A federal appeals court has denied Nielsen’s rehearing bid to stop an injunction in its antitrust dispute with Cumulus Media. Now the radio broadcasting company preparing to go private wants a mandate about pricing within the week, as it races to preserve access to Nationwide ratings before September.
The injunction in question, issued by U.S. District Judge Jeannette Vargas on December 30, bars Nielsen from enforcing its Network Policy and from charging what the court called a commercially unreasonable rate for standalone access to Nationwide. The Second Circuit affirmed that injunction on July 13, agreeing Nielsen had not shown how its pricing corresponded to its actual costs and sending the underlying antitrust case back to district court for further proceedings.
The August 18 order denying Nielsen’s rehearing petition clears a procedural hurdle that had left the parties disputing when the injunction could take effect.
As Streamline Publishing’s Radio Ink reported earlier this month, the Second Circuit upheld the injunction, but Nielsen argued the ruling could not take effect until the court issued a formal mandate. That mandate was delayed while Nielsen’s rehearing petition remained pending. Cumulus responded by filing an emergency motion asking the court to clarify that the injunction was already back in force.
In an August 17 opposition brief, Nielsen argued Cumulus’s motion rested on a mistaken premise, writing that an appellate judgment does not become operative until the mandate issues, and that the injunction remained stayed while Nielsen’s rehearing petition was pending.
Nielsen also challenged Cumulus’s characterization of the matter as an emergency, saying it made a commercially reasonable offer for standalone access to its Nationwide ratings product on July 31, but Cumulus waited until August 14 to reject the price and terms and made a counteroffer.
With the rehearing denied, Cumulus has asked the court to hold its emergency motion in abeyance, with an expected issuance within seven days. The broadcaster added it is racing to resolve the dispute before it loses access to Nielsen’s Nationwide product in September, and said it reserves the right to renew its motion if further disagreements arise over the meaning or enforcement of the court’s rulings.
