- The CALM Act banned excessively loud television commercials, but it doesn’t apply to streaming TV.
- Consumers lodge thousands of complaints annually about loud commercials, and they’re on the rise.
- The FCC almost enforced the act twice in the past decade. Audio engineer experts are trying to fix it.
- See more stories on Insider’s business page.
On July 1, 1941, New York’s NBC station made history by airing the world’s first television commercial.
With about 4,000 televisions in the region at the time, audience-wise it was not all that different from paying a guy to yell about a product in Times Square. The ad for Bulova watches cost $9 and ran for 10 seconds. But the world changed forever.
A decade year later, in 1954, a similar moment occurred in the annals of television history. The Federal Communications Commission got its first consumer complaints about loud commercials on television.
Needless to say, it’s pretty much all gone downhill since.
The pandemic has forced people to spend more time in front of the television than they have in ages. Simple questions like “Is it just me or are the ads way louder than ‘Jeopardy!’ every night?” provoke evocative answers. Casually asking people if they’ve experienced loud commercials yields one of two general responses: “It’s so annoying!” and “It’s way worse on my streaming TV service.”
If you’re hearing things, you’re not alone: the four-month period from November 2020 to February 2021 saw FCC complaints of loud commercials up 140% compared to the same period a year ago, more than double the volume of complaints.
There is a law on the books – the CALM Act, passed in 2011 – that is supposed to rein in loud commercials. But the FCC hasn’t done any enforcement on it in the better part of a decade.
Most significantly of all, for the people angry about explosively loud ads on streaming, there’s absolutely nothing the FCC can do about that even if they were enforcing it. What’s more, it’s not entirely clear there’s any way to do anything about that even through Congress.
The CALM Act is supposed to regulate loud commercials but the FCC hasn’t enforced it
The story goes that Rep. Anna Eshoo wrote the CALM Act after a loud television commercial interrupted dinner, which may be the single best argument for being an elected member of Congress I have ever heard.
It cascaded through the legislature, passing the Senate unanimously and the House in a voice vote before then-President Barack Obama signed it. Eshoo remarked at the time it was the most popular piece of legislation she had ever introduced in Congress.
The CALM act is actually fairly simple; it doesn’t say “commercials must be this loud” and it doesn’t get into the nitty gritty of how to measure that or enforce it or what consequences shall befall an operator who violates it. It’s fairly clever: all it actually says is that broadcasters and cable operators have to abide by the A/85 standard approved by the Advanced Television Systems Committee, and that the FCC has to enforce that.
A/85 is essentially an intricate, 72-page technical document that gets extremely specific about how things should sound. It’s not written for most of us to understand. But it does set acceptable bounds for the soundscape of television.
The experts wrote A/85, and Congress passed a law that said A/85 is mandatory, so Congress doesn’t have to learn about audio and the problem gets solved.
It’s a smart approach, because Congress is home to lawyers, doctors, activists, and people with all manner of expertise, but conspicuously no audio engineers, and the Advanced Television Systems Committee is understandably full of them. Congress took a standard that industry professionals had approved, and simply started requiring it.
A/85 required the average loudness of a commercial should be about as loud as the dialnorm, or the average dialogue level of a show. Because commercials can appear on your screen through a number of different ways from a number of different sources – such as being inserted by the local station or television provider, or embedded with the content itself – a standard for the whole system, top to bottom, at least formalizes the acceptable volume.
After an initial surge in complaints about loud commercials to the FCC following the Act’s passage and implementation, the bill largely had the desired impact, with complaints leveling off after a few years.
“FCC data I’ve seen shows consistent annual decreases in complaints since 2014,” Eshoo told Insider. “If that trend has changed, investigations are warranted.”
The past several months show complaints on the rise, according to an Insider analysis of the FCC database of complaints. Should the current rate hold, 2021 is poised to be the worst year since the initial rollout.
All that said, on a practical level, the CALM Act is not enforced.
