A federal appeals court on July 13, 2026 upheld an order blocking Nielsen from enforcing a radio ratings policy that tied its national data product to local data purchases, finding the measurement firm exploited a monopoly to coerce Cumulus Media into buying products it did not want.

The United States Court of Appeals for the Second Circuit affirmed a preliminary injunction issued by District Judge Jeannette A. Vargas, leaving in place a block on what Cumulus calls Nielsen's Network Policy. The three-judge panel decided the case on July 13, 2026, following oral argument on May 7. Radio World reported the outcome on July 14.

The ruling matters well beyond the radio business. For the first time at the appellate level in this circuit, the court held that a supplier can violate antitrust law not only through an explicit tie but through pricing designed to achieve the same effect - a legal theory the panel called constructive tying. That holding gives buyers across advertising and measurement markets a new argument against dominant vendors that discard formal bundling rules while preserving the economics of a bundle.

What the court decided

The panel, composed of Circuit Judges Myrna Pérez and Alison Nathan and Judge Gary Katzmann of the Court of International Trade sitting by designation, affirmed the district court's order in full. Judge Nathan wrote the opinion. The court held that Judge Vargas did not abuse her discretion when she concluded that Nielsen's policy was an unlawful tie, that the conduct caused anticompetitive effects in local data markets, and that Cumulus would suffer irreparable harm without relief.

The dispute concerns two products. Nielsen sells local radio audience data, which measures listenership in specific geographic areas, and national radio data, which compiles all local data into a single nationwide report. According to court documents, Nielsen is the only supplier of national radio data in the United States, holding a 100% share of that market. In local data, it competes with one rival, Eastlan Ratings, which surveys smaller markets and areas Nielsen does not cover.

Both data types are essential for large broadcasters. National networks use nationwide figures to sell advertising across their reach, while local stations use area-specific data to price and sell inventory to advertisers targeting particular geographies. Cumulus operates 395 radio stations and distributes content to more than 9,500 affiliated stations through its Westwood One syndication network, according to the appellate opinion.

The policy at the center of the case

Nielsen historically sold its Nationwide report and individual local data as separate products. That changed in 2024. Under the new Network Policy, a broadcast network that operates a local station in a Nielsen-measured market and does not subscribe to Nielsen's local data in that market cannot purchase the Nationwide product with data for that specific market included.

The mechanics produce a degraded product. If a national network operates local stations in 30 markets and buys only the Nationwide report, Nielsen omits data for those 30 markets from the report. In Nielsen's own words, quoted in the opinion, the exempted product is "like Swiss cheese." For Cumulus, that stripped-down report would have excluded data from major markets including San Francisco, Los Angeles, and New York City, rendering it, in the court's assessment, not useable.

The Network Policy applies only to customers operating both a national network and local stations. According to court documents, that group comprises 12 customers, including the three largest companies in radio, which together control roughly a third of all radio advertising spend.

Nielsen said it adopted the policy to stop national customers from sharing Nationwide data with local affiliates for free, from making decisions for affiliates based on the national report, or from extracting local data from Nationwide without paying. An executive described the policy's aims as bringing groups with non-subscribing markets back to the negotiation table, commanding subscriptions in local markets, and preventing networks from getting data through the back door, according to sealed appendix materials cited in the opinion.

How negotiations collapsed

The parties' prior contract, signed before the Network Policy existed, was set to expire at the end of 2025. Under that agreement, Cumulus had purchased both Nationwide and local data in 76 markets. Before negotiations for a new contract began in May 2025, Cumulus decided it no longer wanted to subscribe to some of those markets, concluding that the cost of Nielsen's local data had outstripped its value. It planned to switch to Eastlan, a lower-cost alternative, in at least some of those areas.

Nielsen's June 2025 offer bundled the full Nationwide product with local service in every market where Cumulus operates stations. A follow-up offer did the same. When Cumulus asked for a standalone price for Nationwide plus market-by-market local pricing, Nielsen refused, citing the Network Policy. A Nielsen executive stated that a standalone price for Nationwide was not possible under the company's local subscription policy, according to the opinion.

The talks reached an impasse in August 2025. Cumulus sent a cease-and-desist letter alleging an antitrust violation and threatening suit. About a month later, Nielsen exempted Cumulus from the policy and, for the first time, offered a standalone price for Nationwide. That price is where the case turns.

A price 10 times higher

According to the appellate opinion, the standalone offer was at least 150% more than any other national network paid for Nationwide and ten times more than what Cumulus was paying under its existing contract. The district court found the price so exorbitant as to make it economically unfeasible to purchase Nationwide as a separate product. That high price, the lower court concluded, served as a constructive tie.

