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111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-374
COMMERCIAL ADVERTISEMENT LOUDNESS MITIGATION ACT
December 14, 2009.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
Mr. Waxman, from the Committee on Energy and Commerce, submitted the
R E P O R T
[To accompany H.R. 1084]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 1084) to require the Federal Communications
Commission to prescribe a standard to preclude commercials from
being broadcast at louder volumes than the program material
they accompany, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Legislative History.............................................. 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Statement of Committee Oversight Findings and Recommendations.... 3
New Budget Authority, Entitlement Authority, and Tax Expenditures 4
Statement of General Performance Goals and Objectives............ 4
Constitutional Authority Statement............................... 4
Earmarks and Tax and Tariff Benefits............................. 4
Federal Advisory Committee Statement............................. 4
Applicability of Law to Legislative Branch....................... 4
Federal Mandates Statement....................................... 4
Committee Cost Estimate.......................................... 4
Congressional Budget Office Cost Estimate........................ 5
Section-by-Section Analysis of the Legislation................... 5
Explanation of Amendments........................................ 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Dissenting Views................................................. 8
The amendment is as follows:
Strike all after the enacting clause and insert the
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Commercial Advertisement Loudness
Mitigation Act'' or the ``CALM Act''.
SEC. 2. RULEMAKING ON LOUD COMMERCIALS REQUIRED.
(a) Regulation Required.--Within 1 year after the date of enactment
of this Act, the Federal Communications Commission shall prescribe
pursuant to the Communications Act of 1934 (47 U.S.C. 151 et seq.) a
regulation that is limited to incorporating by reference the
``Recommended Practice: Techniques for Establishing and Maintaining
Audio Loudness for Digital Television'' (A/85), and any successor
thereto, approved by the Advanced Television Systems Committee, only
insofar as such recommended practice concerns the transmission of
commercial advertisements by a television broadcast station, cable
operator, or other multichannel video programming distributor.
(1) Effective date.--The Federal Communications Commission
shall prescribe that the regulation adopted pursuant to
subsection (a) shall become effective 1 year after the date of
(2) Waiver.--For any television broadcast station, cable
operator, or other multichannel video programming distributor
that demonstrates that obtaining the equipment to comply with
the regulation adopted pursuant to subsection (a) would result
in financial hardship, the Federal Communications Commission
may grant a waiver of the effective date set forth in paragraph
(1) for 1 year and may renew such waiver for 1 additional year.
(c) Definitions.--For purposes of this section--
(1) the term ``television broadcast station'' has the meaning
given such term in section 325 of the Communications Act of
1934 (47 U.S.C. 325); and
(2) the terms ``cable operator'' and ``multichannel video
programming distributor'' have the meanings given such terms in
section 602 of Communications Act of 1934 (47 U.S.C. 522).
PURPOSE AND SUMMARY
H.R. 1084, the ``Commercial Advertisement Loudness
Mitigation Act'' or the ``CALM Act'', was introduced by Rep.
Anna G. Eshoo (D-CA) on February 13, 2009. The legislation
would 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
BACKGROUND AND NEED FOR LEGISLATION
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 the disparity between the volume of the
commercial and the volume of the programming disruptive and
\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).
The FCC does not currently regulate the volume of
commercial advertisements. Other countries, including
Australia, Brazil, France, Israel, Russia, and the United
Kingdom, have passed legislation or instituted regulations
concerning the volume of commercials. Television broadcasters
and multichannel video programming distributors (MVPDs) in the
United States are aware of the problem, and an industry
standards-setting body, the Advanced Television Systems
Committee (ATSC), has developed the technical standards
necessary to control variations in commercial loudness. ATSC's
membership approved the ``ATSC Recommended Practice: Techniques
for Establishing and Maintaining Audio Loudness for Digital
Television'' on November 4, 2009.
H.R. 1084 was introduced by Rep. Eshoo on February 13,
2009. The bill was referred to the Subcommittee on
Communications, Technology, and the Internet on February 23,
2009. On June 11, 2009, the Subcommittee held a legislative
hearing on H.R. 1084. The Subcommittee heard testimony from
witnesses representing the Association for Maximum Service
Television; the Advanced Television Systems Committee's
Subgroup on Digital Television Loudness; and Consumers Union.
On October 8, 2009, the Subcommittee on Communications,
Technology, and the Internet met in open markup session to
consider H.R. 1084. The Subcommittee adopted an amendment in
the nature of a substitute (manager's amendment) offered by Ms.
Eshoo, and subsequently favorably forwarded H.R. 1084, amended,
to the full Committee by a voice vote.
The full Committee met in open markup session on November
19, 2009, to consider H.R. 1084, as forwarded by the
Subcommittee. The Committee adopted an amendment in the nature
of a substitute (manager's amendment) offered by Ms. Eshoo.
Subsequently the Committee ordered reported H.R. 1084, amended,
by a voice vote.
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto. A motion by Mr. Waxman to order H.R. 1084 favorably
reported to the House, amended, was agreed to by a voice vote.
There were no recorded votes taken during full Committee
consideration and passage of H.R. 1084.
