Arbitron Sues LM For Unauthorized Ratings Use; Saga Fights Back Against Arbitron Suit

Litigation Report

ARBITRON has sued another broadcaster for alleged unauthorized use of its ratings, filing an action in U.S. District Court for the Eastern District of KENTUCKY over LM's alleged use of the ratings in CHARLESTON, SC without paying.  The suit names L.M. COMMUNICATIONS, INC. d/b/a L.M. COMMUNICATIONS BROADCAST MEDIA GROUP, L.M. COMMUNICATIONS, INC., L.M. COMMUNICATIONS OF SOUTH CAROLINA, INC. and L.M. COMMUNICATIONS II OF SOUTH CAROLINA, INC. as defendants.  LM subscribes to ARBITRON ratings in LEXINGTON, KY but not CHARLESTON, SC or CHARLESTON, WV, where the company owns radio clusters.

In the suit, ARBITRON alleges that from SPRING 2009 through at least MAY 2013, "LM illicitly obtained copies of the ARBITRON Reports, Databases, and Estimates for the
CHARLESTON, SOUTH CAROLINA radio market from various sources, including but not limited to one or more industry consultants."  ARBITRON additionally names LM President/CEO LYNN MARTIN and other management as "specifically request(ing), instruct(ing) others to obtain, and illicitly obtain(ing)" the ratings knowing that a license was required and using them for setting advertising rates and making programming decisions.

ARBITRON is looking for at least $150,000 per infringing act, $500,000 for requesting an ARBITRON licensee to obtain ratings for them, and $75,000 for unjust enrichment, plus interest, attorney's fees, and other costs.

Saga Challenges Arbitron's Copyright Of 'Facts'

Meanwhile, in ARBITRON's suit against SAGA COMMUNICATIONS, INC. and LAKEFRONT COMMUNICATIONS LLC for similar allegations of unauthorized ratings use, SAGA's answer, filed in U.S. District Court for DELAWARE, denying most of ARBITRON's allegations and hitting back with several affirmative defenses, including the claim that Plaintiff ARBITRON "does not own any copyright or other rights in facts, information, data, or numerical rankings, and Plaintiff cannot stop others from possessing, using, copying or distributing facts, information, data, or numerical rankings," adding that the claims are "barred by acquiescence, in that (ARBITRON) has allowed subscribers, licensees, and other third parties to use, copy, and distribute facts, information, data, or numerical rankings from its reports and estimates, and has not objected to such conduct."  SAGA also asserts a fair use defense and adds that it thinks ARBITRON is "guilty of copyright misuse" for violating the axiom of copyright law that "no author may copyright his ideas or the facts he narrates" enunciated in FEIST PUBLICATIONS v. RURAL TEL. SERV. CO. (1991).

SAGA calls ARBITRON's suits "an improper and illegitimate effort to maintain its near-monopoly on radio ratings, and to maintain the exorbitant prices it charges for its reports" and charges that ARBITRON is on "a campaign to intimidate and harass radio stations that have the temerity to cancel their subscriptions to ARBITRON reports."

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