As part of our mission to make sure that artists' and musicians' voices are not left out of the policy debate, FMC regularly prepares and submits public comments, documents, and testimony to the appropriate rulemaking bodies. In these documents, the FMC strives to inject the debate with information about how policies can affect artists and the public at large.
Ms. Marlene Dortch
Federal Communications Commission
445 12th Street, S.W.
Washington DC 20554
Re: Notice of Oral Ex Parte Communications
MB Docket No. 11-66 (Cumulus/Citadel merger; license transfer approval)
Dear Ms. Dortch,
This letter is submitted pursuant to Section 1.1206(b) of the Commission’s rules.
On May 5, 2011, Michael Bracy (Policy Director, Future of Music Coalition (FMC), Christopher Naoum (Policy Counsel, FMC), and Adam Holofcener (Legal Intern, FMC) met with Commissioner Michael Copps and Joshua Cinelli.
Future of Music Coalition met with the Commissioner and his staff to discuss the state of the commercial radio marketplace. FMC is specifically concerned with the proposed transfer of control and assignment of licenses in the merger of Citadel Broadcasting Corporation (Citadel) and Cumulus Media Inc. (CMI). As FMC’s eleven years of documenting trends in the commercial radio space indicates, consolidation in the radio industry has led to conditions that could appropriately be described as market failure. The drive to cut costs to please investors, coupled with highly restrictive programming behaviors, have stymied broadcasters’ ability to fulfill their public interest obligations of localism and diversity, while affecting their ability to attract and retain listeners.
When FMC speaks with artists, and managers and fans, we are impressed by how much enthusiasm there is for terrestrial radio. However, this enthusiasm is not often reflected in commercialradio programming, which is homogenized and risk-averse. We also notice that noncommercial radio is driving a considerable amount of activity — monetary, cultural and otherwise — by highlighting independent and local content. We wonder if there is more that commercial radio can do to play an active role in the new music ecosystem in a way that makes sense both economically and with regards to station owners’ license obligations. We worry that commercial station owners might be missing out on significant opportunities to compete in today’s media marketplace by failing to acknowledge terrestrial radio’s core strengths, namely live and locally-originated programming.
We have spoken to representatives for CMI and we appreciate their efforts to bring new equity into the marketplace and divest their overlapping stations to owners who seek to best serve the public interest. Additionally, we are cautiously optimistic about CMI’s goal to “place more feet on the streets and jocks on the air,” to borrow a phrase from CMI Chairman, President and CEO Lew Dickey. Our number one concern, however, is programming and the lack of access for independent creators and labels. According to the American Association of Independent Music (A2IM), a merged company would likely result in more barriers to airplay for their independent record label members. FMC shares these concerns on the artist side, yet welcomes opportunities for positive reform in commercial radio in both programming and community engagement.
Another concern shared by both FMC and the independent label community is structural or institutional payola. As documented in several qualitative and quantitative reports by both groups, radio station ownership consolidation in part establishes an environment where payola or payola-like practices are a natural outcome. We are not entirely satisfied with the practical results of the Consent Decree and Voluntary Agreements in the wake of 2007’s payola settlements, and would welcome more meaningful engagement between the independent music sector and commercial radio.
CMI has expressed interest in further discussing some of FMC’s concerns and ideas about how to make local stations more viable through innovative programming. A growing community of independent musicians has had considerable success on noncommercial stations, and there is no reason why commercial stations cannot reestablish themselves in the marketplace by taking advantage of clear demand for independent content. Bands like Arcade Fire, the Decemberists, and Spoon have all made it to the top of the Billboard charts but receive scant airplay on commercial radio. To us, this signals that something is broken with the programming model. Restrictive, homogenized programming with little local or regional focus will is unlikely to attract new listeners; playing music they want to hear may achieve a better outcome.
Consumers have expressed interest in live niche formats. Commercial radio station groups have done a poor job of responding to these demands, as well as competition from other sources, such as web radio. To adapt to a changing industry, we suggest that certain metrics may be employed across any market to tailor playlists to local audiences and demonstrable listener demand. The question is how can stations can engage local communities and partner with independent practitioners to once again be a driver in the music marketplace.
CMI has suggested that HD radio substations will address many of the issues of diversity in programming. This would be a welcome development, but HD radio has yet to become a factor in attracting listeners to commercial stations, and studies show that many already prefer web radio alternatives in automobiles, due to the ease of incorporating mobile devices into vehicle dashboards. Therefore, we believe that innovative programming must occur on the terrestrial stations even before a yet-to-be embraced technology such as HD radio. Improving conditions in regular broadcasting may also drive listeners to planned HD sub-channels, which would surely be a welcome outcome for station owners.
