 15 2624:24 20 2606:7,15,21,22,22 factual [1] 2607:8 2450:5 2452:3,15 2458:15 2435:11,25 2436:25 2438: footnote [22] 2377:1,1,15, 2607:11,19 2617:9 2630: faculty [1] 2625:15 2460:3,18 2466:10 2470:2, 9 2454:12 2515:15,18 16 2382:18 2392:9,10,14, 25 failed [1] 2515:2 6,12 2472:17 2473:7 2476: 2590:8 2647:7,7 17,22,22 2393:5,8,10 2398: experts' [1] 2474:9 fails [2] 2538:10 2552:23 1 2480:23 2497:2 2501:18 financials [5] 2437:20,21 5,8 2422:7 2461:15,19 explain [14] 2420:19 2449: failure [1] 2514:21 2502:4,20 2503:4,18 2504: 2438:1 2456:5,12 2507:5 2514:1,19 16 2456:10,20 2535:16 fair [13] 2380:19 2389:18 9 2505:14 2506:10 2507:8, find [8] 2377:23 2451:8 footnotes [2] 2461:13 2542:23 2545:10 2634:16 2416:5 2417:23 2454:1 12 2508:20 2509:2,6 2510: 2476:1 2502:22 2503:19 2506:13 2635:16 2647:24 2652:4 2506:8 2543:1,1,1 2545:5, 24 2511:17 2520:10,15,19 2507:7 2649:2 2669:19 for-profit [1] 2473:19 2653:8 2662:25 2668:12 5 2661:6 2671:21 2521:5,10,15,18 2528:4,7, finding [1] 2395:6 forces [3] 2429:21 2564:17 explained [5] 2391:9 2429: fairly [1] 2421:12 10,16 2529:2,9 2532:17,19 fine [4] 2382:23 2539:10 2650:25 21 2452:18 2601:2 2606: fairness [1] 2657:14 2533:12 2558:8,16 2559:1, 2548:11 2646:13 Ford [54] 2528:8,13 2529: 16 FALK [34] 2371:7 2529:2,3 13,19 2561:4,10,14 2569: firm [4] 2530:17 2544:2 19 2532:15,20,23 2533:18 explains [2] 2422:8 2429: 2532:17,18 2533:10 2598: 15,18 2574:23 2576:2 2567:19,20 2534:14 2535:13 2536:17 19 5,6,8,10 2603:12 2604:13, 2586:23 2587:16,18 2588: firms [8] 2451:5 2464:5,8 2539:6 2542:7,10 2543:14 explanation [1] 2433:2 23,24 2605:7 2607:13 14 2589:10 2590:3,13 2465:14 2532:11 2548:11 2545:8 2547:17 2548:23 explanations [1] 2606:5 2608:14,19 2609:14,15,21 2598:4 2603:11 2604:6,11, 2565:6 2567:16 2552:1,5 2557:14 2559:23 explicit [2] 2391:25 2396:1 2610:9,16 2612:1,9,11 23 2605:5 2607:7 2608:17 first [26] 2390:18 2396:20, 2561:2,17 2563:18 2568: explicitly [4] 2397:21 2398: 2618:3,20 2622:5,6,7 2623: 2609:14 2610:14 2612:8, 21 2506:7 2510:20 2528: 10,25 2569:24 2570:3 1 2399:5 2498:4 3,5 2684:12 10 2617:14 2618:1 2619:1 14 2532:2 2534:22 2546:1 2579:16 2587:8,18 2588:1, Exposure [1] 2554:12 fall [1] 2395:5 2622:4 2623:5,11,16,20,23 2569:3 2590:4 2611:25 19 2598:9 2599:11 2605:8 express [1] 2472:5 fallback [3] 2652:8,9 2659: 2624:3,10,14,18,19,25 2624:23 2631:10 2635:10 2606:12 2607:7,14 2609: expressed [2] 2432:19 14 2628:9,11 2629:4,8 2630:4, 2638:6 2642:6 2643:3 10,16 2610:2,7,14,17 2611: 2607:10 falls [1] 2606:11 7 2673:1 2644:5 2653:16 2654:15 15 2617:14 2618:4 2622:8 expressing [1] 2458:17 familiar [3] 2431:18 2452: federal [9] 2516:20 2517:9, 2658:14 2662:23 2663:4 2623:8,19 2624:4,4 2684:9 expression [4] 2599:21,25 24 2626:16 11,13,16,18 2518:8 2519:1, 2667:20 2668:1 Ford's [5] 2528:19,23 2583: 2600:3,12 family [7] 2475:5 2514:9,14 3 firsthand [1] 2390:12 11 2587:22 2609:17 expressions [14] 2552:10 2515:6,10,15,18 Federation [2] 2369:3,5 fit [2] 2568:13,19 foregoing [1] 2686:3 2553:17 2554:6 2598:17, famous [2] 2416:23 2417: fee [3] 2472:14 2498:17,20 fits [2] 2422:8 2655:12 forget [1] 2534:12 24 2599:4,6,8,15,19 2600: 20 feed [10] 2450:6 2470:3,5 Five [9] 2374:3 2445:10,14 forgive [1] 2382:19 6,11,25 2601:3 fan [2] 2387:7 2417:12 2528:5,6 2559:14,17 2561: 2466:9,11 2497:13 2498: form [5] 2511:10,12 2512: expressly [1] 2580:23 fans [3] 2386:22 2388:19 13 2623:12,15 23 2499:1 2590:1 15 2567:4 2671:11 extent [15] 2419:4 2432:4,6 2417:3 feel [8] 2380:11 2416:13,14 five-minute [1] 2624:5 formal [1] 2568:21 2466:4 2520:2 2536:7 FAPR [1] 2368:25 2419:20 2462:8 2502:14 flawed [1] 2614:3 formally [1] 2516:21 2543:9 2567:2 2572:11 far [7] 2508:17,18 2638:23 2505:8 2614:10 Fletcher [2] 2373:7 2520: format [2] 2462:15 2476:7 2585:25 2587:13,23 2602: 2647:18 2658:15 2660:6, feeling [1] 2399:3 16 forming [1] 2615:22 14 2631:20 2639:3 16 fees [1] 2518:10 flip [2] 2381:19 2536:12 forms [10] 2457:14 2663:7, extreme [1] 2660:20 fashion [1] 2567:5 felt [1] 2374:14 flipping [2] 2575:3 2631:24 22 2664:4,15,18 2665:1,7, extremes [2] 2425:3 2475: fat [1] 2551:23 few [14] 2415:12 2429:9 floor [3] 2370:7,23 2653:22 19 2666:20 11 faulted [1] 2423:2 2463:25 2464:3 2479:21 flow [1] 2381:10 formula [1] 2667:3 F favor [1] 2649:21 2517:21 2530:24 2534:10 flying [2] 2668:25 2669:1 forth [1] 2575:3 favorable [1] 2516:1 2543:25 2560:7 2570:9 focus [13] 2392:9 2417:22 fortunately [2] 2374:24 [1] FACILITATE 2368:9 favorite [3] 2417:25 2418:2, 2572:8 2652:3 2673:2 2433:16 2436:2 2437:15 2375:1 [1] facilities 2647:16 5 fewer [1] 2513:15 2443:13 2476:10 2536:24 forward [1] 2499:13 [1] facility 2647:21 fear [1] 2506:5 field [7] 2383:14 2391:25 2618:10 2633:8,14 2638:2 found [4] 2391:17 2443:20 [2] facing 2465:10 2655:5 feasible [1] 2548:13 2626:1,3 2627:8 2640:11 2667:10 2477:8 2672:19 Heritage Reporting Corporation (202) 628-4888 Sheet 9 experimental - found Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS foundation [3] 2587:7 generated [4] 2386:9 2544: gratitude [18] 2552:10 2445:15 2547:17 2557:9 highlighted [4] 2419:5 2589:8 2609:12 15 2546:3 2633:4 2553:17 2554:6 2598:18, 2570:13,20,22 2573:24 2436:19 2605:9,17 four [2] 2449:20,23 generates [2] 2650:16 25 2599:4,6,9,15,19,21 2574:7 2575:22 2576:21 highlighting [1] 2387:24 fourth [3] 2552:17 2553:15 2665:23 2600:1,3,6,11,12,25 2601: 2577:2 2626:21 2645:11 highly [4] 2416:20 2507:7 2557:17 genre [2] 2417:20 2474:17 3 2658:22 2664:22 2547:13 2566:9 fragile [1] 2394:12 genres [1] 2474:20 gray [1] 2422:4 happy [8] 2445:8 2472:9 Hildreth [1] 2373:7 frame [1] 2514:23 George [9] 2377:23 2381: Great [9] 2393:19 2395:10 2479:23 2505:11 2519:22 hip-hop [1] 2417:19 Francisco [2] 2370:14 19 2382:22 2392:14 2422: 2440:16 2475:18 2536:19 2551:23 2554:14 2581:10 hired [1] 2536:25 2372:16 3 2528:13 2609:20 2613:4 2539:22 2559:21 2642:5 hard [1] 2516:2 historical [1] 2585:15 free [19] 2376:5 2383:11 2684:9 2671:14 harkens [1] 2444:18 hit [9] 2538:3 2551:4 2552: 2416:14 2421:9,14,16,21 gets [4] 2480:16 2548:16, greatly [1] 2670:22 Haro [1] 2370:13 14 2554:2 2556:22 2560:7 2422:8 2425:25 2430:1,15, 17 2562:4 green [2] 2463:3 2654:12 head [4] 2395:8 2451:3 2562:21,22 2636:11 23 2439:11,16 2442:22 getting [6] 2440:19 2445: grew [1] 2630:24 2453:3 2551:4 hits [4] 2612:14,16,24 2636: 2458:24 2513:16 2567:21 23,23 2548:12 2583:13 gross [2] 2427:10 2544:6 header [1] 2382:25 9 2652:20 2652:2 ground [1] 2380:8 heading [2] 2382:24 2420: hoc [1] 2453:12 free-form [1] 2397:11 gigabyte [3] 2504:24 2513: Group [17] 2369:7,8 2393: 12 hold [12] 2386:17 2387:3 free-month [1] 2442:22 1,2 24 2399:20 2423:14,17,24, headline [1] 2420:13 2415:5 2438:4,4 2452:3 frequently [5] 2570:12 give [19] 2379:10 2396:19 25 2424:11,12,20,20,22 Heald [1] 2373:7 2458:15,15 2521:6 2529: 2574:6 2575:21 2576:20 2430:3 2431:10 2441:3 2671:10,10 2672:3,4 health [4] 2427:15 2430:4 10 2531:2 2625:12 2577:2 2451:2 2475:20 2542:2 groupings [1] 2631:9 2435:25 2437:17 holders [2] 2480:1,2 front [3] 2530:5 2587:10 2548:2 2556:3 2560:8 groups [2] 2423:4 2514:4 hear [16] 2389:16 2391:19 holding [2] 2389:19 2659: 2609:9 2564:6 2586:11 2600:10 growth [7] 2387:14 2432: 2423:14 2470:11 2513:20 25 full [1] 2609:19 2611:5,21 2631:5 2653:7 24 2434:17 2435:4 2436: 2558:15 2562:10 2574:2, home [3] 2374:12,15 2478: full-time [1] 2625:18 2656:14 14 2437:2,11 15 2647:3,3 2650:12 2651: 16 fully [2] 2431:4 2542:24 given [21] 2376:20 2396:1 growths [1] 2436:9 6 2652:25 2672:5,25 honest [1] 2456:9 functionality [2] 2546:11 2415:17 2423:9 2425:5 guess [11] 2417:15 2418:4 heard [12] 2376:4 2415:22 honestly [2] 2389:13 2453: 2585:21 2441:6 2451:19 2473:5 2419:3 2445:15 2557:4 2416:18 2419:18 2423:4, 9 funding [7] 2518:9,15,16 2500:25 2509:23 2565:1 2566:11 2630:24 2648:20 10,19 2429:8 2631:15 Honeywell [1] 2669:2 2519:9,15,18 2520:1 2567:20 2575:5,10 2606:7 2659:11 2660:20 2662:6 2632:9 2652:24 2671:21 Honor [86] 2374:10,21 funnel [2] 2457:13 2479:9 2610:9 2638:24 2654:22 guidance [1] 2558:12 HEARING [18] 2368:22 2375:12 2379:15 2380:22, funneled [1] 2445:1 2659:20,23 2661:1 guidelines [1] 2473:22 2400:11 2445:17 2466:15 25 2383:19 2388:25 2389: funneling [3] 2443:13 gives [6] 2384:19 2397:3 Guild [1] 2369:5 2480:25 2521:19,21 2529: 5 2400:4,12 2416:1 2420: 2457:8 2458:2 2431:7 2555:3 2651:22 gut [1] 2639:17 5,12 2561:11 2572:24 21,21 2445:2,18,19 2446:1 further [5] 2375:16 2391: 2665:24 guy [1] 2551:8 2573:6,13,21,24 2590:6 2449:2 2466:6,16 2470:4, 18 2569:14 2623:3,3 giving [5] 2440:1 2459:2 guys [5] 2536:25 2556:20 2619:3 2673:8 13 2481:1 2497:5 2501:16, futile [1] 2444:24 2471:1 2603:1 2631:9 2567:11 2624:8 2660:10 hearings [1] 2511:23 19 2502:2,13 2503:3,7,14 future [3] 2395:2 2435:3 glad [1] 2381:9 H hears [10] 2431:20 2570:14, 2504:11 2505:8,11,16 2567:19 globally [1] 2547:8 25 2571:9,21 2575:9 2576: 2506:2,9,20 2507:23 2508: [1] Google [5] 2370:2 2378:14 habits 2395:12 6,13,21 2577:3 19 2509:11 2510:12,25 G [3] 2450:13 2464:12 2479:21 half 2499:17 2544:7,8 Held [2] 2520:16 2615:11 2511:5 2512:3,4 2520:18, [4] [7] gain 2555:13 2650:8,19 gosh [1] 2460:25 hand 2528:11 2544:20 help [3] 2379:23 2574:16 20 2521:9,22 2528:6,18 2663:7 got [17] 2381:14 2418:19 2563:15,17 2624:20 2654: 2617:8 2529:3,16 2558:12,21 [3] gains 2645:5,9 2651:15 2425:2 2443:3 2461:25 10 2671:18 helpful [2] 2426:22 2445:8 2559:12,17 2561:12 2569: [1] [2] game 2655:9 2473:24 2501:2 2513:9 handle 2638:20 2654: hesitate [2] 2426:8 2453:9 13,21 2586:19,24 2587:6, [25] GASS 2372:4 2569:16, 2546:2 2547:11,13 2552: 23 hesitating [1] 2479:20 13 2589:13,24 2590:7,11 [1] 17,21,23,25 2574:20 2575: 17 2562:17 2605:11 2644: handled 2661:21 hesitation [1] 2387:6 2598:3,6 2604:4 2607:16 [1] 7,25 2576:3,4,5 2586:23, 13 2655:11 2664:24 handling 2655:9 Hi [1] 2570:2 2608:15 2610:4,9 2611:25 [7] 24 2587:13,17,25 2588:12, Gotshal [2] 2371:10 2569: HANDZO 2369:10 2628: high [3] 2537:2 2634:15 2612:9 2619:4 2623:14 15 2589:10,13,14,24 2590: 19 9,10 2629:4,5 2630:4,5 2664:21 2625:2 2629:5 2637:22 [1] 7 2684:11 governed [1] 2649:8 HANSON 2372:11 high-level [1] 2631:6 2670:13 2673:9 [1] [26] gather 2420:17 government [19] 2515:25 happen 2385:11 2416: high-powered [1] 2547:25 HONORABLE [3] 2368:12, [5] gave 2381:4 2397:7,14 2516:2,10,18,20,23 2517:9, 2 2520:5 2570:11,18,21 high-profile [1] 2385:15 13,14 2426:23 2441:25 11,13,16,18,19 2518:9,15, 2571:5,6,7,7,8,14,18,25 high-quality [1] 2387:18 Honors [21] 2400:21 2446: [2] gears 2463:14 2608:8 16 2519:1,3,5,6 2572:23 2573:13 2574:2,5 higher [14] 2432:20 2435: 10 2466:25 2480:15 2481: [7] general 2392:18 2437: governments [1] 2519:16 2575:16,19,20 2576:11,12, 21 2450:22 2457:24 2458: 10 2522:6 2529:1 2532:14 24 2459:2 2497:9 2503:20 graduating [1] 2615:2 17 2602:18 2651:22 12 2517:11 2518:10 2564: 2533:7 2557:24 2559:10 [4] 2556:3 2577:20 granting [1] 2653:24 happened 2387:19 10 2567:23,23 2638:24 2590:23 2604:24 2619:13 [2] generally 2626:9 2666: graph [4] 2433:17 2462:13 2417:2 2540:10 2655:5 2643:2 2649:24 2656:24 2623:21 2628:5 2629:2 [2] 18 2463:5 2563:9 happening 2392:1 highest [1] 2671:22 2630:2 2631:8 2672:22 [4] generate 2535:22 2578: grateful [3] 2601:14,25 2520:6 highlight [4] 2398:16 2420: 2673:18 [16] 19 2662:9 2670:4 2602:9 happens 2389:17 12 2422:4 2477:13 hood [1] 2662:6 Heritage Reporting Corporation (202) 628-4888 Sheet 10 foundation - hood Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS hope [4] 2374:20 2428:23 illustrate [2] 2464:8 2544: 2662:12 24 2451:16,25 2452:13 intent [1] 2613:24 2642:1 2651:10 1 including [3] 2438:19 2456:16,20 2458:3 2461:1, interactive [25] 2376:19 hopefully [2] 2374:14 imagine [4] 2419:10,12 2540:11 2547:24 23 2462:4 2474:11 2530: 2387:18 2438:19,23 2444: 2497:9 2545:15 2645:10 income [11] 2535:22 2536: 23 2534:25 2543:2 2549:1, 13 2454:23 2455:2 2462:5 host [16] 2375:4 2400:11 imbalance [5] 2659:5,8,13, 1,2,5,14,15 2544:6 2546:3 18 2550:13,22,23 2551:2,7 2463:18 2464:22 2477:18, 2428:18 2445:16 2466:14 13,18 2555:15 2557:9 2578:19 2553:25 2567:22 2568:3 22,24 2478:24 2479:4 2470:2 2480:25 2521:6,20 imbalanced [1] 2659:2 inconsistent [1] 2508:14 2606:20 2608:7 2615:7,9 2535:4 2564:10 2565:25 2558:8 2561:10 2569:18 immediate [1] 2520:2 incorporated [2] 2542:24 2617:8 2580:2,8 2633:25 2648:23, 2590:4 2619:2 2623:11 immediately [2] 2520:6 2543:10 influence [6] 2435:23 24 2658:2,7 2673:7 2627:19 incorporating [1] 2605:2 2634:25 2650:11,15 2651: interactivity [3] 2478:4 hour [1] 2666:24 impact [4] 2389:1,9 2459:7 increase [5] 2434:19 2435: 4,6 2479:6 2634:10 hours [13] 2453:4 2475:22 2667:21 1,8 2457:12 2550:21 influenced [1] 2586:8 interest [1] 2417:10 2476:12 2536:8 2555:4 impacted [2] 2388:13 increased [5] 2429:16 influences [1] 2392:25 interested [2] 2562:14 2664:17,22,25 2665:4 2459:5 2459:14 2465:10 2477:18 inform [9] 2400:19 2446:8 2583:15 2667:10,13,19 2671:5 impasse [1] 2647:5 2479:8 2466:23 2481:8 2522:4 interesting [8] 2390:2 House [1] 2627:20 impatience [2] 2657:24 increases [2] 2536:5 2555: 2559:8 2590:21 2619:11 2540:25 2546:19 2547:1,3 household [1] 2660:13 2658:15 15 2673:16 2556:11 2567:10,18 housekeeping [2] 2374:9 impatient [3] 2656:19,20, increasingly [3] 2433:3 information [20] 2383:1 interests [1] 2432:5 2528:20 25 2464:25 2465:21 2390:12 2396:13 2399:9, intermediate [1] 2658:6 However [2] 2399:24 2424: impeach [3] 2503:17 2507: incredibly [1] 2437:5 13 2416:13 2419:8 2521: internal [1] 2392:2 25 21 2510:17 incremental [2] 2632:15 16 2558:4,6,10,18 2561:7 Internet [2] 2377:10 2514: huge [4] 2439:6 2465:14 impeaching [1] 2508:12 2654:8 2590:8 2607:18 2613:12, 18 2660:10 2662:17 impeachment [11] 2502: incrementally [9] 2570:16 15 2614:22 2618:22 2672: interpretation [2] 2397:21 Hulu [3] 2387:21 2388:3 10 2503:5,15 2504:5 2507: 2571:2,11,23 2573:1,14,25 24 2541:12 2389:10 11,13 2508:6,17,21 2509:9 2575:11 2576:8 informative [7] 2394:18,24, interpreting [1] 2599:17 human [1] 2600:8 2512:1 incur [1] 2602:15 25 2420:1 2561:20 2601:6 interrupting [1] 2381:10 hundred [2] 2633:6,13 impetus [1] 2564:7 indeed [6] 2424:24 2436: 2671:4 interruption [1] 2399:12 husband [1] 2499:22 implies [1] 2471:23 18 