[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 673 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 569
117th CONGRESS
  2d Session
                                 S. 673

To provide a temporary safe harbor for publishers of online content to 
  collectively negotiate with dominant online platforms regarding the 
               terms on which content may be distributed.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 10, 2021

 Ms. Klobuchar (for herself, Mr. Kennedy, Mr. Booker, Mr. Whitehouse, 
 Ms. Lummis, Mrs. Feinstein, Ms. Collins, Mr. Graham, Ms. Hirono, Mr. 
   Cassidy, Mr. Blumenthal, Mr. Thune, Mr. Durbin, and Mr. Manchin) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

                           November 28, 2022

               Reported by Mr. Durbin, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
To provide a temporary safe harbor for publishers of online content to 
  collectively negotiate with dominant online platforms regarding the 
               terms on which content may be distributed.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Journalism Competition and 
Preservation Act of 2021''.</DELETED>

<DELETED>SEC. 2. SAFE HARBOR FOR CERTAIN COLLECTIVE 
              NEGOTIATIONS.</DELETED>

<DELETED>    (a) Definitions.--In this section:</DELETED>
        <DELETED>    (1) Antitrust laws.--The term ``antitrust laws''--
        </DELETED>
                <DELETED>    (A) has the meaning given the term in 
                subsection (a) of the first section of the Clayton Act 
                (15 U.S.C. 12); and</DELETED>
                <DELETED>    (B) includes--</DELETED>
                        <DELETED>    (i) section 5 of the Federal Trade 
                        Commission Act (15 U.S.C. 45) to the extent 
                        that section applies to unfair methods of 
                        competition; and</DELETED>
                        <DELETED>    (ii) any State law (including 
                        regulations) that prohibits or penalizes the 
                        conduct described in, or is otherwise 
                        inconsistent with, subsection (b).</DELETED>
        <DELETED>    (2) News content creator.--The term ``news content 
        creator'' means--</DELETED>
                <DELETED>    (A) any print, broadcast, or digital news 
                organization that--</DELETED>
                        <DELETED>    (i) has 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; 
                        and</DELETED>
                        <DELETED>    (ii) is marketed through 
                        subscriptions, advertising, or sponsorship; 
                        and</DELETED>
                <DELETED>    (B)(i) provides original news and related 
                content with the editorial content consisting of not 
                less than 25 percent current news and related content; 
                or</DELETED>
                <DELETED>    (ii) broadcasts original news and related 
                content pursuant to a license granted by the Federal 
                Communications Commission under title III of the 
                Communications Act of 1934 (47 U.S.C. 301 et 
                seq.).</DELETED>
        <DELETED>    (3) Online content distributor.--The term ``online 
        content distributor'' means any entity that--</DELETED>
                <DELETED>    (A) operates a website or other online 
                service that displays, distributes, or directs users to 
                news articles, works of journalism, or other content on 
                the internet that is generated by third-party news 
                content creators; and</DELETED>
                <DELETED>    (B) has not fewer than 1,000,000,000 
                monthly active users, in the aggregate, of all of its 
                websites or online services worldwide.</DELETED>
<DELETED>    (b) Limitation of Liability.--A news content creator may 
not be held liable under the antitrust laws for engaging in 
negotiations with any other news content creator during the 4-year 
period beginning on the date of enactment of this Act to collectively 
withhold content from, or negotiate with, an online content distributor 
regarding the terms on which the news content of the news content 
creator may be distributed by the online content distributor, if--
</DELETED>
        <DELETED>    (1) the negotiations with the online content 
        distributor--</DELETED>
                <DELETED>    (A) are not limited to price;</DELETED>
                <DELETED>    (B) are nondiscriminatory as to similarly 
                situated news content creators;</DELETED>
                <DELETED>    (C) directly relate to the quality, 
                accuracy, attribution or branding, and interoperability 
                of news; and</DELETED>
                <DELETED>    (D) pertain to terms that would be 
                available to all news content creators;</DELETED>
        <DELETED>    (2) the coordination between the news content 
