4123

Before the COPYRIGHT OFFICE LIBRARY OF CONGRESS Washington, D.C.

In the matter of: Docket No. D stribution of the 2001-8 CARP CD 98 — 99

1998 and 1999 Cable Il

Royalty Funds II

Room LM-414 Library of Congress First and Independence Ave. S.E. Washington, D.C. 20540

Monday, May 19, 2003

The above-entitled matter came on for hearing, pursuant to notice, at 9:30 a.m.

BEFORE:

THE HONORABLE CURTIS E. Von KRAK Chairman THE HONORABLE JEFFREY S. GULIN Arbitrator THE HONORABLE MICHAEL D. YOUNG Arbitrator

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APPEARANCES:

On Behalf of the Pro ram Su liers:

GREGORY OLANIRAN, ESQ ROBERT L. ESKAY, ESQ SARAH K. JOHNSON, ESQ MICHAEL E. TUCCI, ESQ Stinson Morrison Hecker, LLP 1150 18th Street, N.W. Suite 800 Washington, D.C. 20036-3816 (202) 785-9100

On Behalf of the Joint S orts Claimants: Counsel for the Office of the Commissioner of Baseball ROBERT ALAN GARRETT, ESQ JAMES COOPER, ESQ MICHELE T. DUNLOP, ESQ RONALD A. SCHECHTER, ESQ JULE SIGALL, ESQ CHRISTOPHER WINTERS, ESQ MICHELE WOODS, ESQ Arnold R Porter 555 Twelfth Street, N.W. Washington, D.C. 20004-1206

THOMAS J. OSTERTAG Senior Vice President 6 General Counsel Office of the Commissioner of Baseball 245 Park Avenue New York, New York 10167 Counsel for the National Basketball Association, National Football League, and National Hockey League PHILIP R. HOCHBERG, ESQ PIPER RUDNICK, ESQ Verner, Liipfert, Bernhard, McPherson & Hand 901 Fifteenth Street, N.W. Washington, D.C. 20005

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On Behalf of the Joint Svorts Claimants: (cont.) Counsel for the National Collegiate Athletic Association RITCHIE THOMAS, ESQ

JUDI TH JURIN SEMO I ESQ Squire, Sanders 8 Dempsey, LLP 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004

On Behalf of the Public Television Claimants:

TIMOTHY C. HESTER, ESQ RONALD G. DOVE, ESQ

RUSSELL JESSE I ESQ Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, D.C., 20044-7566

PAUL GRECO, ESQ Public Broadcasting Service 1320 Braddock Place Alexandria, Virginia 22314

On Behalf of the American Societv of Comoosers. Authors and Publishers:

I. FRED KOENIGSBERG, ESQ CAROL A. WITSCHEL, ESQ White & Case 1155 Avenue of the Americas New York, New York 10036-2787

JAMES M. McGIVERN, ESQ SAMUEL MOSENKIS, ESQ ASCAP One Lincoln Plaza New York, New York 10023

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On Behalf of BMI:

MICHAEL J. REMINGTON, ESQ ADAM L. BREA, ESQ JEFFREY J. LOPEZ, ESQ PHILIP J. MAUSE, ESQ Drinker, Biddle 6 Reath, LLP 1500 K Street, N.W. Suite 1100 Washington, D.C. 20005

MARVIN J. BERENSON, ESQ JOSEPH J. DiMONA, ESQ MARC D. OSTROW, ESQ Broadcast Music, Inc. 320 West 57th Street, New York, New York 10019

On Behalf of SESAC Inc:

JOHN C. BEITER, ESQ Loeb 6 Loeb 45 Music Square West Nashville, Tennessee 37203

I'ATRICK COLLINS, ESQ SESAC, Inc. 55 Music Square East Nashville, Tennessee 37023

On Behalf of National Public Radio:

NIKI KUCKES, ESQ Baker Botts LLP The Warner 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2400

NEAL A. JACKSON, ESQ GREGORY LEWIS National Public Radio 635 Massachusetts Avenue, N.W. Washington, D.C. 20001

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On Behalf of the Canadian Claimants Grouo:

L. KENDALL SATTERFIELD, ESQ RICHARD M. VOLIN, ESQ Finkelstein, Thompson 6 Loughran 1050 30th Street, N.W. Washington, D.C. 20007 (202) 337-8000

On Behalf of the National Association of Broadcasters:

JOHN I. STEWART, ESQ PARUL DESAI, ESQ KAREN C. HERMAN, ESQ VALERIE HINKO, ESQ MICHAEL LAZARUS, ESQ Crowell & Moring 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 624-2926

HENRY L. BAUMANN, ESQ BART STRINGHAM, ESQ National Association of Broadcasters 1771 N Street, N.W. Washington, D.C. 20036 Counsel For Devotional Claimants On Behalf of the Devotional Claimants:

FRANK KOSZORUS, ESQ Collier Shannon Rill & Scott 3050 K Street, N.W. Washington, D.C. 20037

JAMES CANNING, ESQ Our Own Performance Society 400 2nd Avenue, Ste., 22C New York, New York 20007

RAUL GALAZ, ESQ Independent Producers Group 2318 Sawgrass Ridge San Antonio, Texas 78258

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On Behalf of Christian BroadcastincI Network, Inc.: and the Devotional Claimants:

BARRY H. GOTTFRIED, ESQ CLIFFORD M. HARRINGTON, ESQ ShawPittman 2300 N Street, N.W. Washington, D.C. 20037

On Behalf of Coral Ridae Ministries Media, Inc.; Oral Roberts Evancrelistic Association:

GEORGE R GRANGE I I i ESQ KENNETH E. LIU, ESQ Gammon & Grange, P.C. 8280 Greensboro Drive Seventh Floor McLean, Virginia 22102

On Behalf of KNLJ (New Life Evangelistic Center, Inc. ):

JOHN H MIDLEN JR i ESQ Midlen Law Center 7618 Lynn Chevy Chase, Maryland 20815

On Behalf of the Home Shovvincr Network. Inc.; Indeoendent Producers Grouo; Home Shoooina en Esoanol and AST LLC; and Crvstal Cathedral Ministries. Inc.:

ARNOLD P. LUTZKER, ESQ CARL H SETTLEMEYER i ESQ Lutzker & Lutzker 1000 Vermont Avenue, N.W. Washington, D.C. 20005

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I-N-D-E-X

WITNESS DIRECT CROSS REDIRECT RECROSS

Jeffrey Lyon By Ns. Witshel 4135 By Nr. Garrett 4186 By Nr. Jesse 4219 Frank Krupit By Nr. Mause 4231 By Mr. Stewart 4288 By Mr. Olaniran 4370

E-X-H-I-B-I-T-S

Exhibit No. Description Nark Reed

NAB 98-99

23-X BMI Website Document 4309 4314

JSC

32-X Sports Telecasts 4334 4342 33-X Cue Sheets 4344 4353

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P-R-0-C-E-E-D-I-N-G-S (9:37 a.m.)

JUDGE von KANN: Good morning, everyone.

Come to a nice sunny Monday. Do we have the exhibit list from everybody maybe updated or not? I'm seeing

some blank expressions.

Well, why don't you try to get us tomorrow, if you can. Bring everybody up to date. We'e trying to do that the Monday of each week. Some

10 parties. Okay. Thank you. Thank you. Yes?

MR. GARRETT: We do have some additional copies of the binder that I had given you last week, the one that had the various items in order. Would you like that'?

JUDGE von KANN: Yes, that would be great.

17 For the other members of the panel, that's good.

18 MR. GARRETT: Here are the two additional

19 ones. It's identical to the one that I had given you

20 last week. The one difference is that the first page

21 we noticed on yours there was a little sticky thing 22 that had to pick it up.

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JUDGE von ~: A sticky thing. Okay.

MR. GARRETT: This is unsticky.

JUDGE von KANN: Unsticky. And while we'e sort of on the subject of settlements, I think it might be good for the panel to issue an order just

confirming that we'l have a hearing 2:00 p.m. on May

29, as we discussed, concerning how the settlements

with NPR and the Devotional Claimants should be received into the record.

10 And I will issue that today so that they will have notice of it and will indicate that if all

12 parties reach an agreement on that matter before the

13 hearing date, then they needn't come. So we'l see if

that results in an agreement or whether we have to

15 hear everybody out.

16 The only other thing I guess seems

17 appropriate on a music day, I have tickets for the

18 opera tonight which starts at 7:00. So it would be

19 helpful to me if we don't go pst 6:00 tonight. I

20 don't know what the schedule is going to be, but if

21 it's possible to conclude before that, it would be

22 great.

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Okay. Yes, Mr. Dove?

MR. DOVE: Your Honor, I would like to briefly address the panel on a point raised by Mr. Garrett on Friday relating to the termination of the music share.

JUDGE von KANN: Okay.

MR. DOVE: Mr. Garrett made it clear on Friday that it is the position of the Joint Sports Claimants to rapidly take the music award off the top.

10 The panel should essentially determine separate music awards for each of the claimant categories.

Upon refection of the weekend and after

13 rereading the prior decisions of the CRT and the CARP

14 on this point, Public Television Claimants are

15 convinced that this proposal is a dramatic departure

16 from past precedent, is unfair to the parties that

17 have arrived on that precedent, would significantly

18 increase the cost and complexity of this proceeding.

19 Every single proceeding in which an award

20 has been published, 1978, '79, '80, '83, '89, '90,

21 '91, and '92, the music share has been taken off the

22 top. In no cable case that I am aware of have the

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parties litigated individual music shares. And so the Public Television Claimants, at least, relied on this 20-year history and past precedent in this filing their direct case in this case.

We believe it is unfair now in the middle of these proceedings to part from this long-established precedent and to essentially force the parties within the severe time constraints of the rebuttal phase to litigate what would essentially be

10 six separate Phase II, miniature Phase II proceedings within tbe context of this larger Phase I proceeding.

12 So we would just simply ask for some sort

13 of guidance from the panel as soon as possible so that

we can adequately prepare our case because we really

15 feel this puts us in a significant bind given our

16 reliance on past precedent.

17 Thank you.

18 JUDGE von KANM: I don't think we want to

19 get too deeply at the moment into an argument on this 20 subject, but maybe tbe panel can discuss it a little

21 bit and we can get back to you shortly with any

22 reactions we have.

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Obviously, for one thing, this is something that can be addressed in the proposed findings and conclusions, but, of course, your point

is if you need to gather evidence on. it for the rebuttal phase, you need to get going.

So let us give that a little consideration. I think they have not had a chance to

go back and look at whether the parties said anything about this in their direct case cover memos.

10 I don', frankly, recall it one way or the other. Each of the parties put in a brief statement

12 of position, mostly indicating what you were claiming.

13 I don't really recall whether any of those memos addressed this point.

15 And so let the panel discuss it a little

16 bit. I think we see the issue. And we'l try to get

17 back to you as soon as we can.

18 Anything else before we begin?

19 (No response.)

20 JUDGE von HA5K: Okay. Ms. Witschel?

21 MS. WITSCHEL: Thank you. The Music

22 Claimants call Jeffrey Lyons.

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THE REPORTER: Mr. Lyons, raise your right arm, please. Whereupon,

JEFFREY LYONS

was called as a witness by counsel for the Music Claimants and, having been first duly sworn, was examined and testified as follows:

THE REPORTER: Thank you.

MS. WITSCHEL: Good morning, Mr. Lyons.

10 DIRECT EXAMINATION

BY MS. WITSCHEL:

12 Q Would you state your name and your

13 professional affiliation for the record? I'm Jeffrey Lyons. I'm the film and

15 theatre critic of WNBC in New York and the film critic

for KNBC in Los Angeles.

17 Q Would you briefly describe for us your

18 education, work experience?

19 I was born in New York. My father was

20 Leonard Lyons, the most renowned Broadway columnist of

21 his era. I grew up in a show business and journalism

22 family. My godfather was a playwright. My brother'

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godfather was Clifford Odetts, another great playwright. I went to journalism school, University

of Pennsylvania, went to Syracuse Law School, studied

acting at Lee Strasburg.

And thinking of judging the plans for the evening, I spent three seasons signing in the boys'horus

at the Metropolitan Opera before my voice

changed. And I was a Spanish-speaking truant officer.

And then in 1970, I became the film critic at WPIX TV

10 in New York and two years later took over as the Broadway critic as well.

12 And over the years, I'e worked for ABC

13 television, for CNBC, for MS-NBC, for PBS.

co-hosted sneak previews on PBS for 12 seasons, the

15 most watched movie review show in the country. I also occasionally do pro bono work doing

17 Spanish and sometimes English play by play for the

18 Boston Red Sox. And I'e worked at TV stations in

19 Hartford and Baltimore and am open to any other jobs,

20 too, in that field.

21 JUDGE YOUNG: But you don't practice law?

22 THE WITNESS: No, I do not. No. Law

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school was great training. My father went to law

school as a deputy attorney general of New York State,

perhaps honorary but a card-carrying one. My

brother's godfather was Justice William O. Douglas.

He's named after him. So we have all the bases covered here. I'e also written several books. I wrote a book called "101 Great Movies for Kids." And I'e

written two baseball trivia books. A third one we

10 hoes will be published next March, in time for the

next baseball season. The books are called "Out of

12 Left Field" and "Curve Balls and Screwballs,"

13 published by Random House. And I'e lectured on baseball here at the

15 Smithsonian and at the Baseball Hall of Fame. And,

16 you know, that's basically where I am right now.

17 BY MS. WITSCHEL:

18 Q Is that all?

19 Actually, that's not all.

20 (Laughter.)

21 MS. WITSCHEL: That's good enough.

22 THE WITNESS: We'e talking about

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qualifications now. I'e seen about 30,000 movies and about 1,000 Broadway shows and have reviewed 15 or 16

thousand movies and shows and appear 5 or 6 times a

week on NBC in New York and 2 or 3 times, to my knowledge, although I don't get to see them all the

time, on KNBC in Los Angeles.

So I'e done 20,000 television reviews

over tbe various stations in 33 years so far.

BY MS. WITSCHEL:

10 Q Would you tell us the purpose of your testimony for this proceeding?

12 The purpose of my testimony for this

13 proceeding is to show how music has changed, how it is

14 now a vital part of the equation of movies, of our

15 consciousness of movies, of the marketing of movies,

16 of the expansion of the whole equation of selling of

17 movies, how it has reached out into record stores,

18 into CD sales, into DVD sales, how without music,

19 without tbe prevalent element of music, movies would

20 not be as much in our conscience as it is today.

21 You walk into a record store today or HMV

22 store or something like that. And you'l see movie

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displays, soundtracks. That never was the case years ago. That is an equation that has to be preserved. Music is as much a part of the selling of movies as any other element; in fact, more so than

ever before. That's why I'm here. I'm also here representing the three performing rights

organizations: SESAC, ASCAP, and BMI.

Q Would you tell us just briefly what are

some of the elements that make for a successful movie?

10 Well, they'e all too rare, of course. I will say the night before I became a critic, Ruth

12 Gordon said to me, "Think twice before you knock

13 somebody else's work." I always have.

The elements that make a movie in broad

15 terms are good casting, a good story to tell, good

16 actors, an intelligent director, something that' unique or something that if not unique is an homage to

18 something worth redoing in another forum.

19 Each movie is different. Each movie is a

20 challenge and a good score and something that makes

21 you realize that you have given money and time and two

22 hours later, hopefully no more than two hours or so,

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you are a better person for having seen that movie or you have been entertained or you can forget your troubles. Each movie is different, but those are the basic broad elements of what goes into a good movie.

Q How does the film industry recognize the importance of music? Well, think of all the Academy Awards.

When. I was in fifth grade, we had a boy named Marvin

Hamlisch in our class. Whatever happened to him? He

10 won three Oscars in one night. But what's important

about that is it's not just for one work. He won it

12 for two different movies.

13 He won the Oscar for adaptive score for

The Sting, but he also wrote The Way We Were. They

15 give Oscars to composers. And that shows that music

16 is a vital, important part of movies. It also goes over into television, too.

18 Music is so important. There's only one show on

19 television that doesn't have music, and that is 60

20 Minutes. Every other show just about has music.

21 Music is an important part of television and of

22 movies .

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If I could direct you to your testimony

over at pages 3 and 4, you talked a little bit about the different ways that music is used in movies.

Would you just briefly summarize that? How is music used in different ways in movies? It depends on the film, of course. But music can set a tone. Music can advance a story.

When no dialogue is spoken, music can alert the viewer, hopefully not too much, hopefully not giving

10 it away, but alert the viewer that something important is happening.

12 I'l give you a television example, -- it 13 applies to movies as well -- Law and Order, which is

on at any given hour of the day. When somebody says something important or critical, the music begins to

play. And the trick is to do it in a subtle way so as

17 you'e not leading the viewer along, but you'e

18 showing them that this is important.

19 Music can also set a tone. Music can also

20 put you in a particular mood, particularly when it'

21 used at opening credits. Music can show you who the

22 good guy is, who the bad guy is.

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We all grew up watching Peter and the

Wolf. You knew when the hunters were coming. You

heard us. You can picture that music in your mind

right now. That is what the role of music is. It is another character in the movie. In some movies, it is more of a character than in others. In some movies, it is background. It is ambiance. It can set a time. It can set a place. It can set a mood.

10 When you hear the music for A Man and a

Woman, to use a farm film, for example, you know

12 you'e in for a beautiful romance or a romance movie.

13 But when you hear music from a certain type of

adventure movie, you know to saddle up and ride along.

15 So music sets the mood. It sets the tone.

16 It lets you know basically what you'e in for.

17 Can you give us some examples of theme music used in movies?

19 Well, for instance, Raiders of the Lost

20 Ark, MASH, Jaws, movies we'e going to see soon,

21 Rocky, The Godfather. You say those names to anybody

22 who has gone to a movie or turned on TV and seen a

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movie on TV, and a few bars of that may come to their mind.

So music can be the signatory, often is the signature for a movie. Whether it is bottled music or whether it is newly created music, when it is done well, it is something that enlightens us and something that adds quality to our lives.

So music is another character in the

movie. That's why they give Oscars for music. I wish

10 they wouldn't perform all of the songs in their

entirety at each Oscar performance, but that's why

12 they do that, because it is a vital, vital part of the

13 equation of movies and television.

Q What is Music Claimants exhibit 8 and 9?

15 Music Claimants exhibit 8 and 9. Here it

16 is. Okay. Can I show it now or explain it? Eight

17 and 9 is interesting because the movie that we'e

18 going to see is Jaws, but we are going to see a scene

19 twice.

20 Jaws is a perfect example of a movie where

21 the music lets you know that death is out there in the

22 water. And it is so pervasive in our lives that how

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many times have you been in a conversation when something ominous is coming around the corner and somebody will say, "Duh duh duh duh duh duh"? It's a simple song, but it's a work of genius because it sets the mood. It lets you know that, uh-oh, danger is awaiting there.

And what was amazing was I remember my first reaction when I saw Jaws the first time. I never heard the music before. I try not to listen to

10 a movie buzz before a movie opens.

What's up there on the screen when I'm in

12 the theatre for the first time is what I want to see.

13 And I remember the moment I heard that music, it

14 scared me. And I told Steven Spielberg, "I'e never

15 been in the ocean since Jaws," true story. Fish go

16 where they go. I go in the pool.

17 Music is -- and it may not have been that

18 way were it not for that music. So should we show the first -- let's look at a scene from Jaws without the 20 music. You will see. It will be the -- it will be 21 somebody swimming. That's about it. Where is this?

22 Let's see. This looks like home movies,

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doesn't it'? Early on we don't know what has happened,

but this is something we all know about. We have seen this movie. But without the music, it's -- remember,

not much dialogue is being spoken, certainly not here.

And it looks like outtakes. It looks like rough footage. But that's exactly what was in the movie without the music.

And you don't know that that is a shark's eye view because you don't hear the music. It is like

10 an underwater cameraman taking home movies. (Whereupon, a videotape was played.)

THE WITNESS: But now let's listen to it

13 with sound. This comes as no surprise to anybody, but

you know that this conveys movement. It conveys

15 death. It conveys a pending due. And it conveys the

16 helplessness of anybody up there.

17 (Whereupon, a videotape was played.)

18 THE WITNESS: Getting faster and closer.

19 You can see the teeth. You can see the jaws. That'

20 why it's a work of genius.

And anybody who swims in the ocean now I

22 think is nuts. I wouldn't have held that way had it

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not been for the music, a critical element.

BY MS. WITSCHEL:

Q You mentioned the use of music in connection with character identification. Right.

Q What is Music Claimants exhibit 10?

Music Claimants exhibit 10, which we will see in a minute, is a little picture called the Raiders of the Lost Ark. I remember seeing that movie

10 and going -- my wife did not see it that night.

And I went home. And I had a reaction

12 I'e never had in any kind of picture like that

13 before. She didn't mind. I retold her every single scene scene by scene. I remembered every single scene of that movie.

16 And along the way, I remember humming the

17 tune to her, which has now become so familiar. And

18 that was another element of the movie. It identifies

19 the hero. It identifies the fact that this was a 20 throwback to the 1930s movie serials, which today seem

21 delightfully corny.

22 But Steven Spielberg brilliantly meshed

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the music with the action and the visuals to make an

experience that made you think, "Oh, my gosh. This is something totally new. I have never seen an adventure like this." Without the music, that would not have been possible. Let's look at a scene from the -- you know what music is coming, don't you? (Whereupon, a videotape was played.)

THE WITNESS: What the music is saying is

10 obviously this is the hero. This is the old-fashioned

good guy hero that was so prevalent when our parents

12 went to see serials or grandparents went to see

13 serials every week in the theatres in the 1930s and

14 '40s.

15 Now, I will tell you that when you'e

16 walking down the street, I often think of movie

17 themes. I think of this, and the action of the film

18 comes to mind in my head. Without music, that would

19 not be possible because the music is the character

20 that I can carry with me.

21 Shall we go on to the next one?

MS. WITSCHEL: Yes.

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BY MS. WITSCHEL:

Q What is Music Claimants exhibit 11?

Now, Music Claimants exhibit 11, our

exhibit 11, is interesting because it shows something very different. It shows something -- it shows the use of music in a subtle form of way.

You remember the movie MASH. It was in that movie very, very complex. It wasn't good versus evil. It was cynicism. It was irony more than

10 anything else. What are these doctors doing in the middle of a war trying to heal people when they'e

12 endorsing something that has them wounded?

And the theme song of the movie, "Suicide is Painless," when it's used in this scene is perfect because it shows what he is doing is foolish, he is not going to really do it, and the way -- what you'e 17 going to see what they'e saying to John Shuck in the

18 coffin is, "Well, we know you'e not going to do it,

19 but enjoy the moment anyway."

20 And the song is perfect. It's not only a

21 theme song. It's the way it's performed.

22 (Whereupon, a videotape was played.)

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THE WITNESS: Setting the tone very, very

subtly. And we see the performer, which is another chance that Robert Altman took. And now the altercation begins to build. (Whereupon, a videotape was played.)

THE WITNESS: Now, if you will notice, the music is still -- it's not background music anymore. If they'e all going to say something -- but it is

still as loud as the dialogue. Why? Because it' 10 just as important as the dialogue of the actors, such as the dialogue is.

12 What is the most important element in

13 this? The music. (Whereupon, a videotape was played.)

15 THE WITNESS: No, that music, it's ironic

16 again the irony, that that became the theme song for

17 the movie and also for the popular TV series because

18 that was not necessarily the prevalent mood of the

19 movie. The prevalent mood of the movie was these two

20 slick doctors who go off to Tokyo to perform

21 operations and all the hijinx that goes on.

22 But this moment in the movie was so

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important to give some dimension to these actors. And they had to pick the right way to proclaim that and

the right way to demonstrate that. And that was through that particular song.

That's why it was a great moment in what is still, unfortunately for Robert Altman, his best

BY MS. WITSCHHL:

Q Now, you also mentioned the use of music

10 to set a time or a place. Can you give us an example of that?

12 Well, Gone with the Wind, for example, a

13 big, gorgeous score, a big, gorgeous bit of music that

14 has become a part of us. Casablanca is another

15 example. I mean, one song has become so famous in

16 what is generally regarded as one of the greatest

17 films of all time. You only think of it because of

18 one song.

19 Music sets mood, too. Music -- if you'e

20 going to hear music of the Charleston, then you know

21 you'e in the '20s. If you'e going to hear jazz, you

22 know you'e in the '30s and '40s. Music sets a time

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and place. If you -- in the old days when big movie musicals were made set in Egypt, they didn't film it in. Egypt. They filmed it in Burbank. But they would play exotic-sounding music to set the time and place.

Now, they go to those locations, and they will use more authentic music. They'l use music

written by people there. But in the great films of Hollywood, they were all done by a handful of

10 composers who were able to adapt any mood of the film

their music to any mood of the film.

12 Q How is the music used in the film Forrest

13 Gump?

Nell, Forrest Gump, we'e all seen it.

15 Forrest Gump is a movie that covers several decades.

16 And it shows the evolution of time. It also was -- I

17 think -- I believe they made the decision to use the

18 popular songs to put us at ease because here is a very

19 eccentric character.

20 We'e asked to believe it's a hero. But

we need something to rely on, something familiar,

22 something safe. So they used a series of familiar

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songs and songs that progressed over the years to show the evolution of this character so that what happens

to Forrest Gump at tbe end of the movie is believable. This is all very subtle, all done by

artists wbo know how to manipulate you in a positive sense of that or, particularly in this film, by using songs that were familiar, songs that were already bits

before the movie came along.

And that's tbe case with a lot of movies

10 like that, American Graffiti, American Hot Wax. A lot of movies like that use familiar songs. Sometimes

12 they overuse them. Every time they turn on tbe radio,

13 there is a number one hit from that era playing. That has become a copout. But that is one of tbe best

15 examples of the perfect use of that technique in

16 Forrest Gump.

17 Q Do you think that the role of music has

18 changed over tbe past 10 or 20 years?

19 Tbe role of music in movies and TV?

20 Q

21 Well, the role -- tbe use of music bas

22 changed in that it has become so much more a signature

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of a movie, even before it opens. Again, if you go into any large music store -- I don't want to say

record store anymore. That dates me. I am sure there are matrix exhibits and soundtrack exhibits. It used to be that the old LPs were just

in a little corner here in movie soundtracks. Now the opening of a movie is as much an event in a music store as it is in the -- it's not even in the video store yet -- as it is in the theatre.

10 So music is used to market movies. It is used to promote movies and to cross-promote it. There

12 are many stars in movies who got their start in music.

13 I don't consider rap or hip-hip music. My son certainly does. And I'm sure he'l admit that

15 certain actors, certain people are in movies, rap

16 stars are in movies because the kids know who they

17 are. We don't know who they are until we see them in

18 movies. They know them from the context of music. I

mean, that's why they become stars.

20 So the influence of music is greater now 21 than it has ever been. And this all started during 22 the period in question, the '80s and the early -- and

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through the '90s.

Q What is exhibit 16, Music Claimants

exhibit 16?

A videotape montage of popular music in

films. Do we have a tape of that or not? Yes. Let' take a look at that. That will show you -- before you start it, that will show you how -- when you see this montage, you will see things that -- you will

understand how mucic is used to promote movies, how

10 music is used just as much as saturation advertising. It's as if every movie has hired another star. That

12 star's name is the music. Let's take a look.

