II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 673 RS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Journalism Competi3 tion and Preservation Act of 2021’’. 

4 SEC. 2. SAFE HARBOR FOR CERTAIN COLLECTIVE NEGO5 TIATIONS. 

6 (a) DEFINITIONS.—In this section: 

7 (1) 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 ex15 tent that section applies to unfair methods 

16 of competition; and 

17 (ii) any State law (including regula18 tions) that prohibits or penalizes the con19 duct described in, or is otherwise incon20 sistent with, subsection (b). 

21 (2) NEWS CONTENT CREATOR.—The term 

22 ‘‘news content creator’’ means— 

23 (A) any print, broadcast, or digital news 

24 organization that— 

25 (i) has a dedicated professional edi26 torial staff that creates and distributes 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 673 RS

1 original news and related content con2 cerning local, national, or international 

3 matters of public interest on at least a 

4 weekly basis; and 

5 (ii) is marketed through subscriptions, 

6 advertising, or sponsorship; and 

7 (B)(i) provides original news and related 

8 content with the editorial content consisting of 

9 not less than 25 percent current news and re10 lated content; or 

11 (ii) broadcasts original news and related 

12 content pursuant to a license granted by the 

13 Federal Communications Commission under 

14 title III of the Communications Act of 1934 (47 

15 U.S.C. 301 et seq.). 

16 (3) ONLINE CONTENT DISTRIBUTOR.—The 

17 term ‘‘online content distributor’’ means any entity 

18 that— 

19 (A) operates a website or other online serv20 ice that displays, distributes, or directs users to 

21 news articles, works of journalism, or other con22 tent on the internet that is generated by third23 party news content creators; and 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 673 RS

1 (B) has not fewer than 1,000,000,000 

2 monthly active users, in the aggregate, of all of 

3 its websites or online services worldwide. 

4 (b) LIMITATION OF LIABILITY.—A news content cre5 ator may not be held liable under the antitrust laws for 

6 engaging in negotiations with any other news content cre7 ator during the 4-year period beginning on the date of en8 actment of this Act to collectively withhold content from, 

9 or negotiate with, an online content distributor regarding 

10 the terms on which the news content of the news content 

11 creator may be distributed by the online content dis12 tributor, if— 

13 (1) the negotiations with the online content dis14 tributor— 

15 (A) are not limited to price; 

16 (B) are nondiscriminatory as to similarly 

17 situated news content creators; 

18 (C) directly relate to the quality, accuracy, 

19 attribution or branding, and interoperability of 

20 news; and 

21 (D) pertain to terms that would be avail22 able to all news content creators; 

23 (2) the coordination between the news content 

24 creators is directly related to and reasonably nec25 essary for negotiations with an online content disVerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S673.RS S673

kjohnson on DSK79L0C42PROD with BILLS
5 

•S 673 RS

1 tributor that are otherwise consistent with this Act; 

2 and 

3 (3) the negotiations do not involve any person 

4 that is not a news content creator or an online con5 tent distributor. 

6 (c) RULE OF CONSTRUCTION.—Except as provided in 

7 this Act, this Act shall not be construed to modify, impair, 

8 or supersede the operation of the antitrust laws. 

9 SECTION 1. SHORT TITLE. 

10 This Act may be cited as the ‘‘Journalism Competition 

11 and Preservation Act of 2022’’. 

12 SEC. 2. DEFINITIONS. 

13 In this Act: 

14 (1) ACCESS.—The term ‘‘access’’ means acquir15 ing, crawling, or indexing content. 

16 (2) ANTITRUST LAWS.—The term ‘‘antitrust 

17 laws’’— 

18 (A) has the meaning given the term in sub19 section (a) of the first section of the Clayton Act 

20 (15 U.S.C. 12); and 

21 (B) includes— 

22 (i) section 5 of the Federal Trade Com23 mission Act (15 U.S.C. 45) to the extent 

24 that section applies to unfair methods of 

25 competition; and 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 673 RS

1 (ii) any State law (including regula2 tions) that prohibits or penalizes the con3 duct described in, or is otherwise incon4 sistent with, sections 3 or 4. 

5 (3) COVERED PLATFORM.—The term ‘‘covered 

6 platform’’ means an online platform that at any 

7 point during the 12 months preceding the formation 

8 of a joint negotiation entity under section 3(a)(1)— 

9 (A) has at least 50,000,000 United States10 based monthly active users or subscribers on the 

11 online platform; 

12 (B) is owned or controlled by a person 

13 with— 

14 (i) United States net annual sales or a 

15 market capitalization greater than 

16 $550,000,000,000, adjusted for inflation on 

17 the basis of the Consumer Price Index; or 

18 (ii) not fewer than 1,000,000,000 

19 worldwide monthly active users on the on20 line platform; and 

21 (C) is not an organization described in sec22 tion 501(c)(3) of the Internal Revenue Code of 

23 1986. 

24 (4) ELIGIBLE BROADCASTER.—The term ‘‘eligible 

25 broadcaster’’ means a person that— 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 673 RS

1 (A) holds or operates under a license issued 

2 by the Federal Communications Commission 

3 under title III of the Communications Act of 

4 1934 (47 U.S.C. 301 et seq.); 

5 (B) engages professionals to create, edit, 

6 produce, and distribute original content con7 cerning local, regional, national, or inter8 national matters of public interest through ac9 tivities including conducting interviews, observ10 ing current events, analyzing documents and 

11 other information, and fact checking through 

12 multiple firsthand or secondhand news sources; 

13 (C) updates its content on at least a weekly 

14 basis; 

15 (D) uses an editorial process for error cor16 rection and clarification, including a trans17 parent process for reporting errors or complaints 

18 to the station; and 

19 (E) is not a television network. 

