Journalism Competition and Preservation Act of 2023

II Calendar No. 135 118TH CONGRESS 1ST SESSION S. 1094 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 30, 2023 Ms. KLOBUCHAR (for herself, Mr. KENNEDY, Mr. DURBIN, Mr. DAINES, Mr. BLUMENTHAL, Mr. CASSIDY, Mr. WHITEHOUSE, Mr. GRAHAM, Ms. COL- LINS, Mr. MANCHIN, Ms. LUMMIS, Mr. BOOKER, Mr. WICKER, Ms. HIRONO, Mr. KING, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary JULY 18, 2023 Reported by Mr. DURBIN, without amendment 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1094 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Journalism Competi- 2 tion and Preservation Act of 2023’’. 3 SEC. 2. DEFINITIONS. 4 In this Act: 5 (1) ACCESS.—The term ‘‘access’’ means acquir- 6 ing, crawling, or indexing content. 7 (2) ANTITRUST LAWS.—The term ‘‘antitrust 8 laws’’— 9 (A) has the meaning given the term in 10 subsection (a) of the first section of the Clayton 11 Act (15 U.S.C. 12); and 12 (B) includes— 13 (i) section 5 of the Federal Trade 14 Commission Act (15 U.S.C. 45) to the ex- 15 tent that section applies to unfair methods 16 of competition; and 17 (ii) any State law (including regula- 18 tions) that prohibits or penalizes the con- 19 duct described in, or is otherwise incon- 20 sistent with, sections 3 or 4. 21 (3) COVERED PLATFORM.—The term ‘‘covered 22 platform’’ means an online platform that at any 23 point during the 12 months preceding the formation 24 of a joint negotiation entity under section 3(a)(1)— 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1094 RS (A) has at least 50,000,000 United States- 1 based monthly active users or subscribers on 2 the online platform; 3 (B) is owned or controlled by a person 4 with— 5 (i) United States net annual sales or 6 a market capitalization greater than 7 $550,000,000,000, adjusted for inflation 8 on the basis of the Consumer Price Index; 9 or 10 (ii) not fewer than 1,000,000,000 11 worldwide monthly active users on the on- 12 line platform; and 13 (C) is not an organization described in sec- 14 tion 501(c)(3) of the Internal Revenue Code of 15 1986. 16 (4) ELIGIBLE BROADCASTER.—The term ‘‘eligi- 17 ble broadcaster’’ means a person that— 18 (A) holds or operates under a license 19 issued by the Federal Communications Commis- 20 sion under title III of the Communications Act 21 of 1934 (47 U.S.C. 301 et seq.); 22 (B) engages professionals to create, edit, 23 produce, and distribute original content con- 24 cerning local, regional, national, or inter- 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1094 RS national matters of public interest through ac- 1 tivities including conducting interviews, observ- 2 ing current events, analyzing documents and 3 other information, and fact checking through 4 multiple firsthand or secondhand news sources; 5 (C) updates its content on at least a week- 6 ly basis; 7 (D) uses an editorial process for error cor- 8 rection and clarification, including a trans- 9 parent process for reporting errors or com- 10 plaints to the station; and 11 (E) is not a television network. 12 (5) ELIGIBLE DIGITAL JOURNALISM PRO- 13 VIDER.—The term ‘‘eligible digital journalism pro- 14 vider’’ means any eligible publisher or eligible broad- 15 caster that discloses its ownership to the public. 16 (6) ELIGIBLE PUBLISHER.—The term ‘‘eligible 17 publisher’’ means any person that publishes 1 or 18 more qualifying publications. 19 (7) NETWORK STATION.—The term ‘‘network 20 station’’ means a television broadcast station, includ- 21 ing any translator station or terrestrial satellite sta- 22 tion that rebroadcasts all or substantially all of the 23 programming broadcast by a network station, that is 24 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1094 RS owned or operated by, or affiliated with, 1 or more 1 television networks. 2 (8) ONLINE PLATFORM.—The term ‘‘online 3 platform’’ means a website, online or mobile applica- 4 tion, operating system, digital assistant, or online 5 service that accesses news articles, works of jour- 6 nalism, or other content, or portions thereof, gen- 7 erated, created, produced, or owned by eligible dig- 8 ital journalism providers, and aggregates, displays, 9 provides, distributes, or directs users to such con- 10 tent. 11 (9) PERSON.