13 (Whereupon, a videotape was played.)

THE WITNESS: Now, this is Dick Tracy. Do

15 you think back then Madonna was in the movie because she's a good actress? She's still not a good actress, 17 but she was -- give her credit for doing Evita.

18 But she was there because she was a

19 recording star who happened to be dating Warren

20 Beatty. But the movie helped torpedo through her

21 generation as well as Warren Beatty's generation.

22 It's also the worst Wenchel imitation you'e likely to

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see in your life. (Whereupon, a videotape was played.)

THE WITNESS: This was about the time when music videos began to be used as -- actually even

before this -- to promote the movie. You look at MTV. Music videos are used all the time to promote the

movie and often not with people who are in the movie. In the case of Madonna, it's obviously a co-star of the film.

10 (Whereupon, a videotape was played.)

THE WITNESS: The aforementioned Forrest

Gump. See, familiar music with an eccentric character

we'e asked to like. You just want to get up and join

them. You want to go -- particularly in long track shots like that and running shots that advance the story. It's the perfect use of it.

17 And when it's wrong, it's sometimes used

18 incorrectly. But in a film like this, there's a

19 reason why this film made a ton of money. And the

20 music is an important part of that reason.

21 (Whereupon, a videotape was played.)

22 THE WITNESS: Now, this is Buffy, the

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Vampire Slayer, a film I dare say I may be the only

one in this room who was forced -- I'm sorry -- who saw this film.

The reason why we included this is that tbe music appeals to the generation that has asked to

go see this movie. Most movie-goers are in the 15 to

18 years. What's the word I'm looking for? Not dynamic. Demographic. Yeah.

And this movie illustrates how movies that

10 the kids -- music that the kids know is being promoted to promote the film. It's cross-promotion in its

12 purest form. And it's going to a television show.

13 And the music was perfectly cast. That

14 was the best part of this film. The music in this

15 movie got you in the mood for accepting its rather bizarre premise explained by the title.

17 Now, sometimes they show movies with

18 ballad scores. I don't know if that was the case with

19 this, when they want to hire an editor. And I'm sure 20 it becomes a different movie when the appropriate 21 score, written for the movie or adapted for tbe movie,

22 is inserted. That is the case bere.

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And the name of this movie is a famous song. This doesn't happen to be the song that was the title of the movie, but it's perfectly placed right here. (Whereupon, a videotape was played.)

THE WITNESS: Uplifting, wanting you to

like this character. I mean, who wouldn'? See, no

dialogue, just mood, all created and moved along by the music.

10 (Whereupon, a videotape was played.)

THE WITNESS: Another movie which I may be

12 the only one in the room who saw it, but the prequel

13 is coming out. I'm sure you will be there opening day. Again, this illustrates perfectly that in a long

15 Easy Rider kind of spoof here, the music is the only

16 thing we are aware of besides the view, the helicopter

17 shot. And the music is the perfect element here.

18 You have to know your intended audience.

19 If I didn't like it but my kids liked it, it's made

20 for them. Who cares what I think in. a movie like

21 this? That's the key to judging a movie, finding the

22 intended audience.

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And it had a crossover appeal, but the music was appealing to everybody. You want to get in your car and drive when you hear this because of the music

(Whereupon, a videotape was played.)

THE WITNESS: Now, again, this is using a song that had been a hit before to make a very tender Austral ian film about an ugly duckling, not to be sexist, kind of woman. All of her friends are getting

10 married and when is her turn. If you put the wrong music in here, you'l

12 lose the mood, the intended mood, of this movie. It'

about a dreamer. It's about somebody who aspires to

what we all do happiness. (Whereupon, a videotape was played.)

THE W1TNESS: Now, Waiting to Exhale is about -- if you haven't seen the film, it's about four

18 independent women. One of them throws her -- by the

19 way, that's Whitney Houston there, a bit of a music

20 star herself when she has the time.

21 It's about one woman throws her cheating

22 husband out and how they deal with relationships with

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men. And, of course, it's a big music video come to the screen with tbe use of one of the biggest pop stars in tbe world. That's Angela Bassett in the front with

her, who played Tina Turner, another music star, in

What's Love Got to Do With It?

Take the music away, diminish the

importance of the music, and you lose the whole scene.

And you lose tbe whole relationship of the characters,

10 Spike Lee again using a familiar song to imbue a sense of hope, optimism.

12 (Whereupon, a videotape was played.)

13 THE WITNESS: Lyrics are critical here beyond the music because when you bear a familiar song

15 in a movie at a particular scene, that's the director

16 talking to you. That's tbe director saying, "I want

17 you to feel this way at this time."

18 And the only tool the director has if be

19 or sbe is smart is not to use overly tricky Orson

20 Wells want-to-be visual effects but to use music

21 because we can relate to it instantly and get tbe 22 mood. Music is the best tool for that.

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(Whereupon, a videotape was played.)

THE WITNESS: Okay. So what we have seen is the use of music to set a tone, to identify the characters, to put you in the proper mood for a movie, and also to convey certain subtle emotions along the

way that may change as the movie progresses, but at that particular time in the movie have to be expressed

to the viewer. And the only way you can do that or

the best way, I should say, is by the proper choice of

10 music.

Believe me, when the music is wrong, I am the first one to notice it. And so are film-goers, too. It can be intrusive. It can be used as a crutch. But the point is it's constantly being used,

15 for better or worse.

By the way, what opera are you seeing

17 tonight, if I may ask?

18 JUDGE von KANN: Pidellio.

19 THE WITNESS: Good luck. Okay. You'l

20 enjoy it. God forbid it should be Carmen, which I

sang in. My father wrote the next day, "Everybody

22 knows about Carmen. Those are about the little boys

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who come out at the beginning, and they say, 'Should

we hang around the cigarette factory?'ah. They run

off. And that is the story of Carmen." Anyway--

MR. GARRETT: Is there anyone on the panel

who is going to a ball game tonight? (Laughter.)

THE WITNESS: There is no baseball in the nation's capital, unfortunately.

JUDGE YOUNG: I continue to watch

10 basketball. Did you say, though, that the most

important demographic group for movies is 15

THE WITNESS: For the majority of big

movies, like the Matrix., for instance, 15 to 18 years,

15 unfortunately, is the biggest demographic.

JUDGE YOUNG: And that is the last few

17 years or

18 THE WITNESS: No. That's the last 30 or

19 40 years, particularly with the big blockbuster films.

20 And a movie, by the way, has to make three times it

21 cost to make money. So that's the one they appeal to

22 and kids watch.

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That's tbe MTV generation, which is always

moving. You know, they graduate from MTV I guess to

VH1, but, again, other music channels. So these are

the kids that go buy all the stuff connected with tbe movie, particularly the CDs. That's what they carry around with them.

JUDGE YOUNG: Is there any difference in the use of music for movies that are directed towards an older audience?

10 THE WITNESS: Wouldn't that be nice to see

people our age walking around with tbe CDs and the

12 headphones? It's marketed a little bit more subtly.

13 We know if we like a film, we will go and

14 see out tbe score, but tbe big blockbusters are the

15 ones that are advertised in the music stores

16 primarily. And that's for the kids who need to be

17 pushed there, who need to be going to stores.

18 So they spend their money on tbe

19 blockbusters and hope tbe ones that play at the art

20 bouse find their audience, too.

21 JUDGE von KANN: You just mentioned MTV.

22 We know that there was, of course, music in films for

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some time, Casablanca, quite a while ago.

THE WITNESS: Since the

JUDGE von KAHN: Gone With the Wind was

made quite a while ago. But in your testimony, -- I

think it's at paragraph 35 -- if I understand it, your testimony is that there really has been a sort of an

explosion in this following the launch of MTV in the early '80s. Is that it?

THE WITNESS: Yes. And I also think that

10 was unforeseen. When MTV came -- I mean, the first big people to make music videos, which look primitive

12 today, were the Beatles.

13 And the Beatles only made a few films, but

if you look at their attempts to make music videos,

15 they were like experiments. Well, somebody out there

16 must have said, "Hey, I can make a whole cable channel

17 out of this."

18 And it became in many ways an ad for

19 upcoming movies. And if I look at the videos on MTV 20 when I do watch it, it's -- and you'l see the stars,

21 the recording stars, who don't appear in the movies.

22 But sometimes you'l see the stars who were in the

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movies performing their own songs on the video. So there are all sorts of ways of promoting a movie and

even. a TV show on MTV.

JUDGE von KANN: So is it fair to say that the use and importance of music in both movies and television generally has been on the rise since the early '80s?

THE WITNESS: To put it mildly. Right now

we are at the point where it cannot be underestimated.

10 JUDGE von KANN: Okay.

THE WITNESS: That's why they give an

12 Oscar. That's why they give several Oscars for music

13 people. Even though Talk to the Animals won the Oscar

14 one year, they still give it to them.

15 JUDGE von KANN: Okay.

16 BY MS. WITSCHEL:

17 Q The films, the clips that we just looked

18 at, they each have the year associated with the view,

19 1990, '94, '95. These were movies that were

20 retransmitted on distant signals

21 Yes, they were, to my knowledge.

22 Q by cable systems in 1998 and 1999?

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I believe so. Yes, they were. And what'

interesting is by the time they are retransmitted, most people have seen those movies. Those are the big, big hits. And most people already have the music

When they first came out, the music was used to promote interest in the film so that eventually whether you even saw it there for the first

time, chances are you have the CD already.

10 Q Snuffy Walden, the film and television

composer, testified on Friday. He told us and showed

12 us some clips about the use of music in television.

13 Is it your opinion and your experience as well that

14 the same phenomenon you talked about with respect to

15 movies has also occurred in syndicated television

16 programming?

17 Absolutely. You look at a show like

18 well, there are different dynamics. If you look at a

19 show like Ally McBeal, for some reason, they used to

20 start to sing at the end of the show. I would watch

21 that Monday nights when there was no football game on ross.corn 22 because that was what my wife had on.

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And they had a recording star there, Vonda

Shepherd, who became a member of the cast and had not been a hit singer until she joined this cast. And it's something that sells the popularity of the show. Music is connected with shows from sports

to every news program except 60 Minutes and to movies

on TV and to any kind of entertainment show, to any kind of sitcom.

If I say the Mary Tyler Moore Show, you

10 know the theme song. You can wake my wife up at 3:00 in the morning. She'l sing the Patty Duke song to

12 you. That is as much a part of the show as whatever

13 went on in that show.

14 So music is very important to television,

15 in all forms of television.

16 Q You mentioned when you were talking about

17 some of your experience that you I guess worked for

18 Public Television for some time.

19 Yes, I did.

20 Q Can you tell us a little bit about the use

21 of music in Public Television programming?

22 Well, I co-hosted again the sneak previews

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for 12 seasons, from 1982 to 1996. And we used tbe theme song from an obscure episode of Ozzie and Harriet for our theme. And it became very well-known.

All of the PBS shows have theme songs. If I say McNeil-Lehrer, you'e thinking of tbe music. If I say Sesame Street, you'e thinking of Joe Rapozo's

song "Sunny Day." So the music is a good way to get

a signature for a show on. PBS.

And, you know, PBS needs it more than tbe

10 commercial stations because they'e always saying,

"Please send us money." They don't have the

12 advertising dollars that commercial television has.

13 So how do you get it out to the public to

14 watch their shows? Music is tbe best way to do it, to

15 help it become a signature sales element for tbe show.

16 Q Are you a sports fan?

Yes, I am a sports fan. My wife thinks I

18 am a sports fan and nothing else, but I am a sports

19 fan, yes. I have cut down on my listening to Boston

20 Red Sox games to only 160, instead of 162, talk to tbe

21 announcers during the game on e-mail. And sports is

22 up in the other part of my brain, yes.

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JUDGE YOUNG: You grew up in New York.

How do you like the Red Sox?

THE WITNESS: The question was, how do you

like the Red Sox in New York? Because in the Seventeenth Century, the great inventor Blaise Pascal said, "The heart has reasons that reason itself knows nothing about."

Will you please enter into the record that these gray hairs are from being a Red Sox fan and

10 watches Red Sox? On my tombstone, it is going to say, "Cause of death: Boston Red Sox

12 MR. GARRETT: What did you think of Trot

13 Nixon's plan Saturday?

THE WITNESS: It was not the first time it

15 happened. It happened four or five times. Also Benni

16 Agbyanni did it. It happened in the 1930s. In case

17 you didn't know or, like my wife, you don't care, he

18 she recently learned there were two teams in New

19 York -- forgot there were two outs, and he threw the

20 ball into the stands. They wouldn't lose the game

21 anyway.

22 He's the most intense player on the team.

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And I'm sorry it happened to him. It happens.

BY MS. WITSCHEL:

Does music play a role in sports programs?

Yes. Of course, music, more than ever

before -- along came a guy named Terry Cashman. in. the '80s and wrote a song for every single Major League

team. And that was part of the explosion of music in our consciousness of music, along with the emergence

of ESPN.

10 If you say ESPN and you say -- you hum the

word "Duh-nuh-nuh, duh-nuh-nuh," people know that is

12 Sport Center. Sport Center has been on -- has had

13 more than 21,000 broadcasts.

14 This Week in Baseball, of which I have 14

15 seasons on tape, for reasons I still don't know, was

16 on for many, many years. Baseball Tonight is one of

17 the most memorable and notable sports themes of recent

18 years. Not only in the stadium but when you are

19 watching on TV, you can't but hear all sorts of music

20 from the Cavalry Charge first played in the Baltimore

21 Orioles Memorial Stadium to all the stuff that goes on

22 on the scoreboard.

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I know some of the people who program the scoreboards where, as a matter of fact, the Mets and a few other teams put questions from our baseball

books up on the scoreboard in the eighth inning.

So I have come to know several of the

people. They -- that was many music videos and anything to keep the fans occupied. God forbid the sound of baseball should be enough.. But no, they

now today any stadium you go to, there is music at any

10 time when there is not action, not only that, but in recent years the phenomena, which I think is a bit of

12 coddling, has occurred in which every time a player

13 comes up to bat, at least in the home team, they play

14 a few bars of his favorite song.

15 You know, can you imagine a guy coming up

16 and they'e playing Sevallies just to shock everybody,

17 instead of some music that they play?

18 And, of course, Manny Ramirez, if I may

19 digress for a second, submitted a song and did not

20 realize. Do you know what happened? There were some

21 words that we can't say in front of polite company

22 heard all over the loudspeaker. So yes, music is

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everywhere in sports.

Q The type of music you talk about in the stadium, does that carry through to television viewers?

Yes. You can't help but watch it. Yes,

when they go to commercials, you hear music because the ending is over. And it bleeds through. And also during the game, you hear it, too. It depends on the stadium. Some have much

10 more than others. But when you'e watching a game, especially in basketball, it's a different kind of sports. It's a back and forth sport. And there' constant action.

1 know if you'e a fan of Jaws, all you have to do is watch a Lakers game. And you hear

when they'e coming up, you hear that song. When

17 somebody gets a walk, they'l play "I'm Walking."

18 There is an organist in named

Nancy Faust who was one of the first ones to do this.

20 When somebody -- when a player named Benny Ayala came

21 to bat, she played "Tie a Yellow Ribbon," if you will.

22 And that began to be copied by organists all over the

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Major Leagues. Every Major League team bas an

organist. And it's to keep the fans entertained and to keep -- and hopefully to help tbe home team.

JUDGE YOUNG: Has that changed over tbe years'?

THE WITNESS: Nell, there was an organist

named Gladys Gooding wbo played for the -- she's the

only person who played for the Brooklyn Dodgers and

tbe New York Knicks. And she played the organs at all

10 those games. They've been around.

JUDGE YOUNG: But they didn't play as much.

THE WITNESS: Not at all as much. Years

ago I don't think — — I don't know this spec3.fj.cally,

but 1 don't think every stadium bad an organist. Now

they do, particularly since they play "Take Me Out to

17 tbe Ball Game," written by someone who had never seen

18 a baseball game, by tbe way, and also "God Bless

19 America" in tbe seventh inning.

20 And, you know, "Take Me Out to the Ball

21 Game" is now sung everywhere. And more now than ever

22 has music become because of our consciousness of music

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as an adjunct to sports, just as it is to movies.

JUDGE YOUNG: I have a theory that, in part, it's because of a sense of disrespect to the fan, but the fan can't be counted on just to focus on the game. They'e got to sort of entertain us as well.

THE WITNESS: Well, look at it this way, though. Not necessarily. In one inning, they always play these stupid three-card Monty games on tbe screen

10 or which train is going to get there first. I'd rather hear music than -- so when it's not there, you

12 miss it

13 BY MS. WITSCHEL: In addition to the organ music, is there

15 other kind of music being used in connection. with

16 sports programming?

17 Sports programming, well, the organ -- you

18 mean theme songs? Yes, theme songs for sports shows

19 are pervasive. You know, every single team bas a CD

20 of great moments in its history.

21 How they got a full CD of tbe Milwaukee

22 Brewers is beyond me, but every team -- we have copies

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of the CDs here of every major sport highlighting the history of it or honoring a great player. And they'e as popular now, more than ever, actually, because of their availability. And

more heroes have come along. More events have come along.

So there's a whole section in CD -- what

do they call them, record stores or music stores,

where there are just sports CDs now.

10 You have some experience with station-produced, local station-produced, programs as

12 well?

13 Yes. I work at NBC. And somewhere in our

we just changed our -- we changed a new set. And

15 we have new music. Somewhere they have to get the NBC

16 chimes in. So each station has its own music theme.

17 I think all of the NBC-owned somewhere they have to

18 put the NBC chime in. So yes, I am very familiar with

19

20 Q You worked for WPIX at one time?

21 Yes. And we had many changes in our

22 theme. And none of it helped in the ratings. But I

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was there for 21 years. And they used a lot of beautiful music at the end of the show. In fact, sometimes that was the highlight of the show but not to disparage where I used to work, but no signature

music but network, particularly NBC, have that signature, three chimes.

Q Has there been or is there any role played by music in connection with the station-produced programs?

10 Music, again, can be the signature. It can be the thing that promotes the show. If you hear,

12 "Bah dah dah dah dah dah dah," that's NBC news. You

13 know that. That's heard everywhere. That's the signature. That's the opening page to the stories

15 they'e going to tell. That's the cover page. That' 16 as important as the title page.

17 And all three networks have them. So do

18 the other networks. So do the cable networks but more

19 so with the broadcast networks. But yes, that's a 20 very important part of it.

21 Q Does music ever accompany news stories?

22 Music can accompany news stories. It is

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sometimes frowned upon when it is done to an excess, but it often is used, particularly when you have the lifestyle stories, the fluff stories, the stories that are used as filler, you know, the animal that does this or the new exhibit or the new invention. Sometimes they'l put music in as well to move the story along. Have there been any changes in music in connection with local station-produced programming in

10 the last 10 or 20 years?

I don't know from experience other than

12 it's when you use certain music, you'e got to get

13 permission from you guys. But other than that, I

really don't know how the evolution has occurred other

15 than the fact that it's often considered to be an

16 important element of a story if you want to do a

17 not a pure news story but, again, in a feature story.

18 Sometimes in weather forecasts or things

19 like that, it's often very subtly used. If it's used 20 well, you'l notice it, but you don't notice that it' 21 a familiar song unless they get the rights to do it.

22 But it's always a consideration.

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MS. WITSCHEL: Thank you. I have no further questions.

JUDGE von KANN: Okay.

JUDGE GULIN: Let me ask something. Mr.

Lyons, what you have told us is that with respect to station-produced programming, you'e not sure what the change has been over the last couple of decades?

THE WITNESS: I do know that certain shows that have been on a long time have themes that have

10 become a part of us. Again, if I say,

"McNeil-Lehrer," -- now it's called the Jim Lehrer

12 Hour -- you hear a certain music. If I'd say that, in

13 your brain, you'e going to hear the theme song. It' become so pervasive because it's on night after night. And it's promoed night after night.

16 Also, when networks promote their upcoming

17 shows, they will play the theme song. And we know the 18 theme song half the time. So to that extent, again, 19 it's another marketing tool. It's used in much the

20 same way that movies are promoted by using the theme

21 songs, by selling it and on MTV. So it'

22 JUDGE GULIN: Do you think it has become

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more pervasive over the last 10 or 20 years'?

THE WITNESS: I can't say for sure.

JUDGE GULIN: Okay. As far as sports, I

think you have said that the use of music has become

more pervasive in tbe sports stadium, which we learned last week for tbe viewer-owned television would be

known as ambient music.

THE WITNESS: Not always. Sometimes at tbe beginning of tbe Olympics or beginning of any

10 baseball game, you'l hear tbe theme of the team.

When the Mete come on, you'l bear "Meet

the Meta." When tbe Yankees come on, you'l hear that

song. You'l hear that theme song. When certain teams have their famous theme songs, that was really -- with the Meta, it started from the beginning, from 1962.

17 I can' remember the Yankees having a

18 theme song way back then. But every time a Yankee

19 broadcast comes on, you hear that music. So that'

20 been used -- that was used before and after the game.

21 When the Yankees win, Sinatra sings "New

22 York, New York." When they lose, I love to hear Liza

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Minnelli singing, "New York, New York." You can tell, again, if you tune in after the game, you don't know what the score is, if you hear Liza singing, you know it's a Yankee loss. So it's used in that way, too.

No other team does that.

JUDGE GULIN: With respect to movies and syndicated programming, I think you'e said that music has become more important over the past decade or two.

It's been used perhaps more skillfully. How about the

10 actual intensity of use; that is to say, for example, the minutes per hour of music? Is that increased, in

12 your view?

13 THE WITNESS: Minutes. There are more

14 music and movies now than back then?

15 JUDGE GULIN: More syndicated programming.

THE WITNESS: I don't know. I couldn'

17 address that. But I would -- I don't know that that

18 equation has changed. Art is art. And if a song or

19 a theme or something should be used at a particular 20 time in the movie, that's when it's used. That 21 equation really hasn't changed.

22 I don't think music is written, nOh, let'

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sell this movie in the record stores as well." That' done by other people, not by the people responsible for making what's on the film change.

So that really -- that equation probably hasn't changed.

JUDGE GULIN: So in your perception, you don't think there's been more actual use of the music but, rather, it's being used better?

THE WITNESS: It's been used better. And

10 it's been used in more outlets. The word "synergy"

comes to mind. You know, Time-Warner is Warner

Brothers. And they sell music as well, you know,

Universal and Universal Records and Sony and music and

Sony and Columbia. Years ago there wasn't that synergy. So, even if it's the same amount of music,

17 it seems like ten times more because they'e using it

18 from other parts of the conglomerate that owns the

19 movie company, where they couldn't do that before.

20 JUDGE GULIN: I understand. I want you to

21 think back to the period of about 1983-1992. What can

22 you tell us about the use of music? How did it evolve

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to that period?

THE WITNESS: If it were possible to write a graph, I think you would see it going in the

opposite way of the stock market, up, because of the

emergence of MTV, because of the emergence of cable television, because of the emergence of the use of

movie trailers on TV. Back in the '70s and the '60s, you did not

see as much advertising for movies on TV the way you

10 do now. Those 30-second clips, those 20-second

trailers that we would see in the theatre, you didn'

12 see them on TV as much. Now you see it all the time. 13 If your little movie can't afford to have

it on NBC, then you'l put it on a cable station. 15 You'l put it somewhere. That's a whole different

16 industry. And the music is another element that helps

17 promote the movie.

18 JUDGE GULIN: All right. So in. that

19 period of time, '83 to '92, you do perceive a

20 THE WITNESS: Oh, enormous.

21 JUDGE GULIN: -- greater use of minutes

22 per hour of music?

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THE WITNESS: Absolutely, absolutely.

JUDGE GUI IN: All right. Thank you. That's all I have.

JUDGE YOUNG: One question. You mentioned

just in passing about sequels and prequels. I am wondering and I'm really now asking in a very

open-ended way whether that has affected, number one,

my observation or sense that there has been greater use of sequels over the last ten years is true; and,

10 number two, whether that has had any impact on the use of music.

12 THE WITNESS: This summer alone, there are

13 20 sequels coming. The reason. the movie The Madness

of King George was called the - - remember that movie,

15 The Madness of King George? In Great Britain, it was 16 called The Madness of King George III. Here they

17 changed the title because they were afraid American

18 audiences would think it was a sequel. True story.

19 True story.

20 Music sequels are a safe way and a logical

21 way to make another movie using the same formula. It

22 usually doesn't work, but we still see the music use.

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Sometimes -- I can't cite you chapter and

verse whether in the sequel a new song is included or not. Sometimes they are, I suspect. At least you hope something original is going to be there.

And the sequel that is never -- the best example of a sequel that works, of course, is Tbe Godfather. Once in a while -- the Matrix is a little better tbe second time around. Lord of the Rings I

liked the second time around. They may write new

10 music for it. I don't have the time to sit and study whether they wrote new music for it.

12 JUDGE YOUNG: They use it as a theme song

13

THE WITNESS: Oh, they'l use the same

15 thing. Ob, absolutely because when part 2 of whatever

16 it is comes out -- you know, they'e going to make a

17 Spiderman 2. Whenever that comes on, opening credits,

18 people want to see -- they applaud at opening credits.

19 They want to see the familiar music,

20 particularly in the Raiders of tbe Lost Ark movies if

21 they make another one of those or tbe Star Wars one.

22 Tbe moment the opening theme in Star Wars comes, the

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opening credits, people applaud because they hear the music and it grabs you. You can feel it, particularly in a large screen. If you'e in a theatre where that is going to

show which holds 1,000 people, you can feel the

vibrations. And it's punctuated by the applause of the movie. They'e got you.

JUDGE YOUNG: But has that been a phenomenon that has changed over the last ten years?

10 THE WITNESS: Well, as sound systems have

gotten better as the introduction of Dolby and you can

12 hear it all around you. And I think in that regard

13 and, as John Williams gets his 60th or 70th Oscar and

14 becomes a bigger and bigger star like that, I think to

15 that extent, it has.

16 They have become big stars where years ago

17 if you -- I mean, every year, I host the Little

18 Orchestra Society at Lincoln Center. I host a

19 performance of themes from the movies.

20 And if I say Dmitri Tiomkin, maybe you and

21 I know who he is, but once you hear the music, you

22 know who that -- now it's John Williams'core. Now

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it's the composer has become a big star as well. And that really has increased over the years.

JUDGE YOUNG: And also in your testimony

in that same paragraph, 35, that Judge von Kann pointed to earlier, you make reference to the

phenomenon of younger film-makers who grew up in the

popular culture of the '60s and '70s are now becoming more accordant. Are these three just examples or are you saying there is a whole generation?

10 THE WITNESS: I can't name them offhand,

but I can tell you another one, of course, is John

12 Singleton for Boys in the Hood, any of the young

13 film-makers .

You will remember Quentin Tarantino worked

15 in. a video store and spent years listening to movie

16 themes as he would constantly have a movie on.

17 Other young film-makers get their

18 inspiration from other sources, I suppose, but there

19 are others besides these two -- besides these three,

20 I should say. So absolutely.

21 JUDGE von KANN: You spoke about John

22 Williams. It seems to me years ago one of the main

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writers of film scores was Elmer Bernstein, whom I

think was a relation of Leonard, brother or

THE WITNESS: I never heard that. I knew Elmer Bernstein, but JUDGE von ~: Maybe not, maybe not. But he was the John Williams of his day, as I recall, and wrote a lot of scores.

