II 

Calendar No. 135 

118TH CONGRESS 

1ST SESSION S. 1094 

To provide a temporary safe harbor for publishers of online content to 

collectively negotiate with dominant online platforms regarding the terms 

on which content may be distributed. 

IN THE SENATE OF THE UNITED STATES 

MARCH 30, 2023 

Ms. KLOBUCHAR (for herself, Mr. KENNEDY, Mr. DURBIN, Mr. DAINES, Mr. 

BLUMENTHAL, Mr. CASSIDY, Mr. WHITEHOUSE, Mr. GRAHAM, Ms. COLLINS, Mr. MANCHIN, Ms. LUMMIS, Mr. BOOKER, Mr. WICKER, Ms. 

HIRONO, Mr. KING, and Mrs. FEINSTEIN) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

JULY 18, 2023 

Reported by Mr. DURBIN, without amendment 

A BILL 

To provide a temporary safe harbor for publishers of online 

content to collectively negotiate with dominant online 

platforms regarding the terms on which content may 

be distributed. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Journalism Competi3 tion and Preservation Act of 2023’’. 

4 SEC. 2. DEFINITIONS. 

5 In this Act: 

6 (1) ACCESS.—The term ‘‘access’’ means acquir7 ing, crawling, or indexing content. 

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

9 laws’’— 

10 (A) has the meaning given the term in 

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

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

13 (B) includes— 

14 (i) section 5 of the Federal Trade 

15 Commission Act (15 U.S.C. 45) to the ex16 tent that section applies to unfair methods 

17 of competition; and 

18 (ii) any State law (including regula19 tions) that prohibits or penalizes the con20 duct described in, or is otherwise incon21 sistent with, sections 3 or 4. 

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

23 platform’’ means an online platform that at any 

24 point during the 12 months preceding the formation 

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


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1 (A) has at least 50,000,000 United States2 based monthly active users or subscribers on 

3 the online platform; 

4 (B) is owned or controlled by a person 

5 with— 

6 (i) United States net annual sales or 

7 a market capitalization greater than 

8 $550,000,000,000, adjusted for inflation 

9 on the basis of the Consumer Price Index; 

10 or 

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

12 worldwide monthly active users on the on13 line platform; and 

14 (C) is not an organization described in sec15 tion 501(c)(3) of the Internal Revenue Code of 

16 1986. 

17 (4) ELIGIBLE BROADCASTER.—The term ‘‘eligi18 ble broadcaster’’ means a person that— 

19 (A) holds or operates under a license 

20 issued by the Federal Communications Commis21 sion under title III of the Communications Act 

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

23 (B) engages professionals to create, edit, 

24 produce, and distribute original content con25 cerning local, regional, national, or interVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 national matters of public interest through ac2 tivities including conducting interviews, observ3 ing current events, analyzing documents and 

4 other information, and fact checking through 

5 multiple firsthand or secondhand news sources; 

6 (C) updates its content on at least a week7 ly basis; 

8 (D) uses an editorial process for error cor9 rection and clarification, including a trans10 parent process for reporting errors or com11 plaints to the station; and 

12 (E) is not a television network. 

13 (5) ELIGIBLE DIGITAL JOURNALISM PRO14 VIDER.—The term ‘‘eligible digital journalism pro15 vider’’ means any eligible publisher or eligible broad16 caster that discloses its ownership to the public. 

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

18 publisher’’ means any person that publishes 1 or 

19 more qualifying publications. 

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

21 station’’ means a television broadcast station, includ22 ing any translator station or terrestrial satellite sta23 tion that rebroadcasts all or substantially all of the 

24 programming broadcast by a network station, that is 


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

2 television networks. 

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

4 platform’’ means a website, online or mobile applica5 tion, operating system, digital assistant, or online 

6 service that accesses news articles, works of jour7 nalism, or other content, or portions thereof, gen8 erated, created, produced, or owned by eligible dig9 ital journalism providers, and aggregates, displays, 

10 provides, distributes, or directs users to such con11 tent. 

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

13 individual or entity existing under or authorized by 

14 the laws of the United States, the laws of any of ter15 ritory of the United States, the laws of any State, 

16 the laws of the District of Columbia, or the laws of 

17 any foreign country. 

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

19 term ‘‘pricing, terms, and conditions’’ does not in20 clude any term or condition which relates to the use, 

21 display, promotion, ranking, distribution, curation, 

22 suppression, throttling, filtering, or labeling of the 

23 content or viewpoint of any person. 


