WASHINGTON—Rep. Anna Eshoo (D-Calif.) wants the FCC under Acting Chairwoman Jessica Rosenworcel to investigate the recent rise of complaints related to the CALM Act, and hopefully have the commission go a step further than it did under former FCC Chairman Ajit Pai when it comes to enforcement.

The CALM (Commercial Advertisement Loudness Mitigation) Act, which Eshoo wrote and was enacted in 2010, is designed to regulate the volume of broadcast, cable and satellite commercials compared to other programming, with the goal of preventing commercials from being significantly louder. The FCC was directed to issue regulations for the bill.

In a letter from Eshoo to Rosenworcel, she details how she originally contacted Pai on July 21, 2020, requesting information about new complaints related to the enforcement of the CALM Act. She said his response, sent on Aug. 11, 2020, indicated that while the FCC has received “thousands of complaints,” it has never brought an enforcement action as a result. Pai also said that CALM Act complaints were increasing in the first half of 2020.

Eshoo cited a recent press report from Insider using more recent data that shows complaints have increased from April 2020 through February 2021. The article says that “2021 is poised to be the worst year since the initial rollout” of the CALM Act.

“It is for these reasons that I ask the FCC investigate the rise in the loudness of TV advertising complaints and take enforcement actions as appropriate,” Eshoo wrote.

The FCC previously updated its enforcement of the CALM Act in 2014 (then under former FCC Chairman Tom Wheeler), implementing a new measurement algorithm that disregarded quiet or silent parts of commercials, which was proving to be a loophole with advertisers trying to use silence to offset loudness and lower the average volume of a commercial.

WASHINGTON—The Modern Television Act of 2021, from House Republican Whip Steve Scalise (R-La.) and Rep. Anna Eshoo (D-Calif.), has officially been introduced, which at its heart looks to repeal regulations that would help prevent future station blackouts as part of retransmission negotiations.

According to the press release announcing the legislation, there were 327 station blackouts in 2020, removing channels from viewers as part of negotiations between MVPDs and broadcasters.

“Until we modernize outdated video laws, blackouts will continue to happen while market prices surge,” said Rep. Eshoo. “I’m proud to partner with Congressman Scalise to introduce this legislation to protect consumers, encourage market competition, lower prices, and bring an end to broadcast blackouts.”

The Modern Television Act of 2021 would repeal regulations from the 1992 Cable Act. The new bill proposes the following:

• Requiring MVPDs carry a broadcast signal while the parties continue negotiations for up to 60 days, with parties being retroactively paid for their content aired during that time. 
• Repeal transmission consent, compulsory copyright licenses and other outdated statutory provisions and regulations to allow free-market contract negotiations to happen under traditional copyright law. 
• Establishing an optional mechanism for the FCC to compel parties to seek “baseball-style” binding arbitration through a neutral third-party arbitrator following an extended impasse or finding of bad faith. Would protect against blackouts and pays copyright holders for their content during the arbitration process. 
• Preempt federal, state and local authority to regulate rates of cable services. 
• Requiring the Government Accountability Office to report specific metrics about the impact of this Act on consumer and the marketplace every two years. If a net negative is determined, the FCC must recommend policy changes to Congress. 
• Ensuring consumers have access to local programming by retaining the ability of a local TV broadcast station to require carriage on cable and satellite providers in their local market. 

“Congress needs to finally modernize the outdated 1992 video laws that no longer fit today’s technology. Our bill brings back basic copyright protection laws, so that everyone gets paid for their products, and consumers get to choose whatever they want to buy, wherever they want to buy it and watch whatever they want on any device they choose,” said Scalise.

The American Television Alliance, which has been highly critical when blackouts occur, praised the proposed legislation.

“After broadcasters set records for retransmission blackouts during a public health crisis over the last year, it is more urgent than ever this legislation be advanced,” said Jessica Kendust, an ATVA spokesperson. “We commend Representatives Eshoo and Scalise for their foresight and understanding that now is the time to update this nearly 30-year-old system for the benefit of American television consumers.”

“This bill has the right approach: Instead of continuing to tweak the current cumbersome and duplicative system of compulsory copyright licenses, with broadcaster retransmission consent negotiations layered on top, it would shift the video marketplace to one based purely on privately-negotiated copyright,” added John Bergmayer, legal director, Public Knowledge. “At the same time, it would eliminate a number of protectionist rules that have outlived any usefulness they may once have had.”

NAB, on the other hand, has come out in opposition against the bill, saying that it would eliminate the legal underpinnings of the local broadcast system.

“NAB continues to oppose legislation that undermines the foundation of broadcast television,” said Ann Marie Cumming, NAB senior vice president of Communications, in a statement. “Every day, Americans rely on local broadcast TV stations for news, weather, investigative journalism, public affairs programming, sports, popular entertainment and emergency information—including critical lifeline coverage of the COVID-19 pandemic during the past year. We strongly urge policymakers to work with broadcasters on preserving and strengthening a local broadcasting system that provides immeasurable service to our communities.”

