Worried About Loud Commercials? Keep CALM and Carry Ads
Our long national nightmare is almost over. As of December 13, 2012, television stations and cable operators, along with other multichannel video programming distributors, may be liable if a commercial advertisement is materially louder than its surrounding programming, pursuant to the Commercial Advertisement Loudness Mitigation (CALM) Act and new FCC regulations.
The complexities of the CALM Act may cause broadcasters some anxious moments. First, the new FCC rules apply to more than just 30-second advertising spots; the rules include program-length commercials, station or network promos, and ? though too late for this year ? political advertising. (That wrinkle may prompt some tweaks to a station’s candidate disclosure statements before the next election cycle since the candidates may not remember the new requirements.) Second, the new regulations incorporate a specific technical standard, the Advanced Television Systems Committee’s A/85 Recommended Practice. Third, it may be difficult to prove that a particular spot complied in response to an FCC enforcement inquiry well after the fact. But broadcasters should remain calm because the new rules offer safe harbors and certifications in lieu of spot-by-spot compliance, including specific criteria for the following categories of commercials: station insertions, local insertions made by another party, and embedded advertising.
Station Insertions. A station may be “deemed in compliance” for commercials the station inserted into programming if the station: (i) provides records that it installed, maintained, tested and used the equipment necessary to pass through compliant advertisements; and (ii) certifies that it had no actual knowledge of uncorrected violations and its equipment was not at fault.
Local Non-Station Insertions. For local insertions made by others, such as a broker, a station may claim a “safe harbor” by: (i) getting the third party to provide a certification of compliance, which the station has no reason to believe is false; (ii) certifying its own transmission equipment is not at fault; and (iii) performing a “spot check” regarding any commercial inserted by that third party in response to an FCC inquiry.
Non-Local Insertions. For commercials embedded by networks, syndicators, or other content providers, stations have to use a real-time processor (and provide the FCC the records showing actual compliance for particular spots if asked) or satisfy the safe harbor criteria. Embedded commercials are within the “safe harbor” if: (i) the program supplier has provided a “widely available” certification of compliance, which the station has no reason to believe is false; or (ii) the station has performed annual “spot checks” of all non-certified programming it carries.
Spot Checks. A “spot check” was never so aptly named. Under the rules, a spot check for non-certified, non-local programming requires monitoring 24 uninterrupted hours of that programming with an audio loudness meter to detect any noncompliant commercials. If there is no single 24-hour period in which all non-certified programmers are represented, an annual spot check may consist of a series of loudness measurements over the course of a seven-day period, totaling no fewer than 24 hours, that measure at least one entire program provided by each non-certified programmer. If annual spot checks are performed for two years without finding noncompliance, no further annual spot checks are required for that programming. In addition, any “safe harbor” station that receives an FCC inquiry must perform a 24-hour spot check of the program stream at issue, certified or not, within 30 days. Of course, a station may not give prior notice of spot checks to programmers.
If any spot check shows actual compliance, the programming remains safe. If noncompliant, the station must notify the FCC and the programmer within seven days. Within 30 days of such notice, the station must perform a follow-up spot check and forward the results to the FCC and the programmer. If the programming complies, that program re-enters the safe harbor. If not, the station and programming are not “safe” until a subsequent spot check demonstrates compliance.
As a practical matter, issues with loud advertising are most likely to be an issue for local spots. Stations’ sales teams may want to remind local buyers of any new technical requirements for commercials or other changes in a particular station’s ad policies well in advance of the December 13 deadline. As Billy Mays might have said, “Loud commercials are now legally available for ONLY A LIMITED TIME!” So don’t delay - get your clients compliant today!