Radio Spots 4 Sale on Fiverr.com

For the record this seller already took down the content, but I think it's worth writing about. You can't sell airtime on a non-commercial radio station... not even for $5. Underwriting is permitted... but that's not what this appeared to be.

I was trolling Fiverr.com to see if any commercial stations were using it yet to use unsold inventory. I found a lot of vendor who would send my song to "hundreds" of radio stations. There were hundreds of voice over guys looking for work. I found a several internet stations selling time but only one commercial station. (Admittedly that one is dubious because it does not identify the call letters.) Then unexpectedly found one college radio station DJ selling ads for his show. I have to give the caveat that this could have been a fake. There is no evidence that he actually had a program on the station in question. I'll be kind and say this was legally dubious. (Note: I have decided not to reveal the call sign)

"I will promote your business, website, promotion, event, etc on my radio show @ K███ 91.3 FM ███████████ College Radio. You will get an excellent write-up, and can either submit an advertisement for me to say or I can write it myself. Anything is up for grabs. Thousands of local listeners, thousands more online listeners. Very well established radio program..."

He also sold bongs, books, seeds, references, links, and the occasional freestyle rap. You have to give him points for hustling. So lets review the law here and here. Strictly speaking, it's important to note that because he wasn't offering airtime to purveyors of music it's not payola. Were this a commercial radio station this would be plugola, since it's ostensibly without the awareness of the stations owners or management. This is a violation of Section 399B [47 U.S.C. §399B]  see below:


Offering of certain services, facilities, or products by public broadcasting stations. 

For purposes of this section, the term “advertisement” means any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended –

1. to promote any service, facility, or product offered by any person who is engaged in such offering for profit; 
2.  to express the views of any person with respect to any matter of public importance or interest; or
3.  to support or oppose any candidate for political office 

(b)

1. Except as provided in paragraph (2), each public broadcast station shall be authorized to engage in the offering of services, facilities, or products in exchange for remuneration.  
2. No public broadcast station may make its facilities available to any person for the broadcast of any advertisement.

Booze, Broads and Bribes

It's sort of a chicken and the egg scenario. Did payola exist before it was illegal? Well, wasn't always illegal, but even after it was, most people didn't care or at least they acted like they didn't. It is still quite common as you might guess. I actually can put a date to the appearance of payola on the American consciousness: November of 1959. It was a hard year: Buddy Holly and the Big Bopper died, Castro took Havana, and the perception of radio changed forever.

It's a simple cause and effect sequence of events. Lets' do this in chronological order. On Memorial day weekend May 28th - 31st was the second Annual Todd Storz' Disc Jockey Convention. It was held at the Americana Hotel in Miami. This was located at the oceanfront on 97th Street, Bal Harbour, Miami Beach.  Their promotional literature of the day described itself thus

"...the magnificent Americana features the award-winning cuisine of the Gaucho Steak House, Dominion Coffee House, Bal Masque Supper Club and Carioca Lounge. An outdoor pool and all-weather enclosed pool are part of the delightful cabana and garden area..."

It was designed by the flamboyant Morris Lapidus, a neo-baroque Miami architect who defined a number of other modern hotels that defined the 1950s 'Miami Beach' resort hotel style.  The Americana was to Miami what the Sands was to Las Vegas. (It was demolished in 2007.) Needless to say... this conference was really a big blow out. About fifty record labels contributed funding  lascivious four-day party in Miami.  I don't have dollar amounts, but they were probably unspeakable.  The book Something In the Air by Marc Fisher described it in gory detail:

"...Todd Storz hosted the biggest, most raucous convention of deejays staged to date.  the Americana Hotel in Miami Beach was the setting for a bacchanalia for twenty-five hundred deejays, with free bottles of liquor and prostitutes on call all week long.  In one eight-hour party at the Americana featuring the Count Basie Orchestra, two thousand bottles of bourbon were consumed. Hired women were instructed to make themselves available to any deejay..."

