Written Rebuttal Case of the Canadian Claimants Group
Total Page：16
File Type：pdf, Size：1020Kb
BEFORE THE COPYRIGHT ROYALTY JUDGES WASHINGTON, D.C. In the Matter of: Docket No.: Distribution of the 2010‐2013 14-CRB-0010-CD (2010-2013) Cable Royalty Funds WRITTEN REBUTTAL CASE OF THE CANADIAN CLAIMANTS GROUP Of Counsel: Counsel for Canadian Claimants Victor J. Cosentino L. Kendall Satterfield CA Bar No. 163672 D C Bar No. 393953 Larson & Gaston, LLP Satterfield PLLC 200 S. Los Robles Ave., Suite 530 1629 K Street NW, Suite 300 Pasadena, CA 91101 Washington, DC 20006 Tel: 626‐795‐6001 Tel: 202-355-6432 [email protected] [email protected] SUMMARY OF REBUTTAL CASE OF THE CANADIAN CLAIMANTS GROUP BEFORE THE COPYRIGHT ROYALTY JUDGES LIBRARY OF CONGRESS WASHINGTON, DC In re Docket No. 14-CRB-0010-CD (2010-2013) Distribution of 2010-2013 Consolidated with: Cable Royalty Funds Docket No. 14-CRB-0011-SD (2010-2013) REBUTTAL CASE OF THE CANADIAN CLAIMANTS GROUP The Canadian Claimants Group (“CCG”) hereby submits its Rebuttal Case in the Allocation Phase of the above referenced proceeding, pursuant 37 CFR §351.11 and the Copyright Royalty Judges’ Order dated July 21, 2015. In rebuttal, the CCG presents the testimony of four witnesses: 1) Dr. Lisa M. George Dr. George is an Associate Professor of Economics at Hunter College and the Graduate Center of the City University of New York. As an expert in media economics, she previously provided Written Direct Testimony in this proceeding, as Exhibit CCG-5 and Corrected Amended Written Direct Testimony as Exhibit CCG-5A (Corrected), dated May 16, 2017. In her Written Rebuttal Testimony (Exhibit CCG-R-1), she evaluates regression estimates of relative market value submitted in these proceedings by Joint Sports Claimants (JSC) and Commercial Television Claimants (CTV). She also responds to challenges by Settling Devotional Claimants and Public Television Claimants to the use of regression analysis in estimating the relative market value of distant signal programming and to their proposed alternatives. She concludes that the criticisms of Settling Devotional Claimants and Public Television Claimants regarding regressions are not well founded and that properly constructed regression analysis is an appropriate tool for inferring the average incremental value of distant signal programming and that because regression analysis infers value from actual marketplace decisions, regression estimates represent the best approach to estimating relative market value in these proceedings. Her review of the CTV and JSC studies indicates that they systematically depressed their reported shares for CCG programming. Dr. George provides adjustments to these studies to correct their shares for CCG programming. 2) Dr. Matthew Shum Dr. Shum is the J. Stanley Johnson Professor of Economics in the Division of Humanities and Social Sciences at the California Institute of Technology (“Caltech”), in Pasadena, California. 2 In his Written Rebuttal Testimony (Exhibit CCG-R-2), Dr. Shum reviews the testimony of Dr. Jeffrey Gray, offered on behalf of Program Suppliers. Dr. Shum discusses two sets of issues. First, he presents several conceptual difficulties with using viewing as a measure of relative market value for distant signals. Second, he discusses measurement problems vis-à-vis CCG programming which arise in Dr. Gray’s viewing-based analysis, and offers adjusted share estimates which attempt to overcome these measurement problems. Dr. Shum concludes that a viewing-based approach suffers conceptual shortcomings, and is not reliable as a primary or sole criterion for determining relative market value of distant signal programming. He further concludes that deficiencies in Dr. Gray’s study systematically bias or underestimate the distant viewing of CCG programming. 3) Dr. Frederick Conrad Dr. Conrad is a professor of survey methodology at the University of Michigan (Institute for Social Research) and professor of Psychology at the University of Michigan. His Written Rebuttal Testimony (Exhibit CCG-R-3) presents a review of the surveys commissioned by JSC, known as the “Bortz” surveys as well as the surveys commissioned by the Programming Suppliers claimants group, known as the “Horowitz” surveys. In undertaking that review, he focuses on how the methods used in these surveys might impact operators’ valuation of Canadian programming. 3 Dr. Conrad concludes that the two surveys, especially the way the results are analyzed, are not useful for determining the relative marketplace value of CCG programming because the essential constant sum question requires respondents to compare several programming categories with two entire signals and the method for combining the constant sum results creates an artificial cap on the reported value of CCG content. The result is that the surveys do not reflect the actual relative market value of the CCG content. 