Second Circuit Stays Cumulus-Nielsen Enforcement Order

RADIO ONLINE | Thursday, September 17, 2026 | 3:57pm CT

Nielsen and Cumulus Media

The U.S. Court of Appeals for the Second Circuit has granted Nielsen a stay pending appeal of a federal judge's order requiring the ratings company to offer its Nationwide radio ratings product to Cumulus Media on commercially reasonable terms or face sanctions of $50,000 per day.

The September 16 ruling pauses an enforcement order issued September 9 by U.S. District Judge Jeannette A. Vargas in Cumulus Media's antitrust lawsuit against Nielsen. The appeals court provided no explanation for granting the stay, citing the Supreme Court's Nken v. Holder standard for stays pending appeal.

The latest dispute centers on whether Vargas's enforcement order merely implements the preliminary injunction she issued against Nielsen last December or imposes new obligations beyond that injunction.

Cumulus argues that the injunction, which the Second Circuit affirmed in July, requires Nielsen to make Nationwide available as a standalone product at a commercially reasonable price. Cumulus told the appeals court that Nielsen's latest offer remained many times higher than prices paid by other customers and that Vargas questioned Nielsen's good faith after reviewing pricing evidence and testimony from a Nielsen expert.

Nielsen disputes that interpretation. In a September 13 filing, the company said the injunction prohibits tying Nationwide to local ratings purchases and using an unreasonable standalone price to accomplish such a tie, but does not require Nielsen to sell the product.

"The Injunction forbids two things," Nielsen told the court. "It commands nothing." Nielsen noted that the Second Circuit's July ruling said the injunction did not require a "forced sale of Nationwide."

Nielsen argues that Vargas's September 9 order went further by requiring the company to make an offer for a multi-year Nationwide contract and backing that requirement with $50,000-per-day sanctions. Nielsen also contends that forcing it into a multi-year agreement could cause irreparable harm because the contract could not be unwound if the company ultimately prevails on appeal, while its recovery would be limited by a $100,000 injunction bond.

Cumulus counters that Vargas did not set a specific price. It says Nielsen can comply through a safe harbor in the original injunction under which a rate equal to or below the highest annual 2026 rate Nielsen charges another broadcaster for standalone Nationwide is presumed reasonable. Cumulus also said its own latest counteroffer exceeded that safe-harbor price.

The Second Circuit previously issued a temporary administrative stay on September 10. The new order keeps Vargas's September 9 enforcement order on hold while the appeal proceeds.

The court also ordered an expedited schedule. Nielsen's opening brief is due September 30, Cumulus's response October 14 and Nielsen's reply October 21. Oral argument will be scheduled before the next available merits panel.