The math laid out in the opinion illustrates the problem. The court found that if Cumulus bought Nielsen's standalone Nationwide and then purchased its preferred local data from Eastlan, the combined cost would run $1.2 million more than Nielsen's original bundled June offer. Specific dollar figures were redacted from the public opinion. Cumulus thus faced what the panel called an illusory choice: accept Nielsen's tied offer, or pay $1.2 million more to buy local data from a competitor.

A final bundled offer came on October 16, 2025, again including all 80 markets where Cumulus operates, including the local markets Cumulus did not want. That same day, Cumulus filed suit in the Southern District of New York, accusing Nielsen of violating Section 2 of the Sherman Antitrust Act through an unlawful tying arrangement it described as a textbook abuse of monopoly power.

Nielsen's principal argument on appeal was that constructive tying is not a viable theory under the Sherman Act. It contended that only an express tie, a seller's explicit refusal to sell one product without another, can be actionable. The panel disagreed.

The court traced the theory to two precedents. In United States v. Loew's, a 1962 Supreme Court decision, film distributors that had abandoned formal block-booking policies were still barred from charging price differentials that had the effect of conditioning the sale of one film on the purchase of others. In American Manufacturers Mutual Insurance Company v. American Broadcasting-Paramount Theatres, a 1967 Second Circuit case involving advertising time on ABC stations, the court held that a seller cannot charge substantially more for an individual product if the price difference has the effect of conditioning its sale on the purchase of a package and cannot be justified by cost.

Reading those cases together, the panel concluded that tying can occur when a seller de facto ties two products through exorbitant prices, leaving a buyer with only one economically rational choice. The court described that outcome directly: the essential characteristic of an invalid tie is the seller's exploitation of control over one product to force the buyer into an unwanted purchase, and that compulsion can arise from a steep, non-cost-justified price differential just as it can from an explicit refusal to sell.

Applying the framework, the panel held that Nielsen's standalone offer, its fourth of eight during negotiations, was not a mere opening bid but a continuation of the same coercion. Nielsen argued that an opening offer can never establish liability. The court distinguished its own precedent, noting that in the earlier ABC case the plaintiff had not pressed its position long enough to feel economic pressure. Here, by contrast, Cumulus made its desire for a subset of local markets clear from the outset, and Nielsen steadfastly refused to accommodate it.

Anticompetitive effects and the rival left out

The panel also upheld the finding that Nielsen's conduct harmed competition in local data markets. The district court found that the Network Policy poses a significant barrier to entry, preventing Eastlan from achieving scale or industry-wide acceptance. Because the policy applies to the largest national broadcasters, Eastlan is cut off from the customers most likely to buy its products.

To illustrate the effect, the lower court pointed to the New Orleans market, where a smaller broadcaster not subject to the policy earned less in annual revenue in 2024 than the cost of Eastlan's local data. The appellate panel rejected Nielsen's claim that the district court relied on only one market, noting that the trial court had cited evidence about many markets before using New Orleans as an example.

On Nielsen's asserted business justification, that it needed to recoup the costs of producing Nationwide, the panel found no clear error in the district court's conclusion that Nielsen made no effort to quantify those costs or correlate them with its standalone price. The court also credited internal statements, including an email from Rich Tunkel, Managing Director of Nielsen Audio, describing the policy's goal as commanding subscriptions and bringing non-subscribing groups back to the table. Those statements supported the finding that Nielsen's stated justifications were pretextual.

What the panel did not accept

The affirmance was not total in its reasoning. While the court upheld the finding of irreparable harm in the form of lost customers, goodwill, and market share, it concluded that the district court erred in identifying two additional forms of harm. The panel disagreed that threatened economic harm to consumers is automatically sufficient to authorize relief between private parties, a standard it said applies to enforcement actions by state officials rather than private disputes. It also rejected the view that a reduction in competition due to antitrust injury independently constitutes irreparable harm for a private litigant, who must show threatened loss to its own interests.

Those corrections did not change the result. The court held that the surviving basis, lost customers, diminished goodwill, and reduced market share, was enough to sustain the injunction.

The bankruptcy wrinkle

A procedural question ran alongside the merits. Cumulus filed for voluntary Chapter 11 bankruptcy on March 10, 2026, and Nielsen had filed counterclaims in the district court. The automatic-stay provision of the Bankruptcy Code halts proceedings against a debtor. Nielsen's counterclaims against Cumulus were stayed. The question was whether that stay also froze Cumulus's own claims and this appeal.

The panel held it did not. Joining a majority of circuit courts, the court concluded that a case must be disaggregated into claims brought by and against a debtor, and that the automatic stay reaches only the latter. Because the injunction concerned only Cumulus's original claims, and because Nielsen filed its counterclaims after the notice of appeal, the appeal could proceed.

