It's Almost December, 2014 - Do YOU Comply with the CALM Act?

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.

Update: Revised CALM Act Rules Adopted

The rules implementing the CALM Act have been changed. But don’t worry: the revised version won’t take effect for another year.

The CALM Act, designed to make LOUD COMMERCIALS a thing of the past, was enacted in late 2010. The Commission diligently undertook the necessary follow-up rulemaking to implement the Act. The resulting rules were adopted in December, 2011; they took effect in December, 2012, per the schedule dictated by Congress.

And, as we reported last year, by 2013 the rules already had to be amended.

That led to a further rulemaking proceeding which has now been concluded. Since Congress gave the FCC no discretion in the matter, the rule changes proposed last fall have been adopted.

If you want more background on all this, check out our post from last November. The short version: The CALM Act ordered the FCC to incorporate into its rules ATSC A/85 Recommended Practice (RP), a standard for monitoring and controlling the loudness level of digital TV programming. At the time, the latest and greatest version of that RP was vintage 2011, so that’s the one the FCC adopted. But, recognizing that standards and technology are constantly evolving, Congress also ordered the FCC to update its rules to incorporate any subsequent changes to the RP.

Sure enough, the RP was updated in early 2013, which meant that the FCC had to do likewise with its rules.

The change: where the RP refers to ITU-R BS.1770 (an ITU-recommended algorithm), that reference has been revised to specify “ITU-R BS.1770-3”, the most recent iteration of the algorithm. If you really must know, ITU-R BS.1770 is a “measurement algorithm [that] provides a numerical value that indicates the perceived loudness of the content (measured in units of LKFS – loudness, K-weighted, relative to full scale) by averaging the loudness of audio signals in all channels over the duration of the content.” Happy now?

While the FCC had no choice but to adopt the revision, it did have some discretion when it came to setting the effective date for the change.

In this case, the Commission has decided that the newly-revised rule will not take effect until June 4, 2015. The FCC’s thinking (seconded by the NAB) is that many TV licensees and MVPDs bought CALM Act-compliant gear when the initial rules took effect in 2012; according to the NAB, most of the gear deployed to comply with the 2011 ATSC A/85 RP can be modified through “relatively low-cost software upgrades” to comply with the 2013 version. Because of that, the Commission figures a year should be plenty of time to get the job done. (The FCC does note that anybody who wants to comply with the 2013 now rather than wait until next year may do so.)

The Commission advises that, come June 4, 2015, waivers may be available to those who can show that to comply with the 2013 RP would be “significantly burdensome”. But even if such a waiver is granted, the station or MVPD will still be expected to comply with the 2011 RP in the meantime. (A few stations already have waivers covering the 2011 RP, but those are set to expire no later than December 13, 2014.)

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.

No-Pix Six Nixed

Commission puts the kibosh on hybrid digital/analog transmission system that would have allowed Channel 6 licensees to provide additional audio-only service.

Video-less TV, an idea embraced by a number of Channel 6 LPTV stations, has suffered a set-back. In August the FCC rejected a proposal by two Channel 6 LPTV licensees to use a digital transmission system that would have permitted them to transmit – in addition to their digital TV service – a separate audio signal receivable by analog FM radio receivers.

Spectrum-wise, TV Channel 6 sits immediately below the FM radio band. In pre-DTV NTSC analog technology, the video and audio components of the TV signal were separately generated (sometimes even through separate transmitters), with the audio located near the top of the band and using FM modulation. That meant that the audio of an analog Channel 6 station could be heard easily on most FM radios (which can normally tune down to 87.7 MHz). 

Analog Channel 6 TV stations, both full and low power, reportedly enjoyed a boost in their audience size thanks to drivers tuning in on their car radios and joggers listening on their arm band radios. In fact, some Channel 6 LPTV operators found the FM radio audience so attractive that they programmed primarily to that audience, paying little attention to video. How little? We suspect that some didn’t even have working video transmitters. (Cautionary note: It’s not at all clear that audio-only transmission –  or even audio with only a dribble of a video signal – complied with FCC requirements.) The Channel 6 audio business prospered in a few major markets, with a few stations reaching reportable Arbitron ratings levels.

