II 

108TH CONGRESS 

1ST SESSION S. 221

To amend the Communications Act of 1934 to facilitate an increase in 

programming and content on radio that is locally and independently 

produced, to facilitate competition in radio programming, radio advertising, and concerts, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 28, 2003

Mr. FEINGOLD (for himself and Mr. MILLER) introduced the following bill; 

which was read twice and referred to the Committee on Commerce, 

Science, and Transportation 

A BILL

To amend the Communications Act of 1934 to facilitate 

an increase in programming and content on radio that 

is locally and independently produced, to facilitate competition in radio programming, radio advertising, and 

concerts, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Competition in Radio 

5 and Concert Industries Act of 2003’’. 
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1 SEC. 2. FINDINGS; PURPOSE. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) Pursuant to the Telecommunications Act of 

5 1996 (Public Law 104–104), the Federal Commu6 nications Commission eliminated national ownership 

7 rules, and revised local ownership rules, for radio 

8 broadcast stations. 

9 (2) This deregulation of ownership rules has 

10 materially altered the radio broadcast industry and 

11 resulted in a concentration of ownership of radio 

12 stations and a corresponding reduction in localism. 

13 The number of radio station owners decreased from 

14 5,100 in 1996 to 3,800 in 2001, a decrease of 25 

15 percent. 

16 (3) Segments of the radio, concert, and concert 

17 promotion industries have also become vertically in18 tegrated. In some cases, radio station owners, and 

19 concert promoters have common ownership, as well 

20 as exclusive agreements to manage concert venues. 

21 As a result, these radio station owners have the in22 centive and ability to favor the musical artists and 

23 groups they promote. 

24 (4) This could make it more difficult for non25 affiliated concert promoters to secure air time, for 

26 nonaffiliated musical artists or groups to secure air 
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1 time, and for nonaffiliated radio stations to secure 

2 access to musical artists or groups. 

3 (5) According to a number of recent studies, in 

4 the rapid consolidation of the radio, concert pro5 motion, and concert venue industries in the 5-year 

6 period following the enactment of the Telecommuni7 cations Act of 1996, concert ticket prices have in8 creased by more than 50 percent more than such 

9 prices had increased in any previous 5 year-period. 

10 (6) According to some estimates, from l991 to 

11 1996, the average concert ticket price increased by 

12 approximately 21 percent, compared to an increase 

13 in the Consumer Price Index of about 15 percent. 

14 From 1996 to 2001, the average concert ticket price 

15 increased by more than 61 percent, while the Con16 sumer Price Index increased by 13 percent. 

17 (7) There is a substantial public interest in pro18 moting the values embraced by the first amendment 

19 to the Constitution, and the public interest, conven20 ience, and necessity, by increasing the presence of 

21 independently-owned and locally-produced content on 

22 radio. 

23 (8) There is a substantial public interest in pro24 moting the value embraced by the first amendment 
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1 to the Constitution by strengthening the diversity of 

2 voices provided through media such as radio. 

3 (9) Pursuant to its authority and responsibility 

4 to protect the public interest under the Communica5 tions Act of 1934, the Commission has sought to 

6 promote diversity and competition in radio broad7 casting. 

8 (10) The promotion of independently-owned and 

9 locally-produced content in radio not only addresses 

10 the primary objective of the Commission to guar11 antee adherence to the first amendment to the Con12 stitution, it also increases competition of audio in 

13 the provision of audio programming, in radio adver14 tising, and in concert venue and concert promotion. 

15 (11) The concentration of ownership of radio 

16 stations and a corresponding reduction in localism 

17 following the enactment of the Telecommunications 

18 Act of 1996 has exceeded that intended by Congress 

19 in enacting that Act. 

20 (12) In 1995, the top 50 radio groups owned 

21 8.6 percent of the total number of radio stations. By 

22 2000 they owned 27.5 percent of the total number 

23 of radio stations. 

24 (13) In 1995, the top 50 radio groups ac25 counted for 43.6 percent of the total revenues going 
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1 to all radio stations. By 2000 that percentage had 

2 increased to 62.5 percent.

