II 

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. COLLINS, Mr. MANCHIN, Ms. LUMMIS, Mr. BOOKER, and Mr. WICKER) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Journalism Competi5 tion and Preservation Act of 2023’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


pbinns on DSKJLVW7X2PROD with $$_JOB
2 

•S 1094 IS

1 (1) ACCESS.—The term ‘‘access’’ means acquir2 ing, crawling, or indexing content. 

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

4 laws’’— 

5 (A) has the meaning given the term in 

6 subsection (a) of the first section of the Clayton 

7 Act (15 U.S.C. 12); and 

8 (B) includes— 

9 (i) section 5 of the Federal Trade 

10 Commission Act (15 U.S.C. 45) to the ex11 tent that section applies to unfair methods 

12 of competition; and 

13 (ii) any State law (including regula14 tions) that prohibits or penalizes the con15 duct described in, or is otherwise incon16 sistent with, sections 3 or 4. 

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

18 platform’’ means an online platform that at any 

19 point during the 12 months preceding the formation 

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

21 (A) has at least 50,000,000 United States22 based monthly active users or subscribers on 

23 the online platform; 

24 (B) is owned or controlled by a person 

25 with— 


pbinns on DSKJLVW7X2PROD with $$_JOB
3 

•S 1094 IS

1 (i) United States net annual sales or 

2 a market capitalization greater than 

3 $550,000,000,000, adjusted for inflation 

4 on the basis of the Consumer Price Index; 

5 or 

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

7 worldwide monthly active users on the on8 line platform; and 

9 (C) is not an organization described in sec10 tion 501(c)(3) of the Internal Revenue Code of 

11 1986. 

12 (4) ELIGIBLE BROADCASTER.—The term ‘‘eligi13 ble broadcaster’’ means a person that— 

14 (A) holds or operates under a license 

15 issued by the Federal Communications Commis16 sion under title III of the Communications Act 

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

18 (B) engages professionals to create, edit, 

19 produce, and distribute original content con20 cerning local, regional, national, or inter21 national matters of public interest through ac22 tivities including conducting interviews, observ23 ing current events, analyzing documents and 

24 other information, and fact checking through 

25 multiple firsthand or secondhand news sources; 


pbinns on DSKJLVW7X2PROD with $$_JOB
4 

•S 1094 IS

1 (C) updates its content on at least a week2 ly basis; 

3 (D) uses an editorial process for error cor4 rection and clarification, including a trans5 parent process for reporting errors or com6 plaints to the station; and 

7 (E) is not a television network. 

8 (5) ELIGIBLE DIGITAL JOURNALISM PRO9 VIDER.—The term ‘‘eligible digital journalism pro10 vider’’ means any eligible publisher or eligible broad11 caster that discloses its ownership to the public. 

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

13 publisher’’ means any person that publishes 1 or 

14 more qualifying publications. 

15 (7) NETWORK STATION.—The term ‘‘network 

16 station’’ means a television broadcast station, includ17 ing any translator station or terrestrial satellite sta18 tion that rebroadcasts all or substantially all of the 

19 programming broadcast by a network station, that is 

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

21 television networks. 

22 (8) ONLINE PLATFORM.—The term ‘‘online 

23 platform’’ means a website, online or mobile applica24 tion, operating system, digital assistant, or online 

25 service that accesses news articles, works of jourVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
5 

•S 1094 IS

1 nalism, or other content, or portions thereof, gen2 erated, created, produced, or owned by eligible dig3 ital journalism providers, and aggregates, displays, 

4 provides, distributes, or directs users to such con5 tent. 

6 (9) PERSON.—The term ‘‘person’’ includes an 

7 individual or entity existing under or authorized by 

8 the laws of the United States, the laws of any of ter9 ritory of the United States, the laws of any State, 

10 the laws of the District of Columbia, or the laws of 

11 any foreign country. 

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

13 term ‘‘pricing, terms, and conditions’’ does not in14 clude any term or condition which relates to the use, 

15 display, promotion, ranking, distribution, curation, 

16 suppression, throttling, filtering, or labeling of the 

17 content or viewpoint of any person. 

18 (11) QUALIFYING PUBLICATION.—The term 

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

20 application, or other digital service that— 

21 (A) does not primarily display, provide, 

22 distribute, or offer content generated, created, 

23 produced, or owned by an eligible broadcaster 

24 or television network; and 


pbinns on DSKJLVW7X2PROD with $$_JOB
6 

•S 1094 IS

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

2 primarily in the United States; 

3 (ii) performs a public-information function 

4 comparable to that traditionally served by news5 papers and other periodical news publications; 

6 (iii) engages professionals to create, edit, 

7 produce, and distribute original content con8 cerning local, regional, national, or inter9 national matters of public interest through ac10 tivities, including conducting interviews, observ11 ing current events, or analyzing documents and 

12 other information, and fact checking through 

13 multiple firsthand or secondhand news sources; 

14 (iv) updates its content on at least a week15 ly basis; 

16 (v) has an editorial process for error cor17 rection and clarification, including a trans18 parent process for reporting errors or com19 plaints to the publication; 

