As we reported yesterday, Bubba The Love Sponge (Todd Clem) is attempting to get the ratings tampering lawsuit filed against him by Nielsen thrown out. One of the points Clem is making is that he is not an employee of Beasley and does not have an agreement with Nielsen. He also says Nielsen admitted the ratings were not impacted by his communications with a PPM holder so he questions how Nielsen can claim $1 Million in damage has been done. For further analysis on this case we turned to broadcast attorney John Garziglia.
“My first thought is that, despite earlier suggestions that this case would settle, it appears from the lengthy motion to dismiss recently filed by Bubba Clem’s attorneys that Nielsen is not backing down and therefore Bubba must vigorously defend himself.
“Bubba’s motion to dismiss makes two general points. The first is that Nielsen failed to show that its damages exceed $75,000, and therefore the lawsuit should not be in Federal court but rather should have been filed in state court. For a lawsuit to be brought in a Federal court, among other things the amount in controversy must exceed $75K. Bubba’s motion argues that while Nielsen bandies about a claim of $1M or more in damages, Nielsen never shows with precision exactly how those damages arose.
“The second general point made by Bubba is that Nielsen failed to show a connection between Bubba’s admitted actions, and any actual harm to Nielsen. Bubba suggests that this lawsuit is more about Nielsen’s reputation and face-saving rather than actual damages.
“Whether or not the court buys any of this will be determined when a decision is released on Bubba’s motion to dismiss. If the court does not agree with Bubba’s motion to dismiss, the lawsuit will go forward.
“One notable aspect to this case is the apparent lack of any court cases in which similar ratings distortion allegations were litigated. There are many citations to different court decisions in the motion to dismiss. Not one of the cited cases involves ratings distortion.
“Bubba’s theory of his case is now apparent from his motion to dismiss. Bubba maintains that he was innocently approached by a rabid listener who wished to show appreciation by engaging in a harmless scheme to mislead a ratings company. Bubba played along with that scheme, even offering that listener nominal amounts of cash in appreciation for the listener’s loyalty. Nielsen discovered the listener scheme and successfully took steps to counteract any distortions in its ratings, with the result that Nielsen was not damaged at all. As Bubba is neither a Nielsen subscriber, nor an employee of a Nielsen subscriber, how could Bubba know that his contacts with the listener might enrage Nielsen. When Bubba discovered Nielsen’s angst, he quickly apologized. Case closed.
“Whether the Federal court buys Bubba’s premise that this was just a harmless radio personality scheme is yet to be seen. It is possible that in the end analysis Bubba’s actions are held to be no different than a political party encouraging its supporters to do anything possible to skew random-sample surveys in a particular direction. Or, the court may focus upon Nielsen’s business relationships with radio stations and advertisers, and that Bubba is a willing participant in those relationships, determining that substantial harm is done by one who seeks to enrich himself by wrongly distorting the advertising pricing determinations and contractual formations engendered by Nielsen’s ratings.
“Suffice it to say that this will continue to be an interesting case to watch.”
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or firstname.lastname@example.org