By: David Oxenford,
Wilkinson Barker Knauer LLP
As we highlighted in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations. The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation. When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here). But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules). Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.
Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months. In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.
We have obviously seen some more attention being paid to enforcement issues in recent months. In addition to the consent decrees signed by hundreds of radio broadcasters for political file violations (see our articles here and here), there have been a recent spate of consent decrees entered into by broadcasters both noncommercial (see our article here) and commercial (see our mention here in one of our weekly updates) based on more general failures to maintain a complete and current online public inspection file. We have also noted an uptick in questions about EEO performance raised in connection with license renewal application filings. There have been enforcement inquiry letters sent by the FCC on other issues too, including EAS compliance. We also noted the recent enforcement updates issued by the FCC reminding broadcasters of their obligations under FCC rules, including the one on sponsorship identification about which we wrote here. Maybe it is just a perception, but enforcement issues seem to be a priority for the FCC.
Obviously, compliance with FCC rules should always be the highest of priorities among any participants in a heavily regulated industry like broadcasting. But every now and then, the FCC seems to take steps to remind broadcasters of their obligations. This seems to be one of those times – so broadcasters, take note.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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