PAUL C. HUCK, District Judge.
This matter is before the Court on Defendant Nielsen Media Research, Inc.'s Motion for Summary Judgment (D.E. #94), filed September 21, 2010. The Court has considered the extensive briefing and record in this matter, and held oral arguments. For the following reasons, the Motion is granted as to the federal and state antitrust claims. The Court shall defer ruling on the remaining counts—breach of contract and violation of Florida's Deceptive and Unfair Trade Practices Act—until supplemental briefing has been submitted and considered.
Nielsen is one of the world's leading providers of television audience measurement services. Sec. Am. Compl. ¶ 1. Nielsen provides viewership ratings for television stations, including broadcast and cable. Nielsen sells its ratings information, by way of subscription, to a variety of users, including television stations, cable operators, networks, advertisers, advertising agencies, media sales representatives, television content developers and providers and television viewers. Since 1993, Nielsen has effectively been the sole provider of such services in the United States.
Ratings are the currency of television media. Ratings directly affect the prices at which advertisements—a television station's principal source of income—are sold. Id. ¶ 2. Nielsen employs or has employed three methods for collecting raw viewership sampling data from which it generates extrapolated ratings: Diary, Meter-Diary, and People Meter. Id. ¶ 45. The Diary method requires selected sample viewers to manually record in diary form the television shows they watch. Id. ¶ 46. The Meter-Diary method combines the Diary method, which is employed in some selected sample homes, with recovered automated information from electronic meters installed in other selected homes. Id. ¶ 48. The People Meter method combines the electronic meter, which broadly tracks house-wide viewership, with a remote control that enables Nielsen to determine which specific individual is viewing a particular program by requiring the viewer to press a unique identifying button on the remote control. Id. ¶ 50. The People Meter does not require the viewer to maintain detailed written records, and is thus more passive than the Diary method, though it does require active participation in the form of using the identifying remote control buttons.
An important characteristic of television viewership is that with regard to proportion, it is a zero-sum phenomenon or "closed universe." Represented in percentage terms, total (100%) television viewership is static, though the percentage of viewership allocated to any channel is dynamic and inversely proportional to the percentages allocated to other channels. A greater percentage-allocation of total viewership must come at a competitor's expense, and a lesser one to a competitor's advantage. Another overarching reality in this case is that viewership sampling is an imprecise undertaking, and the parties agree that all sampling methodologies have flaws.
This case arises out of controversy surrounding Nielsen's October 2008 implementation of its Local People Meter methodology, a People Meter method replacing the Meter-Diary method in the Miami-Fort
Sunbeam contends that its injury is the result not merely of a defective ratings product, but of antitrust violations. Sunbeam alleges that Nielsen engaged in the following exclusionary and monopolistic conduct: (1) mandating contract provisions that prevent competitors from entering the market; (2) undertaking transactions and business strategies intended to neutralize actual or potential competitors; (3) imposing punitive pricing on customers who resist its practices; (4) utilizing defective ratings data to attract and retain new cable customers, thereby foreclosing a potential avenue of competitor entry; (5) imposing on its customers onerous contract provisions that, inter alia, leave them with no effective contractual recourse in the event of breach; and (6) charging non-competitive prices for its rating services. Id. ¶ 13.
The operative Second Amended Complaint contains claims for violation of the Sherman Antitrust Act (Count I), violation of the Florida Antitrust Act (Count II), violation of the Florida Deceptive and Unfair Trade Practices Act (Count III), and breach of contract (Count IV).
On this Motion for Summary Judgment, the Court must determine if, in light of the record evidence, there exist disputed issues of material fact concerning each of the claims in the Second Amended Complaint. To the extent this is the case, each such claim must proceed to trial.
Section two of the Sherman Act prohibits monopolization or attempts "to monopolize ... any part of the trade or commerce among the several States...." 15 U.S.C. § 2.
A threshold issue pervading the antitrust inquiry is the extent to which alleged exclusionary conduct on a national basis is relevant to claims involving an identified local market. The geographical market in this case is Miami-Fort Lauderdale. Yet much of the evidence of exclusionary conduct and potential competition implicates national-level activity: national contracting practices and potential national competitors. Despite Nielsen's protestations to the contrary, such evidence is relevant insofar as the national conduct has the natural consequence of foreclosing intended local competition and causing local antitrust injury.
