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ACA Urges FCC To Recognize CALM Act's Limited Reach Over Cable Operators

The American Cable Association urged the Federal Communications Commission to recognize that under a new federal statute popular with TV viewers, Congress crafted only a limited role for cable operators to protect consumers from annoying volume spikes when commercials start to interrupt regular programming.

"ACA believes the law requires cable operators to exercise control over the volume level of commercials that they insert on their own or with the assistance of third parties.  But the law does not impose as broad a mandate regarding commercials embedded in upstream cable and broadcast programming that is merely passed through to subscribers by local operators,"ACA President and CEO Matthew M. Polka said.

ACA's view of the requirements of the Commercial Advertisement Loudness Mitigation Act (CALM Act) came in reply comments filed Aug. 1 with the FCC, the agency responsible for implementing the law in a rulemaking.  FCC regulations are intended to ensure that consumers do not need to reach for their remotes just to reduce the volume of loud commercials that break into TV shows.

ACA's comments with regard to CALM Act implementation accorded with the views of a diverse group of industry participants - ranging from AT&T, the National Association of Broadcasters and the National Cable & Telecommunications Association - that believes the statute's mandates are limited but would nevertheless effectively address concerns about loud commercials.

The CALM Act 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).

In its new comments, ACA explained that the A/85 standard is essentially a digital broadcast TV standard with limited applicability to cable operators and that overbroad interpretations of A/85 requirements can be technically infeasible and would impose heavy cost burdens on cable operators, particularly small companies that have great difficulty recovering the cost of expensive equipment from a limited number of subscribers on a companywide or single headend basis.

"The A/85 standard does not apply to analog transmissions by cable operators, for instance," Polka noted. "Likewise, the law places only a limited obligation on cable operators to pass through the dialnorm metadata in commercial advertisements inserted upstream by programmers and notify the content supplier if the audio produces loud advertisements."

To create a balanced regulatory scheme fair to both consumers and cable operators, ACA recommended that cable operators be found in compliance when just passing through ads on broadcast TV if they have deployed equipment that will pass through dialnorm metadata in digital transmissions from the programmer to customer premises equipment using the so-called AC-3 system.

With regard to other programming networks, compliance should be found if cable operators have deployed equipment that passes through dialnorm metadata in digital transmissions from the programmer to customer premises equipment, again using the AC-3 system, and the operators have a good faith expectation that the programmers are inserting their commercial advertisements in conformance with the A/85 standard.

ACA stressed in its reply comments that regulations should also aim for a balanced approach in establishing a complaint process to ensure the goals of the CALM Act are being achieved in a cost-efficient manner. Among other things, ACA enumerated several factors that should underpin a valid complaint reviewed by the FCC.

For example, ACA said a complaint should be filed in a timely fashion and must demonstrate more than a mere belief that a commercial advertisement is loud; a complaint proceeding should be triggered only when there is a pattern of noncompliance and not by a claim that a single commercial advertisement is loud; and cable operators should not be liable for loud commercial advertisements on programming over which they have no responsibility, such as public, educational and governmental (PEG) access channels and commercial leased access channels.

ACA added that cable operators should have flexibility in providing documentation to support compliance and should not be required to collect and store large amounts of data, and that there should be no or at most minimal fines and forfeitures unless there is a pattern of willful noncompliance.

Lastly, ACA urged the FCC to provide waivers permitted by law to financially constrained small cable operators to prevent hardship derived from having to buy and install costly equipment needed to comply with CALM Act mandates.

"Because smaller cable systems may face greater challenges in having the financial resources to purchase equipment, ACA is seeking a blanket financial hardship waiver for small cable operators for a one-year period and asking the FCC to consider extending that blanket waiver for an additional year," Polka said.

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