The Federal Communications Commission (“FCC”) has requested comments on a Petition for Reconsideration concerning the FCC’s commercial volume rules.  These rules, which implement the 2010 Commercial Advertisement Loudness Mitigation (“CALM”) Act, require television broadcasters, digital cable operators, and other digital multichannel video programming distributors to follow a technical standard that is designed to prevent television advertisements from being transmitted at louder volumes than the program material they accompany.

The Petition for Reconsideration — which was filed earlier this month by the cable industry’s trade association, the National Cable & Telecommunications Association (“NCTA”) — asks the Commission to revisit three aspects of the final rule:

  1. Exclude promotional material from the rule’s requirements:  NCTA argues that the Commission mistakenly equates commercial advertisements and television promos.  NCTA states that “commercial advertisements are material transmitted in exchange for some type of payment or remuneration, while promos are not.”  Because the statute applies only to the transmission of commercial advertisements, NCTA argues that promotional material should be excluded.   
  2. Limit liability where notice is provided after discovery of noncompliance :  Under certain circumstances, an operator must perform “spot checks” of the programming it delivers.  If the spot check indicates that a violation has occurred, the operator must inform the FCC and the programmer.  Within 30 days, the operator or station must re-check the programming and disclose the results of the re-check.  If there is still a problem after the re-check, the operator loses safe harbor status for that channel or programming on a going forward basis.  NCTA asks the Commission to revise its rules to clarify that a cable operator may continue to carry the programming as long as it provides notice in accordance with the rules and works in good faith to have the programmer rectify the problem expeditiously.  While NCTA’s Petition is specific to cable operators, the relief presumably would apply to stations and other multichannel video programming distributors that are subject to the “spot check” requirement as well.
  3. Permit operators to contact programmers before or during a spot check:  The rule prohibits operators from providing programmers prior notice of the timing of the spot check.  NCTA requests that the FCC reverse this ban, stating that spot checks will be more reliable if cable operators (and presumably other distributors as well) and programmers are permitted to coordinate to ensure “that they are properly testing and measuring the relevant data.” 

Oppositions to the Petition are due by September 4, 2012, and replies must be filed by September 14, 2012.