Sunbeam contends that Nielsen excludes competition by employing staggered termination dates in its major subscription contracts and requiring its customers, upon termination of their subscriptions, to return and cease using historical ratings data. Nielsen responds that its contracts are non-exclusive (allowing customers to purchase others' ratings products), customers pick the duration of their contracts, no "critical mass" of customers was tied up under Nielsen's contracts, and Nielsen has no duty to assist potential competitors by providing historical ratings information.
A policy or practice of intentionally staggering contract terms may, under some circumstances, constitute anticompetitive conduct, erinMedia, LLC v. Nielsen Media Research, Inc., No. 8:05-cv-1123, 2007 WL 5125668, at 4-5 (M.D.Fla. Dec. 28, 2007) (unpublished decision); Insignia Systems, Inc. v. News Am. Marketing In-Store, Inc., 661 F.Supp.2d 1039, 1065 (D.Minn.2009), though it must be one that forecloses a substantial share of the market, see E. Food Servs., Inc. v. Pontifical Catholic Univ., 357 F.3d 1, 8 (1st Cir. 2004).
There is some evidence that Nielsen has a policy or practice of staggering the terms of certain of its national market contracts. These are its "Master Service Agreements" or "corporate contracts" with Time Warner, NBC Universal, News Corporation, and CBS, which, for each of these entities, consolidates all existing contracts for numerous local and national products and services into a single master agreement. Dep. of Sara Erichson, Ex. 128, at 55:22-61:23. The reasons for this policy are in dispute. Nielsen maintains that it staggers these corporate contracts because they require enormous effort to negotiate, and it would be burdensome to negotiate numerous large contracts simultaneously. Sunbeam counters that the policy is a strategy intended to impede a competitor's market entry by foreclosing substantial market share at any given entry point. Nielsen also argues, and Sunbeam does not dispute, that Nielsen does not have a policy or practice of staggering the terms of its customer contracts in Miami. However, Sunbeam responds that Nielsen's national contracting conduct "ripples into the local markets, including Miami, and continues the desired effect of discouraging competition on both the national and local level." Sunbeam's Disputation of Nielsen's Statement of Undisputed Facts (D.E. #116) ¶ 119. See also Expert Report of Richard Rapp, Ex. 95, ¶¶ 103-115.
According to Sunbeam, "Nielsen's policy of staggering national and station group contracts had the effect of locking up 88%
Nielsen also argues that regardless of the existence of staggering and the intentions behind the practice, its contracts were not exclusive—its customers were never contractually precluded from purchasing additional ratings information from a competitor—and thus could not have anticompetitive effect. It is not clear, however, whether customers would nonetheless have been significantly deterred from purchasing competing ratings. Compare April 19, 2007 Dep. of CBS Chief Research Officer and President of CBS Vision David Poltrack, Ex. 39, at 188:19-24 ("Q. Would [CBS] be able to find the resources to purchase such a service, if [erinMedia] had a service? A. Subject to a cost/benefit analysis and normal business analysis, obviously we could find the money."); with id. at 212:14-22 ("It would have—the process would have been done on a cost/benefit basis. Obviously the corporation has the funds, but we would do the analysis on the basis of a cost/benefit analysis, so we would have to actually show management the generation of more than $50 million in incremental profits in a business analysis. I cannot imagine at that point in time we would have ever been able to do that."); Expert Report of Patrick Mullen, Ex. 71, at 45 ("Although Tribune was very interested in encouraging, including providing financial support, to [sic] a viable Nielsen competitor, Tribune could not pay a new television audience measurement provider $17 million, or a fraction of that amount, while it was still required to pay Nielsen in excess of $17 million."). Sunbeam's expert economist opined that Nielsen's contracts "effectively compelled exclusivity" and that, "[g]iven the combination of long-term contracts, the absence of termination rights for customers, and the staggered contract expiration dates, any entrant would face an extremely slow rate at which it could expect to gain customers." Expert Report of Richard Rapp, Ex. 95, ¶¶ 107, 115. On this record, whether Nielsen's contracting practices are exclusionary is a disputed factual issue.
