Congress passed the CALM in response to consumers that complained about volume spikes when commercials interrupted regular programming. From the outset, ACA has pointed out that the technical standard for volume control enshrined in the CALM Act -- ATSC A/85 - puts the burden of compliance on the cable operator in cases where the operator inserts the commercials but the compliance obligation is more limited where the insertion is performed by the upstream programmer.
ACA's outreach at the FCC has focused on the need for some protection from liability based on the needs of smaller cable providers, which do not have the financial scale of the industry's largest providers to absorb the regulatory costs of CALM Act mandates crafted within a one-size-fits-all framework.
In the FCC meeting, ACA presented evidence showing the difficulty of requiring independent cable companies to conduct loudness tests on their systems to demonstrate CALM Act compliance. ACA told the FCC that almost 85 percent of its members do not have a device enabling them to measure the perceived loudness of programming, that most ACA members lack the expertise in-house necessary to perform loudness testing, and that there is no evidence of any businesses that perform loudness testing on behalf of MVPDs.
As a result, Lieberman and Cohen explained, there would be a significant burden on smaller MVPDs that seek to avail themselves of a safe harbor -- which could be more easily used by larger MVPDs -- that requires them to test the perceived loudness of programming and commercial advertisements inserted upstream to demonstrate that they are passing through advertisements in compliance with ATSC A/85 (A/85).
ACA presented the FCC with detailed steps that would reduce the regulatory burden on smaller MVPDs to avoid liability.
For example, the FCC could accept as a valid defense that prior to receipt of a Letter of Inquiry (LOI) from the FCC, the smaller MVPD had already corrected the problem that was the basis of the LOI; or if the smaller MVPD had not been found liable for a pattern or practice of violations of the statute or regulations regarding the CALM Act in the previous three years, that it had a good faith belief that the cable programming network or third party vendor was inserting advertisements in compliance with ATSC A/85 and, within 30 days of receipt of the LOI, it corrected the problem that was the basis of the LOI.
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