Calling it “commercially unworkable,” The Nielsen Company has briefly paused the preliminary injunction granted to Cumulus Media, warning it will “suffer significant irreparable harm” and may be forced to retire its Nationwide radio ratings product if the ruling stands.
The company’s January 9 motion, filed with the US District Court for the Southern District of New York, sought a stay of enforcement on Judge Jeannette Vargas’s December 30 injunction while an appeal proceeds. The order blocked Nielsen’s Network Policy and prohibited the company from charging what the court deemed a “commercially unreasonable” rate for its standalone Nationwide report.
Represented by Gibson, Dunn & Crutcher LLP, Nielsen argued that the ruling misapplied antitrust law and wrongly characterized pricing negotiations as coercive conduct. Nielsen’s motion contends the court “undertook the task of determining the ‘proper price’” for its product, something the company says “courts are ill-suited” to decide. Citing Supreme Court precedent, the company argued that its negotiations with Cumulus represented “ordinary give and take of complex contract negotiations between two sophisticated parties.”
In a supporting declaration, Nielsen Audio Managing Director Rich Tunkel described the consequences of the injunction as immediate and far-reaching. “If Nielsen is unable to apply the Network Policy, then it will be hindered in its ability to ensure that it can recover the costs of collecting the local radio-ratings data that make up the Nationwide report and spread those costs appropriately across the customers that use the products generated from those joint costs,” he wrote.
“If Nielsen cannot recover these costs, then it may have to retire the Nationwide report.”
For broadcasters, the implications of that statement are monumental. If Nielsen’s Nationwide report were suspended, the national radio ad market would lose its central measurement currency, as networks depend on Nationwide data to prove audience size and sell national campaigns to advertisers.
Smaller broadcasters relying on network revenue could also feel the effects, as agencies could freeze or divert spending to digital and streaming platforms with consistent metrics.
Tunkel posited the order also places Nielsen “at risk,” because “Nielsen’s commercial proposals to Cumulus will be subject to the risk that the Court will deem Nielsen to be in violation of a Court order if Cumulus should consider a pricing proposal to be too high.” He warned that risk “distorts commercial negotiations” by discouraging the normal process of counteroffers and compromise.
The filing argues that such uncertainty will ripple beyond Cumulus. “If Nielsen is constrained in its ability to recover a fair share of its costs (as well as a return on its investments) from Cumulus,” Tunkel said, “that would impact Nielsen’s negotiations with other customers. It would require Nielsen to raise the prices charged to those customers, possibly beyond their ability to pay, and could make it economically unviable for Nielsen to continue selling the Nationwide product.”
In its appeal arguments, Nielsen asserts that the injunction fails Rule 65’s specificity requirements because the term “commercially unreasonable” is undefined. The company says the ambiguity will create “a cloud of uncertainty over ongoing negotiations” and could force it to modify existing customer contracts. Tunkel emphasized that there is “no single commercially reasonable rate” for the Nationwide report. He explained pricing depends on a customer’s size, audience reach, and existing purchases of local data, with costs distributed among all users.
Nielsen’s attorneys asked the court to stay the injunction pending appeal, or at least issue a temporary administrative stay while the Second Circuit reviews the motion. The company maintains that a stay would simply preserve “the pre-injunction status quo” and that Cumulus “would suffer no injury” because it could still negotiate terms or pay under protest.
As of January 12, enforcement of the injunction is paused until January 16. Judge Vargas denied Nielsen’s request for a full stay but granted a short administrative delay so Nielsen can ask the Second Circuit Court of Appeals for relief. After January 16, the injunction takes effect again unless extended.
Yet somehow they manage to do national TV ratings without doing irreparable damage. Why is radio so much harder and more expensive?
Courts in the USA mess up everything that worked for years.
1. We know the courts are corrupt and favor big government, big money, etc. from the Supreme Court “Wayfair” decision costing consumers heavily and the collections wasted by big government. At least the earlier “Quill” decision defined state boundaries.
2. Consolidation of media ownership has ruined radio to the point the most outstanding feature of the radio is the OFF switch. The public is tired of listening to or watching automation! Commissioner Carr, wake up and smell the coffee!
3. Directly or indirectly, the ratings services indicate public disgust and distrust of large corporate media ownership. Let the ratings services do their job without court interference!
4. In 1962, one of the late FCC commissioners declared radio and TV a “wasteland”. If this commissioner was alive and well today, he would see how low media ownership consolidation has ruined quality programming.
5. Incompetence in FCC leadership and political leadership abounds. How come in 1962 the FCC issued an order requiring television sets to include the UHF channels and manufacturers complied; today’s FCC too incompetent to issue an order requiring radio receivers sold in the USA to include AM broadcast channels and have the power of the US government behind it?
“As the hits just keep on coming”…incompetency abounds!
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