throbber
United States Court of Appeals
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Argued January 12, 2015
`
`Decided August 11, 2015
`
`No. 14-1068
`
`INTERCOLLEGIATE BROADCASTING SYSTEM, INC.,
`APPELLANT
`
`v.
`
`COPYRIGHT ROYALTY BOARD AND LIBRARIAN OF CONGRESS,
`APPELLEES
`
`COLLEGE BROADCASTERS, INC. AND SOUNDEXCHANGE, INC.,
`INTERVENORS
`
`On Appeal From the Copyright Royalty Board
`
`John R. Grimm argued the cause for appellant. With him on
`the briefs were Timothy J. Simeone and Christopher J. Wright.
`
`Sonia K. McNeil, Attorney, U.S. Department of Justice,
`argued the cause for appellees. With her on the brief was Mark
`R. Freeman, Attorney.
`
`Matthew S. Hellman argued the cause for intervenor
`SoundExchange, Inc. With him on the brief were Michael B.
`DeSanctis and Ishan K. Bhabha. David A. Handzo entered an
`appearance.
`
`

`
`2
`
`David D. Golden and Catherine R. Gellis were on the brief
`for intervenor College Broadcasters, Inc. in support of appellees.
`
`Before: GARLAND, Chief Judge, and SRINIVASAN and
`WILKINS, Circuit Judges.
`
`Opinion for the Court filed by Chief Judge GARLAND.
`
`GARLAND, Chief Judge: Intercollegiate Broadcasting
`System, Inc., appeals a determination by the Copyright Royalty
`Board setting royalty rates for webcasting. Three years ago, we
`vacated and remanded the Board’s prior determination on this
`subject, concluding that its members had been appointed in
`violation of
`the Constitution’s Appointments Clause.
`Thereafter, the Librarian of Congress appointed a new Board,
`which made the determination at issue here. Intercollegiate
`contends that the new Board’s determination again violated the
`Appointments Clause because it was tainted by the previous
`Board’s decision. The appellant also disputes the merits of the
`Board’s determination. For the reasons set forth below, we
`reject both challenges.
`
`I
`
`Intercollegiate Broadcasting System (IBS) is a nonprofit
`association that represents college and high school radio
`stations, which historically broadcasted over the air. Many of its
`member stations are now involved in webcasting -- the digital
`transmission of sound recordings over the Internet by, for
`example, Internet radio music services.
`
`In 1995, Congress amended the Copyright Act to grant the
`owner of a sound recording copyright the exclusive right to
`publicly perform the copyrighted work by means of a digital
`audio transmission. See Digital Performance Right in Sound
`
`

`
`3
`
`Recordings Act of 1995, sec. 2, § 106(6), Pub. L. No. 104-39,
`109 Stat. 336, 336 (codified at 17 U.S.C. § 106(6)). This right
`is now subject to certain limitations. Most relevant to this
`appeal, subsequent amendments in the Digital Millennium
`Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998),
`“created a statutory license in performances by webcast, to serve
`Internet broadcasters and to provide a means of paying
`copyright owners.” Intercollegiate Broad. Sys., Inc. v.
`Copyright Royalty Bd. (Intercollegiate I), 574 F.3d 748, 753
`(D.C. Cir. 2009) (internal quotation marks omitted); see 17
`U.S.C. § 114(d)(2). These licenses permit entities other than the
`copyright owner to use and perform the copyrighted sound
`recordings without the copyright holder’s permission. In
`exchange, the licensees -- here, webcasters -- must pay royalty
`fees to the copyright owner as required by the statute. See
`Indep. Producers Grp. v. Library of Congress, 759 F.3d 100,
`101 (D.C. Cir. 2014). Such royalties are normally paid to
`copyright owners through third-party clearinghouses like the
`intervenor in this case, SoundExchange, Inc.
`
`In the Copyright Royalty and Distribution Reform Act of
`2004, Pub. L. No. 108-419, 118 Stat. 2341, Congress created the
`Copyright Royalty Board within the Library of Congress. The
`Board is composed of three Copyright Royalty Judges,
`appointed by the Librarian of Congress, and is authorized to
`determine rates and terms for the licensing and use of
`copyrighted works in (inter alia) webcasting. See 17 U.S.C.
`§§ 114(f), 801(b)(1). If the parties voluntarily agree on rates
`and terms, the Act directs the Board to adopt their agreement.
`See id. § 114(f)(3). If the parties fail to agree, the Board must
`hold adversarial proceedings governed by the statute and its
`regulations to determine “reasonable” royalty rates and terms for
`the license period in question. Id. § 114(f)(2)(A); see id. § 803;
`37 C.F.R. §§ 351.1 et seq. The Board’s final determination is
`governed by the standards set forth in the Act. As relevant here,
`
`

