CALM Act Jitters? Deadline for Waiver Requests Is Fast Approaching!

Unless you’re confident that you will be in compliance with the CALM Act requirements by December 13, you should NOT neglect the October 15 deadline for waiver requests.

Not quite a year ago, the CALM Act was front and center in the minds of full-power TV broadcasters and multichannel video programming distributors (MVPDs). The CALM Act, of course, is the legislation (together with the follow-up agency rules) that’s supposed to make loud commercials a thing of the past. The rules are set to take effect on December 13, 2012 – by which date all affected entities are required to be in compliance with the rules. (For readers who need to brush up on the rules, check out our post from last January.)

When it enacted the CALM Act, Congress thoughtfully authorized the Commission to waive the requirements for a year (with an additional year also possibly available) for entities who could demonstrate that obtaining the necessary equipment would “result in financial hardship”. And pursuant to that authority, the Commission announced two separate “financial hardship” waiver policies: a streamlined approach applicable to “small stations and MVPDs”, and a somewhat more cumbersome approach applicable to all others.

The deadline for filing those waiver requests (whether or not you’re “small” – and read on for more information on that score) is 60 days prior to the December 13, 2012 effective date of the rules. By our calculation, that means the waiver deadline is October 15, 2012. (Technically, the sixtieth day prior to December 13 is October 14, but that’s a Sunday and, under the Commission’s rules, deadlines that fall on a weekend or holiday automatically roll over to the next business day.)

So what’s the drill for these financial hardship waivers? Here’s the scoop on both “small” station waivers and others.

“Small” TV station and MVPD systems. If you’re a TV station located in TV markets 150-210 or if you have no more than $14 million in annual receipts, you’re a “small” TV station for these purposes (note -- the CALM Act applies only to full-power stations, not LPTVs); you’re a “small” MVPD system if you had fewer than 15,000 subscribers (as of 12/31/11) and you aren’t affiliated with a larger operator serving more than 10% of all MVPD subscribers. 

If you qualify for the “small” operator’s waiver, you need submit to the FCC only a certification that (a) you meet the definition of “small” TV/MVPD operation and (b) you need the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” if you had to get the equipment sooner.  You must identify or describe the kind of equipment in question, but you don’t need to specify model number.

Other TV stations and MPVD system. Entities that don’t qualify as “small” must submit: (1) evidence of their financial condition; (2) cost estimate for obtaining the necessary equipment; (3) a “detailed statement explaining why its financial condition justifies postponing compliance”; and (4) an estimate (with support) of how long it will take to comply.

Note that the Commission also has authority to grant “general” waivers of the rules based on “good cause” showings not necessarily related to financial hardship, including claims of unforeseen circumstances. The Commission has provided no simple template for such “general” waiver requests.

Good news! There is no filing fee required for CALM Act waiver requests.

All waiver requests (i.e., both “financial hardship” and “general” requests) must be filed through the FCC’s Electronic Comment Filing System (ECFS), which can be accessed at http://www.fcc.gov/cgb/ecfs/. Each request must reference the CALM Act proceeding and its docket number (MB Docket No. 11-93). Each filing must be “clearly designated” as either a “financial hardship” or “general” waiver request.   “General” requests must comply with Section 1.3 of the rules, which simply requires that “good cause” be shown in support of a waiver request. (Helpful tip: the ECFS system will provide you with an online confirmation that your request has been successfully submitted. The Commission recommends – and we agree – that anyone filing a request should keep a copy of that confirmation.)

Again, the deadline for waiver requests is 60 days prior to December 13, i.e., October 15, 2012. Unless you’re confident that you’ll be street legal, CALM Act-wise, by December 13, you’d best be preparing a waiver request by October 15.

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