In its lawsuit against New York Attorney General Andrew Cuomo, Arbitron insists that there is no evidence to support the idea that minority-owned broadcasters suffer disproportionately in ratings from implementation of Portable People Meter (PPM) audience measurement, nor that it will do them any financial harm. Arbitron also accuses Cuomo of harassing the company, even though he has no reasonable expectation of succeeding in litigation to stop PPM.
“Over the past eleven months, Arbitron has had extensive meetings with minority-owned broadcasters in an effort to satisfy them that the results of Arbitron’s PPM surveys are valid and reliable. Despite these efforts, there is a small group of minority-owned broadcasters that has continued to be critical of the PPM methodology and samples, largely unsupported by verified facts, documentation or empirical evidence. This same group of broadcasters speculates that a decline in the ratings for their stations will cause them financial harm despite compelling evidence that stations that make use of the PPM data can improve their performance and ratings results. To Arbitron’s knowledge, in the nearly two years since the PPM has launched in Houston and Philadelphia, no minority owned station has gone out of business or suffered significant financial harm as a result of the PPM ratings,” Arbitron said in recounting its version of the history of the dispute in its lawsuit.
The ratings company claims that the involvement of the New York AG’s office is due to the efforts of “a small number of politically well-connected minority station owners and broadcasters who are displeased at the prospect that under the PPM system, their station’s ratings and rankings may decline from those previously reported by Arbitron under the diary system.” Rather, the lawsuit maintains, “any such decline in ratings and rankings, in Arbitron’s opinion as reflected by the PPM audience estimates, represents the likely listening audience for these stations and is in many respects driven by the programming decisions made by these stations.”
Arbitron claims that those dissatisfied broadcasters are attempting to use political influence to stop further commercialization of PPM in New York and across the county. It notes that some of those broadcasters were involved in forming the PPM Coalition, which is seeking to have the FCC investigate PPM. Arbitron repeated in its court filing its position that the FCC has no jurisdiction over the ratings company.
Arbitron’s court filing lashed out at the New York AG’s office for beginning an investigation less than a month before PPM was due to be commercialized in New York, although the date had been set and well known since November 2007. Since receiving a subpoena, Arbitron said it has “had discussions with the AG’s office during which Arbitron has maintained that its radio audience estimates are non-commercial speech protected from prior restraint by the First Amendment, but the investigation and threats of litigation continue.” Arbitron states that publication of its audience estimates are not only protected by the US Constitution, but by the New York Constitution as well, and are thus not subject to prior restrain under the New York statutes cited by the AG’s office in its letter last week threatening litigation.
“Arbitron believes that the AG has no reasonable expectation of success on any of the purported claims the AG has informed Arbitron it intends to pursue. Rather, Arbitron believes that the AG intends, at least in part, to harass and burden Arbitron for reasons unrelated to the merits,” said in its federal lawsuit seeking to bar any attempt by Cuomo to restrain Arbitron from publishing PPM data in New York.
“Any restraint on Arbitron’s publication of its PPM audience estimates, including prohibiting Arbitron from publishing its PPM ratings in the New York market on November 5, 2008 or thereafter, would constitute an unlawful prior restraint of Arbitron’s right to publish under the First and Fourteenth Amendments to the United States Constitution, would cause Arbitron to suffer irreparable harm to its ability to conduct business, and would cause Arbitron and its shareholders to suffer severe economic injury. Monetary relief would be an inadequate remedy for the negative impact such action would have,” the lawsuit states.
