[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1094 Introduced in Senate (IS)]
<DOC>
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Journalism Competition and
Preservation Act of 2023''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Access.--The term ``access'' means acquiring, crawling,
or indexing content.
(2) Antitrust laws.--The term ``antitrust laws''--
(A) has the meaning given the term in subsection
(a) of the first section of the Clayton Act (15 U.S.C.
12); and
(B) includes--
(i) section 5 of the Federal Trade
Commission Act (15 U.S.C. 45) to the extent
that section applies to unfair methods of
competition; and
(ii) any State law (including regulations)
that prohibits or penalizes the conduct
described in, or is otherwise inconsistent
with, sections 3 or 4.
(3) Covered platform.--The term ``covered platform'' means
an online platform that at any point during the 12 months
preceding the formation of a joint negotiation entity under
section 3(a)(1)--
(A) has at least 50,000,000 United States-based
monthly active users or subscribers on the online
platform;
(B) is owned or controlled by a person with--
(i) United States net annual sales or a
market capitalization greater than
$550,000,000,000, adjusted for inflation on the
basis of the Consumer Price Index; or
(ii) not fewer than 1,000,000,000 worldwide
monthly active users on the online platform;
and
(C) is not an organization described in section
501(c)(3) of the Internal Revenue Code of 1986.
(4) Eligible broadcaster.--The term ``eligible
broadcaster'' means a person that--
(A) holds or operates under a license issued by the
Federal Communications Commission under title III of
the Communications Act of 1934 (47 U.S.C. 301 et seq.);
(B) engages professionals to create, edit, produce,
and distribute original content concerning local,
regional, national, or international matters of public
interest through activities including conducting
interviews, observing current events, analyzing
documents and other information, and fact checking
through multiple firsthand or secondhand news sources;
(C) updates its content on at least a weekly basis;
(D) uses an editorial process for error correction
and clarification, including a transparent process for
reporting errors or complaints to the station; and
(E) is not a television network.
(5) Eligible digital journalism provider.--The term
``eligible digital journalism provider'' means any eligible
publisher or eligible broadcaster that discloses its ownership
to the public.
(6) Eligible publisher.--The term ``eligible publisher''
means any person that publishes 1 or more qualifying
publications.
(7) Network station.--The term ``network station'' means a
television broadcast station, including any translator station
or terrestrial satellite station that rebroadcasts all or
substantially all of the programming broadcast by a network
station, that is owned or operated by, or affiliated with, 1 or
more television networks.
(8) Online platform.--The term ``online platform'' means a
website, online or mobile application, operating system,
digital assistant, or online service that accesses news
articles, works of journalism, or other content, or portions
thereof, generated, created, produced, or owned by eligible
digital journalism providers, and aggregates, displays,
provides, distributes, or directs users to such content.
(9) Person.--The term ``person'' includes an individual or
entity existing under or authorized by the laws of the United
States, the laws of any of territory of the United States, the
laws of any State, the laws of the District of Columbia, or the
laws of any foreign country.
(10) Pricing, terms, and conditions.--The term ``pricing,
terms, and conditions'' does not include any term or condition
which relates to the use, display, promotion, ranking,
distribution, curation, suppression, throttling, filtering, or
labeling of the content or viewpoint of any person.
