Company moves for dismissal of suit.
While lawyers may simply be employing a frequently used legal tactic, Entercom Communications appears to be pushing back against a suit filed by New York’s attorney general.
According to a Wall Street Journal report, Entercom has moved for dismissal of the suit recently filed by Spitzer against the company for fraud and deceptive business practices. While it’s the first move by a radio company to resist Spitzer's attack on programming practices, filing a motion to dismiss is a customary procedure in such cases.
The company's current motion to dismiss claims the attorney general acted improperly in basing his suit on New York's consumer-protection laws. Entercom's lawyers say the attorney general must prove that consumers were harmed as a result of material deception and that because radio is free, there can be no harm. But Spitzer contends that payments for airplay can ultimately affect where songs rank on monitored charts, which in turn influences consumer buying decisions.
In its motion, Entercom also cited New York law stating that compliance with federal law is a "complete defense" against the state consumer-protection laws. Entercom says it complied fully with federal law in disclosing when it accepted payment for airplay.
"We've made our arguments about how consumers are affected by this conduct," a spokeswoman for Spitzer told the Journal. "We'll let the court decide this case on its merits." A spokesman for Entercom declined to comment on the motion.
At the time of Spitzer’s filing in early March, Entercom said it was confident that a court would "fully and fairly" resolve the claims of payola leveled against the radio group by Spitzer’s office.
While Warner Music Group settled with Spitzer's office for $5 million and Sony BMG did the same for $10 million, it’s believed that Spitzer wants $20 million from Entercom, on the basis that its profits have been growing over the past few years.
— additional reporting by Susan Butler in New York