The messy suicide of commercial radio series; (part 11) payola isn’t dead. It always smelled like that (IV)

During that investigation, several Sony/BMG promotion department memos became public:

• “Please be advised that in this week’s Jennifer Lopez Top 40 Spin Increase of 236 we bought approximately 63 spins at a cost of $3 600.”

• “Please be advised that in this week’s Good Charlotte Top 40 Spin Increase of 61, we bought approximately 250 spins at a cost of $17K.”

• “We ordered a laptop for Donnie Michaels at WFLY in Albany. He has since moved to WYHI in Miami. We need to change the shipping address… . Can you work with Donnie to see what kind of digital camera he wants us to order?”

• Michaels proved to be a problem for Sony/BMG promotion in general. In addition to the computer, apparently they booked him on a junket to Las Vegas. The Sony exec planning the trip sent a memo warning, “Make sure Donnie is not staying in a room too high; he has a fear of heights.”

Sony agreed to stop paying for play, hire a compliance officer, and pay a $10 million fine, which the attorney general’s office turned over to the Rockerfeller Philanthropy Advisers for distribution among New York nonprofit organisations. It also paid the attorney general’s office $100 000 toward the cost of Spitzer’s investigation. In an internal memo, it announced the “promotion” of company attorney Gil Aronow to the post of compliance officer.

It further warned all employees against:

• Misrepresenting “their identities in order to influence the selection of music on radio or television programming, and that includes, of course, calling a radio station posing as a member of the general public to request airplay for Sony/BMG tracks.” This would, effectively, defeat the purpose of street teams, however.

• Providing radio stations with CDs, DVDs, concert tickets, or “other product” if you didn’t work in the promotions department.

Not long afterward, the Warner Music Group paid a $5 million “fine” and made similar concessions to settle the investigation into its radio payoffs. EMI settled for $3.75 million, while the largest major record company, the Universal Music Group, got hit for $12 million. Certainly these are semiserious fines, but they were levied against corporations. No one, to this date, has done real time for payola violations, despite the federal statute that provided penalties of up to $10 000 and/or incarceration for up to a year.

One way to get around any legal prohibitions is to simply think of the song as an advertisement. Some promoters bought three-minute blocks of airtime to get certain songs on the radio. The radio stations preceded those songs with an announcement that they were brought to the listener by whoever paid to have them played. And, of course, the PD – as salesperson for the ad – pocketed the commission. “The difference between what’s legal and illegal mostly boils down to disclosure,” noted Surowiecki.

If a radio station announces that it’s been paid to play a song – which it can do by saying something like “This song is sponsored by Arista” – then it can take the money. If it doesn’t, then it can’t. But, although this rule is hard and fast, there are all sorts of loopholes in determining whether there’s been a quid pro quo, and independent promoters take advantage of them.

Even paying for play in this manner doesn’t guarantee a hit. All the promotion in the world, all the payola in the world, and all the airplay in the world will not turn a terrible record that no one wants to hear into a hit. As Dick Clark said:

I ran a test once to prove that you couldn’t break a record by playing it if the record just didn’t have it. I played a record every day for seven months. It was a record by Tommy Sands, I’ve forgotten the title. It had all the earmarks of a hit… . I wrote a letter to myself and sealed it. It’s still sealed, I never opened it. I enclosed a copy of the record and I wrote, “Capitol Records, one of the largest companies in the world, is promoting this record by this young singer who has several hits, the writers are good, the promotion behind the record is good, there is every indication that the record could be a hit except it stinks. It will not be a hit. However, I will play it every day… to prove that you can not make a record by exposure alone.” And it never was a hit. I ran into Tommy Sands years later and he said, “I always wondered why you played [that song] every day.” I told him the story. The letter still resides in a briefcase I’ve got sealed up for posterity. But the important part is that you can’t make a record a hit by playing the hell out of it.

Surowiecki agreed. “A well-worn truism in the music industry is that you can’t buy a hit, and I still believe that, for the most part, is true. People can’t really be fooled or bludgeoned into liking something they don’t.”

But beyond that, during the heyday of the 1950s payola scandal, it would seem that Spitzer’s criteria of “quality… artistic competition” and “aesthetic judgments” were more in play than they were when he went after the record companies. As we’ve seen, broadcasting had already become pretty homogenised. The only quality radio seems to value currently is sameness, familiarity. Spitzer’s stated quest for eliminating payola in the hope of a level artistic playing field didn’t necessarily correspond to the criteria radio programmers looked for in the music they put on the air. They just wanted better flypaper for attracting more flies.

So the latest payola “scandal” boiled down to some slapped wrists, some bitten sound, and a lot of publicity putting the candidate for governor on a national stage.