20 (5) ELIGIBLE DIGITAL JOURNALISM PROVIDER.— 

21 The term ‘‘eligible digital journalism provider’’ means 

22 any eligible publisher or eligible broadcaster that dis23 closes its ownership to the public. 


kjohnson on DSK79L0C42PROD with BILLS
8 

•S 673 RS

1 (6) ELIGIBLE PUBLISHER.—The term ‘‘eligible 

2 publisher’’ means any person that publishes 1 or more 

3 qualifying publications. 

4 (7) NETWORK STATION.—The term ‘‘network sta5 tion’’ means a television broadcast station, including 

6 any translator station or terrestrial satellite station 

7 that rebroadcasts all or substantially all of the pro8 gramming broadcast by a network station, that is 

9 owned or operated by, or affiliated with, 1 or more 

10 television networks. 

11 (8) ONLINE PLATFORM.—The term ‘‘online plat12 form’’ means a website, online or mobile application, 

13 operating system, digital assistant, or online service 

14 that accesses news articles, works of journalism, or 

15 other content, or portions thereof, generated, created, 

16 produced, or owned by eligible digital journalism pro17 viders, and aggregates, displays, provides, distributes, 

18 or directs users to such content. 

19 (9) PERSON.—The term ‘‘person’’ includes an in20 dividual or entity existing under or authorized by the 

21 laws of the United States, the laws of any of territory 

22 of the United States, the laws of any State, the laws 

23 of the District of Columbia, or the laws of any foreign 

24 country. 


kjohnson on DSK79L0C42PROD with BILLS
9 

•S 673 RS

1 (10) PRICING, TERMS, AND CONDITIONS.—The 

2 term ‘‘pricing, terms, and conditions’’ does not in3 clude any term or condition which relates to the use, 

4 display, promotion, ranking, distribution, curation, 

5 suppression, throttling, filtering, or labeling of the 

6 content or viewpoint of any person. 

7 (11) QUALIFYING PUBLICATION.—The term 

8 ‘‘qualifying publication’’ means any website, mobile 

9 application, or other digital service that— 

10 (A) does not primarily display, provide, 

11 distribute, or offer content generated, created, 

12 produced, or owned by an eligible broadcaster or 

13 television network; and 

14 (B)(i) provides information to an audience 

15 primarily in the United States; 

16 (ii) performs a public-information function 

17 comparable to that traditionally served by news18 papers and other periodical news publications; 

19 (iii) engages professionals to create, edit, 

20 produce, and distribute original content con21 cerning local, regional, national, or inter22 national matters of public interest through ac23 tivities, including conducting interviews, observ24 ing current events, or analyzing documents and 


kjohnson on DSK79L0C42PROD with BILLS
10 

•S 673 RS

1 other information, and fact checking through 

2 multiple firsthand or secondhand news sources; 

3 (iv) updates its content on at least a weekly 

4 basis; 

5 (v) has an editorial process for error correc6 tion and clarification, including a transparent 

7 process for reporting errors or complaints to the 

8 publication; 

9 (vi)(I) generated at least $100,000 in an10 nual revenue from its editorial content in the 

11 previous calendar year; 

12 (II) has an International Standard Serial 

13 Number assigned to an affiliated periodical be14 fore the date of enactment of this Act; or 

15 (III) is owned or controlled by an exempt 

16 organization described in section 501(c)(3) of the 

17 Internal Revenue Code of 1986; 

18 (vii) has not less than 25 percent of its edi19 torial content consisting of information about 

20 topics of current local, national, or international 

21 public interest; 

22 (viii) employed not more than 1,500 exclu23 sive full-time employees during the 12-month pe24 riod prior to the date of enactment of this Act; 

25 and 


kjohnson on DSK79L0C42PROD with BILLS
11 

•S 673 RS

1 (ix) is not controlled or wholly or partially 

2 owned by an entity that is— 

3 (I) a foreign power or an agent of a 

4 foreign power, as those terms are defined in 

5 section 101 of the Foreign Intelligence Sur6 veillance Act of 1978 (50 U.S.C. 1801); 

7 (II)(aa) designated as a foreign ter8 rorist organization pursuant to section 

9 219(a) of the Immigration and Nationality 

10 Act (8 U.S.C. 1189(a)); 

11 (bb) a terrorist organization, as de12 fined in section 212(a)(3)(B)(vi)(II) of the 

13 Immigration and Nationality Act (8 U.S.C. 

14 1182(a)(3)(B)(vi)(II)); 

15 (cc) designated as a specially des16 ignated global terrorist organization under 

17 Executive Order 13224 (50 U.S.C. 1701 

18 note; relating to blocking property and pro19 hibiting transactions with persons who com20 mit, threaten to commit, or support ter21 rorism); or 

22 (dd) an affiliate of an entity described 

23 in item (aa), (bb), or (cc); or 

24 (III) an entity that has been convicted 

25 of violating, or attempting to violate, secVerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673

kjohnson on DSK79L0C42PROD with BILLS
12 

•S 673 RS

1 tion 2331, 2332b, or 2339A of title 18, 

2 United States Code. 

3 (12) TELEVISION NETWORK.—The term ‘‘tele4 vision network’’— 

5 (A) means any person that, on February 8, 

6 1996, offered an interconnected program service 

7 on a regular basis for 15 or more hours per week 

8 to at least 25 affiliated television licensees in 10 

9 or more States; and 

10 (B) does not include any network station 

11 that is owned or operated by, or affiliated with 

12 a person described in subparagraph (A). 

13 SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS. 

14 (a) NOTICE.— 

15 (1) PROCESS TO FORM A JOINT NEGOTIATION EN16 TITY.— 

17 (A) IN GENERAL.—An eligible digital jour18 nalism provider shall provide public notice to 

19 announce the opportunity for other eligible dig20 ital journalism providers to join a joint negotia21 tion entity for the purpose of engaging in joint 

22 negotiations with a covered platform under this 

23 section, regarding the pricing, terms, and condi24 tions by which the covered platform may access 

25 the content of the eligible digital journalism proVerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673

kjohnson on DSK79L0C42PROD with BILLS
13 

•S 673 RS

1 viders that are members of the joint negotiation 

2 entity. 

