FCC adopts CALM rules

The FCC voted unanimously this week to issue rules for comprehensive content loudness control across broadcast, network and pay television outlets. The vote came exactly a year after Congress passed the Commercial Advertisement Loudness Mitigation (CALM) Act and President Barack Obama signed it into law.

With the legislation, Congress gave the FCC authority to address the problem of excessive commercial loudness. The rules go into effect in exactly one year. The rules adopted by the FCC require that commercials have the same average volume as the programs they accompany. They also establish simple, practical ways for stations and MVPDs to demonstrate their compliance with the rules.

The FCC said the one-year advance time provides ample time for programmers and networks to provide their distributors with certifications stating the commercials that accompany their programming are fully compliant with the new rules. These certifications, though not mandatory, will simplify the safe harbor process for all stations and MVPDs, the FCC said.

The new rules are based on the Advanced Television Systems Committee's (ATSC) A/85 Recommended Practice ("ATSC A/85 RP") to transmit commercial advertisements. The recommended practice is a set of methods to measure and control the audio loudness of commercials and programming.

"The order requires that all stations and MVPDs comply with both the local commercials they insert and with the embedded commercials they pass through as part of programming supplied by a network or programmer," Lyle Elder of the FCC's Media Bureau policy division told the FCC members. The FCC's enforcement bureau will notify stations and MVPDs of potential noncompliance if it receives "a pattern or trend" of consumer complaints, Elder said.

Since retroactively demonstrating compliance may be difficult, Elder continued, the FCC provides two methods by which entities may equally demonstrate ongoing compliance. With locally inserted commercials, stations and MVPDs must demonstrate that they installed, utilized and maintained the loudness monitoring equipment and software in a commercially reasonable manner. If they do, they will be deemed in compliance with the rules.

For embedded commercials, the order provides an alternative safe harbor approach. It involves a combination of certification by programmers and spot checks by distributors. 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 MVP certifies the compliance of its own equipment to transmit the program to consumers, Elder said.

The FCC will rely on complaints by consumers, but warned they must be very specific with detailed information allowing the commission to identify the specific distributor, program at issue and commercial. "As a general matter, non-specific complaints will not be actionable," the Commission said.

"I'm pleased that we have crafted a process that will protect consumers from inappropriately loud commercials, while remaining sensitive to resource constraints of small broadcasters and subscription TV providers," said FCC chairman Julius Genachowski. "As the CALM Act requires, these rules will go into effect no later than one year from today. This will provide stations and MVPDs ample opportunity to prepare for full compliance."

Dennis Wharton, executive vice president of communications at the NAB said the FCC "struck the right balance in implementing the CALM Act."