In 2008, the FCC adopted a requirement that broadcast stations include in their advertising contracts a provision that says that advertisers will not discriminate on the basis of race or gender. We wrote about that requirement here, and our post was greeted with significant surprise by many broadcasters as the requirement did not glean much publicity when it was first adopted. Today, the FCC issued an Erratum to that two year old requirement, eliminating from the certification its application to discrimination in advertising based on gender. Instead, the Erratum stated it was only discrimination based on race or ethnicity that was prohibited. The Erratum stated that this language "more accurately" reflected the "Commission’s clear intent" in adopting the requirement for the certification in advertising contracts.
The removal of "gender" from the advertising discrimination certification seems to recognize the common-sense advertising principal that some advertising, by its very nature, may be targeted to one gender or another. But the correction of this language through an Erratum seems to avoid many of the hard issues that remain with this certification. The Commission was very terse in its explanation of how this certification was supposed to work and exactly what it was supposed to prevent. There were certain situations that seem to fit within the prohibitions – situations where the advertiser of a general market product refuses to allow it to be advertised on stations that target minority audiences (see our discussion of the Mini Cooper advertising controversy here). This was to avoid the "no Spanish, no urban dictates", ruling out advertising on stations with urban formats or those programmed in Spanish, that some felt were attached to some advertising orders. But there are many other questions that remain to be clarified.
For instance, while the Commission today seems to recognize that there are certain situations where it is appropriate to target the advertising of certain products to a specific gender, they fail to address whether it may also be appropriate to target advertising of certain products based on race or ethnicity. In fact, many broadcast stations are now formatted to take advantage of that targeting – for instance Spanish language stations have one of the fastest growing advertising markets in the country, with advertising targeted to the audiences of those stations. But what about the ad for a heavy metal band where the concert promoter specifically says that it wants the concert to be advertised only on a hard rock station, which may have a low minority audience. Would that direction be judged discriminatory as the advertising order does target a specific audience that is largely not a "minority" audience? Obviously, there may be heavy metal fans who also listen to Spanish language or urban stations, but you are more likely to have a higher concentration of fans on a hard rock station. If that kind of targeting is acceptable (and it isn’t it really the goal of having niche formatted radio stations to reach a particular demographic, and the goal of targeted advertising in other media, like the Internet, where advertisers seek to send their ads to consumers most likely to react to it?)? When is targeted marketing acceptable and when is it not? The Commission really needs to provide more guidance before the license renewal cycle starts next year, so that stations have the advice necessary to certify whether or not they are complying with this seemingly unclear rule.
On a more practical level, in 2008, we provided some suggested language for a certification for station’s advertising contracts, as the FCC had not mandated any language – and in fact specifically declined to do so. With the change in the FCC language in today’s Erratum, we would suggest the following language:
This station does not discriminate in the sale of advertising time, and will accept no advertising which is placed with an intent to discriminate on the basis of race or ethnicity. Advertiser hereby certifies that it is not buying broadcasting air time under this advertising sales contract for a discriminatory purpose, including but not limited to decisions not to place advertising on particular stations on the basis of race, national origin, or ancestry.
Industry organizations are supposed to get together to come up with an industry approved program to comply with this rule. Until we get more guidance from these groups or the FCC, we guess that this language will have to do.