XM hit with false advertising lawsuit over "commercial free" claims

Talk about a company that can't stay out of the courtroom. Yet again, we've got XM headed back for another round of sticky legal action, and while we highly doubt the firm's lawyers are done digesting the NMPA suit from less than a month ago, now it's being forced to deal with an Arkansas man's allegations in US District Court. Matthew Enderlin is apparently quite upset with XM's "false claims of commercial free music," as he adumbrates that the channels actually do include "promotional and advertisement segments." Unsurprisingly, XM has said the suit is "without merit," but Mr. Enderlin isn't backing down; au contraire, he's actually seeking to "have the suit certified as a class-action suit so all XM Radio customers can be considered plaintiffs." Bet you weren't expecting to join in on the fun yourself, eh?

[Via Orbitcast]

[erac3rx @ Apr 20th 2007 10:21AM]

I'm with this guy. I added XM to my car a little over a year ago and was extremely disappointed, in part because there is essentially only one channel per music type, but mainly because all of the spoken word (comedy, etc) channels have advertisements. I am not sure if they have added ads to the regular music channels, but nonetheless was very annoyed to learn that any of the channels with talking have ads. Rather than file a class action lawsuit, I just quit. But his point is definitely valid. They sold on the 'no ads' thing for quite some time but have been advertising on many of their channels all along. That's false advertising.

[Joey Geraci @ Apr 20th 2007 11:07AM]

There is most definitely not one channel of every music type. There are at least 5 or 6 channels of every music type, and it has been this way for at least 4 years.

And yes, the advertisements are disappointing, but you have to put it into context. There are no advertisements on the vast majority of music channels, and this will not change. The channels that they license from somebody else (like "America's Left", which is actually Air America) do have advertisements, because the content was already parsed with advertisements. Unfortunately, a few of the music channels, that they license from ClearChannel, do have some advertisements. Not very much, but they're there. The only reason this is so is because ClearChannel sued XM to force them to carry ClearChannel's advertisements, and XM lost. I have heard that as soon as the contract between ClearChannel and XM expires, they will drop the commercial music channels, but right now they don't have a choice.

Fortunately, at least 90% of the music channels are XM's content, and commercial free.

[beanspants @ Apr 20th 2007 10:41AM]

i remember ads on XM as well - because i went on a trip in a friend's car, and the ad's website or phone number and information would appear on the screen where the artist & song information would normally be on the nav system display. i thought that was pretty interesting, though i thought the XM service itself sucked. i think his suit has merit.

[Ryan @ Apr 20th 2007 10:41AM]

what gets me (besides the talk channel ads) is that the regular music channels advertise FOR OTHER CHANNELS. They seem to spend a lot of time advertising for their own stuff.

[Bart @ Jul 18th 2007 7:04PM]

You're right: Promotions for other XM channels are
commercials. It's not true, as one guy said, that "the
vast majority" of stations are commercial free. In fact, every station has some ads. If this guy's lawsuit goes
to class action, then I'm on the bandwagon.

But the most annoying thing for me is the DJs' self-promotion. I listen mostly to the (two) classical
stations, and there's one guy (Paul Bachman) in particular who spends an enormous amount of time
merely promoting himself. He states his name every 3
seconds and then babbles on with pointless trivia about
the piece he's threatening to play. Actually, NOT
about the piece he's going to play, but some other
pieces that his stream of consciousness stumbled
across while he was day-dreaming.

If I'm paying for a music service, I shouldn't have to
put up with ads or some self-absorbed fop trying to
impress me with his knowledge of the composers personal
life. "Shut up and play the music."

[mrailing @ Apr 20th 2007 10:48AM]

I have had XM Radio since almost day one. At first all stations had advertisements and then later they removed advertisements from the music channels. They have station breaks on the music channels with "identification and phone numbers to call XM", or talk of what's on the other XM channels, but I haven't heard any "Paid" advertisements on music channels in a long time. So whether you consider inhouse station identification, or inhouse announcements of what's on other channels "commercials" then it depends. It also depends on what XM defines as a commercial. It might be that they consider it "paid" commercials, which haven't been on in a long time.

