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This Friday (October 12) is the deadline for requesting a waiver under the FCC’s Commercial Advertisement Loudness Mitigation (“CALM”) Act implementing procedures, intended to combat "loud commercials."  We wrote about the implementing rules and the obligations of television stations to come into compliance with the standards set out in the rules, adopting a protocol that seeks to maintain consistency between commercials and surrounding programs, here. The Commission’s order allowed for waiver requests by stations that would have a financial hardship in complying – with such waivers being due 60 days before the compliance deadline. As that deadline for compliance is December 13, the waiver requests are due on Friday.

All such waiver requests must be submitted through the FCC’s Electronic Comment Filing System.  Waiver applicants must demonstrate that purchasing the required equipment would result in “financial hardship.”  Such waivers, if granted, will be valid for one year and may be renewed for one additional year.  The FCC also retains the authority to issue a waiver for good cause.  “Small stations” are eligible for a streamlined waiver process for demonstrating financial hardship.Continue Reading CALM Act Waiver Requests Due By October 12

The FCC this week adopted its rules implementing the CALM Act to address the public perception that commercials are too loud – louder than the programming which they accompany. Congress passed a law last year requiring that the FCC address the issue, and this week’s order adopts these implementing rules which will go into effect on December 13, 2012 (see our articles on the passage of the Act here, and on the Notice of Proposed Rulemaking in this proceeding here). The rules adopted by the FCC allow television stations and MVPDs (multichannel video programming distributors – cable and satellite TV companies) to meet the requirements of the Act by relying on the A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee) setting out a process by which these TV providers can assure that commercials that they insert into program streams are not louder than the programs that they accompany. The rules also allow a safe harbor by which stations and MVPDs can comply with the Act in connection with “embedded commercials”, i.e. commercials that are sent to the station or system by a network or other program supplier.

The specific requirements for compliance with the new rules depend on whether the advertisements that are being broadcast are originated by the station or system, or whether they come embedded from some third-party program provider. For commercial insertions by the station or MVPD, compliance is assumed if they install the equipment required by A/85, use it in connection with their insertions, and maintain and repair it as necessary to keep it in good working order. For embedded commercials, stations can run all the programming through some sort of real time processing to ensure that the audio loudness is uniform. However the Commission was concerned would audio processing would degrade the audio quality of the programming provided by third parties. Thus, the Commission offered an alternative safe harbor with respect to embedded advertising. To comply with the safe harbor, stations and systems would either:

  • Rely on widely available certifications from networks and other program suppliers that they have complied with the standards necessary to assure that the commercials are no louder than the programming in which they are embedded, or
  • The stations and systems will need to perform “spot checks” on programming for which they have obtained no certification. Spot checks are done as follows:
    • Large stations (with over $14 million in annual 2011 revenue based on BIA Media Access Pro information) and very large MVPDs ( those with over 10 million subscribers) needs to annually spot check 100% of their non-certified programming. Large MVPDs (those with between 500,000 and 10 million subscribers) need to spot check 50% of their programming. Small stations and systems are exempt from regular spot check obligations
    • The spot check is a once-a-year obligation, requiring the station or system to do 24 hours of monitoring within a 7 day period, including at least one complete program from each non-certified program supplier, to ensure that the programs comply with the A/85 standards
    • Spot checks will phase out over 2 years as more and more programming is brought into compliance
    • If a spot check reveals an issue, the station or system needs to notify the program provider and the FCC, and do another spot check of the non-compliant programming within 30 days . If the programming continues to be noncompliant, then the programming is outside the safe harbor (meaning that, if a station or system continues to run it, they can be subject to fines)

The Order also set out additional details about what kinds of programming are subject to the rules, the complaint process for those who believe that stations or systems are not complying with their obligations, and waivers for small stations and systems.  These matters are discussed below.Continue Reading A Summary of the FCC Rules Implementing the CALM Act to Regulate Loud TV Commercials

For our readers in the television business, there have been recent developments in two proceedings about which we have written recently.  Last week, we wrote about the extension of time to file reply comments on the CALM Act implementation Notice of Proposed Rulemaking, where the FCC is implementing a Congressional act to curb loud commercials…

The FCC has granted a short extension for Reply Comments on the implementation of the CALM Act.  The new deadline for Reply Comments is August 1, 2011.  We wrote about the issues in this porceeding here,  The CALM Act ("Commercial Announcement Loudness Mitigation" Act), which must be implemented by the end of this year…

Dates for comments and replies on the FCC’s Notice of Proposed Rulemaking to implement the CALM Act, regulating the volume levels of commercials, have now been set.  We provided a detailed summary of that NPRM here.  As set out in that summary, the NPRM asks many questions of broadcasters, cable companies, and other Multichannel Video Programming…

In December, the Commercial Advertisement Loudness Mitigation (“CALM”) Act was adopted by Congress and signed by the President, addressing consumer complaints about television commercials that seem louder than the program content that they accompanied. As we wrote in our summary of the Act when it was adopted, Congress has long received many complaints about loud commercials and decided to act, even though many industry groups were concerned about the ability to design an effective system to deal with the contrasts that sometimes exist between the quiet dialogue that might precede a commercial break and the commercial advertisement itself. Nevertheless, Congress adopted the CALM Act, and instructed the FCC to adopt implementing rules within a year. This past week, the FCC released its Notice of Proposed Rulemaking, looking to adopt rules to implement the statute for over-the-air television broadcast stations, cable systems, satellite, and other multichannel video programming providers. In its NPRM, the FCC asks many questions trying to clarify the details of CALM Act implementation.

The NPRM raises a broad array of implementation issues, ranging from deciding exactly which broadcast stations and which MVPDs are subject to its terms, to the establishment of safe harbors for technical compliance. As discussed in more detail below, the Commission also asks whether stations and systems can shift the burden for compliance with these rules to program suppliers, such as broadcast and cable networks, and whether contractual means of guaranteeing compliance (such as indemnification provisions in contracts between networks and affiliates) are sufficient to ensure compliance by these program providers. Questions about how MVPDs deal with retransmission of broadcast programs, and who is responsible for noncompliant broadcast programming, are also asked. Finally, the FCC suggests processes for consumer complaints and the grant of waivers to stations and systems that cannot quickly comply with the new rules.Continue Reading FCC Seeks Comments on Implementation of CALM Act Regulating Loud Commercials on Broadcast and Cable Television

Yesterday, the House of Representatives passed the CALM Act, directing the Federal Communications Commission to adopt regulations controlling the volume of commercials on television broadcast stations, cable systems, satellite, and other multichannel video programming providers. This bill was passed by the Senate in September.  Once signed by the President, the Federal Communications Commission will be required to adopt a rule to implement the legislation within one year, and the rule is to become effective within one year after its adoption. The FCC rule is to adopt parts of the ATSC A/85 standard, which seeks to target the volume of commercials in digital programming to the volume of dialogue (or other “anchor element”) in the accompanying program. An interesting description of the issues that must be addressed in determining just what is "loud," and for controlling that volume, can be found in a recent Wall Street Journal article (here, subscription may be required). 

Congressional estimates are that the costs of necessary equipment range from a few thousand dollars to $20,000 per device, for an aggregate industry cost of tens of millions of dollars. Congress anticipated that the costs may be burdensome for small cable operators and smaller market television broadcasters, and provided that waivers may be granted for financial hardship for one year renewable terms  The Commission may also grant waivers or exemptions from the rule that it adopts for classes of broadcasters and multichannel video programming distributors under the FCC’s general waiver authority.Continue Reading Congress Passes CALM Act to Restrict Loud Commercials