FMC's Kristin Thomson Talks Indie Access on Mediageek Radioshow

On Tuesday, July 9, FMC's Kristin Thomson — author of "Same Old Song," FMC's latest report(s) on indie music on the airwaves, gave an interview on the Mediageek Radioshow.

Mediageek is a weekly half-hour syndicated public affairs radio show covering grassroots and independent media, as well as the policy, laws and economics that affect our ability to communicate freely and accurately. The program is hosted and produced by Paul Riismandel at WNUR 89.3 FM on the campus of Northwestern University in Evanston, IL, and is heard throughout Chicago and the northern suburbs.

Kristin talked about "Same Old Song: An Analysis of Radio Playlists in a Post FCC-Consent Decree World" — a data-driven study that analyzes radio playlists from 2005-2008 to determine whether the policy interventions resulting from the recent payola investigations have had any effect on the amount of independent music played on terrestrial radio. FMC recently released the New York State-centric edition of the report, which can be seen here.

Listen to the Mediageek interview with Kristin here.

FMC Releases New York State-Specific Playlist Study

Back in May, we told you about "Same Old Song: An Analysis of Radio Playlists in a Post FCC-Consent Decree World" — a data-driven study that analyzes radio playlists from 2005-2008 to determine whether the policy interventions resulting from the recent payola investigations have had any effect on the amount of independent music played on terrestrial radio.

You see, we wanted more than anecdotal evidence that commercial radio doesn't play much independent or local music (despite "voluntary agreements" between four major broadcasters implicated in the payola investigations and the American Association of Independent Music). "Same Old Song" examines four years of airplay – 2005-2008 – from national playlists and from seven specific music formats: AC, Urban AC, Active Rock, Country, CHR Pop, Triple A Commercial and Triple A Noncommercial. FMC calculated the “airplay share” for five different categories of record labels to determine whether the ratio of major label to non-major label airplay has changed over the past four years.

As it turns out, there hasn't really been any change in the amount of indie music on commercial radio, which seems kind of weird when you see bands like Grizzly Bear taking up the eighth slot on the Billboard Top 200. But you don't often hear even the bigger indie acts like Spoon or Arcade Fire on commercial radio, even though they're on TV and movie soundtracks and the covers of magazines (yes, those still exist), etc. Clearly there's demand for this music, so why is there so little of it on the commercial dial?

Our radio playlist studies aim to provide some insight.

Yesterday, we released a New York State-centric version of "Same Old Song," which comes to a nearly identical set of conclusions as the original report. Why did we crunch the data for NYS stations? Because that's where the whole payola investigations of the early aughts began.

In July 2005, then-New York State Attorney General Eliot Spitzer announced the results of the Office’s examination of the relationship between major labels and commercial broadcasters. “Our investigation shows that, contrary to listener expectations that songs are selected for airplay based on artistic merit and popularity, airtime is often determined by undisclosed payoffs to radio stations and their employees,” Spitzer said as he announced the findings and settlement with the record label Sony BMG. “This agreement is a model for breaking the pervasive influence of bribes in the industry,” he continued, referring to Sony BMG’s agreement to stop making payments and providing expensive gifts to radio stations and their employees in return for airplay for the company's songs. In the following months, Spitzer announced additional settlements, eventually collecting more than $35 million in fines from the four major record labels and two radio station groups.

After completing its investigations, the Attorney General’s office sent its evidence to the Federal Communications Commission. Two years later, in April 2007, the FCC issued consent decrees against the nation’s four largest radio station group owners – Clear Channel, CBS Radio, Citadel and Entercom. In addition to paying fines totaling $12.5 million, the station group owners also worked with the American Association of Independent Music (A2IM) to draft eight “Rules of Engagement” and an “indie set-aside” in which these four group owners voluntarily agreed to collectively air 4,200 hours of local, regional and unsigned artists, and artists affiliated with independent labels.

The New York State edition of "Same Old Song" focuses on playlist data from 52 music stations licensed in New York State, broadcasting in a variety of formats, from 2005-2008. Like the earlier, national study, the new report shows that independent labels — which comprise some 30 percent of the domestic music market — are left to vie for mere slivers of airtime, despite negotiated attempts to address this programming imbalance.

You can check out "Same Old Song: NYS Edition" here, in both full report and Executive Summary form.

And the original "Same Old Song" report can be viewed here.

Genachowski Confirmed as FCC Chair, Starts Monday?

We're super busy on this Friday afternoon, but we wanted to get it in the official FMC record (or at least this here blog) that the Senate voted Thursday evening to confirm Julius Genachowski — President Barack Obama's nominee to lead the Federal Communications Commission.

Ars Technica:

There's just one more step to go for the new boss. The White House must now formally make the Genachoswki appointment, but that's a done deal. "We expect him to be sworn in and start by Monday," an FCC spokesperson told Ars. Genachowski worked at the Commission in the 1990s as a senior advisor, then ran a variety of media ventures through the Bush years.

Genachowski and Obama go back a ways — they were Harvard classmates, and the Chief-to-be was instrumental in the Obama campaign's digital strategy. Genachowski has also worked as a venture capitalist and internet executive, so he's clearly familiar with that "series of tubes" known as the worldwide web. (Maybe he'll get 'em started on a more user-friendly FCC website?)

We're sure we'll be talking about this appointment (as well as the remaining Commission seats) in the future, but for now, we'll just say congratulations, Mr. Chairman.

Good News for Low Power FM!

Not only is it Friday (woohoo — the weekend!), but here at FMC we just got word that the U.S. Court of Appeals for the DC Circuit issued an important decision in support of Low Power FM radio. (Click here for the full PDF of the ruling.)

Just to catch up, LPFM stations are community-based, non-commercial radio broadcasters that operate at 100 watts or less and reach a radius of 3 to 7 miles. LPFM provides a platform for underserved musical genres, minority, religious and linguistic groups and offers a forum for debate about important local issues. LPFM also has a crucial role to play in disseminating public information for the welfare and safety of local communities. Did we mention that it’s great for local artists who rarely have a shot at getting airplay on their local commercial station?

