The FCC’s rules contemplated waivers extending, at most, for two years. Those two years are just about up.
With December just around the corner, full power TV licensees and MVPDs should probably be checking their compliance with our old friend, the Commercial Advertising Loudness Mitigation Act (you probably know it as the CALM Act) and the related FCC rules.
When the FCC’s rules governing the “loudness” of TV commercials were first adopted, they were set to take effect on December 13, 2012. One-year waivers were available which, if granted, took the compliance deadline to December 13, 2013. One-year extensions of those waivers were also available; anybody who received such an extension has until December 13, 2014 – less than a month – to get with the program.
The two one-year waivers were expressly provided for by Congress in the CALM Act. But Congress also confirmed that the FCC retains its general authority to waive its rules if the public interest warrants. So theoretically, anybody currently facing a December 13, 2014 deadline may – and we emphasize may – be able to get a further extension.
But we wouldn’t count on it.
Recall that, this past summer, the Commission updated the CALM Act rules to incorporate a revised Recommended Practice (RP). The deadline for complying with that new RP is June 4, 2015. But the Commission was careful to emphasize that that new deadline would not affect the deadline for complying with the original RP. One party suggested that previously-granted deadline waivers should be extended to the June, 2015 date because the gap between the December, 2014 and the June, 2015 deadlines will force some TV stations and MVPDs to “pay twice for the equipment and software package needed to comply with the CALM Act.” The Commission wasn’t buying that. It emphasized that “all regulated entities with existing financial hardship waivers must comply with the CALM Act rules when their financial hardship waivers expire”.
Again, further extensions/waivers of the December, 2014 deadline may still be requested pursuant to the Commission’s conventional waiver process. But unlike the relatively easy waiver standard applicable to the first two years’ worth of extensions, any further extension requests will likely require a showing of extraordinary circumstances. We won’t be surprised if, in assessing any new extension/waiver requests, the FCC falls back on the standards it laid out in 2012 for waiver requests submitted by entities that didn’t qualify as “small businesses”. Those standards required the submission of: (1) evidence of the requester’s financial condition; (2) an estimate of the cost of 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.
Another important difference from the last time around: any waiver request must be affirmatively granted by the FCC before a station can consider itself relieved of CALM act obligations. (Under the waiver regime that applied specifically to the first two rounds of CALM Act waiver/extensions, requests were automatically “deemed granted” if they met certain criteria.)
It’s also worth noting that, while the FCC’s CALM Act rules clearly apply to full power TV stations and multichannel video program distributors (MVPDs), they don’t apply to LPTV stations. Some FCC staff have informally advised that Class A station must comply with the CALM Act – BUT this had never been explicitly, and formally, stated in any published order. Moreover, a footnote in an FCC decision and the language of the CALM Act itself suggest that Class A stations are exempt.
Bottom line: December 13, 2014 appears to be a hard deadline for those of you subject to the CALM Act rules. Good luck.