The Federal Communications Commission (FCC) has just released its Notice of Proposed Rulemaking (NPRM), looking to adopt rules to implement the CALM Act regulating loud commercials on over-the-air television broadcast stations, cable systems, satellite, and other multichannel video programming providers. In December, the Commercial Advertisement Loudness Mitigation (CALM) Act was adopted by Congress and signed by the President, addressing consumer complaints about television commercials that seem louder than the program content that they accompanied.

As we wrote in our summary of the Act when it was adopted, Congress has long received many complaints about the volume levels of commercials and decided to act, even though many industry groups were concerned about the ability to design an effective system to deal with the contrasts that sometimes exist between the quiet dialogue that might precede a commercial break and the commercial advertisement itself.

In adopting the CALM Act, Congress instructed the FCC to adopt implementing rules within a year. This NPRM is to adopt those rules, and the FCC asks many questions trying to clarify the details of CALM Act implementation.

The NPRM raises a broad array of implementation issues, ranging from deciding exactly which broadcast stations and which MVPDs are subject to its terms, to the establishment of safe harbors for technical compliance. As discussed in more detail below, the Commission also asks whether stations and systems can shift the burden for compliance with these rules to program suppliers, such as broadcast and cable networks, and whether contractual means of guaranteeing compliance (such as indemnification provisions in contracts between networks and affiliates) are sufficient to ensure compliance by these program providers. Questions about how MVPDs deal with retransmission of broadcast programs, and who is responsible for noncompliant broadcast programming, are also asked. Finally, the FCC suggests processes for consumer complaints and the grant of waivers to stations and systems that cannot quickly comply with the new rules.