20 (vi)(I) generated at least $100,000 in an21 nual revenue from its editorial content in the 

22 previous calendar year; 

23 (II) has an International Standard Serial 

24 Number assigned to an affiliated periodical be25 fore the date of enactment of this Act; or 


pbinns on DSKJLVW7X2PROD with $$_JOB
7 

•S 1094 IS

1 (III) is owned or controlled by an exempt 

2 organization described in section 501(c)(3) of 

3 the Internal Revenue Code of 1986; 

4 (vii) has not less than 25 percent of its 

5 editorial content consisting of information about 

6 topics of current local, national, or international 

7 public interest; 

8 (viii) employed not more than 1,500 exclu9 sive full-time employees during the 12-month 

10 period prior to the date of enactment of this 

11 Act; and 

12 (ix) is not controlled or wholly or partially 

13 owned by an entity that is— 

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

15 foreign power, as those terms are defined 

16 in section 101 of the Foreign Intelligence 

17 Surveillance Act of 1978 (50 U.S.C. 

18 1801); 

19 (II)(aa) designated as a foreign ter20 rorist organization pursuant to section 

21 219(a) of the Immigration and Nationality 

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

23 (bb) a terrorist organization, as de24 fined in section 212(a)(3)(B)(vi)(II) of the 


pbinns on DSKJLVW7X2PROD with $$_JOB
8 

•S 1094 IS

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

2 1182(a)(3)(B)(vi)(II)); 

3 (cc) designated as a specially des4 ignated global terrorist organization under 

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

6 note; relating to blocking property and pro7 hibiting transactions with persons who 

8 commit, threaten to commit, or support 

9 terrorism); or 

10 (dd) an affiliate of an entity described 

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

12 (III) an entity that has been convicted 

13 of violating, or attempting to violate, sec14 tion 2331, 2332b, or 2339A of title 18, 

15 United States Code. 

16 (12) TELEVISION NETWORK.—The term ‘‘tele17 vision network’’— 

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

19 1996, offered an interconnected program serv20 ice on a regular basis for 15 or more hours per 

21 week to at least 25 affiliated television licensees 

22 in 10 or more States; and 

23 (B) does not include any network station 

24 that is owned or operated by, or affiliated with 

25 a person described in subparagraph (A). 


pbinns on DSKJLVW7X2PROD with $$_JOB
9 

•S 1094 IS

1 SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS. 

2 (a) NOTICE.— 

3 (1) PROCESS TO FORM A JOINT NEGOTIATION

4 ENTITY.— 

5 (A) IN GENERAL.—An eligible digital jour6 nalism provider shall provide public notice to 

7 announce the opportunity for other eligible dig8 ital journalism providers to join a joint negotia9 tion entity for the purpose of engaging in joint 

10 negotiations with a covered platform under this 

11 section, regarding the pricing, terms, and condi12 tions by which the covered platform may access 

13 the content of the eligible digital journalism 

14 providers that are members of the joint negotia15 tion entity. 

16 (B) APPLICATION.—During the 60-day pe17 riod beginning on the date public notice is made 

18 under subparagraph (A), any eligible digital 

19 journalism provider may apply to join the joint 

20 negotiation entity. 

21 (C) FORMATION.—A joint negotiation enti22 ty is established upon the agreement of 2 or 

23 more eligible digital journalism providers, and 

24 may create admission criteria for membership 

25 unrelated to the size of an eligible digital jour26 nalism provider or the views expressed by its 


pbinns on DSKJLVW7X2PROD with $$_JOB
10 

•S 1094 IS

1 content, including criteria to limit membership 

2 to only eligible publishers or only eligible broad3 casters. 

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

5 its members, a joint negotiation entity formed 

6 under this section shall establish rules and pro7 cedures to govern decision making by the entity 

8 and each eligible digital journalism provider 

9 shall be entitled to 1 vote on any matter sub10 mitted to a vote of the members. 

11 (E) ADDITIONAL MEMBERS.—After the ex12 piration of the 60-day period described in sub13 paragraph (B), an eligible digital journalism 

14 provider may apply to join the joint negotiation 

15 entity, and may be admitted to the joint nego16 tiation entity upon a majority vote of its mem17 bers, if the applicant otherwise satisfies any cri18 teria for admission established by the joint ne19 gotiation entity. 

20 (F) DESIGNATION.—A joint negotiation 

21 entity may designate agents on a nonexclusive 

22 basis— 

23 (i) to engage in negotiations with a 

24 covered platform conducted under this sec25 tion; and 


pbinns on DSKJLVW7X2PROD with $$_JOB
11 

•S 1094 IS

1 (ii) to agree to pay or receive pay2 ments under or related to an agreement 

3 negotiated under this section or an arbitra4 tion decision issued under section 4. 

5 (G) OPT-OUT.— 

6 (i) IN GENERAL.—After becoming a 

7 member of the joint negotiation entity, an 

8 eligible digital journalism provider may opt 

9 out of the joint negotiation entity at any 

10 time before notice is sent to the covered 

11 platform under paragraph (2). 

