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Second Circuit Affirms Preliminary Injunction Enjoining National Ratings Business Network Policy As Unlawful De Facto Tying Arrangement
08/04/2026On July 13, 2026, the United States Court of Appeals for the Second Circuit affirmed, and un-paused, a preliminary injunction issued by the United States District Court for the Southern District of New York barring defendant from enforcing its “Network Policy.” Cumulus Media New Holdings Inc. v. The Nielsen Co. (US), LLC, No. 26-88 (2d Cir. July 13, 2026).
The Panel held that the lower court’s finding that plaintiff met the requirements for obtaining preliminary relief was not an abuse of discretion.
Plaintiff, who sells ad inventory for its 395 radio stations and large national syndication network, is a customer of defendant, a major audience-measurement firm that, in part, supplies local and nationwide radio ratings data used to sell network advertising. Historically, plaintiff purchased national ratings data from defendant while purchasing local-market ratings data from defendant’s competitor, Eastlan. In 2024, defendant adopted the “Network Policy,” which excludes local ratings from the national product if the customer does not purchase both local and national ratings data. The Network Policy effectively forced national customers, like plaintiff, to purchase defendant’s local ratings data to receive complete national data. Here, the dispute concerned whether a higher price offered by defendant to plaintiff for defendant’s complete national ratings data product could constitute a de facto or constructive tying arrangement.
When plaintiff’s national ratings contract with defendant expired at the end of 2025, defendant required plaintiff to buy local data in all 80 of plaintiff’s local markets or accept a standalone nationwide price roughly ten times higher than plaintiff’s expiring rate to continue receiving a complete national ratings product. Plaintiff brought a lawsuit alleging that defendant’s Network Policy amounted to willful maintenance of monopoly power through an anticompetitive tying arrangement in violation of Section 2 of the Sherman Act.
In December 2025, the Southern District of New York found defendant’s Network Policy was an unlawful tying agreement and enjoined defendant from enforcing its Network Policy and from charging a commercially unreasonable rate for its standalone nationwide radio ratings data. The district court held that defendant’s constructive tie was illegal per se without a showing of anticompetitive effect because defendant is a monopolist, and, alternatively, that defendant’s Network Policy and standalone offer had anticompetitive effects in the local ratings data markets. Defendant appealed to the Second Circuit.
The Second Circuit reviewed the lower court decision to determine whether plaintiff met the standard for obtaining a preliminary injunction, which includes “a clear or substantial likelihood of success on the merits” and irreparable harm.
Turning to the merits, the Court assessed whether plaintiff sufficiently showed that the Network Policy amounted to an unlawful tying policy. To show that a tying policy is unlawful, a plaintiff must show that it forces a buyer to purchase a tied product that the buyer either did not want at all or might have preferred to purchase elsewhere on different terms, and that the policy has an anticompetitive effect. Defendant did not dispute that its Network Policy constituted an express tie, as the District Court found, rather the central issue on appeal was whether defendant’s subsequent standalone pricing constituted an illegal “constructive tie.” Defendant argued that it’s standalone pricing did not illegally tie the sale of nationwide data to its local data because “constructive” tying is not a viable theory of Sherman Act and even if it were, defendant did not coerce plaintiff into purchasing its local data.
The Court held that constructive tying is a valid Section 2 theory of liability. The Court reasoned that a monopolist cannot impose non-cost-justified price differentials that replicate an express tying policy with de facto tying that “leav[e] the buyer with only one economically rational choice: to purchase the products together.” Because defendant’s standalone offer came after months of negotiation in which plaintiff unmistakably sought only a subset of local markets, and the $1.2 million gap lacked cost justification, the pricing constituted actual coercion.
The Court also upheld the finding of anticompetitive effects, concluding the Network Policy foreclosed defendant’s competitor from the largest broadcasters and prevented it from achieving competitive scale. Because the Court found no error in the district court’s holding that defendant’s Network Policy and standalone offer had anticompetitive effects in the local ratings data markets, it did not reach the question of whether tying can constitute a per se violation of Section 2.
On irreparable harm, the Court agreed that plaintiff showed likely loss of customers, goodwill, and market share. It found the district court erred harmlessly in also relying on consumer-harm and competition-reduction theories applicable only to public enforcement. Therefore, the Court affirmed the injunction, vacated the stay order, and remanded the case back to district court.
This decision is notable as a significant appellate endorsement of the constructive tying doctrine under Section 2 of the Sherman Act.
Antitrust Litigation