[Senate Report 111-340]
[From the U.S. Government Publishing Office]
111th Congress Calendar No. 625
2d Session SENATE Report
111-340
_______________________________________________________________________
COMMERCIAL ADVERTISEMENT LOUDNESS MITIGATION ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND
TRANSPORTATION
on
S. 2847
September 29, 2010.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas
TOM UDALL, New Mexico MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce Andrews, General Counsel
Ann Begeman, Republican Staff Director
Brian Hendricks, Republican General Counsel
Todd Bertoson, Republican Senior Counsel
Calendar No. 625
111th Congress Report
SENATE
2d Session 111-340
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COMMERCIAL ADVERTISEMENT LOUDNESS MITIGATION ACT
_______
September 29, 2010.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 2847]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2847) to regulate the volume of
audio on commercials, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of the Commercial Advertisement Loudness
Mitigation Act, S. 2847, as reported, is to require the Federal
Communications Commission (FCC) to incorporate into its rules
by reference the standard developed by an industry standards-
setting body for moderating the loudness of commercials in
comparison to accompanying video programming.
Background and Needs
The FCC has been aware of excessively loud commercial
advertisements on television and radio since at least 1954.\1\
The most common example is when a commercial advertisement,
without any action by the consumer, becomes abruptly louder
than the programming that the commercial accompanies. Many
consumers find sudden disparity between the volume of the
commercial and the volume of the programming disruptive and
intrusive. The FCC does not currently regulate the volume of
commercial advertisements. Television broadcasters and
multichannel video programming distributors (MVPDs) in the
United States are aware of the problem. A non-profit
organization that develops international standards for digital
television, the Advanced Television Systems Committee (ATSC),
has developed the technical standards necessary to control
variations in commercial loudness. These standards, the ``ATSC
Recommended Practice: Techniques for Establishing and
Maintaining Audio Loudness for Digital Television,'' were
approved by ATSC's membership on November 4, 2009.
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\1\Federal Communications Commission, In the Matter of Amendment of
Part 73 of the Commission's Rules and Regulations to Eliminate
Objectionable Loudness of Commercial Announcements and Commercial
Continuity over AM, FM and Television Broadcast Stations, BC Docket No.
79-168, 1984 FCC LEXIS 2425 (June 27, 1984).
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Summary of Provisions
S. 2847 would require the FCC, within one year of enactment
of the bill, to prescribe a regulation limited to incorporating
by reference the ATSC report ``ATSC Recommended Practice:
Techniques for Establishing and Maintaining Audio Loudness for
Digital Television.'' In addition, the bill would provide for a
process at the FCC to provide waivers to television broadcast
stations, cable operators, or other multichannel video
programming distributors for whom complying would entail a
financial hardship.
Legislative History
S. 2847 was introduced by Senator Whitehouse and Senator
Schumer on December 8, 2009. The Senate Committee on Commerce,
Science, and Transportation reported S. 2847 favorably, as
amended, on June 9, 2010. The Committee approved a substitute
amendment from Senator Rockefeller that makes minor technical
adjustments regarding the availability of waivers.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
July 2, 2010.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2847, the CALM Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susan Willie,
who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 2847--CALM Act
S. 2847 would require the Federal Communications Commission
(FCC) to adopt, within one year of enactment, an industry-
created standard capping the volume level of television
commercials and equalizing the volume between advertisements
and other television programming. CBO estimates that
implementing S. 2847 would have no significant effect on the
federal budget. Enacting S. 2847 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures would
not apply.
S. 2847 would impose an intergovernmental and private-
sector mandate as defined in the Unfunded Mandates Reform Act
(UMRA) by requiring television broadcast stations, cable
operators, and other distributors of television programming to
meet the proposed standard. The cost to those entities would
depend on the method used to comply with the mandate. According
to information from industry sources, the cost of equipment
that controls the volume of programming ranges from a few
thousand dollars to about $20,000 per device. Based on
information from the FCC and industry sources, CBO expects that
several thousand entities would have to comply with the
mandate. Because a small number of those entities are publicly
owned, CBO estimates that the aggregate cost to public entities
would be small and would fall below the annual threshold
established in UMRA for intergovernmental mandates ($70 million
in 2010, adjusted annually for inflation). CBO estimates that
the aggregate cost to private entities would total at least
tens of millions of dollars but would probably fall below the
annual threshold established in UMRA for private-sector
mandates ($141 million in 2010, adjusted annually for
inflation).
