Shortly after publishing Verizon Sues Time Warner Cable for False Advertising, I was contacted by Thomas Ciesielka of TCPR, who relayed me some interesting thoughts on the matter from one of his clients:

“Burden is very heavy on false advertising claimants.  They [Verizon] need[s] to prove not only that the claim was false but then have to provide survey data (an expensive proposition) showing that consumers were actually confused and that it affected their buying decisions.  I would say that it is unlikely that this is a serious lawsuit and more a public relations gambit.  Unless the advertising is clearly false and highly damaging to Verizon's business such that it would not be able to obtain satisfactory money damages the prospects of a preliminary injunction or TRO are unlikely.”

This quote comes to me from Stewart Weltman of the Weltman Law Firm, who runs the Lean and Mean Litigation Blog and has extensive experience in business litigation matters, including cases of antitrust, accounting and legal malpractice, fraud, and patent issues, among other things.

Mr. Weltman’s quote made me think about Verizon’s suit, specifically on whether or not Time Warner’s spots were sufficiently misleading: it’s important to keep in mind that Time Warner never makes any actual statements of fact, and in fact its advertising message – that Verizon FiOS requires satellite service for TV, and that Time Warner predates Verizon in fiber optics usage – is delivered through a series of clever insinuations.

Take notice, for example, to the fact that the homeowner asks if he needs satellite service for FiOS TV, rather than the salesman admitting it in a statement. Afterwards, the salesman is silent – his expression and manner changes to one of defeat and he quickly leaves the scene. Put yourself in the shoe of average Joe Consumer: given the manner of the two actors’ interactions, would you find yourself convinced of Time Warner’s insinuated claims?

I certainly would have. In fact, had I not had a background and upbringing in telecommunications, and had I not researched the specifics of FiOS long before the aforementioned article, then I would have been convinced as a technology geek – let alone as an average consumer. If my own sense of empathy is as reliable as I like to think that it is, then it would seem clear that Verizon would have no trouble meeting this high burden of proof.

Further complicating Verizon’s case is the fact that the things that Time Warner says are, in some interpretations, somewhat true: as I stated in the original article, Verizon’s fiber optic network runs “to the curb” – i.e. your home – whereas the technology is only used in Time Warner’s backend, as it is with pretty much every telecom in existence; Time Warner’s spot leaves this little bit of information out. Additionally, Verizon does indeed partner with DirecTV – but only in a handful of markets, like Manhattan, where it cannot otherwise provide TV service due to legal, regulatory, or technical hurdles.

After speaking with Mr. Weltman, however, it’s clear to me that Verizon’s case isn’t so cut and dry: simply insinuating claims that may be false isn’t enough, he says. The Lanham Act, which Verizon chose to file the case under, “creates a very heavy burden on false advertising claimants.”

Verizon would have to prove that a “measurable portion” of viewers would have interpreted Time Warner’s ad as misleading, requiring “expensive survey studies, all of which will, of course, be countered by Time Warner’s competing surveys.”

If Verizon can convince the fact finders that Time Warner’s statements are literally false – statements that are complicated by the fact that some areas do indeed require satellite service for TV – then the case proceeds, says Weltman, down an endless spiral of costs and studies: once Verizon’s proved Time Warner’s falsehoods, it then has to prove that the statements indeed confused consumers specifically about FiOS – all without the service not being mentioned in the ad itself. “Granted, the ad goes right to the edge, but even when one reads Verizon's explication of how this ad is deceptive it requires too many steps to arrive at the conclusion that the ad must be referring to FiOS.  In short, it is just too elaborate.”

To summarize: unless Verizon is prepared for a lengthy, costly legal battle, it’s likely that we’ll see this lawsuit settle quickly with a handful of corrective ads run by one or both parties. Therefore, it’s likely that Verizon filed the suit as a PR stunt to grab headlines and attention, as opposed to receiving any kind of equitable remedy.

“If I had to choose a winner here, I would say it would be Time Warner,” says Weltman. “If Verizon is smart, it will launch corrective ads that make it clear that FiOS does not require a dish.” Of course, such an ad would “eat away” at Verizon’s argument – but on the flipside it could bring the quick end that Verizon might be looking for.