The audio-only TV business has foundered in recent times, presumably because it was based on analog technology and could not co-exist with digital video. (That’s because: (a) under the ATSC digital standard, the analog signal is no longer separate from the video; and (b) digital TV audio can’t be received on FM radios – not even digital “HD” FM radios.) With virtually all full-power TV stations converted to DTV operation since 2009, and with a fast-approaching end-date for analog LPTV broadcasting, future prospects for video-less Channel 6 operations are not good.   LPTV licensees recognize that it’s difficult, if not impossible, to make a viable business plan when you ‘re likely to hit a brick wall in only three years.

But where there’s a will, there’s often a way.

Transmitter manufacturer Axcera came up with something they call Bandwidth Enhancement Technology (BET), which combines a digital TV signal with an analog audio signal. A Channel 6 station operating with a BET transmitter can broadcast a DTV signal (combined audio and video) using most of its 6 MHz bandwidth, but still insert an analog audio signal in a little slice at the top of the band. Digital TV sets can receive full TV service, while analog radios can receive a separate audio service. Audio programming service can even be transmitted two ways at the same time – on the TV dot 2 stream (Channel 6.2) in digital format and on the BET stream in analog.

This innovative approach sounded like a winner to Venture Technologies Group (VTG), which proposed to install BET at two of its stations. After all, didn’t the FCC tout digital TV as a way to introduce both more services and new services to the public? And doesn’t the ancillary services rule (that would be Section 73.624(c)) encourage TV stations to “offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis.” VTG saw its proposed use of BET as a win-win, increasing service to the public while providing a much-needed additional revenue source for LPTV stations struggling to survive without carriage rights on cable or satellite.

Sorry, the FCC responded, no deal.

 According to the Commission, it has yet to adopt technical standards for the “hybrid” operation of a BET transmitter. The FCC claims that its rule (i.e., Section 74.795(b)(1), which in turn references Section 73.682(d)) require that digital LPTV stations comply with ATSC standards, and ATSC standards require the use of 8VSB transmission throughout the entire 6 MHz bandwidth of a TV channel. Since the BET system uses part of that bandwidth to transmit an analog signal, it doesn’t comply with the ATSC standard and thus can’t be licensed, as the FCC sees it.

On top of that, the FCC was skeptical of VTG’s claim that no interference would be caused to any other station. The Commission’s skepticism arose because there is no established desired-to-undesired (D/U) signal ratio for hybrid-into-DTV operation – without that ratio, how can interference (or lack thereof) be determined? The FCC also noted that the probability of interference to co-channel DTV operations is higher than VTG let on, because VTG’s proposal would not decrease digital power to offset the analog audio power and so could increase the total power of its Channel 6 operations by as much as 33%. 

And all that stuff about favoring innovation and ancillary services? That doesn’t matter to the Commission when you run the risk of interference. Application dismissed!

We checked out the FCC’s reasoning. As far as conforming to all ATSC standards goes, that requirement appears in Section 73.682(d). We think the FCC’s reasoning is a bit stretched, though, because Section 73.682(d) comes into play here only through Section 74.795(b)(1), and that section requires only that digital LPTV systems be “satisfactorily viewed” on consumer digital TV receivers that operate based on Section 73.682(d).  In other words, while Section 73.682(d) is indeed mentioned in Section 74.795, that mention does not require the LPTV transmission system to comply with all aspects of Section 73.682(d). The whole point of the BET technology is to preserve satisfactory DTV viewing. The compression of the digital TV signal to carve off a sliver for analog audio is not supposed to impact TV reception on consumer digital receivers. If Axcera is right about that, then where is there any violation of Section 74.795(b)(1)?

Don’t take our word for this: the FCC itself has expressly stated that digital LPTV stations do NOT have to comply with all aspects of Sec. 73.682(d).  In the Report and Order adopting digital rules for LPTV stations, the FCC said:

LPTV and TV translator stations are not required to comply with either Section 73.682(a) or (d). [That appears at Paragraph 163.]

and

Digital companion channels to Class A stations will be licensed on a secondary, LPTV basis and at this juncture operation of companion channels will not be subject to the requirements of Section 73.682(d) of the rules. [This one’s at Paragraph 165.]

