The FCC has issued a Notice of Proposed Rule Making to implement the Commercial Advertisement Loudness Mitigation Act (CALM Act), which the president signed in December. The CALM Act, intended to lower the volume of TV commercials, did not itself change any rules. Instead, it instructed the FCC to make those changes. This activity follows the action of the ATSC during the DTV transition, when it devised a recommended practice for establishing and maintaining audio loudness (the ATSC A/85 RP). While the ATSC A/85 RP was initially just recommended, Congress stepped in — via the CALM Act — and ordered the FCC to impose that Recommended Practice (RP) as a mandatory standard.
The ATSC A/85 RP assumes that the transmission system includes audio compression capability consistent with the Dolby AC-3 DTV audio standard. Because that standard is included in ATSC Standard A/53 (the overall Digital Television Standard incorporated by reference in Section 73.682(d) of the commission's rules), DTV broadcasters are already subject to the standard. Some but not all MVPDs (e.g., cable and satellite operators) also use that standard, and that complicates things. Additionally, programming is often not produced by the broadcaster or MVPD operator that would ultimately be subject to the new rules. That, too, adds a level of complexity to the implementation of the CALM Act.
Further, the ATSC A/85 RP is based on a recommended measurement algorithm developed by the International Telecommunication Union Radiocommunications Sector. That algorithm (ITU-R Recommended BS.1770) provides a loudness measure standard, i.e., a numerical value indicating the perceived loudness of any particular audio content. That value is then encoded as a metadata parameter — called the dialog normalization or dialnorm — in the audio content of the programming. According to the commission, “the dialnorm value must correctly identify the perceived loudness of the content it accompanies in order to prevent loudness variation during content transitions on a channel (e.g., TV program to commercial) or when changing channels. If the dialnorm parameter is set properly, the transmitted signal (which includes the dialnorm metadata) instructs the AC-3 audio decoder in the consumer's home receiver to automatically adjust the volume to eliminate loudness spikes during content transitions such as commercial breaks.
Safe harbor opportunity
In applying these standards, TV stations and MVPDs will have to ensure that the dialnorm settings for their commercial content are set correctly. This can be done through loudness measurement devices and software, file-based scaling devices, or real-time loudness processing devices — as long as the chosen mechanism can measure loudness using the ITU-R BS.1770 algorithm. If such providers do install proper equipment — and use and maintain that equipment in a “commercially reasonable” manner — they will enjoy a safe harbor. That is, they will be deemed to be in compliance should any complaints about loud commercials be made against them. The cost of the equipment to provide this capability could cost between $5000 and $20,000.
Also, the FCC suggests that it might permit TV stations and MVPDs to demonstrate, in response to a complaint about loud commercials, that the dialnorm of the complained-of commercial did in fact match the algorithm-generated perceived loudness value for that commercial.
Burden on video provider
The CALM Act places that burden on the TV licensees and MVPDs to police the airwaves against loud commercials despite the fact those licensees and MVPDs rely on a variety of others to produce the programming that they transmit. To protect themselves from inadvertent commercial blasts, TV licensees and MVPDs may want to include contractual provisions (including indemnification clauses) in their programming contracts. Such provisions would not relieve the licensee/MVPD of legal responsibility for a loud commercial, but could force the provider to pay any fine that might be assessed.
- Noncommercial TV stations in Illinois and Wisconsin must file their biennial ownership reports by Aug. 1.
- By Aug. 1, TV and Class A TV stations in the following locations must place their 2011 EEO reports in their public files and post them on their websites: California, Illinois, North Carolina, South Carolina and Wisconsin.
Harry C. Martin is a member of Fletcher, Heald and Hildreth, PLC.
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