On March 6, 2013, Future of Music Coalition submitted reply comments to the United States Copyright Office Notice of Inquiry Concerning Orphan Works and Mass Digitization. All reply comments can be viewed here.

This reply followed FMC’s February 4, 2013 initial filing. All initial filings can be viewed here.

FMC fully supports the promulgation of rules that allow for an increased number of LPFM stations as well as more diverse, original programming at those stations.  Additionally, we assert that careful attention should be paid to how these stations are utilized, and whether they are helping to foster local culture and community engagement. From our perspective, this goal is at the heart of the Commission’s own work around LPFM — from the initial conception of how to best utilize these frequencies to provide true local radio to the present Notice.

This filing builds on ongoing work by FMC to ensure a more vibrant, accessible radio landscape for musicians.

On February 15, 2012, Future of Music Coalition sent a letter to the Federal Trade Commission voicing concerns about the propsed aquisition of EMI Music by Universal Music Group (UMG). In it, we describe how competition allows for more innovation and opportunities for artists, and that the sheer market power of a post-acquisition UMG would inhibit the growth of the legitimate digital music marketplace.

The Honorable Julius Genachowski 
Chairman 
Federal Communications Commission 
445 12th Street, SW 
Washington, DC 20554 

Re: MB Dkt 09-182, 2010 Quadrennial Review – Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996 

Dear Chairman Genachowski: 

We, the undersigned organizations, urge the Federal Communications Commission to make diversity a central focus of its upcoming Quadrennial Media Ownership Rule Review.  

The strength of our country lies in the diversity of our people. Our media system will better serve the public interest when it draws on the diverse backgrounds, perspectives and talents of the population. Unfortunately, ownership of the nation’s media outlets consistently fails to reflect this diversity.  

Women and people of color historically have been grossly underrepresented in ownership of radio and television stations — media forms that use the public airwaves and rank as our nation’s most popular and influential outlets. Women comprise over 51 percent of the population yet hold only 6 percent of radio and TV station licenses. And while people of color make up over 36 percent of the U.S. population, they hold just over 7 percent of radio licenses and 3 percent of TV licenses.1

The continued absence of FCC action in the face of deep and intractable ownership disparities is unacceptable. The U.S. Court of Appeals for the Third Circuit recently affirmed that “ownership diversity is an important aspect of the overall media ownership regulatory framework.”2 Yet the FCC has failed to adopt proactive policies to remedy these disparities. Furthermore, it has persistently neglected even to examine or address the impact of existing media market consolidation on broadcast ownership opportunities for women and people of color. The FCC must take care not to repeat the mistakes of prior administrations by “pun[ting] yet again on this important issue.”³

Most importantly, while the FCC assesses the impact of its media ownership rules and pursues more active measures to address longstanding disparities in broadcast media ownership, it must not undercut the benefits of such measures by allowing greater consolidation of broadcast outlets.  

Existing media concentration levels already limit ownership opportunities for historically underrepresented groups. Excess consolidation has crowded out female and minority owners, who tend to be single-station owners who cannot compete with consolidated groups for programming and advertising revenue. Allowing increased consolidation in local media markets would raise station prices and further diminish the already limited number of stations available for purchase. This would leave women and people of color with fewer opportunities to become media owners and promote diverse programming in local communities.  

In conclusion, we urge the FCC to do the following: 

1. Evaluate the impact of its media ownership rules on ownership opportunities for women and people of color. 
2. Take proactive measures to promote ownership of broadcast stations by underrepresented groups. 
3. Guard against further erosion of media ownership among these groups by maintaining existing media ownership limits. 

Absent these measures, ownership levels among underrepresented groups will continue to decline and the promise of a diverse media system that serves the information needs of all people will continue to elude our nation. 

Respectfully submitted. 

Access Humboldt  
Alliance for Community Media 
American Association of University Women 
Asian American Journalists Association 
Bitch Media 
Center for Media Justice 
Center for Social Inclusion 
Common Cause  
Digital Sisters 
Ella Baker Center for Human Rights 
Fairness and Accuracy in Reporting  
Feminist Majority Foundation 
Free Press 
Future of Music Coalition 
Hollaback! 
Institute for Local Self-Reliance 
International Museum of Women 
Media Alliance 
Media Equity Collaborative 
Media Literacy Project 
MomsRising 
National Alliance for Media Art & Culture 
National Association of Black Journalists 
National Association of Hispanic Journalists 
National Council of Negro Women 
National Council of Women Media and Technology Task Force 
National Council of Women’s Organizations  
National Hispanic Media Coalition 
National Lesbian and Gay Journalists Association 
National Organization for Women Foundation 
National Women’s Law Center 
Native American Journalists Association 
Native Public Media 
New Moon Girls 
People’s Production House 
Prometheus Radio Project 
Rainbow PUSH Coalition 
Reclaim the Media! 
Reel Grrls 
Southern Connecticut State University Women’s Studies Program 
SPARK Movement 
UNITY: Journalists of Color 
Women, Action, & the Media 
Women In Media & News 
Women’s Media Center 
Women Who Tech 

¹ S. Derek Turner, Out of the Picture 2007: Minority & Female TV Station Ownership in the United States, 2007, http://www.freepress.net/files/otp2007.pdf, and S. Derek Turner, Off the Dial: Female and Minority Radio Station Ownership in the United States, 2007, http://www.freepress.net/files/off_the_dial.pdf.  

2 Prometheus Radio Project v. FCC, 652 F. 3d 431, 472 (Third Circuit, 2011) 

³ Id. at 471. 

