A majority of almost a thousand Republican voters polled support giving news publishers a limited antitrust safe harbor to be able to jointly negotiate better terms for Big Tech platforms' use of their news product.

That is according to a poll from Echelon Insights commissioners by the News Media Alliance, a coalition of publishers seeking passage of the Journalism Competition and Preservation Act (JCPA), which would create such a safe harbor.

Also Read: Big Media Takes on Big Tech

The survey found that 73% of Republicans polled said that "local news outlets and conservative media need to be able to band together to better negotiate a fair deal with Big Tech."

Even more (75%) said that they thought Big Tech "should not be allowed to profit from news content unless it is fairly compensating news organizations."

Almost as many (70%) said they thought that Facebook and Google were taking advantage of news outlets in one-on-one negotiations, and ignoring "small, local, and conservative news publishers, leaving them out of negotiations entirely."

Republican lawmakers who have issues with the bill want to make sure the safe harbor applies equally to conservative and smaller media.

The survey found that two thirds of the respondents said that elected officials who oppose the JCPA would be allowing Big Tech to have all the negotiating power.

The political climate might finally be ripe for giving news publishers more clout in negotiations with the Big Tech platforms that draw eyeballs and ad dollars by aggregating the original work of others, including cable and broadcast news operations. Media outlets have been pushing Congress for more negotiating power for several years.

Proponents said a continuing power imbalance could be the death of independent local journalism.

Several factors are at work to give the latest shot at collective bargaining a chance. The COVID-19 pandemic put an even greater emphasis on access to the latest news on everything from vaccine availability to what is opened or closed to what is safe to do. Then there is the flood of fake news, particularly online, that has put a premium on trusted news sources, the kinds that take money to invest in reporters and editors and bureaus and fact-checkers.

Add in the fact that the Big Tech platforms like Google and Facebook — the 800-pound gorillas with whom news outlets must negotiate — aren’t high on Capitol Hill’s holiday card list, over concerns ranging from data breaches and promoting extremism to antitrust issues and Republican assertions of anti-conservative bias, and a bipartisan push for collective news bargaining could have legs after several years of trying.

The political climate might finally be ripe for giving news publishers more clout in negotiations with the Big Tech platforms that draw eyeballs and ad dollars by aggregating the original work of others, including cable and broadcast news operations. Proponents say the alternative could be the death of independent local journalism. That’s hyperbole, perhaps, but maybe now with a louder ring of truth.

Several factors are at work to give the latest shot at collective bargaining a chance. The COVID-19 pandemic has put an even greater emphasis on access to the latest news on everything from vaccine availability to what is opened or closed to what is safe to do. 

Then there is the flood of fake news, particularly online, that has put a premium on trusted news sources, the kinds that take money to invest in reporters and editors and bureaus and fact-checkers. 

Add in the fact that the Big Tech platforms like Google and Facebook — the 800-pound gorillas with whom news outlets must negotiate — aren’t high on Capitol Hill’s holiday card list, over concerns ranging from data breaches and promoting extremism to election ads and antitrust issues, and a bipartisan push for collective news bargaining could have legs after several years of trying.

Seeking a ‘Fair Chance’

David Chavern, president of the News Media Alliance, representing more than 2,000 publishers, said the campaign represented by the Journalism Competition and Preservation Act is really only a “fair chance” for the news media to fight for themselves. “Today, local journalism is under threat because the dominant digital platforms control access to audiences and refuse to fairly value what we provide,” Chavern has said in pushing for the legislation.

He has willing listeners on both sides of the aisle. Sens. John Kennedy (R-La.) and Amy Klobuchar (D-Minn.), political opposites in the chamber, said the Journalism Competition and Preservation Act would give "news content creators" — print, broadcast or digital — an antitrust safe harbor to negotiate collectively with digital platforms like Facebook and Google for carriage of their original content.

Rep. David Cicilline (D-R.I.), the House antitrust subcommittee chairman who is backing a similar bill, argued that if the balance of power remains as it is, Big Tech’s dominance of digital advertising could be an “extinction-level event” for local media. 

Similar bills have tried, and failed, to provide a safe harbor before, and a recent effort in Australia made headlines when Facebook pulled Australian news sources from domestic news feeds. (Facebook restored the Australian sources after legislators proposed tweaks to the law.) 

