• by Joe Mandese  @mp_joemandese, July 16, 2004

Immediately after adjourning a Congressional hearing on Nielsen's local people meter system by concluding, "I doubt that it requires legislation," Senator Conrad Burns (R-MT), chairman of the U.S. Senate's subcommittee on communications, back-peddled during a briefing with reporters, leaving the door open to legislation on the matter.

"Legislation is always an option," said Burns, during a post-hearing press conference convened by anti-people meter advocacy group, Don't Count Us Out, "It's a foregone conclusion that whenever an issue comes before Congress that legislation is a possibility."

How, when and what form such legislation might take wasn't clear. What was clear, said Burns, was that Congress plans to keep pressure on Nielsen and to closely monitor the situation, reserving the option to take additional steps, including additional hearings, new oversight and regulatory powers for an industry ratings watchdog and potential laws that would regulate how the media research conducts its business.

"We are watching," Burns told reporters, referring to Nielsen as a "monopoly." The statements followed three hours of testimony during which Nielsen CEO Susan Whiting was grilled by lawmakers and criticized by opponents of the local people meter system, including two - Univision Television President Tom Arnost and Fox Television Stations President Tom Herwitz - whom called on Congress to provide oversight of Nielsen.

One possible outcome, said Burns, was to give the Media Rating Council some "power" to regulate Nielsen. "If they have some teeth, they might have all we need," said Burns, noting that the MRC currently does not have the means to enforce media ratings policies, only to audit and recommend them. The MRC was created 38 years ago as a means for the TV industry to regulate itself following the last Congressional hearings on the matter.

"We will monitor this very closely," said Burns.

Meanwhile, the possibility of new laws regulating Nielsen's methods and sampling raises big questions, as well as issues of the rest of the media industry. Would such laws be created to regulate Nielsen explicitly, or might they be applied to the practice of sample-based marketing and media research more generally? If its the latter, the developments of the past several months could prove to be a Pandora's box for the media industry at large, especially for Madison Avenue, which invests hundreds of billions of dollars each year in media buys based largely on some form of sample-based research that other opponents might see as being biased or skewed against minority groups.

Asked if such legislation might be extended to the other areas of marketing and media research, Rep. Hilda Solis (D-CA), who participated in the press briefing with Senator Burns, said, "At the time right now, we're just focused right now on this particular issue." However, she went on to note concerns about the representation of minorities, particularly Latinos and Asian Americans in other media, including radio.

Meanwhile, the notion of new laws regulating Nielsen exclusively might raise some thorny Constitutional issues. In his recent ruling denying Univision's request for an injunction to stop Nielsen's roll out of people meters in Los Angeles, Superior Court Judge J. Stephan Czuleger cited the First Amendment and the threat to Nielsen's "free speech."

Nielsen executives have cited that ruling as protecting the right of Nielsen to produce ratings "estimates." Opponents claim the Nielsen's ratings are more than simply estimates of audience share, but are in effect, the basis of market currencies that determine the success or failure of TV programming and therefore require regulatory oversight.

While the hearing itself did not shed much new light on the issues surrounding Nielsen's local people meters, it seemed clear from the testimony that the focus was mainly on the representation of Nielsen's samples, and not the people methodology itself. However, after repeated jabs made during Fox's Herwitz to the "button-pushing" people meters, Senator Barbara Boxer, asked Nielsen's Whiting what the TV ratings company was doing to test portable people meters. Whiting cited Nielsen's four-years of support and testing and implied that it is continuing to look at the Arbitron technology as a potential solution.