To begin with, the federal government can force the Rocky’s parent company, E.W. Scripps, to keep the Rocky on the sales block for longer than the one month currently promised.

One month is not enough time to find a buyer, according to, among others, a financial expert cited in the Rocky itself Dec. 25. He was puzzled by the short time frame of the sale.  What gives the feds the right to meddle in the Rocky’s business transactions?

It’s called the Joint Operating Agreement, the 2001 contract between the Denver Post and the Rocky that allows them to share business operations (printing, delivery, sales), while running independent news and editorial units.
Normally, such an arrangement would be considered an illegal monopoly, a violation of federal anti-trust law. But thanks to the Newspaper Preservation Act of 1970, the Justice Department allowed the Post and Rocky to combine their business departments, to preserve two independent newspaper voices. Similar newspaper JOA monopolies are allowed in other cities.

But the joint-operating arrangement comes with a price: oversight from the Justice Department’s anti-trust division. It can intervene to make sure that a JOA newspaper, like the Rocky, is not closed prematurely or unnecessarily.  In the past, the Justice Department has intervened with joint-operating newspapers to ensure that if one of the newspaper companies in a JOA wants to close its newspaper, it must make a real effort to find a buyer, before it simply shutters the newspaper. Again, the goal, as enshrined in the Newspaper Preservation Act, is to preserve two newspapers.

In 1983, for example, the owner of one of the two newspapers operating under a JOA in St. Louis wanted to close its paper. The Justice Department intervened and insisted that even though the newspaper was losing money, the company make a serious attempt to find a buyer, according to a 1999 article in the American Journalism Review. Surprisingly, a buyer emerged, and the newspaper was sold and operated for two more years.  In the past, the Justice Department’s “basic standard” on this issue has been that the “newspaper be put on the market and the price be reasonable,” according to Stephen Barnett, who’s studied JOAs extensively. He’s law professor emeritus at the University of California at Berkeley with a degree from Harvard Law.  

The Department has even taken steps to make sure that buyers aren’t discouraged, he said.  This view about the apparent obligation of Scripps to seek a buyer has not been reported, and it should be. It could answer the nagging question of why Scripps is putting the Rocky on the market for a time period that’s so short as to make a sale nearly impossible.

Scripps could be trying to demonstrate that a sale was attempted, to deflect possible intervention by the Justice Department.  But putting the Rocky on the market for one month over the holidays looks like it’s not a good-faith effort to find a buyer for the newspaper. If Scripps makes the decision in mid-January to close the Rocky, the Justice Department could intervene and insist the Rocky remain for sale longer.

“I think the Justice Department might, especially in a new Administration, require [the Rocky] to remain operating for a few months or something to see if a new buyer could be found,” said Barnett.  If a buyer were found, the widely reported JOA provision giving Post owner Dean Singleton both the first right of refusal and the right to reject the buyer may be illegal, says Barnett. In a view that’s not been reported locally, he believes a right of refusal in the JOA can’t trump a “capable buyer.”

He adds that the Justice Department has been lax in this area of enforcement, but has “a lot of discretion in these cases, and a lot would depend on who’s in charge of the anti-trust division” and “whether there’s time for a new team to take charge.” Stephen Lacy, a professor in the Michigan State University Department of Communication and School of Journalism, agreed with Barnett.