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Litigation
Killed the Radio Star
The
recording and music business is perhaps at the crossroads
right now, and specifically in a dilemma, on the exploitation
of the current crop of new pops. But it also has its biggest
opportunity in almost 40 years to clean house. And the machinery
to it is just about as old. The only thing is that it has
to be put to work.
Variety
Magazine, May 4, 1960
Eliot
Spitzer’s announcement that he was lowering the boom on record
companies’ illegal practice of paying radio to play songs
was a blast of fresh air over the fetid, steaming coil that
is the world of radio and records. The pay-for-play practice
has openly grown to legendary proportions—none of what Spitzer
“uncovered” was particularly surprising (notwithstanding Spitzer’s
almost comical righteous indignation at finding that music
doesn’t wind up on the radio because of its “artistic merit
and popularity”). Music trade publications have been talking
this stuff for years, and organizations like the Future of
Music Coalition and the Recording Artists Coalition have been
hammering the FCC and Congress for at least three years to
stop the blatant illegal behavior, to largely deaf ears.
And payola is, of course, nothing new. In 1960, Alan Freed,
one of the first great rock & roll DJs, a guy who gave
rock & roll a serious national footprint in the late ’50s,
became the fall guy for the industry when it was revealed
he’d accepted money to play and promote certain records. The
purge of Freed was much more of a personal attack and a broadside
against the genre of rock & roll than a serious attempt
to clean up the corrupt industry that spawned them, but it
did highlight a serious problem, and resulted in legislation
that strengthened the prohibition against buying airplay.
So, as he’s done before with anti-trust and securities issues,
Spitzer steps in to do somebody else’s job, something that’s
been screaming for attention. And last week, the FCC grudgingly
admitted that Spitzer’s “findings” pretty much required them
to look into the issue. New FCC Chairman Kenneth Martin issued
a statement last week that expressed doubt that payola was
a big problem, but that Spitzer’s findings would be looked
into. Tellingly, Martin stopped short of ordering an independent
FCC investigation, stating only that evidence of wrongdoing
brought to the FCC would be looked at.
So much for the FCC to do! Why, just last week the FCC hired
as an “outreach liaison” a person named Penny Nance, whose
resume includes being on the board of Concerned Women for
America, a group devoted to bringing “Biblical principles
to all levels of public policy”; working as a lobbyist for
Center for Reclaiming America, a group with the goal of implementing
the “Biblical principles on which our country was founded”;
and, in 1999, organizing a rally in Washington, D.C., where
ladies could express their dismay at President Clinton’s sexual
peccadilloes. She’s been a longtime proponent of bringing
the FCC’s draconian and incomprehensible broadcast television
decency rules to basic cable TV programming, a position shared
by chairman Martin.
So it looks like Spitzer is going to be pushing this one alone,
as the feds are much more interested in pushing fundamentalist
thought control than stopping corporate stooges from dominating
the radio airwaves. More Ashlee Simpson on radio, less South
Park on TV. Your tax dollars at work.
It’s a legitimate question to ask what the big deal is here.
So record companies pay for radio airplay, so what? The best
answer is probably this: Broadcast bandwidth is a public property,
a public trust. The radio networks don’t own the airwaves;
we do. The behemoth companies that run most of the stations
on the dial have a responsibility to the public to run a reasonably
clean ship, and that shouldn’t include taking bribes for the
entertainment they present. Another, simpler, and perhaps
naïve, argument would be that it’s just not right that our
culture, such as it is, should be dictated by the highest
bidder.
Which raises the issue of whether traditional radio even matters
anymore. Have you looked at the Top 40 charts lately? With
iPods and Internet and satellite radio, broadcast radio certainly
doesn’t hold the importance as a cultural driver that it had
even 10 years ago. Maybe all this payola outrage is just a
bunch of sound and fury signifying nothing.
Whatever. In any event, from here in the cheap seats, it’s
an awful lot of fun watching the mighty record companies,
in the midst of their increasingly moralistic crusade against
kids downloading free music, acting contrite for bribing DJs
with Adidas and trips to Vegas. It’s great to see the bean
counters running the consolidated broadcasting companies try
to convince us that payola is just a small localized problem
with renegade DJs at a couple of stations.
Meantime, Spitzer says he’s not close to being done with his
investigation. There’s a lot more shiny expensive shoes that
are gonna drop. Cool.
—Paul
Rapp
Paul
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment and
copyright law at Albany Law School. Contact info can be found
at www.paulrapp.com.
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