A story in today’s Hollywood Reporter says that “FCC commissioners are mulling a staff proposal” that would resolve the agency’s current payola investigation by, among other things, requiring stations “to set aside a certain amount of airtime for music produced independently,” in addition to creating a code of conduct and an education program.
If a paid spin no longer counts, does a government-mandated spin?
The settlement would speak to the concerns of some commissioners that major labels dominate the airwaves. “Democratic commissioner Jonathan Adelstein, an amateur musician, has been particularly vocal on the payola subject,” says the Reporter. The story also says that the American Association of Independent Music “urged” FCC Chairman Kevin Martin “to give them some consideration in the probe . . . A2IM argued that the payola practices were shutting out independent labels.”
The issue of majors vs. indie labels has always been more complex than the issue of promotional tools-legitimate or otherwise. It’s tied up in the ability and willingness of program directors to go “off the menu” of those songs actively worked by the majors. That’s a hard one to legislate. And while you can’t blame some of the group owners from accepting a seemingly benign arrangement that would allow them to move on from this topic, the mere notion of “Indie-Con” (the name comes from the Canadian-government mandated “Cancon”) raises all sorts of questions. The story states that “there are policy considerations that need to be worked out among the commissioners” and one hopes that would include the following:
- What about those songs on indie labels that have distribution (but no promotional support) through the majors? The labels that push to get a Cascada’s “Everytime We Touch” or Hellogoodbye’s “Here (In Your Arms)” certainly feel like indies when they’re trying to get their records played. They are certainly viewed as indie labels in our industry. But…
- If those arrangements count as independently produced, are the majors then going to create their own quasi-indie imprints, along the lines of what the film studios have done? What about the soundtrack and classical imprints at the majors that go to mainstream radio only sporadically, usually without the help of a larger sibling’s promotional staff?
- Do Disney’s “High School Musical” and “Hannah Montana” soundtracks, produced outside the auspices of the majors and ignored by mainstream radio count? Even though they don’t need any apparent help reaching an audience? Disney, in particular, raises a lot of questions about what constitutes an indie: Are Lyric Street and Hollywood–with their own full staffs, but not connected with the majors–indies or not?
- Is Country radio already compliant by dint of Jason Aldean, Little Big Town, Craig Morgan, and the other acts that have made inroads in recent years?
- Does a song that is “independently produced” lose that status when a major picks it up? Arctic Monkeys and Franz Ferdinand both came from the same British indie label, but the latter is signed to Epic here. Does this decrease the impetus to have your fast-breaking local hit picked up by a major?
- What would the impact be on those songs on independent labels that have managed to scrap their way on to the airwaves without “Indie-Con?” Do those songs stop competing against every major label priority that week (good, you might say), but then go into a separate pool with an infinite number of competitors for a smaller number of slots? Or do Koch’s recent surprise R&B/Rhythmic hits by DJ Unk and Jim Jones get an extra few weeks in power because they’re established hits?
- Do HD-2 multicast stations count? If there is “Indie-Con,” are we looking at the creation of independent music channels?
- How are the trade charts to handle this? The upshot of the recent Spitzer agreements with radio and the labels has been to undo the trade philosophy of recent years that a spin was a spin, heard by listeners regardless of how it got to the airwaves. But if a paid spin no longer counts, does a government-mandated spin?
If some of these potential scenarios (Arctic Monkeys vs. Franz Ferdinand, for instance) seem outlandish, ask a Canadian programmer. They’ve been grappling with Canadian Content requirements for more than 35 years, and were freed only a decade or so ago from other rules that dictated rotations and the percentage of hits they could play on FM. Under the current rules, Nelly Furtado’s “Promiscuous” is not Cancon, but “Say It Right” is–thus confounding both broadcasters and advocates for independent labels and developing artists who think Furtado no longer deserves that slot anyway.
Through most of the ’90s, the FCC remained a resolute silence on the claims by independent promoters that the Commission had approved their arrangements–some of which certainly seemed like pay-for-play. It also failed to address the changing nature of what constituted consideration. While increased press scrutiny and the Spitzer investigation have finally brought those issues to the fore, the best thing that the FCC could do at this point is to finally provide some definitive guidance on those issues. And while the independent promotion issue is hardly top of mind these days, there are certainly many smaller labels who feel their current inability to use indies in lieu of having a full promotion staff is exactly what gives the major labels an advantage.
In reality, the advantage isn’t just for songs on a major-label; the greatest “share of voice” goes to those songs that are major-label priorities. In this day and age, going on to a major label album and finding the song that would work better for your listeners than the current single is an act of courage, too. And so is holding on to the song that was a hit in your market, even though it’s not coming home nationally.
If group owners were sincere about wanting to create a truly merit-based system about what gets back on the air, they would empower their programmers to look for music again. The off-air Music Director is a distant memory at most stations. And even if the Spitzer ruling hasn’t created a chilling environment for PDs who want to go “off the menu” of promoted songs and play more left-field music, as some claim, the PD who would rather find new songs than ride along on sales calls has been viewed with dismay for at least a decade.
Airplay should be the result of programmers making the best decisions to serve the needs of their audience. It should not be the result of receiving an act for a concert. It should not be the result of the station receiving a Fax machine. It should not be the result of a programmer receiving a large-screen TV. And the prospect of any government-mandated airplay, however well intended, is also chilling. Programming the best available song for the listener cannot be legislated. But events of recent years have shown that it needs to be re-instilled in broadcaster culture, and in that, owners could do a much better job.