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1 (11) QUALIFYING PUBLICATION.—The term 

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

3 application, or other digital service that— 

4 (A) does not primarily display, provide, 

5 distribute, or offer content generated, created, 

6 produced, or owned by an eligible broadcaster 

7 or television network; and 

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

9 primarily in the United States; 

10 (ii) performs a public-information function 

11 comparable to that traditionally served by news12 papers and other periodical news publications; 

13 (iii) engages professionals to create, edit, 

14 produce, and distribute original content con15 cerning local, regional, national, or inter16 national matters of public interest through ac17 tivities, including conducting interviews, observ18 ing current events, or analyzing documents and 

19 other information, and fact checking through 

20 multiple firsthand or secondhand news sources; 

21 (iv) updates its content on at least a week22 ly basis; 

23 (v) has an editorial process for error cor24 rection and clarification, including a transVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 parent process for reporting errors or com2 plaints to the publication; 

3 (vi)(I) generated at least $100,000 in an4 nual revenue from its editorial content in the 

5 previous calendar year; 

6 (II) has an International Standard Serial 

7 Number assigned to an affiliated periodical be8 fore the date of enactment of this Act; or 

9 (III) is owned or controlled by an exempt 

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

11 the Internal Revenue Code of 1986; 

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

13 editorial content consisting of information about 

14 topics of current local, national, or international 

15 public interest; 

16 (viii) employed not more than 1,500 exclu17 sive full-time employees during the 12-month 

18 period prior to the date of enactment of this 

19 Act; and 

20 (ix) is not controlled or wholly or partially 

21 owned by an entity that is— 

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

23 foreign power, as those terms are defined 

24 in section 101 of the Foreign Intelligence 


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

2 1801); 

3 (II)(aa) designated as a foreign ter4 rorist organization pursuant to section 

5 219(a) of the Immigration and Nationality 

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

7 (bb) a terrorist organization, as de8 fined in section 212(a)(3)(B)(vi)(II) of the 

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

10 1182(a)(3)(B)(vi)(II)); 

11 (cc) designated as a specially des12 ignated global terrorist organization under 

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

14 note; relating to blocking property and pro15 hibiting transactions with persons who 

16 commit, threaten to commit, or support 

17 terrorism); or 

18 (dd) an affiliate of an entity described 

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

20 (III) an entity that has been convicted 

21 of violating, or attempting to violate, sec22 tion 2331, 2332b, or 2339A of title 18, 

23 United States Code. 

24 (12) TELEVISION NETWORK.—The term ‘‘tele25 vision network’’— 


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

2 1996, offered an interconnected program serv3 ice on a regular basis for 15 or more hours per 

4 week to at least 25 affiliated television licensees 

5 in 10 or more States; and 

6 (B) does not include any network station 

7 that is owned or operated by, or affiliated with 

8 a person described in subparagraph (A). 

9 SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS. 

10 (a) NOTICE.— 

11 (1) PROCESS TO FORM A JOINT NEGOTIATION

12 ENTITY.— 

13 (A) IN GENERAL.—An eligible digital jour14 nalism provider shall provide public notice to 

15 announce the opportunity for other eligible dig16 ital journalism providers to join a joint negotia17 tion entity for the purpose of engaging in joint 

18 negotiations with a covered platform under this 

19 section, regarding the pricing, terms, and condi20 tions by which the covered platform may access 

21 the content of the eligible digital journalism 

22 providers that are members of the joint negotia23 tion entity. 

24 (B) APPLICATION.—During the 60-day pe25 riod beginning on the date public notice is made 


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1 under subparagraph (A), any eligible digital 

2 journalism provider may apply to join the joint 

3 negotiation entity. 

4 (C) FORMATION.—A joint negotiation enti5 ty is established upon the agreement of 2 or 

6 more eligible digital journalism providers, and 

7 may create admission criteria for membership 

8 unrelated to the size of an eligible digital jour9 nalism provider or the views expressed by its 

10 content, including criteria to limit membership 

11 to only eligible publishers or only eligible broad12 casters. 

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

14 its members, a joint negotiation entity formed 

15 under this section shall establish rules and pro16 cedures to govern decision making by the entity 

17 and each eligible digital journalism provider 

18 shall be entitled to 1 vote on any matter sub19 mitted to a vote of the members. 

