S1094-118

1. Short title This Act may be cited as the Journalism Competition and Preservation Act of 2023.

3. Framework for certain joint negotiations An eligible digital journalism provider shall provide public notice to announce the opportunity for other eligible digital journalism providers to join a joint negotiation entity for the purpose of engaging in joint negotiations with a covered platform under this section, regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity. During the 60-day period beginning on the date public notice is made under subparagraph (A), any eligible digital journalism provider may apply to join the joint negotiation entity. A joint negotiation entity is established upon the agreement of 2 or more eligible digital journalism providers, and may create admission criteria for membership unrelated to the size of an eligible digital journalism provider or the views expressed by its content, including criteria to limit membership to only eligible publishers or only eligible broadcasters. By a majority vote of its members, a joint negotiation entity formed under this section shall establish rules and procedures to govern decision making by the entity and each eligible digital journalism provider shall be entitled to 1 vote on any matter submitted to a vote of the members. After the expiration of the 60-day period described in subparagraph (B), an eligible digital journalism provider may apply to join the joint negotiation entity, and may be admitted to the joint negotiation entity upon a majority vote of its members, if the applicant otherwise satisfies any criteria for admission established by the joint negotiation entity. A joint negotiation entity may designate agents on a nonexclusive basis— to engage in negotiations with a covered platform conducted under this section; and to agree to pay or receive payments under or related to an agreement negotiated under this section or an arbitration decision issued under section 4. After becoming a member of the joint negotiation entity, an eligible digital journalism provider may opt out of the joint negotiation entity at any time before notice is sent to the covered platform under paragraph (2). If an eligible digital journalism provider opts out of a joint negotiation entity under clause (i), the eligible digital journalism provider may not— rejoin the joint negotiation entity; or receive any payment under or related to an agreement negotiated by the joint negotiation entity under this section or an arbitration decision issued under section 4. A joint negotiation entity will terminate and cease to exist— when the entity no longer has at least 2 members; upon a majority vote of its members; or upon the expiration or termination of an agreement negotiated under this section or an arbitration decision issued under section 4. A joint negotiation under this section shall commence after a covered platform receives a notice, sent by or on behalf of a joint negotiation entity. The notice described in subparagraph (A) shall— state that the joint negotiation entity is initiating a negotiation under this section to reach an agreement regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity; identify the eligible digital journalism providers that are members of the joint negotiation entity; and provide the physical mail address (street address or post office box), telephone number, and email address of a representative authorized to receive a response to the notice on behalf of the joint negotiation entity. Not later than 30 days after receiving a notice described in subparagraph (A), the covered platform shall send a reply notice to the authorized representative identified by or on behalf of the joint negotiation entity to acknowledge receipt of the notice. Copies of any notice described in subparagraph (A) shall be filed by or on behalf of the eligible digital journalism providers that are members of the joint negotiation entity with the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice not later than 30 days after the notice is sent to the covered platform. After the date a reply notice is sent under subsection (a)(2)(C), the following shall apply: Any negotiation conducted under this section shall be conducted in good faith and solely to reach an agreement regarding the pricing, terms, and conditions under which the covered platform may access the content of the eligible digital journalism providers. No pre-agreement discussions or agreement reached regarding pricing, terms, and conditions under this section may address whether or how the covered platform or any such eligible digital journalism provider— displays, ranks, distributes, suppresses, promotes, throttles, labels, filters, or curates the content of the eligible digital journalism providers; or displays, ranks, distributes, suppresses, promotes, throttles, labels, filters, or curates the content of any other person. A party is not conducting negotiations in good faith in accordance with paragraph (1) if the party— refuses to negotiate, except where eligible digital journalism providers decide to jointly deny a covered platform access to content licensed or produced by such eligible digital journalism providers under subsection (c); refuses to designate a representative with authority to make binding representations; refuses to meet and negotiate at reasonable times and locations or otherwise causes unreasonable delay; refuses to put forth more than a single, unilateral proposal; fails to respond to a proposal of the other party, including the reasons for rejection; enters into a separate third-party agreement that unreasonably impedes the party from reaching an agreement with the negotiating party; or refuses to execute a full and written agreement that has been reached verbally. A covered platform is not conducting negotiations in good faith in accordance with paragraph (1) if the covered platform enters into a separate agreement with an eligible digital journalism provider that impedes the eligible digital journalism provider from participating in a negotiation under this section. During any negotiation conducted under this section, the joint negotiation entity and the covered platform shall each make a reasonable offer regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity, substantiated with comprehensive data and methodologies, including expert analysis, that reflects— the pricing, terms, and conditions comparable to those found in commercial agreements between similarly situated entities, including price, duration, territory, value of data generated directly or indirectly by the content; the fair market value to the covered platform of having access to the content of the eligible digital journalism providers that are members of the joint negotiation entity and the resulting incremental contribution to the revenue of the covered platform, including direct and indirect advertising or promotional revenues, which shall not be offset by any value conferred upon the eligible digital journalism providers that are members of the joint negotiation entity by the covered platform for aggregating or distributing their content; and the investment of the eligible digital journalism providers that are members of the joint negotiation entity in producing original news and related content, including the number of journalists employed by each. At any point after a notice is sent to the covered platform to initiate joint negotiations under subsection (a)(2), the eligible digital journalism providers that are members of the joint negotiation entity may jointly deny the covered platform access to content licensed or produced by such eligible digital journalism providers.

