The FCC today asked for public comments on the petition of the MusicFirst Coalition asking the Commission to take action against broadcast stations who did not fairly address on air the proposed sound recording public performance royalty for terrestrial radio. The Petition, about which we wrote here, alleges, with very few specifics, that some radio stations have taken adverse actions against musical artists who have spoken out in support of the royalty, and also that stations have refused to run ads supporting the performance royalty while running their own ads opposing the royalty (opposing ads which MusicFirst claims contain false statements). MusicFirst submits that these actions are contrary to the public interest. The FCC has asked for comment on specific issues raised in the Petition. Comments are to be filed by September 8, and Replies on September 23.

The specific questions on which the FCC seeks comment are as follows:

(i) whether and to what extent certain broadcasters are “targeting and threatening artists who have spoken out in favor of the PRA, including a refusal to air the music of such artists";

(ii) the effects of radio broadcasters’ alleged refusal to air advertisements from MusicFIRST in support of the PRA;

(iii) whether and to what extent broadcasters are engaging in a media campaign, coordinated by NAB, which disseminates falsities about the PRA; and

(iv) whether certain broadcasters have evaded the public file requirements by characterizing their on-air spots in opposition to the PRA as public service announcements.

 

While we were concerned about the fact that the Commission is seeking these comments potentially indicating that the FCC might feel that the broadcaster has some obligation to address all sides of all controversial issues, implying that there is life in some vestige of the Fairness Doctrine, we were heartened by the FCC's acknowledgment of the First Amendment issues that the petition raises. The Commission stated:

We recognize that substantial First Amendment interests are involved in the examination of speech of any kind, and it is not clear whether remedies are necessary or available to address the actions alleged by MusicFIRST.

 

In fact, the first three questions asked by the FCC all go to First Amendment issues that we raised in our prior post. Do we want the FCC to be deciding what musical artists a station plays on the air? If a broadcaster decides not to play an artist because of his or her position on gay marriage or gun control or foreign policy, do we want the FCC to intercede and judge the quality of the reason for denying airplay?

Do we want the FCC to decide the truth or falsity of advertising? The FCC does not even get into that issue with broadcast candidate ads, yet MusicFirst is asking that the FCC make that judgment here. Do we want the FCC making judgments, for example, on the truth of ads about the health care reform debate, which may very well have a direct effect on broadcasters bottom line?

Do we want the FCC to decide what advertising a station takes? Last week, the FCC's Media Bureau, in dismissing a Petition to Deny a broadcast station's license renewal, found that, other than in connection with political advertising by candidates, stations were free to set their own advertising rates and policies. In that case, the FCC found that broadcasters did not need to treat obituaries as public service announcements, but were free to charge for those announcements. Why should ads for a music royalty - a proposal that is an anathema to most radio broadcasters - be different than obituaries or any other advertising? The broadcaster is not a common carrier, as the FCC has said many times including in Friday's case, and it is free to make decisions as to what it will air and what it will not.

The one remaining issue, the public file issue, seems to turn on the provisions of the Bipartisan Campaign Reform Act's requirements that certain issue advertising have the same public file requirements as political candidate ads (see our post here). Specifically, Section 315 of the Communications Act requires that a station keep records of "a request to broadcast time" dealing with a Federal candidate or a Federal issue. Where a broadcaster itself chooses to run a spot of its own opposing the Performance Royalty, there would seem to be no "request to purchase time" and thus no public file obligation. On the other hand, if MusicFirst makes an actual request to purchase airtime on a specific station, the station should note in its public file whether or not the request was accepted.

We are also troubled by the lack of specificity in the MusicFirst petition. Artists and stations involved are not named. How can the Commission take action when there is no one to take action against? Why are they even considering a petition that does not allege any specific wrongdoing but instead raises wrongdoing but does not identify any alleged wrongdoer?

We hope that this is just an attempt by the FCC to demonstrate the openness of its process on what is admittedly a controversial issue. But we also hope that the First Amendment rights of broadcasters will be respected in the final decision.