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Big Tech News Negotiation Antitrust Safe Harbor Bill Introduced

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Political opposites Sens. John Kennedy (R-La.) and Amy Klobuchar (D-Minn.) have teamed up to try and boost the fortunes of news operations.

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.

Similar bills have tried, and failed, to provide that safe harbor before.

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Specifically, the bill grants 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 ones with 1) "a dedicated professional editorial staff that creates and distributes original news and related content concerning local, national, or international matters of public interest on at least a "weekly basis; 2) are marketed via subscriptions, advertising, or sponsorship. 

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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 per an FCC license.

The online content distributors publishers get to collectively negotiate with must have one billion active users per month on all their websites worldwide, so it is clearly aimed at the biggest platforms.

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 given that they "take most of the advertising revenue sold against that content," adding that "advertising revenue that previously went to the news publishers and allowed them to reinvest in quality journalism is now going to the platforms." 

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The bill said the joint negotiation is only allowed so long as negotiations are 1) not limited to price (no price fixing); 2) are nondiscriminatory as to similarly situated news content creators; 3) are directly related to the "quality, accuracy, 13 attribution or branding, and interoperability of news;" and 4) 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," said Klobuchar. "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.”

Back in March 2019, in March, the European Union adopted a Copyright Directive that gives news outlets and other content producer more muscle in enforcing their rights over the content they create. U.S. news outlets would like similar muscle here at home. 

“[The National Association of Broadcasters] commends Reps. David Cicilline and Ken Buck, Sens. Amy Klobuchar and John Kennedy and their bipartisan cosponsors for reintroducing legislation allowing news publishers such as local broadcasters to collectively negotiate the terms on which their content may be distributed online [said NAB President Gordon Smith. "For too long, a handful of dominant tech platforms have unilaterally set policies impeding media outlets’ ability to reach audiences, attract advertisers and monetize their news content. The Journalism Competition and Preservation Act would afford news producers the ability to negotiate a fair return for their local journalism that serves America's communities. We look forward to working with stakeholders and members of Congress on passing this legislation into law."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.