@erac3rx

They didn't say "no ads", they said commercial free music. Big difference between music and talk channels, and even their channel lineups tell you which stations are commercial free, which is all the "music" channels. The talk channels are mostly repeats of broadcast shows elsewhere, and aren't always put on by XM directly, so they still do have commercials.

[nigel @ Apr 20th 2007 10:50AM]

I thought the point of satellite was "no commercials"?

[bennewton999 @ Apr 20th 2007 10:55AM]

This guy needs to get a life. Commercial Free Music. Yes there is a mention of other stations on there, but so what? This is why the price of every service we use will continue to skyrocket. You can't do anything in this country without getting sued. What a waste of the court's time.

[beanspants @ Apr 20th 2007 10:55AM]

no mrailing,
i was listening to the music channels (20 - 26) and they had commercials. not station breaks, not advertising for other in-house channels, commercials. for products.

[Tim @ Apr 20th 2007 10:55AM]

This suit is ridiculous.

There are 3 or 4 music channels that are not programmed by XM (Clear Channel?) that have commercial ads. The other music channels have cross-promotional type ads (which seems to me to be a good idea, since I have so many channels it is nice to hop over to one that I rarely listen to).

As for the talk channels; many of these are simulcasts of broadcast radio/TV. What are they supposed to do when ESPN Radio or CNN goes to commercial? Dead air?

[scum1 @ Apr 20th 2007 10:56AM]

I have refused to buy into the sat radio from the start knowing that one day it would become like cable tv. When cable first started out the were few commercials which was why you paid for it. Now 95% of cable channels are no different than over the air channels and show tons of commercials. The only commercial free channels cost extra! So you pay for tv then you have to still watch commercials. The Point is I have always expected sat radio to go the same way. Maybe not yet but someday they will. That is if they stay in business at all.

[Nick @ Apr 20th 2007 12:09PM]

Why do i want to pay for radio when i can get radio for free? And for people that say "but sat radio will play music that normal broadcast radio wont"... Thats why i have CD's and a DAP that connects to my car's system. The way i see it, the only reason to get XM is to listen to the uncensored disgusting antics of talk radio shock jocks.

[JBo @ Apr 20th 2007 11:05AM]

I like XM a lot, but I have to agree that they have engaged in some false advertising. Only the music channels, and not even all of them, are commercial-free. And now they've started included retarded DJ's on some. If I wanted to listen to some useless idiot babble, I'd watch Fox News. I consider any non-content time to be a commercial, DJ's are as non-content as you can get.

I'd be fine with some commercials, but on the talk channels the commercials seem endless.

[dicky @ Apr 20th 2007 11:25AM]

Ok.. first you have to realize there are 69 music commercial free music channels on XM. That is a lot of channels of music, I find it fine when one music channel plugs another. If they didn't the listener might not know that there is another channel out there that might suit there taste. For every hour of music, there might be maybe 45-60 seconds worth of either station identification (which the FCC mandates for all radio stations including satellite radio "sirius and XM")or plugging other channels or certain events that will be happening on the current channel that you are listening to. This is as opposed to terestrial radio where you can hear up to 15 to 20 minutes worth of commercials.

Also if all 170 channels of XM were commercial free then it would cost a lot more per month to subscribe to satellite radio. This idiot has to realize that everything has some type of self promoting ads. Look at HBO, Cinemax, and Showtime. You pay for commerical free service there but between movies it shows other things that you can see on those channels. Does that mean that we should sue HBO for having commercials on there channels too. Where does this madness start. This guy just saw a way to make some money and try covering his butt but making it a class action lawsuit.

By the way Sirius satellite radio has just as much self promoting on its "commerical free" music channels. Does that mean Sirius subscibers should ban together and sue Sirius too?

[Joey Geraci @ Apr 25th 2007 7:05AM]

Uhm, dicky, you do know that some music channels have genuine, real commercials, that is what I was responding to. Those are the ClearChannel stations. That is what I think is wrong.

[Armando @ Apr 20th 2007 11:14AM]

beanspants is right...channels 11, 21, 22, 24, 161, and 173 include actual product/service commercials. Just listen to channel 22 for more than ten minutes and you're bound to hear a bunch. I tune away from it all the time because of the commercials. "Commercial free music" my ass. Thumbs up to this guy for doing something about it.