If LPFM is so great (and it is), why don’t we have more stations like this? Well, earlier in the decade, the National Association of Broadcasters (NAB) – who represent commercial radio interests – successfully lobbied Congress to restrict LPFM stations to smaller communities, claiming that these stations’ tiny signals would cause “oceans of interference” with their own megawatt stations. These restrictions were embodied in the Radio Broadcasting Preservation Act of 2000. The Act limits community organizations’ ability to get LPFM licenses, and makes LPFMs secondary to full power stations. This means they are subject to getting knocked off the air if a full power station moves into the LPFM’s community.

In December 2007, the FCC revised some of it rules and policies in order to protect LPFMs from full-power FM stations that encroach onto the space currently occupied by existing LPFMs. The NAB filed a petition for review of these modifications, claiming they reduce the protections afforded to full power stations and violate the Radio Broadcast Preservation Act.

In a small, but decisive victory for existing LPFM stations, the U.S. Court of Appeals, DC Circuit dismissed the NAB’s petition for review and upheld the FCC’s December 2007 decision to protect LPFM stations. The DC Circuit held that the Radio Broadcast Preservation Act of 2000 did not prevent the FCC from taking measures to protect LPFM stations. Therefore, the FCC’s decision to modify its regulations to protect LPFM stations from encroachment by full-power stations was well within their authority. As the FCC has been a long-time supporter of LPFM, it’s great to have confirmation that the Commission can make decisions about how to protect these small but important broadcasters.

Now for some of that exciting legal detail. We completely understand if you wanna skip this section, but the Court’s ruling has some interesting aspects, so here ya go:

In their petition, the NAB also claimed that part of the FCC’s revised rules would result in the Commission “regulating content.” Here’s the background to their claim: the 2007 FCC modifications established a “presumption” in favor of LPFM stations when a new, full-power FM station and an existing LPFM station begin broadcasting too close to one another in violation of FCC minimum distance requirements (the space between stations that limits signal interference). Essentially, if the existing LPFM station has nowhere to move, but regularly provides “at least eight hours per day of locally originated programming,” the FCC will presume the public interest favors the LPFM station, and will not shut it down. The new, full-power FM station, however, is free to rebut this presumption.

The NAB claims that this presumption allows the FCC to regulate content by favoring local-oriented content over national-oriented content. The DC Circuit held that the FCC presumption in favor of “locally originated programming” is not equivalent to content-based regulation. In the absence of any other evidence from the NAB that the FCC would use the presumption to control content, the court said this issue was “unripe,” which is an odd little legal term that might as well mean “undercooked.”

Overall, the District Court’s decision was a strong one in favor of LPFM. Hopefully it will provide some incentive for Congress to adopt the Local Community Radio Act of 2009, which will be heard by the House Communications, Technology and Internet Subcommittee on June 11. We'll be there to report on the proceedings, so stay tuned. . .

FMC Releases "Same Old Song" Playlist Analysis Report

Have you ever been scanning through the music rags at your local bookstore/music retailer/coffee emporium/tchotchke outlet and wondered, “why do I never hear this band that’s on the cover of all of these magazines on my local radio station?”

We’ve scratched our heads about this, too.

There are quite a few independent acts out there that are successful by pretty much any other measure — they sell out venues, play Saturday Night Live, can be heard on movie soundtracks, TV shows and commercials yet never seem to crack commercial radio playlists. After a while you start wondering if there’s a reason. Turns out there is – it’s just sort of complicated.

But don’t worry — FMC lives to sort this stuff out. To that end, we’ve just released a major new study of what gets spun on radio called “Same Old Song: An Analysis of Radio Playlists in a Post FCC-Consent Decree World.” Before we get into the results of this data-driven report, let’s look at some of the history. (If you wanna dive in, click here).

“Same Old Song” analyzes radio playlists from 2005-2008 to determine whether the policy interventions resulting from the recent payola investigations have had any effect on the amount of independent music played on terrestrial radio. Back in 2007, Federal Communications Commission issued consent decrees against the nation’s four largest radio station group owners – Clear Channel, CBS Radio, Citadel and Entercom – as a response to collected evidence and widespread allegations about payola influencing what gets played on the radio. In addition to paying fines totaling $12.5 million, the station group owners also worked with the American Association of Independent Music (A2IM) to draft eight “Rules of Engagement” and an “indie set-aside,” in which these four group owners voluntarily agreed to collectively air 4,200 hours of local, regional and unsigned artists, and artists affiliated with independent labels.

Using playlist data licensed from Mediaguide, FMC examined four years of airplay – 2005-2008 – from national playlists and from seven specific music formats: AC, Urban AC, Active Rock, Country, CHR Pop, Triple A Commercial and Triple A Noncommercial. FMC calculated the “airplay share” for five different categories of record labels to determine whether the ratio of major label to non-major label airplay has changed over the past four years.

Guess what? The number crunching indicates almost no change in station playlist composition the four years we examined. Specifically, the national playlist data showed little measurable change in airplay share from 2005-2008, with major label songs consistently securing 78 to 82 percent of airplay. There was a slight increase in airplay for indies on a few formats (Country and AAA Non-Commercial, in particular) but otherwise the data from year to year stayed pretty much the same.

But we didn’t just look at these big meta trends — we dug in and also examined airplay by release date. This showed that many formats leave only small portions of their playlist for new material, with current songs sprinkled in among well-worn hits. While such programming choices might make sense for a given station’s target audience, the outcome is that there are very few spaces left on most airplay charts for new music. Looking specifically at airplay for new releases, we found that new major label songs typically receive a higher proportion of spins than new indie label songs. Finally, we looked at the indie labels themselves, and found that only a handful have enough resources and clout to garner airplay consistently. For the remainder of indies, airplay is infrequent and modest, if it happens at all.

The fact that indies are still having a tough time getting airplay is something a recent survey of A2IM independent label members indicated in a more anecdotal way. The major labels’ built-in advantage, combined with radio’s risk-averse programming practices, means there are very few spaces left on any playlist for independent labels, which comprise some 30 percent of the domestic music market. Remember, this is after well-intentioned (if nonspecific) attempts to address this imbalance.