The description sounds colored perhaps, or exaggerated. It's not. Fisher cites his source: the testimony of Edward Eicher, convention manager at the Americana Hotel before the U.S. House of Representatives. Almost every informed source describes it as an orgy of drugs, whores and booze. In Voice Over. The Making of Black Radio William Barlow described it similarly:

"...besides the around-the-clock receptions, parties, concerts and gambling junkets to nearby Havana, the convention featured one of the largest contingents of hookers ever assembled in a Miami Beach hotel. (The prostitutes were recruited from as far away as New York City.) Although the record companies spent an estimated $250,000 on this spectacle, and their top executives were in attendance, it was the DJs who were pilloried in the press."

Eight months passed between the investigation and the hearings. For radio it was eight brutal months in which every other media platform beat the tar out of them. It was a full-on media flogging. Payola was the vocab word of the day every damn day.When WABC fired Freed on November 20th the flood gates opened:

June 08 - Time Magazine: P is For Payola
Nov. 16 - Billboard: Clearing The Air 
Nov. 23 - Life Magazine: Gimmie, Gimmie, Gimmie,On the Old Payola
Nov. 25 - Miami Herald: Booze, Broads, Bribes 
Dec. 04 - Billboard ...Payola Scandal
Dec. 05 - The Nation: Payola, Sing A Song For Sixpence
Dec. 07 - Life Magazine: Payola Axes 'King' Freed
Dec. 14 - Billboard: Thorn In Industry Side
Dec. 17 -  Jet: Music Experts Predict Death of Rock 'N' Roll
Jan. 01 -U.S. News & World Report: Payola- An Inside Story
Jan. 18 - Billboard: Slugfest at FCC Hearings
Jan. 21 - Jet: Disc Firms Pay me $855 Monthly  
Jan. 25 - Billboard: Payola Crackdown

On February 8th 1960 the House Special Subcommittee on Legislative Oversight began it's investigation.  it was chaired by Oren Harris [D] of Arkansas. But while the crimes were real, the investigation was a sham. The big star witness was Norman Prescott of WBZ-AM. The feds confronted him with canceled checks from record distributors and blackmailed him into testifying.From there it was a slaughter eventually leading to the inevitable recriminations, criminalization and frequent investigations of today.

It went on for a year.By June of 1959 Billboard was publicly questioning whether there should be a 3rd Annual Todd Storz' Disc Jockey Convention. The first convention had been in Kansas City in 1958. Mitch Miller used it as a forum to harangue rock programmers and to blame rock n' roll music for the vagaries of youth. He got a standing ovation.  In some deranged way the 2nd convention was used to "prove" his point. some stations dropped their tainted DJs and flipped formats. In the end Todd Storz walked. He got off scot-free. His stations being Top-40 were purported to be immune from the influence of payola as they did not debut records. He used the corrupt commerce at his own convention as a marketing gimmick for his own Top-40 Format. It was bunk of course.

Many stations held on to rock n' roll.  Some even fired back at TV and print media. WSAI-AM in Cincinnati took their local paper to task with a series of "Newspaper Critiques." Print had been soft balling and/or quietly promoting their advertisers products. the CBS Network got in on it and they not-so-gently reminded their friends in print that hypocrisy is even less appealing than bribery. In the end they had already taken down Freed, and dozens of other DJs.. for some reason they didn't want Storz or Dick Clark or anyone else. Justice was ultimately as indiscriminate as it was symbolic.

Plugola, not Payola

plug·o·la

n. Advertising or publicity that is intended for self-promotion and not paid for or underwritten by an independent sponsor:

Sometimes I have to start with new vocabulary words. There is a subtle and legally relevant distinction between payola and plugola. They are both unlawful. Rather than rehash the existing body of legal options on the topic I'll quote attorney Greg Skall who specialized in telecommunications law and is also a member of Museum of Broadcasting Hall of Fame, inducted in 2003. His opinion in other words, hold more water than my own. I paraphrase ever so slightly for reasons of limited space. More here and here.