Future of Music Coalition looks forward to opportunities to work with the commercial radio sector, the independent artist and label community and the FCC to identify positive, market-focused ways to make the most of this vital portion of the public airwaves.
Future of Music Coalition
Streamlining US Copyright Law for Sound Recordings is Beneficial to Musicians and the Public
In 2011, the Copyright Office asked for public comment about whether to extend federal copyright protections to sound recordings created prior to February 15, 1972. FMC generally supports this plan, as it would help institutions who preserve our cultural heritage — such as libraries, archives and universities — move forward with maintaining access to these historic works. We also believe that by streamlining our copyright law, today’s creators would benefit from the artistic enrichment that access to these recordings would provide.
The sound recording copyright (such as music captured on tape, wax or hard drive) is relatively new, having been established in 1972. (The composition and/or songwriting copyright goes back to 1831.) That means that music recorded before 1972 exists in a patchwork of local law under which protections may be unclear or non-existent. This makes preservation and access for historic recordings difficult due to questions of who owns what and for how long.
Non-commercial broadcasting and open internet access are twin engines of the new music economy
On March 9, 2011, Billboard chart-topping band the Decemberists sent a letter to Oregon members of Congress in support of public radio and open internet access. The Portland, Oregon band has sold more than 1.25 million records worldwide, in part due to their ability to reach fans via the internet and non-commercial radio.
From National Public Radio to community and college broadcasters to low power FM stations, non-commercial radio is a crucial component of today’s music and arts ecosystem.
A broad array of arts organizations sent the following letter to Congress telling them that cutting funding for non-commercial radio is counterproductive. Signers include Alternate ROOTS, the American Federation of Musicians, Americans for the Arts, American Music Center, the Association of Performing Arts Presenters, Chorus America, Dance/USA, Fractured Atlas, FMC, the League of American Orchestras, the National Alliance for Media Arts and Culture, the National Alliance for Musical Theatre, the National Association of Latino Arts and Culture, the National Performance Network, OPERA America, Performing Arts Alliance and Theatre Communications Group.
From Future of Music Coalition, the National Alliance for Media Arts & Culture and Fractured Atlas
On February 14, 2011, Future of Music Coaition, the National Alliance for Media Arts and Culture and Fractured Atlas sent the following letter to Congressional House leadership, urging them not to broadly repudiate the FCC’s Open Internet Order.
On February 14, 2011, R.E.M., Rebecca Gates, Kronos Quartet, Jill Sobule, Erin McKeown, Thao Nguyen, Alex Shapiro and Charles Bissell sent a letter to Congressional House Leadership urging them not to broadly repudiate the FCC’s Open Internet Order.
FMC Comments to Copyright Office in their Notice of Proposed Rulemaking on the “Gap in Termination Provisions”
Future of Music Coalition filed these comments with the Copyright Office in their Notice of Proposed Rulemaking on the “Gap in Termination Provisions” in the Copyright Act.
The Copyright Office released an analysis acknowledging the “gap” in the termination clause of the 1976 Copyright Act, which foreclosed individuals from dissolving grants made before Jan. 1, 1978 of copyrighted works not created until after that date. The comment also applauds the Copyright Office’s proposal to limit their new “gap” closing regulation, that grants will be read from the date of creation of the copyrighted work, to apply only to works that fell in the “gap.”
FMC Files in USPTO & NTIA Inquiry on Copyright Policy, Creativity and Innovation in the Internet Economy
On November 19, 2010, FMC submitted comments to the United States Patent and Trademark Office (USPTO) and the National Telecommunications and Information Association (NTIA) in their Notice of Inquiry on Copyright Policy, Creativity and Innovation in the Internet Economy.
The comments describe the need to recognize musicians as stakeholders, particularly independents, who faced tremendous barriers to entry in the original music industry. We describe how the goal of protecting intellectual property must be balanced with a legitimate digital music marketplace built on artist access to online platforms.
We also examine current legal, technological and market-oriented efforts around copyright in the digital realm and the pros and cons of each. Given the global demand for music, the non-geographic nature of the internet and individual nations’ sovereign copyright laws, there are tremendous difficulties in implementing potential solutions. Nonetheless, there are compelling reasons to consider frameworks that streamline licensing and improve mechanisms for artist compensation.
