Redacted: Public Version Before the COPYRIGHT ROYALTY JUDGES Washington, D.C. In the Matter of ) ) Distribution of ) Docket No. 14-CRB-OO 10-CD 2010-2013 2010-2013 ) Cable Royalty Funds ) In the Matter of ) ) Distribution of ) Docket No. 14-CRB-0011-SD 2010-2013 2010-2013 ) ....;;...Sa_t__ el __ li_te_R_o_y_al__.ty ....... F_u_n_d_s _____) MULTIGROUP CLAIMANTS' OPPOSITION TO JOINT SPORTS CLAIMANTS' MOTION TO DISALLOW THE MULTIGROUP CLAIMANTS' CLAIMS AGAINST THE SPORTS CATEGORY Brian D. Boydston, Esq. California State Bar No. 155614 PICK & BOYDSTON, LLP 10786 Le Conte Ave. Los Angeles, California 90024 Telephone: (213) 624-1996 Facsimile: (213) 624-9073 Email: [email protected] Attorneys for Multigroup Claimants Redacted: Public Version TABLE OF CONTENTS INTRODUCTION•..•.•.....•.....•.......•.•....•.....••....••.••. 4 A. THE JUDGES SHOULD NOT DISMISS THE PROGRAM CLAIMS OF FIFA OR, IF DISMISSED, MUST BE PREPARED TO REINSTATE SUCH PROGRAM CLAIMS PENDING THE DECISION OF THE NINTH CIRCUIT FEDERAL COURT OF APPEALS ..•..•.•.•......•..•.•.•••••..•.•.•.•....•••.•......5 1. MULTIGROUP CLAIMANTS IS REQUIRED TO MAKE CLAIM FOR FIFA PROGRAMMING PENDING THE OUTCOME OF A DISPUTE BEFORE THE NINTH CIRCUIT FEDERAL COURT OF APPEALS •.....•...•.•....••.•••....••.••..•••..••.•••.5 2. FIFA PROGRAMMING HAS BEEN SUFFICIENTLY IDENTIFIED...••.•••••••.•.•••••.•.•..••••..•.•.••.••..•. 8 3. MULTIGROUP CLAIMANTS HAS SUFFICIENTLY DEMONSTRATED THE EXISTENCE OF PROGRAMMING IN THE "SPORTS PROGRAMMING" CATEGORY, AND ALREADY AGREED TO WITHDRAW ANY MISCATEGORIZED PROGRAMMING..••.••.•.....•.......•.••...••.••....•.. 10 B. THERE IS NO LEGAL BASIS TO DISMISS MULTIGROUP CLAIMANTS' CLAIM TO CFL PROGRAMMING....•..•••.•... 12 1. CFL'S NOTICE OF TERMINATION IS SUBJECT TO A POST­ TERM COLLECTION RIGHT, WHICH THE CFL EXPRESSLY RECOGNIZED BY EXECUTION OF AN "ACKNOWLEDGMENT OF REPRESENTATION'' ........••....•.•......••.....••..12 2 Redacted: Public Version 2. IN THE SPORTS PROGRAMMING CATEGORY, MULTIGROUP CLAIMANTS HAS ONLY MADE CLAIM FOR THE RETRANSMISSION OF U.S.-ORIGINATED BROADCASTS OF CFL PROG RAMMING. • . • . • . • • . • . • . • . • • . 14 3. THE JSC ASSERT THERE HA VE BEEN NO QUALIFYING RETRANSMISSIONS OF CFL PROGRAMMING BASED ON THE REVIEW OF A TWO PRESS RELEASES BY ONE OF THE JSC LEGAL COUNSEL...••....••.•......•.•....•.•..•.... 15 C. THERE IS NO LEGAL BASIS TO DISMISS MULTIGROUP CLAIMANTS' CLAIM TO TV AZTECA PROGRAMMING...•.•. 18 1. MULTIGROUP CLAIMANTS RIGHTS ARE DERIVED THROUGH AZTECA INTERNATIONAL CORPORATION..•.• 18 2. TV AZTECA'S CLAIMS HAVE BEEN PRESERVED BY THIRD PARTIES, AND TV AZTECA APPEARS ON THE SLP PETITIONS TO PARTICIPATE.•......•.......•.•...•.•.... 22 3. MULTIGROUP CLAIMANTS PRODUCED EXTENSIVE DOCUMENTATION IDENTIFYING THE TV AZTECA PROGRAMMING.•.•..•.•.....••.•..•.•.•.....•••••••..•• 24 4. THE PROGRAMMING LISTS PROVIDED BY TV AZTECA EXPRESSLY SEGREGATES THE PROGRAMS INTO THE PHASE I CATEGORIES APPLICABLE TO THESE PROCEEDINGS•.....••....•..........••............•...• 28 CONCLUSION.......•.•.•....•..........•....•.•.••..••....••.•• 28 3 Redacted: Public Version INTRODUCTION By its motion, the Joint Sports Claimants ("JSC") ask the Judges to disallow the claims asserted by Multigroup Claimants ("MC") in this proceeding regarding (1) the Federation Internationale de Football Association ("FIFA"), (2) Canadian Football League Properties, Limited ("CFL"), and (3) TV Azteca S.A. de C.V. ("TV Azteca"). The motion should be denied in its entirety. The issue of MC' s entitlement to collect royalties on behalf of FIFA is presently pending before the Ninth Circuit Court of Appeal, with oral argument thereon scheduled for November 8, 2016. The CRB should not dismiss such claims until that issue is decided. With regard to the CFL, contrary to the JSC 's aspersions, Independent Producers Group ("IPG"), MC's assignor, has a fully authorized post termination collection right to collect royalties on behalf of the CFL. As such, there are no grounds to disallow such claims. By CFL' s execution of an Acknowledgment of Representation, CFL has affirmed such fact. With regard to TV Azteca, MC's right to collect royalties on behalf of TV Azteca (as assigned by IPG) post dates that of any other claimants herein, making MC the proper claimant of TV Azteca royalties, and the JSC's claims regarding MC's alleged failure to produce TV Azteca documentation regarding the nature of its programming are demonstrably false and ignore such exact documentation 4 Redacted: Public Version produced by MC to the JSC herein {specifically, Item 10 to MC's production to the ·1sc). Therefore, the JSC's motion should be denied in its entirety. ARGUMENT A. THE JUDGES SHOULD NOT DISMISS THE PROGRAM CLAIMS OF FIFA OR, IF DISMISSED, MUST BE PREPARED TO REINSTATE SUCH PROGRAM CLAIMS PENDING THE DECISION OF THE NINTH CIRCUIT FEDERAL COURT OF APPEALS. 