[Marc Wenning @ Apr 20th 2007 11:28AM]

The only music channels that have commercials are the ones that clear channel owns, and XM does not advertise them to be commercial free. It shows on their channel list that they are not, and they are not even listed with the other music channels anymore becasue of that. This guy just needs to get a life, I have had XM since the beginning and love it would never go back to regular radio.

[Jason Martin @ Apr 20th 2007 11:33AM]

This is just plain stupid. XM has plenty of "commercial-free music channels". Yes, a few music channels which suck anyway and the talk stations do carry commercials, but the vast majority of music channels do not, including all of the good music channels. I'm an XM subscriber, and I love it. It's 100x better than 99% of the crap on terrestrial radio. This lawsuit is entirely baseless.

[Harrison @ Apr 20th 2007 11:45AM]

This is the silliest of lawsuits. XM music stations incorporate bumps, and they do cross-channel promotion. I am happy to find out that XM is going to cover Bonnaroo and Lollapalooza live, if they didn't tell me that on their music stations, I wouldn't have a way of finding out.

I have had XM for 2.5 years, and it has made regular radio unlistenable. I get less than 3 three minutes of cross promotion per hour with XM, compared to 20+ minutes of commericals on the dial. It's a no-brainer, and you'd have to have the thinnest of skins and no critical thinking skills to accuse XM of false advertising.

[John Gegier @ Apr 20th 2007 11:59AM]

Why are the article writers taking a side in this post? The word adumbrates means in essence that his claims are weak or unsubstantiated, sketchy. Anyway... I guess Engadget is a fanboy for XM.

[JBDragon @ Apr 21st 2007 12:51AM]

I have XM, not only because it's Commercial FREE on most ALL Music channels, but there's some great Talk channels I can tune into. Great Comedy Channels, Lots of stuff your not going to get or put on a IPOD. Being able to tune into Fox News or CNN on the Road is great. Can't do that on a IPOD. I also don't have to waste my time collecting Music and putting it on a IPOD. I don't have to pay the .99 cents a SONG from ITUNES. Or pirate, or Rip CD's. I can tune into different types of Music at any time. I can hear the Newest Music, to Old stuff I haven't heard in years, and None I would have on a IPOD because I didn't know or think about it. All I have to do is hit a button and I'm getting what I want right then and there. I have no need for a IPOD. You can get a nice XM Portable player that can also throw on some of your own MP3's if you want also and have the best of both worlds. I'm had XM now for many years and I can't stand Regular Radio. Every time I get in someone Else's car and try to tune into a station that has music I like, it seems like 90% of the time it's just Commercials. Short drive someplace, and all I hear is commercials until just about where need to be and get out and then some Music starts playing. I can't take it anymore. I also don't want a stinking IPOD or some other Music device like it. XM works great. Great Variety that your NOT going to get on Regular Radio or a IPOD. Go out to the lake where there's few Radio stations that come in, but there's XM with all my Favorites, anywhere, and everywhere I go in the US, Coast to Coast. Something not even HD Radio is able to do.

[Mick O @ Apr 20th 2007 12:17PM]

The borderline riduclous amount of "cross-promotion" was the channels is driven by marketers judged on "engagement" who probably have survey data that told them that all the people who didn't renew their free trials of XM in their new car didn't know about the channel selection. So they make it their job to create commercials for XM stations you already have.

I probably wouldn't find the "house ads" as annoying if it wasn't so easy to envision the small-minded thinking behind them

The sat companies are in a place where it's easier to monetize the audience they already have than go after more markets. The people who have satellite now are people who got it pre-installed, or travel a lot and who have few other options. It's a game of how much those users will withstand rather than he tougher task of convincing new users to sign up.

[erac3rx @ Apr 20th 2007 12:18PM]

I'll chime back in. I got XM a year ago, and quit not six months later. A big part of the reason I joined was the 'commercial free music'. It's good to see they've changed that to Most Commercial Free Music, but the point remains the same. They are selling their service in part by describing how they don't have any (or many) commercials, and once you get it you realize that it's anything but. There are basically commercials on everything except a set of the music channels-- a large set-- but those channels advertise for one another. I obviously don't think he will get far with this case, but his point is valid. There are people out there who signed up thinking 'no commercials' or 'no commercials on music stations' and are sorely disappointed to find that it's completely not true.

