Judge Grants Cumulus Partial Victory In Antitrust Case Against Nielsen.

Cumulus Media has won a partial court victory over how it can proceed with its antitrust lawsuit against Nielsen. A motion by the broadcaster to fast-track the discovery process in the case has been granted in part and denied in part by a federal judge.

Lawyers for Nielsen and Cumulus huddled for a conference with U.S. District Judge Jeannette Vargas on Wednesday, Oct 29. That’s where Cumulus learned of the court’s decision to grant part of its motion for an expedited discovery. Cumulus had asked the court to fast-track discovery, arguing it needs evidence before year’s end to prevent “irreparable harm” to its Westwood One network business. The nation’s third-largest radio station owner is seeking to secure internal Nielsen communications to show how its alleged “tying policy” restricts competition.

At the conference, procedures for resolving the motion by Cumulus for a preliminary injunction against Nielsen were also discussed. The judge set a Dec. 8 hearing to discuss the matter at the U.S. Courthouse in lower Manhattan. The court has not yet decided whether an evidentiary hearing will be required.

Lawyers for both parties will be busy during the next few weeks meeting deadlines set by Judge Vargas. To prepare for the Dec. 8 hearing, they must submit a briefing with documentary evidence supporting or opposing the Cumulus motion for a preliminary injunction. The briefings are due by Nov. 24. Judge Vargas says they must include “declarations constituting the direct testimony of each witness the party would intend to call at an evidentiary hearing, including expert witnesses but excluding non-party witnesses.” To call a non-party witness to the hearing, the party must submit a separate letter listing the witnesses and a brief summary of their testimony.

Response briefs from Cumulus and Nielsen are due Dec. 1. In these documents, the court wants the parties to address whether there’s a need for an evidentiary hearing, and specifically witness testimony, on the motion for a preliminary injunction. In addition, both parties must attend a status conference via Microsoft Teams on Nov. 17.

The lawsuit filed last month by Cumulus asked the court to block Nielsen from implementing a tying policy that conditions access to national radio ratings data on the purchase of separate local radio ratings data. Cumulus claims Nielsen would exclude from the national radio ratings data purchased by a national network any geographies where the shared-ownership local radio stations do not purchase Nielsen’s local radio ratings data. Cumulus calls it a “textbook abuse of monopoly power” that harms competition.

Cumulus has stopped buying local radio ratings for numerous diary markets, according to a source, including all markets measured twice a year and some continuously measured diary markets.

The suit claims Nielsen conditioned access to national broadcast radio analytics on the purchase of separate local ratings, a move Cumulus says violates federal and state antitrust laws.

In its response to the suit, Nielsen argues Cumulus isn’t fighting a monopoly, but rather waging a “lawfare” campaign by using antitrust claims as a weapon to win better pricing in what the ratings giant insists is nothing more than a contract dispute. Nielsen, which was acquired by a private equity consortium in 2022 and has extensive legal resources, says the broadcaster is weaponizing litigation to force more favorable contract terms rather than resolving what it calls a standard business negotiation.