Negotiations gain Judiciary Committee votes for JCPA

The Journalism Competition and Preservation Act cleared another hurdle Sept. 22, when the proposed legislation passed the Senate Judiciary Committee by a 15-7 vote.
“Now that this bill has advanced through the Judiciary Committee with a strong bipartisan vote, I look forward to working with my colleagues on both sides of the aisle to get it passed by the full Senate and signed into law,” bill co-sponsor Sen. Amy Klobuchar (D-Minnesota) said in a statement released after the committee hearing. Sen. John Kennedy (R-Louisiana) co-sponsored the bill in the Senate. House sponsors are Rep. David Cicilline (D-Rhode island) and Rep. Ken Buck (R-Colorado)
The vote to advance the bill out of committee followed two weeks of negotiations between Klobuchar and Senator Ted Cruz (R-Texas) after she pulled a vote on her bill at a markup earlier in September. Klobuchar chairs the Senate Judiciary Subcommittee on Competition Policy, Antitrust and Consumer Rights.
The bill was pulled after an amendment from Cruz about content moderation was adopted during an earlier meeting when Democrats were down a member with Sen. Jon Ossoff (D-Ga.) isolating in India with COVID-19, according to The Hill’s report on the committee hearing.
“To preserve strong, independent journalism, we have to make sure news organizations are able to negotiate on a level playing field with the online platforms that have come to dominate news distribution and digital advertising,” Klobuchar said. “Our bipartisan legislation ensures media outlets will be able to band together and negotiate for fair compensation from the Big Tech companies that profit from their news content, allowing journalists to continue their critical work of keeping communities informed.”
The bill provides a limited safe harbor from federal and state antitrust laws for eligible digital journalism providers, including most newsrooms that employ fewer than 1,500 full-time employees, that would allow them to participate in joint negotiations. The employee cap is largely aimed at excluding the country’s three largest newspapers and national broadcasters.
To be defined as eligible newspaper participants for the Journalism Competition and Preservation Act, publications must have an International Standard Serial Number (ISSN) assigned before the JCPA is enacted. (See sidebar for information about applying for an ISSN through the Library of Congress U.S. ISSN Center.)
According to Klobuchar, the Journalism Competition and Preservation Act would also:
• Empower eligible digital journalism providers and newspapers — that is, news publishers with fewer than 1,500 exclusive full-time employees and non-network news broadcasters that engage in standard news gathering practices — to form joint negotiation entities to collectively negotiate with a covered platform over the terms and conditions of the covered platform’s access to digital news content.
• Require covered platforms — which are online platforms that have at least 50 million U.S.-based users or subscribers and are owned or controlled by a person who has either net annual sales or market capitalization greater than $550 billion or at least 1 billion worldwide monthly active users — to negotiate in good faith with the eligible news organizations.
• Enable non-broadcaster news publishers to demand final-offer arbitration if their joint negotiation with a covered platform fails to result in an agreement after six months.
• Prohibit discrimination by a joint negotiation entity or a covered platform against an eligible digital journalism provider based on its size or the view expressed in its content and provide a private right of action for violations of this prohibition.
• Prohibit retaliation by a covered platform against eligible digital journalism providers for participating in joint negotiations or arbitration and provide a private right of action for violations of this prohibition.
 The bill sunsets within six years.