Editorial: CALM Before the Calm

Starting in December, in time to catch at least some of the holiday
rush of toy commercials, cable operators and broadcasters will
have to be in compliance with new rules under the Commercial
Advertisement Loudness Mitigation (CALM) Act. That is the law
that prevents commercials from being delivered at greater volume
than the programming that surrounds them.

We know it is an added compliance and monitoring
burden for broadcasters and cable operators.
But for viewers, broadcasters and cable operators, it
is a public service to ringing ears everywhere.

The FCC’s solution may not have been perfect,
but the agency was under a congressional mandate
to come up with an enforcement regime.
And the FCC took industry input into account in
modifying the final rules when it adopted them
last December.

In addition, the bill was also modified from its
original form to give the industry more time to
implement—until December 2012—
and to make an industry-backed engineering
standard the new rule of
the quieter road.

Under the rules, cable operators
are responsible for the volume of
both national and local commercials.
TV stations will also be responsible
for the national network and syndicated
spots, as well as local ads,
both on broadcast and on the signals
they deliver to cable operators. That
means if a cable operator delivers a
TV station spot that violates the regs,
it is the broadcaster, not the cable
operator, that is responsible.

Both broadcasters and cable operators
were concerned about having to monitor
all those ads. The FCC’s eventual order implementing
the rules—which it passed unanimously
in December 2011—includes some flexibility for
operators and stations in complying with that
responsibility for the embedded ads they pass
along from program distributors up the chain.
They are considered in compliance if they “install,
utilize and maintain” the requisite equipment
and software, or if they have a certification
from the distributor of the ad that it complies
with the recommended ATSC standard that the
FCC is making mandatory.

That was needed flexibility for which the FCC
deserves a shout-out—oops, make that praise of
a reasonable volume no louder than the rest of
this editorial.

Larger cable operators are required to do annual
spot-checking of commercials for the first
two years, after which the requirement sunsets.
Smaller operators and stations will not have to
spot check, but stations and operators of all sizes
must test in response to a “pattern or trend”
of complaints—rather than, say, a single complaint—
involving their station or system.

Smaller operators also have the opportunity to
seek hardship waivers and will not be required
to purchase equipment, though they will still be
responsible for any proven violations. The carveout
for smaller operators was important, given the
relatively greater burden that compliance is on ops
without a lot of discretionary time or money.

And it was important to signal that a single
nuisance complaint—sometimes it is not the volume
of the spot that is annoying, but that is the
subject of another editorial—is not able to trigger
the substantial compliance burdens.

While cable operators have argued that promo
spots were not meant to be covered by the rules,
that argument appeared to fall on ears deafened
by loud commercials. Rep. Anna Eshoo (D-Calif.),
the driving force behind the bill, said recently
that she absolutely meant the law to apply
to network promos, and we don’t expect the FCC
to find differently.

With due deference to the added compliance
burden of monitoring ad-free networks for their
promos—something cable operators pointed
out—viewers don’t draw distinctions between
commercial spots and promos. And if the CALM
Act works as planned, it will be a net positive for
viewers and for the TV brand. That said, the FCC
should not be heavy-handed in its enforcement.
It has the big stick of potential enforcement actions,
so it should speak softly.

We support turning down the volume on commercials,
and we hope this is the right way to do
it. As is often the case, we would have preferred
that the problem be solved without governmental
intervention. But that is a moot, or should
that be “mute,” point. It is time to for the government
and industry to make it work.