What I do find disappointing is that in general companies in all areas get such leniency in the claims they make in marketing. Oracle describing their servers as Unbreakable comes to mind... that's obviously completely false. While continuing to pretend for years that their G3 & G4 computers were fast compared to PCs, Apple offered benchmarks in all their marketing saying their hardware outperformed PCs by multiples, and that was continually proven false. Remember 'The Power to Save the World' campaign that ran with Independence Day? Please.

This type of stuff is very frustrating for consumers, and this case just proves that you can certainly get people thinking something with your marketing "hey no ads on music, that's cool" by saying something similar, and get away with it. It would be nice if companies were held somewhat accountable for false or intentionally misleading claims.

[Grant @ Apr 20th 2007 12:23PM]

i've always been intrigued by XM, but my current radio has only one advanced input port on the back foe either XM of an iPod, and since i already have an ipod, it seemed like the right choice. especially since a friend of mine has it, and i heard commercials almost as often as over the air. Good thing he pays for it to hear a dozen or 2 more stations. if i really feel an urge for the american top 40 i can just find it listed online somewhere and download it and add it into the circulation.

[PEZ @ Apr 20th 2007 12:49PM]

100% commercial free music. No advertizers. This is what they give you - period. NOW, if the DJ himself says.. dam nthis Tropicana Ogange juice is GooooooooD, then yo uhave a stick up your ass Mr Arkansas man. assface.

[XM User from Houston @ Apr 20th 2007 1:17PM]

I don't have an issue with the talk channels advertising since they are either for TV or regular broadcast and have advertisements anyways. Nor do I mind advertising for other channels occaionally. The thing I can't stand is how, NOW, a lot of the music stations like the MIX, KISS, comedy stations and others all have advertising (I don't need credit consolidation or Remote PC, OK!?!?). I've had XM for almost 3 years now and am thinking about quitting because of it. The advertising has only really cranked up in the last 6 months.

[Blair @ Apr 20th 2007 3:50PM]

People are so stupid. Doesn't he have better things to do than sue XM for such an asinine complaint? I mean come on, "commercial free" means no PAID advertisments. All XM music channels (with exception to the crappy clear channel channels) have NO paid ads, but have station identifiers, promotions for other channels, and some have DJs. If this ass doesn't like it, then tell him to stop paying for the fricken service. I've had XM for about 2 years now, and I find most of the promotional ads on Squizz (XM 48) hilarious and fun to listen to. What a jerkoff.

[sunz @ Apr 20th 2007 4:08PM]

I completely agree. this guy is right .. instead of sueing, I just cancelled as well. Maybe this will make them step up and deliver ..

-sun

[psikic @ Apr 20th 2007 4:13PM]

There are commercials, real commercials Definitely. Trying to listen to XM Comedy (150) and ever third segment is selling Viagra, how to start a business DVDs, or "Go To Meeting" service.

[Anthony @ Apr 20th 2007 5:03PM]

@Nick

I use satellite radio to DISCOVER new music that regular stations won't play.

Sure, I could go home and use last.fm or music forums to discover them on my own, but fact it, I spend a lot of time in my car and hearing new/fresh music is enough to keep me coming back each month.

In relations to this suit, when I first got sat radio, I thought that by commercial free, they meant no ads whatsoever. This wasn't the case however, and I am ok with it. Music channels rarely have any advertisements and with talk radio, it's expected.

[t-bone @ Apr 20th 2007 6:09PM]

Let me get this straight. XM advertised "Commercial-free Music". Correct? XM offers music channels that are commercial-free. Correct?

If you just said "No", those "commercials" are just advertisements for the other channels and not paid for by a third party, thus they aren't commercials but advertisements. Correct?

It appears to me that this guy got exactly what he asked for but wasn't happy with it. The moral of the story: be careful what you wish for, you just might get it.

[ajadoniz @ Apr 21st 2007 8:58AM]

he's from Arkansas, 'nuff said.

[jesse @ Apr 21st 2007 1:32PM]

http://www.xmlies.com/ XM is a company built on a foundation of lies - it has tons of advertising - I feel sorry for the people who pay $150 a year, every year to listen to advertisements, and very long ads at that, for crap they don't want and music they don't really like - buy an ipod.

