Earlier this week, we highlighted a letter sent last week from Congresswoman Anna Eshoo asking the FCC to review CALM Act compliance. The letter noted that the FCC has received thousands of complaints about loud commercials in the decade that the law has been in effect without having taken any enforcement action. The FCC wasted no time in reacting, with Media Bureau issuing a request late Monday for comments on the current rules which implement the law and whether changes to those rules are needed. Comments are due June 3, 2021, with reply comments due by July 9.
The CALM Act (the Commercial Advertisement Loudness Mitigation Act) was passed in 2011 due to the perception of many in Congress that the volume of commercials on broadcast, cable and satellite television was far higher than that in the programming that surrounded the commercials. After the legislation was passed, the FCC adopted rules to implement the Act (which we described here). Those rules were principally based on compliance with a set of ATSC (Advanced Television Systems Committee) recommended practices, to be enforced through a complaint-driven system. The FCC has updated those rules once (when ATSC updated its recommended practices – see our article here). The FCC now asks if those rules should be revisited to make them more effective in combatting the perceived problem of loud commercials.
In this week’s request, the Media Bureau asks for consumers to let the FCC know about their experiences in watching programming carried by TV stations and MVPDs and the commercials carried in such programs. Without setting out any specific proposals, the FCC also asks the industry to comment as to whether the CALM Act rules are still effective in combatting loud commercials or if they need to be changed to better reflect current industry practices and technologies.
This is just a request for public comment. No specific changes in the current rules are proposed, and thus none could be adopted by the FCC unless and until they were proposed through a formal Notice of Proposed Rulemaking on which the industry and other interested parties could comment. But the speed with which this request was generated suggests, as we noted on Monday, that this could be an area where the FCC could become active in enforcing the current rules. TV broadcasters should be reviewing their CALM Act compliance now. They should also offer in the comments due later this year and in any subsequent related proceeding any proposals they may have on how to make the system work better.
Courtesy Broadcast Law Blog