—The term ‘‘person’’ includes an 12 individual or entity existing under or authorized by 13 the laws of the United States, the laws of any of ter- 14 ritory of the United States, the laws of any State, 15 the laws of the District of Columbia, or the laws of 16 any foreign country. 17 (10) PRICING, TERMS, AND CONDITIONS.—The 18 term ‘‘pricing, terms, and conditions’’ does not in- 19 clude any term or condition which relates to the use, 20 display, promotion, ranking, distribution, curation, 21 suppression, throttling, filtering, or labeling of the 22 content or viewpoint of any person. 23 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1094 RS (11) QUALIFYING PUBLICATION.—The term 1 ‘‘qualifying publication’’ means any website, mobile 2 application, or other digital service that— 3 (A) does not primarily display, provide, 4 distribute, or offer content generated, created, 5 produced, or owned by an eligible broadcaster 6 or television network; and 7 (B)(i) provides information to an audience 8 primarily in the United States; 9 (ii) performs a public-information function 10 comparable to that traditionally served by news- 11 papers and other periodical news publications; 12 (iii) engages professionals to create, edit, 13 produce, and distribute original content con- 14 cerning local, regional, national, or inter- 15 national matters of public interest through ac- 16 tivities, including conducting interviews, observ- 17 ing current events, or analyzing documents and 18 other information, and fact checking through 19 multiple firsthand or secondhand news sources; 20 (iv) updates its content on at least a week- 21 ly basis; 22 (v) has an editorial process for error cor- 23 rection and clarification, including a trans- 24 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1094 RS parent process for reporting errors or com- 1 plaints to the publication; 2 (vi)(I) generated at least $100,000 in an- 3 nual revenue from its editorial content in the 4 previous calendar year; 5 (II) has an International Standard Serial 6 Number assigned to an affiliated periodical be- 7 fore the date of enactment of this Act; or 8 (III) is owned or controlled by an exempt 9 organization described in section 501(c)(3) of 10 the Internal Revenue Code of 1986; 11 (vii) has not less than 25 percent of its 12 editorial content consisting of information about 13 topics of current local, national, or international 14 public interest; 15 (viii) employed not more than 1,500 exclu- 16 sive full-time employees during the 12-month 17 period prior to the date of enactment of this 18 Act; and 19 (ix) is not controlled or wholly or partially 20 owned by an entity that is— 21 (I) a foreign power or an agent of a 22 foreign power, as those terms are defined 23 in section 101 of the Foreign Intelligence 24 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1094 RS Surveillance Act of 1978 (50 U.S.C. 1 1801); 2 (II)(aa) designated as a foreign ter- 3 rorist organization pursuant to section 4 219(a) of the Immigration and Nationality 5 Act (8 U.S.C. 1189(a)); 6 (bb) a terrorist organization, as de- 7 fined in section 212(a)(3)(B)(vi)(II) of the 8 Immigration and Nationality Act (8 U.S.C. 9 1182(a)(3)(B)(vi)(II)); 10 (cc) designated as a specially des- 11 ignated global terrorist organization under 12 Executive Order 13224 (50 U.S.C. 1701 13 note; relating to blocking property and pro- 14 hibiting transactions with persons who 15 commit, threaten to commit, or support 16 terrorism); or 17 (dd) an affiliate of an entity described 18 in item (aa), (bb), or (cc); or 19 (III) an entity that has been convicted 20 of violating, or attempting to violate, sec- 21 tion 2331, 2332b, or 2339A of title 18, 22 United States Code. 23 (12) TELEVISION NETWORK.—The term ‘‘tele- 24 vision network’’— 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1094 RS (A) means any person that, on February 8, 1 1996, offered an interconnected program serv- 2 ice on a regular basis for 15 or more hours per 3 week to at least 25 affiliated television licensees 4 in 10 or more States; and 5 (B) does not include any network station 6 that is owned or operated by, or affiliated with 7 a person described in subparagraph (A). 8 SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS. 9 (a) NOTICE.— 10 (1) PROCESS TO FORM A JOINT NEGOTIATION 11 ENTITY.— 12 (A) IN GENERAL.