(11) Qualifying publication.--The term ``qualifying
publication'' means any website, mobile application, or other
digital service that--
(A) does not primarily display, provide,
distribute, or offer content generated, created,
produced, or owned by an eligible broadcaster or
television network; and
(B)(i) provides information to an audience
primarily in the United States;
(ii) performs a public-information function
comparable to that traditionally served by newspapers
and other periodical news publications;
(iii) engages professionals to create, edit,
produce, and distribute original content concerning
local, regional, national, or international matters of
public interest through activities, including
conducting interviews, observing current events, or
analyzing documents and other information, and fact
checking through multiple firsthand or secondhand news
sources;
(iv) updates its content on at least a weekly
basis;
(v) has an editorial process for error correction
and clarification, including a transparent process for
reporting errors or complaints to the publication;
(vi)(I) generated at least $100,000 in annual
revenue from its editorial content in the previous
calendar year;
(II) has an International Standard Serial Number
assigned to an affiliated periodical before the date of
enactment of this Act; or
(III) is owned or controlled by an exempt
organization described in section 501(c)(3) of the
Internal Revenue Code of 1986;
(vii) has not less than 25 percent of its editorial
content consisting of information about topics of
current local, national, or international public
interest;
(viii) employed not more than 1,500 exclusive full-
time employees during the 12-month period prior to the
date of enactment of this Act; and
(ix) is not controlled or wholly or partially owned
by an entity that is--
(I) a foreign power or an agent of a
foreign power, as those terms are defined in
section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801);
(II)(aa) designated as a foreign terrorist
organization pursuant to section 219(a) of the
Immigration and Nationality Act (8 U.S.C.
1189(a));
(bb) a terrorist organization, as defined
in section 212(a)(3)(B)(vi)(II) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(vi)(II));
(cc) designated as a specially designated
global terrorist organization under Executive
Order 13224 (50 U.S.C. 1701 note; relating to
blocking property and prohibiting transactions
with persons who commit, threaten to commit, or
support terrorism); or
(dd) an affiliate of an entity described in
item (aa), (bb), or (cc); or
(III) an entity that has been convicted of
violating, or attempting to violate, section
2331, 2332b, or 2339A of title 18, United
States Code.
(12) Television network.--The term ``television network''--
(A) means any person that, on February 8, 1996,
offered an interconnected program service on a regular
basis for 15 or more hours per week to at least 25
affiliated television licensees in 10 or more States;
and
(B) does not include any network station that is
owned or operated by, or affiliated with a person
described in subparagraph (A).
SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS.
(a) Notice.--
(1) Process to form a joint negotiation entity.--
(A) In general.--An eligible digital journalism
provider shall provide public notice to announce the
opportunity for other eligible digital journalism
providers to join a joint negotiation entity for the
purpose of engaging in joint negotiations with a
covered platform under this section, regarding the
pricing, terms, and conditions by which the covered
platform may access the content of the eligible digital
journalism providers that are members of the joint
negotiation entity.
(B) Application.--During the 60-day period
beginning on the date public notice is made under
subparagraph (A), any eligible digital journalism
provider may apply to join the joint negotiation
entity.
(C) Formation.--A joint negotiation entity is
established upon the agreement of 2 or more eligible
digital journalism providers, and may create admission
criteria for membership unrelated to the size of an
eligible digital journalism provider or the views
expressed by its content, including criteria to limit
membership to only eligible publishers or only eligible
broadcasters.
(D) Governance.--By a majority vote of its members,
a joint negotiation entity formed under this section
shall establish rules and procedures to govern decision
making by the entity and each eligible digital
journalism provider shall be entitled to 1 vote on any
matter submitted to a vote of the members.
(E) Additional members.--After the expiration of
the 60-day period described in subparagraph (B), an
eligible digital journalism provider may apply to join
the joint negotiation entity, and may be admitted to
the joint negotiation entity upon a majority vote of
its members, if the applicant otherwise satisfies any
criteria for admission established by the joint
negotiation entity.
(F) Designation.--A joint negotiation entity may
designate agents on a nonexclusive basis--
(i) to engage in negotiations with a
covered platform conducted under this section;
and
(ii) to agree to pay or receive payments
under or related to an agreement negotiated
under this section or an arbitration decision
issued under section 4.
(G) Opt-out.--
(i) In general.--After becoming a member of
the joint negotiation entity, an eligible
digital journalism provider may opt out of the
joint negotiation entity at any time before
notice is sent to the covered platform under
paragraph (2).