But the new pandemic-driven normal, with edge providers seen increasingly as gatekeepers rather than as tenders of the virtuous internet garden, might improve the bill’s prospects.

The bill would grant publishers immunity from federal and state antitrust laws for a 48-month period while they bargain collectively with digital platforms.

News content creators are defined as outlets with a dedicated professional editorial staff that create and distribute original news and related content concerning local, national or international matters of public interest on at least a weekly basis, and are marketed via subscriptions, advertising or sponsorship. 

They include operations that provide original news and related content, at least 25% of which is current news and related content, or broadcast original news and related content via an FCC license.

The online content distributors that publishers would collectively negotiate with must have at least 1 billion active users per month on all their websites worldwide, so the bill is clearly aimed at the biggest platforms.

Seeking a Safe Harbor

Publishers under the News Media Alliance banner have for years been trying to get Congress to give news publishers a limited safe antitrust harbor so they can get tech platforms — Facebook and Google most notably — to pay for use of their content. That’s because the tech platforms “take most of the advertising revenue sold against that content,” the NMA contends, adding that “[a]dvertising revenue that previously went to the news publishers and allowed them to reinvest in quality journalism is now going to the platforms.” 

The bill says the joint negotiation is only allowed so long as negotiations are: not limited to price (no price fixing); are nondiscriminatory as to similarly situated news content creators; are directly related to the quality, accuracy, attribution or branding, and interoperability of news; and involve terms available to all news content creators.

The coordination among bidders has to be directly related to and reasonably necessary for negotiations with an online content distributor and cannot involve any person that is not a news content creator or online content distributor.

“We must enable news organizations to negotiate on a level playing field with the big tech companies if we want to preserve a strong and independent press," Klobuchar said of the bill. "This bipartisan legislation will improve the quality of reporting and ensure that journalists are able to continue their critical work. Our media outlets need a fighting chance when negotiating for fair treatment by the digital platforms where so many Americans consume their news.” 

Some congressional Republicans are warning about helping one powerful constituency against another. They suggested that The New York Times, for example, is plenty powerful on its own without letting it team up with other publishers, digital and otherwise. Broadcasters, though, argue that the power is squarely in the hands of Big Tech.

Local Ad Revenues at Risk

At a recent House antitrust subcommittee hearing on “Saving a Free and Diverse Press,” Graham Media Group president Emily Barr, who chairs the National Association of Broadcasters TV board, told Congress: “The market power of the tech platforms undermines the online advertising model for local broadcast journalism in two significant ways. First, the tech platforms’ role as content gatekeepers stifles our ability to generate user traffic independent of their services. Second, anti-competitive terms of service and a ‘take it or leave it’ approach leave local broadcasters with a below-market sliver of those advertising revenues that are derived through their products.”

Barr, like Chavern, views the current imbalance as an extinction-level event. 

“If we do nothing, local, independent journalism will not thrive,” she said. “Indeed, it may not even survive.”

Electronic and print news outlets have joined with Fix the Court to ask James Duff, director of the Administrative Office of the U.S. Courts, and the executives running the 13 federal circuits to ensure there is live, unfettered public access to any court hearing and judges' ruling related to the election.

That stems from technical issues with the Texas court decision Monday (Nov. 2) rejecting a Trump campaign attempt to invalidate drive-in-dropbox ballots. The phone line set up to provide access to that hearing malfunctioned and dropped everyone, said the outlets in a letter to Duff Tuesday (Nov. 3), after which only some outlets were allowed to get back on, and even then the audio quality was so bad, compounded by the fact that the reporters' lines were not muted, that it made it "almost impossible to understand."

They offered some suggestions to avoid a repeat of those issues for the existing and expected legal challenges surrounding the election. "There are dozens of election lawsuits making their way through district and appeals courts at this very moment, and the American people have a keen interest in how these cases are being argued and how they are being decided," they told Duff.

1. Allow district courts to use YouTube channels, which most circuits have created for audio appeals during the pandemic.

2. Work with the local media outlets to create a pool feed of the arguments.

3. Tweet, send a press release, and or post on the court home page if there are delays and technical issues

Joining in the letter were the Radio Television Digital News Association, the National Press Photographers Association, the News Media Alliance, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists.