THE WITNESS: Oh, yeah, right. JUDGE von ~: Anything further before 10 we break? I think this is probably a good time. I

assume we have agreement on order of cross or that's what you'e going to do during the break? All

13 right. Well, let's reconvene in 15 minutes. (Whereupon, the foregoing matter went off

15 the record at 10:38 a.m. and went back on

16 the record at 10:58 a.m.)

JUDGE VON ~: Okay, Mr. Garrett. 18 JUDGE YOUNG: I guess we missed the

baseball talk I was looking forward to.

20 MR. GARRETT: You haven't missed it.

21 (Laughter.)

22 CROSS EXAMINATION

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BY MR. GARRETT:

Q Mr. Lyons, my name is Bob Garrett and I represent the Joint Sports Claimants in this proceeding, good morning.

Good morning.

Q Here we are starting the eighth week, Mr. Lyons, and the Cuba are still in first place, do you know that?

I know that. I know that. I follow the

10 other league looking for players.

Q Mr. Lyons, one of the principal themes of the Music Claimants in this case is that music is an element that runs through all programming. I assume you would agree with that premise? Absolutely.

Q Also, would it be fair to say that music 17 itself has several different elements to it?

18 Music itself has several different

19 elements to what?

20 Q To the music. 21 You'e saying music itself has elements to 22 the music. What do you mean'?

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Q There are several elements to music. I guess. Be specific and I'l agree with you if I agree.

Q Well, you showed us a number of tapes

before where we heard the music coming out. That music is really the product and the efforts of songwriters, correct? Songwriters, editors, the director. Lyricists?

10 1n some cases.

Q You need a band to play the music.

12 Not always.

Q Orchestra, to play the music'? It would nice if you always needed one. It s usually.

Q So you need some musicians to play the

17 music?

18 Unless it's synthesized.

19 Q You need, if it's recorded music or

20 someone who has produced that recording, correct?

21 You need someone handling the expertise of

22 making it sound as good as possible.

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Q Sound engineers also would come into play?

Yes. They give Oscars for that.

Q When you talk about music, you'e really talking about all of these different elements that

come together and that's what we hear when we watch a movie or a syndicated show or a sports program? If there were one element to music it wouldn't be as important as it is to the creation of

a mood or an effect of a movie or a TV show. Because

10 there are so many elements that you'e named, that'

part of the reason why the music is as important an

12 element in many cases as the actors or the screenplay

13 or the director.

Q You showed those tapes earlier today of Jaws and M+A*S*H and all that. I take it that was not

16 something you would suggest doing. That was something

17 someone else had suggested that you do?

18 I mentioned those movies and the tapes

19 were prepared for me. I didn't do the tapes, but it 20 certainly adds -- you can talk about it all you want, 21 but seeing the effect is obviously much more effective

22 than just talking about it.

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Q Right, right. But you'e aware, you know

who Hal Davis is, don't you? Yes, somewhat.

Q And you know that he testified here about

20 years ago. I didn't know that.

Q This is a long proceeding. (Laughter.)

10 Q Actually, there were people who testified last week, it seems like 20 years ago.

12 You'l be saying that about me next week.

13 Q Probably. But when he was here, he did

14 something very similar. He showed Butch Cassidy, a

15 scene from Butch Cassidy and the Sundance Kid where

16 they played "Raindrops Keep Falling". Are you aware

17 of that?

18 Am I aware that he testified here and

19 played that?

20 Q Yes.

21 No. But I'm glad he did. You'e still

22 not convinced. He was right.

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(Laughter.)

No disrespect, counselor. But you set me

up for that. I had to say it. (Laughter.)

Q Okay, well, then I won't ask any more. I

can't get set up any more on that one. But you would agree that the effect of seeing Butch Cassidy and the

Sundance Kid without music would be much the same as

seeing some of the clips that you saw?

10 Without the music, it would be a different movie. The music -- that's a wonderful example which

12 we might have included as well as advancing the story,

as making you like people who are felons, as fictionalizing real characters, as creating a mood that had never been seen in a western before. It wasn't western music. It was contemporary music, in

17 this case, put into a movie which used unique

18 techniques to create a turn of the century image sepia

19 tones, the passage of time and that's one of the many

20 reasons that's one of the greatest films ever made.

21 Q Let me -- a couple weeks ago, we brought

22 in an economist to talk about FCC rate regulation and

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one of my, actually two of my colleagues went out and bought the book that he had written. (Laughter.) That's not the book.

Q One of the joys of my job is that I can go out and buy your book, Out in Left Field, you wrote that with your brother, right?

Yes, who is not an economist. He's a criminal defense attorney.

10 Q And this is a book of a lot of trivia questions?

12 Yes, it is

13 Q Related to baseball? I admire your taste in books.

15 Q The good news is I'm not going to use this

as an exhibit because this goes into my collection.

17 One of the questions you ask on page 70 is

18 who was the first man to bat on television?

19 Do you remember the answer to that one?

20 I used to know, either a Brooklyn Dodger

21 or a -- no, actually, the first televised game. I 22 think it was a Brooklyn Dodger against the Cincinnati

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Reds, about 1939 and it may have been Dixie Walker. I'm not sure. Well

Was it? Close. It was Billie Werber. I wrote that book, five, six years ago.

Q August 26, 1939.

Tbe announcer was Red Barber though, I

know that.

10 You got that right, yeah. But I actually

thought that the first televised baseball game was

12 Princeton and Columbia played on May 17, 1939.

13 Yes. We'e not talking about nonprofessional. We'e talking about Major Leagues.

15 Q Yes.

16 Twentieth century, not nineteenth century.

17 First person to ever bat on television

18 would have been someone in that Princeton-Columbia

19 game?

20 Yes, except that book is about Major

21 League Baseball and not about -- and who knows where

22 that was broadcast.

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Presumably, that player did not get paid

for it. We like to think he didn'.

That's a broadcast in New York, so it sort

of leads me to my next set of questions here. But at

the conclusion of the game, there was a series of

articles in the New York Times talking about the quality of the telecast and this was the first time-- This was a college game?

Q This was the Princeton-Columbia game.

10 Okay, all right .

Q Broadcast by Bill Stern. Remember Bill

12 Stern?

13 Yes, I knew Bill Stern.

Q And the Times, Oren Dunlap, a friend of

15 yours too who wrote for the New York Times?

16 Years ago. I don't know -- I worked for

the Times one summer, but I didn't know Oren Dunlap.

18 Q And I'm going to quote him here. This is

19 actually something I wrote. "Seeing baseball by

20 television is too confining. To see the fresh green

21 of the field as the mighty Casey advances to the bat

22 and the dust flies and he finally digs in is a thrill

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to the eye that cannot be electrified and flashed through space." What would Christy Mathiesen Smokey

Joe Wood, Home Run Baker, Eddie Collins, Prank Chance,

Trist Speaker, Ty Cobb, Gru Marguehart and those old timers think of such a turn of affairs? Baseball from a sofa. Television is too safe. There is no buffing the foul ball."

What year was that written?

1939. It was right after that May 17

10 A little before the advent of color

television and many years before the advent of high

definition television and many years before the advent

of the way baseball games and all sporting events are enhanced by electronic devices, by digital computer effects and, of course, by music. Well, would you agree, Mr. Lyons, that

17 seeing a game in person is somewhat a different

18 experience than seeing a game on television?

19 It's a different experience. It's not

20 always a better experience.

21 Cleveland against Detroit in late

22 September on a rainy afternoon, I'd rather watch at

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home than be at the ballpark. (Laughter.)

So you can't say one's better than the

other. It plays better on TV than any other game, with the exception of football, I guess, and

basketball, but hockey doesn't play as well on TV,

neither does -- even tennis plays as well on TV as

I would ask you to make a value

10 compar ison, just trying to get a sense about it . I t is a different experience being there. Yes, it is.

Q The stadium versus staying at home"?

And that ' trLle even i f we had high definition television

17 But it's not necessarily a better

18 experience. It can be -- you can. get a better seat at

19 home in. most cases.

20 Q Do you think that the role that music

21 plays, and I'm just talking about now about the music

22 that one sees or hears in the stadium, the role that

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music plays in the stadium may be a little bit different than the world that it plays when telecast,

the game gets transmitted via cable television? Well, of course. In the stadium, you hear

all of the songs. You hear -- some times it' incessant. You hear it particularly between innings.

You hear lots of different snippets of songs when

players come to bat, but when you'e watching on television, you hear the theme song -- like the

10 opening page of a novel, you see the theme song that is recognizable. It's either the network's theme song

12 or theme song or Sunday Night

13 HSPN. They play the "Baseball Tonight" theme song

14 which I can whistle in my sleep. You also hear things

15 during the game from the stands. You can sometimes hear the crowd responding to songs, particularly,

17 which began with the when a picture

18 was the visiting pitcher, they'd play that "Hey, Hey,

19 Goodbye."

20 And when you have a creative organist, you

21 can hear that organist in the background. That adds

22 to it. That makes it almost like being there.

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Q But would you agree that -- just focusing on the stadium experience for the moment, that music is one element of that experience? Yes.

There are many other things that have to

come together in order to produce the game that the fans then enjoy, correct? Yes.

Q And you talked a little while ago about

10 what's done with the scoreboards today, remember that? Yes.

12 And that's certainly one other element of

13 the experience there in the stadium?

14 If there were no music, it would be a

15 pretty deadly experience though. Back in the days

16 before electronic PA systems, the announcer, Pat

17 Piper, for the spent 56 seasons talking

18 into a megaphone telling you that Hack Wilson is

19 coming to back.

20 Even then they had music. The Brooklyn

21 Dodgers banned, what's called the Symphony, and they

22 would play up in the stands somewhere and you could

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hear them.

So music has always been an element, but— and without it, it wouldn't be as much fun. It would be a deadly reactive thing that would be a completely different experience.

Q But you agree that there are other

elements that also go into making up that experience? It ' good play. It comes from the stadium. Reasonably priced food, good weather.

10 And these players, for example, Star players, teams you care about.

12 Q Coaches

To a lesser extent.

Q Umpires?

Not the umpires. You don't want to know

who the umpires are. If you do that, then they'e not

17 doing their job.

18 Q But you have to have them--

19 Yes, you do.

20 Q In order to have a game?

21 Yes, you do. That's why we'e here.

22 Q How would you compare the value of the

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music ads to one's experience at the games to all of the other elements? Is it a bigger part than all of the other elements or is it a small part? Understand that music -- I mean -- you'e

talking about people attending the game or watching on

TV?

Just now, focusing on attending tbe game.

Attending tbe game, the management of the

10 team wants to appeal to children and to tbe oldest person in the park as well, using as a part of that

12 element, if they play popular songs, there's always something lively, always something happening.

It is very hard to convince a child of 7 that even when no music is being played, something is happening, even when al the players are standing

17 still, that's the beauty of tbe game. Something is

18 happening.

19 Should the player play this way? Should

20 he move in? Should he know what the count is? Did he

21 forget how many outs? All those kind of things are happening.

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But music is there to move the experience along to have the illusion that something visible or audible is

always happening and that's why it can be used to enhance the experience. It's true of a lot of things besides sports.

Q But how important is that music there in the stadium compared to all of the other elements?

Oh, very important. It's just as

10 important as some of the other elements. Not all of

them, obviously. They are there to see a game, not

12 necessarily to listen to tunes, but that certainly

13 makes listening to the game more enjoyable.

Q Major League Baseball, as you may know, has entered into agreements with the different

16 performing rights societies that allow music to be played at the different stadiums around the country.

18 Now I want you to assume for a moment that

19 what Major League Baseball pays for that right to play

20 is in the neighborhood of a couple of cents. In fact,

21 it's probably around a penny or so.

22 Do you think that that's correct, that

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that penny would adequately reflect the value that music adds to the overall experience?

Nell, I'l put my two cents in and say no, it's not, it's obviously more important than that.

So the importance that you would attach to and have attached to your testimony here today to

using -- that the game is certainly is much greater

than what it appears in the marketplace may have attached?

10 I can.'t comment on marketplace values. I

just know that music is an important element.

12 Now a penny sounds like nothing. But

13 there's a reason why the parties came to an agreement. It makes the sense that I haven't taken the time to

15 study or the agreement wouldn't have been made.

16 Ever read the book about the music

17 industry called Pennies From Heaven?

18 My godmother was in a movie called Pennies

19 From Heaven starring opposite Bing Crosby, but I have

20 yet to read that book.

21 Q You also talk in. your testimony on page

22 20, the CD, the Sports CD, I guess it's page 20, yeah.

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Do you see that? It's not part of 20, paragraph 62? Paragraph 62. Yes.

Okay, and you'e identified a number of

different CDs that -- Exhibit 29 in front of you? In a second. I do know.

What was the purpose of the different CDs?

To show that music now being used to a

10 greater extent than ever before as a marketing tool for sports teams as well.

12 You may not be able to get to a Chicago

13 Bulls game. You may not be able to get to a Cubs

14 game. Indeed, you may have missed the Cubs game or

15 you may be out of the viewing area of some of these

16 games, but you can always get one of these CDs and

17 play it in your car or have it with you and you have

18 a sense of the team with you.

19 It was never true, years ago, by the way.

20 Q Let me ask you just to turn to Exhibit 29,

21 the fifth page in.

22 The firth page in?

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Q Yeah. Where specifically, because they'e all

page 1 of 1.

Q The CD I just randomly picked called "The

Cubs Greatest Picks." Do you see that? Kind of an oxymoron, don't you think?

I don't see the Cubs Greatest Hits, but I

know the Greatest Hits from Cub History.

I'm sure you do too.

10 Q Do you know which one are on this I don't see the page though. After

12 Seattle? No, this is after Seattle Mariners.

13 This is me genuflecting in front of the Red Sox.

15 (Pause.) 16 No, I'm not that old. I'l get it. 17 (Pause.)

18 Here it is.

19 Q Got it?

20 Yes.

21 Q It's one of the other reasons I really

22 love my job, Mr. Lyons, is I went out and bought the

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CD, "Cube Greatest Hits" here. This team that hasn't been in the series

in 1908. You are the ultimate optimist.

Q They are still the 1908 World Champions.

You can never take that away from them.

This is true. AS the Red Sow of the 1918 World Champions.

Q It also want to the World Series in-- 1945, yes. They came in second that year,

10 yes, in the World Series, I mean.

Q It reminds me of the famous quote about

12 that World Series. So many of the men were out

13 fighting World War II and there weren't a lot of top

14 quality players left and not many that anybody thought

15 were left on the Detroit Tigers or the Chicago Cubs.

16 And os it was a columnist for the Detroit Tigers who

17 analyzed the people on the team and concluded that "I

18 am quite convinced that neither team can win the World

19 Series."

20 (Laughter.)

21 It was the year after the St. Louis Browns 22 won their only pennant, so it would be right. It was

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still war time baseball.

Q I just want to play a couple of selections

From the Cubs Greatest Hits?

From the Cubs Greatest Hits here. Absolutely.

Q And then ask you some questions.

(CD Plays.) That's not Steve Stone, is it?

10 Q No. That's a radio announcer.

Who were the radio announcers? I don'

12 know.

13 Q I don't know. I'e got to listen to my

14 radio. I always listen to them on TV.

15 (Laughter.)

16 Distant signal too.

17 (Laughter. )

18 That first track from the Cubs Greatest

19 Hits recalls Sammy Sosa's home runs.

20 Did you notice how the music enhanced it?

21 Yes, but you would not have heard that

22 music on the radio or the television when Sammy Sosa

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was hitting his home runs?

You would or would not have?

Q You would not have, would you?

When the actual moment happened, probably not.

Q You would agree that 1998 was a pretty big year for Cubs fans? Well, for Sosa fans, not necessarily for the Cubs, yes.

10 Q Well, the race between Sosa and McGuire.

That was very significant. Yes.

14 Q And that generated a lot of enthusiasm and

interest among baseball fans all around the country? Yes.

17 Q And you could see those games involving

18 Sammy Sosa, at least many of them on wGN TV, right?

19 Yes, or you could see their At Bats on

20 ESPN.

21 Q Yes. Do you think that music in any way

22 enhanced, added value to that race at least?

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You mean the music that we heard on this

album here just now?

Q Any music? Yes, because otherwise you just hear a bunch of the same calls, just a higher number, but the

music added to the drama. That's why they put it in.

Q So the music added certainly to the -- on

the particular CD? Yes.

10 Q I won', as much as I'd like to, I'd like to go through all of these tracks, but I look here at

12 number 7, for example, Kerry Mows Them Done, May 6,

13 1998 versus Astros. Do you know what the significance of that was?

15 I believe that's the day he struck out his

16 age, if I'm correct, becoming one of only two

17 pitchers, the other being Rapid Robert Feller, to

18 strike out their ages. Fellow struck out 17 when he

19 was 17 and Kerry struck out 20 or 21, whatever it was.

20 Is that correct?

21 Q I think it was 20, yes. 22 I'm right.

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Q What you have on the CD there are the

radio calls of Kerry Wood striking out.

Was it Steve Stone on the radio?

Q Again, no. It was not Steve Stone. All right. If I look at the liner notes I guess I'l get the answer.

Do you have one where actually saw the ball? It could be, it might be, somebody tell

10 me, what is it?

Q Harry Caray was not aliv'e j.n 1998.

One of his few sober moments.

Q I thought it was here, but I guess I don' know.

1 also have number 5 here, Beck Gets No.

50, September 26, 1998 versus the Astros.

17 That's Rod Beck, later to break my heart

18 when he donned the sacred threads of my theme, fat and

19 out of shape. Yes, I am well aware who Beck was.

20 Q It really was his last good year was it

21 for the Chicago Cubs

22 Which explained why the Red Sox signed

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him, yes. He looked like a truck driver, not a ball player.

Q But 50 saves in one year is pretty good for any team, but particularly good if you'e a Cub pitcher, wouldn't you say? Yes.

So that was another kind of exciting series of events that took place in 1998 for baseball and the Cubs, correct?

10 Yes. You notice all of the highlights are mostly from one year.

12 Q 1998. Isn't that interesting?

13 Yes.

JUDGE YOUNG: Not 1969 or 1984.

15 THE WITNESS: As a matter of fact, I was

16 with an old Cubs starting pitcher on the 1969 team a

17 couple of days ago and I wished I'd know we were going

18 to be doing this. Bill Hans. He's my neighbor.

19 BY MR. GARRETT:

20 I remember sitting in the right field of—

21

22 This is interesting. I don't care what

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plane I make home. (Laughter.)

Q Willie Stargell bit a three run home run. Yes.

Pops they used to call him. Only player in tbe history of baseball named Wilver.

Q One last thing

Ob no, let's go on. I'm having a great

10 time

We can't afford the transcript.

12 My wife would have left an hour ago. She

13 thought horsehide was where they hide tbe horse. (Laughter.)

15 Q Let me ask you one more of your trivia

16 questions.

17 I'm not going to get it. I wrote the book

18 six years ago.

19 Q I'l give you the answer. We have a very 20 loose definition of impeachment. 21 JUDGE VON ~: It's getting looser by 22 the minute.

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(Laughter.)

BY MR. GARRETT:

Q This is page 71. Who was the last player from the old Negro Leagues to play in the Big Leagues?

My guess is he played here in Chicago.

Q The answer here is Hank Aaron. Yes, okay.

Q And I'm going to ask you to check this in your next edition here. I think the real answer is

10 Minny Minoso who did play in Chicago. Yes, but he was not -- he was considered

12 a Hispanic player not -- even though physically his

13 race -- he's a black man, but his name Oreste Santorse de Santernino Minoso and he's considered a Hispanic

15 player, not a black player.

16 Q But he still played for the New York

17 Cubans in the old Negro League.

18 Okay, well, I'e got to find that. I don't know. There are a couple of mistakes in that.

20 We'e not flawless.

21 Q Check it out. He actually played his last

22

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Oh don'. That's the gimmick that he got

it when he was 86 years old. That doesn't count.

He did do that for St. Paul, but he actually batted for the White Sox which was caught on

WGN as well.

When he was 77 years old. It was in 1980, four years after

WGN is the station where the weather man is the brother of the Enron guy. Did you know that?

10 Q I don't watch the weather in Chicago.

Tom Skillings brother is the Skilling of

12 Enron.

13 Q Or the local news unless I want to catch

up on who's been shot that day.

15 Would you like me to go on?

16 (Laughter.)

17 JUDGE VON ~: Not necessarily. 18 MR. GARRETT: Thank you for your patience

19 and indulgence.

20 Thank you, Mr. Lyons.

21 THE WITNESS: Thank you, counselor. It

22 was a lot more enjoyable than I expected.

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MR. GARRETT: Come back again.

THE WITNESS: By the way, we have a second book called Curve Balls and Strikes.

MR. GARRETT: I'e got that one too. I couldn't find anything wrong with it.

THE WITNESS: Thank you. And what's his

name, Matt Damon is going to write the introduction to the third one.

JUDGE YOUNG: I have two questions for

10 you, Mr. Lyons.

You were talking with Mr. Garrett about

12 the role of music in baseball, primarily baseball,

13 both in terms of the role of music within the stadium

14 and then on television.

15 Is it the same analysis you bring to bear

16 when thinking or talking about basketball or football?

17 THE WITNESS: I can't tell you which of

18 the sorts is more promoted with music, but I know that

19 music is used in a basketball game because the

20 basketball game is the same action back and forth, not

21 to say it's a better or worse sport, music may be used

22 in a different way.

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If you play music in a baseball game or in a baseball stadium at a point in the game when there isn't music called for or at a very tense moment, it would be intrusive and the music stops when the action happens. Basketball, it can go on. It can be used to rally fans at certain points of the game, so I'm sure music is used to the same extent in basketball, but I can't say--

JUDGE YOUNG: That's actually one other

10 question because basketball is a much quicker game. There is less stop and start other than time outs.

12 THE WITNESS: Right.

JUDGE YOUNG: And it would strike me just

14 thinking about this that maybe the basketball use of music would be less and it might be less also in terms

16 of what you hear on TV.

17 THE WITNESS: No because at every time out

18 at a basketball game, at least in New York, the Knicks

19 City Dancers come out and do music and do dances

20 during the middle of the game which doesn't happen in

21 baseball. It happens at the change of innings, but

22 not in a time out. There are no time outs in

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baseball, even though the manager calls for time, there is no time. But music is also used to program

basketball. Go, New York, Go is a song that is played

constantly to type the Knicks. So the equation may be different, but the importance of music to each sport is I would say proportionately tbe same.

JUDGE YOUNG: And then if you think about

basketball from a TV viewer's perspective, you never

do see New York City dancers, the Knicks City Dancers

THE WITNESS: Once in a while you do, once

in a while. You'e got to look bard, but once in a

while you do, and also you do hear the theme song of

MSG, whatever network carries the Knicks. So to that extent, no. But when you'e there -- the experience

17 is there's music there all the time. It's incessant.

18 JUDGE YOUNG: How about football?

THE WITNESS: College football or

20 professional?

21 JUDGE YOUNG: Professional.

22 THE WITNESS: I would say it's not quite

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to the same extent as college football. College football has the bands, obviously, and the elaborate half time shows, but professional football, every single time out and every single time when they show out of town scores, they play music. That's the

signature music of that network for a reason. You may

not be looking at the screen, you may be looking away and that music tells you that they'e going to reduce the screen and show you the out of town scores. And

10 the way they do that is by playing music. So it'

used in a unique way in that sport.

12 JUDGE YOUNG: You had a show for a number

of years on WPIX?

THE WITNESS: I was on the News for 21

15 years on WPIX.

JUDGE YOUNG: WP1'X is actually a station

17 that did retransmit as a distant signal?

18 THE WITNESS: Yes.

19 JUDGE YOUNG: Do you have any sense of

20 what was attractive about PIX, other than your show?

21 (Laughter.)

22 THE WITNESS: My lousy two minutes? Yes,

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well, we used to have a slogan at WPIX, "You'e seen

it on 4, you'e seen it on 7, so wby not watch again on Channel 11?"

We were the signature station to remain of "The Honeymooners" and of shows that were rerun and

there was tbe Yankees and the preseason Giants and

some Knicks basketball perhaps over the years. It' a totally different equation today than it was back

then. Today, it's a network. It's part of the WB.

10 They have original programming. We would have original shows that probably couldn't get sold to the

12 networks, so it's improved vastly. But we would have

13 the theme song that we played two or three times a day

14 promoting our news show.

15 JUDGE YOUNG: Was there still predominance

16 in sports in 1998 and 1999?

17 THE WITNESS: I don't remember. I stopped

18 working there in 1992, so it's been a while since I'e

19 watched them other than watching the Yankee games.

20 Now they're the Mets station.

21 JUDGE YOUNG: Thanks. ross.corn 22 JUDGE VON KANN: Who is next?

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CROSS EXAMINATION

BY MR. JESSE:

Good morning. My name is Russell Jesse. I represent the Public Television Claimants and this

is my co-counsel, Ron Dove.

If we could turn to pages 17 and 18 of your testimony, you talk about music being a part of public television programming and I believe in

speaking with Mr. Olaniran, you said that Sesame

10 Street and Mr. Rogers had been on in 1990 as well

To my knowledge, yes.

12 In fact, it had been on for a fair amount

13 of time before that. Yes.

15 And would you agree that documentaries

16 such as the Civil War aired on PTV in 1990 or that

time frame?

18 I think that was the date of the Civil 19 War. I don't know off hand. I know that Ken Burns'0 Baseball aired in 1994 and that succeeded, that was

21 after the Civil War.

22 And the documentary like programs you talk

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about on page 18, Nature, Nova, American Experience,

POV, the Living Edens, those also aired in 1990-1992? I believe so.

Q So you would agree that in this testimony

on page 17 and 18 you are not saying anything about an increase in the actual amount of music in 1998-1999?

No, I wouldn't know the amount of music on any network. I can only testify to the amount of our

awareness of music. Maybe it's promoted more or in

10 the case of PBS which doesn't have the promotional mechanism of network television, it's just played over

12 and over when they promote their own shows from within

and not other areas. So I really don't know.

Q And also when you were speaking with Mr. Olaniran, I believe you said that if all you were

16 hearing is ambient music, you'e watching a documentary. Is that right?

18 I wouldn't say that's absolutely in every case, but yes, if you'e watching something that is-- 20 if you'e watching Jaws without the theme music, 21 you'e watching a story -- if it's not a documentary, 22 they'e trying to make it look like a documentary.

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Sometimes in dramatic movies, when the bank is being held up, they don't have music there to create a completely different mood and music is still important because you notice the absence of music. And on page 18, you talk about some of the films that were shown on public television in 1998 and

1999. The Irish American, Africans in America, A Life Apart, and you describe these films as great films. In addition to the music on the films, can you tell us

10 what you think makes them great?

I don't remember how I was moved by the ones that I saw. Self-discovery, the Irish. I don' know much about the history of the Irish in America.

I know some of the history of the Irish in America,

15 but that's typical of the kind of fare you see on PBS.