Nielsen's non-exclusive contracts provide customers a subscription to its ratings
Claims such as Sunbeam's—that it is exclusionary for Nielsen to require return of its historical ratings data—are generally analyzed within antitrust law as "refusals to deal" or denials of access to "essential facilities." Historically, courts had been receptive to such claims. For example, in Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal and Professional Publications, Inc., 63 F.3d 1540 (10th Cir. 1995), the plaintiff, a provider of a supplemental bar review course, alleged that defendants, providers of comprehensive bar review courses, attempted to monopolize the supplemental market by deliberately scheduling their courses so as to create conflicts with plaintiff's course. Defendants protested that they had no duty to assist a competitor by rearranging their schedules. Finding that the plaintiff offered sufficient circumstantial evidence that the scheduling conflicts were deliberate and unjustified, which included a showing that such conflicts increased after plaintiff's rejection of defendants' proposed market-allocation agreement, the Tenth Circuit reversed the district court's grant of summary judgment to the defendants.
The Supreme Court reached a similar conclusion in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). There, the defendant—owner of three of four adjoining ski slopes—had for some time, with the plaintiff—owner of the fourth slope— jointly sold to skiers a single pass to all four slopes, with the revenue divided among the owners based on slope usage. This was particularly beneficial to the plaintiff, because its slope, while receiving significant usage under the parties' arrangement, would be substantially less attractive to skiers if they could not also ski the other three slopes. The Court found violation of the Sherman Act based on defendant's termination of the joint undertaking and refusal to sell to the plaintiff passes to the defendant's three slopes even at the regular market price offered to skiers. The defendant's decision to cease participation in a profitable voluntary joint venture, without which the plaintiff would suffer significant commercial harm, suggested a willingness to forsake short-term profits to achieve an anticompetitive end. "Aspen Skiing [taught] that a monopolist may have to continue to deal with a competitor when doing so would enhance consumer welfare, when the monopolist is aware of this welfare benefit, and when the monopolist can show no offsetting benefit to consumers from an efficiency achieved by means of the monopolist's exclusionary conduct." Lawrence A. Sullivan & Warren S. Grimes, The Law of Antitrust: an Integrated Handbook 130 (2d ed. 2006).
A recent decision illustrates the lack of clarity over the extent to which a monopolist must "assist" a competitor and the import of Trinko and Aspen Skiing. In In re Educational Testing Service Praxis Principles of Learning and Teaching: Grades 7-12 Litigation, 429 F.Supp.2d 752 (E.D.La.2005), the plaintiffs alleged that the defendant—which devised and administered state-sanctioned professional aptitude examinations and produced commercial preparatory material—refused to make its test booklets and answer sheets available to either test takers or competing examination producers and preparers, in violation of the Sherman Act. The court dismissed the claim, though its reasons appear to pull in different directions, one suggesting a rigid adherence to Trinko ("There is no allegation that [defendant] changed a profitable course of dealing with a competitor to the detriment of that competitor"), the other suggesting a flexible approach with the court considering whether there was actual anticompetitive effect regardless of whether the defendant had ever provided such assistance in the past ("plaintiffs concede that two other companies are capable of developing marketable teacher certification tests without any help from [defendant]"). Id. at 758-59.
Perhaps Trinko's emphasis on the fact that Aspen Skiing involved a decision to terminate a pro-consumer, cooperative arrangement should be viewed pragmatically from an evidentiary perspective. See Sullivan & Grimes, supra, at 130. The original cooperation, which benefited both slope owners, demonstrated financial and administrative feasibility, and the arrangement's popularity among consumers evinced the market's favorable preference. These specific factors strongly suggested that the defendant slope owner's decision was anticompetitive. Thus, there was no need for the Court to divine anticompetitive purpose and effect.
Admittedly, the current state of refusal to deal/essential facility jurisprudence
While Nielsen's policy of prohibiting post-subscription retention of ratings data may make it more difficult for competitors to enter the market, there is no record evidence to suggest—consistent with the evidentiary requirements of Trinko and Aspen Skiing—both anticompetitive purpose and effect with regard to this specific conduct. Nor does the conduct constitute a complete refusal to deal or denial of access to an essential facility, for the ratings information is available by continued subscription. If Aspen Skiing was at the "outer boundary," Nielsen's alleged refusal to deal/denial of access to an essential facility falls outside that boundary.