12 (ii) PROHIBITION ON REJOINING.—If 

13 an eligible digital journalism provider opts 

14 out of a joint negotiation entity under 

15 clause (i), the eligible digital journalism 

16 provider may not— 

17 (I) rejoin the joint negotiation 

18 entity; or 

19 (II) receive any payment under 

20 or related to an agreement negotiated 

21 by the joint negotiation entity under 

22 this section or an arbitration decision 

23 issued under section 4. 

24 (H) TERMINATION.—A joint negotiation 

25 entity will terminate and cease to exist— 


pbinns on DSKJLVW7X2PROD with $$_JOB
12 

•S 1094 IS

1 (i) when the entity no longer has at 

2 least 2 members; 

3 (ii) upon a majority vote of its mem4 bers; or 

5 (iii) upon the expiration or termi6 nation of an agreement negotiated under 

7 this section or an arbitration decision 

8 issued under section 4. 

9 (2) NOTICE TO A COVERED PLATFORM TO INI10 TIATE A JOINT NEGOTIATION.— 

11 (A) IN GENERAL.—A joint negotiation 

12 under this section shall commence after a cov13 ered platform receives a notice, sent by or on 

14 behalf of a joint negotiation entity. 

15 (B) CONTENTS OF NOTICE.—The notice 

16 described in subparagraph (A) shall— 

17 (i) state that the joint negotiation en18 tity is initiating a negotiation under this 

19 section to reach an agreement regarding 

20 the pricing, terms, and conditions by which 

21 the covered platform may access the con22 tent of the eligible digital journalism pro23 viders that are members of the joint nego24 tiation entity; 


pbinns on DSKJLVW7X2PROD with $$_JOB
13 

•S 1094 IS

1 (ii) identify the eligible digital jour2 nalism providers that are members of the 

3 joint negotiation entity; and 

4 (iii) provide the physical mail address 

5 (street address or post office box), tele6 phone number, and email address of a rep7 resentative authorized to receive a response 

8 to the notice on behalf of the joint negotia9 tion entity. 

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

11 receiving a notice described in subparagraph 

12 (A), the covered platform shall send a reply no13 tice to the authorized representative identified 

14 by or on behalf of the joint negotiation entity 

15 to acknowledge receipt of the notice. 

16 (D) NOTICE TO FEDERAL ENFORCERS.— 

17 Copies of any notice described in subparagraph 

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

19 digital journalism providers that are members 

20 of the joint negotiation entity with the Federal 

21 Trade Commission and the Assistant Attorney 

22 General in charge of the Antitrust Division of 

23 the Department of Justice not later than 30 

24 days after the notice is sent to the covered plat25 form. 


pbinns on DSKJLVW7X2PROD with $$_JOB
14 

•S 1094 IS

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

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

3 the following shall apply: 

4 (1) Any negotiation conducted under this sec5 tion shall be conducted in good faith and solely to 

6 reach an agreement regarding the pricing, terms, 

7 and conditions under which the covered platform 

8 may access the content of the eligible digital jour9 nalism providers. 

10 (2) No pre-agreement discussions or agreement 

11 reached regarding pricing, terms, and conditions 

12 under this section may address whether or how the 

13 covered platform or any such eligible digital jour14 nalism provider— 

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

16 promotes, throttles, labels, filters, or curates 

17 the content of the eligible digital journalism 

18 providers; or 

19 (B) displays, ranks, distributes, sup20 presses, promotes, throttles, labels, filters, or 

21 curates the content of any other person. 

22 (3) A party is not conducting negotiations in 

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

24 party— 


pbinns on DSKJLVW7X2PROD with $$_JOB
15 

•S 1094 IS

1 (A) refuses to negotiate, except where eligi2 ble digital journalism providers decide to jointly 

3 deny a covered platform access to content li4 censed or produced by such eligible digital jour5 nalism providers under subsection (c); 

6 (B) refuses to designate a representative 

7 with authority to make binding representations; 

8 (C) refuses to meet and negotiate at rea9 sonable times and locations or otherwise causes 

10 unreasonable delay; 

11 (D) refuses to put forth more than a sin12 gle, unilateral proposal; 

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

14 other party, including the reasons for rejection; 

15 (F) enters into a separate third-party 

16 agreement that unreasonably impedes the party 

17 from reaching an agreement with the negoti18 ating party; or 

19 (G) refuses to execute a full and written 

20 agreement that has been reached verbally. 

21 (4) A covered platform is not conducting nego22 tiations in good faith in accordance with paragraph 

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

24 agreement with an eligible digital journalism pro25 vider that impedes the eligible digital journalism 


pbinns on DSKJLVW7X2PROD with $$_JOB
16 

•S 1094 IS

1 provider from participating in a negotiation under 

2 this section. 

