FCC Draft Limits What Smaller MVPDs, TV Stations Must Do to Keep Ads Quiet
Smaller TV stations and multichannel video programming distributors get a break from having to test the noise levels of ads that others insert into shows they carry. MVPDs with fewer than 400,000 subscribers and TV stations with annual sales below $14 million won’t need to regularly test the volume levels of all ads, and only monitor those they insert into programming. Bigger stations and systems would need to do testing to ensure programming from national cable channels or broadcast networks meets the Advanced TV Systems Committee’s A/85 recommended practice for keeping ads not much louder than the regular programming they appear within.
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FCC and industry officials told us about the provisions in a draft Media Bureau order on the CALM Act. It’s due to be voted on by Dec. 15, when the law requires the agency to adopt rules. Bureau officials in recent weeks had spent much time working on the draft order (CD Nov 10 p5), which some MVPDs still hope will be changed to further reflect the companies’ concerns, industry and agency officials said. A bureau spokeswoman declined to comment on the draft. Agency and industry officials said it circulated late last month.
MVPDs big and small and TV stations of all sizes get some of what they sought as they lobbied in recent weeks about rules implementing the 2010 legislation. That lobbying continued last week, with both DBS companies seeking ways to avoid what they called the “heavy burdens” of the legislation. (See separate report in this issue.) The American Cable Association has also been actively lobbying on the issue, with an executive sharing the ACA’s concerns last week with an aide to Commissioner Michael Copps. A Verizon executive told an aide to Commissioner Robert McDowell that the forthcoming rules should account for the different rules A/85 assigns to MVPDs and programmers. MVPDs and TV stations only want to be responsible for the volume of ads they insert, not all spots they carry. Ex parte filings from the ACA, DirecTV, Dish Network and Verizon were posted Wednesday through Friday to docket 11-93 (http://xrl.us/bmj3s5).
The draft order accounts for industry concerns. It lets MVPDs and TV stations get certifications from programmers that the ads they're carrying conform with the loudness standards. When a video distributor can’t get such certification, in some cases they need to check the volume of some ads in the programming stream to make sure they comply. That’s according to agency and industry officials, as ways to take advantage of the safe-harbor provisions of compliance.
MVPDs with more than 10 million subscribers would need to check with some regularity all programming they carry when there’s not a certification from the content provider, agency and industry officials said. That rule would cover Comcast, Time Warner Cable, DirecTV and Dish. Pay-TV companies with between 400,000 and 10 million subscribers each would need to test with some regularity at least half of programming that’s not certified, an FCC official said. Subscription-video providers with less than 400,000 customers throughout their systems wouldn’t need to do such periodic testing, agency and industry officials said.
When the FCC sends an MVPD or TV station a letter of inquiry asking about a pattern of consumer complaints about loud ads, the LOI recipient would have to do some testing to see if the programming stream is compliant, agency and industry officials said. If the tests show compliance, the FCC wouldn’t take action against the video provider or broadcaster. If the tests don’t show compliance, there would be two more opportunities to do more testing, and only after a third failure could the FCC take enforcement action.
Smaller MVPDs are worried they lack a way to do such tests because they don’t have the proper equipment, the ACA continued to tell the agency. Almost 85 percent of ACA’s members fall into that category, the association said (http://xrl.us/bmj3tw). And “there is no evidence of any businesses that perform loudness testing on behalf of MVPDs,” the filing said. FCC officials are aware of the challenges small MVPDs and broadcasters face and are trying to take them into account, agency and industry officials said. “As industry continues to roll out the implementation of the A/85 Recommended Practice, the likelihood of consumers experiencing problems with the loudness levels of commercials will continue to diminish, and with it any need for more burdensome approaches to ensuring compliance,” Verizon said (http://xrl.us/bmj3t6). It said it generally backs “an interpretation of the CALM Act’s safe harbor provision that would appropriately take into account the roles assigned by the A/85 Recommended Practice for the various players in the video creation, aggregation, and distribution chain in addressing the loudness levels of commercials.”