So what’s the take-away? How might the situation between radio and indies be improved? Our new report offers a handful of policy recommendations that might prove useful to the FCC’s oversight of the airwaves and improve the radio landscape for both listeners and the broader music industry. In particular:

1. Improve Data Collection

The radio and music industries participate in and employ some of the most robust and timely data monitoring systems available. There are private companies that measure audiences, that keep track of radio ownership transactions, market share and revenues, that track retail sales and box office grosses, and at least three services that monitor what is being played on commercial and noncommercial radio. Many radio stations, music labels and advertisers subscribe to these services so they can get up-to-the-minute information about their own activities, and those of their competitors.

In other words, radio stations are already very data rich. What’s now required is the political will and organizational capacity at the FCC to determine what questions need to be asked, how frequently, and of whom, and then to seek out or collect the information it needs to be an effective regulator. Nonprofit organizations like FMC have been conducting much of this oversight work on behalf of the public interest, but clearly the FCC needs to play a greater role. The FCC could acquire data from commercial sources, or it could request data from stations as part of their responsibilities as broadcast licensees, or some of both. Regardless of the method, the FCC needs to clarify its oversight role, then rigorously and consistently monitor what’s happening in radio in order to craft more effective policies and enhance accountability.

2. Refocus on Localism

Both anecdotal and empirical evidence indicate that commercial radio has become a risk-averse media that employs cookie-cutter formats across many radio properties. In recent months, commercial radio has also been the source of layoffs and downsizing as it struggles with both reduced ad revenue and huge debt loads racked up during the station buying spree following the passage of the 1996 Telecommunications Act.

The radio industry is clearly in crisis. Stations have lost touch with their local markets, but unfortunately, the industry seems to have responded by pushing for greater consolidation and syndication. FMC believes this is the wrong way forward, as radio’s chief advantage in the modern media landscape is “live and local.”

We join others in the media reform movement – and many in the radio industry itself – in calling for commercial radio to regain its local foothold and build programming in which serving its local community is its primary goal. We also simultaneously call on the FCC to revisit the localism proceeding and design clear guidelines about how to measure whether its licensees are honoring their obligations to the communities in which they operate.

We know that locally oriented programming isn’t as cost-effective as running a station using pre-programmed playlists and automated DJs, but it is radio’s strongest asset in an increasingly saturated media environment. FMC and our partners have engaged in pilot projects with small commercial operators to determine best practices for engagement between programmers and the independent sector to set goals and identify mutually beneficial marketplace solutions, and we hope that these projects help us to convey information that other stations can use in the future.

3. Expand the number of voices

This report also shows us that major swaths of the music economy aren’t currently represented on commercial radio. It outlines the many structural barriers to airplay for all types of labels, but for independent musicians in particular. Using other metrics to measure the profile of some indie artists, including retail and digital sales, TV appearances, large live shows, and licensing deals that place their songs in movies, video games and in ads, the lack of airplay on commercial radio for the same artists seems counterintuitive. Independent music belongs on commercial radio and is just as vital as the music currently receiving heavy airplay. Changing the prevailing culture at commercial radio will take a concentrated effort with all parties working in good faith basis; identifying structural barriers to airplay in this report represents part of this ongoing effort.

Finally, this also moment in time when the government can make a conscious effort to expand the number of broadcasters in this country. The passage of legislation to allow Low Power FM in more American towns and cities would provide local groups and organizations with an opportunity to serve their communities.

Feel free to let us know what you think!

FCC Gets its Data On?

This morning, FMC staff attended an "Open Agenda" meeting at the Federal Communications Commission that outlined steps the agency would take to expand broadband, determine competition in the video marketplace and collect data on female and minority ownership among broadcast station owners.

If there was one theme to emerge from the meeting, it was the need for the agency to do a better job of collecting and analyzing data on the industries it's charged with regulating. (This is something many public interest groups — including FMC —have been saying for years.)

"If we're to be a data-driven agency, we need to do a better job of collecting the data," said acting Chairman Michael J. Copps. "Right now, we don't have a clue." He described the past several years at the agency as "a period of benign — or to some, not so benign — neglect," stating that timely and efficient data collection is crucial to effective policy.

Members of the FCC leadership often speak publicly about the agency's commitment to promoting "localism, competition and diversity" on the public airwaves, so it was good to hear Copps describe how the FCC could add meat to those worthy bones. Commissioner Jonathan Adelstein echoed this sentiment, saying that better methods of data collection and analysis is "someting I've been begging for for years."

The Commissioners were speaking specifically about a national strategy for getting affordable broadband to more Americans, and the need to ensure diversity in the broadcast media landscape. But we at FMC think it applies to music, too, which is why we've spent so much time examining the nuts and bolts of the commercial radio marketplace to determine whether it serves communities, artists and the listening public.

Having observed trends in terrestrial radio since the turn of the millennium, we realize two things: a) consolidation in station ownership after the 1996 Telecommunications Act has led to a loss of independent owners and local control over programming decisions at commercial stations, and b) pay-for-play schemes like payola have made it incredibly difficult for non-major label talent to score commercial radio play. (For more info, check out these FMC research reports, past and present: Radio Deregulation: Has It Served Citizens and Musicians?, False Premises, False Promises: A Quantitative History of Ownership Consolidation in the Radio Industry, the Payola Education Guide and "More Static: Independent Labels and Commercial Airplay.")

We also understand the importance of quality information to the agency responsible for overseeing the broadcast industry. Without it, there's really no way to measure the effects of public policy. Groups like FMC do our best to fill in the gaps — our anticipated playlist tracking report that looks at indie spins on commercial radio comes out on April 20 — but there's no replacement for having an independent agency like the FCC collect and anylyze their own data. We hope today's meeting is a step in that direction.

As Copps himself said today, "We can't make fact-based decisions without timely, reliable data." In other words, data rocks.

A2IM's Rich Bengloff in Huffington Post

If you've been following FMC's work, you've no doubt heard us talk about the American Association of Independent Music (A2IM) — a forward-looking non-profit organization that represents a broad coalition of independent labels.

