Nielsen has formally asked the U.S. Supreme Court to review a federal appeals court decision that upheld an antitrust preliminary injunction in its high-stakes ratings battle with Cumulus Media.
The ratings company is asking the nation’s top court for a writ of certiorari and a review of the Second Circuit’s decision earlier this year affirming an injunction against Nielsen over how it prices its nationwide radio ratings service.
The company surveys radio audiences in local markets and sells the resulting data in two forms: local market reports and a national report that aggregates the local data into a single national dataset.
Cumulus sued in October 2025, taking issue with Nielsen’s 2024 Network Policy requiring broadcasters wanting national data, including Cumulus’ Westwood One network, in order to purchase local ratings.
Constructive tie
Nielsen wrote in its petition, submitted Sept. 15, that it offered its radio ratings products to Cumulus both bundled at a discount and on a standalone basis. Those prices, it said, no one contends were below cost.
As Radio World reported, the Second Circuit in July said the standalone offer was likely an unlawful “constructive tie” under the Sherman Act and affirmed the lower court’s injunction.
According to previous court documents, a constructive tie is deemed when the pricing of two products that has the effect of conditioning the sale of one product on the other.
Nielsen said the appeals court reasoned that was because the price was so “exorbitant” that Cumulus had “no choice” but to take the bundle. The court concurred with the lower court decision barring Nielsen from charging a “commercially unreasonable rate.”
However, Nielsen is now asking the U.S. Supreme Court to determine if the Second Circuit’s decision to deny the appeal of the district court’s injunction is at odds with previous circuit court rulings, which require proof that a price is the economic equivalent of selling products and data below cost before finding any liability, according to the petition.
“That decision deepens a circuit conflict two decades in the making,” Nielsen wrote in its petition. “The caselaw has since developed into a clear circuit divide.”
Nielsen said it in its Supreme Court petition that bundled discounts are a staple of price competition throughout the economy, and no multiproduct seller can now be sure which of its discounts a court will call coercion.
“The decision also turns courts into rate regulators in all but name,” Nielsen said.
Nielsen said the Second Circuit decision places all of those practices under a cloud. It argues that the ruling spreads beyond the radio industry.
“Every genuine bundled discount creates a spread between the package price and the components’ standalone prices, yet the panel articulated no objective rule for when that spread becomes steep enough to be coercive,” Nielsen wrote in it SCOTUS petition.
The petition does not mean the Supreme Court will hear Nielsen’s case. The certiorari petition only begins a review process in which justices decide whether to grant the petition and then consider the merits of the challenge.
Separate injunction
The ratings fight has taken several turns with Cumulus and Nielsen each claiming victory at various stages. U.S. District Court Judge Jeannette Vargas first granted a preliminary injunction against the ratings company, blocking the policy and prohibiting Nielsen from charging an unreasonable rate for the nationwide data.
The Second Circuit upheld that injunction in deciding that Nielsen’s policy to tie national and local ratings caused Cumulus irreparable harm.
However, after Nielsen then offered Cumulus a new standalone nationwide offer, Judge Vargas found it to be “commercially unreasonable” and in violation of her order. The fight over how she is enforcing the court injunction continues with briefs due later this month.
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