Commissioners cheer new policy, but is it really what they had in mind?

In late October, amid much congratulatory buzz, the American Association of Advertising Agencies (which sometimes refers to itself as the 4A’s) adopted a new “best practices” policy recommending that ad agencies adopt “non-discrimination vendor policies and procedures”. In the eyes of some – Commissioners Copps and McDowell, for two prominent examples – this move was just what the Commission had in mind back in 2007-2008, when it first announced that broadcasters would have to certify (in their renewal applications) that they (that would be the broadcasters) don’t discriminate on the basis of race or ethnicity in their advertising contracts.  The Commission’s action was designed to put a stop to, or at least curb, so-called “No Urban/No Spanish” dictates in ad time buys.

The Commission’s policy is not without its conceptual shortcomings. Not the least of those shortcomings is the fact that, since it’s applicable only to broadcasters, the FCC’s policy leaves a gaping hole in protection against the supposed discriminatory practices to which it is directed. After all, broadcasters are in the business of selling time for others’ commercial messages; broadcasters are thus generally not the ones making the decisions as to which station’s time will be purchased. Moreover, stations are often at least one step removed from those decisions, since advertisers frequently rely on ad agencies in crafting their campaigns, including the stations on which the ads are to be placed.

The new 4A’s best practices statement would seem at first blush largely to fill that hole. As noted above, the announcement was met with laudatory statements from two Commissioners. Commissioner Copps effused that “[t]hese best practices from the advertising agencies will pave the way for more equal treatment,” and that they will have “a positive impact in communities across the country.” 

Hold on there. Let’s take a look at the actual language of the “Non-Discrimination Policy Related to Vendor Selection”.

As it turns out, the policy includes some significant qualifying language which could cause it to fall short, in practice, of what the FCC had in mind.  As announced by the 4A’s, the policy reads:


[Insert here name of agency: hereafter Agency] is dedicated to a policy of equal opportunity for all media vendors, suppliers and agents (“Vendors”). Subject to the protection of Agency’s and its clients’ confidential information, Agency will clearly communicate selection criteria to all appropriately qualified Vendors. Consistent with each Agency client’s marketing communications strategies, effective media target audience planning, and efficient media buying practices, Agency policy is to grant equal opportunity to all such Vendors.

Complaint Review Process

A Vendor that feels it has been the victim of discriminatory buying practices by Agency shall be provided the opportunity to voice its dissatisfaction through Agency’s complaint review process. For purposes of this review process, discriminatory buying practices shall be defined as any buying policy that is in conflict with FCC media regulations, and thereby negates equal opportunity.

Agency will provide each of its Vendors with the opportunity to present in writing the basis of its dissatisfaction to Agency’s Discrimination Complaint Review Committee. Based on its findings, the committee may request a meeting with the Vendor to discuss all pertinent information related to the complaint.

Consider that language carefully: the equal opportunities to be accorded Vendors are to be “[c]onsistent with each Agency client’s marketing communications strategies, effective media target audience planning, and efficient media buying practices” (we added that emphasis.) What does that mean? Doesn’t it expressly acknowledge that “audience target[ing]”, “marketing strategies” and consideration of “efficien[cy]” are factors which are to be accommodated in the quest for “equal opportunity” for vendors? 

How would that work in practice? 

For example, what if a promoter hoping to sell season tickets to the opera believed, based on reliable and objective market research, that he could more efficiently reach his target audience by advertising on, say, a news/talk station rather than on one with an Urban format? This isn’t to say that no Urban listener would ever buy a ticket to the opera; but if you’re looking to reach a lot of opera buffs all at once, assume that the available research strongly indicates that by far your best bet is with news/talk audiences and not with Urban audiences. If the advertising agency representing that promoter acted accordingly and imposed a “No Urban” limitation on its ad buys, would that still be OK according to the 4A’s non-discrimination policy?  

What about an importer of a food product considered a delicacy among some South American cultures who wishes to advertise that product exclusively on Spanish-language stations – to the exclusion of other foreign-language or English language stations, including Urban music stations – would that be acceptable? 

Both approaches would seem to pass muster under the new 4A’s policy – since the buys in question would be (a) in line with the client’s marketing strategies and (b) designed efficiently to deliver the client’s message to the client’s chosen target audience. And neither approach appears to be motivated by any pernicious racism. But both approaches would, at least arguably, discriminate on the basis of race or ethnicity, and both would appear to involve the type of express “No Urban” order that the FCC seems intent on stamping out. Is that what the Commission had in mind?

And beyond that, when a Vendor that believes it has suffered from discriminatory buying practices, the 4A’s policy statement affords that Vendor an opportunity to express its concerns through a complaint review process. For purposes of this process, discriminatory buying practices are defined as “any buying policy that is in conflict with FCC media regulations, and thereby negates equal opportunity.” But there are no FCC rules (or “media regulations”) whatsoever on this subject. Nor are there likely to be. Sure, the FCC has raised its eyebrows at buying practices that exclude certain stations, and it has required broadcast stations to certify that they themselves maintain nondiscriminatory contracting practices, but the FCC has no jurisdiction over either the advertisers or the advertising agencies that make the actual buying decisions. So the 4A’s policy on its face does not impose any blanket prohibition against any particular type of advertising restriction.

This is not to say that we think for a minute that the 4A’s promotes improper discrimination or that its new policy is just a cleverly worded effort to sidestep the FCC’s wishes while seeming to embrace them.

Rather, the 4A’s policy appears to be a genuine, good faith effort to acknowledge and address the fact that the purchase of advertising, by its very nature, is a fundamentally discriminatory activity. Not “bad” discriminatory, but discriminatory in the sense that the advertiser has to decide where to spend his/her/its limited advertising dollars, and that decision-making process requires the drawing of lines. And when an advertiser draws lines, discrimination is occurring – discrimination based not on bias against race or ethnicity, but on the advertiser’s ability to achieve his/her/its particular commercial goals. 

With that in mind, perhaps it’s time to take another look at this whole issue, starting with the unarguable premise that all players in the advertising game are in it to make money. From the advertiser’s point of view, the goal is to sell as much of the advertiser’s product as possible. No non-discrimination policy will deter advertisers from attempting to meet that goal as efficiently as possible. Perhaps the 4A’s new policy, with its less-than-absolute language and its apparent acknowledgment of the priority of advertisers’ strategic interests, may be the best policy after all.

Now if only the FCC would recognize the practical reality that not all “discrimination” – including some discrimination which might arguably be based on race, ethnicity, gender or other factors – is necessarily unlawful, inappropriate or even undesirable.