The News Media Alliance, which represents local news outlets--print, broadcast, and online--has launched a News Impact Project to promote the value of local news publishers. 

That comes as the group is trying to get online news aggregators to better compensate them, or compensate them at all, for that high-value content. 

NMA argues that local content is vital to communities and that being able to monetize that content is vital to its survival.

Related: NMA Says Facebook Is De Facto News Publishing Regulator

A central feature of the project is a new News Impact Index of stories by alliance members that have had a positive impact on communities. The alliance said that index "provides compelling evidence of the critical role of and need for high-quality local journalism to ensure an informed society." 

The stories include ones on speeding ticket fines, mass evictions, tainted drugs, untested sex assault kits, possible false imprisonment, and one that hit close to home--newspapers being trashed in dumpsters rather than delivered. 

The group representing mainstream media outlets wants a memorial on federal land in Washington to honor journalists who have died while doing their service to the country. 

Related: Embattled Journalists Named Time Person of the Year 

The News Media Alliance represents news organizations often characterized by the President as fake and failing, but who routinely dispatch journalists to dangerous places to insure their are witnesses to history, good and bad. 

NMA said that "given increased attacks on members of the press in recent years," it is time for such a tribute. A foundation for that purpose has already been established to raise the requisite funds. 

The alliance has asked the National Capital Memorial Advisory Commission*, which is meeting Tuesday (Sept. 24) to back that proposal. Various legislators have sponsored H.R.3465, the Fallen Journalists Memorial Act of 2019 (S. 1969 in the Senate), which "authorizes the Fallen Journalists Memorial Foundation to establish a commemorative work on federal land in commemoration of the sacrifices made by journalists for a free and independent press."  

The memorial would be privately funded. 

While the bill has not passed, the commission must approve of the plan before the planning process could move forward in any event. The commission will be considering that plan at Tuesday's meeting.  

“Over our nation’s history, hundreds of U.S. journalists have died doing their jobs so that the American public could stay informed on important matters of the day and world events. When a journalist is killed in the line of duty, the entire community suffers, but outside of their newsrooms, they rarely receive the recognition they deserve for their sacrifice," said NMA president and CEO David Chavern." (The Newseum in Washington has maintained a memorial to fallen journalists, but it is closing at the end of the year due to financial issues.  

"We strongly encourage the Commission to support our efforts for this memorial and recommend its establishment to the U.S. Congress," said Chavern. 

* According to the Commission it was established "to advise the Secretary of the Interior and the Administrator, General Services Administration, on policy and procedures for establishment of, and proposals to establish, commemorative works in the District of Columbia and its environs."

News outlets took aim at Google Friday, saying its "Together for Copyright" campaign belied the facts that the European Union

Copyright Directive proposal the campaign is citicizing protects publishers and that the changes Google is pushing would limit access to "high-quality" online news in Europe.

"Currently, online platforms such as Google and other corporate businesses can use – and make money from – publishers’ online news content every day, paying the publishers nothing," said the News Media Alliance. "For obvious reasons, Google would prefer to keep the status quo and go on using publishers’ content for free, but this is not a fair and equitable arrangement for news publishers, many of whom are already struggling with decreased revenues from shifting preferences away from print, and advertisers electing to give their dollars to the platforms."

Under the Publishers Right, Google would have to negotiate for a license with publishers to distribute their news in EU countries and would be liable for any infringing uses of copyrighted material on their platforms at the time it is uploaded, rather than having the notice and takedown process as there is in the U.S.

The Alliance said Google is making false claims about the Publisher's Right, a right film and music creators in the EU already have.

Google has said the EU proposal has "unintended consequences" that could threaten hundreds of thousands of jobs and lead to the blocking or limiting of content on YouTube and Google Search.

"Any service that hosts uploads, including YouTube, would be held liable at the moment of upload for any copyright infringement," says Google of the EU proposal. "Services could have no choice but to block existing and newly uploaded videos in the European Union with unknown or disputed copyright information, in order to avoid legal liability."

Google also wants the EU to define the "quality journalism" that should be protected, a definition "that specifies news content by news publishers."