WASHINGTON—Back in July, Rep. Anna G. Eshoo (D-Calif.) challenged the FCC to provide a 10-year check-up on how the commission has been enforcing the CALM Act that Eshoo introduced in 2009 regarding the loudness of TV commercials.

In a letter to FCC Chairman Ajit Pai, Eshoo says that she is not aware of any instances of the FCC bringing enforcement actions under the law. She does not believe this is because the problem has been resolved, citing “thousands of consumer complaints about loud television commercials” that the FCC has received. Eshoo also raises the question of whether the CALM Act needs to expand because of the rise in consumer video services.

As a result, Eshoo asked the FCC to provide information regarding how many complaints have been made each year since 2008 and details on the action the FCC has taken since the CALM Act was passed.

PLUS: TV Loudness: The Wild, Wild West

Pai’s response to Eshoo’s request provided such details and how the FCC deems whether a station is in compliance with the CALM Act.

Between 2011 and 2012 the number of complaints regarding loudness of TV commercials shot up from a few hundred to multiple thousands, with a peak occurring in 2013 with 16,310 complaints filed by consumers. The number of yearly complaints has decreased in 2019 to 1,877—as of July 31, the number of complaints for 2020 was at 1,241, according to Pai’s statistics.

“[T]he number of overall complaints has trended downward dramatically since 2013, which may be due to the efficacy of the CALM Act and the technical standards promulgated by our rules,” Pai said.

He also notes that since 2013, during which the FCC sent to letter of inquiries to companies over potential violations, the commission “has not uncovered any pattern or trend of complaints supporting further inquiry.”

As for providing data on whether or not the CALM Act should be expanded, Pai said that the FCC does not have authorization to tabulate radio and streaming data related to loudness.

Pai’s full response to Rep. Eshoo is available online. 

WASHINGTON—Congress has heard enough complaints from consumers about TV station blackouts from pay-TV operators and now two representatives have introduced a bipartisan bill to overhaul the 25+ year-old retransmission rules.

The 1992 Cable Act, which put into place such rules as must carry and retransmission consent have become “outdated,” according to Reps. Steve Scalise (R-LA) and Anna Eshoo (D-CA), who this week took to YouTube to introduce the “Modern Television Act of 2019.”

Among other things, while it would not repeal must carry, the act would replace retransmission consent with “traditional free market negotiations to happen under ‘traditional copyright law.’” It would also require pay-TV providers to continue to provide broadcast signals for up to 60 days after retrans agreements expired while the two parties held negotiations. It would also allow the FCC to bring a neutral third party into negotiations.

This year has seen a record number of station blackouts according to the ATVA, a coalition of consumer groups, cable, satellite and telephone companies and independent programmers. The most prominent blackouts are occuring now as AT&T has removed Nexstar and CBS-owned stations from DirecTV over disagreements on retrans. Rep. Eshoo, who TV Technology readers may remember from her advocacy for loudness rules earlier this decade, decried the current situation, likening viewers to “hostages.”

"These outdated laws aren’t just bad for the market, they’re hurting consumers,” she said. “When blackouts take place, consumers are held hostage during the disputes between the broadcasters and the cable company. This year, there have been over 200 blackouts. That’s more than double the number from a few years prior. In fact, my constituents are facing major broadcast blackouts right now. These outdated regulations end up hurting consumers in their wallets."

"It’s the end of the road for the outdated 1992 video laws,” said Republican Minority Whip Scalise. “It’s time for Congress to finally modernize these laws. Our bill goes back to basic copyright protection, so that everyone gets paid for their product, and consumers get to choose whatever they want to buy, wherever they want to buy it, whatever device they want to watch their video on."

ACA Connects, which represents small to mid-market pay-TV operators, strongly advocated the proposals.

“I applaud Reps. Scalise and Eshoo for introducing the Modern Television Act. It represents a serious and long-overdue attempt to address the increasing dysfunction in the television marketplace," said ACA Connects President Matthew Polka. "For too long, broadcasters’ greed and ability to leverage their government-granted protections have led to skyrocketing prices and broadcaster blackouts. And for too long, ACA Connects’ smaller cable system operator members have borne the brunt of broadcasters’ misconduct. The Modern Television Act promises real change and real relief for consumers."

“If the Modern Television Act were law today, tens of thousands of Americans—including many customers of ACA Connects members—would never have lost their broadcast signals. And the endless cycle of broadcaster price increases might finally stop, or at least slow down," he said.

“I am especially pleased to see that the Modern Television Act contains provisions that, at long last, would extend the FCC’s good faith rules to negotiations involving buying groups used by small cable system operators, such as the National Cable Television Cooperative."

NAB was not so thrilled.

“NAB respectfully opposes legislation introduced by Reps. Eshoo and Scalise that we believe would undermine America’s world leadership in free and local broadcasting,” the association said Thursday. “We look forward to working with Reps. Eshoo and Scalise—and other policymakers—as we strive to preserve a local broadcasting system that is the envy of the world. In an era of social media dysfunction and the loss of daily newspapers, local television remains an indispensable force for good by exposing corruption at City Hall, keeping communities safe during natural disasters and delivering the most popular source of free entertainment and sports programming.”