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Backwash

Somewhere in their office on York Street, the three owners of nobody in particular presents are having to find room for their Herculean huevos. On Monday, nipp's Jesse Morreale, Doug Kauffman and Chris Swank filed an anti-trust lawsuit against Clear Channel Communications, Inc., the radio/entertainment behemoth that has been swallowing up concert-promotions firms, concert venues and radio stations at a Godzilla-like pace since it acquired concert giant SFX last year. The eleven-part complaint is lengthy, filled with allegations of Clear Channel's anti-competitive, monopolistic practices that essentially consolidate the power of its radio and entertainment branches in a calculated effort to snuff out competitors. The suit was filed in U.S. District Court in Denver, which means that if and when the case comes to trial, it will be, in fact, a federal case -- and one that not only adds to the current nastiness of Denver's concert market, but also has the potential to explode on the national scene.

At times like these, it's difficult to avoid images of David and Goliath. Although nipp has recently expanded its operations to include management deals and/or partnerships with venues in Michigan and Arizona, it's still a small fish in the vast ocean of the concert-promotions business, an industry whose workers increasingly answer to Clear Channel. And while it has reportedly come this close to filing suit many times over the past couple of years, the decision to formally challenge Clear Channel -- the corporation that Salon recently called "radio's big bully" -- suggests that Morreale, Kauffman and Swank believe that without some kind of intervention, their livelihood is genuinely at risk. Sometimes it's better to try to slay the dragon than simply let it eat you.

"There was no final straw, no breaking point," says Morreale. "This has been an ongoing struggle for us. Since they've gotten involved in concerts, our market share has been eroded substantially."

"We had no choice," adds Kauffman.

Nipp has equipped itself for battle: It has retained Davis, Graham & Stubbs, a law firm that specializes in anti-trust law, as well as attorney Walter Gerash, a high-profile criminal-defense and personal-injury lawyer. (Gerash's list of recent cases reads like an entire season of scenarios from The Practice: He's defended Blinky the Clown, the families of two students wounded at Columbine, and Carl Kabat, a Catholic priest who went to jail for his nonviolent protests against nuclear armament.) It is also armed with a laundry list of claims against defendants Clear Channel Entertainment, Inc. (formerly SFX), Clear Channel Radio Inc., Clear Channel Broadcasting, Inc., as well as KBCO-FM, KBPI-FM, KFMD-FM, KRFX-FM and KTCL-FM, five of the eight stations Clear Channel owns in the Denver area.

Because Clear Channel dominates both the radio and concert markets in most major cities, the suit alleges, the company is able to come at a competitor from all angles. For example, the suit claims that Clear Channel's entertainment branch bids up artists to the point that they are inaccessible to competitors whose pockets aren't as deep, sometimes offering an act 100 percent of the gross -- a hit Clear Channel may be able to afford to take, especially if it nets some long-term strategic gain over a competitor. The suit also claims that Clear Channel swoops in on acts that already have relationships with other promoters, essentially undermining the longstanding practice of honoring an individual promoter's ability to nurture artists to whom he's committed.

"There has always been an important loyalty factor between promoters and artists," the suit reads. "This artist development cycle is important to promoters as well as to artists seeking to build their careers." In addition, the suit cites Clear Channel's practice of booking mammoth nationwide tours -- often into a string of its own venues and in markets where it has one, two, three or more radio stations -- leaving regional promoters (not to mention radio stations) with no opportunity to get in on the action. "The list of artists Clear Channel has promoted reads like a Who's Who in the popular music industry," the suit states, "and includes such commercially successful performers as Britney Spears, Backstreet Boys, 'N Sync, Dave Matthews Band, Tina Turner and U2."

Nobody in particular presents eventually hopes to convince a judge that Clear Channel has an unfair ability to tailor its radio business to its concert business, and vice-versa. And so it is claiming that Clear Channel has eroded the symbiosis that had existed between concert promoters and radio since the early days of rock-and-roll shows by failing to promote -- or even play -- artists who come to town for promoters other than Clear Channel. (Salon recently reported that artists are sometimes pulled from Clear Channel stations across the nation -- not just in the market in question -- for this very reason.) In other words, according to the theory set forth in the suit, if you don't hear bands that pack the Bluebird on local commercial radio, it's because the artists had the gall to come to town for nobody in particular. What's more, nipp claims that even when it has paid for advertising on Clear Channel to promote its shows, the spots have been relegated to undesirable time slots -- and without radio support, tickets sales tend to stagnate. Clear Channel's dominance of the local market share affects them directly, nipp's owners say, because Clear Channel controls 100 percent of both the alternative and hard-rock formats (through KBCO and KTCL, respectively), two of the genres most closely aligned with the type of artists nobody in particular regularly brings to town.

