FCC Asks for Comments on Commercial Loudness Rules

The FCC is requesting comments on whether it should revise rules aimed at preventing unduly loud commercials on broadcast, cable and satellite television. The current rules were adopted under the Commercial Advertisement Loudness Mitigation Act (the CALM Act) and have not been updated since 2014. The FCC cited a recent increase in complaints about loud commercials as the basis for launching this inquiry into the continuing effectiveness of its rules. The FCC also asked preliminary questions on issues involving loud commercials and audio quality on video streaming platforms.

The current rules incorporate a standard which is designed to prevent loud commercials by comparing the average volume of a commercial to the average volume of the surrounding programming. Broadcast TV stations and multi-channel program distributors (MVPDs) can demonstrate compliance by using certain equipment with respect to commercials they insert and by obtaining certifications from program suppliers and doing spot checks with respect to commercials the program suppliers insert. The CALM Act restrictions do not apply to broadcast or satellite radio.

Because of the recent influx of complaints, the FCC is now requesting comments on the general effectiveness of its commercial loudness rules, including:

• Whether advertisers are “gaming the system” by alternating high volume portions of commercials with lower volume portions to keep the average volume in compliance.

• How user friendly the FCC’s complaint system is for viewers.

In addition to inquiring about the effectiveness of the CALM Act rules for commercials on broadcast and MVPD-delivered programming, the FCC also asked for comment on problems with loud commercials, and degraded audio quality generally, on internet streaming services. The NPRM states that such problems may be “endemic” in those services and asks whether there may be especially adverse impact on persons with disabilities. While streaming services would appear to be outside the definition of an MVPD as used in the CALM Act, and therefore beyond the scope of the Act, the FCC asked for comment on whether it has authority to regulate streaming services under the Twenty-First Century Communications and Video Accessibility Act of 2010, or other legislation currently pending before Congress. The NPRM makes clear that its inquiries regarding streaming are preliminary only, and that the FCC would not proceed with any regulation directed at streaming providers without a subsequent rulemaking.

In a separate statement, FCC Commissioner Geoffrey Starks expressed his concern that the inquiries regarding streaming raised novel issues regarding the FCC’s regulatory authority, and that any newfound authority over streaming providers could be expanded into areas other than loud commercials and reduced audio quality.

Comments on the NPRM will be due 30 days after publication in the Federal Register.

If you have questions about the FCC’s NPRM, or about the CALM Act, contact an attorney in our Media Practice group.