Nielsen Takes Cumulus Ratings Fight to Supreme Court

RADIO ONLINE | Tuesday, September 22, 2026 | 4:31pm CT

Nielsen

The Nielsen Company has asked the U.S. Supreme Court to review a federal appeals court ruling that upheld a preliminary injunction in its antitrust dispute with Cumulus Media over the sale of national radio ratings data.

Nielsen filed its petition for a writ of certiorari September 15 in The Nielsen Company (US), LLC v. Cumulus Media New Holdings Inc. The Supreme Court has docketed the case as No. 26-370. The petition seeks review of the Second Circuit's July 13 decision affirming an injunction against Nielsen over its pricing and sale of its Nationwide radio ratings product.

At the center of Nielsen's petition is what the company calls a "constructive tie." Nielsen asks the Supreme Court to decide whether a seller that offers products separately and as a discounted bundle can face liability under Section 2 of the Sherman Act because a court considers the standalone price so high relative to the bundle that the buyer effectively has no choice but to purchase both products.

The dispute began after Cumulus sought to continue buying Nielsen's Nationwide product while purchasing Nielsen local ratings in only some markets and using competitor Eastlan in others. The district court found that Nielsen's pricing of standalone Nationwide could effectively force Cumulus to continue buying unwanted local ratings services.

U.S. District Judge Jeannette Vargas granted Cumulus a preliminary injunction in December 2025. The Second Circuit affirmed that injunction July 13 and vacated an earlier stay, returning the case to the Southern District of New York for further proceedings.

Nielsen's Supreme Court petition argues that the Second Circuit created a conflict with other federal appeals courts by allowing a constructive-tying claim without an allegation that either the standalone product or bundle was priced below cost. Nielsen contends that courts should not determine whether a standalone price is "too high" relative to a discounted bundle and says the Second Circuit's approach risks turning judges into price regulators. Those assertions are Nielsen's arguments in seeking Supreme Court review; the Court has not ruled on them.

The petition also notes that the underlying preliminary injunction remains in effect during the litigation and distinguishes the Supreme Court proceeding from Nielsen's newer appeal involving enforcement of that injunction. Nielsen says the second appeal concerns only Vargas's September 9 enforcement order and cannot alter the Second Circuit's underlying July ruling.

That separate appeal, No. 26-2516, arose after Vargas concluded Nielsen's latest Nationwide offer to Cumulus was commercially unreasonable and ordered the company to make a compliant offer or face sanctions of $50,000 per day. On September 16, the Second Circuit granted Nielsen a stay of that enforcement order while the appeal proceeds.

The appeals court has expedited that case, with Nielsen's opening brief due September 30, Cumulus's response October 14 and Nielsen's reply October 21. Oral argument is to be scheduled before the next available merits panel.

The Supreme Court is not obligated to hear Nielsen's case. Filing a certiorari petition begins the review process, and the justices must first decide whether to grant the petition before considering the merits of Nielsen's challenge.

Read Nielsen's Supreme Court petition here.