CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Waivers of the CALM Act requirements are available to those who can demonstrate that obtaining the necessary equipment would “result in financial hardship”. The “streamlined” waiver approach – i.e., the approach to which the extension applies – is available only to “small stations and MVPDs”. 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; whether it applies to Class A stations is not entirely clear, but we understand that at least some members of the FCC’s staff believe that Class A stations ARE subject to the Act’s requirements). 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” station/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.

All waiver 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 a “financial hardship” waiver request.

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

More good news! Streamlined financial hardship waiver requests may be deemed to have been granted when the request is filed and the requester receives an automatic “acknowledgement of
request,” unless the Media Bureau notifies them of a problem or question concerning the adequacy of the certification. (Helpful tip: the “acknowledgement of request” pops up on your screen as part of the ECFS filing process. The Commission recommends – and we strongly agree – that anyone filing a request should keep a copy of that confirmation.)

The fact that this extension has been announced a mere two days before the extended deadline – and nearly two months after the original deadline – may undercut its utility, but what the heck. There are probably at least a few (maybe more) folks who can take advantage of the FCC’s decision (on its own motion, thank you very much) to re-open the waiver opportunity, even just a tad.

“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.

Who do the new rules apply to? The new rules apply to digital full-power broadcast television licensees and multichannel video programming distributors (MVPDs) (e.g., cable, satellite, etc.). There is one exception. As we all know, the CALM Act is intended to lower the volume on loud commercials. Accordingly, the new rules do not apply to noncommercial television stations because, by definition, noncoms don’t broadcast commercials – unless, of course, those stations are providing commercial material on one of their digital streams. In that case, the new rules would apply to that commercial matter. (Note: Lest there be any doubt, political commercials are indeed “commercials” for CALM Act purposes.)

When do the new rules apply? Although adopted last month, the new rules will not take effect until December 13, 2012. And (as we’ll get to below) the Commission has already announced the availability of waivers that could relieve qualifying station/MVPDs of CALM Act obligations for up to two years beyond that. But don’t be lulled into an undue sense of complacency: now would be a good time to familiarize yourself in detail with the CALM Act rules and take the steps necessary to assure that, when the time comes, you’re in compliance.

What needs to be done to comply? The goal of the CALM Act is to eliminate, or at least discourage, “loud” commercials” by implementation of the RP.  As a preliminary matter, all stations/MVPDs must (a) have the equipment necessary to pass through RP-compliant programming and (b) be able to demonstrate that that equipment has been properly installed, maintained and utilized to ensure compliance with the RP.  The equipment permits the station/MVPD to adjust the commercial’s “loudness” to conform with the RP before the commercial is inserted in the programming. This requirement should not impose any huge burden, as such gear is generally necessary for the provision of any audio at all. Still, stations/MVPDs should have their technical staff review their equipment to assure that it conforms. Note also that merely having the gear on hand is not enough. The gear must be properly installed, maintained and utilized.

Demonstrating compliance.

It’s difficult to prove, today, that a commercial you ran a month or two ago wasn’t “loud”. The FCC does not indicate how you might do so, but presumably there are ways. If you can prove that a particular commercial alleged to have been too “loud” was in fact fully compliant with the RP, that would be all you would need to answer an FCC inquiry about that particular commercial. As an alternative, the Commission offers a couple of mechanisms that will afford TV/MVPD operators a way of avoiding liability even if they can’t reach back in time to provide conclusive evidence of non-loudness.

Commercials, of course, can find their way into a transmission by one or two (or three) ways. A station/MVPD can insert the spot itself, or the spot might arrive at the station/MVPD already embedded in programming produced elsewhere. (The third alternative involves commercials inserted locally by third parties under an arrangement with the station/MVPD.) The FCC’s compliance approach distinguishes among these different situations.

