It was a key piece of legislation that the National Association of Broadcasters has been advocating for since Curtis LeGeyt assumed the leadership role from former Senator Gordon Smith.
Now, Smith’s former Republican colleagues in the Upper Body of Congress have slayed legislation introduced by Democrat Amy Klobuchar that would have allowed radio and TV stations to collectively negotiate with “Big Tech” platforms to get what Legeyt tells RBR+TVBR is “fair value” for content distribution.
Klobuchar on Thursday withdrew the Journalism Competition Preservation Act, introduced in the Senate as S.673.
It had 13 co-sponsors, and support from key Republicans including Susan Collins of Maine, Lindsey Graham of South Carolina, Cynthia Lummis of Wyoming, Bill Cassidy of Louisiana, Paul Rand of Kentucky, and John Kennedy of Louisiana.
The support from Kennedy, which came March 10, 2021, evaporated today. Roughly 2 1/2 hours into the Senate Judiciary Committee’s Executive Business Meeting in Room 216 of the Hart Senate Office Building, discussion heated up between Sen. Ted Cruz and Klobuchar, with Kennedy interjecting. This came after lengthy debate over S.673, with Cruz offering an amendment “HEN 22775.”
Explaining his amendment, Cruz said, “Censorship is becoming more and more blatant on the internet. Big Tech is more and more naked in silencing the voices with which they disagree. This bill, if it is enacted, would create an exemption from the anti-trust laws to allow ‘Big Tech’ to sit down with an enormous conglomerate of media operations and negotiate free from the antitrust laws.”
The amendment, which Cruz said was “simple,” stated that, “If you’re negotiating you ought to be negotiating on the ostensible harm that this bill is directed at, which is the inability to get revenues from your content. You should not be negotiated on content moderation and how you are going to censor substantive content. This bill simply says the topic of discussion, when these two sides get together, can’t be censorship. It should be ad revenues, which is what all of the discussion of this markup has focused on.”
Klobuchar, clearly irked, reiterated that the bill is not about content moderation. “The bill does not require or implicate display of content in any way,” she said. Cruz retorted that the bill does not require “that the cartels sitting down negotiating censor,” but without the amendment they would give an immunity from antitrust liability from the cartels sitting down agreeing to censor.
“It would be a subsidy for censorship from the United States Congress,” Cruz said, noting that the bill wouldn’t like move on the floor if the bill had advanced the Senate Judiciary Committee.
Sen. Kennedy jumped in, asking Cruz to explain his stance.
His response? “I don’t have any problem with that.”
The remark was perhaps the single-most important one of the day, and put the wheels in motion on Klobuchar’s withdrawal of the JCPA.
“This amendment essentially gives platforms a ‘Get out of Jail Free’ card by presenting an obvious opportunity for gamemanship in the negotiation.”
Kennedy didn’t understand why. Klobuchar said they could raise content moderation at the first opportunity in order to avoid the joint negotiations.
Cruz carried on with his argument. And, he was persuasive enough to get Kennedy, who worked on the JCPA with Klobuchar “for months,” to go along with the amendment.
Klobuchar was dumbfounded. She said, “We won’t be able to support the Cruz amendment here, so I’m hoping we could talk about this in the future. But, if this is in it, I can’t support the bill.” Kennedy retorted that what had just transpired was Democracy in action.
A Roll Call vote on Cruz’s amendment came shortly thereafter. The result: 11-10, in favor of the amendment.
Visibly shaken, Klobuchar said to Committee Chairman Dick Durbin, “I don’t think we can support this bill anymore. We’re going to have to hold off on this bill … this was a surprise and is a long-negotiated bill.” As the session closed, Klobuchar concluded, “The agreement that we had has been blown up.”
While Cruz played a big role in sidelining the JCPA, the absence of Georgia Sen. Jon Ossoff also weighed heavily on the outcome. Ossoff did not vote by proxy. He was not in attendance. According to Politico, Ossoff contracted COVID-19 while visiting India.
While Klobuchar suddenly found herself without legislation that had been crafted over months and months of discussions, Cruz was pleased with the outcome. “What happened today was a huge victory for the First Amendment and free speech,” Cruz said in a statement. “[Democrats] would rather pull their bill entirely than advance it with my proposed protections for Americans from unfair online censorship.”
What did LeGeyt, the NAB’s President/CEO, have to say?
“Today’s Senate Judiciary Committee markup was an important step toward leveling the playing field between local news outlets and Big Tech behemoths to ensure fair market compensation for local journalism when accessed through the largest online platforms,” he told RBR+TVBR. “We appreciate the leadership of Senators Klobuchar and Kennedy on this important legislation and look forward to working with the committee to finish its deliberation on this bill, and report it favorably to the full Senate in short order.”
Curtis LeGeyt discusses the JCPA, along with other key legislative concerns the NAB is advocating on behalf of its Members, in an exclusive article appearing in the Fall 2022 RBR+TVBR Special Report, our autumn print publication. It is distributed Monday, September 12 at Noon Eastern to all RBR+TVBR Members and will be available as a print magazine to all attending the in-person TVB Forward Conference sessions in New York on September 22.
