SCOTUS Seeks Cumulus Response in Nielsen Antitrust Fight

The court’s request marks a procedural development in an antitrust battle that could influence how companies structure discounts and package products in markets where they hold significant competitive advantages.

Cumulus has until early December to file its response, The Desk reported. The broadcaster had previously declined to submit arguments unless specifically asked to do so by the justices.

The Supreme Court has not agreed to hear Nielsen’s appeal. Its latest action gives the court an opportunity to examine both sides’ positions before deciding whether to take up the case.

Dispute Centers on Radio Ratings Market

The litigation stems from allegations by Cumulus that Nielsen used its dominant position in national radio audience measurement to pressure broadcasters into purchasing its local ratings products.

Cumulus sought to maintain access to Nielsen’s national audience data for its Westwood One syndication operations while obtaining local ratings from alternative providers in certain markets.

According to The Desk, Cumulus challenged Nielsen’s sales arrangements on the grounds that they effectively required broadcasters seeking comprehensive national ratings to purchase local measurement services from the same company.

A federal district court sided with Cumulus at the preliminary stage, ordering Nielsen to stop linking access to its national ratings service to purchases of local data.

The injunction also restricted Nielsen from imposing commercially unreasonable prices on customers seeking to purchase its Nationwide ratings product independently.

In July, the U.S. Court of Appeals for the Second Circuit upheld the preliminary injunction. Nielsen subsequently sought reconsideration without success before asking the Supreme Court to intervene.

The appeals court’s ruling found that Nielsen’s arrangements could constitute unlawful tying under federal antitrust law, according to the published judicial opinion.

Nielsen Warns of Wider Pricing Consequences

Nielsen maintains that the lower courts misapplied antitrust principles by treating its discounted combination of national and local ratings as an illegal sales practice.

The company argues that customers retained the option to purchase national ratings separately and that offering financial incentives for combined purchases should not automatically amount to unlawful conduct.

Nielsen has also warned that the legal reasoning behind the decision could extend beyond radio measurement, potentially exposing established discounting arrangements in other industries to antitrust litigation, according to The Desk.

The company’s Supreme Court petition has received support from outside legal and economic organizations.

The Washington Legal Foundation has argued that the appeals court’s approach could create uncertainty for businesses offering package discounts.

A separate group of antitrust scholars associated with the International Center for Law & Economics has questioned whether the economic evidence presented in the case adequately demonstrates harm to competition.

The scholars specifically disputed the significance of evidence that Cumulus would have faced approximately $1.2 million in additional costs by purchasing Nielsen’s national ratings separately while obtaining local measurement services from competitor Eastlan Ratings.