Washington — Cable operators won’t be responsible
for making sure commercials from broadcast TV that they
retransmit are not too loud.
But they will be responsible for the
volume on national ads passed along by
programming networks, for ads they insert
themselves and for show promos
they pass along from the networks.
That is according to two Federal Communications
Commission sources who
have studied the item implementing the
Commercial Advertisement Loudness
Mitigation (CALM) Act, which has been
circulating among the commissioners
for a vote this week (Dec. 13). There could
still be tweaks and edits to the order before
The FCC released its rulemaking proposal
on the CALM Act last May and
signaled cable operators would be responsible
for cable commercials they
did not insert.
The agency also asked for comments on whether the responsibility
should extend to ads on broadcast TV stations retransmitted
via must-carry or retransmission-consent agreements.
The FCC has concluded that broadcasters should be responsible
for those ads.
The CALM Act empowers the FCC to regularize the volume
between programming and commercials. It adopts
Advanced Television Systems Committee-recommended
practices for variations in commercial volume in relation
to the programs around them.
Cable operators and other multichannel-video distributors
had told the agency that they should only be responsible
for the commercials they insert, rather than the ones they
What the FCC says in the order, according to one source,
was that Congress’ intent was not to get 5% of the commercials
right, but 100%. Thus, both broadcasters and cable operators
will be responsible for so-called “embedded commercials,” as
well as those they insert.
Even if an operator identifies a loudness problem in a
commercial and informs the programmer about it, the operator
will still be on the hook for potential liability if the
Cable operators will not have the same backstop responsibility
for ads on TV stations they retransmit. “Broadcasters
are responsible for themselves,” the order concludes, whether
they are on cable via must-carry or retransmission consent.
Smaller cable operators will have to
comply with the rules. But there will be
Also, smaller operators will not be required
to purchase the equipment necessary
to monitor and test commercial
loudness. They will still be responsible
for the consequences if there is a complaint
that is upheld.
Larger operators will have to obtain
the equipment and do regular monitoring.
“I wouldn’t say the smaller operators
would be thrilled because they
don’t want to have to be on the hook
for this at all,” one commissioner aide
The FCC’s lobby was said to be
filled with, well, lobbyists last week as
they tried to make their cases to commissioners
and staff before the quiet
period in advance of the scheduled Dec. 13 vote.
Among them were representatives of the National Cable
& Telecommunications Association, the American Cable
Association and Verizon Communications, according
to ex parte records.
Cable operators were unhappy about having to be responsible
for making national ads and promos comply.
WHERE BUCK STOPS
Broadcasters were also concerned about having to be responsible
for commercials in network and syndicated programming
they did not insert. But the buck had to stop somewhere,
one FCC source said.
TV stations are liable for indecency fines for network
programming, not the networks themselves, the FCC
The FCC is proposing that broadcast and cable operators
also be responsible for normalizing the volume in political
spots — which could run into the “no censorship” provision
in the Communications Act regarding political ads, depending
on whether or not shouting was the point of the ad.
The FCC is under a congressional deadline to produce rules
implementing the CALM Act by Dec. 15, after which the industry
has a year to comply.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.