A2IM has gone to bat on a number of important issues, including making commercial radio friendlier to independent artists — an effort FMC wholeheartedly supports. In fact, we recently collaborated with A2IM on a report about how indie labels are still having difficulty getting airplay on commercial radio a year after the "Rules of Engagement" with major station groups. (These voluntary agreements were a result of 2006-2007 payola investigations; for more info see our Payola Education Guide.)

On January 15, A2IM President Rich Bengloff published "An Indie Music Memo to the FCC: We Need a Level Playing Field Too" at the Huffington Post. The article calls on the Commission to recognize the indie sector's contribution to the music economy (around 30 percent of all domestic music sold), and says that access to the digital marketplace is crucial to indie artists and labels. That means net neutrality — the principle that protects the open internet — must be preserved. (For more info on net neutrality and the music community, visit FMC's Rock the Net page.)

Bengloff also underscores the need to properly compensate musicians for their creative efforts:

Everyone who embraces the digital model now has access to a global market and can compete. Intellectual Property in general, and music specifically, are big contributors to our economy -- and to our culture. Making certain that open and fair access to market is maintained while supporting fair compensation for the use of music is the worthwhile and achievable goal.

That pretty much hits the nail on the head. Achieving this goal isn't exactly easy, but you can count on groups like A2IM and FMC to keep working towards it nonetheless. You could say the future of music depends on it!

Kevin Martin Resigns From FCC

Current Federal Communications Commission Chair Kevin Martin just announced his resignation from that agency, which wasn't entirely unexpected. Martin will step down on Inauguration Day (January 20), and then join DC-based nonpartisan think tank the Aspen Institute.

Martin's predecessors at the FCC — Democrats Reed Hundt and William Kennard and Republican Michael Powell — were each Aspen Institute Fellows following their tenure at the Commission.

Martin's leadership of the FCC was sometimes controversial, particularly in matters relating to media ownership and the regulation of the cable industry. Yet many found Martin's stint to be less troubling than that of his immediate predecessor Michael Powell, who unsuccessfully pushed for further deregulation of media, including radio. FMC worked alongside other groups in both the 2003 and 2007 media ownership proceedings to hold the line on radio station ownership, urging the Commission to uphold its stated commitments to localism, competition and diversity on the dial.

It was recently announced that Julius Genachowski has been chosen by President-Elect Obama to head the FCC. A tech-policy veteran, Genachowski will likely have different views than Martin on key issues like media ownership and net neutrality.

To learn more about how changes in the policy landscape could impact the music community, check out our third D.C. Policy Day — which takes place at the National Geographic Society in Washington on February 11, 2009. Musician scholarships are available — click here for more info!

A New Chair at the FCC?

There's a lot of talk in Washington (and elsewhere) about President-Elect Barack Obama's apparent choice of tech-policy veteran Julius Genachowski as the next Chair of the Federal Communications Commission.

Genachowski previously served as chief counsel for Clinton-era FCC chairman Reed Hundt, and is a former Harvard classmate of Obama's. He was instrumental in the campaign's digital strategy, which included the use of social networking and other online outreach tools to build and sustain momentum. Genachowski has also worked as a venture capitalist and internet executive, so he's clearly familiar with that "series of tubes" known as the worldwide web.

The Washington Post ran a brief item about the Genachowski pick today (January 13). Soon, the story was picked up by the Wall Street Journal, the L.A. Times, and Ars Technica, to name a few.

During the Obama campaign, Genachowski helped formulate the candidate's positions on media ownership and net neutrality, so it's safe to say these perspectives would inform his role as Chair. Still, it's far too early to speculate on what a Genachowski-led FCC will ultimately look like — especially with other Commissioner seats still being sorted out.

We'll definitely be watching to see how this comes together, and as always, we'll do our best to keep you informed about what it might mean to the music community. If you're looking for some up-close insights about how changes in the policy landscape could impact creators and fans, you'll definitely want to attend our third D.C. Policy Day on February 11. Musician scholarships are available — click here for more info!

Talkin 'Bout the FCC

With a new federal administration on its way, there's been a lot of talk about possible changes at the Federal Communications Commission — the agency charged with regulating the public spectrum (including television and radio broadcasting), as well as "interstate telecommunications" (like the phone lines, radio and cable). Increasingly, the FCC is called upon to deal with internet issues like net neutrality. So you can see why people are paying attention to how things shake out over there.

Some, like law professor Lawrence Lessig, have advocated for scrapping the FCC and replacing it with an innovation-oriented agency. Others have called for a more measured approach. On January 5, 2009, the Washington group Public Knowledge co-presented (with Silicon Flatirons) "Reforming the Federal Communications Commission"— a conference that examined the agency's history while discussing its possible future.

Now, Public Knowledge and has launched a website "to provide information and solicit your suggestions about what changes need to take place at the FCC for the agency to restore the public’s confidence that it will meet its legal obligation to promote the 'public interest, convenience and necessity.'"

The site contains papers and opinions from leading minds in the field. It's pretty wonky stuff, but there's tons of good information about how the FCC can better serve the public interest while allowing for marketplace innovations.

So what does any of this have to do with music? Plenty, actually. Whether its the airwaves or the internet, artists need to be able to reach potential audiences. That's why FMC has worked to fight consolidation in radio station ownership and stop payola, both of which have kept too much talent off the dial. And it's why we support net neutrality, which lets all artists — established or developing — compete on a level online playing field with the biggest companies.

FMC wants more artists to be able to connect with more listeners, so we look at changes in the policymaking landscape as an opportunity to get some stuff right on behalf of musicians. If you want to know more about these issues, you should check out our D.C. Policy Day on February 11, 2009. As always, we're offering musician scholarships — click here to apply. And stay tuned for more news about this exciting event!

FMC on FCC's Comcast Decision

As you probably heard, the Federal Communications Commission voted 3-2 last Friday that, according to the official FCC statement (PDF), "Comcast’s network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet." The Commission's decision ordered Comcast to stop interfering with legal internet traffic, disclose to the FCC its network management practices and to alert consumers to any future changes.

