djfrosty

Back in 2021, a major label kicked off a radio promotion campaign for a song from an arena-selling act. One of the label’s early moves was to earmark payments to an independent radio promoter tied to a pair of stations in the Northeast, as documented in an invoice reviewed by Billboard. During the chart week before the date of the invoice, the radio-tracking service Mediabase recorded no plays of the single in question on WXRV (Boston) and WNCS (Montpelier, Vermont). The following week — the invoice, which allocated $750 to the first station and $500 to the second, was dated to that Monday — spins increased markedly, rising by at least 15 on both. 

This invoice is one of 14 obtained by Billboard from three different executives — one from a major label, one at an independent label and one who works in radio promotion — all of whom requested anonymity because they were not authorized to speak publicly about radio promotion activities. (To preserve that anonymity, Billboard agreed not to identify the acts on these invoices.) These documents from 2021 and 2022 are detailed, containing the artist name, the single name, the radio station and the “rate” for each. 

The invoices show how payments — which range from several hundred dollars to $1,500 — move from labels to one independent promoter, Jeff Deane, who runs the company Jeff Deane and Associates, apparently resulting in spins at specific stations. Analyzing Mediabase data shows that in the week those payments are invoiced, plays for the songs in question increased at the stations specified in 28 out of 30 cases. Deane’s practices have concerned some in the music industry, who appealed for government intervention last year, according to two sources. 

All the invoices made out to Deane that were obtained by Billboard include the inscription, “Nothing of value was or will be given to a radio station or radio station employee in exchange for airplay.” Deane and one of his employees did not respond to multiple requests for comment — by email, phone, and two letters in the mail — about how his business works. Representatives for the three major label groups declined to comment.

The Federal Communications Commission allows paying for airplay as long as those payments are “disclose[d]… at the time material is aired and identify who is paying for it.” It’s unclear if any disclosures were made in the 30 cases documented on the invoices. In a statement to Billboard, Ed Flanagan, general manager of WNCS, said that “when WNCS or WXRV broadcasts programming that is sponsored by a third party, it is the practice of the station to ensure that such sponsored programming is broadcast in compliance with the FCC’s rules on sponsorship identification.”

In addition, following a mid-2000s investigation into radio promotion by the New York Attorney General’s office, then overseen by Eliot Spitzer, all the major labels agreed to certain business reforms. Key among them was not to use “commercial transactions,” “advertising,” or “nominal consideration,” among other things, “in an explicit or implicit exchange, agreement, or understanding to obtain airplay or increase airplay.” 

Gabriel Rossman, a professor of sociology at UCLA and the author of Climbing the Charts: What Radio Airplay Tells Us About the Diffusion of Innovation, agreed to review redacted versions of the invoices and accompanying Mediabase reports for Billboard. “We see this pattern between the invoices and the Mediabase reports that JDA gets paid to promote a particular song on a particular station, and then in the week that follows the spins go up,” he says. 

Rossman says that Deane’s activities could be aboveboard. “Is there a way to do that legally?” he asks. “In theory, you could do that by making a really good press kit or a really good PowerPoint [about how great the song on the invoice is]. If you had to bet, that’s probably not what happened. But in theory, that’s what the job of an independent promoter is: to give a very compelling endorsement. The evidence I saw doesn’t yet exclude the possibility that the promotional efforts they’re doing are legal.”

Independent Promotion

Independent promoters are a longstanding feature of the music industry. At any given time, label promotion departments are working multiple singles across a variety of radio formats — pop, alternative, or adult contemporary, for example — with the goal of pushing those songs up each format’s chart so that more listeners hear them. There are hundreds of stations that need to be called and persuaded to play a track. But there is only so much time in the day, so labels hire middlemen who typically have experience with and relationships in individual local markets to augment their own efforts. These are known as independent promoters.

“Some independent promoters enjoy exclusive arrangements with particular radio stations and are guaranteed regular, direct access to the programmers responsible for the all-important playlists,” the New York Attorney General’s office explained in documents from 2005 related to its radio promotion investigation. “… Other independent promoters, referred to as ‘retainer indies,’ are hired to promote a particular song and are paid a flat fee for the life of the project.”

Deane is one of several current indie promoters who works by establishing these “exclusive agreements” with stations, radio veterans say. In a 2013 lawsuit Deane filed against a radio company, Apex Broadcasting, the promoter’s attorney described the way he relies on “longstanding radio relationships to help artists receive meaningful radio airplay.” The mechanism that allows Deane to deliver that airplay for clients is partially outlined in the lawsuit: He “enters into exclusive agreements — having mostly one-year, but occasionally two-year, terms — with radio stations or entities that own and operate radio stations.” (Deane’s suit alleged that Apex breached its exclusive agreement with him; the dispute was later settled and the case dismissed with prejudice.)

“Deane secures promotional support for the radio stations he represents” in exclusive deals, “helping those stations garner listener loyalty, higher ratings, and increased advertising revenue,” according to documents the promoter’s attorney filed in the Apex Broadcasting suit.

This support is increasingly valuable to stations, especially in small markets, radio sources say, because they have lost a lot of the advertising dollars that traditionally kept them afloat. Over-the-air ad revenue fell by more than 40% between 2005 and 2020, according to a 2021 FCC filing from the National Association of Broadcasters. 

