Here are some of the big questions left unanswered by the FTC’s Omnicom-IPG neutrality decree

“It gives the [Trump] administration… and future administrations, for a 10 year period, a vehicle through which they can decide at an industrial scale, [that] the largest U.S. media agency will fund or not fund media owners on behalf of their clients,” said Ebiquity CEO Ruben Schreurs.

Taken alongside the FTC’s ongoing legal tussle with lobby group Media Matters and Congress’ recent scrutiny of the digital advertising sector, Forrester analyst Jay Pattisall told Digiday that the move “represents an unprecedented politicization of free speech and commercial creativity.”

Both companies have agreed to the conditions of a “consent order,” a legal mechanism usually deployed to force companies to divest from business units to avoid creating a monopoly.

But this order, which remains active for the next decade, prevents Omnicom from directing advertising dollars away from media owners that publish “ideological” content, unless brand clients specifically ask it to. The company is obliged to provide the FTC with an annual report detailing its compliance with the order for the next five years. The intention is to stop a post-merger Omnicom using its enlarged position in the market for political purposes.

While executives at both holding company welcomed the decision, the FTC’s imposed neutrality could end up costing the combined entity and weighing on its clients.

In a statement, Omnicom boss John Wren said it was “an important step toward the completion of the proposed acquisition and creating a new era.” It’s also an unusual step for the FTC, one that conjures up a series of knotty problems for the U.S. advertising industry.

Let’s take each one in turn.

What is ‘ideological content’ and just how are Omnicom/IPG barred from avoiding it?

The FTC’s order stops Omnicom from directing client ad dollars based on the “political or ideological viewpoints” hosted by a given publisher, and it won’t be able to use exclusion lists — either its own or those provided by companies like DoubleVerify or Integral Ad Science — unless an advertiser asks it to do so.

Pattisall said that caveat means the order won’t touch most media investment decisions as they play out in reality. “Nearly all media plans and buys are decided by advertisers. Clients are the ultimate decision-authorities for buying media, not agencies, which act as advisors. The consent order ignores how advertising works,” he said in an email.

The order shouldn’t affect “inclusion lists” — databases containing publishers that have been stamped for pre-approval by a client’s team, and which are considered the gold standard approach to brand safety among most media buyers. 

“Brands are the ultimate decision makers, as they should be, about where their dollars get spent,” said eMarketer analyst Jeremy Goldman.

One snag? The FTC’s order doesn’t offer a definition of ideological or political publishing. That vagueness serves a purpose, given the FTC’s stated antipathy toward advertisers or agencies exerting power over publishers and social media platforms — and how that could change from administration to administration. 

“The FTC is not happy that anybody has any degree of ability to unionize media buying. They don’t want to see any more consolidation of that,” said Goldman.

Could this hold Omnicom-IPG back in the market?

Potentially. The FTC’s request to document each choice to exclude a publisher from a media plan might not be a major headache for an organization this size, but it’s red tape they could do without.

“There’s no doubt going to be a level of legal scrutiny that has to go on those reports, which is costly,” said Gartner analyst Andrew Frank.

More importantly, cautious clients that want to avoid running ads against political media without catching heat from the Feds can now look to Omnicom’s rivals — think WPP Media, Publicis, Stagwell, Havas or Dentsu — for a means to do so. The order “undermines their [Omnicom’s] competitive position,” said Schreurs.  

Pattisall noted: “Given that all the other global media agencies are under international ownership, the FTC may have unwittingly handed London, Paris and Tokyo-based agency holding companies a short-term win.”

That said, the biggest agency reviews rarely come down to a single factor. “If you’re talking about a major multi-billion dollar account changing hands, then you’re judging it on like 80 different parameters,” Goldman said, adding that he was “hard pressed to imagine a situation where this is the tie breaker.”

The consent order only binds Omnicom, but that doesn’t mean its holding company peers are beyond the FTC’s sights — the agreement is a signal for them to step in line, too.

“It’s almost like [pulling] over one person on the highway because everybody else is going to see it,” said Goldman. “It’s a very public show.”

Could this change how agencies approach brand safety?

It means Omnicom won’t be able to use a boilerplate approach. Now it’ll need to show that when its clients choose to exclude a publisher, they’re doing so for their own unique reasons. Accounting for those decisions in a way that satisfies the FTC will generate mountains of paperwork (it’s unclear as yet how the FTC plans to audit those reports, or what response non-compliance would provoke) but it’s the way the wind is already blowing.

“This is already being done on a brand-by-brand, client-by client basis. But it will now be the norm,” said Pattisall.

It’ll likely influence other holding companies to take a similar line, he noted. “Dentsu, Havas, Publicis and WPP Media… will adopt the same tactics to stay out of the crosshairs.”

What does this mean for media owners?

On the face of it, there’s a positive angle here for news publishers. In recent years they’ve been caught out by blocklists that mislabelled legitimate reporting on important topics as unsuitable for brand advertising. Although some brands will continue to avoid running their ads on The New York Times’ or The Guardian’s websites by explicit choice, this decision means the agencies can’t cut them out from the word go — right?

Not necessarily. The FTC’s consent order cuts both ways. Omnicom can neither direct ad dollars away from a publisher for political reasons — or toward it. That means there’s a chance that news and current affairs publishers still end up losing out, if their coverage is deemed to hold an ideological bent.

“It does seem on the face of it, that it makes it harder to monetize news content,” said Frank. How the letter of the FTC’s order is translated into reality — today, five years and 10 years from now — is up in the air.

“It is totally dependent on how aggressively the regulators want to interpret,” added Frank.