4. Arbitration for eligible publishers If the membership of a joint negotiation entity consists only of eligible publishers, on or after the date that is 180 days after the date negotiations under section 3 begin, the joint negotiation entity may initiate a final offer arbitration against the covered platform for an arbitration panel to determine the pricing, terms, and conditions by which the content displayed, provided, distributed, or offered by a qualifying publication of any eligible publisher that is a member of the joint negotiation entity will be accessed by the covered platform if the parties are unable to reach an agreement and regardless of whether the joint negotiation entity, its members, or the covered platform complied with the requirements of section 3(b). If an additional member joins the joint negotiation entity under section 3(a)(1)(E) more than 90 days after the date negotiations under section 3 begin, the joint negotiation entity may not initiate a final offer arbitration under paragraph (1) until 180 days after the date the last member joins the joint negotiation entity. No additional members may join the joint negotiation entity after the arbitration has commenced. The joint negotiation entity shall provide notice of its intention to initiate final offer arbitration under this section to all of the members of the joint negotiation entity no less than 10 days prior to initiating such final offer arbitration. If a joint negotiation entity initiates final offer arbitration under this section, any individual eligible publisher that is a member of the joint negotiation entity shall remain a member of the joint negotiation entity until the completion of the arbitration, unless the eligible publisher provides written notice to the joint negotiation entity of its intention to withdraw from the joint negotiation entity within 7 days of receiving notice under subsection (b). The arbitration shall be decided by a panel of 3 arbitrators under the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures and the American Arbitration Association-International Centre for Dispute Resolution Final Offer Arbitration Supplementary Rules, except to the extent they conflict with this subsection. A final offer arbitration under subsection (a) shall be initiated as provided in Rule R-4 of the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures, except that the joint negotiation entity initiating the arbitration shall refer to this Act in its demand for arbitration, rather than submitting contractual arbitration provisions. A final offer arbitration proceeding shall commence 10 days after the date a final offer arbitration is initiated under subsection (a). The cost of administering the arbitration proceeding, including arbitrator compensation, expenses, and administrative fees, shall be shared equally between the covered platform and the joint negotiation entity. The arbitrators shall be appointed in accordance with the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures. During a final offer arbitration proceeding under this section— the joint negotiation entity and the covered platform may demand the production of documents and information that are nonprivileged, reasonably necessary, and reasonably accessible without undue expense; documents and information described in subparagraph (A) shall be exchanged not later than 30 days after the date the demand is filed; rules regarding the admissibility of evidence applicable in Federal court shall apply; the joint negotiation entity and covered platform shall each submit a final offer proposal for the pricing, terms, and conditions under which the content displayed, provided, distributed, or offered by a qualifying publication of any eligible publisher that is a member of the joint negotiation entity will be accessed by the covered platform, and which shall include the remuneration that the eligible publishers should receive from the covered platform for programmatic access to the content of the eligible publishers that are members of the joint negotiation entity during the period under negotiation based on the fair market value of such access, which shall include backup materials sufficient to permit the other party to replicate the proffered valuation; no discussion or final offer under this section may address whether or how the covered platform or any such eligible digital journalism provider— displays, ranks, distributes, suppresses, promotes, throttles, labels, filters, or curates the content of the eligible digital journalism providers; or displays, ranks distributes, suppresses, promotes, throttles, labels, filters or curates the content of any other person; and if applicable, each eligible publisher that is a member of the joint negotiation entity shall provide information and data to guide the distribution of remuneration among the members of the joint negotiation entity, including— any compensation received by the eligible publisher through commercial agreement prior to commencement of negotiations under section 3 for access to content by the covered platform during any part of the period under negotiation, which shall be deducted from its allocation accordingly; and spending by the eligible publisher on news journalists, which are employed for an average of not fewer than 20 hours per week during the calendar quarter by the eligible digital journalism provider and are responsible for gathering, preparing, directing the recording of, producing, collecting, photographing, recording, writing, editing, reporting, presenting, or publishing original news or information that concerns local, regional, national, or international matters of public interest in the previous fiscal year, as a proportion of its overall budget of the eligible digital journalism provider for that period, which shall be used to guide 65 percent of the distribution of remuneration among the members of the joint negotiation entity. Not later than 60 days after the date proceedings commence under subsection (d)(3)(A), the arbitration panel shall issue an award that selects a final offer from 1 of the parties without modification. In issuing an award under paragraph (1), the arbitration panel— may not consider any value conferred upon any eligible publisher by the covered platform for distributing or aggregating its content as an offset to the value created by such eligible publisher; shall consider past incremental revenue contributions as a guide to the future incremental revenue contribution by any eligible publisher; shall consider the pricing, terms, and conditions of any available, comparable commercial agreements between parties granting access to digital content, including pricing, terms, and conditions relating to price, duration, territory, the value of data generated directly or indirectly by the content accounting for any material disparities in negotiating power between the parties to such commercial agreements; and shall issue a binding, reasoned award, including the factual and economic bases of its award, that applies for the number of years set forth in the winning proposal, but not fewer than 5 years. Not later than 90 days after the date an award is issued under subsection (e), the covered platform shall begin paying any eligible publisher that was a member of the joint negotiation entity participating in the arbitration according to the terms in the final offer selected by the arbitration panel. Payments made under paragraph (1) shall be dispersed by a claims administrator to the individual claimants that comprise the joint negotiation entity not later than 60 days after the date the funds were received from the covered platform. An award made under subsection (e) shall be enforceable by the eligible publishers or the covered platform subject to the award through a civil action brought before a district court of the United States. In any civil action to enforce or seek judicial review of an award made under subsection (e), the court shall adopt a rebuttable presumption that good cause exists to prioritize the action under section 1657 of title 28, United States Code.

