Broadcasting (July - Dec 1940)

Miller Calls ASCAP Pact One-Sided AN INTRA-STATION sales meeting was staged June 18 by Colonial Network to boost the Breakfast of Champions sale for Wheaties, General Mills product promoted on Colonial play-by-play baseball. First tried at the start of the season, the plan consists of a private broadcast from the studios of WAAB, Boston for the benefit of 16 Colonial station managers and their local Wheaties dealers. The dealers meetings heard talks by Gerry Harrison, Colonial station relations head, and by the sportscasters, Jim Britt and Tom Hussey. Among participants in the broadcast were (1 to r) Ken Packard, sales supervisor. General Mills, in Boston; Mr. Hussey; Mr. Britt; S. L. Tate, sales manager, New England division of General Mills; J. P. Russell, of the General Mills regional sales force. Requires a Lot, Gives Little, He Says in Analysis BRANDING the proposed ASCAP five-year contract renewal, dated to become effective Jan. 1, as "illusory" and "one-sided", NAB President Neville Miller June 27 sent to all stations an analysis of the contract together with a covering letter urging them to get solidly behind Broadcast Music Inc. as the music copyright solution which broadcasters have sought for years. He pointed out that the joint meeting of the boards of NAB, IRNA and Broadcast Music June 21 in New York unanimously found the ASCAP proposal to be "disadvantageous to broadcasters, no matter where situated, nor in what income category." Some Hot Ones In describing the proposed contract, Mr. Miller said : "ASCAP requires a lot in the way of payment, it guarantees little; ASCAP may cancel the contract, but the broadcaster is bound for five years; there are no provisions for lessening the cost upon failures by ASCAP to deliver, but there are many provisions for levying increased toll upon broadcastjers; the percentage of payment is (lessened in some cases, but the base lis broadened to include not only time sales, but talent costs, line charges, etc.; none of the present 'abuses are eliminated; the question whether you have the right to make an arrangement is left unanswered, undoubtedly for a purpose; the indemnity clause does not protect the sponsor or the agency; and there are many other interesting features i which ASCAP has thought tip for I 'your benefit'." I More important than the form of I contract and more basic than the I question of whether stations may obtain a temporary financial saving, Mr. Miller insisted, is the underlying problem. The industry's action now will determine whether broadcasters "can obtain music in a free competitive market, or continue to sign on a dotted line laid before them by a music monopoly." He concluded: "ASCAP has refused to negojtiate with the industry; behind I closed doors it has drawn terms of surrender, and John Paine urges you to come singly to his office and capitulate." Pointing out that it is not possible in a memorandum to set forth all of the disadvantages of the ASCAP contract, the analysis cited I the several means by which ASCAP ! accomplishes the result of binding the station while leaving itself free to do anything it wants. These reasons were given as follows: More Loopholes 1. The broadcaster who signs the ASCAP contract does not know what, if anything, he will be getting i' for his money. I 2. ASCAP may restrict its enI tire catalog without any recourse ] on the part of the broadcaster. 3. The proposed contract "freezes" the broadcaster's present status. (For example, FM is not covered by the agreement and a new contract at ASCAP's terms might be needed for this new service) . 4. ASCAP has deprived the station of all escapes from the contract but has given itself additional "outs". 5. The ASCAP tax is levied not only on time charges but on talent costs, line charges, etc. 6. The proposed contract does not cure the essential defects of the existing contract. Stations were warned that under the contract ASCAP can substantially reduce its catalog prior to the time on which the broadcaster signs. Publishers and writers may withdraw. "Indeed," it was added, "it is known that important publishing houses have not yet committed themselves to ASCAP for a further term." If these houses do not join ASCAP, observed NAB, broadcasters who sign now will still pay the full amount under the proposed contract. Pig in a Poke Summing up these provisions. President Miller claimed that ASCAP reserves to itself the right to give the broadcasters as much or as little music as ASCAP pleases. In other words, the broadcaster who signs this contract is "buying a pig in a poke", he said. The disclosure also was made that ASCAP can restrict its entire catalog without redress. The previous "bad provision" now has been made worse, Mr. Miller said. The new form restricts the broadcaster not only to a single enumerated station but even to studios specifically enumerated in the contract, totally aside from the fact that FM is not covered in the agreement. Previous contracts have contained provisions under which the broadcaster can cancel if his license is terminated, cancelled, revoked or suspended or for other causes. "This clause has been omitted, and nothing has been substituted in its place," NAB said. For the first time, too, "broadcasting facilities" are defined to include all regularly employed personnel, and the only time that the broadcaster can avoid paying ASCAP a percentage on talent costs is where the talent is not regularly employed or actually engaged for the sponsor for a specific program or paid separately for specific commercial services. "This means that all the money which a broadcaster gets from selling his house band to a sponsor, through furnishing the services of regularly employed announcers, etc., is income on which ASCAP collects its percentage," the analysis stated. Line charges, wire charges and technical personnel also were included as taxable under the NAB's interpretation. Finally, NAB contended that the indemnity clause is unsatisfactory because it does not protect foreign compositions contained in the ASCAP repertory. Moreover, it stated a new abuse has arisen since persons who have sued for infringement in some cases have sued not broadcasters but sponsors and advertising agencies. ASCAP counsel have refused to defend suits against agencies and sponsors, or to indemnify them against damages on the ground that the ASCAP indemnity protects only the station. This means, it was added, that the broadcaster has had to assume the defense at his own expense or possibly deter a client from using his station. It was stated that a new contract with ASCAP should provide that not only the broadcaster but his agencies and sponsors are protected if they play a number which ASCAP represents as being in the ASCAP repertory. President Miller said the analysis Rights of State Upheld In XELO Race Pickups THE Federal Courts are without jurisdiction to restrain California State officials from interfering with operators of XELO, Tiajuana, Mexico, who are charged with broadcasting horse racing news in code. That was the ruling of Los Angeles Federal Judge Harry A. Hollzer on June 25, when he denied application for an order restraining Attorney General Earl Warren from molesting the operators should they come into the United States from Mexico. Operators of the station also named Superior Judge Emmet H. Wilson, who had made several rulings in the case, in issuing a preliminary injunction restraining the station from broadcasting race results. Attorneys representing California officials argued that the State had the right to regulate broadcasts of the station. XELO is owned by the Piedras Negras Broadcasting Co. and besides Emilio Ayala, president, listed as an executive is Claudio M. Bres. Stagehands and Radio LONG-standing attempt by International Alliance of Theatrical & Stage Employes to place its men in the NBC Hollywood studios as stagehands came to a head in late June when the executive board of Los Angeles Central Labor Council approved a committee to investigate the situation, setting deadline for July 3, with affiliated crafts lending their support. The group was also authorized to put NBC on the unfair list if negotiations fell through. On the negotiating committee are I. B. Kornblum. executive secretary of Los Angeles Chapter of AFRA ; Spike Wallace of Los Angeles Musicians Union ; J. W. Buzzell of Central Labor Council, Al Speede. business manager. International Brotherhood of Electrical Workers, and Carl Cooper, representing the stagehands. When negotiations have been completed with NBC, the stagehands union will then start similar action with Don Lee Broadcasting System, Los Angeles and CBS in Hollywood. did not attempt to discuss the basic abuses inherent in ASCAP organization or its method of levying charges upon broadcasters. "These basic defects would exist even if the form of contract herein described were satisfactory. This analysis should, therefore, be considered as constituting additional reasons why broadcasters should carefully consider their course of action." BY Western Electric SEE PAGE 7 BROADCASTING • Broadcast Advertising July I, 1940 • Page 77