Eshoo Wants Loud TV Ads Regulated By FCC

Bill Would Ensure Ads Aren’t ‘Substantially’ Louder Than Programming

By Ted Hearn -- Multichannel News, 6/13/2008 1:53:00 PM

Washington—The Federal Communications Commission would be required to regulate the volume of television commercials for excessive loudness under a House bill recently introduced by Rep. Anna Eshoo (D-Calif.).

Eshoo, a member the Energy and Commerce Committee who represents Silicon Valley, wants the FCC to regulate “excessively noisy and strident” ads on broadcast TV, cable television and satellite television. The bill would exempt radio stations and the Internet.

“We're still studying it,” said Dennis Wharton, executive vice president of media relations for the National Association of Broadcasters.

Dan Brenner, senior vice president of law and regulatory policy at the National Cable & Telecommunications Association, said he looked into volume changes on television when he worked at the FCC in the early 1990s.

In his research, Brenner found that people might mistakenly perceive that ads are louder than regular programming. This happens, he said, when regular programming ends at a low-volume moment just before cutting to a commercial set at a normal volume level.

“Maybe the FCC has more research, but when I looked at it—this was 15 years ago—that was the problem, that you couldn't really actually measure loudness because it all depends on what came before the so-called loud commercial,” Brenner said.

Brenner said he was unaware that the cable industry deliberately elevated the volume of its commercials.

“I've never heard of that,” he said.

Eshoo's bill would give the FCC one-year to adopt regulations that would ensure that the loudness of TV ads was not “substantially higher than the program material that such advertisements accompany.”

Eshoo named her bill the Commercial Advertisement Loudness Mitigation Act or the CALM Act. She has one co-sponsor, Rep. Zoe Lofgren (D-Calif.)

“Most Americans are not overjoyed to watch television commercials, but they are willing to tolerate them to sustain free over-the-air television. What annoys all of us is the sudden increase of volume when commercials are aired,” Eshoo said in a prepared statement. “My legislation will reduce the volume of commercials in order to bring them to [the] same level as the programs they accompany.”

Eshoo's bill contained no findings regarding the prevalence of volume manipulation in TV ads, no statements about who is responsible for the practice, and no language regarding the bill's impact on the First Amendment.

Courts tend to strike down laws that impose burdens on speech when less restrictive alternatives are available. TV volume regulator devices, for example, are available for consumers to purchase on an individual basis.

One such device, called the TV Sound Regulator, sells on the Internet for $49.95.

Adonis Hoffman, senior vice president and counsel of the American Association of Advertising Agencies, said it's possible the FCC already has the authority to regulate volume levels on TV.

“If so, that might obviate the need for any new legislation. But if there are new standards to be developed, the advertising industry would want to be a part of that process and would certainly comply with the new rules,” said Hoffman, a former FCC official under Democratic chairman William Kennard.

In January, the FCC released a report showing that it had received complaints from consumers about the “abrupt changes in volume” during transitions from regular programming to commercials.