—An eligible digital jour- 13 nalism provider shall provide public notice to 14 announce the opportunity for other eligible dig- 15 ital journalism providers to join a joint negotia- 16 tion entity for the purpose of engaging in joint 17 negotiations with a covered platform under this 18 section, regarding the pricing, terms, and condi- 19 tions by which the covered platform may access 20 the content of the eligible digital journalism 21 providers that are members of the joint negotia- 22 tion entity. 23 (B) APPLICATION.—During the 60-day pe- 24 riod beginning on the date public notice is made 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1094 RS under subparagraph (A), any eligible digital 1 journalism provider may apply to join the joint 2 negotiation entity. 3 (C) FORMATION.—A joint negotiation enti- 4 ty is established upon the agreement of 2 or 5 more eligible digital journalism providers, and 6 may create admission criteria for membership 7 unrelated to the size of an eligible digital jour- 8 nalism provider or the views expressed by its 9 content, including criteria to limit membership 10 to only eligible publishers or only eligible broad- 11 casters. 12 (D) GOVERNANCE.—By a majority vote of 13 its members, a joint negotiation entity formed 14 under this section shall establish rules and pro- 15 cedures to govern decision making by the entity 16 and each eligible digital journalism provider 17 shall be entitled to 1 vote on any matter sub- 18 mitted to a vote of the members. 19 (E) ADDITIONAL MEMBERS.—After the ex- 20 piration of the 60-day period described in sub- 21 paragraph (B), an eligible digital journalism 22 provider may apply to join the joint negotiation 23 entity, and may be admitted to the joint nego- 24 tiation entity upon a majority vote of its mem- 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1094 RS bers, if the applicant otherwise satisfies any cri- 1 teria for admission established by the joint ne- 2 gotiation entity. 3 (F) DESIGNATION.—A joint negotiation 4 entity may designate agents on a nonexclusive 5 basis— 6 (i) to engage in negotiations with a 7 covered platform conducted under this sec- 8 tion; and 9 (ii) to agree to pay or receive pay- 10 ments under or related to an agreement 11 negotiated under this section or an arbitra- 12 tion decision issued under section 4. 13 (G) OPT-OUT.— 14 (i) IN GENERAL.—After becoming a 15 member of the joint negotiation entity, an 16 eligible digital journalism provider may opt 17 out of the joint negotiation entity at any 18 time before notice is sent to the covered 19 platform under paragraph (2). 20 (ii) PROHIBITION ON REJOINING.—If 21 an eligible digital journalism provider opts 22 out of a joint negotiation entity under 23 clause (i), the eligible digital journalism 24 provider may not— 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1094 RS (I) rejoin the joint negotiation 1 entity; or 2 (II) receive any payment under 3 or related to an agreement negotiated 4 by the joint negotiation entity under 5 this section or an arbitration decision 6 issued under section 4. 7 (H) TERMINATION.—A joint negotiation 8 entity will terminate and cease to exist— 9 (i) when the entity no longer has at 10 least 2 members; 11 (ii) upon a majority vote of its mem- 12 bers; or 13 (iii) upon the expiration or termi- 14 nation of an agreement negotiated under 15 this section or an arbitration decision 16 issued under section 4. 17 (2) NOTICE TO A COVERED PLATFORM TO INI- 18 TIATE A JOINT NEGOTIATION.— 19 (A) IN GENERAL.—A joint negotiation 20 under this section shall commence after a cov- 21 ered platform receives a notice, sent by or on 22 behalf of a joint negotiation entity. 23 (B) CONTENTS OF NOTICE.—The notice 24 described in subparagraph (A) shall— 25 VerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1094 RS (i) state that the joint negotiation en- 1 tity is initiating a negotiation under this 2 section to reach an agreement regarding 3 the pricing, terms, and conditions by which 4 the covered platform may access the con- 5 tent of the eligible digital journalism pro- 6 viders that are members of the joint nego- 7 tiation entity; 8 (ii) identify the eligible digital jour- 9 nalism providers that are members of the 10 joint negotiation entity; and 11 (iii) provide the physical mail address 12 (street address or p [Text truncated for display. 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