The difficulty in this case, however, is that the ratings-retention policy is not the sole alleged exclusionary practice. It is not clear whether Trinko is to be applied on a case-wide basis, accounting for all alleged instances of exclusionary conduct, or applied individually and discretely to each alleged instance of exclusionary conduct. That is, if there is not sufficient evidence that the ratings-retention policy had anticompetitive purpose and effect, can the issue nonetheless survive summary judgment if there is other evidence—such as contract term staggering—of anticompetitive purpose and effect? Is each alleged form of anticompetitive conduct to be separately analyzed under Trinko, or can a lack of evidence of anticompetitive purpose and effect as to one form of conduct be mitigated by substantial evidence as to another? In Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962), the Supreme Court held that it was error for a lower court to have divided an antitrust conspiracy case into five separate episodes, and assessed the sufficiency of plaintiffs' case as to each episode as though it were a separate lawsuit. The Court observed that "plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each," and that the "character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole ..." Id. at 699. Continental Ore recognizes that exclusionary conduct can have cumulative effect, and raises the possibility of a case-wide application of Trinko. On the other hand, the monopolist's precarious position cannot be overlooked. How is it to assess the amorphous cumulative effect of conduct that may, standing alone, be lawful? This tension underlies antitrust jurisprudence, and one can only hope that appellate courts have an opportunity to resolve it in the near future. Nonetheless, in light of Trinko, the Court feels constrained to hold that Nielsen's ratings-retention policy, falling beyond the "outer boundary of § 2 liability," does not present a disputed factual issue.
Arbitron competed with Nielsen in the local television ratings business and held a substantial share of that market until its exit in 1993, after which it focused exclusively on radio ratings. In the late 1990s, Arbitron began developing and testing Passive People Meters—a new ratings technology which utilizes pager-sized devices that viewers wear in order to capture encoded television signals. These devices are passive in that they record an individual's viewing activity without requiring any action of the individual, whereas Nielsen's People Meter requires the viewer to actively push a remote control button. Sunbeam claims that Nielsen prevented introduction of Passive People Meter technology by entering into an option agreement with Arbitron which, if the option were exercised, granted Nielsen exclusive control over deployment of Passive People Meters in the U.S. television market, while Arbitron retained rights over their deployment in the radio market. Nielsen responds that its option was non-exclusive, permitting Arbitron unilaterally to grant option rights to another party and that, in any event, in March 2006, Nielsen ultimately declined to exercise its option, leaving Arbitron free to implement Passive People Meter technology in the television market. Sunbeam replies that the non-exclusivity was illusory, because Nielsen held a right of first refusal. Sunbeam adds that in prematurely implementing Local People Meter technology, Nielsen made the market even more inhospitable to introduction of Passive People Meters by tying its customers to Local People Meters and decreasing the market's appetite for yet another ratings technology.
There is equivocal circumstantial evidence suggesting that Nielsen entered into the joint venture for exclusionary purpose. See Nielsen Media Research 2002 MTP Process, Ex. 168, at NIE-EM00148697 (Nielsen business plan characterizing Arbitron's passive technology as "threat to planned rollout to LPM" and listing "[p]artnering with Arbitron" as one of the "[s]olutions"). Nevertheless, an exclusionary purpose cannot overcome an absence of harm to competition. There is no dispute that Nielsen paid a substantial sum of money for the option, and that Nielsen poured millions of dollars into the joint venture. If anything, Arbitron benefited from the option fees and investment capital. Nor is there any dispute that Nielsen declined to exercise the option, and that Arbitron was then free to implement and market the technology or assign it to others as it saw fit, with the benefit of Nielsen's substantial investment. These facts do not present an issue sufficient to survive summary judgment.
Sunbeam contends that Nielsen's implementation of Local People Meters constitutes both exclusionary conduct and antitrust injury. If Nielsen excluded a superior methodology through monopolistic conduct, the causally related harm that Sunbeam suffered by virtue of Nielsen's allegedly defective product constitutes its antitrust injury, much as any consumer is harmed by a monopolist's defective product. But Sunbeam ascribes an additional role to Local People Meter implementation: that it was undertaken for anticompetitive effect. Thus, Local People Meter implementation must be analyzed as both an exclusionary act and a form of antitrust injury.
