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.
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.
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.
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.
"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.
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.
A run-down on what the new rules governing “loud” television commercials require, and when those requirements will kick in
Back in December, 2010, the CALM Act (short for “Commercial Advertisement Loudness Mitigation Act”) was signed into law, giving the FCC precisely one year to get its regulatory keister in gear and adopt rules mandated by the Act. We are pleased to report that the Commission met that deadline, with two days to spare. In a Report and Order adopted on December 13, 2011, the Commission established a set of complex technical rules and procedures intended to reduce the problem of “loud” commercials on television.
The CALM Act is intended to lower the volume (or, more accurately, the “loudness”) of televised commercials. We won’t have a sense of whether or not the new rules will work for another year or two (and maybe not even then). As discussed below, even the Commission acknowledges that the CALM Act will not necessarily eliminate the perception that some commercials are loud. But regardless, TV licensees and MVPDs are now under the gun to bring themselves into compliance with the new rules by December 13, 2012 (although, also as discussed below, some stations may be eligible for an additional year or so to bring themselves into compliance).
In crafting the technical specs, the Commission had little heavy lifting to do. That’s because Congress directed the Commission had to deal with the problem, i.e., by mandating a “recommended practice” (RP) devised by the Advanced Television Systems Committee (ATSC). The ATSC, of course, is the international non-profit organization largely responsible for the design of the DTV standards now in place in the U.S. So pretty much all the Commission had to do on that front was explicitly incorporate the RP – known as ATSC A/85 RP to the cognoscenti – into the rules. (Fuzzy on ATSC A/85 RP? Check out our earlier post on the CALM Act.)
The real problem confronting the Commission was how to craft an enforcement system that divvies up the compliance responsibilities appropriately. And props to the Commission: the system they came up with, although a bit complicated, seems to do the trick.
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.
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.
As anticipated by the Commission (and reported by us), Advanced Television Systems Committee, Inc. has approved a successor to its A/85 Recommended Practice (A/85 RP). Making it official, the Commission has issued a public notice alerting us all to the availability of the new version.
As we have also previously reported, Congress has ordered the Commission to incorporate A/85 RP into its rules in an effort to turn down the volume on “loud” commercials. The Commission, in turn, has dutifully proposed to amend its rules to include A/85 RP. But the initial comment date in that proceeding had already come and gone before the FCC announced that ATSC was expected to announce a “successor” to the version of A/85 RP described in the Commission’s NPRM. Not to worry – there’s still an opportunity to address the New and Improved version in reply comments. The Commission thoughtfully extended the deadline for reply comments in order to give interested parties the chance to mull over the new A/85 RP.
But don’t be mulling too long. The extended reply comment deadline is August 1 – six days from now.
Ten days after initial comments on proposed standard are filed, turns out there’s a different standard in the works
Talk about moving targets! The FCC has just extended (to August 1, 2011) the reply comment deadline in its CALM Act proceeding. (For a trip down Memory Lane vis-à-vis the CALM Act, click here.) The original reply comments deadline had been July 18, but that had been extended at the last minute to July 21.
But the deadline, while obviously fluid, is not the most important moving target here.
The latest extension was granted at the request of the Advanced Television Systems Committee, Inc. (ATSC). ATSC, of course, are the folks who brought us the DTV technical standards. Those standards include the A/85 Recommended Practice (A/85 RP) which Congress has ordered the Commission to use as the regulatory standard for controlling loud commercials. But get this – according to ATSC’s request for extension of the reply comment deadline, a new version of the A/85 RP is going to be approved (by ATSC) on July 26. (The Commission reports that the new A/85 RP will be available for review on the ATSC’s website on that date.)
So it turns out that all the folks who filed comments addressing the proposed mandatory standard were addressing a standard that won’t be applicable after July 26.
Remind us again what the point of filing those initial comments was?
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.
Well, that didn’t take long. Barely a week after the release of the CALM Act Notice of Proposed Rulemaking, that NPRM has been published in the Federal Register. As a result, we now have comment/reply comment deadlines to pass along. Mark your calendars: comments are due July 5, 2011, and reply comments are due July 18.
As we noted in our post describing the NPRM, it’s probably best not to expect any extensions of these deadlines. Despite the fact that it took five months to crank out the NPRM, the Commission’s now in hurry-up mode, presumably because of the deadline that Congress imposed on the Commission. Under the CALM Act, the FCC has until mid-December to wrap the proceeding up and adopt new rules intended to put the kibosh on loud commercials. That means that, as of July 18 (the close of the reply comment period), the Commission will have a scant five months to get the job done. The pressure’s on.
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.
