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.

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."