Parties Continue to Seek Changes to Draft CALM Act Order
Companies and industry groups continued to push for some changes to a draft order implementing a law restricting the noise levels of TV ads, ex parte notices show. The discussions came just before the FCC scheduled a vote on a report and order implementing the CALM Act at its Dec. 13 open meeting. Broadcast, cable, phone and TV programming executives met with FCC staff early this week to discuss possible changes to the order, which is reported to already give industry groups some of what they want (CD Dec 5 p9).
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One sticking point between pay-TV distributors and the FCC has been who to hold liable in the event customers repeatedly complain about the loudness levels of ads that are passed through with programming. “If an MVPD performs tests on networks for which the Commission has received a pattern of complaints and notifies the Commission and the network of any problems it discovers, the MVPD has done all it can reasonably do to comply with the [ATSC] A/85 Recommended Practice,” Verizon executives told FCC officials in meetings Monday, an ex parte notice shows (http://xrl.us/bmkfux). Distributors “should not be held liable if commercials inserted by programmers still do not conform to the Recommended Practice,” the notice said.
In meetings with aides to Commissioners Mignon Clyburn and Michael Copps, the American Cable Association proposed some language for the order that would give smaller pay-TV operators some leeway in responding to letters of inquiry from the commission as a result of loudness complaints from viewers, ex parte notices show (http://xrl.us/bmkfu5). The language calls for the FCC to accept as a valid defense a showing that the MVPD had already corrected the problem prior to receiving the letter. And it would let smaller MVPDs that hadn’t been found to be in violation of the rules for the previous years, assert it had good-faith belief that its programming suppliers were in compliance with A/85, and correct the problem within 30 days, the notice said.
The NAB sought clarity on how broadcasters should handle political candidate ads if they're too loud, an ex parte notice shows (http://xrl.us/bmkfuk). Such ads, in the run-up to federal elections, are covered by a no-censorship provision of the Communications Act. “Broadcast stations may need to adjust the audio level of some advertising by political candidates” in order to comply with the FCC’s CALM Act rules, NAB lawyers told Eloise Gore, associate chief of the Enforcement Bureau, the notice said. That’s an issue the FCC needs to specifically address in the order, the ex parte said.
Meanwhile, Starz asked the FCC to exclude a network’s promotional spots from the rules, an ex parte notice shows (http://xrl.us/bmkfu7). “The short promotional announcements of Starz’s various program offerings that Starz airs on its programming networks do not qualify as ‘advertisements’ or ‘commercial matter’ as those terms are defined” in the Communications Act and in FCC rules, the notice said. And whatever definition of commercial advertisements the FCC adopts in this context, its use should be limited to CALM Act compliance matters, Starz said. “The CALM Act definition of commercial advertisements should not affect the definition and/or regulation of advertising/commercial matter in other contexts,” it said.