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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 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [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.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
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

                               AMENDMENT

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

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.
  (b) Implementation.--
          (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 
        its adoption.
          (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 
programming.

                  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 
intrusive.
---------------------------------------------------------------------------
    \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.

                          LEGISLATIVE HISTORY

    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.

                        COMMITTEE CONSIDERATION

    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.

                            COMMITTEE VOTES

    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 
report.

   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 
Representatives.

                  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 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                      Douglas W. Elmendorf.
    Enclosure.

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 
inflation).
    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 
Analysis.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    Section 1. Short title
    This Act is titled the ``Commercial Advertisement Loudness 
Mitigation Act.''
    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.

                            DISSENTING VIEWS

    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 
the bill.

                                   Joe Barton,
                                           Ranking Member.
                                   John Shadegg.
                                   Joe Pitts.
                                   Michael C. Burgess.
                                   Marsha Blackburn.
                                   Sue Myrick.
                                   Phil Gingrey.
                                   Lee Terry.
                                   Roy Blunt.
                                   John Shimkus.
                                   Fred Upton.
                                   Ralph M. Hall.
                                   George Radanovich.