2438:14 2461:5 2513:3 informed [1] 2542:2 interviews [3] 2473:15 HUSENY [1] 2372:5 imply [1] 2399:2 2586:13 infringe [1] 2627:2 2555:5 2611:20 hypothetical [6] 2438:10 importance [1] 2429:10 Independence [1] 2368: inherent [3] 2443:25 2449: intransigent [1] 2445:1 2441:21 2587:21 2589:5 important [20] 2374:20 18 8 2474:17 intriguing [1] 2390:2 2635:4,8 2392:4,24 2433:3 2441:4, Independent [8] 2369:7 innovation [2] 2626:6 introduce [1] 2430:1 hypothetically [1] 2565:16 11 2452:19 2457:19 2458: 2470:25 2472:20 2516:24 2628:8 introducing [1] 2431:14 I 2 2499:15 2548:21 2557: 2517:1,12 2576:20 2577:1 input [2] 2647:21 2648:6 invest [3] 2589:17,20,21 21 2567:16 2570:5 2641: independents [1] 2637:13 inputs [7] 2428:8,12 2626: investment [1] 2549:11 [10] idea 2443:12 2458:2 22 2648:25 2649:10 2653: indeterminate [1] 2656:6 22 2632:11 2647:16,25 invoke [1] 2582:5 2515:18 2545:18 2576:18 4 2664:7 2667:18 Index [1] 2373:11 2662:11 invoking [4] 2580:1,7,15 2607:20 2611:3 2640:17 importantly [1] 2549:10 indicate [2] 2546:14 2615: inside [1] 2544:11 2582:8 2642:25 2644:4 impose [1] 2567:15 20 Insider [1] 2377:22 involve [3] 2480:18 2540:8 [2] identification 2628:18 impossible [2] 2384:1 indicated [5] 2614:17 inspired [2] 2576:22 2577: 2636:19 2629:19 2444:11 2632:25 2650:6 2661:18 4 involved [5] 2516:1 2531: [10] identified 2391:11 improve [2] 2431:11 2555: 2671:8 instance [3] 2385:18,18 21 2533:18 2537:21 2641: 2398:4 2399:20 2497:24 10 indicating [1] 2654:12 2391:6 5 2501:24 2502:8,24 2506:3 improved [1] 2431:13 indicators [1] 2585:2 instances [3] 2390:20 involving [1] 2582:9 2508:1 2579:22 improvements [2] 2429: Indie [3] 2419:11,14 2670: 2427:24 2570:4 irrationally [1] 2586:17 [1] identifies 2398:18 11,25 17 Instead [10] 2391:9 2416: irrelevant [9] 2587:2,5 [6] identify 2396:4,14 2398: in-box [3] 2504:24 2513:1, indifferent [1] 2419:12 22 2417:22 2427:14 2459: 2588:7,18 2609:3,7,23 22 2497:10,22 2639:8 2 indirect [1] 2536:3 2 2471:4 2476:23 2497:24 2610:20 2611:2 [1] identifying 2426:1 Inc [2] 2370:2 2371:2 individual [12] 2428:8,12 2513:1 2660:5 isn't [15] 2389:9 2424:12,22 [25] iHeart 2432:19 2433:3, incentive [1] 2444:23 2519:3 2541:4 2546:21 institute [1] 2383:24 2434:16 2451:22 2455:20 20 2435:19,20,25 2436:11, incentives [2] 2444:19 2550:19 2555:9 2564:23 instruct [3] 2379:8,13 2516:6,16 2519:19 2566:1 13,16 2450:17 2451:14,24 2458:23 2566:16 2568:2 2635:5 2384:5 2579:18 2588:22 2589:19 2452:9,11 2455:17,21,25 incentivize [1] 2443:23 2637:5 instructions [2] 2672:16, 2638:15 2660:19 2456:4,12,17,24 2457:1,4 include [10] 2433:18 2441: individualized [3] 2430:8, 19 issue [26] 2377:14 2378:6, 2558:18 2564:3 10,15 2442:4 2464:11,13 24 2457:17 insulate [1] 2520:1 21 2380:15,19 2384:18 [11] iHeart's 2432:25 2434: 2540:7 2617:20,22 2630: individuals [1] 2607:18 intellectual [4] 2530:22 2385:4 2394:5 2396:12 1,6 2435:3,10,23 2436:5 24 Industrial [7] 2532:9,9,15 2585:6 2626:5 2628:8 2508:16,24,24 2510:13,20 2437:10,20 2456:14 2657: included [4] 2392:23 2535: 2599:12 2606:11 2626:3 intended [1] 2545:5 2540:14 2552:24 2557:4 5 1 2598:17 2653:13 2628:6 intensity [3] 2423:1,20 2566:1 2580:3,16,22 2640: [2] III 2528:24,24 includes [7] 2425:13 2434: industries [1] 2532:11 2476:15 25 2657:17 2658:17,19 [1] ill 2374:14 5,8,11 2480:17 2506:14 industry [30] 2429:22 2437: intensive [1] 2475:8 2659:6 Heritage Reporting Corporation (202) 628-4888 Sheet 11 hope - issue Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS issues [5] 2374:15 2381:12 2608:17 2609:14 2610:14 24 2578:20 2611:20 2615: latest [1] 2548:6 levels [8] 2452:23 2453:7, 2530:22 2553:14 2624:2 2612:8,10 2617:14 2618:1 11,13 2632:13 2638:5 Latham [1] 2372:13 12 2454:20,24 2455:21 it'll [1] 2656:1 2619:1 2622:4 2623:5,11, 2640:2 2643:5 2647:5 latter [1] 2376:17 2456:15 2639:6 items [2] 2605:9,16 16,20,23 2624:3,10,14,17, 2652:1,6,11,23 2658:21,23 laugh [1] 2428:6 leverage [3] 2651:15,23 itself [2] 2517:13 2639:25 19,25 2626:14 2628:9,11 2659:1,3 2661:8 2666:19 LAUREN [1] 2372:12 2652:10 IV [11] 2457:12 2477:22 2629:4,8 2630:4,7 2636:21, 2667:7 2668:10 2669:18, law [7] 2385:12 2531:14 levied [1] 2631:20 2563:19 2633:21 2637:7, 24,25 2638:12,25 2639:12 19,22 2671:5,23 2672:4,6, 2588:18,20 2641:8,22 libraries [2] 2383:8 2384: 11,22 2638:13 2642:19 2640:5 2641:17 2642:13 13 2642:9 12 2647:13 2652:16 2644:20 2647:10 2648:10 label's [3] 2566:18 2639:23 lawful [1] 2459:14 Library [9] 2368:2,16 2392: IVANA [1] 2372:7 2652:3 2655:24 2656:10 2671:9 laws [1] 2640:16 4,24 2397:15,22 2398:2,18, IX [1] 2368:23 2657:16 2659:8,20 2660: labels [41] 2415:19 2419: lawyer [1] 2437:7 19 J 22 2661:13 2669:24 2670: 11,14 2422:14,18,23 2440: lay [1] 2601:20 License [58] 2373:3 2376: 2,25 2673:1 9,25 2537:14 2546:21,23 laypersons [2] 2606:19,21 21 2377:13 2378:7,21 [1] Jagjaguwar 2369:9 JUDGES [23] 2368:1 2429: 2547:7 2549:11,22 2550:3, lead [6] 2439:10,15 2440:4 2384:19,24 2385:5,8,11 [1] JASON 2370:16 15,23 2444:5 2452:10,19 20 2553:22,23 2554:12 2456:23 2538:3 2566:25 2440:8,25 2442:11,16,20 [2] Jenner 2369:19 2533: 2458:22 2509:4 2511:16 2557:10 2564:3,21,23 leads [2] 2551:10 2643:16 2443:2,7,15,25 2444:1,9, 21 2530:11 2533:14 2542:16 2570:6 2580:1,7 2586:14 lean-back [2] 2376:23 11 2449:9,10 2451:1 2472: [2] JEREMY 2371:5,6 2543:14 2555:1 2556:3 2589:17 2590:9 2598:25 2385:8 20 2480:3 2550:4 2557:8, [1] JESSE 2368:12 2588:21 2589:6 2630:9 2617:9 2636:9 2638:8,11 learn [1] 2415:13 11 2563:16 2577:22,24 [2] JESSICA 2371:7 2598: 2634:22 2642:18 2652:24 2643:11 2645:21,23 2652: learned [1] 2416:3 2578:3 2580:2,7,16,22,23 10 2653:7 2671:21 14 2657:11 2669:11 2670: learning [7] 2429:25 2430: 2582:5,20 2585:6,16 2622: [2] job 2615:11 2666:21 Justice [1] 2627:14 5 19 2431:11 2432:11,14,16 24 2635:1,6 2636:12 2648: [4] John 2459:17 2462:3 justifiable [1] 2656:15 labels' [4] 2437:21 2442:5 2463:20 18 2653:24 2654:9 2663:8, 2655:6,14 justifies [2] 2457:23 2458: 2443:10,17 least [9] 2477:3,4 2512:23 20,21 2664:2 2667:7 2668: [1] join 2625:15 12 lack [5] 2387:24 2393:21 2537:18 2555:23 2574:9 6,10,15 [1] JOSEPH 2372:3 2395:14 2616:14 2638:4 2601:15 2647:1 2657:2 licensees [2] 2470:22 [3] K journals 2531:14,14 lacking [2] 2639:22 2664: leave [22] 2400:16,16 2445: 2497:13 [2] 2626:12 Karen 2368:25 2686:9 13 24 2446:5,5 2466:20,20 licenses [5] 2566:7 2586:2, [1] [2] JOVAIS 2372:8 KARYN 2373:4 2470:18 lag [1] 2375:23 2481:5,5 2522:1,1 2558:24 3 2589:1 2651:8 [194] [3] JUDGE 2374:6,19,22 keep 2423:2 2520:13 language [2] 2440:17 2559:5,5,13 2590:10,18,18 licensing [11] 2632:12,16 2375:3,7,10 2379:5,12 2551:17 2633:6 2619:8,8 2673:13,13 2636:19 2645:15 2646:1 [1] 2380:5,8,18,23 2381:2,6 KENNETH 2370:11 large [12] 2437:5 2500:12, leaves [1] 2665:21 2648:14,24 2649:4 2663:3, [3] 2384:4 2386:17 2387:1,3 key 2383:14 2396:11 19,25,25 2501:2,7 2505:18, leaving [1] 2395:1 12,17 2388:9 2389:7,20 2400:6,9 2632:11 22 2513:23 2617:4 2658:7 left [12] 2394:15,21,22,25 licensors [2] 2585:10 [1] 2415:5,7 2416:8 2420:6,10, killer 2659:1 largely [4] 2609:2,7,23 2397:7,13 2536:25 2548: 2586:1 [18] 24 2421:3 2425:9 2428:17, kind 2424:4,15 2454: 2610:19 16 2654:10 2664:14,25 LIDA [1] 2370:21 25 2438:4 2444:14,17 16 2508:2 2511:20 2541: larger [10] 2464:6,9 2500:3 2666:15 lied [1] 2508:14 2445:6,7,9,11,13,16,22 17 2545:14 2546:19 2548: 2503:21 2507:17 2513:17 left-hand [2] 2398:17 2653: lies [1] 2633:10 2449:4,22 2450:5 2452:3, 8 2549:20 2560:15 2563:8 2514:4 2550:8,10 2658:7 21 life-saving [2] 2426:25 15 2458:15 2460:3,18 2564:14 2616:9 2639:4 largest [4] 2645:17 2646:5, Legal [7] 2530:18 2531:23 2427:6 2466:10 2470:2,6,12 2472: 2644:13 2663:14 2667:25 14 2666:25 2548:11 2589:5 2604:17 lifetime [1] 2428:9 [5] 17 2473:7 2476:1 2480:23 King 2370:5,12,17,22 LARSON [40] 2371:4 2375: 2607:1,3 likely [21] 2385:3,4 2421:24 2497:2 2501:18 2502:4,20 2450:12 10,12,19 2379:2,5,12,15, legible [1] 2502:8 2541:9 2570:16 2571:2,11, [2] 2503:4,18 2504:9 2505:14 knowing 2424:11,20 17 2381:10,11,16 2383:19 legislature [1] 2543:6 23 2573:1,15,25 2574:14 [10] 2506:10 2507:8,12 2508:4, knowledge 2456:19 2384:8 2386:20 2387:10 length [1] 2632:10 2575:11 2576:8 2589:8 20 2509:2,6 2510:24 2511: 2478:18 2533:5 2585:3 2388:25 2389:15,21 2390: Leonard [2] 2534:18,18 2614:3,15,19,23 2615:21 8,17,18 2520:10,15,19 2616:4,8,9,13,14,15 4 2399:17 2400:4,8 2415:2, less [15] 2385:4 2391:22 2616:5 [1] 2521:5,10,15,18 2528:4,7, known 2647:15 5,9,10 2416:1,11 2420:2,8, 2396:13 2436:11 2442:24 limit [1] 2425:1 [1] 9,10,16 2529:2,9 2532:17, knows 2669:4 11,21 2421:4 2428:17 2456:10 2519:13 2541:9 limitation [3] 2397:20 [1] 19 2533:12 2539:6,7,8,10 Kristina 2425:16 2464:2 2520:17,18,23 2566:4 2574:13 2577:12 2443:24 2449:8 [1] 2540:16 2541:21 2542:4,7 KRISTINE 2372:11 2684:4 2649:21,23 2656:25 2664: limitations [3] 2397:15 2548:23 2549:7 2550:14, L Larson's [1] 2379:8 20 2398:2,19 17 2551:12,17 2552:1,3 last [19] 2374:14 2383:20 letter [3] 2554:1 2602:16 limited [6] 2398:18 2417: label [67] 2376:2,5 2385:9 2558:8,16 2559:1,13,19 2425:14 2436:17 2477:3,4 2603:3 21 2474:23 2518:16 2566: 2390:7 2391:20,21 2394: 2561:4,10,14 2563:18 2531:12 2578:12 2581:19 [4] 2553:20 2554:18 22 2585:20 10 2415:13,17 2416:3,24 letters 2564:15 2565:9 2568:4,7, 2583:4 2584:7 2617:1,15, 2602:2,19 [7] 2389:13 2502:15 2417:24 2418:2,10,11,21, line 11 2569:15,18 2574:23 17 2628:23 2629:24 2652: [18] 2427:17 2517:11 2505:10 2584:7 2610:5 22 2419:2,6,17 2423:11,15, level 2576:2 2586:23 2587:16, 18 2671:16 2672:2 2531:3 2537:3,7 2543:16 2626:21 2653:16 19 2426:5 2438:1 2535:9, 18 2588:14 2589:10 2590: [1] 2396:9 2551:2 2554:21 2609:2,6, [10] 2528:25 22 2537:11,12 2543:20,21 latent line-by-line 3,13 2598:4 2603:11 2604: [6] 2380:13 2646:5,20 13,23 2610:19 2611:2,22 2529:10,11 2533:8,11,13 2544:17 2547:2,11 2549: later 6,11,23 2605:5 2607:7 2656:3,7 2667:18 2643:19 2661:24 2671:23 2629:6,9 2630:6,8 14 2550:19 2552:11 2563: Heritage Reporting Corporation (202) 628-4888 Sheet 12 issues - line-by-line Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS line-ups [1] 2504:2 2433:21 2435:10,23 2438: LSEs [1] 2426:5 11 2466:2 2471:10 2477: means [20] 2394:21 2395: lines [2] 2397:14 2399:19 12 2450:21 2451:18 2452: LUCAS [1] 2371:8 11 2538:16 2542:24 2544: 23 2397:10 2423:8 2458: link [2] 2381:7 2517:10 19 2462:9 2463:25 2464:3 lunch [1] 2517:23 25 2545:16,17 2546:21 18 2480:6 2501:2 2511:6 linked [2] 2519:5 2655:4 2498:1 2499:5 2501:4 M 2547:24 2548:24 2550:9 2538:16,17,20 2544:15,21 list [8] 2416:23 2461:10 2506:12 2509:13,15 2513: 2579:7,8 2588:2,25 2589:3 2582:14 2599:10 2601:5 [7] 2471:20 2499:1 2506:23 8,10,25 2517:20 2519:24 machine 2429:25 2430: 2635:20 2636:2,12,16,18 2635:18 2650:17 2652:8 2507:2,9 2627:11 2521:13 2534:2 2553:13 18 2431:11 2432:11,14,16 2637:15 2638:14,22 2639: 2655:15 listen [10] 2391:21 2399:21, 2555:14 2572:2 2610:11 2463:19 1,6,11,15 2640:9,19 2641: meant [4] 2392:13 2427:3 [1] 24 2477:6 2478:7 2536:9 2617:10 2642:10 2649:15 machine-learning 14,20 2642:16,23 2643:1,1, 2519:12 2639:5 2566:23 2571:4 2575:12 2655:11,15 2659:12 2660: 2429:11 7 2645:15,24 2646:1 2648: measure [16] 2424:5,23 [16] 2576:10 8 2668:2 made 2436:11 2477:9 23,23 2649:3,4,10 2651:8 2425:1 2428:3 2457:18 listened [4] 2476:24 2477: looked [27] 2399:24 2438: 2505:12 2508:9,25 2518: marketing [3] 2389:23 2462:18,20 2646:7 2663: 3,8 2671:15 14 2451:10 2453:14,17,23 13 2539:11 2540:13 2545: 2453:19 2615:24 23 2666:3,22 2667:6,25 listener [2] 2431:20 2432:7 2454:2,4,9,12,15 2471:25 3 2549:9 2556:18 2610:12 markets [4] 2566:3 2636: 2668:7,9 2669:14 listeners [9] 2389:1 2391: 2476:20 2480:9,10 2497: 2629:7 2632:22 2634:19 19 2648:13,18 measured [5] 2427:21 17 2392:24 2398:18 2444: 16 2498:19 2499:2 2514: 2639:1 MARKS [23] 2371:3 2625:1, 2546:15 2549:21 2666:24 [1] 25,25 2457:13 2479:9 17 2534:17,24,25 2535:3,4 Madison 2368:17 2,4 2628:5,13 2629:2,13 2667:22 [1] 2667:22 2648:12,21 2657:1 Magazine 2377:2 2630:2,12 2639:14 2642: measurement [1] 2474:20 [3] listening [40] 2388:14 looking [24] 2397:13 2399: main 2534:10,11 2631:9 14 2644:21 2645:13 2647: measuring [3] 2541:1 [3] 2391:13 2395:12 2423:23, 18 2424:9,9,18 2427:14,23 mainly 2465:3 2475:13 11 2648:11 2655:24 2661: 2667:19 2671:4 25 2424:10,19 2535:23 2428:1 2435:9 2454:17 2541:2 14 2669:25 2670:1 2671:1 media [31] 2376:6,9,13,15 [2] 2572:18,20 2574:19,25 2478:17 2504:24 2509:1 maintain 2565:7 2641:4 2672:22 2684:14 2389:25,25 2390:13,23 [29] 2575:1 2585:17 2650:15 2558:22,23 2636:18,18 major 2376:5 2415:13, Marks' [1] 2640:7 2391:4 2392:12 2419:4 2651:4 2663:8,22 2664:5, 2637:1 2649:7 2656:22 17 2417:23 2418:10,21 masking [1] 2396:9 2432:19 2433:3,20 2434: 15,17,18,22,25 2665:1,3,4, 2657:7,10,12 2661:20 2422:13,18 2636:8,10 massive [1] 2387:14 17 2436:13 2450:18 2451: 7,9,16,17,19,20 2666:20, looks [1] 2444:8 2637:14,18,25 2645:21 mater [1] 2531:5 15,24 2452:9,11 2455:17, 24 2667:10,13,19 2668:18 loosely [1] 2647:4 2647:5 2650:18 2652:19 material [4] 2554:11 2587: 22,25 2456:4,12,17,24 2671:5 LOREAL [1] 2369:16 2657:20 2662:18 2669:11, 12 2612:3,4 2457:1,4 2514:12 literally [2] 2460:16 2626: lose [9] 2376:5 2417:25 11,18,22 2670:5,8,9,16 mathematics [1] 2544:14 median [1] 2560:15 25 2418:2 2564:21 2667:7,14 2671:9 2672:3 MATTER [16] 2368:4 2385: meeting [9] 2400:14 2446: [6] literature [9] 2390:21 2391: 2668:9 2670:9 2671:5 majors 2444:22 2637:9 12 2389:11 2459:18 2528: 3 2466:18 2481:3 2521:24 4,10 2392:11 2425:8 2426: loses [2] 2658:24,25 2638:23 2657:2 2659:12, 21 2537:3 2555:23 2558: 2559:3 2590:16 2619:6 13 2462:22 2647:15 2656: losing [8] 2389:1,9 2394: 24 20 2563:4 2577:20 2588: 2673:11 [1] 17 19 2416:18,22 2417:23 managed 2615:18 18 2622:22 2630:16 2639: meetings [1] 2535:9 [1] litigation [1] 2627:24 2550:22 2666:24 management 2473:21 3,4 2650:21 member [2] 2627:17,21 [1] little [20] 2429:5 2452:4 loss [26] 2388:12 2389:11 managers 2598:25 MATTERN [3] 2370:3 2623: members [1] 2513:15 [2] 2507:5,5 2509:20 2546:19 2390:7 2391:20,21 2394: mandate 2565:5 2567: 18,20 mention [7] 2374:11 2380: 2554:25 2558:12 2604:7 10 2419:17 2566:8 2658:5 16 Mattern's [1] 2623:7 1,17 