`
`4
`
`the Board must “distinguish among the different types” of
`services and must determine “a minimum fee for each such type
`of service.” 17 U.S.C. § 114(f)(2)(B). The final rates and terms
`must be those that “most clearly represent the rates and terms
`that would have been negotiated in the marketplace between a
`willing buyer and a willing seller.” Id. Following a review for
`legal error by the Register of Copyrights, id. § 802(f)(1)(D), the
`Librarian of Congress publishes the determination in the Federal
`Register, id. § 803(c)(6).
`
`In January 2009, the Board initiated a proceeding to
`establish the rates and terms for the public performance of
`digital sound recordings for the 2011-2015 period. Most
`participants reached settlements during the voluntary negotiation
`period prescribed by the statute. See Determination of Royalty
`Rates for Digital Performance Right in Sound Recordings and
`Ephemeral Recordings, 79 Fed. Reg. 23,102, 23,102 (Apr. 25,
`2014) [hereinafter 2014 Final Determination]; see also 17
`U.S.C. § 803(b)(3). The Board held an evidentiary hearing for
`the remaining participants, including Intercollegiate. The Board
`received written and live testimony from fifteen witnesses and
`admitted sixty exhibits into evidence. See 79 Fed. Reg. at
`23,104. The record also included written and oral argument of
`counsel. See id. The Board issued a final determination on
`March 9, 2011. See Digital Performance Right in Sound
`Recordings and Ephemeral Recordings, 76 Fed. Reg. 13,026
`(Mar. 9, 2011) [hereinafter 2011 Final Determination]. Among
`other things, the determination included a $500 per station or per
`channel annual minimum fee for all commercial and
`noncommercial webcasters.
`
`Intercollegiate appealed the 2011 final determination,
`contending both that the Judges were appointed in violation of
`the Appointments Clause, and that the minimum fee was
`unlawful as applied to “small” and “very small” noncommercial
`
`

`
`5
`
`webcasters. This court agreed with the former challenge and did
`not reach the latter. See Intercollegiate Broad. Sys., Inc. v.
`Copyright Royalty Bd. (Intercollegiate II), 684 F.3d 1332 (D.C.
`Cir. 2012). We determined that Congress had vested the Judges,
`who could not be removed except for cause, with sufficient
`authority and independence to qualify as “principal” officers of
`the United States. Id. at 1336-41. Under the Appointments
`Clause, however, principal officers must be appointed by the
`President and confirmed by the Senate. See U.S. CONST. art. II,
`§ 2, cl. 2. To “cure[] the constitutional defect with as little
`disruption as possible,” we declared invalid and severed the
`statutory provision that barred the Librarian of Congress from
`removing the Judges without cause. Intercollegiate II, 684 F.3d
`at 1336-37, 1340. “Once the limitations on the Librarian’s
`removal authority are nullified,” we said, the Judges “become
`validly appointed inferior officers.” Id. at 1341. Because the
`Judges were not validly appointed at the time they issued the
`challenged determination, however, we vacated and remanded
`that determination without
`reaching
`the merits of
`Intercollegiate’s challenge. Id. at 1342.
`
`Thereafter, the Librarian appointed three new Copyright
`Royalty Judges to replace the previous Judges. The new Judges
`directed the parties to submit proposals regarding how to
`proceed on the remand. Unsurprisingly, the parties proposed
`nearly opposite ways forward. SoundExchange initially
`proposed that the Judges “reinstate the Final Determination in its
`entirety without undertaking
`further proceedings.”
`SoundExchange’s Mot. Concerning Conduct of Proceedings on
`Remand 1 (J.A. 173). Intercollegiate said the Judges should
`reopen proceedings and permit additional written and oral
`testimony and briefing. See IBS’s Proposal for Conduct of
`Remand 1 (J.A. 194).
`
`