4) Danielle Boudreau Ms. Boudreau previously provided testimony in this proceeding in the form of Written Direct Testimony (Exhibit CCG-1) which was corrected on May 16, 2017 (Exhibit CCG-1 (Corrected)). In her Written rebuttal Testimony (Exhibit CCG-R-4) she provides additional testimony that (a) describes supplemental signal content information provided to Dr. Lisa George; (b) supplements her corrected testimony regarding Devotional programming on distantly retransmitted Canadian signals in response to claims made by the Settling Devotional Claimants in their direct case as amended and corrected; and (c) describes a minor error discovered in the CCG content data related to the Canadian Radio-television and Telecommunications Commission (“CRTC”) logs for December 2011. 4 Respectfully Submitted, /s/ L. Kendall Satterfield Dated: September 15, 2017 ____________________________________________ L. Kendall Satterfield DC Bar No. 393953 Satterfield PLLC 1629 K Street NW, Suite 300 Washington, DC 20006 Tel: 202-355-6432 [email protected] Counsel for Canadian Claimants Group Of Counsel, Victor J. Cosentino CA Bar No. 163672 LARSON & GASTON, LLP 200 S. Los Robles Ave, Suite 530 Pasadena, CA 91101 Tel: 626-795-6001 / Fax: 626-795-0016 [email protected] 5 CERTIFICATE OF SERVICE I, Victor J. Cosentino, hereby certify that on this 15th day of September 2017, I caused copies of the foregoing REBUTTAL CASE OF THE CANADIAN CLAIMANTS GROUP in the matter Distribution of 2010-2013 Cable Royalty Funds, Docket No. 14-CRB-0010-CD (2010-2013), to be served by Overnight Delivery (to those marked with an*) and by Electronic Transmission on the following parties: COMMERCIAL TELEVISION CLAIMANTS NATIONAL ASSOCIATION OF BROADCASTERS *John I. Stewart, Jr. Ann Mace David Ervin CROWELL & MORING LLP 1001 Pennsylvania Ave. NW Washington, DC 20004-2595 JOINT SPORTS CLAIMANTS *Robert Alan Garrett Lain R. McPhie M. Sean Laane Ritchie T. Thomas Michael Kientzle SQUIRE PATTON BOGGS (US) LLP Bryan L. Adkins 2550 M St., N.W. ARNOLD & PORTER KAY SCHOLER LLP Washington, DC 20037 601 Massachusetts Ave. NW [email protected] Washington, DC 20001 [email protected] [email protected] [email protected] Michael J. Mellis [email protected] EVP and General Counsel [email protected] OFFICE OF THE COMMISSIONER OF BASEBALL 245 Park Avenue Phillip R. Hochberg New York, NY 10167 LAW OFFICES OF PHILLIP R. HOCHBERG [email protected] 12505 Park Potomac Avenue, 6th Floor Potomac, MD 20854 Philip R. Hochberg [email protected] 1 PROGRAM SUPPLIERS I MPAA *Gregory 0. Olaniran Lucy Holmes Plovnick Alesha M. Dominique MITCHELL SILBERBERG & KNUPP LPP 1818 N Street NW, 8th Floor Washington, DC 20036 . PUBLIC TELEVISION CLAIMANTS PUBLIC BROADCASTING SERVICE *Ronald G. Dove, Jr. R. Scott Griffin Lindsey L. Tonsager PUBLIC BROADCASTING SERVICE Dustin Cho 2100 Crystal Drive COVINGTON & BURLING LLP Arlington, VA 22202-3785 One City Center 850 Tenth Street, NW Washington DC 20001-4956 SETTLING DEVOTIONAL CLAIMANTS *Arnold P. Lutzker Clifford M. Harrington Benjamin Sternberg Matthew J. MacLean Jeannette M. Cannadella Michael A. Warley LUTZKER & LUTZKER LLP Jessica T. Nyman 1233 20th Street, NW, Suite 703 PILLSBURY WINTHROP SHAW PITTMAN Washington, DC 20036 LLP Tel: (202) 408-7600 1200 17th Street NW Fax: (202) 408-7677 Washington, D.C. 20036 [email protected] Tel: (202) 663-8000 [email protected] Fax: (202) 663-8007 [email protected] [email protected] matthew [email protected] [email protected] [email protected] Victor J. Cosentino 2 EXHIBIT CCG-R-1 WRITTEN REBUTTAL TESTIMONY OF LISA M. GEORGE, PH.D. Written Direct Testimony of Lisa M. George, Ph.D. 2010-2013 Cable Royalty Distribution Proceeding Docket No. 14-CRB-0010-CD (2010-2013) September 11, 2017 My name is Lisa M. George. I am an Associate Professor of Economics at Hunter College and the Graduate Center of the City University of New York. My academic research focuses on the economics of media markets. I have previously provided Written Direct Testimony in this proceeding, as Exhibit CCG-5 and Corrected Amended Written Direct Testimony as Exhibit CCG-5A (Corrected). More details about my experience and training and a copy of my CV can be found in Exhibit CCG-5. INTRODUCTION I have been asked by the Canadian Claimants Group (CCG) to evaluate regression estimates of relative market value submitted in these proceedings by Joint Sports Claimants (JSC) and Commercial Television Claimants (CTV). I also have been asked to respond to challenges by Settling Devotional Claimants (SDC) and Public Television Claimants (PTV) to the use