3 (14) The top 10 groups account for almost 50 

4 percent of all radio station industry revenues, while 

5 owning 17.6 percent of all commercial radio stations.

6 (15) This consolidation has also caused some 

7 radio station groups to collect alternative sources of 

8 income, including establishing exclusive agreements 

9 with independent promoters, establishing fees for 

10 play list monitoring, and limiting radio promotion of 

11 concert tours to musical artists and groups playing 

12 at venues owned by such groups. 

13 (16) These practices, when coupled with the in14 creased concentration of the ownership of radio sta15 tions, have the potential to reduce the diversity of 

16 music and other material made available to the 

17 American public over radio as stations make pro18 gramming decisions for reasons other than the li19 censee’s bona fide determination whether the mate20 rial serves the public interest. 

21 (17) Current Commission rules prohibiting pay22 ola predate the enactment of the Telecommuni23 cations Act of 1996, and the evolution of new pro24 motional practices, and do not directly address the 

25 applicability of sections 317 and 507 of the Commu-
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1 nications Act of 1934 (47 U.S.C. 317, 508) to such 

2 new promotional practices. As a result, radio sta3 tions engaging in such practices do not make any 

4 sponsorship identification announcements in connec5 tion with the broadcast of material which are the 

6 subject of such practices. 

7 (18) These types of practices are inconsistent 

8 with the public interest and with the policies enun9 ciated in sections 317 and 507 of the Communica10 tions Act of 1934. In order to assure compliance 

11 with these sections, the Commission should revise its 

12 rules implementing those sections to prohibit these 

13 practices and to facilitate the broadcast of diverse 

14 radio programs while assuring that legitimate pro15 motional activities can continue. 

16 (19) Promotion of the values embraced by the 

17 first amendment to the Constitution, and the 

18 strengthening of a diversity of voices provided 

19 through media, such as radio, is in the public inter20 est. 

21 (20) A broader diversity of voices through 

22 media sources such as radio promotes the right of 

23 the people under the first amendment to the Con24 stitution to receive a wide range of information. 
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1 (b) PURPOSE.—The purpose of this Act is to promote 

2 the values embraced by the first amendment to the Con3 stitution, and the public interest, convenience, and neces4 sity, by facilitating—

5 (1) better service by radio stations to the local 

6 communities they are licensed to serve, including an 

7 increase in the amount of radio programming and 

8 content that is produced by local and independent 

9 sources; 

10 (2) an increase in competition in radio pro11 gramming and content, radio advertising, concert 

12 venues, and concert promotion; and 

13 (3) more diversity in radio programming. 

14 SEC. 3. PROHIBITION ON USE OF RADIO TO REDUCE PUB15 LIC ACCESS TO DIVERSE RADIO AND CON16 CERT PROGRAMMING AND CONTENT. 

17 (a) REVOCATION OF LICENSE FOR HINDERING

18 AVAILABILITY OF INDEPENDENT, LOCAL PROGRAMMING

19 AND CONTENT.—Section 312(a) of the Communications 

20 Act of 1934 (47 U.S.C. 312(a)) is amended—

21 (1) in paragraph (6), by striking ‘‘or’’ at the 

22 end; 

23 (2) in paragraph (7), by striking the period at 

24 the end and inserting a semicolon; and 
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1 (3) by adding at the end the following new 

2 paragraph: 

3 ‘‘(8) for willful and repeated engagement in un4 fair methods of competition, unfair or deceptive acts 

5 or practices, or tying the use of entities owned by 

6 the licensee or permittee for the purpose of hin7 dering significantly, or preventing, the broadcast of 

8 programming or content, including any sound re9 cording by a musical artist, if such programming or 

10 content is produced or promoted by a person inde11 pendent of the licensee or permittee or the creator 

12 thereof is independent of the licensee or permittee; 

13 or’’. 

14 (b) REVOCATION OF LICENSE FOR HINDERING

15 AVAILABILITY OF CONCERTS.—That section is further 

16 amended by adding at the end the following new para17 graph: 

18 ‘‘(9) for conviction or final adjudication under 

19 an antitrust law or unfair trade practice law of a 

20 violation of such law regarding concert venues or 

21 concert promotion.’’. 

