1. How can you justify taking someone's intellectual property and making $16 billion in annual advertising revenue off that property without compensating the creators and owners of the property?
2. Why do you deserve a competitive advantage in the music marketplace? Artists and musicians are paid when their music is broadcast on satellite radio, Internet radio and digital music services delivered through satellite and cable television.
3. Which of your leaders is right: David Rehr, president of NAB, or W. Russell Withers, chairman of the NAB Radio Board?
   
   Rehr calls paying artists for their work product a "performance tax" while Mr. Withers said before the Senate Commerce Committee, "I disagree with 'performance tax.' It's a performance fee." What is wrong with paying a fee for product that makes you money?

That's what the Department of Justice is warning the U.S. Supreme Court about as it weighs in on an FCC indecency decision.

See, the Second Circuit Court of Appeals in New York remanded the FCC's indecency finding against expletives on Fox's Billboard Awards show. The court concluded that the FCC had "failed to provide a reasoned basis for reversing its longstanding indecency-enforcement policy with respect to isolated and fleeting expletives."

According to Broadcasting & Cable, Solicitor General Paul Clement, said the Second Circuit decision left the FCC little room to modify its policy other than two extremes, adding that the court's decision "attempts to coerce the commission to choose between allowing one free use of any expletive, no matter how offensive or gratuitous, or adopting a blanket prohibition on any use of expletives."

In other words, George Carlin's "seven dirty words" might not be found indecent anymore.

Clement said the lower-court decision "effectively prevents the commission from carrying out its charge, and yet it is the commission that will be held accountable for the coarsening of the airwaves."

The U.S. Supreme Court are scheduled to meet on February 29th to decide whether to take the case, though that date could easily be delayed.

[Broadcasting & Cable]

While Opie & Anthony today officially made the move from delayed afternoon broadcasts to live morning-drive airings in Cleveland, word has come in that the dynamic duo is about to sign a new deal.

According to FMQB, Opie & Anthony are on the verge of inking a new deal that will keep them on both XM Satellite Radio as well as on regular radio stations run by CBS Radio and Citadel Broadcasting.

This would, of course, quickly dispel the rumor that Booker is taking over the b-b-boys slot at K-Rock once their CBS contract expires.

[FMQB]
Thanks Spencer!

The National Association of Broadcasters (NAB) fear that satellite radio may have "different needs and incentives for the use of terrestrial repeaters" as a result of the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc.

One of the NAB's concerns is the "heightened desire to offer locally oriented programming, including local advertising" through the repeater network. So the NAB is asking the FCC to adopt final repeater rules that block Sirius-XM from offering local content on their repeater networks.

This isn't anything new.

Over a year ago, an NAB-backed bill (H.R. 983) was introduced to Congress, meant to "preserve local radio" and in effect would stop the airing of Amber Alerts and other emergency services on Sirius and XM. Somehow I don't see this as being in the public's interest.

In the its recent FCC filing, the NAB continues, "In adopting final rules for [satellite radio] repeaters, it is also necessary that the commission be mindful of the SDARS licensees' record of misbehavior in this area."

They go on to highlight violations regarding Sirius and XM repeater towers. Of course, this ignores terrestrial radio's own history of FCC violations.

Oh I get it: Do as I say, not as I do.

How about this instead. If regulators do feel that terrestrial radio is a substitute for satellite radio, and that they compete in the same relevant market, then satellite radio should be permitted to provide more - not less - localized programming. There is absolutely no need for an 80-year old government-granted monopoly over local programming to continue to exist in this day and age.

But that's exactly what the NAB wants. In their on-going attempt to save itself - rather than actually trying to innovate and provide a compelling product - they want to prohibit other local programming, and secure they're stranglehold on "localism." Now that's anticompetitive.

[via Radio Ink]

The National Association of Broadcasters, in their latest attempt to prevent having to paying a performance fee to artists, has run an ad highlighting the "love affair" between the Radio and Music industry.

And it does nothing, but just look creepy.

The ad, which was run today in the Capitol Hill publications Roll Call, The Hill, and Politico, uses quotes from various folks in the industry highlighting how radio helped them promote music.

One of the quotes the NAB highlights comes from Alicia Keys at her recent Grammy Awards acceptance speech, where she thanked "every radio guy" for contributing to her success.

But what the NAB notably doesn't highlight is Recording Academy president Neil Portnow's speech at the Grammys, where he vowed to "fight to pass legislation to once and for all ensure that, just like in every other developed country in the world, all music creators are compensated for their performances when played on traditional radio."