20 (E) ADDITIONAL MEMBERS.—After the ex21 piration of the 60-day period described in sub22 paragraph (B), an eligible digital journalism 

23 provider may apply to join the joint negotiation 

24 entity, and may be admitted to the joint nego25 tiation entity upon a majority vote of its memVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 bers, if the applicant otherwise satisfies any cri2 teria for admission established by the joint ne3 gotiation entity. 

4 (F) DESIGNATION.—A joint negotiation 

5 entity may designate agents on a nonexclusive 

6 basis— 

7 (i) to engage in negotiations with a 

8 covered platform conducted under this sec9 tion; and 

10 (ii) to agree to pay or receive pay11 ments under or related to an agreement 

12 negotiated under this section or an arbitra13 tion decision issued under section 4. 

14 (G) OPT-OUT.— 

15 (i) IN GENERAL.—After becoming a 

16 member of the joint negotiation entity, an 

17 eligible digital journalism provider may opt 

18 out of the joint negotiation entity at any 

19 time before notice is sent to the covered 

20 platform under paragraph (2). 

21 (ii) PROHIBITION ON REJOINING.—If 

22 an eligible digital journalism provider opts 

23 out of a joint negotiation entity under 

24 clause (i), the eligible digital journalism 

25 provider may not— 


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1 (I) rejoin the joint negotiation 

2 entity; or 

3 (II) receive any payment under 

4 or related to an agreement negotiated 

5 by the joint negotiation entity under 

6 this section or an arbitration decision 

7 issued under section 4. 

8 (H) TERMINATION.—A joint negotiation 

9 entity will terminate and cease to exist— 

10 (i) when the entity no longer has at 

11 least 2 members; 

12 (ii) upon a majority vote of its mem13 bers; or 

14 (iii) upon the expiration or termi15 nation of an agreement negotiated under 

16 this section or an arbitration decision 

17 issued under section 4. 

18 (2) NOTICE TO A COVERED PLATFORM TO INI19 TIATE A JOINT NEGOTIATION.— 

20 (A) IN GENERAL.—A joint negotiation 

21 under this section shall commence after a cov22 ered platform receives a notice, sent by or on 

23 behalf of a joint negotiation entity. 

24 (B) CONTENTS OF NOTICE.—The notice 

25 described in subparagraph (A) shall— 


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1 (i) state that the joint negotiation en2 tity is initiating a negotiation under this 

3 section to reach an agreement regarding 

4 the pricing, terms, and conditions by which 

5 the covered platform may access the con6 tent of the eligible digital journalism pro7 viders that are members of the joint nego8 tiation entity; 

9 (ii) identify the eligible digital jour10 nalism providers that are members of the 

11 joint negotiation entity; and 

12 (iii) provide the physical mail address 

13 (street address or post office box), tele14 phone number, and email address of a rep15 resentative authorized to receive a response 

16 to the notice on behalf of the joint negotia17 tion entity. 

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

19 receiving a notice described in subparagraph 

20 (A), the covered platform shall send a reply no21 tice to the authorized representative identified 

22 by or on behalf of the joint negotiation entity 

23 to acknowledge receipt of the notice. 

24 (D) NOTICE TO FEDERAL ENFORCERS.— 

25 Copies of any notice described in subparagraph 


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

2 digital journalism providers that are members 

3 of the joint negotiation entity with the Federal 

4 Trade Commission and the Assistant Attorney 

5 General in charge of the Antitrust Division of 

6 the Department of Justice not later than 30 

7 days after the notice is sent to the covered plat8 form. 

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

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

11 the following shall apply: 

12 (1) Any negotiation conducted under this sec13 tion shall be conducted in good faith and solely to 

14 reach an agreement regarding the pricing, terms, 

15 and conditions under which the covered platform 

16 may access the content of the eligible digital jour17 nalism providers. 

18 (2) No pre-agreement discussions or agreement 

19 reached regarding pricing, terms, and conditions 

20 under this section may address whether or how the 

21 covered platform or any such eligible digital jour22 nalism provider— 

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

24 promotes, throttles, labels, filters, or curates 


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1 the content of the eligible digital journalism 

2 providers; or 

3 (B) displays, ranks, distributes, sup4 presses, promotes, throttles, labels, filters, or 

5 curates the content of any other person. 