"Google claims it wants to help journalists find an audience and make a living, yet the changes they are proposing to Article 11 would weaken publishers’ rights to protect their content," says the Alliance. "Contrary to what Google claims in its campaign, adopting a strong Publishers’ Right would ensure the public’s continued access to a diverse pool of information online."

The alliance has told the Federal Trade Commission that edge giants like Google and Facebook are using their market power to force practices on their members that threaten the viability of the news business. https://www.broadcastingcable.com/news/newspapers-to-ftc-digital-deck-is-stacked-against-quality-journalism.

Facebook CEO Mark Zuckerberg continues to get advice from inside and outside the Beltway as he prepares to testify on Capitol Hill this week in the wake of the Cambridge Analytica data sharing flap.

The News Media Alliance, which represents newspapers across the country, summed its message up in three words: "Support Real News, a message it is sending in an ad it has produced welcoming the Facebook founder to D.C.

"As a major source for news, Facebook has an obligation not only to be transparent about their data-sharing and usage practices [the subject of a pair of hearings at which Zuckerberg is scheduled to testify] "but they have a duty to ensure their users have access to high-quality, real news. Facebook benefits greatly from having this quality news content on their platforms, which they use to attract digital ad dollars. It is time they acknowledge this and respond by prioritizing quality news produced by real, professional journalists in their algorithms and in the News Feed."

Related: Powell Says Facebook Troubles Expose Myth of Openness

NMA launched a "Real News" campaign to try to get social media sites to prioritize curated journalism over the echo-chamber of 'fake news.'

"[W]e have argued that Facebook should give priority to news from trusted sources," NMA said back in January in response to this post from Zuckerberg. This would be positive for consumers, as well as help to address “fake news” issues.

The News Media Alliance is calling on Congress to give its members the power to negotiate collectively with edge behemoths so they can claim some of the ad dollars bypassing them on their way to Google and Facebook.

In an op ed Monday (Feb. 26) in the Wall Street Journal, Alliance president David Chavern said that Rep. David Cicilline (R-R.I.) plans to introduce a bill that would give news publishers an antitrust safe harbor that would allow such collective negotiation with "big tech platforms."

The Alliance represents about 2,000 publishers, mostly newspapers.

Related: FTC Could Cast GAze on Big Tech

"The news business is suffering," Chavern wrote, "but not because people don’t want news. They do—more than ever. The problem is that the money generated by news audiences flows mostly to Google and Facebook, not to the reporters and publishers who produce excellent journalism."

He said that digital duopoly now grabs 83% of all digital ad revenue growth and 73% of U.S. digital advertising, according to a CNBC report.

“Facebook and Google have become the primary and de facto regulators of the news business, and governments around the world are starting to recognize the danger,” Chavern said, while the Federal Trade Commission failed to act on a 2013 inquiry into the pair's "anticompetitive practices," he said, adding that the least the U.S. government can do is get out of the way and let news outlets try to protect themselves and their audience.

WASHINGTON — Edge providers are beginning to take more heat in the nation’s capital.

The bigger edge providers — companies that provide online applications, content or services, such as Google, Facebook or Yahoo — are being branded as gatekeepers of information, and getting called out as non-neutral online content arbitrators. That was once the exclusive province of internet service providers such as Comcast, AT&T and others, who have been branded as the snakes in the virtuous circle of content to network to consumer.

The doesn’t mean the pressure is off ISPs, particularly on the issue of Title II reclassification, but the vice is starting to twist more on Silicon Valley poster companies that pretty much got a pass in discussions about controlling the overall access to information.

The turning of that bitter worm was clear as one prominent House Democrat laid into edge providers, and at an Oct. 24 House hearing on political advertising saw newspaper publishers roll up their collective editions and spank Google and Facebook as peddlers of fake news for a buck.

Democrats on the House Energy & Commerce Committee have been talking among themselves about the optics of leaving edge providers out of the speech debate, particularly given the rise of fake news — i.e., the real kind, rather than the accusations of President Donald Trump against mainstream media.

Related: Some Troubled by 'Trump TV'

That came to something of a head, or at least to a signal of changing political fortunes, when Rep. Frank Pallone (D-N.J.) requested a briefing with edge providers that he accused of shaping news content.

