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.