Nielsen-Cumulus Antitrust Battle Lands On Supreme Court Calendar.

The Supreme Court has set a date to consider whether to take up Nielsen’s antitrust battle with Cumulus Media, putting the radio ratings dispute on the justices’ calendar for a conference next month among the nine justices. The case centers on a lower court ruling that blocked Nielsen from requiring broadcasters to purchase its local radio ratings to gain access to its complete national ratings service.

The court’s docket now lists Nielsen’s petition as “distributed for conference” on Nov. 13, when the justices are scheduled to consider whether the case warrants Supreme Court review. The scheduling doesn’t mean the court has agreed to hear the appeal. The justices could accept the case, reject Nielsen’s petition or defer a decision. A decision could be announced as early as the following week, although the court could also take longer.

How We Got Here

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 which bars Nielsen from conditioning access to complete Nationwide ratings on the purchase of its local ratings services. It also prohibits the company from charging commercially unreasonable prices for Nationwide ratings sold separately. Nielsen subsequently lost a request for rehearing and turned to the Supreme Court.

Nielsen argues that the appeals court improperly treated its discounted package of national and local ratings as an unlawful arrangement, even though broadcasters could purchase the national ratings separately. The company maintains that the ruling could have broader implications for any business beyond radio that offer discounts when customers purchase multiple products together.

Cumulus Declines To Respond

The scheduling follows a legal gamble played by Cumulus earlier this month when it waived its right to respond to Nielsen’s Supreme Court petition unless the justices explicitly request one in order to make a decision on whether to hear the case or not. That decision doesn’t mean Cumulus is conceding Nielsen’s arguments or abandoning its antitrust case. Instead, it is more like playing the odds that the justices will opt not to hear the case since the Supreme Court denies roughly 99% of all petitions asking it review lower court decision.

Nielsen has also attracted support from two outside groups urging the Supreme Court to review the ruling. The Washington Legal Foundation argues that the Second Circuit’s decision could expose ordinary bundled discounts to antitrust challenges across industries. A separate group of antitrust law and economics scholars, represented by the International Center for Law & Economics, contends that the ruling leaves federal judges supervising business prices without clear economic standards.

The scholars point to the continuing dispute over Nielsen’s compliance with the preliminary injunction. District Judge Jeannette Vargas rejected Nielsen’s proposed standalone Nationwide pricing as commercially unreasonable and ordered a revised offer under threat of $50,000 in daily penalties. Nielsen appealed that enforcement order separately, and the Second Circuit has stayed it while that appeal proceeds. For now, the injunction remains in place as the Supreme Court considers whether to hear Nielsen’s case.