It has only been a year since the FCC began implementing the Commercial Advertisement Loudness Mitigation (CALM) Act, which 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.
In a Notice of Proposed Rulemaking released late Friday, the Clyburn FCC proposed what it said was a minor rule change to the Act, an improved loudness measurement algorithm it said could lead to even quieter commercials by closing an electronic loophole of sorts. The Act anticipated and made mandatory any successor document so that the standard could keep pace with changing technology (affording the commission no discretion," the FCC said.
The FCC Friday (Nov. 1) put the new successor document out for public comment (45 days). The FCC said it probably didn't have to seek public comment on the change but was doing so to get input on the timeline and cost of the change given that it may require a hardware or software upgrade.
The algorithm appears to be designed to keep advertisers from using silence to offset excessive loudness in calculating the average volume of a commercial.
The FCC wants to hear from folks who have bought equipment that will be hard to upgrade and from smaller TV stations and MVPDs that may find it a hardship and need more time.
In the meantime, stations and MVPDs can either adhere to the old standard, or the FCC will waive the old standard if they want to move to the new standard ASAP.
FCC Commissioner Jessica Rosenworcel supported the move but said more needed to be done.
"We build on what has come before by adopting a rulemaking designed to make sure that as technology evolves, our policies remain up-to-date," she said. But she pointed out that there have been almost 20,000 commercial loudness complaints.
"By any measure, that is a lot," she said. "Viewers are-quite literally-reaching out to us and asking us to take action. That is why I support the request made by Representative Anna Eshoo [D-Calif.] and Senator Sheldon Whitehouse [D-R.I.] to issue quarterly reports that identify patterns of CALM Act noncompliance. I believe this will not only facilitate enforcement of our rules, it could help us put this irritating, persistent problem to rest."
The FCC adopted rules implementing the act in December 2011, but the industry did not have to come into compliance for a year.
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 final order 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.