6 (3) A party is not conducting negotiations in 

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

8 party— 

9 (A) refuses to negotiate, except where eligi10 ble digital journalism providers decide to jointly 

11 deny a covered platform access to content li12 censed or produced by such eligible digital jour13 nalism providers under subsection (c); 

14 (B) refuses to designate a representative 

15 with authority to make binding representations; 

16 (C) refuses to meet and negotiate at rea17 sonable times and locations or otherwise causes 

18 unreasonable delay; 

19 (D) refuses to put forth more than a sin20 gle, unilateral proposal; 

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

22 other party, including the reasons for rejection; 

23 (F) enters into a separate third-party 

24 agreement that unreasonably impedes the party 


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1 from reaching an agreement with the negoti2 ating party; or 

3 (G) refuses to execute a full and written 

4 agreement that has been reached verbally. 

5 (4) A covered platform is not conducting nego6 tiations in good faith in accordance with paragraph 

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

8 agreement with an eligible digital journalism pro9 vider that impedes the eligible digital journalism 

10 provider from participating in a negotiation under 

11 this section. 

12 (5) During any negotiation conducted under 

13 this section, the joint negotiation entity and the cov14 ered platform shall each make a reasonable offer re15 garding the pricing, terms, and conditions by which 

16 the covered platform may access the content of the 

17 eligible digital journalism providers that are mem18 bers of the joint negotiation entity, substantiated 

19 with comprehensive data and methodologies, includ20 ing expert analysis, that reflects— 

21 (A) the pricing, terms, and conditions com22 parable to those found in commercial agree23 ments between similarly situated entities, in24 cluding price, duration, territory, value of data 

25 generated directly or indirectly by the content; 


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1 (B) the fair market value to the covered 

2 platform of having access to the content of the 

3 eligible digital journalism providers that are 

4 members of the joint negotiation entity and the 

5 resulting incremental contribution to the rev6 enue of the covered platform, including direct 

7 and indirect advertising or promotional reve8 nues, which shall not be offset by any value 

9 conferred upon the eligible digital journalism 

10 providers that are members of the joint negotia11 tion entity by the covered platform for aggre12 gating or distributing their content; and 

13 (C) the investment of the eligible digital 

14 journalism providers that are members of the 

15 joint negotiation entity in producing original 

16 news and related content, including the number 

17 of journalists employed by each. 

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

19 point after a notice is sent to the covered platform to ini20 tiate joint negotiations under subsection (a)(2), the eligi21 ble digital journalism providers that are members of the 

22 joint negotiation entity may jointly deny the covered plat23 form access to content licensed or produced by such eligi24 ble digital journalism providers. 


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1 SEC. 4. ARBITRATION FOR ELIGIBLE PUBLISHERS. 

2 (a) RIGHT TO FINAL OFFER ARBITRATION.— 

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

4 negotiation entity consists only of eligible publishers, 

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

6 negotiations under section 3 begin, the joint negotia7 tion entity may initiate a final offer arbitration 

8 against the covered platform for an arbitration panel 

9 to determine the pricing, terms, and conditions by 

10 which the content displayed, provided, distributed, or 

11 offered by a qualifying publication of any eligible 

12 publisher that is a member of the joint negotiation 

13 entity will be accessed by the covered platform if the 

14 parties are unable to reach an agreement and re15 gardless of whether the joint negotiation entity, its 

16 members, or the covered platform complied with the 

17 requirements of section 3(b). 

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

19 additional member joins the joint negotiation entity 

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

21 the date negotiations under section 3 begin, the joint 

22 negotiation entity may not initiate a final offer arbi23 tration under paragraph (1) until 180 days after the 

24 date the last member joins the joint negotiation enti25 ty. No additional members may join the joint nego26 tiation entity after the arbitration has commenced. 


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1 (b) NOTICE.—The joint negotiation entity shall pro2 vide notice of its intention to initiate final offer arbitration 

3 under this section to all of the members of the joint nego4 tiation entity no less than 10 days prior to initiating such 

5 final offer arbitration. 

6 (c) MEMBERSHIP.—If a joint negotiation entity initi7 ates final offer arbitration under this section, any indi8 vidual eligible publisher that is a member of the joint ne9 gotiation entity shall remain a member of the joint nego10 tiation entity until the completion of the arbitration, un11 less the eligible publisher provides written notice to the 

12 joint negotiation entity of its intention to withdraw from 

13 the joint negotiation entity within 7 days of receiving no14 tice under subsection (b). 