3 (5) During any negotiation conducted under 

4 this section, the joint negotiation entity and the cov5 ered platform shall each make a reasonable offer re6 garding the pricing, terms, and conditions by which 

7 the covered platform may access the content of the 

8 eligible digital journalism providers that are mem9 bers of the joint negotiation entity, substantiated 

10 with comprehensive data and methodologies, includ11 ing expert analysis, that reflects— 

12 (A) the pricing, terms, and conditions com13 parable to those found in commercial agree14 ments between similarly situated entities, in15 cluding price, duration, territory, value of data 

16 generated directly or indirectly by the content; 

17 (B) the fair market value to the covered 

18 platform of having access to the content of the 

19 eligible digital journalism providers that are 

20 members of the joint negotiation entity and the 

21 resulting incremental contribution to the rev22 enue of the covered platform, including direct 

23 and indirect advertising or promotional reve24 nues, which shall not be offset by any value 

25 conferred upon the eligible digital journalism 


pbinns on DSKJLVW7X2PROD with $$_JOB
17 

•S 1094 IS

1 providers that are members of the joint negotia2 tion entity by the covered platform for aggre3 gating or distributing their content; and 

4 (C) the investment of the eligible digital 

5 journalism providers that are members of the 

6 joint negotiation entity in producing original 

7 news and related content, including the number 

8 of journalists employed by each. 

9 (c) JOINT WITHHOLDING OF CONTENT.—At any 

10 point after a notice is sent to the covered platform to ini11 tiate joint negotiations under subsection (a)(2), the eligi12 ble digital journalism providers that are members of the 

13 joint negotiation entity may jointly deny the covered plat14 form access to content licensed or produced by such eligi15 ble digital journalism providers. 

16 SEC. 4. ARBITRATION FOR ELIGIBLE PUBLISHERS. 

17 (a) RIGHT TO FINAL OFFER ARBITRATION.— 

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

19 negotiation entity consists only of eligible publishers, 

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

21 negotiations under section 3 begin, the joint negotia22 tion entity may initiate a final offer arbitration 

23 against the covered platform for an arbitration panel 

24 to determine the pricing, terms, and conditions by 

25 which the content displayed, provided, distributed, or 


pbinns on DSKJLVW7X2PROD with $$_JOB
18 

•S 1094 IS

1 offered by a qualifying publication of any eligible 

2 publisher that is a member of the joint negotiation 

3 entity will be accessed by the covered platform if the 

4 parties are unable to reach an agreement and re5 gardless of whether the joint negotiation entity, its 

6 members, or the covered platform complied with the 

7 requirements of section 3(b). 

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

9 additional member joins the joint negotiation entity 

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

11 the date negotiations under section 3 begin, the joint 

12 negotiation entity may not initiate a final offer arbi13 tration under paragraph (1) until 180 days after the 

14 date the last member joins the joint negotiation enti15 ty. No additional members may join the joint nego16 tiation entity after the arbitration has commenced. 

17 (b) NOTICE.—The joint negotiation entity shall pro18 vide notice of its intention to initiate final offer arbitration 

19 under this section to all of the members of the joint nego20 tiation entity no less than 10 days prior to initiating such 

21 final offer arbitration. 

22 (c) MEMBERSHIP.—If a joint negotiation entity initi23 ates final offer arbitration under this section, any indi24 vidual eligible publisher that is a member of the joint ne25 gotiation entity shall remain a member of the joint negoVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
19 

•S 1094 IS

1 tiation entity until the completion of the arbitration, un2 less the eligible publisher provides written notice to the 

3 joint negotiation entity of its intention to withdraw from 

4 the joint negotiation entity within 7 days of receiving no5 tice under subsection (b). 

6 (d) PROCEEDINGS.— 

7 (1) RULES OF ARBITRATION.—The arbitration 

8 shall be decided by a panel of 3 arbitrators under 

9 the American Arbitration Association’s Commercial 

10 Arbitration Rules and Mediation Procedures and the 

11 American Arbitration Association-International Cen12 tre for Dispute Resolution Final Offer Arbitration 

13 Supplementary Rules, except to the extent they con14 flict with this subsection. 

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

16 arbitration under subsection (a) shall be initiated as 

17 provided in Rule R-4 of the American Arbitration 

18 Association’s Commercial Arbitration Rules and Me19 diation Procedures, except that the joint negotiation 

20 entity initiating the arbitration shall refer to this 

21 Act in its demand for arbitration, rather than sub22 mitting contractual arbitration provisions. 

23 (3) COMMENCEMENT AND FUNDING.— 

24 (A) COMMENCEMENT.—A final offer arbi25 tration proceeding shall commence 10 days 


pbinns on DSKJLVW7X2PROD with $$_JOB
20 

•S 1094 IS

1 after the date a final offer arbitration is initi2 ated under subsection (a). 

3 (B) FUNDING.—The cost of administering 

4 the arbitration proceeding, including arbitrator 

5 compensation, expenses, and administrative 

6 fees, shall be shared equally between the cov7 ered platform and the joint negotiation entity. 