Inserted commercials. With respect to commercials inserted by the station/MVPD, the Commission will deem the operator “in compliance” if, in response to an FCC inquiry about local insertions, the operator can:

• demonstrate that the equipment described above has indeed been installed, maintained and utilized in a “commercially reasonable” manner “to ensure continued proper operation”; and
• certify either that (a) it has no actual knowledge of any violations of the RP or (b) any violation of which it is aware was corrected promptly after it came to the operator’s attention.

Note that an operator who knows of a violation but fails to correct it cannot properly certify that it has utilized its equipment “in a commercially reasonable manner”.

Embedded commercials.  Embedded commercials are more problematic. The TV/MVPD operator can’t control the relative audio levels in already-produced programming delivered to them. While the operator could theoretically use real-time processing equipment to ride herd on audio levels, the practical availability and utility of that approach are dubious. Accordingly, the Commission has devised an elaborate “safe harbor” approach for embedded commercials. That approach is designed to split the compliance burden between the TV/MVPD operator and the originating programmer (although, as Congress mandated, the TV/MVPD operator is the one who bears the ultimate responsibility for compliance).

The “safe harbor” system requires, first, that TV/MVPD operators obtain “certificates of compliance” from their programmers confirming that the programs are RP-compliant. The certificates must be “widely available”, i.e., available to all stations and MVPDs, possibly through a website posting. Since lack of a certification could discourage TV/MVPDs from transmitting the programming, the program’s producers should have an incentive to provide the proper certification. (Note that the Commission stops short of dictating the period to be covered by such certifications, but for a TV/MVPD operator to be able to rely on any particular certification, that certification must be in effect.)

Even in the absence of a certificate of compliance from a programmer, TV/MVPD operators may still transmit that programmer’s programming. The catch here is that all such non-certified programming must be “spot-checked” annually for two years by “large television stations” and “very large MVPDs”. “Large MVPDs” will have to conduct more limited spot-checks, while small operators (TV or MVPD) need not perform any spot-checks unless they receive an FCC inquiry, in which event they will have 30 days to complete the required spot-check.  (In FCC-speak, a “large television station” is any station with more than $14.0 million in annual receipts in calendar year 2011, as set out in the BIA Kelsey Inc. Media Access Pro TV Database. “Very large MVPDs” are those with more than 10 million subscribers nationwide as of December 31, 2011, according to the NCTA. Merely “large MVPDs” have more than 400,000 subscribers but fewer than 10 million.)

The first round of annual spot-checks will have to be completed by December 13, 2013.

An annual spot-check is not a minor undertaking. It involves monitoring 24 uninterrupted hours of programming with an audio loudness meter set up per RP specification and follow-up review of the resulting records to determine if any commercials violated the RP. If (as is likely to happen with TV stations and some MVPDs) no single 24-hour period contains representative programming from all program suppliers, the annual spot-check much consist of loudness measurements over a seven-day period, totaling no fewer than 24 hours, capturing at least one program, in its entirety, from each non-certified programming transmitted as part of the operator’s overall program schedule.

The less exhaustive spot-check to be conducted by “large MVPDs” (as opposed to “very large MVPDs”) must encompass 50 percent (chosen at random) of the noncertified channels carried on any of the MVPD’s systems.

Two pieces of good news about spot-checks. First, MVPDs need not spot-check any broadcast programming (since any non-certified programming there will already be subject to spot-checking by large TV stations). Second, if the first two years’ worth of spot-checks come back clean, no further checks of that program need be performed. If a spot-check turns up noncompliance, however, the spot-check clock is reset, and the programmer in question must be checked for another two years. Also, if a spot-check performed in response to an FCC inquiry turns up noncompliance, the spot-check clock gets reset for another two years there, too.

Third-party local insertions. The Commission recognizes that commercials may enter the transmission stream by means of third-party insertions. This involves arrangements between the TV/MVPD operator and the third-party pursuant to which that third-party provides a service to the TV/MVPD operator, often placing equipment at the TV/MVPD’s site. In such cases, the TV/MVPD itself isn’t inserting the commercials, but it’s still much closer to that process than in the embedded commercial context. The FCC’s response: the TV/MVPD operator can enjoy “safe harbor” status for such third-party inserts as long as the third-party certifies that (a) all commercials it is inserting comply with the RP and (b) they are being inserted in compliance with the RP. Of course, the TV/MVPD must have no reason to believe that that certification is false. If an FCC inquiry rolls in the door, the TV/MVPD will have to go through the spot-check drill, as outlined above.

