There was no more compelling sign of how times have changed in the radio and record businesses than the moment an attendee of last week's Conclave radio conference addressed one of the chief architect
There was no more compelling sign of how times have changed in the radio and record businesses than the moment an attendee of last week's Conclave radio conference addressed one of the chief architects of the payola crackdown while wearing a t-shirt that read "I'm so thirsty I could add a record."
That memorable exchange came during a July 15 keynote address at the Minneapolis seminar by N.Y. state deputy attorney general Terryl Brown Clemons, a key investigator in her boss, Eliot Spitzer's, payola probe. The t-shirt was a souvenir from Conclave '93, but the shirt wearer lamented that at this year's event, "the drinks have dried up."
While Spitzer's ongoing investigation has caused much confusion in the radio and record industries about what is and isn't legal, Brown Clemons endeavored to clarify those rules to a largely hostile audience. She deftly answered most of the audience questions, including one from an attendee who wondered why her office doesn't "get off our backs and go after someone like the drug companies who are hurting the poor and sick."
In a Q&A with Billboard Radio Monitor executive editor Paul Heine, Brown Clemons ran through numerous hypothetical scenarios and explained which were legal, and which were troublesome. Several times she referred to payola practices as "a massive scheme" to impact the airplay of records.
Brown Clemons expressed particular concern for independent artists and labels, which, she said, cannot compete, on a level playing field when they cannot afford to financially influence airplay. "A lot of times the smaller labels that cannot afford those types of [payments] were being shut out," she said.
In recent months, concerns have been raised in the industry that rather than helping independent labels and artists, the Spitzer investigation has had the opposite effect. To avoid potential problems several radio chains have banned their employees from interacting with any independent promoters, even those who never served as middlemen in payola practices. But since many small labels rely on indie promoters to call radio stations on their behalf when they cannot afford an in-house promotion staff, such labels are finding some doors closed to them.
Brown Clemons seemed aware of such concerns, but says chain-wide indie bans are "not the effect we'd like to see and [aren't] based on any decision we've made or any dialog we've had with the [labels]. There isn't anything wrong, and in fact there is a need for radio stations to take calls from independent promoters that don't have a financial relationship with their radio station," she said.
One "major sticking point" in the NY state attorney general's recent lawsuit against radio chain Entercom is the issue of paid spins, said Brown Clemons. Some industry executives have questioned how spin programs can be illegal when the payments are disclosed on the air. She explained that the disclosures might not go far enough to indicate that paid spins influence chart positions in a "deceptive" way, which subsequently influences the buying decisions of record retailers and the airplay decisions of other stations. The end result, she said, is that the consumers are left with a distorted impression of what music truly is popular and, potentially, fewer choices.
She also noted that spin programs have "the impact of excluding other artists who cannot afford to pay for airplay," and called such programs "a violation of that [participating] station's license."
The good news for radio programmers -- and for the thirsty t-shirt wearer -- is that Brown Clemons made it clear they can still accept items of value from labels, including CDs, concert tickets and electronics as long as they are for on-air giveaways and as long as it is documented they these items are not being given in exchange for airplay.
Label employees are still permitted to take radio employees out for a meal or drinks to talk about their artists and music, as long as the cost is not more than $150 per person. There is a similar $150 cap on gifts label execs can give radio employees to mark "life events," such as a wedding or the birth of a child. Brown Clemons told radio attendees they "should not be afraid" to take such a gift from a record rep they have a relationship with because, "that's perfectly acceptable."
Labels are also still permitted to fly programmers into another city for a showcase or concert and pay "reasonable" travel costs. One specific caveat to this rule is that the programmers can't arrive more than 24 hours in advance of the performance.
Similarly, it's still acceptable to labels to provide artists to play at station festivals as long as the appearance is "not done in explicit or implicit exchange for airplay," either for that artist or another on the label, she said. If labels are providing the artists as "promotional support" for the stations, she said, "It's perfectly acceptable."