Calm Act Proceeding Could Lead to More Enforcement

The FCC proceeding on its Commercial Advertisement Loudness Mitigation Act isn’t considered likely to lead to rule changes, but increased enforcement and warnings to licensees could be in the cards, said broadcast and cable attorneys. The FCC acted quickly to begin an examination after the act’s originator, Rep. Anna Eshoo, D-Calif., criticized lack of enforcement. The agency has authority to enforce the rule, Rosenworcel told reporters Thursday. Comments on the rules are due June 3 (see 2105070058).

Rosenworcel said this seeks information on whether it's time for an update to the rules. Since comments were sought via public notice rather than an NPRM, additional steps would be needed before new rules, said Wilkinson Barker broadcast attorney David Oxenford (see 2104210073). Additional rules don’t appear to be the focus, said Lerman Senter's Sally Buckman. “There does seem to be increased focus on enforcement in general."

The PN, issued April 19 and so quickly after Eshoo's April 13 letter, suggests FCC interest, said programmer lawyer Marty Stern of Womble Bond. He said opening a docket and issuing a PN suggests programmers and distributors should look at their Communications Act compliance. "It's likely not the end of the story but the beginning, and there will be more to come from the FCC," he said. When the commission has questions about overall industry compliance with a requirement, follow-on enforcement activity wouldn't be surprising, he said. Eshoo didn’t comment Friday.

Loud commercials are likely second only to robocalls in generating consumer complaints to the FCC, and that's going to be an important factor for in allocating commission resources, said cable and broadcast lawyer Paul Feldman of Fletcher Heald. He said the PN might indicate the agency isn't ready to propose rules. Rosenworcel can issue a PN without buy-in from other commissioners, though loud commercials would seem to be a bipartisan issue, he said.

Rini O'Nei's Jonathan Allen said broadcasters and MVPDs haven't ignored the Calm Act and implementing rules, and compliance steps were largely technical, such as adopting methods to mitigate loudness of commercials relative to surrounding program material. The PN asks a few targeted questions about Calm Act rules, enforcement and consumer experiences, since it's designed to refresh the record, he said. Given the PN, some covered entities should take a fresh look to review their compliance practices and equipment, he said.

Complying with and enforcing rules on commercial loudness can be complicated, said broadcast industry officials and former FCC Enforcement Bureau Chief Travis LeBlanc, now at Cooley: Overly loud commercials are “fleeting” by nature, and so enforcement is complaint-driven, relying on viewer reports. An incident of ongoing wireless interference is easier for EB agents to observe, LeBlanc said. Viewers often don’t realize the legal distinctions between commercials on streaming services and those airing on stations or MVPDs, he said. “Data provided by consumers, however, is often not sufficiently specific or consistent to facilitate reliable analysis,” said then-acting Chairwoman Mignon Clyburn in a 2013 letter to legislators.

“Insertions into your programming can be difficult to control,” said Cocola Broadcasting CEO Gary Cocola. Each of his stations has multiple digital subchannels, and while he acts quickly to address complaints, it can be a lot to keep track of, he said. Larger station group owners use audio limiter equipment to make sure their output is within Calm Act’s required ATSC standard, which could be prohibitively costly for smaller companies like his, Cocola said.

Consumer perception of an ad’s loudness can be subjective, said Holland & Knight broadcast attorney Charles Naftalin. He and several other broadcast attorneys told us they don’t believe Calm Act violations are widespread, and that many commercials consumers perceive as being too loud actually fall within the levels allowed under the FCC rules. They may seem louder because of contextual factors, such as a louder ad following a quieter sequence of programming, the attorneys said.

Lack of historical enforcement action for these violations may stem from it not being the highest EB priority, attorneys suggested. “Loud commercials were never a serious problem or issue,” said Naftalin. LeBlanc conceded the bureau -- reduced in size since the act was implemented at the FCC in 2013 -- has to prioritize public safety, but said it's a priority for the staff because Congress made commercial loudness a concern for the FCC. “We have the authority and staffing to enforce the law,” Rosenworcel said.