The troubles of modern news businesses are well publicized. Since 2004, more than 20% of US newspapers have closed and more than half of journalists working at US newspapers have been laid off. Even as a few national news organizations and broadcast television channels have increased subscriptions and grown their audiences, many counties have been left without any local paper reporting original content. Since 2006, overall newspaper advertising revenue has been on the decline. While there are many contributing factors, it is impossible to ignore the impact of social media platforms.
One of the remedies Congress proposed is the Journalism Competition and Preservation Act (JCPA). After an initial introduction in 2019, the bill was reintroduced in March 2021 with bipartisan support in the Senate (S.673) and the House of Representatives (H.R.1735). The JCPA aims to create a four-year safe harbor from antitrust laws for news content creators so that they can collectively negotiate with online content distributors about the terms on which their content may be distributed.
The proposed JCPA defines news content creators and online content distributors and outlines what those parties’ collective negotiations might look like. News content creators include print, broadcast, and digital news organizations licensed by the Federal Communications Commission. To qualify, an organization must have a dedicated, professional editorial staff that creates and distributes original content on at least a weekly basis. That original content must make up at least 25% of their overall content. The JCPA limits online content distributors to online service operators with no fewer than one billion monthly active worldwide users on their aggregated websites, which, as of April 2021, includes only Facebook, Google, and WeChat. The collective bargaining itself must encompass negotiations not only about price but also around news quality, accuracy, and attribution. Any participating news content creators must negotiate terms that are nondiscriminatory to other publishers and that would benefit the entire industry, rather than a small group.
The bipartisan nature of the JCPA reflects general agreement in Congress around better supporting news organizations and helping rebalance power between content creators and distributors. Several large publishing groups backed the 2019 version of the Act, such the American Society of News Editors, the National Newspaper Association, and the News Media Alliance, which includes The New York Times, The Washington Post, and the Wall Street Journal. At the same time, proponents of the JCPA hope it would endow smaller, more niche, or local publishers with bargaining power and leverage they might lack individually.
Others have qualms, many of which reflect discussions from the last legislation around antitrust exemptions for media. In 1970, Congress enacted the Newspaper Protection Act (NPA) to support the newspaper industry as broadcast television boomed. The NPA allowed competing newspapers, in the case where one was failing, to form joint operating agreements and engage in anticompetitive behaviors (e.g., fixing subscription prices and advertising rates, allocating the market amongst themselves). The New York Times and others worried that “such immunity could become a shield to established publishers against the entrance of new journalistic competitors.” Today, even as some hope the JCPA might empower small publishers, others are concerned that content distributors may prioritize publishers that produce significant quantities of content and deliver large, diverse audiences to their platforms. In 2011, Maurice E. Stucke and Allen P. Grunes disagreed with the broader tool of antitrust immunity, arguing that democracy’s need for a “free marketplace of ideas” made media a particular industry the government should not regulate. Stucke and Grunes believed antitrust immunity would – by decreasing competition – lower the overall quality of news in America, a result we are arguably already witnessing as media organizations consolidate. They also worried antitrust immunity might create a slippery slope; as new forms of media emerge, they might also seek out exemptions.
One might argue that, rather than create exemptions to laws that increase media power to bargain with content distribution platforms, Congress should simply address the core concern: regulating those platforms. Others have focused on the demand-side, proposing strategies to increase customer bases. In Sweden, the government provides subsidies in the form of tax credits for news subscribers, local journalists, and small business advertisers.
A successful government response to support American media would likely require a combination of strategies, carefully developed to ensure all publishers, regardless of size, are able to benefit. Even if the Journalism Competition and Protection Act does become law, we can expect that the bargaining process will be long, complicated, and perhaps iterative.