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FCC Adopts Rules
to New Rules Take Effect On December 13, 2012
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The Federal Communications Commission has adopted
new rules requiring digital TV broadcasters, digital cable operators, and
other digital multichannel video programming distributors (“MVPDs,” collectively “licensees and operators”) to
transmit commercials and adjacent programming at the same volume. The
new rules follow last year’s enactment of the Commercial Advertisement
Loudness Mitigation Act (the “CALM Act”). The new rules do not take effect until
December 13, 2012. However, as compliance with the new
requirements may require the purchase of additional equipment and adherence
to additional technical standards, licensees and operators should begin to
familiarize themselves with the new rules now. As a first step,
licensees and operators should become familiar with the ATSC Recommended
Practice: Techniques for Establishing and Maintaining Audio Loudness
for Digital Television (A/85) (the “RP”), a technical standard developed by
the Advanced Television Systems Committee to prevent large variations in
volume between different types of content. The FCC incorporated the RP
by reference into its new rules, as required under the CALM Act. The
most current version of the RP, released July 25, 2011, is available here on the ATSC
website. A copy of the FCC’s order adopting the new rules
is available here.
Key aspects of the rules include: ·
The rules apply to all digital TV
broadcasters, digital cable systems, and other digital MVPD
operators. They do not apply to analog broadcasters or analog MVPDs, or to non-commercial broadcasters except to the
extent that they transmit commercial advertisements as part of a digital
“ancillary or supplementary service.” ·
Licensees and operators are responsible for
ensuring that all commercials – regardless of content or duration and
regardless of whether the commercials are locally inserted or embedded by a
program supplier – comport with the RP. Political advertisements,
promos for television programming, and program-length commercials are not
exempt from the rules. ·
Licensees and operators will be deemed to be
in compliance with regard to locally inserted commercials if they use
equipment that measures the loudness of the content and ensures compliance
with the RP. To demonstrate compliance, a licensee or operator must be
able to: (i) provide records showing the
consistent and ongoing use of such equipment in the regular course of
business; (ii) provide records showing that the equipment has undergone
commercially reasonable periodic maintenance and testing to ensure its
continued proper operation; and (iii) certify that it either has no
actual knowledge of a violation of the RP (or that it took steps promptly to
remedy any violation when it was observed). Licensees and operators will
not be deemed to be in compliance with the rules as to locally inserted
commercials if they have knowledge of a violation but fail to correct the
problem promptly. ·
Embedded commercials can be brought into
compliance with the RP through the use of real-time processing equipment that
limits the dynamic range of programming. Given the technical and
practical limitations of this approach, however, the FCC adopted an
alternative “safe harbor” option to demonstrate compliance, under which a
licensee or operator must: (i) obtain
certifications of compliance from program suppliers; (ii) conduct annual
spot checks of non-certified programming to ensure compliance with the RP;
and (iii) conduct spot checks of specific channels if the FCC provides
notice of a pattern or trend of complaints concerning a particular program
supplier. Annual spot checks will not be required for all program
suppliers, and may be phased out over time. ·
A waiver of the new rules is available for up
to two years for financial hardship if a licensee or operator would face
financial hardship in obtaining the equipment required for compliance.
To request a waiver, a licensee or operator must provide: (i) evidence of its financial condition; (ii) a
cost estimate for obtaining the necessary equipment to comply; (iii) a
detailed statement explain why its financial condition justifies postponing
compliance; and (iv) an estimate of how long it will take to
comply. “Small” broadcast stations, which are defined as stations with
no more than $14 million in annual receipts or located in television
markets 150 to 210, may obtain a waiver by certifying that they meet one of
these two criteria and that a delay in obtaining the necessary equipment is
needed to avoid the financial hardship that would be imposed if they had to
obtain the equipment earlier. If you have any questions regarding the new rules
governing the volume levels of program material, please contact any attorney
in our office. December 22, 2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2011, Lerman Senter PLLC 2000 K Street NW,
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