Full opinion text
KAREN LECRAFT HENDERSON, Circuit Judge: A cable television system must pay royalty fees to the Register of Copyrights (Register) in exchange for the privilege of retransmitting to its subscribers certain copyrighted programming. See 17 U.S.C. § 111(d). The Librarian of Congress (Librarian) then distributes the collected royalties to the copyright owners. Id. § 111(d)(4). In Phase I of the distribution process, royalties are apportioned among eight classes of claimants. See Distribution of 1990, 1991 and 1992 Cable Royalties, 61 Fed.Reg. 55,653, 55,655 (1996) (hereinafter Librarian Decision). In Phase II awards are made to individual copyright owners within each of the classes. Id. If at either stage a controversy arises regarding the appropriate disposition of all or a portion of the royalties, the Librarian convenes a Copyright Arbitration Royalty Panel to propose a settlement. See 17 U.S.C. § 111(d)(4)(B); Majority Report of the Copyright Arbitration Royalty Panel (5/31/96) (hereinafter Panel Report). The panel’s proposal is then forwarded to the Librarian, who, on the recommendation of the Register, adopts it or rejects it (in whole or in part) and distributes the disputed royalties accordingly. 17 U.S.C. § 802(f). Each of the petitioners here is a disappointed class claimant challenging the Librarian’s Phase I distribution of royalties collected for the years 1990, 1991 and 1992. Because our review of the Librarian’s decision is limited, and because on our limited review none of the petitioners has established a basis to alter or modify its royalty award, we reject their challenges and affirm the Librarian. I. BACKGROUND In 1974 the Supreme Court ruled that a cable television system’s retransmission of non-network copyrighted programing to markets distant front those to which it was originally broadcast was not a “performance” under the Copyright Act of 1909, 17 U.S.C. §§ 1 et seq., (hereinafter 1909 Act) and therefore an action for copyright infringement did not lie against the cable system. See Teleprompter Corp. v. CBS, 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974); cf. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968) (retransmission of non-network copyrighted programming to local markets did not give rise to infringement liability under 1909 Act). While it recognized the adverse effect the retransmissions could have on copyright owners, the Supreme Court concluded that “[djetailed regulation of these relationships [between cable operators and copyright owners], and any ultimate resolution of the many sensitive and important problems in this field, must be left to Congress.” Teleprompter, 415 U.S. at 414, 94 S.Ct. 1129; accord Fortnightly, 392 U.S. at 401, 88 S.Ct. 2084 (“We have been invited ... to render a compromise decision in this case that would, it is said, accommodate the various competing considerations of copyright, communications, and antitrust policy. We decline the invitation. That job is for Congress.”). A The Evolving Statutory Framework In response to the Fortnightly and Teleprompter decisions, and having struggled with the matter since 1965, the Ninety-Fourth Congress enacted legislation to address the retransmission royalty problem. See The Copyright Act of 1976, Pub.L. No. 94-553 (codified as amended at 17 U.S.C. §§ 101 ei seq.) (hereinafter 1976 Act); see also H.R.Rep. No.94-1476, at 89 (1976), U.S. Code Cong. & Admin. News at 5659, 5703-5704 (“The difficult problem of determining the copyright liability of cable television systems has been before the Congress since 1965.”) (hereinafter 1976 House Report). The 1976 Act permitted recovery of royalties for non-network programming retransmitted to distant markets but not for other types of retransmitted programming: The Committee determined ... that there was no evidence that the retransmission of “local” broadcast signals [to the same markets served by the local broadcasters] threatens the existing market for copyright program owners. Similarly, the retransmission of network programming, including network programming which is broadcast in “distant” markets, does not injure the copyright owner. The copyright owner contracts with the network on the basis of his programming reaching all markets served by the network and is compensated accordingly. By contrast, their [sic] transmission of distant non-network programming by cable systems causes damage to the copyright owner by distributing the program in an area beyond which it has been licensed. Such retransmission adversely affects the ability of the copyright owner to exploit the work in the distant market. It is also of direct benefit to the cable system by enhancing its ability to attract subscribers and increase revenues. For these reasons, the Committee has concluded that the copyright liability of cable television systems under the compulsory license should be limited to the retransmission of distant non-network programming. 1976 House Report at 90, U.S. Code Cong. & Admin. News at 5704-5705; accord National Ass’n of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367, 373 (D.C.Cir.1982) (“The Act therefore was not intended to compensate network broadcasts or even local broadcasters whose programs are retransmitted locally by a cable system in the same area”) (hereinafter NAB J); Christian Broadcasting Network, Inc. v. Copyright Royalty Tribunal, 720 F.2d 1295, 1303 (D.C.Cir.1983) (similar) (hereinafter CBN). Because the Congress believed “that it would be impractical and unduly burdensome to require every cable system to negotiate with every copyright owner whose work was transmitted by a cable system,” 1976 House Report at 89, it established a centralized process for the collection and payment of royalties. See National Broadcasting Co. v. Copyright Royalty Tribunal, 848 F.2d 1289, 1291 (D.C.Cir.1988) (“The purpose of this regulatory structure is to facilitate the exploitation of copyrighted materials by removing the prohibitive transaction costs that would attend direct negotiations between cable operators and copyright holders, while at the same time assuring copyright holders compensation for the use of their property.”) (hereinafter NBC). To administer the process, the Congress established the Copyright Royalty Tribunal (Tribunal) and authorized it to periodically adjust royalty rates and distribute collected royalties. See 17 U.S.C. §§ 111(d), 801-810 (1976). Under the 1976 Act, if claimants could not agree on the proper distribution of collected royalties, the Tribunal declared a controversy as to the portion of royalties in dispute and conducted hearings to determine the appropriate apportionment of the funds. Id. § 804(d)-(e). The Tribunal had one year to complete its proceedings, id. § 804(e), and in its final determination it was to “state in detail the criteria that the Tribunal determined to be applicable to the particular proceeding, the various facts that it found relevant to its determination in that proceeding, and the specific reasons for its determination,” id. § 803(b). The Congress did not, however, prescribe the criteria or procedures according to which the Tribunal should assess a claim for royalties: The Committee recognizes that the bill does not include specific provisions to guide the Copyright Royalty [Tribunal] in determining the appropriate division among competing copyright owners of the royalty fees collected from cable systems under Section 111. The Committee concluded that it would not be appropriate to specify particular, limiting standards for distribution. Rather, the Committee believes that the Copyright Royalty [Tribunal] should consider all pertinent data and considerations presented by the claimants. 