The CEO of Nielsen’s chief rival in radio audience measurement is set to testify today in federal court as part of Cumulus Media’s antitrust case against Nielsen, as the broadcaster claims other key witnesses are afraid to testify, citing fears of retaliation.
Cumulus has told the US District Court for the Southern District of New York that key witnesses are afraid to testify, citing fears of retaliation from what it describes as a dominant industry power with the ability to raise rates and punish dissent.
In a Wednesday filing, the broadcaster asked Judge Jeannette Vargas to reconsider her order unsealing third-party declarations. The company said the move risks “manifest injustice” by exposing the identities of industry participants who cooperated only under assurances of anonymity.
“Nielsen, a monopolist engaging in anticompetitive behavior, holds all of the power during contract negotiations, resulting in an unequal bargaining dynamic that is ripe for retaliation,” the filing stated. “If identifying information is revealed to Nielsen’s businesspeople, Nielsen can retaliate with additional rate increases.”
Cumulus said at least one witness has already withdrawn after the court’s order, and others refused to provide declarations out of concern that Nielsen might retaliate by raising prices or altering contract terms. The broadcaster stressed that its proposed redactions were limited only to names and identifying details, not the substance of testimony, and argued that “the privacy interests of innocent third parties” outweigh the public’s right to see that information.
The broadcaster also sought permission for three rebuttal witnesses to address what it called “misstatements and mischaracterizations” made by Nielsen’s attorneys during oral arguments. The December 9 request named Cumulus EVP of Corporate Strategy and Westwood One President Collin Jones, former FCC Commissioner Dr. Harold Furchtgott-Roth, and Eastlan Ratings CEO Michael Gould.
Gould, who had previously submitted a written declaration, is testifying today to respond to what Cumulus calls Nielsen’s “belated credibility attacks” on his earlier statements about barriers created by Nielsen’s alleged tying.
Nielsen’s data, collected through diaries and Portable People Meters, serves as the official currency for most major radio markets. Eastlan, by contrast, is a smaller, independent measurement firm based in Washington State. It primarily serves small and mid-sized markets that Nielsen does not cover or where stations seek a lower-cost alternative. Eastlan uses telephone surveys and other audience sampling methods to provide local listening estimates.
Cumulus argues this tying practice effectively locks competitors like Eastlan out of the market, inflates costs for broadcasters, and violates antitrust law by leveraging Nielsen’s dominance in national ratings to maintain control over local ratings. Nielsen denies the allegations, saying its policies are designed to prevent data misuse and ensure accuracy and fairness in measurement, not to stifle competition.
In his deposition, Furchtgott-Roth said Nielsen’s pricing structure leaves no “economically rational” option for Cumulus other than purchasing its bundled ratings products, which he described as “de facto ties.”
Judge Vargas has not yet ruled on the broader injunction request.
