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Rebuttal Binder Cover Satellite- 2010-13 PUBLIC VERSION Electronically Filed Docket: 14-CRB-0011-SD (2010-2013) Filing Date: 08/26/2019 11:33:36 PM EDT Before the COPYRIGHT ROYALTY JUDGES Washington, D.C. ___________________________________ ) In re ) ) NO. 14-CRB-0011-SD (2010-13) DISTRIBUTION OF SATELLITE ) ROYALTY FUNDS ) ___________________________________ ) WRITTEN REBUTTAL STATEMENT OF THE JOINT SPORTS CLAIMANTS Volume I of III Daniel Cantor Michael Kientzle Bryan L. Adkins ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, D.C. 20001-3743 Counsel for the Office of the Commissioner of Baseball Philip R. Hochberg LAW OFFICES OF PHILIP R. HOCHBERG 12505 Park Potomac Avenue Potomac, MD 20854 Counsel for the National Basketball Association, National Football League, National Hockey League, And Women’s National Basketball Association Ritchie T. Thomas SQUIRE PATTON BOGGS (US) LLP 2550 M. St., N.W. Washington, D.C. 20037 Counsel for the National Collegiate Athletic Association PUBLIC VERSION TABLE OF CONTENTS VOLUME I: Written Direct Testimony of the Joint Sports Claimants TAB Written Direct Statement .......................................................................................... MEMORANDUM Andrew Dick, Ph.D. ......................................................................................................................... 1 James M. Trautman .......................................................................................................................... 2 Daniel Hartman ................................................................................................................................ 3 David Shull ...................................................................................................................................... 4 William Wecker, Ph.D. and R. Garrison Harvey ............................................................................. 5 Brad Adgate ..................................................................................................................................... 6 Nancy A. Mathiowetz, Ph.D. ........................................................................................................... 7 VOLUME II: Exhibits of the Joint Sports Claimants TAB Testimony of Judith Allen Docket No. 2001-8 CARP CD 1998-1999 (November 25, 2002) ................................... 8 Testimony of Michelle Connolly, PhD Docket No. 14-CRB-0010-CD (2010-13) (December 22, 2016) ..................................... 9 Testimony of Gregory S. Crawford, PhD Docket No. 2007-3 CRB CD 2004-05 (December 19, 2009) ........................................ 10 Testimony of Gregory S. Crawford, PhD Docket No. 14-CRB-0010-CD (2010-13) (September 15, 2017) .................................. 11 Testimony of Michael Egan Docket No. 2001-8 CARP CD 1998-99 (November 25, 2002) ...................................... 12 Testimony of Jeffrey S. Gray, Ph.D. Docket No. 14-CRB-0010-CD (2010-13) (corrected April 3, 2017) ............................. 13 Testimony of Dr. Mark Israel Docket No. 14-CRB-0010-CD (2010-13) (September 15, 2017) .................................. 14 Testimony of Nancy A. Mathiowetz, Ph.D. Docket No. 14-CRB-0010-CD (2010-13) (December 22, 2016) ................................15 Testimony of Nancy A. Mathiowetz, Ph.D. Docket No. 14-CRB-0010-CD (2010-13) (September 15, 2017) ................................16 Testimony of Judith Meyka Docket No. 2007-3 CARP CD 2004-05 (June 1, 2009) ..............................................17 i PUBLIC VERSION Testimony of James Mooney Docket No. 94-3 CARP CD 1990-1992 (August 15, 1995) ........................................18 Testimony of Trygve Myhren Docket No. 94-3 CARP CD 1990-1992 (August 15, 1995) ........................................19 Testimony of Susan Nathan Docket No. 14-CRB-0010-CD (2010-13) (corrected Oct. 5, 2017) ............................20 Testimony of James Trautman Docket No. 14-CRB-0010-CD (2010-13) (corrected Oct. 5, 2017) ............................21 Testimony of James Trautman Docket No. 2007-3 CRB CD 2004-2005 (December 11, 2009) ..................................22 2004-05 Bortz Report Docket No. 2007-3 CRB CD 2004-2005 (June 1, 2009) .............................................23 Testimony of June Travis Docket No. 2001-8 CARP CD 1998-99 (November 27, 2002) ...................................24 Testimony of Dr. William E. Wecker and R. Garrison Harvey Docket No. 14-CRB-0010-CD (2010-13) (September 15, 2017) ................................25 William E. Wecker Associates, Inc. Analysis of Written Direct Testimony of Jeffrey S. Gray, Ph.D. ....................26 Testimony of Roger Werner CRT Docket No. 91-2-89 CD (1989 Proceeding) .......................................................27 Testimony of Dr. Steven S. Wildman Docket No. 94-3 CARP-CD90-92 (August 15, 1992) .................................................28 Testimony of Robert Wussler CRT Docket No. 91-2-89 CD (1989 Proceeding) .......................................................29 VOLUME III: Transcripts of Oral Testimony TAB Testimony of Judith Allen Docket No. 2001-8 CARP CD 1998-1999 (1998-99 Proceeding) ................................... 