8 (4) APPOINTMENT OF THE ARBITRATION

9 PANEL.—The arbitrators shall be appointed in ac10 cordance with the American Arbitration Associa11 tion’s Commercial Arbitration Rules and Mediation 

12 Procedures. 

13 (5) OTHER REQUIREMENTS.—During a final 

14 offer arbitration proceeding under this section— 

15 (A) the joint negotiation entity and the 

16 covered platform may demand the production of 

17 documents and information that are nonprivi18 leged, reasonably necessary, and reasonably ac19 cessible without undue expense; 

20 (B) documents and information described 

21 in subparagraph (A) shall be exchanged not 

22 later than 30 days after the date the demand 

23 is filed; 

24 (C) rules regarding the admissibility of evi25 dence applicable in Federal court shall apply; 


pbinns on DSKJLVW7X2PROD with $$_JOB
21 

•S 1094 IS

1 (D) the joint negotiation entity and cov2 ered platform shall each submit a final offer 

3 proposal for the pricing, terms, and conditions 

4 under which the content displayed, provided, 

5 distributed, or offered by a qualifying publica6 tion of any eligible publisher that is a member 

7 of the joint negotiation entity will be accessed 

8 by the covered platform, and which shall in9 clude the remuneration that the eligible pub10 lishers should receive from the covered platform 

11 for programmatic access to the content of the 

12 eligible publishers that are members of the joint 

13 negotiation entity during the period under nego14 tiation based on the fair market value of such 

15 access, which shall include backup materials 

16 sufficient to permit the other party to replicate 

17 the proffered valuation; 

18 (E) no discussion or final offer under this 

19 section may address whether or how the covered 

20 platform or any such eligible digital journalism 

21 provider— 

22 (i) displays, ranks, distributes, sup23 presses, promotes, throttles, labels, filters, 

24 or curates the content of the eligible digital 

25 journalism providers; or 


pbinns on DSKJLVW7X2PROD with $$_JOB
22 

•S 1094 IS

1 (ii) displays, ranks distributes, sup2 presses, promotes, throttles, labels, filters 

3 or curates the content of any other person; 

4 and 

5 (F) if applicable, each eligible publisher 

6 that is a member of the joint negotiation entity 

7 shall provide information and data to guide the 

8 distribution of remuneration among the mem9 bers of the joint negotiation entity, including— 

10 (i) any compensation received by the 

11 eligible publisher through commercial 

12 agreement prior to commencement of nego13 tiations under section 3 for access to con14 tent by the covered platform during any 

15 part of the period under negotiation, which 

16 shall be deducted from its allocation ac17 cordingly; and 

18 (ii) spending by the eligible publisher 

19 on news journalists, which are employed 

20 for an average of not fewer than 20 hours 

21 per week during the calendar quarter by 

22 the eligible digital journalism provider and 

23 are responsible for gathering, preparing, 

24 directing the recording of, producing, col25 lecting, photographing, recording, writing, 


pbinns on DSKJLVW7X2PROD with $$_JOB
23 

•S 1094 IS

1 editing, reporting, presenting, or pub2 lishing original news or information that 

3 concerns local, regional, national, or inter4 national matters of public interest in the 

5 previous fiscal year, as a proportion of its 

6 overall budget of the eligible digital jour7 nalism provider for that period, which shall 

8 be used to guide 65 percent of the dis9 tribution of remuneration among the mem10 bers of the joint negotiation entity. 

11 (e) AWARD.— 

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

13 the date proceedings commence under subsection 

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

15 that selects a final offer from 1 of the parties with16 out modification. 

17 (2) REQUIREMENTS.—In issuing an award 

18 under paragraph (1), the arbitration panel— 

19 (A) may not consider any value conferred 

20 upon any eligible publisher by the covered plat21 form for distributing or aggregating its content 

22 as an offset to the value created by such eligible 

23 publisher; 

24 (B) shall consider past incremental revenue 

25 contributions as a guide to the future increVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
24 

•S 1094 IS

1 mental revenue contribution by any eligible pub2 lisher; 

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

4 conditions of any available, comparable com5 mercial agreements between parties granting 

6 access to digital content, including pricing, 

7 terms, and conditions relating to price, dura8 tion, territory, the value of data generated di9 rectly or indirectly by the content accounting 

10 for any material disparities in negotiating 

11 power between the parties to such commercial 

12 agreements; and 

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

14 including the factual and economic bases of its 

15 award, that applies for the number of years set 

16 forth in the winning proposal, but not fewer 

17 than 5 years. 

18 (f) PAYMENTS PURSUANT TO AWARD.— 

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

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

21 covered platform shall begin paying any eligible pub22 lisher that was a member of the joint negotiation en23 tity participating in the arbitration according to the 

24 terms in the final offer selected by the arbitration 

25 panel. 


pbinns on DSKJLVW7X2PROD with $$_JOB
25 

•S 1094 IS

1 (2) DISBURSEMENT.—Payments made under 

2 paragraph (1) shall be dispersed by a claims admin3 istrator to the individual claimants that comprise the 

4 joint negotiation entity not later than 60 days after 

5 the date the funds were received from the covered 

6 platform. 

7 (g) ENFORCEMENT AND JUDICIAL REVIEW.— 

8 (1) IN GENERAL.—An award made under sub9 section (e) shall be enforceable by the eligible pub10 lishers or the covered platform subject to the award 

11 through a civil action brought before a district court 

12 of the United States. 