(ii) Prohibition on rejoining.--If an
eligible digital journalism provider opts out
of a joint negotiation entity under clause (i),
the eligible digital journalism provider may
not--
(I) rejoin the joint negotiation
entity; or
(II) receive any payment under or
related to an agreement negotiated by
the joint negotiation entity under this
section or an arbitration decision
issued under section 4.
(H) Termination.--A joint negotiation entity will
terminate and cease to exist--
(i) when the entity no longer has at least
2 members;
(ii) upon a majority vote of its members;
or
(iii) upon the expiration or termination of
an agreement negotiated under this section or
an arbitration decision issued under section 4.
(2) Notice to a covered platform to initiate a joint
negotiation.--
(A) In general.--A joint negotiation under this
section shall commence after a covered platform
receives a notice, sent by or on behalf of a joint
negotiation entity.
(B) Contents of notice.--The notice described in
subparagraph (A) shall--
(i) state that the joint negotiation entity
is initiating a negotiation under this section
to reach an agreement regarding the pricing,
terms, and conditions by which the covered
platform may access the content of the eligible
digital journalism providers that are members
of the joint negotiation entity;
(ii) identify the eligible digital
journalism providers that are members of the
joint negotiation entity; and
(iii) provide the physical mail address
(street address or post office box), telephone
number, and email address of a representative
authorized to receive a response to the notice
on behalf of the joint negotiation entity.
(C) Reply.--Not later than 30 days after receiving
a notice described in subparagraph (A), the covered
platform shall send a reply notice to the authorized
representative identified by or on behalf of the joint
negotiation entity to acknowledge receipt of the
notice.
(D) Notice to federal enforcers.--Copies of any
notice described in subparagraph (A) shall be filed by
or on behalf of the eligible digital journalism
providers that are members of the joint negotiation
entity with the Federal Trade Commission and the
Assistant Attorney General in charge of the Antitrust
Division of the Department of Justice not later than 30
days after the notice is sent to the covered platform.
(b) Conduct of the Joint Negotiations.--After the date a reply
notice is sent under subsection (a)(2)(C), the following shall apply:
(1) Any negotiation conducted under this section shall be
conducted in good faith and solely to reach an agreement
regarding the pricing, terms, and conditions under which the
covered platform may access the content of the eligible digital
journalism providers.
(2) No pre-agreement discussions or agreement reached
regarding pricing, terms, and conditions under this section may
address whether or how the covered platform or any such
eligible digital journalism provider--
(A) displays, ranks, distributes, suppresses,
promotes, throttles, labels, filters, or curates the
content of the eligible digital journalism providers;
or
(B) displays, ranks, distributes, suppresses,
promotes, throttles, labels, filters, or curates the
content of any other person.
(3) A party is not conducting negotiations in good faith in
accordance with paragraph (1) if the party--
(A) refuses to negotiate, except where eligible
digital journalism providers decide to jointly deny a
covered platform access to content licensed or produced
by such eligible digital journalism providers under
subsection (c);
(B) refuses to designate a representative with
authority to make binding representations;
(C) refuses to meet and negotiate at reasonable
times and locations or otherwise causes unreasonable
delay;
(D) refuses to put forth more than a single,
unilateral proposal;
(E) fails to respond to a proposal of the other
party, including the reasons for rejection;
(F) enters into a separate third-party agreement
that unreasonably impedes the party from reaching an
agreement with the negotiating party; or
(G) refuses to execute a full and written agreement
that has been reached verbally.
(4) A covered platform is not conducting negotiations in
good faith in accordance with paragraph (1) if the covered
platform enters into a separate agreement with an eligible
digital journalism provider that impedes the eligible digital
journalism provider from participating in a negotiation under
this section.
