The bad news is that the FCC has received more than 20,000 complaints about loud commercial in the year since the FCC began enforcing the CALM Act. The good news is that the complaints have been on a steep downward curve, from 4,777 in December 2012 to 656 in December 2013.
There were only 298 in October 2013, but the government shutdown meant complaints were unable to be filed for half the month, so it gets an asterisk.
Those figures are according to an FCC report to Rep. Anna Eshoo (D- Calif.), the driving force behind the CALM Act.
The act requires broadcasters and MVPDs to monitor and control the volume of commercials to make sure they are not louder than the surrounding programming, but the FCC is already proposing to change the standard.
The FCC says 70% of the complaints were referred to the Enforcement Bureau to determine whether further action was warranted, which means if a pattern or trend were discovered.
The bureau told Eshoo that enforcement has been hampered by a lack of specific data in the complaints and that it has revised the form to make it easier to provide the necessary specificity, but that budget constraints have delayed implementation of the revisions. Nonetheless, the bureau said it had identified "more than one" trend or pattern and is further investigating.
The FCC has also released a Notice of Proposed Rulemaking on incorporating a new loudness mitigation standard that would apparently close a loophole that allows parts of the commercial to be louder than the surrounding programming so long as there are enough quieter parts elsewhere to average out the sound level.
Comments final on that proposal came in earlier this month and the FCC is proposing giving broadcasters until November of this year to come into compliance with the new loudness mitigation algorithm.
The FCC made cable operators responsible for the volume of both national and local ads, as well as promos, while TV stations are responsible for the national network and syndicated ads, as well as promos and local ads, both on broadcast and on the signals they deliver to cable operators. That means if a cable operator delivers a TV station ad that violates the act, it is the broadcaster who is responsible.
But the FCC’s implementation includes some flexibility for operators and stations to comply with their responsibility over the "imbedded" ads they pass along from program distributors up the chain. They will be considered in compliance if they "install, utilize and maintain" the requisite equipment and software, or they have a certification from the distributor of the ad that it complies with the recommended ATSC standard that the FCC is making mandatory.
Larger operators must conduct annual spot-checking of commercials for the first two years, after which that requirement sunsets. Smaller operators and stations don't 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 have the opportunity to seek hardship waivers and are not be required to purchase equipment, though they are responsible for any proven violations.
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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.
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