In November 2004, talk radio host Tom Martino picked up the phone on his consumer-advice show. Unhappy Washington state resident Melissa Feroglia was calling to complain about a jet ski she had purchased in Boring, Oregon at John and Susan Gardner’s Mount Hood Polaris. Unfortunately for the Gardners, Martino’s show was nationally syndicated.
Feroglia told Martino that her jet ski had broken down again and again. According to Feroglia, John Gardner had first promised to refund her money, but had then said that her ski jet was fixed and there would be no refund. Feroglia concluded her woes by telling Martino that at that point the weather was too cold. She would have to wait until spring to try out her jet ski.
Martino, in the flip and annoying way of many talk show hosts who could not be bothered with the facts, then told Feroglia that Gardner was lying to her. Martino and Martino’s producer continued the saga by telling us of a cycle we are all far too familiar with: Calling the shop, being told to contact the manufacturer, contacting the manufacturer, and being told to call the shop again. We don’t know if their tale was true or not.
We do know that Martino said, “Polaris sucks.” The situation further spiraled out of control as Martino encouraged his listeners to contact Mount Hood Polaris and the manufacturer and tell them that they would never again buy any Polaris products.
John and Susan Gardner sued after their phone lines were flooded and they were threatened. The Gardner’s lawsuit stated that people driving by the store for several weeks shouted insults and the store lost approximately $600,000 in business. A judge dismissed their suit and in April a federal appeals court upheld the dismissal. According to the federal appeals court, this was basically not slander because reasonable talk show listeners do not expect facts on talk shows like Martino’s, just opinions. Without facts, there cannot be slander.
In the eyes of the law, any damage to the Gardners’ business and reputation was due to Martino’s opinion, not to any false fact or facts. Given that this damage could not have been caused by reasonable talk show listeners, the Gardners have no recourse. No law protects businesses from talk show hosts who urge unreasonable talk show listeners to damage the business.
Tom Martino has more critics than just the Gardners. His critics are concerned by the “Troubleshooter Referral List,” a list of businesses that Martino endorses. A business can join Martino’s list by paying a $3,000 fee and agreeing to a code of ethics. This code includes agreeing to let Martino decide disputes with consumers and follow his decisions. Martino also personally endorses business products and services on the air for payment. Critics question Tom Martino’s being a creditable consumer advocate due to the very substantial fees he earns from his endorsements.
Martino apparently enjoys both sides of the street. He appears to profit as an entertainer masquerading as a consumer advocate. He also appears to profit as a businessperson selling endorsements that appear to make him a pseudo consumer advocate. Unfortunately, his audience does not appear to notice that he is a pseudo consumer advocate. He is not the real thing.
Perhaps some day we will have a law that holds talk radio hosts liable for inflaming audiences that can reasonably be expected to cause damage. Until then, businesses savaged by Tom Martino will continue to occur damages, both justified and unjustified. In the final analysis, we have no idea if the Gardners were fine upstanding business people or not. We don’t know anything about their business practices. We can definitely state that it would have required some very bad business practices for $600,000.00 in damages to have been a fair penalty. We can conclude two things from this: We need laws to handle situations like this and we need to watch out for Tom Martino and other talk show hosts like him.