Nielsen vs Bubba: Round One

| October 19, 2015

By Steven J.J. Weisman
TALKERS
Legal Editor

 

weismanwriterBOSTON — The late, great Southern humorist Lewis Grizzard wrote a book titled, Elvis Is Dead and I’m Not Feeling Too Good Myself.  I thought about this recently as I considered the problems that are just in their early stages for syndicated Tampa-based talk radio host, Todd Clem, who uses the stage name Bubba The Love Sponge.  Bubba may not be dead, but he is certainly not feeling so good himself these days.  But don’t worry, Bubba, things aren’t as bad as you think – they are worse.

Clem is being sued in the Federal District Court for the Middle District of Florida by Nielsen Audio for more than $1 million on civil charges of fraud, conspiracy to defraud, interfering with business and contractual relations and violation of Florida’s Deceptive and Unfair Practices Act.  The Florida Deceptive and Unfair Practices Act is Florida’s version of the FTC Act which outlaws the broadly defined “unfair and deceptive acts and practices.”  Although the law is most often utilized by consumers, it also can apply to relationships between businesses as well.

The acts, which form the basis of all of the allegations, are Clem’s attempts to manipulate Nielsen ratings for his Tampa radio show by bribing a PPM panelist.  Although Nielsen subscribers and their employees are strictly prohibited from contacting PPM users, it is alleged that Clem, upon becoming aware in July that a friend of one of his listeners was a Nielsen PPM user, contacted the PPM user and offered him $300 per month if the listener would listen to Clem’s show.  In fact, according to the Nielsen lawsuit, Clem, “described that by using certain tricks the cooperating panelist could make it appear that he was listening to Bubba Clem’s show even when the cooperating panelist was not carrying the PPM device.”

In August, the PPM panelist contacted Nielsen, which investigated the claim and removed the tainted data from its compilations of data. On September 21, Nielsen notified Beasley Media Group, which carries Clem’s syndicated show through an independent contractor agreement, of its findings.  Following its own investigation, Beasley concluded that Nielsen’s allegations were indeed factually correct and suspended Clem for eight days in its local market on WBRN-FM, Tampa.

For his part, Clem made no attempt to hide his participation in the alleged acts, but rather called a press conference at which he said, “I take full responsibilities for what happened and subsequently the consequences that probably are here forward.”  He went on to say, that “There’s no excuses, there’s nobody to blame, I am the person to blame and I’ll accept whatever happens moving forward.”

It is unlikely, however, that Clem anticipated a multi-million dollar lawsuit against him and his company Bubba Radio Networks, Inc.  Nor should he.  While the case being brought by Nielsen is certainly legitimate, the money being sought in compensation seems wildly out of proportion to the offense.  According to Beasley, Clem’s actions had absolutely no effect on the local radio market ratings because his actions were discovered sufficiently early to remove the tainted PPM panelist’s data from the September ratings report.  In the lawsuit, however, Nielsen alleges that its  “reputation and the reputation of its rating reports as an unbiased tool in the industry has been damaged irreparably.”  This appears to be very much a dramatic overstatement.

Where this case will end up is anyone’s guess.  However, it is a sure thing that it will cost Clem some significant money as well as harm to his reputation.  Elvis is certainly dead and Bubba is not feeling so well himself.

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Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com.  He can be e-mailed at: stevenjjweisman@aol.com.  Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams.

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Category: Legal