NCTA: FCC Should Exempt Program Promos From Ad-Loudness Rules

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The National Cable & Telecommunications Association has petitioned the FCC to limit rules aimed at curbing loud TV ads -- set to go into effect this December -- to commercial advertisements and exempt TV programming promotions.

The trade group, in a filing last week, said Federal Communications Commission rules implementing the Commercial Advertisement Loudness Mitigation (CALM) Act fail to sufficiently reduce the burden on operators for noncompliance "in a handful of respects."

Specifically, the NCTA said, the commission should limit its rules to commercial ads, rather than also including "promotional material." In addition, the group sought clarification that a cable operator will not be held liable in instances in which it has notified a network and the FCC of a network's noncompliance with CALM and the NCTA wants to ensure MSOS are not prohibited from contacting programmers when performing spot checks.

"The Commission mistakenly conflates 'commercial advertisements' and promos, defining promos as ‘commercial advertisements promoting television programming,'" the NCTA said. "In fact, promos are distinct from 'commercial advertisements.' Generally, commercial advertisements are material transmitted in exchange for some type of payment or remuneration, while promos are not."

The FCC's order regarding CALM compliance said covering promos would not impose compliance burdens beyond those already necessary for commercial advertising. However, according to the NCTA, that "completely overlooks the increased burdens resulting from extending the rules to networks that carry no commercial advertising but do carry promos, such as C-SPAN, Disney Channel and premium networks."

In the Washington, D.C. market, for example, complying with the FCC's current rules would mean extending CALM compliance, certification and spot-check testing to approximately 40 additional networks, the NCTA said. That will lead to additional costs for operators, as well as potentially impose additional burdens on non-ad-supported networks.

The FCC's rules enforcing the CALM Act, set to go into effect Dec. 13, 2012, mandates that ads be no louder than the programming they surround.

The NCTA noted that under the Communications Act, public broadcasting stations are prohibited from carrying "advertisements," while they do broadcast promos of upcoming programming "without running afoul of the advertising ban." In that vein, the FCC's order regarding CALM compliance exempts noncommercial, educational TV stations from those rules, and the commission "provides no reason for treating promos differently in the broadcast and non-broadcast contexts," the NCTA said.

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