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Media Bureau Grants Two Calm Act Waivers

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Released: December 11, 2012

Federal Communications Commission

DA 12-2013

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Implementation of the Commercial Advertisement
)
MB Docket No. 11-93
Loudness Mitigation (CALM) Act
)

MEMORANDUM OPINION AND ORDER

Adopted: December 11, 2012

Released: December 11, 2012

By the Chief, Policy Division, Media Bureau:

I.

INTRODUCTION

1. The Media Bureau has before it two requests for a temporary waiver of the December 13,
2012 effective date for complying with the Commission’s rules implementing the Commercial
Advertisement Loudness Mitigation (CALM) Act.1 First, the South Georgia Governmental Services
Authority (SGGSA), a municipal cable system, has filed a financial hardship waiver request pursuant to
Section 2(b)(2) of the CALM Act.2 Second, CMCG Portland License LLC, the licensee of television
station WPFO, Waterville, Maine (“WPFO” Facility ID No. 84088), has filed a general waiver request
pursuant to Section 2(b)(3) of the CALM Act and Section 1.3 of our rules.3 For the reasons discussed
below, we grant SGGSA and WPFO temporary waivers to the extent described herein. In addition, on
our own motion, we waive the filing deadline for streamlined waivers, and will accept as timely-filed
streamlined financial hardship waiver requests filed on or before December 13, 2012.

II.

BACKGROUND

2. On December 13, 2011, the Commission released a Report and Order adopting rules
implementing the CALM Act.4 As mandated by the statute, the Commission incorporated into its rules by
reference and made mandatory the Advanced Television Systems Committee (ATSC) A/85
Recommended Practice (“RP”),5 which describes how the TV industry can monitor and control the audio

1 Pub. L. No. 111-311, 124 Stat. 3294 (2010) (codified at 47 U.S.C. § 621).
2 Petition for a Financial Hardship Waiver filed by South Georgia Governmental Services Authority (dated Sept. 14,
2012) (“SGGSA Waiver Request”).
3 Request for General Waiver filed by CMCG Portland License LLC, licensee of WPFO (dated Oct. 12, 2012)
(“WPFO Waiver Request”).
4 Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, MB Docket No. 11-93,
Report and Order, 26 FCC Rcd 17222 (2011) (CALM Act Report and Order).
5 See ATSC A/85: “ATSC Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness
for Digital Television” (Nov. 4, 2009). The most current version of the RP, released July 25, 2011, is available at
the ATSC website: http://www.atsc.org/cms/standards/a_85-2011a.pdf. ATSC is an international, non-profit
organization developing voluntary standards for digital television. The ATSC member organizations represent the
broadcast, broadcast equipment, motion picture, consumer electronics, computer, cable, satellite, and semiconductor
industries. ATSC creates and fosters implementation of voluntary Standards and Recommended Practices to
advance digital television broadcasting and to facilitate interoperability with other media. See
http://www.atsc.org/aboutatsc.html.

Federal Communications Commission

DA 12-2013

of digital TV programming. The rules take effect on December 13, 2012 and will require digital TV
broadcasters, digital cable operators, satellite TV providers and other digital multichannel video
programming distributors (MVPDs) to ensure that the commercials they transmit to viewers comply with
the RP.6
3. The CALM Act includes two waiver provisions. The first allows the Commission to grant a
waiver of the effective date to any station/MVPD that shows it would be a “financial hardship” to obtain
the necessary equipment to comply with the rules.7 The Commission established a four-part test for
demonstrating “financial hardship” for purposes of the CALM Act, requiring the station/MVPD to
provide: (1) evidence of its financial condition, such as financial statements; (2) a cost estimate for
obtaining the necessary equipment to comply with the required regulation; (3) a detailed statement
explaining why its financial condition justifies postponing compliance; and (4) an estimate of how long it
will take to comply, along with supporting information.8 The Commission established a streamlined
process to request this waiver for small stations and MVPDs, requiring only a certification of its size and
the equipment necessary.9 Streamlined waivers are considered granted upon submission, unless the
Media Bureau notifies the station/MVPD otherwise.10 The second waiver provision expressly reserves
the Commission’s general authority to grant a waiver for good cause.11 In the CALM Act Report and
Order
, the Commission stated its interest in providing for waivers where appropriate, while balancing this
objective against the interests of consumers in realizing the benefit of the CALM Act without undue
delay.12

III.

DISCUSSION

A.

SGGSA

4. We grant SGGSA a waiver of the December 13, 2012 effective date, allowing it until January
31, 2013 to comply with the CALM Act rules.13 As an initial matter, we reject SGGSA’s claim that it
qualifies for the streamlined waiver process. We find that SGGSA is not eligible for the streamlined
waiver process for a “small MVPD system,” which is defined (for purposes of the streamlined waiver) “as
one with fewer than 15,000 subscribers (as of December 31, 2011) that is not affiliated with a larger
operator serving more than 10 percent of all MVPD subscribers.”14 SGGSA’s four individual