Product changes are not, standing alone, within the province of the Sherman Act. See Oahu Gas Serv., Inc. v. Pacific Resources Inc., 838 F.2d 360, 369 (9th Cir.1988) ("A line of `product innovation' cases has consistently rejected antitrust
Misrepresentations may in certain circumstances constitute such associated exclusionary conduct. Thus, if Nielsen's implementation of Local People Meters was accompanied by misrepresentations made for and with anticompetitive effect, actionable antitrust injury may exist. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir.2004) (affirming certification of class in antitrust action involving allegations that pharmaceutical company sought to preclude market-adoption of generic drug by misrepresenting that it was not bioequivalent to the company's non-generic).
Sunbeam argues that Nielsen hastily implemented and forced on its consumers— through misrepresentation—severely flawed Local People Meter technology in an effort to stave off the threat of competitive technology and capture the cable television ratings market. Arbitron, as noted, was developing passive technology, and with the advent and rapid adoption of cable television, cable operators were in a position to develop another methodology utilizing "set-top box" data—viewership information that could be extracted directly from in-home cable boxes that most cable subscribers possess. Cable operators were also concerned with existing methodological flaws that they felt unduly benefited broadcast stations, including Sunbeam's, and resulted in inaccurately low cable television station ratings. Sunbeam claims that Nielsen placated the cable operators' ratings concerns and removed their incentive to develop competing technology by promising in advance that Local People Meters would lead to higher cable ratings. Sunbeam alleges that Local People Meter technology suffers from numerous flaws, including Nielsen's inability to develop a reliable random sample from which to extrapolate ratings data, and inaccuracies resulting from non-compliance due to the burdens placed on sample participants by the button-pushing requirements and the two-year length of sampling (as compared to the one-week length of sampling in the Meter-Diary method). According to Sunbeam, non-compliance is most acute when minority groups are being sampled, and uniquely harms Sunbeam, which has substantial minority viewership. Nielsen responds that while all ratings technologies have limitations, Local People Meter technology has significant advantages over its predecessors, including higher cooperation rates, lack of reliance on paper diaries, data reporting for individual viewers on a daily basis, and the
The record reflects that Nielsen viewed the cable operators as a potential competitive threat. There is some ambiguous evidence suggesting that Nielsen implemented Local People Meter technology to stave off that threat. See Nielsen Media Research 2002 MTP Process, Ex. 168, at NIE-EM00148697 (describing that cable operators were "working on their own collection systems," and noting among potential solutions that Nielsen "may need to modify our LPM Plan"). However, the record does not support Sunbeam's claim of Local People Meter inferiority. To the contrary, Nielsen has proffered evidence supporting the claimed superiority of Local People Meter technology, and no Sunbeam witness, fact or expert, was willing to testify that it is inferior to the pre-existing Meter-Diary system. When asked, Edmund Ansin, Sunbeam's president and 30(b)(6) witness, said, "I can't tell you which is a better methodology." Dep. of Edmund Ansin, Ex. 16, at 154:25-155:7. Patrick Mullen, Sunbeam's expert witness on the television industry, testified, "I don't know which one is better." Dep. of Patrick Mullen, Ex. 19, at 90:18-22. When asked whether he had any view on the superiority of either system, Eugene Ericksen, Sunbeam's expert statistician, noted that he couldn't "answer that conclusively because there has not been enough research." Dep. of Eugene Ericksen, Ex. 22, at 70:5-18. Acknowledging its lack of evidence, Sunbeam argues that Nielsen has refused to rigorously analyze whether Local People Meter technology is in fact superior to its predecessors, that only Nielsen has the ability to do so, but that it is nonetheless reasonable to simply suppose that Local People Meters are inferior. See Pl.'s Surreply Mem. in Opp'n to Nielsen's Mot. for Summ. J. (D.E. #154), at 2 ("The only way to determine the impact of these problems on ratings accuracy, and to adequately address them, is to conduct rigorous methodological research... Only Nielsen can conduct such research."); Rebuttal Report of Eugene Ericksen, Ex. 85, at 31 ("I am stunned by the lack of a research record comparing the accuracy of the meter-diary and LPM systems.... While there is no research record indicating which one is more accurate, the presumption has to be on the side of the meter-diary system. The respondent burden on the diary-keeper listing the audience members for a one-week period is substantially less than the burden on all household members to keep pushing buttons for two years."); Expert Rebuttal Report of Gale Metzger, Ex. 86, ¶ 6 ("Nielsen's LPMs are not clearly superior to Meter-Diaries and it is reasonable to believe that Meter-Diaries are superior based on available research."). But see Dep. of Gale Metzger, Ex. 223, at 121:18-20 ("I really believe that the Meter-Diary system is a more accurate reflection of the total audience than does [sic] the People Meter."). Sunbeam adds that regardless of superiority on the national level, Local People Meters are inferior to the Meter-Diary method in the Miami-Fort Lauderdale market, as evidenced by dramatic ratings changes inconsistent with those experienced in other local markets transitioning to Local People Meters.
