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Media Transparency Findings, Recommendations, and Agency Agreement Template

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Media Transparency Findings, Recommendations, and Agency Agreement Template MEDIA TRANSPARENCY FINDINGS, RECOMMENDATIONS, AND AGENCY AGREEMENT TEMPLATE An Independent Study of Media Transparency in the U.S. Advertising Industry Media Transparency: Prescriptions, Principles, and Processes for Marketers Master Media Planning & Buying Services Agreement WWW.ANA.NET/TRANSPARENCY Dear ANA Member, The June release of the ANA-commissioned K2 Intelligence report was a serious wake-up call for the industry. The report flagged the level of non-transparent business practices across the U.S. media-buying ecosystem, including cash rebates to media agencies. In July, we released our companion report, “Media Transparency: Prescriptions, Principles, and Processes for Marketers,” authored by the ANA and Ebiquity/FirmDecisions. This report outlines strongly recommended actions which marketers should consider to diminish or eliminate non-transparent and non-disclosed agency activities and to help ensure that their media management processes are optimized. Finally, we released our third publication: a recommended media contract template that marketers can use as the foundation for their master services agreements with agencies. This critically important document was written in conjunction with our general counsel, Reed Smith LLP, and our British counterparts, the ISBA (Incorporated Society of British Advertisers). The two reports and the contract template have been strongly endorsed and recommended by the ANA’s Board of Directors. The ANA board did so because it was clear that marketers share in the responsibility for making media far more transparent. Many marketers’ processes are broken or sub-optimized, leaving gaping holes in their ability to effectively manage their media investments. As such, I wanted to be sure these documents reached you so that you had every opportunity to consider the wealth of insights and recommendations. To facilitate your review, we have combined all three documents into the enclosed compendium. I encourage you to examine them and share them with your staff. I believe the deterioration of the client/agency relationship can be reversed, and that positive outcomes and winners for all constituencies can emerge. After all, the strength of our industry is dependent on strong client/agency relationships. We need to restore the trust that is so fundamental to our business and brand-building success. If you have any questions, or would like further information, please email us at [email protected], or visit www.ana.net/transparency. We will be happy to help you in any way we can. Regards, Bob Liodice CEO ANA ANA | 708 Third Ave., 33rd Floor | New York, NY 10017 | 212.697.5950 | www.ana.net AN INDEPENDENT STUDY OF MEDIA TRANSPARENCY IN THE U.S. ADVERTISING INDUSTRY PREPARED BY K2 INTELLEGENCE • • • An Independent Study of Media Transparency in the U.S. Advertising Industry • • • Prepared for: The Association of National Advertisers June 7, 2016 Report An Independent Study of Media Transparency Issues in the U.S. Advertising Industry Prepared for: The Association of National Advertisers June 7, 2016 New York London Madrid Tel Aviv Geneva Los Angeles Contents Executive Summary ............................................................................................... 1 Introduction ............................................................................................................. 5 2.1. Background and Purpose ................................................................................... 5 2.1.1. Firm Background ...................................................................................................... 5 2.2. Study Scope ....................................................................................................... 6 2.2.1. Non-Transparent Business Practices Defined ......................................................... 6 2.2.2. Qualifications ............................................................................................................ 7 2.3. Overview of Prior Transparency Studies ............................................................ 7 Methodology ........................................................................................................... 9 Findings ................................................................................................................. 13 4.1. There Is A Fundamental Disconnect In The Industry Regarding The Basic Nature Of The Advertiser-Agency Relationship ............................................... 13 4.1.1. Advertiser Perspective ............................................................................................ 13 4.1.2. Agency Perspective ................................................................................................ 14 4.1.3. Contractual Language Regarding Advertiser-Agency Relationship ....................... 15 4.2. K2 Found Substantial Evidence of Non-Transparent Business Practices in the U.S. Market in the Form of Rebates ................................................................. 16 4.2.1. Overview ................................................................................................................. 16 4.2.2. Rebates in Cash and Free Media ........................................................................... 17 4.2.3. Rebates Structured As Service Agreements .......................................................... 21 4.2.4. Contractual Rebate Provisions ............................................................................... 26 4.2.5. Advertisers’ Awareness of Rebates ........................................................................ 27 4.3. K2 Found Substantial Evidence of Potentially Problematic Agency Conduct Concealed By Principal Transactions .............................................................. 28 4.3.1. Overview ................................................................................................................. 28 4.3.2. Agent vs. Principal Transactions ............................................................................ 29 4.3.3. Media Purchased As A Principal ............................................................................ 30 4.3.4. Media Purchased Programmatically ....................................................................... 40 4.3.5. Lack of Transparency with ATDs ............................................................................ 43 4.3.6. Perceived Advantages for Advertisers ................................................................... 43 4.3.7. Internal Pressure to Direct Spend to the Agency’s Principal Entities and Investments ..................................................................................................... 44 4.3.8. Other Non-Disclosed Agency Markups and Fees .................................................. 47 4.4. K2 Found Evidence of Non-Transparent Business Practices in the U.S. Market Arising from Agencies Holding or Soliciting Equity Stakes in Media Suppliers 49 4.4.1. Transparency Issues with Equity Investments ....................................................... 49 4.4.2. Contingent Equity as Rebate .................................................................................. 50 Several Factors May Be Enabling and/or Contributing to the Proliferation of Non-Transparent Business Practices in the U.S. Market ................................. 53 ii 5.1. Client Pricing Pressure ..................................................................................... 53 5.2. Increasing Complexity of the Media-Buying Landscape .................................. 54 5.3. Limitations On Audit Rights .............................................................................. 55 Conclusion: Within the Sample Studied by K2, Non-Transparent Business Practices Were Found to Be Pervasive .............................................................. 57 Glossary of Key Terms and Concepts ................................................................ 61 iii Executive Summary • From October 20, 2015 through May 31, 2016, K2 Intelligence, LLC (“K2”) conducted an independent study of media transparency issues in the U.S. advertising industry on behalf of the Association of National Advertisers (“ANA”). K2 was selected to lead the fact-finding portion of the study after a Request for Proposal process initiated by the ANA on June 17, 2015. Ebiquity/FirmDecisions (“Ebiquity”) was selected to partner with K2 for the purpose of developing practical recommendations to address the study’s results. • Over the course of the study, K2 requested interviews with 281 sources and ultimately conducted 143 interviews with 150 individual sources, representing a cross-section of the U.S. media-buying ecosystem. K2 kept the identities of all participating sources – and all of the individuals and corporate entities named in their accounts – confidential from both Ebiquity and the ANA throughout the study. At all times, K2 maintained complete authority over the methodologies utilized by the study team, as well as full editorial control of this report. • Within the sample studied by K2, non-transparent business practices were found to be pervasive. Of the 150 sources interviewed by K2, 117 were directly involved in media buying in the U.S. market. Of those 117 sources, 59 reported direct experience with non-transparent business practices, including rebates (34 sources) and principal transactions that enabled potentially problematic practices (33 sources). Some of these sources reported multiple experiences with separate and unrelated
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