Cumulus Bets Against Supreme Court Review In Nielsen Case.

The Supreme Court denies roughly 99% of all petitions asking it review lower court decision, and Cumulus Media is playing those odds in its ongoing legal battle with Nielsen. The radio group is choosing not to challenge Nielsen’s bid for Supreme Court review, at least for now, even as two outside groups are urging the justices to take up the radio ratings antitrust case. Both groups argue that the appeals court ruling against Nielsen could have consequences far beyond broadcasting, potentially putting bundled discounts used by businesses across the economy under greater legal scrutiny.

On Monday (Oct. 19), Cumulus formally waived its right to respond to Nielsen’s petition unless the Supreme Court requests one. The decision doesn’t mean Cumulus is conceding Nielsen’s arguments or abandoning its antitrust case. The justices can consider Nielsen’s petition without a response, request one from Cumulus, or decline to hear the case altogether.

Nielsen is asking the Supreme Court to review the Second Circuit’s July ruling upholding a preliminary injunction that blocked its policy tying access to complete Nationwide radio ratings to the purchase of local ratings. Cumulus challenged the policy after seeking to continue buying Nielsen’s national ratings for Westwood One while using rival Eastlan for local ratings in some markets.

The appeals court upheld the injunction, including restrictions on Nielsen charging commercially unreasonable prices for Nationwide as a standalone product. Nielsen subsequently lost a request for rehearing and turned to the Supreme Court.

Outside Groups Back Nielsen

While Cumulus has opted against responding for now, two outside groups are urging the Supreme Court to take the case, arguing that the implications of the Second Circuit’s ruling extend far beyond the radio ratings business.

The Washington Legal Foundation, a nonprofit legal advocacy organization, argues the appeals court improperly treated Nielsen’s discounted package of national and local ratings as an unlawful arrangement even though customers had the option of purchasing Nationwide ratings separately.

“This isn’t a tying case,” the organization argues in its brief. It says the distinction matters because offering customers a discount for buying multiple products is fundamentally different from requiring them to purchase products they don’t want.

The organization warns that the Second Circuit’s approach could put commonplace bundled discounts at risk of antitrust challenges across industries. It urges the Supreme Court to establish clearer limits on when such pricing practices can be considered anticompetitive.

A separate brief from a group of antitrust law and economics scholars makes a similar argument, focusing on the difficulty of determining when a standalone price becomes unlawfully high compared with a discounted package. The group, represented by the International Center for Law & Economics, argues the Second Circuit has effectively given federal judges the responsibility of regulating prices without establishing a clear economic standard for doing so.

They point to the appeals court’s finding that Cumulus would have paid $1.2 million more to purchase Nielsen’s Nationwide ratings separately and obtain local ratings from Eastlan than it would have paid for Nielsen’s bundled offering. The scholars contend that the difference shows which option was cheaper, but doesn’t establish whether Nielsen’s pricing unlawfully excluded competitors.

“A price gap alone cannot supply the missing distinction,” the brief says. The group also warns that businesses concerned about similar lawsuits could respond by reducing or eliminating package discounts. It points to bundled pricing across streaming services, software, e-commerce and artificial intelligence as examples of how broadly the Second Circuit’s reasoning could potentially apply.

The scholars also cite the continuing pricing dispute as evidence of the ruling’s problems. Judge Jeannette Vargas rejected Nielsen’s standalone rates and threatened $50,000 in daily penalties, an order now stayed pending appeal. They warn the ruling could leave courts indefinitely supervising business prices without clear standards.

Both amicus briefs ask the Supreme Court to take Nielsen’s case, although neither changes the injunction or the pending enforcement appeal. For now, the justices haven’t decided whether to hear Nielsen’s challenge.