Payola, part 2 of 5
Legal Definitions
Now let's cover what payola
actually is and isn't. First of all, there is no such thing as "legal payola",
just like there is no such thing as "legal theft". An activity is either illegal
payola, or it is legal. The grand rule that governs the whole thing is section 317 in the
Code of Federal Regulations...
40 FCC 317 reads: "All matter broadcast by any radio station for which any money,
service or other valuable consideration is directly or indirectly paid, or promised to or
charged or accepted by, the station so broadcasting, from any person, shall, at the time
the same is so broadcast, be announced as paid for or furnished, as the case may be, by
such person: PROVIDED, that the 'service or other valuable consideration' shall NOT
include any service or property furnished without charge or at a nominal charge FOR USE
ON, or in connection with, a broadcast unless it is so furnished in consideration for an
identification in a broadcast of any person, product, service, trademark, or brand name
beyond an identification which is reasonably related to the use of such service or
property on the broadcast."
What this says is that if something of value (say, $500 cash, or a DVD player, or 100 CDs)
is given to a station with the UNDERSTANDING that a particular song must be played in
order for the station to get the valuables, then this fact must be announced to the
listeners. If the announcement is made, everything is legal; if not, it is payola.
However, if something of value (say, $500 cash, or a DVD player, or 100 CDs) is given to a
station for the purpose of GIVING IT AWAY ON AIR during regular programming, then NO
announcement is required, and the situation remains perfectly legal. (This is how game
shows work.) Here are some FCC examples:
40 FCC 3.119 Example A-1 reads: "A record distributor furnishes copies of records to
a broadcast station or a disc jockey for broadcast purpose [i.e., airplay]. No
announcement is required unless the supplier furnished more copies of a particular
recording than are needed for broadcast [airplay] purposes. Thus, should the record
supplier furnish 50 or 100 copies of the same release, with an AGREEMENT by the station,
express or implied, that the
record will be used on a broadcast [i.e., the song will get airplay], an announcement
would be required because consideration BEYOND the matter used on the broadcast was
received." . This example points out the difference between giving a station
something to keep, versus giving a station something to giveaway on-air; this is the thing
that makes the difference. Here's more clarification:
Section C reads: "[No announcement is required] where service or property is
furnished free FOR USE ON or in connection with a program, but where there is neither
payment in consideration for broadcast exposure of the service or property, nor an
agreement for identification of such service or property BEYOND ITS MERE USE ON THE
PROGRAM" . Thus, you can give a station whatever you want, as long as it is given
away on-air, i.e., used on the regular programming. More:
Example C-10 reads: "Free books or theater tickets are furnished to a book or
dramatic critic at a station. [All] the books or plays are reviewed on the air. No
announcement is required." But: Example B-7 reads: "A perfume manufacturer gives
five dozen bottles to the producer of a giveaway show, SOME of which are to be identified
and awarded to winners on the show, the remainder to be RETAINED by the producer. An
announcement is required since those bottle of perfume retained by the producer constitute
payment for the identification." .
So, it should be clear that giving a station anything for giveaway on air is perfectly
legal; giving a station anything that will NOT be given away on air (except of course your
CD for airplay), if there is an understanding that you are doing it so they will play your
stuff, is payola.
Conclusion: Paying stations is
not a tool for a small indie to get airplay.
© Bryan Farrish Jan. 2003
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Bryan Farrish Radio Promotion is an
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promotion company. 818-905-8038 www.radio-media.com.
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