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.