22 (c) PROHIBITION.—That section is further amended 

23 by adding at the end the following new subsection: 

24 ‘‘(h) PROHIBITION ON HINDERING AVAILABILITY OF

25 RADIO PROGRAMMING AND CONTENT AND CONCERTS.—
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1 ‘‘(1) PROHIBITION.—Under such regulations as 

2 the Commission shall prescribe, it shall be unlawful 

3 for any licensee or permittee to carry out an act for 

4 which revocation of a license or permit is authorized 

5 under paragraph (8) or (9) of subsection (a).

6 ‘‘(2) PENALTIES.—A licensee or permittee that 

7 violates paragraph (1) shall be subject to such pen8 alties under title V as the Commission shall pre9 scribe in regulations. 

10 ‘‘(3) CONSTRUCTION WITH LICENSE REVOCA11 TION AUTHORITY.—The penalties provided under 

12 paragraph (2) for an act described in paragraph (1) 

13 are in addition to any other action which the Com14 mission may take under subsection (a) with respect 

15 to such act.’’. 

16 (d) DEFINITIONS.—Subsection (f) of that section is 

17 amended by adding at the end the following new para18 graphs: 

19 ‘‘(3) The term ‘antitrust law’ has the meaning 

20 given that term in subsection (a) of the first section 

21 of the Clayton Act (15 U.S.C. 12(a)). 

22 ‘‘(4) The term ‘unfair trade practice law’ means 

23 the Federal Trade Commission Act (15 U.S.C. 41 et 

24 seq.) and include any State law similar to that 

25 Act.’’. 
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1 (e) REGULATIONS.—

2 (1) IN GENERAL.—Not later than 180 days 

3 after the date of the enactment of this Act, the Fed4 eral Communications Commission shall prescribe 

5 regulations and implement the amendments to sec6 tion 312 of the Communications Act of 1934 made 

7 by this section. 

8 (2) CONSULTATION.—The Federal Communica9 tions Commission shall prescribe regulations under 

10 paragraph (1) in consultation with the Federal 

11 Trade Commission. 

12 (3) ELEMENTS.—The regulations under para13 graph (1) shall prohibit a licensee or permittee of a 

14 radio station, or affiliate thereof, that has an attrib15 utable interest (as determined under section 73.3555 

16 of title 47, Code of Federal Regulations) in a pro17 gramming entity or concert venue or concert pro18 motion service from—

19 (A) improperly influencing the decision of 

20 the entity or service, or any musician or other 

21 programming or content provider, to sell, or the 

22 price, terms, or conditions of sale of, satellite 

23 cable programming or content or satellite 

24 broadcast programming or content to any other 
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1 radio station or unaffiliated concert venue or 

2 concert promotion service; 

3 (B) improperly influencing the decision of 

4 any musician or other programming or content 

5 provider to sell, or the price, terms, or condi6 tions of sale of, any song, work, or sound re7 cording, programming, concert performance, or 

8 concert promotion service to any person or enti9 ty not affiliated with—

10 (i) the licensee or permittee; 

11 (ii) an affiliate of the licensee or per12 mittee; or 

13 (iii) an entity in which the licensee or 

14 permittee has an attributable interest; 

15 (C) discriminating against a musician or 

16 other programming or content provider that 

17 does not agree to enter into a contract or other 

18 arrangement with an entity affiliated with the 

19 licensee or permittee, or in which the licensee or 

20 permittee has an attributable interest, that of21 fers concert venue or concert promotion service; 

22 (D) requiring an exclusive contract or 

23 other arrangement with a musician or other 

24 programming or content provider that prevents 

25 other radio licensees or permittees, concert pro-
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1 motion entities, or concert venues from obtain2 ing programming or content from the musician 

3 or other programming or content provider to 

4 the extent that such contract or other arrange5 ment—

6 (i) impairs, impedes, or prevents com7 petition in radio programming or content, 

8 concert venues, or concert promotion; 

9 (ii) impairs, impedes, or prevents di10 versity of programming or content in local 

11 radio markets; 

12 (iii) is unduly long in duration; or 

13 (iv) contains unreasonable renewal or 

14 extension provisions. 

