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Arbitron, Inc. v. Tralyn Broadcasting, Inc.
Citation:400 F.3dd 130 (2005), aff'd without published opinion following remand, 328 Fed. Appx. 755 (2009)
Plaintiff licenses its copyrighted listener data to regional radio stations, which then use the data to attract advertisers. In 1997, Plaintiff entered into a Station License Agreement with Defendant to receive and use the listener data. The License charged Defendant $1,729.57 per month for the use of the reports for a single station. Additionally, the License Agreement contained an “escalation clause” that stated if Defendant or its successor acquired additional radio stations in the same or nearby markets, a new license fee would be charged. Upon acquiring the new stations, Defendant was to notify Plaintiff so that Plaintiff could determine a new fee. According to the escalation clause, any new fee would be set at Plaintiff’s discretion.
In October 1999, Defendant was purchased by JMD, which controlled four other stations in the area. Neither JMD nor Defendant informed Plaintiff that JMD operated five stations. In June 2000, Plaintiff discovered that JMD operated multiple stations and sent JMD an invoice notifying it of a payment increase and claimed payment of the shortfall in fees from the time of JMD’s purchase of Defendant in October 1999. However, JMD never paid the invoices and refused to pay anything.
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