Official Filings

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.

November 3, 2011

FMC and Center for Creative Voices in Media (CCV) File Joint Amicus Brief in Fox v. FCC

No. 10-1293

This case is based on televised expletives aired on the 2002 and 2003 Billboard Music Awards broadcasts. Originally, the FCC determined that the utterances, whether intentional or not, were indecent after a slew of complaints were sent to the commission. During such an evaluation, the FCC queries whether the utterances “depict[ed] sexual or excretory organs or activities.” Fox appealed the ruling, and the Supreme Court held that the FCC’s ruling should stand because it was not “arbitrary and capricious” (in non-legalese that just means the FCC didn’t act crazy). When the Supreme Court sent the ruling back down to the Second Circuit Court of Appeals, those New York-based justices declared the indecency policy so vague that it unconstitutionally restrained speech. On its second trip up to the highest of high courts, we should get a final answer as to whether the FCC’s indecency policy will stand.

Like FMC’s previous amicus briefs from July 2008 and September 2009, this filing demonstrates the “vague and arbitrary” nature of the FCC’s current indecency policy. The result of this policy has been a chilling effect on creativity on the public airwaves, due to broadcasters’ fears of getting fined for airing “offensive” content. For example, Ken Burns’ WWII documentary “The War” was aired in two different versions to satisfy PBS affiliates worried about possible FCC sanctions. Creators are left guessing what constitutes indecent material, which leads to self-censoring and ultimately deprives the public (and artists) of access to a variety of worthwhile content.

Official Filing
September 6, 2011

FMC, Prometheus Radio and United Church of Christ's LPFM Comments to FCC

Comments advise FCC on implementation in its Low Power FM rulemaking

MM Docket No. 99-25
MB Docket No. 07-172
 RM-11338

On September 6, 2011, Future of Music Coalition, Prometheus Radio Project and the United Church of Christ Office of Communications offered the following comments (PDF) to the Federal Communications Commission (FCC) on the implementation of rules to provide expanded Low Power FM (LPFM) service to more American towns and cities.

Official Filing
August 10, 2011

Bonerama Letter to the Louisiana Congressional Delegation

Band tells Congress: support public radio

On August 10, 2011, the New Orleans-based brass-funk-rock band Bonerama sent a letter to the members of the Louisiana Congressional Delegation in support of National Public Radio and their local affiliate, WWOZ.  Public radio’s support over the years has been instrumental in the band’s success, just as it has for many developing artists across the country.  Download a PDF of the letter below.

Members of the Louisiana Congressional Delegation,

We, the members of Bonerama, are writing in support of National Public Radio and non-commercial radio.  National Public Radio is a principal vehicle for fostering the growth of local music communities and helps to maintain the vitality of American Arts and Culture.  NPR has been instrumental in delivering the unique sounds of our hometown of New Orleans to music enthusiasts across the country year-round. Without this kind of exposure, the musicians of Louisiana would not be able to expand their networks and grow their brands and businesses.

Bonerama is a trombone jazz funk and rock band that formed in New Orleans in 1998. The individual members of the band originate form all across the country, but were drawn together by the spirit and soul of New Orleans. The band gained a regional audience through its residency at Tipitina’s in the French Quarter. This original gig allowed Bonerama to begin to tour and eventually release three live albums.  In 2008, the band teamed up with indie pop stars OK Go for the EP You’re Not Alone, to raise money for New Orleans musicians displaced by Katrina.  Last year, we released our first studio-recorded EP, Hard Times.  Hard Times includes a cover of Led Zeppelin’s “When the Levee Breaks,” as well as the song “Lost My House,” which is a true account inspired by the levee failures of 2005. Hard Times received significant local press and was brought to the attention of national audiences through NPR.  In April, NPR featured Bonerama on a compilation of bands as a lead up to the 2011 New Orleans Jazz and Heritage Festival.

The music of Louisiana maintains its vibrant nature due to deep cultural roots and the individual communities that grow from those roots. Public radio in Louisiana is the number one platform for delivering and developing local artists that continue to build upon the history and traditions that precede them.  WWOZ, the New Orleans Jazz and Heritage Station, is a prime example of such a public radio station. Over the last few years, NPR has paired with WWOZ to provide nationwide coverage of the Jazz Festival, and bring the sounds of Louisiana to listeners across the country.

