Post authored by Communications Intern Olivia Brown

To anyone who loves truly local radio as much as we do, the “Local Radio Freedom Act” — the latest in a series of Congressional rumblings related to copyright and royalty issues — may sound like a noble cause. But look past the doublespeak title, and you’ll find that one man’s “freedom” is another man’s free lunch.

In reality, this act is actually a non-binding resolution backed by the National Association of Broadcasters, which represents huge corporations like Clear Channel, Cumulus, and Infinity. U.S. Representatives Gene Green (D-TX) and K. Michael Conaway (R-TX) reintroduced the act this past February — the same pair dropped a similar resolution in the previous Congress. The language of the resolution proposes that:

“…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.”

Essentially, they’re talking about opposing a performance right for AM/FM radio. The goal is to make sure that broadcasters remain exempted from paying recording artists and labels when their songs are played over-the-air (as opposed to just paying the songwriters and publishers). The resolution currently has 118 co-sponsors in the House, and nine in the Senate.

The resolution was initially introduced in 2011 as a response to and attempted protection against 2009’s Performance Rights Act, which was never enacted. There is no current pending legislation at which this year’s reintroduction is aimed. However, if Register of Copyrights Maria Pallante’s recent testimony before the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet is any indication, the performance royalty may be brought to the Congressional table in the near future. Pallante called the United States’ lack of a performance royalty “indefensible” and pegged it as one of the first updates that should be made to U.S. copyright law. At this point, the United States sits in some interesting company with its lack of a performance right: China, Iran and North Korea are among the very few countries that do not compensate performers when their songs are played on the radio. 

It’s important to keep in mind that when a song is digitally broadcast — by webcasters, Pandora, Sirius/XM or via cable — performers and labels are paid (in addition to songwriters and publishers). Check out our public performance right fact sheet for more info.

The premise of LRFA is misleading in a number of ways. For one, how “local” are the commercial stations that the NAB represents, really? The biggest stations may still be tied to specific cities and communities, but increasingly, they are owned by one of just a few large broadcasting companies. And these companies pushing radio in a less local direction through consolidated ownership, which results in fewer local DJs and more homogenous playlists. So while LRFA purports to protect something local or “homegrown,” this isn’t really the case. 

(If a new performance rights bill is ultimately drafted, it will be important to ensure that truly local stations will only have to pay their proprotionate share. For those concerned about the effects on small, independent stations, we previously described why college radio should get behind the performance right.)

According to Billboard, the NAB has placed ads claiming that a performance right for sound recordings would be “bad for artists.” The ads claim that “foreign-owned record labels” are behind the effort to instate a performance royalty for sound recordings. In reality, support for the performance royalty can be found in all corners of the music-producing sector of the music industry, among labels and artists both major and independent alike. Any way you slice it, it’s difficult to think of a scenario in which a performance right would not benefit performers. Maybe a jazz or r&b artist well-known for interpreting “standards” doesn’t get played on consolidated commercial radio in the US, but they are played regularly in Europe. The lack of a reciprocal right means that these artists can’t collect. Some of them may not be able to tour. This income would surely be meaningful.

Can you think of another US labor export that other countries get for free?

You might hear calls for “parity” in broadcasting platforms, digital or terrestrial. This might be a principle worth pursuing. But if lawmakers are serious about it, creating a performance right for terrestrial radio would make the most sense. The vast majority of performing artists are not wealthy; any amount of compensation can be meaningful, and the absence of a revenue stream (or dramatic reduction) can sting.  

It’s true that radio play generally benefits artists, but the arguments that radio gives artists boatloads of “free promotion” is also not without fault. These are multimillion dollar companies that attract listeners through the use of music, and sell ads based on listener share. If the radio conglomerate thinks that the performance has no value, maybe the robot DJ can sing the song straight into the mic.

Look, we’re not incredibly concerned that this resolution is going anywhere; it’s simply a way for certain politicians to demonstrate their fealty to the broadcast lobby. Still, the fact remains: radio needs performers. The rest of the world recognizes this and compensates in kind. It’s time for the US Congress to tune in to that reality.