FCC’s CALM Rules Puts Ball In Viewers’ Court

At first glance, the FCC rules implementing the CALM Act and regulating the loudness of commercials looks like the agency has placed another heavy regulatory burden on TV stations. But industry experts say that the burden is actually surprisingly light.

The rules were adopted Tuesday at an open FCC meeting. When they go into effect in a year (Dec. 13, 2012), stations will be required to keep the volume of commercials and promos in line with the industry-approved guidelines.

Stations will be not be obliged to continuously monitor programming for compliance and only “large” ones will have to conduct annual spot checks of syndicated and network programming that has not been certified as being in compliance.

The FCC has also kept the enforcement burden on itself light, shifting the job of identifying loudness miscreants to viewers.

“It does appear that the FCC has taken the position that reasonableness should prevail here,” said Richard Cabot, chief technical officer of Qualis Audio, a supplier of audio monitoring gear. “They have not written something that reeks of the letter of red. It seems that if you exercise a few steps, you are fairly well insulated.”

Skip Pizzi, who has been working the proceeding for the NAB, agreed. “I think both the technical and enforcement aspects are relatively acceptable to all parties.”

After decades of complaints from TV viewers about loud commercials, Congress a year ago passed the Commercial Advertisement Loudness Mitigation (CALM) Act, which instructs the FCC to come up with rules that would prevent commercials and promos from being louder than the surrounding programming.

Basically, the FCC’s rules require 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) in controlling the volume of commercials and promos.

To comply with the new rules in the handling of promos and local commercials, TV stations must install equipment that allows them “in the ordinary course of business” to check for loudness and make any necessary corrections to keep programming in line with the ATSC recommended practice.

However, the new rules do not require stations to continually monitor syndicated and network programming. Instead, for the most part, they may rely on certification of compliance from the outside sources.

Stations with more than $14 million in annual revenue must make 24-hour spot checks of all noncertified programming each year for two years. If the noncertified programming comes up clean for two years, the large stations may stop making the spot checks.

Smaller stations as well as small MVPDs are excused from making the spot checks.

The rules exemps noncommercial TV stations from the rules, “except to the extent they transmit commercial advertisements as part of an ‘ancillary or supplementary service.’ “

But at the same time it declined to exempt political advertising as some parties, including the National Cable & Telecommunications Association, had suggested.

The FCC says it will be not monitor or “audit” stations and networks to check for compliance. It will rely on viewers to complain about loudness and then act only if the complaints meet certain stiff criteria and it finds a “pattern or trend” of loudness complaints.

“We believe that a consumer-complaint-driven procedure, rather than an audit-driven one, is the most practical means to monitor industry compliance with our rules,” the FCC says in its 62-page order.

“In order for us to detect whether a pattern or trend of noncompliance exists and for stations and MVPDs to investigate them, it is essential that consumer complaints be specific in describing the commercials complained of, as well as identifying the station or MVPD and programming network on which the commercials appeared.

“As a general matter, nonspecific complaints will not be actionable.”

To be considered valid, the FCC rules says, complaints must contain the following information:

• The complainant’s contact information, including name, mailing address, daytime phone number and e-mail address if available.
• The name and call sign of the broadcast station or the name and type of the MVPD against whom the complaint is directed.
• The date and time the loud commercial problem occurred.
• The channel and/or network involved.
• The name of the television program during which the commercial was viewed.
• The name of the commercial’s advertiser/sponsor or product involved.
• A description of the loudness problem.

The FCC will track the complaints looking for a “pattern or trend” and will act if it finds one.

“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,” FCC staffer Lyle Elder said at the FCC’s open meeting on Tuesday.

“However, if complaints implicate both large and small stations or MVPDs, the bureau would generally focus enforcement inquires on the larger entities.”

The rules do not lay out a schedule of fines for noncompliance. But David Oxenford, a Washington communications attorney, said that is fairly standard practice for the FCC. “They tend to come back later to deal with fines.”

Tim Carroll, president and founder of Linear Acoustic, a maker of loudness meters for broadcasters, said that the FCC to some extent has left the issue of what is too loud in the hands of the viewing public.

“What you don’t want to do is upset a viewer,” he said. “That’s really what it comes down to. That’s the nature of compliance — not anything technical.”

“Are people going to try to trick the system? Sure,” he said. “But the way we measure loudness is so different than the way we measured things before. I think it’s unlikely that someone can trick a human operator. It might get through once. But the meter is going to tell you it’s wrong. A human being can’t be tricked. Louder is louder.”

Like others, Carroll praised the FCC for its balanced approach to the rulemaking and listening to including manufacturers and broadcasters. “They did a good job. I was impressed.”

“We all know there are certain channels we can turn to where they are not obeying the spirit of the rules,” Carroll added. “But now with the FCC rules there is some muscle for broadcasters to go back to providers of the commercials and say: ‘look we are legally required to get this right. We are now requiring you to deliver content measured with a loudness meter that hits a target.’ ”

In addition to Linear Acoustics and Qualis Audio, loudness gear is available from Ensemble Design, Harris, Dolby Labs, Nugen Audio, Tektronix, TC Electronic, Volicon, Dorrough and others.

Stan Moote, Harris vice president of business development, said most broadcasters have been gearing up for the CALM Act for over a year. “I think we will have continued sales, thanks to the multichannel explosion,” he said. “People are adding more and more channels every day. The speed of this act was very fast. Sometimes it can take years and years, but not this time.”

Oxenford warned broadcasters not to become too complacent with the viewer-based enforcement.

Some viewers may organized to enforce the rules, he said. “On the captioning side, with respect to emergency information, there are groups that have sprung up all around the country who monitor television stations every time there’s a severe thunderstorm or tornado watch. Sometimes they file hundreds of complaints.

“This CALM Act to a lot of us doesn’t seem like such a big deal, but Congress has gotten thousands and thousands of complaints, which is why they passed the law. It is one of those issues that more people have complained about to Congress and the FCC than anything else. I can see groups organizing to do this kind of monitoring.”

Cabot noted that the FCC rules allow the use of “compliant” compressors, also known as real-time processors, for loudness control.

“That’s interesting because there is no such thing as a ‘compliant’ compressor with any loudness standard,” he said. “They say if you use a real-time processor you’ll be deemed in compliance. I suspect they might come back and clarify that.

“The world is better off if people don’t use compressors because they mess up the audio quite substantially and hopefully these rules will make people feel less like they need to use one.”