FTC takes action against ad giants for avoiding certain sites

By Jay Brown | Legal Newsline
The Center Square

WASHINGTON – The Federal Trade Commission and eight states have sued three of the country’s largest advertising agencies for allegedly conspiring not to buy advertisements on websites and social media platforms that promote disfavored political viewpoints.

According to the FTC’s complaint, the advertising agencies Dentsu US, Inc., GroupM Worldwide LLC – which operates under the name WPP Media – and Publicis, Inc. agreed to use the same “brand safety” standard to avoid buying ads on websites containing “lawful but disfavored content.”

The companies have already resolved the litigation, agreeing to orders that last for 10 years and prohibit the defendants from conspiring with other advertising agencies not to buy advertising space with any “website, application, broadcaster, or publisher” based on its “news and political or social commentary content.”

Advertising agencies, whose business involves buying ad inventory for clients who want to place ads on websites and social media, develop their own brand safety standards for their clients to avoid placing ads on sites that might damage the client’s brand by, for example, placing an ad on an adult-oriented site.

Beginning in 2018, the FTC alleged, the defendants established a “brand safety floor” based on designations of websites that contain “misinformation” identified by third-party organizations like NewsGuard Technologies, Inc., Global Disinformation Index, Check My Ads and Media Matters for America. These organizations, the FTC stated, “sought to elevate concerns within the digital advertising industry about what they viewed as ‘misinformation,’ in order to deprive certain sites of the digital ad revenue they needed to survive.”

By agreeing to the same brand safety standard, the FTC claimed, the defendants eliminated an important aspect of competition between the advertising agencies.

“In a competitive market, the ad agencies would have faced strong economic incentives to capture business from their rivals by developing lower cost, higher quality, better targeted, and more innovative brand-safety tools—all to the benefit of their advertiser clients. Advertisers would also likely benefit from this competition by getting more value for their advertising budgets,” the complaint states.

In its press release, FTC Chairman Andrew Ferguson emphasized that “[t]he ad agencies’ brand-safety conspiracy turned competition in the market for ad-buying services on its head… The antitrust laws guarantee participation in a market free from conduct, such as economic boycotts, that distort the fundamental competitive pressures that promote lower prices, higher quality products and increased innovation.”

Chairman Ferguson was the only FTC commissioner to vote in favor of issuing the complaint. Commissioner Mark Meador was recused from the vote.

The FTC, which typically has five commissioners and no more than three from the same party as the president, currently is operating with only two.

The complaint was filed in the U.S. District Court for the Northern District of Texas along with final orders and stipulated permanent injunctions agreed to by each of the defendants. The states of Florida, Indiana, Iowa, Montana, Nebraska, Texas, Utah and West Virginia joined the complaint and final orders.

This action is part of a broader effort by the FTC, extending back as early as May 2025, to identify companies within the advertising industry that have allegedly censored politically disfavored content.

In late May 2025, the FTC served subpoenas on 17 companies in the advertising industry to investigate “whether online advertisers and/or advertising agencies have unlawfully agreed to use certain lists promulgated by other industry participants that categorize or rate content publishers as not ‘brand suitable’ or not ‘brand safe,’ to coordinate the placement of ads.”

One recipient was NewsGuard, which the FTC’s recent complaint described as a “ratings agency that ranks the reliability of media outlets.” NewsGuard’s reliability ratings were among those allegedly used by the advertising agencies to set the “brand safety floor” at the heart of the FTC’s complaint.

NewsGuard, represented by Gibson, Dunn & Crutcher LLP, petitioned the FTC to quash the subpoena arguing that it represented “unconstitutional retaliation against NewsGuard based on its protected First Amendment activities” and included overbroad demands for “sensitive subscriber information, customer communications, and internal deliberative materials” in violation of the First and Fourth amendments.

In its petition, NewsGuard asserted that it had been the target of a campaign by Federal Communications Commission Chairman Brendan Carr, who in a November 2024 letter “alleged that NewsGuard was part of a ‘censorship cartel’ alongside major technology companies and that NewsGuard ‘leverag[es] its partnerships with advertising agencies to effectively censor[] targeted outlets’” and claimed that the “incoming Trump Administration would investigate and take action against NewsGuard.”

In the wake of Carr’s statements, according to NewsGuard, President Trump appointed Ferguson and Carr to their respective chairmanships at the FTC and FCC.

The FTC denied NewsGuard’s petition to quash the subpoena in March and ordered it to comply by April 9. Again, Chairman Ferguson was the only commissioner voting to deny the petition as Commissioner Meador was recused.

The complaint against Dentsu, WPP Media and Publicis is not the first action brought against the industry by the FTC.

In June 2025, the FTC sued to stop the merger of the third- and fourth-largest advertising agencies in the U.S., Omnicom Group, Inc. and The Interpublic Group of Companies, Inc., alleging that the combination would increase the likelihood of collusion among the remaining agencies.

Omnicom and IPG agreed to a consent decree that allowed the merger to proceed on the condition that the companies agree not to enter into “any agreement or practice that would steer advertising dollars away from publishers based on their political or ideological viewpoints.”