Nielsen Wins Temporary Reprieve In Cumulus Ratings Fight.

Nielsen has won a temporary reprieve from a federal judge’s order requiring it to make Cumulus Media a new offer for Nationwide ratings, with the Second Circuit putting the order — and its daily penalties for noncompliance — on hold while it considers Nielsen’s latest appeal.

The U.S. Court of Appeals for the Second Circuit granted Nielsen an emergency administrative stay last week, one day after U.S. District Judge Jeannette Vargas issued an order escalating the long-running ratings dispute.

The stay is temporary, however. The appeals court has not yet decided whether Nielsen is entitled to a stay for the duration of its appeal, nor has it ruled on Nielsen’s argument that Vargas went too far in enforcing the preliminary injunction she issued last December. Instead, the administrative stay preserves the status quo while the Second Circuit considers Nielsen’s emergency request.

The appeals court’s rapid intervention comes after Nielsen filed a new appeal challenging Vargas’ ruling in the antitrust case over how it sells its national radio ratings. Vargas’ underlying opinion remains under seal, so its exact pricing requirements and the amount of the daily penalties are not publicly available. But Nielsen’s notice of appeal provides a window into what the judge ordered.

Nielsen says Vargas modified the original preliminary injunction by requiring the company to offer its Nationwide ratings to Cumulus, while also imposing “daily penalties for noncompliance.” Nielsen contends those requirements were not contained in the original injunction and is asking the Second Circuit to review Vargas’ authority to impose them.

For now, the administrative stay means the order is on hold while the latest appeal moves forward.

The latest courtroom move follows another unsuccessful attempt by Nielsen and Cumulus to resolve the Nationwide dispute themselves. Nielsen lowered its standalone Nationwide proposal and characterized the revised proposal as its “best and final” offer. Cumulus maintained that the new price was still commercially unreasonable and substantially above the prices other customers pay for Nationwide.

Cumulus then made its own counteroffer. It told Vargas that its proposed price was significantly higher than any previous price paid for Nationwide, including by Westwood One, and above the safe-harbor benchmark established in the preliminary injunction. But Nielsen rejected the proposal. The actual prices remain redacted in the public filings.

Cumulus subsequently asked Vargas to find Nielsen’s offers noncompliant and require the ratings company to make a commercially reasonable standalone proposal. It also sought financial sanctions to force compliance. The broadcaster argued Nielsen’s pricing methodology was flawed because it relied on an economic model based partly on customers’ spending across Nielsen products rather than focusing on actual market prices for Nationwide.

Nielsen has defended its approach and maintained that the unusual size and circumstances of Westwood One require a different analysis from existing Nationwide customers.

Back To Second Circuit

The new appeal returns Nielsen and Cumulus to the same appeals court that decided their earlier fight over Vargas’ preliminary injunction. The Second Circuit in July affirmed the injunction, which prevents Nielsen from enforcing its Network Policy tying access to its complete Nationwide ratings product to purchases of local Nielsen ratings. It also prohibits Nielsen from charging a “commercially unreasonable rate” for Nationwide as a complete standalone product.

That earlier appeal’s end allowed Vargas to again take up Cumulus’ request to enforce the injunction.

The question now before the appeals court is different. Nielsen is challenging what it characterizes as new obligations Vargas imposed while enforcing that injunction. Its notice says the judge’s ruling modified the original order by specifying terms and a deadline for a Nationwide offer and imposing daily penalties.

The Second Circuit’s administrative stay doesn’t resolve that argument. It simply freezes Vargas’ order pending further action by the appeals court. That leaves the Cumulus-Nielsen battle in another holding pattern. The companies have exchanged offers without reaching a Nationwide deal, Vargas has stepped in with a new enforcement order, and Nielsen has again turned to the Second Circuit — which, for now, has put the judge’s order on hold.