It opens up a whole new world to you. I didn't know

17 that -- I'm not Hasidic and I know a lot about -- I

18 thought I knew a lot about the Hasidim, but if I saw 19 any part of that show, it would explain and show parts 20 of the history of that sect, if you want to call it

21 that, in America and how some of us have assimilated

22 and some haven'. I live in a city where there are

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millions of Hasidim, living in a particular area and also working in a particular area and I would say that

anybody who has seen this show would look at them in a different like and a like closer to the truth, rather than perhaps stereotypes or curiosity or awe or whatever emotion you might have.

Q And you would agree that these are high quality programs?

Yes, that's why they'e on PBS.

10 And you would agree that you can't see this programming elsewhere on television? Not necessarily. There's a little network

called AGE which -- it's not a clone of PBS, certainly, they have high quality. And The History Channel. There are other channels that have been

influenced by the content of PBS and have created

17 their own series of documentaries.

18 I can't imagine a television world without

19 The History Channel. I love seeing Hitler get his

20 every night on the History Channel. They don't show

21 it that much any more, but -- so PBS no longer has the 22 monopoly on great documentaries. They'e elsewhere as

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well.

Q Although you would at least have to agree

that PBS has a variety that you don't find on any of these single stations or channels that you'e mentioned?

Not necessarily. A&E has some and as I

said, The History Channel has some, but PBS is still the leader in certain kinds of programming, particularly English programs that never would find a

10 home anywhere else. There they are.

There is a channel BBC in America, I

12 think, but some of those are pretty obscure. PBS, you 13 don't need cable for it, so in that sense it reaches the entire audience.

15 Actually, what I meant by variety was that

16 you would have to agree that there aren't children'

17 programming on A&E that

18 Yes, there are. Oh yes, there is.

19 There's a show called something something for kids

20 where they explain the history of the world or Great

21 Events for Kids. They'e occasional, but I believe

22 A&E has one.

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Q You, yourself had a show on public television? Yes, I co-hosted Sneak Previews, 400 episodes or so.

And that added to the variety and quality on public television? I would like to think so. I would like to think so. There was also a subtle political debate

that went on for 10 of those 12 years between a

10 liberal and a conservative. Guess which one I am?

Q Thank you. I have no more questions.

12 JUDGE VON KANN: Thank you. Mr. Stewart?

13 MR. STEWART: Your Honor, we have no questions for this witness, but at the appropriate time I would like to cross examine Mr. Garrett.

16 (Laughter.)

JUDGE VON KANN: We will try to find the

18 appropriate time.

19 Canadian?

20 MR. VOLIN: We'l waive cross.

21 JUDGE VON KMK: Okay. I think that

22 completes everybody, does it not?

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We'e back to Redirect.

MS. WHITSCHEL: Just one second, Your Honor.

JUDGE VON KANN: All right.

MS. WHITSCHEL: We have no redirect

questions. Thank you very much, Mr. Lyons.

JUDGE VON KANN: We'l pause one second to see if the Panel has any questions. (Pause.)

10 JUDGE VON KANN: Mr. Lyons, you were asked a few times about whether the amount of music by which

12 I guess it's meant the minutes perhaps in which music

13 appears in movies or on television programs has

14 increased and I think the gist of your testimony is

15 you really haven't made a study of counting minutes, so you can't speak to that. But I gather it's your

17 view that whether the minutes have stayed about the

18 same or not, the prominence, the importance, the value

19 of music has significantly increased in the time

20 period you'e speaking to?

THE WITNESS: Yes, indeed. Because of the

22 emergence of technology and of other cable channels,

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specifically cable channels geared towards music, of the emergence of the art of music videos and the emergence of the notion that you can cross promote a

movie by making a video, a music video of the songs

that we hear in the movie, populated by people who don't necessarily have to be in the movie, but their work is heard. Also, the emergence of the technology

going the other way. People who appear in music

10 videos or who are recording stars becoming actors on

TV and in the movies. It seems to me that has

12 increased as the synergy and this cross promotion has

13 increased.

JUDGE VON KANN: Okay. I think that's all

15 I have.

JUDGE YOUNG: I have two questions. One,

17 you made reference in your oral testimony to the

18 advent of Dolby stereo.

19 THE WITNESS: I mentioned Dolby stereo.

20 The sound system in a movie theater increased by leaps

21 and bounds.

22 JUDGE YOUNG: When did that start

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happening?

THE WITNESS: I can't say specifically.

It seems 5 or 10 years ago, you'd hear a bird chirp and you hear it from the back of the theater. You

never heard that years ago. No matter how good the

stereo sound was, no matter how good the rest of the

sound was, now when you go to a movie, particularly one set in a forest or some place exotic place like

that, listen to the fauna, listen to the animals. You

10 hear it coming from all parts of the theater and that applies to the music too, I suspect. You can hear it

12 from all sides of the theater. That's the advent of

13 Dolby stereo which is I think 10 or 15 years old. I don't have a specific date, but it's fairly recent. 15 But it was prevalent back then too, it just wasn't in

16 as many theaters.

17 JUDGE YOUNG: Are you suggesting though

18 that that had an impact on this increase in value of

19 music?

20 THE WITNESS: I would think it would be 21 all part of it. If you hear part of the music coming 22 from all around you, it's the next best thing to being

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in one of those surround movies or being in the action. The whole theater becomes part of the

environment when the sound system is better. That certainly makes the music all part of the experience

to the degree it was not -- before, it was just up on.

the flat screen. Now it's all around you.

JUDGE GULIN: I remember 2001 hearing the

gorillas back here and that sort of thing. So it must have existed before that.

10 JUDGE YOUNG: In the movie 2001.

JUDGE GULIN: In the movie, yes.

12 THE WITNESS: I wanted to hang out with

13 the Dirty Dozen. I visited the set of 2001. Who knew?

JUDGE YOUNG: You also made reference

15 somewhere in your testimony to the cross ownership of

16 both the movie producing companies, as well as the

17 music producing companies. Will you elaborate on

18 that?

19 THE WITNESS: Time Warner, Sony, Sony

20 Music is a division of Sony. Sony is now owned by

21 Columbia. Those kind of things were not -- Universal

22 has a whole music division. Same company as

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Universal. That didn't exist to the extent that it has today, over the years.

JUDGE YOUNG: What do you think the impact

s P

THE WITNESS: The impact is, it seems to

me and I haven't checked film by film, but if Universal is making a big movie musical, chances are they'l make sure that the sound track on Universal Records or whatever their subsidiary is is in the stores with the opening of the movie. It makes -- if

you call somebody in your own company and say hey, promote this movie, let's make the album in stores the day it opens, that's a product of conglomerates that

didn't exist before. It may come at the expense of

quality in films say some. That's why the whole independent film movement has arisen, but for big

17 blockbuster movies, the music division is an important

18 part of that company's promoting that movie.

19 JUDGE VON KANN: Any last questions? 20 Okay, apparently not. Mr. Lyons, thank you very much.

21 You'e excused and we'l recess until 10 of 2. 22 (Whereupon, at 12:49 p.m., the hearing was

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recessed, to reconvene at 1:50 p.m.)

JUDGE von KANN: Good afternoon. Before

we begin, the Panel did discuss over lunch the matter

raised by Mr. Dove this morning, and I think we are

frankly, Mr. Dove, quite skeptical that anything in the prior proceedings determinations amounts to a ruling as a matter of law, that music's share must be taken off the top. Our rather strong inclination is that if a record properly supported calculating it in

10 some other way, we would not be precluded from doing so. Whether this record would support doing it in

another way remains to be seen.

So I think we'e not prepared to make any ruling at this point along the lines you suggested. However, you certainly have a right to file a motion if you wish, we'e not precluding that, and other

17 parties may respond to it. And we'l rule if we get

18 such a motion. I think we would -- I don't want to

19 encourage people to file motions that may be

20 pointless, so I think I would say you have a fairly

21 heavy burden of persuasion to convince us that that is

22 a matter that's settled and that that's the only

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permissible way for music's share to be calculated.

But we won't refuse to read anything that you decide to put together and submit if you wish to. That's up to you. Anything else to add on that?

Okay. Mr. Mause.

MR. MAUSE: Yes, Your Honor. I would like

to call to the witness stand Mr. Frank Krupit on behalf of the Music Claimants.

WHEREUPON,

10 FRANK KRUPIT

was called as a witness by Counsel for the Music

12 Claimants, having first been duly sworn, assumed the

13 witness stand, was examined and testified as follows:

14 DIRECT EXAMINATION

15 BY MR. MAUSE:

16 Q Can you give us your complete name and

17 current position?

18 Yes. My name is Frank Krupit, and I am

19 the Assistant Vice President of Operations, Analysis

20 and Information at BMI.

21 Can you briefly trace your educational

22 background?

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Yes. I have a degree in musicology from

Iehman College in New York City, a Bachelor's of Arts degree, and after that I'e taken some courses in statistics and have a certificate in statistics from

Q And can you trace your career since you got out of college to the current time?

The most important is my career at BMI

which spans 29 years at this point. And I'e had

10 several positions at BMI over the years, most of which involve the analysis of music, music use on various

12 media, whether it's radio, television or other types

13 of sources that use music.

Q And what are the responsibilities you have

15 in your current position?

16 Okay. Currently I have two main areas of

17 responsibility. One is I am responsible for the

18 statistical sampling of radio, commercial radio, for

19 the purpose of feeding BMI's distribution system for

20 royalties. And, secondly, I'm in charge of doing data

21 analyses and studies for a variety of business needs,

22 such as internal business trend analysis for license

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negotiations and for litigations such as this.

Q And how long have you had those responsibilities?

About 15 years.

MR. MAUSE: I would ask if there's any voir dire of this Witness?

JUDGE von KANN: Apparently not.

BY MR. MAUSE:

Q Mr. Krupit, your testimony describes a

10 music use study which you participated in, and I'm going to ask you some questions with reference to that

12 study. I guess, first of all, the study compares

13 1991-92 with 98-99, and in doing that comparison you chose certain stations as representative of 91-92.

How were those stations chosen?

16 Okay. Nineteen ninety-one and 1992

17 stations were actually given to me. I was told these

18 are the stations that I am to collect music use information for.

20 Q And who were they given to you by?

Dr. Peter Boyle of ASCAP.

22 JUDGE von KANN: Mr. Krupit, could you

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keep your voice up a little bit. It's a bit hard for the people in the back to hear, okay?

BY MR. MAUSE:

Okay. And then the -- and that group of

stations from 91'92 was a group of do you remember how

many stations? There were ten stations. They included the top five stations in the Larson data in terms of fee generated, as well as a sampling of five smaller

10 stations. And then

Q How were the stations for 98-99 selected?

12 Okay. Ninety-eight and '99 started with

13 the same ten stations. There was an inherent change

14 between 1991-92 and 98-99 in that WTBS, which was a

15 major contributor to the Fund in the earlier set of

16 year, was dramatically reduced to just a small

17 fraction in. the smallest set of years. So we felt we

18 needed to expand the study, and so instead of the top

19 five stations ranked by fee, we went to the top nine

20 stations, while keeping the original ten in tact for

21 continuity purposes. So, in essence, we went from ten

22 stations to 15 stations between the two sets of years.

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Q Was it 15 or 14 in the Fifteen.

Q Fifteen in 98-99. You went from the top five to the nine Right.

Q And I guess you kept TBS in the study.

Yes, TBS. So TBS was no longer in the top

five, it's in the top nine; in fact, it was way down

the list. So when we selected the top nine in 98-99

10 there was actually five new stations that were

included, so that's how we get from ten to 15.

12 Q So you had ten stations in 91-92 and 15

13 stations in 98-99. That's correct.

15 Q All of the stations that were in in 91-92

16 were also in in 98-99; is that correct.

17 Right.

18 Now, in sampling music use, it appears

19 reading the study you did not sample all -- you did

20 not compile all the music used by those -- each of

21 those stations for the two-year period but instead did

22 a sample of that; is that correct?

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That's right. We did a sample using -- we took a sample of seven days for each of the four years in the study 91-92 and 98-99, and that sample was

based on the FCC composite week, which was something

that the FCC set up, I believe it was 1983, which they

used for a variety of purposes, and we just piggybacked upon that and built the four sets of the dates from the four sets of years off the composite week.

10 Okay. Well, let's just walk through that.

In other words, there was something called an FCC

12 composite week back in '83. Right.

Q Do you know if the FCC continued to have a composite week after '83'? I'm not really sure if they did or they

17 didn'. I know for '83 it was something they

18 established, and there may have been some earlier than

19 that. That may have been the last published composite

20 week that they assembled, and I think that was the

21 case. So what we did is that we took the very last

22 one and moved forward with that ~

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Q Do you know what they used the composite

in general terms, why the FCC had a composite week? Generally, I know they used for some licensing issues, tbe details which I'm not familiar with.

Q Okay. This is just -- for purposes of tbe

record, this is a matter of public record. The FCC had a composite week when it was engaging in a more substantive regulation of broadcasters to try to

10 sample what they were broadcasting. If tbe PCC didn.'t

have a composite week after 1983, bow did you develop a composite week for 91-92 and 98-99?

What we wanted to do was establish three

We wanted to establish, one, randomness, which is important in any statistical

study. Two, we wanted to capture each week day,

17 whether it was a Sunday, Monday, Tuesday, Wednesday,

18 Thursday, Friday, Saturday. And we wanted to capture

19 seven random weeks throughout the year. The FCC

20 composite week allowed us to do that.

21 So what we did was that we started with

22 the original 1983 PCC composite week and moved the

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days around for each of the four years in the study so

that we could come as close as possible to those original dates and still have the seven days of the week covered in the study.

Q Okay. And I would turn to Page 6,

Paragraph 15 and this is the testimony of Nr. Krupit as revised pursuant to our motion. Does that set forth the days that were ultimately selected? Yes, these are the dates.

10 So, again, just to walk through this,

under 1983, that is the just the FCC composite week itself, right'? That's right.

Those were the dates the FCC used in 1983 to have a representative sample of broadcasters programming. That's corrects

18 Q And then going to 1981

19 Nineteen ninety-one.

20 Q '91, we see the data are a little bit

21 different. How did you pick those days in '91?

22 Again, we wanted to maintain -- we could

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have done this any number of ways. We chose to keep the days of the week within the same weeks as much as

we could. So we adjusted the days of that week so

that we could maintain, say, a Sunday in that week and

a Monday in the next week. And just for continuity's

sake, we just tried to do it that way, and that's what

we did.

So you were picking a day, the Sunday

closest to April 17 in '91; is that a fair

10 That was our intention, yes.

Q Okay. And so you wind up again with all

12 seven weekdays represented in '91, right?

13 That's correct.

And you followed the same process, you

15 wind up with different dates, because the year doesn'

16 have a number of days that's an exact multiple of

17 seven, so these things shift from year to year.

18 That's right.

19 Q But you had the same process in '92.

20 That's correct.

21 Q And skipping for a moment, you had, is it

22 fair to say, the same process in '99?

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That is correct.

Q Now, I turn your attention to the second row from the right, which is 1998, and that appears to be a bit different. Yes.

Q Can you explain that to us?

Yes. Our intention, again, was to

maintain the same days of the week, within the same

weeks. As it turned out, it didn't work out that way

10 that year. We actually selected a different set of days of the week. It appears to be a transposition

12 problem within an Excel spreadsheet. I believe that

13 these dates were for the year 2000, they would fall

into the same days of the week. So, in essence, we introduced another level of randomness to the study.

16 I mean you didn' intentionally pick those

17 seven dates; this was a matter of some kind of a

18 clerical error?

19 Yes, it was a clerical error.

20 Okay. But we wound up -- let's just so

21 the record clear the dates you sampled were those

22 dates listed on Page 6 under the '98 column.

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That's right. And let me just state this about those dates: If you would compare those dates to tbe other four years, you would see again they are

very close. So that the same weeks were still pulled,

we still have tbe same seven days of tbe week represented throughout the study, but for those dates chosen the weekdays got a different way.

Q So we have a -- for example, we have a

Sunday and July 5, '98 is a Sunday.

10 Yes.

Q And instead of having a Sunday which would

12 have been in the second or third week of April, we

13 have a Sunday in the first week of July.

14 That's right.

15 Q But then tbe Wednesday instead of being in

16 tbe first week of July is in tbe second or third week of December.

18 Right.

19 Q And in comparison with you original

20 testimony, Page 6 before it was changed, is it fair to

21 say that the dates are the same; that is, we still

22 have July 5 and September 21, those dates were listed

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on Page 6 of your original testimony, but the difference is that that testimony erroneously represented those dates as being different weekdays?

That's right. And I would add to that that everywhere else and the remaining testimony for Music these dates are used and these are the dates that are part of the study.

Q Okay. Including all exhibits.

10 Q Okay.

And as you said, the only difference is

12 the sequence of the days of the week.

13 Q Now, once you had the stations and the dates, is it fair to say the next attempt -- the next

15 step would be to attempt to identify what programs ran

16 on those stations on those dates?

17 That's correct.

18 Q And how did you go about doing that?

19 BMI contracts with a company called TV

20 Data Technologies, and TV Data is a private company

21 that their business is to collect program listings of

22 every television station, cable network in the nation,

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and they sell that information to newspapers and to

BMI and to ASCAP, I believe, and to many other

entities. So in BMI's normal course of business, BMI

receives tapes from TV Data on a weekly basis, and that becomes input to its television distribution processing.

Q So they provide a list for any given station. They'l tell you what aired at a given time on a given. date.

10 That's right, for every station in the nation.

12 Q Now, when did TV Data begin providing that

13 information?

I believe BMI started with them around

15 1990.

Q Okay. Now, is there a reason that TV Data

17 is a better or different source of that as opposed to

18 doing what most of us do when we want to figure out

19 what's on the television, which is to look at TV Guide

20 or the newspaper?

21 Yes. Nell, TV Data arose as a competitor

22 to TV Guide, and they arose because -- and they went

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into business basically to the extent that they were

doing the job better than TV Guide ever did. And in

fact BMI, I believe ASCAP as well, used TV Guide prior

to TV Data since they were the only source of this

information. TV Data was a much better product, we

found, which is why we shifted over to TV Data.

And for a couple of reasons. One, the computer tapes that they sent us was much easier for

us to work with in our computer systems. Two, they

10 were much better at identifying specific episodes of

series, while prior to that TV Guide rarely gave us

12 episodic information. And, three, TV Data would often

13 be able to discovery preemptive programming. In other

words, when an originally scheduled program was

15 replaced with a different program, TV Data checked

16 that and updated their database before sending BMI the information.

18 Q Let me just run through to be sure we have

19 a clear record on that to give some examples. The

20 specific episodes, in other words, TV Data would tell 21 you if you were -- if it was a Honeymooners, Gleason

22 and Art Carney -- we talked about that a little

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earlier -- they would tell you which episode ran at eight o'lock on a Wednesday night.

To the extent that they knew it, yes.

Q Now, for example, the Honeymooners, I used to watch that a lot. They have the one episode where Ralph Cramden is an expert on identifying music and Art Carney plays music and helps bim prepare for this

quiz show. And 1 think -- we were talking, you remember that episodeP

10 I remember that episode vividly.

watched it many times.

12 Q And at tbe end he can't -- what is it, he can't identify

Well, I think he goes on to the TV show,

Name that Tune, or something like that, because be's

an. expert on all these songs. And his friend Ed

17 Norton would always play a Swanee River as a warmup

18 and Ralph gets sick of it. And they go through -- on

19 the TV show they go through all the various questions,

20 and there's a $ 64,000 question, name that tune, and

21 they play Swanee River. And Ralph Cramden says tbe

22 composer is Ed Norton, and of course he loses.

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Q So that episode of Honeymooners might have had more music than the average Honeymooners episode. That one certainly did, yes.

Q Well, we won't get into whether that was

ASCAP or BMI music but That's phase II.

Q And TV Data would tell you, at least with greater precision, that at a given time it was that episode that ran rather than some other episode of the

10 Honeymooners. That's right.

12 JUDGE YOUNG: Did they identify it by number or by narrative'P

THE WITNESS: It would depend. In those older TV showsTunes'nit's mostly the name of the episode, so it would have a name. It might be called Name that 17 Tune, I don't know offhand, but it could be called

18 Name that some later episodes of other TV

19 shows, sometimes it would just be an episode number.

20 BY MR. MAUSE:

21 Q Now, you talked about preemptive

22 programming, and, again, to be sure we have a clear

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record, I want to talk about another example. We'e all been talking about baseball teams and baseball games. All of you have known pain, but I was a

Brooklyn Dodger fan and my most vivid recollection was

when I was in the first or second grade and my parents

would make me go to bed at eight o'lock at night.

And I said, "Why don't you just let me see the first inning of this Dodger game and I'l go to bed at the end of the first inning. If it's before eight 10 o'lock, I'l go to bed before eight o'lock, if it' after eight o'lock -- so they said, "You'e got a

12 deal

13 And we watched this game, it was scheduled

14 to start, I think, at 7:35. They, of course, had a

15 little pregame music, and then the game started. And

16 the Dodgers I know they batted a round -- the last out

17 was made by Pee Wee Reese, and they batted around

18 twice. They must have scored 13 or 14 runs in the

19 first inning, and I think they were playing the

20 Chicago Cuba, but I don't know. You'l probably look

21 that up an tell me I'm wrong. So that game lasted-- 22 that first inning -- and, of course, in those days

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when they replaced a pitcher that took forever. So the first inning lasted till about 9:15 that night, I

think, and the whole game lasted a lot longer, and so

the program after that game was either seen later or not seen at all. Right.

Q And what you'e saying is TV Data would

pick up that whereas TV -- if you just looked at the

TV Guide, it would just tell you what had been

10 scheduled.

Well, TV Guide would never to do that, and

12 TV Data would make an attempt, and very often they

13 were able to do that. Not in all cases, of course,

14 because there are 10,000 TV stations -- over 1,000 TV

15 stations in the nation. So they did their best but

16 they do quite a bit, whereas TV Guide never did that.

17 And that's important to get an accurate accounting of

18 the program listings for our business.

19 Q And then you have some sports events, like 20 baseball games, that are rained out, and so it shows it's on the schedule but it never really happens.

22 Right. And in that TV Data would show the

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replacement, usually it's a rainout movie theater or something along those lines, and we'd get the name of the film instead.

Q And sometimes emergency public

announcements when there's some fast breaking news

event may preempt programming for that. If it's an entire program, yes. If it' a five-minute break-in, it wouldn't be relevant to that.

10 Q Okay. Now, just to get an idea of the scale of the -- and, again, we'e just talking about identifying the programs that ran

13 Right.

Q -- what was the volume of programming that

15 had to be identified for the study?

16 Well, in all, over the course of the four

17 years, there are over 9,800 airings of shows. That

18 includes series, films, sports, all the various kinds

19 of programs that are out there. And, of course,

20 there's about twice as much in '98 -- or 5 percent as

21 much in 1998-99 as in 91-92 because, of course, we

22 have 50 percent greater number of stations in those

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later set of years.

Q You had the extra stations in the later

year. You bad tbe 15 stations in 98-99. Right.

Q And so the bours, if you wanted to figure

out how many hours, I guess you'd just multiply the number of stations times seven days, times 24 for each year. That would give you the number of hours of programming.

10 Approximately, but, of course, you would then have to still remove the network programming,

12 network being ABC, CBS and NBC, since they'e not part

13 of this proceeding.

Okay. So there was

15 It skews those bours somewhat.

16 Some network programming removing. And

17 you might not have exactly 24 hours in the day because

18 what did you do for shows that began or ended

19 around midnight?

20 You have to make a rule for consistency's

21 sake, so tbe rule we had was that we only used

22 programs that began within each 24-hour period of each

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day of the study. So if -- let's say at the beginning of the day a show started at 11:30 p.m. tbe previous day and lasted one hour, then our first show for the

day that we studied would begin at 12:30, so there

would be a half hour cutoff there. To the extent that that day ran exactly to midnight, then we'd have 23.5 bours in that particular day. Similarly, we'd get toward the end of the day. If you have a show starting at 11:30 p.m. on a day that you studies and

10 it ran for one hour and your programming day started exactly at midnight, then that day you would have 24.5

12 hour's .

13 Okay. So you might not have -- it might

14 not come out even to an exactly even multiple, because

15 on a given day you might have slightly more or

16 slightly less than 24 bours of programming.

17 Yes. That did happen in many cases.

18 Q Now, Exhibits -- I guess I ask you to turn

19 to Exhibit 30 and 31, and let's start with 30. Can

20 you tell me what that is? 21 Yes. This is a listing of -- tbe beading

22 says it's a listing of all programs that aired in the

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91-1992 composite week. So for the ten stations on

the seven days for each of tbe two years, so 14 days in all, these are the shows, individual shows or episodes of shows, that aired. And now I might point

out on the first page, 21 Jumpstreet. This is where

tbe description, we actually see the individual names of the episodes.

JUDGE YOUNG: Right.

THE WITNESS: You asked for earlier.

10 JUDGE YOUNG: Oh, so there's a description column.

12 THE WITNESS: The description column is

13 often the episode name when it's a series. So we can

14 see for 21 Jumpstreet tbe various episode names are

15 listed.

16 BY MR. MAUSE:

17 Q And when you said there were 9.800 airings

18 of shows, it's not that there are 9,800 shows in this

19 exhibit, but if 21 Jumpstreet aired on three different 20 three stations, that would be three airings; is that

21 correct?

22 That's correct. So the 9,800 would be all

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the shows in Exhibits 30 and 31 multiplied by each one's number of airings during the composite week study.

Q And if it aired at the same time, on the same day, on two different stations in the study, would that be one airing or two airings? That would be two airings.

Q Two airings, okay. And Exhibit 31, is it fair to say--

10 JUDGE von KANN: One question about 30

before we go on. How do we deal with the -- how did

12 you deal with cartoons? I'm looking at the first

13 page, and we have over Adventures of He-Man, T-Rex, the Little Mermaid and it simply says cartoons.

15 THE WITNESS: Right.

16 JUDGE von KANN: And I guess there's more

17 than one episode of the Little Mermaid, so how were 18 you able to run that down in terms of which one it

19 was?

20 THE WITNESS: That's a good question. I 21 think we'e going to get to that.

22 JUDGE von KANN: Well, get to it when you

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get to it. That's fine.

BY MR. MAUSE:

Q I guess it's fair to say that TV Data does not always give you the individual episode, is that right?

Right. And that's very common in cartoons.

Q Okay. So they'l just tell you it was a certain type of cartoon without identifying which

10 particular episode. That's right

12 Q Okay. And Exhibit 31, is that the list of

13 programs for the 98-99 composite week? That's correct.

15 Q And that's similar to Exhibit 30. That's exactly right.

17 Q Okay. Now, when you had this list of

18 programs that ran -- we now have the stations, we have

19 the dates, we have a complete list of programs. How

20 do we figure out how much music was on the programs?

21 Okay. BMI and ASCAP in the normal course of their business receives from producers of shows,

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for the most part, as well as networks, cue sheets.

Cue sheets are listings for each episode of a show or show or film a listing of each individual performance that aired on that particular show, along with the composer and publisher and the exact timing to the second of each piece of music that played.

Q And I ask you to turn to Exhibit 32. Do

you have that before you? Yes.

10 Q Is that a sample of a cue sheet? Yes. This is a sample of a typical cue

12 sheet. This is an episode of the Drew Carey Show, and it lists each of the individual music performances, you see most of which were written by Snuffy Walden, coincidentally.

