Whether an amendment to a previously approved, post-NPA joint operating agreement needs additional Attorney General written consent to be lawful or entitled to antitrust immunity

The Newspaper Preservation Act of 1970, 15 U.S.C. §§ 1801-1804 (NPA), provides antitrust immunity for “joint operating agreements” (JOAs) between a failing newspaper and a stronger one so communities do not lose competitive and diverse viewpoints. All agree that JOAs predating the NPA do not require Attorney General “prior written consent.” The Circuits, however, are now split over whether an amendment to a previously approved, post-NPA JOA needs another round of Attorney General signoff to be lawful. The Circuits to address the issue—the D.C. and Sixth Circuits—have held that additional consent is not required. At most, an unapproved amendment might be subject to antitrust scrutiny, but it is lawful. The Department of Justice’s contemporaneous implementing regulations reflect the same statutory interpretation. In this case, the Ninth Circuit created a circuit split. It is the only court to hold that all amendments to previously approved, post-NPA JOAs require additional consent to be lawful. The Ninth Circuit invalidated the amended JOA between the Las Vegas Sun and Las Vegas ReviewJournal and, on the same reasoning, sua sponte declared unlawful the DOJ’s implementing regulations. The question presented is: 1. Whether, under the NPA, an amendment to a previously approved, post-NPA JOA needs another Attorney General written consent to be lawful or to be entitled to antitrust immunity.