The decision followed FCC investigations into allegations that Comcast blocked access to legal peer-to-peer content by interrupting connections between users’ computers. The story first broke when the Associated Press tested Comcast's national networks, confirming the interruption of legal content sent using BitTorrent. This immediately raised questions about whether Comcast had violated the FCC's stated net neutrality principles that "consumers are entitled to access the lawful Internet content of their choice; that they are entitled to run applications and use services of their choice; that they are entitled to connect their choice of legal devices that do not harm the network."

The FCC's also says that the above is "subject to reasonable network management," which they haven’t explicitly defined. Still, Comcast’s behavior — which invited ire from many a public interest group — was found by the Commission to be unreasonable.

You can read our press release about the FCC decision here.

FMC has long advocated for responsible government policy that protects open internet structures where musicians can compete on a level playing field and distribute their work any way they choose. Our Rock the Net campaign, which kicked off in March, 2007, now has close to 1,000 musician and indie label supporters, including founding artists Pearl Jam, R.E.M., Calexico, Kronos Quartet and Ted Leo. But we've been paying attention to “the tubes” way longer than that.

Our push to keep the internet open and accessible to artists comes from our deeply held belief that we can't replicate the failures of previous music structures — with their system of gatekeepers, bottlenecks and limited access for all but a select few — when making decisions about how to deal with the internet. We're also of the mind that the solutions to problems on the internet are likely to come from innovators — those brainiacs in the garage coding the future — rather than big corporations whose interests are based more on squeezing dollars from existing structures than coming up with competitive marketplace solutions.

We've been saying this stuff for a long time: in our 2006 Op-Ed on net neutrality for The Hill; our 2005 statement on the Supreme Court's Brand X decision; our 2002 comments with the Black Congressional Caucus Forum on Piracy; and our 2002 letter to the House Judiciary Committee on music/technology issues. All along, we've recognized the need to encourage the emergence of a legitimate digital music marketplace through innovation, creativity and, where appropriate, legislation.

At this rather interesting moment in time (we swear we didn't time the release of our Rock the Net CD with the Comcast decision), we acknowledge the FCC's recognition of the value of the open internet, while reiterating that the fight for net neutrality is far from over. You can help us in the effort by joining our Rock the Net campaign and demonstrating to policymakers and the public that the internet is for everyone, and not just the big cable and telecommunications companies.

If you haven't yet picked up a copy of the CD — which features Wilco, Bright Eyes, Aimee Mann, They Might Be Giants, Portastatic, DJ Spooky and more — you can do so at your favorite local record shop, or online at Amazon (MP3 store), iTunes, eMusic and Rhapsody.

The Big Chill

On Tuesday, July 1, FMC and the Center for Creative Voices in Media filed an amici brief (amici means “advisers to the court who are not parties to the case”) with the Second Circuit Court of Appeals on the subject of the FCC’s current indecency policy. You can read the press release here and the brief here.

The filing takes the FCC to task for its vague and arbitrary indecency policy. The result 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’ recent 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 of access to a lot of great stuff.

The new FCC indecency policy forces broadcasters to favor blander, more homogenized content. No matter how you look at it, when these corporations only air so-called “safe” material, it sends ripple effects through American culture, which has historically benefited from a diversity of ideas and perspectives.

The FCC’s policy is now so arbitrary that even “middle-of-the-road” music that has received airplay for decades can possibly be considered indecent. Songs like John Mellencamp’s “Jack & Diane,” The Who’s “Who are You,” Pink Floyd’s “Money,” Lou Reed’s “Walk on the Wild Side” and Sheryl Crow’s “A Change Would Do You Good” have been reedited or removed from playlists.

We’re not alone in raising concerns about these indecency policies. In this case, the broadcasters were appealing an FCC decision finding that a 5 year old episode of "NYPD Blue" was indecent. Broadcasters are concerned about heavy fines – at the same time the FCC changed its indecency policy, new legislation passed to increase broadcaster fines tenfold, applied per incident and per station.

Addressing media consolidation provides a way to resolve these concerns without censoring content. The deregulation of radio and TV throughout the 1990s that facilitated today’s consolidated media landscape means that national owners have no idea about local communities’ sensitivities or how to respond to them. Basically, consolidation has led to the to the situation we’re currently in, where non-local owners are unresponsive to community concerns. Local owners of broadcast stations are much more inclined to understand the attitudes of the local community.

The FCC’s process for determining indecent material is suspect. Certain public groups have been using automated e-mail based systems to get their constituents to submit complaints to the FCC en masse. The majority of these grievances are from individuals who may not have even seen or heard the supposedly offensive material in question, and the complaints are largely form letters. The arbitrary nature of the FCC’s determination of what’s indecent means that the Commission decides what to take action on, based on criteria that nobody but them knows or understands.

This Ars Technica article also does a good job of explaining things, and FMC Executive Director, Ann Chaitovitz, also sums up the situation pretty well: “The public experience of innovative art enriches American culture,” she says. “These works — musical, visual or otherwise — may be deemed ‘edgy’ or even controversial, but they are not indecent. If the FCC continues its arbitrary approach to regulating protected expression on the airwaves, we will all lose.”

FMC will continue to follow this case through the Second Circuit Court of Appeals.

FCC & Cross-Ownership: The Votes Are In

Today, the Federal Communications Commission moved to lift the 32 year-old ban on common ownership of newspapers and broadcast outlets in the country's 20 largest cities. FCC Chairman Kevin Martin provoked the ire of more than a few citizens and public interest groups by arranging for what many (including some members of Congress) have deemed as a rush to a vote.

The changes aren't as sweeping as those proposed in 2003 by Martin's predecessor, Michael Powell. The new rules would allow a newspaper to merge with a TV or radio station only if the publication is not among a city's top four and there are at least eight independent media voices in the market.

But that doesn't mean there isn't opposition to the decision. Take a look at this statement from Free Press, which highlights many of the issues surrounding today's vote.

FMC understands the concerns of our allies about the rule changes. Many groups believe that they leave room for cross-ownership in smaller markets. And it's important to note that there was dissent on the Commission itself. Here's a quote from Commissioner Jonathan Adelstein:

“For many years, the underpinnings of the Commission’s public interest analysis with regard to media have been to promote localism, competition, and diversity. Yet it is clear from the record that this decision undermines all of these goals. . . as a result of newspaper-broadcast cross-ownership, there is less local news in the market as a whole and there is less competition for stories and ideas since two competing entities become one. There is also less diversity, as a voice in the market is lost, and broadcast outlets are taken even further out of reach of women and people of color.”

