Cable operators—using controlled but insistent modulation— are telling the FCC that they can’t be the ones to monitor millions of TV commercials to make sure they are not too loud.
In comments to the commission’s implementation of the CALM (Commercial Advertisement Loudness Mitigation) Act, the National Cable & Telecommunications Association took issue with the FCC suggestion that local cable operators play the part of the TV volume police. The commission proposes operators should be responsible not only for local commercials they insert into programming, but national ads on TV stations they retransmit as well.
The CALM Act regulates the varying levels of loudness of commercials on broadcast and cable TV.
The bill passed last Dec. 15 and gave the FCC a year to complete the implementation rulemaking. It still needs to get the proposed implementation regime vetted by the public and the Office of Management and Budget (since the law adds paperwork) and published in the Federal Register before it is official, after which the industry has another year to comply.
NCTA officials counter that if the FCC expects it to be responsible for the loudness of national commercials, operators should be able to do so through contractual assurances from programmers or advertisers.
NCTA and the American Cable Association agreed that the FCC should provide waivers to smaller systems, particularly ones that do not feature local ad insertion.
The FCC notice proposes to make cable operators responsible for all commercials transmitted by stations or programmers, according to the NCTA; the association argues that this exceeds its statutory mandate. The FCC would also make cable operators responsible for monitoring and correcting feeds.
“[O]ne large MSO inserts more than 4 million commercials every day,” says the NCTA. “Given the number of channels and volume of commercials, it would be impossible for cable operators to actively monitor all of those channels.”
And even if they could, added the cable association, operators don’t necessarily have the equipment to modify the commercials to bring them into compliance. And then there are the programmer contracts that prevent operators from adjusting volume in a digital network feed.
The FCC has put a “safe harbor” in the bill, specifying that “any broadcast television operator, cable operator, or other multichannel video programming distributor that installs, utilizes, and maintains in a commercially reasonable manner the equipment and associated software in compliance with the regulations issued by the Federal Communications Commission” is deemed in compliance. NCTA wants the FCC to interpret that as meaning that so long as cable operators have the equipment to keep their own commercials from pumping up the volume, they should be deemed in compliance.
But the NCTA believes it should not be responsible for either PEG programming or broadcast programming, neither of which they exercise any editorial control over.
Given the subjectivity of complaints, the association says that the FCC should establish a threshold number before it passes that complaint along to the operator for a response. “The Commission should make clear that a customer’s simple belief that a commercial is loud is insufficient to find a violation of the rule or to trigger a process of investigation,” the NCTA writes.
Like the undigested bit of beef that may have been responsible for Marley’s ghost, the NCTA suggests that there are other reasons for the appearance of overly loud commercials. “For example, a commercial that is fully compliant with the rule may sound louder than the programming content simply because the commercial break may occur at a particularly quiet part of a program,” it says.
The FCC said it will add a “commercial loudness” category to its menu of complaints over “Broadcast (TV and Radio), Cable, and Satellite Issues.”
And given the number of commercials operators have to deal with, they are asking the FCC for a break when it comes to the occasional slip, saying that a fine should only be levied in cases where there was “a pattern and practice of willful and repeated violations.”
Pointing out that Congress provided for waivers of the effective date of the CALM Act rules for smaller operators for which the necessary new equipment could be a financial hardship or for other “good cause,” NCTA, thinking out loud, said the commission should extend blanket waivers for systems with fewer than 15,000 subs, as the FCC had suggested, and also to systems that do not insert local ads.
ACA agrees that smaller operators should get blanket financial hardship waivers and be able to use ! nancial hardship as a justification for good cause waivers however it decides to apply the CALM Act to larger operators.
The association wants smaller operators to get a general one-year waiver, and the FCC should consider extending it to two.
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