A Closer Look at the 4A's Non-Discrimination Policy

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. 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. 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.