On September 17, FMC, NAMAC and Fractured Atlas — collectively the “Arts and Music Amici” — submitted a “friends of the court” brief in the Supreme Court case Arnold Schwarzenegger v the Entertainment Merchants Association (EMA) and Entertainment Software Association (ESA).
In 2005, the California enacted a law prohibiting the sale or rental of violent video games to minors, requiring the video games to bear special labeling for sale in the state. A violation of the act would result in a $1,000 fine for each instance. But the legislation set out a very broad definition of “violent video game,” and attempted to apply an obscenity standard used for sexual content.
FCC Docket 09-191
On October 12, 2010, Future of Music Coalition filed another comment in the FCC’s docket on Preserving an Open Internet. In this phase, the Commission sought comment on issure relating to “managed services” — instances where prioritization of one kind of internet traffic over another would be permitted — and whether the nondiscrimination principle in net neutrality should apply to mobile (or wireless) broadband access.
A response to Clear Channel comments in the FCC's quadrennial review of media ownership rules
On July 26, 2010, Future of Music Coalition filed reply comments in the Federal Communications Commission’s 2010 Media Ownership Review proceedings. Our statement in the original comments phase were filed on July 12, 2010, and can be viewed here. [GN 09-182]
Our reply comments are in response to broadcasting giant Clear Channel’s previous filing, which claims that consolidation in radio station ownership has resulted in greater diversity in programming. FMC’s response includes data from our widely cited 2006 study of rampant consolidation in commerical station ownership following the passage of the 1996 Telecommunications Act. We measurably demonstrate that “format diversity” does not equal “programming diversity,” and point to clear evidence that the interests of local communities are better served by station groups that operate well under the allowable ownership caps.
Musicians and other creators depend on open internet platforms and access to broadband technology
On July 15, 2010 Future of Music Coalition filed comments in the FCC’s Notice of Inquiry in the Matter of a Framework for Broadband Internet Service.
In this proceeding, the FCC is soliciting the perspectives of stakeholders and the public as it considers a “reclassification” of broadband internet service to a different Title of the Telecommunications Act. A new regulatory approach is being evaluated due to a court decision that invalidated the Commission’s previously held legal assumptions regarding its statutory authority over the internet.
Without regulatory clarity, the FCC is unable to prevent discriminatory practices by Internet Service Providers. It also limits the Commission’s ability to implement key provisions in the National Broadband Plan meant would bring affordible, high-speed internet service to underserved American communities.
Our comments demonstrate how musicians — as well as other creators and arts groups — depend on open internet structures to reach potential audiences, grow their businesses and continue enrich our culture. We also cite the availability of broadband service as key to a sustainable 21st century music ecosystem.
For more information on FMC’s perspectives on internet policy, see our Rock the Net campaign.
A look at radio station ownership consolidation in context of the FCC's quadrennial review of media ownership rules
On July 12, 2010, Future of Music Coalition filed comments in the Federal Communications Commission’s 2010 Media Ownership Review proceedings. [GN 09-182]
Our remarks focus on the history of consolidation in radio station ownership in the wake of the 1996 Telecommunications Act, and its impact on the FCC’s goals of localism, competition and diversity on the public airwaves. The comments utilize data from a number of FMC studies on the radio industry, all of which can be viewed here. They also make specific recommendations about ways that the FCC could advance its goals while nurturing for a robust commercial radio environment with more opportunity for musicians to be heard.
Future of Music Coalition filed these reply comments with the Copyright Office in their Notice of Public Inquiry on the “termination of transfer” of copyrights.
Under the 35-year reversion terms of the 1976 Copyright Act, copyrights made after Jan. 1, 1978 are eligible to once again become the creator’s property. The comments also address the so called “gap” in the termination clause, in which songs composed under exclusive songwriting aggrements with publishers may fall in between the 56-year termination provisions of the previous 1909 Act and the 35-year terms of its 1976 successor.
In the matter of the Federal effort against intellectual property infringment via the Joint Strategic Plan
Comments of Independent Creator Organizations in FCC Notice of Proposed Rulemaking on Preserving an Open Internet
Groups underscore the importance of net neutrality to a legitimate and competitive digital marketplace
On January 14, 2010, a broad array of independent creator organizations, including Future of Music Coalition, filed comments in the FCC’s Notice of Proposed Rulemaking on Preserving an Open Internet. The comments demonstrated the need for enforceable net neutrality rules to ensure that all creators — regardless of size, affiliation or category — can compete in a legitimate digital marketplace.