5. Limitation of liability In accordance with sections 3 and 4, it shall not be in violation of the antitrust laws for any eligible digital journalism providers that are members of a joint negotiation entity to— jointly deny a covered platform access to content for which the eligible digital journalism providers, individually or jointly, have the right to negotiate or arbitrate access with respect to the covered platform; or participate in joint negotiations and arbitration, as members of the joint negotiation entity, with such covered platform solely regarding the pricing, terms, and conditions under which the covered platform may access the content for which the eligible digital journalism providers, individually or jointly, have the right to negotiate or arbitrate access with respect to the covered platform. An eligible digital journalism provider shall not be in violation of the antitrust laws if the eligible digital journalism provider participates, as a member of a joint negotiation entity, in negotiations under section 3 or arbitration under section 4— with a person that is not an eligible digital journalism provider, if the eligible digital journalism provider reasonably believes that the person is another eligible digital journalism provider; or with a person that is not a covered platform, if the eligible digital journalism provider reasonably believes that the person is a covered platform. A joint negotiation entity shall not be in violation of the antitrust laws if the joint negotiation entity engages in negotiations under section 3 or arbitration under section 4— with or on behalf of a person that is not an eligible digital journalism provider, if the joint negotiation entity reasonably believes that the person is an eligible digital journalism provider; or with a person that is not a covered platform, if the joint negotiation entity reasonably believes that the person is a covered platform. The parties to any written agreement, resulting from a negotiation under section 3 or implementing an arbitration decision issued under section 4, shall file a copy of such agreement with the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice not later than 60 days after such agreement is executed. The parties to any arbitration decision issued under section 4, shall file a copy of such decision with the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice not later than 60 days after such decision is issued. The Federal Trade Commission shall make the documents submitted under this subsection available to the public on the Federal Trade Commission’s website. No antitrust immunity shall apply to any negotiations, discussions, agreements, or arbitrations relating to the use, display, promotion, ranking, distribution, curation, suppression, throttling, filtering, or labeling of the content of the eligible digital journalism provider or of any other person. The limitation of liability under this section shall apply only to negotiations, discussions, agreements, or arbitrations regarding the pricing, terms, and conditions under which the covered platform may access the content of the eligible digital journalism provider, not to any discussions or agreements that differentiate content based on the viewpoint expressed by such content.