Cumulus's financial condition remains unresolved. According to Radio World, the broadcaster has received bankruptcy court approval for its reorganization plan but has not yet obtained Federal Communications Commission approval for the related transfers of station licenses.

The injunction's terms

Nielsen also challenged the design of the injunction, arguing it was too vague to satisfy the specificity requirement of Federal Rule of Civil Procedure 65(d). The order bars Nielsen from enforcing the Network Policy and from charging a commercially unreasonable rate for standalone Nationwide. It defines a safe harbor: a rate equal to or lower than the highest annual 2026 rate Nielsen charges any broadcaster for Nationwide is presumptively reasonable.

The panel found that provision clear enough. Nielsen can determine a presumptively reasonable rate by surveying what it charges other large network clients. The court noted that Nielsen never articulated what a more specific injunction would look like, which further undermined its vagueness argument.

Why this reaches beyond radio

The decision arrives against a backdrop of intensifying antitrust pressure on the infrastructure of advertising. The measurement layer, the data that sets the price and placement of ad inventory, sits at the heart of the industry, and this case establishes that dominant data suppliers can face tying liability for pricing tactics, not just explicit bundling rules.

The parallels to other current disputes are direct. A federal court found that Google monopolized digital advertising technology markets and unlawfully tied its publisher ad server and ad exchange together, a ruling that produced follow-on litigation from publishers. Tying arrangements also form part of the broader case that led a court to prepare remedies against Google's search and advertising businesses. The Cumulus ruling adds appellate weight to the principle that a monopolist cannot use price to accomplish what an express tie would.

The audience measurement sector itself has been unsettled for years. Nielsen has faced questions over methodology and competition as the market fragments across linear, streaming, and connected TV, developments that have driven rivals such as Fifty5Blue to relaunch with hybrid measurement models. YouTube's power over measurement providers surfaced when the platform pressed the UK's Barb to halt certain TV measurement. The common thread is the power that flows from controlling the currency by which advertising is bought and sold.

For now, the case returns to Judge Vargas in the Southern District of New York, which will decide ultimate liability. The panel resolved the antitrust questions on a preliminary basis, deferring to the district court's factual findings, and Nielsen remains free to move to modify or vacate the injunction in light of the bankruptcy. The February 3, 2026 stay that had suspended the injunction during the appeal is now vacated, restoring the block on the Network Policy.

Timeline

  • 2024: Nielsen adopts its Network Policy, ending the separate sale of Nationwide and local data for networks with local stations
  • September 2024: The Network Policy takes effect
  • May 2025: Cumulus and Nielsen begin negotiating a new contract
  • June 2025: Nielsen offers the full Nationwide product bundled with all local markets where Cumulus operates
  • July 25, 2025: A Nielsen executive characterizes the stripped-down national product as "Swiss cheese" on a call with Cumulus
  • August 2025: Negotiations reach an impasse; Cumulus sends a cease-and-desist letter
  • September 2025: Nielsen exempts Cumulus and offers a standalone Nationwide price ten times its existing rate
  • October 16, 2025: Nielsen makes a final bundled offer; Cumulus files suit the same day
  • December 30, 2025: Judge Jeannette Vargas grants Cumulus a preliminary injunction
  • February 3, 2026: The Second Circuit stays the injunction pending appeal
  • March 10, 2026: Cumulus files for Chapter 11 bankruptcy
  • May 7, 2026: The Second Circuit hears oral argument
  • July 13, 2026: The Second Circuit affirms the injunction and vacates its stay

Summary

Who: The United States Court of Appeals for the Second Circuit, ruling on a dispute between Cumulus Media New Holdings and The Nielsen Company. Cumulus operates 395 radio stations and the Westwood One network; Nielsen is the sole supplier of national radio ratings data in the United States.

What: The panel affirmed a preliminary injunction barring Nielsen from enforcing its Network Policy, which conditioned access to a usable national ratings report on the purchase of Nielsen's local data. The court held that Nielsen's standalone national price, ten times what Cumulus had been paying, functioned as a constructive tie in violation of Section 2 of the Sherman Act, and it recognized constructive tying as a valid antitrust theory in the circuit.

When: The appeals court decided the case on July 13, 2026, after oral argument on May 7, 2026. Radio World reported the ruling on July 14, 2026. The underlying injunction was issued on December 30, 2025.

Where: The case originated in the United States District Court for the Southern District of New York before Judge Jeannette Vargas and was heard on appeal in the Second Circuit. The conduct affected the national radio data market and 80 local radio data markets where Cumulus operates.

Why: The ruling establishes that a monopolist can face tying liability for using exorbitant pricing to achieve the effect of a bundle, a principle with direct application to advertising measurement and ad technology markets where dominant suppliers control the data that prices and places inventory. The case now returns to the district court to decide ultimate liability.