`
`6
`
`After reviewing the parties’ proposals, the Board issued a
`preliminary Notice of Intention to Conduct a Paper Proceeding
`on Remand. The Notice contained several key points. First, the
`Board interpreted this court’s remand as directing it to review
`the entire record and to issue a new determination on all issues,
`not just the $500 minimum fee that Intercollegiate had
`challenged on appeal. Notice of Intention to Conduct Paper
`Proceeding on Remand 4 (J.A. 221) [hereinafter Notice].
`Second, because the court did not reach the merits of the
`dispute, the Board understood that it “could, after an appropriate
`process, issue a new final determination that . . . reaches the
`same conclusions . . . as the prior Final Determination.” Id. at
`5 (J.A. 222). The Board recognized, however, that it was “also
`free to reach completely different conclusions in [its] new final
`determination.” Id. Third, the Board decided neither to “rubber
`stamp” the prior Board’s decision, nor to conduct a “complete
`‘do over’ of the entire original process.” Id. at 6 (J.A. 223).
`Instead, it would conduct an independent, de novo review of the
`entire written record of the proceeding. Id. at 7 (J.A. 224). The
`Board decided not to hold new evidentiary hearings because
`Intercollegiate had “fail[ed] . . . to point to any instance of an
`exclusion of relevant evidence that affected the outcome of the
`proceeding, or to any portion of the Final Determination that
`turned on witness credibility.” Id. Likewise, the Board decided
`not to accept additional submissions because “no party ha[d]
`provided any specific reason . . . to reopen the record,” and
`because each party “had ample opportunity to present its case.”
`Id.
`
`In sum, the Board concluded that “it would be neither fair,
`nor efficient, nor economical to proceed . . . with additional
`submissions, discovery, and evidentiary hearings.” Notice at 7-
`8 (J.A. 224-25). Accordingly, as authorized by 17 U.S.C.
`§ 803(b)(5), the Board stated its intention to “conduct[] only a
`paper proceeding, consisting of a review of the existing record
`
`

`
`7
`
`in this proceeding, and then issu[e] a determination at the
`conclusion of that review.” Id. at 9 (J.A. 226). The Board
`established a ten-day period for comments on the Notice. “[T]o
`the extent that any party disagree[d]” with the plan to go
`forward with a paper proceeding, the Board directed such party
`to “identify in its comments to this notice specific examples
`where it believes the outcome of the original proceeding turned
`on elements, such as witness demeanor, that are not readily
`determined from a review of the written record.” Id.
`
`After the end of the comment period, the Board announced
`that it would “proceed with [its] consideration de novo on the
`existing record” and would “accept no further submissions.”
`Order Following Notice of Intention to Conduct Paper
`Proceeding (J.A. 233). The Board issued its preliminary written
` See 2014 Final
`determination on January 9, 2014.
`Determination, 79 Fed. Reg. at 23,103. On April 25, 2014, the
`Board issued the final determination at issue on this appeal. See
`id. at 23,102. Once again, the final determination imposed a
`$500 per station or per channel annual minimum fee for both
`commercial and noncommercial webcasters. See id. at 23,122-
`24. As in the 2011 final determination, the Board rejected
`Intercollegiate’s proposal to impose lower annual fees on
`“small” and “very small” noncommercial webcasters. Id. at
`23,123.
`
`Intercollegiate filed a timely appeal of the Board’s final
`determination to this court, which has jurisdiction pursuant to 17
`U.S.C. § 803(d)(1). Intercollegiate contends that the Board’s
`determination violated the Appointments Clause again. It also
`challenges the merits of the determination insofar as it requires
`Intercollegiate’s members to pay $500 per year. Reply Br. 4 &
`n.1. SoundExchange, the nonprofit entity responsible for
`distributing statutory royalties for the 2011-2015 period, see 37
`C.F.R. § 380.2, intervened to defend the determination.
`
`