There is no pipe exiting a cable company that says “out” and there is no meter on that imaginary pipe that says “too loud.” In reality, large stations and providers were supposed to spot-check once a year during the first two years of the rollout, doing 24 hours of monitoring over a seven-day period. If they found a problem, they were supposed to tell the FCC. You will be positively shocked to discover that only two small stations asked for a waiver while they fixed issues they found.
And since then? The FCC doesn’t audit stations. The agency will only investigate in the event that a pattern or trend emerges based on consumer-submitted complaints. From 2012 to 2019, consumers submitted 47,909 complaints to the FCC about loud commercials.
“In 2013, the Enforcement Bureau sent letters of inquiry to two separate companies addressing potential violations of the CALM Act and associated regulations,” an FCC spokesperson told Insider in an email, drawing from a 2020 letter from FCC Commissioner Ajit Pai responding to questions from Eshoo. “There were no violations found in either case and there are no public documents associated with these letters of inquiry. Since the 2013 letters of inquiry, the Enforcement Bureau analyses have not uncovered any pattern or trend of complaints supporting further inquiry.”
That is to say, the sum total of FCC enforcement on disproportionately loud commercials in the decade since the CALM Act has amounted to two letters – and no enforcement.
In 2014, the FCC did update their technical standards to address a clever workaround that some commercials had discovered. Basically, if the average volume of your commercial has to be on par with the average volume of the program, then you could hypothetically craft a 30-second advertisement that is 15 seconds of silence and 15 seconds at twice the volume of the program and technically not violate the standard, as you’ve technically maintained the average. The 2014 update discouraged this.
Despite thousands of complaints per year, the FCC has not discerned the kind of “pattern or trend of complaints” to support further inquiry.
The FCC declined to answer Insider’s questions regarding what precisely would qualify as a pattern or trend of complaints, whether the recent rise in complaints would qualify as a pattern or trend, or a question regarding the number of people working on CALM Act enforcement at a given time.
“If CALM Act-related complaints are increasing, the FCC should analyze the complaints to understand what is driving the shift,” Eshoo said. “If an analysis of the complaint data shows a pattern of legitimate complaints against specific companies, the FCC must investigate those companies. If the Commission finds violations through its investigations, it should bring enforcement actions.”
Increased enforcement could stymie the surge in complaints. However, as streaming television rises and cords are cut, more and more Americans are getting their television from services that are not covered by the CALM act, which applies to MVPDs, or multichannel video programming distributors, which is the official legal name for cable providers.
So, why not just pass a CALM Act for streaming?
The government can’t actually regulate streaming services
When Insider asked that question of experts in government, legislature, and the industry, the response was similar to asking “Why not legalize civil unions for leprechauns” or “When will the Federal Aviation Administration crack down on Pogo sticks,” in that it reveals a fundamental misunderstanding about what the FCC is.
“The FCC’s subject matter jurisdiction is communication by wire or radio,” said Gigi Sohn, a Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy. “The FCC doesn’t have jurisdiction over devices.”
The streaming landscape is vastly different from television. It may look like television, but it’s legally something else entirely, and while the offerings of a virtual over-the-top service may look nearly identical to the offerings of a traditional cable television service, legally it’s completely different, and not under the regulation of the FCC.
Streamers such as Netflix, Disney+, HBO Max, Youtube TV, FuboTV, Sling TV, and Hulu with Live TV may look aesthetically similar to a cable package, but from the perspective of the FCC, you may as well ask them to regulate your toaster. The FCC simply lacks jurisdiction over streaming services.
One side effect of this lack of jurisdiction is that for loud commercials, the FCC can’t do a thing. And the agency can’t address any of the other anxieties of modern streaming, including local blackouts, delivery issues, billing, usage caps, content exclusivity, bans, or any of the other policies enacted by fiat by the largest media companies on the planet.
Toward the end of the Obama administration, niche virtual streaming services sought classification as MVPDs. The companies – Pluto TV and Sky Angel – wanted the FCC to expand the definition of MVPD to include streamers like them, arguing that they should be under the FCC’s direction. In 2014, FCC chairman Tom Wheeler supported the move and the FCC began considering the shift.
