Bit Parts

The U.S. District Court for the District of Arizona dismissed an action by an artist who sued over a consent decree, entered into several years ago between radio-station chains and the Federal Communications Commission (FCC), to increase airplay for independent musicians. Quain v. Capstar, CV-09-2365. Unable to get his music on local radio, John Quain, of the band Citizen Quain, sued Clear Channel Communications for breach of contract, misrepresentation and unjust enrichment. But District Judge David G. Campbell noted of the breach-of-contract claim: “Statements by certain FCC Commissioners make clear that the consent decree is designed to limit 'payola,' that is, the 'pay for play' practices of Clear Channel and its subsidiaries. Those statements also show that rules and agreements prohibiting payola benefit independent local artists who otherwise could not afford to get their music on the airwaves. But this incidental benefit does not render Plaintiff a 'real promissee' to the consent decree between the FCC and Clear Channel. ' Defendants note, correctly, that nothing in the consent decree requires Clear Channel to play Plaintiff's music or that of any other musician.” However, Quain further alleged that the radio-station chain “misrepresented that it would comply with the provisions to provide approximately 4,000 hours of airtime made available to independent and/or local artists.” Here, Judge Campbell found that “the consent decree contains no such provision. Nor does the complaint allege that Clear Channel intended Plaintiff to act on the purported misrepresentation in the manner he did, that is, spending nearly $100,000 recording music and preparing promotional items.”