Commissioner Micheal Copps echoed his associate' sentiments:

“The situation isn’t going to repair itself. Big media is not going to repair it. This Commission is not going to repair it. But the people, their elected representatives, and attentive courts can repair it. Last time the Commission went down this road, the majority heard and felt the outrage of millions of citizens and Congress and then the court. Today’s decision is just as dismissive of good process as that earlier one, just as unconcerned with what the people have said, just as heedless of the advice of our oversight committees and many other Members of Congress, and just as stubborn—perhaps even more stubborn—because this time it knows, or should know, what’s coming. Last time a lot of insiders were surprised by the country’s reaction. This time they should be forewarned.”

It remains to be seen whether or not Congress will move to dismiss these new rules, but considering its 2003 remand of Michael Powell's changes, there is precedent.

But it's not all doom and gloom, particularly on the radio front. FMC is pleased that the line has been held on further radio station ownership consolidation. Currently, a single company can own up to eight stations in a single market, depending on how many other stations are operating in said market. Some were predicting that Martin would move to relax these rules to allow for further concentration of ownership. This would no doubt lead to even greater homogenization of playlists and prevent many artists from being heard on the airwaves. Although we'd love to see a rollback to pre-1996 Telecommunications Act levels, the door to increased consolidation seems, for the time being, to be closed. Check out our 2006 Radio Study to learn more.

The Commission also seems increasingly committed to Low Power FM. On November 27, the FCC moved to prevent groups from owning more than one such station, and clarified rules regarding license transfer. They also placed limits on so-called "translators," which repeat the signals of full power stations and extend the reach of commercial radio. These decisions on LPFM will hopefully lead to more locally-oriented music and news options in our nation's cities. Check out our LPFM factsheet for more info.

Perhaps as important, there have been significant steps towards expanding non-commercial radio. In October, the FCC opened up a licensing window for full-power, non-commercial bandwidth — the opportunity of a generation.

Let's hope these latter developments bring greater access and opportunity for musicians. It’s certainly a step in the right direction.

Net Neutrality, Comcast & the FCC: A Closer Look - By Mehan Jayasuriya

It's been almost two months since Comcast's regulation of BitTorrent traffic was first revealed by the Associated Press, inciting an Internet-wide call to arms for proponents of network neutrality. In case you haven't been following the story, it was revealed that Comcast was "actively interfering" with traffic on its network, using a technique known as packet-forging to disrupt traffic relating to BitTorrent applications — including the Gnutella peer-to-peer sharing client and IBM's Lotus Notes groupware application (used by businesses for sharing calendars, emails and other files). In the weeks since, the EFF has confirmed the AP's initial report, a California man has filed a lawsuit against Comcast and everyone from SavetheInternet.com to the telecom-industry puppet group Hands off the Internet has come forth to demand that the FCC open up an investigation into the cable company's methods (though Hands off the Internet may be simply aiming to keep the digital meddling of a competitor in the headlines). Thus far, the FCC has yet to make an official statement on the matter.

Despite the nature of some of the applications being blocked, Comcast's maneuvers can be seen as a first step toward a so-called "tiered Internet," where certain applications are slowed or blocked while others are prioritized. And as we've previously noted, a tiered Internet will likely spell trouble for musicians, independent labels, entrepreneurs and pretty much anyone else who benefits from the democratization that the Web brings. So what's the solution? Network neutrality legislation, right? Well, unfortunately, it's not quite that simple.

As you may already know, the FCC actually has policies in place (PDF link) that aim to promote openness on the Internet. It remains to be seen, however, whether or not Comcast is in violation of the four principles outlined in the FCC's 2005 Internet policy statement. As Comcast spokesperson Sena Fitzmaurice recently told CNET, "We engage in reasonable network management to provide all of our customers with a good Internet experience, and we do so consistently with FCC policy." Here's what's scary: this may be telling the truth. The FCC's 2005 statement includes an exemption for "reasonable network management," though only the FCC knows whether or not Comcast's actions fall under that banner.

That matter of network management could also cause problems on the legislative side of things. Though there are two net neutrality bills currently being considered in Congress — one in the House and one in the Senate. Both allow for providers to use "reasonable and nondiscriminatory measures" to regulate their networks. Though it's unclear exactly what this means (i.e., whether the provider must refrain from discriminating against the user, the application or both), the judgement call could ultimately be made by an "expert agency" like the FCC.

But just because the FCC launches an investigation, doesn’t mean they’ll demonstrate appropriate follow-through. Earlier this year, the Commission claimed they lacked the capacity to enforce anti-payola rules, despite having issued a consent decree in the aftermath of ex-New York State Attorney General Eliot Spitzer’s probe. Thus, even if net neutrality legislation is passed, depending on how the laws are interpreted, providers could continue to throttle traffic under the guise of network regulation.

If you've been following our Rock the Net campaign, you know that FMC is fully committed to network neutrality and believes that some form of legislation is needed to prevent service providers from creating a tiered Internet. We understand that musicians rely on equal access to the Internet in order to reach new fans and we'd hate to see a level playing field get ruined by a few corporations. If you haven't already signed our Rock the Net petition, be sure to join thousands of artists and fans around the world in doing so. You can also help us spread the word through the official RTN MySpace page.

Mehan Jayasuriya is a technology and music journalist who lives in the Washington D.C. area. Outside of his work for the Future of Music coalition, he also writes for DailyTechRag and local culture blog DCist. You can visit his personal website at www.mehanjayasuriya.com.

FCC Gets Heat From Senate

Today's Senate Commerce Commitee hearings on media ownership, localism and diversity found several Senators stepping up the anti-consolidation rhetoric. Can a showdown with FCC Chairman Kevin Martin be far off?

The hearing's biggest announcement was that of legislation to impede the Martin's mad dash to alter current media ownership rules. This bi-partisan effort, which has been given the catchy title "Media Ownership Act of 2007,” is co-sponsored by Senators Snowe, Obama, Kerry, Feinstein, Nelson and Cantwell. The proposed bill compels the FCC to hold separate proceedings on localism, as well implement a task force to look into issues of minority and female ownership before attempting to alter existing structures. In addition, the legislation introduces a 90-day public comment period on any proposed rule changes.