13 (2) EXPEDITED JUDICIAL PROCESS.—In any 

14 civil action to enforce or seek judicial review of an 

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

16 adopt a rebuttable presumption that good cause ex17 ists to prioritize the action under section 1657 of 

18 title 28, United States Code. 

19 SEC. 5. LIMITATION OF LIABILITY. 

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

21 4, it shall not be in violation of the antitrust laws for any 

22 eligible digital journalism providers that are members of 

23 a joint negotiation entity to— 

24 (1) jointly deny a covered platform access to 

25 content for which the eligible digital journalism proVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
26 

•S 1094 IS

1 viders, individually or jointly, have the right to nego2 tiate or arbitrate access with respect to the covered 

3 platform; or 

4 (2) participate in joint negotiations and arbitra5 tion, as members of the joint negotiation entity, with 

6 such covered platform solely regarding the pricing, 

7 terms, and conditions under which the covered plat8 form may access the content for which the eligible 

9 digital journalism providers, individually or jointly, 

10 have the right to negotiate or arbitrate access with 

11 respect to the covered platform. 

12 (b) SAFE HARBOR.— 

13 (1) ELIGIBLE DIGITAL JOURNALISM PRO14 VIDERS.—An eligible digital journalism provider 

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

16 eligible digital journalism provider participates, as a 

17 member of a joint negotiation entity, in negotiations 

18 under section 3 or arbitration under section 4— 

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

20 digital journalism provider, if the eligible digital 

21 journalism provider reasonably believes that the 

22 person is another eligible digital journalism pro23 vider; or 

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

25 platform, if the eligible digital journalism proVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
27 

•S 1094 IS

1 vider reasonably believes that the person is a 

2 covered platform. 

3 (2) JOINT NEGOTIATION ENTITIES.—A joint ne4 gotiation entity shall not be in violation of the anti5 trust laws if the joint negotiation entity engages in 

6 negotiations under section 3 or arbitration under 

7 section 4— 

8 (A) with or on behalf of a person that is 

9 not an eligible digital journalism provider, if the 

10 joint negotiation entity reasonably believes that 

11 the person is an eligible digital journalism pro12 vider; or 

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

14 platform, if the joint negotiation entity reason15 ably believes that the person is a covered plat16 form. 

17 (c) NOTIFICATION OF AGREEMENTS AND ARBITRA18 TION DECISIONS.— 

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

20 agreement, resulting from a negotiation under sec21 tion 3 or implementing an arbitration decision issued 

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

23 with the Federal Trade Commission and the Assist24 ant Attorney General in charge of the Antitrust DiVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
28 

•S 1094 IS

1 vision of the Department of Justice not later than 

2 60 days after such agreement is executed. 

3 (2) ARBITRATION DECISIONS.—The parties to 

4 any arbitration decision issued under section 4, shall 

5 file a copy of such decision with the Federal Trade 

6 Commission and the Assistant Attorney General in 

7 charge of the Antitrust Division of the Department 

8 of Justice not later than 60 days after such decision 

9 is issued. 

10 (3) PUBLIC DISCLOSURE.—The Federal Trade 

11 Commission shall make the documents submitted 

12 under this subsection available to the public on the 

13 Federal Trade Commission’s website. 

14 (d) LIMITATION REGARDING THE SCOPE OF LIMITA15 TION OF LIABILITY.—No antitrust immunity shall apply 

16 to any negotiations, discussions, agreements, or arbitra17 tions relating to the use, display, promotion, ranking, dis18 tribution, curation, suppression, throttling, filtering, or la19 beling of the content of the eligible digital journalism pro20 vider or of any other person. The limitation of liability 

21 under this section shall apply only to negotiations, discus22 sions, agreements, or arbitrations regarding the pricing, 

23 terms, and conditions under which the covered platform 

24 may access the content of the eligible digital journalism 

25 provider, not to any discussions or agreements that difVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
29 

•S 1094 IS

1 ferentiate content based on the viewpoint expressed by 

2 such content. 

3 SEC. 6. NONDISCRIMINATION, RETALIATION, AND TRANS4 PARENCY. 

5 (a) NONDISCRIMINATION.— 

6 (1) JOINT NEGOTIATION ENTITIES.—A joint ne7 gotiation entity may not discriminate against any el8 igible digital journalism provider based on the size of 

9 the eligible digital journalism provider or the views 

10 expressed by the eligible digital journalism provider’s 

11 content. 

12 (2) COVERED PLATFORMS.—No covered plat13 form may discriminate against any eligible digital 

14 journalism provider that is a member of a joint ne15 gotiation entity in connection with a negotiation con16 ducted under section 3, or an arbitration conducted 

17 under section 4, based on the size of the eligible dig18 ital journalism provider or the views expressed by 

19 the eligible digital journalism provider’s content. 