In court filings from 2021, another independent promoter allegedly acknowledged that he had been paying “a budget set at $200,000” annually for three radio stations in California and Las Vegas. (That promoter said he “has not, did not, and never will participate in payola, and maintains full compliance with the FCC and regulations of the record industry.”) One radio executive who worked at a station in a deal with Deane said those exclusive agreements land the station “six figures a year.” 

Promoters also stand to benefit financially from setting up these exclusive relationships. In the Apex Broadcasting suit, Deane’s attorney said that stations in contract with him turn over “first access to their playlist data, which Deane then analyzes for, and discusses with the record labels, who retain Deane to promote their artists’ music.” In a 2013 email that was part of the Apex suit, he said he worked with 50 stations in this fashion. 

Overnight Spins

In some cases documented on the invoices, the label payments occur at the start of a radio campaign. Last year, for example, an invoice indicates that a label made payments to Deane tied to multiple stations, including WRTT (Huntsville, Ala.), KAZR (Des Moines, Iowa) and WFXH (Savannah, Ga.), for a platinum-selling rock band. In the 48 hours following the date on the label’s invoice, each of those stations started to play the band’s single, according to Mediabase data. Another band sent Deane a similar invoice in 2021 for the station KYMK (Lafayette, La.); Mediabase data show that the group earned its first spin on that station two days after the date of the invoice. (Employees of these four stations did not respond to email requests for comment.)

The timing of the plays is notable. The majority of them occurred overnight between midnight and 6 a.m., when few listeners are tuning in, according to information from Mediabase. 

This is not a new phenomenon: The New York Attorney General’s office noted in 2005 that the major label groups aim “to generate additional spins detections by the airplay monitoring companies, even if the spins occur in the dead of night when relatively few people are listening to radio. Nighttime spins may still prove effective as a means to improve chart positions” — especially on charts that only rank songs by spins, rather than by audience impressions. 

In a 2014 lawsuit Deane filed against another radio company, Advanced Media Partners, that also alleged breach of contract, his attorneys wrote that part of their agreement involved “provid[ing] designated overnight programming hours to JDA, which would then enable JDA to fund the promotional budget Defendants demanded, and realize substantial revenue from its record label clients.” Deane was allotted “the overnight hours of 1:00 a.m. to 5:00 a.m. on Saturday (Friday night) and Sunday (Saturday night) and from 12:00 a.m. (midnight) to 5:00 a.m. on Monday through Friday (Sunday – Thursday nights) to facilitate… interaction with record labels,” according to the lawsuit. 

Deane’s interest in the overnight hours is well known enough in radio circles that it was the butt of a joke in the trade publication Hits Daily Double. “I just offered a roll of toilet paper to a PD [program director] for an add,” Hits wrote during the early days of the pandemic. “On Amazon, most paper products, if you can find them, are going for more than a Jeff Deane overnight five-spin special.”

Rossman, the UCLA professor, says that “if you’re trying to get something to rise in the charts, that’s exactly what you would do: Do whatever you could to get a song played in small markets overnight, because that’s the part [of the day] that people care the least about [what’s playing], and so [it] should be the easiest to influence.”

The New York Attorney General

Independent radio promotion has periodically come under scrutiny for its ties to payola, which was regulated by Congress in 1960. 

Apex alluded to payola in its 2013 response to Deane’s lawsuit: “In the course of communicating with Deane and the record labels for promotion, Apex Broadcasting also learned that Deane’s practices violated industry standards, and Apex Broadcasting’s instructions, concerning radio promotion.” In emails that were part of the lawsuit, Deane’s attorney hit back, criticizing the company for “coyly suggesting my client engaged in payola — both in the Apex relationship and at some unspecified time in the past” but “refusing to provide any alleged facts.”

While Deane was not mentioned in the 2005 documents summarizing the Attorney General’s investigation, Spitzer’s office zeroed in on the activities of some independent promoters: “In an effort to dodge the payola laws, record labels and radio stations have also enlisted the services of so-called independent promoters… who act as conduits for delivery of the labels’ ‘promotional support’ to the stations and help perpetuate the fiction that this support is not actually being delivered by the labels in exchange for airplay and therefore does not violate the payola statutes.” 

Spitzer subsequently imposed strict conditions on independent promoters’ activities when they worked with major labels: Record companies “shall not provide any item of value to an independent radio promoter to be distributed to Radio.” (Again, this language is echoed on Deane’s invoices: “Nothing of value was or will be given to a radio station or radio station employee in exchange for airplay.”)

On top of that, any indie promoters working with the majors are required to regularly certify in writing that they are complying with the rules laid out by Spitzer’s office. When Spitzer announced the implementation of these business reforms, he called them “a model for breaking the pervasive influence of bribes in the industry.” 

But there is some disagreement about their ongoing effectiveness. Last year, frustrated music executives secured another meeting with the New York Attorney General’s office, now led by Letitia James, to complain about the practices of some independent promoters, according to two sources who spoke on the condition of anonymity.

During a meeting that included Elinor Hoffman, chief of the New York Attorney General’s antitrust bureau, and Jane Azia, chief of the New York Attorney General’s bureau of consumer frauds and protection, music executives mentioned Deane and others by name, according to sources present, alleging that their activities violated the terms of the settlement agreements. (James herself was not in the meeting.) And they asked the New York attorney general to investigate independent promotion’s links to payola, as Spitzer did nearly two decades ago.

The New York Attorney General’s office did not respond to requests for comment.