15 (d) PROCEEDINGS.— 

16 (1) RULES OF ARBITRATION.—The arbitration 

17 shall be decided by a panel of 3 arbitrators under 

18 the American Arbitration Association’s Commercial 

19 Arbitration Rules and Mediation Procedures and the 

20 American Arbitration Association-International Cen21 tre for Dispute Resolution Final Offer Arbitration 

22 Supplementary Rules, except to the extent they con23 flict with this subsection. 

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

25 arbitration under subsection (a) shall be initiated as 


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1 provided in Rule R-4 of the American Arbitration 

2 Association’s Commercial Arbitration Rules and Me3 diation Procedures, except that the joint negotiation 

4 entity initiating the arbitration shall refer to this 

5 Act in its demand for arbitration, rather than sub6 mitting contractual arbitration provisions. 

7 (3) COMMENCEMENT AND FUNDING.— 

8 (A) COMMENCEMENT.—A final offer arbi9 tration proceeding shall commence 10 days 

10 after the date a final offer arbitration is initi11 ated under subsection (a). 

12 (B) FUNDING.—The cost of administering 

13 the arbitration proceeding, including arbitrator 

14 compensation, expenses, and administrative 

15 fees, shall be shared equally between the cov16 ered platform and the joint negotiation entity. 

17 (4) APPOINTMENT OF THE ARBITRATION

18 PANEL.—The arbitrators shall be appointed in ac19 cordance with the American Arbitration Associa20 tion’s Commercial Arbitration Rules and Mediation 

21 Procedures. 

22 (5) OTHER REQUIREMENTS.—During a final 

23 offer arbitration proceeding under this section— 

24 (A) the joint negotiation entity and the 

25 covered platform may demand the production of 


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1 documents and information that are nonprivi2 leged, reasonably necessary, and reasonably ac3 cessible without undue expense; 

4 (B) documents and information described 

5 in subparagraph (A) shall be exchanged not 

6 later than 30 days after the date the demand 

7 is filed; 

8 (C) rules regarding the admissibility of evi9 dence applicable in Federal court shall apply; 

10 (D) the joint negotiation entity and cov11 ered platform shall each submit a final offer 

12 proposal for the pricing, terms, and conditions 

13 under which the content displayed, provided, 

14 distributed, or offered by a qualifying publica15 tion of any eligible publisher that is a member 

16 of the joint negotiation entity will be accessed 

17 by the covered platform, and which shall in18 clude the remuneration that the eligible pub19 lishers should receive from the covered platform 

20 for programmatic access to the content of the 

21 eligible publishers that are members of the joint 

22 negotiation entity during the period under nego23 tiation based on the fair market value of such 

24 access, which shall include backup materials 


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1 sufficient to permit the other party to replicate 

2 the proffered valuation; 

3 (E) no discussion or final offer under this 

4 section may address whether or how the covered 

5 platform or any such eligible digital journalism 

6 provider— 

7 (i) displays, ranks, distributes, sup8 presses, promotes, throttles, labels, filters, 

9 or curates the content of the eligible digital 

10 journalism providers; or 

11 (ii) displays, ranks distributes, sup12 presses, promotes, throttles, labels, filters 

13 or curates the content of any other person; 

14 and 

15 (F) if applicable, each eligible publisher 

16 that is a member of the joint negotiation entity 

17 shall provide information and data to guide the 

18 distribution of remuneration among the mem19 bers of the joint negotiation entity, including— 

20 (i) any compensation received by the 

21 eligible publisher through commercial 

22 agreement prior to commencement of nego23 tiations under section 3 for access to con24 tent by the covered platform during any 

25 part of the period under negotiation, which 


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1 shall be deducted from its allocation ac2 cordingly; and 

3 (ii) spending by the eligible publisher 

4 on news journalists, which are employed 

5 for an average of not fewer than 20 hours 

6 per week during the calendar quarter by 

7 the eligible digital journalism provider and 

8 are responsible for gathering, preparing, 

9 directing the recording of, producing, col10 lecting, photographing, recording, writing, 

11 editing, reporting, presenting, or pub12 lishing original news or information that 

13 concerns local, regional, national, or inter14 national matters of public interest in the 

15 previous fiscal year, as a proportion of its 

16 overall budget of the eligible digital jour17 nalism provider for that period, which shall 

18 be used to guide 65 percent of the dis19 tribution of remuneration among the mem20 bers of the joint negotiation entity. 

21 (e) AWARD.— 

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

23 the date proceedings commence under subsection 

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


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1 that selects a final offer from 1 of the parties with2 out 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 com16 mercial agreements between parties granting 

17 access to digital content, including pricing, 

18 terms, and conditions relating to price, dura19 tion, territory, the value of data generated di20 rectly or indirectly by the content accounting 

21 for any material disparities in negotiating 

22 power between the parties to such commercial 

23 agreements; and 

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

25 including the factual and economic bases of its 


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1 award, that applies for the number of years set 

2 forth in the winning proposal, but not fewer 

3 than 5 years. 

