[Congressional Record Volume 168, Number 198 (Tuesday, December 20, 2022)]
[Senate]
[Pages S9639-S9643]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6568. Ms. KLOBUCHAR (for herself and Mr. Kennedy) submitted an
amendment intended to be proposed to amendment SA 6552 proposed by Mr.
Leahy to the bill H.R. 2617, to amend section 1115 of title 31, United
States Code, to amend the description of how performance goals are
achieved, and for other purposes; which was ordered to lie on the
table; as follows:
At the appropriate place, insert the following:
DIVISION__--JOURNALISM COMPETITION AND PRESERVATION
SEC. 101. SHORT TITLE.
This division may be cited as the ``Journalism Competition
and Preservation Act of 2022''.
SEC. 102. DEFINITIONS.
In this division:
(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 103 or 104.
(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 103(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; or
(II) has an International Standard Serial Number assigned
to an affiliated periodical before the date of enactment of
this Act;
(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;
(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; and
(x) is not--
(I) an organization described in section 501(c)(4) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code;
(II) an organization described in section 527 of the
Internal Revenue Code of 1986;
[[Page S9640]]
(III) an organization--
(aa) described in section 501(c)(3) of the Internal Revenue
Code of 1986 and exempt from tax under section 501(a) of such
Code; and
(bb) that is not a public broadcasting entity, as defined
in section 397 of the Communications Act of 1934 (47 U.S.C.
397); or
(IV) an organization that is owned or controlled (directly
or indirectly) by 1 or more organizations described in
subclause (I), (II), or (III).
(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. 103. 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 104.
(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 104.
(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 104.
(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. 104. 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 103 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
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covered platform complied with the requirements of section
103(b).
(2) Effect of additional members.--If an additional member
joins the joint negotiation entity under section 103(a)(1)(E)
more than 90 days after the date negotiations under section
103 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 division 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 103 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. 105. LIMITATION OF LIABILITY.
(a) In General.--In accordance with sections 103 and 104,
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 103 or arbitration under section
104--
(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 103
or arbitration under section 104--
(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 103 or
implementing an arbitration decision issued under section
104,
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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 104, 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. 106. 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 103, or an
arbitration conducted under section 104, 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 103, or an arbitration
conducted under section 104, 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 103 or an arbitration conducted under
section 104 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 103, an agreement
implementing an arbitration decision issued under section
104, or an arbitration decision issued under section 104, 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. 107. 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 103
may bring a civil action in an appropriate district court of
the United States alleging a violation of section 103(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 103(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 103(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 103(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 106(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 103 or an
arbitration decision is issued under section 104, 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 103
or the arbitration under section 104, 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 103 or an
arbitration decision is issued under section 104, 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 103 or the
arbitration decision issued under section 104, 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
106(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 106(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. 108. REPORT.
(a) Study.--The Comptroller General shall study the impact
of the joint negotiations authorized under this division,
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 division 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. 109. SUNSET.
(a) In General.--Except as provided in subsections (b) and
(c), this division shall cease to have effect on the date
that is 6 years after the date of its enactment.
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(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 103 or an arbitration under section
104 on or before the sunset date described in subsection (a),
this division 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 105 shall
remain effective without cessation for any--
(1) negotiation conducted or agreement executed under
section 103;
(2) arbitration conducted or arbitration decision issued
under section 104; or
(3) agreement implementing an arbitration decision issued
under section 104;
during the period of effectiveness of this division.
SEC. 110. RULE OF CONSTRUCTION.
(a) Antitrust Laws.--Nothing in this division may be
construed to modify, impair, or supersede the operation of
the antitrust laws except as otherwise expressly provided in
this division.
(b) Copyright and Trademark Law.--Nothing in this division
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. 111. SEVERABILITY.
If any provision of this division, or the application of
such provision to any person or circumstance, is held to be
unconstitutional, the remainder of this division, and the
application of the remaining provisions of this division to
any person or circumstance shall not be affected.
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