FCC NPRM seeks input on implementation of legislation targeting “loud commercials”
As we noted back in December, when the President signed the CALM Act into law, the action on the loud commercial front shifted from Congress to the FCC. The CALM Act, intended to lower the volume (or more accurately, the “loudness”) of commercials on television, did not itself change any rules. Instead, the Act merely instructed the FCC to change the rules. To move things along quickly, Congress spelled out, in considerably more detail than is often the case, just how the Commission is supposed to lower the Cone of Silence onto the TV industry (including broadcasters and MVPDs) – and Congress imposed a tight schedule for getting things done. Now, nearly six months later, with the issuance of a Notice of Proposed Rulemaking (NPRM) the FCC has taken its first formal step toward meeting that schedule.
If you’re not up to speed on all this, you can find a number of posts tracking the history of the CALM Act here.
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.
CALM Act signed by President
It’s official! President Obama signed the CALM Act on December 15, so it’s now the Law of the Land. Fans of the new law wishing to show their appreciation are encouraged to applaud quietly, with any cheers kept to “indoor voice” levels. Opponents can grimace all they want – just keep the noise down, please.
For those of you who have been walking around with cotton stuffed in your ears (to avoid loud commercials on TV) and who may, as a result, have missed out on the background of the CALM Act, you can check out our posts on the matter here. But don’t be throwing all that cotton away just yet. While the Act has now made it through the peristalsis that is the legislative process, that means only that Congress and the White House have dumped the hot potato of loud commercials onto the FCC’s lap. It’s now up to the FCC to change its rules to incorporate the remedy prescribed by the Act, and then it will be up to video providers to bring themselves into compliance. The Act gives the FCC a year to get its part of the job done, and it gives video providers a year to get their own act together once the new rules are in place. Check back here for updates.
CALM Act (S. 2847) passes Congress, heads to President for signature
The CALM Act (S. 2847) – aimed at preventing “loud” commercials – has negotiated its final legislative hurdle. By voice vote, the House has passed the bill with an amendment to correspond to the version the Senate passed back in October. The House was actually the first to act on the commercial-quieting bill a year ago. The Senate didn’t get around to it until October, at which point a new section was added. The amended bill then had to schlep back to the House for its consideration of the new section, with which the House apparently had no problems.
As a result, Congress’s work on the bill is done, so it’s time for the bill to toddle on over to the White House for the President’s signature, which appears to be a foregone conclusion.
Public support for the bill has reportedly been substantial. Broadcasters and multichannel video programming distributors subject to its requirements may not be as pleased, though. The new law will require them all to comply with standards approved by the Advanced Television Systems Committee. Those standards have, up to this point, been characterized as mere “recommended practices”; once the President signs the CALM Act, those standards will be The Law.
Complying with the new law may entail acquisition and installation of potentially costly new equipment. That’s the bad news. The good news is that the Act specifically provides for “financial hardship” waivers. (Of course, the fact that the prospect of “financial hardship” shows up at all at this early date in the process may be cause for some alarm, but let’s not over-react too quickly.)
When can broadcasters and MVPDs expect to see the new rules in place? The Act requires the FCC to have its rules amended consistently with the Act within one year of the Act’s enactment. The new rules in turn will become effective one year after their adoption by the Commission. So round about Christmas, 2012, we can expect all to be CALM.
It’s unanimous! On September 29, the Senate unanimously passed S. 2847, the Commercial Advertisement Loudness Mitigation Act (a/k/a “CALM Act”), the bill intended to force video providers to take steps to assure that commercials (and other “interstitials”) are not annoyingly louder than the programming which they interrupt. That leaves just two steps to go in the legislative process before the awesome power of the federal government puts its regulatory finger to its regulatory lips and issues a regulatory “Shhhhhh”.
We’ve written about the CALM Act before, so there’s no need to re-visit the story up to this point. Since our last report, the Senate version of the bill (the House side’s version is dubbed H.R. 1084) was amended ever so slightly and, as amended, given the overwhelming Senatorial thumbs up. The amendment, tacked on at the last minute, provides:
Compliance.--Any broadcast television operator, cable operator, or other multichannel video programming distributor that installs, utilizes, and maintains in a commercially reasonable manner the equipment and associated software in compliance with the regulations issued by the Federal Communications Commission in accordance with subsection (a) shall be deemed to be in compliance with such regulations.
That’s presumably intended to give video providers some assurance that, as long as they install, utilize and maintain the required gear, they’ll be deemed street legal, regardless of any individual viewer complaints that might roll in.