20 (b) PROHIBITION ON RETALIATION BY COVERED

21 PLATFORMS.— 

22 (1) IN GENERAL.—No covered platform may re23 taliate against an eligible digital journalism provider 

24 for participating in a negotiation conducted under 

25 section 3, or an arbitration conducted under section 


pbinns on DSKJLVW7X2PROD with $$_JOB
30 

•S 1094 IS

1 4, including by refusing to index content or changing 

2 the ranking, identification, modification, branding, 

3 or placement of the content of the eligible digital 

4 journalism provider on the covered platform. 

5 (2) EFFECT OF CONTRACT PROVISIONS.—Any 

6 provision in an agreement that restricts an eligible 

7 digital journalism provider from receiving compensa8 tion through a negotiation conducted under section 

9 3 or an arbitration conducted under section 4 shall 

10 be void. 

11 (c) INVESTING IN JOURNALISM.— 

12 (1) IN GENERAL.—Without disclosing confiden13 tial information regarding the pricing, terms, and 

14 conditions of an agreement reached under section 3, 

15 an agreement implementing an arbitration decision 

16 issued under section 4, or an arbitration decision 

17 issued under section 4, or confidential financial in18 formation, any eligible digital journalism provider 

19 that receives funds under or related to such agree20 ment or arbitration decision shall provide to the 

21 Federal Trade Commission, on an annual basis, in22 formation regarding the use of any such funds dur23 ing the prior year to support ongoing and future op24 erations to maintain or enhance the production and 

25 distribution of news or information that concerns 


pbinns on DSKJLVW7X2PROD with $$_JOB
31 

•S 1094 IS

1 local, regional, national, or international matters of 

2 public interest, including— 

3 (A) the amount of funds received under or 

4 related to each such agreement or decision; and 

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

6 funds that went to news journalists employed 

7 for an average of not fewer than 20 hours per 

8 week during the calendar year by the eligible 

9 digital journalism provider. 

10 (2) PUBLIC DISCLOSURE.—The Federal Trade 

11 Commission shall make the disclosures submitted 

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

13 Federal Trade Commission’s website. 

14 SEC. 7. PRIVATE RIGHTS OF ACTION. 

15 (a) NEGOTIATIONS.— 

16 (1) IN GENERAL.—Any eligible digital jour17 nalism provider, either jointly with other eligible dig18 ital journalism providers or through an authorized 

19 representative, or covered platform that participated 

20 in negotiations under section 3 may bring a civil ac21 tion in an appropriate district court of the United 

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

23 (2) DAMAGES.—A court shall award damages 

24 to a prevailing plaintiff under this subsection— 


pbinns on DSKJLVW7X2PROD with $$_JOB
32 

•S 1094 IS

1 (A) approximating the value of the last 

2 reasonable offer of the plaintiff if the defendant 

3 did not conduct negotiations in good faith in 

4 violation of section 3(b)(1); 

5 (B) approximating the value of the last 

6 reasonable offer of the plaintiff if the defend7 ant— 

8 (i) did not conduct negotiations in 

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

10 and 

11 (ii) had not yet extended a reasonable 

12 offer; or 

13 (C) approximating the value of the plain14 tiff’s last reasonable offer if the defendant did 

15 not make a reasonable offer in violation of sec16 tion 3(b)(5). 

17 (3) ATTORNEYS FEES.—A court shall award at18 torney’s fees to the prevailing party under this sub19 section. 

20 (b) DISCRIMINATION.— 

21 (1) JOINT NEGOTIATION ENTITIES.— 

22 (A) IN GENERAL.—An eligible digital jour23 nalism provider that is denied membership in a 

24 joint negotiation entity in violation of section 

25 6(a)(1) may bring a civil action in an approVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
33 

•S 1094 IS

1 priate district court of the United States 

2 against the joint negotiation entity and its 

3 members not later than 30 days after the date 

4 membership is denied. 

5 (B) REMEDIES.— 

6 (i) BEFORE AGREEMENT OR ARBITRA7 TION DECISION.— 

8 (I) IN GENERAL.—An eligible 

9 digital journalism provider that pre10 vails in an action under subparagraph 

11 (A) before the date an agreement is 

12 executed under section 3 or an arbi13 tration decision is issued under sec14 tion 4, as applicable, regarding the 

15 pricing, terms, and conditions by 

16 which the covered platform may ac17 cess the content of the eligible digital 

18 journalism providers that are mem19 bers of the joint negotiation entity, 

20 may join the joint negotiation entity 

21 and participate in the negotiation 

22 under section 3 or the arbitration 

23 under section 4, as applicable. 

24 (II) NOTICE.—A notice, by or on 

25 behalf of the joint negotiation entity, 


pbinns on DSKJLVW7X2PROD with $$_JOB
34 

•S 1094 IS

1 shall be sent to the covered platform 

2 to identify the eligible digital jour3 nalism provider that joins the negotia4 tion or arbitration under subclause 

5 (I). 

