ICLE Amicus Brief Cited in Inside Radio on Nielsen–Cumulus Antitrust Case
Inside Radio cited an amicus brief filed by ICLE on behalf of antitrust law and economics scholars in an article on Nielsen’s request for Supreme Court review of its dispute with Cumulus Media. The piece examines the case’s implications for bundled discounts and discusses the scholars’ argument that the appeals court’s ruling leaves judges supervising prices without a clear economic standard. Read the full article here.
A separate brief from a group of antitrust law and economics scholars makes a similar argument, focusing on the difficulty of determining when a standalone price becomes unlawfully high compared with a discounted package. The group, represented by the International Center for Law & Economics, argues the Second Circuit has effectively given federal judges the responsibility of regulating prices without establishing a clear economic standard for doing so.
They point to the appeals court’s finding that Cumulus would have paid $1.2 million more to purchase Nielsen’s Nationwide ratings separately and obtain local ratings from Eastlan than it would have paid for Nielsen’s bundled offering. The scholars contend that the difference shows which option was cheaper, but doesn’t establish whether Nielsen’s pricing unlawfully excluded competitors.
“A price gap alone cannot supply the missing distinction,” the brief says. The group also warns that businesses concerned about similar lawsuits could respond by reducing or eliminating package discounts. It points to bundled pricing across streaming services, software, e-commerce and artificial intelligence as examples of how broadly the Second Circuit’s reasoning could potentially apply.
The scholars also cite the continuing pricing dispute as evidence of the ruling’s problems. Judge Jeannette Vargas rejected Nielsen’s standalone rates and threatened $50,000 in daily penalties, an order now stayed pending appeal. They warn the ruling could leave courts indefinitely supervising business prices without clear standards.
Both amicus briefs ask the Supreme Court to take Nielsen’s case, although neither changes the injunction or the pending enforcement appeal. For now, the justices haven’t decided whether to hear Nielsen’s challenge.