At most, the record reflects that Sunbeam could potentially establish at trial that Local People Meters, as do all existing methodologies, have serious flaws. Sunbeam might also be able to establish that any flaws attending Local People Meters may be exacerbated in certain local markets, such as Miami-Fort Lauderdale. Even if Sunbeam could establish that despite its comparative advantages in the national market, Local People Meters are inferior to the Meter-Diary system in the Miami-Fort Lauderdale market—and the
Sunbeam—unable to demonstrate that product change alone suffices under Section Two—tries to locate such anticompetitive conduct in alleged misrepresentations accompanying Local People Meter implementation. Sunbeam's theory is that were it not for misrepresentations regarding the quality of the technology and the ratings it produced, the market would have (1) demanded more product-testing and research, (2) discounted the value and significance of Sunbeam's ratings drop, and (3) been more hospitable to the introduction or development of a competing technology. Resolution of this issue must await supplemental briefing, which will address Sunbeam's factually parallel claim that such representations violated Florida's Deceptive and Unfair Trade Practices Act.
In the absence of Eleventh Circuit precedent, this Court previously adopted the D.C. Circuit's standard governing what a purchaser must prove, in respect of showing the existence of an excluded competitor, to establish the causal nexus between exclusionary conduct and the plaintiff's antitrust injury:
Sunbeam Television Corp. v. Nielsen Media Research, Inc., No. 09-60637-CIV (PCH), 2010 WL 773581, *1 (S.D.Fla. March 5, 2010) (quoting Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 862 (D.C.Cir. 2008)). Thus, to bring this controversy within the ambit of antitrust, Sunbeam must sufficiently establish that there existed a television viewership ratings firm willing and able to supply a superior product but for Nielsen's exclusionary conduct. Sunbeam has suggested that there were three such excluded potential competitors: ADcom, erinMedia, and Arbitron.
The uncontroverted evidence demonstrates that ADcom neither sought nor intended to compete with Nielsen in the full-market television ratings business. Instead, ADcom intended only to compete with Nielsen in a limited arena—the cable television ratings business. See Dep. of Richard Spooner, Ex. 33, at 75:12-16 ("[W]e distinguished ourselves from day one as serving only one master. You know that was a key component of our strategy. We were not a broadcast or a full market measure. We were a cable universe measure."); Id. at 84:15-22 ("[We] never ever had intention to go after the broadcast television market while ADcom was what ADcom was at that point. What we would have done 10 or 15 years later ... I don't really know what we would have done."). Therefore, it cannot be said that ADcom was willing to supply full-market television ratings, as would be necessary to compete with Nielsen.
erinMedia, a company owned by real estate investor Frank Maggio, contemplated providing television ratings based in part on information acquired from in-home cable boxes.
While Sunbeam has adduced sufficient evidence of erinMedia's willingness, it has not done so with regard to erinMedia's ability to enter the market, or the allegedly anticompetitive reasons for that inability. It is undisputed that erinMedia did not obtain the cooperation of cable companies, whose set-top box data was essential to erinMedia's methodology. Sunbeam argues that this failure was the result of Nielsen having improperly fostered and exploited the cable companies' allegedly unfounded fear that providing erinMedia with the their customers' viewing data would run afoul of the federal Cable Act's privacy requirements and, if the practice were disclosed to third parties, draw the ire of the cable companies' customers. Nielsen denies having done so, and has presented evidence supporting its denial. In contrast, Sunbeam has not presented any competent evidence to establish that Nielsen caused the cable companies to withhold from erinMedia critical viewership data. According to Nielsen, and undisputed by Sunbeam, the best that Sunbeam proffered was a Nielsen representative's truthful statement, made in response to a question asked during a public panel discussion on the subject, that there existed privacy concerns in the use of viewership set-top box data. This is patently insufficient to support Sunbeam's contention. Because erinMedia was unable to obtain the essential raw data for its methodology and because Sunbeam has not established that Nielsen caused this inability, a jury could not reasonably find that erinMedia was willing and able to compete with Nielsen. See Meijer, Inc., 533 F.3d at 862 (drug manufacturer was not "able" to compete with incumbent where it could not demonstrate that it would have received necessary FDA approval).