"Just as we support our own songwriters, we congratulate our fellow writers in the film and television world for winning fair compensation for their unique and creative contributions," Portnow said at the Grammys, in reference to tentative deal between the Writers Guild of America and Hollywood studios.

Forgetting about the soapboxing at the Grammys, back to this ad - it just gives me the chills.

If the NAB is hoping to portray terrestrial radio as outdated and irrelevant, they successfully did so with that picture. The orange abomination of a radio they used - which has the sex appeal of a spaceheater - combined with the awkward look of those characters kissing that thing... it just doesn't help their cause.

View the full ad after the jump... (not recommended)

The Department of Justice is forcing Clear Channel to sell their radio stations in four cities in order to complete its $19.5 billion buyout deal with Thomas H. Lee Partners and Bain Capital.

San Francisco, Houston, Las Vegas and Cincinnati are the cities required by the DOJ to be sold out.

The agency said that the deal would result in higher prices to radio advertising purchasers in those markets. The reason? Bain and THL already have substantial ownership interests in two firms (Cumulus and Univision) that compete with Clear Channel in those cities.

[DOJ]

So here's a piece from Clear Channel's recent FCC filing that I didn't notice before: the largest radio conglomerate in the country is calling satellite radio "a genuine threat" to terrestrial radio.

Maybe they didn't get the memo from Cox Radio? Didn't Robert Neil say that satellite radio just wasn't "a real business" - and yet now it's a genuine threat?

In the filing, Clear Channel said a merged XM and Sirius would create "a genuine threat to the economic framework of terrestrial broadcast radio."

But of course, Clear Channel is no stranger to building up that "economic framework." Clear Channel's co-founder Red McCombs (who started the radio giant with Lowry Mays back in the '70s) has a personal net worth of a whopping $1.6 Billion.

And this "genuine threat" consists of a mere 4.1% metro unweighted quarter hours, according to the latest Arbitron numbers. Oh but, the company which is synonymous with "monopoly," is now crying foul. Lest we forget, Clear Channel's forward sales agreement with XM (a product of their early investment in the satcaster) is set to expire in June of this year, at which time they're expected to hand over 8.3 million shares in XM to Bear Stearns.

So I wonder if they have any ulterior motives in seeing the merger get scuttled? Nah, I'm sure it's all just completely "genuine."

[via FMQB]

Clear Channel, now satisfied with their own merger approval, have been increasingly active in their discussions with the FCC regarding the merger between Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc.

In fact, in the past six months, Clear Channel has actually met with the Commission discussing the Sirius-XM merger exactly 17 times as of writing this. But it's their most recent filing that has given us the clearest glimpse into what these discussions have been about.

The company says that, regardless of how the market is defined, the FCC shouldn't grant approval to the Sirius-XM merger.

"Permitting one company to control so much spectrum would inevitably undermine the viability of free, over-the-air, advertiser-supported radio’s economic model, harming localism and diversity, the pillars of the public interest under the Communications Act of 1934, as amended," writes Clear Channel.

They go on to describe various scenarios. In short:

• Under the current "national pay radio" market definition - the merger should be denied
• If the market is defined as "all radio services" - then it would give Sirius-XM too much spectrum and "undermine" the ability of terrestrial to serve the public
• And if it's defined as the "audio entertainment" market - this would put "intense competitive pressure" on terrestrial radio because everyone else (satellite radio, iPods, internet radio, etc) are unregulated
• "HD radio is not a meaningful threat to satellite radio – not now and likely not for some time..." (the quote says it all)

Should the FCC actually approve the merger, Clear Channel asks that the full 25 MHz of spectrum is "simply too much market power." Their solution? Chop that down to 15 MHz and the remainder would be "divested in some fashion."

Cutting the amount of spectrum wouldn't be enough though. They also would like the government to require that Sirius and XM "embed HD radio reception capability into all satellite radio receivers" - much like what iBiquity and the HD Radio Alliance have been asking for.

[FCC Filing (PDF)]

Top execs from five terrestrial radio groups recently talked about the challenges and the competitive factors facing the industry, according to Communications Daily.

But it's what Gary Stone, president of Univision Radio, said that interests me the most. He said that radio broadcasters need to realize they're competing against more than other stations for marketers' attention.

"I'm no longer in the radio business," said Stone, in front of a crowd of media buyers in Beverly Hills. "I consider myself to be in the audio delivery business, marketing multiple platforms to marketers."

'nuff said.