Q Is that the same Snuffy Walden that

17 testified here Friday?

18 The very same.

19 Q Okay. And we now have entered into the

20 record the reason for his nickname Snuffy, so we don'

21 have to go over that again. And so this would show

22 again I guess for this particular episode, Number 22,

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how much music was used. That's exactly right.

Q And over on the right hand corner, that' -- or right hand row, is that the duration of each of those music segments in the show?

Yes. The column under time on the right indicates in this case the seconds of each specific piece of music or the number of seconds that that music aired on that particular episode.

10 JUDGE von KANN: Is that one second on the first item there?

12 THE WITNESS: One second. That happens to

13 be a logo, which is often three to five seconds, not

14 often one second, but in this case it is one second.

15 BY MR. MAUSE:

16 Q Okay. Now, this cue sheet it says,

17 "Produced by Warner Brothers Television." That means

18 the show was produced by Warner Brothers Television.

19 That's right.

20 Q Who generated -- do you know who generated

21 the cue sheet?

22 Generally, it's the same producer, so

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Warner Brothers would have created this cue sheet.

Q So they create a cue sheet and then mail

it to BMI and ASCAP? Yes.

Q Okay. And you get these cue sheets from a number of producers of different kinds of television programming?

Many, many producers, and they arrive

every single day. And they are used -- as I mentioned

10 earlier, they are used to create BMI's internal cue

sheet database. What BMI does is take these paper cue sheets and convert them to computer files of cue sheets. So, for example, in BMI's cue sheet database there will be an entry for the Drew Carey show,

15 Episode, Drew v. Mimi 2. I guess that's a sequel to

Drew v. Mimi 1. And in that cue sheet record in BMI's

17 database, it would list each of these individual

18 performances of music. And I might add that ASCAP

19 would have -- basically has the same process and the

20 same type of database.

21 Q Now, do you get cue sheets for all of the

22 programming that airs on broadcast television?

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No, we do not. We attempt to. The intent is always to get 100 percent of the cue sheets that we can, but either they -- sometimes they will not send it to us or for certain kinds of programs they never create a cue sheet. Of course the problem with that

is that the songwriters and publishers have no way of

getting performance royalties without BMI or ASCAP having cue sheets in their database.

Q Do you make an effort to get more cue

10 sheets than you simply get over the -- sent ever day? Absolutely. There are a couple of people

12 that I know of at BMI whose sole purpose is to attempt

13 to get as many cue sheets in the house they possibly

14 can.

15 JUDGE von KANN: Is that part of the 16 contract, the licensing contract with -- I mean this

17 one, for example, is shown on the first cue sheet, ABC

18 network, which has, I guess, a blanket license with

19 BMI for use of your repertoire. Is one of the

20 conditions of that contract that ABC provide you with

21 complete cue sheets so that you can keep track of what

22 they'e doing?

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THE WITNESS: Well, there are three major networks. I believe it is a part of their contract,

and we do get almost complete coverage on the three major networks in terms of cue sheets. For local television, that's not the case. There's no such provision in their contract or license.

BY MR. M%USE:

Q Now, do you get some cue sheets from local television?

10 Generally, the cue sheets that we get from local television are for series that originally aired

12 on networks that go into syndication and now are

13 broadcast widely over all of many local television stations. In addition to that, there are a set of

15 first-run syndicated shows that only are broadcast on

16 local television, and those BMI does get directly from

the producers. So it's a combination of the two.

18 Now, turning to Exhibit 33, can you

19 describe what Exhibit 33 is?

20 Yes. Exhibit 30 contain all of the

21 programs that were aired for the composite week on the

22 ten stations in 1991 or 1992. The listing in Exhibit

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33 contains a subset of those shows where we had cue

sheets that we can identify tbe music for. So all of

tbe items in Exhibit 33 are in Exhibit 30, but not vice versa.

Q So there are some things that are in 30

that are not in 33 That's correct.

-- where you didn't have a cue sheet. But

everything that's in 33 should be back in 30.

10 Yes, they are.

Now, were there some situations where you

12 didn't have a cue sheet for tbe actual episode, tbe

13 specific episode, and used some other calculation or methodology to determine the music use? That's right. For series, there's

16 actually two conditions under which this operation

17 works. One is it's possible that TV Data did not know

18 or give us the exact episode name of a series or that

19 they did give us the exact episode or name of tbe

20 series and BMI or ASCAP did not have that particular

21 cue sheet for that specific episode. In order to

22 create the music content for that show, we created an

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average of the existing cue sheets for that series. That process basically is taking all of tbe cue sheets

that we have in the house for a series, and sometimes they can number in the hundreds, and simply averaging each episode -- averaging all tbe episodes together to

make a single average, to represent any particular episode in that series. For example, if you bad one series of ten minutes -- let's say you had ten episodes and ten

10 minutes and another ten episodes at 12 minutes per

episode. Your average would be 11 minutes of music

12 per episode, and you would use that whenever we have

13 an airing of that series and did not have a cue sheet

for it or we did not know the series -- the episode

15 name.

16 Q Okay. So that we could call, I guess, the

17 use of an average cue sheet. Is that sometimes called

18 an average cue sheet?

19 It's always called an average cue sheet.

20 Q Okay. And just returning to the whole,

21 the beginning of the cue sheet process, we have -- for

22 the ease of Mr. Krupit's testimony, we'e brought the

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cue sheets here to the hearing room, and are those boxes over there the cue sheets that were used in this study? Those are the cue sheets used in the study.

Q Do you know how many boxes that is about? I think it's at least 15.

Q Fifteen boxes or so. Now, was there another thing called a generic cue sheet that was used

10 at times?

Yes. A generic cue sheet is not something

12 that BMI creates but is something that is supplied by

13 a user of a show when it's the same music aired every

single time that show is performed. A good example of

15 that, I believe, is the McNeil-Lehrer Report which

16 uses the same set of music, the same theme music and

17 bumpers in every show, and they'e supplied us with a

18 generic cue sheet. It's similar in type to an average

19 cue sheet except in the sense that it's one cue sheet

20 that will be in our database that will be used every

21 time an episode McNeil-Lehrer Report would be aired.

22 And there are many examples of that.

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Q So is it fair to say the producer makes

some kind of a representation that this is a fair statement of the music used for some group of episodes or all of the episodes of a particular show?

It's all the episodes. And let me add that a series sometimes change -- they change their

music content over time. So a series might use a specific group of musical compositions or composers for one set of years, let's say from -- well, let'

10 take 91-92, for example. And then when we come to 98-

99, they may have a separate set of music for that

same series. So there might be a different generic

13 cue sheet used for each a specific set of years. Same for averages, by the way.

Q So the producer might say, "We have this

generic cue sheet that covers our programming up to

Episode Number X, and then when we start with X plus

18 one we have a different generic cue sheet."

19 Yes. It's usually by season. So you can 20 use this generic cue sheet for the season for 1999 and

21 use this generic cue sheet for season 2000. That' 22 how usually it would be done.

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Now, did this review of the assembly of the cue sheets, review of the cue sheets, generation of average cue sheets, did this take a considerable amount of time? It did. It's actually in two steps. Tbe first step of doing all of this is really part of our

ongoing processing that BMI does in its normal course of business. There's a tremendous amount of data in here, and it would be very difficult to do on our own,

10 but, basically, what we need to do then is to take

that as a starting point and then go further and make

12 sure everything is as it should be. Because when you

13 have a sample you want to make sure you have

14 information in tbe best possible manner it could be.

15 And did a number of people work on this

16 over a period of time?

17 A number of people in. a number of

18 different areas as well. For example, our TV

19 Operations Department in Nashville, they were the

20 experts at music use -- let me rephrase that. They

21 were experts in matching shows to program listings.

22 That's their job. There are people who do nothing but

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that. And they'e the people who did this

identification. And then there are people on my staff

who did a number of checks and balances and make corrections where necessary to make sure that the study is a fair one.

Now, when you say match shows to program listings, I guess you get a cue sheet from Exhibit 30 or Exhibit 32 and that has a show, an episode on it, and you'e matching that name or title or episode to

10 whatever TV Data provides to you. That's right.

Q And in many cases, of course, it's the same exact words, so they can make the match. Yes.

But is it true that in some cases there

are slight differences in the way things are

17 described?

18 Very often that's the case, and that's why

we have a dedicated group of people who do that

20 matching, so they recognize the same patterns over and

21 over again and they can match the proper program listings with the proper cue sheets.

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Q Now, in doing all of this matching, generating generic cue sheets, average cue sheets, did you follow the same procedures in 98-99 as in 91-92? Yes, of course. That's the proper method

of any study. If you want to have apples to apples comparison, you follow the same procedures.

Q Now, I call your attention to Exhibit 34

and turn to Page 44 of that exhibit. This is the top of the page, the second and third lines, do you see

10 that? Yes, I do.

12 Q Major League Baseball on Fox and it lists

13 July 12, 1997, St. Louis at Chicago Cubs, and the

station is WGN. Now of course that date is in 1997

15 but this is in 98-99 composite week. Have you

16 discovered that there is a problem with that listing?

17 Yes. I don't think that that was the

18 correct match that was done on that show and the show

19 that's directly beneath it. On the date that those

20 of course the date is not on this listing, but the two

21 dates that this refers to, those two sets of teams did

22 play, and it seems like the researcher tried to match

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those sets of teams to a cue sheet. So in other words, the first date I believe was -- I think they were, actually -- one was April and one was August.

And one of those dates was St. Louis at the Chicago

Cubs in 1998. Interestingly enough, as we learned

this morning, that's the year that the Sammy Sosa and McGuire face off, and I think what happened there was that the researcher looked for a cue sheet online, on the database that had a combination of those two

10 teams. He found one and matched it. And the same thing happened for the second show there.

12 Q Okay. So if they -- in other words, is it

13 your testimony they probably did not have the actual

14 cue sheet for the game in '98?

15 I doubt it. I can't be totally sure of

16 that, but my feeling looking at this and the experience is that this was probably a

18 misidentification.

19 Q Okay.

20 Although I might add at this point that

21 the Chicago Cubs did win that game.

22 GARRETT: Definitely a

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misidentification. (Laughter.)

JUDGE YOUNG: Looking at that example, where it says in that column, "Music Minutes Per Show Episode

THE WITNESS: Yes.

JUDGE YOUNG: So this would be for the full extent, if it's a game, two or three hours?

THE WITNESS: Usually these are slotted

10 for three hours.

JUDGE YOUNG: On the other hand, some of

12 these other programs would be -- when you'e talking

13 about per show episode, you'e talking about either a half hour or an hour.

15 THE WITNESS: That's exactly right.

16 BY MR. MOUSE:

17 Q Now, again, focusing on that music minutes

18 per show episode, if a show runs -- let's take a show

19 that runs an hour but has 16 minutes of commercials,

20 so there's 44 minutes of actual programming. Does the

21 number there represent the music including the music

22 in the advertising or just the music in the 44 minutes

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of program?

No. The music that's contained in the column that says, "Music Minutes Per Show Episode," which in fact is the amount of music used in the study, is just the music that's contained in the cue sheets, which is of course only the music played

during the program itself. So if we had -- let's say it was a one-hour show, then that particular episode of that show might only have -- it would only take up

10 46 minutes of the hour, and the music that we would list here is only within the 46 minutes. And any music that's played outside of the program, say in commercials and promos, would be in addition to the

minutes that we indicate here.

And we -- did you for any purpose include

16 the minutes from those other 14 minutes of advertising

17 in your calculations?

18 No, we did not. They are excluded from

19 the study.

20 Q Okay. Now, your testimony indicates that

21 as a result of the study -- well, again, turning to

22 Page 9 of your testimony, you indicated that you were

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able to identify music duration for 77 percent of the

programming in 91-92 and 73 percent of the programming in 98-99. That's correct.

Q Okay. Now, the numbers in Paragraph 21 you say you identified 43,920 minutes of music in 22,003 hours of programming in 91-92 and 65,324 minutes of music in 31,028 hours of programming in 98- 99. First, let's look at the minutes of music. Is

10 that derived just by taking the music minutes in

Exhibits 33 and 34 and then multiplying them by the

12 number of times the show was performed?

13 That's exactly right.

Q So that gives you the gross minutes of

music. And where did the hours of programming come

16 from?

17 The hours were actually the broadcast time

18 that was allotted or slotted in for that particular

19 show, not the actual program time. But for example

20 we'e just talking about the minutes of music that are

21 usually devoted to commercials and promos, about 16

22 minutes per or 14 minutes per hour, whatever that

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number is. The minutes that we include here just include the minutes in the program itself -- minutes

of music, rather, by the cue sheets, but the hours are the total hours slotted for the broadcast itself. So it would be the full hour of an hour show as opposed to the 46 minutes of actual air time of the program itself.

Q Okay. So, again, for the purpose of these numbers, and, again, just to be absolutely clear, to

10 give an example, let's say there had only been one program, and that program had a 60-minute slot but it

12 only ran. for 46 minutes because of the advertising.

13 And in those 46 minutes, there was 15 minutes of

music. As I understand what you'e saying, you would

15 the number you would use in Paragraph 21 you would

16 say there was 15 minutes of music in one hour of

17 programming.

18 That's exactly correct.

19 So for the purpose of the hour of

20 programming, you use the entire time slot but you'e

21 just taking the minutes of music in the program

22 itself.

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That is correct.

JUDGE von KANN: But why did you exclude from your count the music during commercials? We'e

had some discussion here about whether music during commercials is compensable in this proceeding, and frankly I haven't gotten a very clear answer from

anybody yet. Maybe it will emerge. But we know

there's a lot of music in commercials, so why -- did

you keep that out of your study because you were

10 instructed by counsel that it's not compensable or something?

12 THE WITNESS: Well, whether I was

13 instructed or not, there's not a similar source like

TV Data that can identify what commercials were aired,

15 nor do we have cue sheets for commercials. So to do

16 something like that is pretty much impossible.

17 JUDGE von KMK: You didn't have the data

18 to do it.

19 THE WITNESS: Exactly. 20 JUDGE von ~: Okay. 21 THE WITNESS: Not to be able to do that,

22 not just for these purposes but for other purposes as

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well.

BY MR. MAUSH:

Q Now, it has generally been our position consistently through these proceedings that we'e not seeking compensation for music in commercials. And, again, that data is not regularly kept. Your testimony also covers a description of evidence of music in radio broadcasts on distant signals. Yes.

10 Q And that starts at Page 10 and runs

through Page 11. Do you have before you?

12 Yes, I do.

13 Q Can you describe what you did in that regard?

15 What we did here is to collect information

16 that exhibits the continued use of music radio

17 signals, most of which are FM on a variety of cable

18 systems. That evidence is a combination of Statement

19 of Accounts that are filed as well as logs that are

20 produced by BMI's Licensing Department for whatever 21 purposes they use it for. And those exhibits simply show that music is used quite a bit on retransmitted

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signals.

Q Okay. I know the testimony describes

commercial radio stations. Was that what you were studying? It was pretty much any radio station that aired. I believe most of them, if not all of them, were commercial radio. I'm not sure that's the case,

but I think the important fact is that it's FM -- for

the most part FM music radio is retransmitted over

10 distant signals today -- or 98-99 as it was in the past.

12 Q Okay. Now, you understand that the

13 arbitrators have expressed an interest in trying to determine music use in 1983, and in that regard are

15 you undertaking an effort to attempt to determine what

16 can be done?

17 Yes. We'e taking a look, we have some

18 people working on this as we speak. And we'e not

19 sure what we would be able to accomplish, we'e still 20 in the early stages of collecting data. Nineteen 21 eighty-three data is a lot spottier than the more

22 recent years, than the '90s, and I'm not sure we can

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even produce any kind of an apples to apples

comparison. But whatever we can possibly do we'e attempting to do it now. Okay. Thank you. That's all I have on direct, Your Honor. JUDGE von ~: Okay. One question about this last point that it's spottier back in '83. I noticed in tbe -- I'm not sure where it is bere in your testimony where you refer to the percentage of

10 cue sheets, 77 and 73, I think it was, that you got.

THE WITNESS: Right. JUDGE von ~: Looking at Page 9, two questions about that. You say these figures represent

77 percent of the programming for 91-92, 73 percent of the programming for '98 and '99. Is that in terms of number of programs or number of minutes'

THE WITNESS: That's the number of tbe

18 hours on the air.

19 JUDGE von KMN: Hours. Okay. So of tbe

20 number of bours in your 91-92 study, you got the cue

21 sheets for 77 percent of that time? Is that the idea?

22 THE WITNESS: That's correct. Yes.

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JUDGE von KANN: Okay. The other question was I was a little surprised there's not a huge difference between the percentages, but you got actually a little bit higher return on the older period, which surprised me. I would have thought it

would have been flipped. Why was a higher return for 91-92, do you think, than for 98-99?

THE WITNESS: You know, interesting

question, and I -- those number of kind of surprise me

10 too. It's the way it turned out. What we did do, which is part of our procedure, is to attempt to get

as many of those cue sheets as possible. In fact, one

of the procedures that we undertook as part of this study is to take another look at all the shows that remain unidentified in both sets of years and made

another attempt to get as many of those cue sheets as

possible. And we did succeed in getting quite a few

18 additional cue sheets, both BMI and with the help of

19 ASCAP, and these are the numbers we came up with.

20 JUDGE von KANN: I guess the fact that you 21 did a little bit better with the ones that were from

22 the 91-92 prompts me to ask why do you think you would

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necessarily not do very well with ones that were seven years before that or whatever it would be, eight years before that, in '83?

THE WITNESS: Well, first of all, we don'

have the TV Data information to use for those sets of years, which is a huge factor.

JUDGE von KANN: Okay.

THE WITNESS: So we'e having to scramble

just to get the program listings. And we have to

10 start there first, because if we don't have the

program listings, then we can't do anything about the

12 cue sheets. During this time period in the '90s, BMI's databases were improved tremendously in terms of

the number of cue sheets that we entered. And that

may not relate back to shows that were aired in 1983.

Let me give you an example of that. Let'

17 say there was a series that aired in 1983 but

18 continued to air in years after 1983. The information

19 we may have in terms of the cue sheets for those

20 episodes may not date back to the 1983 period. So I'm

21 just concerned about possibly having to use a cue

22 sheet for episodes that were aired later without

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having the cue sheets for the 1983 period. I'm not

sure how representative that would be. We have to

see, we don't know yet, but that's a concern of mine.

JUDGE von KANN: Okay. Now, the other

thing about this I wondered is 73, 77 percent, that' around about three-guarters, so you'e getting about three-fourths cue sheet -- you'e getting cue sheets

on about three-fourths of the programming. You may or

may not hear somebody raise issues about whether

10 what impact that has on the statistical validity of

the study and so on. But one thought occurred to me,

which is it's not necessarily clear to me that that percentage return is sort of even across the board.

Maybe you got 50 percent of the cue sheets back for

commercial television, 95 percent of them back from

program suppliers, 32 percent back from public.-- you

17 know, there could be different programming groups that

18 had sort of different response rates, which might

19 affect some of the information about that. Do you

20 have any recollection of whether the response rate on 21 cue sheets is fairly even across the different 22 programming types or was there some market difference

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between them?

THE WITNESS: That's a very good question, and I have looked at that because I had the same

concern as you about the 75 percent, approximately. Is it representative or not. And looking at the types

of shows that we have matched as well as the shows we have unmatched, it appears that there has been little change in that between 91-92 and 98-99. Specifically, it looks like the majority of the programs that remain

10 unmatched are local news for basically there are no

cue sheets, for many sporting events where cue sheets

12 are hard to come by, infomercials whereby TV Data

13 rarely has the actual identity of -- they simply have a generic term, "paid program." Those are very high in music content. But it seemed like generally there 16 was the same class, the same ratio of these types of

17 shows that were missing from both sets of years. So

18 that leads me to believe that what we do have

19 identified is representative, at least in a

20 comparative sense, between the two sets of years.

21 JUDGE von KMN: Okay. And just to fill 22 this out a little bit more, I'm trying to get a sense

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of who it is that sends you the cue sheets. Now, let's take -- I think this one maybe would be public broadcasting. I assume it's each individual public

broadcasting station or does it come all through PBS in some centralized fashion?

THE WITNESS: It would usually come either

through PBS or the producers of the shows themselves, not the local television stations JUDGE von ~: Not the local stations.

10 THE WITNESS: No.

JUDGE von KA5K: Okay.

THE WITNESS: It's rarely the local television stations that send us cue sheets.

JUDGE von KANN: Okay. Switch over to Nr.

Stewart's group, the Commercial Broadcasters. Who

sends you the cue sheets that would evidence what

17 they'e doing?

18 THE WITNESS: For the most part, it is the

19 producers of the shows or to the extent that those

20 syndicated programs were originally ABC, CBS and NBC,

21 we would have had them with their first run on the

22 networks through ABC, CBS and NBC before they went to

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syndication. So it's a combination of the three major networks as well as the producers of shows of other syndicated programming.

JUDGE von KANN: Well, we know that a certain chunk of the time of the commercial broadcasters is local news, public affairs, that sort of thing for different stations around the country. Are you saying that that's one of the areas where you

had some difficulty in getting cue sheets?

10 THE WITNESS: Absolutely. Those are areas

where BMI rarely gets cue sheets from the majority of

12 stations

13 JUDGE von KANN: And then how about with

respect to the claimant group we call here the Program

15 Suppliers, syndicated programs, movies and so on?

16 Again, it's the producers of those individual

17 syndicated shows that supply the cue sheets?

18 THE WITNESS: Yes. Or in the case of

19 films, it would be the film companies.

20 JUDGE von KANN: Okay.

21 THE WITNESS: And we usually do very well

22 on those.

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JUDGE von KANN: Okay.

THE WITNESS: As you can see in the study.

JUDGE von KANN: And the Canadian Claimants, do you get the same thing again, it's the producers rather than the individual stations?

THE WITNESS: I'm not sure what kind of

programs we would get from the Canadian suppliers. It

might be some of the same shows. They have to be

broadcast on U.S. -- United States stations for BMI to

10 be involved, because BMI has licenses with U.S. television stations only, not Canadian television

stations. So we don't actually collect the

information on Canadian stations. To the extent that Canadian programming is shown on U.S. television

stations, then, again, we would get those cue sheets

16 from the producers of that programming, for the most

17 part.

18 JUDGE von KANN: And how about the Sports

19 Claimants, baseball games, football games, basketball,

20 hockey? How do you get cue sheets on them?

21 THE WITNESS: Local television they'e

22 very difficult to come by. We do pretty well on the

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networks, again, ABC, CBS and NBC and Fox.

JUDGE von KANN: ESPN?

THE WITNESS: ESPN is spotty also. There

aren't nearly as many cue sheets available for sporting events as there are for other shows with the

exception of the three major networks, say NFL Football and so on.

JUDGE von KANN: Is this cue sheet system still not only with respect to the time frames you'e 10 studying but this is still the way you keep track of the music use? Because it seems to me it', a, a 12 little antiquated, b, it's asking the fox to report

13 how many chickens they'e eaten, sort of, to some

extent. It seems like a strange way to do it. You'

15 think there would be a better way for you to keep

16 track of who's using your product then sort of to hope

17 that they'l send you complete and exhaustive lists of

18 all the music they'e done.

19 THE WITNESS: Well, it would be great to 20 be more automated than this. It would help everybody

21 out, I think, especially people like BMI and ASCAP

22 whose work is so data-intensive. The more electronic

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it is the better it is for operations. Unfortunately, it hasn't come down to that. I guess each individual show someone's got to sit there and count up the minutes of every piece of music, and I guess it's just

a tedious task, and I'm not sure there's a way of

automating that. That's not up to me, though.

JUDGE GULIN: Let me follow up a little

bit. I guess those who are sending you the cue sheets they don't really much care what the results are, do

10 they? They'e got a blanket license, right?

THE WITNESS: That's right. There'

12 generally no gain or loss for them.

13 JUDGE GULIN: Except perhaps when it comes time to renegotiate their contract or license then

15 maybe

16 THE WITNESS: Perhaps.

JUDGE GULIN: -- they would prefer to be able to say they'e not using music as much as they

19 used to or something along those lines.

20 THE WITNESS: Well, I would just add that

21 those cue sheets are created not just for BMI and

22 ASCAP. They'e created as part of the normal process.

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We'e just one of the recipients of that.

JUDGE GULIN: Now, in. determining, for

example, how the music intensity used by sports, you can look at the networks, I guess, and determine how

much music is used in an average game, average

football game, because you get those cue sheets, correct?

THE WITNESS: Yes.

JUDGE GULIN: From the networks.

10 THE WITNESS: Right.

JUDGE GULIN: And I guess you could

12 extrapolate then what it would be in terms of local

13 station transmissions, correct?

14 THE WITNESS: I'm not sure that would be

15 statistically valid to do that. The music content

16 might be different on the networks, in network shows

17 of sports than on local television production of

18 sports, and I'm not sure we want to make that leap to

19 do that. I think we wanted to keep the information

20 that we included in the study -- the cue sheets that

21 exactly matched as much as we possibly could rather

22 than to create something that may or may not be

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appropriate.

JUDGE GULIN: Okay. Now, in terms of getting the data -- you mentioned that it would be very difficult to get the data for 1983 because you

wouldn't have access to TV Data data for 1983, and I

thin we appreciate that. But perhaps by way of guidance, even if you can't come up with an apples to apples type of comparison, perhaps -- and even if you have to use some different type of metric, I think

10 what the Panel would be interested in is not necessarily absolute numbers, whether there was an

12 increase or decrease by how much percent from '83 to

13 '92, but merely a determination as to whether there was a decline or an increase I think would be helpful.

15 THE WITNESS: I'm sorry, I didn'

16 JUDGE GULIN: Whether there was an

17 increase of decline in music usage from '83 to '92

18 even if you can't give us an absolute number. So you

19 may have to use a different metric perhaps, but I

20 think that's what we'd be interested in. I think

21 that's the only other question I had.

22 JUDGE YOUNG: The only question I had is

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I wanted to make sure I heard properly. Did you say

that you weren't looking to determine minutes per category, program type category?

THE WITNESS: That's right.

JUDGE YOUNG: But your observation, it' your sense it was relatively even?

THE WITNESS: No. My observation was that the missing programming sets of years were

approximately -- they had the same composition. So we

10 don't -- of course, we don't know the music content of

what we don't have cue sheets for, but of the 23

12 percent of the programs that we don't have in 91-92

13 and the 27 percent of the programs we do not have in 98-99, the makeup of the types of programs in each of

15 those sets of years look to be about the same.

JUDGE von KANN: You didn't get a lot of 17 info on news in the first period, and you didn't get

18 a lot of info on news in the second period.

THE WITNESS: Right. It was about the 20 same amount of news with both sets of periods, so it 21 seemed to balance out.

22 JUDGE YOUNG: And for the information you

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did get was there a way to determine a distribution across program categories?

THE WITNESS: That's not something we attempted.

JUDGE YOUNG: Did you have any observations?

THE WITNESS: I actually did not.

JUDGE von KANN: Okay. Seems like this is a good place to break, and I'l let you all talk about 10 the order of cross. Mr. Mause, if I could ask you, we have two orders here granting the Canadian motion to

12 correct parts of the testimony and also setting the

13 hearing on May 29 concerning the Devotional and NPR

14 settlements. If you'd just pass those out to everybody, we'd be grateful. Thank you. We'l take

16 15 minutes.