6 See 47 C.F.R. §§ 73.682(e)(1), 76.607(a)(1).
7 47 U.S.C. § 621(b)(2). The Commission observed that the legislative history indicated that Congress intended it to
interpret “financial hardship” broadly and, in particular, recognized “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 bill than television broadcast stations in larger markets or larger cable systems.” CALM Act Report and
Order
, 26 FCC Rcd at 17252, ¶ 50.
8 CALM Act Report and Order, 26 FCC Rcd at 17252, ¶ 51. The Commission did not require waiver applicants to
show negative cash flow; rather, the Commission required only that the station or MVPD’s assertion of financial
hardship be reasonable under the circumstances. Id. at 17252-53.
9 CALM Act Report and Order, 26 FCC Rcd at 17253, ¶ 52.
10 Id.
11 47 U.S.C. § 621(b)(3). See 47 C.F.R. § 1.3 (the Commission’s rules “may be suspended, revoked, amended, or
waived for good cause shown, in whole or in part, at any time by the Commission” and “[a]ny provision of the rules
may be waived by the Commission on its own motion or on petition if good cause therefore is shown.”).
12 See CALM Act Report and Order, 26 FCC Rcd at 17251, ¶ 49.
13 47 C.F.R. § 76.607.
14 CALM Act Report and Order, 26 FCC Rcd at 17254, ¶ 54.

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DA 12-2013

communities share the use of one headend and share the same physical ID number (PSID) 016794, and
collectively serve more than 18,000 subscribers.15 With respect to SGGSA’s four-part financial hardship
waiver showing, SGGSA indicated it needed $98,500 worth of equipment to comply with our rules.16 In
light of staff discussions with SGGSA, we have determined that this showing was based on a
misunderstanding of what equipment was necessary to comply with our rules. After discussion with
Commission staff, SGGSA has determined that it can comply with the CALM Act rules by January 31,
2013. Accordingly, we find that SGGSA has shown good cause for us to grant it a temporary waiver of
the effective date until January 31, 2013, pursuant to Section 2(b)(3) of the CALM Act and Section 1.3 of
the Commission’s rules.

B.

WPFO

5. We grant WPFO a waiver of the December 13, 2012 effective date, allowing the station until
March 14, 2013, to comply with the CALM Act rules.17 WPFO seeks a temporary waiver of the
December 13, 2012 effective date because the station will be moving or upgrading its studio facilities at
that time. WPFO explained that it plans to upgrade its equipment after it accomplishes its move, and that
such upgrade includes installation of the equipment that will allow it to comply with the CALM Act
rules.18 After discussion with Commission staff, WPFO has stated that WPFO expects to sign a lease on
December 14, 2012, and that it will need three months from this date to build out the space.19 We find
that WPGO has shown good cause for us to grant it a temporary waiver of the effective date until March
14, 2012, pursuant to Section 2(b)(3) of the CALM Act and Section 1.3 of the Commission’s rules. We
agree with WPFO that this will avoid “duplication of expense for installing and removing the equipment
before it is installed in the upgraded studio facilities.”20 Accordingly, we find that this temporary waiver
is in the public interest.

C.

Late-Filed Streamlined Waiver Requests

6. We received several streamlined financial hardship waiver requests after the filing deadline.
On our own motion, we will grant streamlined financial hardship waiver applicants a waiver of the filing
deadline and will accept as timely-filed those streamlined financial hardship waiver requests filed on or
before the December 13, 2012 effective date.21 We find this is in the public interest, and consistent with
Congress’ intent to afford small entities more time to comply with the CALM Act rules. As stated in the
CALM Act Report and Order, small broadcast stations and small MVPDs may consider the streamlined
waiver granted when they file this information online and receive an automatic “acknowledgement of
request,” unless the Media Bureau notifies them of a problem or question concerning the adequacy of the
certification.

IV.

ORDERING CLAUSES

7. Accordingly, IT IS ORDERED that, pursuant to Section 2(b)(3) of the CALM Act, 47 U.S.C.
§ 621(b)(2), and Section 1.3 of the Commission’s rules, 47 C.F.R. § 1.3, we GRANT SGGSA a waiver to
the extent described above.

15 See SGGSA Waiver Request at 3.
16 Id. at 4.
17 47 C.F.R. § 73.682(e).
18 WPFO Waiver Request at 1.
19 WPFO told FCC staff that it does not know if the lease will be at a new location or in its current building.
20 WPFO Waiver Request at 2.
21 47 C.F.R. §§ 0.283, 1.3.

Federal Communications Commission

DA 12-2013

8. IT IS ALSO ORDERED that, pursuant to Section 2(b)(3) of the CALM Act, 47 U.S.C. §
621(b)(2), and Section 1.3 of the Commission’s rules, 47 C.F.R. § 1.3, the request for general waiver filed
by WPFO IS GRANTED to the extent described above.
9. IT IS ALSO ORDERED that, pursuant to Section 2(b)(3) of the CALM Act, 47 U.S.C. §
621(b)(2), and Section 1.3 of the Commission’s rules, 47 C.F.R. § 1.3, we waive on our own motion the
filing deadline for streamlined financial hardship waiver requests and accept as timely-filed any such
streamlined waiver requests filed in the docket on or before December 13, 2012.
10. This action is taken by the Chief, Policy Division, Media Bureau, pursuant to the authority
delegated by Section 0.283 of the Commission’s rules.22
FEDERAL COMMUNICATIONS COMMISSION
Mary Beth Murphy
Chief
Policy Division
Media Bureau

22 47 C.F.R. § 0.283.

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