Radio programmers and network executives across the Black music and urban radio sectors have a critical legal shield restored as the U.S. Court of Appeals for the Second Circuit upheld a preliminary injunction blocking Nielsen from forcing broadcasters to buy local ratings to access national data. This ruling validates Cumulus Media’s argument that the ratings giant’s “Network Policy” constitutes an unlawful tying arrangement under federal antitrust law, preventing Nielsen from leveraging its monopoly over national radio metrics to coerce purchases of unwanted local products.
Unlawful Tying and Exorbitant Pricing
The three-judge panel affirmed that District Judge Jeannette Vargas did not abuse her discretion in finding Cumulus likely to succeed on its claim that Nielsen’s policy illegally ties two distinct products. The court specifically addressed “constructive tying,” noting that Nielsen violated antitrust laws by setting a standalone price for national ratings so high that it left broadcasters with no economically rational choice but to buy the bundle. Evidence showed Nielsen’s standalone price was approximately 10 times what Cumulus previously paid and 150% higher than the highest price charged to any other national network. Furthermore, the court rejected Nielsen’s defense that offering a standalone version resolved the issue, concluding the offer was not a meaningful alternative because the alternative product—national data excluding markets without local ratings—was “unusable” and described by Nielsen itself as “like Swiss cheese”.
Irreparable Harm to Advertising Operations
Beyond the merits of the tying claim, the Second Circuit agreed that Cumulus demonstrated irreparable harm if the injunction were lifted, a key factor in maintaining the block on Nielsen’s policy. The panel determined that without complete national ratings data, Cumulus would suffer major disruption to its advertising business, rendering it unable to prepare competitive advertising proposals. The ruling also recognized that alleged distortions in competition within local markets constitute irreparable harm under federal antitrust law. This decision marks a significant setback for Nielsen, which had argued the dispute was merely a contract pricing disagreement rather than an antitrust violation.
The case now returns to the district court for further proceedings on Cumulus’s antitrust claims, which will resume after the broadcaster’s Chapter 11 restructuring concludes. Nielsen remains barred from enforcing its Network Policy against Cumulus while the broader litigation continues. This legal precedent could reshape how audience measurement data is priced and distributed across the radio industry, ensuring broadcasters retain the ability to purchase only the specific data products they need.
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