6. Nondiscrimination, retaliation, and transparency A joint negotiation entity may not discriminate against any eligible digital journalism provider based on the size of the eligible digital journalism provider or the views expressed by the eligible digital journalism provider’s content. No covered platform may discriminate against any eligible digital journalism provider that is a member of a joint negotiation entity in connection with a negotiation conducted under section 3, or an arbitration conducted under section 4, based on the size of the eligible digital journalism provider or the views expressed by the eligible digital journalism provider’s content. No covered platform may retaliate against an eligible digital journalism provider for participating in a negotiation conducted under section 3, or an arbitration conducted under section 4, including by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform. Any provision in an agreement that restricts an eligible digital journalism provider from receiving compensation through a negotiation conducted under section 3 or an arbitration conducted under section 4 shall be void. Without disclosing confidential information regarding the pricing, terms, and conditions of an agreement reached under section 3, an agreement implementing an arbitration decision issued under section 4, or an arbitration decision issued under section 4, or confidential financial information, any eligible digital journalism provider that receives funds under or related to such agreement or arbitration decision shall provide to the Federal Trade Commission, on an annual basis, information regarding the use of any such funds during the prior year to support ongoing and future operations to maintain or enhance the production and distribution of news or information that concerns local, regional, national, or international matters of public interest, including— the amount of funds received under or related to each such agreement or decision; and a good-faith estimate of the amount of funds that went to news journalists employed for an average of not fewer than 20 hours per week during the calendar year by the eligible digital journalism provider. The Federal Trade Commission shall make the disclosures submitted under paragraph (1) available to the public on the Federal Trade Commission’s website.

