Nielsen Wins Short-Term Relief In Cumulus Media Antitrust Case.

The U.S. Court of Appeals for the Second Circuit has given Nielsen a temporary administrative stay to a lower court ruling that had blocked the ratings company from linking national and local market ratings. The appeals court’s stay will be in effect while a three-judge panel considers a more permanent stay to the district court ruling. It is unclear how soon that decision may arrive. The appellate court’s decision effectively keeps in place an administrative pause that had already been put in place by District Judge Jeannette Vargas.

Nielsen filed its intention to appeal a decision last month by Vargas. In it, she sided with Cumulus Media in its pending antitrust suit against Nielsen, and issued a preliminary injunction that bars Nielsen from enforcing its Network Policy and from “charging a commercially unreasonable rate” for its Nationwide Report as a complete, standalone product. In an order made public on Jan. 12, she concluded the broadcaster demonstrated irreparable harm and a strong likelihood of success on its claims that Nielsen unlawfully used monopoly power to tie national and local radio ratings products.

Nielsen maintains its policies and practices are “legally compliant,” and has vowed to fight to keep them in place. The company says the preliminary injunction order should be frozen pending a thorough review by the Second Circuit, warning that it interferes with the company’s pricing discretion, and distorts ongoing negotiations. Nielsen also suggested that it would “suffer irreparable harm” if the injunction were allowed to remain in place while also arguing Vargas’ decision failed to adequately detail what is off-limits.

Nielsen had asked Vargas to voluntarily put a stay to her ruling while it moved forward with the appeals court challenge. But she rejected that request. Vargas said in her decision that she thinks the ratings company is unlikely to convince the Second Circuit of its arguments and said tying the sale of national ratings to the purchase of local market data should remain off-limits.

It has been three months since Cumulus Media filed an antitrust lawsuit filed in October. The broadcast group 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 Media calls it a “textbook abuse of monopoly power” that harms competition by preventing radio stations from freely choosing the local radio ratings data providers they want.

Cumulus Media cites internal Nielsen documents stating that the company earns most of its audio ratings revenue from local ratings. Cumulus Media also recounts that after it raised objections, Nielsen offered to sell the national product alone. But according to the filing, Cumulus Media says the proposed rate was so extreme that it left no practical choice but to buy all of Nielsen’s local data.

But Nielsen has defended its practices, telling the court that Cumulus Media 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 has said in its filings that it believes the radio group simply wants the court to override a proposed three-year agreement with a “bespoke package” at a lower rate. “Cumulus simply does not want to pay what Nielsen is charging,” it said.