We at FMC think this is excellent news. However, given the FCC's poor track record of actually completing assigned research, there may be need of further Congressional (and perhaps Court) intervention. According to research by Free Press, the FCC has never produced accurate documentation of existing minority broadcast licenses. Can we actually expect them to take the proposed ownership task force seriously?

Back to the hearing. Several Senators spoke in no uncertain terms about the consequences of further consolidation, with Dorgan referring to the "galloping concentration" of media outlets as being "quite unhealthy." The general consensus was that they’d been here before with the FCC -- specifically in 2003, when then-Chairman Michael Powell made a similar rule-change attempt. Senator Kerry made reference to the deja-vu nature of the current proceedings, calling them "a little like Groundhog Day." Legislators seemed in agreement that Martin is rushing things. Said Dorgan, "The Chair is not in a position to credibly suggest that we need a vote by December."

Of the panel of witnesses, Seattle Times publisher Frank A. Blethen made the most compelling argument in favor of localism and diversity. He claimed that localism has all but been abandoned by Congress and the FCC, saying that the big media conglomerates no longer "invest in journalism," to the detriment of civic comprehension. He also countered conventional wisdom about the newspaper industry, stating that traditional press is still profitable. Yet Blethen also told Congress that "the only way to save local papers is to stop the FCC from relaxing ownership rules." In addition to maintaining the current cross-ownership caps, he urged lawmakers to create incentives for greater minority ownership.

All in all, it was a smashing day for supporters of localism and diversity in media. Let's hope the FCC gets the message.

Watch the an archived webcast of the hearing here.

Consolidation Indignation

Late last Friday afternoon, FCC Chairman Kevin Martin announced the sixth and final hearing on media ownership, to take place in Seattle on November 9. As was the case with the October 31 hearing on localism in D.C., Martin has given the public precious little time to prepare. This once again calls into question his commitment towards considering public opinion. Of course, citizen sentiment regarding consolidation is almost entirely negative. But that's no excuse for ignoring concerns.

Is it all just a charade? Check out what FCC Commissioners Copps and Adelstein have to say:

A hearing with only five days notice is no nirvana for Seattle and the Pacific Northwest. This smells like mean spirit. Clearly, the rush is on to push media consolidation to a quick and ill-considered vote. It shows there is a preordained outcome. Pressure from the public and their elected representatives is ignored. With such short notice, many people will be shut out. We received notice of the hearing just moments before it was announced. This is outrageous and not how important media policy should be made.

And they're not the only government figures peeved by Martin’s rush to change existing rules. Following Senators Lott and Dorgan's joint press conference, Senate Commerce Committee Chairman Inouye decided to hold a hearing on November 8 -- the day before the Seattle affair. The topic du jour? Localism, which Martin no doubt thought he'd put behind him with the Halloween hearings. Guess the topic just won’t stay, ahem, buried.

Word on the Hill has it that Martin is planing a vote for sometime in December. It remains to be seen whether Congressional pressure will have any effect on his push for rule changes. One thing is certain, at least according to the general public: further consolidation will have an incredibly negative effect on the FCC's stated goals of competition, localism and diversity.

Need more proof? Check out FMC's 2006 Radio Study and its corresponding Executive Summary. Watch an interesting video report on consolidation from PBS' Bill Moyers.

Visit the Senate Commerce Committee website for the the live webcast of Thursday's hearing on localism.

Details on Friday's public hearing on media ownership in Seattle:

Date: Friday, Nov. 9, 2007
Time: 4:00 p.m. to 11:00 p.m.
Location: Town Hall Seattle, Great Hall
1119 Eighth Avenue (at Seneca Street) Seattle, WA 98101

Swing by StopBigMedia.com for more info.

Trick or Treat at the FCC

Today's FCC hearings on localism in media featured stellar testimony from a panel of witnesses nearly united in their belief that diversity in media ownership and community-centric broadcasting are of enormous public value. The hearings took place on Halloween, and, judging from the response of concerned citizens to the possibility of further consolidation, FCC Chairman Kevin Martin should be spooked.

Despite short notice and a very small venue, more than 150 citizens showed up at the FCC's doorstep. (Some as early as 5 and 6 in the morning!) Those who made it inside, including a panel of powerful witnesses, made it clear that media consolidation is not in the best interest of any community — be it rural or urban.

"A business model that shuts out local news and entertainment options in favor of homogenized content is detrimental to the public interest," said Bob Edwards, National First Vice President of the American Federation of Television and Radio Artists, and former host of NPR's "Morning Edition." Directly addressing the FCC Commissioners, he stated, "the health and robustness of American media depends on your actions."

The Rev. Jesse Jackson of the Rainbow Push Coalition also had strong words for the Commission. "For far too long, media policy has been made behind closed doors," he said. It's time to democratize the public airwaves. The FCC should serve the public, not profits."

Several panelists, including Kim Gandy, president of the National Organization for Women, spoke candidly about the importance of localism. "The programming needs of local communities are best served by local owners," she said. "It's hard to argue with the obvious." She also pointed out the appalling lack of diversity in the current media sphere, claiming, "the more consolidated the market, the less likely it is that there will be female or minority ownership."

FMC has extensively examined the effects of consolidation on the public airwaves, and has conducted original research which changed the debate about radio. Economic data from our 2003 and 2006 studies showed a massive and negative restructuring of radio and proved that the FCC's own studies following the 1996 Telecommunications Act did not accurately measure diversity or localism. Our 2006 Radio Study can be found here. You can also check out an Executive Summary of this report.

In 2006, FMC Executive Director Jenny Toomey was a witness at the FCC's hearing on media ownership in Nashville. She spoke about the radical transformation of the airwaves following the 1996 Telecommunications Act, and the resulting lack of diversity and localism on the dial. Of course, Jenny looked beyond terrestrial broadcasting and to the future, tying the negative affects of radio consolidation to the importance of net neutrality:

"If there is a silver lining to this cloud of failed radio policy, it will be the lessons that we apply to the debate over net neutrality and to structural decisions about the internet marketplace. Radio’s story has played a major role in spawning the movement against media consolidation. And concerns about access to the data used in the FCC's decision-making process have shown that the public needs more substantial and transparent information to monitor media industries. Never again should these decisions be made in the dark."

