On July 8, NAB filed comments asking the Federal Communications Commission (FCC) to establish commercially reasonable rules in implementing the Commercial Advertisement Loudness Mitigation (CALM) Act. In the CALM Act, Congress ordered the FCC to require broadcasters and MVPDs to use the Advanced Television Systems Committee's (ATSC) Recommended Practice, ATSC A/85, to mitigate the perceived loudness of commercials in television transmissions.

The CALM Act outlined a safe harbor for stations to be deemed to be in compliance with the FCC rules if the station installs, utilizes, and maintains in a commercially reasonable manner the equipment and associated software necessary to comply with ATSC A/85. NAB asked the FCC to focus on whether a station has adopted a commercially reasonable process when determining whether the station qualifies for the statutory safe harbor. NAB also said that the safe harbor should cover not only commercials that the station inserts, but also those inserted by networks and third-party programming providers.

NAB's comments also encouraged the FCC to provide flexibility for small businesses and stations in small television markets, as well as providing a blanket waiver for small stations.

After the CALM Act was passed, ATSC added Annex J to A/85 to specifically set forth all necessary steps to effectively control the loudness of commercial advertising by broadcast television stations (and others).

NAB's comments asked the FCC to: (1) confirm that television stations will be subject only to the requirements of Annex J in ATSC A/85; (2) focus on commercially reasonable efforts when applying Annex J's requirements and the CALM Act's safe harbor compliance provision; (3) adopt a blanket waiver for small businesses and small markets and apply a reasonable deadline for requesting waivers in advance; (4) avoid any interpretation requiring stations that qualify for the safe harbor to demonstrate compliance on a per-commercial basis.

NAB specifically advocated that a station's practices should be deemed "commercially reasonable" if the station:

• obtains and readies for use equipment that measures the loudness of commercials transmitted to consumers consistent with ATSC A/85 Annex J;
• for commercials that the station inserts, uses the equipment in the ordinary course of business to properly measure the loudness of the content and to ensure that the dialnorm metadata value correctly matches the loudness of the content when encoding the audio into AC-3 for transmitting the content to the consumer;
• for commercials inserted by third-party programming providers, (1) contractually requires that the third-party make the measurements of the loudness of the commercials and the program content in a manner that is compliant with ATSC A/85 Annex J; (2) contractually requires that the third party either communicate the measured values to the broadcaster or conform the audio to a uniform loudness value; and (3) performs regular quality control measurements of the delivered audio to ensure that the third-party programming provider is meeting these contractual obligations; and
• performs periodic calibration of its equipment to ensure that the equipment continues to function in a proper manner and repairs malfunctioning equipment within 60 days.

You can read NAB's comments here.

Reply comments in MB Docket 11-93 are due July 21, 2011.