The closely watched antitrust dispute between Cumulus Media and Nielsen has taken another turn.
A federal appeals court on Monday sided with U.S. District Court Judge Jeannette Vargas’s decision in December, in which she granted Cumulus a preliminary injunction against the ratings company.
The broadcaster is suing Nielsen, alleging that it operates a monopoly by forcing broadcasters to buy local ratings data in order to receive national ratings. It filed that in October, saying the policy violated antitrust laws.
Nielsen filed a countersuit in federal court accusing Cumulus of breaching its contract by secretly leaking proprietary radio ratings data to rival firm Eastlan Ratings.
The latest ruling leaves in place the district court’s block of Nielsen’s Network Policy, and the case will be sent back to district court to decide ultimate liability, if any.
Details
In the 55-page order, the Second Circuit said the lower court had been justified in deciding that Nielsen’s policy to tie national and local ratings caused Cumulus irreparable harm.
“The district court did not abuse its discretion when it concluded that Nielsen’s new policy was an unlawful tie, because Nielsen exploited its monopoly in the national radio data market in order to force customers like Cumulus to purchase its local data products,” it stated.
As related in the court documents, Nielsen used to offer its national and local data products separately, but in 2024 it adopted a policy barring national broadcasters like Cumulus from purchasing a functional version of its national report unless they also purchased all relevant local data products as well.
The appeals court this week said, “Nielsen’s conduct caused anticompetitive effects in the relevant local data markets, that Cumulus would suffer irreparable harm as a result of the new policy.”
Nielsen collects audience listening statistics in more than 270 geographic areas. It then compiles that local information into a national ratings report known as the Nationwide Report.
Cumulus, which operates 395 radio stations in 84 markets and has thousands of affiliates to its Westwood One Network, says that both national and local data are essential for broadcasters.
Cumulus says it informed Nielsen that it wished to purchase only its local data in certain markets, not the full suite of local markets that it had purchased previously. Cumulus had planned to use Eastlan Ratings in 76 local markets but claims Nielsens tying policy impedes that.
However, according to the court, Nielsen’s new Network Policy prohibits broadcast networks that operate “a local station in a Nielsen-measured market” and do not “subscribe” to Nielsen’s local ratings data in that market from purchasing Nielsen’s Nationwide product with the inclusion of data for that specific market.
For example, if a national broadcasting network also operates local stations in 30 markets and purchases only Nielsen’s Nationwide product — not Nielsen’s local data — Nielsen will omit data for those 30 local markets from the Nationwide offering.
Nielsen says it adopted the policy in order to stop national broadcast customers from sharing Nationwide data with their local affiliates for free, making decisions for those affiliates based on information in Nationwide, or extracting the relevant local data from Nationwide without paying for it, according to court documents.
As negotiations between the companies stalled in 2025, according to the documents, Cumulus threatened a lawsuit. On the heels of that, Nielsen offered Cumulus a standalone price for the national product but at a rate 10 times what Cumulus had been paying, according to the earlier lower court ruling.
The district court at the time determined that Nielsen’s single standalone offer “was priced so exorbitantly that this offer was the effective equivalent” of its formally tied offers and thus constituted a “constructive tie.”
“We hold as a matter of law that constructive tying — the pricing of two products that has the effect of conditioning the sale of one product on the other — can in some cases violate Section 2 of the Sherman Act,” it wrote.
In its conclusion, the appeals court noted that the appeal had raised a number of “complicated and novel issues.”
The court affirmed the district court’s finding of a “strong likelihood of irreparable harm in the form of loss of customers, good will and market share,” but it did conclude that the lower court had erred in finding two other forms of irreparable harm.
“First, we do not agree with the district court that mere ‘[t]hreatened economic harm to consumers is plainly sufficient to authorize injunctive relief’ …Second, we disagree with the district court that ‘a reduction in competition due to an antitrust injury also constitutes irreparable harm.”
Cumulus currently is in a Chapter 11 reorganization to eliminate a large amount of debt. It has received approval for its plan from bankruptcy court but has not yet received the necessary OK from the FCC for the related transfers of station licenses.
[Related: “Cumulus Hopes to Conclude Chapter 11 by Early Fall”]