STATEMENT OF COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the oversight findings and recommendations of
the Committee are reflected in the descriptive portions of this
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives, the Committee finds that H.R. 1084
would result in no new budget authority, entitlement authority,
or tax expenditures or revenues.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 1084. Article I, section 8, clauses 3 and 18
of the Constitution of the United States grants the Congress
the power to enact this law.
EARMARKS AND TAX AND TARIFF BENEFITS
H.R. 1084 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
FEDERAL ADVISORY COMMITTEE STATEMENT
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., section 5(b).
APPLICABILITY OF LAW TO THE LEGISLATIVE BRANCH
The Committee finds that H.R. 1084 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
Public Law 104-1
FEDERAL MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement whether
the provisions of the reported bill include unfunded mandates.
In compliance with this requirement the Committee adopts as its
own the estimates of federal mandates prepared by the Director
of the Congressional Budget Office.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d)(2) of rule XIII of the Rules of the
House of Representatives, the Committee adopts as its own the
cost estimate on H.R. 1084 prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget Act of 1974, the Committee has received the following
cost estimate for H.R. 1084 from the Director of the
Congressional Budget Office:
December 10, 2009.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1084, the CALM
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Douglas W. Elmendorf.
H.R. 1084--CALM Act
H.R. 1084 would require the Federal Communications
Commission (FCC) to adopt, within one year, 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 H.R.
1084 would have no significant impact on the federal budget.
H.R. 1084 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 distributers 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 ($69 million
in 2009, 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 ($139 million in 2009, adjusted annually for
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs), Leo Lex and 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 Theresa Gullo, Deputy Assistant Director for Budget
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
This Act is titled the ``Commercial Advertisement Loudness
Section 2. Rulemaking on loud commercials required
Subsection 2(a) of the bill requires the FCC to promulgate
rules within one year of the date of enactment of the CALM Act.
Any FCC rules must be limited to incorporating by reference the
ATSC standard 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 Act, television broadcast stations, cable and direct
broadcast satellite (DBS) operators, and other MVPDs will 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.
Subsection 2(b) of the bill requires that the rule
prescribed by the FCC become effective one year after the date
the FCC adopts it. It allows 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 Act 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 an additional year.
Subsection 2(c) of the bill defines 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.
EXPLANATION OF AMENDMENTS
An amendment in the nature of a substitute was adopted
during Subcommittee consideration of H.R. 1084. The original
legislation directed the FCC to prescribe a regulation
prohibiting advertisements accompanying video programming from:
(1) being excessively noisy or strident; (2) having modulation
levels substantially higher than the accompanying program; and
(3) having an average maximum loudness substantially higher
than that of the accompanying program. The amended legislation
requires the FCC to implement the ATSC standard on commercial
loudness, to allow no more than 2 years to implement the
standard, and permits the FCC to grant compliance waivers on a
showing of financial hardship.
CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED
With respect to clause 3(e) of rule XIII of the Rules of
the House of Representatives, there are no changes in existing
law made by the bill, as reported.
We, the undersigned Members of the Committee on Energy and
Commerce, submit the following comments to express our concerns
with H.R. 1084.
The Commercial Advertisement Loudness Mitigation (CALM) Act
would require the Federal Communications Commission (FCC) to
incorporate into its rules, by reference, the standard
developed by the Advanced Television Systems Committee (ATSC)
for moderating the volume of commercials in comparison to
accompanying programming. While it is true that loud
commercials can be a nuisance, this is not a problem that calls
for Congressional action. Even though this issue is a frequent
consumer complaint filed with the FCC, Americans' televisions
still have volume control and remote controls still have
``mute'' buttons. Consumers do not need the government to come
into their homes and operate their remote controls for them.
Furthermore, the issue of commercial volume is much more
complex than it seems. Many entities are responsible for
producing and distributing the content consumers see and hear.
Different advertisers produce the various commercials.
Different programmers produce the various shows. Different
broadcast affiliates, broadcast networks, and cable and
satellite companies then transmit the content. Each element may
be recorded and provided to the broadcaster or cable or
satellite operator at a different volume level. Moreover, shows
and movies have a dynamic sound range to cover everything from
rustling leaves in a peaceful lakeside moment to explosions in
an action-packed chase scene. Commercials, meanwhile, tend to
have a narrow sound range. Volume levels are typically set for
the programming, which can distort the volume of commercials.
The technical challenges presented by these facts are
significant, but with the transition to digital television,
industry has responded and has attempted to solve this problem
on its own. On Nov. 5, 2009, the ATSC announced the approval of
the ``ATSC Recommended Practice: Techniques for Establishing
and Maintaining Audio Loudness for Digital Television.'' The
Recommended Practice (RP) provides guidance to broadcasters and
creators of audio for high-definition or standard-definition
television content, and also recommends production,
distribution, and transmission practices needed to provide the
highest quality audio soundtracks to the digital television
audience. The document focuses on audio measurement, production
and postproduction monitoring techniques, and methods to
control loudness for content delivery or exchange.
While Ms. Eshoo should be applauded for engaging industry
and for amending her bill to acknowledge industry's work, this
legislation is now entirely unnecessary. We therefore believe
there is no reason for Congressional intervention, and oppose
Michael C. Burgess.
Ralph M. Hall.