A Bad Antitrust Bill Resurfaces in the New York State Senate

The New York legislature is planning to adjourn on or about June 2nd. As expected, Deputy Senate Majority Leader Mike Gianaris has revised his antitrust legislation (S.933C). This is the third version of the bill. Unfortunately, it has not been improved and we strongly oppose the bill.

While the bill allegedly focuses on “Big Tech,” it upends business law in New York for all businesses, including broadcasters. The legislation adopts a European model for antitrust enforcement. No longer would antitrust cases be based on controlling the market. Instead, anti-trust liability would apply where there has been an “abuse of a dominant position.” The New York Attorney General is tasked with defining the scope of this term.

This bill would apply to all businesses including local broadcasters. Under the bill, exclusive programming contracts in radio and television could be called into question because “exclusivity” may be an “abuse.” In addition, using a post-term covenant not to compete is considered to be evidence of “abuse of a dominant position.” While broadcasters are precluded from using such covenants for employees, they are allowed in management contracts. Moreover, ownership combinations that have been approved by the FCC may now run afoul of the proposed new antitrust law. Violations of state antitrust law can affect a station’s license renewal.

Despite significant opposition, we expect Sen. Gianaris to ram this bill through the Senate. We will be meeting with leaders in the Assembly and the Governor’s office to block this bill.

To see a copy of our Memo in Opposition click HERE.

To see a copy of S.933C click HERE.

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