`
`8 I
`
`I
`
`Intercollegiate’s principal contention is that the new
`Board’s determination violated the Appointments Clause
`because it was “still tainted by the Appointments Clause
`violation that originally led this Court to remand” the previous
`Board’s determination. Intercollegiate Br. 15. We consider that
`constitutional challenge de novo. See Am. Bus. Ass’n v. Rogoff,
`649 F.3d 734, 737 (D.C. Cir. 2011).
`
`The Appointments Clause provides that the President “shall
`nominate, and by and with the Advice and Consent of the
`Senate, shall appoint . . . Officers of the United States, . . . but
`the Congress may by Law vest the Appointment of such inferior
`Officers, as they think proper, in the President alone, in the
`Courts of Law, or in the Heads of Departments.” U.S. CONST.
`art. II, § 2, cl. 2. As we have noted, this court vacated and
`remanded
`the previous Board’s 2011 determination of
`webcasting rates because the Copyright Royalty Judges who
`made that determination had been appointed in violation of the
`Clause. Intercollegiate II, 684 F.3d at 1342. The Librarian of
`Congress responded by replacing the three original Judges with
`three new ones, appointed under the statute with the offending
`provision severed and with the power to reconsider the matter de
`novo.
`
`Intercollegiate does not dispute that the three new Judges
`were properly appointed by
`the Librarian under
`the
`Appointments Clause. Rather, it contends that, “[b]y merely
`reviewing de novo their predecessors’ proceedings instead of
`conducting their own proceeding permitting firsthand credibility
`determinations and evidentiary rulings, the Judges did nothing
`more than enshrine the constitutional violations that this Court
`sought to cure.” Intercollegiate Br. 15. We disagree.
`
`

`
`9 A
`
`This court has twice before considered the validity of
`decisions made after the replacement of an improperly appointed
`official. Both cases support the validity of a subsequent
`determination when -- as here -- a properly appointed official
`has the power to conduct an independent evaluation of the
`merits and does so.
`
`1. In FEC v. Legi-Tech, we held that a properly
`reconstituted Federal Election Commission (FEC) could
`reauthorize pending enforcement actions that had been initiated
`by an unconstitutionally constituted Commission. 75 F.3d 704,
`706 (D.C. Cir. 1996). In an earlier case, another panel of this
`court had held that a provision of the Federal Election Campaign
`Act, placing two congressional officers on the Commission as
`ex officio members, violated constitutional separation-of-powers
`principles. See FEC v. NRA Political Victory Fund, 6 F.3d 821
`(D.C. Cir. 1993). That case also held that the ex officio
`provision was severable. Id. at 827-28. Thereafter, the
`Commission voted to reconstitute itself and exclude the ex
`officio members.
` The reconstituted Commission
`then
`considered the pending actions, deliberated for three days, and
`voted to continue the actions against the defendant. This was
`sufficient to cure the constitutional violation, we said,
`notwithstanding the possibility that the Commission may have
`in fact “rubberstamp[ed]” the enforcement action. Legi-Tech, 75
`F.3d at 708-09.1
`
`1See Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision,
`139 F.3d 203, 213 (D.C. Cir. 1998) (describing “misgivings” in Legi-
`Tech about “whether the new FEC had engaged in a real fresh
`deliberation” (internal quotation marks omitted)); see also Andrade v.
`Regnery, 824 F.2d 1253, 1257 (D.C. Cir. 1987) (finding no
`Appointments Clause violation where a properly appointed official
`
`