3 (B) APPLICATION.—During the 60-day pe4 riod beginning on the date public notice is made 

5 under subparagraph (A), any eligible digital 

6 journalism provider may apply to join the joint 

7 negotiation entity. 

8 (C) FORMATION.—A joint negotiation entity 

9 is established upon the agreement of 2 or more 

10 eligible digital journalism providers, and may 

11 create admission criteria for membership unre12 lated to the size of an eligible digital journalism 

13 provider or the views expressed by its content, 

14 including criteria to limit membership to only 

15 eligible publishers or only eligible broadcasters. 

16 (D) GOVERNANCE.—By a majority vote of 

17 its members, a joint negotiation entity formed 

18 under this section shall establish rules and proce19 dures to govern decision making by the entity 

20 and each eligible digital journalism provider 

21 shall be entitled to 1 vote on any matter sub22 mitted to a vote of the members. 

23 (E) ADDITIONAL MEMBERS.—After the expi24 ration of the 60-day period described in subpara25 graph (B), an eligible digital journalism proVerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673

kjohnson on DSK79L0C42PROD with BILLS
14 

•S 673 RS

1 vider may apply to join the joint negotiation en2 tity, and may be admitted to the joint negotia3 tion entity upon a majority vote of its members, 

4 if the applicant otherwise satisfies any criteria 

5 for admission established by the joint negotiation 

6 entity. 

7 (F) DESIGNATION.—A joint negotiation en8 tity may designate agents on a nonexclusive 

9 basis— 

10 (i) to engage in negotiations with a 

11 covered platform conducted under this sec12 tion; and 

13 (ii) to agree to pay or receive pay14 ments under or related to an agreement ne15 gotiated under this section or an arbitration 

16 decision issued under section 4. 

17 (G) OPT-OUT.— 

18 (i) IN GENERAL.—After becoming a 

19 member of the joint negotiation entity, an 

20 eligible digital journalism provider may opt 

21 out of the joint negotiation entity at any 

22 time before notice is sent to the covered plat23 form under paragraph (2). 

24 (ii) PROHIBITION ON REJOINING.—If 

25 an eligible digital journalism provider opts 


kjohnson on DSK79L0C42PROD with BILLS
15 

•S 673 RS

1 out of a joint negotiation entity under 

2 clause (i), the eligible digital journalism 

3 provider may not— 

4 (I) rejoin the joint negotiation en5 tity; or 

6 (II) receive any payment under or 

7 related to an agreement negotiated by 

8 the joint negotiation entity under this 

9 section or an arbitration decision 

10 issued under section 4. 

11 (H) TERMINATION.—A joint negotiation en12 tity will terminate and cease to exist— 

13 (i) when the entity no longer has at 

14 least 2 members; 

15 (ii) upon a majority vote of its mem16 bers; or 

17 (iii) upon the expiration or termi18 nation of an agreement negotiated under 

19 this section or an arbitration decision 

20 issued under section 4. 

21 (2) NOTICE TO A COVERED PLATFORM TO INI22 TIATE A JOINT NEGOTIATION.— 

23 (A) IN GENERAL.—A joint negotiation 

24 under this section shall commence after a covered 


kjohnson on DSK79L0C42PROD with BILLS
16 

•S 673 RS

1 platform receives a notice, sent by or on behalf 

2 of a joint negotiation entity. 

3 (B) CONTENTS OF NOTICE.—The notice de4 scribed in subparagraph (A) shall— 

5 (i) state that the joint negotiation enti6 ty is initiating a negotiation under this sec7 tion to reach an agreement regarding the 

8 pricing, terms, and conditions by which the 

9 covered platform may access the content of 

10 the eligible digital journalism providers that 

11 are members of the joint negotiation entity; 

12 (ii) identify the eligible digital jour13 nalism providers that are members of the 

14 joint negotiation entity; and 

15 (iii) provide the physical mail address 

16 (street address or post office box), telephone 

17 number, and email address of a representa18 tive authorized to receive a response to the 

19 notice on behalf of the joint negotiation en20 tity. 

21 (C) REPLY.—Not later than 30 days after 

22 receiving a notice described in subparagraph 

23 (A), the covered platform shall send a reply no24 tice to the authorized representative identified by 


kjohnson on DSK79L0C42PROD with BILLS
17 

•S 673 RS

1 or on behalf of the joint negotiation entity to ac2 knowledge receipt of the notice. 

3 (D) NOTICE TO FEDERAL ENFORCERS.— 

4 Copies of any notice described in subparagraph 

5 (A) shall be filed by or on behalf of the eligible 

6 digital journalism providers that are members of 

7 the joint negotiation entity with the Federal 

8 Trade Commission and the Assistant Attorney 

9 General in charge of the Antitrust Division of 

10 the Department of Justice not later than 30 days 

11 after the notice is sent to the covered platform. 

12 (b) CONDUCT OF THE JOINT NEGOTIATIONS.—After 

13 the date a reply notice is sent under subsection (a)(2)(C), 

14 the following shall apply: 

15 (1) Any negotiation conducted under this section 

16 shall be conducted in good faith and solely to reach 

17 an agreement regarding the pricing, terms, and con18 ditions under which the covered platform may access 

19 the content of the eligible digital journalism pro20 viders. 

21 (2) No pre-agreement discussions or agreement 

22 reached regarding pricing, terms, and conditions 

23 under this section may address whether or how the 

24 covered platform or any such eligible digital jour25 nalism provider— 


kjohnson on DSK79L0C42PROD with BILLS
18 

•S 673 RS

1 (A) displays, ranks, distributes, suppresses, 

2 promotes, throttles, labels, filters, or curates the 

3 content of the eligible digital journalism pro4 viders; or 

5 (B) displays, ranks, distributes, suppresses, 

6 promotes, throttles, labels, filters, or curates the 

7 content of any other person. 