Bonerama is essentially a small business making a living off our local export, Louisiana culture and music. Public radio and NPR has been the largest promotional device for our business and Louisiana music and culture as a whole. If Congress votes to limit federal funding for NPR and non- commercial radio stations, small local stations that are in true need of such funding will have to cut jobs. The ability to program and feature a multitude of rising diverse local artists will be limited and national exposure to Louisiana music and culture will be diminished. As working musicians with close bonds to the community, Bonerama believes that the de-funding of public radio would cause a debilitating blow to both the culture and economy of our great state of Louisiana.

Thank you for your time,
Craig Klein
Mark Mullins
Greg Hicks
Bert Cotton

Bonerama
  

Official Filing
July 14, 2011

Letter to the FCC Encouraging Investigation of ISP Data Cap Policies

Re: A National Broadband Plan for Our Future, GN Docket No. 09-51

FMC, et al.

Future of Music Coalition, Public Knowledge and New America Foundation’s Open Technology Initiative sent a joint letter to Chairman Julius Genachowski of the Federal Communications Commission on July 14, 2011.  The letter is a request to investigate the data cap policies of all ISPs, as recent anecdotal evidence suggests inconsistencies in polices around and enforcement of data caps on broadband connections.  The signees believe that such data cap policies, when unchecked and inconsistent, run contrary to the values and goals of the National Broadband Plan and its’ support of cloud-based applications and computing.

Official Filing
June 22, 2011

FMC Joins Supreme Court Brief in Golan v. Holder

Amicus brief cites importance of public domain to creators

FMC, et al

In June 2011, FMC signed onto an amicus (friend of the court) brief in Golan v. Holder, a case currently pending at the Supreme Court. The case challenges Congress’s implementation of the Uruguay Round of Agreements Act (URAA), which removes some works created by foreign authors from the US public domain and restores their copyright protections. Congress enacted this law in order to comply with an international trade agreement called the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

Co-signers include such groups such as the American Music Center, Chorus America, Fractured Atlas, the National Association for Media Arts and Culture, the National Alliance for Musical Theatre, and the National Performance Network, as well as academics and individual creators like Jonathan Lethem and Michael Chabon.

In Golan v. Holder, numerous parties (including orchestra conductors, educators, performers, publishers, film archivists and motion picture distributors) challenged the provisions of the URAA that remove works from the public domain. They argue that Section 514 of the URAA is unconstitutional because it violates their First Amendment rights of free expression. When the foreign works were in the public domain, these parties were free to use them in performances, incorporate them into their own projects, or use them as building blocks to create new works. When the URAA removed the works from the public domain, these “reliance parties” (authors who relied on those works being free to use) were left with few options. Basically, they could either refrain from using the foreign works or pay for the use they originally believed would be free.

FMC believes that the public domain is important to musicians and other creators and performers who draw upon the public domain for their own creative expression. If the Supreme Court decides that Congress can take works out of the public domain, it could set a precedent for future attempts to further deplete it.

Official Filing
July 9, 2011

My Morning Jacket Letter to Kentucky Congressional Delegation

Band tells Congress: protect noncommercial radio and preserve accessible, open internet

My Morning Jacket

On June 9, 2011, My Morning Jacket — who are celebrating the recent release of their latest album, Circuital — sent a letter to members of Congress’ Kentucky delegation sharing their thoughts on why noncommercial radio and an accessible, innovation-driven internet are so crucial to their band (and today’s music industry in general). Download a PDF below.

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Dear Members of the Kentucky Congressional Delegation:

We are writing to you as members of My Morning Jacket and as proud citizens of Kentucky. As musicians, we are concerned about a number of issues that we, and other contributors to Kentucky’s artistic economy, are currently confronting. In order to continue producing original creative work, our community requires access to the Internet and a supportive broadcast media. We are concerned with recent Congressional activity around these crucial platforms and urge you to consider the impact of your decisions on the creative sector.

By way of introduction, we are a musical group formed in 1998 in Louisville, Kentucky. We released our first album the following year. In the ensuing years, our music has been featured in films and television and we have toured the world and played to crowds numbering in the tens of thousands. In May, we released our sixth full-length studio album, Circuital. We are happy to report we just learned the album debuted number 5 on the Billboard album charts. To celebrate the release, we have been playing a series of shows around the country and donating a portion of our ticket sales to local charities. We started as a small local band in Louisville and have grown into a successful small business that employs a dozens of people and allows us to tour and sell records throughout the world.

