Cumulus Says Nielsen’s Ratings Offer Fails Court-Ordered Test.

Cumulus Media says Nielsen may have finally put a standalone Nationwide ratings offer on the table, but that does not end their latest court fight. The broadcaster is telling a federal judge the price and terms Nielsen proposed still fail to comply with the preliminary injunction governing how Nielsen can sell its national radio ratings product.

The latest back-and-forth between the two companies means the two sides are now essentially fighting over what constitutes compliance. Nielsen maintains that it has made a commercially reasonable standalone offer and that Cumulus should negotiate from there. Cumulus says merely making an offer is not enough if the price and terms themselves violate the injunction.

“Nielsen’s offer does not comply with the court’s preliminary injunction order,” Cumulus tells U.S. District Judge Jeannette Vargas. It alleges that rather than following the court’s guidance for establishing a presumptively reasonable price, Nielsen offered a Nationwide rate “untethered to any known commercial price for Nationwide.” The company wants Vargas to enforce the injunction that includes a commercially reasonable standalone price — not simply an offer at any price.

The dispute follows the Second Circuit’s decision last month affirming Vargas’ preliminary injunction in the antitrust case Cumulus filed against Nielsen. The injunction bars Nielsen from enforcing its policy that tied access to its Nationwide ratings to purchases of its local ratings products, and from charging a “commercially unreasonable rate” for Nationwide as a complete standalone product.

After Cumulus complained Nielsen had failed to make an offer following the appeals court ruling, Nielsen disclosed that it had delivered one. Nielsen then urged Vargas to reject Cumulus’ enforcement motion as moot, arguing it had offered a national rate at what it called a commercially reasonable rate.

Cumulus now says the offer doesn’t resolve the underlying problem.

The public version of its latest filing redacts the specific price Nielsen proposed and several details Cumulus uses to compare it with other Nielsen deals. But Cumulus says it sought additional information from Nielsen about how the price was calculated and why the ratings company considers it commercially reasonable. According to Cumulus, Nielsen’s response only reinforced its contention that the proposal falls short of the injunction.

Cumulus points Vargas back to the benchmark established when she issued the injunction in January which called for using 2026 rates Nielsen actually charges other broadcasters for Nationwide. Cumulus concludes that “there is no basis to conclude that the proposed price is commercially reasonable, nor is Nielsen entitled to the presumption of reasonableness established by the Court’s injunction.”

The broadcaster is also challenging the length of the agreement Nielsen proposed. The exact term is redacted in the public filing, but Cumulus calls it “far from industry standard” and argues it does not match the needs of national advertisers, which it says routinely negotiate longer-term agreements with broadcasters such as Westwood One. Cumulus also says it is unaware of Nielsen previously offering such a term.

Cumulus argues the practical result would be to leave the fundamental dispute unresolved. The radio group says Nielsen’s proposal “ensures that, absent this Court’s intervention, Cumulus will be right back at Nielsen’s negotiating table on Nielsen’s anticompetitive terms, on no better footing than it stood before the injunction issued.”

The filing also addresses a procedural question raised by Vargas, who questioned whether she continues to have jurisdiction to enforce the injunction while Nielsen pursues further appellate review. Cumulus argues she does. It says district courts retain authority to enforce injunctions during an appeal so long as those orders have not been stayed. In this case, it notes the Second Circuit has lifted the stay that temporarily prevented Vargas’ injunction from taking effect.

Nielsen’s pending petition asking the full Second Circuit to rehear the case does not change that, Cumulus argues.

Cumulus also renews its argument that time is becoming increasingly important. Court documents have shown the company continues to have access to Nationwide data under its existing contract until Sept. 10.