8 (3) A party is not conducting negotiations in 

9 good faith in accordance with paragraph (1) if the 

10 party— 

11 (A) refuses to negotiate, except where eligi12 ble digital journalism providers decide to jointly 

13 deny a covered platform access to content li14 censed or produced by such eligible digital jour15 nalism providers under subsection (c); 

16 (B) refuses to designate a representative 

17 with authority to make binding representations; 

18 (C) refuses to meet and negotiate at reason19 able times and locations or otherwise causes un20 reasonable delay; 

21 (D) refuses to put forth more than a single, 

22 unilateral proposal; 

23 (E) fails to respond to a proposal of the 

24 other party, including the reasons for rejection; 


kjohnson on DSK79L0C42PROD with BILLS
19 

•S 673 RS

1 (F) enters into a separate third-party agree2 ment that unreasonably impedes the party from 

3 reaching an agreement with the negotiating 

4 party; or 

5 (G) refuses to execute a full and written 

6 agreement that has been reached verbally. 

7 (4) A covered platform is not conducting nego8 tiations in good faith in accordance with paragraph 

9 (1) if the covered platform enters into a separate 

10 agreement with an eligible digital journalism pro11 vider that impedes the eligible digital journalism pro12 vider from participating in a negotiation under this 

13 section. 

14 (5) During any negotiation conducted under this 

15 section, the joint negotiation entity and the covered 

16 platform shall each make a reasonable offer regarding 

17 the pricing, terms, and conditions by which the cov18 ered platform may access the content of the eligible 

19 digital journalism providers that are members of the 

20 joint negotiation entity, substantiated with com21 prehensive data and methodologies, including expert 

22 analysis, that reflects— 

23 (A) the pricing, terms, and conditions com24 parable to those found in commercial agreements 

25 between similarly situated entities, including 


kjohnson on DSK79L0C42PROD with BILLS
20 

•S 673 RS

1 price, duration, territory, value of data gen2 erated directly or indirectly by the content; 

3 (B) the fair market value to the covered 

4 platform of having access to the content of the el5 igible digital journalism providers that are mem6 bers of the joint negotiation entity and the re7 sulting incremental contribution to the revenue 

8 of the covered platform, including direct and in9 direct advertising or promotional revenues, 

10 which shall not be offset by any value conferred 

11 upon the eligible digital journalism providers 

12 that are members of the joint negotiation entity 

13 by the covered platform for aggregating or dis14 tributing their content; and 

15 (C) the investment of the eligible digital 

16 journalism providers that are members of the 

17 joint negotiation entity in producing original 

18 news and related content, including the number 

19 of journalists employed by each. 

20 (c) JOINT WITHHOLDING OF CONTENT.—At any point 

21 after a notice is sent to the covered platform to initiate joint 

22 negotiations under subsection (a)(2), the eligible digital 

23 journalism providers that are members of the joint negotia24 tion entity may jointly deny the covered platform access 


kjohnson on DSK79L0C42PROD with BILLS
21 

•S 673 RS

1 to content licensed or produced by such eligible digital jour2 nalism providers. 

3 SEC. 4. ARBITRATION FOR ELIGIBLE PUBLISHERS. 

4 (a) RIGHT TO FINAL OFFER ARBITRATION.— 

5 (1) IN GENERAL.—If the membership of a joint 

6 negotiation entity consists only of eligible publishers, 

7 on or after the date that is 180 days after the date 

8 negotiations under section 3 begin, the joint negotia9 tion entity may initiate a final offer arbitration 

10 against the covered platform for an arbitration panel 

11 to determine the pricing, terms, and conditions by 

12 which the content displayed, provided, distributed, or 

13 offered by a qualifying publication of any eligible 

14 publisher that is a member of the joint negotiation en15 tity will be accessed by the covered platform if the 

16 parties are unable to reach an agreement and regard17 less of whether the joint negotiation entity, its mem18 bers, or the covered platform complied with the re19 quirements of section 3(b). 

20 (2) EFFECT OF ADDITIONAL MEMBERS.—If an 

21 additional member joins the joint negotiation entity 

22 under section 3(a)(1)(E) more than 90 days after the 

23 date negotiations under section 3 begin, the joint ne24 gotiation entity may not initiate a final offer arbitra25 tion under paragraph (1) until 180 days after the 


kjohnson on DSK79L0C42PROD with BILLS
22 

•S 673 RS

1 date the last member joins the joint negotiation enti2 ty. No additional members may join the joint negotia3 tion entity after the arbitration has commenced. 

4 (b) NOTICE.—The joint negotiation entity shall pro5 vide notice of its intention to initiate final offer arbitration 

6 under this section to all of the members of the joint negotia7 tion entity no less than 10 days prior to initiating such 

8 final offer arbitration. 

9 (c) MEMBERSHIP.—If a joint negotiation entity initi10 ates final offer arbitration under this section, any indi11 vidual eligible publisher that is a member of the joint nego12 tiation entity shall remain a member of the joint negotia13 tion entity until the completion of the arbitration, unless 

14 the eligible publisher provides written notice to the joint ne15 gotiation entity of its intention to withdraw from the joint 

16 negotiation entity within 7 days of receiving notice under 

17 subsection (b). 