`
`10
`
`In Doolin Security Savings Bank, F.S.B. v. Office of Thrift
`Supervision, we again affirmed the ability of a properly
`appointed officer to uphold the decision of one who was not.
`139 F.3d 203, 213-14 (D.C. Cir. 1998). There, the agency
`persuaded us that a validly appointed agency director had “made
`a detached and considered judgment” in ratifying the previous
`director’s decision. Id. Because the new director “effectively
`ratified the [previous director’s] Notice of Charges . . . at a time
`when he could have initiated the charges himself,” it was not
`even necessary to decide whether the previous director had
`“lawfully occupied the position.” Id. at 214.
`
`These precedents make clear that the new Board’s de novo
`determination that a $500 annual fee was proper did not violate
`the Appointments Clause. Intercollegiate seeks to avoid this
`result by overstating the importance of particular facts in each
`case.
`
`Intercollegiate argues that Legi-Tech is distinguishable
`because it was based in part on the practical futility of
`remanding to the Commission for new proceedings because the
`Commission’s voting membership had not changed. Under such
`circumstances, we said, “forcing the Commission to start at the
`beginning of the administrative process, given human nature,
`promises no more detached and ‘pure’ consideration of the
`merits.” Legi-Tech, 75 F.3d at 709. But Intercollegiate’s
`argument proves too much. It implies that the Board’s
`determination would be less vulnerable had the Librarian
`retained the three original Judges -- who, we held, became
`“validly appointed inferior officers” once “the limitations on the
`Librarian’s removal authority [were] nullified,” Intercollegiate
`
`with final authority, but who had been in office only three days,
`ratified and implemented a program that had been extensively planned
`by his improperly appointed predecessor).
`
`

`
`11
`
`II, 684 F.3d at 1341 -- rather than replaced them with new
`individuals. We doubt that Intercollegiate would regard those
`original Judges as more independent than their replacements.
`Indeed, because Legi-Tech held
`that ratification by a
`reconstituted Commission with the same voting members was
`sufficient to satisfy the Appointments Clause, it follows a
`fortiori that a de novo determination by a Copyright Royalty
`Board with all new members was sufficient as well.
`
`Intercollegiate also seeks to distinguish both Legi-Tech and
`Doolin on the ground that they involved administrative
`enforcement actions -- “an area of traditionally broad discretion”
`-- rather than the exercise of judicial authority in an adversarial
`proceeding. Intercollegiate Br. 25-26 & n.52. But neither Legi-
`Tech nor Doolin rested its holding on that ground.2 Moreover,
`this court subsequently suggested that the logic of Legi-Tech and
`Doolin would apply in the adjudication context as well: in a
`case vacating an order issued by a two-person National Labor
`Relations Board (NLRB) that we found lacked a statutory
`quorum, we suggested that ratification by a properly constituted
`Board would be appropriate. See Laurel Baye Healthcare of
`Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 476 (D.C. Cir. 2009)
`(citing Legi-Tech, 75 F.3d 704); cf. Fortuna Enters., LP v.
`NLRB, 789 F.3d 154, 158 (D.C. Cir. 2015) (reviewing an NLRB
`decision that “reinstat[ed] and incorporat[ed] by reference” a
`prior decision issued by a two-person Board).3
`
`2Legi-Tech mentioned the point in a single sentence, after the
`court had already rejected the appellee’s challenge and immediately
`before introducing a further rejection with the clause, “In any event.”
`75 F.3d at 709.
`
`3In a footnote, Intercollegiate suggests that Doolin is also
`distinguishable because it included a question as to whether the
`previous director in that case was validly appointed under the
`
`

