Nielsen is petitioning the U.S. Supreme Court to review the federal appeals court ruling upholding the preliminary injunction granted to Cumulus Media over the bundling of local and national ratings data.
Nielsen said, “The Nielsen Company (US), LLC offered its radio-ratings products to Cumulus Media New Holdings Inc. both bundled at a discount and on a standalone basis, at prices no one contends were below cost. The Second Circuit nonetheless held that the standalone offer was likely an unlawful “constructive tie” under Section 2 of the Sherman Act because the price was so “exorbitant” that Cumulus had “no choice” but to take the bundle. The court then affirmed a preliminary injunction barring Nielsen from charging a “commercially unreasonable rate.” The question presented is: Whether a seller who offers its products separately and in a bundle, at prices never alleged to be below cost, may be held liable under Section 2 of the Sherman Act for a “constructive tie” because a court deems a standalone price too high relative to a discounted bundle”. It is asking for a writ of certiorari and a review of the Second Circuit Court’s decision earlier this year.
Cumulus will have until mid-October to respond. A preliminary injunction against Nielsen was upheld in July with Nielsen then seeking a rehearing by the full court of appeals which was denied.
The increasingly complex web of legal maneuvers has seen Nielsen file a petition asking the Supreme Court to review the Second Circuit case in which it lost its appeal of the preliminary injunction blocking its radio ratings policy. The move follows a series of losses for Nielsen in that original appeal. The Second Circuit upheld a preliminary injunction in July, Nielsen sought a rehearing by the full appeals court, and that request was then denied.
Cumulus originally sued Nielsen last October accusing Nielsen of illegally leveraging its dominance over national and local radio audience data to stifle rivals and charge inflated prices.