1976 House Report at 97, U.S. Code Cong. & Admin. News at 5712. Accordingly, the Tribunal developed three primary criteria — “[1] the harm caused to copyright owners by secondary transmissions of copyrighted works by cable systems, [2] the benefit derived by cable systems from the secondary transmissions of certain copyrighted works, and [3] the marketplace value of the works transmitted,” NAB I, 675 F.2d at 373 — and two secondary criteria — -“[4][the] quality of copyrighted program material, and [5] time-related considerations,” id — to assess each party’s claims. The 1976 Act also provided for judicial review of the Tribunal’s distribution decisions: Any final decision of the Tribunal in a proceeding under section 801(b) may be appealed to the United States Court of Appeals, within thirty days after its publication in the Federal Register, by an aggrieved party. The judicial review of the decision shall be had, in accordance with chapter 7 of title 5, on the basis of the record before the Tribunal. No court shall have jurisdiction to review a final decision of the Tribunal except as provided in this section. 17 U.S.C. § 810 (1976). Pursuant to this provision, this Court was called on to review the Tribunal’s distribution of retransmission royalties for four of the first five years they were collected. See NAB I, 675 F.2d at 377-85 (challenges to Tribunal’s distribution of 1978 royalties); CBN, 720 F.2d at 1305-19 (challenges to Tribunal’s distribution of 1979 royalties); National Ass’n of Broadcasters v. Copyright Royalty Tribunal, 772 F.2d 922 (D.C.Cir.1985) (challenges to Tribunal’s distribution of 1979, 1980 and 1982 royalties) (hereinafter NAB II). As time passed, however, there was insufficient work to justify the existence of a permanent body and therefore, some seventeen years after its creation, the Congress abolished the Tribunal and transferred most of its functions to an ad hoc Copyright Arbitration Royalty Panel. See The Copyright Royalty Tribunal Reform Act of 1993, Pub.L. No. 103-198 (codified in relevant part, as amended, at 17 U.S.C. §§ 801-803) (hereinafter 1993 Act). In so doing, the House Committee responsible for the legislation reasoned that ad hoc arbitration panels are better suited to handle the functions currently handled by the Tribunal. The experience with arbitration under the Section 119 satellite compulsory license was positive, and indicates that this approach can work for the other royalty schemes in title 17. Testimony of witnesses before both Houses on the proposal supports this conclusion. H.R.Rep. No. 103-286, at 11 (1993), U.S. Code Cong. & Admin. News at 2954, 2958 (hereinafter 1993 House Report). The 1993 Act also transferred certain of the Tribunal’s functions to the Librarian of Congress and the Register of Copyrights: The Register of Copyrights and the Librarian of Congress will play important roles in convening and reviewing the decisions of the arbitration panels. The Copyright Office is currently the “front end” of the compulsory license system. Statements of Account [of royalties owed] for the section 111, 119, and 1005 licenses are filed with the Office. The royalties paid in under these licenses are then deposited by the Copyright Office into the United States Treasury. ... The Copyright Office also has authority to promulgate regulations for the administration of these functions. Section 806 of the Copyright Act requires the Library of Congress to provide the Copyright Royalty Tribunal with necessary administrative services, including those related to budgeting, accounting, financial reporting, travel, personnel, and procurement. In short, the Copyright Office and the Library of Congress already have considerable involvement in the administration of compulsory licenses and in the work of the Tribunal. When combined with the Copyright Office’s almost 100 year experience in copyright issues, assigning some of the duties formally carried out by the Tribunal to the Office and the Library makes good sense. Id. (footnote omitted). Accordingly, under the new distribution scheme established by the 1993 Act, an arbitration panel is now entrusted with initial responsibility for formulating a proposed distribution of disputed royalties. See 17 U.S.C. §§ 801-802. The arbitration panel has 180 days to hear evidence and develop the proposed settlement of outstanding claims. Id. § 802(e). It must “act on the basis of a fully documented written record, prior decisions of the Copyright Royalty Tribunal, prior copyright arbitration panel determinations, and rulings by the Librarian of Congress under section 801(c).” Id. § 802(e). Within the same 180-day period the panel must include its proposed settlement in a report, setting “forth the facts that the arbitration panel found relevant to its determination,” and it must forward the report and accompanying written record to the Librarian: Within 60 days after receiving the report of a copyright arbitration royalty panel under subsection (e), the Librarian of Congress, upon the recommendation of the Register of Copyrights, shall adopt or reject the determination of the arbitration panel. The Librarian shall adopt the determination of the arbitration panel unless the Librarian finds that the determination is arbitrary or contrary to the applicable provisions of this title. If the Librarian rejects the determination of the arbitration panel, the Librarian shall, before the end of that 60-day period, and after full examination of the record created in the arbitration proceeding, issue an order setting the royalty fee or distribution of fees, as the case may be. The Librarian shall cause to be published in the Federal Register the determination of the arbitration panel and the decision of the Librarian (including an order issued under the preceding sentence). The Librarian shall also publicize such determination and decision in such other manner as the Librarian considers appropriate. The Librarian shall also make the report of the arbitration panel and the accompanying record available for public inspection and copying. Id. § 802(f). The Librarian’s decision can then be reviewed by this Court: Any decision of the Librarian of Congress under subsection (f) with respect to a determination of an arbitration panel may be appealed, by any aggrieved party who would be bound by the determination, to the United States Court of Appeals for the District of Columbia Circuit, within 30 days after the publication of the decision in the Federal Register. If no appeal is brought within such 30-day period, the decision of the Librarian is final, and the royalty fee or determination with respect to the distribution of fees, as the case may be, shall take effect as set forth in the decision. ... The court shall have jurisdiction to modify or vacate a decision