Newspaper Preservation Act — Joint Operating Agreements for Competing Newspapers

The Newspaper Preservation Act of 1970 (15 U.S.C. §§ 1801–1804) creates a targeted antitrust exemption that allows competing newspapers in the same market to combine their printing, distribution, advertising, and business operations — while maintaining completely separate and independent editorial operations. Without this exemption, a joint business arrangement between competing newspapers would ordinarily constitute price-fixing and market allocation in violation of the Sherman Antitrust Act. Congress enacted the Newspaper Preservation Act to preserve editorial diversity: in markets where neither newspaper could survive alone, a joint operating agreement (JOA) allows two editorial voices to continue publication by sharing business infrastructure costs. The Department of Justice administers the exemption — a newspaper must obtain the Attorney General's approval before entering a new JOA, under procedures codified at 28 CFR Part 48.

Legal Authority

• 15 U.S.C. § 1801 — Newspaper Preservation Act § 1; states Congress's finding that joint newspaper operating arrangements preserve editorial competition and diversity of viewpoint; declares this to be in the public interest
• 15 U.S.C. § 1802 — Exemption provision; declares that antitrust laws shall not apply to "joint newspaper operating arrangements" that are specifically authorized under the Act; the exemption covers joint printing, distribution, advertising rates, and business operations
• 15 U.S.C. § 1803 — Existing JOA approval; grandfathers JOAs that were in effect before July 24, 1970 without requiring new AG approval
• 15 U.S.C. § 1804 — New JOA approval; requires the AG to determine that at least one newspaper is in "probable danger of financial failure" before approving a new JOA; AG must find the JOA necessary to preserve editorial competition
• 28 CFR Part 48 — DOJ Antitrust Division implementing regulation; establishes the application and approval process for new JOAs, including hearing procedures, factors for the AG's determination, and public comment requirements

Key Mechanics

A joint operating agreement (JOA) under the Newspaper Preservation Act allows two competing newspapers in the same market to combine all business operations (printing, production, distribution, advertising sales, subscription management, and circulation) while maintaining completely separate editorial operations — separate reporters, editors, editorial pages, and news judgments. The combination of business functions is what would otherwise violate the Sherman Act (two competitors fixing prices and dividing the market); the editorial firewall is what preserves the Act's rationale of maintaining competing viewpoints. To obtain AG approval for a new JOA, the applicant must demonstrate that at least one newspaper is in "probable danger of financial failure" — a threshold that DOJ has interpreted strictly. The AG conducts a formal hearing with public comment. Existing JOAs approved before 1970 were grandfathered. The NPA has declined in practical relevance as the newspaper industry has contracted: most JOAs that existed in the 1970s–1990s have terminated as one or both newspapers closed; as of 2026, only a handful of active JOAs remain (Detroit News/Free Press is the most prominent). The digital transformation of news has largely rendered the JOA mechanism obsolete — the economic problem the Act addressed (two papers too weak to survive alone but unable to merge editorially) has been overtaken by the collapse of print advertising revenue.

Current Rule (2026)

What This Rule Does

The Newspaper Preservation Act rests on a finding by Congress that the economic viability of newspapers is threatened in two-newspaper markets — that without some form of joint operations, one or both papers will fail, leaving the market with a single editorial voice. The Act permits two newspapers to form a JOA covering all aspects of their business operations while requiring that their newsrooms remain entirely independent — separate editors, reporters, and editorial policies, making separate decisions about what to cover and what positions to take.

The Part 48 regulations establish the application procedure for Attorney General approval of new JOAs. Before two newspapers can enter a joint operating arrangement, they must apply to the AG, who may order a formal hearing before approving or denying the application. The statutory standard for approval requires a finding that one of the newspapers is "in probable danger of financial failure" without the JOA — the same standard the Supreme Court had held was met (in the Citizen Publishing case) before the Act reversed the underlying antitrust verdict.