The Complaint Process. The Commission will not be independently monitoring compliance with its CALM Act rules. Rather, it will rely on consumers to bring potential noncompliance to its attention. Complainants will be able to submit information to the Commission on-line. They will be expected to provide enough details to allow the Commission to take appropriate action. But the receipt of a single complaint is not likely to trigger any FCC response. Instead, the Commission will be on the look-out for “patterns” or “trends” in incoming complaints that “suggest a need for enforcement action.” However, the Commission has provided no indication of what will be enough to constitute a “pattern” or “trend”. On the positive side, though, the Commission has said that, once a “pattern” or “trend” has surfaced, the agency “will be conscious of the greater resources available to large entities when determining where to address our initial inquiries.”

If a “pattern” or “trend” pops up on the FCC’s radar, the Commission may open an official inquiry. As part of that inquiry, it may notify one or more TV/MVPD operators of the situation. If the operator(s) so notified wish to remain in the “safe harbor” relative to embedded commercials, the operator(s) must perform a spot-check of the channel or program specified by the Commission within 30 days of the FCC’s notification. While the spot-check requirement can be expensive, even small operations will still have to perform the spot-check regardless of cost if they get the notice from the Commission. However, to do so they may borrow or contract for use of the necessary equipment; that is, they won’t have to buy the gear necessary for the spot-check process.

If a spot-check (whether annual or in response to an FCC inquiry) turns up evidence of non-compliance, the TV/MVPD operator must notify the FCC and the programmer within seven business days and provide the programmer with information about any relevant complaints. Additionally, the TV/MVPD operator should check its own equipment, to confirm that that equipment s not the source of the non-compliance. Within 30 days a follow-up spot-check must then be performed, the results of which must be reported to the Commission and the programmer. If the follow-up check comes up clean, the TV/MVPD will still be in the “safe harbor” with respect to that program; if the follow-up check continues to show non-compliance with the RP, then the TV/MVPD is no longer in the “safe harbor” for that program, and the TV/MVPD will be liable for any future commercial loudness violations in that programming, regardless of any certification or previous problem-free spot-checks involving that programming.

Waivers. Congress specified in the CALM Act that the FCC must provide one-year waivers (renewable for a second year) upon a showing of “financial hardship” arising from having to obtain the equipment necessary to comply with the rules. The Commission has adopted a streamlined approach for “small” TV stations 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; you’re a “small” MVPD system if you have 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 only send the FCC a certification that (a) you meet the definition of “small” TV/MVPD operation and (2) you need the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” 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.

Entities that don’t qualify as “small” must provide: (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.

Waiver requests, which will have to be filed through the FCC’s ECFS electronic filing system, will be due no later than October 14, 2012, i.e., 60 days prior to the effective date of the rules.

The Commission also retains its general authority grant waivers to deal with unforeseen circumstances.

Wrap-up. Importantly, the Commission recognizes that the passage of the CALM Act and the implementation of these rules in its wake will not necessarily mean the end of consumer complaints. As the FCC admits, “while it may seem to some consumers that a commercial is loud, the commercial may, nevertheless, comply with the RP.” What the Commission does not admit is that the passage of the CALM Act (and the publicity attendant to that passage) may have created exaggerated expectations in the minds of consumers. New reports about the CALM Act – and, indeed, some of the Commissioners’ own statements – may have created the impression that the era of loud commercials is gone.

That would be a misimpression.

To a great degree the perception of loudness is in the ear of the beholder, and is dependent on a wide range of objective and subjective factors. The CALM Act cannot eliminate the perception of loudness. It can merely impose a means of controlling some – but by no means all – aspects of loudness.

So we can expect complaints about “loud” commercials to continue to roll in.