4 (f) PAYMENTS PURSUANT TO AWARD.— 

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

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

7 covered platform shall begin paying any eligible pub8 lisher that was a member of the joint negotiation en9 tity participating in the arbitration according to the 

10 terms in the final offer selected by the arbitration 

11 panel. 

12 (2) DISBURSEMENT.—Payments made under 

13 paragraph (1) shall be dispersed by a claims admin14 istrator to the individual claimants that comprise the 

15 joint negotiation entity not later than 60 days after 

16 the date the funds were received from the covered 

17 platform. 

18 (g) ENFORCEMENT AND JUDICIAL REVIEW.— 

19 (1) IN GENERAL.—An award made under sub20 section (e) shall be enforceable by the eligible pub21 lishers or the covered platform subject to the award 

22 through a civil action brought before a district court 

23 of the United States. 

24 (2) EXPEDITED JUDICIAL PROCESS.—In any 

25 civil action to enforce or seek judicial review of an 


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

2 adopt a rebuttable presumption that good cause ex3 ists to prioritize the action under section 1657 of 

4 title 28, United States Code. 

5 SEC. 5. LIMITATION OF LIABILITY. 

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

7 4, it shall not be in violation of the antitrust laws for any 

8 eligible digital journalism providers that are members of 

9 a joint negotiation entity to— 

10 (1) jointly deny a covered platform access to 

11 content for which the eligible digital journalism pro12 viders, individually or jointly, have the right to nego13 tiate or arbitrate access with respect to the covered 

14 platform; or 

15 (2) participate in joint negotiations and arbitra16 tion, as members of the joint negotiation entity, with 

17 such covered platform solely regarding the pricing, 

18 terms, and conditions under which the covered plat19 form may access the content for which the eligible 

20 digital journalism providers, individually or jointly, 

21 have the right to negotiate or arbitrate access with 

22 respect to the covered platform. 

23 (b) SAFE HARBOR.— 

24 (1) ELIGIBLE DIGITAL JOURNALISM PRO25 VIDERS.—An eligible digital journalism provider 


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

2 eligible digital journalism provider participates, as a 

3 member of a joint negotiation entity, in negotiations 

4 under section 3 or arbitration under section 4— 

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

6 digital journalism provider, if the eligible digital 

7 journalism provider reasonably believes that the 

8 person is another eligible digital journalism pro9 vider; or 

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

11 platform, if the eligible digital journalism pro12 vider reasonably believes that the person is a 

13 covered platform. 

14 (2) JOINT NEGOTIATION ENTITIES.—A joint ne15 gotiation entity shall not be in violation of the anti16 trust laws if the joint negotiation entity engages in 

17 negotiations under section 3 or arbitration under 

18 section 4— 

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

20 not an eligible digital journalism provider, if the 

21 joint negotiation entity reasonably believes that 

22 the person is an eligible digital journalism pro23 vider; or 

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

25 platform, if the joint negotiation entity reasonVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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

3 (c) NOTIFICATION OF AGREEMENTS AND ARBITRA4 TION DECISIONS.— 

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

6 agreement, resulting from a negotiation under sec7 tion 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 Assist10 ant Attorney General in charge of the Antitrust Di11 vision of the Department of Justice not later than 

12 60 days 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 

18 of Justice not later than 60 days after such decision 

19 is 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 


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1 to any negotiations, discussions, agreements, or arbitra2 tions relating to the use, display, promotion, ranking, dis3 tribution, curation, suppression, throttling, filtering, or la4 beling of the content of the eligible digital journalism pro5 vider or of any other person. The limitation of liability 

6 under this section shall apply only to negotiations, discus7 sions, agreements, or arbitrations regarding the pricing, 

8 terms, and conditions under which the covered platform 

9 may access the content of the eligible digital journalism 

10 provider, not to any discussions or agreements that dif11 ferentiate content based on the viewpoint expressed by 

12 such content. 

13 SEC. 6. NONDISCRIMINATION, RETALIATION, AND TRANS14 PARENCY. 

15 (a) NONDISCRIMINATION.— 

16 (1) JOINT NEGOTIATION ENTITIES.—A joint ne17 gotiation entity may not discriminate against any el18 igible digital journalism provider based on the size of 

19 the eligible digital journalism provider or the views 

20 expressed by the eligible digital journalism provider’s 

21 content. 

