Eshoo: CALM Act Meant to Apply to Promos

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

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

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.

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.

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.

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.

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."

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.