Big Tech-Opposed News Bill Could Have Shot in 2022

Lead HR-1735 sponsor and House Antitrust Subcommittee Chairman David Cicilline, D-R.I., believes a full House Judiciary markup will likely happen soon. The timing “is up to” Judiciary Chairman Jerrold Nadler, D-N.Y., “but it’s a top priority for me and” the subcommittee to "get this done as soon as possible,” Cicilline told us. “We’ve been working closely with the broadcasters and News Media Alliance [NMA] to make sure it covers both print and broadcast media. We’re hoping to get” changes done “in the next couple weeks.”

Cicilline hasn’t made any similar outreach to the online platforms. “I’m not interested in buy-in from Big Tech,” he said. “This is about preserving local journalism and making sure that there’s an even playing field and that local media has the ability to survive and negotiate fair prices for their work. These Big Tech platforms will always try to maintain their monopoly power and engage in anti-competitive behavior that has allowed them to amass fortunes never seen in the history of the world, but that’s not good for competition, it’s not good for our democracy because of the importance of reliable, trustworthy news.”

HR-1735/S-673 has undergone some revamping and got a recent endorsement from new NAB President Curtis LeGeyt. Broadcasters “need a level playing field” against “tech behemoths,” and should be “fairly compensated when our locally focused content is accessed through their platforms,” LeGeyt said in his first blog post as president. The bill was also a major topic at a recent Copyright Office forum (see 2201060044).

NAB and the NMA disagreed that the bill will favor only the largest media companies. “NAB is working with the bill authors to protect smaller broadcasters and publishers in the final iteration of the bill, such that a broadcaster may not be excluded from entering joint negotiations based on company size, nor may a dominant tech platform discriminate against a broadcaster based on size,” a spokesperson said. “The legislation will ensure news publishers and broadcasters can’t be discriminated against based on size or viewpoints,” said NMA General Counsel Danielle Coffey.

Public Knowledge Director-Government Affairs Greg Guice and Free Press Vice President-Policy Matt Wood noted House Judiciary hasn’t kept their groups updated about any potential changes to HR-1735 but weren’t surprised because of their vehement opposition to the measure. “It’s definitely of great interest if” House Judiciary is moving toward a markup of HR-1735, but “nothing for us has changed” in a way that would alter FP’s opposition, Wood said.

“Our concern has been that this is an end-run around copyright law” and “we have said” the measure should clearly state it’s not meant to “change copyright law,” Guice told us: “The true intent of this legislation is clear” since no such language is included. PK said in December that courts could interpret the measure to “expand the exclusive rights that news publications enjoy in their material,” including to “prevent internet users from linking to or sharing news articles on digital platforms and websites without some sort of payment.” If “people enjoy paying for links, let Congress support that,” he said. “But I think people will see their opportunities to get information online greatly diminish if this passes.”

'Techlash'

Passing any bill this Congress is likely to be difficult given the coming November midterm elections, but the “techlash” could give HR-1735/S-673 legs, said Freedom Forum First Amendment Specialist Kevin Goldberg, an attorney who has represented news publishers.

The bill has bipartisan appeal and could pass as part of a year-end package, said Rob Folliard, Gray Television senior vice president-government relations and distribution. The bill would mean increased revenue for broadcasters and "allows us to monetize digital content that otherwise Google and Facebook are just grabbing,” he said.

Tech groups don’t agree the measure is likely to go the distance. The bill would create “an antitrust carve-out” allowing the largest news publishers to “collude and consolidate,” said NetChoice General Counsel Carl Szabo. Supporting consolidation violates Democratic Party principles, and interfering in a market should turn off Republicans, he said. “Antitrust exemptions have historically had little support or success, including a previous, failed exemption for news publishers,” said Computer & Communications Industry Association President Matt Schruers.

The legislation wouldn’t squeeze out smaller local journalists because there are limited sources for the information they provide, said Folliard. “Who else is gonna be doing a story about Springfield, Missouri?” Folliard said. “If someone is gonna be looking for a local story, that local news station is it.” It's likely the biggest companies would have more sway in the collective bargaining than the smaller, independent outlets, said Goldberg. Platforms are more likely to want links to New York Times stories than small-town papers, he said.

HR-1735-S-673 supporters acknowledged that if the measure passes, it's likely to be tied up in litigation. Coffey said the measure will be written to be “bulletproof.” The U.S. is starting to “stick out” for not taking this sort of action on tech platforms, she said: Other countries such as Australia have done so.

The proposal would create a “cartel” of media companies, and compromise their objectivity, Szabo said. The safe harbor would last four years and could make news publishers dependent on government, or at least create that appearance, he said. “Would you be willing to bite the hand that feeds you knowing that millions of dollars are riding on it?” he asked. “The path to a more robust news media industry is unlikely to lead through antitrust get-out-of-jail-free cards for big news publishers,” said Schruers.

“Nothing in the bill involves government setting prices or terms of compensation between tech platforms and news publishers,” Coffey said. “Government is stepping in to correct a marketplace imbalance.” NAB said that “unfair barriers to a more equal playing field would be lifted, but otherwise the bill does not envision specific government involvement.”