(5) During any negotiation conducted under this section,
the joint negotiation entity and the covered platform shall
each make a reasonable offer regarding the pricing, terms, and
conditions by which the covered platform may access the content
of the eligible digital journalism providers that are members
of the joint negotiation entity, substantiated with
comprehensive data and methodologies, including expert
analysis, that reflects--
(A) the pricing, terms, and conditions comparable
to those found in commercial agreements between
similarly situated entities, including price, duration,
territory, value of data generated directly or
indirectly by the content;
(B) the fair market value to the covered platform
of having access to the content of the eligible digital
journalism providers that are members of the joint
negotiation entity and the resulting incremental
contribution to the revenue of the covered platform,
including direct and indirect advertising or
promotional revenues, which shall not be offset by any
value conferred upon the eligible digital journalism
providers that are members of the joint negotiation
entity by the covered platform for aggregating or
distributing their content; and
(C) the investment of the eligible digital
journalism providers that are members of the joint
negotiation entity in producing original news and
related content, including the number of journalists
employed by each.
(c) Joint Withholding of Content.--At any point after a notice is
sent to the covered platform to initiate joint negotiations under
subsection (a)(2), the eligible digital journalism providers that are
members of the joint negotiation entity may jointly deny the covered
platform access to content licensed or produced by such eligible
digital journalism providers.
SEC. 4. ARBITRATION FOR ELIGIBLE PUBLISHERS.
(a) Right to Final Offer Arbitration.--
(1) In general.--If the membership of a joint negotiation
entity consists only of eligible publishers, on or after the
date that is 180 days after the date negotiations under section
3 begin, the joint negotiation entity may initiate a final
offer arbitration against the covered platform for an
arbitration panel to determine the pricing, terms, and
conditions by which the content displayed, provided,
distributed, or offered by a qualifying publication of any
eligible publisher that is a member of the joint negotiation
entity will be accessed by the covered platform if the parties
are unable to reach an agreement and regardless of whether the
joint negotiation entity, its members, or the covered platform
complied with the requirements of section 3(b).
(2) Effect of additional members.--If an additional member
joins the joint negotiation entity under section 3(a)(1)(E)
more than 90 days after the date negotiations under section 3
begin, the joint negotiation entity may not initiate a final
offer arbitration under paragraph (1) until 180 days after the
date the last member joins the joint negotiation entity. No
additional members may join the joint negotiation entity after
the arbitration has commenced.
(b) Notice.--The joint negotiation entity shall provide notice of
its intention to initiate final offer arbitration under this section to
all of the members of the joint negotiation entity no less than 10 days
prior to initiating such final offer arbitration.
(c) Membership.--If a joint negotiation entity initiates final
offer arbitration under this section, any individual eligible publisher
that is a member of the joint negotiation entity shall remain a member
of the joint negotiation entity until the completion of the
arbitration, unless the eligible publisher provides written notice to
the joint negotiation entity of its intention to withdraw from the
joint negotiation entity within 7 days of receiving notice under
subsection (b).
(d) Proceedings.--
(1) Rules of arbitration.--The arbitration shall be decided
by a panel of 3 arbitrators under the American Arbitration
Association's Commercial Arbitration Rules and Mediation
Procedures and the American Arbitration Association-
International Centre for Dispute Resolution Final Offer
Arbitration Supplementary Rules, except to the extent they
conflict with this subsection.
(2) Initiation of arbitration.--A final offer arbitration
under subsection (a) shall be initiated as provided in Rule R-4
of the American Arbitration Association's Commercial
Arbitration Rules and Mediation Procedures, except that the
joint negotiation entity initiating the arbitration shall refer
to this Act in its demand for arbitration, rather than
submitting contractual arbitration provisions.
(3) Commencement and funding.--
(A) Commencement.--A final offer arbitration
proceeding shall commence 10 days after the date a
final offer arbitration is initiated under subsection
(a).
(B) Funding.--The cost of administering the
arbitration proceeding, including arbitrator
compensation, expenses, and administrative fees, shall
be shared equally between the covered platform and the
joint negotiation entity.
(4) Appointment of the arbitration panel.--The arbitrators
shall be appointed in accordance with the American Arbitration
Association's Commercial Arbitration Rules and Mediation
Procedures.
