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Judge Keeps ‘The Dumb Zone’ Podcast Alive For Now In Setback For Cumulus.

A U.S. District Court Judge has denied an emergency application for temporary restraining order (TRO) filed by Cumulus Media that seeks to derail a podcast hosted by the former midday personalities at sports “The Ticket” KTCK-AM/FM Dallas (1310/96.7).

As first reported by Inside Radio on Aug. 8, Cumulus sued Dan McDowell and Jake Kemp, who anchored The Hang Zone for three years, claiming they violated their non-compete, non-solicitation, and non- disparagement clauses by launching “an identical” podcast to their former radio show at KTCK and hijacking their former radio show’s social media accounts.

In filing the emergency application, Cumulus sought to stop the hosts from violating their agreements with the company and to end their threatened and actual misappropriation of confidential, trade secret information, and interfering with Cumulus’s business activities.

In an order denying the request, U.S. District Judge Karen Gren Scholer wrote that Cumulus failed to show “that immediate and irreparable injury, loss, or damage will result” from the hosts continuing to anchor The Dumb Zone podcast, thus not meeting one of the requirements under the Federal Rule of Civil Procedure. The judge also says the emergency application filed by Cumulus failed to certify efforts Cumulus made in writing to notify the defendants about its request for a TRO.

Cumulus quickly followed up with a renewed emergency application, showing that it has, in fact, notified the defendants of its application via email and overnight delivery.

Meanwhile, attorneys for McDowell and Kemp have responded to the Cumulus suit, arguing that that nation’s third largest radio group employed them strictly as terrestrial radio hosts and that their new podcast venture “does not compete with plaintiff.” According to the response filed Thursday, Aug. 10, McDowell and Kemp’s words and actions “have complied with the restrictive covenants of their employment contracts” even though “almost all of those covenants are illegal restrictions” on their rights under National Labor Relations Act. The Cumulus suit “contains a great number of false statements and misleading characterization” of the hosts words and actions, the McDowell and Kemp response claims.

“Defendants are not competing with Plaintiff, have not disparaged Plaintiff, have not solicited Plaintiff’s advertisers or its employees, and have breached no duties, contractual or otherwise, to Plaintiff,” the response states. “The lawsuit is made up from whole cloth and motivated by a desire to retaliate against Defendants for engaging in protected activities.”

It also argues that all of Cumulus’s claims are “addressable in monetary damages and not irreparable.” And it maintains that the allegations Cumulus made in the lawsuit “are wildly out of line with the facts and circumstances” of McDowell and Kemp’s “unsuccessful contract negotiations and ultimate resignations.

Cumulus maintains “The Dumb Zone” podcast launched by McDowell and Kemp three weeks after they left KTCK is “a carbon copy” of “The Hang Zone,” which they hosted on the station for years.

Filed by Cumulus subsidiary Susquehanna on Friday, Aug. 4 in U.S. District Court in Dallas, the suit seeks “to halt and prevent Defendants’ continuous, flagrant breaches of contract and misappropriation of [Cumulus’] intellectual property rights.”

McDowell and Kemp, who had been with The Ticket since 1999 and 2006 respectively, resigned July 14 after more than three years in the noon-to-3pm slot. Each of the hosts had a six-month non-compete clause in their contract with Cumulus, along with confidentiality and non-solicitation provisions.

According to the complaint, the two hosts began recording “an identical” podcast called “The Dumb Zone” covering Dallas-area sports and targeting a male audience, once they knew they were parting ways with the station. Within days of splitting with “The Ticket,” McDowell and Kemp posted the podcast on Patreon, charging listeners $6.90 per month to listen.

The 25-page suit also accuses the co-hosts of hijacking and rebranding The Hang Zone’s social media accounts, which it says are owned by Cumulus subsidiary Susquehanna.

“By starting The Dumb Zone while still employed by Susquehanna and operating The Dumb Zone immediately after the termination of their employment from Susquehanna, Defendants are in violation of the non-compete, non-solicitation, and non- disparagement provisions of their respective Agreements,” the suit says. “Moreover, Defendants are actively misappropriating The Ticket’s social media platforms to cause confusion and re-direct The Ticket’s fans and listeners to The Dumb Zone and are violating their fiduciary duties to Susquehanna while infringing upon its intellectual property. In their most recent affront, Defendants have begun soliciting Susquehanna’s sponsors and customers to advertise on The Dumb Zone in patent and willful violation of their agreements.”

‘Independent Media Pursuits’ Hung-Up Renewal Talks

It wasn’t money that caused contract renewal negotiations between the two parties to break down. McDowell and Kemp and Cumulus had agreed to compensation terms. The hang-up was the hosts wanting the right to chase their “independent media pursuits” while continuing to work for the company. Specifically, they wanted to launch their own independent podcast. But since it has its own podcast division, Cumulus vetoed that idea because it would directly compete with them. It instead offered the pair a podcast they could host separate from The Hang Zone on the Cumulus Podcast Network “with possible revenue sharing opportunities.” McDowell and Kemp passed and made plans to leave the company and pursue their independent podcast ambitions, according to court papers.

The suit alleges two counts of breach of contract, and one count each of conversion, breach of fiduciary duty, and violation of the Lanham Act. It also seeks reimbursement for attorney’s fees.

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