18 (d) PROCEEDINGS.— 

19 (1) RULES OF ARBITRATION.—The arbitration 

20 shall be decided by a panel of 3 arbitrators under the 

21 American Arbitration Association’s Commercial Arbi22 tration Rules and Mediation Procedures and the 

23 American Arbitration Association-International Cen24 tre for Dispute Resolution Final Offer Arbitration 


kjohnson on DSK79L0C42PROD with BILLS
23 

•S 673 RS

1 Supplementary Rules, except to the extent they con2 flict with this subsection. 

3 (2) INITIATION OF ARBITRATION.—A final offer 

4 arbitration under subsection (a) shall be initiated as 

5 provided in Rule R-4 of the American Arbitration As6 sociation’s Commercial Arbitration Rules and Medi7 ation Procedures, except that the joint negotiation en8 tity initiating the arbitration shall refer to this Act 

9 in its demand for arbitration, rather than submitting 

10 contractual arbitration provisions. 

11 (3) COMMENCEMENT AND FUNDING.— 

12 (A) COMMENCEMENT.—A final offer arbi13 tration proceeding shall commence 10 days after 

14 the date a final offer arbitration is initiated 

15 under subsection (a). 

16 (B) FUNDING.—The cost of administering 

17 the arbitration proceeding, including arbitrator 

18 compensation, expenses, and administrative fees, 

19 shall be shared equally between the covered plat20 form and the joint negotiation entity. 

21 (4) APPOINTMENT OF THE ARBITRATION

22 PANEL.—The arbitrators shall be appointed in ac23 cordance with the American Arbitration Association’s 

24 Commercial Arbitration Rules and Mediation Proce25 dures. 


kjohnson on DSK79L0C42PROD with BILLS
24 

•S 673 RS

1 (5) OTHER REQUIREMENTS.—During a final 

2 offer arbitration proceeding under this section— 

3 (A) the joint negotiation entity and the cov4 ered platform may demand the production of 

5 documents and information that are nonprivi6 leged, reasonably necessary, and reasonably ac7 cessible without undue expense; 

8 (B) documents and information described 

9 in subparagraph (A) shall be exchanged not later 

10 than 30 days after the date the demand is filed; 

11 (C) rules regarding the admissibility of evi12 dence applicable in Federal court shall apply; 

13 (D) the joint negotiation entity and covered 

14 platform shall each submit a final offer proposal 

15 for the pricing, terms, and conditions under 

16 which the content displayed, provided, distrib17 uted, or offered by a qualifying publication of 

18 any eligible publisher that is a member of the 

19 joint negotiation entity will be accessed by the 

20 covered platform, and which shall include the re21 muneration that the eligible publishers should re22 ceive from the covered platform for pro23 grammatic access to the content of the eligible 

24 publishers that are members of the joint negotia25 tion entity during the period under negotiation 


kjohnson on DSK79L0C42PROD with BILLS
25 

•S 673 RS

1 based on the fair market value of such access, 

2 which shall include backup materials sufficient 

3 to permit the other party to replicate the prof4 fered valuation; 

5 (E) no discussion or final offer under this 

6 section may address whether or how the covered 

7 platform or any such eligible digital journalism 

8 provider— 

9 (i) displays, ranks, distributes, sup10 presses, promotes, throttles, labels, filters, or 

11 curates the content of the eligible digital 

12 journalism providers; or 

13 (ii) displays, ranks distributes, sup14 presses, promotes, throttles, labels, filters or 

15 curates the content of any other person; and 

16 (F) if applicable, each eligible publisher 

17 that is a member of the joint negotiation entity 

18 shall provide information and data to guide the 

19 distribution of remuneration among the members 

20 of the joint negotiation entity, including— 

21 (i) any compensation received by the 

22 eligible publisher through commercial agree23 ment prior to commencement of negotia24 tions under section 3 for access to content 

25 by the covered platform during any part of 


kjohnson on DSK79L0C42PROD with BILLS
26 

•S 673 RS

1 the period under negotiation, which shall be 

2 deducted from its allocation accordingly; 

3 and 

4 (ii) spending by the eligible publisher 

5 on news journalists, which are employed for 

6 an average of not fewer than 20 hours per 

7 week during the calendar quarter by the eli8 gible digital journalism provider and are 

9 responsible for gathering, preparing, direct10 ing the recording of, producing, collecting, 

11 photographing, recording, writing, editing, 

12 reporting, presenting, or publishing original 

13 news or information that concerns local, re14 gional, national, or international matters of 

15 public interest in the previous fiscal year, 

16 as a proportion of its overall budget of the 

17 eligible digital journalism provider for that 

18 period, which shall be used to guide 65 per19 cent of the distribution of remuneration 

20 among the members of the joint negotiation 

21 entity. 

22 (e) AWARD.— 

23 (1) IN GENERAL.—Not later than 60 days after 

24 the date proceedings commence under subsection 

25 (d)(3)(A), the arbitration panel shall issue an award 


kjohnson on DSK79L0C42PROD with BILLS
27 

•S 673 RS

1 that selects a final offer from 1 of the parties without 

2 modification. 

3 (2) REQUIREMENTS.—In issuing an award 

4 under paragraph (1), the arbitration panel— 

5 (A) may not consider any value conferred 

6 upon any eligible publisher by the covered plat7 form for distributing or aggregating its content 

8 as an offset to the value created by such eligible 

9 publisher; 

10 (B) shall consider past incremental revenue 

11 contributions as a guide to the future incre12 mental revenue contribution by any eligible pub13 lisher; 

14 (C) shall consider the pricing, terms, and 

15 conditions of any available, comparable commer16 cial agreements between parties granting access 

17 to digital content, including pricing, terms, and 

18 conditions relating to price, duration, territory, 

19 the value of data generated directly or indirectly 

20 by the content accounting for any material dis21 parities in negotiating power between the parties 

22 to such commercial agreements; and 

23 (D) shall issue a binding, reasoned award, 

24 including the factual and economic bases of its 

25 award, that applies for the number of years set 


kjohnson on DSK79L0C42PROD with BILLS
28 

•S 673 RS

1 forth in the winning proposal, but not fewer 

2 than 5 years. 