(5) Other requirements.--During a final offer arbitration
proceeding under this section--
(A) the joint negotiation entity and the covered
platform may demand the production of documents and
information that are nonprivileged, reasonably
necessary, and reasonably accessible without undue
expense;
(B) documents and information described in
subparagraph (A) shall be exchanged not later than 30
days after the date the demand is filed;
(C) rules regarding the admissibility of evidence
applicable in Federal court shall apply;
(D) the joint negotiation entity and covered
platform shall each submit a final offer proposal for
the pricing, terms, and conditions under which the
content displayed, provided, distributed, or offered by
a qualifying publication of any eligible publisher that
is a member of the joint negotiation entity will be
accessed by the covered platform, and which shall
include the remuneration that the eligible publishers
should receive from the covered platform for
programmatic access to the content of the eligible
publishers that are members of the joint negotiation
entity during the period under negotiation based on the
fair market value of such access, which shall include
backup materials sufficient to permit the other party
to replicate the proffered valuation;
(E) no discussion or final offer under this section
may address whether or how the covered platform or any
such eligible digital journalism provider--
(i) displays, ranks, distributes,
suppresses, promotes, throttles, labels,
filters, or curates the content of the eligible
digital journalism providers; or
(ii) displays, ranks distributes,
suppresses, promotes, throttles, labels,
filters or curates the content of any other
person; and
(F) if applicable, each eligible publisher that is
a member of the joint negotiation entity shall provide
information and data to guide the distribution of
remuneration among the members of the joint negotiation
entity, including--
(i) any compensation received by the
eligible publisher through commercial agreement
prior to commencement of negotiations under
section 3 for access to content by the covered
platform during any part of the period under
negotiation, which shall be deducted from its
allocation accordingly; and
(ii) spending by the eligible publisher on
news journalists, which are employed for an
average of not fewer than 20 hours per week
during the calendar quarter by the eligible
digital journalism provider and are responsible
for gathering, preparing, directing the
recording of, producing, collecting,
photographing, recording, writing, editing,
reporting, presenting, or publishing original
news or information that concerns local,
regional, national, or international matters of
public interest in the previous fiscal year, as
a proportion of its overall budget of the
eligible digital journalism provider for that
period, which shall be used to guide 65 percent
of the distribution of remuneration among the
members of the joint negotiation entity.
(e) Award.--
(1) In general.--Not later than 60 days after the date
proceedings commence under subsection (d)(3)(A), the
arbitration panel shall issue an award that selects a final
offer from 1 of the parties without modification.
(2) Requirements.--In issuing an award under paragraph (1),
the arbitration panel--
(A) may not consider any value conferred upon any
eligible publisher by the covered platform for
distributing or aggregating its content as an offset to
the value created by such eligible publisher;
(B) shall consider past incremental revenue
contributions as a guide to the future incremental
revenue contribution by any eligible publisher;
(C) shall consider the pricing, terms, and
conditions of any available, comparable commercial
agreements between parties granting access to digital
content, including pricing, terms, and conditions
relating to price, duration, territory, the value of
data generated directly or indirectly by the content
accounting for any material disparities in negotiating
power between the parties to such commercial
agreements; and
(D) shall issue a binding, reasoned award,
including the factual and economic bases of its award,
that applies for the number of years set forth in the
winning proposal, but not fewer than 5 years.
(f) Payments Pursuant to Award.--
(1) In general.--Not later than 90 days after the date an
award is issued under subsection (e), the covered platform
shall begin paying any eligible publisher that was a member of
the joint negotiation entity participating in the arbitration
according to the terms in the final offer selected by the
arbitration panel.
(2) Disbursement.--Payments made under paragraph (1) shall
be dispersed by a claims administrator to the individual
claimants that comprise the joint negotiation entity not later
than 60 days after the date the funds were received from the
covered platform.
(g) Enforcement and Judicial Review.--
(1) In general.--An award made under subsection (e) shall
be enforceable by the eligible publishers or the covered
platform subject to the award through a civil action brought
before a district court of the United States.