of the Librarian only if it finds, on the basis of the record before the Librarian, that the Librarian acted in an arbitrary manner. If the court modifies the decision of the Librarian, the court shall have jurisdiction to enter its own determination with respect to the amount or distribution of royalty fees and costs, to order the repayment of any excess fees, and to order the payment of any underpaid fees, and the interest pertaining respectively thereto, in accordance with its final judgment. The court may further vacate the decision of the arbitration panel and remand the case to the Librarian for arbitration proceedings in accordance with subsection (c). Id. § 802(g). B. The Petitioners’ Challenges The petitioners are the first to challenge a decision of the Librarian under the new royalty distribution process established by the 1993 Act. Each represents a distinct class of claimants: Program Suppliers (Programmer) represents the copyright owners of syndicated television series, movies and television specials; National Association of Broadcasters (NAB) represents the copyright owners of programs, like news and local interest material, that are produced and broadcast by only a single television station; and Devotional Claimants (Devotional) represents the copyright owners of “[s]yndicated programs of a primarily religious theme, not limited to those produced by or for religious institutions,” Panel Report at 13, that do not fall within another category of programming. At issue is more than $500 million in royalties — the total amount collected for non-network programming retransmitted to distant markets in calendar years. 1990, Í991 and 1992. The disputed royalties consist of “Basic Funds,” “3.75% Funds” and “Syndex Funds,” which in turn are subdivided into 1990 collections and 1991-1992 collections. The Basic Funds include all of the royalties collected from small- and medium-sized cable systems as well as the royalties collected from large cable systems for retransmissions that were permitted under the now defunct, distant signal carriage rules of the Federal Communication Commission (FCC). See Librarian Decision, 61 Fed.Reg. at 55,654. The 3.75% Funds and Syndex Funds consist of royalties collected exclusively from large cable systems for retransmissions that are now permitted as a result of the FCC’s repeal of its distant signal carriage and syndication exclusivity rules, respectively. Id. The Librarian declared a Phase I distribution controversy and convened a copyright arbitration royalty panel (Panel) on December 4, 1995. Id. at 55,655. The Panel conducted approximately 50 days of evidentiary hearings during which it heard the testimony of more than 50 witnesses and it reviewed over 200 exhibits and hundreds of pages of written testimony submitted by the class claimants. See Panel Report at 25. The record was closed on March 29, 1996, after which the claimants submitted over one thousand pages of post-hearing briefs. Id. at 17. The three-member Panel, with one dissent, reported its proposed distribution to the Librarian on May 31, 1996. See Letter from Panel Chair to Librarian of 5/31/96. In its report, the Panel proposed the following Phase I apportionment for the non-settling class claimants; Table 1: Panel’s Proposed Phase I Apportionment of Royalties Claimants Basic Fund Basic Fund 3.75 Fund Syndex Fund (1990) (1991-1992) (1990-1992) (1990-1992) Programmer 55.55% 55.00% 58.60% 100.00% NAB 7.58% 7.50% 7.50% None Devotional 1.26% 1.25% 0.95% None PBS 5.81% 5.75% None None ‘ JSC 29.80% 29.50% 32.60% None CC None 1.00% 0.35% None Source: Panel Report at 143. The proposed awards differed significantly from those the Tribunal had last approved before its abolition: Table 2: Tribunal’s Phase I Apportionment of 1989 Royalty Funds Claimants Basic Fund 3.75 Fund Syndex Fund (1989)(1989)(1989) Programmer 60.00% 62.60% 95.50% NAB 5.70%5.70%None Devotional 1.25% 0.95% None PBS 4.00% None None _MC_4.50%_4.50%_4.50% _JSC_23.80%_26.00%_None CC 0.75%0.25%None Source: Certified Questions from the Register of Copyrights to the Copyright Arbitration Royalty Panel of 7/16/96, at 2 (hereinafter Certified Questions to Panel). After reviewing the Panel’s findings, the Register notified the class representatives of a meeting to discuss certain perceived shortcomings in the Panel’s report: We have reviewed the Panel’s report, the petitions to modify and the replies filed by the parties to this proceeding. It is evident that the report cannot be adopted by the Librarian in its present form, and would not be sustainable on appeal. Despite the report’s length, there is a significant absence of findings of fact and conclusions of law supporting the Panel’s specific determinations. The report consequently lacks adequate explanation justifying the Panel’s awards. Without such explanation, the Librarian cannot evaluate the Panel’s reasoning to determine if it acted in an arbitrary manner. We have also examined the record in this proceeding and have determined that the Librarian cannot engage in a de novo review of the merits of this ease. First, as the Canadian Claimants aptly point out in their reply, de novo review cannot be completed in the 60-day time period. Second, and more importantly, the record is not complete with respect to some issues. Without further development, there is no evidence upon which the Librarian can reach a conclusion, preventing him from making his own determination as to the royalty distribution. The Copyright Act is silent as to the Librarian’s authority to remand the [Panel] report for further development and explanation. We have determined, however, that a remand is the appropriate solution in this proceeding and will most likely produce an ultimate determination that will withstand judicial review. Letter from Register of Copyrights to Phase I Cable Parties of 7/3/96. At the meeting, the claimants generally expressed their reservations about the legality and wisdom of a remand to the Panel. See Meeting of 7/11/96 Tr. 6-58. The Register nonetheless determined that the best way to proceed was to submit a series of “certified questions” to the Panel so that it could elaborate on its reasons for specific percentage awards. See Certified Questions to Panel at 1 (“The questions are intended to probe the original intent of the Panel only. They are not intended to reopen any issues or invite any reconsideration.”). The Panel responded to the questions on August 29,1996, emphasizing that royalty shares could not be determined with mathematical precision and were inescapably dependent on the Panel’s exercise of its informed judgment as to the relative merits of each class’s claims: The point is, after reviewing and weighing the surveys and all other relevant information, it is the Panel’s function to make a final judgment as to the award of each party. There was a considerable difference of opinion in weighing all the evidence as is partly evident by the fact that the Panel was not unanimous in its judgment. To reach the judgment as it exists there had to be, and there was, a significant compromise. The above comments emanate from discussions with the Copyright Office and the tenor of certain questions which suggests that there is a precision [sic] or