For the second time this year, a federal appeals court has paused a court order requiring Nielsen to sell its Nationwide ratings product to Cumulus Media on terms and at a price set by a judge, now backed by a $50,000-a-day fine for noncompliance.
The Second Circuit Court of Appeals on September 16 granted Nielsen’s motion for a stay pending appeal, pausing a district court order that had directed the ratings company to offer its Nationwide radio ratings product to Cumulus Media on price and duration terms set by the court.
The paused order, issued September 9 by US District Judge Jeannette A. Vargas, had granted Cumulus’s motion to enforce a preliminary injunction already in place against Nielsen, directing the company to offer Cumulus a multi-year Nationwide contract or face a $50,000-a-day fine.
In its reply brief, Nielsen argued the district court’s order goes well beyond what the injunction actually requires. “The Injunction forbids two things,” Nielsen wrote. “It commands nothing.” The company said Cumulus’s opposition “assumes a duty to sell that this Court has held the Injunction does not contain,” and leaned on US Supreme Court precedent holding that businesses are “free to choose the parties with whom they will deal, as well as the prices, terms, and conditions of that dealing.”
Nielsen also put a price on what it says it stands to lose. The company told the court its harm is “a compelled multi-year contract it can never unwind,” with any recovery capped “at a $100,000 bond.” Nielsen said the two standalone offers it already made to Cumulus were “each at less than half the condemned price,” and that its post-order offer amounted to a cut “over twelve times the $1.2 million delta the Court found coercive.”
Nielsen’s reply says Cumulus’s opposition brief argues the enforcement order simply “enforces” the existing injunction and accuses Nielsen of having “refuse[d] to comply,” a characterization Nielsen disputes, saying it “has honored its restraints since they took effect.” Cumulus has also told the court it “cannot afford the price proposed by Nielsen,” while separately arguing that even its own latest counteroffer would not be “commercially reasonable.”
Cumulus has been more direct in public statements. When it filed the underlying lawsuit in October 2025 in which Cumulus accused Nielsen of illegally tying access to Nationwide to the purchase of local ratings data in every market Cumulus operates, a company spokesperson said Nielsen’s pricing amounted to “unlawful and damaging” conduct. Judge Vargas granted a preliminary injunction that December barring the arrangement, and on July 13, the Second Circuit affirmed it in full, adopting a “constructive tying” theory that later surfaced in an unrelated antitrust case against Live Nation.
Under the expedited schedule the Second Circuit set, Nielsen’s opening brief is due September 30, Cumulus’s response is due October 14, and Nielsen’s reply is due October 21, with oral argument to follow before the court’s next available merits panel.
