Industry to Begin Enforcing Compliance on Behavioral Advertising Principles

Council of Better Business Bureaus will Start to Monitor and Regulate Online Marketers

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The online ad industry will start policing itself as part of its program to monitor and regulate how marketers track consumers online, also known as behavioral advertising. The coalition of ad trade groups that have banded together to ward off federal privacy legislation (though two pieces of proposed legislation have recently surfaced in Congress) has enlisted the Council of Better Business Bureaus to administer the effort.

Ad Age talked to Eugenie Barton, who is heading up the council's department in charge of holding the industry accountable, as well as the council's CEO, Lee Peeler, about how it will evaluate marketers as part of the compliance program.

Ad Age: When the industry self-regulation program was announced last October, the CBBB was already listed as the enforcing arm. Now it appears to be official.

Ms. Barton: It does more than make it official. We are stepping up enforcement. For everybody who states they are in compliance, we will be checking to see if they are in compliance with the principles. And if they're not, we'll be talking to them about what steps they are taking to be in compliance, and what their time line is.

Ad Age: What happens if there's a dispute? Such as if a company claims they are being compliant when you believe they are not?

Ms. Barton: If they tell us they are compliant, we will begin to monitor to make sure they are by making sure they have the proper notices and that their opt-out link is functional, that they're in compliance with all the principals.

Ad Age: What happens if they don't respond or disagree with your assessment?

Ms. Barton: If they choose not to answer, we will be referring them to the appropriate agency.

Ad Age: Which agency? The FTC?

Ms. Barton: Yes, most likely, unless there's an instance where I don't foresee it being anyone else. I like to say that just in case.

In most cases, I don't foresee this being an issue. But if a company is working on compliance, and if we don't think it's the best-effort approach, we will be getting in touch with them to work with them to speed up compliance.

Ad Age: Will there be instances of overlap between what the CBBB is doing and the FTC itself?

Lee Peeler: Our effort will be complementary to what the FTC does. It doesn't displace any FTC jurisdictions, and in many ways our program goes beyond what the law requires. The FTC knows about the program, and the FTC has been reinforcing the need to have an accountability program up and running themselves. There's a been a good deal of coordination with the FTC already, so I don't think this will be too much of an issue.

Ms. Barton: I'd add that the FTC already has expectations that we will be doing this and not holding back, because the enforcement is essential to any self-regulatory programs' success. One area where there in a sense of overlap is where it's clearly FTC jurisdiction, such that if there is an entity that is stating that they're in compliance and using the icon, and we find that they are not and they do not come into compliance, then the FTC would have to be referred.

Ad Age: How big a staff do you have to do the monitoring?

Mr. Peeler: First, we have technology from Evidon, the company that is doing the backend for everybody. It's very fast and comprehensive. And we'll have three people including [Ms. Barton] initially, and we'll also be working cooperatively with the DMA [Direct Marketing Association], which is also doing this. We hope that'll do the trick -- if that's not enough we'll find ways to remedy that.

Ad Age: What will be the DMA's specific tasks in this?

Ms. Barton: We're working with them so we do not duplicate efforts. I don't want to say if we're splitting up companies within the industry to monitor, but that may be a part of it.

Ad Age: At what point in the process of evaluating a company's compliance does the FTC come into play?

Ms. Barton: It has to be company specific. I'm not trying to hedge, just trying to avoid prejudgments. Different entities within the industry have differing compliance responsibilities and different complexities in their businesses, and different resources to bear.

But if we feel that the company is not meeting it's obligations, we, generally speaking, will reopen the case for potential noncompliance, and after working with his company for a reasonable amount of time, and if we are not satisfied, we will refer to the FTC. I'm not going to hold back. So my goal is not referral. I want them to fix it, and we want to work with them to reach compliance. But if they don't fix it, we will have to take tougher steps.

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