Senate Judiciary Eyes Journalism Bill Markup, Floats New Language
The Senate Judiciary Committee is eyeing a markup for the Journalism Competition and Preservation Act (S-673) during the upcoming work period, industry officials told us Wednesday (see 2202280066). New bipartisan language under consideration for S-673 would ensure print and broadcast journalism outlets aren’t discriminated against based on viewpoints expressed in content.
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The proposed language seeks to limit the size of journalism outlets eligible to negotiate with online platforms for compensation for hosting content. Language reviewed by Communications Daily would set a publisher cap at 1,500 exclusive, full-time employees. The language seeks to further define digital journalism providers, a point of contention raised by opponents. Covered platforms would be barred from retaliating against eligible news providers, including the manipulation of ranking and placement of content.
The next work period is a logical target for a potential Senate markup, but nothing is certain until Judiciary Chairman Dick Durbin, D-Ill., sets the date, a news industry official said. Current discussions involve getting all relevant offices on board for the markup, the official said. House members haven’t signed onto the new language, an industry lobbyist said.
Offices for Durbin and sponsors Senate Antitrust Subcommittee Amy Klobuchar, D-Minn., and Sen. John Kennedy, R-La., didn’t comment. Neither did offices for House Antitrust Subcommittee Chairman David Cicilline, D-R.I., and Senate Antitrust Subcommittee ranking member Ken Buck, R-Colo. Kennedy's comments earlier this month suggest tension about the bill not getting a full committee hearing (see 2204050074). Klobuchar recently said the journalism bill could potentially be folded into a Big Tech-focused package for the Senate to consider.
The proposed language would bar discrimination against digital journalism providers based on size. The language places limits on contract provisions: Any provision in an agreement that restricts news outlets from collecting compensation through negotiation would be voided.
NAB and the News Media Alliance support the legislation. Dominant online platforms unilaterally set policies that affect the way media outlets reach audiences, attract advertisers and monetize news content, NAB said when the bill was introduced. The JCPA would give news producers the ability to negotiate a fair return, NAB said. Google and Facebook have monopoly power over news media organizations, News Media Alliance CEO David Chavern told the House Judiciary Committee last year, noting the power of their algorithms over news content.
Tech industry groups and various consumer advocates opposed the bill as introduced. Public Knowledge and others argued the JCPA’s proposed antitrust law immunity would effectively sanction large media cartels by statute, entrenching existing power relationships between news organizations and digital platforms. PK hasn’t seen the modified language, said CEO Chris Lewis in a statement. He urged sponsors to share it with the public so stakeholders can weigh in, and suggested a potential Senate Intellectual Property Subcommittee hearing with intellectual property experts on the copyright law implications.
None of the rumored changes currently would likely sway PK away from opposing S-673, said Government Affairs Director Greg Guice. Even the revised language would “still create some sort of a right to charge for linking or snippets,” which is information currently “available without charge,” he told us. “That’s still a fundamental flaw to this legislation” that “will alter how the internet works.” PK “offered suggestions on how to fix” S-673, but “it appears those suggestions are not being answered,” Guice said. “That gives us pause” about the measure’s “true intent.”
Joining PK in opposition were Common Cause, Fight for the Future, Free Press Action and the Wikimedia Foundation, among others. The Computer and Communications Industry Association and NetChoice raised concerns about further solidifying the positions of larger news publishers at the expense of small publishers. “Laws making newspapers dependent on the good will of the government undermine the independence, integrity, and public trust of journalists,” said NetChoice Vice President Carl Szabo.