17 (Whereupon, the foregoing matter went off

18 the record at 3:05 p.m. and went back on

19 the record at 3:25 p.m.)

20 JUDGE VON KANN: Okay. Mr. Stewart, I

21 guess you'e on.

22 CROSS EXAMINATION

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BY MR. STEWART:

Q Mr. Krupit, good afternoon. My name is John Stewart, and I'm representing the Commercial Television Claimants in this proceeding. We'e the claimants for the station-produced programs such as

local news on commercial television stations in this

proceeding. Okay?

Okay.

JUDGE YOUNG: He wants those cue sheets.

10 (Laughter.)

MR. STEWART: We'e going to get to that.

12 BY MR. STEWART: First, I'd like to write sort of an outline bere on tbe board. And first, tbe music use 15 study that you have testified about had as its

16 objective to measure whether music use in general went

17 up or down between 1991-'92 and 1998-'99, is that

18 r3.gbt?

19 That's basically correct, yes.

20 Okay. I'm going to erase this big zero,

21 which I think was Mr. Garrett's proposed share for the

22 Program Suppliers.

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(Laughter.)

And I'm going to write down what I think

are the elements of -- let me ask you to confirm this. The study that you did first required a selection of stations to be studied, correct? Yes.

Q And then, secondly, it required a selection of days or dates to be studied, correct? Yes.

10 Q And then, third, you identified the programs that were to be studied on those stations on

12 those dates, correct?

13 That's right.

14 Q You then collected cue sheets for those

15 programs to identify music use on the programs, correct?

17 That's correct.

18 Q Okay. Now, you then had to calculate,

19 based on the cue sheets, the amount of music use,

20 correct?

21 That's not what I did.

22 Q Okay.

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What I did was simply gather the information that's contained in the cue sheets and attached them to the programs that were aired on the stations and the dates.

Q Okay. And so what happened next in the

study was some kind of computation to produce results,

and who did what is exactly what I'm going to ask you on each of these. And then, finally, some statistical tests, is that -- are you aware of that?

10 Yes.

Okay. And just reading down the list, the selection of the stations to be studied was done by

13 Dr. Hoyle, is that correct? For the 1991-'92, yes, and, for 1998-'99,

it was -- we talked together about that ~ Well, for 1998-'99, the only change in the

17 stations that were already selected was just to go 18 down the list, the top-down list, and pick the next 19 five.

20 Pick the next five, that's right.

21 Q Were you the person responsible for

22 selecting the dates?

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I think the decision to use the FCC

composite week was, again, given to me, and then it was just a calculation of the dates after that.

Q Given to you by Dr. Boyle? Yes.

Q The information about the programs, you simply collected all that you could get for those dates for those stations, correct?

The programs actually from the TV Data

10 Q Right.

information that's -- that BMI buys.

12 Q Oh. BMI already had acquired that, so you

13 simply collected that TV Data data for those dates and

14 those stations?

15 Yes.

16 Q And then you or your staff did the

17 analysis of the cue sheets that showed up on those

18 dates on those stations, correct?

There were various BMI personnel that

20 worked on that.

21 Q Okay. Was it all under your supervision? 22 No, it was not. It was not.

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What was your role? Well, a lot of that was done beforehand.

The TV Data information comes in on a regular basis and gets incorporated into BNI's databases as the normal course of quarterly business. And the matching that's done is also done on a regular basis. What was

done under my supervision is just to check the results and fine-tune and make sure that things were done properly.

10 Q Okay. The computation of the final averages and overall results was done by Dr. Boyle, is

12 that right?

13 That's right.

14 Q And the statistical tests were done by Dr. Boyle, is that right?

16 That's right.

17 Q Okay. Now, if the selection of the

18 stations was done in a way that made them not a representative sample of the relevant universe, the 20 study would not meet its objective of producing an

21 accurate measure of the music use between the two

22 periods, is that right?

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I suppose so.

And the same goes for the dates -- if the dates were selected on a basis that made them not representative of the relevant time periods, you would not be able to have produced accurate results, is that right? Yes.

Q Not accurate but valid results. I suppose so, yes.

10 Q Let's go back to the selection. of dates.

Are you aware of the fact that the FCC selected a

12 different composite week for each of the years in

13 which it still had that system in place?

14 No, I wasn't aware of that.

15 Well, what is your view about whether

16 there is variability among the programs broadcast on

17 television stations across different months of a

18 particular year?

19 Well, of course, there are different

20 seasons in television, and each season of the year

21 often has different programs, and there are some

22 programs that are not different. And, you know, to

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the extent that there are syndicated shows that are played all the time, I don't think that changes much at all over the course of a calendar year.

Q Well, if you accept as a premise the fact

that the FCC selected a different set of dates and different -- and encompassing different months each of the years, then using the same months and weeks to represent these four different years spanning an eight-year period would not really replicate the FCC's

10 process of random selection of dates, would it? Perhaps not. I'm not sure.

12 Q Are you aware of -- what's your view about

13 whether there is variability in the programs that stations broadcast across stations? That is, is there

15 much difference between the programs broadcast by one

16 station and another station in the broadcast universe? I'm not sure I understand your question.

18 Q We talked about whether different

19 whether on the same station there might be different

20 programs broadcast different times of the year. Okay.

21 That was the dates part.

22 Yes.

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Q If you look now at two different stations, is there likely to be a difference in the programs that they broadcast during the year? There might be, and then there might

you have to look at the two stations to really determine that, I think.

Q What factors would you consider in deciding whether it was likely there would be variation in the programs broadcast across stations?

10 You'd have to look at the programs themselves.

12 Q What about different types of stations?

13 Different types of stations such as? Well, network affiliates and independent

15 stations. Is there a difference between the kinds of

16 programs that those two types of stations typically

17 broadcast?

18 My belief is that it's generally the case

19 in some of the programming. Some of the programming

20 would be similar and some would not.

21 Q So, in your view, network affiliates and

22 independent stations are not different from each

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other, or not significantly different from each other in the programs that they broadcast? Well, significantly different indicates there's a statistical difference between, the two. I can't represent that without doing a study on that.

But just looking at the programs over the course of my

career, there are some programs that are similar, and

there are some that are not.

Q How about public broadcasting stations and

10 commercial broadcasting stations? Do you think it' likely that they differ in terms of the kinds of

12 programs that they broadcast?

13 Yes, I think so.

Q So if you were trying to do a study that represented -- that included public broadcasting stations, should you include some public broadcasting

17 stations?

18 I think it depends on the premise of your 19 study. If your study is to include the most important 20 stations in the years that you'e looking at, you have 21 to include whatever stations happen to fall into that 22 group in that year.

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Q So let's go back to that. That' essentially the objective of this study. And would

you -- strike that. Let me start over. Based on what you just said, it sounds like the objective of this study was a different one from the one that I stated. That is -- or what I stated originally was to provide a valid representative look at the entire universe. Is that not the objective of this study?

10 Of the entire universe of?

Q Of distant signal stations. Well, of course, we'e not studying the entire universe of distant signal stations. It's a sample of stations.

And what was the sample intended to represent'?

17 The sample was intended to represent the

18 most important stations -- a representation of

19 stations that includes the most important stations in

20 each set of years.

21 Q Okay. But without regard to whether it

22 also represented the entire universe of distant

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signals for those years? I'm not sure. There might have been some representation of that.

Q Now, you said during the course of describing what you did that you excluded or eliminated network programs from the cue sheet analyses that you did, is that right? That's right.

Q What network programs were those?

10 There were two stations in '91 and '92 that were network affiliates.

12 Which ones were they?

13 Let me look at the list of stations. I

think it was WITN, WHAT Let me verify that, one

minute. That's right. WBAL and WITN were network affiliates, and--

17 Q Any other stations?

18 Excuse me?

19 Q Any other stations that

20 Actually, in '98-'99, one of the stations

21 that we used in '91-'92, KSHB in Kansas City, switched

22 to a network affiliate in '98-'99. So in all of those

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cases we needed to exclude the network programming on those stations.

Q Why did you need to exclude the network programming?

Well, I was informed that the network programming is not part of this procedure.

Q So those programs are not compensable, so you didn't study the music in those programs?

10 Q It appears that those three stations in

'98-'99 were all affiliates of the same network. Do

12 you know what network that is?

13 No, I don'.

Q Do you know whether that's true?

15 I don't know whether that's true or not.

Q You didn't focus on whether they were an

17 affiliate of any particular network?

18

19 Q Okay. Now, with respect to WON, did you

20 exclude any programs from your analyses in 1998-'99?

21 No, we did not.

Q Okay. You assumed that all of the

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programs on WGN were compensable in this proceeding? That's correct.

Q I'd like to look at your Exhibit 30 with you, and in particular direct your attention to

page 34 of 48. Well, first we'e going to look at

page 48 of 73. No, I'e got the wrong exhibit. I'm sorry. Hold on a second, if you'l bear with me. I

want to look at pages 32 and 33 of Exhibit Number 30, okay?

10 Can you say that one more time, please?

(Laughter. )

12 Q That's my final offer.

13 (Laughter.)

14 Pages 32 and 33 of Exhibit 30. Are you

15 there?

16 Yes, okay. I'e got it.

Q Now here, starting at the bottom of

18 page 32 and running over to page 33, are repeated

19 listings of the show name News, do you see that?

20 Yes.

21 Q What were those programs? It looks like they were primarily local

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news shows.

Q And they appear to have descriptions that relate to the time they were broadcast and the duration of the broadcast, is that right? I would assume that's most likely correct.

Q And if you look over on page 33, there are actually a number of specific descriptions that

include WBAL, the call signs of a Baltimore network affiliate, is that right?

10 That's correct.

Q Now, let's turn to -- this is the exhibit

12 that lists all of the programs for which you had TV

13 Data information for 1991-'92, correct? Yes.

15 Q If we turn. to Exhibit 31, which is the

16 1998-'99 program list, and go to page 48, do you see

17 there's a single listing of show name news there?

18 Yes.

19 Q Why is there only one listing?

20 Okay. If you go back to pages 32 and 33

21 of Exhibit 30, you'd see that each time that News

22 appears under the show name column there is a

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different description. There is a different set of alpha characters in. the description field.

The way these two lists were sorted each time the combination of these two fields changed there

was a new listing. So if you look at the first

instance of News on page 32 of 48 Yes.

Exhibit 30, you see there's show name

News, description news. You know, there may very well

10 have been many, many performances or occurrences of

that show with those two exact configuration of alpha

12 characters. Similarly, in the 1998-'99, on page 48 of

13 Exhibit 31, you had that same listing -- news and

news. And, similarly, there's probably many, many

15 examples or episodes of that precise configuration of

16 show name and description.

17 Q Okay. And for the '98-'99 listing in

18 Exhibit 31 at page 48, do you think that single

19 listing for news encompasses all of the station-

20 produced newscasts, local newscasts on all of the

21 stations in

22 Yes.

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Q Okay. And the next listing, News at 11,

is actually just a title of a TV movie and not an actual newscast, is that right? I couldn't tell -- I can't tell from this

exactly. According to TV Data, that would seem to be

the case. And I don't remember -- Jeffrey Lyons was here. I'm sure he would have seen this movie and could tell us exactly the plot and the music and all that. I don't remember. This might be a film.

10 According to TV Data, this is indicating a film News

at 11

12 Q Okay. Now, if you would turn to

Exhibit 33, here now we have the titles, the programs

listed in Exhibits 30 and 31 shown for every program

15 for which you had a match for the cue sheet, correct?

16 That's right.

17 Okay. And if you turn to page 32 of

18 Exhibit 33, you see there's no listing for the show

19 name News, is that right?

20 That is correct.

21 Q And similarly, that's the '91-'92 list,

22 and, similarly, if you go to Exhibit 34 at page 52

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Yes.

Q you see no listing for the News program Right.

Q for '98-'99, correct? That is correct.

Q Okay. So essentially -- and this confirms your general statement that you don't get cue sheets for news -- for local newscasts, right?

10 Well, at least on the shows and the stations and the dates that were included in this

12 study we do not.

13 Q Okay. Now

14 JUDGE VON KMK: Can we pause a second

15 here? I'm on page 52 of Exhibit 34. And there again

16 is News at 11, TV movie. It seems to me a bit

17 unlikely that a TV movie called News at 11 showed on

18 one of your survey dates in '91-'92 and then also

19 showed on one of your survey dates in '99-'98.

20 THE WITNESS: No, no. The

21 JUDGE VON ~: Oh, I see. That's right, 22 because it was the original programming group, and

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then the one for which you had data. You'e right.

Okay. That makes sense.

THE WITNESS: Okay. It looks like it was

a TV movie after all -- a film after all, 17 minutes,

17 plus minutes on it.

BY MR. STEWART:

Q And that would be extraordinarily unlikely for an actual newscast, would it not? To have I think it would be unlikely, yes.

10 Okay. That's fine. Now, going back to

the questions you were asked about the 77 percent

versus 73 percent match rate, it is the case, is it not, that if the stations in the study in general had more local news programs in 1998-'99 than they did in '91-'92, that that would -- that could cause a reduction in the amount of matched. program hours,

17 correct?

18 If you only looked at the news programs and no other type of program, that might -- you might

20 make that conclusion.

21 Q And if that were the case -- let's just

22 take that as a premise. If the stations in the study

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had more local newscasts in '98-'99 than they did in '91-'92, and those newscasts had relatively little music in them, then the fact that they'e not picked

up by your study because they are not matched with cue sheets would produce a misleading result, would it not, in terms of whether there was more or less music use between those two groups? That would be -- that could be the case. But, again, I say you have to look at the other

10 program types, too, because there could very well be other -- more music-intensive program types where

12 there were more unidentified in the later set of years

13 than the earlier set of years. And they would counteract each other.

15 Are you familiar with the term "direct

16 licensing?

17 Yes, I am.

18 Q And do you know what the per program

19 license is?

20 Generally, yes.

21 Q Between '92 on the one hand and '98-'99 on

22 the other hand, per program licenses were adopted by

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many more -- by many stations, is that right? I believe they were. I'm not entirely sure on that.

Q And under a per program license, a station could reduce the amount of royalties it had to pay to

ASCAP or BMI or SHSAC by reducing the amount of music that it used in the programs that it could actually control, including local newscasts, correct? I'm sorry. Could you repeat that, please?

10 Q A per program license allows a station to reduce the royalties it pays for music by reducing the

12 amount of music it uses and the programs it can

13 actually control, right? Generally, yes.

15 Q And if a station is broadcasting a

16 syndicated program, it doesn't have an opportunity to

17 change the amount of music used in the syndicated

18 program, does it? 19 That's right, it does not.

20 Now, with respect to local newscasts which

21 the station produces, it may be able to reduce the

22 amount of music used in the newscasts, correct?

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If it wanted to, it could.

Q And if it was possible that it would reduce -- allow it to reduce the amount of royalties

it paid to ASCAP, BMI, or SESAC, it might have an incentive to do exactly that, correct? It might, yes.

Q And direct licensing would be a way for it to acquire music for use, for example, as a theme in

a local newscast without paying royalties to ASCAP,

10 BMI, or SESAC, correct? That would be a method, yes.

12 Q Okay. Now, I'd like to show you -- oh,

13 first of all, I'd like to have marked as Exhibit NAB

23-X a BMI document that I printed off from the

15 website. 23-X.

16 (Whereupon, the above-referred

17 to document was marked as NAB

18 98-99 Exhibit No. 23-X for

19 identification.)

20 JUDGE VON KANN: Mr. Stewart, according to

21 my unofficial survey, the NAB is leading the pack in

22 cutting down trees in the rainforest here.

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MR. STEWART: Is that by page?

JUDGE VON KANN: Yes. You'e got more pages than anybody else.

MR. STEWART: I'm just trying to provide a complete record.

BY MR. STEWART:

Q We had a witness from ASCAP the other day

who confirmed that ASCAP treats theme music differently from feature music and background music,

10 in terms of the credits that it provides to composers

or claimants. And this document is called BMI Royalty

12 Information printed off the BMI website. Are you

13 familiar with it?

14 I'm somewhat familiar with it.

15 Q If you turn to page 10 of this document--

16 the numbers are down. at the bottom in that little plus

17 srgn.

18 Yes.

19 You'l see in the chart there, Local 20 Television Rates, that, again, the theme music is paid 21 for at a lower rate than feature music, correct? 22 Yes, it is

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Q And do you know what the meaning is of the "per show" in parentheses below the word "theme"?

MR. MAUSE: Your Honor, I'm going to object to this line of questioning, because it goes beyond the scope of the witness'irect testimony. He's testifying as to what the music claimants'hare should be of this fund, and this questioning gets into

how the music claimants distribute money among their

claimants .

10 We have not inquired as to, for example,

how NAB is going to distribute its share, whether it' going to use the Rosston study among its members to

distribute what it gets. And we feel this is both irrelevant and. beyond the scope of the direct.

MR. STEWART: I don't think this has and I don't mean to suggest that this has anything to

17 do with how the music claimants will distribute

18 royalties they receive in this proceeding.

19 We'e talked -- we have already had

20 testimony about the fact that in newscasts which are

21 in my category there is a use of theme music and 22 substantially less feature music in newscasts. This

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is another indication that the music licensing societies treat theme music as lesser in some way that's relevant to them than feature music.

JUDGE VON KANN: Well, what do you say about beyond the scope of bis testimony, which is a little different issue?

MR. STEWART: In his testimony be presents the question of overall music use between '91-'92 and '98-'99, and there's a big missing chunk of that,

10 which is tbe station-produced newscasts. And station- produced newscasts use programming that is deemed less

12 deemed proportionately less valuable in the BMI

13 distribution method.

14 And the redirect question asked of the

15 ASCAP witness last week was tbe ASCAP methodology that

16 gives a balf-credit once per show to theme music is

17 only ASCAP's, and here we -- and here I'm trying to

18 complete the record and put in the BMI method.

19 JUDGE VON KANN: Okay.

20 (Bench conference.)

21 First of all, I don't think we -- we are

22 not particularly -- we are not at all interested in

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Phase 2 distributions. But I understand Mr. Stewart

has a different theory for the relevance of this. I think it's probably a bit beyond the direct of this

testimony, narrowly construed, of this witness'estimony.

However, we'e conscious of the fact that

both Mr. Saltzman and Dr. Boyle are ASCAP witnesses, and you want to round it out a bit with some question

of BMI. And to avoid hopefully having to bring

10 somebody in on rebuttal, we'l allow a little bit of questioning in this area. I don't assume it's going

12 to take too long, Mr. Stewart.

13 MR. STEWART: No.

14 BY MR. STEWART:

15 Q My question to you, Mr. Krupit, was

16 whether you know what the words in parentheses below

17 the word "theme," words "per show" refers to.

18 I can't say as I do.

19 MR. STEWART: I would move for the

20 admission of this for impeachment purposes.

21 JUDGE VON KMK: Well, we have been pretty

22 broad about that. It is off of the BMI website, I

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guess. Mr. Mause, any objection?

MR. MAUSE: No, we will not object.

JUDGE VON KANN: Okay. We'l receive it for impeachment. (Whereupon, the above-referred to document, previously marked

as NAB 98-99 Exhibit No. 23-X for identification, was received in evidence.)

10 BY MR. STEWART:

Q Mr. Krupit, may I ask you to take a look

12 at the black binder there to your left. I'd like to 13 ask you to look at the 1983 decision. It'l be Tab

14 Number 12 .

15 Okay.

16 Q This is Volume 51 of the Federal Register,

17 is that right? Can you see that up on the top of the

18 page?

19 I see Federal Register, Volume 51,

20 Number 72 .

21 Q Okay. Would you turn to the page numbered

22 12801 up in the upper right-hand corner?

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Okay. I am there.

Q Okay. In the left-hand column, the second full paragraph on the page starts -- begins, "The

success of MTV," do you see that? Yes, I do.

Q Okay. And would you just take a moment and read that to yourself, please?

Okay.

Q Okay. Now, turning -- in that paragraph,

10 the Tribunal talks about how three of the superstations began airing music video programs and

12 were airing them in 1983. Are you familiar with what

13 a music video program is?

Yes. It's a show that shows videos, music

15 videos.

16 Q Okay. And are you familiar with these

17 particular programs that are listed here, FM-TV, Solid

18 Gold, Midnight Special, or Night Tracks?

19 I remember Solid Gold and Midnight

20 Special. I used to watch those shows.

21 Q Okay. Would you look at your Exhibit 33,

22 please. Why don't we look, actually, in Exhibit 30.

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That's the list of all programs that were in your database for '91-'92. Right.

Q And you can check this if you'd like, in particular for Solid Gold and Midnight Special. But they don't appear in that list when I checked it.

Would you like to check for yourself, or will you take Sure.

10 my word for it? Solid Gold and Midnight Special are the two.

12 JUDGE YOUNG: Which exhibit are you

13 looking at?

MR. STEWART: We'e looking at Exhibit 30.

15 THE WITNESS: Midnight Special is not

16 there. Solid Gold is not there.

17 BY MR. STEWART:

18 Q And how about Night Tracks?

19 Night Tracks is there.

20 Okay. And if you now turn to your

21 Exhibit 33 -- this is tbe actual matched minutes

22 and look for Night Tracks on page 33 of 46.

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Yes.

Q Do you see that Night Tracks Chart Busters

bad 4 8-1/2 minutes of music, Night Tracks had 17. 56 minutes of music? Yes.

Q Okay. And there's another Chart Busters listing there with only a minute, 1.7 minutes, is that right? Yes, I see that.

10 Q Okay. Now, did that music video program

or any -- that music video program ran on WTBS,

12 correct?

13 Yes. That's what it says here. And under the weighting system that was

15 used to compute the final results in terms of music

16 use across these years, that would have gotten the

17 highest weight by far, correct?

18 In those sets of years, that's correct.

19 Okay. Now, those programs -- that program

20 did not show up in 1998-'99, correct?

21 I would have to check that to be sure.

22 Yes. Neither of those three shows appeared in '98-

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'99.

And, in fact, it's the case, isn't it, that the trend of new music video programs on commercial television stations -- those noted in 1983 in that decision -- didn't exist in 1998-'99, did it? Those particular shows did not exist, right.

Q And, in fact, the music video shows -- the

music videos were provided by MTV and VH-1 and other

10 cable networks in 1998-'99, correct? For music video shows specifically, yes.

12 For the most part, yes.

13 Q Okay. And are there any music video shows in your study for 1998-'99?

15 I don't know if there are music video

16 shows. I know there's a number of music shows that do

17 exist in '98-'99, and I know there's a number of music

18 shows that we didn't have cue sheets for in '98-'99.

19 But the music video genre, are you aware

20 of any music video program in 1998-'99? If you'e asking about specific music

22 video shows, no, I don't recall any.

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Q I'd like to turn next to your radio cable radio testimony.

Okay.

Q And look with me at your Exhibit 35, just flip over to the first statement of account that you'e listed there or that you'e provided there. Yes.

Where is the radio listed on this statement of account?

10 It's listed on page 4. There are a number of radio stations listed.

12 Okay. Now, which of these -- is any of

13 these radio stations a public radio station?

I wouldn't know that off hand.

15 Q Is any of these radio stations a non-music

16 station -- that is, a talk station or a sports

17 station?

18 Again, I wouldn't know that off hand.

19 Which of these stations has a distant

20 signal in this cable system, do you know that?

21 Which stations have a distant signal?

22 Q Yes.

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Well, isn't it true that they'e all distant signals, since they appear on Adelphia?

Q Why do you say that? I see Adelphia is in Coudersport, Pennsylvania. These stations are in Massachusetts and Rhode Island.

Q Would you look at -- you'e referring to the listing of the owner on the first page of the statement of account?

10 Yes.

In Coudersport, Pennsylvania. Would you

12 look at the area served under block D on the first

13 page?

Oh, I see. Falmouth (phonetic) -- or Falmouth, Massachusetts.

Q Falmouth, yes.

17 Sorry.

18 Q Do you know where Falmouth is?

No.

20 Q Do you know whether, in fact, any of these

21 radio stations that's listed on page 4 here is not 22 available over the air in Falmouth, Massachusetts?

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I wouldn't know that off band.

Q Do you know that -- are you aware of tbe fact that tbe compulsory license in tbe Copyright Act for the secondary transmission of broadcast stations for which royalties are paid applies to retransmissions beyond tbe "local service area of the primary transmitter"? I'm not aware of that.

Do you know how the -- let me just read

10 you tbe sentence from the definition section F of Section 111. There's a definition of "local service

12 area of a primary transmitter" that goes on in some

13 detail to describe tbe local and distant zones for television stations.

And then tbe last sentence says, "The

16 local service area of a primary transmitter, in tbe

17 case of a radio broadcast station, comprises the

18 primary service area of such station pursuant to the

19 rules and regulations of tbe Federal Communications

20 Commission." Did you make any analysis of whether any

21 station listed in these statements of account is

22 retransmitted outside its local service area under

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that definition?

No, I was simply asked to produce evidence that showed that there was a number of radio -- music radio signals played on cable systems, and that's what

we have here.

Q Okay. But you haven't indicated which-- you haven't analyzed which of these stations, if any, is a music station, right?

No, not in these.

10 Q And you haven't identified any of these stations as actual distant signals to tbe cable

12 system, correct?

13 That's right.

Q Okay. Looking at -- now, you mentioned

15 WFMT, but I couldn't find it carried on any system 16 except -- let's see if I can find it again. There'

17 one that's in tbe Chicago area. Yes, it's tbe third

18 statement of account. It's for a couple of

19 communities in Wisconsin. Century Venture Corporation

20 of Milwaukee. Do you see that? Century Venture Corporation? Yes.

22 Q And do you see on the radio listing page

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there WFMT appears, along with a whole lot of other Chicago and Milwaukee stations, right? Yes.

And do you know whether WFMT is received off the air in those communities in Wisconsin? I don't know. It's Chicago stations. I'm

not sure if that carries all tbe way over to Milwaukee, Wisconsin or not.

Q You don't know how far it is from Chicago

10 to Milwaukee?

12 It's a stone's throw.

13 I 'm no't

14 Q I used to throw quite a few back and forth.

16 Okay.

17 Q But you don't know whether, in fact,

18 that's a distant signal for this -- on this cable

19 system?

20 I don't know if that qualifies as a

21 distant signal or not.

22 Q Do you know whether WFMT is carried as a

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distant signal or as a direct licensed cable network, cable service? Again, I don't know the answer to that question.

Q And then, turning to your Exhibit 36 -- by

the way, I want to tell a little Chicago story also.

A lot of times at the Cubs games you'l see a lot of people with transistor radios up to their ears.

They'e listening to WFMT, the fine arts station.

10 It's a classical music station. Are you aware of that?

12 Yes.

13 Is classical music, in general, in the

public domain, or is it licensed by ASCAP, BMI, and

15 SESAC?

16 There's quite a bit of classical music

17 that's licensed by ASCAP and BMI and SESAC.

18 Q And that's because it's played -- that the

19 particular version played in under an arrangement

20 that's been created in a recent epoch?

21 It's a combination of arrangements of

22 older works which still are copyrighted by BMI, ASCAP,

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and SHSAC, and of 20th century written works which are still very popular and are played on fine arts

stations such as WFMT.