        creators is directly related to and reasonably necessary for 
        negotiations with an online content distributor that are 
        otherwise consistent with this Act; and</DELETED>
        <DELETED>    (3) the negotiations do not involve any person 
        that is not a news content creator or an online content 
        distributor.</DELETED>
<DELETED>    (c) Rule of Construction.--Except as provided in this Act, 
this Act shall not be construed to modify, impair, or supersede the 
operation of the antitrust laws.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Journalism Competition and 
Preservation Act of 2022''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Access.--The term ``access'' means acquiring, crawling, 
        or indexing content.
            (2) Antitrust laws.--The term ``antitrust laws''--
                    (A) has the meaning given the term in subsection 
                (a) of the first section of the Clayton Act (15 U.S.C. 
                12); and
                    (B) includes--
                            (i) section 5 of the Federal Trade 
                        Commission Act (15 U.S.C. 45) to the extent 
                        that section applies to unfair methods of 
                        competition; and
                            (ii) any State law (including regulations) 
                        that prohibits or penalizes the conduct 
                        described in, or is otherwise inconsistent 
                        with, sections 3 or 4.
            (3) Covered platform.--The term ``covered platform'' means 
        an online platform that at any point during the 12 months 
        preceding the formation of a joint negotiation entity under 
        section 3(a)(1)--
                    (A) has at least 50,000,000 United States-based 
                monthly active users or subscribers on the online 
                platform;
                    (B) is owned or controlled by a person with--
                            (i) United States net annual sales or a 
                        market capitalization greater than 
                        $550,000,000,000, adjusted for inflation on the 
                        basis of the Consumer Price Index; or
                            (ii) not fewer than 1,000,000,000 worldwide 
                        monthly active users on the online platform; 
                        and
                    (C) is not an organization described in section 
                501(c)(3) of the Internal Revenue Code of 1986.
            (4) Eligible broadcaster.--The term ``eligible 
        broadcaster'' means a person that--
                    (A) holds or operates under a license issued by the 
                Federal Communications Commission under title III of 
                the Communications Act of 1934 (47 U.S.C. 301 et seq.);
                    (B) engages professionals to create, edit, produce, 
                and distribute original content concerning local, 
                regional, national, or international matters of public 
                interest through activities including conducting 
                interviews, observing current events, analyzing 
                documents and other information, and fact checking 
                through multiple firsthand or secondhand news sources;
                    (C) updates its content on at least a weekly basis;
                    (D) uses an editorial process for error correction 
                and clarification, including a transparent process for 
                reporting errors or complaints to the station; and
                    (E) is not a television network.
            (5) Eligible digital journalism provider.--The term 
        ``eligible digital journalism provider'' means any eligible 
        publisher or eligible broadcaster that discloses its ownership 
        to the public.
            (6) Eligible publisher.--The term ``eligible publisher'' 
        means any person that publishes 1 or more qualifying 
        publications.
            (7) Network station.--The term ``network station'' means a 
        television broadcast station, including any translator station 
        or terrestrial satellite station that rebroadcasts all or 
        substantially all of the programming broadcast by a network 
        station, that is owned or operated by, or affiliated with, 1 or 
        more television networks.
            (8) Online platform.--The term ``online platform'' means a 
        website, online or mobile application, operating system, 
        digital assistant, or online service that accesses news 
        articles, works of journalism, or other content, or portions 
        thereof, generated, created, produced, or owned by eligible 
        digital journalism providers, and aggregates, displays, 
        provides, distributes, or directs users to such content.
            (9) Person.--The term ``person'' includes an individual or 
        entity existing under or authorized by the laws of the United 
        States, the laws of any of territory of the United States, the 
