Appeals Court Clears Path For Next Round Of Cumulus-Nielsen Fight.

The procedural logjam holding up Cumulus Media’s effort to enforce its ratings injunction against Nielsen is set to break Monday, with a federal appeals court saying the mandate will be issued on Tuesday (Aug. 25), potentially sending the fight over the price of Nationwide ratings back to the district court.

That follows a decision by the U.S. Court of Appeals for the Second Circuit last week that denied Cumulus’ emergency motion seeking immediate clarification that an earlier stay of the preliminary injunction had already been lifted. But rather than resolve that disputed question, the court said there is little reason to do so now because the mandate formally concluding the appeal is set to be released.

Cumulus also said the appeals court had acted quickly enough “to allow the District Court’s preliminary injunction to take effect before Cumulus loses access to Nationwide in September.”

The Second Circuit instead denied the emergency motion Thursday, while making clear that its mandate will arrive Monday.

The court didn’t decide which side was correct in the dispute over whether the stay technically ended July 13 or remains in effect until the mandate issues. But that distinction should soon become largely academic.

The order by the three-judge panel gives Cumulus and Nielsen a firm date for resolving a procedural dispute that has temporarily overshadowed the larger question of how much Cumulus will pay Nielsen for continued access to national radio ratings.

The companies have been fighting over whether the preliminary injunction issued in January by U.S. District Judge Jeannette Vargas is currently enforceable. The injunction bars Nielsen from enforcing its policy tying access to its complete Nationwide ratings product to purchases of its local ratings services. It also prohibits Nielsen from charging a “commercially unreasonable” rate for Nationwide as a complete standalone product.

Once the appeals court’s mandate is issued, attention can shift back to the unresolved fight before Vargas over whether Nielsen’s standalone Nationwide proposal complies with her injunction.

Nielsen made Cumulus an offer for standalone Nationwide in July. Cumulus subsequently argued the proposed price and contract terms did not satisfy the injunction and asked Vargas to intervene.

The companies are also negotiating directly. Nielsen disclosed in an earlier filing that Cumulus rejected its proposed price and contract term offered earlier this month and instead made a counteroffer with a different price and term. Neither side has publicly disclosed the dollar amounts involved.

That means there are now two potential paths toward resolving the immediate ratings dispute. The companies could reach a deal themselves, or Cumulus could return to Vargas after the mandate and renew its effort to have her enforce the injunction. Cumulus is leaving that door open according to filings made last week.

There remains another time factor. Cumulus has said Westwood One’s current access to Nationwide ratings expires in September.