“With a goal of ad clicks or driving page views, these companies’ policies are not neutral; they actively shape content on the web,” said Pallone, who sent a letter to Google, Facebook and Twitter seeking a briefing on their policies for “moderating content and advertising” as social media’s role in fake news and Russian election meddling swirled inside the Beltway.

Pallone was also responding to reports of vague, confusing and inconsistently applied content guidelines.

A Hill source said Democrats on the Energy & Commerce Committee are clearly trying to include tech firms in conversations about their role in net neutrality and the First Amendment going forward.

“The influence of the internet over our national dialogue and our lives has skyrocketed over the past decade,” Pallone said. “At the same time, the number of websites handling this traffic has consolidated to a handful of key platforms. The combination of these trends has led to these few companies taking on a quasi-governmental role policing content.”

Page Views vs. Page Turns
Pallone suggested that inconsistent application may be tied to the desire to boost page views and ad clicks, foreshadowing the complaints of the News Media Alliance at a hearing on political advertising last week.

Only a day after Pallone’s letter was made public, the head of the News Media Alliance, which represents almost 2,000 newspapers, pressed the issue in a hearing with House members on political advertising and a bill, the Honest Ads Act, that would require broadcast-live disclosures on online political ads.

Related: NMA Says Google, Facebook Business Models Fuel Fake News

While ISPs have gotten used to being called internet gatekeepers on Capitol Hill, NMA president David Chavern said that Google, Facebook and other edge players are news gatekeepers that have fueled fake news and “harmed the integrity of content and advertising.”

That’s because the edge business model is based on “not exercising responsibility over the integrity of content of the advertising that sustains its foundation,” Chavern told the House Oversight Committee’s Information Technology Subcommittee.

Chavern said that the public “should no longer have to suffer from unreliable information because it is profitable, while producers of content [such as his newspaper members] continue to hold ourselves to a higher standard.”

The head of the News Media Alliance, which represents almost 2,000 newspapers, told a House committee Tuesday (Oct.24) that Google, Facebook and other edge players are news gatekeepers that have fueled fake news and "harmed the integrity of content and advertising."

That is because the edge business model is based on "not exercising responsibility over the integrity of content of the advertising that sustains its foundation," David Chavern, NMA president, said during a House Oversight Committee Information Technology Subcommittee hearing on political ad laws and how they may need to be changed or updated in the digital era and in the wake of revelations Russian Facebook and Google ads targeted to influence the 2016 presidential election.

"It is now time that Google and Facebook be asked to make the same commitments as publishers and modernize their platforms to help stem the flow of misinformation — a problem that is largely of their own making," Chavern said.

Related: Publishers Seek Hill Help Against Digital Duopoly: Facebook, Google

He said Federal Election Commission rules should require disclosures within internet ads, and that Google and Facebook should update their business models to elevate reputable content in search and news feeds.

Chavern said the public "should no longer have to suffer from unreliable information because it is profitable, while producers of content [like his newspaper members] continue to hold ourselves to a higher standard."

A group representing Newspaper Publishers including the Washington Post and New York Times, have called on Congress to allow them to negotiate as a group with the dominant online news content platforms, Facebook and Google.

They argue that legislation is necessary for the long-term survival of journalism in the face of a "digital duopoly" they claim is sucking up most of the online ad revenue and whose distribution platforms have given rise to fake news.

They want to be able to get together to talk to those dominant edge providers about new business models to secure the long-term viability of news in America.

"To ensure that such journalism has a future, the news organizations that fund it must be able to collectively negotiate with the digital platforms that effectively control distribution and audience access in the digital age," said David Chavern, president of the News Media Alliance, of what the alliance calls the "digital duopoly" of Google and Facebook.

Those two platforms claim the lion's share of digital ad revenue, the alliance points out. It says its 2,000 or so members need to be able to combine their negotiating power against "a de facto duopoly that is vacuuming up all but an ever-decreasing segment of advertising revenue."

"Consumer demand for immediate, reliable information is growing, but the current online distribution systems are distorting the flow of economic value derived from good reporting," they add. "Google and Facebook dominate online news traffic and consume the bulk of digital ad revenue. Because of this digital duopoly, publishers are forced to surrender their content and play by their rules on how news and information is displayed, prioritized and monetized. These rules have commoditized the news and given rise to fake news, which often cannot be differentiated from real news."