• by David Goetzl , March 31, 2010

If Sunbeam Television owner Ed Ansin wants to take Nielsen to trial, a date has been set. Nielsen would then face testimony alleging that it functions as a monopoly that overcharges networks and under-counts viewers.

The trial is scheduled to begin Dec. 6 in Federal District Court in Miami before the same judge, Paul C. Huck, who earlier this month shot down Nielsen's attempt to dismiss the antitrust case.

Sunbeam alleges that Nielsen has cost it millions by failing to allow competitors to enter the Miami market, where it operates the Fox affiliate. Nielsen's defective local people meters have lowered WSVN's ratings and revenues, Sunbeam charges in court papers.

Still, a number of things could delay or cancel the trial, which has already happened once with a Dec. 21, 2009 trial date.

Nielsen is still looking to have the case dismissed. Also, Sunbeam and Nielsen would have to engage in mediation to work toward a settlement before the trial would start. The judge could also order further efforts to bring the two sides together, or grant a motion for postponement.

A pre-trial settlement could also be reached outside court, which Nielsen may seek aggressively to avoid the spectacle that would be a trial -- where issues involving its methodologies and sampling would be front and center.

In 2008, Nielsen settled an antitrust case with potential competitor erinMedia, which was also in a Florida federal court. Terms were not disclosed.

Frank Maggio, who led erinMedia, has been deposed in the Sunbeam case and is likely to be called to testify in a trial. Maggio told MediaPost a year ago that "the TV ratings industry desperately needs people like Ed Ansin to sound the battle cry."

In 2004, Univision also settled a case with Nielsen involving ratings issues with local people meters, although Nielsen was able to move forward with a rollout in Los Angeles.

Sunbeam's Ansin, however, may want to take his case to a jury. A wealthy man who just turned 74, he also owns an NBC-CW duopoly in Boston. Court papers show that he feels he is standing up for fellow local stations in South Florida and elsewhere with the suit.

Ansin showed a mix of obstreperousness and obedience in a 2009 dispute with NBC. He railed against the network for scheduling a Jay Leno show in prime time, and threatened not to air it.

But when NBC struck back and said it would yank his station's affiliation, he issued a statement praising Leno and backed away.

Calls to Ansin were not returned Wednesday. A Nielsen representative stood by a previous statement that the Sunbeam matter has no merit and ratings in Miami are "representative" of the population.

In court papers, Sunbeam alleges that Nielsen knowingly provides ratings in the Miami-Ft. Lauderdale market that under count minority viewers and others with its local people meters (LPMs). The market -- the country's 17th largest -- is one of its most diverse.

Since LPMs came to Miami in 2008, Sunbeam claims that WSVN has seen ratings decline to the point that it has lost $1 million a month. And the station's value has been reduced by $100 million.

Sunbeam is seeking damages to be determined at trial.

It says faulty ratings for WSVN's 10 p.m. newscast have cost it $6 million annually, while LPMs have brought troubling declines in "American Idol" numbers. The LPMs are an "an unmitigated disaster" that produce "defective, wildly inaccurate" ratings, Sunbeam says in court filings.

Nielsen says that LPMs offer improved ratings for certain demos. LPMs have been rolled out in 25 markets, but have received Media Rating Council accreditation in less than half.

Further, Sunbeam charges that Nielsen engages in monopolistic practices that prevent other measurement companies from entering the Miami market, which would not only provide more accurate ratings, but lower prices. Sunbeam says Nielsen raised its prices 20% in 2008 for WSVN.

In 2007, Sunbeam entered into a contract with Nielsen where it agreed to pay between $65,711 a month and $87,847 a month.

Nielsen has argued unsuccessfully that the case should be dismissed because Sunbeam has failed to show that would-be competitors to it are willing and able to enter Miami.

Nielsen also claims that Sunbeam effectively has a case of sour grapes -- that it wants it to use an "older, less accurate methodology" than LPMs because WSVN has suffered ratings declines.

Also in court papers, Nielsen refers to its ratings estimates as "opinions" that are protected by the First Amendment. It likens them to estimates that Moody's offers when it weighs in on a credit rating for a bond issue.

Sunbeam charges that LPMs generally produce lower ratings for broadcasters and higher numbers for cable channels. So Nielsen uses that to "lock in" contracts with cable providers, which can use those ratings to increase spot ad dollars.

Nielsen responded that Sunbeam makes general accusations there, and fails to cite specific examples.