News industry advocates appeal to Congress to pass the Safe Harbor Bill

A preview of today's Congressional hearing


The Journalism Competition and Preservation Act (JCPA) hopes to bring Big Tech to the bargaining table with U.S. news publishers. On this 122nd episode of E&P Reports, E&P Publisher Mike Blinder is joined by Danielle Coffey, executive vice president and general counsel for the News Media Alliance (NMA), and economist Dr. Hal Singer, managing director, Econ One. With E&P contributor Gretchen Peck, they discuss why this legislation is urgently needed and advance insight into a Congressional hearing this week before the Senate's Antitrust Committee, where the JCPA will be debated.

On Wednesday, February 2, Dr. Singer will testify before the U.S. Senate’s Antitrust Committee about the plight of news across the nation, and he’ll champion the JCPA to Congress and the American people. Watch Recording of Senate Hearing The idea for the JCPA began germinating more than five years ago, Coffey told E&P. "We needed to determine what was happening with our companies because it wasn't making sense. Our newspapers or news publishers have content that audiences enjoy. … So, what is it about their business model that isn't working? (Why) aren't they getting the revenue that they need to reinvest in reporters and journalism and newsrooms," she pondered.

“When we started looking at how the content is distributed, there are two main platforms — Google and Facebook — that are the primary sources of referral traffic, 70%. They distribute our content, and they are the regulators who decide the terms and conditions by which they distribute the content. We have no say. It’s a Hobson’s choice. Of course, we’re going to hand over our content, but we don’t get enough compensation. We actually get zero compensation,” Coffey said.

The JCPA is known as a “safe-harbor bill” — meaning it would suspend the enforcement of antitrust laws for a period of four years to allow news publishers to collectively bargain with the platforms in the interest of agreeing to a new content compensation model through “baseball-style arbitration,” Coffey explained, calling it “the gold standard” of dispute resolution.

Through a three-pronged approach, news publishers and their associations, like the NMA, are trying to force the tech platforms to create a fair advertising model, to better define gray areas in copyright law and then the third prong (passage of the JCPA) to create a compensation model by which the platforms pay for the use and distribution of news content — similar to how this negotiation unfolded in Australia.

“What Congress is doing is they’re stepping in to correct a marketplace imbalance,” Coffey said. The JCPA would be “a means to an end,” she clarified. It merely creates an environment whereby publishers can collectively bargain with the platforms. There's no incentive for the platforms to come to the negotiation table without it.

During his testimony before Congress today, Dr. Singer plans to enter into the record a report he authored for the NMA, which makes the case for why government’s intervention is needed here.

Since the JCPA was introduced to the Senate by Senator Amy Klobuchar (D-Minn.) in March 2021, the rhetoric from big tech was tepid. After all, simultaneously, Google and Meta have been ingratiating themselves to news publishers through the Meta Journalism Project and Google News Initiative. The more recent shift in rhetoric, portraying U.S. news publishers as somehow misinformed or worse, as “rivals,” is noteworthy.

Google showed how it will argue against the JCPA when Kent Walker, Google and Alphabet's president of global affairs and chief legal officer, penned a blog on January 18, 2022, titled, “The harmful consequences of Congress’s anti-tech bills.” In it, he suggests that if publishers pursue these remedies and Congress gives them a nod, Google will pass along the costs to consumers by charging for once-free services.

Dr. Singer told E&P that it's a preposterous assertion that Google would begin charging consumers to use its search engine.

“If you’re sitting pretty — you know, dominating the advertising space, dominating the eyeballs and not having to pay for it — you don’t want any change to the status quo, right? And so, they have an army of lobbyists, and they’re well-heeled to go out and spew disinformation on what the bill would do and what it’s about, and hopefully, I’ll be able to swat a few of those things,” Dr. Singer told E&P. Also testifying is Trib Total Media President and CEO Jennifer Bertetto.

After hearing debate today, the Senate Antitrust Committee will mark up the bill’s language.

In 2020, NMA published “White Paper: How Google Abuses Its Position as a Market Dominant Platform to Strong-Arm News Publishers and Hurt Journalism.” It submitted the publication to the Department of Justice (DOJ).

“When the output of journalism is reduced, there is a consumer harm,” Coffey said.


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