Washington — Cable operators are telling the government
that they can’t be expected to monitor millions of
commercials to make sure
they are not too loud.
In comments about the
of the CALM Act, the
National Cable & Telecommunications
took issue with the agency’s
proposal that local cable
operators be responsible
not only for the local commercials
they insert into programming,
but the national
commercials and ads on TV
stations they retransmit.
The CALM (Commercial
Mitigation) Act regulates the
loudness of commercials on
broadcast and cable TV.
The bill was signed into law
on Dec. 15, 2010, and the
FCC had a year to complete
the rulemaking to implement
the measure. The agency still
needs to get the proposed implementation
by the public and the Office
of Management and Budget
(because it adds paperwork)
and published in the Federal
Register before it becomes
official. After that time, the
industry has another year to
The NCTA has said that if
the FCC expects cable operators
to take responsibility for the loudness of national
commercials, it should be able to do so through contractual
assurances from programmers or advertisers.
The NCTA and the American Cable Association, which
represents smaller, independent cable firms, also said the
FCC should provide waivers to smaller systems, particularly
ones that do not insert local advertisements into national
The FCC notice proposing the CALM Act implementation
regime proposes to make cable operators responsible for
all commercials transmitted by stations or programmers,
according to the NCTA. The trade association said that exceeds
the agency’s statutory
The FCC also would make
cable operators responsible
for monitoring and correcting
“[O]ne large MSO inserts
more than 4 million commercials
every day,” the
NCTA said. “Given the number
of channels and volume
of commercials, it would be
impossible for cable operators
to actively monitor all of
And even if they could,
operators don’t necessarily
have the equipment to
modify the commercials
to bring them into compliance,
the NCTA contended.
Also, there are programmer
contracts that prevent
operators from adjusting
volume in a digital network
The FCC included a
“safe harbor” provision
which specifies that “any
broadcast television operator,
cable operator, or
other multichannel video
that installs, utilizes, and
maintains in a commercially
reasonable manner the
equipment and associated
software in compliance
with the regulations issued
by the Federal Communications
Commission” is deemed in compliance.
The NCTA wants the FCC to interpret that as meaning
that as long as cable operators have the equipment to keep
their own commercials from coming on too strong, they
should be deemed in compliance.
The trade group said cable fi rms should not be responsible
for either public, education and government (PEG)
stations or broadcast programming. Distributors do not
exercise any editorial control over either of those outlets.
Given the subjectivity of complaints, the association
said the FCC should establish a threshold number before
it passes complaints along to the operator for a response.
“The commission should make clear that a customer’s simple
belief that a commercial is loud is insufficient to find a
violation of the rule or to trigger a process of investigation,”
the NCTA suggested.
Like the undigested bit of beef that may have been responsible
for Marley’s ghost in A Christmas Carol, the
NCTA suggested there are other reasons for the appearance
of overly loud commercials. “For example, a commercial
that is fully compliant with the rule may sound louder
than the programming content simply because the commercial
break may occur at a particularly quiet part of a
program,” the NCTA said.
The FCC said it will add a “commercial loudness” category
to its menu of complaints over “Broadcast (TV and Radio),
Cable, and Satellite Issues.”
WAIVERS AND FORBEARANCE
Given the number of commercials cable operators must
deal with, they asked the FCC for a break when it comes to
the occasional slip-up, saying that a fine should only be levied
in cases where there was “a pattern and practice of willful
and repeated violations.”
Pointing out that Congress provided for waivers of the effective
date of the CALM Act rules for smaller operators, for
whom the necessary new equipment could be a financial
hardship or for other “good cause,” NCTA said the commission
should extend blanket waivers for systems with fewer
than 15,000 customers, as the FCC had suggested, and also
to systems that do not insert local ads.
The ACA said smaller operators should get blanket financial hardship waivers and be able to use financial
hardship as a justification for good-cause waivers, however
the FCC decides to apply the CALM Act to larger operators.
The ACA wants smaller operators to get a general oneyear
waiver, and said the FCC should consider extending
it to two years.
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