Brunson Communications, Inc. v. Arbitron, Inc.

266 F.Supp.2d 377 (E.D.Pa. 2003)

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Nature of the Case

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Facts

P is the owner of Channel 48, WGTW-TV, a small non-network television station serving the Philadelphia area. D is in the business of developing and operating measurement systems to monitor radio listeners and television viewers, to serve various industries, including the advertising industry. D developed a new technology for measuring television viewership, known as the personal people meter ('PPM'). PPM technology operates by embedding an inaudible signal in the transmitter of the various stations. It then places a receiving device on the person of individuals to detect and record when they are watching television sets tuned to only those stations whose signals which have been embedded by D. D claimed that its PPM test, would 'accurately and creditably measure the performance of the entire market.' P claims, this statement was 'false and malicious,' in that D did not intend to include WGTW in the test. In order to measure a particular station's viewership, D would have to install certain equipment at that station. P alleges D did not possess enough equipment to measure all stations in the Philadelphia market. D chose to omit P's station from the PPM survey, despite the fact that WGTW's actual viewership is significant. P claims that D's motive was to obtain the benefits of working with the larger networks, P's competitors, who have most of the outlets in the markets. D knowingly gave preferential treatment to P's competitors and knowingly and excluded P. D released periodic PPM survey data to advertising agencies, advertisers, television stations and other media sources, representing that the data were complete and accurate. P claims D impaired WGTW's ability to be competitive in the market for sales of advertising time, in that advertising agencies would be unable to confirm from the survey that WGTW had a measurable viewership. Even if advertisers had recognized that WGTW was omitted from the PPM test data, such omission by D 'de-facto reduced WGTW's standing in the eyes of the persons and companies it must solicit to buy the station's product, i.e., viewership watching time.' D acknowledged to P that the data were flawed and could cause harm to WGTW, in that it 'could not give a full picture of the market.' D refused to correct the defect by reconstructing the PPM survey to include WGTW, prior to releasing the data. A PPM signal was eventually embedded in WGTW's transmitter, in April 2002. P claims substantial pecuniary losses. P sued D for violation of the Sherman Act antitrust violations, unfair competition under the Lanham Act, disparagement of commercial products, tortious interference with prospective contractual relations, negligence, and promissory estoppel. D moved for dismissal. P filed an amended complaint. D then filed a Motion to Dismiss the Amended Complaint, for failure to state a claim upon which relief could be granted. The court granted the motion, dismissed five of the claims with prejudice, and dismissed the disparagement and negligence claims without prejudice to P's right to file a Second Amended Complaint. The court denied reconsideration and P filed a Second Amended Complaint asserting claims for disparagement of commercial products and negligence. D filed a motion to dismiss. P responded and filed a motion for leave to amend. D then filed a Reply Memorandum as well as a Memorandum in Opposition to the Motion for Leave to Amend. Those matters are before the court.