By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
In 2001, House of Blues took on the task of promoting a double bill featuring classic-rockers Styx and Bad Company, picking a station then known as the Hawk as its radio partner. Apparently, this choice didn't thrill the folks at Clear Channel Communications, whose concert-promotion and radio branches were bypassed by the bands. Internal messages at Clear Channel's Denver arm declared, "Let's crush the Hawk and HOB on this show," "Hope you will tow [sic] the line," "Avoid accepting advertising" and, most memorably, "Let's get our fucksticks out."
Aside from inserting an asterisk into "fucksticks," U.S. District Court Judge Edward Nottingham included the quotes above, and others just as grabby, in an April 2 ruling on a lawsuit pitting local promotion firm Nobody in Particular Presents against Clear Channel, a San Antonio company that leads the nation in radio-station ownership and the sale of concert tickets. The suit, filed in August 2001, maintains that Clear Channel violated federal and state anti-trust statutes via a bevy of unfair business practices ("Taking on the Empire," August 23, 2001).
In its response to NIPP's filing, Clear Channel, which owns KTCL and seven other stations in Denver (the maximum number allowed by the FCC), denied these allegations and asked Nottingham to toss out the entire suit on a summary judgment. The judge's ruling fell far short of such action. He dismissed NIPP claims of monopolization dealing with, among other things, predatory ticket pricing: Although Clear Channel controls just over half the local rock-concert market, Nottingham asserted that "lower courts generally require a minimum market share between 70 percent and 80 percent" to consider such contentions. However, he let NIPP go forward with monopoly charges based on the notion that radio stations are essential to promoting rock concerts, and said documentation that Clear Channel was attempting to create a monopoly was sufficient to justify taking the next legal step. A court date of August 2 has been set, with a five-week jury trial anticipated.
For Doug Kauffman, NIPP's founder and president, Nottingham's opinion is a vindication of sorts. "I hope this at least proves our suit wasn't some frivolous thing," he says. "The ruling contains a large amount of back-up and has some real teeth to it."
Adds Jesse Morreale, who no longer has day-to-day duties at NIPP but remains a partner in the operation, "The judge saw our points about the behavior they engaged in, and that they still engage in. We're happy we'll be able to go in front of a jury and share our experiences."
Clear Channel is putting its best face on the ruling. In a statement, Andrew Levin, chief legal officer for the corporation, writes, "We are very pleased the Court threw out several major claims against us that had absolutely no merit. A few remaining parts of the case will proceed to trial, and we're confident these allegations ultimately will be dismissed as well." For his part, John Francis of Davis, Graham & Stubbs, one of the law firms on NIPP's team, holds that the majority of the suit was left intact. "We are very pleased with the judge's decision and are looking forward to presenting our case to a jury as soon as possible," he says.
Central to NIPP's complaints are accusations that Clear Channel illegally pressures acts into signing with its concert-promotion division by telling them that if they work with another promoter, their airplay will end. Most of the evidence presented by NIPP to support this theory remains under seal, but Nottingham's decision reveals some tantalizing samples, many of them starring Mike O'Connor, Clear Channel's director of FM programming. (O'Connor declined comment for this story.) Roadrunner Records' Jason Martin testified that in 2000, after the Peak, a defunct Clear Channel rival, won the right to promote a package tour featuring several Roadrunner acts, O'Connor said he'd rid his playlist of the label's songs as punishment. Dave Lancao, another Roadrunner employee, added that O'Connor e-mailed managers of bands on the imprint, advising them to stop using NIPP if they wanted Clear Channel airplay.
The folks at Reprise Records received similar treatment that year, according to the 125-page document, with O'Connor announcing, "We are out of business with your label," "I have left instructions for KTCL to have NO relations with Reprise" and "You can all go fuck yourselves as far as I'm concerned." (Yes, Nottingham spelled "fuck" with an asterisk.) Later, in 2001, Puddle of Mudd saw its Clear Channel airplay dry up after letting NIPP promote a Denver show -- an example of a procedure O'Connor referred to in an e-mail to company supervisors. "I encourage you to communicate our new policy concerning artist promotion to labels in advance, so they understand why we might potentially be in a position to ignore their artist's appearance in the Denver market," he stated.
A kinder, gentler 2001 message from O'Connor to Tom Owens, vice president of programming for Clear Channel Radio, acknowledged how common using the "threat of airplay to take shows away from another promoter in the market" had become in Denver. O'Connor called this phenomenon "very VERY dangerous," and revealed that he was "collecting letters of denial every time this comes up so that the radio side is covered. It has come up at least five times in the last 3 months."