[paul couture @ Apr 21st 2007 8:03PM]

Ok, first off, yes, they settled a court case with Clear Channel who simulcasts on XM 20-26. CC wanted XM to play CC commerical advertisements on the simulcasts, XM fought, lost and now plays commercials on 20-26, but they also added 6 more commercial free music channels in response that each cater to the same genre as the CC channels. XM also changed their advertising tag line at that point to "The most commercial free music."

As for the spoken word stations, it seems that no one who complains about breaks on them has ever worked behind a mic at a radio station. While I personally feel that the Comedy stations should be like the music stations "commercial free" - talk radio can never be that way. Here is why:

If you are hosting a talk show you have to take a moment every once in a while to regroup your thoughts, catch your breath, get ready for the next segment, have a sip of coffee, go piss, etc. No one could be successful at live talk radio broadcasting without commercial breaks unless they were doing 20 minute shows.

When you think about hot topic covering talk radio, you also have to have time off the mic to discuss with the producers where the show is going, what new info has rolled in, etc. The commercial breaks are there for the host to have that opportunity.

As for the brief commercials on the music channels, they are there for a reason too, and there is a reason they normally last for 10-20 seconds, they are there to round off the time so that shows remain in hour block format - this is so new shows/hosts can start on the top of the hour for scheduling etc. Do you realize how hard it is to find a song that is exactly 3 minutes and 12 seconds long to top off the hour that also fits musically with the songs preceding it? That is why you have liners and sweepers to prevent that kind of scramble at the top of every hour.

[bobjr94 @ Apr 21st 2007 11:02PM]

Thats because they say "commercial free music" , they dont come right out and say and 100 channels with commercials. They should tell people that up front.

But then there are no contracts, you are free to cancel whenever you want.

[Folksongsrule @ Apr 23rd 2007 7:02PM]

I agree. I listen to XM music through AOL Radio. It used to be commercial free and then they started slipping in commercials for eggs. Then, eHarmony (my absolute least favorite site). I wrote them an email saying that I pay monthly fees for AOL which advertises you get commerical free music. You don't. I would definitely join in a class action lawsuit if I had the chance.

[Rictor Gadget @ Apr 23rd 2007 11:37PM]

Add my name among those who think this is a bogus law suit. First, commercials and promotional announcements are two very separate things. Ever watch HBO, Disney, or PBS? They spend time on their airways promoting other programs on their networks. XM does the exact same thing. Second, they do their listeners a service by letting you know that a special of some interest to the stations key demographic is going to air on another station. This is not done to make money, but to improve brand loyalty and educate their customers on the full value being received as an XM subscriber. Third, as soon as Clear Channel made the "bitch" move by adding commercials to their programed stations, XM immediately changed their tune from "100% commercial free music" to "most commercial free music stations on satellite radio," a claim that is in fact true. Third, many of their talk station consist of syndicated terrestrial talk show hosts. This make sense, since talk radio is personality driven, and people recognize the talkers they hear on AM. During these programs, there are commercial breaks, and it is only proper for XM to fill those breaks with advertisements. Despite this, a significant portion of these breaks is filled with cross-channel promotion and public interest pieces. Finally, if this individual was dissatisfied with his product, he could have returned his equipment to his local retailer and canceled his subscription. I am sure XM would be willing to settle for the $12.95 he paid for his first months subscription.

[pfunker @ Jul 6th 2007 12:36PM]

I subscribed to commercial free music, and that's what I get (and there is 1 (one) channel per style of music, not 4 or 5 as joey geraci states [why not be specific if you're so sure of yourself?]). However, I pay for commercial free radio, as it is advertised. I get 3 or 4 commercials for every hour of XM-produced talk radio, and the same commercials are played during breaks from third-party talk shows. I would join the lawsuit in a heart beat.

[Sean C. @ Jul 10th 2007 8:09PM]

First of all, there are absolutely stations with real commercials, there's 5 of them, all programmed by ClearChannel Comm. Secondly, the music is grouped into category by station groups. 10-17 is country, 20-30 is pop and hits, 31-34 is religious, 39-54 is rock, so on and so forth. Here's the whole list for you, underneath there is a section titled "symbols" which mentions those commercially programmed stations..
http://en.wikipedia.org/wiki/List_of_XM_Satellite_Radio_channels