Last week, the FCC released a decision denying objections to the sale of the NY Times-owned radio station in New York City – objections based on the fears of certain listeners that the sale would mean the loss of the station’s classical music service.  In rejecting the petitions, the FCC relied on the long-standing policy of the FCC not to get into format questions, citing a thirty year old policy statement, upheld by a Supreme Court decision, which found that such review "would not benefit the public, would deter innovation, and would impose substantial administrative burdens on the Commission."  In other words, the Commission concluded some thirty years ago that it had no place in making programming decisions for broadcasters.  It is ironic that this decision was released on the same date as comments were due at the FCC on the MusicFirst petition arguing that broadcasters should be compelled to air specific content – commercials that advocate the adoption of a performance royalty and music from performers who supported the royalty. 

It appears from a review of the Commission’s Electronic Comment Filing System that, while the FCC solicited comments on the MusicFirst petition, MusicFirst itself did not choose to file anything in response to that request.  A few musicians’ groups did file comments, echoing the concerns originally raised by MusicFirst, but with very little specificity to support the implication that there was a nationwide conspiracy of broadcasters to boycott music from royalty supporters.  And, while most of the comments stated that they did not want to abridge the First Amendment rights of broadcasters, they nevertheless went on to say that broadcasters who did not air statements in support of the royalty should have sanctions imposed.  Maybe I’m missing something, but that sure seems to be an invitation to government compelled speech.   The NAB filed extensive comments addressing the First Amendment implications of the complaint. 

There is another irony in the premise of the MusicFirst complaint.  They complain that stations are not playing the music of musicians that support the performance royalty.  But one of the premises of  supporters of the royalty is that broadcasters should not be playing the music of performers without paying a royalty.  But when a few noncommercial stations even suggest that they are planning to stop playing this music, MusicFirst comes running to the FCC to complain that broadcasters are not doing the very thing that MusicFirst supposedly doesn’t want – playing music without a royalty. 

The whole complaint seems to be a way to generate a few headlines to shine on the issue – an issue where broadcast interests already have almost 250 members of the House of Representatives on record as being opposed to the new royalty.  But perhaps the publicity has generated some response, as rumors are that further consideration of the bill in the Senate may be forthcoming soon.  So broadcasters concerned about a potential royalty cannot relax.