mathematical way to calculate these awards by placing weights on all the categories. The Panel can somewhat confine the awards by making observations on the surveys and observations on the other evidence presented. However, in its final aspect the Panel has to use its judgment. ... A great deal of pressure was placed on the Panel members, not only to analyze and consider [the evidence], but also to debate and agree on a judgment — one that by its very nature required a relatively precise quantification of the final results. Clearly, the most important element of the decision was the “judgment” of the Panel. The Panel assimilated this information and feels comfortable that it understood the evidence and arguments as presented. In writing the report itself, the Panel simply ran out of time. In the experience of at least one member of the Panel, the report, when issued, was about midway from where it would be if it were an opinion published in an appellate report. It needed considerable editing and tightening. The Panel wishes to emphasize, however, that it abides by its essential judgments in tliis proceeding. Copyright Arbitration Royalty Panel Responses of 8/29/96 to Certified Questions from the Register of Copyrights, at 2-3 (hereinafter Panel Responses to Certified Questions). After reviewing the Panel’s substantive responses to each of the certified questions, the Register recommended adoption of the Panel’s findings with adjustments to account for (1) the Music Claimants’ and National Public Radio’s settlement of their claims to the Basic and Syndex Funds and (2) the Panel’s other errors, admitted and otherwise, in apportioning the 3.75 Funds. See Librarian Decision, 61 Fed.Reg. at 55,660-64. The Librarian adopted the Register’s recommendation without modification: “Having duly considered the recommendation of the Register of Copyrights regarding the report of the Copyright Arbitration Royalty Panel in the distribution of the 1990-1992 cable funds, the Librarian of Congress fully endorses and adopts her recommendation to accept the Panel’s decision in part and reject it in part.” Id. at 55,669. Accordingly, a summary of the final apportionment of royalties approved by the Librarian is as follows: _Table 3: Librarian’s Phase I Apportionment of Royalties_ Class Claimants Basic Funds 3.75 Funds Syndex Funds & Collection Years Programmer -1990 52.6336250% 56.0125439% 95.5000000% -1991-1992 52.5250000% 56.0131375% 95.5000000% JSC -1990 28.2355000% 31.1605620% None -1991-1992 28.1725000% 31.2299325% None NAB -1990 7.1820500% 7.1688409% None -1991-1992 7.1625000% 7.1625000% None MC -1990 4.5000000% 4.5000000% 4.5000000% -1991-1992 4.5000000% 4.5000000% 4.5000000% PBS -1990 5.5049750% None None -1991-1992 5.4912500% None None Devotional -1990 1.1938500% 0.9080532% None -1991-1992 1.1937500% 0.9072500% None CC -1990 0.7500000% 0.2500000% None -1991-1992 0.9550000% 0.1871800% None Source: Librarian Decision, 61 Fed.Reg. at 55,669. The petitioners timely appealed the Librarian’s decision. NAB contends that it should have been awarded an 8.897025% share of the 1990 Basic and 3.75 Funds and an 8.815% share of the 1991-1992 Basic and 3.75 Funds, both of which increases should be effected by corresponding reductions in Programmer’s award. Devotional claims that it should have been awarded a three per cent share of the Basic and 3.75 Funds, or at the very least, its awards should have been no lower than those proposed by the Panel; it does not indicate, however, from whose award or awards such increases should come. Finally, Programmer argues that it deserves a larger award, the amount and source of which can be determined only on remand to the Librarian. II. STANDARD OF REVIEW As provided by subsection 802(g) of the 1993 Act, we may “modify or vacate a decision of the Librarian only if [we] find[ ], on the basis of the record before the Librarian, that the Librarian acted in an arbitrary manner.” See 17 U.S.C. § 802(g). The corresponding provision of the 1976 Act, section 810, permitted review of a Tribunal decision “in accordance with chapter 7 of title 5, on the basis of the record before the Tribunal.” 17 U.S.C. § 810 (1976). Notwithstanding the difference in language between the 1993 Act and the 1976 Act, Devotional contends that our review of the Librarian’s decision should be no different from our review of a Tribunal decision; in both instances, the Administrative Procedure Act (APA) — i.e., 5 U.S.C. § 706(2) — supplies the appropriate standard of review. Similarly, Programmer argues that the APA’s arbitrary and capricious test, 5 U.S.C. § 706(2)(A), as interpreted in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), should control. Finally, NAB also claims that we should continue to review the Librarian’s royalty distribution decision under a variant of the APA’s arbitrary and capricious test, see Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2866 (“In reviewing [an agency’s] explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment”) (quotations omitted), although it concedes that APA review may now be more limited than in the past and that the “substantial evidence” test, 5 U.S.C. § 706(2)(E), no longer applies. Conversely, the intervenors argue that the APA’s arbitrary and capricious standard no longer applies: pursuant to subsection 802(f), the Librarian is obliged to adopt the Panel’s proposed settlement unless he finds it “arbitrary or contrary to the applicable provisions of’ Title 17; in turn, under subsection 802(g), we may modify or remand the Librarian’s decision only if we conclude that he “acted in an arbitrary manner” in applying the section 802(f) standard; this “double arbitrary” standard is therefore narrower than APA review. The Librarian goes even further, arguing that our “judicial review role in this case is at the outer edge of eases barely reviewable under a criterion of substantive correctness.” Librarian Br. 14. We conclude that our review of the Librarian’s distribution decision under subsection 802(g) is significantly more circumscribed than the review we made of Tribunal decisions under section 810. As a result, in applying the “arbitrary manner” standard set forth in subsection 802(g), we will set aside a royalty award only , if we determine that the evidence before the Librarian compels a substantially different award. We will uphold a royalty award if the Librarian has offered a facially plausible explanation for it in terms of the record evidence. While the standard is an exceptionally deferential one, we think it is most consistent with the intent of the Congress as reflected in the language, structure and history of the 1993 Act. A. The Congress’s Intent Under the APA standards incorporated by section 810, judicial review of the Tribunal’s royalty distribution decisions was already quite deferential. See NAB II, 772 F.2d at 926 n. 3 (noting that standard of review applied to Tribunal royalty apportionments is same standard “employed in ratemaking cases coming from the Federal Energy Regulatory Commission[ ], an area in which a highly deferential standard of review has traditionally been applied”). As we observed, the judiciaLtask is not to weigh the evidence and fix what in our view would constitute appropriate percentages, for that would be to intrude into the function entrusted to the Tribunal. Our job, rather, is to determine whether the royalty awards are within a “zone of reasonableness” — not unreasonably high or unreasonably low — and that the CRT’s decision is neither arbitrary nor capricious, and is supported by substantial evidence. NAB II, 772 F.2d at 926; accord CBN, 720 F.2d at 1304 (“In acknowledging the need for substantial evidence, however, we emphasize that the Tribunal’s choice of a particular percentage allocation is not reviewable for exact precision, but simply for rationality; we are without power to set aside a particular percentage allocation provided that it is within a ‘zone of reasonableness.’ ”); NAB I, 675 F.2d at 374 (“Claims of this sort are generally well beyond the expertise or authority of courts, however, and Congress made clear its awareness of our limitations by making the Tribunal the primary arbiter of these claims.”); cf. Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (“Statutory reasonableness is an abstract quality represented by an area rather than a pinpoint. It allows a substantial spread between what is unreasonable because too low and what is unreasonable because too high. To reduce the abstract concept of reasonableness to concrete expression in dollars and cents is the function of the Commission.”). While the section 810 standard was “highly deferential,” in enacting the 1993 Act the Congress apparently concluded that the standard was not deferential enough, as evidenced by the repeal of section 810 and the enactment of subsection 802(g) — a provision that contains no reference to the APA. We therefore reject Devotional’s assertion that the Congress did not intend to change the standard of review applicable to royalty distribution decisions as to so hold would ignore plain evidence of the Congress’s intent to the contrary, a disfavored construction. See Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 115, 74 L.Ed. 457 (1930) (“The deliberate selection of language so differing from that used in earlier Acts indicates that a change of law was intended.”); In re Request for Assistance, 848 F.2d 1151, 1154 (11th Cir.1988) (“When the legislature deletes certain language as it amends a statute, it generally indicates an intent to change the meaning of the statute.”), cert. denied, 488 U.S. 1005, 109 S.Ct. 784, 102 L.Ed.2d 776 (1989). In light of the Congress’s decision to remove from the judicial review provision of the 1993 Act any reference to the APA, we also conclude that Programmer and NAB err in suggesting that the arbitrary and capricious standard continues to control our subsection 802(g) review. Moreover, subsection 802(g) plainly does not evince a congressional intent to subject the Librarian’s decision to more searching review than we have in the past applied to a Tribunal decision. Further, we cannot ignore the simplification of review language the 1993 Act achieved: we now ask simply whether “on the basis of the record before the Librarian, ... the Librarian acted' in an arbitrary manner,” 17 U.S.C. § 802(g), whereas formerly we asked whether the Tribunal’s decision was (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of • [Title 5] or otherwise reviewed on the. record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. 5 U.S.C. § 706(2). Thus, for us to conclude that acting in an “arbitrary manner” is synonymous with the list of administrative transgressions set forth in the APA would be absurd. Cf. Steadman v. SEC, 450 U.S. 91, 98-99, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981) (finding significant difference between APA’s "substantial evidence” test and statutory language requiring that agency’s order be “supported by and in accordance with ... substantial evidence”). The 1993 Act also establishes a royalty distribution structure that differs from its predecessor in important respects. First, the 1993 Act inserts an additional layer of administrative review by the Register and the Librarian between the factfinder’s conclusions and our review. See 17 Ü.S.C. § 802(e)-(f). The Tribunal, however, had both the first and last administrative word under the procedure established by the 1976 Act. See 17 U.S.C. §§ 801-810 (1976). Second, the two-stage decisionmaking process established by the 1993 Act must now be completed in 240 days whereas the Tribunal had 365 days to conclude its single-stage process under the 1976 Act. Compare 17 U.S.C. § 802(e)-(f), with 17 U.S.C. § 804(e) (1976). Third, the Panel’s report must be accompanied by the written record and need set forth only “the facts that the arbitration panel found relevant to its determination,” id. § 802(e), whereas the Tribunal was obliged to “state in detail the criteria that [it] determined to be applicable to the particular proceeding, the various facts that it found relevant to its determination in that proceeding, and the specific reasons for its decisions,”' 17 U.S.C. § 803(b) (1976). Fourth, and perhaps most significantly, the 1993 Act changes the paradigm for administrative decisionmaking: it replaces the Tribunal’s quasi-adjudication with an arbitration undertaken by an ad hoe panel whose proposed settlement is then reviewed by final decisonmakers, the Register and the Librarian. See 1993 House Report at 11 (“The experience with arbitration under the Section 119 [of Title 17] satellite compulsory license was positive, and indicates that this approach can work for the other royalty schemes in title 17”). The foregoing structural changes are also perfectly consistent with the Congress’s evident intent to facilitate expeditious and informal settlement of claims at the administrative level and to discourage resort to formal, protracted and costly judicial processes of resolving disputes. See id. at 13 (“[T]he panels, with the assistance of the Copyright Office, must promulgate and be governed by clear procedural and evidentiary guidelines designed to ensure fundamental fairness. Rules of discovery that can expedite the par-tiés’ presentation of their cases are particularly important in this respect, since early discovery and clear evidentiary rulings can go far in facilitating settlements and a more streamlined arbitration process.”); cf. Devine v. White, 697 F.2d 421, 436 (D.C.Cir.1983) (“Such a shift from the arbitral model, in which decision makers are free to focus solely on the case before them rather than on the case as it might appear to an appellate court, to the administrative model, in which decision makers are often concerned primarily with building a record for review, would substantially undercut the ability of arbitrators successfully to resolve disputes.... ”); Office 6 Professional Employees Union, Local 2 v. Washington Metro. Area Transp. Auth., 724 F.2d 133, 137 (D.C.Cir.1983) (“If parties to arbitration could freely relitigate their complaints in the courts, arbitration would cease to be a method to achieve prompt resolution of conflict, but would instead become a new layer of review, and a new cause for delay.”). We find additional evidence of a legislative intent to narrow the scope of judicial review in the history of the 1993 and the 1976 Acts. The Senate bill that originally gave rise to the 1976 Act would have limited judicial review of a Tribunal decision to three circumstances: “(1) The determination was procured by corruption, fraud, or undue means; (2) there was evident partiality or corruption in any of the members of the Tribunal, or (3) any member of the Tribunal was guilty of any misconduct by which the rights of any party were prejudiced.” 