Who Killed Top 40

3/19/93

The judge took one look at the packed room, frowned, then banged his gavel down and called the court to order.

“In the matter of the People of Radio against the magazine Radio & Records, are the attorneys present?

A tall, stylish man dressed in blue jeans, a Pearl Jam T-shirt, white sox and tennis shoes stood up behind the Plaintiff’s table. “The People of Radio are ready, Your Honor.”

The judge frowned deeper behind his glasses. “You aren’t dressed in the manner we usually expect in this court.”

The young man smiled. “I apologize if my looks and manner offend you. However, the “style over substance” positioning of the 1980s is no longer acceptable to most in our business.

“Just one of the reasons this complaint should be dismissed out of hand, Your Honor,” a big voice boomed. From behind the Defendant’s table rose a silver-haired throwback to the plantation era. Several inches over six feet tall, the old man towered over the courtroom. His demeanor demanded attention, as did his attire. Atop the silver hair was a panama hat. Below it, the carefully assembled outfit was comprised of a white suit, white shirt and white shoes. The outfit was contrasted by a black string tie pulled loosely around his collar and an expensive, ornate cane that was useless, except as a prop. A stream of ugly, gray smoke curled from between the yellowed teeth that clinched a long, fat cigar.

“I’ll decide what’s useless and what isn’t,” the judge snapped. And there’s no smoking in this courtroom. Get rid of the cigar.”

The old man’s chest rose in defiance. “I object, Your Honor.”

“Object all you want, but if the cigar isn’t out in five seconds, you’ll be smoking in jail.”

The old man’s eyes narrowed and he gave the judge the same look of contempt he had previously served on the young attorney, but the cigar was extinguished…slowly…and with an attitude.

The judge picked up a piece of paper and began reading from it. “The defendant, Radio & Records, is accused of killing Top Forty Radio.” He looked at the old man over the top edge of the paper. “How do you plead?”

A large, red pay slammed down on the defense table. “Not guilty, of course.” The big voice rolled around the courtroom like a clap of thunder.

Behind the Plaintiff’s desk, the young attorney seemed bored with the proceedings. His feet rested casually on the table top as he absently filed his fingernails. The posturing of the defense attorney was wasted on him.

“Then we can begin,” the judge said. He looked at the Plaintiff. “Go ahead and state your case.”

“The case has been stated in past issues of The Network Forty magazine, Your Honor. Radio & Records, through their restrictive reporting policies, has continually forced radio stations to define their format based on characteristics set forth by Radio & Records, not by the radio stations, their peers or the industry itself. These restrictions are arbitrary, ever-changing and whimsical.”

“I object,” the Defense attorney roared.

“Hell, so do we,” the young attorney grinned. “We in radio have been objecting for years, but to no avail. Radio & Records has become obscenely self-important and cares about as much for the wishes of radio as does the Arbitron rating service.”

“You’re comparing Radio & Records with Arbitron?” the old man wheezed.

The attorney for the Plaintiff shrugged. “Both set up rules, determine policies and impose strict guidelines with little, if any, regard for radio’s needs But let’s save Arbitron for another trial and keep the focus on Radio & Records.”

“Continue with your case,” the judge said.

Another shrug from the Plaintiff’s table. “This is really and open-and-shut case, Your Honor. Twelve years ago, Radio & Records, without asking, redefined all Top Forty radio stations as CHRs. R&R invented the term and forced all radio stations to comply.”

A gasp came from the courtroom. The judge banged his gavel and called for order.

“So,” continued the attorney for the Plantiffs, “by their own admission, R&R killed Top Forty.”

The judge nodded and looked toward the defense table. “Do you have anything to say?”

The old man shook his head and said, “Not at this time, Your Honor.”

But that’s not all. R&R killed the term, Top Forty, and they’ve continued to require that reporting radio stations strictly comply with arbitrary restrictions that cause the format, whether named Top Forty or CHR, to be in jeopardy. R&R’s antiquated policies and rules are designed primarily to perpetuate their power. If stations don’t comply with these rules, they’ll be banished from their reporting status. The rules are changed constantly and stations are listed and delisted by mere whimsy. No one is ever sure what is required to be a reporter because the criteria shifts almost from week-to-week.”