There is clearly a material factual dispute about whether Arbitron is able to enter the local television ratings market. The record shows that Arbitron pioneered
It is remarkable that Sunbeam has not submitted any testimony from an Arbitron representative to support Sunbeam's contention that Arbitron was not only able but was willing to enter the television ratings market but for Nielsen's exclusionary practices. Sunbeam has submitted no evidence that Arbitron had taken even the first step, much less a significant step, toward entry into the market. Sunbeam has only presented a few vague, unexplained and somewhat contradictory Arbitron documents upon which it rests its assertion of Arbitron's willingness and intention to enter the market. See Arbitron 2009 Strategic Plan & 5-Year Projections, Ex. 62, at A00192587 ("Avoid head-to-head by emphasizing away-from-home and unique features."); id. ("Customer demand for Nielsen replacement ... Economic pressures on TV stations creates opportunity for Arbitron."); id. at A00192604 ("The economic decline has prompted TV broadcasters to look aggressively at alternatives to Nielsen."); id. at A00192615 (characterizing Nielsen as the "Soviet Union"); Arbitron January 13, 2009 Television Offensive Strategy, Ex. 114, at A00001325 (noting that "Nielsen response is a risk"); 2010 ARB-TV Plan dated September 18, 2009, Ex. 115, at A00006995 ("Entering local TV is costly, and Nielsen will try to win back customers at any cost—customers may also be locked into long term contracts."). Sunbeam suggests that a jury could reasonably conclude from these unexplained, vague and contradictory documents that Arbitron is not only able but also willing to reenter the television ratings market. The Court finds that, on this record, such a conclusion would be unduly speculative and not supported by competent evidence. Therefore, this case does not present a disputed factual issue in regard to the existence of a willing and able competitor that would have entered the relevant market but for Nielsen's exclusionary practices.
According to Sunbeam, it has suffered two categories of damage as a result of Nielsen's exclusionary conduct: (a) supracompetitive prices paid for Local People Meter audience measurement services, and (b) loss in advertising revenue and going-concern value resulting from WSVN's precipitous and unwarranted drop in ratings. Even if Sunbeam were able to establish the existence of a "willing and able" competitor, which it has not, Sunbeam's damages would be limited to those arising from supracompetitive pricing.
Had Sunbeam sufficiently established the existence of such a competitor, the record would present a material factual
In considering this damage issue, the Court is once again mindful of an underlying and ever-present tension operating in this case. The imprecise and subjective craft of rating television viewership is, in an important respect, a zero-sum activity. Regardless of which contending rating methodology is selected, the universe of viewership to be allocated among all competing television stations is 100%. Thus, it is self-evident that when one station's allocation of viewership increases, the remaining percentage allocated to the other stations decreases proportionally. The Court is also mindful, and both parties agree, that any audience measurement system that relies on sampling is bound to be imperfect. With these considerations in mind and based on the record, the Court has determined that Sunbeam cannot meet the initial burden of establishing that WSVN's current ratings are less accurate than they would be under a prospective competitor's methodology. More importantly, even if Sunbeam could meet this initial burden, Sunbeam has not established that the improved accuracy would inure to its benefit, i.e., that WSVN would be allocated a greater percentage of viewership under that competitor's methodology.
For years, Sunbeam was pleased with the status quo of the Meter-Diary method, which even Sunbeam admits has flaws, but other stations, including cable stations, were not. Now some of those other stations may be satisfied, and Sunbeam is not. Were Nielsen to be compelled to revert to the Meter-Diary method or institute a new method entirely, it would likely face new complaints and possibly new antitrust actions from other stations, cable or broadcast, dissatisfied with their decreased allocation.
Though there is evidence of exclusionary contracting practices, Sunbeam has not established the existence of a "willing and able" competitor. Accordingly, the Motion for Summary Judgment must be granted as to the federal and state antitrust claims.