15 (4) EXCLUSION FROM REQUIRED BIENNIAL RE16 VIEW.—Section 202(h) of the Telecommunications 

17 Act of 1996 (Public Law 104–104; 110 Stat. 111), 

18 relating to the biennial review by the Commission of 

19 its ownership rules, shall not apply with respect to 

20 the regulations prescribed under this section. 

21 SEC. 4. ENHANCED SCRUTINY OF FURTHER CONSOLIDA22 TION IN RADIO. 

23 (a) ENHANCED SCRUTINY.—
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1 (1) IN GENERAL.—Section 309 of the Commu2 nications Act of 1934 (47 U.S.C. 309) is amended 

3 by adding at the end the following new subsection: 

4 ‘‘(m) ADDITIONAL REQUIREMENTS REGARDING

5 RADIO.—

6 ‘‘(1) HEARING ON CERTAIN APPLICATIONS.—

7 The Commission shall designate for hearing any ap8 plication for the grant, transfer, assignment, or re9 newal of a license for a commercial radio station if 

10 approval of the application would result in the appli11 cant, or any of its stockholders, partners, members, 

12 officers, or directors, owning, operating, controlling, 

13 or having an attributable interest, whether directly 

14 or indirectly, in radio stations that have an aggre15 gate national audience reach, as determined in a 

16 manner comparable to the manner provided for tele17 vision stations under section 73.3555(e)(1) of title 

18 47, Code of Federal Regulations, exceeding 60 per19 cent. 

20 ‘‘(2) SHOWING AT HEARING.—In addition to 

21 any other matters required to be shown under this 

22 section, an applicant referred to in paragraph (1) 

23 shall be required to show at a hearing under that 

24 paragraph that the applicant—
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1 ‘‘(A) with respect to all radio stations in 

2 which the applicant has an attributable interest 

3 at the time of application, does not—

4 ‘‘(i) improperly influence the decision 

5 of any musician or other programming or 

6 content provider to sell, or the price, 

7 terms, or conditions of sale of, any song, 

8 work, or sound recording, programming, 

9 concert performance, or concert promotion 

10 service to any person or entity not affili11 ated with—

12 ‘‘(I) the applicant; 

13 ‘‘(II) an affiliate of the applicant; 

14 or 

15 ‘‘(III) an entity in which the ap16 plicant has an attributable interest; 

17 ‘‘(ii) discriminate against any musi18 cian or other programming or content pro19 vider that does not agree to enter into a 

20 contract or other arrangement with an en21 tity affiliated with the applicant, or in 

22 which the applicant has an attributable in23 terest, that offers concert venue or concert 

24 promotion service; or 
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1 ‘‘(iii) require any exclusive contract or 

2 other arrangement with a musician or 

3 other programming or content provider 

4 that prevents other radio licensees or per5 mittees from obtaining programming or 

6 content from the musician or other pro7 gramming or content provider; and 

8 ‘‘(B) with respect to the radio station cov9 ered by the application, has identified and will 

10 respond through appropriate programming or 

11 content to the problems, needs, and interests of 

12 the local market for such radio station.’’. 

13 (2) EFFECTIVE DATE.—Subsection (m) of sec14 tion 309 of the Communications Act of 1934, as 

15 added by paragraph (1), shall take effect on the date 

16 of the enactment of this Act, and shall apply with 

17 respect to applications described by such subsection 

18 that are pending with the Federal Communications 

19 Commission on or after that date, regardless of the 

20 number of AM or FM radio stations owned, oper21 ated, or controlled by the applicant concerned on 

22 that date. 

23 (b) LOCAL MARKET SHARE AND LOCAL MARKETING

24 AGREEMENTS.—The Federal Communications Commis25 sion shall prescribe regulations to prohibit the transfer or 
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1 assignment to operate, or the use of, a local marketing 

2 agreement with respect to a commercial radio station if 

3 the transfer or assignment, or such agreement, will permit 

4 the applicant, or the brokers of such agreement, to own, 

5 operate, or have an attributable interest in commercial 

6 radio stations that have in aggregate, as of the date of 

7 application therefor—

8 (1) more than 35 percent of the audience share 

9 of the local market of such radio stations; or 

10 (2) more than 35 percent of the radio adver11 tising revenue in the local market of such radio sta12 tions. 