1. MULTIGROUP CLAIMANTS IS REQUIRED TO MAKE CLAIM FOR FIFA PROGRAMMING PENDING THE OUTCOME OF A DISPUTE BEFORE THE NINTH CIRCUIT FEDERAL COURT OF APPEALS. The JSC argue that MC lacks authority to represent FIFA in this proceeding, citing to the Judge's rulings in 2000-2003 cable proceeding, and the consolidated 2004-2009 cable and 1999-2009 satellite proceeding (the "Consolidated Proceeding"). The JSC further note that they frequently asked for information from MC regarding the FIFA claim, and requested that MC either dismiss MC's claims regarding FIFA or produce documents establishing an additional basis for MC's authority. As the JSC note, MC did not respond to those multiple requests. This was for the obvious reason that the JSC first attempted to engage in one sided discovery in advance of discovery in these proceedings. Further, once discovery commenced, the JSC further attempted to unilaterally engage in the submission of 5 Redacted: Public Version requests for information that were, effectively, interrogatories. JSC motion at pp. 4, 7. JSC is well aware that MC was not obligated to engage in all these forms of unauthorized discovery, but nonetheless makes issue of it in its motion, suggesting that there is some significance to IPG's refusal to be engaged by the JSC. In any event, in its prior pleadings and correspondence the JSC had already demonstrated its familiarity with the pending litigation between Independent Producers Group ("IPG") and FIFA, a matter expressly addressed between MC's counsel and the JSC counsel, and there was nothing to produce other than the same documentation that has been produced in prior proceedings by IPG. That documentation was produced by MC herein as well. MC' s ability to represent FIFA in these proceedings depends upon a civil matter presently pending before the Ninth Circuit Court of Appeals, specifically, an appeal by IPG of a ruling by the Central District of California in which IPG' s lawsuit alleging a right to represent FIFA in these proceedings was dismissed for lack of personal jurisdiction over FIFA. If IPG' s appeal is granted, which could occur imminently, it will necessarily be based on the enforceability of the agreement that was produced to the JSC in these and prior proceedings.1 lfIPG's appeal is granted based on FIFA' s agreement that IPG is exclusively entitled to 1 Whether FIFA entered into an agreement is dispositive of the issue of personal jurisdiction because it would reflect assent to a written agreement which established jurisdiction over disputes in the Central District of California. 6 Redacted: Public Version collect retransmission royalties attributable to FIFA programming then, presumably, the Judges would honor the decision and allow IPG to pursue the collection of FIFA royalties. In fact, given the limitations on the Judges' authority to adjudicate contractual disputes, the ruling of the federal court would be controlling. The JSC cite to earlier rulings by the Judges in prior proceedings, and contend that based upon those rulings IPG has no right to collect royalties due FIFA. However, those rulings were not made in the face of a ruling from a federal court finding that IPG is entitled to collect such royalties. MC is, in fact, in a precarious situation of being "damned if it does, damned if it doesn't", because failure to assert the claims presently will result in the irretrievable forfeiture of such claims, while assertion of the claims subjects MC to an accusation of having asserted a claim for which prior rulings found that the program claims should be dismissed. In light of these circumstances, the Judges should not grant the JSC' s motion on this issue at this time. If the Judges were to grant the JSC motion as to FIFA pending the determination of the Ninth Circuit, the Judges should be prepared to reinstate the FIFA programming claims if the Ninth Circuit rules favorably for IPG. 7 Redacted: Public Version 2. FIFA PROGRAMMING HAS BEEN SUFFICIENTLY IDENTIFIED. The JSC next argue that the FIFA programming for which MC makes claims herein has not been identified by FIFA as FIFA-owned programming. Indeed, given the contractual dispute between IPG and FIFA, FIFA has been an "uncooperative claimant" despite having entered into a contract with IPG to collect these royalties (hence the action before the Ninth Circuit). Under the circumstances, IPG has done what it must and independently researched FIFA' s programming which applies to these proceedings, and any bright line ruling that precludes the consideration of verifiable facts if they are not directly from the mouth of the underlying claimant, would seem unreasonable. IPG' s research has yielded a wealth of public documentation