Lawyers for Bubba The Love Sponge (Todd Clem) have received the go-ahead to file sensational conspiracy allegations against Nielsen in the measurement giant’s ratings tampering suit against the Tampa-based morning man. A Florida court granted Clem’s motion to lodge a counterclaim 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.
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.
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.