        laws of any State, the laws of the District of Columbia, or the 
        laws of any foreign country.
            (10) Pricing, terms, and conditions.--The term ``pricing, 
        terms, and conditions'' does not include any term or condition 
        which relates to the use, display, promotion, ranking, 
        distribution, curation, suppression, throttling, filtering, or 
        labeling of the content or viewpoint of any person.
            (11) Qualifying publication.--The term ``qualifying 
        publication'' means any website, mobile application, or other 
        digital service that--
                    (A) does not primarily display, provide, 
                distribute, or offer content generated, created, 
                produced, or owned by an eligible broadcaster or 
                television network; and
                    (B)(i) provides information to an audience 
                primarily in the United States;
                    (ii) performs a public-information function 
                comparable to that traditionally served by newspapers 
                and other periodical news publications;
                    (iii) engages professionals to create, edit, 
                produce, and distribute original content concerning 
                local, regional, national, or international matters of 
                public interest through activities, including 
                conducting interviews, observing current events, or 
                analyzing documents and other information, and fact 
                checking through multiple firsthand or secondhand news 
                sources;
                    (iv) updates its content on at least a weekly 
                basis;
                    (v) has an editorial process for error correction 
                and clarification, including a transparent process for 
                reporting errors or complaints to the publication;
                    (vi)(I) generated at least $100,000 in annual 
                revenue from its editorial content in the previous 
                calendar year;
                    (II) has an International Standard Serial Number 
                assigned to an affiliated periodical before the date of 
                enactment of this Act; or
                    (III) is owned or controlled by an exempt 
                organization described in section 501(c)(3) of the 
                Internal Revenue Code of 1986;
                    (vii) has not less than 25 percent of its editorial 
                content consisting of information about topics of 
                current local, national, or international public 
                interest;
                    (viii) employed not more than 1,500 exclusive full-
                time employees during the 12-month period prior to the 
                date of enactment of this Act; and
                    (ix) is not controlled or wholly or partially owned 
                by an entity that is--
                            (I) a foreign power or an agent of a 
                        foreign power, as those terms are defined in 
                        section 101 of the Foreign Intelligence 
                        Surveillance Act of 1978 (50 U.S.C. 1801);
                            (II)(aa) designated as a foreign terrorist 
                        organization pursuant to section 219(a) of the 
                        Immigration and Nationality Act (8 U.S.C. 
                        1189(a));
                            (bb) a terrorist organization, as defined 
                        in section 212(a)(3)(B)(vi)(II) of the 
                        Immigration and Nationality Act (8 U.S.C. 
                        1182(a)(3)(B)(vi)(II));
                            (cc) designated as a specially designated 
                        global terrorist organization under Executive 
                        Order 13224 (50 U.S.C. 1701 note; relating to 
                        blocking property and prohibiting transactions 
                        with persons who commit, threaten to commit, or 
                        support terrorism); or
                            (dd) an affiliate of an entity described in 
                        item (aa), (bb), or (cc); or
                            (III) an entity that has been convicted of 
                        violating, or attempting to violate, section 
                        2331, 2332b, or 2339A of title 18, United 
                        States Code.
            (12) Television network.--The term ``television network''--
                    (A) means any person that, on February 8, 1996, 
                offered an interconnected program service on a regular 
                basis for 15 or more hours per week to at least 25 
                affiliated television licensees in 10 or more States; 
                and
                    (B) does not include any network station that is 
                owned or operated by, or affiliated with a person 
                described in subparagraph (A).

SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS.

    (a) Notice.--
            (1) Process to form a joint negotiation entity.--
                    (A) In general.--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.
                    (B) Application.--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.
                    (C) Formation.--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.
                    (D) Governance.--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.
                    (E) Additional 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.
                    (F) Designation.--A joint negotiation entity may 
                designate agents on a nonexclusive basis--
                            (i) to engage in negotiations with a 
                        covered platform conducted under this section; 
                        and
                            (ii) 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.
                    (G) Opt-out.--
                            (i) In general.--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).
                            (ii) Prohibition on rejoining.--If an 
                        eligible digital journalism provider opts out 
                        of a joint negotiation entity under clause (i), 
                        the eligible digital journalism provider may 
                        not--
                                    (I) rejoin the joint negotiation 
                                entity; or
                                    (II) 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.
                    (H) Termination.--A joint negotiation entity will 
                terminate and cease to exist--
                            (i) when the entity no longer has at least 
                        2 members;
                            (ii) upon a majority vote of its members; 
                        or
                            (iii) upon the expiration or termination of 
                        an agreement negotiated under this section or 
                        an arbitration decision issued under section 4.
            (2) Notice to a covered platform to initiate a joint 
        negotiation.--
                    (A) In general.--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.
                    (B) Contents of notice.--The notice described in 
                subparagraph (A) shall--
                            (i) 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;
                            (ii) identify the eligible digital 
                        journalism providers that are members of the 
                        joint negotiation entity; and
                            (iii) 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.
                    (C) Reply.--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.
                    (D) Notice to federal enforcers.--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.
    (b) Conduct of the Joint Negotiations.--After the date a reply 
notice is sent under subsection (a)(2)(C), the following shall apply:
            (1) 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.
            (2) 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--
                    (A) displays, ranks, distributes, suppresses, 
                promotes, throttles, labels, filters, or curates the 
                content of the eligible digital journalism providers; 
                or
                    (B) displays, ranks, distributes, suppresses, 
                promotes, throttles, labels, filters, or curates the 
                content of any other person.
            (3) A party is not conducting negotiations in good faith in 
        accordance with paragraph (1) if the party--
                    (A) 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);
                    (B) refuses to designate a representative with 
                authority to make binding representations;
                    (C) refuses to meet and negotiate at reasonable 
                times and locations or otherwise causes unreasonable 
                delay;
                    (D) refuses to put forth more than a single, 
                unilateral proposal;
                    (E) fails to respond to a proposal of the other 
                party, including the reasons for rejection;
                    (F) enters into a separate third-party agreement 
                that unreasonably impedes the party from reaching an 
                agreement with the negotiating party; or
                    (G) refuses to execute a full and written agreement 
                that has been reached verbally.
            (4) 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.
            (5) 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--
                    (A) 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;
                    (B) 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
                    (C) 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.
    (c) Joint Withholding of Content.--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.

SEC. 4. ARBITRATION FOR ELIGIBLE PUBLISHERS.

    (a) Right to Final Offer Arbitration.--
            (1) In general.--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).
            (2) Effect of additional members.--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.
    (b) Notice.--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.
    (c) Membership.--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).
    (d) Proceedings.--
            (1) Rules of arbitration.--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.
            (2) Initiation of arbitration.--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.
            (3) Commencement and funding.--
                    (A) Commencement.--A final offer arbitration 
                proceeding shall commence 10 days after the date a 
                final offer arbitration is initiated under subsection 
                (a).
                    (B) Funding.--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.
            (4) Appointment of the arbitration panel.--The arbitrators 
        shall be appointed in accordance with the American Arbitration 
        Association's Commercial Arbitration Rules and Mediation 
        Procedures.
            (5) Other requirements.--During a final offer arbitration 
        proceeding under this section--
                    (A) 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;
                    (B) documents and information described in 
                subparagraph (A) shall be exchanged not later than 30 
                days after the date the demand is filed;
                    (C) rules regarding the admissibility of evidence 
                applicable in Federal court shall apply;
                    (D) 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;
                    (E) no discussion or final offer under this section 
                may address whether or how the covered platform or any 
                such eligible digital journalism provider--
                            (i) displays, ranks, distributes, 
                        suppresses, promotes, throttles, labels, 
                        filters, or curates the content of the eligible 
                        digital journalism providers; or
                            (ii) displays, ranks distributes, 
                        suppresses, promotes, throttles, labels, 
                        filters or curates the content of any other 
                        person; and
                    (F) 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--
                            (i) 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
                            (ii) 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.
    (e) Award.--
            (1) In general.--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.
            (2) Requirements.--In issuing an award under paragraph (1), 
        the arbitration panel--
                    (A) 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;
                    (B) shall consider past incremental revenue 
                contributions as a guide to the future incremental 
                revenue contribution by any eligible publisher;
                    (C) 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
                    (D) 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.
    (f) Payments Pursuant to Award.--
            (1) In general.--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.
            (2) Disbursement.--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.
    (g) Enforcement and Judicial Review.--
            (1) In general.--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.
            (2) Expedited judicial process.--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.

SEC. 5. LIMITATION OF LIABILITY.