Key Provisions

• § 48.1 — Purpose: sets forth the procedure for applying to the AG for approval of joint newspaper operating arrangements entered after July 24, 1970; also governs the filing of existing JOAs that predate the Act, which are accorded presumptive validity
• § 48.2 — Application content: applicants must submit detailed financial statements for each newspaper demonstrating the financial condition that justifies the JOA; the application must describe the scope of proposed joint operations and include the terms of the agreement
• § 48.10 — Hearings: when the AG issues an order for a hearing, an administrative law judge is appointed under the Administrative Procedure Act; the hearing process is similar to other APA formal adjudications — parties may present evidence, cross-examine witnesses, and submit post-hearing briefs; the ALJ's recommended decision goes to the AG for final determination
• § 48.11 — Intervention: any person with an interest that may be affected by the AG's decision may intervene as a party in a hearing, upon a showing that their interest may not be adequately represented by the existing parties; readers, advertisers, employees, and competing media organizations have intervened in past JOA proceedings
• § 48.12 — Ex parte communications: no person may communicate on any matter related to the proceedings with the ALJ, AG, or anyone with decisional responsibility, except through the record — the same ex parte prohibition that applies in APA formal adjudications to prevent back-channel influence on the decision
• § 48.13 — Record for decision: when a hearing is not ordered, the record consists of all material filed by the applicant; when a hearing is held, the record includes all hearing testimony and exhibits; the AG's decision is based exclusively on this record
• § 48.14 — Decision content: the AG's decision must include findings of fact and conclusions of law, and must address whether the statutory standard (probable danger of financial failure) is met; approved JOAs are published in the Federal Register

How It Affects You

If you are a newspaper publisher or operator: A new JOA requires prior AG approval under the Part 48 process — there is no post-hoc validation. The financial distress of at least one paper must be documented at the application stage. The AG has discretion to order a hearing or to approve based on the written record; contested applications (where third parties intervene to oppose the JOA) typically result in hearings. The editorial independence requirement is legally binding — the JOA may not cover news content, editorial positions, or decisions about what to publish.

If you are a reader, journalist, or civic organization: JOAs preserve two editorial voices in a market that might otherwise support only one. Critics argue JOAs often delay the inevitable — and that markets with JOAs tend to have higher advertising rates and reduced competitive pressure to improve news quality — while supporters argue any alternative (one paper closing) is worse for editorial diversity. Citizens and civic organizations have standing to intervene in AG proceedings over proposed JOAs under § 48.11.

If you are a media policy researcher or antitrust practitioner: The Newspaper Preservation Act is one of the most specific antitrust exemptions in U.S. law — targeted at a defined industry (newspapers), a specific business arrangement (joint operating agreements), with a substantive standard (financial distress) and a structural requirement (editorial separation) built into the exemption itself. The Act has been applied to a shrinking universe of JOAs as newspaper markets have consolidated and print circulation has declined; many newspapers that once operated under JOAs have since merged or closed entirely, making the exemption less frequently invoked than at its 1970 enactment.

Statutory Authority

This rule implements:

• 15 U.S.C. § 1801 — Congressional declaration: defines "joint newspaper operating arrangement" and states that the Act is intended to preserve the publication of newspapers in any market where competition is failing; creates the antitrust exemption
• 15 U.S.C. § 1802 — Exemption: a JOA that is entered or carried out by any person in the newspaper business is not a violation of the Sherman Act or any other federal antitrust law, provided the AG has approved it and editorial content remains independent
• 15 U.S.C. § 1803 — AG approval: the AG must approve JOAs entered after the Act's effective date; existing JOAs as of July 24, 1970 are presumed valid; the AG's determination is subject to judicial review in the D.C. Circuit

Recent Rulemakings

The current Part 48 regulations were last substantively amended in the 1970s and 1980s. No major amendments have occurred since; the procedural framework has remained stable as the number of JOA applications has declined significantly. The Antitrust Division has approved fewer than 30 JOAs since the Act's passage; many have since terminated as newspapers merged or one partner ceased publication. The most prominent JOA applications were in the 1980s and 1990s, when dual-newspaper markets including Detroit, Seattle, and Cincinnati sought AG approval. The Detroit JOA (Detroit Free Press and Detroit News) generated significant litigation in the 1980s, establishing the interpretive standards for "probable danger of financial failure" that the AG applies to new applications.

Pending Action