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FOR IMMEDIATE RELEASE
September 8, 2009
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Dennis Wharton
202-429-5350
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NAB to FCC: MusicFIRST Complaint Nothing More than Public Relations Play

-- Complaint Runs Counter to First Amendment, Communications Act, and Commission Precedent --

WASHINGTON, D.C. -- The National Association of Broadcasters today filed comments with the Federal Communications Commission dismissing a complaint filed by the MusicFIRST Coalition as nothing more than a "carefully crafted public relations document" that runs counter to the First Amendment, the Communications Act, and precedent set by both the U.S. Supreme Court and the FCC. As such, it should be summarily dismissed, NAB said.

Today's filing comes in the midst of a heated debate on Capitol Hill in which the Recording Industry Association of America is seeking to levy a new licensing fee, or "performance tax," on local radio stations for every song aired free to listeners.

MusicFIRST, a front-group financially supported by the RIAA, alleged earlier this summer that NAB and broadcasters nationwide were engaged in a "campaign" to use "threats" and "intimidation" against artists, while simultaneously refusing to air paid political advertisements supporting RIAA's position regarding the pending legislation in Washington. The MusicFIRST petition, NAB told the FCC, "employs style rather than substance and invective rather than evidence."

MusicFIRST's "effort to stifle broadcasters' speech and inject the Commission into stations' programming decisions violates long-standing Communications Act law and policy, well-settled Commission precedent and broadcasters' basic First Amendment rights," NAB told the Commission.

There are a host of reasons why MusicFIRST's proposed remedies are beyond the Commission's authority and contrary to the First Amendment, NAB explained.

Radio broadcasters' views on the pending legislation are "completely consistent with the public interest in promoting continued access by all Americans to free, over-the-air radio." NAB also noted that the FCC itself has recognized that the radio industry's ability to serve the public interest "is fundamentally premised on its economic viability."

The U.S. Supreme Court and the Communications Act affords broadcasters the broad discretion to select or reject editorial programming or advertisements, NAB told the Commission. A broadcaster's right to refuse advertising has been upheld by the U.S. Supreme Court, which stated in its CBS vs. DNC decision that "neither the Communications Act nor the First Amendment requires broadcasters to accept paid editorial advertisements." Additionally, the FCC's own public manual, The Public and Broadcasting, clearly states that broadcast stations "are not required to broadcast everything that is offered or otherwise suggested to them."

Noting that NAB political advertisements have been "fully compliant" with all FCC rules governing political broadcasts, NAB's filing also stressed broadcasters' First Amendment right to express their political views and to petition the government.

"As the Supreme Court has made clear," NAB told the agency, "broadcasters have wide discretion to air editorial programming or other material that reflects the station's viewpoint on public issues."

NAB also countered the specific allegations made by MusicFIRST, noting:

MUSICFIRST DECLINED TO PURCHASE AIR TIME WHEN APPROACHED BY A LEADING WASHINGTON, D.C. RADIO STATION.

WTOP-FM, a top-rated station in Washington contacted MusicFIRST and offered to air the group's spots at the same rate that it earlier aired advertisements paid for by NAB. MusicFIRST declined to take-up the opportunity.

If the RIAA-funded group was "truly concerned about its ability to convey its message, particularly to the crucial audience of members of Congress, one wonders why it declined WTOP-FM's offer," NAB's filing states.

"ARTIST INTIMIDATION" IS FROM A 100-WATT HIGH SCHOOL RADIO STATION??

The "Delaware radio station" cited in MusicFIRST's initial FCC complaint alleged to have engaged in "intimidation" of artists is apparently a 100-watt high school radio station that chose not to air certain performers for a one-month period two years ago, NAB explained to the FCC. Rather than threatening artists, the high school station's general manager reports "endur[ing] an angry tirade from the MusicFIRST folks."

MUSICFIRST'S ALLEGATION OF A RADIO BOYCOTT CAME AS ONE OF THEIR MOST VOCAL PROPONENTS SAT ATOP THE BILLBOARD AIRPLAY CHART.

At the time of MusicFIRST's FCC filing, which asserted that broadcasters were engaged in a boycott of musicians who support MusicFIRST, the Black Eyed Peas, whose frontman Will.i.am is a vocal proponent of the Performance Rights Act, was receiving more free radio airplay than any other pop band or musician in America. Indeed, the group's single "Boom Boom Pow" held the number one spot on the Billboard Hot 100 Airplay chart for four weeks earlier this summer. The group's hit was followed by "I Gotta Feeling," which currently holds the number one position, according to the September 5 issue of Billboard magazine.

NAB's complete filing, submitted to the FCC today can be read online in PDF format.

The RIAA-funded coalition has turned to the FCC after losing traction in Congress, where a bipartisan group of 247 House lawmakers -- a majority of the House of Representatives -- and 25 U.S. Senators have already publicly expressed opposition to a performance tax. The overwhelming Congressional opposition comes through lawmakers' co-sponsorship of the Local Radio Freedom Act, a resolution that reads:

"Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over-the-air, or on any business for such public performance of sound recordings."

About NAB
The National Association of Broadcasters is the premier advocacy association for America's broadcasters. NAB advances radio and television interests in legislative, regulatory and public affairs. Through advocacy, education and innovation, NAB enables broadcasters to best serve their communities, strengthen their businesses and seize new opportunities in the digital age. Learn more at www.nab.org.

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