22 (2) COVERED PLATFORMS.—No covered plat23 form may discriminate against any eligible digital 

24 journalism provider that is a member of a joint ne25 gotiation entity in connection with a negotiation conVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 ducted under section 3, or an arbitration conducted 

2 under section 4, based on the size of the eligible dig3 ital journalism provider or the views expressed by 

4 the eligible digital journalism provider’s content. 

5 (b) PROHIBITION ON RETALIATION BY COVERED

6 PLATFORMS.— 

7 (1) IN GENERAL.—No covered platform may re8 taliate against an eligible digital journalism provider 

9 for participating in a negotiation conducted under 

10 section 3, or an arbitration conducted under section 

11 4, including by refusing to index content or changing 

12 the ranking, identification, modification, branding, 

13 or placement of the content of the eligible digital 

14 journalism provider on the covered platform. 

15 (2) EFFECT OF CONTRACT PROVISIONS.—Any 

16 provision in an agreement that restricts an eligible 

17 digital journalism provider from receiving compensa18 tion through a negotiation conducted under section 

19 3 or an arbitration conducted under section 4 shall 

20 be void. 

21 (c) INVESTING IN JOURNALISM.— 

22 (1) IN GENERAL.—Without disclosing confiden23 tial information regarding the pricing, terms, and 

24 conditions of an agreement reached under section 3, 

25 an agreement implementing an arbitration decision 


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1 issued under section 4, or an arbitration decision 

2 issued under section 4, or confidential financial in3 formation, any eligible digital journalism provider 

4 that receives funds under or related to such agree5 ment or arbitration decision shall provide to the 

6 Federal Trade Commission, on an annual basis, in7 formation regarding the use of any such funds dur8 ing the prior year to support ongoing and future op9 erations to maintain or enhance the production and 

10 distribution of news or information that concerns 

11 local, regional, national, or international matters of 

12 public interest, including— 

13 (A) the amount of funds received under or 

14 related to each such agreement or decision; and 

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

16 funds that went to news journalists employed 

17 for an average of not fewer than 20 hours per 

18 week during the calendar year by the eligible 

19 digital journalism provider. 

20 (2) PUBLIC DISCLOSURE.—The Federal Trade 

21 Commission shall make the disclosures submitted 

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

23 Federal Trade Commission’s website. 

24 SEC. 7. PRIVATE RIGHTS OF ACTION. 

25 (a) NEGOTIATIONS.— 


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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 

9 to a prevailing plaintiff under this subsection— 

10 (A) approximating the value of the last 

11 reasonable offer of the plaintiff if the defendant 

12 did not conduct negotiations in good faith in 

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

14 (B) approximating the value of the last 

15 reasonable offer of the plaintiff if the defend16 ant— 

17 (i) did not conduct negotiations in 

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

19 and 

20 (ii) had not yet extended a reasonable 

21 offer; or 

22 (C) approximating the value of the plain23 tiff’s last reasonable offer if the defendant did 

24 not make a reasonable offer in violation of sec25 tion 3(b)(5). 


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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 

11 against the joint negotiation entity and its 

12 members not later than 30 days after the date 

13 membership is denied. 

14 (B) REMEDIES.— 

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

17 (I) IN GENERAL.—An eligible 

18 digital journalism provider that pre19 vails in an action under subparagraph 

20 (A) before the date an agreement is 

21 executed under section 3 or an arbi22 tration decision is issued under sec23 tion 4, as applicable, regarding the 

24 pricing, terms, and conditions by 

25 which the covered platform may acVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 cess the content of the eligible digital 

2 journalism providers that are mem3 bers of the joint negotiation entity, 

4 may join the joint negotiation entity 

5 and participate in the negotiation 

6 under section 3 or the arbitration 

7 under section 4, as applicable. 

8 (II) NOTICE.—A notice, by or on 

9 behalf of the joint negotiation entity, 

10 shall be sent to the covered platform 

11 to identify the eligible digital jour12 nalism provider that joins the negotia13 tion or arbitration under subclause 

14 (I). 

15 (ii) AFTER AGREEMENT OR ARBITRA16 TION DECISION.— 

17 (I) IN GENERAL.—An eligible 

18 digital journalism provider that pre19 vails in an action under subparagraph 

20 (A) after the date an agreement is ex21 ecuted under section 3 or an arbitra22 tion decision is issued under section 4, 

23 as applicable, regarding the pricing, 

24 terms, and conditions by which the 

25 covered platform may access the conVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 tent of the eligible digital journalism 

2 providers that are members of the 

3 joint negotiation entity, may join the 

4 joint negotiation entity and be eligible 

5 for the same pricing, terms, and con6 ditions by which the covered platform 

7 may access the content of the other 

8 eligible digital journalism providers 

9 that are members of the joint negotia10 tion entity. 