3 (f) PAYMENTS PURSUANT TO AWARD.— 

4 (1) IN GENERAL.—Not later than 90 days after 

5 the date an award is issued under subsection (e), the 

6 covered platform shall begin paying any eligible pub7 lisher that was a member of the joint negotiation enti8 ty participating in the arbitration according to the 

9 terms in the final offer selected by the arbitration 

10 panel. 

11 (2) DISBURSEMENT.—Payments made under 

12 paragraph (1) shall be dispersed by a claims admin13 istrator to the individual claimants that comprise the 

14 joint negotiation entity not later than 60 days after 

15 the date the funds were received from the covered plat16 form. 

17 (g) ENFORCEMENT AND JUDICIAL REVIEW.— 

18 (1) IN GENERAL.—An award made under sub19 section (e) shall be enforceable by the eligible pub20 lishers or the covered platform subject to the award 

21 through a civil action brought before a district court 

22 of the United States. 

23 (2) EXPEDITED JUDICIAL PROCESS.—In any 

24 civil action to enforce or seek judicial review of an 

25 award made under subsection (e), the court shall 


kjohnson on DSK79L0C42PROD with BILLS
29 

•S 673 RS

1 adopt a rebuttable presumption that good cause exists 

2 to prioritize the action under section 1657 of title 28, 

3 United States Code. 

4 SEC. 5. LIMITATION OF LIABILITY. 

5 (a) IN GENERAL.—In accordance with sections 3 and 

6 4, it shall not be in violation of the antitrust laws for any 

7 eligible digital journalism providers that are members of 

8 a joint negotiation entity to— 

9 (1) jointly deny a covered platform access to con10 tent for which the eligible digital journalism pro11 viders, individually or jointly, have the right to nego12 tiate or arbitrate access with respect to the covered 

13 platform; or 

14 (2) participate in joint negotiations and arbitra15 tion, as members of the joint negotiation entity, with 

16 such covered platform solely regarding the pricing, 

17 terms, and conditions under which the covered plat18 form may access the content for which the eligible dig19 ital journalism providers, individually or jointly, 

20 have the right to negotiate or arbitrate access with re21 spect to the covered platform. 

22 (b) SAFE HARBOR.— 

23 (1) ELIGIBLE DIGITAL JOURNALISM PRO24 VIDERS.—An eligible digital journalism provider 

25 shall not be in violation of the antitrust laws if the 


kjohnson on DSK79L0C42PROD with BILLS
30 

•S 673 RS

1 eligible digital journalism provider participates, as a 

2 member of a joint negotiation entity, in negotiations 

3 under section 3 or arbitration under section 4— 

4 (A) with a person that is not an eligible 

5 digital journalism provider, if the eligible digital 

6 journalism provider reasonably believes that the 

7 person is another eligible digital journalism pro8 vider; or 

9 (B) with a person that is not a covered 

10 platform, if the eligible digital journalism pro11 vider reasonably believes that the person is a cov12 ered platform. 

13 (2) JOINT NEGOTIATION ENTITIES.—A joint ne14 gotiation entity shall not be in violation of the anti15 trust laws if the joint negotiation entity engages in 

16 negotiations under section 3 or arbitration under sec17 tion 4— 

18 (A) with or on behalf of a person that is not 

19 an eligible digital journalism provider, if the 

20 joint negotiation entity reasonably believes that 

21 the person is an eligible digital journalism pro22 vider; or 

23 (B) with a person that is not a covered 

24 platform, if the joint negotiation entity reasonVerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673

kjohnson on DSK79L0C42PROD with BILLS
31 

•S 673 RS

1 ably believes that the person is a covered plat2 form. 

3 (c) NOTIFICATION OF AGREEMENTS AND ARBITRATION

4 DECISIONS.— 

5 (1) AGREEMENTS.—The parties to any written 

6 agreement, resulting from a negotiation under section 

7 3 or implementing an arbitration decision issued 

8 under section 4, shall file a copy of such agreement 

9 with the Federal Trade Commission and the Assistant 

10 Attorney General in charge of the Antitrust Division 

11 of the Department of Justice not later than 60 days 

12 after such agreement is executed. 

13 (2) ARBITRATION DECISIONS.—The parties to 

14 any arbitration decision issued under section 4, shall 

15 file a copy of such decision with the Federal Trade 

16 Commission and the Assistant Attorney General in 

17 charge of the Antitrust Division of the Department of 

18 Justice not later than 60 days after such decision is 

19 issued. 

20 (3) PUBLIC DISCLOSURE.—The Federal Trade 

21 Commission shall make the documents submitted 

22 under this subsection available to the public on the 

23 Federal Trade Commission’s website. 

24 (d) LIMITATION REGARDING THE SCOPE OF LIMITA25 TION OF LIABILITY.—No antitrust immunity shall apply 


kjohnson on DSK79L0C42PROD with BILLS
32 

•S 673 RS

1 to any negotiations, discussions, agreements, or arbitrations 

2 relating to the use, display, promotion, ranking, distribu3 tion, curation, suppression, throttling, filtering, or labeling 

4 of the content of the eligible digital journalism provider or 

5 of any other person. The limitation of liability under this 

6 section shall apply only to negotiations, discussions, agree7 ments, or arbitrations regarding the pricing, terms, and 

8 conditions under which the covered platform may access the 

9 content of the eligible digital journalism provider, not to 

10 any discussions or agreements that differentiate content 

11 based on the viewpoint expressed by such content. 

12 SEC. 6. NONDISCRIMINATION, RETALIATION, AND TRANS13 PARENCY. 

14 (a) NONDISCRIMINATION.— 

15 (1) JOINT NEGOTIATION ENTITIES.—A joint ne16 gotiation entity may not discriminate against any el17 igible digital journalism provider based on the size of 

18 the eligible digital journalism provider or the views 

19 expressed by the eligible digital journalism provider’s 

20 content. 