On December 9, 2009, CBO transmitted a cost estimate for
H.R. 1084, the CALM Act, as ordered reported by the House
Committee on Energy and Commerce on November 19, 2009. The two
bills are similar and the CBO cost estimates are the same.
The CBO staff contacts for this estimate are Susan Willie
(for federal costs), Elizabeth Cove-Delisle (for the state and
local impact), and Amy Petz and Sam Wice (for the private-
sector impact). The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 2847 would affect television broadcast stations, cable
operators and other multichannel video programming
distributors.
ECONOMIC IMPACT
S. 2847 would not have a significant impact on the nation's
economy. CBO estimates that the aggregate cost to private
entities would total at least tens of millions of dollars but
would probably be less than $140 million annually.
PRIVACY
S. 2847 is not expected to have an adverse effect on the
personal privacy of any individuals that will be affected by
this legislation.
PAPERWORK
S. 2847 would have minimal or no impact on current
paperwork levels.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
items contained in the bill, as reported, meet the definition
of congressionally directed spending items under the rule.
Section-by-Section Analysis
Section 1. Short title
This section would provide that the legislation may be
cited as the Commercial Advertisement Loudness Mitigation Act.
Section 2. Rulemaking on loud commercials required
Subsection 2(a) of the bill would require the FCC to
promulgate rules within one year of the date of enactment of S.
2847. Any FCC rules must be limited to incorporating by
reference the ATSC standard ``ATSC Recommended Practice:
Techniques for Establishing and Maintaining Audio Loudness for
Digital Television'' concerning the loudness levels of
commercial advertisements, accompanying any video programming
shown by a television broadcast station or distributed by a
MVPD. Pursuant to the bill, television broadcast stations,
cable and direct broadcast satellite (DBS) operators, and other
MVPDs would be required to install and maintain equipment that
is compliant with the ATSC Recommended Practice. After initial
installation, the Committee expects that stations and MVPDs
will use commercially reasonable efforts to maintain equipment
and to repair or replace malfunctioning equipment. The FCC
should presume that an entity is in compliance with its rule
where the entity can demonstrate that it has properly installed
and is properly maintaining all needed equipment. Stations that
fail to timely install equipment, fail to maintain it, or--in
the event of a malfunction--fail to repair such equipment in a
commercially reasonable and timely manner shall be subject to
fines and penalties as determined by the FCC.
Section 2(b) of the bill would require that the rule
prescribed by the FCC become effective one year after the date
the FCC adopts it. It would allow the FCC to grant a one-year
waiver of the rule to those entities demonstrating that
compliance would cause them financial hardship. The Committee
intends for the FCC to interpret ``financial hardship'' broadly
and to take into account, for example, the fact that television
broadcast stations in smaller markets and smaller cable systems
may face greater challenges budgeting for the purchase of
equipment to comply with the bill than television broadcast
stations in larger markets or larger cable systems. The FCC
should not require stations or MVPDs to demonstrate that they
have negative cash flow or are in receivership for bankruptcy
to be eligible for a waiver based on financial hardship. The
FCC may renew waivers for one additional year. This section of
the bill also would clarify that nothing in this section
affects the FCC's authority under section 1.3 of its rules (47
CFR 1.3) to waive any rule required by the bill, or the
application of any such rule, for good cause shown to a
television broadcast station, cable operator, or other MVPD, or
to a class of such stations, operators, or distributors.
Section 2(c) of the bill would define the terms television
broadcast station, cable operator, and multichannel video
programming distributor as those terms have been defined
elsewhere in the Communications Act of 1934.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.