Narrower CALM Act Rules Than FCC Proposed Are Sought by MVPDs and Broadcasters

The notice proposes some measures that “appear to exceed the CALM Act’s limited scope,” the NCTA said in comments. “Given this large volume of commercials and consistent with the Commission’s goal of mitigating loud commercials, the Commission should adopt rules that are readily enforceable and impose minimal administrative burdens.” That means holding cable companies responsible for “the content they create and insert” -- such as for local ad insertions into national network programming -- and companies “should not be liable for commercials that they simply receive at the headend embedded in the network programming they carry and send to their customers,” NCTA said.

The regulator should “follow the same practical, balanced approach” of the legislation, the NAB said. “As long as the station follows commercially reasonable practices to ensure compliance with Annex J” of the Advanced TV Systems Committee’s A/85 standard, “the safe harbor should cover not only commercials that the station inserts, but also those inserted by networks and third-party programming providers,” the association said. “Annex J of ATSC A/85, by its terms, does not require stations to measure the loudness of every single commercial that they transmit or to prescreen commercials obtained from networks or syndicators.”

The regulator should adopt a blanket waiver to put off the rules for all small businesses, which could include all stations in TV markets below No. 149, the NAB said. A one-year financial hardship exemption for small MVPDs should be approved by the commission, which should also consider extending the delay for another year, the American Cable Association said. “It is clear that the obligations placed on MVPDs by ATSC A/85 are much more limited” than what the rulemaking proposed, the ACA said. “That standard, at most, only requires MVPDs to be responsible for the loudness of commercial advertisements when they insert the material."

The rulemaking notice “proposes to disregard that careful balancing” of various approaches that was incorporated in the CALM Act to place “broader and more costly regulatory mandates on providers,” Verizon said. That’s “presumably in an effort to more fully address the issue of loudness than would the approach set out by Congress in the statute.” The telco sought a “straightforward and more balanced approach” in the act by not placing “total responsibility on distributors, potentially including responsibilities to monitor or correct the loudness levels for all commercials.” ACA said it knows of no equipment being sold that lets MVPDs monitor in real-time, decode and re-encode all types of content in accordance with ATSC A/85.

"To the extent the Commission concludes (wrongly, in AT&T’s view) that a MVPD is liable” for ads in all programming, the agency should allow the company to rely on contracts requiring noise levels fit with the standard, the telco said. That standard wasn’t meant “to lock stations/MVPDs into a particular network architecture, equipment or loudness management system” and AT&T’s own audio encoding standards ought to fall under FCC rules, the company said. DirecTV asked the commission to “bear in mind the practical limitations of those who would be subject to its requirements.” No gear now available can identify ads, versus other programming, measure their volume and adjust the sound level before they're transmitted to viewers, the DBS company said. “Under the Commission’s tentative interpretation, a programmer that used appropriate equipment but nonetheless inserted a commercial at an incorrectly coded loudness setting would be protected by the safe harbor, while an MVPD whose equipment operated properly to send that programming stream along could be liable for a violation.”