The FCC’s approach seems reasonably well-designed to distribute among the various interested parties the responsibility for addressing such complaints. For many TV/MPVD operators, the initial burdens – and possibly even the ultimate burdens – seem reasonably light. But all TV/MVPD operators should recognize that the loudness problem is still with us and will remain with us for some time to come. That being the case, care should be taken to comply with the FCC’s new rules sooner rather than later so that, if and when complaints are filed, you will be able to demonstrate that you have done what you were supposed to do to prevent excessively “loud” commercials.

Of course, the new A/85 RP may not be substantially different from the old one. We won't know for sure because, as matters now stand, interested parties won't get their first official look at the revised A/85 RP until July 26.  Hey, isn't that a tad late?  No worries, since folks will now have until August 1 – that’s six days, total, including a weekend – to prepare and submit comments on it. Get out the Red Bull and stock up on No-Doz.

The Commission’s stuck between a rock and a hard place when it comes to the CALM Act. Congress has told the FCC (a) what to do (i.e., incorporate the A/85 RP into the rules, and then enforce it), and (b) when to do it by (i.e., December 15, 2011). But, through the Administrative Procedure Act, Congress has also instructed the FCC to engage in a notice-and-comment rulemaking proceeding as part of the process. Such a proceeding is designed – in theory, at least – to provide interested parties a meaningful opportunity to chip in their two cents’ worth on the proposed rule change.

When the guts of the proposed rule revision change on the eve of the final reply comment deadline (i.e., after comments have been filed), and when interested parties are then given less than a week to track down the revised proposal and get their thoughts together about it, it’s difficult to see that as a meaningful opportunity to comment. Rather, the Commission’s activities begin to resemble a parody of the administrative process.

Again, this is not entirely the Commission’s fault. But the Commission might have at least pretended to care about the interests of commenters by providing another week or two.

TV folks would do well to get familiar with the NPRM’s proposals sooner rather than later. The new rules will affect all commercial TV broadcasters as well as MVPD operators, and it will affect them relatively soon (Congress specified that that new rules will have to be effective one year after the Commission adopts them, although individual waivers may be available).

Bear in mind, too, that the CALM Act’s proponents may have oversold the likely effects of the new law. (One example: Commissioner Copps’s bold assertion that “relief is on the way for viewers who have been complaining for nearly 50 years about loud commercials”.) As a result, a lot of the Public At Large may end up harboring the somewhat unrealistic notion that every time they hear something on TV that they think is too loud, they can get it corrected with a quick email to the FCC. The more that notion gains currency, the more complaints the Commission, and the industry, can expect to receive. But in view of the largely subjective nature of “loudness”, the new rules may not meet the happy expectations that are being loaded onto them.  When the rules finally take effect, it will not be surprising if the public experiences large measures of confusion, frustration and, in the end, disappointment. We shall see.

The vexatious problem of seemingly loud commercials has been around for decades, chronically confounding would-be regulators. The breakthrough that led to the CALM Act arrived with the transition to digital television technology, which affords considerably greater control over the various components of the transmitted signal. As part of their effort to develop the technical standards governing DTV, the Advanced Television Systems Committee (ATSC) devised a “recommended practice” (RP) for “establishing and maintaining audio loudness”. That RP – dubbed ATSC A/85 – can be found here. While the ATSC A/85 RP was initially just “recommended”, Congress stepped in (via the CALM Act) and ordered the FCC to impose that RP as a mandatory standard.

The FCC’s NPRM is the next step in that process. And while you might think that the process would be simple – since Congress (by incorporating ATSC’s work) has spelled out the technical details to be imposed – the project turns out to be somewhat more complicated.

