FTC Staff Concludes Online Behavioral Advertising Enforcement Program Not Anticompetitive
The Federal Trade Commission (FTC) has issued a staff advisory opinion
informing the Council of Better Business Bureaus, Inc. (CBBB) that staff does
not have any “present intention” to recommend that FTC bring an enforcement
action against a CBBB plan to hold companies “engaged in online behavioral
advertising” (OBA) accountable for compliance with self-regulatory principles
issued in July 2009 and administered by the Digital Advertising Alliance (DAA).
CBBB sought FTC staff’s assurance that the accountability program, if implemented, would not be subject to restraint of trade prosecution. According to the August 15, 2011, letter, “the proposed accountability program is intended to increase transparency and consumer control of OBA, which has the potential to increase consumer welfare, and there appears to be little or no potential for competitive harm associated with the proposed accountability program.”
The principles require companies that engage in OBA to notify consumers
they are doing so and provide consumers with control “over whether data is
collected and used or transferred for OBA purposes . . . through easy-to-use
consumer choice mechanisms.” The principles also impose data security and
limited retention requirements. Under the program, companies would be
required to pay fees for the use of an “advertising option icon/link” and a listing
on DAA’s Website. CBBB will evidently police companies engaging in OBA,
notify those not in compliance with the principles and recommend steps to
bring them into compliance. If uncorrected, non-compliance will be reported
to regulatory authorities and “may result in the company’s loss of membership
in one or more of the trade associations that cooperated through the DAA to
establish and implement the Principles.”
FTC staff concluded that such action and potential sanctions are “unlikely to
unreasonably restrain trade.” Still, staff based its determination on information
provided by CBBB and further noted that the commission itself is not bound by
the opinion and that staff “retains the right to reconsider this opinion, and, with
notice to the requesting party, to rescind or revoke it if implementation of the proposed accountability program appears to result in significant anticompetitive
effects.”
