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ACA Urges FCC To Implement CALM Act Without Undue Cost Burdens

The American Cable Association called on the Federal Communications Commission to implement the CALM Act in a manner that minimizes cost burdens on independent cable operators in their effort to embrace specific digital broadcast television practices that will equalize the volume level between commercials and regular programming.

"Independent cable operators agree that jarring volume spikes at commercial breaks are a concern to consumers, although these annoyances have largely gone away with the industry's adoption of new technologies and practices in recent years," ACA President and CEO Matthew M. Polka said.

With President Obama's signature, the Commercial Advertisement Loudness Mitigation Act became law on Dec. 15, 2010.  Regulations adopted under it by the FCC are intended to ensure commercials are not louder than regular programming.  The law incorporates and makes mandatory, subject to waivers, the Recommended Practice:  Techniques for Establishing and Maintaining Audio Loudness for Digital Television (ATSC A/85) approved by the Advanced Television Systems Committee (ATSC).

"The CALM Act seeks to address remaining concerns about loud commercial advertisements in a targeted manner.  That said, implementation of the CALM Act, including obligations to deploy, utilize, and maintain equipment, as well as the structure of the complaint process, could place costly compliance burdens on independent cable operators, even ones not directly involved in the insertion of advertisements. In adopting its regulations, the FCC should seek to avoid imposing any undue burdens on these operators," Polka added.

In comments filed July 8, ACA stressed that pay-TV providers should be allowed to comply with the statute in multiple ways given the fact that there is not equipment on the market that permits real-time monitoring, decoding, and re-encoding of commercial advertisements. ACA also noted that because ATSC A/85 is a digital standard, analog cable systems are not affected.

In its comments, ACA explained that most of its members do not insert any commercial advertisements.  Rather, most advertisements shown on ACA member systems are inserted by broadcasters and national cable networks.  These cable operators simply pass through the programmers' feeds, including their inserted commercials, to their customers.  ACA stressed that it is not appropriate to hold these cable operators responsible for commercials that they do not insert themselves.

With regard to ACA members that insert commercials, ACA noted that most utilize a third-party vendor  and that the vendor assumes responsibility for ensuring that the inserted commercials conform with the ATSC A/85 standard.  ACA members that insert commercials deploy, utilize, and maintain the necessary equipment to ensure that the volume level of these commercials is not louder than the preceding programming.

ACA urged the FCC to reconsider its tentative view that CALM Act requirements must be met by only the pay-television provider and not a third party.  In case the FCC decides that ATSC A/85 indeed applies to pay-TV providers just passing through programming with commercial advertisements inserted by a programmer, it should find in favor of compliance if the pay-TV provider has a good faith expectation that these commercial advertisements conform with ATSC A/85.

The FCC should also find that a pay-TV provider is complying with the CALM Act if the pay-TV provider has a good-faith expectation that the third-party vendor inserting commercials is conforming with ATSC A/85 requirements.  For ACA members that insert commercials themselves, the FCC should find that installing, utilizing, and maintaining equipment to ensure inclusion of appropriate dialnorm metadata is enough to be in compliance.

Because of the subjective nature of loudness, ACA is also recommending that complaints filed under the CALM Act should supply verifiable information about the date and time when the commercial advertisement was shown, along with the name of the network and a description of the advertisement, including, if possible, the extent to which the advertisement was louder than the long-form content.

ACA also suggested that if a small cable company is found to violate the statute, penalties should be limited unless a pattern of noncompliance can be demonstrated.

Lastly, ACA asked the FCC to grant an automatic one-year financial hardship waiver to small cable providers that certify the need to install, utilize, and maintain any equipment to ensure compliance with ATSC A/85, even if the CALM Act just covers the insertion of local advertisements.

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