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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

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