Nielsen Says Cumulus Lacks Basis To Enforce Ratings Injunction.

Nielsen is telling a federal judge that Cumulus Media’s latest effort to enforce a court injunction has already been overtaken by events, saying it has now provided the broadcaster with a standalone offer for its Nationwide ratings product and that there is nothing left for the court to order. In a response filed in federal court in New York, Nielsen asks District Judge Jeannette Vargas to deny Cumulus’ motion to enforce her preliminary injunction, arguing the request became moot when Nielsen transmitted its offer earlier to the radio group.

“Cumulus’s motion should therefore be considered moot,” Nielsen writes. The company says an offer was made for standalone Nationwide at a “commercially reasonable rate” to Cumulus for its Westwood One network business. Nielsen doesn’t share what that price tag is, however.

The filing is the latest development in the legal battle between the two companies over Nielsen’s ratings business. The U.S. Court of Appeals for the Second Circuit last month upheld Vargas’ preliminary injunction barring Nielsen from requiring broadcasters to purchase local ratings services to access its national “Nationwide” ratings product.

In response, Cumulus returned to district court, accusing Nielsen of dragging its feet rather than complying with the injunction. The broadcaster asked Vargas to order Nielsen to provide a binding standalone offer within two business days.

Nielsen says that request is now unnecessary. According to its filing, the ratings company had been working since the Second Circuit’s July 13 ruling to develop a standalone Nationwide proposal that complied with the injunction. Nielsen says Cumulus knew that work was underway because Nielsen repeatedly advised an offer would be made once its business analysis was complete. That offer was eventually transmitted on July 31.

Nielsen argues Cumulus is attempting to turn the court into the supervisor of ordinary business negotiations. Calling the enforcement motion “an unnecessary gambit,” Nielsen says Cumulus is attempting to “install this Court as referee over every aspect of what should be a commercial negotiation — down to who must make an offer and by what date.”

Beyond arguing the motion is moot, Nielsen contends Cumulus cannot identify any provision of the injunction the company actually violated. Nielsen says the January order prohibits only two things — enforcing its Network Policy and charging a “commercially unreasonable rate” for a standalone Nationwide report. Nielsen was not required to make an offer by a specific deadline or dictate how negotiations must proceed.

Nielsen also pushes back on Cumulus’ claims that the situation demanded immediate judicial intervention, revealing that Cumulus continues to have access to Nationwide data under its existing contract until Sept. 10. Nielsen also argues the broadcaster’s July 27 deadline was “arbitrary” and accuses Cumulus of manufacturing an emergency where none existed.

“What Cumulus casts as an emergency is a continuation of its negotiating tactic since the start of this case: spinning up doomsday scenarios to convince this Court to act urgently,” Nielsen writes. The filing also alleges Cumulus “sat silent and made no outreach to Nielsen for more than five months” before suddenly claiming an urgent need for court intervention.

The filing comes as Nielsen is simultaneously asking the full Second Circuit to rehear the appeals court’s recent decision affirming the preliminary injunction. Nielsen argues the appellate ruling created a new antitrust standard with implications far beyond the radio ratings industry. The appeals court hasn’t yet decided whether it will rehear the case in front of a full Second Circuit panel of judges. But on Monday, it issued an order to permit the companies to continue redacting specific price information from their public filings.