2382:15 2417:16 [1] 2609:16 2614:21 2615:1 2664:9 2666:4,19,24 2667: Manges 2371:10 matters [8] 2374:9 2445:23 2510:5 2582:16 [2] 2617:2 2644:2 2649:13 18,19,22,25 2669:10,14,18 manner 2511:11,13 2456:21 2531:22 2555:19 mentioned [12] 2382:3,8, [32] 2657:8,10 2660:11 2663: 2670:4,9,14,15,16,22 many 2388:18 2390:24 2577:9 2589:9 2627:24 16 2456:8,23 2465:17 15 2664:21 lost [8] 2385:9 2386:6,12 2391:7,11,12 2395:5,10 MBA [1] 2531:3 2477:6 2531:10 2539:23 live [7] 2415:6 2449:3 2559: 2418:9,19,20 2664:4,12 2416:17 2419:15,16,16,18 mean [54] 2379:21 2381:1 2545:18 2556:12 2635:14 18 2561:13 2598:3 2622:3 lot [15] 2426:12 2478:9 2423:3,18,18 2430:9 2450: 2383:13 2390:3 2395:16 mentioning [2] 2479:6 2623:15 2537:19 2541:4 2545:13 25 2451:3 2475:21,23 2415:12,21 2417:24 2454: 2516:17 LiveXLive [1] 2381:21 2547:22 2557:1 2571:19 2476:7,24 2478:16 2531: 24,25 2455:1 2519:4 2520: mere [2] 2640:12 2641:6 LLP [7] 2369:19 2370:5,12, 2611:13 2618:12 2652:24 11 2535:1 2613:17 2628:1 4 2535:16 2537:16 2538: merely [1] 2439:3 17,22 2371:10 2372:13 2659:10 2662:20 2669:7, 2633:20 2664:14 2667:6 12 2541:11 2542:16 2546: merits [2] 2641:11,24 load [1] 2437:5 13 2668:9 2671:4 17 2547:21 2549:20 2551: Merlin [4] 2637:13,25 2638: [2] lock [2] 2445:4,8 LOVEJOY [1] 2372:9 margin 2427:10 2637: 6,21 2552:21 2553:18 18 2639:9 lock-in [1] 2418:15 loves [2] 2390:3 2419:11 24 2554:10 2555:1,17 2556: messaging [2] 2390:22 [4] locked [1] 2559:12 low [2] 2458:4 2547:23 marginal 2638:10,13 18 2562:19 2567:5 2571: 2530:2 long [8] 2400:7 2443:22 lower [22] 2457:24 2458:12 2639:8 2654:7 19 2572:2 2575:4 2579:5 metric [3] 2427:8,11,13 [1] 2520:13 2531:7 2566:11 2544:17 2549:4,4 2565:24 marginally 2586:17 2580:10 2586:19 2589:23 metrics [1] 2453:6 [1] 2604:22 2617:1,15 2573:10 2578:2,9 2585:7 margins 2394:19 2611:11 2633:6 2635:16 microeconomics [1] [4] longer [4] 2561:6 2669:2,5, 2586:15,17 2588:3 2635: marked 2502:5 2506:4 2638:22 2639:20,22 2640: 2532:11 21 24 2638:10 2641:25 2643: 2628:18 2629:19 13 2644:6,9 2647:25 2649: Microsoft [6] 2499:25 [2] longer-term [1] 2667:20 18 2649:23 2650:7 2654:2, MARKED/RECEIVED 17,19 2650:17 2652:8 2500:1 2501:7,22 2503:21 look [45] 2377:15,20 2383: 11,17 2684:22 2685:1 2654:18 2662:25 2507:16 [53] 5 2392:21 2396:7,24 2397: loyal [1] 2395:11 market 2439:11,16 meaning [1] 2427:19 Microsoft's [2] 2500:8 2 2398:3 2421:5 2424:2 loyalty [1] 2394:12 2440:8,25 2463:18 2465: meaningfully [1] 2668:22 2512:8 Heritage Reporting Corporation (202) 628-4888 Sheet 13 line-ups - Microsoft's Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS mid-size [1] 2505:19 modify [1] 2572:17 19,20,24,25 2512:2,4,5 2636:4 2637:5,18 2638:8, 2654:24 2668:6 mid-sized [1] 2500:10 module [1] 2631:14 2520:10 2529:2,3 2532:17, 11,24 2639:19,21 2642:17 needed [2] 2420:25 2563:1 middle [3] 2653:19 2654: moment [7] 2379:22 2499: 18 2533:10 2598:5,6,8 2643:5,24,24 2644:4,7,8,8, needs [3] 2380:11 2539:2 14,17 25 2529:21 2561:4 2565: 2603:12 2604:13,23,24 12,13 2645:22 2646:19,22, 2656:19 might [29] 2388:18 2426:23, 10 2572:16 2637:3 2605:7 2607:13 2608:14, 24 2647:4,9,14,19 2648:8 needy [5] 2603:20 2605:4, 25 2427:24 2428:6 2439: monetization [9] 2452:23 19 2609:14,15,21 2610:9, 2652:1,5,11,14,20 2657:20 25 2606:14 2608:1 10,15,22 2440:4 2442:21 2453:7,12,21 2454:20,23 16 2612:1,9,11 2618:3,20 2658:21 2659:3,6,11,19,23 negative [5] 2375:1 2427: 2443:10 2451:20 2531:7 2455:21 2456:14 2458:3 2622:5,6,7 2623:3,5 2684: 2661:1,8 2662:19 2670:8, 10 2428:13 2544:21 2563: 2541:17 2547:4 2548:8 monetizing [2] 2453:15 7,12 16 11 2568:13,18 2570:8 2574:5 2457:20 much [22] 2381:8,15 2470: must-haves [3] 2422:23 negatively [1] 2416:4 2589:2,6 2641:10,18 2643: money [15] 2427:2 2518:24, 13 2537:17 2545:1 2551: 2637:10 2659:24 negotiate [4] 2444:7 2517: 18 2656:25 2658:5 2668: 25 2543:22 2549:10 2550: 24 2553:25 2562:12 2584: muted [1] 2470:10 14 2543:20 2654:3 16 2669:6 19 2551:5,24 2564:8 2566: 23 2624:1 2632:9 2640:24 mutual [2] 2644:13,18 negotiated [10] 2518:21 migrate [1] 2458:24 8,25 2663:21 2665:2,16,22 2647:22 2658:22 2659:25 mutually [2] 2551:13 2566: 2538:17 2544:25 2577:24 Mike [1] 2558:22 monopolist [2] 2640:14 2663:21 2664:8 2665:2,21, 2 2578:3 2579:2,6,12 2634: mimics [1] 2579:12 2641:10 22 2668:17,25 myself [1] 2657:15 24 2654:17 mind [10] 2445:20 2532:22 monopolists [1] 2643:20 multiple [12] 2421:6,9,10, N negotiating [6] 2441:5 2535:16 2551:21 2558:11 monopolized [1] 2641:2 11 2558:6 2632:21 2642: 2516:8 2519:6 2546:21 [2] 2563:2 2568:23 2572:15 monopoly [26] 2635:20 16 2643:6,20 2654:25 N.W 2369:20 2370:6 2653:18 2655:1 [8] 2583:10 2584:12 2639:16 2640:8,13,18,21, 2655:1,11 NAB 2433:13 2558:19 negotiation [21] 2438:11 mine [1] 2638:3 22 2641:4,6,12,13,18,23 Multiplied [1] 2665:22 2580:21 2582:8 2584:24 2441:9,22 2442:3 2471:9 minimum [2] 2498:17,20 2642:5,8 2643:2,8,16,19 multiply [2] 2665:15 2666: 2587:1 2588:17 2589:15 2472:15 2474:2,7 2536:4 [3] miniscule [1] 2436:8 2644:23 2645:5,14,25 22 NAB's 2587:4 2588:1,8 2537:12 2543:11 2544:16 [1] minor [1] 2662:13 2646:17 2660:8,21 municipality [1] 2660:9 nail 2551:4 2546:20 2547:2 2579:8 [8] minus [1] 2546:1 Montgomery [1] 2372:14 Music [114] 2369:7,7,8,8 name 2425:14 2450:11 2587:9 2635:4,8,14 2653: minute [4] 2374:3 2415:12 month [7] 2442:23 2500:9, 2373:3 2376:10 2377:17 2497:11 2510:9 2534:12 20 2654:22 2452:22 2519:12 12 2510:2 2571:20 2572:1 2378:10 2383:2 2386:22 2569:24 2598:9 2625:9 negotiations [8] 2516:2 [2] minutes [11] 2374:3 2400: 2660:13 2387:13 2388:4 2389:17 names 2510:6 2513:5 2542:24 2579:7 2586:22 [1] 8,10 2445:10 2466:9,11 months [3] 2572:1 2667:20 2392:4 2416:17,22 2417:7, narratively 2646:10 2654:14,25 2655:3 2658: [2] 2480:22,24 2590:2 2652:3 2672:2 13,15,21,25 2419:6 2427:6, narrow 2507:3 2660:23 22 [1] 2673:2 morning [10] 2374:7 2375: 8 2431:20 2437:24 2438: narrowed 2534:22 neither [4] 2464:19 2499: [17] mischaracterizing [3] 7,9,20,22 2381:4 2429:4,5 19 2442:2 2457:14 2459: Nash 2542:13,17 2543: 16 2516:19 2646:19 2575:25 2588:11 2612:2 2450:11,14 13 2460:11,15,22 2461:1, 15,23 2544:4,23 2555:14 nervous [1] 2502:16 missed [1] 2393:16 most [13] 2390:7 2415:15 23,25 2462:1,15,23 2463: 2579:8 2654:20 2655:7,7,8, net [21] 2539:25 2540:5,8 missing [3] 2415:14 2419: 2417:9,10 2436:4 2479:23 16,18 2464:5,23 2465:21, 13,14,15,17,18 2561:25 2563:22,23 2564: [7] 5,6 2512:16 2531:15 2556:20 23 2474:18,21,24 2475:22 Nash-in-Nash 2539:21 9 2565:15 2578:1,7,7,8,20 Mississippi [1] 2648:2 2560:24 2601:15 2659:12 2476:4,15,21 2478:4,7 2632:23 2653:12 2655:19, 2581:16,23 2583:1,7,20 misspoke [1] 2392:13 2671:3 2530:22 2533:24 2535:21, 23 2657:19 2662:2 2584:15 2622:10,10 [7] misunderstood [1] 2478: motivation [4] 2602:3,5 23,24 2536:1,7,16 2543:2, National 2372:2 2373:2 Netflix [5] 2387:21 2388:3, 24 2603:5 2606:17 22 2544:3 2546:16,23 2429:7 2516:5 2569:25 14,18 2389:10 MIT [2] 2425:22 2625:24 motivations [2] 2586:21 2549:22 2550:9,20,25 2580:14 2582:4 neutral [1] 2651:20 [2] mix [2] 2570:5 2649:20 2602:2 2554:13 2560:4,13,24 natural 2669:17 2671: never [7] 2376:22 2378:21 mixed [2] 2476:7 2617:7 mouth [3] 2390:13,22 2391: 2562:1,9,10,11,13 2563:15, 17 2589:7 2615:7,12,15,18 [5] mixes [1] 2562:8 4 24 2564:5,5,20 2565:17 nature 2432:14 2546:12 New [14] 2369:20 2370:24, mode [4] 2453:20 2631:25 move [20] 2376:1 2382:18 2568:1 2583:21 2584:16 2555:6 2565:6 2630:14 24 2371:12,12 2429:12 [1] 2635:11 2638:1 2383:19 2390:5 2400:2 2585:5 2586:1 2602:19 nearly 2646:15 2430:1 2431:6,14 2510:14, [6] model [46] 2457:20 2542: 2420:16,22 2422:10 2432: 2615:7,9 2636:19 2639:21, necessarily 2417:3 16 2571:11,23 2647:23 11,14,17,19 2543:15,24 18 2505:11,14 2506:1 23,23 2645:21 2646:6 2439:2 2504:6 2506:22,22 newer [1] 2562:11 2545:13 2579:14 2631:14, 2510:22 2528:22,25 2533: 2648:14,24 2649:5,19,21 2555:17 newly [1] 2577:4 [4] 17,18 2632:5,11,24 2633:3 9 2557:14,25 2574:20 2651:6,18 2664:6,13 2668: necessary 2424:13,22 news [3] 2416:21,22 2417: 2636:1,4 2638:3 2649:8,9, 2589:15 19 2669:22 2671:9 2672:4, 2640:3 2646:19 8 [33] 10 2653:4,6,8,11,13 2654: moved [1] 2529:4 5 need 2374:9 2400:5 next [22] 2382:4,9 2396:16 13 2655:20,23 2657:19 moving [1] 2608:20 music-focused [1] 2475: 2420:6 2421:18 2424:25 2422:2 2438:17 2480:15 2659:5,7 2660:2 2661:16, Ms [81] 2466:13 2470:8,10, 12 2466:7 2497:10 2521:10 2543:12 2545:7 2554:24 18,22 2662:1,2,8,9,10,12, 11,13,15 2472:24 2473:10 music-intensive [3] 2475: 2529:10 2538:22 2543:8 2557:15,24 2561:1 2568: 13,18,24 2476:5 2480:15 2497:4,5,6 3,24 2476:13 2545:23 2550:7 2553:8,25 24 2569:16 2572:8 2584: modeling [1] 2662:7 2501:18,19 2502:2,6,22 musical [1] 2582:6 2554:22 2556:14 2558:1 17 2637:20 2664:3 2665:2 models [4] 2545:14 2653:2 2503:7,8,16,18,19 2504:11, Musicians [1] 2369:4 2560:3 2561:24 2563:13 2666:2,3,21 2657:23 2658:20 12 2505:11,16,23 2506:3,9, must [6] 2480:5 2546:15 2566:7 2609:19 2632:22 Nice [1] 2636:23 Modes [1] 2431:7 11 2507:8,10,15,24 2508: 2585:10 2586:4,18 2627:1 2640:20,24 2641:4,15 night [1] 2374:14 modified [2] 2572:19,23 19,21 2509:9,11,12 2510: must-have [46] 2422:14,19 2643:10 2644:14 2651:1 Nobody [4] 2538:1 2587:9 Heritage Reporting Corporation (202) 628-4888 Sheet 14 mid-size - Nobody Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2668:23 2669:4 2552:17 2610:4 2611:24 2628:10, 2520:8 2521:15 2529:9 2662:8,16 2666:6 non-commercial [36] noticed [2] 2537:23 2546: 11 2629:5,8 2630:5,7 2539:25 2543:23 2544:13 ones [8] 2399:1 2499:23 2443:4 2451:11 2470:22 13 objectionable [2] 2507:7 2545:16 2559:1 2560:5 2504:7 2588:21 2642:6 2471:5,8,13,17 2472:8,11, noting [2] 2384:11,21 2589:8 2561:10 2564:21,25 2568: 2657:7,8,12 13,21,25 2473:5,14 2474:1, notion [5] 2422:8 2511:20 objections [8] 2529:1,11 7,23 2569:18,19 2570:25 only [32] 2379:9 2383:25 6,12 2475:7 2476:8,16 2639:17 2648:6 2651:2 2533:8,13 2629:6,9 2630:6, 2572:13,14 2574:22 2576: 2387:6 2390:6 2391:19 2477:23 2478:13 2479:2, notions [1] 2651:2 9 19 2577:7 2580:13,19 2397:14 2399:19 2424:23, 14,17,22 2480:2,11 2497: notwithstanding [1] 2386: objective [1] 2618:13 2582:12,15 2583:10,16 25 2432:4,6 2436:17 2437: 13,19 2498:2,8,16 2515:19 6 obscure [1] 2417:7 2584:6 2585:4,19,22 2612: 12 2438:9 2454:2,8 2466:8 2517:3 2518:11 nowadays [1] 2570:21 observe [1] 2550:7 19 2615:12 2619:1 2623: 2498:9,23 2499:1,3 2505: non-cooperative [1] 2655: nowhere [2] 2459:11 2460: obtain [2] 2455:8 2635:24 11,16 2625:8 2632:4 2634: 21 2506:7 2512:18 2513:1 9 8 obtaining [1] 2516:1 21 2651:12 2657:10 2658: 2514:16 2515:5 2536:8 non-interactive [42] 2378: NPR [17] 2475:5,24 2476:4, obtains [1] 2641:23 16 2660:4,7 2661:6 2663:2 2559:15 2608:6 2615:2 22 2440:10 2441:2,12,16, 20,22,24 2516:1,5,9,19,24 obvious [1] 2426:13 2664:24 2667:5,8 2668:13 2660:12 23 2442:17 2443:16 2444: 2517:4,14 2518:9,10,18 obviously [4] 2451:3 2452: 2671:19 onwards [1] 2463:4 2 2449:11 2455:2 2464:20 2519:3 19 2560:9 2587:19 old-fashioned [1] 2453:10 open [11] 2379:22 2415:8 2535:5 2540:23 2541:7 NPR-affiliated [3] 2474:23 occur [1] 2539:2 Older [2] 2562:9,10 2428:22,23 2449:5 2466: 2546:4 2547:19 2548:24, 2475:2 2476:15 occurs [3] 2536:14 2546: oligopoly [7] 2642:20,23 13 2470:7 2497:3 2521:6,8 25 2549:17 2553:5 2563: NPR/SoundExchange 20 2651:14 2643:13,15,22 2649:2 2622:4 22,25 2564:4,8 2565:3,15, [1] 2515:21 Off-the-record [1] 2509:4 2659:19 opening [3] 2440:14,21 19,22 2566:5,14 2568:13, NRBNMLC [1] 2470:19 offer [24] 2459:12 2460:10, on-demand [34] 2376:18 2449:14 18 2576:22 2577:3 2585: nuances [1] 2443:20 14,21 2473:25 2474:5 2377:6,18 2378:3,16,19 operate [1] 2384:18 14 2635:9 2645:16,18 nuclear [3] 2551:14,14 2477:24 2478:13 2479:3, 2385:21 2388:7 2399:15, operated [3] 2516:20,22 2658:1 2663:12 2670:10 2564:16 14 2499:10 2502:6 2504:7 25 2429:20 2430:11,14,19 2517:8 non-public [1] 2445:14 nudges [1] 2457:19 2505:21 2510:10 2512:9 2434:6 2462:5 2463:9,21 operation [2] 2497:19 non-standard [1] 2424:15 nudging [1] 2442:21 2532:15 2572:7 2588:16 2465:11 2466:2 2571:3,12, 2498:9 Noncommercial [1] 2373: number [25] 2393:17 2398: 2604:18 2613:21 2628:6 24 2575:12 2576:9,23 operational [1] 2473:22 3 13 2415:20 2441:4 2449: 2629:2 2630:2 2577:5 2634:3,5 2646:2,5 operations [2] 2473:18,20 none [4] 2462:17 2499:2 21 2477:10 2502:7,9 2518: offered [17] 2500:9,11 2650:12,15 2665:9 opine [6] 2388:25 2389:16 2541:22 2551:11 1 2531:17,18 2533:15 2513:2 2556:4 2569:9 on-line [1] 2512:15 2586:20 2589:5 2599:25 nonlinearity [2] 2426:2,9 2556:6 2615:10 2629:11 2581:4,14,20 2582:19,24 once [5] 2536:10 2574:5,8 2600:6 nonprofit [19] 2473:19 2630:10 2633:14 2656:13 2583:5 2584:22 2587:1 2628:3 2654:25 opinion [27] 2432:19,24 2499:22 2500:1,11,16,19 2663:25 2664:21,25 2666: 2588:5,17 2617:11 2627: One [119] 2374:3 2376:13 2457:22 2458:10 2470:23 2504:14 2505:18,19,22 10,11,13,17 23 2379:22 2381:19 2382:10 2471:1,4 2508:23 2539:15 2510:6 2511:2 2512:11 numbers [13] 2433:22 offering [12] 2457:22 2458: 2387:23 2393:6 2396:8,10 2540:13 2542:2 2587:22 2513:15 2516:6,15 2517:4, 2437:17 2453:23 2456:21 10 2459:9 2470:20 2503:5 2397:24 2398:3 2417:1 2588:17 2601:16 2603:1 7 2530:20 2463:11 2529:14 2558:2 2505:7 2512:14,23 2577:8 2419:10,12 2421:12 2424: 2605:1,3,9 2606:13 2607: nonprofits [15] 2497:24 2560:8 2646:4,8,10 2657:4 2580:21 2635:6 2639:25 8 2425:21,22 2426:10,16 22 2609:5 2610:18 2615: 2499:11,14 2500:10,12,20 2670:4 offers [15] 2464:19 2500:1, 2430:3,8 2431:10,15,25 22 2616:4 2637:10 2638: 2501:1,7 2504:20 2507:17, numerous [2] 2506:21 21 2501:13 2503:13,21 2433:1 2438:9,21 2439:18, 12 2671:2 18 2509:15,24 2513:7 2601:1 2504:15,23 2505:3 2512: 18 2440:3 2443:12 2459:7 opinions [15] 2470:20 2517:12 nutshell [1] 2635:18 11,18 2513:1,14 2649:23, 2464:4,21 2465:4,22 2474: 2473:25 2474:5 2506:19 noodling [1] 2537:22 O 23 17 2475:17,18 2477:17,20 2535:14 2537:2,3 2577:7 nor [4] 2464:19 2499:16 office [6] 2374:13 2500:8, 2480:7,16 2500:19,20 2604:3,15 2606:3,15,19 [1] 2516:19 2646:18 Obama 2627:22 11,15,16 2510:6 2502:24 2504:23 2505:3 2607:9,17 [3] normal [1] 2671:11 object 2379:7 2506:2 offsetting [1] 2550:25 2506:5,23 2507:10 2509: opportunity [14] 2632:12 