1 Testimony of Gregory S. Crawford, PhD Docket No. 2007-3 CRB CD 2004-05 (2004-05 Proceeding) ......................................... 2 Testimony of Gregory S. Crawford, PhD Docket No. 14-CRB-0010-CD (2010-13) ((2010-13 Proceeding) ................................... 3 Testimony of Michael Egan Docket No. 2001-8 CARP CD 1998-99 (1998-99 Proceeding) ....................................... 4 ii PUBLIC VERSION Testimony of Jeffrey S. Gray, Ph.D. Docket No. 14-CRB-0010-CD (2010-13) (2010-13 Proceeding) .................................... 5 Testimony of Dr. Mark Israel Docket No. 14-CRB-0010-CD (2010-13) ((2010-13 Proceeding) ................................... 6 Testimony of Nancy A. Mathiowetz, Ph.D. Docket No. 14-CRB-0010-CD (2010-13) (2010-13 Proceeding)..................................7 Testimony of Judith Meyka Docket No. 2007-3 CARP CD 2004-05 (2004-05 Proceeding) ....................................8 Testimony of James Mooney Docket No. 94-3 CARP CD 1990-1992 (1990-92 Proceeding) ....................................9 Testimony of Trygve Myhren Docket No. 94-3 CARP CD 1990-1992 (1990-92 Proceeding) ..................................10 Testimony of James Trautman Docket No. 14-CRB-0010-CD (2010-13) (2010-13 Proceeding)................................11 Testimony of James Trautman Docket No. 2007-3 CRB CD 2004-2005 (2004-05 Proceeding) .................................12 Testimony of June Travis Docket No. 2001-8 CARP CD 1998-99 (1998-99 Proceeding) ..................................13 Testimony of Dr. William E. Wecker and R. Garrison Harvey Docket No. 14-CRB-0010-CD (2010-13) (2010-13 Proceeding)................................14 Testimony of Roger Werner CRT Docket No. 91-2-89 CD (1989 Proceeding) .......................................................15 Testimony of Dr. Steven S. Wildman Docket No. 94-3 CARP-CD90-92 (1990-92 Proceeding) ...........................................16 Testimony of Robert Wussler CRT Docket No. 91-2-89 CD (1989 Proceeding) .......................................................17 iii PUBLIC VERSION Before the COPYRIGHT ROYALTY JUDGES Washington, DC ) In re ) ) DISTRIBUTION OF ) NO. 14-CRB-0011-SD (2010-13) SATELLITE ROYALTY FUNDS ) ) WRITTEN REBUTTAL STATEMENT OF THE JOINT SPORTS CLAIMANTS Pursuant to Section 351.11 of the rules of the Copyright Royalty Judges (“Judges”), 37 C.F.R. § 351.11, and the Judges’ order in this proceeding dated November 2, 2018, the Joint Sports Claimants1 (“JSC”) hereby submit the following written rebuttal statement: Volume I contains the written rebuttal testimony of JSC’s eight witnesses. Volume II contains the written testimony from prior cable royalty distribution proceedings that the JSC witnesses discuss in their written rebuttal testimony and cite as JSC Exhibit Nos. 8-29. Volume III contains the transcripts of the oral direct, cross and redirect examination pertaining to the written testimony in Volume II. JSC hereby designate the testimony in Volumes II-III for inclusion in their written rebuttal statement pursuant to 37 C.F.R. §§ 351.11 & 351.4(b)(2). This memorandum summarizes the written rebuttal testimony in Volume I. OVERVIEW OF JSC’S WRITTEN REBUTTAL STATEMENT The purpose of this proceeding is to allocate among the JSC, Program Suppliers, Settling Devotional Claimants (“SDC”), and Broadcaster Claimants Group (the “Allocation Phase 1 The Joint Sports Claimants are the Office of the Commissioner of Baseball, National Football League, National Hockey League, National Basketball Association, Women’s National Basketball Association, and the National Collegiate Athletic Association. Written Rebuttal Statement of the Joint Sports Claimants | 1 PUBLIC VERSION Parties”) the royalties that satellite carriers paid to retransmit broadcast television programming during the 2010-13 period pursuant to the compulsory copyright license for satellite carriers, 17 U.S.C. § 119. See, e.g., Notice of Participant Groups, Commencement of Voluntary Negotiation Period (Allocation), and Scheduling Order, No. 14-CRB-0011-SD (2010-13) (Nov. 25, 2015). While there is no express statutory standard for allocating Section 119 royalties, the Judges and their predecessors have applied a “relative marketplace value” standard in proceedings to allocate royalties paid pursuant to the compulsory license for cable systems, 17 U.S.C. § 111, as well as in Phase II
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