MusicFIRST Filing: No Names, Legally Challenged
June 11, 2009 at 3:32 PM (PT)
MUSICFIRST's petition to the FCC, asking that it investigate radio for allegedly boycotting records by artists who support a performance royalty, will likely fall on deaf ears, according to an attorney who specializes in FCC issues. What's more, a spokesperson for MUSICFIRST refused to identify the parties who allegedly are being intimidated or boycotted by radio stations and groups.
WOMBLE CARLYLE SANDRIDGE & RICE attorney, GREGG P. SKALL, who also writes the FCC Uncensored column for ALL ACCESS, reviewed the petition and found it lacking, considering the FCC's precedence on such matters. "The MUSICFIRST petition seeks to impose upon the broadcaster the role of common carrier," he said.
The petition seeks to impose upon the broadcaster the role of common carrier ... The Commission has held that it is not and it is in the broadcasterâ??s discretion to determine what issues to discuss
"The Commission has held time and again that it is not and it is in the broadcaster’s discretion to determine what issues to discuss as controversial issues of public importance. The MUSICFIRST petition ignores that history. Despite its denial, MUSICFIRST would interpret the public interest standard as a Fairness Doctrine-like responsibility. There is no Fairness Doctrine and its claims that broadcasters are distorting the facts are based merely on hearsay and innuendo.
"If MUSICFIRST were to win this one, would we soon be applying the same principle to the RUSH LIMBAUGH show?" he continued. "Some would characterize his show as MUSICFIRST describes the broadcasters’ actions: 'deceptive and malicious information [used] to distort the public discussion'."
ALL ACCESS has obtained the MUSICFIRST filing with the FCC, in which numerous claims were made regarding NAB and radio station actions in response to the Performance Fee legislation before Congress.
In The Filing, Claims Were Made That:
* Broadcasters are unlawfully placing their own financial self-interest above their obligation to serve the public interest.
* Broadcasters' airing of deceptive radio spots is contrary to the public interest.
* Concerted action by broadcasters make these actions particularly anticompetitive
The MUSICFIRST COALITION asked the FCC to "investigate the actions of broadcasters described in this petition and declare them contrary to the public interest."
Were MusicFIRST Supporters Boycotted?
One of the most inflammatory issues raised is whether broadcasters dropped or refused to play music from artists who support the Performance Fee legislation. But who are these broadcasters?
ALL ACCESS has made numerous requests for additional information, but has been told by a EDELMAN EVP MARTIN MACHOWSKY, a spokesperson for MUSICFIRST that, "I do not have anything to add to the petition, the release and comments made on the call yesterday."
Unfortunately, the petition is quite vague. It reads:
"To protect against further reprisal, these artists have asked that these incidents be described anonymously in this Petition.
* In April 2009, a top-selling artist who had recently released a new album spoke in support of the MUSICFIRST Coalition and the Performance Rights Act. Soon thereafter, several stations within a major broadcast group notified the artist's label that they would no longer play his single on the air. Program directors and other executives from the stations sent e-mails that said, for example, "We are dropping his record."
* The program director of a radio station in Florida communicated to a record label that the station would not add recordings of an artist to playlists because the artist was listed on the MUSICFIRST website as a supporter of PRA.
* The director of programming for one radio station informed a record label and representatives for two prominent artists that the artists' support of the PRA would have a "chilling effect" on their relationship.
* A DELAWARE radio station boycotted all artists affiliated with the MUSICFIRST Coalition for an entire month.
* Immediately before going on the air for an interview, an artist was pressured by a TEXAS radio station to state on the air that the Performance Rights Act would cripple radio stations.
As ALL ACCESS reported YESTERDAY (NET NEWS 6/11), the DELAWARE station in question is BRANDYWINE SCHOOL DISTRICT Non-Comm WMPH (SUPER 91.7)/WILMINGTON. MUSICFIRST refused to confirm this, nor have we received a response from WMPH, although a search found their boycott posted at www.wmph.org/Boycott/.
None of the other claims come with either the name of the artist, PD or Radio station in question, so at this time, there is no way to verify the accuracy of the claim. If you, or your station was involved in any of these incidents, contact us at ALL ACCESS to verify your side of the story by emailing NET NEWS Editor PAT GILLEN at email@example.com.
MusicFIRST Advertising Refused?
To make their case to the public, MUSICFIRST claims to have contacted numerous stations to place advertising on the air, but were turned down.
Among those in the petition that were claimed to have said no to the ads were CITADEL Hot AC WDVD/DETROIT, GREATER MEDIA's WCSX, WMGC and WRIF/DETROIT, CUMULUS KRBE/HOUSTON and CLEAR CHANNEL KKRW/HOUSTON.
Additionally, "38 different" CLEAR CHANNEL stations were offered the ad, and were provided a script, but haven't responded to MusicFIRST.
ALL ACCESS has contacted WDVD and a CLEAR CHANNEL spokesperson for confirmation and an explaination of their ad policies.