1976 House Report at 179. This standard is materially indistinguishable from the one set forth in the Arbitration Act. See infra note 12. The House, however, concluded that the Senate’s judicial review provision was “far too restrictive,” 1976 House Report at 179, and thus it reported an amendment to the bill, providing “for the full scope of review provided by Chapter 7 of the Administrative Procedure Act,” id. The House prevailed and section 810, providing for full APA review, became law. See H.R. Conf. Rep. No. 94-1733, at 81-82 (1976). In enacting the 1993 Act, however, the House appears to have come around to something closer to the Senate’s original proposal to limit judicial review of royalty distribution decisions to claims cognizable under the Arbitration Act. Compare infra note 12 (setting forth Arbitration Act review provision that authorizes court to set aside award where there is “evident partiality or corruption” by arbitrator), with 1993 House Report at 12-13 (1993), U.S. Code Cong. & Admin. News at 2959-2960 (“Given that many arbi-trations will involve multiple parties, the Librarian of Congress and the Register of Copyrights must be scrupulous to avoid even the appearance of selecting arbitrators that may be believed, incorrectly or not, to favor one party.”). We agree nonetheless with the Librarian that there is insufficient evidence to conclude that the Congress, in enacting subsection 802(g), intended to adopt the extremely circumscribed review standard set forth in the Arbitration Act, 9 U.S.C. § 10. The 1993 Act does not expressly refer to the Arbitration Act and the “arbitrary manner” language of subsection 802(g) is far from synonymous with the limited procedural and ethical infirmities supporting vacatur of an arbitration award pursuant to the Arbitration Act. Cf. Office & Professional Employees, 724 F.2d at 139 (“Because the statutory framework of the [Railway Labor Act (RLA) ] and of the Compact [interstate agreement authorized by the Congress] are substantially dissimilar, we cannot assume, without any supporting evidence of legislative intent, that the mere presence in both statutes of the words ‘final and binding’ permits a court to superimpose the RLA’s con-gressionally-enacted standard of review [for arbitration awards] onto the Compact.”). Further, the structure of the royalty distribution system, interposing a layer of administrative review between the “arbitrators’ ” decision and our review of that decision, further distinguishes the system established by the 1993 Act from arbitrations covered by the Arbitration Act. See Librarian Decision, 61 Fed.Reg. at 55,666 (“Typically, an arbitrator’s decision is not reviewable, but the [1993] act created two layers of review: the Librarian and the Court of Appeals for the District of Columbia.”). Finally, review of the merits of an arbitrator’s decision is generally proscribed by the Arbitration Act, cf. Timken Co. v. Local Union No. 1123, United Steelworkers of Am., AFL-CIO, 482 F.2d 1012, 1014 (6th Cir.1973) (“[W]hile a court is empowered to determine whether an arbitrator’s award exceeded the limits of his contractual authority ... it may not review the merits of an arbitration award.”), whereas subsection 802(g) appears to permit some (albeit quite limited) review of the merits of the Librarian’s assessment of the settlement. B. Applicable Standard of Review Having sketched the general limits of our review, we must now give content to the “arbitrary manner” standard of subsection 802(g) and in so doing define more clearly the path we follow in reviewing decisions of the Librarian. Cf. Steadman v. SEC, 450 U.S. 91, 95, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981) (“Where Congress has not prescribed the degree of proof which must be adduced by the proponent of a rule or order to carry its burden of persuasion in an administrative proceeding, this Court has felt at liberty to prescribe the standard, for it is the kind of question which has traditionally been left to the judiciary to resolve.”) (internal quotations, brackets and citations omitted). As we have repeatedly emphasized in earlier royalty distribution decisions, any standard of review must be adapted to fit the administrative decisionmaking process to which it is to be applied. See NAB I, 675 F.2d at 375 (“Our assessment of the Tribunal’s procedures must consider the difficulties facing the agency and the mandate given it by Congress.”); Recording Indus. Ass’n v. Copyright Royalty Tribunal, 662 F.2d 1, 8 (D.C.Cir.1981) (“[W]e must bear in mind that the thoroughness of the factual support an agency can supply for its decision will vary with the nature of the decision being made.”) (hereinafter RIA); National Cable Television v. Copyright Royalty Tribunal, 724 F.2d 176, 181 (D.C.Cir.1983) (“The tautness of court surveillance of the rationality of agency decisionmaking, however, depends on the nature of the task assigned to the agency. ... [I]f Congress entrusts a novel mission to an agency and specifies only grandly general guides for the agency’s implementation of legislative policy, judicial review must be correspondingly relaxed.”) (hereinafter NCT). Further, the standard to which we hold an administrative decisionmaker may become more rigorous over time as the deci-sionmaker acquires greater experience with a particular administrative scheme. See CBN, 720 F.2d at 1319 (“As the Tribunal continues to accumulate experience with royalty fee distributions, we continue to hope that the clarity of its decisionmaking will improve.”); cf. Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968) (“We are, in addition, obliged at this juncture to give weight to the unusual difficulties of the first area proceeding; we must, however, emphasize that this weight must significantly lessen as the Commission’s experience with area regulation lengthens.”). More fundamentally, in framing the standard of review, we must respect the Congress’s delegation of exceedingly broad authority to the Librarian, as advised by the Register and the Panel, to apportion royalties appropriately among the claimants, just as we earlier honored the expansive authority entrusted to the Tribunal to do the same: We emerge from our analysis of these inherently subjective judgment calls and rough balancing of hotly competing claims with one overriding conclusion: it is the Tribunal [now Librarian] which Congress, for better or worse, has entrusted with an unenviable mission of dividing up the booty among copyright holders. ... [T]he broad discretion necessarily conferred on the Copyright Royalty Tribunal [now Librarian] in making its distributions is emphatically clear. NAB II, 772 F.2d at 940; accord NCT, 724 F.2d at 182 (“In sum, Congress vested in the Tribunal legislative discretion greater than that committed to regulatory agencies engaged in cost of service rate making. ... We must recognize the judgmental expertise of the Tribunal’s members regarding copyright policy, ... and demand only an accounting adequate to assure us that the rates we review are not lacking in rationality.”). With respect to the particular administrative scheme established by the 1993 Act, we note that although the word “arbitrary” appears in both subsections 802(g) and 802(f), our “arbitrary manner” review of the Librarian’s decision is not coextensive with the Librarian’s “arbitrary and legal” review of the Panel’s proposed settlement. Compare 17 U.S.C. § 802(g) (authorizing court to vacate or modify decision if “the Librarian acted in an arbitrary manner ”) (emphasis added), with id. § 802(f) (requiring Librarian to adopt Panel’s proposed settlement unless it “is arbitrary or contrary to the applicable provisions of this title”) (emphasis added). This is not a surprising administrative arrangement given the bifurcated review of royalty awards (first by the Librarian and then by this Court) and the deference to be accorded the Register’s and the Librarian’s expertise in royalty distribution. Cf. Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust for S. California, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (“[A] reviewing body characteristically examines prior findings in such a way as to give the original factfinder’s conclusions of fact some degree of deference. This makes sense because in many circumstances the costs of providing for duplicative proceedings are thought to outweigh the benefits (the second would render the first ultimately useless), and because, in the usual case, the factfinder is in a better position to make judgments about the reliability of some forms of evidence than a reviewing body acting solely on the basis of a written record of that evidence.”); United States v. Morgan, 313 U.S. 409, 416-17, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) (“Another attack upon the Secretary’s order is the conventional objection that the findings were not rooted in proof. To reexamine here with particularity the extensive findings made by the Secretary and to test them by a record of 1340 printed pages and thousands of pages of additional exhibits would itself go a long way to convert a contest before the Secretary into one before the courts.”). Moreover, subsection 802(g) plainly limits our review to the Librarian’s decision. That the Panel may have acted arbitrarily affords no basis for this Court to set aside a royalty award unless the Librarian “acted in an arbitrary manner” in ratifying the Panel’s action. For example, we think the Librarian would plainly act in an arbitrary manner if, without explanation or adjustment, he adopted an award proposed by the Panel that was not supported by any evidence or that was based on evidence which could not reasonably be interpreted to support the award. Cf. Northern Pac. Ry. v. Department of Pub. Works, 268 U.S. 39, 44-45, 45 S.Ct. 412, 69 L.Ed. 836 (1925) (“An order based upon a finding made without evidence, ... or upon a finding made upon evidence which clearly does not support it, ... is an arbitrary act against which courts afford relief.”) (internal citations omitted); ICC v. Louisville & Nashville R.R., 227 U.S. 88, 91, 33 S.Ct. 185, 57 L.Ed. 431 (1913) (“A finding without evidence is. arbitrary and baseless. In the comparatively few eases in which such questions have arisen it has been distinctly recognized that administrative orders, quasi judicial in character, are void if ... the finding was contrary to the indisputable character of the evidence ... or if the facts found do not, as a matter of law, support the order made ....”) (internal quotations and citations omitted); Concrete Pipe, 508 U.S. at 623, 113 S.Ct. 2264 (“And application of a reasonableness standard is even more deferential than [clear error review], requiring the reviewer to sustain a finding of fact unless it is so unlikely that no reasonable person would find it to be true, whatever the required degree of proof.”); INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (“To reverse the [Board of Immigration Appeals] finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.”). In addition, in reviewing the Panel’s proposed settlement according to the “legal” half of the “arbitrary and legal” standard of subsection 802(f), we think the Librarian would act in an arbitrary manner if he approved an award proposed by the Panel that unmistakably contravened applicable provisions of Title 17 or if he himself transgressed unequivocal statutory commands. Cf. Stark v. Wickard, 321 U.S. 288, 309-10, 64 S.Ct. 559, 88 L.Ed. 733 (1944) (“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts.”); Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1327 (D.C.Cir.1996) (“ ‘[A]cts of all [a government department’s] officers must be justified by some law, and in case an official violates the law to the injury ■of an individual the courts generally grant relief. ... Otherwise the individual is left to the absolutely uncontrolled and arbitrary action of a public and administrative officer, whose action is unauthorized by any law, and is in violation of the rights of the individual.’ ”) (quoting American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 110, 23 S.Ct. 33, 47 L.Ed. 90 (1902)). Of course, in assessing whether a particular award contravenes provisions of the 1993 Act, the Librarian’s interpretation of ambiguous provisions that he is charged with administering is due deference. See Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.”); NBC, 848 F.2d at 1296 (finding Tribunal’s adoption of presumption, “in the face of congressional silence, ... a permissible interpretation of the statute, to. which we defer” under Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). Accordingly, if the Librarian’s final award to a class claimant bears a rational relationship to the record evidence, is plausibly explained and is otherwise developed in a manner that does not plainly contravene applicable statutory provisions, our task is at an end and we must uphold the award. While we acknowledge the deference that this approach accords to the Librarian’s decision is unusually wide, it comports with the unusual character of the cable royalty distribution system that the Congress has devised. See American Pub. Gas Ass’n v. Federal Power Comm’n, 567 F.2d 1016, 1031 (D.C.Cir.1977) (“When regulation features novelty, in subject, technique, or both, the narrow scope of review established by conventional doctrine is further circumscribed.”). III. THE PETITIONERS’ CHALLENGES Applying the arbitrary manner standard of review to the individual claims raised by the petitioners, we conclude that none of them affords a basis for vacating or remanding the Librarian’s decision. A. Programmer’s Claims Programmer advances three reasons to remand the Librarian’s decision: (1) his order did not catenate each award to substantial record evidence and he did not himself explain and assess the basis for each award; (2) he acceded to the Panel’s illegal elimination of the “harm” criterion from the royalty apportionment calculus; (3) his order, adopting the Panel’s proposed settlement as modified by the Register’s recommendation, was arbitrary because it (a) endorsed the Panel’s differential treatment