    (a) In General.--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--
            (1) 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
            (2) 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.
    (b) Safe Harbor.--
            (1) Eligible digital journalism providers.--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--
                    (A) 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
                    (B) with a person that is not a covered platform, 
                if the eligible digital journalism provider reasonably 
                believes that the person is a covered platform.
            (2) Joint negotiation entities.--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--
                    (A) 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
                    (B) with a person that is not a covered platform, 
                if the joint negotiation entity reasonably believes 
                that the person is a covered platform.
    (c) Notification of Agreements and Arbitration Decisions.--
            (1) Agreements.--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.
            (2) Arbitration decisions.--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.
            (3) Public disclosure.--The Federal Trade Commission shall 
        make the documents submitted under this subsection available to 
        the public on the Federal Trade Commission's website.
    (d) Limitation Regarding the Scope of Limitation of Liability.--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.

SEC. 6. NONDISCRIMINATION, RETALIATION, AND TRANSPARENCY.

    (a) Nondiscrimination.--
            (1) Joint negotiation entities.--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.
            (2) Covered platforms.--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.
    (b) Prohibition on Retaliation by Covered Platforms.--
            (1) In general.--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.
            (2) Effect of contract provisions.--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.
    (c) Investing in Journalism.--
            (1) In general.--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--
                    (A) the amount of funds received under or related 
                to each such agreement or decision; and
                    (B) 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.
            (2) Public disclosure.--The Federal Trade Commission shall 
        make the disclosures submitted under paragraph (1) available to 
        the public on the Federal Trade Commission's website.

SEC. 7. PRIVATE RIGHTS OF ACTION.

    (a) Negotiations.--
            (1) In general.--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).
            (2) Damages.--A court shall award damages to a prevailing 
        plaintiff under this subsection--
                    (A) 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);
                    (B) approximating the value of the last reasonable 
                offer of the plaintiff if the defendant--
                            (i) did not conduct negotiations in good 
                        faith in violation of section 3(b)(1); and
                            (ii) had not yet extended a reasonable 
                        offer; or
                    (C) 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).
            (3) Attorneys fees.--A court shall award attorney's fees to 
        the prevailing party under this subsection.
    (b) Discrimination.--
            (1) Joint negotiation entities.--
                    (A) In general.--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.
                    (B) Remedies.--
                            (i) Before agreement or arbitration 
                        decision.--
                                    (I) In general.--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.
                                    (II) Notice.--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).
                            (ii) After agreement or arbitration 
                        decision.--
                                    (I) In general.--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.
                                    (II) Notice.--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.
            (2) Covered platforms.--
                    (A) In general.--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.
                    (B) Remedies.--An eligible digital journalism 
                provider that prevails under subparagraph (A) shall be 
                entitled to--
                            (i) recover the actual damages sustained by 
                        the eligible digital journalism provider as a 
                        result of the discrimination;
                            (ii) 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
                            (iii) the costs of the suit, including 
                        reasonable attorneys' fees.
    (c) Retaliation.--
            (1) In general.--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.
            (2) Remedies.--An eligible digital journalism provider that 
        prevails in an action under paragraph (1) shall be entitled 
        to--
                    (A) recover the actual damages sustained by the 
                eligible digital journalism provider as a result of the 
                retaliation;
                    (B) 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
                    (C) the costs of the suit, including reasonable 
                attorneys' fees.

SEC. 8. REPORT.

    (a) Study.--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.
    (b) Report.--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).

SEC. 9. SUNSET.

    (a) In General.--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.
    (b) Exception in Case of Initiated but Incomplete Joint Negotiation 
or Arbitration.--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.
    (c) Limitation of Liability Exception.--Section 5 shall remain 
effective without cessation for any--
            (1) negotiation conducted or agreement executed under 
        section 3;
            (2) arbitration conducted or arbitration decision issued 
        under section 4; or
            (3) agreement implementing an arbitration decision issued 
        under section 4;
        during the period of effectiveness of this Act.

SEC. 10. RULE OF CONSTRUCTION.

    (a) Antitrust Laws.--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.
    (b) Copyright and Trademark Law.--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.)

SEC. 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.
                                                       Calendar No. 569

117th CONGRESS

  2d Session

                                 S. 673

_______________________________________________________________________

                                 A BILL

To provide a temporary safe harbor for publishers of online content to 
  collectively negotiate with dominant online platforms regarding the 
               terms on which content may be distributed.

_______________________________________________________________________

                           November 28, 2022

                       Reported with an amendment