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Should the FCC investigate charges that radio stations censor pro-Performance Rights Act musicians?

Here’s an interesting skirmish that has already gotten lost in all the growling over the Performance Rights Act. This month the Federal Communications Commission received a Petition for Declaratory Relief (PDR) from the MusicFIRST Coalition. The charges that it levels are pretty serious. MusicFIRST says that broadcast radio stations are pressuring artists to oppose or keep quiet about the bill, which would require stations to pay royalties to artists whose music they air.

“The Commission should investigate the actions described in this petition and declare them contrary to the public interest,” the filing says.

Like a lot of people, I’m deadlocked over the PRA, which pits two groups I love against each other —radio stations and musicians. But possible intimidation and/or suppression of artists should be taken seriously, even if the charges come from a biased source.

“We are dropping his record”

Let’s deal with that last reality from the get go. MusicFIRST is backed by SoundExchange and the Recording Industry Association of America. The accuser in the PDR is Jennifer. L. Bendall, MusicFirst’s executive director and a registered lobbyist for Sound Exchange, Viviendi Universal, Metropolitan Life, and eBay. And the attorney filing with the FCC is none other than Sam Feder, until recently the agency’s general counsel.

Still, some of the group’s accusations seem worth at least a worried glance or two. No names are named in the statement, but Bendall charges that a “top-selling artist” who came out for the PRA has been told by a “major radio broadcast group” that it won’t play his single any longer. “We are dropping his record,” an e-mail sent by the stations says, she reports. Associated Press thinks the alleged victim might be Bono.

“Another artist was listed on the MusicFIRST website as a supporter of the PRA,” the filing continues. “A representative of the artist’s label informed us that the program direction of a radio station in Florida told the artist’s label that the station would not play the recordings of that artist.”

Another station program director warned a label and two musician reps that their support of the proposed bill would create a “chilling effect” between them and the station, MusicFIRST charges. In addition, “a representative of a record label told us that a Delaware radio station informed them that it boycotted all artists affiliated with the MusicFIRST coalition for an entire month,” the statement says.

And:”A representative of an artist told us that immediately before going on the air for an interview, the artist was pressured by a Texas radio station to state on the air that the performance rights bill would cripple radio stations.”

Plus MusicFIRST says just about every radio station they’ve contacted has declined to run the group’s ads. “As of today [June 9, 2009], “not a single station has accepted a single spot from MusicFIRST.”

Boom boom pow

So what do the stations say to this? The National Association of Broadcasters quickly put out a statement in response to the “stunt,” as they called it. The reply notes that outspoken PRA supporter Will.i.am of the Black Eyed Peas still gets tons of airplay. As of June 10, the Peas’ single “Boom Boom Pow” was the most frequently broadcast song on commercial radio, NAB points out.

“This allegation is nothing more than an act of desperation by a record label lobby losing on Capitol Hill and in the court of public opinion,” declared NAB Executive Vice President Dennis Wharton.

That’s it? That’s NAB’s response? What’s disturbing here is that NAB doesn’t even say that MusicFIRST’s allegations are false. Sure, the outfit is backed by RIAA (as if NAB never engaged in this sort of tactic; anybody remember the broadcaster supported, anti-Sirius XM merger Consumer Coalition for Competition in Satellite Radio?). But NAB’s reply is long on bluster, short on specifics, suggesting that there’s really something to worry about here.

MusicFIRST also charges that much of what NAB stations are putting out about this issue is misleading or false, and there’s something to that, too. Anti-PRA radio spots keep calling it a “performance tax”—even though the royalty payments will go to musicians, not the government. Some broadcasters say that PRA legislative hearings had no “black ownership representation” (they did; black radio exec Charles Warfield appeared at one; and, by the way, the bill’s principal sponsor in the House, John Conyers [D-MI], is black).

Plus many of the artist companies are “foreign,” radio station propaganda insists, ignoring the fact that most of the performers who would collect royalties are Americans.

“Petitioner does not deny that broadcasters have the right to oppose the PRA,” MusicFIRST says. “However, broadcasters also have the duty to act in the public interest and not narrowly in their own self-interest by using their licensed spectrum to manipulate information about public matters that directly affect their business. Some broadcasters here have crossed the line and violated this duty.”

Look at the record

What does MusicFIRST think the FCC should do about this? The filings’ growl is much bigger than its chomp. From the outset, the outfit wisely insists it that doesn’t want the Fairness Doctrine back (that’s the long abandoned rule that required stations to offer access to contrasting points of view over the airwaves).

So MusicFIRST asks for an investigation of the situation, to determine whether the broadcasters have violated the public interest or have engaged in “anti-competitive” behavior. Fine, but what should the FCC do if it finds wrongdoing?

The petition invokes acting FCC Chair Michael Copps’ lamentations regarding the agency’s license renewal system —often called “postcard” renewal by its critics. “The FCC needs to reinvigorate the license-renewal process,” Copps recently said. “We need to look at a station’s record every three or four years . . . And we should be actually looking at this record.”

Ok, but if the FCC were to actually investigate the record presented by MusicFIRST, what rules would it enforce? In truth, at this point the commercial radio band is so deregulated that there really are very few—game contest rules, station log requirements, not a lot else. And so we may be at a place where broadcasters can use the airwaves to dishonestly promote their economic self-interest, and do so with impunity. A new proceeding may be warranted here to reinvigorate the Commission’s regulations in this area.


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