13 (c) LOCAL OWNERSHIP LIMITS.—

14 (1) PROHIBITION ON UPWARD REVISION OF

15 LIMITS.—The Federal Communications Commission 

16 may not revise upward the limitations on multiple 

17 ownership of radio stations specified in section 

18 73.3555(a) of title 47, Code of Federal Regulations, 

19 as of the date of the enactment of this Act. 

20 (2) EXCLUSION FROM REQUIRED BIENNIAL RE21 VIEW.—Section 202(h) of the Telecommunications 

22 Act of 1996 (Public Law 104–104; 110 Stat. 111), 

23 relating to the biennial review by the Commission of 

24 its ownership rules, shall not apply with respect to 
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1 the limitations on multiple ownership of radio sta2 tions referred to in paragraph (1). 

3 SEC. 5. REVIEW OF USE OF PRIVATELY-CONTROLLED AUDI4 ENCE MEASUREMENT SYSTEMS FOR DETER5 MINATION OF LOCAL MARKETS OF RADIO 

6 STATIONS. 

7 (a) REVIEW REQUIRED.—Not later than one year 

8 after the date of the enactment of this Act, the Federal 

9 Communications Commission shall conduct a review of the 

10 advisability of its continuing to utilize privately-controlled 

11 audience measurement systems in order to determine the 

12 local markets of radio stations. 

13 (b) ELEMENT OF REVIEW.—As part of the review 

14 under subsection (a), the Commission shall determine 

15 whether or not the commercial radio industry utilizes prac16 tices to manipulate privately-controlled audience measure17 ment systems. 

18 (c) ACTION AFTER REVIEW.—If the Commission de19 termines as a result of the review under subsection (a) 

20 to continue to utilize privately-controlled audience meas21 urement systems in order to determine the local markets 

22 of radio stations, the Commission shall prescribe in regula23 tions measures to adapt to changes in audience measure24 ment under such systems in order to ensure that audience 

25 measurement by the Commission utilizing such systems is 
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1 consistent over time and is not subject to influence by the 

2 commercial radio industry or other private parties. 

3 (d) MEASUREMENT OF RURAL AREAS AND SMALL

4 MARKETS.—The Commission shall prescribe in regula5 tions mechanisms to measure the audiences in rural mar6 kets, small markets, and other markets not covered by pri7 vately-controlled audience measurement systems.

8 SEC. 6. MODIFICATION OF ATTRIBUTABLE INTEREST IN 

9 RADIO STATIONS AND LIMITATIONS ON 

10 LOCAL MARKETING AGREEMENTS. 

11 (a) MODIFICATION OF ATTRIBUTABLE INTEREST.—

12 The Federal Communications Commission shall modify its 

13 rules under section 73.3555 of title 47, Code of Federal 

14 Regulations, in order to provide the following: 

15 (1) That a licensee or permittee of a commer16 cial AM or FM radio station shall be treated as hav17 ing an attributable interest in an entity that supplies 

18 more than 15 percent of the total weekly broadcast 

19 programming hours to another licensee or permittee 

20 of a commercial AM or FM radio station if—

21 (A) the licensee or permittee holds equity 

22 (including all stock, whether voting or non23 voting and whether common or preferred) and 

24 debt in such entity in excess of 33 percent of 

25 total asset value of such entity, as determined 
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1 by taking into account the aggregate value of 

2 all equity and debt of such entity; or

3 (B) the licensee or permittee holds an op4 tion to purchase or acquire such entity. 

5 (2) That a licensee or permittee of a commer6 cial AM or FM radio station shall be treated as hav7 ing an attributable interest in another licensee or 

8 permittee of a commercial AM or FM radio station 

9 if an individual or entity serving the licensee or per10 mittee serves such other licensee or permittee in an 

11 identical or similar capacity with regard to the provi12 sion of program content, selection of program con13 tent, or supervision of selection of program content 

14 for such other commercial AM or FM radio station. 

