The CALM Act - Six Months and Counting

Complaints soar, and deadline for seeking further one-year extensions of outstanding waivers is approaching. 

Back in December, 2010, with considerable fanfare Congress passed and the President signed the CALM Act.  As its full name – the Commercial Announcement Loudness Mitigation Act – indicated, it was designed to put the kibosh on “loud commercials”. 

The Act imposed a number of detailed technical requirements on TV licensees and MVPDs, but it also provided the opportunity for an initial one-year waiver – possibly extendible for a second year.  In implementing the Act, the Commission allowed “small” stations and MVPDs essentially to have the initial one-year waiver for the asking: all that was required was a self-certification that (a) the station/MVPD met the limited standards for “small” facilities and (b) you needed 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.  (Check out our earlier post for more information on those requirements.)

The initial one-year waivers will expire as of the first anniversary of the effectiveness of the CALM Act rules, i.e., by December 13, 2013.  The Act and the rules provide that a “renewal” of the waiver for another one-year period may be obtained.  Requests for the extension of the waiver must be filed at least 60 days prior to the expiration of the currently outstanding waiver, i.e., by October 14, 2013.  (Last year the Commission extended the deadline after the fact; it’s impossible to say whether it will do the same this time around, but since this is the second time around for CALM Act compliance, we wouldn’t bet the farm on a similar extension this year.)

Back in 2011, when it first announced how it would deal with waivers, the Commission said the “filing requirements to request a waiver for a second year are the same as those for the initial waiver request.” That seems pretty clear, but you never can tell.  If you’re still enjoying that first one-year waiver, it may be a good idea to focus now on whether you’ve got the means to acquire the necessary gear.  If so, getting that process underway now may permit you to avoid the hassles of equipment shortages and backlogs as December 13 approaches.  And if you still don’t have the means, you’ll be confident in your ability to so certify come October.

In 2011 a number of skeptics – we among them – suggested that the end result of the new law would be an increased number of complaints but not much real change, since “loudness” tends to be a subjective matter of perception which is not really susceptible to regulation.  Thanks to Acting Chairwoman Clyburn’s response to an inquiry from the CALM Act’s sponsors, we now know that we were right on at least one count.

The number of complaints about “loud commercials” skyrocketed immediately after the rules kicked in on December 13, 2012.  In the third quarter of 2012, the Commission received a total of only 192 such complaints.  Fast-forward to the first quarter of 2013, where the total was 8,338.  So the quarterly total rose more than 40-fold from the 3Q 2012 to 1Q 2013!  Dang.

In her letter Clyburn ascribes that dramatic increase to the publicity that surrounded the new rules and the fact that, as part of its CALM Act implementation, the Commission also made available a new, easy-to-use complaint form.  She observes that, in the second quarter of 2013 the number of complaints had “subsided significantly and consistently”.  Perhaps so, but in April, 2013 the FCC received 1,513 complaints, and in May, 2013 the number was 1,065. So in just the first two months of 2Q 2013, the Commission had received 2,578 complaints, a two-month total representing an impressive 13-fold increase over all of 3Q 2012.

According to Clyburn, several thousand of the complaints were “incomplete”, but the rest are being analyzed by the Enforcement Bureau to determine whether any action may be warranted.

How exactly are the complaints being “analyzed”?  Clyburn’s letter gets a bit fuzzy on that point.  Pulling her cards very close to her vest, she offers only that, “as with any potential enforcement activities, we refrain from disclosing any information that could compromise our work.”  But in a delightfully uninformative paragraph, she pretends to tip her hand ever so slightly:

Identifying a pattern or trend requires complex and multi-dimensional analysis of the complaints. We are continually reviewing the complaints and analyzing them by MVPD, by station, by commercial-complained of, by geography, and by programmer/network, among other factors. The data provided by consumers, however, is often not sufficiently specific or consistent to facilitate reliable analysis. To improve the data, we re-examined the complaint form used for intake and identified improvements to make it easier for consumers to provide the specific data we need. However, implementing the improved form has been and continues to be delayed by lack of funding due to the Commission's reduced budget and the belt-tightening associated with sequestration.

This doesn’t really tell us anything, although props to the Chairwoman for that last sentence in the quote, which deftly dumps any continuing problems back into Congress’s lap.

We expect the Commission may provide further guidance as the deadline for waiver renewal requests gets nearer.  Check back here for updates.

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