Nielsen is asking the full U.S. Court of Appeals for the Second Circuit to rehear its recent antitrust loss to Cumulus Media, arguing a three-judge panel’s decision invents a novel “constructive tie” theory that conflicts with Supreme Court and other appellate precedents and could upend how companies price bundled products.
In its petition for en banc rehearing, Nielsen contends the ruling makes it the first court in the nation to hold that a seller violates federal antitrust law merely by offering a standalone product at a price a court later deems too high.
The company also challenges whether courts should enjoin a seller from charging a “commercially unreasonable” price when any overcharge could later be remedied through monetary damages.
Earlier this month, the Second Circuit affirmed a district court’s preliminary injunction, finding Cumulus likely to succeed on its claim that Nielsen unlawfully leveraged its monopoly in national radio ratings to force broadcasters to buy unwanted local ratings services.
The dispute centers on Nielsen’s policy requiring broadcast groups to purchase its local radio ratings in markets where they own stations in order to obtain its full Nationwide ratings report. Cumulus sought to switch to rival Eastlan in some local markets while continuing to buy Nielsen’s national product. When Nielsen offered a standalone Nationwide report at what Cumulus called an exorbitant price, the broadcaster argued the offer effectively perpetuated an unlawful tie.
Nielsen now asks the full court to reconsider whether a seller can face constructive-tying liability simply by setting a high standalone price, and whether injunctive relief is appropriate when damages could later compensate for any overcharge.