21 (2) COVERED PLATFORMS.—No covered platform 

22 may discriminate against any eligible digital jour23 nalism provider that is a member of a joint negotia24 tion entity in connection with a negotiation con25 ducted under section 3, or an arbitration conducted 


kjohnson on DSK79L0C42PROD with BILLS
33 

•S 673 RS

1 under section 4, based on the size of the eligible dig2 ital journalism provider or the views expressed by the 

3 eligible digital journalism provider’s content. 

4 (b) PROHIBITION ON RETALIATION BY COVERED PLAT5 FORMS.— 

6 (1) IN GENERAL.—No covered platform may re7 taliate against an eligible digital journalism provider 

8 for participating in a negotiation conducted under 

9 section 3, or an arbitration conducted under section 

10 4, including by refusing to index content or changing 

11 the ranking, identification, modification, branding, or 

12 placement of the content of the eligible digital jour13 nalism provider on the covered platform. 

14 (2) EFFECT OF CONTRACT PROVISIONS.—Any 

15 provision in an agreement that restricts an eligible 

16 digital journalism provider from receiving compensa17 tion through a negotiation conducted under section 3 

18 or an arbitration conducted under section 4 shall be 

19 void. 

20 (c) INVESTING IN JOURNALISM.— 

21 (1) IN GENERAL.—Without disclosing confiden22 tial information regarding the pricing, terms, and 

23 conditions of an agreement reached under section 3, 

24 an agreement implementing an arbitration decision 

25 issued under section 4, or an arbitration decision 


kjohnson on DSK79L0C42PROD with BILLS
34 

•S 673 RS

1 issued under section 4, or confidential financial infor2 mation, any eligible digital journalism provider that 

3 receives funds under or related to such agreement or 

4 arbitration decision shall provide to the Federal 

5 Trade Commission, on an annual basis, information 

6 regarding the use of any such funds during the prior 

7 year to support ongoing and future operations to 

8 maintain or enhance the production and distribution 

9 of news or information that concerns local, regional, 

10 national, or international matters of public interest, 

11 including— 

12 (A) the amount of funds received under or 

13 related to each such agreement or decision; and 

14 (B) a good-faith estimate of the amount of 

15 funds that went to news journalists employed for 

16 an average of not fewer than 20 hours per week 

17 during the calendar year by the eligible digital 

18 journalism provider. 

19 (2) PUBLIC DISCLOSURE.—The Federal Trade 

20 Commission shall make the disclosures submitted 

21 under paragraph (1) available to the public on the 

22 Federal Trade Commission’s website. 

23 SEC. 7. PRIVATE RIGHTS OF ACTION. 

24 (a) NEGOTIATIONS.— 


kjohnson on DSK79L0C42PROD with BILLS
35 

•S 673 RS

1 (1) IN GENERAL.—Any eligible digital jour2 nalism provider, either jointly with other eligible dig3 ital journalism providers or through an authorized 

4 representative, or covered platform that participated 

5 in negotiations under section 3 may bring a civil ac6 tion in an appropriate district court of the United 

7 States alleging a violation of section 3(b). 

8 (2) DAMAGES.—A court shall award damages to 

9 a prevailing plaintiff under this subsection— 

10 (A) approximating the value of the last rea11 sonable offer of the plaintiff if the defendant did 

12 not conduct negotiations in good faith in viola13 tion of section 3(b)(1); 

14 (B) approximating the value of the last rea15 sonable offer of the plaintiff if the defendant— 

16 (i) did not conduct negotiations in 

17 good faith in violation of section 3(b)(1); 

18 and 

19 (ii) had not yet extended a reasonable 

20 offer; or 

21 (C) approximating the value of the plain22 tiff’s last reasonable offer if the defendant did not 

23 make a reasonable offer in violation of section 

24 3(b)(5). 


kjohnson on DSK79L0C42PROD with BILLS
36 

•S 673 RS

1 (3) ATTORNEYS FEES.—A court shall award at2 torney’s fees to the prevailing party under this sub3 section. 

4 (b) DISCRIMINATION.— 

5 (1) JOINT NEGOTIATION ENTITIES.— 

6 (A) IN GENERAL.—An eligible digital jour7 nalism provider that is denied membership in a 

8 joint negotiation entity in violation of section 

9 6(a)(1) may bring a civil action in an appro10 priate district court of the United States against 

11 the joint negotiation entity and its members not 

12 later than 30 days after the date membership is 

13 denied. 

14 (B) REMEDIES.— 

15 (i) BEFORE AGREEMENT OR ARBITRA16 TION DECISION.— 

17 (I) IN GENERAL.—An eligible dig18 ital journalism provider that prevails 

19 in an action under subparagraph (A) 

20 before the date an agreement is exe21 cuted under section 3 or an arbitration 

22 decision is issued under section 4, as 

23 applicable, regarding the pricing, 

24 terms, and conditions by which the 

25 covered platform may access the conVerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673

kjohnson on DSK79L0C42PROD with BILLS
37 

•S 673 RS

1 tent of the eligible digital journalism 

2 providers that are members of the joint 

3 negotiation entity, may join the joint 

4 negotiation entity and participate in 

5 the negotiation under section 3 or the 

6 arbitration under section 4, as appli7 cable. 

8 (II) NOTICE.—A notice, by or on 

9 behalf of the joint negotiation entity, 

10 shall be sent to the covered platform to 

11 identify the eligible digital journalism 

12 provider that joins the negotiation or 

13 arbitration under subclause (I). 

14 (ii) AFTER AGREEMENT OR ARBITRA15 TION DECISION.— 

16 (I) IN GENERAL.—An eligible dig17 ital journalism provider that prevails 

18 in an action under subparagraph (A) 

19 after the date an agreement is executed 

20 under section 3 or an arbitration deci21 sion is issued under section 4, as ap22 plicable, regarding the pricing, terms, 

23 and conditions by which the covered 

24 platform may access the content of the 

25 eligible digital journalism providers 


kjohnson on DSK79L0C42PROD with BILLS
38 

•S 673 RS

1 that are members of the joint negotia2 tion entity, may join the joint negotia3 tion entity and be eligible for the same 

4 pricing, terms, and conditions by 

5 which the covered platform may access 

6 the content of the other eligible digital 

7 journalism providers that are members 

8 of the joint negotiation entity. 

