Thanks to Congress, the new standard WILL be adopted eventually. Affected parties can implement the new standard now if they prefer, but FCC is looking for input on when compliance with the new standard should be required.
If you’re a TV licensee or MVPD provider and you thought that you had a firm handle on your CALM Act obligations, think again. The CALM Act standards are in the process of evolving, and you (along with the Commission) will be having to play catch-up ball. The most recent demonstration of this? An Order and Further Notice of Proposed Rulemaking (O/FNPRM) announcing a new “successor” “Recommended Practice” featuring an “improved loudness measurement algorithm” that must be incorporated into the gear necessary to assure CALM Act compliance.
If you’re a bit hazy on the CALM Act, check back on our previous posts for a refresher course (here and here would be good places to start). It’s the law intended to exorcise the Demon of Loud Commercials from the TV-watching experience. Congress enacted it in 2010, the FCC adopted rules for its implementation in 2011, and those rules kicked in in 2012.
An unusual aspect of the CALM Act is that it requires the Commission to incorporate into its rules standards adopted by the Advanced Television Systems Committee (ATSC) relative to loudness measurement. The statute leaves the FCC no discretion at all: it specifies with precision the particular ATSC standard to be used, and it requires the FCC to incorporate that standard not only as it existed in 2010 (when the Act was passed), but also as it might be revised by ATSC from time to time going forward.
And sure enough, in March, 2013 – a bare three months after the CALM Act rules first took effect – ATSC published a revised version of the standard.
What we’re talking about is known to the cognoscenti as the “ATSC A/85” Recommended Practice (RP). The latest and greatest version – dubbed ATSC A/85:2013, or the “Successor RP” – updates the loudness measurement algorithm in order to conform with the correspondingly updated version of the International Telecommunication Union’s BS.1770 measurement algorithm, “BS.1770-3”.
Since Congress ordered the FCC to follow ATSC’s lead, the FCC has to do so. So while the O/FNPRM does not itself automatically adopt the new standard, the new Successor RP standard will be adopted without question.
What the FCC is particularly interested in now, though, is when to require compliance with the new standard.
For those who have already sought to comply with the original ATSC A/85 RP, the Successor RP may necessitate some software or device upgrades. The Commission is inclined to give everybody a year (starting from the release of an order incorporating the Successor RP into the rules) to comply with Successor RP. But since it’s not at all clear at this point exactly how much time, effort and expense may be involved in such upgrades, the FCC wants to hear from any and all affected licensees/MVPD systems. In particular, it is interested in situations where already-purchased equipment is not easily upgradable or implementation of the Successor RP would be “significantly burdensome” for some reason. The FCC also wants to know whether small TV stations and MVPD might need additional time to implement the Successor RP.
Meanwhile, since adoption of the Successor RP is a foregone conclusion, the Commission makes clear that anyone wishing to implement that new standard now may do so, even though the rules (at least for the time being) will continue to specify the original 2011 version of ATSC A/85. All others will still be required to comply with that original version until the new standard is formally incorporated into the rules and takes effect. Bottom line: TV licensees and MVPD operators have to comply with “either the BS.1770-1 measurement method in the Current RP or the BS.1770-3 updated measurement method in the Successor RP”.
Deadlines for comments and reply comments in response to the O/FNPRM have not yet been set. Check back here for updates.
In connection with the O/FNPRM, Commissioner Rosenworcel issued a separate supporting statement in which she mentioned that, since December, 2012, the Commission has received “nearly 20,000” CALM Act-related complaints. According to Rosenworcel, “[b]y any measure, that is a lot”, and she suggests that the Commission should start issuing quarterly reports to “identify patterns of CALM Act noncompliance”.
Hold on a minute.
First, since there are more than 110,000,000 TV households in the U.S. (according to Nielsen), 20,000 represents less than two-hundredths of one percent of those households. While 20,000 may be a large number in some contexts, here it does not seem to reflect a particularly significant portion of the population. (And we’re assuming that each of the 20,000 complaints came from a different household; it’s at least possible that some particularly sensitive viewers may be responsible for more than one complaint each.) We don’t mean to discount the perceptions of the complainants; rather, we just want to put the number of complaints into some useful perspective.
And second, the mere fact that a complaint has been filed does not mean that any “noncompliance” has occurred. As we have observed previously, “loudness” is often a subjective factor determined by the ear of the beholder, irrespective of whether the video provider has complied with applicable FCC rules. Whether or not “noncompliance” is involved will require investigation by the Commission. If, after such investigation, some “patterns” of noncompliance emerge, the Commission may want to issue reports describing those patterns. But the Commission should be clear that absent investigation, complaints reflect only complaints, not noncompliance.