WASHINGTON—On Dec. 13, the FCC voted to adopt a Report and Order that implements the Commercial Advertisement Loudness Mitigation (CALM) Act of 2010. The order's rules will go into effect one year hence—Dec. 13, 2012—as required by the act.
"The CALM Act was enacted into law on Dec. 15, 2010, in response to viewer complaints about loud commercials, which the Commission has been receiving almost as long as commercial television has existed," stated William Lake, chief of the FCC's media bureau, introducing the Report and Order for the Commission's vote.
After Congress passed the bill in 2010, its sponsor, Rep. Anna G. Eshoo (D-CA.), released a statement noting that loud TV commercials had topped the list of consumer complaints in 21 of the FCC's last 25 quarterly reports.
"TV programs use a variety of sound levels to build dramatic effect. But advertisements have been neither subtle nor nuanced," Eshoo also stated. "My bill reduces commercial volume, allowing them to only be as loud as the decibel level of regular programming."
Lake left no doubt as to who is ultimately responsible for the loudness of a commercial. "The statute makes the TV stations and MVPDs responsible for the commercials that they provide to consumers," he said, after the commission's vote. "Many of those commercials are embedded by the program providers and what we've tried to do is establish a mechanism for the TV stations and MVPDs to be able to rely on certifications from the program providers, the program owners, so that the statute can work through the whole production chain, where our direct regulatory authority is over the parties I've just described."
The act makes the implementation of the ATSC's Recommended Practice A/85 mandatory on all commercial advertisements transmitted by TV broadcasters and MVPDs. That applies both to those commercials that are locally inserted and those that are embedded in programming passed through from a network or programmer. The R&O lays out two methods by which entities may demonstrate ongoing compliance.
With respect to locally inserted commercials, stations and MVPDs will be deemed compliant if they can demonstrate that they have installed and are utilizing and maintaining equipment and software in a "commercially reasonable manner." This includes ensuring that the dialnorm metadata value correctly matches the loudness of the content when encoding the audio into AC-3 for transmission (see sidebar). The entity is also expected to be able to provide records of the consistent and ongoing use of the equipment, and must be able to demonstrate that it has undergone commercially reasonable periodic maintenance and testing.
'SAFE HARBOR' & SPOT CHECKING
There is an alternative, "safe harbor" provision, based on a proposal from the National Cable and Telecommunications Association, with respect to embedded commercials.
"All stations and MVPDs will be in the safe harbor for commercials embedded in programming if the program provider has certified that its programming complies with the practice, the station or MVPD has no reason to believe that certification is incorrect, and the station or MVPD certifies the compliance of its own equipment to transmit the programming to consumers," explained Lyle Elder of the media bureau's policy division in presenting the R&O.
The safe harbor essentially shifts the onus onto upstream program providers to ensure proper loudness control of the passed-through content, without additional processing by the station or MVPD. As the R&O notes, "[We] believe that stations, MVPDs, content providers, and consumers disfavor real-time processing due to its harm to overall audio quality." This provision reduces the burden of demonstrating compliance without forcing the entities to use equipment that could degrade the audio.
The Importance of Dialnorm in Maintaining CALM
Regulators have provided two paths to compliance with the Commercial Advertising Loudness Mitigation Act—one involves a safe harbor in the absence of processing and the other relies on audio processing.
All MVPDs and TV stations must comply with the rules set forth last month by the FCC regarding the CALM Act. The commission delineated the rules for distributors that use Dolby Digital AC-3 audio encoding, and for those that do not. For those that use AC-3, compliance requires that dialnorm be encoded as metadata into the audio stream and transmitted to the home. Dialnorm—for dialog normalization—is the loudness metric set by the ATSC’s A/85 Recommended Practice, upon which the order is based.
“The ‘golden rule’ of the RP is that the dialnorm value must correctly identify the loudness of the content it accompanies in order to prevent excessive loudness variation during content transitions on a channel or when changing channels,” the order states. “If the dialnorm value is correctly encoded—if it matches the loudness of the content, which depends in turn on accurate loudness measurements—the consumer’s receiver will adjust the volume automatically to avoid spikes in loudness.”
A recent revision to A/85 provided for stations and cable operations not using AC-3, and therefore unable to embed dialnorm metadata for receivers. In such cases, a processor is used with dialnorm set at a fixed value for both locally inserted commercials and those embedded by the networks. Compliance for those distributors will consist of implementing and maintaining the processor and software. The FCC opted not to require real-time processing for embedded ads—around 95 percent of the total—because it would degrade audio quality. Stations and MVPDs instead must obtain certification from networks that that they are applying dialnorm, and be able to pass it through to receivers.
-- Deborah D. McAdams
Larger stations and MVPDs are required to conduct annual 24-hour spot checks of those channels carrying non-certified programming in order to be in the safe harbor. Large stations—defined as those with more than $14 million in annual revenues—and the top four MVPDs—those with 10 million or more subscribers—must spot check 100 percent of non-certified programming. The nation's 5-15th largest MVPDs—defined as having between 400,000 and 10 million subscribers—are required to spot check 50 percent of non-certified programming.
"This will increase the likelihood that at least one entity is spot checking all commercial programming, including regional or other programming not carried by one of the top four MVPDs," noted Elder. "This approach will also ensure that national programming is spot checked on multiple days over the course of the year."
Larger stations and MVPDs need only perform two years of annual spot checks on non-certified programming, after which they remain in safe harbor. There is no requirement for smaller stations and MVPDs to perform annual spot checks.
If notified by the enforcement bureau of a pattern or trend (undefined by the R&O) of consumer complaints, any station or MVPD, regardless of size, will be required to perform a 24-hour spot check of the channel at issue, on both certified and non-certified programming. "If complaints implicate both large and small stations or MVPDs, the bureau would generally focus enforcement enquires first on the larger entities," said Elder.
If an entity demonstrates that complaints relate to an analog transmission then no further action is necessary. Analog transmissions in all cases are exempt from the rules.
Further action will be required only if the spot checks—annual or in response to complaints—indicate noncompliance by the programmer, in which case the entity is required to notify the commission and the programmer within seven days and conduct a follow up spot check within 30 days. If that follow up also reveals noncompliance, the entity will not be in the safe harbor for that programming and will be liable for future violations. The R&O references United States Code Title 47, Section 503, which details the monetary penalties for any violation of FCC rules.
If the approach detailed in the R&O fails to be effective in ensuring widespread compliance with A/85, it states, "[We] will revisit it to the extent necessary."