Second Circuit Mandate Restores Cumulus Injunction

RADIO ONLINE | Wednesday, August 26, 2026 | 4:57pm CT

Cumulus Media and Nielsen

The U.S. Court of Appeals for the Second Circuit has formally issued its mandate in Cumulus Media's antitrust case against Nielsen, putting the preliminary injunction against Nielsen's Network Policy back into effect and ending the stay that had remained in place during the appeal.

The mandate was issued August 25 in Cumulus Media New Holdings Inc. v. The Nielsen Company (US), LLC, No. 26-88. It affirms the December 30, 2025 order from U.S. District Judge Jeannette A. Vargas granting Cumulus a preliminary injunction, vacates the Second Circuit's February 3 order granting Nielsen a stay and remands the case to the Southern District of New York for further proceedings.

The action formally implements the appeals court's July 13 decision rejecting Nielsen's challenge to the injunction. The Second Circuit concluded that the district court did not abuse its discretion in finding that Nielsen's Network Policy and its pricing of a standalone Nationwide ratings product amounted to an unlawful tying arrangement at the preliminary-injunction stage.

The dispute centers on Cumulus's desire to continue buying Nielsen's Nationwide ratings while purchasing local ratings in some markets from competitor Eastlan Ratings. Nielsen's Network Policy conditioned access to a usable Nationwide report on buying Nielsen local ratings in markets where Cumulus operates stations. The court said Nielsen is the only supplier of national radio ratings data in the U.S.

After Cumulus challenged the policy, Nielsen offered to sell Nationwide separately. But according to the court record, that price was at least 150% higher than any other national network paid and about 10 times what Cumulus had been paying for Nationwide under its existing contract.

The district court found the standalone price "so exorbitant" that buying Nationwide separately was economically unfeasible and therefore operated as a constructive tie. The Second Circuit agreed that constructive tying -- using pricing to effectively condition the sale of one product on another -- can violate Section 2 of the Sherman Act.

Under the preliminary injunction, Nielsen is barred from enforcing its Network Policy against Cumulus and from charging a commercially unreasonable rate for Nationwide as a complete standalone product. The district court said a rate no higher than the highest annual 2026 rate Nielsen charges another broadcaster for Nationwide would be presumptively reasonable.

The mandate follows the Second Circuit's August 18 denial of Nielsen's petition for panel rehearing or rehearing en banc. With the appellate proceedings concluded and the stay vacated, the case now returns to Vargas in the Southern District of New York.

Other portions of the litigation have been affected by Cumulus's Chapter 11 proceedings. Nielsen filed counterclaims against Cumulus in district court, and those claims were stayed after Cumulus filed for bankruptcy in March. The appeals court held, however, that the bankruptcy stay applied to claims against Cumulus and did not prevent litigation of Cumulus's own claims against Nielsen.