Some of this may sound like a bunch of highfalutin' legal wrangling, and some of it may be just that. Attorneys for Clear Channel will likely argue that nobody in particular's failure to compete -- even against a company as mighty as their client -- is its own problem. (Vice president and general manager of Clear Channel/ Denver Don Howe did not return calls from Westword.) But according to nipp's Morreale and Kauffman, the company has more than its own interests at heart. For one thing, they say, Clear Channel's vertically integrated control of the concert/radio industry is a large part of the reason that ticket prices are high and getting higher -- and also explains why it seems as if there are fewer and fewer concerts coming to town. (Clear Channel's control may also be why it's virtually impossible to find anything good on the air. But that's another column.) Those reasons, coupled with nobody in particular's own will to live, are what led the trio to file suit after "months and months" of preparation.

"We are taking on this battle in the name of every band, agent, promoter, record company and fan that feels that they have been treated unfairly at the hands of the Clear Channel stranglehold," says Kauffman.

"The way that Clear Channel does business precludes consumers from having choices," says Morreale, "from having information. They haven't had the information necessary to make the choice. If you don't know about a concert, how can you know if you want to go or not? I think in our suit, and in a lot of other stories about this, there's a lot of discussion about ticket prices and how the ticket prices have been affected by these things...It's an industry-wide concern."

Whether or not nipp's suit is successful, it marks the first time an independent promoter has taken on a competitor in court -- a fact that heightens the case's appeal for those who continue to champion the little guy in a merger-mad world. If nipp wins, the case could set a precedent for other promoters who feel powerless against the voracious Clear Channel empire. And if nipp loses, of course, the aftermath could be messy, with nobody in particular bumped to the top of the list of non-Clear Channel-affiliated companies that Kauffman describes as "marked for extinction."

As they await their day in court, Kauffman, Morreale, Swank and their staff are concentrating on day-to-day business -- which means continuing business relations with the very companies that are named in their suit.

"There's the burden of adding to the difficulty of the continuing, necessary interactions," acknowledges Morreale. "We have to stay in business, and their radio stations are necessary ways to promote concerts."

It's risky, yes; scary, even. But the suit was also necessary, nipp staffers say.

"Everyone here is well aware of what's going on," says Morreale. "We are a united front. What's happening is not fair. The barriers that are being put in front of us are unfair, and we need to find a way to resolve that."


A couple quick items for today's fast-paced world:

Know that flute-and-drum music you sometimes hear upon entering a new-age bookstore or yoga studio? (Backwash, of course, is a regular at both types of establishments.) Possibly, it descended from the offices of Silver Wave Records, the Boulder-based label that specializes in Native American artists such as R. Carlos Nakai and Robert Mirabal, as well as musicians from around the world. The label celebrates its fifteenth anniversary on Saturday, August 11, with a concert at the Chautauqua Auditorium; the performance will feature pianist Peter Kater; vocalist Joanne Shenandoah and flutist Mary Youngblood, with proceeds benefiting Boulder Valley Public Schools. A good label, a good cause, a good excuse to burn sage and chant with strangers.

Jay Bianchi, of Sancho's Broken Arrow and (the now-closed, awaiting relocation) Quixote's True Blue, rebuffs The Man and heads for the hills on Thursday, August 9, with a low-cost lineup he's producing at Red Rocks Amphitheatre. Any self-respecting hippie would be wise to seize this chance to soak up some sweet sounds on the cheap: Tickets are only $10. Not bad for a lineup that features Gregg's Eggs, an improvisational jam band that plays off the lyrics of former Grateful Dead scribe Robert Hunter; Dead keyboardist Vince Welnick; Lazy Lightning; and Chief Broom, newly returned to Colorado. According to Bianchi, not only was the show appealing from a fan's point of view, but it was a chance to make a kind of statement to the concert industry: "It seems that prices have gotten so out of control [that] a show may cost more than half your rent if you're going with someone," he says. "This is a rare opportunity for the consumer to decide how they would like to be treated when they purchase their tickets."


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