(2) Expedited judicial process.--In any civil action to
enforce or seek judicial review of an award made under
subsection (e), the court shall adopt a rebuttable presumption
that good cause exists to prioritize the action under section
1657 of title 28, United States Code.
SEC. 5. LIMITATION OF LIABILITY.
(a) In General.--In accordance with sections 3 and 4, it shall not
be in violation of the antitrust laws for any eligible digital
journalism providers that are members of a joint negotiation entity
to--
(1) jointly deny a covered platform access to content for
which the eligible digital journalism providers, individually
or jointly, have the right to negotiate or arbitrate access
with respect to the covered platform; or
(2) participate in joint negotiations and arbitration, as
members of the joint negotiation entity, with such covered
platform solely regarding the pricing, terms, and conditions
under which the covered platform may access the content for
which the eligible digital journalism providers, individually
or jointly, have the right to negotiate or arbitrate access
with respect to the covered platform.
(b) Safe Harbor.--
(1) Eligible digital journalism providers.--An eligible
digital journalism provider shall not be in violation of the
antitrust laws if the eligible digital journalism provider
participates, as a member of a joint negotiation entity, in
negotiations under section 3 or arbitration under section 4--
(A) with a person that is not an eligible digital
journalism provider, if the eligible digital journalism
provider reasonably believes that the person is another
eligible digital journalism provider; or
(B) with a person that is not a covered platform,
if the eligible digital journalism provider reasonably
believes that the person is a covered platform.
(2) Joint negotiation entities.--A joint negotiation entity
shall not be in violation of the antitrust laws if the joint
negotiation entity engages in negotiations under section 3 or
arbitration under section 4--
(A) with or on behalf of a person that is not an
eligible digital journalism provider, if the joint
negotiation entity reasonably believes that the person
is an eligible digital journalism provider; or
(B) with a person that is not a covered platform,
if the joint negotiation entity reasonably believes
that the person is a covered platform.
(c) Notification of Agreements and Arbitration Decisions.--
(1) Agreements.--The parties to any written agreement,
resulting from a negotiation under section 3 or implementing an
arbitration decision issued under section 4, shall file a copy
of such agreement with the Federal Trade Commission and the
Assistant Attorney General in charge of the Antitrust Division
of the Department of Justice not later than 60 days after such
agreement is executed.
(2) Arbitration decisions.--The parties to any arbitration
decision issued under section 4, shall file a copy of such
decision with the Federal Trade Commission and the Assistant
Attorney General in charge of the Antitrust Division of the
Department of Justice not later than 60 days after such
decision is issued.
(3) Public disclosure.--The Federal Trade Commission shall
make the documents submitted under this subsection available to
the public on the Federal Trade Commission's website.
(d) Limitation Regarding the Scope of Limitation of Liability.--No
antitrust immunity shall apply to any negotiations, discussions,
agreements, or arbitrations relating to the use, display, promotion,
ranking, distribution, curation, suppression, throttling, filtering, or
labeling of the content of the eligible digital journalism provider or
of any other person. The limitation of liability under this section
shall apply only to negotiations, discussions, agreements, or
arbitrations regarding the pricing, terms, and conditions under which
the covered platform may access the content of the eligible digital
journalism provider, not to any discussions or agreements that
differentiate content based on the viewpoint expressed by such content.
SEC. 6. NONDISCRIMINATION, RETALIATION, AND TRANSPARENCY.
(a) Nondiscrimination.--
(1) Joint negotiation entities.--A joint negotiation entity
may not discriminate against any eligible digital journalism
provider based on the size of the eligible digital journalism
provider or the views expressed by the eligible digital
journalism provider's content.
(2) Covered platforms.--No covered platform may
discriminate against any eligible digital journalism provider
that is a member of a joint negotiation entity in connection
with a negotiation conducted under section 3, or an arbitration
conducted under section 4, based on the size of the eligible
digital journalism provider or the views expressed by the
eligible digital journalism provider's content.