normally [2] 2580:10,17 2662:15 often [1] 2463:17 19,23,25 2511:19 2512:12, 2653:23 2654:1 2662:23 [1] note [18] 2387:23 2397:20 objected 2503:2 okay [101] 2375:24 2376:24 18,19,20,21,25 2513:8,9 2663:1,3,6,11,17,18 2665: [51] 2421:22 2422:7 2504:18 Objection 2379:1,6 2379:16 2380:18 2381:17 2517:2 2528:20 2532:2,3,4 25 2666:7,8,16 2529:5 2539:11 2552:11, 2383:23 2386:15,18,24 2382:22,23 2383:5 2386: 2536:8,9 2537:6 2547:2,3, opposed [1] 2656:4 11 2603:14,20 2605:21,24, 2388:22 2415:23 2438:2 21 2387:11 2389:20 2391: 10,11,12,13 2549:14 2555: opposing [1] 2569:1 25 2613:5,9 2645:18 2652: 2449:19,19 2452:2,14 18 2393:4,14,20 2395:13 2 2556:2 2558:19 2561:4 opposite [2] 2536:6 2564: 18 2458:14 2459:24 2460:16 2396:14,23 2397:2 2398:3 2563:15,20 2566:3,4,25 2 noted [3] 2384:16 2393:8 2461:12 2472:16 2473:3 2400:1,6,9 2415:20 2418:6 2568:18 2572:3 2574:9 option [2] 2396:17 2565:1 2618:9 2475:25 2501:16 2503:14 2420:10 2426:15 2428:18, 2576:15 2577:7 2578:2 order [8] 2455:14 2543:25 notes [3] 2421:6 2567:25 2505:8 2507:24 2509:10 21,25 2431:17 2432:18 2581:13,19 2583:4 2584:1 2545:20 2563:13 2589:24 2686:5 2510:12,15 2529:4 2532: 2435:9 2436:2 2438:17 2586:15 2589:16 2609:11 2637:17 2649:21 2650:7 nothing [7] 2463:5,10 18,19 2533:10,12 2575:24 2440:7,16 2445:16 2450:4 2610:5 2611:14 2613:7 ordered [1] 2511:15 2550:24 2560:1 2586:11 2586:19 2587:23 2588:10 2456:13 2464:8,14 2466: 2635:11 2637:9 2643:5 organization [7] 2500:3 2616:11 2642:2 2589:4 2603:9 2604:4,16 10 2480:23 2498:1 2501:4 2645:4,9 2648:2,7 2653:12 2501:1 2516:6,16 2532:10 notice [3] 2507:6 2538:9 2606:25 2608:11 2609:8 2507:12 2510:4 2514:7 2655:5 2656:16 2658:7,10 2626:3 2628:7 Heritage Reporting Corporation (202) 628-4888 Sheet 15 Nobody - organization Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS organizations [7] 2500:2, over [18] 2429:5 2431:7 17 2451:14,24 2452:8,11 2605:25 2626:2 2639:8,21 2500:9,12 2510:2 2633:6, 4 2513:15,17 2516:22 2464:1 2515:16 2534:17 2453:14,18,22 2454:3,4,9, 2667:7 2668:10 13 2640:15 2517:4,7 2548:16 2573:6,7,10 2627: 11,23 2455:5,25 2456:5,24 particularly [8] 2395:11 per-performance [12] original [1] 2654:21 20 2628:3 2630:19 2648:2 2457:1,3 2464:13 2520:24 2428:1 2554:2 2588:11 2632:20 2634:8 2653:20 Orszag [5] 2534:18 2632:3 2653:18,20 2658:5 2660:8 2521:16,18 2564:3 2585: 2626:22 2656:19 2657:17 2654:8 2661:17,20,22 2633:23 2634:7 2646:21 2667:22 15 2598:11 2615:16 2630: 2658:7 2665:6 2666:8,9,17,20 other [93] 2374:16 2387:25 over-the-air [1] 2431:22 14 2638:18 2639:9 2645: parties [13] 2441:5,21 per-user [4] 2432:12 2500: 2396:12 2399:1,7,8,9,13 overall [3] 2551:7 2638:22 18,19,22 2663:14,17,21,25 2502:17,19 2507:3 2543: 9,12 2510:1 2421:12 2434:11 2435:5 2639:6 2664:2,4,25 2665:20 2666: 20 2544:5 2558:7 2579:20 perceived [2] 2397:15 2438:15,18 2439:9 2442:5, overrule [1] 2605:5 12,13 2667:10 2668:18 2586:22 2590:5 2598:20 2398:19 23 2443:11,17 2453:6 Overruled [9] 2387:5 2389: 2671:23 2672:1,13,17,17, 2654:3 percent [32] 2395:15,18 2454:3,10,13,20 2455:7,9, 21 2416:10 2449:25 2458: 25 2673:8 parties' [1] 2558:13 2396:5,11,12,16,19,20 10,22 2457:5,10,17 2463:2 16 2504:9 2509:10 2608: Pandora's [13] 2383:8,11 party [4] 2544:9,18 2656:18, 2397:14,21,24 2398:1,22 2466:1 2471:12 2472:11, 17 2610:15 2384:11,13 2394:1 2426: 21 2399:19,22 2450:19 2451: 11 2497:12 2502:18,19 overstate [6] 2614:3,15,18, 17 2430:5,14,17,23 2453: pass [1] 2515:3 4,5,7,19 2514:5 2538:1 2508:16 2510:8 2512:15 23 2615:21 2616:5 15 2454:19 2652:20 passage [1] 2583:15 2549:13 2550:21,22 2645: 2516:25 2517:1 2530:9 overstated [1] 2614:11 Panel [6] 2561:22 2562:2, passed [1] 2604:22 1,20 2660:1,5 2664:18 2531:22 2535:24 2536:5 overstates [1] 2614:19 17 2563:3,5 2579:1 past [4] 2424:7 2515:16 2670:9,15 2539:18 2544:16,16,20 overstating [1] 2614:7 paper [8] 2425:13,16,18,23 2612:20 2628:3 percentage [3] 2395:13 2551:8 2558:19 2563:17 overview [3] 2631:6 2653: 2426:11 2542:21,25 2543: patent [1] 2627:3 2436:8 2664:3 2564:3,21 2567:1,3 2569:6 7 2661:25 8 patents [2] 2626:23 2627:1 perfect [1] 2659:4 2573:16 2575:4 2579:15 own [7] 2391:23 2417:25 papers [4] 2530:24 2531:1, patience [2] 2657:23,24 perform [2] 2474:16 2630: 2603:5,25 2606:1 2607:23 2430:12 2435:11 2452:20 10,11 pattern [3] 2461:22 2506:6 15 2608:4 2612:20 2613:11, 2562:9 2651:7 paragraph [48] 2377:20,21 2575:6 PERFORMANCE [5] 2368: 15 2625:19 2635:23 2637: owned [3] 2516:19 2517:8 2378:8 2382:19,25 2383:5 pay [30] 2426:18,24,25 7 2435:11,23 2543:4 2582: 9 2640:1 2641:7 2643:21 2648:3 2384:9 2387:22 2392:7,8, 2427:1,4,19,24 2432:20 6 2647:14 2648:3 2649:3 owners [1] 2585:6 14,21 2420:4,12,15 2421:5, 2435:20 2438:13 2439:2, PERFORMANCES [13] 2655:6 2656:5 2657:6,13 P 5,22 2440:20 2460:23 10,15 2441:14,18 2450:22 2368:10 2633:13 2649:20 2658:19 2662:16 2663:7, 2461:4,6,9 2462:12 2499:6, 2456:25 2471:6 2474:9 2654:8 2663:25 2664:4,12, [6] 22 2664:4,15,18 2665:1,3 p.m 2509:5 2528:3 2623: 24 2501:6 2513:11 2583: 2476:12 2518:19,24 2543: 14 2665:18 2666:11,13 2666:20 9,10 2624:12,13 11,17 2584:7 2601:11 1 2545:5 2555:12 2578:14 2667:6 2668:9 [1] others [5] 2390:12 2451:4 p.m.-1:42 2509:5 2603:13,14 2605:9,17,20 2632:17 2654:6 2660:14, performed [2] 2576:19 [41] 2566:21 2647:13 2649:25 page 2377:21,24 2381: 2607:10,17 2609:18,22 15 2577:1 otherwise [5] 2573:23 18,19 2382:4,9,20 2393:10, 2610:5,10 2613:4,7,8 2614: paying [8] 2471:21 2472:8, performs [1] 2640:21 2574:14 2578:10 2635:25 20 2395:6 2397:2,3 2398:7, 12 2615:20 12,14 2498:17,20 2543:4 perhaps [6] 2427:1 2442: 2644:15 8 2472:1 2499:6,6 2501:7, paragraphs [2] 2618:16, 2550:11 24 2506:5 2518:17 2549:8, ought [1] 2502:15 7,12,20 2503:19 2504:17 22 payments [2] 2549:22 10 ourselves [1] 2663:16 2505:22,23 2506:17 2514: parallel [1] 2644:8 2551:22 period [10] 2386:1,7,13 out [51] 2374:13 2388:20 3,3 2517:20 2518:2,5 2549: parallels [1] 2631:15 pays [2] 2566:4,4 2387:14,19 2444:23 2461: 2389:19 2391:17 2396:24 3 2584:17 2601:11 2609: parental [1] 2478:17 PDF [1] 2628:22 2,24 2515:2 2630:20 2397:18 2434:10 2436:17 18 2614:13 2628:22,23 parentheses [1] 2544:12 peak [1] 2462:25 permissible [2] 2502:1 2437:12 2449:13 2451:8 2629:24 2656:12,13 parents [1] 2478:6 peculiarities [1] 2511:19 2503:15 [3] 2455:13,18 2498:5 2502: pages 2480:9,10 2501: part [24] 2394:3 2396:22 peer-reviewed [1] 2626: permission [1] 2558:21 22 2506:17 2510:19 2511: 5 2432:24 2454:11 2459:23 12 permitted [1] 2558:9 [8] 8,18,21 2518:19 2530:1,2, paid 2457:14 2458:25 2464:6,9 2465:9,19 2497: penalties [1] 2444:19 person [9] 2540:10 2572: 6 2537:22 2540:18,20 2509:22 2546:23,24,24 14,17,20 2566:23 2570:5 pending [5] 2380:4,6 2386: 25 2573:14 2574:24 2575: 2548:12,23 2549:16 2550: 2565:25 2650:24 2600:16,19 2602:9 2604: 18 2533:8 2630:6 1 2576:13,15 2601:20 [1] 6 2551:1 2558:14 2560:13 pair 2655:5 25 2633:23 2636:7 2649: Pennsylvania [1] 2370:6 2602:16 [1] 2572:12 2575:19 2581:9 pairs 2655:6 11 2655:15 2661:2,4 penultimate [1] 2670:2 personal [9] 2501:14 2503: [110] 2602:15 2622:14,19 2639: Pandora 2371:2 2376: participants [5] 2506:24 people [41] 2387:8 2389:16, 13 2504:15 2510:11 2512: 24 2642:1 2645:6 2650:24 4 2382:5,6 2383:1,11,22 2521:19 2558:9,19 2673:8 25 2390:25 2391:12 2397: 9 2616:3,8,13,15 2658:2,3 2659:14 2662:13 2384:13 2390:7,8,15 2391: participated [2] 2532:2 7 2398:1 2399:19,23,25 personalization [4] 2429: 2664:11 2669:19 2670:10 6,7,12,19 2392:3,4,16 2615:23 2415:18,19 2416:3 2417:7, 16 2430:7 2431:2 2463:20 outcome [4] 2551:11 2645: 2393:20 2394:8,9,13,19 particular [31] 2385:20 20 2421:10 2423:21 2425: personalized [16] 2429:13 11 2654:13 2661:3 2395:4,11 2396:15 2415: 2388:19 2389:9 2393:13 3,5,18 2457:10 2464:23 2430:1,15,19 2431:4,6,14 outcomes [2] 2643:23 13,14,15,20,22 2416:17,19 2421:24 2427:8 2434:25 2478:16 2548:14,17 2550: 2432:1,4,6,12 2477:18,24 2658:9 2417:3,12,24 2418:6,9,10, 2450:21 2471:2 2509:8 4 2557:8 2558:24 2561:5 2478:13 2479:3 2585:17 outdated [1] 2453:20 20,21,25 2419:7,11,13,16 2535:8 2536:16 2538:4 2562:11 2563:15 2602:19 persons [1] 2607:10 outlets [1] 2551:24 2421:14,19,21 2422:15,19 2547:18 2551:24 2553:11 2608:7 2617:6 2660:12 pertinent [1] 2376:22 outside [4] 2388:23 2415: 2428:13 2429:24 2430:22 2554:5,22 2556:1,17 2563: 2668:17,20 2669:6,7,17,22 PETER [1] 2370:4 24 2444:8 2451:4 2431:1,7,11 2445:20 2450: 9 2568:12,14,17 2598:21 per [8] 2453:3 2454:14 Ph.D [3] 2477:7 2530:13 Heritage Reporting Corporation (202) 628-4888 Sheet 16 organizations - Ph.D Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2625:24 2480:25 2481:1,5,9 2505: 2611:4,10 presume [1] 2396:25 2577:8,10 2579:17 2580:3, phase [1] 2579:17 14 2520:16,19 2522:1,5 possible [8] 2395:24 2397: presumes [1] 2604:5 16,23 2582:10 2584:20 Phoenix [1] 2530:18 2528:5,11 2532:23 2559:4, 8 2444:6 2458:8 2540:13 pretty [11] 2436:6 2537:17 2587:1 2588:7,18 2590:22 phone [5] 2530:3,8 2625:7 10 2561:11 2564:4 2566:8, 2541:11 2610:23 2652:13 2548:21 2553:25 2557:21 2599:15 2606:23 2607:11, 2626:24,25 8 2569:19 2574:21 2576:2 potential [4] 2457:23 2458: 2560:9 2572:3,3 2633:24 19,21 2609:13 2611:7,8,18, phrase [4] 2553:18 2639:2 2583:12,18 2589:10 2590: 11 2520:7 2540:17 2658:24 2659:25 23 2618:7 2619:12 2628: 2647:13,14 18,23 2604:12 2619:3,4,8, potentially [7] 2395:1 prevalence [1] 2421:6 15 2629:16 2630:19 2647: physical [6] 2461:20,25 13 2623:12,18 2624:19 2419:13 2421:8 2441:14 PREVIN [1] 2369:15 20 2673:17 2686:6 2462:1 2570:16 2573:1,15 2625:9,22 2629:24 2630: 2442:2 2627:1 2664:15 previously [3] 2375:15 proceedings [14] 2436:23 pick [3] 2396:8,10 2663:22 13 2631:4,5 2632:4 2633: power [7] 2544:8 2547:20 2508:13 2586:9 2511:9,10,14,22 2531:23, picked [2] 2659:13 2661:9 16 2635:16 2653:7 2662: 2635:20,20 2638:24 2660: price [24] 2425:7,14,19,20 25 2532:3,6 2533:22 2539: picks [1] 2557:2 25 2663:10 2673:7,9,13,17 21 2661:8 2426:2,6,9 2504:20 2509: 14,14 2563:20 2673:6 piece [1] 2623:1 podcasts [1] 2434:8 powered [1] 2381:21 23 2510:2 2543:7 2544:17, process [6] 2458:5 2465: pile [1] 2659:17 point [43] 2392:2,23 2397: practical [1] 2565:12 23 2579:8 2586:2,3,15,15, 13 2511:23 2556:20 2557: piracy [19] 2459:6,7,14 18 2399:18 2422:24 2433: practice [3] 2554:16 2627: 17 2650:4,5,18 2651:3,13 3 2633:24 2460:1,11,15,22 2461:2,11, 5 2434:18 2435:20 2458:1 1 2664:19 prices [6] 2503:23,24 2507: produce [3] 2616:16 2636: 21,23 2462:2,18,19,20,23 2459:21 2460:20,24 2461: preaching [1] 2475:14 19 2588:2 2589:1 2651:7 9,11 2463:2,7,10 3,15 2463:22 2464:3,10 preceding [1] 2667:3 pricing [3] 2425:10 2426: produces [1] 2661:22 pitching [2] 2568:12,17 2498:15 2500:7,7 2501:24 precise [3] 2476:21 2519: 13 2453:10 product [34] 2387:19 2425: place [2] 2544:16 2635:15 2505:12 2507:1 2508:8 21 2663:5 primary [2] 2632:3 2638:2 24 2430:5,8,9,12 2431:4, plan [2] 2513:16 2673:2 2511:7,8 2531:8 2540:19 predict [1] 2654:13 Prime [2] 2377:25 2378:3 12,13 2465:14 2500:8,11, planes [3] 2669:3,5,6 2544:1 2545:9,10 2549:21 prediction [1] 2515:1 Princeton [1] 2625:20 21,25 2501:8 2503:12 platform [16] 2535:21,21 2562:19 2581:9 2601:22 predictions [2] 2435:10 principle [1] 2641:22 2504:1,14,22 2505:7,18,20 2536:2,4,15,16 2537:13 2628:5 2646:10 2656:12 2514:21 print [1] 2506:17 2507:20 2509:16 2510:6,8 2543:21,21 2544:18 2547: 2658:10 2659:22 2660:4, predominantly [1] 2391: printout [1] 2501:20 2512:8,10,18 2566:10 4,12,14 2553:25 2555:10, 23 2672:22 16 prior [7] 2532:3 2537:5 2644:10 2669:20,23 2671: 16 pointed [2] 2510:19 2518:8 preexisting [3] 2571:2 2539:4 2545:1 2548:5 13 platforms [11] 2438:19 pointing [2] 2511:17 2541: 2575:11 2576:8 2564:1 2627:24 products [7] 2500:16,18 2480:13 2533:24 2535:24 1 prefer [5] 2397:18,23 2399: prisoner [1] 2564:18 2503:25 2505:25 2507:22 2546:22 2552:13,14,25 points [3] 2502:7 2658:13 6,7,8 prisoner's [4] 2551:6,20, 2513:5 2641:25 2555:3 2583:21 2584:16 2667:18 preference [1] 2399:3 22 2566:2 Professor [113] 2374:8 plausibly [1] 2616:16 Poleman [3] 2534:11 2556: preferences [1] 2430:25 private [5] 2516:6,15 2517: 2375:4,7,20 2378:24 2379: play [21] 2384:24 2442:1 5 2569:5 preferring [1] 2399:2 4,6,12 18 2380:3,9 2386:17,21 2535:22 2543:1,1 2545:5 Poleman's [1] 2559:25 preliminary [1] 2643:10 privy [1] 2586:22 2387:3 2389:23 2393:15 2554:13 2556:24 2562:12 police [1] 2384:1 Premium [13] 2383:11,22 PRO [1] 2583:6 2415:3,11 2416:12 2420: 2564:4,20 2566:8 2599:18 Policy [3] 2530:19 2532:12 2384:13 2457:20 2479:9, probability [1] 2573:9 18 2422:5,12 2428:15 2602:19 2612:16 2617:2 2564:7 14 2500:8,15 2505:20 Probably [9] 2430:20 2445: 2429:4 2433:7 2435:16 2635:23 2639:22 2650:8, political [1] 2519:16 2509:15 2510:7,10 2512:8 10 2465:3 2472:2 2478:15 2436:15 2438:5 2444:17 19 2653:1 pondering [1] 2647:23 prepare [2] 2628:14 2629: 2566:21 2575:1,2 2664:19 2450:11,15 2451:21 2452: played [13] 2431:8 2546:16 pop [3] 2417:15,17,21 14 probe [1] 2416:5 3,7,16 2454:8 2457:7 2458: 2549:14,14,25 2556:25 Popular [9] 2377:3 2417:9, prepared [1] 2631:1 problem [6] 2504:6 2551: 6,16 2459:4,25 2460:6,20 2560:5 2562:1,4,14,22 13,14,22 2419:6 2479:24 preparing [2] 2473:1,11 14 2566:3 2641:8 2643:19 2461:8,18 2462:9,14 2470: 2564:5 2612:16 2514:12 2555:12 prescribed [1] 2581:7 2670:19 9,16 2473:20,21 2478:22 playing [8] 2536:1 2543:4 portal [1] 2505:5 presence [3] 2538:8 2641: procedural [1] 2507:24 2480:16 2497:7 2501:20 2552:15 2553:21 2562:9, portion [1] 2602:8 17 2648:21 proceed [18] 2428:21 2429: 2504:13 2505:17,23 2506: 11 2568:1 2598:21 pose [1] 2439:6 present [6] 2386:10 2497: 1 2449:6 2450:8 2503:6 13 2507:13,15 2509:13 playlist [1] 2650:13 posed [1] 2607:16 14 2515:14 2543:10 2631: 2509:10 2512:2 2520:19 2510:25 2512:6 2517:24 playlists [5] 2395:16,17 position [11] 2452:9,18 17 2667:21 2528:17 2558:25 2559:20 2518:7 2520:8,23 2521:12 2396:4 2566:22 2650:16 2458:21 2459:1 2470:23 presentation [1] 2673:3 2561:15 2569:20 2598:5 2531:5 2539:6,20 2615:3 plays [18] 2535:21 2536:4, 2588:9 2600:18 2606:12 presented [15] 2422:17 2622:5 2623:18 2625:1 2624:6,16 2625:13,20 16 2554:1 2556:17 2557:1 2625:12 2641:24 2659:14 2437:10 2498:3 2538:5 2671:18 2626:14 2627:13 2628:6, 2562:15 2564:8 2565:18, positioned [6] 2432:20 2542:19 2558:14 2580:5, proceeded [8] 2400:23 12,14 2629:14 2630:13 22 2566:4,24 2567:4 2612: 2435:20 2438:13 2450:22 12 2604:19 2609:2,6,23 2446:12 2467:2 2481:12 2631:16,19,21,24 2632:10 14,24 2633:7 2637:24 2456:24 2471:6 2610:8,18 2617:10 2522:8 2590:25 2619:15 2636:1,7,21 2638:3 2639: 2653:3 positions [1] 2531:2 presently [1] 2531:4 2673:20 12,15 2640:5 2642:13,15 please [74] 2375:4 2381:12 positive [6] 2427:17 2428: president [2] 2530:16 proceeding [47] 2400:20 2644:22 2647:10,12 2648: 2384:6 2398:13 2400:11, 12 2544:14 2562:18,19 2627:22 2442:15 2446:9 2450:13 10,12 2653:13 2655:22,25 12,16,21 2420:24,24 2428: 2578:2 President's [1] 2627:18 2457:24 2466:24 2473:6 2657:20 2659:6,20 2661: 18,20 2445:17,18 2446:5, possession [1] 2641:6 press [2] 2385:7 2390:6 2481:9 2522:5 2528:24,24 13,15 2662:1 2669:12,25 10 2450:6 2452:4 2460:4 possibilities [1] 2611:11 presumably [2] 2535:21 2532:1 2533:3 2555:8 2671:2,16 2466:14,16,20,25 2470:2 possibility [3] 2574:4 2540:10 2559:9 2564:1 2570:1 proffered [2] 2578:25 Heritage Reporting Corporation (202) 628-4888 Sheet 17 Ph.D - proffered Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2586:25 5,19 2577:12,21 2578:1,7, publicity [3] 2386:9 2388: 2379:9 2380:4,5 2383:21 2376:5,19 2377:10 2379:3, proffering [1] 2470:24 8 2581:16,23 2583:1,8,20 16,16 2384:22 2416:9,9,14 2417: 20 2381:22 2382:11 2383: profit [5] 2544:6 2564:24 2584:15 2587:2 2588:6 publicize [2] 2389:24 2421: 12 2418:19,20 2420:1,25 12 2384:13 2385:1,8 2431: 2565:7 2654:7,7 2601:13,24 2606:7,16 17 2424:18,18 2439:13 2440: 8,22 2432:7 2442:1 2453:2 profitable [2] 2498:12,14 2613:23 2614:4,7,23 2615: publicized [1] 2389:12 15,18,22 2445:4,19 2449: 2474:12 2475:2,7,16,21 profits [4] 2544:15,22 2551: 21 2616:5,20,24 2617:4 publicly [3] 2455:7 2613: 20,24 2451:22,22 2452:5, 2476:8 2477:4 2497:25,25 7 2632:15 2618:6,14 2622:10,15,19, 16,20 16 2458:7,8,16 2460:2,4, 2514:14 2515:15 2516:5 program [1] 2572:11 24 published [7] 2530:24 17 2465:7,20 2471:25 2517:3 2543:3 2567:22,24, programmatic [2] 2479: promotional/substitutio 2531:11,13 2542:22 2626: 2472:3 2473:8 2474:4 25 2570:4,15 2571:1,10,22 18,24 nal [1] 2561:25 11,18,20 2476:2 2478:12,25 2503: 2572:10,19,22 2573:7,18, programming [14] 2388:4, prompted [2] 2395:24 publishing [1] 2531:10 10 2512:7,25 2513:9 2533: 24 2574:16,19,25 2575:2,9 4,7,12 2389:1,4,10,12 2396:5 pull [10] 2433:6 2435:13 23 2534:3 2535:10 2537:5 2576:7,14 2580:25 2581:6, 2441:22,24 2474:12,15 pronounced [1] 2566:21 2461:6 2462:11 2472:1 2539:11,22 2540:6,7,25 17 2582:21 2583:2 2585:8, 2480:4 2497:20 proper [1] 2580:8 2502:20 2601:10 2613:3 2547:1 2550:16 2557:13 12 2586:3,15 2588:3,7 programs [3] 2388:19 property [4] 2530:22 2585: 2614:12 2631:4 2561:7 2563:18 2565:24 2589:1,19,22 2665:10,11 2625:7 2650:13 7 2626:5 2628:8 pulled [7] 2385:15,19,25 2566:12,17 2567:10,11,18 2672:6 projected [2] 2432:24 proposal [3] 2470:21 2476: 2449:13 2466:4 2479:22 2568:11 2570:12,22 2571: Radio's [4] 2514:9 2515:6, 2437:10 19 2537:25 2509:19 16 2573:12,12 2574:11,21 10,18 projections [1] 2435:3 propose [1] 2542:16 purchase [1] 2574:14 2576:3,11 2577:9 2578:12 railroad [2] 2642:6 2648:1 proliferation [1] 2564:16 proposed [11] 2470:24 purple [1] 2393:14 2581:13 2585:25 2587:21 railroads [1] 2648:3 promote [14] 2375:4 2442: 2471:6,16,17 2472:5 2502: purport [1] 2599:3 2589:3 2599:7 2602:20 raise [7] 2374:4 2379:6 5 2443:10,17 2549:23,24 25 2584:21 2622:16,20 purpose [5] 2507:2 2572:8 2604:5,9,12,21 2605:2,6, 2508:16 2510:14 2528:11 2550:20 2551:5 2562:5 2630:18 2631:18 2601:2 2657:9 2671:4 12,14,15,16,20 2606:2 2589:2 2624:19 2563:24 2565:17 2566:12 proposition [1] 2425:12 purposes [7] 2437:21 2607:8,8,12,15,16 2608:12, raised [1] 2374:5 2567:5,6 PROs [2] 2582:20 2586:14 2502:11 2503:5 2554:8 18 2609:10 2610:12,15,17 RAMSEY [1] 2370:21 promoted [9] 2537:16 prospect [1] 2651:21 2555:22 2565:23 2650:22 2611:12,16 2618:4,23 random [2] 2560:12,23 2547:11 2549:25 2556:22 protect [2] 2650:8,19 pursuant [1] 2529:8 2622:17 2623:2 2636:22 range [9] 2378:20 2475:15 2567:7 2608:10,13,23,24 prove [2] 2384:1 2444:7 push [1] 2442:22 2640:6,7 2641:1 2643:10 2476:4,21 2633:5,8,9,12 promoter [1] 2547:25 proved [1] 2444:23 put [14] 2384:7 2427:5 2647:9,23 2657:23 2660: 2634:18 promotes [2] 2538:24 proves [1] 2463:6 2455:15 2499:13 2520:16 22 2661:5 2664:3 2665:2 RAO [1] 2369:14 2539:1 provide [14] 2376:8 2383:6 2578:6 2587:9 2609:9,16 2667:9 2669:8,20,24 2671: rapid [1] 2374:25 promoting [6] 2547:15 2388:3,6 2395:3,7 2425:13 2635:22 2638:16 2640:2 7,14,18 rare [1] 2571:17 2550:23 2556:21 2589:18, 2497:20 2553:1 2554:8,10 2655:17 2659:11 questioning [4] 2389:13 rarely [1] 2570:21 21 2598:21 2555:21 2648:5 2672:16 Putting [3] 2589:15 2616:2 2466:8 2502:16 2505:10 rate [115] 2439:3 2441:6 promotion [61] 2533:23 provided [17] 2384:10 2654:16 questions [27] 2378:23 2444:22 2457:24 2458:4,5, 2534:5 2535:10,12,17,18 2385:23 2386:11 2388:11 puzzle [1] 2623:1 2379:13 2380:9 2384:7 12,18,19 2470:21,24,25 2536:13 2537:5,10,10,11, 2390:14,18 2391:5 2419:7 Q 2389:2 2415:12 2426:15 2471:6,14,17,19,22 2472:5 24 2538:18,21 2539:3 2426:3 2519:15 2535:2,7 2428:16 2470:19 2480:16, 2474:2 2537:8,25 2538:15, [1] 2540:19,20 2541:1,3 2542: 2607:18 2612:23 2613:2,6, qualifications 2600:5 18 2497:9 2502:1 2517:22 16,19,20 2539:5 2542:20 [9] 23 2543:7,9 2544:10,24 10 qualified 2421:20 2436: 2520:24 2540:21 2541:14 2543:9 2545:1,17,18 2546: 2545:9,10,19,21,24 2546: provider [1] 2553:3 20,22 2532:20 2604:18 2569:2,14 2572:9 2582:2 11,22,24,25 2547:4,5,13, 14 2547:5,9 2548:3,17,22 provides [3] 2386:5 2585: 2606:22 2607:11 2628:12 2587:8,11 2589:11 2590:8 14,16,22,24 2548:2,9,10, 2551:1,25 2553:9 2554:8, 17 2612:13 2640:12 2623:4,21 20 2549:5 2550:3,24 2553: [4] 21 2555:22 2556:12,14,19 providing [7] 2430:7 2557: qualifies 2546:25 2585: quick [1] 2463:25 12 2554:23 2555:18 2556: 2560:1,13,21 2561:19 12 2601:16 2605:3,8 2606: 16 2600:10,15 quickly [4] 2422:11 2464:3 15 2560:5 2569:9 2577:10, [3] 2562:3,18 2563:6,7 2565: 13 2607:22 qualify 2599:5,24 2600: 2514:2 2543:18 24 2578:3,9,13,14,21,22 18 2566:17,18 2577:9,10 province [1] 2607:5 8 quite [16] 2398:25 2453:9 2579:10,11,13,15 2580:9 [1] 2578:20 2584:21 2585:2 provisions [1] 2443:23 qualifying 2600:7 2462:8 2537:22,22 2538:6 2581:7,15,21 2584:21 [2] 2615:25 proxies [2] 2451:15,24 qualitative 2601:6 2540:12 2633:21 2638:17 2585:7 2622:16,21 2631: promotion/substitution proxy [1] 2453:12 2604:18 2647:8 2650:23 2653:5 18 2632:6 2633:18 2634: [1] [1] 2563:14 prudent [2] 2445:4 2521: quality 2465:14 2656:16 2657:3 2658:20 15 2637:2 2638:9,10,11,14, [4] promotional [79] 2534:23 14 quantification 2395:4, 2667:17 17,19,20 2639:8,8,10 2649: 2537:13,21 2538:7,8,10,11, public [24] 2383:1 2420:8 7 2583:22 2584:19 quote [7] 2383:6,10 2384: 23,25 2650:7,24 2652:17, [4] 12 2539:12,16 2541:8,16, 2442:1 2445:3,9 2455:25 quantified 2390:24 10 2449:13,16 2577:9 17 2653:17,20,22 2654:5, 18 2544:13,14,19 2546:7 2470:3,5 2516:5,12,14 2419:15 2476:3 2569:4 2583:19 17 2660:17 2661:21,23 [7] 2547:14,20,24 2548:9,15 2528:4,6 2530:19 2531:20 quantify 2475:23 2476: quoted [3] 2440:14 2503: 2664:9 2666:4,5,19 2667: 2549:1,11 2550:9 2552:12 2532:12 2535:1 2559:13 6,14 2537:7 2538:7 2581: 23 2510:1 18 2669:10,14 2670:9,15, 2553:22 2554:11,25 2555: 2582:6 2598:3 2623:12 22 2583:7 quoting [1] 2610:5 16,22 quantitative [4] 2454:18 2,8,16,20 2557:6,23 2562: 2646:9 2671:20 2672:10 R rate-setting [5] 2631:10 7,14,25 2563:9,23 2566:14 publication [1] 2542:22 2569:9 2604:19 2614:10 2642:4,8 2649:11 2653:2 [133] [70] 2567:7 2569:4,10,12 2570: publications [1] 2627:11 question 2376:23 Radio 2369:6 2371:2 RATES [54] 2368:6 2426: Heritage Reporting Corporation (202) 628-4888 Sheet 18 proffered - RATES Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 18 2429:18 2432:20 2439: reasonable [5] 2632:6 12 2556:7 2557:10 2558:3 2671:12 2668:8 11,16 2440:4 2444:21 2633:18 2657:5,9 2658:11 2566:18 2568:13,19 2570: refers [1] 2430:7 relying [4] 2422:12 2579: 2449:9 2450:23 2452:13 reasonableness [1] 2470: 5,17 2573:2,16 2578:19 reflect [10] 2427:3 2441:19 22 2582:4 2600:5 2458:22 2471:2,7 2472:8, 20 2580:1,7 2582:2 2584:13 2443:2,19 2544:18 2554:4 remain [6] 2394:9 2420:7 12,15,23 2473:13 2516:1 reasonably [1] 2387:5 2586:14 2588:13 2589:17, 2581:15 2583:1 2602:23 2521:19 2529:1 2590:5 2542:17 2545:16 2553:4,5 reasons [13] 2382:15 2388: 17 2590:9 2598:25 2601:1 2639:7 2673:5 2567:23,24 2579:2,6 2581: 16 2391:9,16 2397:3,8 2606:20 2611:19,19,20 reflected [6] 2443:6 2462: remainder [2] 2466:8 2673: 8 2586:8 2589:2 2630:18 2418:14,24 2426:14 2427: 2613:11 2615:10,11,12,23 19,20 2578:9 2607:9 2638: 5 2633:3 2634:9,10,14,24 13 2456:9 2480:8 2656:14 2616:3 2617:9,13 2623:17 18 remained [2] 2395:5 2436: 2635:24 2638:24 2639:6 rebut [1] 2618:15 2624:15 2625:10 2632:13 reflecting [2] 2606:15 5 2641:12,13,16 2642:8,10 rebuttal [46] 2376:2 2377:1 2634:2,4 2635:5 2636:10, 2608:6 remaining [1] 2552:6 2643:1,2,12,16,16,19 2666: 2382:20,22 2398:5 2420:4 13,17 2637:5,12 2639:20 reflects [2] 2432:5 2435:25 remember [9] 2456:8 2465: 24 2670:5,15 2421:22 2459:12 2460:9 2646:23 2647:5,8 2649:15, refresh [3] 2379:23 2381:5 3 2478:2,8,19 2520:25 rather [18] 2430:8 2433:17 2465:4 2473:2 2476:11 22 2650:7,19 2651:16,17 2512:6 2575:14,16 2658:15 2435:9 2504:5 2520:5 2499:6 2506:15 2510:21 2652:20 2653:23 2654:3,9 regard [4] 2445:1 2539:17 remind [2] 2392:6 2530:1 2541:3 2547:9 2551:17,22 2511:9,12,14,20,22 2512:1 2655:1 2658:4,8 2662:18 2540:16 2659:9 REMOTE [1] 2368:22 2566:20 2573:6 2574:19, 2513:4,11 2517:21 2518:4 2663:3,5,7,8,11 2665:2,23, regarding [9] 2457:22 removal [2] 2376:14 2388: 25 2576:13 2578:7 2582:7 2530:4 2533:2 2535:17 25 2666:25 2667:7 2668: 2458:10 2473:12 2474:17 17 2611:20 2639:4 2542:5 2579:17 2583:11 10 2505:12 2537:24 2587:17 remove [1] 2671:13 ratio [2] 2536:20 2539:24 2604:20 2610:1 2616:22 recorded [9] 2462:14,23 2609:1 2613:22 removed [3] 2385:12 2389: rational [1] 2586:10 2617:20,23,24 2618:14 2615:7,10 2636:19 2645: regards [1] 2647:2 4 2558:5 ratios [1] 2540:18 2622:11 2629:15,22 2631: 21 2648:14,24 2649:5 regime [1] 2642:8 removing [3] 2425:24 raw [1] 2463:11 25 2667:24 2669:13 2670: recording [18] 2570:14,17, regulated [2] 2579:14 2437:4 2671:9 reach [3] 2537:3 2563:13 12,21 25 2571:4,9 2572:24 2573: 2642:11 renaissance [2] 2437:24 2589:6 rebutting [1] 2474:9 2,13,15 2574:1,15 2575:10, regulation [1] 2532:12 2477:21 reached [2] 2632:6 2633: recall [23] 2392:16 2426:19 13 2576:6,10,21 2577:3 regulations [1] 2529:8 repeat [9] 2398:12 2419:23 18 2444:20 2459:9,19 2465:1 2651:8 Reiley [4] 2422:13 2423:2 2439:13 2440:18 2474:4 react [2] 2385:7 2416:4 2471:24 2474:24 2477:11 RECORDINGS [16] 2368:8 2424:6 2672:1 2518:1 2608:18 2622:17 reacted [1] 2425:19 2478:11 2479:11 2498:18 2384:20 2415:16 2461:20 Reiley's [5] 2376:2 2386: 2667:8 read [15] 2389:16 2390:25 2515:23 2516:3 2531:23 2535:12 2549:14 2577:23 10 2419:20,25 2422:22 repeatedly [1] 2426:17 2391:8 2437:23 2449:17 2534:7 2548:6 2575:9 2580:24 2581:6 2582:7 relate [3] 2378:19 2515:2,7 repercussions [1] 2647:7 2450:1 2521:13 2558:23 2583:24 2598:14 2608:8, 2589:19,22 2637:12 2640: related [7] 2505:23 2514: repertoire [2] 2390:10 2583:14 2588:12 2590:11 21 2637:7 9,18 2648:19 19 2516:18 2520:24 2530: 2671:13 2599:17 2611:17 2647:3 recalling [1] 2565:10 records [1] 2538:3 22 2535:2 2541:2 repertoires [1] 2666:25 2663:4 recalls [1] 2618:23 red [10] 2395:22 2400:16 relates [2] 2563:3 2642:24 repetition [3] 2392:19 readership [1] 2417:10 receive [5] 2390:12 2430: 2446:5 2466:20 2481:5 relationship [2] 2463:11 2393:21 2394:5 readily [2] 2420:16 2421: 24 2499:14 2507:17 2513: 2522:1 2559:5 2590:18 2554:4 rephrase [3] 2576:3 2604: 11 17 2619:8 2673:13 relative [14] 2538:11,12,22 11 2605:19 reading [3] 2391:14 2512: received [5] 2529:15 2530: redirect [9] 2378:25 2380: 2540:20 2545:9,10,23 report [20] 2385:11 2390:6 24 2584:12 14 2533:16 2629:11 2630: 12 2421:1 2520:11,12,21 2550:21 2563:6 2564:21 2425:21 2433:25 2437:23 real [8] 2391:16 2557:4 10 2623:24,25 2684:2 2577:10 2583:20 2584:15 2438:22 2439:19 2440:2,6, 2585:5 2586:1 2633:22 recently [3] 2436:4 2476: reduce [4] 2551:7 2668:18, 2585:2 17,20 2442:9 2443:13 2649:6 2668:13,14 19 2500:24 24 2669:1 relatively [1] 2549:1 2455:13,13 2456:6,22 real-world [2] 2581:5 2668: recess [5] 2466:12 2623:6, reduced [1] 2544:22 relayed [1] 2437:17 2459:17 2610:10,12 2 9 2624:5,12 reduction [2] 2520:3 2538: relaying [1] 2606:19 Reported [15] 2368:25 really [22] 2378:19 2380:14 reclick [1] 2381:6 1 release [1] 2386:4 2376:6,13 2391:7 2416:21 2389:8 2445:13 2542:1 recognize [5] 2435:14,18 REED [1] 2371:9 relevance [1] 2505:9 2433:21 2434:10 2435:11 2547:3 2548:8,13 2550:7 2532:24 2628:19 2629:20 reestablish [2] 2470:3 relevant [11] 2384:23 2439: 2436:4,7 2453:18 2454:13 2554:10 2556:18,22 2566: recollection [2] 2379:24 2623:12 8 2506:25 2540:11 2555:8 2455:6 2456:11 2590:8 16 2568:21 2623:1 2631: 2499:2 refer [5] 2391:3 2395:8 2557:13 2588:22 2611:7, REPORTER [8] 2399:11, 10 2639:25 2648:5 2658: recommend [1] 2458:19 2461:24 2514:23 2650:10 23 2631:22 2642:12 16 2416:23 2419:23 2607: 15,16 2668:20 2669:7 recommendation [2] reference [4] 2384:21 reliable [1] 2669:15 2 2612:4,7 2686:10 realm [2] 2606:11 2611:3 2538:4 2542:21 2514:1 2600:14 2613:16 relied [5] 2429:25 2506:18 reporting [6] 2383:16 reason [25] 2381:11 2382: recommended [1] 2580: referenced [1] 2393:7 2611:18 2652:16 2668:11 2417:8 2434:3 2454:12 2,8 2384:25 2385:12 2396: 18 referencing [1] 2392:10 Religious [11] 2373:2 2455:18 2514:25 9,20,21 2397:15 2398:19, record [98] 2383:2 2384:9 referred [3] 2513:22 2598: 2471:21 2475:7,13,16 Reports [8] 2378:9 2379: 23 2399:21 2421:17 2506: 2392:21 2437:21,25 2440: 13 2646:21 2476:8,16 2477:4 2478:4 19 2433:20 2434:1 2453: 23 2510:21 2518:10 2549: 8,25 2456:13 2460:7 2473: referring [12] 2383:11 2480:6 2518:11 22 2454:11 2456:5,12 7 2564:6 2574:13 2584:20 12,16 2509:7 2528:8 2535: 2384:12 2392:11,18 2439: reluctant [1] 2541:25 represent [7] 2429:7 2450: 