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The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry, and Why Congress Should Promote it

53 Pages Posted: 1 Jul 2011 Last revised: 23 Dec 2011

Brad A. Greenberg

Yale Information Society Project

Date Written: 2011

Abstract

Newspaper executives have been struggling for the past decade to slow the sharp and unprecedented decline of their industry. While no effort has worked, one promising business model would be to charge for access to online content. But only the rarest industry leaders have felt comfortable making the move to a paid-content model without industry-wide agreement, and such an agreement would be a per se violation of U.S. antitrust law. Unlike in other areas of the law, antitrust law does not permit courts to make policy judgments and approve of “good” agreements to restrain trade or fix prices, even when such a move would further antitrust policy interests. Exemptions can only come from Congress.

This Comment argues that, because of the newspaper industry’s vital role in generating new information that supports American democratic society, Congress should pass a narrow and temporary exemption from the collusion and price-fixing prohibition in Section 1 of the Sherman Act. Such an exemption would allow newspaper executives to work together on a sustainable online business model for the press, thereby preserving the American corps of professional newsgatherers. That, in turn, would stabilize contributions to the marketplace of information and ideas and would slow the consolidation and concentration of newspaper ownership. Both of these outcomes would advance a primary goal of antitrust law — increase in consumer options.

Keywords: newspapers, media, antitrust, sherman act, newspaper preservation act, antitrust exemption

Suggested Citation

Greenberg, Brad A., The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry, and Why Congress Should Promote it (2011). UCLA Law Review, Vol. 59, p. 414, 2011. Available at SSRN: https://ssrn.com/abstract=1876265

Brad A. Greenberg (Contact Author)

Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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