Q Do you know how much of -- first of all,

do you know how much music there is on WFMT as opposed to talk programs? I would venture to say there's quite a bit

more on WFMT. Quite a bit more?

10 More music. Than on all talk stations.

12 Than on talk stations in general.

13 Okay. Well, do you know about WFMT's

we had Studs Terkel here as a witness in maybe 1983

talking about his talk program -- talk show on WFMT.

And although I believe he's still alive he may not

17 have that program anymore. Do you know whether there

18 are talk programs on WFMT?

19 No. I haven't listened to it lately.

20 Q Do you know -- of the music that's played,

21 do you know how much is public domain classical music

22 and how much is not?

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I have not done an analysis of WFMT programming. Looking at your Exhibit 36, these are in effect -- oh, explain what these are, please. Okay. These are logs of radio programming that are played on cable stations that are produced for BMI's licensing department for their use. And the first one here it says it's a community bulletin board. Is that one of those things

10 that just shows on the screen different announcements that people submit to the cable system?

12 Yes. It's usually that blue screen with

13 the scrolling writing of community events and things

14 for sale -- of that nature.

15 Q Some of the most exciting programming on

16 cable television.

17 (Laughter . )

18 If your event is listed there, it would be

19 exciting.

20 With one exception as I flip through here,

21 there is no indication of whether it's actually a

22 radio station that's providing the music. Is that

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how do you know that these are radio stations listed here?

You couldn't tell from this -- from this log whether it's a radio station.

Q Okay. I think this is just meant to show that there is music behind the visual of the bulletin board.

Q Okay. And here again, you don't know, do

10 you, whether any of these channels use music from a distant as opposed to a local radio station, is that

12 right?

13 That is correct.

14 MR. STEWART: I have no further questions.

15 Thank you.

JUDGE YOUNG: Just going back to the

17 statement of accounts in Exhibit 35, and looking at

18 the two examples we looked at on page 4 of the system

19 in Palmouth, Massachusetts, as well as the Milwaukee

20 system, on page 4 where there is a list of the radio

21 stations there's different typeface in both lists. Do

22 you have any sense of whether that's significant?

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It's the same pattern in the second one as well.

THE WITNESS: I see that. I don't know if there's any significance to that, other than to fit all the letters in.

MR. STEWART: That's my theory. I noticed that, but it looks like it just wouldn't fit if you typed it the same size. Those are the longer words.

JUDGE VON KANN: Okay. The other question

is there was a question earlier -- and I don't know if

10 you answered this -- about whether there were any public television stations included in your sample for

12 '91-'92 or '98-'99.

13 THE WITNESS: Television stations.

JUDGE VON KANN: Broadcasters.

15 THE WITNESS: Yes, there were two public

16 television stations

17 JUDGE YOUNG: WLIW and--

18 THE WITNESS: And WNET in the '98-'99 study.

20 JUDGE YOUNG: Okay. Thank you.

21 THE WITNESS: Okay.

22 JUDGE YOUNG: Okay. I'm curious about

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that. Those are considered among the most significant stations in terms of the ranking that you were doing?

THE WITNESS: In '98-'99, they were. They

moved up to the top 10.

JUDGE YOUNG: From Long Island and from

Newark?

THE WITNESS: Those are probably the two

biggest PBS stations.

JUDGE YOUNG: Really?

10 THE WITNESS: Yes.

JUDGE VON KANN: Okay. Mr. Garrett?

12 BY MR. GARRETT:

13 Q Mr. Krupit, I'm Bob Garrett. I represent the Joint Sports Claimants. Good afternoon, sir. Good afternoon, sir.

16 Q Let me just represent to you that during

17 discovery your counsel provided us with a database

18 that shows -- that underlies the cue sheets that you

19 used in preparing your study. Are you aware of that?

20 Yes, I am.

21 Q Okay. And let me further represent that

22 this database has a number of columns of information,

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including the show name, description, and the call letters. Presumably that's the broadcast station on which that particular show was broadcast, correct? Yes.

The air date referred to the date on which that particular program aired? Yes.

Q Air time

MR. MAUSE: Your Honor, I believe counsel

10 may be about to introduce restricted material into the

record. And if that is -- that appears to be

12 happening, we probably should close the hearing for

13 that portion and seal the record.

14 MR. GARRETT: First of all, I just want to

15 get out what information we had. 16 JUDGE VON ~: Okay.

17 MR. GARRETT: Okay? And we'e about

18 three-quarters of the way there.

19 JUDGE VON KANN: Just the categories?

20 MR. GARRETT: Just the categories, right.

21 JUDGE VON KREIS: Okay.

22 MR. GARRETT: For right now. Secondly, I

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have no intention of introducing the entire database, if that's what the concern is here.

JUDGE VON KANN: Okay.

MR. GARRETT: Okay? I'm not going to do

JUDGE VON KANN: Let's take it step by step. If there's an issue, we'l deal with it.

MR. MAUSE: At this point it's okay.

JUDGE VON ~: Okay.

BY MR. GARRETT:

All right. And we'e agreed that the

columns of information includes show name, description, call sign, air date, correct? Yes. Air time, which as I understand it is the time that the particular program's broadcast began?

17 According to TV Data.

18 Q Okay. There's a column called SHW HRS,

19 which I assume is show hours?

20 Yes.

21 Q And that would show the amount of time

22 that that particular program aired.

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Well, the broadcast time slotted for that program.

Q So, in other words, it would include the commercials and promotional announcements as well. That's right.

Q Okay. And then, there is a column labeled

TOT MUSIC MINS, which I interpret to mean total music minutes? That is correct.

10 Q And that would show the total number of minutes of music in that program exclusive -- or

12 excluding any music that might be in the commercials

13 or promotional announcements, correct?

14 That is correct.

Q And then the last column says "matched,"

16 and there would either be a no or a yes there,

17 correct?

18 Yes.

19 Q And if there was a yes, that means that 20 you had a cue sheet that matched that particular

21 program.

22 That is correct again.

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Q And we'd find that cue sheet in one of

those 15 boxes that Mr. Mause Yes.

Q Okay. And if I go through that database, I'm able to identify all of the programs that you had that were JSC programs, correct? Could you repeat that again?

Q I could go through that database that we just talked about and identify all of the sports

10 programs that were within your study, correct?

You could do that if you knew all of the program names.

Q Okay. In other words, you go down the list of the program names looking for ones that say

Major League Baseball or Atlanta Braves or NIL or NFL, that kind of thing, right?

17 You could do that ~

18 Q Okay. Let me represent to you that we

19 have done that, and I want to -- the exhibit I do want

20 to introduce -- and you can tell me whether you think 21 it's confidential or not -- is two pages identifying

22 all of the sports telecasts that we could find in

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the

MR. MAUSE: We'l look at it and see okay. This doesn't have to be restricted, Your Honor.

BY MR. GARRETT:

Q All right. Let me have marked as JSC Exhibit Number 32-X the document that I just referenced.

(Whereupon, the above-referred

to document was marked as JSC

10 Exhibit No. 32-X for

identification. )

12 Mr. Krupit, do you have JSC Exhibit 32-X

13 in front of you? Yes, I do.

15 Q I will represent to you that we endeavored

16 to locate every JSC program that was identified in

17 your study for the years 1998 to 1999, and we were

18 able to find 35 such programs. Does that number sound about right to you?

20 I wouldn't know without actually looking

21 myself.

22 Q Okay. And it appears to us from the data

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that you provided that of those 35 programs you were able to find cue sheets for only eight of them. Does that number sound about right to you? That does sound about right.

Q Okay. Would it be consistent with your experience that you would only have cue sheets for

about 20 to 25 percent of sports programs? I really don't have a feel for the

percentage. I know it's different for local

10 television programs than from network television.

Q And that overall, including both local and

12 network television, you don't have -- well,

13 approximately what would it be for local television? I really don't know the answer to that.

15 know on network television it's very high.

16 All right. But we don't have any network

17 programs listed in your study here, do we?

18 No, we do not.

19 Q Okay.

20 My answer to you -- is this percentage

21 typical of local television or of distant signal? I

22 don't -- I wouldn't make that leap from this. I'd say

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on this particular study, on these particular dates, this appears to be what the ratio is.

Q All right. We also did a similar search

of the '92 sports programs, and we are not able to find any matched cue sheets. Does that sound about right to you?

Again, I have not looked. That may be the case.

Q Okay. One of the ways one could do this,

10 without getting into the database, is you could

compare your Exhibit 31 and Exhibit 34, correct?

12 Yes, you could do that.

Q 31 identifies all of the programs that

14 were in your sample, correct?

15 Yes.

16 Q And then, 34 identifies which of those

17 programs you had matched cue sheets, correct?

18 For the '98-'99 years, yes.

19 Q Right. And you did the same thing for

20 '91-'92 by comparing Exhibits 30 and 33, correct?

21 That is right.

22 Okay. Now, if I look at JSC Exhibit 32-X,

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the very first entry there, we see that there was an Atlanta Braves telecast that you included in your study, correct? Yes.

Q And that was the April 18, 1999, game against the Rockies, correct? That's what it says, yes.

Q And it was broadcast over WTBS, correct? Yes.

10 Q And the air date, once again, repeats what's in the description of 4/18/99, indicating that 12 it was broadcast on April 18, 1999, correct?

13 Correct.

14 Q And the air time was 1500, which would be

15 3:00 in the afternoon, correct?

16 Correct.

17 Q And that the total length of time of

18 telecast, including commercials, was three hours,

19 correct?

20 Excluding commercials

21 Q Excluding or including commercials?

22 Excluding -- oh, I'm sorry, three hours.

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Yes, that would be including commercials and promos.

Q All right. And during those three hours there were 9.02 minutes of music, correct? There were 9.02 minutes of music listed in. the cue sheet.

Q Okay. And that would have been -- the l 9.02 music minutes number, though, is the number that

we compare to the bottom line in your study here which showed an average number of minutes of music per hour,

10 correct? Well, let me strike that. The 9.02 is over the entire broadcast of

12 that Braves game, correct?

13 That's what that means, yes.

Q So you would divide that 9.02 minutes by

15 three hours to show that average in the Atlanta Braves

16 telecast you had three minutes of music per hour, excluding what might be in commercials and in promos.

18 Let me just add this. The three minutes 19 per hour was reported to us on the cue sheet for that

20 particular show.

21 Q Okay.

22 There may be additional music that is part

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of the broadcast, but it's not included in the cue sheet.

Q All right. But in your study here, you simply looked at tbe amount of music that was reported to you as shown in the cue sheets, correct? That is right.

Q And so when you come up with an average for all of the programs here, you'e showing it's an average number of minutes of music as reported to you

10 in those cue sheets for the programs. Tbe end of the -- yes, the conclusion of

12 the study will -- describes that.

13 Q Okay. And what was the average number of

minutes that you came up with for 1998-'99 per hour?

15 I have to reference Dr. Boyle's testimony

16 for that. It is not in my testimony. That'

17 something we should do? So I don't have it bere.

18 Q Okay.

19 MR. MAUSE: Your Honor, I need to review

20 what's indicated in Dr. Boyle's testimony.

21 BY MR. GARRETT:

22 Q Does about 20 minutes sound correct to

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you? 20 minutes per hour? I think that -- okay, that rings a bill. I think it was greater than 20 minutes.

Q Okay. Incidentally, did I understand you correctly before when you said that if you didn't have the cue sheets for a particular program -- copyright owners of the -- any music on that program would not be compensated, correct? In general, yes.

10 Q Okay.

There are ways that -- there are

12 adjustments made later on.

13 All right. Well, for example, if we go

down here to the seventh line here, we see that your

15 study originally picked up a game on WPIX, do you see

16 that?

17 Yes.

18 In 1998, correct?

19 That's right.

20 Q And that you were not able to find a cue

21 sheet for that, correct?

22 That is right .

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Q So would any copyright owners of music in

that July 5, 1998, WPIX telecast of a Major League

Baseball game receive compensation from BMI? Certainly not from the cue sheet. Okay. Would they receive compensation from -- as a result of your looking at something else?

There may be cases where there's some other agreements that I'm not aware of, but in general

the policy is we need a cue sheet to know what was

10 played. And that's how royalties are calculated.

All right. So to the extent that this

12 Panel awards royalties that might be attributable to

13 music on that July 5, 1998, telecast of a Major League

Baseball game on WPIX, those royalties would not go to the copyright owners of any music'?

MR. MAUSE: I'm going to object, because 17 this really -- question raises a -- first of all, it

18 goes beyond the scope of his direct and his expertise, 19 and it raises a complicated question about how various 20 funds flow through. I suspect the answer to this 21 would be a fairly complicated mathematical algorithm.

MR. GARRETT: I'l withdraw the question.

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But I will ask to move for substantive purposes -- or

I will move, for substantive purposes, JSC Exhibit 32-X.

MR. MAUSE: He's not seeking to have Mr. Krupit sponsor this?

MR. GARRETT: Yes, he would be -- this document was taken right out of his database. I mean, it's certainly subject to check.

MR. MAUSE: Subject to check.

10 JUDGE VON KANN: Okay. Well, we'l receive it generally, subject to check.

12 (Whereupon, the above-referred

13 to document, previously marked

as JSC Exhibit No. 32-X for

15 identification, was received in

16 evidence.)

17 BY MR. GARRETT:

18 Let me just ask, the first entry, Atlanta

19 Braves on TBS, April 18, 1999, this was as a distant

20 signal, not as a cable network, correct? 21 This was a distant signal, yes.

22 Q Okay. So we'e clear, you included WTBS

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in your 1998-1999 sample, correct? Yes.

And is there any difference between the

programming, exclusive of commercials, WTBS as the station in Atlanta versus the cable network sent out over a satellite, is there any difference in the programming? I didn't look at that specifically to see

if there was a difference. TV Data does give us

10 separate feed for superstation versus the local, and

we use the superstation feed in every case. So like,

12 for example, this particular show I don't know whether

13 this was also shown on the local station or not. But

14 I know this was shown in the superstation feed,

15 because that's how we pull the data.

16 Q Okay.

17 JUDGE YOUNG: And with respect to TBS,

18 when we get to Dr. Boyle's testimony where he is going 19 to talk about weighting it

20 THE WITNESS: Yes.

21 JUDGE YOUNG: -- with respect to TBS in

22 1999 would be weighted probably very low?

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THE WITNESS: Yes, that's correct. Very

low

JUDGE YOUNG: Okay.

THE WITNESS: -- as opposed to '91-'92.

MR. GARRETT: Can we go off the record for a second here?

(Whereupon, the proceedings in the foregoing matter went off the record at 4:30 p.m. and went back on the record at

10 4:32 p.m.)

MR. GARRETT: At this time I will mark JSC exhibit number 33-X a number of cue sheets or a set of

cue sheets that was produced to us in discovery by counsel for the Music Claimants.

(Whereupon, the aforementioned

document was marked for

17 identification as JSC Exhibit

18 Number 33-X.)

19 JUDGE von KANN: Let's pause a moment

20 here. What are we going to do about the restrictive

21 legend? Are you indicating, Mr. Mause, that this can

22 be unrestricted in this group or do you want to keep

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the document restricted but you don't mind questioning about it or what?

MR. MAUSE: We will withdraw it as to this exhibit, Your Honor.

JUDGE von KANN: Okay. Thank you. That will simplify things. All right, Mr. Garrett.

MR. GARRETT: Bear with me just one second.

10 (Pause.)

BY MR. GARRETT:

12 Mr. Krupit, do you have before you JSC

13 exhibit number 33-X? Yes.

15 Q Are you familiar with what has been marked

16 as 33-X? Generally, yes.

18 Q Could you describe it for the record?

19 This looks to be a cue sheet for the

20 Braves-Rockies game on 4, April, 18th, 1999 on TBS.

21 Q For the record, what we have tried to do

22 here is present each of the cue sheets for those

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sports telecasts that you bad matched cue sheets for in your study, 1998 to '99, as reflected in exhibit 32-X. Is that clear? Yes. I think I see that now.

Q Now, were you able to find all of them,

say, for one? There was a hockey telecast that we are

unable to locate in those 15 boxes. I think we have the remainder.

Okay.

10 Q On the first two pages of -- actually,

it's tbe first, three pages of 33-X. We have a cue

12 sheet for that April 18th game that you mentioned, right?

14 Yes.

Q Let's just go through the columns here so it's clear what information is on this. The first one 17 is labeled "seg." I assume it stands for segment. Is

18 that right?

19 I believe so.

20 What is shown in the segment column?

21 The second column?

22 Q No. In tbe segment column, the very first

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column. It looks like it's a description of the music cue itself.

Q This shows the point in tbe particular telecast where tbe music was played, right? Right.

Q And then tbe second column, we have "music

title." Do you see that? Yes.

10 Q It appears that the music title for

everything for this particular game is identified as

12 Braves theme. Do you see that?

13 Yes.

Q One question that raised, we bad a lot of

15 discussion here about tbe ambient music bere. Can you

16 tell us why there would be no ambient music listed

17 under music title?

18 The producer of this cue sheet, which 19 looks to be Turner Sports, did not include it, which

20 is why it's not here.

21 Do you know why they don't include it?

22 I do not know why.

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Q All right. In the next column, we have

identified the term "composer." Do you see that? Yes.

Q I assume that would be the composer of the particular piece of music here, right? That's right.

Q And that's Hdd Kalehoff, correct?

Hdd Kalehoff.

Q And in the next column, we see

10 "Publisher." Do you see that? Yes.

12 Q And the publisher here happened to be

13 Super Satellite?

14 That's right.

15 Q Do you know who Super Satellite is?

16 That's the publisher of the Braves game.

17 Q In the next column, "Recording Artist, if

18 applicable." That's all N/A. Do you see that?

19 Yes.

20 Q Why would it be marked "N/A"? 21 Well, it's a year it wasn't recorded or 22 they don't know who recorded it if it was recorded.

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Q Okay. In the next, we see "Length of

Usage." Do you see that? Yes.

Q That shows the amount of time that that

particular musical work was aired on this WTBS Braves telecast? That's right.

Q And if we add up all of those lengths of

time, we should get a number that matches what is in

10 your database, correct? Yes.

12 Q Next we see "Usage." Do you see that?

13 Yes.

14 Q It shows "Theme, Feature, or Background."

15 Do you see that?

16 Right, uh-huh.

17 Q I see there that there is a little "x"

18 under the "Theme" column for the very first item. Do

19 you see that?

20 Yes.

21 Q Nowhere else is there a little "x" under 22 the "Theme" column, right?

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Right.

Q Do you know wby that is? Because they were all Braves themes that were played throughout this telecast? The theme is particular usage within a show. Even though the title appears to be "Braves Theme," it's only in that first row that Turner Sports, the producer of the cue sheet, decided that

that was tbe theme or tbe opening of the show, that

10 tbe usage is really where in tbe show or for what purpose that particular musical piece is used if I

12 made that clear .

13 So it's considered a theme tbe very first time that it is played and it's not considered a theme

15 at any other point during the game or during tbe

16 telecast of the game. Is that right?

17 That's right. Themes are basically either

18 opening of tbe show or closing of a show or both.

19 Q And does that go back to the discussion

20 you bad with Mr. Stewart bere about how themes are

21 weighted and compensated?

22 And wealthy distribution.

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Q Yes.

Yes. We already said that.

Q Okay. And in background, we see tbe B. Is that Bl or BI? BI. BI, referring to background instrumental or off-camera performance, instrumental music only, right? That's right.

10 Q In tbe next set of columns, we see that

this particular piece of music, BMI is the performing

12 rights society, correct?

13 That is correct.

Q And, last, "Source" indicates that it'

15 original. What does that mean?

16 I could not tell you the answer to that

17 question.

18 Q I want to go to the second page bere. We see a number of places where tbe term "bump" appears.

20 Do you see that?

21 Yes.

22 Q Does that simply mean that the theme was

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used as it was bumped into a commercial or out of a commercial? Yes. Those are often called bumpers.

When a show goes out to commercial, they'l call that a bumper. There will be theme music as they fade to commercial as well as coming back from commercial.

Q And in the second page there, sixth item there, you see under "Segment," it says, "Promo,"

10 "Music Title, NBA Theme." Right.

I thought that you weren't including promos in your study?

We were not to the extent that they were not included in cue sheets. Whatever music is included in cue sheets is included in the study.

17 Q Okay.

18 For the most part, promos are not included 19 in cue sheets, and for the most part, they are not

20 included in the study.

21 MR. GARRETT: I would move 33-X for

22 substantive purposes.

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MR. MAUSE: No objection.

JUDGE von KANN: Okay. It will be so received.

(Whereupon, the aforementioned document, having previously been marked for identification

as JSC Exhibit Number 33-X, was received in evidence.)

BY MR. GARRETT:

10 Q Mr. Krupit, we were only able to identify eight sports programs in your study that had matched

cue sheets. If we look on exhibit 32-X, it shows the

13 number of minutes of music in those telecasts. Do you see that? Yes.

16 Q And they range from a low of about 6.25 17 for a 3-hour period to a high of about 13 '8 minutes

18 in a 2.3-hour show. Do you see that?

19 Yes.

20 Q Do you have any reason to believe that

21 that range is representative or reflective of the

22 amount of music that is used in sports telecasts

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generally?

To the extent that music is reported on cue sheets, I wouldn't disagree that that is representative.

Mr. Krupit, turn to your testimony on

let me just ask you also, the cue sheets that we have here in exhibit number 33-X, do you have any reason to believe that any of these cue sheets so far as they report the music and sports events or sports telecasts

10 are unrepresentative? I think they'e slightly

12 under-representing music or they'e somewhat

13 under-representing music on sports. I do watch quite

a bit of sports, some more than others. And the cue

15 sheets represent the programming that is sponsored by

16 the producer of the show, which is basically the theme

17 in the bumper music as we see.

18 Occasionally there may be a promo in there

19 for a few seconds. But there's other music. I guess

20 you can call it -- some of it might be ambient. But 21 the during the course of a sports telecast, it's very

22 common to hear many recognizable feature songs that

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are played in the arena during the course of the game or while the announcers are talking or if they'e

showing some replays of some highlights of that game and often have music in the background of that. Those kinds of usages of music are rarely

represented in cue sheets. So to that extent, I think these under-represent music.

Q You say your cue sheets of sports telecasts, you would typically see the ports of

10 ambient music?

I personally have not noticed many cue

12 sheets with ambient music in it.

13 Q So in that sense, to the extent that there is very little ambient music, if any at all reported

15 here in these cue sheets, that's not atypical of what

16 you would find of other cue sheets that would come

into BMI?

18 I would agree with that.

19 Q Let me just ask you to turn to the cue

20 sheet that is sixth from the rear. Do you have that?

21 JUDGE von KANN: Which exhibit?

22 MR. GARRETT: 33-X. Excuse me.

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THE WITNESS: Which would be the sixth

one?

BY MR. GARRETT:

Q It's the one from Fox Sports Net, cable

network, music cue sheet, 12-16-98. Do you see that?

Okay.

Q Do you see that, Nr. Krupit? Yes, I have that now.

Q We go to cue number 16. Do you see that?

10 Yes. It refers there to hockey highlight,

12 nSolid Electric

Q Do you know what that is a reference to?

No, I don'.

16 Q Do you know what the song title "Solid 17 Electric" is? Is that song title familiar to you? 18 It doesn't ring a bell.

19 Q Okay. And then you see the same listing 20 about two lines further down, right? 21 Yes, I see that.

22 Q And those two really account for the bulk

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of the -- I shouldn't say the bulk, but they'e certainly the longest segments of time which music is played, correct'? That's true.

Q One other thing. If you go over to the "Society" column at the end? Yes.

Q Number 16, "Solid Electric," we see ASCAP

there, but then on 18, we see BMI for "Solid

10 Electric." Do you know why that is? Why would there be two different performing rights societies listed? That means that Pox Sports made a mistake on one of those.

Q You guys are supposed to get them when 15 they do that, right?

We do. We check to see who -- we don'

17 take their word for it as to who the proper performing 18 rights -- well, in any case, certainly the publishers

19 do move back and forth between BMI and ASCAP. And so

20 part of the process of processing cue sheets is to 21 verify the current performing rights organization of

22 the songwriter.

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So they apparently don't know who it is in

this cue sheet. So it would be BMI and ASCAP may have both gotten this cue sheet. And each of us would

determine who S. Donnely is currently affiliated with.

Let me just ask you this last set of

questions that I have here, Mr. Krupit. On your testimony, page 10, do you have that there in front of you? Yes.

10 Q In paragraph 23, you refer to the station

WFMT that you also discussed with Mr. Stewart,

12 correct? Yes.

14 Q And your research here shows that it was

15 carried by 65 cable systems or about 400,000

16 subscribers. Do you see that?

17 Yes.

18 Let me, if I could, just ask you to take

19 that black binder that you have to your left there and 20 turn to the Copyright Royalty Tribunal's 1983 decision

21 or the decision in the 1983 case.

22 Okay.

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Q Turn to page 12799. Is that 12799?

Q Yes, sir. It's in the upper right-hand column. One-two-seven-nine-nine

Do you have that in front of you? Now,

will you

No.

Q I'm sorry.

10 Oh, I see. It's a -- I go from 12798 to 12800. It's gone, 12799. I'e got it.

12 And Mr. Winters said that particular one

13 was put together by Music Claimants.

14 I have no knowledge of that. It wasn'

15 me.

16 Q Now, they have the assignment of

17 reproducing the 1983 decision. We thought that might

18 be symbolic.

19 In the right-hand column there, 12799,

20 there is a discussion about the carriage of WPMT. Do

21 you see that all the way down at the bottom, last

22 paragraph?

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Would this be the paragraph beginning with

"Commercial radio and radio compilation" ?

Q Yes, sir. Yes.

Q Were you aware that evidence presented in the '83 proceeding concerned the extent of carriage of

WFMT?

No, I was not.

If we look here on page 12799, there is a

10 reference to the fact that in 1983, there were 179

cable systems with 800,000 subscribers who carried

12 WFMT plus an additional 99 cable systems just outside

the Chicago area with another 300,000 subscribers. Do you see that?

15 Yes, I see that.

16 So if we put the '83 decision together

17 with the data that you had provided, the only

18 conclusion would be that the amount of carriage of

19 WFMT had declined during this period?

20 I don't know if you would be comparing 21 apples to apples because I don't know what the source,

22 the comparative source of each of these two pieces of

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information comes from. I would have to look at that first.

Q I think that is a fair statement. But the

fact is that when we look at the '83 record, we see that there were something like over 200, almost 300

systems that had carried WFMT with over one million subscribers, correct? That's what this says, yes.

Q And if we look at the record that you

10 created here, what we would see is that there were 65

cable systems with about 460,000 subscribers who

12 carried WFMT?

13 Yes. I would add that there was no

attempt to uncov'er all of the cable systems that WFMT

15 was played on simply to reference one particular

16 source that had this one particular set of data on it.

17 Q Just to show that WFMT was still around?

18 That's right.

19 Q With the statements of account that Mr.

20 Stewart discussed with you, did you personally select

21 those statements of account from the Copyright Office?

22 No, I didn'.

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Do you know how those particular statements of account were selected?

No.

Q Do you know how many statements of account were reviewed before they found particular statements of account that are included here in your exhibit?

No, I don't know that.

Q Do you know what criteria were given to whoever looked for these statements of account to

10 determine which ones to pull?

