NAB Files Comments in Commercial Advertisement Loudness Mitigation Act (CALM Act) Notice of Proposed Rulemaking

On May 27, 2011 the FCC issued a Notice of Proposed Rulemaking seeking comment on how to implement the Commercial Advertisement Loudness Mitigation Act ("CALM Act") in order to deal with the perceived loudness of television commercials. NAB filed comments on July 8, 2011 that asked the FCC to establish commercially reasonable rules.

In 2009, the ATSC published a Recommended Practice (ATSC A/85) which provides guidance on the proper production and encoding of AC-3 audio. Congress, in the CALM Act then directed the FCC to incorporate into its rules by reference and make mandatory use of A/85 ( and any successor thereto) to mitigate excessively loud commercials in television transmissions. After that Act was passed, the ATSC added Annex J to A/85 to specifically set forth all necessary steps to effectively control the loudness of commercial advertising in AC-3 bit streams transmitted by broadcast television stations (and others). According to Section J.1 of ATSC A/85, Annex J "contains all the courses of action necessary to perform effective loudness control of digital television commercial advertising."

ATSC A/85 Exhibit at the 2011 NAB Show

The CALM Act outlined a safe harbor for stations to be deemed to be in compliance with the FCC rules for implementing the CALM Act if the station installs, utilizes, and maintains in a commercially reasonable manner the equipment and associated software necessary to comply with the ATSC A/85 Recommended Practice.

NAB's comments specifically encouraged the Commission to: (1) confirm that television stations will be subject only to the requirements of Annex J in ATSC A/85; (2) focus on commercially reasonable efforts when applying Annex J's requirements and the CALM Act's safe harbor compliance provision; (3) adopt a blanket waiver for small businesses and small markets and apply a reasonable deadline for requesting waivers in advance; (4) avoid any interpretation requiring stations that qualify for the safe harbor to demonstrate compliance on a per-commercial basis.

NAB specifically advocated that a station's practices should be deemed "commercially reasonable" if the station:

• obtains and readies for use equipment that measures the loudness of commercials transmitted to consumers consistent with ATSC A/85 Annex J;
• for commercials that the station inserts, uses the equipment in the ordinary course of business to properly measure the loudness of the content and to ensure that the dialnorm metadata value correctly matches the loudness of the content when encoding the audio into AC-3 for transmitting the content to the consumer;
• for commercials inserted by third-party programming providers, (1) contractually requires that the third-party make the measurements of the loudness of the commercials and the program content in a manner that is compliant with ATSC A/85 Annex J; (2) contractually requires that the third party either communicate the measured values to the broadcaster or conform the audio to a uniform loudness value; and (3) performs regular quality control measurements of the delivered audio to ensure that the third-party programming provider is meeting these contractual obligations; and
• performs periodic calibration of its equipment to ensure that the equipment continues to function in a proper manner and repairs malfunctioning equipment within 60 days.

The CALM Act requires the Commission to adopt regulations on or before December 15, 2011, and specifies that the regulations will take effect one year after adoption. Reply comments in MB Docket 11-93 are currently due July 21, 2011