Musicians ask FCC to probe radio boycott

by Jenna Greene, National Law Journal

You won't hear Bruce Springsteen on KXIT ("Your home for the classics") in the Texas Panhandle -- or Sheryl Crow or Tim McGraw or Rod Stewart or dozens of other artists either.

It's not their music that station owner George Chambers finds objectionable. It's their membership in MusicFirst, a coalition that wants to change the law to require AM and FM radio stations to pay royalties for the music they broadcast. Other radio stations across the country have allegedly refused to air the group's advertisements supporting performance-royalty legislation, as well as blackballed individual artists who are members.

Now the Federal Communications Commission (FCC) is being called upon to investigate whether such tactics run afoul of broadcasters' obligation to serve the public interest. The agency put out a notice last month seeking information regarding whether broadcasters are "targeting and threatening artists" or engaging in a media campaign that "disseminates falsities," and to determine the effect of refusing to air the ads. The commission is also being asked to take the stations' conduct into account when it comes time to renew their broadcast licenses.

ROYALTY RUMBLE

It's tricky First Amendment ground -- broadcasters forcefully argue that they have a well-established right to play what they want and to turn down editorial advertising as they see fit. And they are fiercely opposed to placing any new conditions on renewal of their broadcast licenses -- on which their business rests.

Some communications lawyers view the FCC's willingness to even explore the issue as a sign that it is leaning toward more heavy-handed content regulation. "For the FCC to put out the notice it did signals a possible shift -- a scary shift -- in its oversight of broadcasters," said John Garziglia, a partner in the Washington, D.C., office of Womble Carlyle Sandridge & Rice who is representing eight radio station licensees in the proceedings. "The questions the FCC is asking here go to the heart of what broadcast stations do, which is to make editorial choices."

But others counter that it is the artists' First Amendment rights that are being violated. "Their speech is being chilled, and not just in the sense that they can't get their songs played on a particular radio station," said Samuel Feder, a partner in the Washington, D.C., office of Chicago-based Jenner & Block who represents MusicFirst. "They are being told that, if they speak out in any public manner, they'll be retaliated against."

Feder, who served as general counsel of the FCC from 2005 to 2008, added: "We're not denying that editorial discretion is an important value. But there has to be a balance with the public's interest in getting access to information."

FCC spokesman David Fiske declined comment on the proceedings, but the FCC acknowledged in its Aug. 7 notice that "substantial First Amendment issues are involved in the examination of speech of any kind." At this point, the agency said it just wants to gather facts, and "it's not clear whether any remedies are necessary or available." Reply comments are being accepted until Wednesday.

The MusicFirst debate is not the only First Amendment controversy simmering at the FCC. Some broadcast lawyers also point to "enhanced disclosure" and "localism" proceedings as further indications that the federal government is seeking greater control over programming decisions. The enhanced-disclosure rule requires television stations to file highly detailed reports about their programming, while the localism proposal would add new guidelines for broadcasters on providing local content.

"The general rule is that the government isn't allowed to dictate or oversee editorial choices made by the press, including broadcasters," said First Amendment specialist Robert Corn-Revere, a partner in the Washington, D.C., office of Seattle-based Davis Wright Tremaine. "The MusicFirst petition and these proposals represent one way FCC regulations can create tension with traditional First Amendment values. It re-opens the question of just how far the commission can go."

The fight between musicians and broadcasters at the FCC has its roots in an ongoing bare-knuckled battle on Capitol Hill. Legislation is pending that would amend federal copyright law to give artists -- and their recording companies -- royalties for songs played on AM/FM radio. Since the advent of commercial radio 80 years ago, artists have never received such payments (although songwriters and music publishers do receive compensation).

Broadcasters stress that the relationship is symbiotic -- artists provide the music, and radio stations provide the exposure, which leads to higher sales for the artists. But in 1995, the balance began to shift. That year, the Digital Performance Right in Sound Recordings Act was passed, awarding artists royalties for songs played on satellite and cable radio. Next came the Digital Millennium Copyright Act of 1998, which expanded royalties to Internet radio. In 2007, the Recording Industry Association of America, two musicians unions and others formed MusicFirst and began a serious lobbying push for AM/FM royalties, to be split 50/50 between artists and record labels.

The prospect of paying royalties has deeply alarmed radio stations. The proposed legislation does not specify rates and stipulates that noncommercial stations would pay only a nominal fee. Still, the Minority Media and Telecommunications Council has estimated it would bankrupt at least one-third of minority-owned stations.

SEEKING TO RUN ADS

When presented with MusicFirst ads earlier this year urging passage of the bill, radio station owners across the country balked. MusicFirst claims it approached dozens of stations, and none would agree to run the spots. On June 9, MusicFirst filed a petition with the FCC requesting an investigation.

That's unwarranted, according to Jane Mago, executive vice president of legal and regulatory affairs at the National Association of Broadcasters. "The law here is pretty clear," she said. "Broadcasters are not required to take everything that comes to them." Mago, who was FCC general counsel from 2001 to 2003, pointed to a U.S. Supreme Court decision, Columbia Broadcasting System Inc. v. Democratic National Committee (1973), holding that a radio station did not have to accept ads about the Vietnam War.

Feder responded that the broadcasters association is "overreading the case," but added, "We want them to air our ads, but we don't want the commission to order them to do so. We think there should be a full public hearing on the matter."

A related question concerns allegations that radio stations are refusing to play music from artists who are members of MusicFirst. The group in its FCC petition won't name names, saying the artists fear further retaliation if they come forward. But according to MusicFirst, college radio station WICB in Ithaca, N.Y., e-mailed singer Aimee Mann to say, "Since you support MusicFirst, WICB hereby drops Aimee Mann and Til Tuesday from our playlist like a bad habit."

And Chambers of KXIT in Texas wrote in comments he filed with the FCC, "I have removed all songs of artists that are part of MusicFirst and will not play their songs for now ... . I feel it is my right to play the songs I choose, no one should tell me what to and not to play." (He added that he is willing to run the ads.)

Mago emphatically dismissed allegations of a coordinated campaign of intimidation by the broadcasters group. Further, she said, "It is the choice of individual radio stations to make programming decisions ... . If the First Amendment stands for anything, it stands for the proposition that the government should not be involved in making these decisions."

Some media watchdogs find the suggestion of boycotts troubling. Andrew Schwartzman, president of the Media Access Project, who is not involved in the proceedings and has no position on the royalty bill, said, "It raises serious questions about whether the licensees are comporting themselves with the public interest. They are not supposed to put their own interests above those of the public."

Indeed, MusicFirst stressed in its petition that broadcasters have free, exclusive use of spectrum worth a half-trillion dollars. In return, they have a statutory duty to serve "the public interest, convenience and necessity" -- a somewhat amorphous standard that dates back to the Radio Act of 1927.

"They have a public interest obligation to make sure the debate is open and fair," said Miles Feldman, a partner at Los Angeles-based Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor who represents artists. "If they're controlling the medium, it's not a fair dialogue."

But Mago of the broadcasters association doesn't see how MusicFirst's push to transfer money via royalty payments from radio stations to artists and their record labels serves the public. "We're fighting to protect our broadcasters," she said. "They're fighting for their private interest to get the bill passed."

article originally published at National Law Journal.

The media's job is to interest the public in the public interest. -John Dewey