2585:10 2586:4,6 2656:16 9,22 2537:16 2543:20,21 24 2440:13,20 2459:16 rely [6] 2422:21 2435:19 13 2451:15,25 2519:22 2657:22 2544:17 2547:2,6,11 2554: 2465:5 2513:21 2617:17 2451:1 2506:21 2667:5 2540:5 2569:25 Heritage Reporting Corporation (202) 628-4888 Sheet 19 RATES - represent Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS representative [6] 2394:8, 2670:20 2622:2 2673:8,10,19 2642:25 2646:24 2657:25 2641:1,2,18 12 2452:12 2515:19 2560: resume [1] 2374:7 roughly [1] 2628:2 2662:10 sector [2] 2436:10 2512:11 20,22 Resumed [3] 2375:18 round [1] 2548:6 Samford [1] 2531:4 see [70] 2381:18,20 2382: represented [4] 2395:6 2623:10 2624:13 row [1] 2393:14 sample [3] 2560:13,17,23 23 2383:8 2390:8,11,15 2433:18 2473:6 2545:11 resurgence [4] 2461:1 royalties [6] 2435:21 2518: San [2] 2370:14 2372:16 2391:7 2394:4 2397:4 represents [1] 2650:25 2463:4,6,8 19,25 2543:4 2564:10 sandbagging [1] 2508:2 2427:22 2433:7 2439:22 request [1] 2480:20 return [10] 2400:20 2446:9 2663:6 SARAH [1] 2369:17 2445:15 2455:10 2460:25 requests [2] 2603:16 2605: 2466:12,24 2481:9 2522:5 ROYALTY [33] 2368:1 SARANG [1] 2372:6 2462:22,24 2463:3 2472:9 23 2559:9 2590:22 2619:12 2432:20 2439:2,11,16 Sasquatch [2] 2611:13,16 2475:18 2500:5,13 2501:9, require [3] 2502:11 2622: 2673:17 2450:23 2457:24 2458:12 satellite [3] 2553:3,4 2665: 13 2502:16 2509:17 2512: 15,20 returning [1] 2470:7 2511:16 2532:1 2539:19 10 14 2513:18,21 2514:3 required [2] 2538:21 2616: returns [1] 2545:8 2546:24 2565:24,24 2567: satisfy [1] 2562:10 2518:12 2540:16 2544:13 10 revenue [11] 2435:19 2436: 23 2578:9,13,14,21 2581:7 saw [5] 2390:25 2479:21 2546:13 2547:21 2549:8 requirements [1] 2501:3 3,11 2442:6 2443:11,18 2585:7 2589:2 2627:4 2554:7 2578:15 2660:23 2550:18 2552:8 2558:4,10 requires [1] 2616:17 2453:3 2454:14 2645:20 2632:6 2633:18 2642:24 saying [18] 2385:3 2397:23 2560:7 2563:23 2564:2,2 rescind [1] 2587:14 2658:25 2666:19 2649:23,25 2653:17,22 2421:21 2427:16 2453:19 2566:13 2567:22 2575:4 research [2] 2391:24 2392: revenues [21] 2433:18,19 2654:5 2665:5 2666:5 2462:2 2463:12 2512:20 2578:2,10 2581:20 2583:6, 2 2434:1,2,4,5,8,11,12 2435: RPM [20] 2452:24 2453:1,5, 2518:15,17 2519:4 2546:2 25 2584:8 2590:9,10 2603: reserve [2] 2506:4 2508:1 1 2436:5 2450:20 2451:7, 9,13,14,17,22,24,25 2454: 2561:23 2565:13 2573:4 18,21,23,25 2609:24 2613: reset [1] 2624:6 19 2454:13 2455:19 2461: 2,4,9,10,11 2455:5,14 2616:13 2638:6 2660:25 13 2618:25 2624:8 2636: respect [3] 2391:13 2507: 1 2462:15,17,25 2498:8 2456:1,6,15 Sayres [6] 2532:22 2543: 23 2642:10 2653:16,21 16 2582:3 review [13] 2437:25 2497: rule [7] 2383:24 2384:3 12 2545:6 2559:21 2560: 2660:4 2668:5 respond [11] 2389:5 2506: 12 2515:9 2519:9 2533:25 2502:17 2510:15 2511:6 25 2568:23 seed [2] 2418:6 2431:3 9,10 2508:19 2513:20 2534:4 2536:22 2537:2 2622:14,19 says [17] 2381:23 2382:25 seeded [3] 2418:11,22 2541:8 2564:12 2610:14 2552:7 2601:19,21 2612:5, ruled [2] 2533:14 2630:9 2395:22 2399:7,8 2420:13, 2419:1 2631:19 2669:17,22 6 rules [4] 2380:9,15 2511:19, 16 2505:1 2511:9,14 2543: seeing [6] 2392:10 2428: responded [1] 2618:24 reviewed [11] 2437:19,21 25 8 2545:25 2556:11 2614: 12,13 2456:8 2583:14 respondent [1] 2393:24 2499:17 2500:23 2534:8, run [6] 2426:11 2568:15 20 2622:22 2653:23 2670: 2651:23 respondents [2] 2395:23 15,21,24 2552:8 2586:21 2641:18 2668:22 2672:2, 21 seek [3] 2455:8,21 2456:14 2540:21 2587:20 17 scary [1] 2661:11 seeking [3] 2502:9,10 responding [2] 2515:17 revisit [1] 2510:13 running [2] 2663:14 2671: scenario [11] 2570:14,25 2587:22 2630:24 revolution [1] 2430:10 7 2571:9 2572:17,19,23 seem [2] 2395:11 2512:22 responds [1] 2608:14 rid [1] 2545:13 RUWE [1] 2368:14 2573:5,17 2575:8,8 2576:6 seemed [2] 2440:16 2636: response [11] 2384:5 2396: right-hand [20] 2400:17,18 S scenarios [2] 2570:10 15 19 2397:14 2459:6 2497: 2446:6,7 2466:21,22 2481: 2572:16 seems [2] 2389:18 2571:17 [1] 10 2540:12,21 2541:12 6,7 2522:2,3 2559:6,7 S.E 2368:18 schedule [2] 2511:15 2535: seen [13] 2385:13 2418:13 [30] 2640:7 2667:14 2670:6 2562:16 2590:19,20 2619: SACK 2374:5,6 2375:6 9 2472:4,19 2478:5 2552:9 responses [10] 2384:6,17 9,10 2654:4 2673:14,15 2400:12 2415:6,7 2445:18 SCHMIDT [1] 2370:4 2569:11 2587:8,9 2589:7 2394:7 2395:20 2397:6 rights [4] 2582:6 2585:5 2446:1 2449:2,4 2466:16 science [1] 2616:12 2610:7 2611:8,9 2603:16 2605:23 2606:6 2586:1 2628:8 2470:4 2481:1 2497:2 scope [4] 2388:23 2389:13 sees [1] 2671:10 2669:14 2670:4 ring [1] 2586:13 2521:8,22 2528:6 2558:11, 2415:24 2589:11 segment [4] 2436:14 2437: responsible [1] 2615:24 rise [6] 2433:14 2434:15,16, 21 2559:2,17 2561:12 Screen [18] 2369:4 2381:5 15,18 2500:20 responsive [1] 2383:21 18 2459:5 2544:23 2590:11,14 2598:2,4 2619: 2400:18 2433:8 2434:23 segments [2] 2500:19 rest [3] 2451:15,25 2456:16 risk [5] 2510:13 2657:16 4 2622:2 2623:14 2673:9 2435:18 2446:7 2466:22 2513:6 [1] restate [3] 2394:24 2418: 2658:16 2659:9 2661:12 SADIK 2372:5 2481:6 2503:10 2509:14, Seinfeld [1] 2390:3 [2] 19 2612:18 risks [1] 2394:19 safe 2614:10 2624:9 17 2522:2 2559:6 2590:19 select [2] 2432:7 2576:23 [1] restricted [43] 2400:5,10, risky [1] 2659:16 SAG-AFTRA 2369:6 2609:20 2619:10 2673:14 selected [1] 2672:4 [1] 15 2430:13 2446:4 2466:7, River [2] 2648:2,4 sake 2565:16 scroll [2] 2501:11 2505:2 self [1] 2453:19 [8] 11,19 2480:17,20,24 2481: RMR [1] 2368:25 sales 2461:20 2535:23 SDARS [3] 2528:24 2531: self-service [1] 2480:12 4 2521:3,7,11,25 2557:16, robust [1] 2500:22 2537:17 2538:25 2539:2 25,25 sell [1] 2644:10 25 2558:1,2,4,6,10,13,17 ROCK [1] 2369:16 2615:25 2617:2,16 se [1] 2640:15 seller [17] 2429:17 2438:10 [44] 2559:4,15 2561:1,7 2589: role [2] 2653:2,3 same 2377:21 2382:2, second [9] 2443:8 2545:25 2439:1 2471:9 2474:2,7 25 2590:4,12,17 2618:20, roles [1] 2530:21 7 2399:2,3 2418:14,24 2612:1 2613:7 2627:19 2600:21 2631:12 2632:14 21 2619:2,7 2646:11 2672: room [38] 2374:13 2400:11, 2431:21 2432:15 2439:2 2628:19 2631:14 2658:18 2634:25 2635:3,19 2640: 11,23 2673:4,5,12 13,22 2445:17,25 2446:2, 2449:21 2507:20 2508:11 2672:20 18 2643:24,25 2644:8,12 result [12] 2391:22 2471:8 11 2449:2 2466:15,17 2511:10,12,25 2536:13 secondary [1] 2418:4 seller's [1] 2653:24 2514:11 2549:13 2570:15 2467:1 2470:3,4 2480:25 2552:9 2567:24 2573:4,4,5, secrecy [2] 2383:15 2391: sellers [3] 2635:21,23 2571:1,10 2576:7 2582:23 2481:2,11 2521:19,21,23 7,16,16,23 2574:2 2576:13 24 2644:9 2616:16,17 2641:13 2522:7 2558:24 2559:2,11, 2578:19,20,21 2581:7 section [11] 2382:13 2393: seminal [1] 2655:14 resulting [1] 2459:14 12 2561:11,12 2590:6,15, 2582:2,21 2601:20 2627:5 25 2443:4 2451:1 2463:23 Senate-confirmed [1] results [3] 2617:7 2662:9 24 2598:2 2619:3,5,14 2632:1 2636:25 2640:1,1 2499:9 2511:9 2640:25 2627:17 Heritage Reporting Corporation (202) 628-4888 Sheet 20 representative - Senate-confirmed Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS send [2] 2602:24 2603:3 22 2452:23 2454:3,23 2630:13 2636:21 2639:15 10 2635:24 2647:6,7 2651: 23,25 2630:15 2657:3 sending [4] 2567:25 2602: 2455:3,7,9,11 2457:13,23 2640:5 2642:15 2648:12 15,22 2672:25 2,15,18 2458:12,24 2461:2 2462:6 2655:25 2661:15 2671:2 Significantly [1] 2537:17 SiriusXM's [3] 2384:2 sends [2] 2552:11 2601:14 2463:9 2464:22,25 2465:8, 2684:13 signify [1] 2427:9 2553:1 2617:12 sense [8] 2376:20 2451:18 24 2466:1,4 2478:3,24 Shapiro's [2] 2624:6,7 signing [1] 2654:9 sit [3] 2543:20 2565:20 2480:7 2508:12 2651:20, 2479:5,9,10,15 2535:5,5 Shapley [1] 2539:20 signs [1] 2427:16 2580:11 21 2655:4 2658:23 2536:7,15 2541:7 2548:25 share [14] 2560:9 2646:16 similar [7] 2396:19 2398: sitting [2] 2513:23,25 sensible [1] 2656:15 2549:17 2550:8 2552:20, 2650:8,8,19 2664:3,11 25 2399:22 2455:24 2539: situation [23] 2416:7 2419: sentence [7] 2383:20 2422: 24,24,25 2553:4,5,10 2554: 2665:15,15,18,24 2666:14 14 2556:8 2657:3 13 2438:9 2514:10 2566: 2 2450:1 2461:24 2462:7 13 2557:7,19 2563:22 2667:9,13 similarly [5] 2422:3 2426:5 19 2573:19 2611:5,17,21 2513:21 2584:12 2564:4,9 2565:15,25 2566: shared [5] 2644:13,18 2517:6 2609:7 2610:19 2632:14,18 2643:8 2644:2, separate [6] 2511:22 2566: 20,22 2567:2 2577:17 2653:12 2662:5,5 simple [6] 2542:13 2543: 14,19,23 2645:2,15,23 1 2632:25 2636:16 2655: 2580:2,8 2582:21 2603:16, sharing [1] 2505:5 23,23 2544:4 2555:14 2646:1 2653:25 2655:4,10 14 2658:17 17,25 2605:18,22,24 2606: she's [4] 2389:19 2472:18 2577:16 situations [3] 2385:15 separately [3] 2630:21 1 2607:23 2608:5 2609:8 2508:5,8 simplified [5] 2542:11 2544:22 2547:22 2635:9,12 2613:24 2614:6,23 2634:3, Sherman [3] 2640:25 2641: 2543:15,24 2545:12 2578: size [10] 2376:10,18,21 series [2] 2617:1,16 5 2636:13 2645:16 2646:2, 2,19 23 2381:25 2382:6,14 2384: serious [1] 2374:23 5 2648:5,15,19,24 2657:11 shift [10] 2415:11 2419:22 simply [13] 2443:19 2444: 23 2385:1 2500:2 2538:7 served [1] 2627:20 2658:8 2420:3 2429:19 2436:9 12 2471:5 2503:22 2506: sizes [1] 2378:13 serves [2] 2432:11 2654:2 services' [12] 2552:8 2554: 2465:6 2665:1,9,10,10 12 2507:20 2508:15,21,24 skill [1] 2686:4 service [115] 2377:6 2381: 7 2555:21 2560:20 2561: Shifting [2] 2422:24 2608: 2515:17 2536:8 2641:24 skip [2] 2553:15 2585:19 22 2382:11 2383:12,17 19 2613:22,23 2614:1,2,4 8 2651:3 skips [2] 2585:20 2634:11 2384:13 2385:8 2387:25 2615:21 2616:5 shifts [3] 2430:18,21 2463: simulcast [33] 2431:18,21, Slack [4] 2513:10,14,21 2389:2,3,17 2393:1 2394:1 serving [1] 2432:17 19 25 2432:3,8,13,15 2434:15 2514:3 2421:11,13,15 2422:1,14 session [65] 2400:5,10,15, shoots [1] 2463:3 2474:12 2499:3 2572:8,9, Slacker [3] 2381:21,24,25 2427:9 2430:11,14,15,16, 16,24 2415:8 2420:9 2428: shorn [1] 2610:5 21,21,25 2573:6,11,14 slide [26] 2433:4,7,10 2543: 17,23 2439:20,23 2441:7 22,24 2445:3,10,21 2446:4, short [2] 2520:12 2631:13 2574:3,15 2575:19 2576: 13 2545:7,8,11 2546:14 2442:9,12 2444:6 2454:21, 5,13 2449:5 2466:11,13,19, shorter [1] 2658:6 13 2580:25 2581:6,17 2557:15,24 2558:5 2559: 25 2455:4 2464:20 2531: 20 2467:3 2470:7 2480:17, shortly [1] 2672:11 2582:20 2583:2 2585:7,13 25 2560:8 2561:1 2568:24 20 2536:14 2538:24 2539: 20,24 2481:4,5,13 2497:3 show [12] 2428:3 2434:14, 2586:2,16,18 2589:1 2578:15 2631:8 2632:12 1 2540:23 2541:3,10,10,19, 2521:4,7,8,11,25 2522:1,9 23 2460:25 2462:13 2505: simulcasters [3] 2431:17 2637:1,20 2650:6 2652:18 20 2545:19,22 2547:19 2528:2 2558:1,13 2559:4,5 23 2508:9 2618:18,19 2439:2,7 2653:9 2661:15,25 2667:3 2549:15 2553:9 2562:1,4,7 2589:25 2590:4,12,17,18 2628:17 2629:18 2667:23 simulcasting [16] 2432:25 slides [1] 2631:1 2563:7,8,10,11,25 2564:11 2591:1 2618:21 2619:2,7,8, showed [3] 2433:4 2434: 2433:14,19,22,25 2434:18, slightly [4] 2463:14 2465:7 2565:19,22 2566:5,14,24 16 2622:5 2646:9,11 2671: 19,22 20 2435:8 2454:14 2455: 2572:17 2628:3 2567:8 2568:13,18 2569:6, 20 2672:10,11,23 2673:4,5, showing [4] 2392:3 2507: 12 2478:10,21 2479:3,7 smack [1] 2654:17 8 2571:3,13,24 2575:4,12 12,13,21 2684:15 21 2508:13,14 2497:23,25 small [15] 2425:19 2500:10 2576:9,22,23 2577:4,5,11, SESSIONS [1] 2684:17 shown [2] 2632:11 2633:4 simulcasts [1] 2588:2 2504:20 2509:14,15,19,23 18,23 2578:14 2580:25,25 set [22] 2376:17 2426:19 shows [8] 2434:17 2462:14 simultaneously [1] 2655: 2512:11 2553:6 2560:9,17 2585:15,16 2632:15 2633: 2429:12 2431:2 2442:2 2544:24 2552:13 2631:8 16 2572:3 2657:11,11 2658: 25 2639:21,23 2640:1,3 2458:4 2480:15 2501:2 2652:19 2656:18 2660:19 since [13] 2436:6 2453:24, 24 2645:18 2649:19,21 2650: 2542:17 2543:6,9 2545:17 sick [2] 2374:22 2427:2 24 2457:11 2477:7,22 smaller [12] 2500:3,20 9,12,16 2651:6,17 2652:21 2546:22 2547:13,23 2554: side [42] 2400:17,18 2438:9, 2478:15 2499:21 2585:12 2503:22 2505:19,19 2507: 2658:1,2,23,25 2659:12,12, 23 2556:14 2562:18 2580: 15 2446:6,7 2466:21,22 2604:22 2615:2 2635:12 17,18 2513:17,22 2548:16, 14,17 2661:11 2667:11 9 2582:3 2642:19 2661:20 2481:7 2508:16 2522:2,3 2656:8 16,18 2669:21 2671:11 2672:7 sets [1] 2376:12 2536:12 2553:6,6 2559:6,7 sincere [6] 2601:14,25 social [6] 2389:24,25 2390: service-generated [1] setting [14] 2429:17 2441: 2562:16 2589:16 2590:19, 2602:9,23 2603:3,8 13,23 2391:4 2392:12 2650:13 6 2452:13 2458:19 2537:8 20 2619:9,10 2630:22,22 single [13] 2537:11,12 sole [1] 2497:19 service-side [2] 2534:7,15 2548:14 2553:4,5 2564:25 2633:3,5,12 2634:4,6,18, 2556:12,13 2571:15 2584: solely [4] 2498:2 2510:17 services [140] 2376:10,16, 2570:12 2631:11 2637:2 20 2644:17 2646:16 2653: 23 2635:19 2639:16 2641: 2569:10,11 19,19,23 2377:10,18 2378: 2641:9 2647:2 17,17,21 2654:4 2657:10 10 2653:12 2654:22 2655: solution [2] 2655:16,19 4,6,10,17,19,22 2379:4,20 setup [3] 2374:16 2418:15 2667:12 2673:14,15 21 2662:13 somebody [10] 2535:25 2384:17 2385:2,16,21 2578:23 sides [1] 2657:25 Sirius [3] 2457:3 2464:13 2540:9 2541:8 2547:15 2387:18,24 2399:7,9,15,25 several [7] 2384:17 2397: signal [10] 2572:11,13,19, 2605:24 2549:24,25 2550:23 2557: 2420:13,16 2421:7,11,12 13 2457:9 2615:23 2626: 22 2573:7,22 2574:3,16 SiriusXM [36] 2371:2 2382: 22 2573:10 2668:24 2422:19 2427:7 2429:17 20 2656:14 2658:13 2575:9 2576:14 11,13,14 2553:2,3,6 2556: someone [16] 2419:11 2434:6 2438:13,20,23 shall [3] 2511:10,12,14 signature [3] 2628:25 24 2557:2 2558:18 2598: 2474:14 2476:23 2570:14, 2439:6,10,15 2440:5,11 Shampan'er [1] 2425:16 2629:25 2686:10 10,21 2603:20,23 2605:4, 25 2571:9,21 2572:17 2441:2,12,17,23,24 2442:5, Shapiro [21] 2422:12,21 significant [14] 2415:20 24 2606:1,13,18 2607:23 2573:24 2574:13 2575:9 7,17,21,23 2443:1,10,17 2534:18 2624:16,22 2625: 2440:9 2441:1,15,22 2442: 2608:1,4,10,22 2612:14,16, 2576:6,21 2577:3 2602:23 2444:2 2449:12 2450:17, 5,11 2628:6,12,14 2629:14 16 2443:15 2444:1 2449: 24 2615:15 2622:9,14,19, 2603:8 Heritage Reporting Corporation (202) 628-4888 Sheet 21 send - someone Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS sometimes [4] 2603:16 special [4] 2436:24 2548:3, 2555:13 2559:10 2590:14, 2550:25 2637:12,23 2638: 2541:21 2542:4,7 2548:23 2605:18,22 2654:20 15 2552:13 23 2619:4,13 2623:14 4,9,13,19,20 2649:14,17, 2549:7 2550:14,17 2551: somewhat [1] 2664:20 specialty [1] 2626:2 2673:10,17 19,22,24 2650:1,3,10 