The NPRM proposes to explicitly include the ATSC A/85 RP in the technical rules governing over-the-air and MVPD television. No surprise there – it’s what Congress ordered. But the ATSC A/85 RP assumes that the transmission system includes audio compression capability consistent with the Dolby AC-3 DTV audio standard. Since that standard is included in ATSC Standard A/53 (the overall Digital Television Standard incorporated by reference in Section 73.682(d) of the Commission’s rules), DTV broadcasters are already subject to the standard. Some, but not all, MVPDs (e.g., cable and satellite operators) also use that standard, but the fact that some don’t complicates things. Additionally, programming is often not produced by the broadcaster or MVPD operator who would ultimately be subject to the new rules – that, too, adds a level of complexity to the implementation of the CALM Act.

As best we can tell – and, frankly, there’s a reason that some of us went into communications law rather than psycho-acoustics – the ATSC A/85 RP is based on a recommended “measurement algorithm” developed by the International Telecommunication Union Radiocommunications Sector. That algorithm (“ITU-R Recommended BS.1770”) provides a “loudness measure standard”, i.e., a numerical value indicating the “perceived loudness” of any particular audio content. That value is then encoded as a metadata parameter – called the “dialog normalization”, or “dialnorm” – in the audio content of the programming. According to the Commission,

[t]he “golden rule” of the ATSC A/85 RP is that the dialnorm value must correctly identify the perceived loudness of the content it accompanies in order to prevent loudness variation during content transitions on a channel (e.g., TV program to commercial) or when changing channels.

If the dialnorm parameter is set properly, the transmitted signal (which includes the dialnorm metadata) instructs the AC-3 audio decoder in the consumer’s home receiver to automatically adjust the volume to eliminate loudness spikes during content transitions such as commercial breaks.

So commercial TV stations and MVPDs will have to be able to insure that the dialnorm settings for their commercial content are set right. This can be done through loudness measurement devices and/or software, file based scaling devices, or real time loudness processing devices – as long as the chosen mechanism can measure loudness using the ITU-R BS.1770 algorithm. (The FCC observes in passing that it does not plan to provide any equipment authorization or verification system, although the FCC does solicit comments on the steps affected video providers may be required to take to confirm that their gear will do the trick.) The good news is that, if such providers do install proper equipment – and utilize and maintain that equipment, all “in a commercially reasonable manner” – they will enjoy a “safe harbor”. That is, they will be deemed to be in compliance should any complaints about loud commercials roll in the door. 

The bad news is that the equipment needed to control all this could cost anywhere from a few thousand bucks up to $20K per device, depending on a number of factors.

Over and above this “safe harbor” approach, the Commission suggests that it might permit TV stations and MVPDs to demonstrate, in response to a complaint about loud commercials, that the dialnorm of the complained-of commercial did in fact match the algorithm-generated perceived loudness value for that commercial.

The issue of who is in fact responsible for loud commercials raises some thorny questions. The CALM Act explicitly places that burden on the TV licensees and MVPDs whose programming is received by the consumer. But, as we all know, those licensees and MVPDs rely on a variety of others to produce the programming that they transmit. In addition to their own productions, TV stations get their programming from networks, syndicators and other program producers. MVPDs similarly get theirs from the same sources, and from TV licensees. Mindful of that fact of video life, the Commission suggests that TV licensees and MVPDs may want to include contractual provisions (including indemnification clauses) in their programming contracts. That would not completely relieve the licensee/MVPD of responsibility – since the statute expressly puts them on the hook for it – but such a contractual approach might help demonstrate compliance with the ATSC A/85 RP.

The NPRM is dense with technical information. All licensees and MVPDs who might be affected by it should be sure to review the NPRM in detail with their engineering consultants to make sure that you have a handle on the nitty-gritty. Other questions posed by the Commission include:

• Since the CALM Act is addressed only to loud “commercials”, how should that word be defined? For example, does it include station programming promotional announcements? How about political advertising?
• Also in light of the “commercial” focus of the Act, should noncommercial TV licensees be exempt from the loudness rule? (The Commission suggests that noncommercial TV licensees will “largely” not be affected by any of this because, by definition, noncommercial stations are prohibited from broadcasting “commercials”.)
• How should the term “commercially reasonable” be defined when it comes to installation, utilization and maintenance of the equipment relied on to claim “safe haven” status?

