US District Court Judge Denise Cote has dismissed Arbitron’s lawsuit against New York Attorney General Andrew Cuomo. She ruled yesterday that the state courts of New York should have first crack at the battle over Arbitron’s Portable People Meter (PPM). She said Arbitron can raise its First Amendment claims there.
Arbitron had sought to put the issue before the federal courts by suing the New York AG as he was already threatening to sue Arbitron in state court, contending that PPM undercounts minority radio listeners. Cuomo had argued that since Arbitron was aware of pending state litigation when it filed the federal lawsuit, that precedents favored allowing the state court to have jurisdiction. Cuomo’s motion to dismiss the federal lawsuit was granted on Monday.
The judge ruled that the business fraud claims brought by Cuomo are clearly within state jurisdiction. She did not address the issue of whether publication of PPM research data is noncommercial speech, fully protected by the First Amendment, as Arbitron claims, or commercial speech, which is subject to more restrictions, as Cuomo claims. That is yet to be argued in the New York state courts and could, conceivably, eventually come back to the federal courts.
Despite the setback, Arbitron says it is prepared to defend itself in court.
"Today’s ruling does not impact Arbitron’s right to publish our Portable People Meter audience estimates in New York. We asked the federal court to protect our right to provide the radio industry with the up-to-date PPM audience estimates it needs. Following our efforts, the New York Attorney General chose not to seek a temporary restraining order adversely impacting our right to produce PPM estimates.
Now that Arbitron has commercialized the PPM service in New York and other key markets, we look forward to defending our interests. Broadcasters, agencies, and advertisers need continual PPM audience estimates if radio is to remain competitive in an increasingly complex and crowded media marketplace," Arbitron said in a statement sent to RBR/TVBR.