9 (II) NOTICE.—A notice, by or on 

10 behalf of the joint negotiation entity, 

11 shall be sent to the covered platform to 

12 identify the eligible digital journalism 

13 provider that joins the joint negotia14 tion entity under subclause (I) and 

15 that is eligible to receive the same pric16 ing, terms, and conditions under the 

17 agreement negotiated under section 3 

18 or the arbitration decision issued 

19 under section 4, as applicable, by 

20 which the covered platform may access 

21 the content of the other eligible digital 

22 journalism providers that are members 

23 of the joint negotiation entity. 

24 (2) COVERED PLATFORMS.— 


kjohnson on DSK79L0C42PROD with BILLS
39 

•S 673 RS

1 (A) IN GENERAL.—An eligible digital jour2 nalism provider that is discriminated against in 

3 violation of section 6(a)(2) may bring a civil ac4 tion in an appropriate district court of the 

5 United States against the covered platform. 

6 (B) REMEDIES.—An eligible digital jour7 nalism provider that prevails under subpara8 graph (A) shall be entitled to— 

9 (i) recover the actual damages sus10 tained by the eligible digital journalism 

11 provider as a result of the discrimination; 

12 (ii) injunctive relief on such terms as 

13 the court may deem reasonable to prevent or 

14 restrain the covered platform from discrimi15 nating against the eligible digital jour16 nalism provider; and 

17 (iii) the costs of the suit, including rea18 sonable attorneys’ fees. 

19 (c) RETALIATION.— 

20 (1) IN GENERAL.—An eligible digital journalism 

21 provider that is retaliated against in violation of sec22 tion 6(b)(1) may bring a civil action in an appro23 priate district court of the United States against the 

24 covered platform. 


kjohnson on DSK79L0C42PROD with BILLS
40 

•S 673 RS

1 (2) REMEDIES.—An eligible digital journalism 

2 provider that prevails in an action under paragraph 

3 (1) shall be entitled to— 

4 (A) recover the actual damages sustained by 

5 the eligible digital journalism provider as a re6 sult of the retaliation; 

7 (B) injunctive relief on such terms as the 

8 court may deem reasonable to prevent or restrain 

9 the covered platform from retaliating against the 

10 eligible digital journalism provider; and 

11 (C) the costs of the suit, including reason12 able attorneys’ fees. 

13 SEC. 8. REPORT. 

14 (a) STUDY.—The Comptroller General shall study the 

15 impact of the joint negotiations authorized under this Act, 

16 including a summary of the deals negotiated, the impact 

17 of such deals on local and regional news, the effect on the 

18 free, open, and interoperable Internet including the ability 

19 of the public to share and access information, and the effect 

20 this Act has had on employment for journalists. 

21 (b) REPORT.—Not later than 5 years after the date 

22 of enactment of this Act, the Comptroller General shall sub23 mit to Congress a report on the study required under sub24 section (a). 


kjohnson on DSK79L0C42PROD with BILLS
41 

•S 673 RS

1 SEC. 9. SUNSET. 

2 (a) IN GENERAL.—Except as provided in subsections 

3 (b) and (c), this Act shall cease to have effect on the date 

4 that is 6 years after the date of its enactment. 

5 (b) EXCEPTION IN CASE OF INITIATED BUT INCOM6 PLETE JOINT NEGOTIATION OR ARBITRATION.—With re7 spect to eligible digital journalism providers that have initi8 ated but not concluded a negotiation under section 3 or an 

9 arbitration under section 4 on or before the sunset date de10 scribed in subsection (a), this Act shall cease to be effective 

11 on the date such negotiation or arbitration concludes or 180 

12 days after the date described in subsection (a), whichever 

13 occurs first. 

14 (c) LIMITATION OF LIABILITY EXCEPTION.—Section 5 

15 shall remain effective without cessation for any— 

16 (1) negotiation conducted or agreement executed 

17 under section 3; 

18 (2) arbitration conducted or arbitration decision 

19 issued under section 4; or 

20 (3) agreement implementing an arbitration deci21 sion issued under section 4; 

22 during the period of effectiveness of this Act. 

23 SEC. 10. RULE OF CONSTRUCTION. 

24 (a) ANTITRUST LAWS.—Nothing in this Act may be 

25 construed to modify, impair, or supersede the operation of 


kjohnson on DSK79L0C42PROD with BILLS
42 

•S 673 RS

1 the antitrust laws except as otherwise expressly provided 

2 in this Act. 

3 (b) COPYRIGHT AND TRADEMARK LAW.—Nothing in 

4 this Act may be construed to modify, impair, expand, or 

5 in any way alter rights pertaining to title 17, United States 

6 Code, or the Lanham Act (15 U.S.C. 1051 et seq.) 

7 SEC. 11. SEVERABILITY. 

8 If any provision of this Act, or the application of such 

9 provision to any person or circumstance, is held to be un10 constitutional, the remainder of this Act, and the applica11 tion of the remaining provisions of this Act to any person 

12 or circumstance shall not be affected. 


kjohnson on DSK79L0C42PROD with BILLS

kjohnson on DSK79L0C42PROD with BILLS
Calendar No. 569 

117TH CONGRESS 

2D SESSION S. 673 

A BILL 

To provide a temporary safe harbor for publishers 

on which content may be distributed. dominant online platforms regarding the terms of online content to collectively negotiate with 

NOVEMBER 28, 2022 

Reported with an amendment 


kjohnson on DSK79L0C42PROD with BILLS