15 (b) REPORTS ON SPECIAL RELATIONSHIP CON16 TRACTS.—

17 (1) IN GENERAL.—Not later than one year 

18 after the date of the enactment of this Act, the 

19 Commission shall prescribe in regulations require20 ments that each licensee or permittee of a radio sta21 tion submit to the Commission a report on each spe22 cial relationship contract between such licensee or 

23 permittee and another licensee or permittee of a 

24 radio station, or any person or entity having an 

25 attributional interest in such other licensee or per-
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1 mittee, in the market served by such licensee or per2 mittee. 

3 (2) SPECIAL RELATIONSHIP CONTRACT DE4 FINED.—In this subsection, the term ‘‘special rela5 tionship contract’’ means a contract, option, or other 

6 arrangement regarding management, programming, 

7 or sales, an actual or contingent financial arrange8 ment, ownership interest, investment, or loan be9 tween the parties to such contract, option, or other 

10 arrangement or their immediate families. 

11 (c) LIMITATION ON DURATION OF CERTAIN LOCAL

12 MARKETING AGREEMENTS.—

13 (1) IN GENERAL.—No local marketing agree14 ment or other agreement entered into or renewed 

15 after the date of the enactment of this Act under 

16 which a licensee or permittee of a commercial radio 

17 station, or any person or entity having an 

18 attributional interest in the commercial radio sta19 tion, provides more than 15 percent of the program20 ming or content to another commercial radio station 

21 in the same market may have a term exceeding one 

22 year, including any period of renewal of such agree23 ment. 

24 (2) APPLICATION.—Paragraph (1) shall apply 

25 with respect to any agreement described by that 
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1 paragraph that is in effect on or after the date of 

2 the enactment of this Act. 

3 (d) EXCLUSION FROM REQUIRED BIENNIAL RE4 VIEW.—Section 202(h) of the Telecommunications Act of 

5 1996 (Public Law 104–104; 110 Stat. 111), relating to 

6 the biennial review by the Commission of its ownership 

7 rules, shall not apply with respect to any rules or require8 ments established by or under this section. 

9 SEC. 7. USE OF CONTROL OVER BROADCAST MATTER BY A 

10 RADIO STATION TO EXTRACT OR RECEIVE 

11 MONEY OR ANY OTHER VALUABLE CONSID12 ERATION. 

13 Not later than one year after the date of the enact14 ment of this Act, the Federal Communications Commis15 sion shall modify its regulations under sections 317 and 

16 507 of the Communications Act of 1934 (47 U.S.C. 317 

17 and 508), in order to prohibit the licensee of any radio 

18 station, including any parent, subsidiary, or affiliated enti19 ty of such licensee, from using its control over any matter 

20 broadcast by such licensee to extract or receive money or 

21 any other consideration, whether directly or indirectly, 

22 from a record company, artist, concert promoter, or other 

23 entity or an agent or representative thereof. 
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1 SEC. 8. LIMITATION ON SUSPENSION OR WAIVER OF 

2 RULES. 

3 (a) LIMITATION.—The Federal Communications 

4 Commission may suspend or waive a rule or regulation 

5 prescribed under this Act, or implementing a provision of 

6 this Act, only if the Commission determines that there is 

7 a compelling justification to suspend or waive the rule or 

8 regulation. 

9 (b) TREATMENT OF COURT DECISIONS.—The deci10 sion of a court to stay, reverse, or negate a rule or regula11 tion of the Commission referred to in subsection (a), if 

12 not final or if stayed on appeal, does not constitute good 

13 cause for purposes of that subsection. 

14 SEC. 9. ANNUAL REPORTS. 

15 Not later than January 31 each year, the Federal 

16 Communications Commission shall submit to Congress a 

17 report on the compliance of the commercial radio industry 

18 during the preceding year with prohibitions on sponsorship 

19 identification, payola, plugola, national and local owner20 ship limitations, local marketing agreements, and 

21 attributional interest rules, including practices of the in22 dustry that have the effect of circumventing such prohibi23 tions.

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