And they won't be, if today's cadre of concerned citizens, broadcasters, advocates and activists have anything to do with it.

Read the rest of Jenny's testimony here.

Learn more about today's FCC hearing at StopBigMedia.com.

Oh, and Happy Halloween!

Circling the Wagons

It’s been reported that FCC Chairman Kevin Martin is aggressively attempting to push through changes to media ownership laws which could result in further consolidation of not just radio, but also television and print media. Although the FCC claims to recognize the importance of localism, competition and diversity, Martin’s own actions indicate otherwise.

In 2003, FCC Chairman Michael Powell also tried to ram through rule changes, but was strongly rebuked by the general public, not to mention the House, Senate and Third Circuit Court of Appeals. The congressional and court reprimand included a stern admonishment to hold public hearings on localism, competition and diversity before voting on any rule changes.

The FCC took Congress' advice and the commissioners have, indeed, attended formal and informal hearings over the past 18 months in Chicago, Tampa, Portland, Harrisburg, Nashville, and Los Angeles, where thousands of concerned citizens overwhelmingly expressed their opposition to any rule changes that would let Big Media companies swallow up more local outlets.

But these hearings aren’t worth much if the public isn’t a): given adequate time to prepare arguments, or b): provided date and location info until the absolute last minute, as is the case with the next event. Hmm, could this be a strategy?

Yesterday, the FCC finally released information pertaining to a rumored Washington D.C. hearing on localism. It takes place on Wednesday, October 31 — a mere week away. That leaves little time for anyone to organize concerns about the proposed rule changes — the specific details of which still remain a mystery.

The hearing will be held in FCC Room TW-C305 — which can only accommodate a hundred or so people. Makes you wonder if this, too, is a deliberate attempt to ignore public opinion.

In the past, FMC has helped to bring artists' voices to the debate, with Tift Merritt, Jenny Toomey, Chuck D., Tom Morello, Ted Leo, Boots Riley, the Indigo Girls and Mike Mills appearing as invited witnesses. Each musician talked frankly about how issues including media ownership, low power radio, payola and net neutrality affect their careers as musicians, and their access to information as citizens.

Key legislators are also on the side of diversity, competition and localism in media. A couple of days ago, Senators Dorgan and Lott held a joint press conference in which they called the FCC’s rush to relax ownership rules “a big mistake.” Check out the press conference here.

Here are some things you can do regarding the FCC and media ownership:

Official FCC Localism Hearing
Oct. 31, 2007, 9 a.m. to 2 p.m.
Room TW-C305 following open commission meeting
FCC, 445 12th Street SW, Washington, D.C. 20554 (map)

1. Attend the hearing and sign up to deliver a short statement on your thoughts on media and localism. We cannot guarantee that you will be allowed to testify -- or even that you'll be let in the building -- as we expect hundreds of people to show up, but the more people who show up just demonstrates the public's determination to make the FCC take these hearings seriously.

2. Watch the hearing. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC's Audio/Video Events web page at www.fcc.gov/realaudio. Spanish language translation service will be provided. In addition, the hearing will be recorded, and the recording will be made available to the public.

3. File a short comment on your thoughts on localism on the FCC website. The proceeding docket number is MB 04-233.

Learn more at StopBigMedia dot com.

Senate to Explore "The Future of Radio" During Hearing

On Wednesday, October 24 -- that's tomorrow, people -- the Senate Commerce Committee is holding a hearing on "The Future of Radio" during which "Committee Members will assess the state of innovation and competition in the radio market."

Mac McCaughan, musician and co-owner of indie label Merge Records has been invited to testify, along with Tim Westergren from Pandora and folks from National Public Radio, Withers Broadcasting, Free Press and the National Federation of Community Broadcasters.

The hearing starts at 10 AM ET and is being held in Russell Building 253. The committee also offers a live webcast, which you can access as the hearing starts at: http://commerce.senate.gov/

FMC will provide gavel-to-blog coverage...

Media Ownership Rules — A Narrow Window?

Back in 2003, the FCC tried to change regulations concerning corporate ownership of media outlets. Then-chairman Michael Powell wanted to alter the rules without taking into account public opinion. Suffice it to say, there was unprecedented resistance in the form of citizen feedback, the bulk of which was decidedly negative. FMC collected and analyzed data on the public comments; the report can be found here.

Well, it’s happening again. The FCC just doesn’t seem to get it. When they previously attempted to change the rules, it resulted in serious blowback from the House, Senate and Third Circuit Court. Sure, there are more public hearings scheduled this time around, including one in Washington next week, for which the venue has still yet to be determined (!) But these hearings may be entirely superfluous in the eyes of current Chairman Kevin J. Martin.

A recent article in Condé Nast’s Portfolio magazine confirmed what many have come to suspect: Chairman Martin is aiming to limit the timeframe in which dissent can be registered.

“FCC commissioner Kevin Martin learned a lot from his predecessor's ill-fated attempt at media ownership deregulation. Above all, he learned that the public hates the idea of further consolidation -- so if you want to push through rules allowing it, you have to do it while no one's looking.”

And the New York Times even deemed the story worthy of front page treatment. In their reporting, FCC Commissioner Jonathan Adelstein calls Martin’s timetable “awfully aggressive.” Possibly provocative, definitely true.

According to Dow Jones, Martin hopes to schedule the rule changes vote for December 18. This ensures not only a narrow window for dissent, but also a particularly distracting season in which to discuss the issues.

Check out this must-see clip of Senator Byron Dorgan (D-ND) engaging in his own brand of protest:



Other Senators, including Barack Obama, have also registered their displeasure with the FCC’s tactics.

FMC has long opposed radio consolidation, because it severely limits musicians' odds of getting airplay.

Instead of focusing on further deregulation, shouldn’t the FCC be working towards enhancing localism, competition and diversity in all media?