Google last week announced that it had begun to prevent some users of its platform in California from sharing news links with one another. The move marked a drastic escalation in the corporation’s fight to kill the California Journalism Protection Act (CJPA), a proposed bill that would mandate that dominant tech platforms pay news organizations for the stories they distribute. Facebook has threatened to follow suit should the bill become law, setting up a legal showdown that puts the American people’s right to access reliable, high-quality news in jeopardy.

The tactics mirror the ones Facebook and Google have deployed to undermine efforts in Australia, Canada, and other democracies that have moved to force these online gatekeeper corporations to pay for the news they distribute, and from which they profit through the sale of advertising. If successful, such actions would essentially force these corporations to scale back or even abandon business practices that have diverted billions of dollars in advertising revenue from newsrooms around the world.

The platforms have deployed several talking points to support their attacks on such bargaining codes. One is that there is no precedent for mandating payments for retransmission of content. A second is that it is impossible to negotiate with hundreds or of media organizations.

But neither of these arguments holds up to close scrutiny. In fact, one potential model for such news publishers is a long-time policy that has governed the relationship between local over-the-air (or OTA) television channels and cable providers. Thanks to the Federal Communications Act’s focus on ensuring a level the playing field between media organizations and distributors, cable networks like Comcast must include all the local OTA channels in the regions in which they operate.

The Communications Act, which was originally passed in 1934, was amended multiple times in the 1980s and 1990s to account for the power of cable providers, culminating in the Cable Television Consumer Protection Act of 1992. That amendment created the present requirement for cable networks to negotiate in “good faith” with local broadcast stations for the redistribution of their content. Though these broadcasters’ channels are often free to access over the air, the framework acknowledges that the content they provide adds substantial value to cable networks that must be shared directly with local stations. Cable has long been the primary distributor of broadcast news.

Crucially, the local stations are also entitled to prime channel slots in recognition of the role local media plays in connecting communities and fortifying our democracy. The laws also make clear that the Federal Communications Commission is fully empowered to step in and enforce the requirements.

While the interests of broadcast and print media organizations do not always align, they have largely been in lockstep over the need for state and local legislation like that in California, which is designed to provide the broadcasters and publishers with the bargaining power necessary to force the platforms to pay for their content. At a Senate hearing earlier this year on the implications of artificial intelligence for the rapidly constricting news media industry, National Association of Broadcasters President Curtis LeGeyt and News Media Alliance President Danielle Coffey presented a unified front in their calls for the adoption of the Journalism Competition and Preservation Act (JCPA), the national bill that inspired the CJPA.

In that hearing, LeGeyt specifically drew a connection between local broadcast stations’ rights under the current carriage agreement framework as a clear precedent for mandating platforms to negotiate in good faith for news content. He also pushed back on claims by Google and Facebook that it is not possible for them to negotiate fair deals with hundreds or even thousands of media organizations.

“Over the last three decades, local television broadcasters have done literally thousands of deals with cable and satellite systems across the country for the distribution of their programming,” he told the committee. “The notion that… it is too complicated to license from such a diverse array of content owners just doesn’t stand up.”

LeGeyt emphasized that if legislators really want to balance the playing field, they need to create a framework that forces platform monopolies to the table in the same way cable companies once were. “The most meaningful thing Congress could do tomorrow to address some of these stresses on local newsrooms,” he said, “is to pass the JCPA.”

The Open Markets Institute strongly applauded the Federal Trade Commission for issuing a final rule to ban noncompete clauses for nearly all workers, the fruition of a years-long advocacy campaign by Open Markets and a few key allies. “The FTC’s decision to free tens of millions of workers from non-compete clauses is an incredible moment in the fight against corporate power and the arbitrary authority of bosses,” legal director Sandeep Vaheesan said. “The noncompetes ban demonstrates how competition policy and agencies that enforce it, like the FTC, can make life materially better for America’s workers and professionals.” Vaheesan was quoted on the ban’s significance in Washington Post, The American Prospect, Bloomberg Law, and Common Dreams.

Vaheesan was an early thought leader on the FTC’s ability to use its rulemaking capacity to ban non-compete agreements. He has written extensively about the harms of these restrictive clauses on workers and innovation — and how the law favors banning them. In the year since the FTC proposed its noncompete ban, Vaheesan advocated for the closing of loopholes that function as noncompetes like training repayment agreement provisions, or TRAPs. In its final rule, the FTC banned many such contracts, including many TRAPs. In March 2019, the Open Markets Institute spearheaded a petition joined by Public Citizen, the AFL-CIO, SEIU, and other labor unions, calling on the FTC to enact a regulatory prohibition on noncompete contracts. 

Last week, the Open Markets Institute and a coalition of ally organizations in Europe brought together leading policymakers and thinkers for a half-day conference in Brussels, to discuss how the European Union can more effectively address the threats posed by monopoly control over markets and democracies. OMI and its allies also published a manifesto ahead of the event to outline how to put anti-monopoly at the heart of the next European Commission’s policy agenda. The conference discussed the importance of a “whole-of-government” approach to concentration, and the need for a new competition tool at the EU level that would enable the European Commission to investigate competition problems across entire industries, not just individual companies or cartels. Also discussed were the role of monopoly power in weakening and distorting innovation, especially in relation to artificial intelligence, and the need to crack down on non-compliance with the EU’s Digital Markets Act by Big Tech firms. Watch a video of the conference here.

Center for Journalism & Liberty director Dr. Courtney Radsch moderated a panel entitled “Can Journalism Survive AI?” at the annual International Journalism Festival, held last week in Perugia, Italy. Panel participants, which included investigative journalist Julia Angwin, data reporter Dhruv Mehrotra, and Meredith Broussard from the Arthur L. Carter Journalism Institute, discussed the existential challenges AI poses to the future of the news industry if Big Tech is allowed to appropriate content with impunity and deals are made too quickly without considering journalism's full value proposition.