Update: Deadlines Set for Comments on Proposed CALM Act Rule Revisions

Earlier this month we reported on an Order and Further Notice of Proposed Rulemaking ( in which the FCC is looking to revise the rules the it adopted in 2011 – and that took effect in 2012 – pursuant to the CALM Act. That’s the 2010 law by which Congress hopes to eliminate LOUD COMMERCIALS from the TV airwaves. The Further Notice of Proposed Rulemaking portion of the Commission’s most recent action has now made it into the Federal Register, which establishes the comment and reply comment deadlines. If you plan to file comments in response to the Further Notice, you have until December 27, 2013. Reply comments are due by January 13, 2014.

Less Than a Year After Initial CALM Act Effective Date, a New CALM Act Standard Has Been Proposed

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.

Deadline Fast Approaching for CALM Act Waiver Extension Requests

Attention, any TV licensee with a CALM Act waiver still in effect. You’ve got until October 14, 2013 to file for extension of that waiver. Failure to do so could mean that you will have to be in compliance with the CALM Act requirements when December 13 rolls around

The 2010 CALM Act, designed to stifle “loud commercials”, technically took effect in December 2012. But, in its infinite legislative wisdom, Congress 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 to have the initial one-year waiver pretty much 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) it needed the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” if it had to get the equipment sooner.  (Check out our earlier post for more information on those requirements.)

As we reported back in July, 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.  Requests for the extension of the waiver must be filed at least 60 days prior to the expiration of the currently outstanding waiver, which gets us to the upcoming October 14, 2013 deadline.  (Last year the Commission extended the deadline after the fact; we can’t say whether the Commission will do the same again, but 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 that 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. (Again, for a summary of the filing requirements as originally laid out by the FCC, see our earlier post.)   In any event, if you will be needing an additional one-year waiver, you’ve got just a couple of weeks to request it. 

We can assist in the preparation and filing of extension requests -- let us know if we can help.

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.

CALM Act Waiver Door Re-Opened, But Just A Bit

"Small" TV stations and MVPD operators now have until December 13, 2012 to file streamlined financial hardship waiver requests.

If you’re a “small” TV station or MVPD operator who missed the October deadline for filing for waiver of your obligations under the CALM Act, but you’re still not going to be in compliance with the Act when it takes effect on December 13, 2012  (that's right, the day after tomorrow), DON'T PANIC. Christmas/Hanukkah/Kwanzaa has come early this year.

The Commission has announced that it will accept “streamlined financial hardship waiver requests” through December 13, 2012, even though the original deadline was back in October. So if you qualify, you've got two more days to get your request in to the Commission.

Not clear on whether you’re eligible to file such a request, or what you might need to file if you are eligible, or how to file it? You could check out our post from last October, or we can save you the trouble by shamelessly repurposing the relevant portions of that post here, as follows:

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.

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.