Debra Goldman’s Consumer Republic

Blame it on the crack about the bathroom. A little more than a month ago, Cableworld published an interview in which Turner Broadcasting CEO Jamie Kellner claimed that PVR owners who use digital wizardry to skip commercials are little better than thieves. Under prodding, he conceded that there might be “a certain amount of tolerance” among media conglomerates for people taking bathroom breaks.

It was the potty reference heard ’round the world, making its way from the pages of the trade press to The New York Times. Pundits and TV watchers across the globe were outraged at the assertion that viewers enter into an implied contract with content providers to watch commercials along with programming.

Some still aren’t over it. On the Web site of the Electronic Frontier Foundation, consumers are invited to send a letter to Kellner, acidly lecturing him, “Let me remind you that I am not in your movie theater; you are a guest in my living room. I never signed a contract with Turner Broadcasting or any of the other networks that send programming over the public airwaves. Until I do, I will choose whether or not to watch commercials in any way I see fit.”

Dream on, my couch potato friends. Despite consumers’ insistence that they are the boss, advertising is increasingly becoming an offer you can’t refuse. Forget pop-up ads. Even browser toolbars can now become banners for brands, thanks to a nifty piece of software from a company called United Virtualities.

It’s gambits like this that make me think all the ridicule poured on Kellner’s contract concept is wrongheaded. Maybe the time has come for consumers to consider signing contracts with advertisers. Indeed, maybe they should insist on it.

A decade ago, when the business world first began obsessing over consumers’ growing control over media consumption, such a notion seemed ridiculous. Back then the idea was that marketers would have to accommodate the growing power of consumers by somehow recruiting them as allies in the marketing process.

To achieve this, some believed advertising would have to become more entertaining, so people would actually want to see it. One-on-one advocates saw a future in which ads would be so individualized, relevant and timely that their targets would see them as helpful, not annoying. Permission marketing sought to gain consumers’ good will in advance. There was even talk of the day when advertisers would actually pay the public to watch their sales pitches.

That was before push came to shove. Although all of these strategies still have supporters, the dominant trend these days is not toward courting a marketplace of choosy consumers but toward forcing them into submission. The imperative to accommodate consumers’ ability to choose has turned into the imperative to abrogate that ability. To that end, the media giants are spending millions lobbying Congress and arguing in the courts to make sure consumers are denied the power that technology has put within their reach to access, edit and distribute content.

Advertisers, meanwhile, are racking their brains for new ways to get their messages in the face of consumers in ways the poor captives cannot avoid. Product placement. Pop-up ads. Onscreen bugs and banners. Virtual billboards. Fast-forward-disabled commercials on DVDs. In a weird throwback to the Rosser Reeves ’50s, when assaulting audiences with annoying commercials was a respected strategy, no method of delivering the pitch—no matter how intrusive, unwanted and irritating—is off-limits in the scramble to circumvent consumer control.

But Kellner and Co. can’t actually force people to watch ads, can they? Presumably not. Still, it is a little disturbing that the media heavyweights that are suing Sonic Blue, maker of ReplayTV, got a judge to order the company to turn over data to the plaintiffs on how customers use the device. With surveillance comes the possibility of enforcement.

Under such circumstances, the appeal of an explicit contract becomes clear. Let consumers commit to giving up some of their technology-provided freedoms—as long as advertisers do the same.

I can think of a lot of “quids” that might be exchanged for the “quo” of pledging to watch TV ads. No more publicly financed stadiums bearing a brand name. Web sites that actually honor their original privacy policies. No more postcards in restaurant bathroom stalls. No digital insertion of extra ads in programming.

Who knows, if advertisers would sign on the dotted line, maybe consumers would, too.