6 (ii) AFTER AGREEMENT OR ARBITRA7 TION DECISION.— 

8 (I) IN GENERAL.—An eligible 

9 digital journalism provider that pre10 vails in an action under subparagraph 

11 (A) after the date an agreement is ex12 ecuted under section 3 or an arbitra13 tion decision is issued under section 4, 

14 as applicable, regarding the pricing, 

15 terms, and conditions by which the 

16 covered platform may access the con17 tent of the eligible digital journalism 

18 providers that are members of the 

19 joint negotiation entity, may join the 

20 joint negotiation entity and be eligible 

21 for the same pricing, terms, and con22 ditions by which the covered platform 

23 may access the content of the other 

24 eligible digital journalism providers 


pbinns on DSKJLVW7X2PROD with $$_JOB
35 

•S 1094 IS

1 that are members of the joint negotia2 tion entity. 

3 (II) NOTICE.—A notice, by or on 

4 behalf of the joint negotiation entity, 

5 shall be sent to the covered platform 

6 to identify the eligible digital jour7 nalism provider that joins the joint 

8 negotiation entity under subclause (I) 

9 and that is eligible to receive the same 

10 pricing, terms, and conditions under 

11 the agreement negotiated under sec12 tion 3 or the arbitration decision 

13 issued under section 4, as applicable, 

14 by which the covered platform may 

15 access the content of the other eligible 

16 digital journalism providers that are 

17 members of the joint negotiation enti18 ty. 

19 (2) COVERED PLATFORMS.— 

20 (A) IN GENERAL.—An eligible digital jour21 nalism provider that is discriminated against in 

22 violation of section 6(a)(2) may bring a civil ac23 tion in an appropriate district court of the 

24 United States against the covered platform. 


pbinns on DSKJLVW7X2PROD with $$_JOB
36 

•S 1094 IS

1 (B) REMEDIES.—An eligible digital jour2 nalism provider that prevails under subpara3 graph (A) shall be entitled to— 

4 (i) recover the actual damages sus5 tained by the eligible digital journalism 

6 provider as a result of the discrimination; 

7 (ii) injunctive relief on such terms as 

8 the court may deem reasonable to prevent 

9 or restrain the covered platform from dis10 criminating against the eligible digital 

11 journalism provider; and 

12 (iii) the costs of the suit, including 

13 reasonable attorneys’ fees. 

14 (c) RETALIATION.— 

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

16 provider that is retaliated against in violation of sec17 tion 6(b)(1) may bring a civil action in an appro18 priate district court of the United States against the 

19 covered platform. 

20 (2) REMEDIES.—An eligible digital journalism 

21 provider that prevails in an action under paragraph 

22 (1) shall be entitled to— 

23 (A) recover the actual damages sustained 

24 by the eligible digital journalism provider as a 

25 result of the retaliation; 


pbinns on DSKJLVW7X2PROD with $$_JOB
37 

•S 1094 IS

1 (B) injunctive relief on such terms as the 

2 court may deem reasonable to prevent or re3 strain the covered platform from retaliating 

4 against the eligible digital journalism provider; 

5 and 

6 (C) the costs of the suit, including reason7 able attorneys’ fees. 

8 SEC. 8. REPORT. 

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

10 impact of the joint negotiations authorized under this Act, 

11 including a summary of the deals negotiated, the impact 

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

13 free, open, and interoperable Internet including the ability 

14 of the public to share and access information, and the ef15 fect this Act has had on employment for journalists. 

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

17 of enactment of this Act, the Comptroller General shall 

18 submit to Congress a report on the study required under 

19 subsection (a). 

20 SEC. 9. SUNSET. 

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

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

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

24 (b) EXCEPTION IN CASE OF INITIATED BUT INCOM25 PLETE JOINT NEGOTIATION OR ARBITRATION.—With reVerDate Sep 11 2014 05:59 Apr 11, 2023 Jkt 039200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.IS S1094

pbinns on DSKJLVW7X2PROD with $$_JOB
38 

•S 1094 IS

1 spect to eligible digital journalism providers that have ini2 tiated but not concluded a negotiation under section 3 or 

3 an arbitration under section 4 on or before the sunset date 

4 described in subsection (a), this Act shall cease to be effec5 tive on the date such negotiation or arbitration concludes 

6 or 180 days after the date described in subsection (a), 

7 whichever occurs first. 

8 (c) LIMITATION OF LIABILITY EXCEPTION.—Section 

9 5 shall remain effective without cessation for any— 

10 (1) negotiation conducted or agreement exe11 cuted under section 3; 

12 (2) arbitration conducted or arbitration decision 

13 issued under section 4; or 

14 (3) agreement implementing an arbitration de15 cision issued under section 4; 

16 during the period of effectiveness of this Act. 

17 SEC. 10. RULE OF CONSTRUCTION. 

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

19 construed to modify, impair, or supersede the operation 

20 of the antitrust laws except as otherwise expressly pro21 vided in this Act. 

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

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

24 in any way alter rights pertaining to title 17, United 

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


pbinns on DSKJLVW7X2PROD with $$_JOB
39 

•S 1094 IS

1 SEC. 11. SEVERABILITY. 

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

3 provision to any person or circumstance, is held to be un4 constitutional, the remainder of this Act, and the applica5 tion of the remaining provisions of this Act to any person 

6 or circumstance shall not be affected. 

Æ 


pbinns on DSKJLVW7X2PROD with $$_JOB