“The ancients understood the regulation of power better than the regulation of liberty”. -Edward Dahlberg

Recently, I’ve been thinking about regulation – or rather, the threat of regulation – around media and marketing today. From the saber-rattling around the Omnicom – Publicis merger to the Do Not Track legislation re-introduced by Senator Rockefeller, marketing and governance must strike a delicate balance.

As our systems and offerings grow in complexity, it’s easy to point fingers at the other side citing self-interest at best (and ignorance at worst) for interference in “business as usual.”

However, this would oversimplify the situation. It’s not that regulation and effectiveness are at odds – rather they are inextricably linked given marketing’s role is to engage consumers (read: constituents) directly, and in some cases it is actually necessary for legislators to absorb different points of view and provide for a reasonable consensus-based path forward.

As new technologies continue to transform the way we interact with each other, it’s unavoidable that we’re going to need new boundaries and rules to govern behaviors we can hardly imagine today. The question, then, is no longer WHO makes the rules, but HOW the rules are made. I think the “WHO” is long past us as marketing’s technology is too strong, its reach too omnipresent, and its importance to the global economy too critical for government not have a seat in the orchestra.

However, like procurement in media reviews, that seat should not always be first violin – nor should it be conductor. Our industry must work collaboratively to recognize potential issues early, set an industry tone collegially and collaboratively, and use government as an “activator” to codify the position…whatever that may be. It’s a minor variation on the old yarn about how if the first time your customer hears of BMW is when she’s ready to buy one, you’ve failed. If an issue becomes “industry-wide” before our industry has formed an opinion on it, we give up the agency on how it should be addressed. Still, like any business must be in a challenging and fast-paced world, government should also be flexible to meet the demands placed upon it, variable though the amount of leadership required may be.

One example of how the “HOW” is so important is the current dispute over digital billboard permits in Los Angeles; this situation perfectly illustrates the need for industry/government collaboration in the pursuit of solution for modern-day marketing concerns. As Los Angeles is my hometown and Clear Channel Outdoor is a MediaLink partner, I’ve been tracking this situation closely. For background, eighty-seven digital billboards are currently “dark” based on a local judge’s decision stemming from a competitor’s angling for better competitive positioning for their own traditional (non-digital inventory). The specifics and long history of the case are too complex to delve into here, but one point is worth noting: nowhere in the court decisions on the matter does it suggest that digital billboards are bad, or illegal; merely that permits gained as part of a long-ago settlement with the city failed to follow due process.

Here is where and why Clear Channel Outdoor is handling the “HOW” effectively. Clear Channel itself is pushing for common-sense legislation that includes a reduction in total signage. They are not battling their competitors and they are not battling citizens – they are merely asking for sensible legislation that will serve the community and their entire industry, competitors included. This is long overdue as this modern marketing issue, though complex is not beyond solving through government, industry and citizen collaboration.

However the case is eventually resolved, hopefully soon, it highlights the effectiveness of elevating dialogue to a level at which found solutions benefit consumers, marketers, and the economy as a whole.

So whether it’s billboards, privacy, competition, or how we define native advertising – I believe the first step is for us as an industry to recognize that regulation can either be constructive or destructive.

It’s our choice how we use it.

Michael E. Kassan is Chairman and CEO of MediaLink, LLC, a leading Los Angeles and New York City-based advisory and business development firm that provides critical counsel and direction on issues of marketing, advertising, media, entertainment and digital technology. Michael can be reached at michael@medialinkllc.com

Cross-post from MediaBizBloggers