NEWS23 September 2009

Nielsen moves to dismiss new Sunbeam complaint

Legal North America

US— Ratings firm Nielsen has again asked a court to dismiss anti-trust proceedings bought against it by Florida-based broadcaster Sunbeam Television.

Sunbeam filed an amended complaint earlier this month claiming that audience figures for its WSVN TV station have been harmed by the introduction of a new ratings system based on local people meter (LPM) technology in the Miami-Fort Lauderdale market.

The broadcaster argued that Nielsen used its “monopoly” position to implement LPMs “over the objections of WSVN and its other broadcast television customers, knowing that its LPM technology had a well-documented history of producing inaccurate, defective ratings data, particularly in markets with complex minority demographics”.

But in its motion to dismiss, Nielsen’s lawyers argue that Sunbeam “has not sufficiently pled anti-trust injury or anti-competitive conduct”, and, as Sunbeam has not alleged that any other ratings firm was prepared to enter the Miami market, Nielsen argues that the broadcaster has not suffered an anti-trust injury.

Nielsen also said that Sunbeam’s new claim for anti-competitive conduct does not meet the required Twombly Standard and that the broadcaster’s allegations of being tied into long-term contracts and barred from using any other ratings services are “insufficient”.

“Sunbeam’s theories remain fundamentally flawed and pleading deficiencies persist in the amended complaint,” concluded Nielsen’s lawyers. “Despite guidance from this court as to how its complaint could be improved, Sunbeam still fails to state a valid claim.”

The ratings firm urged the court to dismiss the complaint “with prejudice”.