Client Alert

The FCC has adopted rules in response to the aptly-named “CALM” (Commercial Advertisement Loudness Mitigation) Act. The rules are to take effect on December 13, 2012 and apply to digital television stations, cable operators and other multichannel video programming distributors (MVPDs), but not to analog service or to low power and translator stations. The rules are intended to protect viewers from excessively loud commercials while minimizing the burden on the industry to demonstrate compliance.

 

Although the vehemence and persistence of consumer complaints that sensitized Congress to this problem were leveled against television, it is possible that similar concern could be directed toward radio in the future, especially if advertiser pressure to draw increased attention to their messages were to create a comparable nuisance.
 

As ordered by Congress, the Commission has mandated compliance with the algorithm in Recommended Practice A/85 (“Techniques for Establishing and Maintaining Audio Loudness for Digital Television”) of the Advanced Television Systems Committee (ATSC).  The A/85 algorithm encodes and transmits as metadata in the audio digital stream a numerical value that indicates the perceived loudness of the audio content measured across all channels, and enables a digital receiver to automatically adjust the volume to avoid loudness spikes.
 

The rules apply to political advertising, promotional announcements and program-length commercials, as well as to noncommercial stations’ airing of advertisements in ancillary or supplementary services.

While each station or MVPD is responsible for its entire digital audio stream, the Commission has adopted separate compliance and enforcement standards for embedded and inserted ads.
 

For locally-inserted ads, a station will be deemed in compliance if it installs, utilizes and maintains in a commercially reasonable manner the equipment and associated software needed to comply with ATSC A/85.  To satisfy that presumption, a station must also be able to provide records documenting ongoing use and periodic maintenance and testing of its equipment, certify that it has no actual knowledge of a violation of A/85 (or that any violation of which it has become aware has been promptly corrected), and further certify that its own transmission equipment is not at fault for any pattern or trend of complaints.
 

For commercials embedded in programming produced by third parties, the FCC has created a “safe harbor."  To qualify, a station may rely upon producers' certifications of compliance, so long as they are currently in effect and widely available (including on websites), and the station has no reason to believe that they are false.  Programming not so certified must be spot-checked by stations having more than $14 million in annual revenues (and by MVPDs with more than 10 million subscribers).  Smaller stations and MVPDs are not required to have loudness measurement equipment on hand, but they must be prepared within 30 days of an FCC inquiry triggered by a pattern of complaints to perform spot-checks and to certify that their own transmission equipment is not at fault.  Spot-checks of embedded commercials entail annual monitoring and analysis of 24 uninterrupted hours of a programming stream without having given prior notice to program sources.  Special procedures apply if there is no single 24-hour period in which all programmers on a given stream are represented.  Evidence of non-compliance triggers obligations to notify the FCC and the relevant programmer and to conduct follow-up spot-checks.  No further spot-checks are needed once two consecutive annual spot-checks disclose full compliance, although they may be required in response to an FCC inquiry.  As an alternative to spot-checking, a station or MVPD may rely upon real-time processing or records demonstrating actual compliance.
 

In lieu of audits, the Commission will rely upon complaints to alert it to potential noncompliance.  A “loud commercials” category will be added to the FCC’s on-line complaint form, which will require details including the specific station, date, time, channel or network, program and sponsor.  Faxes and letters with comparably detailed information also will be accepted.
 

Stations with no more than $14 million in annual receipts or in markets 150+ may obtain a one-year delay of the effective date by filing an on-line request by October 14, 2012.  Otherwise, the new requirements are scheduled to take effect on December 13, 2012.
 

This memorandum provides only a summary of the new rules.  A complete copy, together with the FCC’s Report and Order (FCC 11-182) is available on the Commission website at:   http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db1213/FCC-11-182A1.pdf

 

If you have any questions, please contact contact Peter Gutmann (pgutmann@wcsr.com or (202) 857-4532) or any member of the firm’s Communications Law Group.

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