"Payola occurs when anything of value is accepted, or agreed to be accepted, in return for the broadcasting of records or any other material without disclosing that the payment was made. Payment does not have to be money; it could also be services [or goods.] Plugola is promoting the non-broadcast activities of the station licensee or an on-air personality on the air. ...Plugola occurs only when the financial interests are those of persons responsible for including promotional material in a broadcast. The  violation occurs...from failing to disclosure to the station management and the listening or viewing audience that the record was played or the plug was mentioned for a payment or benefit."

Payola is pay for play.  Plugola is name-dropping the salsa you and your cousin make. The root problem is the same though. It's the failure to disclose sponsors. Also known as a violation of the sponsorship identification rule.  That's something the FCC actually cares about.I'll quote that a bit as well.

"Section 507 of the Communications Act, 47 U.S.C. § 508, requires that, when anyone provides or promises to provide money, services or other consideration to someone to include program matter in a broadcast, that fact must be disclosed in advance of the broadcast, ultimately to the station over which the matter is to be aired.  Both the person providing or promising to provide the money, services or other consideration and the recipient are obligated to make this disclosure so that the station may broadcast the sponsorship identification announcement required by Section 317 of the Communications Act.  Failure to disclose such payment or the providing of services or other consideration, or promise to provide them, is commonly referred to as ``payola'' and is punishable by a fine of not more than $10,000 or imprisonment for not more than one year or both."

In other words to the FCC, plugola and payola, while mechanically different, violate the same rule. But yet the distinction persists. In the 1960 Reform Broadcast Bill was one of many attempts to reform these dubious and/or illegal broadcasting practices. But uniquely it was one that sort of worked.  It did a lot more than address payola, whole books have been written about it's effects on civil rights. More here. But specifically it addressed Plugola and Payola in a set of amendments. In 1961 FCC commissioner Harold C. Cowgill issued a warning "Watch out and be ready for a strict accounting on programming and all other aspects of broadcast regulation." 

500 dollars

I mentioned Al Jarvis and the Make Believe Ballroom once before in passing. His signifigance as an early disc jockey should not be under-rated. In 1932 Al Jarvis began hosting the Make Believe Ballroom. He was a DJ in a time when record labels still sued to prevent airplay. Jarvis was born in 1909 in Canada, to Russian emigrant parents. Little did they know that he would move to Los Angeles, become Americas first DJ and they the very first to succumb to the allure of payola. So far as I know Jarvis never commented on the payola, but did comment on his early DJ status:

"I was hounding the owner-manager to let me air pop records instead of those electrical transcriptions. By using commercial records, I figured, I woudl nto only have a more diversified program, but I could present some of the world's greatest stars. It was the first time on radio, it was the first time any records were played. "

It was a lie of course. But I think it was well meant. The point of his program was not just that he played records but that it w2as him playing them. In his program the DJ was not just a stiff narrator reading copy. So it is only fitting he be the recipient of the first payola.

It cost $500. In 1935 publicist Charlie Emge paid Al Jarvis $500to air Benny Goodman's records. Goodman was on a cross-country tour and Charlie was trying to stir up some advance interest in the swing band before they got to Los Angeles. The cross-country tour was not doing well. But the advance airplay in Los Angeles led to a stay at the Palomar Ballroom. That gig began on August 21 and is considered the beginning of the Swing Era. The Palomar had a capacity crowd that night and the show was broadcast live on the CBS network. More here.

Emge was unstained by the connection. He was just a writer and publicist at the time, and part owner of Tempo Magazine. By 1946 he was the west coast editor for Down Beat magazine.
KELW later became KFWB. In 1946 Al Jarvis crossed the street to KLAC getting paid an amazing quarter million dollars a year. But the rise of Rock n' Roll undid him, and he moved back to KFWB a couple years later. The Pallomar Ballroom was destroyed by a fire in late 1939.