“They determined the benefits that accrue to them justified the FCC oversight,” said Sohn, who was working for Wheeler at the time.
But the move to expand the definition was opposed both by legacy MVPDs, as well as larger streaming companies, such as Amazon, which did not want the FCC encroaching on their business, with the main fear being that any regulation would open the door to further regulation.
Proponents of the change needed three of the five commissioners of the FCC to approve it.
“We didn’t have the votes,” Sohn said. The move never went through.
Commissioner Ajit Pai, who opposed the move, shortly after became the FCC chair, functionally killing the proposal. Last year there was some movement from network affiliates to reconsider it, but for the foreseeable future the virtual streaming services are unregulatable, and part of that means they can run commercials however loud they please.
While there is nothing to stop the FCC from adapting a definition of multi-channel video provider that would include the virtual providers, or even streaming services, the result would likely be a massive lawsuit that they would probably lose very badly.
In order for the FCC to have any authority over streamers, Sohn said, Congress would have to pass a law.
“I think this is a huge fight that might happen some day,” she said. “It’ll be a battle royale. Streaming services don’t want to be regulated.”
However, the difficulties that Congress faces in regulating streaming television doesn’t mean erratic commercial volumes on streaming is going to be a problem forever.
The small committee you’ve never heard of that might actually end loud annoying streaming ads
When Congress passed the CALM Act, they passed a law that essentially took an existing audio industry standard and instructed the FCC to take the necessary steps to enforce that standard.
Right this moment, the Audio Engineering Society is designing a new audio standard for streaming television.
David Bialik is a systems engineer and the co-chair of the Audio Engineering Society’s Technical Committee on Broadcast & Online Delivery. If you’ve never heard of them, you’ve definitely heard them. This is the group of audio engineers who design the standards for much of how America’s media diet sounds.
The reason you change the channel and one isn’t materially louder than another, or if you’ve gone to a concert and not seen drastically different sounds between sets – all of that is genuine scientific work agreed upon by pros and at times set as standards.
And those standards may be the ticket to a better experience on web-based streaming.
The process by which an idea becomes a standard is not entirely like the serpentine process by which a bill becomes law. Think of it as a version of the Schoolhouse Rock song “I’m Just A Bill,” but instead of a bill it’s an intricate technical document, instead of congressional committees it’s a technical committee of audio experts, and in lieu of congressional votes it’s approval by the broader audio committee.
The equivalent of the presidential signature that makes it “law” is a vote that elevates the technical document to an official Standard, a move that in A/85’s case was carried out by the Advanced Television Systems Committee, but other standards go different routes.
Right now, the Audio Engineering Society’s technical committee is working on a new technical document that would address loudness on streaming services. And if it works, the issues of variable volumes on digital television could be solved without Congress at all.
“My hope is to see this released within the next 4 to 5 months,” Bialik told Insider. The gist is that programming material will come with loudness controls within metadata, indicating precisely how loud programming should be. They’re now getting comments from the 90 members of the committee. “It is our hope that our work gets elevated to a standard.”
“This isn’t something we’re taking lightly,” he added. The bigger players have good reason to play ball, namely because a unified consumer sound experience is good for the field as a whole.
“You want your content to be the same level as everyone else’s, on a level playing field,” Bialik said. A user touching the volume knob is bad. “When you invite the audience to touch the volume knob, you invite them to touch other knobs, too.”
Despite the many issues, Congress has been mulling an update to the 1992 Cable Act, which was the last major overhaul of the cable system. Needless to say, in the intervening years the landscape of television has changed somewhat, and to that end Republican Rep. Steve Scalise and Democratic Rep. Eshoo jointly introduced the Modern Television Act of 2019.
There’s little consumers can do outside of sending in official FCC complaints, or even just complaining about it on social media. In fact, those techniques are genuinely effective.
“I periodically hear from constituents about the annoyance of loud ads on streaming services and that worries me. I’ve also seen complaints on social media,” Eshoo said.
“Right now, I’m examining how large of a problem it is. If there is a real problem that we see beyond anecdotal reports, I will certainly consider legislation to address it.”