This case is based on televised expletives aired on the 2002 and 2003 Billboard Music Awards broadcasts. Originally, the FCC determined that the utterances, whether intentional or not, were indecent after a slew of complaints were sent to the commission. During such an evaluation, the FCC queries whether the utterances “depict[ed] sexual or excretory organs or activities.” Fox appealed the ruling, and the Supreme Court held that the FCC’s ruling should stand because it was not “arbitrary and capricious” (in non-legalese that just means the FCC didn’t act crazy). When the Supreme Court sent the ruling back down to the Second Circuit Court of Appeals, those New York-based justices declared the indecency policy so vague that it unconstitutionally restrained speech. On its second trip up to the highest of high courts, we should get a final answer as to whether the FCC’s indecency policy will stand.

Like FMC’s previous amicus briefs from July 2008 and September 2009, this filing demonstrates the “vague and arbitrary” nature of the FCC’s current indecency policy. The result of this policy has been a chilling effect on creativity on the public airwaves, due to broadcasters’ fears of getting fined for airing “offensive” content. For example, Ken Burns’ WWII documentary “The War” was aired in two different versions to satisfy PBS affiliates worried about possible FCC sanctions. Creators are left guessing what constitutes indecent material, which leads to self-censoring and ultimately deprives the public (and artists) of access to a variety of worthwhile content.

On August 10, 2011, the New Orleans-based brass-funk-rock band Bonerama sent a letter to the members of the Louisiana Congressional Delegation in support of National Public Radio and their local affiliate, WWOZ.  Public radio’s support over the years has been instrumental in the band’s success, just as it has for many developing artists across the country.  Download a PDF of the letter below.

–

Members of the Louisiana Congressional Delegation,

We, the members of Bonerama, are writing in support of National Public Radio and non-commercial radio.  National Public Radio is a principal vehicle for fostering the growth of local music communities and helps to maintain the vitality of American Arts and Culture.  NPR has been instrumental in delivering the unique sounds of our hometown of New Orleans to music enthusiasts across the country year-round. Without this kind of exposure, the musicians of Louisiana would not be able to expand their networks and grow their brands and businesses.

Bonerama is a trombone jazz funk and rock band that formed in New Orleans in 1998. The individual members of the band originate form all across the country, but were drawn together by the spirit and soul of New Orleans. The band gained a regional audience through its residency at Tipitina’s in the French Quarter. This original gig allowed Bonerama to begin to tour and eventually release three live albums.  In 2008, the band teamed up with indie pop stars OK Go for the EP You’re Not Alone, to raise money for New Orleans musicians displaced by Katrina.  Last year, we released our first studio-recorded EP, Hard Times.  Hard Times includes a cover of Led Zeppelin’s “When the Levee Breaks,” as well as the song “Lost My House,” which is a true account inspired by the levee failures of 2005. Hard Times received significant local press and was brought to the attention of national audiences through NPR.  In April, NPR featured Bonerama on a compilation of bands as a lead up to the 2011 New Orleans Jazz and Heritage Festival.

The music of Louisiana maintains its vibrant nature due to deep cultural roots and the individual communities that grow from those roots. Public radio in Louisiana is the number one platform for delivering and developing local artists that continue to build upon the history and traditions that precede them.  WWOZ, the New Orleans Jazz and Heritage Station, is a prime example of such a public radio station. Over the last few years, NPR has paired with WWOZ to provide nationwide coverage of the Jazz Festival, and bring the sounds of Louisiana to listeners across the country.

Bonerama is essentially a small business making a living off our local export, Louisiana culture and music. Public radio and NPR has been the largest promotional device for our business and Louisiana music and culture as a whole. If Congress votes to limit federal funding for NPR and non- commercial radio stations, small local stations that are in true need of such funding will have to cut jobs. The ability to program and feature a multitude of rising diverse local artists will be limited and national exposure to Louisiana music and culture will be diminished. As working musicians with close bonds to the community, Bonerama believes that the de-funding of public radio would cause a debilitating blow to both the culture and economy of our great state of Louisiana.

Thank you for your time,
Craig Klein
Mark Mullins
Greg Hicks
Bert Cotton

Bonerama
  

In June 2011, FMC signed onto an amicus (friend of the court) brief in Golan v. Holder, a case currently pending at the Supreme Court. The case challenges Congress’s implementation of the Uruguay Round of Agreements Act (URAA), which removes some works created by foreign authors from the US public domain and restores their copyright protections. Congress enacted this law in order to comply with an international trade agreement called the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

Co-signers include such groups such as the American Music Center, Chorus America, Fractured Atlas, the National Association for Media Arts and Culture, the National Alliance for Musical Theatre, and the National Performance Network, as well as academics and individual creators like Jonathan Lethem and Michael Chabon.

In Golan v. Holder, numerous parties (including orchestra conductors, educators, performers, publishers, film archivists and motion picture distributors) challenged the provisions of the URAA that remove works from the public domain. They argue that Section 514 of the URAA is unconstitutional because it violates their First Amendment rights of free expression. When the foreign works were in the public domain, these parties were free to use them in performances, incorporate them into their own projects, or use them as building blocks to create new works. When the URAA removed the works from the public domain, these “reliance parties” (authors who relied on those works being free to use) were left with few options. Basically, they could either refrain from using the foreign works or pay for the use they originally believed would be free.

FMC believes that the public domain is important to musicians and other creators and performers who draw upon the public domain for their own creative expression. If the Supreme Court decides that Congress can take works out of the public domain, it could set a precedent for future attempts to further deplete it.