11 (II) NOTICE.—A notice, by or on 

12 behalf of the joint negotiation entity, 

13 shall be sent to the covered platform 

14 to identify the eligible digital jour15 nalism provider that joins the joint 

16 negotiation entity under subclause (I) 

17 and that is eligible to receive the same 

18 pricing, terms, and conditions under 

19 the agreement negotiated under sec20 tion 3 or the arbitration decision 

21 issued under section 4, as applicable, 

22 by which the covered platform may 

23 access the content of the other eligible 

24 digital journalism providers that are 


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1 members of the joint negotiation enti2 ty. 

3 (2) COVERED PLATFORMS.— 

4 (A) IN GENERAL.—An eligible digital jour5 nalism provider that is discriminated against in 

6 violation of section 6(a)(2) may bring a civil ac7 tion in an appropriate district court of the 

8 United States against the covered platform. 

9 (B) REMEDIES.—An eligible digital jour10 nalism provider that prevails under subpara11 graph (A) shall be entitled to— 

12 (i) recover the actual damages sus13 tained by the eligible digital journalism 

14 provider as a result of the discrimination; 

15 (ii) injunctive relief on such terms as 

16 the court may deem reasonable to prevent 

17 or restrain the covered platform from dis18 criminating against the eligible digital 

19 journalism provider; and 

20 (iii) the costs of the suit, including 

21 reasonable attorneys’ fees. 

22 (c) RETALIATION.— 

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

24 provider that is retaliated against in violation of sec25 tion 6(b)(1) may bring a civil action in an approVerDate Sep 11 2014 02:31 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S1094.RS S1094

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1 priate district court of the United States against the 

2 covered platform. 

3 (2) REMEDIES.—An eligible digital journalism 

4 provider that prevails in an action under paragraph 

5 (1) shall be entitled to— 

6 (A) recover the actual damages sustained 

7 by the eligible digital journalism provider as a 

8 result of the retaliation; 

9 (B) injunctive relief on such terms as the 

10 court may deem reasonable to prevent or re11 strain the covered platform from retaliating 

12 against the eligible digital journalism provider; 

13 and 

14 (C) the costs of the suit, including reason15 able attorneys’ fees. 

16 SEC. 8. REPORT. 

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

18 impact of the joint negotiations authorized under this Act, 

19 including a summary of the deals negotiated, the impact 

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

21 free, open, and interoperable Internet including the ability 

22 of the public to share and access information, and the ef23 fect this Act has had on employment for journalists. 

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

25 of enactment of this Act, the Comptroller General shall 


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1 submit to Congress a report on the study required under 

2 subsection (a). 

3 SEC. 9. SUNSET. 

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

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

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

7 (b) EXCEPTION IN CASE OF INITIATED BUT INCOM8 PLETE JOINT NEGOTIATION OR ARBITRATION.—With re9 spect to eligible digital journalism providers that have ini10 tiated but not concluded a negotiation under section 3 or 

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

12 described in subsection (a), this Act shall cease to be effec13 tive on the date such negotiation or arbitration concludes 

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

15 whichever occurs first. 

16 (c) LIMITATION OF LIABILITY EXCEPTION.—Section 

17 5 shall remain effective without cessation for any— 

18 (1) negotiation conducted or agreement exe19 cuted under section 3; 

20 (2) arbitration conducted or arbitration decision 

21 issued under section 4; or 

22 (3) agreement implementing an arbitration de23 cision issued under section 4; 

24 during the period of effectiveness of this Act. 


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1 SEC. 10. RULE OF CONSTRUCTION. 

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

3 construed to modify, impair, or supersede the operation 

4 of the antitrust laws except as otherwise expressly pro5 vided in this Act. 

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

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

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

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

10 SEC. 11. SEVERABILITY. 

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

12 provision to any person or circumstance, is held to be un13 constitutional, the remainder of this Act, and the applica14 tion of the remaining provisions of this Act to any person 

15 or circumstance shall not be affected. 


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Calendar No. 135 

118TH CONGRESS 

1ST SESSION S. 1094 

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 

JULY 18, 2023 

Reported without amendment 


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