“Your Honor,” the old man said as he rose from behind the table, “this is ridiculous.”

“Again, we agree, Your Honor,” nodded the attorney for the Plaintiff, “but up until now, radio had no recourse. To be allowed into the game, you had to play by R&R’s restrictive rules.”

“It is our game,” the attorney for the Defense shouted in outrage. “Of course you must play by our rules.”

“And that part, Your Honor, is the most galling part.” The Plaintiff’s attorney signed deeply. “R&R doesn’t consult the radio or record industry for input when it makes changes. It does so be divine right. The decisions are made by those at R&R who have no expertise in the very industry they claim to represent.”

“That’s absurd,” shouted the opposing council.

The young man threw up his hands. “Again, we’re forced to agree. It is absurd that R&R doesn’t have the expertise to make suggestions to the industry. Those in power are too far removed from the current reality of radio to respond to its needs. If truth be told, they never had that expertise.”

The old man grinned a “canary-eating-grin” and sat down. “We’ve got you now,” he mumbled under his breath.

“Is that all?” the judge asked.

The young attorney nodded. “That’s it, Your Honor.” We accuse R&R of killing Top Forty by arbitrarily changing the name. We also further accuse R&R of choking the format through restrictive rules and policies. And these rules are made by people who have no relevant expertise.”

The judge hesitated for a moment. “Do you have anything else?”

The young attorney sat down. “No, Your Honor. The Plaintiff rests.”

The judge shifted to stare at the Defense table. “Do you have any rebuttal witnesses?”

“Only one,” the old man smiled. “The defense calls Joel Denver.”

The young attorney was immediately on his feet. “For what reason?”

Another superior smile cracked the old attorney’s features. “We’re calling Mr. Denver as an expert witness.”

The young man sat down in his chair. “We object, Your Honor.”

“On what grounds?” the old man raved.

“It’s been over a decade since he’s had any experience in radio. He’s totally out of touch with today’s radio. Joel Denver is not qualified as an expert.”

“That’s balderdash,” the old man roared. “Joel Denver programmed 96X in Miami, KSLQ in St. Louis and KCBQ in San Diego.”

“Successfully?” the young man asked.

The judge jumped in. “What are you getting at?”

“The Plaintiffs will admit that Joel Denver was a good music director at WFIL in Philadelphia years ago when it still played music. However, we’re not ready to accept him as an expert based on his total lack of experience as a program director over the past 15 years.”

“Why?”

The young attorney walked across the courtroom and looked up at the judge. “For several reasons, Your Honor, the most obvious of which is that he hasn’t programmed a station in over a decade. Would you trust the diagnosis of a doctor who hasn’t practiced medicine for the same period of time?”

The older attorney nervously adjusted the string tie and ran a finger around his collar.

The judge returned his attention to the Defense table. “How do you respond to this?”

The old man cleared his throat and stuttered. “Ah, well, Your Honor, ah we…”

“Do you still want to call the man as an expert?”

The old man through about it for a few seconds, then his shoulders slumped in defeat. “No, Your Honor,” he said softly.

The courtroom “oooed and ahhhed.” Two gave “high fives” and another shouted, “He shoots, he scores!” From the back came the sound, “Bing!”

The judge rolled his eyes.

“We’re willing to accept the witness on a limited field of testimony, Your Honor,” the young attorney added. “We would like to ask some questions about Future Hits.”

The judge held up his hand. “You can save those inquiries for another time.”

The attorney for the Plaintiff made a note on the pad in front of him. “We’ll do that, Your Honor.”

“Let’s move along,” the judge said. “Would the Defense like to present other witnesses to the court?”

The old man took a deep breath and sadly shook his head. “No, Your Honor. The Defense rests.”

The judge banged down the gavel. “Court is dismissed.”