Note also that the ATSC A/85 RP – that is, the recommended practice that forms the core of the proposed rule change – is itself a work in progress. ATSC continues to review and refine its various recommendations. The A/85 RP was first adopted in 2009, but was most recently revised in May, 2011. Since the CALM Act requires incorporation of the ATSC A/85 RP into the rules, the Commission understands that Congress intends the rules to be updated as required to reflect any future revisions of the RP.

Looking down the road, the Commission also solicits comments on how the complaint process should work. The current thinking is that complainants would file online (or by fax or letter), clearly indicating: (a) the complainant’s contact information; (b) the name/call sign of the broadcast station or the name/type of MVPD against whom the complaint is directed; (c) the date/time of the loud commercial complained of; (d) the channel/network involved; (e) the name of the TV program during which the incident occurred; (f) the name of the commercial advertiser or product involved; and (g) a “description of the loud commercial problem”. The Commission would then conclude whether “a possible violation of our rules” has occurred, although the NPRM doesn’t let on how that determination might be reached. Complaints will be forwarded to the targeted station or MVPD for appropriate response.

Since compliance with the loudness requirements will likely involve some not-insubstantial costs, the Commission (at Congress’s direction) is also looking into financial hardship waivers. The NPRM proposes that any station or MVPD asserting such hardship be required to provide, at least 180 days prior to the effective date of the rules: (a) evidenced of its financial condition; (b) a cost estimate for the equipment necessary to assure compliance; (c) a detailed explanation of why postponement of compliance is warranted; and (d) an estimate of how long it will take to comply. The Commission is also open to considering a “streamlined financial hardship waiver approach” for small market broadcast stations and small MVPD systems.

The comment and reply comment deadlines have not yet been set; they will be 30 days and 45 days, respectively, after the NPRM is published in the Federal Register. (Check back here for updates.) Don’t expect any extensions of the deadlines: the CALM Act mandates that the new rules be adopted within one year of the Act’s enactment, which means that the Commission will have to wrap up this proceeding by early December, a scant six months from now. Once the new rules are adopted, they will have to take effect within a year, i.e., by early December, 2012.

While all the nifty, whizbang technology on the table here – ATSC A/85 RP, Dolby AC-3, ITU-R BS.1770 algorithms, etc. – may promise blessed relief from the scourge of loud commercials, there is reason for skepticism. Unlike “volume”, which is an objective, readily measurable characteristic, “loudness” is not an objective feature that is easily susceptible to measurement. Rather, it’s the subjective effect that occurs when sound reaches an ear. That’s why the ATSC had to rely on algorithms – essentially, a model or estimate based on the results of group studies – to come up with the dialnorm factor on which the ATSC A/85 RP depends.

But the vast majority of TV viewers are in all likelihood blissfully unaware of the algorithms and other technology, and those viewers will certainly not undertake any objective measurements on their own. Rather, to identify “loud” commercials, we can reasonably expect most viewers to use a variation of Potter Stewart’s hard-core pornography test: they will know it when they hear it . . . or, rather, when they think they hear it.

So while the new technology may provide TV stations and MVPDs a defense against claims of loudness, it’s a near certainty (to this observer, at least) that complaints will continue to roll in. Indeed, the extensive publicity likely to accompany the adoption and effectiveness of “loud commercial” rules can’t help but increase the expectations of the public, creating the impression that “loud commercials” – however each individual viewer may define “loud commercials” – have been legislated away. We can thus probably expect a substantial increase in complaints. That in turn would chew up the time of FCC staffers and TV/MVPD personnel. And while some complaints may in fact identify actual violations of the rules, we will not be surprised if the vast majority of complainants end up being told that, contrary to their heart-felt belief, the commercial(s) of which they complained were not, in fact, “loud”.

Still, it’s probably worth the effort. With DTV technology the FCC has tools not previously available to it to try to address the problem of loud commercials. Let’s see if those tools can get the job done. But let’s not be surprised if, once the new rules are in place, we all find ourselves not much better off than we are now on the “loud commercial” front.