• FCC Adopts Rules to Prevent Loud Commercials
  • December 28, 2011
  • Law Firm: Lerman Senter PLLC - Washington Office
  • The Federal Communications Commission has adopted new rules requiring digital TV broadcasters, digital cable operators, and other digital multichannel video programming distributors (“MVPDs,” collectively “licensees and operators”) to transmit commercials and adjacent programming at the same volume.  The new rules follow last year’s enactment of the Commercial Advertisement Loudness Mitigation Act (the “CALM Act”).

    The new rules do not take effect until December 13, 2012.  However, as compliance with the new requirements may require the purchase of additional equipment and adherence to additional technical standards, licensees and operators should begin to familiarize themselves with the new rules now.  As a first step, licensees and operators should become familiar with the ATSC Recommended Practice:  Techniques for Establishing and Maintaining Audio Loudness for Digital Television (A/85) (the “RP”), a technical standard developed by the Advanced Television Systems Committee to prevent large variations in volume between different types of content.  The FCC incorporated the RP by reference into its new rules, as required under the CALM Act.  The most current version of the RP, released July 25, 2011, is available on the ATSC website.

    Key aspects of the rules include:

    • The rules apply to all digital TV broadcasters, digital cable systems, and other digital MVPD operators.  They do not apply to analog broadcasters or analog MVPDs, or to non-commercial broadcasters except to the extent that they transmit commercial advertisements as part of a digital “ancillary or supplementary service.”

    • Licensees and operators are responsible for ensuring that all commercials - regardless of content or duration and regardless of whether the commercials are locally inserted or embedded by a program supplier - comport with the RP.  Political advertisements, promos for television programming, and program-length commercials are not exempt from the rules.

    • Licensees and operators will be deemed to be in compliance with regard to locally inserted commercials if they use equipment that measures the loudness of the content and ensures compliance with the RP.  To demonstrate compliance, a licensee or operator must be able to:  (i) provide records showing the consistent and ongoing use of such equipment in the regular course of business; (ii) provide records showing that the equipment has undergone commercially reasonable periodic maintenance and testing to ensure its continued proper operation; and (iii) certify that it either has no actual knowledge of a violation of the RP (or that it took steps promptly to remedy any violation when it was observed).  Licensees and operators will not be deemed to be in compliance with the rules as to locally inserted commercials if they have knowledge of a violation but fail to correct the problem promptly.

    • Embedded commercials can be brought into compliance with the RP through the use of real-time processing equipment that limits the dynamic range of programming.  Given the technical and practical limitations of this approach, however, the FCC adopted an alternative “safe harbor” option to demonstrate compliance, under which a licensee or operator must:  (i) obtain certifications of compliance from program suppliers; (ii) conduct annual spot checks of non-certified programming to ensure compliance with the RP; and (iii) conduct spot checks of specific channels if the FCC provides notice of a pattern or trend of complaints concerning a particular program supplier.  Annual spot checks will not be required for all program suppliers, and may be phased out over time.

    • A waiver of the new rules is available for up to two years for financial hardship if a licensee or operator would face financial hardship in obtaining the equipment required for compliance.  To request a waiver, a licensee or operator must provide:  (i) evidence of its financial condition; (ii) a cost estimate for obtaining the necessary equipment to comply; (iii) a detailed statement explain why its financial condition justifies postponing compliance; and (iv) an estimate of how long it will take to comply.  “Small” broadcast stations, which are defined as stations with no more than $14 million in annual receipts or located in television markets 150 to 210, may obtain a waiver by certifying that they meet one of these two criteria and that a delay in obtaining the necessary equipment is needed to avoid the financial hardship that would be imposed if they had to obtain the equipment earlier.