(b) Prohibition on Retaliation by Covered Platforms.--
(1) In general.--No covered platform may retaliate against
an eligible digital journalism provider for participating in a
negotiation conducted under section 3, or an arbitration
conducted under section 4, including by refusing to index
content or changing the ranking, identification, modification,
branding, or placement of the content of the eligible digital
journalism provider on the covered platform.
(2) Effect of contract provisions.--Any provision in an
agreement that restricts an eligible digital journalism
provider from receiving compensation through a negotiation
conducted under section 3 or an arbitration conducted under
section 4 shall be void.
(c) Investing in Journalism.--
(1) In general.--Without disclosing confidential
information regarding the pricing, terms, and conditions of an
agreement reached under section 3, an agreement implementing an
arbitration decision issued under section 4, or an arbitration
decision issued under section 4, or confidential financial
information, any eligible digital journalism provider that
receives funds under or related to such agreement or
arbitration decision shall provide to the Federal Trade
Commission, on an annual basis, information regarding the use
of any such funds during the prior year to support ongoing and
future operations to maintain or enhance the production and
distribution of news or information that concerns local,
regional, national, or international matters of public
interest, including--
(A) the amount of funds received under or related
to each such agreement or decision; and
(B) a good-faith estimate of the amount of funds
that went to news journalists employed for an average
of not fewer than 20 hours per week during the calendar
year by the eligible digital journalism provider.
(2) Public disclosure.--The Federal Trade Commission shall
make the disclosures submitted under paragraph (1) available to
the public on the Federal Trade Commission's website.
SEC. 7. PRIVATE RIGHTS OF ACTION.
(a) Negotiations.--
(1) In general.--Any eligible digital journalism provider,
either jointly with other eligible digital journalism providers
or through an authorized representative, or covered platform
that participated in negotiations under section 3 may bring a
civil action in an appropriate district court of the United
States alleging a violation of section 3(b).
(2) Damages.--A court shall award damages to a prevailing
plaintiff under this subsection--
(A) approximating the value of the last reasonable
offer of the plaintiff if the defendant did not conduct
negotiations in good faith in violation of section
3(b)(1);
(B) approximating the value of the last reasonable
offer of the plaintiff if the defendant--
(i) did not conduct negotiations in good
faith in violation of section 3(b)(1); and
(ii) had not yet extended a reasonable
offer; or
(C) approximating the value of the plaintiff's last
reasonable offer if the defendant did not make a
reasonable offer in violation of section 3(b)(5).
(3) Attorneys fees.--A court shall award attorney's fees to
the prevailing party under this subsection.
(b) Discrimination.--
(1) Joint negotiation entities.--
(A) In general.--An eligible digital journalism
provider that is denied membership in a joint
negotiation entity in violation of section 6(a)(1) may
bring a civil action in an appropriate district court
of the United States against the joint negotiation
entity and its members not later than 30 days after the
date membership is denied.
(B) Remedies.--
(i) Before agreement or arbitration
decision.--
(I) In general.--An eligible
digital journalism provider that
prevails in an action under
subparagraph (A) before the date an
agreement is executed under section 3
or an arbitration decision is issued
under section 4, as applicable,
regarding the pricing, terms, and
conditions by which the covered
platform may access the content of the
eligible digital journalism providers
that are members of the joint
negotiation entity, may join the joint
negotiation entity and participate in
the negotiation under section 3 or the
arbitration under section 4, as
applicable.
(II) Notice.--A notice, by or on
behalf of the joint negotiation entity,
shall be sent to the covered platform
to identify the eligible digital
journalism provider that joins the
negotiation or arbitration under
subclause (I).
(ii) After agreement or arbitration
decision.--
(I) In general.--An eligible
digital journalism provider that
prevails in an action under
subparagraph (A) after the date an
agreement is executed under section 3
or an arbitration decision is issued
under section 4, as applicable,
regarding the pricing, terms, and
conditions by which the covered
platform may access the content of the
eligible digital journalism providers
that are members of the joint
negotiation entity, may join the joint
negotiation entity and be eligible for
the same pricing, terms, and conditions
by which the covered platform may
access the content of the other
eligible digital journalism providers
that are members of the joint
negotiation entity.