(By contrast, the Commission also observed, also at Paragraph 165, that “Class A TV stations that choose to convert to digital on their existing analog channel will be licensed on a primary, Class A basis and their converted digital facilities will be subject to the requirements of Section 73.682(d).”)

So it seems that, while digital Class A stations must comply with all aspects of with Section 73.682(d), LPTV stations only have to be receivable on consumer receivers.

What about the argument that there are no standards for measuring interference from hybrid stations? There the FCC is on stronger ground. There has never been a rulemaking on hybrid standards, so hybrid operation is not mentioned in the interference rules. 

But what might happen in real life? The BET technology was designed to be compatible with digital TV operation. We talked to one of the leading industry engineers who helped develop the technology. We learned that, while there is little possibility of any damage to the host hybrid station itself (i.e., the analog audio won’t interfere with the digital TV signal of the same station), it is not as clear that there won’t be any increase in interference to other Channel 6 stations. To avoid co-channel interference, more distance between Channel 6 stations might be required than would be the case without the analog carrier.

In our view, the FCC ought to give hybrid DTV technology like the BET system a closer look. That’s particularly so given the FCC’s relentless quest for more efficient use of all spectrum everywhere. The hybrid here is a “two-fer” – one TV station can provide two kinds of service. Why stifle that kind of creativity, innovation, and efficiency? 

And, if the technology does work, it would not necessarily be limited to LPTV. At least one full-power station in Schenectady, New York found that its audience enjoyed listening to the audio from TV newscasts and talk shows that they could pick up in cars and while “puttering around the garage.” That station pulled the plug on the service, however, because the licensee “didn’t want to risk annoying” the FCC. Since 73.682(d) plainly applies to full-service stations, approval of hybrid gear for such stations would require some adjustment on that end – but if the result is an increase in innovation and service, why not?

We hope that proponents of BET will conduct the necessary tests to show how much analog audio power is possible without adversely affecting any other station. Convincing the Commission that hybrid technology does not pose a serious threat of interference could open the door for that innovative technology. And that, in turn, could allow LPTV stations that have experimented successfully with some kind of audio-only service to continue to develop both that service and digital video programming, unthreatened by the impending end of analog LPTV. Moreover, enabling hybrid operation could provide analog Channel 6 LPTV stations an incentive to convert to digital operation sooner rather than later and to bring to the public the increased quality and quantity of services available with digital TV technology.

December, 2011: All is CALM

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.

Demonstrating compliance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Waivers. Congress specified in the CALM Act that the FCC must provide one-year waivers (renewable for a second year) upon a showing of “financial hardship” arising from having to obtain the equipment necessary to comply with the rules. The Commission has adopted a streamlined approach for “small” TV stations and MVPD systems. If you’re a TV station located in TV markets 150-210 or if you have no more than $14 million in annual receipts, you’re a “small” TV station for these purposes; you’re a “small” MVPD system if you have fewer than 15,000 subscribers (as of 12/31/11) and you aren’t affiliated with a larger operator serving more than 10% of all MVPD subscribers. 

If you qualify for the “small” operator’s waiver, you need only send the FCC a certification that (a) you meet the definition of “small” TV/MVPD operation and (2) you need the extra year to “obtain specified equipment in order to avoid the financial hardship that would be imposed” you had to get the equipment sooner. You must identify or describe the kind of equipment in question, but you don’t need to specify model number.

Entities that don’t qualify as “small” must provide: (1) evidence of their financial condition; (2) cost estimate for obtaining the necessary equipment; (3) a “detailed statement explaining why its financial condition justifies postponing compliance”; and (4) an estimate (with support) of how long it will take to comply.

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

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

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

That would be a misimpression.

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

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

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

New CALM Act Standard is Here! (Better get reading . . .)

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.

New CALM Act Standard Coming! (Take an Extra Six Days for Those Reply Comments)

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.

Update: CALM Act Comment Deadlines Set

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.

The CALM Act: The Next Step

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.