`
`12
`
`2. Intercollegiate maintains that two Supreme Court cases
`stand for the proposition that the only way to remedy the
`exercise of judicial authority by invalidly appointed judges is for
`the new judges to “conduct a new hearing, not merely a de novo
`review of the record assembled by the constitutionally invalid
`tribunal.” Intercollegiate Br. 20. Neither case stands for that
`proposition.
`
`In the first case Intercollegiate cites, Ryder v. United States,
`the Supreme Court held only that an Appointments Clause
`violation arising out of a decision rendered by an improperly
`constituted tribunal was not remedied through appellate review
`by a properly constituted body with a narrower scope of
`authority. 515 U.S. 177, 187-88 (1995). Ryder involved a
`member of the United States Coast Guard who was convicted by
`a court-martial. Two appellate courts -- the Coast Guard Court
`of Military Review, followed by the United States Court of
`Military Appeals -- affirmed his conviction. Ryder argued to the
`Court of Military Appeals that two members of the Coast Guard
`Court had been appointed in violation of the Appointments
`Clause. Id. at 179. Although the Court of Military Appeals
`agreed that the appointments violated the Clause, it nonetheless
`affirmed the intermediate court’s ruling. Id. at 179-80.
`
`The Supreme Court reversed, rejecting the government’s
`argument that any defect in the Coast Guard Court “was in
`effect cured by the review available to petitioner in the Court of
`Military Appeals.” Id. at 186. Because the Coast Guard Court
`“had broader discretion to review claims of error, revise factual
`
`Vacancies Act. Intercollegiate Br. 28 n.54. But the court held that,
`notwithstanding whether the previous director was validly appointed
`under either the Vacancies Act or the Appointments Clause, Doolin,
`139 F.3d at 205, 207, the new director could ratify the previous
`director’s decision. Id. at 212-14 (citing Legi-Tech, 75 F.3d 704).
`
`

`
`13
`
`determinations, and revise sentences than” the Court of Military
`Appeals did, the Supreme Court concluded it “simply cannot be
`said . . . that review by the properly constituted Court of Military
`Appeals gave petitioner all the possibility for relief that review
`by a properly constituted Coast Guard Court . . . would have
`given him.” Id. at 187-88. The Supreme Court therefore held
`that Ryder was “entitled to a hearing before a properly appointed
`panel of that court.” Id. at 188.
`
`We agree with Intercollegiate insofar as it argues Ryder
`stands for the proposition that review by a properly appointed
`body can be insufficient to cure an Appointments Clause
`violation. But it does not stand for the proposition that de novo
`review is insufficient. To the contrary, the problem Ryder
`identified was that the reviewing court (the Court of Military
`Appeals) did not have authority to conduct a de novo review (as
`did the Coast Guard Court). Id. at 187. Nor does Ryder stand
`for the proposition that the only remedy for an Appointments
`Clause violation is a new evidentiary hearing regardless of the
`scope of the reviewing court’s authority. Intercollegiate’s only
`support for that claim is a single sentence at the end of the
`Court’s opinion, which stated that Ryder was “entitled to a
`hearing before a properly appointed panel.” Id. at 188. Nothing
`in that sentence suggests that a new hearing would have been
`required if the reviewing court had possessed de novo authority.
`Nor does anything suggest that such a hearing would have to
`involve live witnesses or additional evidence.4
`
`4Cf. United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 241
`(1973) (holding that a statute’s use of the word “hearing” did not “by
`its own force require [an agency] either to hear oral testimony, to
`permit cross-examination . . . , or to hear oral argument”); Henry J.
`Friendly, “Some Kind of Hearing,” 123 U. PA. L. REV. 1267, 1281
`(1975) (noting that a “hearing” may include a proceeding based on
`written, rather than oral, presentations).
`
`