Our ability to build a fan base at home and abroad was — and still is — dependent to a large degree on the Internet. The Internet has changed how musicians connect to their listeners — from online stores, to streaming sites like Pandora and Rhapsody, to social networking sites like Facebook and Twitter. These are resources that help us reach our fans and sell our product so that we generate revenue for our employees and ourselves. These outlets are absolutely essential to us and to every working musician today.

Technology (and for that matter, the entire music business) is constantly evolving. We believe it is of paramount importance to preserve the Internet as an engine for creativity and commerce. We think there should be basic rules to ensure that there is a legitimate digital music marketplace for Kentucky’s musicians now and going forward. Open access to the web and its innovations is crucial to our band, our community and Kentucky’s future artists.

As helpful as Internet technologies are, we still also depend on traditional technologies like radio. In particular, public radio has been a champion of our band and many other Kentucky acts. Having our song played on public radio is essential to the growth of our band and business, and it is essential for thousands of artists that rely on the exposure generated by NPR and non-commercial radio stations. Eliminating funding for public broadcasting would be hugely damaging to working musicians, not to mention having a negative impact on local economies.

It is our belief that funding public broadcasting and maintaining open Internet access are two essential components in nourishing the vital music scene in the state of Kentucky.

As Kentuckians, musicians, and small business owners, we urge you to preserve the things that are most critical to our ability to make a living from our music: the Internet and non-commercial radio.

Sincerely,

Jim James
Tom Blankenship
Patrick Hallahan
Bo Koster
 Carl Broemel

My Morning Jacket

Official Filing
May 31, 2011

FMC and Public Knowledge Petition the FCC to Deny AT&T/T-Mobile Merger

On May 31, 2011, FMC teamed up with Public Knowledge to file an official petition to deny the AT&T/T-Mobile merger on behalf of both the music community and the overall public interest. In it, we argue that the merger will create “a vertically integrated telecommunications colossus” that could stymie competition as it and Verizon would control roughly 80% of the market. Because the AT&T 2.0 behemoth will be “in a unique position to frustrate the Commission’s goals of encouraging disruptive innovation and promoting an open Internet,” we argue the FCC should block the merger. It is in our opinion that the future success of AT&T and T-Mobile is not dependent joining forces, and the marketplace will remain more competitive and beneficial to users if it is stopped.

For the full filing, click the attachment below.

Official Filing
May 6, 2011

FCC Ex Parte re: Cumulus-Citadel Merger

Ms. Marlene Dortch
Secretary
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.

Respectfully Submitted,

 

                                                                                      Future of Music Coalition

Official Filing
April 13, 2011

Future of Music Coalition Reply Comments in Copyright Office Pre-1972 Sound Recordings Inquiry

Streamlining US Copyright Law for Sound Recordings is Beneficial to Musicians and the Public

Future of Music Coalition

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.

Official Filing
March 9, 2011

The Decemberists Send Letter to Congress in Support of Access and Innovation for Creators

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.

Official Filing
March 8, 2011

Letter to Congress from Arts Organizations in Support of 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.

–––––-

Official Filing
February 14, 2011

Letter to Congress in Support of FCC Open Internet Order

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.

Official Filing
February 15, 2011

Artist Letter to Congress in Support of 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.

Official Filing
January 24, 2011

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.”

Official Filing
November 19, 2010

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.

Official Filing
October 12, 2010

FMC Files in Supreme Court Violent Video Games Case

On September 17, FMCNAMAC 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. Our argument is based primarily on the objection that the statute itself is impermissibly vague and therefore unconstitutional. We also point out that the lack of specificity with regards to the methods and means of content distribution in the California statute is of tremendous concern for creators and producers of all media. Today’s musicians are essentially small businesses that often distribute directly to consumers via the web. Therefore, an overly broad set of content-based restrictions that fails to clearly outline who is liable could put even those entrepreneurs working out of their basements on the hook for huge damages.

 

Official Filing
October 12, 2010

FMC Filing on Net Neutrality, "Managed Services" and Nondiscrimination in Mobile Broadband

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.

Official Filing
July 26, 2010

FMC 2010 Media Ownership Review Reply Comments

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. 

Official Filing
July 15, 2010

FMC Comments in the FCC's Broadband Legal Framework Proceedings

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.

Official Filing
July 12, 2010

FMC 2010 Media Ownership Review Comments

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.

Official Filing