(II) Notice.--A notice, by or on
behalf of the joint negotiation entity,
shall be sent to the covered platform
to identify the eligible digital
journalism provider that joins the
joint negotiation entity under
subclause (I) and that is eligible to
receive the same pricing, terms, and
conditions under the agreement
negotiated under section 3 or the
arbitration decision issued under
section 4, as applicable, by which the
covered platform may access the content
of the other eligible digital
journalism providers that are members
of the joint negotiation entity.
(2) Covered platforms.--
(A) In general.--An eligible digital journalism
provider that is discriminated against in violation of
section 6(a)(2) may bring a civil action in an
appropriate district court of the United States against
the covered platform.
(B) Remedies.--An eligible digital journalism
provider that prevails under subparagraph (A) shall be
entitled to--
(i) recover the actual damages sustained by
the eligible digital journalism provider as a
result of the discrimination;
(ii) injunctive relief on such terms as the
court may deem reasonable to prevent or
restrain the covered platform from
discriminating against the eligible digital
journalism provider; and
(iii) the costs of the suit, including
reasonable attorneys' fees.
(c) Retaliation.--
(1) In general.--An eligible digital journalism provider
that is retaliated against in violation of section 6(b)(1) may
bring a civil action in an appropriate district court of the
United States against the covered platform.
(2) Remedies.--An eligible digital journalism provider that
prevails in an action under paragraph (1) shall be entitled
to--
(A) recover the actual damages sustained by the
eligible digital journalism provider as a result of the
retaliation;
(B) injunctive relief on such terms as the court
may deem reasonable to prevent or restrain the covered
platform from retaliating against the eligible digital
journalism provider; and
(C) the costs of the suit, including reasonable
attorneys' fees.
SEC. 8. REPORT.
(a) Study.--The Comptroller General shall study the impact of the
joint negotiations authorized under this Act, including a summary of
the deals negotiated, the impact of such deals on local and regional
news, the effect on the free, open, and interoperable Internet
including the ability of the public to share and access information,
and the effect this Act has had on employment for journalists.
(b) Report.--Not later than 5 years after the date of enactment of
this Act, the Comptroller General shall submit to Congress a report on
the study required under subsection (a).
SEC. 9. SUNSET.
(a) In General.--Except as provided in subsections (b) and (c),
this Act shall cease to have effect on the date that is 6 years after
the date of its enactment.
(b) Exception in Case of Initiated but Incomplete Joint Negotiation
or Arbitration.--With respect to eligible digital journalism providers
that have initiated but not concluded a negotiation under section 3 or
an arbitration under section 4 on or before the sunset date described
in subsection (a), this Act shall cease to be effective on the date
such negotiation or arbitration concludes or 180 days after the date
described in subsection (a), whichever occurs first.
(c) Limitation of Liability Exception.--Section 5 shall remain
effective without cessation for any--
(1) negotiation conducted or agreement executed under
section 3;
(2) arbitration conducted or arbitration decision issued
under section 4; or
(3) agreement implementing an arbitration decision issued
under section 4;
during the period of effectiveness of this Act.
SEC. 10. RULE OF CONSTRUCTION.
(a) Antitrust Laws.--Nothing in this Act may be construed to
modify, impair, or supersede the operation of the antitrust laws except
as otherwise expressly provided in this Act.
(b) Copyright and Trademark Law.--Nothing in this Act may be
construed to modify, impair, expand, or in any way alter rights
pertaining to title 17, United States Code, or the Lanham Act (15
U.S.C. 1051 et seq.)
SEC. 11. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held to be unconstitutional, the
remainder of this Act, and the application of the remaining provisions
of this Act to any person or circumstance shall not be affected.
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