The Federal Election Commission?s split vote yesterday on whether political mobile campaigns are exempt from disclaimers could favor big campaigns while mobile advertising companies may be hesitant to work with smaller ones.

The FEC failed to make a decision yesterday on regulations regarding how marketers have to mark mobile banner ads with disclaimers in a three-to-three vote. The vote highlights the challenges that political campaigns have in keeping mobile ad creative simple while still abiding to guidelines.

?One of the things that they made clear is that if they build a destination that has a disclaimer on it that might be OK, so some will interpret that as, ?OK, we just need to have that disclaimer on the landing page if we can?t fit it on the actual banner ad itself,? which is fine for campaigns that are spending a lot of money building things,? said Keegan Goudiss, partner and head of digital advertising at Revolution Messaging, Washington.

?So those smaller campaigns that can?t build their own thing are at a loss and also campaigns and clients that are not working with lawyers who spent a lot of time interpreting election law may be more nervous to do [mobile advertising] to begin with because it?s so uncertain whether the FEC is for or against this because they came down with a three-three ruling,? he said. 

Upfront information
Revolution Messaging submitted a request in the fall to the FEC asking if banner ads could be exempt from including disclaimers because of the small ad unit size.

Any advertisement requires political marketers to indicate which party paid for the ad, which can be particularly challenging on mobile with smaller screen sizes and ad units to work with.

The FEC then drafted a few potential advisory opinions that were brought up at a hearing in January. 

During the hearing, it was discussed that democrat commissioners were afraid that removing disclaimers would remove transparency from ads. Republicans argued that mobile ads should be exempt as a small item exemption.

Since a decision was not made at the hearing, democrats decided to look into a shortened disclaimer as an alternative to packing disclaimer copy into a mobile banner ad.

Revolution Messaging then resubmitted a proposal with some examples of shortened disclaimers before the vote yesterday.

Actions going forward
Although it was not voted on yesterday, commentary from yesterday suggests that marketers may be able to get around a disclaimer within a mobile ad if it is included in the landing page after a click-through on an ad.

However, these ads benefit political campaigns with big budgets that are able to set up mobile advertising campaigns with landing pages.

Smaller political campaigns could be at a disadvantage because these campaigns want to send users to a Web site ? such as a Secretary of State?s Web site ? to look up a polling location. These sites do not include a disclaimer, so marketers may not be able to set up mobile advertising campaigns, depending on how marketers interpret the FEC?s inaction.

Additionally, without a firm decision one way or the other, mobile advertising companies may be less willing to work with political marketers if a piece of creative does not have a disclaimer on it.

?Our attorney will draft up why he and his team believe that this means that vendors should be able to work with us on this, but vendors may decide that because there was no action that they don?t want to work with us, so it?s up to each individual legal team,? Mr. Goudiss said.

?It means that smaller campaigns that can?t afford legal help will be more nervous about using [mobile advertising],? he said.

Final Take
Lauren Johnson is associate reporter on Mobile Marketer, New York