Lawyers for Bubba “The Love Sponge” Clem have filed sensational conspiracy allegations against Nielsen in the measurement giant’s ratings tampering suit against the Tampa-based morning man. The counterclaim comes after a Florida court granted Clem’s motion to lodge the claims alleging Nielsen and Cox Media Group conspired in a “sting operation” to entrap the host into engaging in ratings distortion.
Much of Nielsen’s $1 million lawsuit against the controversial personality revolves around a “cooperating panelist” Nielsen identifies as Nicholas Tabachuk. Nielsen claims Clem encouraged Tabachuk to “manipulate” his PPM and those of other members in his household to boost his ratings. But now Clem’s lawyers can make the case that Nielsen and Cox hatched a scheme to entrap Clem, using ratings distortion evidence from the sting to punish Beasley Media Group, owner of Clem’s then-flagship station, with the goal of forcing the broadcaster to end its contract with Clem.
The gist of Clem’s case is this: Nielsen selected Tabachuk and three other members of his household as panelists with the express goal of using the “cooperating panelist” to obtain evidence against Clem. Tabachuk had “a well-known relationship with Clem and the ‘Bubba the Love Sponge Show,’” according to the counterclaim. The ratings distortion evidence was obtained by a third party, acting on behalf of Cox and Mike Calta, morning man at Cox talker “102.5 The Bone” WHPT. This third party “developed a relationship of trust with Tabachuk” and convinced him to obtain evidence against Clem and give it to Calta and Cox. This was in the summer of 2015 when Clem’s morning show on Beasley’s WBRN Tampa competed directly with Calta and Cox.
Cox, in turn, allegedly informed Nielsen that Tabachuk told them Clem was involved in ratings distortion activity. After Nielsen sat with Tabachuk at a meeting arranged by agents of Cox, Cox encouraged Tabachuk to continue to play along with Clem “as it would be good for Nielsen to pin this on Clem and bring him down,” Clem’s counterclaim states. Cox is not a party to the case.
From there, the story is familiar to many in the industry. Nielsen sent Beasley a notice of ratings distortion and took the unusual action of delisting WBRN from the Sept. 2015 ratings. A month later it sued Clem in U.S. District Court in Tampa. But Cox supposedly wasn’t satisfied that Beasley hadn’t canceled Clem’s show and asked Nielsen why it only delisted WBRN for one month. Nielsen subsequently delisted WBRN from the Oct. 2015 ratings, based on what Nielsen called “further evidence of panel-tampering attempts” by Clem. This was allegedly done to “punish Beasley” for not yanking Bubba’s show, something it didn’t do until one year later.
The counterclaim suggests Nielsen took other insidious actions in its efforts to get Beasley to cancel Bubba’s show, such as removing, “without sufficient cause,” panelists who were known listeners to the program, causing WBRN to lose about half of its 25-54 share. Nielsen allegedly looked the other way with Bubba’s competitors, allowing two panelists with heavy listening to WHPT to stay in the Tampa panel after discovering their conduct was similar to those WBRN listeners who were de-installed. Nielsen also supposedly gave preferential treatment to Cox by not taking any action against it and Calta after discovering Cox violated the terms of its contract with Nielsen and Nielsen’s ratings distortion and bias guidelines by failing to report that Nielsen panelists had contacted Cox employees directly.
Clem’s lawyers also turn the tables on Nielsen, accusing the ratings provider of acts of unreported internal fraud. The counterclaim makes the outlandish allegation that Nielsen employees, including in Tampa, were improperly installed as panelists, which Nielsen concealed, and failed to reprocess or reissue the affected monthly ratings reports. Among other eye-popping charges: Nielsen discovered around June 2015 that its reps fraudulently recruited and installed a “significant number” of households ineligible to serve as PPM panelists but never removed the “improperly included data” or reprocessed and reissued its Tampa ratings. In addition, lawyers for Clem assert that Nielsen discovered that “hundreds” of PPMs had been misassigned, causing listening data to be improperly attributed, compromising the integrity of the ratings. Nielsen concealed this misconduct, per the counterclaim.
The filing goes as far as suggesting that Cox wielded its clout as a big Nielsen client to demand that it implement a “Death Penalty” level sanction against “alleged wrongdoers.” If not, Cox threatened to sue Nielsen, seek an audit of Nielsen’s compliance with the Media Rating Council’s ethical standards and pursue a Congressional inquiry into Nielsen’s PPM data collection adequacy. This supposedly caused Nielsen to put additional pressure on Beasley to sever ties with the personality and to suppress ratings for all of Beasley’s Tampa stations.
As for damages, the counterclaim argues that Clem and his Bubba Radio Network have been unable to sign any additional syndication agreements with any U.S.-based FM stations. They “incurred substantial damages as a result of the conspiracy between Nielsen and Cox,” the counterclaim states, including lost income, lost ad revenue and lost relationships with advertisers and syndication partners.
Nielsen has denied the allegations. “These latest claims are entirely without merit and Nielsen intends to vigorously defend against them,” a company spokesperson told Inside Radio.
In granting the leave, Judge James Whittemore says the defendants had “good cause” for failing to meet the deadline to amend their case due to a slow discovery process, the “voluminous” amount of documents produced by Nielsen and Nielsen’s confidentiality demands. What’s more, Clem’s counterclaim didn’t “fully mature” until Beasley ended its contract with the host last December.
Nielsen has 20 days after the court’s March 21 order to file a response.
The ratings giant earlier this month asked the court to dismiss the counterclaim calling it “far-fetched and unsupported” and arguing that Clem’s “eleventh-hour” motion came 15 months after the case began.