The new CALM Act regulations governing television loudness become mandatory on all commercial advertising transmitted by TV broadcasters and MVPDs as of Dec. 31, 2012. They require adherence to the ATSC A/85 recommended practices and establish a “safe harbor” for commercials passed through by stations.
The FCC voted unanimously today to adopt new rules for the CALM Act—the legislation passed by Congress last year to govern the loudness of broadcast and pay television content. The rules go into effect on Dec. 13, 2012.
The CALM Act (for Commercial Advertisement Loudness Mitigation Act) regulates the audio of TV commercials from being broadcast at louder sound volumes than the TV program material they accompany. Viewers have complained to the FCC and other government agencies about loud commercials for decades, which prompted the new law.
The legislation directed the FCC to establish regulations requiring TV stations, cable operators, satellite TV providers or other multichannel video program distributors (MVPDs) to follow the Advanced Television Systems Committee’s (ATSC) A/85 Recommended Practice (ATSC A/85 RP) to transmit commercial advertisements. The ATSC A/85 RP is a set of methods to measure and control the audio loudness of commercials and programming in the digital domain.
Today, the FCC finished the task of converting what was a 76-page recommended practice into a set of enforceable rules. Lyle Elder, in the FCC Media Bureau’s policy division, presented the rules to the commissioners in an open meeting, saying the rules now makes the practice mandatory on all commercial advertising transmitted by TV broadcasters and MVPDs.
“The order requires that all stations and MVPDs comply with both the local commercials they insert and with the embedded commercials they pass through as part of programming supplied by a network or programmer,” Elder told the commissioners.
Under the order, the FCC’s Enforcement Bureau will notify stations and MVPDs of potential non-compliance if it receives “a pattern or trend” of consumer complaints, Elder said.
“Since retroactively demonstrating compliance may be difficult, the order provides two methods by which entities may equally demonstrate ongoing compliance. With respect to locally inserted commercials, stations and MVPDs must demonstrate that they installed, utilized and maintained the equipment and software [to monitor loudness] in a commercially reasonable manner will be deemed in compliance with the rules,” Elder said.
“With respect to embedded commercials, the order provides an alternative safe harbor approach. It involves a combination of certification by programmers and spot checks by distributors. All stations and MVPDs will be in the safe harbor for commercials embedded in programming if the program provider has certified that its programming complies with the practice, and the station or MVPD has no reason to believe that certification is incorrect and the station or MVP certifies the compliance of its own equipment to transmit the program to consumers,” Elder said.
“To promote a level playing field, a certifying programmer must make his certification available to all distributors,” he continued. “To be in the safe harbor with regard to commercials and non-certified programming, larger stations and MVPDs must perform annual 24-hour spot checks of channels carrying non-certified programming.”
Large broadcasters with more than $14 million in annual receipts and the top four MVPDs, with 10 million or more subscribers, must spot check 100% of non-certified programming. MVPDs with fewer than 10 million but more than 400,000 subscribers, must spot check 50% of non-certified programming.
“This will increase the likelihood that at least one entity is spot checking all commercial programming including regional or other programming not carried by one of the top four MVPDs,” Elder said. “This approach will also ensure that national programming is spot checked on multiple days over the course of a year.”
Once a larger station or MVPD has provided two years of spot checks on its non-certified programming and found no evidence of non-compliance, it may stop making annual spot checks and remain in the safe harbor. Smaller stations and MVPDs are excused from annual spot checks.
“If alerted to a pattern or trend of consumer complaints, a station or MVPD must perform a 24-hour spot check of the channel at issue. This requirement applies to all stations and MVPDs regardless of size and applies to both certified and non-certified programming. However, if complaints implicate both large and small stations or MVPDs, the bureau would generally focus enforcement inquires on the larger entities.”
Spots checks, whether annual or in response to a pattern or trend of complaints, would require further action only if they indicate non-compliance by a programmer. In that case, the station or MVPD must notify the commission and programmer within seven days and conduct a follow-up process with 30 days.
“If that follow-up spot check reveals non-compliance, the station or MVPD will not be in the safe harbor for that programming and would be liable for future violations,” Elder said.
In response to the FCC’s action, NAB EVP of Communications Dennis Wharton said: “We think the FCC struck the right balance in implementing the CALM Act and look forward to working with them going forward.”
And Matthew M. Polka, president of the American Cable Association, said his organization “appreciates the FCC’s time and attention throughout the rulemaking process in seeking to understand and mitigate the potential burdens that this legislation could impose on smaller operators.”
The FCC’s order and accompanying statements can be found here.