2652: 12,17 2552:1 2563:18 song [22] 2392:19 2393:21 specific [12] 2426:3 2428:3 standard [3] 2513:16 2546: 15 2565:9 2568:4,7 2626:14 2397:15,22 2398:18,19 2432:5,7 2452:5 2456:21 20 2626:23 steering-based [5] 2650:4, 2636:21,24,25 2638:12,25 2431:3 2536:9 2553:22 2457:3,4 2541:14 2542:20 standards [1] 2627:2 5,18 2651:3,13 2639:12 2640:5 2641:17 2554:1,2 2556:18 2562:3,5, 2545:15 2569:9 stars [1] 2417:19 Steinberg [4] 2499:13 2642:13 2644:20 2647:10 6,9,22 2571:19 2572:3 specifically [10] 2388:6 start [6] 2418:16 2428:22 2518:7,14,17 2648:10 2652:3 2655:24 2573:4 2576:23 2598:22 2507:16 2510:19 2534:3 2598:12 2634:15 2649:17 STEINTHAL [1] 2370:11 2656:10 2657:16 2659:8, songs [24] 2396:15 2398: 2539:19 2542:25 2580:5, 2663:24 stenographic [1] 2686:5 20 2660:22 2661:13 2669: 23 2423:3,10,10,10,14 11,18 2582:5 started [3] 2528:19 2529: step [5] 2385:24 2391:18 24 2670:2,25 2431:8 2535:10 2541:4 specificity [1] 2567:13 24 2623:13 2624:4 2666:2,6 Strickler's [1] 2568:11 2549:14 2552:14 2556:20 specified [1] 2399:23 starters [1] 2646:18 steps [1] 2666:3 strike [4] 2383:19 2384:4 2560:7,14 2562:18,21 spectrum [1] 2475:15 starting [2] 2422:3 2561: STEVE [1] 2368:14 2510:22 2574:20 2571:21 2572:12 2608:10, speculate [1] 2416:15 21 STEVEN [1] 2369:12 strikes [1] 2589:7 13,22 2609:1 2636:11 speculation [3] 2386:25 state [8] 2499:24,25 2513: stick [1] 2453:25 strong [1] 2541:19 Sony [2] 2369:8 2565:16 2388:23 2415:24 14 2531:20 2625:9 2637:8, sticking [1] 2497:7 strongly [1] 2541:8 soon [1] 2665:13 spend [2] 2650:23 2656:12 8 2639:20 still [19] 2394:5 2420:6,17 structure [10] 2471:15,17, sophisticated [1] 2617:3 spending [2] 2551:24 stated [3] 2450:16 2519:8 2429:5 2497:7 2520:6,6 19,22 2472:6 2473:18 sorry [29] 2380:17,25 2381: 2584:23 2548:5 2559:18 2561:13 2587:5 2475:19 2632:1 2662:14, 9 2382:17 2386:4 2387:2 spent [2] 2550:19 2551:5 statement [10] 2503:16,21 2637:2 2638:23 2641:12, 17 2392:14 2399:11 2418:16 spin [1] 2650:8 2507:21 2511:11,12,13 19 2643:6 2652:15 2658:8 structured [1] 2475:19 2420:10 2422:3 2439:13 spins [1] 2426:4 2545:3 2610:13 2639:11 2660:3 2671:20 structures [2] 2581:15,22 2474:4 2478:1,23 2502:3 split [7] 2544:5,7 2656:16 2647:2 stocking [1] 2642:25 struggles [2] 2514:14 2513:20 2568:5 2579:5 2658:11,14 2659:21 2660: statements [1] 2508:25 stood [1] 2624:11 2515:18 2602:4 2605:14 2607:2 11 STATES [4] 2368:1 2369:4 stop [3] 2551:15 2566:4 stuck [1] 2478:16 2613:4,8 2634:13 2644:21 split-the-difference [3] 2510:15 2609:17 2672:9 student [1] 2477:7 2647:11 2650:2 2669:25 2632:21 2654:16,19 static [1] 2436:6 stopping [1] 2673:2 studied [8] 2540:2 2541:13, sort [14] 2396:10 2418:15 splitting [3] 2661:1,2,9 station [8] 2430:24 2431:3, storage [10] 2501:14 2503: 13 2568:12 2574:6,10 2442:21 2462:25 2536:12 spoke [2] 2477:2 2556:7 22 2432:4,8 2454:14 2480: 13 2504:15 2510:11 2512: 2575:21 2643:3 2540:5,25 2552:15 2553: spoken [1] 2601:1 10 2519:3 9,13,17,19,21,23 studies [3] 2425:21 2530: 18 2555:7 2564:1 2568:1 Spotify [50] 2377:3,6,17,18 stations [26] 2418:6,11,22 stories [4] 2459:8 2552:14 17,19 2570:19 2644:14 2378:13 2383:7 2384:11 2419:1 2431:8 2474:23 2556:1,8 study [10] 2424:4 2497:18 sorts [2] 2546:4 2554:18 2386:1,6,12,22 2387:13,14 2475:2,7,16,21,24 2476:4, straight [2] 2535:15 2581: 2540:14 2568:16 2576:20 sought [2] 2451:14,23 2389:10 2397:19,23 2399: 8,16,16,22,24 2477:4,22 2 2577:2 2580:4 2603:6 SOUND [16] 2368:7 2384: 2,6 2421:16,17,19 2438:20 2479:24 2516:9 2517:3 strategy [3] 2568:14,19 2617:4,5 20 2549:14 2574:15 2575: 2439:3,5,6,20 2441:3 2442: 2518:9,18,22 2543:3 2626:5 studying [1] 2554:22 10 2577:23 2580:24 2581: 13,23 2443:21,21,21 2444: statistical [1] 2601:5 stream [6] 2415:6 2449:3 stuff [1] 2602:6 5 2582:7 2589:18,22 2637: 22 2445:24 2465:10,21,23, statute [4] 2564:16 2585: 2574:19,25 2598:3 2622:3 sub [3] 2546:1,2 2563:10 12 2640:8,18 2648:19 25 2571:4,13 2576:10 21 2642:12 2649:8 Streaming [40] 2378:10 subject [18] 2394:10 2423: 2651:8 2646:5,15,22 2647:6 2650: statutory [61] 2376:21 2420:13 2422:14,19 2429: 5 2519:9,16 2528:25 2529: SoundExchange [16] 12,15,20,25 2651:10 2377:13 2378:7,21 2384: 20 2434:12 2439:10,15 9,10 2533:7,10,13 2536:4 2369:3 2374:11,16 2471: Spotify's [2] 2444:8,11 18,23 2385:1,5,8,11 2442: 2440:5 2452:12,23 2454: 2553:11 2557:10 2563:15 18 2472:22 2502:25 2505: spreadsheet [1] 2434:19 11,15,20 2443:1,7,14,25, 20,24 2455:3,4 2457:14,23 2629:6,9 2630:5,8 21 2517:15 2518:19 2529: spreadsheets [1] 2433:22 25 2449:9,10 2451:1,9 2458:11 2459:5,7,14 2461: subjects [1] 2532:8 7,14 2533:15 2579:25 spring [1] 2642:1 2452:12,23 2455:3,4,22 2 2463:18,21 2464:9,20,22, submit [1] 2587:7 2580:6 2630:25 2685:2 square [1] 2640:17 2457:23 2458:5,11 2518: 25 2465:8,11 2556:25 submitted [6] 2459:17 SoundExchange's [5] squarely [1] 2465:19 19 2537:8 2538:20 2539:1 2557:1 2571:3,13,24 2576: 2499:18 2553:19 2579:16, 2380:12 2470:21 2471:6 squeeze [1] 2660:1 2543:3 2545:17 2546:25 9 2636:13 2648:14,19 21 2584:19 2533:20 2539:18 squeezed [1] 2543:25 2547:4,22 2548:9,10,14 2651:5 subscribe [3] 2541:9 2576: sounding [2] 2375:25 stability [1] 2518:15 2549:4 2550:3,4 2553:12 streams [3] 2442:5 2443: 24 2577:4 2376:1 stable [3] 2518:8,17 2519: 2556:14 2557:8,10 2563: 11,17 subscribers [3] 2386:6,13 sounds [1] 2672:21 13 16 2566:6 2585:16 2586:7, Street [3] 2370:13 2372:14 2421:24 sources [4] 2514:16,16 stacking [1] 2627:4 8 2622:24 2630:19 2635:1 2373:8 subscription [20] 2421:23 2535:1 2536:5 staff [4] 2601:13,24 2606: 2649:5 2668:4,6,15 stretch [1] 2600:2 2434:6 2479:10 2541:9,10 space [1] 2463:16 16 2613:11 stay [3] 2428:23 2445:20 stretches [1] 2508:17 2571:3,11,23 2575:12 Spalding [5] 2370:5,12,17, stage [1] 2511:14 2590:10 stretching [1] 2505:9 2576:9 2630:22 2633:2,12 22 2450:12 Stand [22] 2375:6 2400:12, stayed [3] 2394:16,17,20 STRICKLER [53] 2368:13 2634:2,4,20 2635:12 2662: speaking [3] 2461:22 2476: 21 2420:17 2445:19 2446: steep [3] 2462:22,24 2463: 2388:9 2425:9 2444:14,17 11 2665:9 2667:12 23 2566:17 10 2453:1 2466:17,25 1 2445:6,12,13 2508:4 2511: subsequent [1] 2563:20 speaks [1] 2554:20 2481:1,9 2506:8 2522:5 steering [19] 2549:13,16 8,18 2539:6,7,10 2540:16 substantial [3] 2457:12 Heritage Reporting Corporation (202) 628-4888 Sheet 22 sometimes - substantial Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2589:23 2635:19 supported [3] 2630:22 5 2613:1 2649:13 2666:10 2572:10,13,18,22 2573:7, 2,10,17 2607:6 2608:9,15, substantially [2] 2589:18, 2633:1 2634:18 talks [3] 2501:8 2553:2 18,24 2574:16 2575:9 23 2609:1,17 2610:1,13 21 supports [2] 2545:3 2657: 2647:4 2576:7,14 2665:11 2611:18,19,20,22 2612:2, substantive [2] 2504:4 4 tank [1] 2530:20 TESORIERO [1] 2371:8 12,22,23 2613:25 2614:13 2508:8 suppose [1] 2600:7 target [12] 2500:25 2545: test [2] 2374:25 2375:25 2616:18,22,23,25 2617:18, substantively [1] 2582:25 supposed [1] 2583:13 22 2563:8,10 2577:11,18 tested [1] 2375:1 23,25 2618:6,10,13,16,24 substitute [3] 2562:6 2566: suppress [1] 2669:18 2578:14,18,22 2579:10,11 testified [21] 2375:16 2389: 2622:11,13,18,22 2624:7 9 2572:12 suppressed [4] 2423:11, 2649:4 14 2426:17 2429:10 2431: 2627:11 2628:15,20 2629: substitutes [2] 2536:7,11 14,19 2426:5 targeted [5] 2478:6 2500: 5 2432:23 2438:17 2443:8 15,22 2631:2,9 2633:9,15 substituting [1] 2565:22 suppression [5] 2376:3 18,19,20 2513:5 2474:22 2528:15 2531:16, 2637:3,16 2641:20 2645: substitution [38] 2533:23 2423:5 2652:23 2671:23 task [2] 2634:22,23 17,18,20,24 2599:11 2624: 19 2653:14 2656:1,3,7 2535:19 2536:6,13,13,18, 2672:14 tastes [1] 2417:7 24 2628:2 2636:7 2637:8 2667:24 2670:12,13,21 20,21,23 2537:20 2538:18, supracompetitive [1] taught [3] 2531:3,6 2626:7 2646:21 2672:20 22 2539:12,17 2540:17 2643:12 Taylor [10] 2385:18,25 testify [4] 2429:24 2478:20 text [1] 2397:11 2541:2,3,16 2542:23 2544: surplus [2] 2544:5 2659:21 2386:7,14,22 2387:7,8,13 2479:23 2587:19 thank-you [4] 2552:11 10,20,24 2545:20,21,23 surpluses [1] 2656:4 2390:20 2431:3 testifying [6] 2438:25 2554:1 2567:25 2603:3 2546:15 2547:5,9 2548:18 surprise [3] 2451:6,8,12 teaches [1] 2586:10 2460:13 2507:16 2606:23 thanked [1] 2598:20 2550:5 2553:9 2554:21 surrounding [2] 2388:16, teaching [2] 2475:8 2531:2 2607:19,20 Thanks [4] 2376:1 2584:17 2560:14 2562:3 2618:10, 17 team [1] 2374:11 testimonial [1] 2611:6 2609:20 2624:1 12,17,24 survey [18] 2393:25 2395: teams [1] 2553:23 testimonies [1] 2534:17 that'll [3] 2631:13 2632:16 substitutional [9] 2557:6, 23 2396:1,6,24 2535:3 teased [1] 2540:20 testimony [240] 2376:2,9 2649:10 23 2562:8 2563:22 2564:9 2540:6,7,21 2541:5 2668: technical [7] 2374:15 2380: 2377:1 2382:19,21 2384: themselves [1] 2518:18 2565:15 2577:22 2578:7 12,16,17,22 2669:8,14 15,19 2381:12 2501:3,3 10 2386:5,8 2387:17,22 theoretical [1] 2657:14 2622:10 2670:4,20 2624:2 2388:13,24 2389:8,15 theory [6] 2545:2 2586:10 success [7] 2459:8 2552: surveys [5] 2392:3,17 Technically [1] 2667:21 2391:1 2392:3 2395:10 2587:4 2588:2 2651:21 16 2554:5 2556:13 2567:1 2399:10,13 2670:23 technician [3] 2376:25 2398:5 2415:25 2416:1 2655:9 2584:5 2617:12 survive [1] 2658:8 2437:7 2461:13 2420:5,17 2421:22 2422:5, there's [74] 2376:14 2380:3, successful [5] 2437:1 suspect [2] 2396:10 2540: technicians [1] 2393:5 7,20 2425:2 2428:11 2430: 3,5,10 2381:20 2382:4,9, 2463:22 2552:14 2560:24 5 technological [1] 2573:22 7 2431:6 2435:2,12,14,15 10 2384:25 2386:18,18 2612:15 Sustained [9] 2386:19 technologies [3] 2429:11, 2436:19 2439:5 2440:13 2387:8 2415:18 2417:6 successfully [4] 2608:10, 2438:6 2460:18 2574:23 13 2456:19 2449:12,14,17 2450:2,17 2423:13 2425:16 2427:18, 13,23,24 2587:24 2588:14 2603:11 technology [2] 2431:16 2457:16 2459:9,12,12,19, 18 2432:10 2443:4 2444: suffer [1] 2658:5 2612:10 2668:1 2573:20 23 2460:9,9,14,21 2461:4, 22 2459:25 2462:6,7,18,20 suffered [1] 2461:23 Swap [1] 2575:19 teleconferences [5] 2535: 7 2463:17 2464:5,16,18,24 2463:5,10 2465:15 2475: sufficient [3] 2445:11 Swift [9] 2385:18,25 2386: 11 2601:18 2613:10 2615: 2465:2 2472:9 2473:2,11 10,11,11 2515:12 2532:1 2537:7 2651:7 7,14,23 2387:7,8 2390:20 23 2616:2 2474:8,10,17,19 2476:11 2535:25 2536:19 2537:19, sufficiently [2] 2506:25 2431:3 Television [3] 2369:5 2477:9 2479:10 2497:14, 20 2539:2 2544:20 2546:8 2560:20 Swift's [1] 2387:13 2388:3,7 17,21 2498:6,11,24,25 2550:8 2556:10 2557:2 suggest [3] 2395:10 2549: switch [6] 2393:1 2420:15 tells [2] 2390:1 2664:13 2499:4,6,18,19,21,23 2501: 2565:4,5 2574:8 2587:7 3 2555:7 2421:12,25 2457:7 2463: ten [4] 2445:10,14 2571:21 21 2504:22 2505:24 2506: 2602:3,5 2611:9,11 2616: suggested [4] 2383:1 14 2590:2 14,16 2507:14 2510:1,5,18, 10 2618:21 2627:4 2632: 2425:2 2515:25 2519:13 sworn [3] 2375:16 2528:14 tend [5] 2442:1 2512:16 21 2511:4 2513:4,11 2514: 25 2633:2 2635:20 2642:2 suggesting [1] 2383:7 2624:23 2626:4 2649:3 2656:20 17 2515:5,13,22 2517:21 2643:12 2645:5,8 2646:17 suggests [1] 2507:18 SXM/PAN [3] 2629:11 terabyte [2] 2512:18,21 2518:4 2528:23 2529:5,12 2647:15 2650:14 2652:9,9 Suite [3] 2369:21 2372:15 2630:10 2684:23 term [23] 2427:10 2428:6 2530:4 2533:2 2534:1,2,8, 2656:17 2658:5,13 2662: 2373:8 Sy [1] 2429:7 2431:18 2452:24 2453:6 11,15,20,23,24 2535:1,7,8, 13 2664:1,2 sum [1] 2562:15 symmetry [1] 2657:14 2535:17 2544:11,12,21 17 2536:23,24 2537:4,5,24 therefore [10] 2390:9 2427: summarize [3] 2625:22 system [1] 2439:21 2545:25 2546:1,9 2627:4 2539:16 2540:14 2541:5, 17 2476:12 2512:1,12 2632:4 2633:16 systematic [3] 2538:6,10, 2639:19 2642:20,23 2644: 23,23,24 2542:3,5,12,14 2562:23 2563:11 2656:25 summary [1] 2535:13 11 25,25,25 2645:2 2647:3 2543:16 2548:5,7 2549:12 2665:16 2670:8 summer [1] 2672:2 T 2650:10 2658:6 2552:8,22 2553:1 2554:7 thereof [1] 2638:4 supplant [1] 2502:17 terminal [1] 2648:1 2555:21 2556:4,11 2559: they've [1] 2431:15 [2] supplier [3] 2639:16 2640: table 2515:12 2631:11 terminology [1] 2535:15 25 2560:20 2561:3,18 thicket [1] 2627:3 [1] 8 2648:8 tables 2515:7 TERMS [12] 2368:6 2503: 2562:17 2568:17 2575:25 thinking [10] 2417:6 2428: [1] suppliers [2] 2636:4 2642: tabulates 2393:20 20 2543:25 2547:4 2549:9 2578:16 2579:17 2580:4 5 2453:10,21 2507:3 2534: [1] 17 tail 2562:19 2551:13 2582:21,25 2631: 2581:9 2582:16 2583:11, 19 2551:12,13 2641:15 [1] supply [1] 2660:8 take-down 2387:12 11 2649:16 2660:20 2661: 18,24 2584:2,24 2586:25 2663:19 [1] supplying [2] 2383:1,2 talk-intensive 2476:7 21 2587:17 2588:6,11,12,17 thinks [1] 2379:11 [12] support [6] 2422:17 2425: talked 2385:14,17 terrestrial [22] 2497:25 2589:12,16 2598:16 2600: third [1] 2555:25 12 2500:7 2514:17 2616: 2390:17,21 2425:11 2503: 2543:3 2567:22,24,25 10 2601:11 2602:4,8 2603: third-party [5] 2535:18,20 11,16 12 2509:25 2515:21 2519: 2570:4,15 2571:1,10,22 13,14,24 2604:20,25 2605: 2536:3 2544:22 2550:12 Heritage Reporting Corporation (202) 628-4888 Sheet 23 substantial - third-party Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS THOMAS [1] 2373:5 tour [1] 2627:19 2532:23 2533:9 2590:25 2655:9,10 2667:5 2668:8 16 2645:6 though [17] 2393:17 2395: toward [1] 2649:22 2619:15 2623:10 2624:13 2671:3 unlike [2] 2455:25 2456:5 8 2397:17 2437:14,23 towards [8] 2377:24 2383: 2673:20 types [3] 2512:16 2635:13 unlikely [2] 2415:21 2416: 2457:5 2464:11 2466:3 6 2387:17 2420:15 2442: tricky [1] 2537:6 2662:12 20 2478:8 2498:15 2512:14 25 2461:2 2478:6 2539:18 tried [1] 2617:6 Typically [5] 2397:10 2417: Unlimited [7] 2377:25 2516:7 2518:18 2520:7 track [7] 2423:3 2453:7 trouble [3] 2551:9 2644:16 8 2421:8 2535:3 2543:6 2378:3 2501:13 2503:13 2559:14 2601:21 2658:19 2554:5 2568:14 2571:15 2668:16 U 2504:15 2510:11 2512:9 thousand [2] 2453:3 2660: 2612:15 2642:6 true [16] 2387:9 2435:2 unlock [2] 2470:3 2561:11 [3] 12 tracked [1] 2462:17 2441:20 2451:13,22 2455: U.S 2462:14 2475:8 unlocked [5] 2449:2 2470: thousands [2] 2451:9 tracking [1] 2457:17 20 2460:8,12 2466:3 2533: 2645:20 5 2561:12 2598:2 2622:2 [1] 2626:25 tracks [4] 2423:18 2556:1 4 2540:13 2579:13 2582: ugliness 2545:13 unpack [1] 2644:2 [1] threat [5] 2439:7 2651:19, 2612:13,24 20 2586:1 2616:21 2686:3 ultimate 2550:24 unprofitable [2] 2498:13, [3] 19,20 