Yesterday, the Society of Cable Telecommunications Engineers (“SCTE”) announced the publication of a new standards document, SCTE 197 2013, designed to help MVPDs and programmers comply with the Commercial Advertisement Loudness Mitigation (“CALM”) Act obligations.

Titled “Recommendations for Spot Check Loudness,” SCTE 197 provides best practices for measuring the audio content carried in a single programming channel of a program network, aligned with techniques discussed in ATSC standard A/85, “Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television.” SCTE 197, available for download at www.scte.org/standards, further provides guidelines for recording measured loudness and loudness metadata value, as well as approaches for interpretation of the collected data and for actions to be taken in the case of discrepancies.

Below, we provide a brief summary of the CALM Act and the requirements for MVPDs.

Background. The FCC’s rules on loud television commercials, adopted in response to the 2010 CALM Act, took effect on December 13, 2012.  Broadcast stations and MVPDs must ensure that all commercials are transmitted to consumers at the appropriate loudness level.  The rules cover digital advertisements locally inserted by MVPDs and those that come embedded from a content provider.  The rules do not apply to analog broadcasts or analog MVPD service.

CALM Act Requirements. For MVPDs that locally insert commercials, the FCC will assumecompliance if the MVPD:

• Has installed the required equipment (under the A/85 Recommended Practice, a standard adopted by the ATSC);
• Uses the equipment in connection with the insertions; and
• Keeps the equipment in good working order (with records showing the equipment’s use and that the equipment has undergone periodic maintenance and testing).

If an MVPD does not itself install, utilize and maintain the equipment used to encode the loudness of a commercial before or at the time of its transmission, the MVPD may acquire a certification from the 3^rd party that the local advertisements inserted comply with the recommended practices.

For embedded commercials, MVPDs may rely on a “safe harbor” to prove compliance:

• For certified programming, the MVPD may rely on a programmer’s certification if the MVPD has no reason to believe the certification is false.
• For non-certified programming, MVPDs with over 10 million subscribers must annually spot check 100% of non-certified programming, and MVPDs with between 400,000 and 10 million subscribers must annually spot check 50% of non-certified programming.  MVPDs with less than 400,000 subscribers are exempt from these annual spot check obligations.

Pattern or Trend of Complaints:  Spot Checks. If the FCC becomes aware of a “pattern or trend of sufficiently specific complaints,” it may open an enforcement inquiry.  Upon receiving an inquiry notice from the FCC, the MVPD must verify compliance by performing a spot check.  After performing a spot check, follow-up spot checks are required only if the initial spot check indicates noncompliance.

If you have any questions about the CALM Act rules, please contact Scott Friedman at (312) 372-3930 or sfriedman@cm-chi.com.