7. Private rights of action Any eligible digital journalism provider, either jointly with other eligible digital journalism providers or through an authorized representative, or covered platform that participated in negotiations under section 3 may bring a civil action in an appropriate district court of the United States alleging a violation of section 3(b). A court shall award damages to a prevailing plaintiff under this subsection— approximating the value of the last reasonable offer of the plaintiff if the defendant did not conduct negotiations in good faith in violation of section 3(b)(1); approximating the value of the last reasonable offer of the plaintiff if the defendant— did not conduct negotiations in good faith in violation of section 3(b)(1); and had not yet extended a reasonable offer; or approximating the value of the plaintiff’s last reasonable offer if the defendant did not make a reasonable offer in violation of section 3(b)(5). A court shall award attorney's fees to the prevailing party under this subsection. An eligible digital journalism provider that is denied membership in a joint negotiation entity in violation of section 6(a)(1) may bring a civil action in an appropriate district court of the United States against the joint negotiation entity and its members not later than 30 days after the date membership is denied. An eligible digital journalism provider that prevails in an action under subparagraph (A) before the date an agreement is executed under section 3 or an arbitration decision is issued under section 4, as applicable, regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity, may join the joint negotiation entity and participate in the negotiation under section 3 or the arbitration under section 4, as applicable. A notice, by or on behalf of the joint negotiation entity, shall be sent to the covered platform to identify the eligible digital journalism provider that joins the negotiation or arbitration under subclause (I). An eligible digital journalism provider that prevails in an action under subparagraph (A) after the date an agreement is executed under section 3 or an arbitration decision is issued under section 4, as applicable, regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity, may join the joint negotiation entity and be eligible for the same pricing, terms, and conditions by which the covered platform may access the content of the other eligible digital journalism providers that are members of the joint negotiation entity. A notice, by or on behalf of the joint negotiation entity, shall be sent to the covered platform to identify the eligible digital journalism provider that joins the joint negotiation entity under subclause (I) and that is eligible to receive the same pricing, terms, and conditions under the agreement negotiated under section 3 or the arbitration decision issued under section 4, as applicable, by which the covered platform may access the content of the other eligible digital journalism providers that are members of the joint negotiation entity. An eligible digital journalism provider that is discriminated against in violation of section 6(a)(2) may bring a civil action in an appropriate district court of the United States against the covered platform. An eligible digital journalism provider that prevails under subparagraph (A) shall be entitled to— recover the actual damages sustained by the eligible digital journalism provider as a result of the discrimination; injunctive relief on such terms as the court may deem reasonable to prevent or restrain the covered platform from discriminating against the eligible digital journalism provider; and the costs of the suit, including reasonable attorneys’ fees. An eligible digital journalism provider that is retaliated against in violation of section 6(b)(1) may bring a civil action in an appropriate district court of the United States against the covered platform. An eligible digital journalism provider that prevails in an action under paragraph (1) shall be entitled to— recover the actual damages sustained by the eligible digital journalism provider as a result of the retaliation; injunctive relief on such terms as the court may deem reasonable to prevent or restrain the covered platform from retaliating against the eligible digital journalism provider; and the costs of the suit, including reasonable attorneys’ fees.

8. Report The Comptroller General shall study the impact of the joint negotiations authorized under this Act, including a summary of the deals negotiated, the impact of such deals on local and regional news, the effect on the free, open, and interoperable Internet including the ability of the public to share and access information, and the effect this Act has had on employment for journalists. Not later than 5 years after the date of enactment of this Act, the Comptroller General shall submit to Congress a report on the study required under subsection (a).

9. Sunset Except as provided in subsections (b) and (c), this Act shall cease to have effect on the date that is 6 years after the date of its enactment. With respect to eligible digital journalism providers that have initiated but not concluded a negotiation under section 3 or an arbitration under section 4 on or before the sunset date described in subsection (a), this Act shall cease to be effective on the date such negotiation or arbitration concludes or 180 days after the date described in subsection (a), whichever occurs first. Section 5 shall remain effective without cessation for any— negotiation conducted or agreement executed under section 3; arbitration conducted or arbitration decision issued under section 4; or agreement implementing an arbitration decision issued under section 4;

10. Rule of construction Nothing in this Act may be construed to modify, impair, or supersede the operation of the antitrust laws except as otherwise expressly provided in this Act. Nothing in this Act may be construed to modify, impair, expand, or in any way alter rights pertaining to title 17, United States Code, or the Lanham Act (15 U.S.C. 1051 et seq.)

11. Severability If any provision of this Act, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of the remaining provisions of this Act to any person or circumstance shall not be affected.