Cumulus, Nielsen Trade Offers As Ratings Court Battle Continues.

Talks are underway between Cumulus Media and Nielsen over a new deal for Westwood One’s access to national radio ratings, even as their courtroom battle continues. Nielsen discloses in its latest court filing that Cumulus has countered its offer for standalone Nationwide ratings. At the same time, Nielsen is urging a federal appeals court to reject Cumulus’ emergency bid to clear the way for enforcement of an injunction against the ratings company.

In a filing with the U.S. Court of Appeals in New York, Nielsen says Cumulus rejected its proposed standalone Nationwide price and contract term on Friday and made a counteroffer with a different price and term. That came two weeks after Nielsen made its initial offer — and one day after Cumulus filed its emergency motion asking the appeals court to clarify that the stay of the preliminary injunction ended last month.

Nielsen argues the back-and-forth undermines Cumulus’ claim that emergency court intervention is needed as Westwood One approaches the expiration of its current Nationwide access. It tells the court there is no barrier to negotiations and the purported emergency “boils down to a disagreement over price and contract terms.”

Court documents provide no public details about the dollar amounts involved. Nielsen says only that Cumulus rejected both its proposed price and contract term and countered with a different price and term.

The negotiations are unfolding as the companies continue fighting over whether U.S. District Judge Jeannette Vargas can enforce the preliminary injunction she issued against Nielsen. It could impact any contract terms.

Cumulus went to the Second Circuit last week seeking an emergency clarification that the stay blocking enforcement of Vargas’ injunction ended July 13. That was when a three-judge appeals court panel affirmed the injunction and said its February order granting Nielsen a stay was “vacated.”

Nielsen says that is not enough and because it has petitioned for a rehearing, the appeals court has not yet issued its mandate formally concluding the appeal. Nielsen argues that means the July judgment — including the provision vacating the stay — has not taken effect.

“The appeal thus remains pending, and the stay remains effective,” Nielsen says. “No ‘clarification’ is necessary.”

Vargas reached a similar conclusion when she declined to rule on Cumulus’ request that she enforce the injunction. She said the appeals court’s judgment, including the vacatur of the stay, was “not final” and said she would wait for clarification from the Second Circuit.

That prompted Cumulus to file its emergency motion asking the appeals court to explicitly declare that the stay ended last month, which would allow it to return to Vargas and press its argument that Nielsen’s standalone Nationwide proposal does not comply with her injunction.

The order bars Nielsen from enforcing its policy tying access to its Nationwide ratings to purchases of local Nielsen ratings and prohibits it from charging a “commercially unreasonable rate” for Nationwide as a complete standalone product.

But Nielsen says Cumulus is trying to use the enforcement process to obtain more than the injunction actually provides. It also insists the injunction doesn’t require it to sell Nationwide to Cumulus, make an offer by a particular deadline, or provide Cumulus with its preferred contract terms.

The ratings company says the negotiations in recent days bolster its argument that the dispute can be resolved at the negotiating table rather than through emergency court intervention. If the court does issue a clarification, Nielsen says it should confirm the stay remains in effect until the appeals court process is complete.

Meantime, Cumulus has said Westwood One’s current access to the ratings expires in September.