No, I don'.

12 You are aware, are you not, that cable

systems, regardless of whether they'e Form 1, Form 2, or Form 3, do not pay any additional royalties for the

15 carriage of radio stations?

16 I thought that there was some amount, even

17 though it might be small, -- I'm not sure how small or

18 large it is, but I thought there was some amount that

19 was awarded in this type of proceeding for carriage of

20 FM signals.

Q I am not talking about the amount that was

22 awarded. I was unclear with my question. Cable

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operators pay royalties into the Section 111

Compulsory Licensing Fund. Do you understand that? Yes.

Q Do you know whether in calculating those royalties that it makes any difference whether they carry any radio stations or not? I have no idea.

MR. GARRETT: I have no further questions.

Thank you, Mr. Krupit.

10 JUDGE YOUNG: I want to ask you a ctuestion about the recording of ambient music.

12 THE WITNESS: Okay.

13 JUDGE YOUNG: These cue sheets, these are

14 prepared by the broadcaster after something has aired?

15 Is that how it works

16 THE WITNESS: Not always.

JUDGE YOUNG: -- from the perspective of

18 the sporting event?

19 THE WITNESS: They are sometimes prepared

20 beforehand.

21 JUDGE YOUNG: If it's prepared beforehand,

22 how is it possible, then, to report ambient music?

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THE WITNESS: If it is prepared

beforehand, there is no way of reporting ambient music, just the scheduled number of bumpers for commercials and theme music.

JUDGE YOUNG: And if it's reported

afterwards, how do they go about reporting ambient

music or how do you think they should go about reporting ambient music?

THE WITNESS: The same way anyone else can

10 create a cue sheet, they would time the pieces of music that are aired and included on a cue sheet. I

12 think it's something that could be done.

13 JUDGE YOUNG: But that suggests that an ambient music is any time there is mucic played, say,

15 in an arena by the organist, whether or not it

ultimately is picked up or heard on the TV broadcast,

17 that that should be covered, you'e suggesting?

18 THE WITNESS: No, I don't think so. I

19 think it's possible certainly by the TV people because 20 if they'e in a control -- I'l just give you an 21 example of how it might be done. If they'e in a 22 control booth, they know when they'e live and when

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they'e at commercial. And the pieces of music could be identified and timed while they'e live, as opposed to going to commercial. I think there's a way of doing that.

And there may be other ways even after using a tape of the broadcast that could be done.

JUDGE YOUNG: So we'e saying when there' ambient music, which, actually, if you were here for

Mr. lyons, he was talking about using the example of

10 the Knicks City Dancers in New York, which come out frequently during breaks, which is when there are

actually commercials being aired on TV'?

THE WITNESS: Bight.

JUDGE YOUNG: So something like that wouldn't count because the viewer is watching a commercial?

17 THE WITNESS: That's right. If it's not

18 shown on TV, it should not be in the cue sheet.

19 JUDGE YOUNG: And then. if you have some

20 music that is occurring during a period of time when

21 the game is in progress but you have the announcers

22 talking, you know, the TV broadcast announcers

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talking, so that it's not intended to be picked up by

the TV station, that wouldn't count either?

THE WITNESS: I think it should because it's background music.

JUDGE YOUNG: But don't we have to somehow measure whether or not either it's intended to be

picked up or the fact that it is picked up?

THE WITNESS: I am not sure that I can make that qualifying statement as to whether it should 10 or it shouldn'. If the music is coming out over the airways, I believe a songwriter should be compensated

12 for that. And the only way to do that is to get that

13 music, listen on a cue sheet.

JUDGE YOUNG: You know, in response to

15 this hearing, the other night I was listening to a

16 basketball game, and I was trying to hear the music. It's not easy, particularly in a basketball game,

18 because the announcers like to talk.

THE WITNESS: Yes, I noticed it.

20 JUDGE YOUNG: Okay. Thanks.

21 JUDGE GULIN: Let me ask one question,

22 too. Are you saying that the networks also do not

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provide cue sheets for ambient music for sporting events?

THE WITNESS: You know, I am not entirely sure about that because I haven't looked at it in some time.

JUDGE GULIN: Okay. If they were not,

would that be something that BMI would want to talk to the networks about?

THE WITNESS: Possibly. Maybe they have.

10 That would be outside of my domain. But it may be

something maybe they have talked about. Maybe it'

12 something they'e working on together. But, again,

13 that is outside of my domain. I am really not aware

14 of that.

JUDGE von KANN: Mr. Garrett?

16 MR. GARRETT: Just one question following

17 up on that.

18 BY MR. GARRETT:

19 Q When you look at the exhibit 33-X, we do

20 see that some of the cue sheets there are from the Fox

21 Network, correct? Yes.

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Q And what we don't have are any cue sheets

from ABC, CBS, or NBC, correct? That's right.

MR. GARRETT: I have nothing further. Thank you.

JUDGE von KANN: We have been going about an hour and a half. I think we'l break unless we'e within the very few minutes of finishing. Mr. Dove,

does PBS have

10 MR. DOVE: I believe we do not have any questions, Your Honor.

12 JUDGE von KANN: You don't have any

13 questions. All right. Canadians?

14 MR. VOLIN: We don't have any questions.

15 JUDGE von KANN: Oh, sorry. I assume you

16 do have a few guestions.

17 MR. OLANIRAN: Yes, I do.

18 JUDGE von KANN: Okay. I am sorry. Let'

19 break until 5:10 and see if we can finish by 6:00. 20 Let's try. 21 (Whereupon, the foregoing matter went off

22 the record at 4:58 p.m. and went back on

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the record at 5:11 p.m.)

JUDGE von Mr. Olaniran, as I indicated, I would like to try to stop by 6:00 today. However, I don't want you to feel shortchanged on your

time. I do believe Mr. Krupit was shown as carrying

into tomorrow on your schedule if we need to. So

let's try to complete him today, but if we can', we can't and he will carry over until tomorrow morning.

MR. OLANIRAN: I am honestly hoping that

10 we can, aside from the fact that I don't want to be

the one that holds you from your beloved

12 JUDGE von ~: No. We will stop at 6:00 and come back and finish him tomorrow if you need more

14 time

15 MR. OLANIRAN: Okay. And depending on the

16 answers to some of the questions, some of the

17 questions may be more appropriate for Dr. Hoyle.

18 We'l see.

19 JUDGE von KANN: All right. Let's go

20 ahead and see.

21 MR. OLANIRAN: Good afternoon, Mr. Krupit.

22 My name is Greg Olaniran. I am counsel for Program

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Suppliers.

THE WITNESS: Good afternoon.

CROSS-EXAMINATION

BY MR. OLANIRAN:

Q You indicated at the beginning of your

written testimony that you managed BMI's statistical

sampling operation. Do you consider yourself a statistician?

I am familiar with statistics. I work

10 with statisticians. Over the years, I have taken

courses in it. A lot of it is on-the-job training.

12 Q You would not consider yourself a trained

13 statistician or statistician by experience. Is that

14

15 Neither. I would not.

16 Now, other than the work that you have

17 done in this proceeding, have you ever applied

18 statistical sampling to studying music used on distant

19 signals?

20 No, I haven'.

21 What about applying statistical sampling

22 to music used on signals carried by cable systems in

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general?

On cable systems specifically?

Q Yes.

No, I haven'.

Q I would take it, then, that you would not have applied statistical sampling to validation of music used on distant signals or on cable systems? That's correct.

Q Now, on page 4 of your testimony, this is

10 where you indicate -- I am trying to find the percentage. At the top of page 4, you indicate that

12 approximately 80.2 of the '91-'92 proportion of license royalties that the sample station represented

80.2 of the '91-'92 compulsory license royalties. Do you see that? Yes, I see that.

17 Q And, therefore, the '98-'99 figure you

18 indicate is 61.3? Do you see that?

19 I don't see the 61.3. Can you point that

20 out to me? It's on this page.

21 Q I am sorry. That's on page 5.

22 I see it. It's percentages.

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Q And that would be the percentage of compulsory license royalties represented by the stations in your sample?

Not exactly. The 80.2 percent on page 4 of the '91-'92 study is represented by the top five stations in the sample.

Q What was the number for the total sample

for '91-'92? Do you know? Well, in reality, it's 100 percent because

10 you have the top 5 stations representing 80.2 percent.

And you sample the remaining 19.8 percent. And that

12 sample represents that remaining share.

13 So that the sample of the five -- the bottom five stations represents the remainder after

the 80.2. So, in essence, you are representing 100 percent of the fees.

17 Q Then in '91-'92, the 61.3 percent

18 represents the top 10?

19 That would be for '98-'99.

20 Q I'm sorry. For '8- '9?

21 Yes. And 61.3 represents the top 10, is

22 represented by the top 10 stations; whereas, the

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and then the remaining 5 sample stations represents the rest.

Q Now, you indicate in paragraph 11 that you expanded the '98-'99 to include, and I quote, "a high

percentage of the fees generated." Do you see that? Yes.

Q The question I have is the percentage of

fees generated by the top 10 in '98-'99 is percentage

points less than what was generated by the top 5 in

10 '91-'92. So why did you have lower -- I guess your definition of a high percentage of the compulsory license fees? The problem in '98-'99 is once you get beyond the top ten or the top nine stations, the remaining stations have a very, very small percentage of fees generated.

17 You have to -- I haven't calculated how

18 many stations you have to add, but you might need to 19 add dozens, if not a couple of hundred, stations to 20 get up to that same 80.2 percent figure as you do in

21 '91-'92. And that is simply not feasible for the

22 study.

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Why is that not feasible? The amount of time it would take and the amount of effort to be expended was far greater than

we were able to put into the study. Would it have been something beyond using the same data that you have for cable data?

Excuse me?

Q Would the amount of extra work involved

10 have been anything more than taking additional data from cable data and adding it to what you already

12 have?

13 Well, the cable data just tells us the amount of fees that are represented in each station.

15 The study would have to -- as we saw here with Mr.

16 Stewart, we then have to gather all the program

17 listings, all of those stations, gather all the music

18 content for all of those stations and all of those

19 dates. Then you would have 10 stations in one study

20 and maybe 300 stations in another study. The amount of effort to expend on that is

22 tremendous. That's why we have samples.

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Q Speaking of samples, do you agree that the goal of sampling is to produce a sample representative of the population that is being studied? Yes.

Q And you would also agree, then, that a sample must be representative of that population in all characteristics except for size? I'm sorry? Can you repeat that?

Q That the sample would be representative of

10 a population in all characteristics except for size?

That depends on how you are trying to

12 create your sample.

13 Q Are you familiar with the term "random sample "?

15 Yes.

16 Q What do you understand by that?

17 Random sampling -- randomness is an

18 essential part of any statistical study or statistics.

19 If you don't have randomness, then it is possible for

20 your data to be skewed.

21 Q So what do you understand by the term

22 "random sample"~ What does the term mean?

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Random sampling is where you need to

introduce randomness to some portion of the process of implementing a sample for some study that you are doing.

And that randomness can come in many different forms. In this case, the randomness was

produced by tbe stations and tbe dates.

Q I guess the opposite of random would be non-random sampling, right?

10 I suppose.

Q What would that be?

12 I don't know. Non-random sampling.

13 Q Okay. Now, if a sample is not random, isn't it true that you can't project the results to

15 the universe that bas been studied?

16 I am not sure if that is the case or not.

17 I am not a statistician.

18 Q Let's turn to page 3 of your testimony for

19 a second. I think it's paragraph 8. And it's the

20 fourth line into that paragraph. Do you see that?

21 It's the sentence that begins on tbe second line, and

22 it goes all the way through, I guess, the fourth and

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the fifth line.

"Because it is impractical" ? Is that the

Q The sentence starts with "Because," and

then down to tbe fourth line, where it says, "We

assembled data." Do you see that? Yes.

Q It says, and I quote, "We assembled data from representative programming carried on sample

10 stations for each pair of years." I guess my question is, what do you mean by tbe term "representative programming"'?

Again, the sample was constructive to create representative programming or programmings that would represent the music on cable, on distant cable stations.

17 Q Now, are you talking about programming

18 that represents selected stations or are you trying to

19 represent the distant signal universe?

20 We'e trying to represent tbe distant

21 signal universe.

22 Q So, then, what was the benchmark against

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which you judge whether you had, in fact, selected representative programming? This is more I think Dr. Boyle's area.

Q Pair enough. With regard to the FCC composite week, I think you indicated earlier on

and please correct me if that's not the case. Did you say that it was designed to provide a sample with representative programming? Yes.

10 Again, I need to clarify something. In

paragraphs 9 and 10 -- and it's page 3 going on to

page 4 of your testimony. Now, nowhere in either one of those paragraphs where you are discussing the sample stations do you refer to the stations as being a random sample. Are you saying that the stations are or are not a random sample?

17 The stations themselves, at least the top

18 five, are not selected to be random. The top five

19 stations in '91 and '92 are selected to represent the

20 majority of the fees generated in those set of years.

21 Q And the balance?

22 The balance was a random sample,

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stratified random sample. I'l qualify that.

Q How, have you ever picked a study like this in any of the studies that you have done? Have you ever picked a sample like this in this manner?

How do you mean "in this manner"?

Q Have you ever picked stations? I don' know if you have studied stations in the past for

perhaps some of the other studies. And my question is whether you have ever gone about stratifying the

10 sample in this manner, in the manner that you have in this proceeding?

12 Well, I have done any number of samples--

13 any number of different processes. Each sample has to

14 be designed basically for the intent of that

15 particular sample. I mean, this sample was designed

16 for the purpose in this study, designed to be the best

17 representative of how we are trying to represent this

18 information.

19 Each study is designed differently on its

20 own merit and its own purpose.

21 Q I take it the answer to that question is 22 no, then, that you have never picked a sample in this

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manner in some other study that you have done? I think I -- as I said, every sample is different.

Q Now, it's true that before you selected the dates for the study years, you had it in mind that you wanted to represent each day of the week, correct? Yes.

Q You also wanted to cover seven weeks in a given year?

10 Seven different weeks.

Q Seven different weeks. Okay. And that'

why you used the FCC composite week'? That is right.

Q And the way you went about doing this is

15 you took the FCC composite week, and you sort of picked the date to reflect the change in the

17 calendars. Is that sort of a general way that you

18 went about doing this?

19

20 Q Okay. Now, are you familiar with the term

21 "purposeful sampling" as a sampling method?

22 No, I am not.

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JUDGE von KANN: I am looking at page 3 of

your testimony, which in the footnote 2 speaks at Dr. Boyle's role in designing and completing the study.

Was Dr. Boyle the principal designer of this study or did you design it jointly or did you sort of carry out

his design? Who did the design of it, would you say?

THE WITNESS: I would say that the primary

design is Dr. Boyle's. We did consult on a number of

items in it. He is the statistician and designed the

10 study.

JUDGE von KANN: Okay.

12 BY NR. OLANIRAN:

Q Just following up on that, what particular

14 areas did you consult on'? That may actually save us a little bit of time.

16 We did consult on a number of different

17 items, you know, throughout the execution of the

18 study. One thing I mentioned earlier today was that

19 we discussed the composition of the stations in '98

20 and '99.

21 Q Now, with regard to the FCC composite

22 week, was it Dr. Boyle's idea or was it yours?

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You know, I actually don't remember

exactly. We have been doing this for quite a while.

We have been using FCC composite week for a number of years.

Q So it's something you are quite familiar with? Yes.

I think the question came up earlier about

the original purpose of the FCC composite week. I

10 think it was Mr. Stewart who asked you the question. Are you aware of the original purpose of the composite

12 week?

13 I know they -- somebody mentioned it.

14 They use it for some licensing areas and -- to check

15 programming. That's all I know about it.

16 Do you know whether one of the uses was

17 for measuring elements of music and programming?

18 I don't know that.

19 Q Now, I think in paragraph 5, you refer to

20 the composite week as being randomly generated,

21 paragraph 5 of your testimony on page 2.

22 Was that paragraph 5 or page 5?

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Q Paragraph 5. I'm sorry. Actually, I am going to withdraw that question.

Now, on page 6 of your testimony, if you don't mind turning to that, I think at the top of the

page is where you were describing the FCC composite

week. Tell me if you know. Do you know once a selection of the week was made, whether they put the card back in the pile or did they keep it out? They kept it out. And that's called

10 sampling without replacement.

Q Do you know what impact, if any, that

12 would have on the projection of the universe using the

13 sample?

I'm sorry? What would have the impact?

15 Q By keeping the card out, as opposed to

16 keeping it in.

17 Oh. We would not repeat the same week.

18 If you only had 7 days to choose from and 52 weeks, I

19 would think you would want to have 7 different weeks 20 throughout the 52. And I think it would be

21 counterproductive to have 2 of the same weeks when you

22 only have 7 out of 52 to choose from in my opinion.

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Q Still on page 6 and I guess going to paragraph 15, if I understand you correctly, the second column -- you have a table in paragraph 15 at the bottom of that paragraph. The second column is

actual original FCC date. And then the subsequent columns are the dates that you picked for the study

years. Do you see that? Yes. That's paragraph 15. So, for example, if you look at April 17th

10 for 1983, that would be the date. That would be a

Sunday. And then if you looked at the next date,

12 which is October 24th, that would be a Monday and so

13 on and so forth, right?

14 Yes.

15 Q Now, you did something slightly different

16 from what the FCC did, did you not?

Well, the FCC -- I'm not sure what the FCC

18 did on a regular basis. Well, we just started with

19 the FCC week and adjusted each year. Basically what

20 we are accomplishing by doing that is not picking the

21 dates ourselves, which in itself introduces randomness

22 to the dates. What that does is take the bias out of

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the study.

Q Let's go over i'irst you took tbe original FCC date, correct? Yes.

Q And then you looked at the day of tbe week that it represented, correct? Yes.

Q And then you go to a particular study, let's say, 1991, right?

10 Right.

Q And then you picked the actual date. You

12 looked at the actual date that that corresponds with.

13 So, for example, in 1991, you would go to, say, April

14 17th, right? Yes.

16 Q You looked at what date it fell on,

17 correct? And then you picked the closest Sunday to

18 tbe date it fell on. Is that 19 Yes, that's it.

20 Q So if you look at, for example -- I have 21 a calendar here. It might be easier to do this. I

22 don't plan on turning this in as an exhibit, but it'

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easier to follow.

If we look at the very first entry -- this

is a 1983 calendar -- and we go to April for 1983, you

go down and you see the 17th, that's a Sunday, right? Yes.

Q To do what you have done, first you'e

decided. You picked April 17th. And then you went to

let's take 1991. Okay? Right.

10 Q And then you looked at April 17, 1991, correct?

12 Yes.

13 Q And then you said, "Well, I need it going

14 back three days." And you picked the Sunday? Yes.

16 Q Is that a fair description?

17 Yes.

18 Q All right. Now, do you know whether April

19 14th, 1991 falls in the same week as April 17th, 1993? 20 It looks like it does by this calendar.

21 Q Now, how are you counting the weeks?

Well, I am looking at 1991. I see April

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14th, and April 17th is in the same week if you use Sunday as the beginning of the week.

Now, if you go to the top of January 1991,

Yes.

Q do you see the year actually begins on a Tuesday? Right.

Q So if we are looking at a 52-week year,

10 the first week would end on January 7, 1991, wouldn' it?

12 Could you say that again?

13 Q I'm saying if we are looking at a 52-week

14 year

15 Right.

16 and the year started on Tuesday,

17 January 1, 1992,

18 Right.

19 Q the end of the first week would be

20 January 7, 1991, would it not?

21 Yes.

22 Q And then if you were to start counting the

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weeks, each week would end on a Monday throughout tbe year? It you decided to count it that way, yes.

Q Would you do it any other way? I might just count Sunday to Saturday and say that's the first week, even though two days are in the previous year.

Would that give you a 52-week year with 7 days in each week?

10 You wouldn't always have se~en -- well,

you could always count Sunday and Monday as the

previous year. One way of doing that is, to say what is the majority of days, where does that fall. There

are a number of ways of doing that. Choose any number of ways, and you still are going to have randomness, however you do it.

Q But it is possible based on the way that 18 you have done it, though, that the date that you have 19 picked in your study would be different from the

20 original date that the FCC picked, from the original

21 week that the FCC picked? 22 I guess that would depend on where you

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decided to begin a week, the first week of the year.

Q I don't think I was clear on that question. The date that you picked, it's possible that it would fall in a different week than the week

of the original FCC date? I did understand. Again, it really depends on what you define as a week. Are you defining the week from Sunday to Saturday or from the

first day of tbe year, wherever that may fall?

10 Q Let's assume that you defined the week as beginning on January 1st and ending on January 7th and

you went all the way through. And let's assume again that some of the dates that you picked now fall in a

different week from the week that it, was in an FCC

15 study. Are you with me?

17 Q My question is, did you investigate this

18 occurrence at all?

19 No, we didn't look at it at all.

20 Q Okay. Now, did you consider whether or 21 not it would have any impact on the randomness of your

22 study?

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It wouldn't have any impact because we didn't choose a week for any particular purpose. Then it's no less random than choosing any other week.

Now, on page 8 of your testimony, I think it's where you talk about -- I'm sorry. At the top of

page 7, where you were making a few references to the

TV Data data, and then on page 8, in paragraph 18 is where you talk about the various steps used to validate the information on the cue sheets.

10 Yes.

Now, how do you verify, again, the length

12 of the music played?

13 On an episode by episode basis. Not every

14 cue sheet is checked for that because we have to

15 pretty much rely on the producer to give us an

16 accurate representation of the music.

17 However, BMI does have a random audit in

18 place that examines videotapes of programs and checks

19 against cue sheets that are submitted to make sure

20 everybody is submitting cue sheets the proper way. I

21 believe ASCAP has a similar process in place.

22 Now, would that be the same audit that

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would verify that the song titles were actually the ones that were played? Yes, it would be.

Q Do you recall in how many cases you had to use average cue sheets? I don't recall, no.

Q You may have answered this before. So I

apologize for asking the question again. How again

did you go about eliminating the network programs?

10 Okay. TV Data identifies the source of

each . program, whether it's syndicated, locally

produced, or network-originated. So we were able to easily exclude the network programs.

How did you do that? It's a field. It's a field value.

Q So you based it on whatever the TV Data

17 data said was syndicated or

18 Really network and

19 Q And you didn't do anything to adjust? I

20 assume that TV Data data came categorized in the

21 programs and also I suppose identifying which ones are

22 network and not network programs. Is that correct?

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That they identify which are network and non-network. Yes, they do.

And how did you verify that information

that TV Data provided was correct?

We spot-checked that.

Q You spot-checked them to make sure that they were actually compensable programs for the purposes of this proceeding. Is that correct?

We checked to make sure that their

10 indication of tbe network and non-network was accurate

and something that is done on. a normal course of

12 business to make sure that TV Data is giving us the

13 correct information.

So once you took the data, you separated

15 network from not network, and then you assumed that

16 whatever was not network was always compensable for

17 the purposes of this proceeding, correct?

18 Yes.

19 Other than the spot-check, is there anyone

20 on your staff who is familiar with program

21 categorization?

22 I wouldn't say program categorization.

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For the purposes of this proceeding. Well, they knew that network programming

needed to be excluded. So that's what was done.

Q For the purposes of the programs that were

categorized by TV Data, did you do any further spot-checking to see whether or not the entirety of those programs were compensable? I'm not sure I understand your question.

You separated the network from the

10 non-network. Yes.

Q And then you looked at the TV Data data

13 for non-network. Okay?

14 Yes.

15 Q We'e now in that run. Now, did you do

16 anything further other than just knowing that the entire -- in the non-network category was compensable.

18 Did you do any further investigation?

19 No. All of that was -- to me was

20 considered compensable or obviously for -- it was part

21 of the study, as I have been instructed.

22 Q Did TV Data understand that you were using

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the data for the purposes of this proceeding?

No.

Q Now, were you able to match more syndicated programs than most other categories? I haven't looked at that specifically, but as a general statement, I would say that is probably correct.

So syndicated program has producers and

film companies were much more efficient in responding

10 to view, then, perhaps all the program categories? I think it depends what program categories

12 you'e talking about, but I won't mention any names.

13 We have a pretty good coverage on syndicated film.

14 Q Now, on page 9, I think it's paragraph 20

15 and 21 you were discussing the total number of hours

16 of programming I guess that were studied. I just want

17 to make sure that I understand this correctly. If you

18 divide the '91-'92 hours that you have, 2203 hours

19 do you see that?

20 Yes.

21 Q And you divide that by 10, that's about

22 220 hours per station. And then you divide that by

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another seven. You get about 31 hours. Now, is that for the combined '91-'92 years so that you divide by two to get what the average is per day per year? That's combined, but that average makes a lot of assumptions. Put it that way.

Q What assumptions? What do you mean? Well, you'e assuming that every station is equal in terms of the number of hours and the number of minutes of music.

10 Q I'm just trying to get an idea for mathematical average because, of course, if you just

12 divide by 7 days, you get 31 hours a day. So my

13 question is whether or not the 31 hours would cover

14 both years or are you still talking about 15 It's both years'eep in mind that the 16 network program is excluded. So it will be coming out 17 to less than 24 hours per day on average.

18 Q Now, still sticking to paragraph 21 on

19 page 9, now, do you know what the unweighted minutes

20 per hour are for '1- '2?

21 Not offhand.

22 Q Okay. And, therefore, '91-'92, you can

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accept, subject to check, that that is 20. 9? It' fairly close numbers, right? It sounds like '98-'99 is higher than '91-'92, even in an unweighted state. That's by only roughly one.

Q One minute?

One minute. I'm sorry. Yeah.

Q If you look at the proportionate share per hour of the unweighted minute per hour for '91-'92 and

10 you compare it to the same number for '98-'99, you would say that s fairly close, is i't not? Nell, that's a value judgment to say something is close.

Q Just mathematically. I'm not They'e a minute apart. Closer than that,

16 that's not for me to make a value judgment on that.

17 And they'e both within the 33-34 percent

18 range in terms of the proportion of an hour that they

19 take up. Do you understand what I am saying?

20 No, I don'.

21 If you divide 19.9 by 60, you get 33

22 percent. And you -- and that would be the result, the

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proportion of the unweighted minutes per hour for

'91 — '92 I see what you'e saying, yes.

Q When you compare those percentages, one is

33 percent. And you look at the '98-'99, it'

proportion to an hour. And that's dividing 20.9 by

60. That's 34, approximately 35 percent. Right.

And those are fairly close, are they not?

10 They sound fairly close. Of course, you are not taking into account the number of minutes per hour that are non-program-based.

MR. OLANIRAN: That's all the questions I

14 have.

15 JUDGE von KANN: Okay.

16 MR. MAUSE: No redirect 17 JUDGE von ~: Okay. 18 (Whereupon, at 5:50 p.m., the foregoing

19 matter was recessed, to reconvene at 9:30

20 a.m. on Tuesday, May 20, 2003. )

21

22

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CERTIFICATE

This is to certify that the foregoing transcript in the matter of: Hearing: Distribution of the 1998 and 1999 Cable Royalty Funds

Before: Library of Congress Copyright Arbitration Royalty Panel

Date: May 19, 2003

Place: Washington, DC represents the full and complete proceedings of the aforementioned matter, as reported and reduced to typewriting.

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