Citation Edit

Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, 574 F.3d 748 (D.C. Cir. 2012) (full-text).

Appellate Court Proceedings Edit

A unanimous panel of the D.C. Court of Appeals held that the structure of the Copyright Royalty Board violates the appointments clause because the judges exercise significant rate-making authority without effective control by a superior. That makes them "principal" officers who must be appointed by the President and confirmed by the Senate. The Judges could be considered "inferior" officers — and thus capable of being appointed by officials other than the President — only if their work was directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.

The Librarian of Congress, who is appointed by the President with the advice and consent of the Senate — was entrusted with approving the Judges' procedural regulations, with issuing ethical rules for the Judges, and with overseeing various logistical aspects of their duties. None of these supervisory powers seemed to give the Librarian room to play an influential role in the Judges' substantive decisions, in the court's view. In particular, the court pointed to statutory provisions specifying that the Judges could be removed by the Librarian only for misconduct or neglect of duty.

To remedy the violation, the court nullified statutory language that barred the Librarian of Congress from removing the judges, thus making them inferior officers. And because of the appointments clause violation, the court vacated a board ruling on royalty rates for digital webcasting of recorded music and remanded the case.

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