The U.S. Supreme Court has asked Cumulus Media to respond to Nielsen’s petition seeking review of a federal appeals court ruling that restricts how the audience measurement company sells national and local radio ratings.
This week, the court gave Cumulus until early Decemebr to submit its response, weeks after the radio broadcaster waived its right to participate in the proceedings unless the court specifically requested additional arguments.
The request does not mean the Supreme Court has agreed to hear the case, but it allows the justices to consider arguments from both companies before deciding whether to review the dispute.
The request is part of a broader lawsuit filed by Cumulus that challenges the way Nielsen sells its radio measurement data to broadcasters. Ordinarily, broadcasters are required to purchase localized data from Nielsen if they also want access to robust national data, Cumulus alleged; the radio broadcaster wanted to continue buying measurement data from Nielsen for its Westwood One program syndication business while using competing products for its local radio stations in most markets.
A federal district court issued a preliminary injunction preventing Nielsen from conditioning access to its complete national ratings on purchases of local ratings. The order also prohibits Nielsen from charging commercially unreasonable prices for Nationwide ratings purchased separately.
The U.S. Court of Appeals for the Second Circuit upheld the injunction in July. Nielsen subsequently sought reconsideration, which was denied, before petitioning the Supreme Court.
The lawsuit was briefly put on hold while Cumulus worked through a separate, unrelated bankruptcy case. The bankruptcy case was resolved in October, clearing the way for the lawsuit to continue.
Nielsen argues that the appeals court improperly characterized its discounted national and local ratings package as an unlawful arrangement despite offering customers the option of purchasing Nationwide ratings separately. The company contends that the decision could expose common bundled pricing practices to antitrust challenges beyond the radio industry.
Two outside groups have supported Nielsen’s request for Supreme Court review: The Washington Legal Foundation argues that the ruling could undermine bundled discounts used across numerous industries. Separately, a group of antitrust scholars represented by the International Center for Law & Economics have challenged the economic reasoning behind the injunction.
The scholars contend that evidence showing Cumulus would have paid $1.2 million more to purchase Nielsen’s national ratings separately while obtaining local ratings from Eastlan does not establish that Nielsen unlawfully excluded competitors.
Meanwhile, a separate dispute continues over Nielsen’s compliance with the injunction: As reported by Inside Radio this week, U.S. District Judge Jeannette Vargas previously rejected Nielsen’s proposed standalone Nationwide pricing as commercially unreasonable and ordered the company to submit revised terms under the threat of $50,000 in daily penalties.
Nielsen appealed that enforcement order, which the Second Circuit has stayed while the appeal proceeds. The original preliminary injunction remains in effect.
