NAB shoots down MusicFIRST FCC petition


In reply comments with the FCC, the NAB contended that MusicFIRST’s request for FCC intervention into the battle over PRA is a PR stunt, based on hearsay evidence and unconstitutional.

NAB argued, “A number of commenters in this proceeding opposed any Commission action on the Petition, noting its striking lack of evidence and its calls for governmental action beyond the FCC’s authority and contrary to the First Amendment. The brief and repetitive (sometimes verbatim) comments supporting the Petition do not remedy its myriad evidentiary and legal deficiencies. They provide no support for MusicFIRST’s effort to stifle radio broadcasters’ speech, in violation of long-standing Communications Act law and policy, well-settled Commission precedent and broadcasters’ basic constitutional rights.”

NAB pointed out that MusicFIRST failed to comment on the record in support of its own petition. It also noted the difficulty in ever mounting a response to the organization’s charges. “Indeed, the vagueness of and lack of evidence in the record – particularly the anonymous allegations and hearsay – make it impossible for NAB and radio stations to respond specifically to MusicFIRST’s accusations. If the Commission were to take any action based on this record, it would violate its own precedent and fundamental principles of due process – principles that include adequate notice and a genuine opportunity to explain.”

NAB concluded, “In short, there is no need for the Commission to take any action – including launching an investigation – in response to the Petition. Given the complete lack of any legal or factual basis for an investigation, there is nothing for the Commission to investigate. The fact that opponents of broadcasters in the legislative arena are urging the Commission to conduct a wide-ranging and open-ended investigation of radio stations en masse provides no basis for the agency to do so. Particularly in light of the significant First Amendment interests at stake, summary dismissal of the Petition is the only warranted course of action.”

RBR-TVBR observation: How can some politicians watch labels beg for airplay and at the same time try to mandate that broadcasters pay them as well?

How are the labels allowed to argue in the halls of Congress that radio airplay is not all that valuable, even while members of their marketing departments are calling up stations and clamoring for airplay and their leading executives are calling airplay a critical component of success?

Why are some members of Congress putting together a bill the cites the noble goal of providing a decent living for struggling musicians, and then grabbing money from radio and giving it to big mostly foreign-based record labels (50%), the tiny handful of musicians who have made it to marquee headliner status – in short, the ones least likely to be struggling (45%), and then spitting on the vast majority of musicians who have ever participated in a successful recording (5%) and completely ignoring the thousands upon thousands of other working musicians who were not so fortunate as to have ever participated in a hit recording, giving them nothing.

The ill-conceived, poorly-studied and cynically-promoted Performance Rights Act richly deserves a resounding and permanent defeat in both houses of Congress.