`
`14
`
`In the case before us, the original Copyright Royalty Board
`did not have “broader discretion,” Ryder, 515 U.S. at 187-88,
`than did the new Board. To the contrary, the new Board had full
`authority to make its own determination, including the discretion
`to do so after a completely new proceeding or a de novo review
`of the record. Although it chose the latter, it did so of its own
`accord. Thus, unlike in Ryder, here it can be said that “review
`by the properly constituted [Board] gave [Intercollegiate] all the
`possibility for relief that review by a properly constituted
`[original Board] would have given [it].” Id. at 187-88.
`Accordingly, Intercollegiate did indeed have “a hearing before
`a properly appointed panel,” id. at 188, of Copyright Royalty
`Judges.
`
`The second case Intercollegiate cites, Wingo v. Wedding,
`did not involve the Appointments Clause at all and is even
`further afield. 418 U.S. 461 (1974). In Wingo, the Court held
`that a court’s local rule authorizing magistrate judges to conduct
`evidentiary hearings in federal habeas corpus proceedings was
`invalid because it was precluded by the Federal Magistrates Act.
`Id. at 472. The Court further held that, because the Act required
`a district court judge to “personally hold evidentiary hearings,”
`the invalidity of the rule was not cured by a provision requiring
`the district court to review a recording of the evidentiary hearing
`de novo. Id. at 472-74.
`
`Thus, Wingo does not, as Intercollegiate insists, stand for
`the general proposition that “de novo review of an existing
`record is an inadequate remedy where a validly appointed judge
`exceeds the scope of his legal authority.” Intercollegiate Br. 23.
`Rather, it stands for the proposition that such review is
`inadequate when a statute expressly requires the reviewing judge
`to personally hold an evidentiary hearing. The statute governing
`Board proceedings lacks any equivalent requirement that the
`Judges hold live hearings. To the contrary, it expressly permits
`
`

`
`15
`
`them to proceed on the paper record alone. See 17 U.S.C.
`§ 803(b)(5); see also id. § 803(b)(6)(C)(iii) (“Hearsay may be
`admitted in proceedings under this chapter to the extent deemed
`appropriate by the Copyright Royalty Judges.”).
`
`B
`
`Intercollegiate further maintains that, even if independent
`review of a prior record by a properly constituted Board may be
`sufficient to cure an Appointments Clause violation, the Board’s
`determination on remand was “not independent of the earlier
`Board’s reasoning, but rather was incurably tainted by it.”
`Intercollegiate Br. 24. The appellant’s arguments about the
`Board’s lack of independence are unpersuasive.
`
`1. First, Intercollegiate makes a number of general
`arguments. It argues that the fact that the new Judges’
`determination was “substantially identical” to that of the prior
`Judges “undermine[s] the pretense that the Judges’ decision was
`fully independent.” Reply Br. 10. Although Intercollegiate
`acknowledges that the new determination differs from the
`previous one on a number of points that it does not challenge on
`this appeal, see id. at 10 & n.9; Board Br. 18 n.4, it emphasizes
`that the Board “adopted a rate structure that is overwhelmingly
`(if not entirely) identical to the one this court vacated,” Reply
`Br. 11. As our precedents show, however, once a new Board
`has been properly appointed
`(or
`reconstituted),
`the
`Appointments Clause does not bar it from reaching the same
`conclusion as its predecessor. See Legi-Tech, 75 F.3d at 708-09;
`Doolin, 139 F.3d at 213-14; see also Andrade v. Regnery, 824
`F.2d 1253, 1257 (D.C. Cir. 1987). Identifying an Appointments
`Clause infirmity in a decision does not guarantee that a party
`will get the merits decision it wants.
`
`

`
`16
`
`Intercollegiate next seeks to infer a lack of independence
`from the way the Judges characterized their task. Noting that,
`in denying Intercollegiate’s motion for rehearing, the Judges
`described their role as “‘pick[ing] up the process where th[e]
`earlier Judges left off,’” Intercollegiate insists that they thus
`“implicitly validate[d] every decision that led to the point where
`the ‘earlier Judges left off.’” Intercollegiate Br. 30 (emphasis
`omitted) (quoting Order Denying Mot. for Reh’g 2 (J.A. 235)).
`But this takes the Judges’ statement badly out of context. The
`Judges made that remark in rejecting Intercollegiate’s assertion
`that the new panel had “improperly delegated responsibility for
`holding hearings” to the prior panel. Order Denying Mot. for
`Reh’g 2 (J.A. 235). As the Judges explained:
`
`“delegation” with
`confuses
`assertion
`This
`“succession.” This is not a case where the Judges
`delegated the job of holding hearings to a subordinate
`administrative law judge.
` The current Judges
`succeeded to the positions of the earlier Judges and
`picked up the process where those earlier Judges left
`off.
`
`Id. (internal citation and quotation marks omitted). The Judges
`then went on to emphasize that the “current panel weighed and
`analyzed the record de novo.” Id. at 3 (J.A. 236).
`
`The Judges had earlier declared, in their Notice of Intention
`to Conduct a Paper Proceeding, that they were “free to reach
`completely different conclusions
`in
`their new
`final
`determination” than the prior Judges reached. Notice at 5 (J.A.
`222). After completion of the comment period that followed
`that notice, the Judges announced that they would “proceed with
`their consideration de novo on the existing record.” Order
`Following Notice of Intention (J.A. 233). Thereafter, the
`Judges’ final determination confirmed that they had decided the
`
`