The only hitch here is that the version of the CALM Act that the House passed didn’t happen to include an equivalent amendment. That means that the next step in the March To Enactment is for the House and the Senate to get together to work out the differences between the two bills. Once that’s done – and at this point there seems little doubt that that will get done – it’s on to the White House for one final signature and, bingo – It’s The Law. At that point there will still be some time before the new obligations kick in, since the FCC will have one year to follow up with the nitty-gritty details, like adopting new rules to conform to Congress’s will.
We’ll report back as developments warrant – check back here for updates.
Commerce Committee passes Senate version of CALM Act to prevent loud commercials
The chronic problem of Excessively Loud Commercials – a bugaboo to TV viewers for decades – may soon be a thing of the past. The Commercial Advertisement Loudness Mitigation Act (apparently mandatory “clever” acronym: the CALM Act) (S.2847) has been approved by the Senate Committee on Commerce, Science and Transportation and shuttled off to the full Senate for its consideration. The bill is intended to force video providers to take steps to assure that commercials (and other “interstitials”) are not annoyingly louder than the programming which they interrupt. Since the full House has already passed its essentially identical version of the CALM Act, the stage appears to be set for passage of the bill, presumably in the not-too-distant future.
As we have written previously, the bill in its current form would require the Commission to incorporate by reference into its rules the “Recommended Practice” adopted by the Advanced Television Systems Committee (ATSC). The ATSC’s recommendation was intended to provide the television industry “with uniform operating strategies that will optimize the audience listening experience by eliminating large changes in sound levels”.
The paladin of the CALM Act for several years has been Congresswoman Anna G. Eshoo (who might want to change the spelling of her name to eSHHHHoo if the bill gets passed). She introduced a version of it two years ago, but that version (as we observed here) suffered a number of practical problems. Those problems got cleaned up considerably this time around, largely eliminating the “wild goose chase” aspect of the earlier version.
While the viewing public may celebrate the eventual enactment of the CALM Act, the television industry as a whole may want to hold off for a while before it pops the cork on the champagne. Compliance with the requirements contemplated by the Act could be pricey. The bill itself implicitly acknowledges this when it specifically authorizes the Commission to grant up to two years’ worth of waivers based on “financial hardship”. It’s not clear exactly what the costs are likely to be, but we can all probably agree that it’s not a good sign when Congress itself starts talking about “financial hardship” before the bill has even passed.
Also, the ATSC’s Recommended Practice indicates that compliance may require use of a patented invention. That could give rise to additional problems (as it has in at least one other area involving an ATSC standard for DTV).
But irrespective of these practical considerations, the American viewing public is likely to salute passage of the CALM Act with a hearty round of applause or, perhaps more appropriately, with a moment of silence.
Check back here for further updates on the progress of the CALM Act through the final stages of the legislative process.
All is CALM as Eshoo bill moves to Senate
Last June we reported on the renewed efforts by Congresswoman Anna G. Eshoo (D-Calif.) to rid society (well, U.S. society, at least) of that scourge of the TV viewing experience, loud commercials. Having tried unsuccessfully to turn the volume down on TV advertising last year, she came back again last February, legislative mute button in hand.
And this year it looks like she may have a winner with H.R. 1084 – the Commercial Advertisement Loudness Mitigation Act (or CALM Act) – which was recently passed by the full House. But it took some tinkering to get there.
As originally drafted in February, her bill would have required the FCC to prescribe regulations to assure that: (a) ads accompanying video programming (from broadcasters and/or MVPDs) not be “excessively noisy or strident”; (b) ads not be “presented at modulation levels substantially higher” than the programming they accompany; and (c) the “average maximum loudness” of ads not be “substantially higher” than the “average maximum loudness” of the accompanying programming.
We criticized that draft because the bill left vague and undefined a number of crucial terms. We also noted that it would be difficult for the FCC to come up with enforceable rules based upon the bill’s requirements. After all, this isn’t the first time the government has tried to address this issue.
While we would, of course, like to take credit for our persuasive prose, we really don’t know whether Rep. Eshoo happened to check out our post, but this Fall she submitted a completely rewritten bill with new wording that satisfies many of our earlier criticisms. The revised bill requires the FCC to write regulations incorporating by reference a Recommended Practice (“Techniques for Establishing and Maintaining Audio Loudness for Digital Television”, Document A/85:2009) promulgated by the Advanced Television Systems Committee (ATSC) in early November. ATSC, of course, is the international non-profit organization that established technical standards the FCC adopted for all DTV broadcasting. ATSC developed the new Recommended Practice to provide the television industry “with uniform operating strategies that will optimize the audience listening experience by eliminating large changes in sound levels”, according to ATSC President Mark Richer.
