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Editorial: CALM Before the Calm

Starting in December, in time to catch at least some of the holiday rush of toy commercials, cable operators and broadcasters will have to be in compliance with new rules under the Commercial Advertisement Loudness Mitigation (CALM) Act. That is the law that prevents commercials from being delivered at greater volume than the programming that surrounds them.

We know it is an added compliance and monitoring burden for broadcasters and cable operators. But for viewers, broadcasters and cable operators, it is a public service to ringing ears everywhere.

The FCC’s solution may not have been perfect, but the agency was under a congressional mandate to come up with an enforcement regime. And the FCC took industry input into account in modifying the final rules when it adopted them last December.

In addition, the bill was also modified from its original form to give the industry more time to implement—until December 2012— and to make an industry-backed engineering standard the new rule of the quieter road.

Under the rules, cable operators are responsible for the volume of both national and local commercials. TV stations will also be responsible for the national network and syndicated spots, as well as local ads, both on broadcast and on the signals they deliver to cable operators. That means if a cable operator delivers a TV station spot that violates the regs, it is the broadcaster, not the cable operator, that is responsible.

Both broadcasters and cable operators were concerned about having to monitor all those ads. The FCC’s eventual order implementing the rules—which it passed unanimously in December 2011—includes some flexibility for operators and stations in complying with that responsibility for the embedded ads they pass along from program distributors up the chain. They are considered in compliance if they “install, utilize and maintain” the requisite equipment and software, or if they have a certification from the distributor of the ad that it complies with the recommended ATSC standard that the FCC is making mandatory.

That was needed flexibility for which the FCC deserves a shout-out—oops, make that praise of a reasonable volume no louder than the rest of this editorial.

Larger cable operators are required to do annual spot-checking of commercials for the first two years, after which the requirement sunsets. Smaller operators and stations will not have to spot check, but stations and operators of all sizes must test in response to a “pattern or trend” of complaints—rather than, say, a single complaint— involving their station or system.

Smaller operators also have the opportunity to seek hardship waivers and will not be required to purchase equipment, though they will still be responsible for any proven violations. The carveout for smaller operators was important, given the relatively greater burden that compliance is on ops without a lot of discretionary time or money.

And it was important to signal that a single nuisance complaint—sometimes it is not the volume of the spot that is annoying, but that is the subject of another editorial—is not able to trigger the substantial compliance burdens.

While cable operators have argued that promo spots were not meant to be covered by the rules, that argument appeared to fall on ears deafened by loud commercials. Rep. Anna Eshoo (D-Calif.), the driving force behind the bill, said recently that she absolutely meant the law to apply to network promos, and we don’t expect the FCC to find differently.

With due deference to the added compliance burden of monitoring ad-free networks for their promos—something cable operators pointed out—viewers don’t draw distinctions between commercial spots and promos. And if the CALM Act works as planned, it will be a net positive for viewers and for the TV brand. That said, the FCC should not be heavy-handed in its enforcement. It has the big stick of potential enforcement actions, so it should speak softly.

We support turning down the volume on commercials, and we hope this is the right way to do it. As is often the case, we would have preferred that the problem be solved without governmental intervention. But that is a moot, or should that be “mute,” point. It is time to for the government and industry to make it work.