The Other Foot

The FCC sweeps Eliot Spitzer's payola findings under the rug

A few weeks ago, New York's attorney general, Eliot Spitzer, triumphantly announced Sony BMG's agreement to quit exchanging money and goodies for radio airplay and to throw in $10 million to nonprofits by way of apology. The reaction from the music industry was a collective shrug and a hint of wounded entitlement. Payola, the music business likes to claim, is deplorable; it's just that everyone does it. And expensive gifts to radio programmers? That's about maintaining good relationships. Who doesn't like a good relationship?

It was simple in the old days: You slipped a C-note into your new 45's sleeve when you handed it to a disc jockey. In 1960, when King Records' boss, Syd Nathan, was called to testify in front of the congressional payola hearings, he explained that he told DJs "if they wanted payola they'd have to take a check" so King could treat it as a business deduction. In fact, it's still legal to pay a radio station outright to play your song, as long as they announce your sponsorship—that's what helped to break Limp Bizkit, Gavin DeGraw, and John Mayer, for instance.

After payola-as-such was quashed, the "independent promotion" shell game became standard operating procedure, continuing until recently. Independent promoters pay a radio station a flat rate (often in the six figures annually) to be a conduit between the station and record labels, and "suggest" records for their consideration; if a promoter doesn't suggest a record, forget it. Labels then hire the promoters to hype their records, and pay them based on how often their records get played. Consequently, all the money in the world can't make a song a radio hit—listeners still have to like it—but there's no chance that a song can get significant commercial airplay without major-label-level money behind it.

But that scam has been dying off, as massive radio conglomerates cut out the middleman. Clear Channel, Cox Radio, and Infinity have all made a show of severing their ties with independent promoters. (A 2003 Clear Channel press release declared that the company would "begin working directly with the recording industry on specific group-wide contesting, promotions and marketing opportunities," and quoted radio division CEO John Hogan: "Strong relationships with artists and record labels are a priority for our business.")

So labels have been reverting to old-fashioned kinds of persuasion that, even if they aren't quite cash, can be written off on taxes. Spitzer's investigation is still going on, and other labels and radio companies have been subpoenaed, but the Sony BMG documents already made public by the attorney general's office reveal a weirdly pathetic level of bribery. The most ridiculous is a marketing plan that involved sending mix-show DJs one sneaker, with the promise of sending the other one after they'd played Killer Mike's "A.D.I.D.A.S." 10 times. Troy's WFLY seems to have gotten "3 cheap DVD players, and one 32 inch tv" for adding an Evan and Jaron song and bumping up an "FFF" (Five for Fighting?) song a little. Suggesting that a "contest prize" could just go to a radio employee's home address, a Sony e-mail notes, laconically: "A lot of stuff get lost when you send to station . . . Wink wink."

One name in particular keeps coming up in Spitzer's Sony BMG files: Dave Universal. The former program director of Buffalo's WKSE, he was fired in January for payola-related offenses. A Sony memo indicates that Universal got flown to New York "for Jennifer Lopez 'I'm Real' ADD but maybe we want to put we flew him down to hear Micheal [sic] Jackson." Universal told The New York Times that he "was allowed to do whatever I had to do to foster relationships." Love is all around!

And what's the Federal Communications Commission doing about all this? Dithering, mostly. The last time they actually levied a payola fine, it was $4,000 apiece from stations in Denton, Texas (KHKS), and Detroit (WKQI) for playing a Bryan Adams song in 1998. Following last month's Sony BMG settlement, FCC commissioner Jonathan Adelstein made enough of a ruckus that chairman Kevin Martin agreed to investigate Spitzer's findings for payola law violations.

In practice, so far, that investigation seems to have consisted of issuing a "fact sheet on payola," which announces that if you hear an example of unidentified pay-for-play, you can tell the FCC. There is, however, a crucial problem with this: The reason payola of any kind is wrong is that you can't tell when you're hearing it—when what's supposed to be programming, on airwaves that belong to the public, is actually advertising. What are you supposed to do, declare that you hate a song so much you're sure the DJ is wearing new sneakers? A lot of stuff gets lost when you send it to the FCC. Wink wink.

 
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