On June 27, FCC Acting Chairwoman Mignon Clyburn responded to a letter from Congresswoman Anna Eshoo about the FCC’s work implementing and enforcing the CALM Act. Chairwoman Clyburn’s response noted that the FCC takes “seriously [its] responsibilities under the CALM Act,” will continue to educate the public on the CALM Act, and “will work with the industries to ensure compliance.”

The correspondence serves as a reminder of MVPDs’ obligations under the CALM Act rules. Those rules took effect December 13, 2012 and require MVPDs to comply with certain volume standards for commercials transmitted on digitalchannels.  The volume standards are detailed in a publication released by the ATSC entitled “A/85 Recommended Practice (A/85 RP).”  Operators can comply with the rules in a few ways, depending on where commercials are inserted.

Operator inserted commercials. If an MVPD inserts commercials locally, it can rely on a “safe harbor” to prove compliance if it:

• Has installed the equipment necessary to comply with the A/85 RP;
• 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).

Third-party inserted commercials.  For commercials locally inserted by a third party, an MVPD can generally rely on certification from the third-party inserter that it complies with A/85 RP.

Embedded commercials.  For commercials embedded in the content stream received from programmers, MVPDs can rely on a “safe harbor” to prove compliance.

• An MVPD can generally rely on certification from the programmer that it complies with A/85 RP as long as the certification is widely available to distributors.
• If a programmer does not provide a certification, an MVPD may be required to perform spot checks to demonstrate compliance with A/85 RP.
  • MVPDs with between 400,000 and 10 million subscribers are required to perform annual spot checks on half of the non-certified programming they carry.
  • MVPDs with fewer than 400,000 subscribers do not have to perform annual spot checks. Instead, they are required to do spot checks only in response to an inquiry from the FCC.  Operators can contract to have the spot checks done in response to an FCC inquiry.

Congresswoman Eshoo’s letter to the FCC underscores Congress’s interest in overseeing enforcement of the CALM Act rules.  As noted in Chairwoman Clyburn’s response, the FCC is tracking consumer complaints and monitoring non-compliance.  With this focus on enforcement, operators should make sure they understand how to comply with the CALM Act rules.

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