The Must-Carry Solution for the Media’s Google Problem

Earlier this month, a federal district court judge confirmed what we’ve known for years—Google is a monopoly, and its anti-competitive search and advertising practices violate antitrust laws. In one of the most critical lawsuits of this century, the Department of Justice won its case against the tech giant by proving that the company used exclusive deals to secure its position as the default search engine on browsers and mobile devices. Because of its market dominance, the Mountain View, California-based company could charge “supracompetitive” rates for text ads.

The ruling from Judge Ahmet P. Mehta of the U.S. District Court for the District of Columbia is a big deal, not only for the tech industry and consumers who have had limited options for online search but also for those who depend on search engines to reach audiences. Google’s search engine, which claims 90 percent of the search market, has become the hub of a digital advertising empire that generates more than $200 billion annually for the tech giant.

This monopolistic stranglehold is why we need laws that require Google to pay for the content that makes search so valuable not only for its ad business but also to build its artificial intelligence products. We also need legislators to prevent tech giants from retaliating against those who depend on them.

Although Judge Mehta’s ruling, which Google is appealing, did not specifically address the company’s impact on journalism, its search monopoly gives it significant control over the discovery and distribution of news. This makes it difficult for would-be competitors to develop alternative and perhaps lucrative ways to surface and rank journalism on search that would have buoyed the sector’s financial viability.

As media outlets increasingly depend on Google to reach audiences and advertisers, their revenues nosedived. Advertising revenue plummeted by more than 50 percent between 2002—the year Google News launched—and 2020. Google, which controls 70 percent of the ad-tech market alongside Meta, the parent company of Facebook, is facing a separate lawsuit that will go to trial next month.

To forestall any efforts to be compensated for its use of news content to fuel its AI development, Google, whose parent company Alphabet has a market capitalization of over $2 trillion (equivalent to the GDP of Italy), is threatening to prevent news publishers from appearing in its search results in California because Golden State Lawmakers have been working on legislation to support journalism that would correct some market imbalances between Big Tech and news publishers. The remedies imposed by the court could also help with this. This week, Google apparently convinced California lawmakers to accept a $125 million payout to a new nonprofit journalism fund over five years rather than address the structural issues that its monopoly poses to sustainable journalism business models.

Earlier this year, Google removed hyperlinks to news websites based in California, following in the footsteps of Meta, which has censored news on Facebook and its Instagram platform in Canada following Ottawa’s passage of similar legislation.

Legislators should not settle for this settlement. They could take a different approach to help ensure news organizations get the compensation they deserve and prevent retaliatory measures from Big Tech. A “must-carry” provision written into law would require covered platforms to carry news, ensuring that people continue accessing important information while prohibiting discrimination and retaliation against news publishers.

The United States and many countries worldwide already have must-carry provisions for other communication platforms, such as local broadcast requirements on cable or local language requirements for media in Canada and many European countries.

In the U.S., local commercial and noncommercial broadcast television stations alike can demand that cable operators offer their channels on their platforms.

Cable operators are not permitted to jettison news or retaliate against those exerting their rights. Broadcast stations can request the same channel on cable as they have on over-the-air, making it easier for people to find them and contributing to brand awareness. (If your local NBC affiliate is Channel 4 on broadcast, it should also be Channel 4 on your cable menu. Similarly, online platforms would not be able to retaliate against news outlets by putting their results on the last search page or making their social media handles unavailable

Despite tech companies asserting that must-carry laws are unconstitutional, the Supreme Court has ruled that such regulations are entirely permissible under the First Amendment. Almost 30 years ago, the Supreme Court in Turner vs. FCC upheld must-carry laws, rejecting industry arguments that the strictures undercut editorial independence, amounted to government-compelled speech, or violated property rights in a decision authored by Justice Anthony Kennedy. We should impose the same obligations for search and social media platforms that enjoy market dominance as we do for cable and broadcast providers.

Lawmakers have two opportunities to do just that. The California Journalism Preservation Act, like its federal counterpart, the Journalism Competition and Preservation Act, would require tech giants to pay media companies for the value of their content. Neither statute currently includes must-carry obligations and antiretaliation provisions, but they should.

These bills are part of a wave of similar fair compensation laws that have either passed or are under consideration worldwide. A slew of competition authorities, such as the European Union, have reached the same conclusion as Judge Mehta.

Judge Mehta’s finding that Google had a monopoly in “general search services” and “general search text advertising” underscored how central search is to the company’s digital advertising empire. The vast wealth Google accumulated through its monopoly allowed it to hand Apple $20 billion to be the default search engine and spend unparalleled sums lobbying lawmakers in Washington, Brussels, and other world capitals, especially those considering fair compensation policies and copyright enforcement.

The district court’s ruling also revealed how skewed the playing field is and why lawmakers must enact legislation to fight monopolies. Letting Google simply pay a lump sum to news publishers to avoid legislation, as they are trying to do in CA, will not solve the monopoly problem and its impacts on journalism. Democracy can’t rely on a crazy quilt of small settlements that depend on industry feeling charitable. Big Tech’s threats to bully news publishers must be met with swift and decisive action from those who care about a free press and democracy.

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