Dark Payola

The term is new, but the nomenclature is questionable. I like the sensational effect of the term which is to compare the term with blatant bribery. But it's inaccurate. But i've been seeing the term for almost a year now so I have come to accept that it's part of the jargon now. The oldest reference I can find is in an East Bay express article from April of last year. It's an interview with Rusty Hodge of SomaFM. I don't know if he invented the term but the SF weekly re-used it in the big feature that really laid out the problem. Dark Payola Emerges!

It's s a growing problem with a few moving parts so let's start with the most important fact. I'll quote John Gorman if you don't' mind.

In the record business there is nothing – absolutely nothing - more important than chart position. It’s what label sales weasels use to sell clients on what music to stock at retail.

Labels will do anything, anything for airplay and airplay equals chart position. They have promotion departments that gauge themselves on airplay on an hourly basis. Companies track the airplay and cut it into a hundred different kinds of reports so they can continue to rehash the data to more precisely measure and value the information. It's a high-pressure gig. Anyone that read the emails that Spitzer subpoenaed knows that bribery is just the ground floor. So boring old-fashioned bribery like payola is just pedestrian.

In March of 2007 SoundExchange cut a deal with the big four major labels setting webcast royalties. It raised the rates significantly. As you probably heard, they increased rates for most webmasters to 10 times their income and many ceased to exist. Soma for example went from a $10,000 to a $600,000 bill. SoundExchange agreed to apply the charges retroactively. This was putative, and offensively unfair. It killed internet radio. And they weren't even done yet.

The players that remain are big. Yahoo, AOL, Live 265... some of them have gone on to negotiate direct licenses for airplay at reduced rates. The labels instead of paying bribes, cut discounts on royalties. For them the added bonus is that the money is stolen from the artists they represent. Sadly this is totally legal.

The result is that webcaster playlists include more major label music because it's cost-effective. Soundexchange has argued that webcasters are equally free to cut similar deals with those labels. But ethical dynamics aside, it's not possible for 100,000 webcasters to cut individual deals with 100,000 indie labels. That's so unreasonable in fact that a single group was designated to negotiate that massive deal: Soundexchange. They just fucked it up so bad as to negate their purported purpose for existing.

Tom Clay was a wack job.

I cite three prime events that prove my thesis :
1. He was busted for payola and lost his job

2. Despite this he went on to defraud the residents of Detroit of about half a million dollars.

3. He accidentally cut a top 10 single.

These were not three random events. These were well thought out goals. Tom just wasn't working off the same life-planning sheet as the rest of us.

Mr. Clay was born in 1929, an indigenous New Yorker (real last name Clague) He rose to popularity in the1950s as a Detroit area DJ on 1490 WJBK-AM. It was a good job that parlayed into side gigs hosting dances and events. He screwed it up in 1959 by accepting over $6,000 in payola bribes thereby falling in to scandal and disrepute. In 2005 dollars that bribe would be over $40,000. By comparison, Alan Freed accepted about $34,000 in payola bribes at the same time. Bigger fish = bigger bribes. More on that here and here.

He gets lucky and crosses over to work at a Canadian station in the same market 800 CKLW-AM in neighboring Windsor, Ontario. At the time, the station was a taste-making Top 40 station, back when AM stations could do that. He did a Beatles interview there. More here.

So after burning his ass mishandling the till, he gets fired from CKLW-AM for something equally as bad. He hatched this scheme. He started a non-existent Beatles Fan club. And members paid $1 to join. The club had no benefits so the $1 just got a sticker or something. But with 80,000 not-so-bright members that means 80,000 one dollar bills appeared in his personal PO box. That's $506,940 in today's dollars. So yeah, they really had to fire him.

