Duel Over Delisting

Stung by Nielsen's delisting of his KZTV(TV) Corpus Christi, Texas, from the November ratings book, Eagle Creek Broadcasting President Brian Brady is threatening legal action. "This isn't a fight I want, but they've backed us into a corner. We have no choice but to fight.

"CBS just came off its greatest rating book in years," he says. "Clearly, it's going to affect sales. If the numbers aren't there, it makes it difficult to buy us."

Nielsen Media Research dropped KZTV from the book, alleging that its Nielsen-themed sweeps promos violated Nielsen rules. The book is due out Dec. 16.

It is only the only the second time the ratings company has dropped a station.

Brady says he is renegotiating his Nielsen contract and is balking at what he calls a hefty price increase. He claims the delisting is an attempt to gain leverage in the negotiation.

Nielsen's Jack Loftus says that the research firm has been encouraged by clients to crack down harder on sweeps stunting and that, as far as he knows, this is the first time a station has simulated a ratings-book cover. "We felt it was especially egregious, which is why we delisted it."

The move had "nothing to do with" a new contract, Loftus says, but was instead about enforcing the old contract and its explicit prohibitions against the promotion. Nielsen lawyers are now involved, he adds.

The dispute stems from a series of 4-second and 10-second spots that aired at the beginning of the November sweeps and featured a graphic of the station news team and sports programming inside a TV set, accompanied by the type "Nielsen Ratings" in the top right corner and "TV Viewing Diary" in the bottom left. The audio on the spot said: "Thanks for making your choice, KZTV CBS 10, coverage you can count on." Brady concedes that the graphic in the promos did look like a rating book, but he doesn't believe the total of 10 minutes and 43 seconds they ran was enough to affect the numbers, as Nielsen asserts.

Loftus points out that Nielsen expressly prohibits any attempt by a station to directly woo Nielsen households. Brady counters that, since the promo was on only the station's air, it could influence only those households already watching his station and then only to correctly identify it.

In addition, he claims that the station stopped airing the promo Nov. 6 after station General Manager Dale Remy was told by Nielsen on Nov. 3 that it had problems with it. Remy ran it by the legal department, Brady says, and informed Nielsen that it would stop running the spot.

"They contacted the station. The station asked for information. The station took it off," Brady says, "on a timetable expressly approved by Nielsen." He adds, though, that, due to a "snafu," the spot kept running through midnight of that day.

Nielsen's Karen Gyimesi says the company received information that the station had continued running the promo after it was asked to stop, but she would not comment further. It wasn't clear whether the information regarding additional airing was referring to the Nov. 6 snafu or something else. Brady contends that the information came from a competing station: " [Nielsen] never did any independent verification as to whether the station continued to run it."

Loftus will not comment, beyond reiterating that "they used a promo featuring our logo and our diary."

Brady says he would have understood getting an asterisk in the book. Nielsen makes numerous such notations for stations that try to boost ratings through contests and other promotions. "I think [an asterisk] would have been fair. Clearly, it has been their practice in the past that, if there is a problem, they make note of that in the book."

The only other station to have been delisted, according to Gyimesi, was Tribune Broadcasting's KSWB-TV San Diego, which was dropped from the November 2000 book. It had sent a direct mailing to homes in San Diego with a promotional videotape that said, "Attention Nielsen Homes, please watch KSWB-TV. Diary homes please write down KSWB-TV in your Nielsen diary," plus some promos saying, "Attention Nielsen families, please write down KSWB-TV."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.