A ratings dispute that has rattled radio is moving toward its biggest stage yet, though not its biggest step. The US Supreme Court will take a private look at Nielsen’s petition against a Second Circuit ruling against its pricing methods.
The Supreme Court has distributed Nielsen’s petition for its November 13 conference, where the justices will consider whether the case warrants its full review.
Radio Ink reported on Nielsen’s petition in September., when the ratings giant asked the Court to review the Second Circuit’s decision upholding an antitrust injunction in Cumulus’s favor. Nielsen has called the ruling “egregiously wrong.” The Second Circuit applied a theory it called “constructive tying,” which Nielsen argues conflicts with Sixth and Ninth Circuit precedent requiring proof that a price is the economic equivalent of selling below cost before liability attaches.
At the center of the dispute is how Nielsen sells local radio ratings and its national “Nationwide” report, which aggregates local data. Nielsen offered Cumulus a discounted bundle and the Nationwide report separately. The Second Circuit held that the standalone price was so high relative to the bundle that Cumulus had no real choice but to accept the bundle, making it an unlawful tie under the Sherman Act, even without below-cost pricing.
The district court granted Cumulus a preliminary injunction on December 30. The Second Circuit affirmed on July 13 and denied Nielsen’s petition for rehearing on August 18.
Nielsen says attorneys in the Justice Department’s Live Nation case and in ad-tech litigation against Google cited the Second Circuit’s decision within days of its release. The Law and Economics Scholars and the Washington Legal Foundation filed amicus briefs in the Supreme Court case on October 19.
A separate enforcement fight is also under way. On September 9, the district court ordered Nielsen to submit a compliant pricing offer within 24 hours and imposed $50,000 daily sanctions for noncompliance. Nielsen appealed, and the Second Circuit administratively stayed that order on September 10, with the underlying injunction remaining in effect.
