Last week, two major events took place in the world of audio audience measurement. First, the Cumulus-Nielsen legal battle may have ended after Nielsen lost in the U.S. 2nd Circuit Court of Appeals.
Shortly after the verdict was announced, Cumulus signed up with DTS AutoStage as the initial client for their premium service.
Let’s start with the court case, and, as I’ve done throughout the proceedings, I’ve read the entire 55-page decision so that you don’t have to. As always, the disclaimer that I’m not an attorney holds.
Inside the Court Decision
You may wonder why the court needed 55 pages to boil the decision down to two words: “Cumulus wins.” A court decision requires a recitation of the facts of the case, as well as the legal reasoning behind the decision, citing case law to back up that reasoning. Despite what some may think, “because I said so” is not an acceptable part of a U.S. court decision.
The net result is that two federal courts have now decided that they believe Cumulus can win an antitrust suit against Nielsen’s “Network Policy.” The courts handed the company a preliminary injunction that forces Nielsen to sell the Nationwide service to Cumulus for Westwood One at “a rate that is equal to or lower than the highest annual 2026 rate Nielsen charges any broadcaster (whether network or local) for Nationwide.” Nielsen must do this even if Cumulus does not want Nielsen service in all of its local markets. While I have no insight into pricing, my guess is that this would be equivalent to whatever Premiere Networks pays.
Where does Nielsen go from here? The company could appeal to the U.S. Supreme Court, but that seems unlikely. It could also go through with the full antitrust trial, but the loser pays treble damages, and that’s risky. Most likely, Nielsen and Cumulus will work out a deal for Nationwide and the local markets where Cumulus feels Nielsen data continues to be a profitable investment. That option stops the meter running at some very expensive law firms for both companies.
One point Nielsen made in its filings was the “free rider” argument. In other words, if Cumulus has Nationwide, the company could give the local data to its non-subscribing stations. We all know that if Nielsen data ever appears on a buyer’s desk coming from a non-subscriber, the next step is a copyright infringement lawsuit. But going back to the Arbitron days, I don’t remember a lawsuit for infringement involving internal use of the data.
We’ve all heard of instances where a station employee somehow procured diaries, filled them out, and sent them in. Back in the Arbitron days, this was the purview of Dave Willinski, whom I referred to as “the diary detective.” Dave would tell us that the people most likely to turn a station in for cheating were those recently fired from a radio station, or jilted ex-lovers of station employees. And since a lot of radio people seem to end up on the beach these days, what if one turned in a local cluster for having data for internal use without a subscription?
Cumulus Moves Beyond Nielsen
Shortly after Cumulus won, the company announced a deal with Xperi for the DTS AutoStage premium service. It has also recently announced a deal with The Media Audit in some of its markets as a replacement for the Scarborough qualitative service. That is owned by Nielsen. Based on their court filings, we can assume that Cumulus will be making a joint announcement with Eastlan very soon.
But here’s a question: What if Cumulus tells Nielsen to pound sand in all of its local markets? What if it opted for a combination of DTS AutoStage, The Media Audit, and either Eastlan or nothing else? Let’s consider that for a moment.
If Cumulus could pull it off — in other words, booking similar amounts of agency and local business without Nielsen Audio — does that lead the way for iHeart, Audacy, and the smaller groups to take a pass when Nielsen renewal time comes around? And does that put a major squeeze on the profitability of Nationwide if plenty of markets have no, or only one or two, subscribers? That’s something Rich Tunkel mentioned in his testimony. I don’t foresee an issue in PPM markets. The meter is now fully ingrained in video services, helping to drive higher ratings for live sports. But the diary service is another matter.
What This Means for the Ratings Business
I believe Nielsen’s recently announced initiatives to use a “one-off” survey and databases for sample size are a hedge for a future in which many current diary markets can no longer financially support the service and are shut down. I live in one that I expect will go away after the Spring 2026 survey.
We’re seeing the beginning of the end of the radio ratings business as we’ve known it for six decades. Meanwhile, the federal court decisions in Cumulus v. Nielsen may have been the end of the beginning of a new way of determining who listens to radio. And the currency of the buy/sell process. It won’t happen overnight, but the tectonic plates are shifting, and once there’s momentum, who knows where it will end.
Let’s meet again next week.
