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.