The new ATSC standard arises from the DTV transition. The old analog methods of modulating the audio portion of television broadcasting aren’t effective in the all-DTV universe. In 2007, recognizing the need for new standards for the then-impending (since-arrived) DTV broadcasting age, ATSC asked a group of specialists within its membership to study the issue. The Recommended Practice was the result. It helps solve the problem of modulating loudness between speech (the level for which most audiences set their volume control) and other sounds within the programs, as well as between programs and commercials and from channel-to-channel, without excessively reducing the expanded dynamic range (over 100 dB) that DTV programming offers. To be effective, the new Recommended Practice applies to the entire chain of the television program system (i.e., program production, broadcast, delivery of the programs through cable and satellite systems, and output by TV sets owned by consumers).
The adoption of ATSC’s Recommended Practice enabled Eshoo to focus her bill considerably, simply by incorporating that Recommended Practice by reference.
While the revised bill appears to correct problems we saw in earlier versions, it is still not completely worry-free.
First, the revised bill would make mandatory standards which the ATSC apparently intended to be voluntary (why else call it a “Recommended Practice”?). Adoption of ATSC-established “recommended practices” is, of course, generally good policy and certainly to be encouraged. But such “recommended practices” are technically issued to provide “guidance”. If the bill becomes law, what was a matter of recommended “guidance” will become a matter of statutory imperative.
Second, there is the matter of the cost of complying with these technical requirements. Rep. Eshoo’s revised bill provides for a one-year period after the effective date of the new FCC regulations, for broadcasters, cable and other multichannel video providers to comply. The bill also provides for the FCC to grant waivers to entities demonstrating that obtaining the equipment to comply with the new rules will result in “severe financial hardship”. This raises an obvious and important practical question: exactly how expensive is the new equipment going to be?
Our third concern is that the Recommended Practice specifically alludes to “the possibility that compliance with this Recommended Practice may require the use of an invention covered by patent rights”. There is already a nasty fight over patent license fees between DTV set manufacturers and the holders of key patents required to comply with the ATSC’s standard for DTV adopted by the FCC. A similar fight could be in store if compliance with the Recommended Practice requires purchase of equipment covered by patents.
But these quibbles didn’t appear to faze our elected representatives. The CALM Act, as revised, flew through the House on December 15. A companion bill has been introduced in the Senate, so the stars seem to be aligning for passage – and there is no reason to expect any possibility of a veto here. So everyone in the TV biz might want to take a gander at the ATSC’s Recommended Practice, because it looks like it may become the Law of the Land before too long.
Congress tries to quiet loud commercials . . . again
If at first you don’t succeed, try, try again. That appears to be the motto of Rep. Anna Eshoo, who has re-introduced the Commercial Advertisement Loudness Mitigation Act (H.R. 1084). (She introduced an identical bill last term as well; it went nowhere.) The House Subcommittee on Communications, Technology, and the Internet is holding a hearing on the bill on June 11.
If enacted, her bill would require the FCC to prescribe regulations to assure that: (a) ads accompanying video programming (from broadcasters and/or MVPDs) not be “excessively noisy or strident”, and (b) ads not be “presented at modulation levels substantially higher” than the programming they accompany; and (c) the “average maximum loudness” of ads not be “substantially higher” than the “average maximum loudness” of the accompanying programming.
This isn’t the first time the government has tried to chase down this particular wild goose.
Putting aside the obvious observation that her proposals are a bit shy on necessary definitions of important terms – how should we define “strident” or “excessively noisy”, for example? – we are constrained to note that Rep. Eshoo appears not to be aware that the FCC has already struggled with the issue of loud commercials, unsuccessfully, for nearly 50 years. In 1962, the FCC commenced an inquiry into that very question. (Check it out – Docket No. 14904, 27 Fed. Reg. 12681 (December 21, 1962).) After three years of fact-finding, though, that inquiry was terminated “with little new information gained”. Between 1965-1973, the FCC conducted spot surveys to determine whether any broadcasters were deliberately jacking up their levels during spots – but no such evidence was found.
In 1979 the FCC opened yet another inquiry into the subject. (You can look that one up, too – BC Docket No. 79-168, 44 Fed. Reg. 40532 (July 11, 1979).) After five more years of tests, public comments, industry studies, etc., etc., the FCC concluded that “due to the subjective nature of many of the factors that contribute to loudness, it would be virtually impossible to craft new regulations that would be effective.” The FCC observed that “loudness” includes many factors, such as “audio processing, mood of the listener, listener’s experience with the product being advertised, and method of presentation.”
It appears that Rep. Eshoo eschewed a look back at the record before she introduced her bill. Or perhaps she has been able to ferret out information that decades of FCC efforts failed to – although one could not tell that from her bill. Ideally, this item will die a non-strident death – as it did last year – leaving the Commission free for more useful and fruitful activities.