He tried to stay in the Motor City, but after some short gigs at 1310 WWWW-AM, 560 WQTE-AM, and WTAK-AM he had to leave town. He did manage to get some part-time work at 1020 KGBS in Los Angeles. It would never parlay into a full-time gig... but it did get him production studio access which turned out to be really very important for his future. 

It was there that he put together a medley of sorts. It was based around the song "What the World Needs Now Is Love" performed by the Blackberries. It was originally written by Burt Bacharach with lyrics by Hal David and originally performed by Jackie DeShannon. Over this Clay interspersed a narrative made of sound clips from speeches by John Kennedy, Robert Kennedy, and Martin Luther King Jr. It was a little schlocky but so was that 7 o'clock News/Silent Night song that Simon and Garfunkel did in 1966 and it's considered a classic protest song.

The single "What the World Needs Now Is Love" went to #8 on the Billboard chart. A follow-up album had respectable sales, but his second single single, "Whatever Happened To Love" tanked and he ended up collecting unemployment checks. Tom did a show on 1490 KBLA-AM. But his time in radio came to and end and Tom finished his career doing voice over. Cancer got him in 1995. If his discography interests you, his hit single was originally part of an LP. It's track listing is as follows:

     (Side 1)
      1. What the World Needs Now (Abraham, Martin & John) - 6:19
      2. Whatever Happened To Love (Butler, Tom Clay) - 3:13
      3. What's Going On (Cleveland, Gaye, Benson) - 3:07
      4. For Years? (Tom Clay) - 1:58
      5. The Victors (Tom Clay) - 4:35

      (Side 2)
      1. MacArthur Park (Webb) - 1:32
      2. This Guy's In Love with You - 4:13
      3. Baby I Need Your Loving (Holland, Dozier& Holland) - 2:30
      4. Both Sides Now (Mitchell) - 3:50
      5. Bridge Over Troubled Water (Simon) - 2:30

BUSTED FOR PAYOLA

I try to avoid current events, but this really got me going (since I am an ex-promo man myself). The way the gears have turned in the record industry hasn't changed in half a century. This most recent Sony scandal isnt going to change a thing. There will be a few new sacrifical lambs.Alan Freed was driven out of the buisness. Sony will probably make a charitable contribution. The Radio staitons will probably get a tersely worded warning.

If you hadn't heard... Sony got busted for Payola.
Below are quotes from emails naming radio stations they bribed for airplay.
I quote some great lines below. but the full text from Spitzer is here:
http://www.oag.state.ny.us/press/2005/jul/payola2.pdf

In discussing a bribe given to a radio programmer in Buffalo, one promotion executive at Sony BMG's Epic Records wrote to a colleague at Epic: "Two weeks ago, it cost us over 4000.00 to get Franz [Ferdinand] on WKSE. That is what the four trips to Miami and hotel cost . . . At the end of the day, [David] Universal added GC [Good Charlotte] and Gretchen Wilson and hit Alex up for another grand and they settled for $750.00. So almost $5000.00 in two weeks for overnight airplay. He told me that Tommy really wanted him to do it so he cut the deal."

Another Epic employee who was trying to promote the group Audioslave to a Clear Channel programmer asked in an email: "WHAT DO I HAVE TO DO TO GET AUDIOSLAVE ON WKSS THIS WEEK?!!? Whatever you can dream up, I can make it happen."

A promotion employee unhappy with the times assigned for spins of the song "I Drove All Night" by Celine Dion wrote this internal email: "OK, HERE IT IS IN BLACK AND WHITE AND IT'S SERIOUS: IF A RADIO STATION GOT A FLYAWAY TO A CELINE [DION] SHOW IN LAS VEGAS FOR THE ADD, AND THEY'RE PLAYING THE SONG ALL IN OVERNIGHTS, THEY ARE NOT GETTING THE FLYAWAY. PLEASE FIX THE OVERNIGHT ROTATIONS IMMEDIATELY."