`
`17
`
`matter “based upon a de novo review of the substantial record
`that the parties developed during the proceeding leading to the
`first determination.” 2014 Final Determination, 79 Fed. Reg. at
`23,103. We think it beyond peradventure that the Judges
`understood their task to involve a de novo determination.
`
`Intercollegiate’s
`find equally unpersuasive
`2. We
`miscellaneous attempts to identify specific indications of the
`previous Judges’ hidden influence on their successors.
`
`Intercollegiate notes that, although the regulations permit
`the Board to conduct a papers-only hearing, here the Board “did
`not conduct a review of just the papers,” but instead also
`reviewed the record and transcripts from the prior proceeding.
`Intercollegiate Br. 31-32 (emphasis omitted). But if this is a
`problem of any kind, it is not a constitutional problem; nothing
`in the Appointments Clause instructs properly appointed
`officials to conduct proceedings in any particular way. Whether
`it constitutes a problem of administrative procedure is a question
`we address below. See infra Part III.
`
`Intercollegiate attempts to transmute this procedural issue
`into a constitutional one by focusing on the relationship between
`the new Judges and their predecessors. In particular,
`Intercollegiate argues that “the new Judges refused to consider
`any argument or evidence not assembled by
`their
`unconstitutionally appointed predecessors.” Reply Br. 1
`(emphasis added). But the phrase “assembled by” is misleading.
`As the Board emphasized in denying rehearing, “the parties to
`that hearing created the record,” based on the evidence that they
`themselves, including Intercollegiate, submitted. Order Denying
`Mot. for Reh’g 2 (J.A. 235). There is no Appointments Clause
`problem in limiting Intercollegiate to the evidence that it
`decided, on its own volition, to submit to the previous Board.
`
`

`
`18
`
`Relatedly, Intercollegiate maintains that it has “never had
`an opportunity to oppose the fee before a panel of judges whose
`appointment does not offend the Constitution.” Reply Br. 2.
`But again, that is incorrect. All of its original arguments were
`presented, in paper form, to the new Board. And the Board gave
`Intercollegiate the further opportunity to argue that such a paper
`proceeding was insufficient: the Board expressly invited the
`parties to identify any reason why they should not proceed on
`the prior record. See Notice at 2, 9 (J.A. 219, 226).
`Intercollegiate did submit comments arguing for a new
`evidentiary hearing, but the new Board rejected those
`arguments, concluding that “[e]ach party has had ample
`opportunity to present its case.” Id. at 7 (J.A. 224). Again,
`whether this contravened rules of administrative procedure is an
`issue we address below. See infra Part III. But it is not an
`Appointments Clause problem.
`
`Intercollegiate also insists that the “oral testimony the
`Judges reviewed was taken by the original Board, subject to the
`original Judges’ evidentiary rulings, and is therefore tainted by
`the original Board’s constitutional infirmity.” Intercollegiate Br.
`32. But that, too, is incorrect. Intercollegiate maintains that, “if
`the new Judges disagree[d] with an evidentiary ruling excluding
`testimony, they ha[d] no way of reversing it.” Id. at 32 n.66. In
`fact, the recons

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