of identically situated claimants, (b) did not remedy the Panel’s improper reliance on certain evidence to determine JSC’s award and (c) ratified the Panel’s unduly large award to PBS, failing to take proper account of evidence suggesting a different result. None of these arguments is persuasive. (1) Adequacy of Librarian’s Order Programmer’s first argument is that the Librarian’s order should have discussed the evidence before the Panel and the way in which that evidence ultimately led the Panel, and subsequently the Register and the Librarian, to conclude that each award was appropriate. In other words, it was incumbent on the Librarian to duplicate the work of the Panel and the Register in a final order so that the reasoning underlying a particular award would be less caliginous. See Programmer Br. 6 (“The Librarian’s failure to create a complete picture reflects a lack of reasoned decisionmaking.”). Although Programmer has not cast its argument in these terms, its claim is essentially twofold: (1) subsection 802(f) required the Librarian to issue an order that fully discussed each stage of the decisionmaking process as well as the evidentiary bases for each of the awards; (2) even if subsection 802(f) did not require this of the Librarian, it was nonetheless arbitrary for him not to issue such an order on his own. We do not agree. First, section 802 of Title 17 cannot fairly be understood to oblige the Librarian or the Register to duplicate the work of the Panel. The two-step Chevron framework guides our assessment of the Librarian’s interpretation: Under this analysis, the court must first exhaust the traditional tools of statutory construction to determine whether the Congress has spoken to the precise question at issue_ If the court can deter- mine congressional intent, then that interpretation must be given effect.... If, on the other hand, the statute is silent or ambiguous with respect to the specific issue, then the court will defer to a permissible agency construction of the statute. Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C.Cir.1995) (internal citations and quotations omitted). Under step one of the Chevron analysis, we look to the statutory language and structure to determine the Librarian’s obligations. Cf. Steadman, 450 U.S. at 97, 101 S.Ct. 999 (“The search for congressional intent begins with the language of the statute.”). According to subsection 802(e), the Panel is to prepare and forward to the Librarian a “report” that is “accompanied by the written record” and that “sets forth the facts that the arbitration panel found relevant to its determination.” Subsection 802(f) does not similarly oblige the Librarian to make a report of his findings. See 17 U.S.C. § 802(f), quoted supra. Indeed, the statute gives the Librarian only 60 days to review the Panel’s report and within that time period he must adopt the proposed settlement unless he finds it arbitrary or illegal. Id. If he rejects the Panel’s proposal, then, without any enlargement of the review period, the Librarian must “issue an order setting the ... distribution of fees.” Id. (emphasis added). In either instance, the Librarian must arrange for Federal Register publication of his decision and “the determination of the arbitration panel” and he must also make available for public inspection and duplication the Panel’s report and the record accompanying it. Id. In view of these statutory requirements, we cannot conclude that the Librarian is required by subsection 802(f) to issue an order fully recapitulating the work of the Register and the Panel. Had this been the Congress’s intent) there would have been no need to require the Librarian to make available the Panel’s report and accompanying record, and according to well-established principles of statutory construction, we do not read subsection 802(f) in a manner that renders superfluous the final sentence of that provision. See Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (“In construing a statute we are obliged to give effect, if possible, to every word Congress used.”). Moreover, we find nothing unreasonable or impermissible about the Librarian’s understanding of his obligations under subsection 802(f). Cf. NAB I, 675 F.2d at 376 (“The Tribunal was free to structure its proceedings in a reasonable fashion, ... and deference is particularly due where courts review statutory interpretations by the agency charged with the responsibility of setting [the] machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.”). Indeed, the virtues of the Librarian’s • interpretation are obvious: it avoids duplication of effort and better enables him to conclude his responsibilities within the 60 days subsection 802(g) allots for his review and (if necessary) modification of the Panel’s proposed settlement. See Puerto Rico Maritime Shipping Auth. v. Federal Maritime Comm’n, 678 F.2d 327, 352 (D.C.Cir.1982) (“The Commission’s Order, coupled with the ALJ’s opinion, adequately informs us of its findings and its reasoning. In the context of these expedited proceedings, we ask no more.”). Second, under the standard of review articulated in Part II, supra, we find nothing in the Librarian’s decision to adopt the Panel’s proposed settlement, as modified in certain particulars by the Register’s recommendation, that suggests he discharged his review obligations in an arbitrary manner. See CBN, 720 F.2d at 1304 (“Accordingly, as we stated in [NAB 7], the Tribunal’s findings will be upheld, though of less than ideal clarity, if the path which the agency follows can reasonably be discerned.”) (internal citations and quotations omitted); id. at 1306 (“It is well established that an agency may explain itself by incorporating by reference parts of the record_”). (2). Elimination of Harm Criterion Programmer next argues that the Librarian acted in an arbitrary manner in approving the Panel’s conclusion that the harm criterion is not a useful means by which to assess the merits of a class claim. This argument, like the preceding one, has two parts: (1) the Panel violated subsection 802(c) and the Librarian did not take appropriate corrective action; (2) the Panel did not sufficiently explain or support by reference to the record evidence its decision to eliminate the harm criterion and the Librarian did not remedy the deficiency. The argument is meritless. Contrary to Programmer’s contentions, our past decisions make clear that the Congress delegated to the Tribunal (and now to the Librarian, the Register and the Panel) responsibility for developing the criteria by which claims are to be assessed. See NAB I, 675 F.2d at 376 (“The Act explicitly contemplates that the Tribunal will announce its decisional criteria in the ‘final determination.’ ”) (emphasis added); CBN, 720 F.2d at 1313 (“In light of Congress’ evident intent to leave the development of ‘particular, limiting standards for distribution’ to the Tribunal, ... we have affirmed the Tribunal’s five allocative factors as a reasonable interpretation of legislation by the agency charged by Congress with its enforcement.”) (emphasis added); 1976 House Report at 97. Moreover, we can find nothing in the language, structure or history of subsection 802(c) that evinces any intent to rescind the former