Appeals Court Rejects Nielsen Rehearing Bid In Cumulus Case.

Nielsen has lost its bid to persuade the U.S. Court of Appeals for the Second Circuit to reconsider its ruling in the closely watched antitrust fight with Cumulus Media, potentially clearing a major procedural hurdle as the two companies negotiate over Westwood One’s continued access to national radio ratings.

In a one-page order, the Second Circuit denied Nielsen’s petition seeking either a rehearing by the three-judge panel that decided the appeal or, alternatively, a rehearing by the full court. The court offered no explanation for its decision in the brief order.

The denial leaves intact the Second Circuit’s July ruling affirming a preliminary injunction won by Cumulus in its antitrust lawsuit against Nielsen. The injunction bars Nielsen from enforcing its policy tying access to its Nationwide ratings product to purchases of its local ratings services. It also prevents Nielsen from charging a “commercially unreasonable” rate for Nationwide as a complete standalone product.

Nielsen had asked the Second Circuit to reconsider that decision, arguing the three-judge panel created a sweeping new antitrust standard. Nielsen argued the decision could have implications far beyond radio by potentially exposing companies to antitrust liability when a court determines the standalone price of a product is too high.

The latest ruling means neither the original panel nor the full Second Circuit agreed to give Nielsen another hearing. The order doesn’t address the merits of Nielsen’s arguments beyond denying the petition. The decision also comes at a critical point in the separate fight over when the preliminary injunction can be enforced.

Cumulus went back to the Second Circuit last week with an emergency motion seeking clarification that an earlier stay of the injunction ended July 13, when the appeals court affirmed the lower court ruling and said the stay was “vacated.”

That request followed a decision by District Judge Jeannette Vargas to hold off on Cumulus’ effort to enforce the injunction. Vargas said she would wait for the Second Circuit to clarify whether the stay remained in place because Nielsen’s rehearing petition was still pending and the appeals court had not yet issued its mandate formally concluding the appeal.

Nielsen opposed Cumulus’ emergency request. It argued that because the appeal remained pending, the stay remains effective. The Second Circuit has now eliminated that argument by denying rehearing. But the order is silent about Cumulus’ separate emergency motion concerning the stay.

The procedural fight is unfolding in court alongside negotiations between Cumulus and Nielsen over a potential new Nationwide ratings deal. Court filings reveal the two companies have been negotiating on an agreement in recent days, although they remain at a standoff over the proposed price and term. Nielsen has used those negotiations to argue that Cumulus doesn’t face the emergency it claims. It told the appeals court that negotiations show the disagreement “boils down to a disagreement over price and contract terms.”

Cumulus, however, has argued that Nielsen’s initial standalone offer doesn’t satisfy the preliminary injunction. Cumulus has asked the court to determine whether the proposed price and terms comply with the order that prohibits the ratings company from charging a “commercially unreasonable rate” for Nationwide ratings as a complete standalone product.

The timing is increasingly important for Cumulus. The broadcaster has said Westwood One’s existing access to Nationwide ratings expires in September, while the company is negotiating with national advertisers that rely on the ratings data.

While the appeals court denial means Nielsen has exhausted its rehearing requests within the Second Circuit. The order doesn’t address whether Nielsen plans to pursue any further appeals.