Radio/TV Congressional Issues Hit Key Milestones

posted on 8.29.2022

- Performance Tax, Big Tech Competition

The broadcast industry’s two primary policy measures being considered by Congress have reached important procedural milestones, signaling that local Radio and Television stations may see some much-needed certainty on matters involving their primary revenue stream and one of their highest costs.

A bipartisan, bicameral group of six lawmakers this week announced agreement on the latest iteration of the Journalism Competition and Preservation Act (JCPA) which would establish a framework by which broadcasters and other publishers could collectively negotiate with Big Tech firms over the terms of use for the content they produce.

As revised, the JCPA would:

• Empower eligible digital journalism providers—that is, news publishers with fewer than 1,500 exclusive full-time employees and non-network news broadcasters that engage in standard newsgathering practices—to form joint negotiation entities to collectively negotiate with a covered platform over the terms and conditions of the covered platform’s access to digital news content.
• Require covered platforms—which are online platforms that have at least 50 million U.S.-based users or subscribers and are owned or controlled by a person that has either net annual sales or market capitalization greater than $550 billion or at least 1 billion worldwide monthly active users—to negotiate in good faith with the eligible news organizations.
• Enable non-broadcaster news publishers to demand final-offer arbitration if their joint negotiation with a covered platform fails to result in an agreement after six months.
• Create a limited safe harbor from federal and state antitrust laws for eligible digital journalism providers that allows them to participate in joint negotiations and arbitration and, as part of those negotiations, to jointly withhold their content from a covered platform.
• Prohibit discrimination by a joint negotiation entity or a covered platform against an eligible digital journalism provider based on its size or the view expressed in its content and provide a private right of action for violations of this prohibition.
• Prohibit retaliation by a covered platform against eligible digital journalism providers for participating in joint negotiations or arbitration and provide a private right of action for violations of this prohibition.
• Sunset within eight years. 

The agreement was announced by Sens. Amy Klobuchar, D-MN; John Kennedy, R-LA; and Dick Durbin, D-IL; and Reps. David Cicilline, D-RI; Ken Buck, R-CO; and Jerrold Nadler, D-NY.

NAB President and CEO Curtis LeGeyt indicates this bill will likely be considered in the Senate Judiciary Committee after Labor Day.

Performance Tax

Separately, broadcasters secured the last of the 218 co-sponsors needed in the House to stop efforts by the international record labels to force local Radio stations to pay an additional performance royalty.”

This new royalty, branded a Performance Tax, would be in addition to the hundreds of millions of dollars broadcasters already pay in music royalties through firms like ASCAP, BMI, GMR and SESAC.

With 22 co-sponsors, Texas garnered more support than any other state in the country, with Democrats and Republicans alike weighing in on our behalf.

Legislation creating a Performance Tax was heard by the full House Judiciary Committee last spring, but a vote has not been held on the measure, and with a majority of the House on record opposing it, the bill is unlikely to advance.

Questions? Contact TAB’s Oscar Rodriguez or call (512) 322-9944.

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