Sunbeam, Nielsen Fail To Reach Settlement

by David Goetzl, Aug 30, 2010, 6:34 PM

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The prospect of a de facto winter convention of TV research executives in a Miami courtroom is a step closer. Last week's court-ordered mediation failed to yield a settlement in the antitrust case brought against Nielsen by Sunbeam Television, continuing the possibility of a mid-January trial.

Law professor Eric D. Green, who had success in mediating the well-known United States v. Microsoft case, assembled the two parties in his Boston office last week. But talks did not produce a resolution, a representative for Sunbeam said in an email.

Sunbeam has alleged Nielsen thwarted competitors from entering the Miami market, where it operates Fox affiliate WSVN. Furthermore, it charges that Nielsen's local people meters have failed to properly count the number of minority and other viewers, costing it millions of dollars.

It is not clear what happens next.

Judge Paul C. Huck, who would oversee a jury trial in federal district court in Miami, is likely to look for other ways to bring the sides together outside court.

Nielsen, meanwhile, has filed for an IPO, so it may push for a settlement to avoid investor concern brought by an unfavorable judgment. In 2008, Nielsen settled a similar case with charges that it engages in monopolistic practices.

Sunbeam has not specified the damages it is seeking, but has said Nielsen's ratings deficiencies have cost it more than $1 million per month since October 2008.

Nielsen, for its part, said in its most recent IPO filing that the case lacks merit and it will vigorously defend itself.

A trial could bring testimony from some of the best-known executives in television measurement. Sunbeam recently identified a list of well over 100 individuals with information that may be crucial to the case, including CBS' David Poltrack and NBC Universal's Alan Wurtzel. Also included was Michael Vinson, a vice president at Rentrak, which is a fledgling Nielsen competitor. Vinson previously worked at erinMedia, which attempted to challenge Nielsen and brought the antitrust case that Nielsen settled two years ago.

A number of top executives at cable operators, such as Comcast and Cox, are listed as having potentially important information. Sunbeam alleges that Nielsen has signed prohibitive contracts with MSOs. In court papers, Sunbeam also indicates it has obtained documents from the Media Rating Council and Arbitron.

Sunbeam has also identified three expert witnesses that it could call at trial, including Patrick Mullen, who led Tribune Broadcasting from 2003-05 and a News Corp. duopoly in Chicago after that.

Sunbeam also owns an NBC-CW duopoly in Boston.

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