Eshoo: CALM Act Meant to Apply to Promos

Tells FCC that her congressional intent was not to provide carve-out for promotional material

By John Eggerton -- Broadcasting & Cable, 9/5/2012 3:14:39 PM

CALM Act author Anna Eshoo (D-Calif.) wrote the FCC Wednesday (Sept 5) to say that her congressional intent was for promos to be included in the Act's restrictions on commercial loudness.

That came in response to a petition by the National Cable & Telecommunications Association Aug. 8, asking the FCC to reconsider parts of the act, which goes into effect in December.

The Commercial Advertising Loudness Mitigation (CALM) Act requires broadcasters and cable operators to insure that the volume of ads is not noticeably louder than the surrounding entertainment fare.

NCTA argues that promotional material was not meant to be included in the definition of commercial advertisement, but Eshoo begs to differ. "The difference between promotional materials and other forms of advertising would not be readily apparent to a consumer, and thus should not be treated differently in the context of the commission's rules," she wrote in a letter to FCC Chairman Julius Genachowski that she asked be made a comment in the proceeding. "[T]he plain language of the law does not provide a blanket exemption from promotional advertisements, nor did legislative debate on this subject infer such an exemption," she added.

She suggested NCTA was simply trying to carve out as much of the ad territory from the rules as it could. "The NCTA seeks to create a special class of advertising based on the desire to exclude as many advertisements as possible from the FCC's rules," she said.

In its petition, NCTA asked the FCC to: "[L]imit its rules to "commercial advertisements," rather than also including promotional material; (2) clarify that a cable operator will not be held liable in instances where, after performing spot checks of embedded network advertising, the operator has notified that network and the Commission of the network's non-compliance; and (3) not prohibit cable operators from contacting program networks when performing spot checks."

It said that applying the requirement to promos would increase compliance burdens, but Eshoo said that was not a reason not to apply it. "[T]elevision viewers have a reasonable expectation that compliance of the CALM Act's rules will be consistent across all commercial networks, including non-advertiser supported networks. NCTA had pointed out that including promos would result in spot testing for an additional 40 nets that are not ad-supported.