Corpus Christi will get its November book, minus numbers for KZTV(TV), after Texas District Court Judge Rose Vela last week lifted a temporary restraining order on release of the ratings information. That decision came after a four-day court hearing. The book was sent out Friday morning.
In lifting the order, Vela said that there would be "no irreparable harm" to KZTV from releasing the book without its ratings and that the station had breached its contract with Nielsen.
Nielsen had excluded KZTV's ratings from the November book after the CBS affiliate ran news and sports promos featuring a reproduction of a diary. An infraction of the rules, Nielsen said. After repeatedly warning the station to quit, Nielsen delisted KZTV.
With the book scheduled to go out early last week, Brian Brady, president of parent Eagle Creek Broadcasting filed a breach-of-contract suit against the ratings company and secured the restraining order.
KZTV's competitors weren't happy with the promo or the delay in release and made those points in testimony on behalf of Nielsen. Dick Drilling, general manager of KIII(TV) Corpus Christi, testified that he was the one who had initially notified Nielsen about the promo and sent the ratings firm a tape.
KZTV argued that it had done nothing wrong and was trying to compensate for problems with Nielsen diarykeeping.
Others scoffed. "If you've been in the business for any length of time at all, you know you don't do this kind of thing," said KRIS-TV General Sales manager Roger Brandt, who testified at the hearing.
At KZTV lawyers' request, the witnesses were not allowed to hear each other's testimony. In fact, said Brandt, the lawyers asked that media coverage of the trial not include audio. The judge said no, noting that the hearing was all about the media.
There was a certain irony to his next instruction, given that the case turns on news promos. "I will tell the witnesses not to watch their news tonight," he said.
Brady was disappointed in the ruling. "We lost, but I proved my point that 10 minutes and 43 seconds [of promo] did not taint the data. They are a research company, and they couldn't prove that it did. We will survive this," he said. He has not decided whether to continue to fight in court.
Nielsen has decided to go ahead with its own suit for breach of contract and trademark infringement against Eagle Broadcasting filed in federal court.
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.
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