Cumulus Media: The Harm Is Irreparable

Cumulus Media is arguing before the U.S. Court of Appeals for the Second Circuit that its Chapter 11 bankruptcy filing is no longer a hypothetical risk — it is concrete evidence of the severe damage caused by Nielsen’s controversial “Network Policy.”

In a new appellate brief, the radio broadcaster states that one of the irreparable harms it warned about has now occurred: “Cumulus declared bankruptcy.” The company directly links the bankruptcy to the loss of access to Nielsen’s national “Nationwide” ratings, claiming the policy forces broadcasters to buy expensive local ratings data to obtain the national product essential for selling advertising.

Without nationwide ratings, Cumulus says it cannot effectively sell national ad inventory, leading to immediate losses of customers, market share, and goodwill. The filing urges the Second Circuit to quickly reinstate a preliminary injunction that would block Nielsen from tying its national and local ratings products together.

The dispute centers on Nielsen’s Network Policy, which Cumulus calls an unlawful tying arrangement. Even when a standalone national ratings option was offered, the company argues the pricing made it impractical. Cumulus warns that the radio industry stands at a crossroads, with its own bankruptcy highlighting the urgent need for more competition in audience measurement services.

Cumulus is asking the appeals court to affirm U.S. District Judge Jeannette Vargas’s January preliminary injunction, which halted the policy. It notes that a key September deadline looms, after which it will lose access to Nationwide ratings, making the harm increasingly urgent.

Nielsen, however, is pushing the Second Circuit to overturn the injunction. The ratings company argues that Cumulus’s bankruptcy has undermined the core premise of the injunction, stating that “bankruptcy has now occurred, and a preliminary injunction cannot stop what has already happened.” 

Nielsen denies a direct causal link, attributing Cumulus’s financial troubles primarily to broader industry challenges such as declining radio audiences, digital competition, macroeconomic pressures, high interest costs, and looming debt maturities.

The expedited appeal continues even as Cumulus’s underlying antitrust lawsuit (filed last October) remains paused due to the bankruptcy proceedings. Cumulus filed for Chapter 11 in March and recently received court approval for its reorganization plan, which eliminates roughly $600 million in debt. The company expects to emerge from bankruptcy next month, pending FCC approval.