Can Access For Indie Labels Be Governed?

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.

10 replies
  1. Joel Denver
    Joel Denver says:

    Sean …
    Excellent points! Today, radio companies reward programmers who are “tight and safe and play the chart game” by letting them keep their jobs.
    Those programmers that seek to reflect the tastes of their audience and market are put under the hot white light and given a proctoscope for their efforts when they add something “too early” according to some arbitrary chart benchmark that’s handed down.
    Legislating new music or indie label exposure is not the way to go. It will only serve to push deserving songs into overnight show positions, much as radio did for years with public service and religious programming when it was mandated.
    Radio needs to be local and encourage programmers to play hit songs, but they also need to let programmers have the leeway to play what’s right for their audiences at the appropriate time based on local conditions — not some corporate guideline.
    Perhaps when electronic ratings measurement is in more markets, and we get back to worrying about how to attract more people to the station with creativity vs worrying about AQH, this cycle of “playing it safe” instead of “playing to win” will finally end.
    Can it please, happen, tomorrow?

  2. Bill Hennes
    Bill Hennes says:

    This could be a disaster! This is exactly how the Canadian music scene got screwed up when Their governing body the CRTC made it “mandatory” to play each hour, a percentage of, “Canadian Content! It started at an arbitrary 29%. What a farce!
    Music should always be exposed because of “music content” Not “Government Legislation”. This is worse than “pay for play” we just went through. Bring back “paper adds”…at least the public’s “ears” did not have to hear the “crapola.” Like you said, Country radio already played Jason Aldean, Heartland, Little Big Town, Craig Morgan, and the other acts.

  3. John Kuliak
    John Kuliak says:

    As usual, you hit it right on the head, Sean.
    I have worked for Independent labels my entire 17 year career in promotion.
    Whether out of simple fear or just a lack of understanding, many programmers automatically ghetto-ize small label product, assuming that if the music mattered, it would ‘of course’ be on a major label.
    Forget fo a minute that your average listener doesn’t give a rat’s ass about what label a song is on. Or just perhaps, that a particular Indie label might actually have ‘street cred’ with the station’s most rabid P1 listeners who DO pay attention to that stuff!
    To me, it’s no coincidence that the programmers I have worked who have established radio DYNASTIES in their markets (Brian Kelly, Entercom, Milwaukee…Glen Gardner, Midwest Family Broadcasting…Dave Shakes back in the day at B96, Chicago…Dave Hamilton & his crew at ABC in Minneapolis, to name a few)are also among the most fearless in adding the right Indie label product…and WINNING with it!!!
    John Kuliak, Suburban Noize Records

  4. chris
    chris says:

    IF anything, a slight push should be made for radio to support local artist (signed to local labels). Its been years (30+) since I’ve seen any local artist make a appearance on local playlists. Locally produced artist use to make the Top 30 charts of Keener(WKRN) and The Big Eight (CKLW) in the 60’s and early 70’s, but now, unless they’ve left town (to LA or NY or London) they have little chance of getting any airplay, no matter how good they are, unless by some luck a TV show producer likes the song and puts it in a current show.
    So, while i would say no to a Indie-con, a local-con should be requried, if not in all, at least in the Top 50 markets.

  5. Michael Lowe
    Michael Lowe says:

    The best question asked was the one in the box near the end of the article. “If a paid spin doesn’t count, should a government-mandated spin?” Ask any Canadian broadcaster. Are the independent artists getting that much airplay because of the percentage of Canadian artists material requirement for each and every Canadian radio playlist?
    In terms of payola…has anyone died because John Mayer’s “Waiting For The World To Change” got an extra few spins on American radio? Follow my logic…Pharmaceutical companies take doctors to two-martini lunches and golf outings and bring them expensive gifts so they’ll prescribe one drug (theirs) over another’s (the competition). It happens all the time. So, what if one heart medication was used when the other was a better, safer alternative? The patient croaks and the doctors get the lawsuit, not the drug company (in most cases). Whether or not music gets played isn’t a life-threatening proposition. So, why does it matter? In one arena where malpractice lawsuits and death can result, no one is cracking down on how much money and benefits are running rampant through their system. But, because a PD got an X-BOX for his kid, an entire industry is faced with mountains of “legal-ese” to get a stinkin’ box of CDs. What’s wrong with this picture? Thank you New York for making Elliot Spitzer your governor. Maybe this witchhunt will end and we can get back to giving the listeners what they want in our radio stations. We’ve got plenty of research, consultants and input without the government putting in its two cents worth. I’m glad I work at a Mainstream AC station that adds about three records a month (if that many). I don’t need the hassles.

  6. Frank Bell
    Frank Bell says:

    Great article, Sean, thanks for identifying the thorny issues surrounding any government attempt to mandate airplay of so-called “indie music”. One would hope the NAB recognizes this as a serious threat to broadcasters’ First Amendement rights and that the major groups have the temerity not to “settle out of court” by agreeing to any type of program quota. If the federal government gets away with this, what’s next: legislating mom & pop hardware stores next to every Home Depot?

  7. Bob Quick
    Bob Quick says:

    Once again Sean you are right on the money with this. The FCC mandating indie airplay is the reverse of censorship, but just as dangerous.

  8. Ken Hawk
    Ken Hawk says:

    How does one determine an “indie” label? What standards are there to determine what’s an ‘indie’ from a major label? Do we have to have another FCC rule to mandate programmers do something that they should be doing on their own?
    Music should be played if it’s got a good sound and if it’s well-received by listeners. I don’t support any directive that mandates substandard music to be played on any commercial station. We have non-commercial stations for the purpose of getting that record out. Listener-supported stations can afford to take that chance. Advertiser-supported stations are a little more tricky. The FCC needs to concentrate on real regulation like ownership limits, and leave petty decisions like third-rate music up to programmers.

  9. Jerry Boulding
    Jerry Boulding says:

    Great article. It points out the pitfalls of America’s “buzz fuzz” getting involved in federally mandated independent airplay early enough to make some people think. Along with changes to chart methodology, reporter criteria, panel size and composition, it is time to recognize the creative advantages of long-term vision from musically aggressive programmers who are ready to use their ears and guts again.


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