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arbitration mechanism. These terms operate as a first screening criterion to determine which ad to serve. It is only after this initial screening stage that the DFP, more general, criteria (priority, satisfaction and eCPM) pursue the arbitration mechanism.

  • 319.

    In DoubleClick's system, publishers manually input the priority level they wish to assign to particular types of ads. Publishers base their priority placements on the return on inventory that various categories of ads are likely to produce. The DFP user interface allows for entry of sixteen different priority levels; DE offers over 100 priority fields. If Google were to change a DoubleClick publisher’s priority ranking, this would be immediately visible at the user's interface. Not only would publishers demand to know why their settings had been altered, but Google would be unable to profit from the tampering because publishers could manually correct their priority rankings to move AdSense to a lower priority.

  • 320.

    Following this, the satisfaction index criterion comes into play. Among ads at the publishers’ designated priority level, the ad server determines, on the basis of the number of impressions guaranteed by the publisher’s ad sales contract, whether each advertiser’s ads are on schedule to be served the agreed number of times164. If DFP was altered in order to interfere with the satisfaction level, publishers would fail to meet their contractual obligations to show ads for which their advertisers had paid. Repeated under-delivery of a given advertiser’s ads would be clear to both advertisers and publishers through the reports DoubleClick generates and would cause DoubleClick’s publishers to be in breach of their ad sales contracts with their advertisers.

  • 321.

    Lastly, although rarely considered during the ad selection process, the eCPM criterion is, in the notifying party's view, fully transparent because publishers know the value of their ad sales relationships and closely monitor their ad serving reports. If more than one ad is available at the highest available priority level, and if there is no satisfaction deficit to make up, the CPM criterion selects ads in order of revenue generation for the publisher. DFP determines which ad pays the highest CPM and delivers that ad.

  • 322.

    Publishers are aware of the revenues they should be earning from each of their selected distribution channels because they individually negotiate the terms for their directly sold inventory and ad networks state their effective CPM rates when pitching for business. The notifying party observed that DoubleClick’s

For instance, if the Financial Times, a publisher, has requested that a guaranteed ad be served into the single banner-sized ad slot on its homepage, DFP will first look at the priority level fixed by the publisher. Among all qualifying ads at the same priority level, DFP will determine which ad to deliver based upon the number of impressions that it must serve of each ad and the number of impressions it already has served of each ad. If a Nike ad is scheduled to deliver one million banner-sized impressions to the Financial Times homepage and a BMW ad is scheduled to deliver two million banner-sized impressions to the homepage or the auto section, and the BMW ad is behind schedule due to low traffic to the auto section, DFP will serve the BMW ad to the homepage first before the Nike ad.

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