2658:10 trade [2] 2645:5,9 try [10] 2394:23 2455:5 ultimately 2518:25 13 threaten [1] 2652:7 Tragedy [3] 2626:15,18 2543:18 2545:14 2550:20 2613:21 2637:11 unreasonableness [1] [1] threatening [1] 2651:16 2627:5 2560:13 2563:24 2565:7 umbrella 2517:17 2470:21 [1] threatens [1] 2652:6 training [1] 2599:24 2666:6 2668:16 UMG 2369:8 unregulated [2] 2440:8,24 [3] three [9] 2399:18 2449:20, transaction [7] 2439:1 trying [19] 2422:10 2435:17 unaided 2397:3,10,14 until [4] 2503:10 2505:4 [3] 22 2572:16 2631:9 2634: 2535:19,20 2599:22 2600: 2445:6 2478:3 2503:16,22 unaware 2583:19 2584: 2509:14 2618:25 10,13 2657:2 2672:2 13,17,19 2507:20 2542:22 2544:1 10,14 unusual [1] 2518:14 [8] tie [1] 2462:18 transactions [2] 2602:17 2550:21 2567:4,23 2588: under 2384:18 2442:15 up [57] 2376:25 2377:20 tied [1] 2650:1 2606:10 16 2602:1 2650:24 2663: 2449:9 2547:17 2627:21 2378:6 2379:22,24 2380: tier [5] 2376:6 2430:1,15,23 transcript [2] 2373:11 23 2667:9,16,24 2635:1,15 2662:6 12 2381:7 2392:21 2393:6 [1] 2450:20 2686:4 Tucker [41] 2374:8 2375:5, underestimated 2670: 2398:16 2399:19 2400:3 tiers [3] 2444:13 2458:24, transcripts [1] 2529:8 8,14,20 2379:18 2429:4 22 2420:4 2421:1 2423:1 [1] 25 transform [1] 2639:25 2436:16 2438:5 2450:11, undergraduate 2625: 2433:6 2435:13,17,18 timing [1] 2658:14 transformed [1] 2458:3 15 2451:21 2452:8,16 24 2461:6 2462:11 2472:1 [1] tiny [1] 2565:11 transforming [1] 2576:1 2454:8 2457:7 2458:6 underlies 2633:10 2475:21 2502:20 2503:11 [8] title [1] 2462:13 translate [1] 2578:13 2459:4 2460:1,6,20 2461:8, underlying 2427:14 2506:7 2509:14,19 2514: titled [1] 2377:17 translating [1] 2579:9 18 2463:15 2470:9,16 2428:7 2437:17 2438:23 10 2520:16 2528:5 2532: today [10] 2374:12 2375:23 transmission [1] 2573:22 2478:22 2497:7 2501:20 2441:14,18 2614:22 2627: 23 2548:20 2550:18 2557: 2380:13 2458:23 2513:23, transmitted [1] 2572:10 2504:13 2505:17,23 2507: 5 2 2563:19 2565:21 2568: [2] 25 2530:16 2617:19 2631: treat [2] 2452:11 2656:3 15 2509:13 2510:25 2512: undermining 2508:22, 11 2569:16 2583:10 2601: 2,7 treated [2] 2423:21 2504:8 6 2517:24 2520:8 2631:21 25 10 2604:7 2607:3 2609:15, [21] today's [1] 2673:6 treatment [13] 2423:1,4,21, 2671:16 2684:3 understand 2381:21 16 2613:4 2614:12 2631:4 TODD [1] 2371:4 24 2424:6,11,12,12,20,21, Tucker's [4] 2480:16 2506: 2416:6 2436:15 2437:19 2642:25 2643:1 2645:6 together [4] 2433:21 2655: 22 2671:9 2672:3 13 2507:13 2510:20 2540:18 2549:2,12 2561:2, 2652:16 2653:23 2659:13 12,18 2666:22 tremendous [1] 2661:8 tuning [2] 2475:22 2476:12 17 2582:13 2598:24 2600: 2661:9 2663:22 2664:21 tomorrow [1] 2631:7 trend [2] 2427:18 2429:19 turn [17] 2381:17 2394:25 4 2601:24 2602:1 2603:15 update [1] 2529:7 took [1] 2535:6 Trends [20] 2377:17 2383: 2428:18,20 2431:17 2433: 2604:6 2605:21 2634:22, upgrade [1] 2513:16 top [25] 2393:14 2395:8 7 2384:11 2387:17 2427: 4 2450:6,7 2537:1 2542:10 23 2647:19 2657:21 upgrading [4] 2439:21 [1] 2397:4 2400:18 2446:7 15 2428:12,14 2435:22 2552:5 2553:14 2628:22 understandable 2531: 2442:13,13,25 2451:3 2453:3 2466:22 2436:1 2457:5,5 2460:24 2629:24 2653:6 2662:22 9 uploading [1] 2505:5 [12] 2481:7 2497:8,13 2498:18, 2463:16 2464:4 2465:17 2666:23 understanding 2386: upper [3] 2633:9 2654:11, 23,23 2499:1,2 2504:20 2477:10,13,15,17 2515:15 turned [3] 2530:3,6 2548: 2 2416:5 2418:7 2437:4 18 2518:5 2522:3 2559:7 TREPP [46] 2369:13 2528: 23 2442:10,15,19 2443:6 upsell [2] 2457:22 2458:11 2590:20 2619:10 2642:1 17,18 2529:16,18 2532:14, turning [1] 2421:21 2444:5,10 2578:17 2588:8 upselling [7] 2439:24 [1] 2643:21 2673:15 21 2533:7,17 2542:9 2552: turns [1] 2662:13 Understood 2559:17 2440:1 2442:10 2443:5,9, [2] topic [9] 2400:2 2422:10 3,4 2557:24 2558:16,17 two [34] 2376:12 2393:4 undertaken 2606:6 23 2444:7 2432:18 2438:17 2457:8 2559:20,21,22 2561:4,8,9, 2450:17,22 2451:5 2466:4 2622:8 upside [1] 2548:13 [4] 2473:1 2514:7 2545:4 16 2568:9 2569:13,15 2475:11 2502:6 2503:23 unhealthy 2428:1,3,4,6 upstream [6] 2636:16 [1] 2608:21 2575:24 2586:19 2587:6 2505:3,25,25 2510:5 2519: unilateral 2635:19 2648:13,18,22 2649:3 [2] topics [4] 2419:22 2420:3 2588:10 2589:4 2603:9 19 2520:5 2531:25 2532:3 unique 2457:1 2514:11 2651:8 [1] 2457:7 2631:6 2604:4,7,16 2606:25 2607: 2543:19 2544:4 2545:16, unit 2427:25 upward [2] 2634:12,13 [4] total [9] 2550:13 2557:9 2,5 2608:11 2609:8 2610:4 24 2555:19 2562:8 2566:3 UNITED 2368:1 2369:4 upwards [1] 2427:18 2564:24 2663:11,18,25 2611:24 2612:5 2617:22 2577:17 2581:7 2583:21 2668:25 2669:1 URBAN [1] 2373:5 [2] 2665:23,24 2666:7 2623:24,25 2684:10 2584:16 2632:11 2646:14, Universal 2369:7 2565: urged [1] 2563:21 totality [2] 2552:25 2562: Trial [23] 2379:24 2393:7, 17 2651:2 2654:3,10 19 urging [1] 2564:3 [1] 13 16,18 2398:4,12 2400:23 two-year [2] 2519:23,25 universities 2625:19 URL [3] 2505:24 2506:14, [4] totally [2] 2380:19 2389:18 2442:22 2446:12 2461:12 TX [1] 2370:19 University 2530:14 17 TOTH [4] 2380:22,25 2381: 2467:2 2481:12 2507:6 type [11] 2552:7 2558:13 2531:4,6 2625:14 usable [1] 2639:10 [3] 2,3 2522:8 2528:22 2529:7 2643:3,15 2645:14,25 unless 2536:10 2586: usage [3] 2386:6,12 2472: Heritage Reporting Corporation (202) 628-4888 Sheet 24 THOMAS - usage Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 14 verify [1] 2501:13 2383:23 2386:15,24 2388: website [1] 2479:21 2509:3,13 2511:25 2521: useful [4] 2456:10 2554:8 Veritext [3] 2380:24 2530: 22 2389:5,8 2415:23 2438: week [1] 2667:20 15 2522:4 2535:21 2537: 2555:22 2669:8 9 2584:1 2 2445:2 2449:19 2452:2, weighted [2] 2451:20 2657: 12 2543:10 2544:5,17 user [12] 2393:20 2395:4 version [4] 2509:22 2572: 14 2458:14 2459:24 2460: 1 2546:24 2556:24,25 2558: 2417:12,24 2419:7,11,13 10 2573:1,15 16 2461:12 2472:16 2473: Weil [3] 2371:10 2520:16 17,25 2559:8 2561:10 2423:9,18,18 2430:22,23 versus [8] 2419:17 2425: 3 2475:25 2501:16,23 2569:19 2576:15 2590:3,4,12,21 users [53] 2386:22 2389:3 19 2473:19 2474:18 2541: 2502:13 2503:14 2504:3 Weil's [1] 2428:18 2619:1,2,11 2623:6,11,21 2390:8 2391:7,12,19 2392: 19 2550:19 2568:2 2574: 2505:8 2506:2,20 2507:23 Welcome [4] 2520:16 2624:4,19 2626:25 2631: 4,19 2393:25 2394:4,7,9, 16 2508:4,7 2510:12 2511:5 2528:10 2610:10 2639:13 16,19,23 2632:2,3,19,20 12,15,15,17,18,20,21,21, viable [3] 2640:4 2644:10 2512:3 2520:11,12,20,22 well-publicized [1] 2515: 2633:3,5,8,14 2635:10,10 25 2395:1,11,13 2396:3 2652:12 2521:12,17 2684:8 1 2638:9 2642:1 2647:17 2415:13,15,21 2416:5,17 video [7] 2428:19,20 2450: wash [2] 2550:6 2551:1 well-suited [2] 2669:19 2651:9 2652:25 2654:11 2417:3 2418:6,10,21,25 6 2505:4,5 2512:23 2569: Washington [4] 2368:19 2671:7 2656:2,15,20 2657:24,25, 2419:17 2420:14,16 2421: 19 2369:22 2370:8 2530:19 western [1] 2417:18 25 2663:13 2665:7,9,10,10 7,8,23 2423:3,19,24,25 videos [2] 2505:6 2512:15 water [2] 2660:9,10 WETZEL [1] 2372:3 2667:11 2669:17,22 2671: 2424:12,21 2431:7 2439: view [15] 2376:3 2390:5,11 Watkins [1] 2372:13 whatever [6] 2538:2,20 16 2673:1,4,7,16 21 2442:13 2458:24 2585: 2443:14 2554:7 2555:23 way [43] 2393:12 2394:11, 2543:9 2550:11 2560:15 Willig [12] 2539:23 2626:14 18 2622:23 2556:3 2557:18 2560:19 13 2416:21 2427:2 2433: 2565:7 2631:16,20,24 2632:10 uses [1] 2543:21 2561:20 2570:11 2577:16 20 2434:9 2435:25 2442:3 Wheeler [2] 2534:12,18 2636:1,7 2653:13 2659:21 using [28] 2393:1 2397:18 2578:18 2657:4 2659:22 2452:7 2455:18 2456:5,11 whereas [2] 2500:10 2658: 2669:12 2670:3 2427:10,12 2431:11 2456: viewable [1] 2461:13 2463:6 2465:6 2475:18 4 Willig's [6] 2539:20 2638:3 19 2458:19 2464:5,9,23 viewed [2] 2443:24 2449:8 2506:23 2507:12 2551:1 Whereupon [11] 2375:13 2655:22 2657:21 2659:7 2475:21 2502:7 2503:4 vigorously [1] 2565:17 2554:23 2565:6,12 2568: 2400:23 2446:12 2467:2 2662:1 2544:2 2553:10 2631:18 violated [1] 2641:2 22 2578:24 2579:12 2580: 2481:12 2522:8 2528:12 willing [17] 2378:18 2429: 2638:19 2646:10,24 2647: violation [1] 2640:15 10,17 2635:22,24 2637:9 2590:25 2619:15 2624:21 17 2438:10,10 2439:1 3,20 2648:4 2657:14 2662: virtual [9] 2400:11 2445:17 2638:17 2640:2 2646:24 2673:20 2471:8 2473:13 2474:2,6 9 2669:14 2670:4,20,23 2466:14 2480:25 2521:19, 2654:23 2655:8 2659:11 whether [48] 2383:21 2386: 2631:11 2634:24,25 2635: usual [1] 2424:4 21 2561:11 2619:3 2673:7 2660:16 2661:21 2662:14 12 2388:12 2389:3 2396:7 3,7 2656:21 2660:13,15 utilize [1] 2504:4 virtue [2] 2572:24 2573:13 2663:18,24 2669:16 2671: 2438:12 2442:12 2444:20 willingness [6] 2426:25 utilized [2] 2502:15 2539: visuals [1] 2559:16 18 2450:21 2451:14,23 2452: 2427:3 2441:14,18 2632: 13 voice [1] 2429:9 ways [5] 2431:15 2453:10 10 2456:15 2457:22 2458: 17 2654:6 V VOLUME [1] 2368:23 2457:18 2567:1 2633:20 11 2478:12 2498:12,13 WITHDRAWN [2] 2684:22 vs [1] 2377:17 weak [1] 2541:20 2534:4 2539:16 2570:10, 2685:1 [1] VA 2373:9 vulnerable [1] 2395:1 WEB [20] 2368:10 2457:11 22 2577:11 2581:4,14 within [4] 2429:22 2549:11 vague [6] 2452:2,14 2459: W 2477:22 2480:9,10 2501:4, 2582:19,25 2587:4 2599: 2606:11 2626:1 24 2472:16 2475:25 2476: 6,7,20 2528:24 2532:3 25 2601:24 2602:23 2603: without [20] 2386:7 2397:8 [4] 2 wait 2503:10 2505:4 2563:19 2633:21 2637:7, 7 2604:17 2605:4 2606:13 2502:18 2507:6 2532:19 [3] valid 2509:9 2512:1 2509:14 2656:21 11,22 2638:13 2642:19 2607:8,20 2608:1,4 2613: 2533:12 2550:10 2556:1 [5] 2669:15 Waldfogel 2438:16 2647:13 2652:16 22 2618:23 2622:9 2637:9 2584:23 2588:8 2589:8 [1] validity 2508:22 2459:17 2462:3 2463:2,12 webcast [2] 2498:2 2637:6 2640:25 2641:1 2650:24 2617:8 2628:11 2629:8 [1] [1] valuation 2539:18 Waldfogel's 2437:23 webcaster [21] 2473:5 2656:5 2661:3 2630:7 2646:10 2648:4,6 [9] [4] value 2428:9 2456:20 walk 2543:14 2570:9 2632:16 2635:9 2651:15, White [1] 2627:20 2652:11 2658:23 2474:17,20 2539:20 2587: 2653:14 2663:10 22 2652:5,6,11 2654:4 who's [3] 2547:15 2555:10 WITNESS [99] 2375:9,15 [1] 2 2588:6 2657:24 2667:22 walked 2602:14 2655:2 2662:8,11 2663:4,9, 2575:1 2379:8,10,14 2380:7,14 [1] [1] valued 2566:9 walking 2556:2 12 2664:12,14 2665:19 whole [14] 2394:5 2428:24 2381:8,14 2383:24 2384:6 [1] [9] vanishes 2546:9 wanted 2374:11,17 2667:6 2668:9 2671:5 2429:12 2439:21 2443:3 2386:16 2387:2,5,6 2389: [4] variable 2424:3 2664:8 2379:7 2426:24 2453:21 webcaster's [1] 2654:6 2458:4 2511:20 2548:25 14,22 2399:15 2416:8 2665:5 2667:2 2507:24 2560:11,16 2672: webcasters [20] 2440:9 2568:3 2577:11 2604:19 2419:25 2420:22 2421:2 [2] variables 2664:10 2666: 17 2441:1 2450:25 2451:9 2610:6 2622:23 2639:11 2438:3 2445:3 2449:21,23 [2] 4 wanting 2563:6 2602: 2455:22 2471:14 2473:1 wide [1] 2438:18 2450:1 2452:17 2458:17 [2] variation 2424:11,21 14 2474:1,6 2480:12 2498:2 widely [1] 2426:12 2461:15 2472:19 2473:4,9 [6] [20] variety 2393:21 2395: Warner 2369:8 2415: 2630:19,23 2633:1,2 2635: widespread [1] 2457:6 2476:3 2503:16 2506:7 14,16,17 2396:4 2475:4 22 2416:18,22 2565:20 11 2636:20 2649:5 2662: Wildly [1] 2377:3 2508:9,12,13,14 2520:13 [13] various 2376:10 2456: 2637:14 2663:13,17,20 12 2668:4 will [101] 2374:12,15 2379: 2528:9 2534:8 2539:8,22 18,22 2499:10 2538:20 2664:1,2,5,9 2665:6,16 webcasting [15] 2429:16 23 2384:2,5 2397:18 2400: 2540:24 2541:25 2542:5,8 2552:13,25 2598:20 2627: 2666:12,18 2667:14 2668: 2430:16 2440:10 2441:2 9,10,19 2426:8 2428:18 2549:6,19 2550:15 2551:3, 2 2655:3 2661:16 2665:7 19,20 2442:17 2443:17 2444:2 2432:15 2441:18 2445:9, 16,19 2552:2 2564:14 [3] 2667:18 Warner's 2665:15,24 2449:11 2451:16,25 2456: 11,16,24 2446:8 2449:24, 2566:15 2568:6,8 2574:22, [1] vary 2500:2 2666:14 16 2477:11 2497:20 2498: 24 2452:20 2466:10,12,14, 24 2586:20,24 2587:4,14 [1] [47] venture 2641:8 WARREN 2369:15 9 2630:23 23 2470:2 2480:19,23,25 2588:12 2589:5,16 2604:8, [1] verified 2509:1 2374:10,21,24 2379:1,6,7 Webinar [2] 2369:2 2558:4 2481:8 2497:9 2501:11 18,25 2608:18 2617:20,24 Heritage Reporting Corporation (202) 628-4888 Sheet 25 usage - WITNESS Determination of Rates and Terms (Web V) Docket No. 19-CRB-0005-WR (2021-2025) August 18, 2020 OPEN SESSIONS 2618:2,23,25 2623:22 14 2655:23 2656:11 2667: 2624:8,11,17 2627:24 23 2670:13,14 2672:20 2636:23 2637:19 2638:16 wrote [3] 2583:17 2586:9 2639:5,13 2640:23 2641: 2663:5 21 2644:24 2647:22 2656: Y 8,11 2658:13 2659:10 [9] 2660:3 2661:6 2670:11 year 2436:17 2437:13 witness' [6] 2388:23 2389: 2515:10 2531:15 2556:9,9 8 2415:25 2510:17 2589: 2574:5,8 2628:3 [7] 11 2612:2 years 2386:1,7 2477:5 witnesses [2] 2384:2 2569: 2519:19 2520:5 2615:10 6 2628:3 [4] won [1] 2642:3 yes-or-no 2379:9,13 wonder [2] 2529:23 2531:7 2458:9 2618:22 [1] wonderful [1] 2459:20 yes/no 2378:23 [27] word [9] 2390:13,22 2391: yesterday 2376:4 3 2398:2 2444:24 2508:22 2385:14 2388:1,10 2423:1 2584:23 2651:20 2652:8 2425:9 2426:16,23 2429:9, words [3] 2383:25 2573:16 10 2432:23 2433:5,11,23 2640:1 2434:21,23 2435:3 2436:7 work [22] 2400:22 2446:11 2437:10 2438:17 2441:25 2459:17 2467:1 2506:22 2444:18,24 2454:7,15 2522:6 2559:11 2565:7,18 2459:4 2515:22 [1] 2567:16,18 2570:8 2577: yield 2568:25 [5] 16 2590:24 2626:4,21 York 2369:20 2370:24, 2627:13 2655:14 2666:18 24 2371:12,12 [1] 2668:19 2669:13 2673:18 younger 2575:2 [4] worked [8] 2530:21,25 yourself 2473:17 2474: 2542:1 2615:2,12,15 2626: 11 2599:8,14 23 2627:14 Z working [2] 2374:12 2499: zero [13] 2425:6,7,9,20 16 2426:2,4,6,9 2504:19 2509: [3] 2385:16 2499:22 works 23 2543:7,9 2563:10 2653:15 Zoom [11] 2369:2 2400:14 [12] 2385:7 2391:16 world 2446:3 2466:18 2481:3 2424:16 2564:22 2570:11, 2521:24 2530:9 2559:3 18 2585:5 2586:1 2611:10 2590:16 2619:6 2673:11 2649:6 2668:13,14 worried [2] 2418:3 2459:3 worries [1] 2458:18 worse [3] 2551:11 2564:25 2656:20 worth [1] 2660:9 would've [1] 2473:4 wrap [1] 2550:18 write [2] 2567:12 2601:13 written [63] 2382:18,20 2395:9 2398:5 2430:6 2431:5 2435:14,15 2440: 13 2450:2,16 2459:11,12, 23 2460:8,9,13,21 2461:7 2462:3 2463:17 2464:4,24 2465:2 2499:3,5 2511:11, 13 2513:4 2530:4 2533:2, 25 2536:23 2539:15 2541: 22,23 2561:3,18 2568:17 2578:16 2579:16,21 2582: 16 2583:11,18 2604:20 2616:22 2622:10 2626:10 2627:7,10 2628:14,20 2629:14,22 2645:19 2653: Heritage Reporting Corporation (202) 628-4888 Sheet 26 WITNESS - Zoom