FCC Approves CALM Act Order to Lower TV Ad Volumes
The FCC unanimously approved at its Tuesday meeting an order implementing the CALM Act that incorporates a “safe harbor” approach backed by cable operators to lower the volume of pay-TV and broadcast ads without unduly burdening industry. The regulation also exempts smaller TV stations and multichannel video programming distributors (CD Dec 5 p9), although they may be required to perform spot checks if consumers complain to the commission.
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The order gives broadcasters and pay-TV systems two methods of complying with the CALM Act. For locally inserted commercials, they may demonstrate that they used software in a commercially reasonable manner. For embedded commercials, the FCC adopts a safe harbor approach that involves a combination of certifications by programmers and spot checks by distributors, said Lyle Elder, attorney advisor in the Media Bureau’s Policy Division, at the FCC meeting.
The rules let broadcasters and cable operators rely on a programmer’s certification that commercial advertisements and their surrounding programming meet the Advanced TV Systems Committee’s A/85 recommended standards for tempering ad volumes. A certified programmer must make that certification available to all distributors, in order to promote a level playing field, Elder said.
Outside the safe harbor, TV stations with more than $14 million in annual receipts and the four MVPDs with more than 10 million subscribers -- Comcast, Time Warner Cable, DirecTV and Dish -- must perform annual 24-hour spot checks of all channels that contain non-certified programming. Pay TV systems with 400,000 to 10 million subscribers, the 5th to 15th largest MVPDs, must spot check 50 percent of non-certified programming each year. “This will increase the likelihood that at least one entity is spot checking all non-certified programming,” Elder said. After two years, they may end spot checks as long as the FCC sees no evidence of non-compliance.
The smallest broadcasters and MVPDs are exempt from spot checks, unless the FCC receives complaints, in which case they must perform a 24-hour spot check, regardless of whether the programming is certified or not. If a spot check indicates that a programmer is failing to comply with the A/85 requirements, the distributor must notify the commission within seven days and perform a follow-up spot check within 30 days. The new rules will take effect on Dec. 13, 2012. “This additional year affords stations and MVPDs ample time to prepare for compliance, and gives programmers time to certify,” Elder said.
American Cable Association President and CEO Matt Polka commended the FCC and CALM Act sponsor Rep. Anna Eshoo, D-Calif., for addressing a common viewer complaint, while urging the commission to continue to guard against undue burdens on smaller operators. “After the FCC releases its order, ACA hopes to see this reflected in the adopted rules,” Polka said in a statement.
NAB spokesman Dennis Wharton expressed support for the decision. “We think the FCC struck the right balance in implementing the CALM Act and look forward to working with them going forward,” he said. NCTA spokesman Brian Dietz was slightly more cautious: “We appreciate the FCC’s willingness to consider less burdensome alternatives for complying with the Act, and look forward to reviewing the details of the order."
Consumers Union’s Communications Policy Counsel Parul Desai said, “We're glad that consumers are finally going to get some relief from extra-loud TV ads. People have been complaining about the volume on TV commercials for decades. The law is a relatively simple and straightforward measure that has really struck a chord with consumers."
Ad volume has ranked as a top complaint in 21 of the FCC’s 25 quarterly reports between 2002 and 2009, noted Eshoo’s office after the meeting. “TV stations now have the responsibility to turn down the volume on excessively loud commercials, and it’s about time,” she said. “The law I wrote is simple -- the volume of television commercials cannot be louder than regular programming. Households across the country will soon get the relief they deserve from the annoyance of blaringly loud television commercials."
The meeting provided an opportunity for some levity, with Commissioner Robert McDowell noting, “From this point forward, TV commercials -- including those for Oxy-Clean, HeadOn and the like -- will never be the same.”
It was the last open meeting for Commissioner Michael Copps, who will be retiring by the end of the year. “I want to acknowledge Commissioner Copps’ deep and abiding commitment to public service,” said Chairman Julius Genachowski. “This is apparent from his own life and career choices.”