§ 76.607   Transmission of commercial advertisements.

   (a) Transmission of commercial advertisements by cable operator or other
   multichannel video programming distributor. (1) Mandatory compliance with
   ATSC  A/85  RP. Effective December 13, 2012, cable operators and other
   multichannel video programming distributors (MVPDs), as defined in 47 U.S.C.
   522, must comply with ATSC A/85 RP (incorporated by reference, see § 76.602),
   insofar as it concerns the transmission of commercial advertisements.

   (2) Commercials inserted by cable operator or other MVPD. A cable operator
   or other multichannel video programming distributor that installs, utilizes,
   and  maintains  in  a commercially reasonable manner the equipment and
   associated  software  to  comply  with ATSC A/85 RP shall be deemed in
   compliance with respect to locally inserted commercials, which for the
   purposes  of  this  provision are commercial advertisements added to a
   programming stream by a cable operator or other MVPD prior to or at the time
   of transmission to viewers. In order to be considered to have installed,
   utilized  and  maintained  the  equipment and associated software in a
   commercially reasonable manner, a cable operator or other MVPD must:

   (i) Install, maintain and utilize equipment 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;

   (ii)  Provide  records  showing the consistent and ongoing use of this
   equipment in the regular course of business and demonstrating that the
   equipment has undergone commercially reasonable periodic maintenance and
   testing to ensure its continued proper operation;

   (iii) Certify that it either has no actual knowledge of a violation of the
   ATSC A/85 RP, or that any violation of which it has become aware has been
   corrected promptly upon becoming aware of such a violation; and

   (iv) Certify that its own transmission equipment is not at fault for any
   pattern or trend of complaints.

   (3) Embedded commercials—safe harbor. With respect to embedded commercials,
   which,  for  the  purposes  of  this  provision,  are those commercial
   advertisements placed into the programming stream by a third party (i.e.,
   programmer)  and passed through by the cable operator or other MVPD to
   viewers,  a  cable  operator  or  other MVPD must certify that its own
   transmission  equipment  is  not  at fault for any pattern or trend of
   complaints, and may demonstrate compliance with the ATSC A/85 RP through one
   of the following methods:

   (i) Relying on a network's or other programmer's certification of compliance
   with the ATSC A/85 RP with respect to commercial programming, provided that:

   (A) The certification is widely available by Web site or other means to any
   television  broadcast  station,  cable operator, or multichannel video
   programming distributor that transmits that programming; and

   (B) The cable operator or other MVPD has no reason to believe that the
   certification is false; and

   (C) The cable operator or other MVPD performs a spot check, as defined in
   § 76.607(a)(3)(iv)(A), (B), (D), and (E), on the programming in response to
   an enforcement inquiry concerning a pattern or trend of complaints regarding
   commercials contained in that programming;

   (ii) If transmitting any programming that is not certified as described in
   § 76.607(a)(3)(i):

   (A) A cable operator or other MVPD that had 10,000,000 subscribers or more
   as of December 31, 2011 must perform annual spot checks, as defined in
   § 76.607(a)(3)(iv)(A), (B), (C), and (E), of all the non-certified commercial
   programming it receives from a network or other programmer that is carried
   by any system operated by the cable operator or other MVPD, and perform a
   spot  check, as defined in § 76.607(a)(3)(iv)(A), (B), (D), and (E), on
   programming in response to an enforcement inquiry concerning a pattern or
   trend of complaints regarding commercials contained in that programming; and

   (B) A cable operator or other MVPD that had fewer than 10,000,000 but more
   than 400,000 subscribers as of December 31, 2011, must perform annual spot
   checks, as defined in § 76.607(a)(3)(iv)(A), (B), (C), and (E), of a randomly
   chosen 50 percent of the non-certified commercial programming it receives
   from a network or other programmer that is carried by any system operated by
   the cable operator or other MVPD, and perform a spot check, as defined in
   § 76.607(a)(3)(iv)(A), (B), (D), and (E), on programming in response to an
   enforcement inquiry concerning a pattern or trend of complaints regarding
   commercials contained in that programming; or

   (iii) A cable operator or other MVPD that had fewer than 400,000 subscribers
   as  of December 31, 2011, need not perform annual spot checks but must
   perform a spot check, as defined in § 76.607(a)(3)(iv)(A), (B), (D), and (E),
   on programming in response to an enforcement inquiry concerning a pattern or
   trend of complaints regarding commercials contained in that programming.

   (iv)  For  the  purposes  of  this section, a “spot check” of embedded
   commercials requires monitoring 24 uninterrupted hours of programming with
   an  audio loudness meter compliant with the ATSC A/85 RP's measurement
   technique, and reviewing the records from that monitoring to detect any
   commercials transmitted in violation of the ATSC A/85 RP. The cable operator
   or other MVPD must not inform the network or programmer of the spot check
   prior to performing it.

   (A) Spot-checking must be conducted after the signal has passed through the
   cable operator or other MVPD's processing equipment (e.g., at the output of
   a set-top box). If a problem is found, the cable operator or other MVPD must
   determine the source of the noncompliance.

   (B)  To  be  considered  valid,  the cable operator or other MVPD must
   demonstrate appropriate maintenance records for the audio loudness meter.

   (C)  With  reference  to  the  annual  “safe  harbor”  spot  check  in
   § 76.607(a)(3)(ii):

   (1)  To  be  considered  valid,  the cable operator or other—MVPD must
   demonstrate, at the time of any enforcement inquiry, that appropriate spot
   checks had been ongoing.

   (2) If there is no single 24 hour period in which all programmers of a given
   channel are represented, an annual spot check could consist of a series of
   loudness measurements over the course of a 7 day period, totaling no fewer
   than 24 hours, that measure at least one program, in its entirety, provided
   by each non-certified programmer that supplies programming for that channel.

   (3) If annual spot checks are performed for two consecutive years without
   finding evidence of noncompliance with the ATSC A/85 RP, no further annual
   spot  checks  are  required  to remain in the safe harbor for existing
   programming.

   (4) Newly-added (or newly de-certified) non-certified channels must be
   spot-checked annually using the approach described in this section. If
   annual spot checks of the channel are performed for two consecutive years
   without finding evidence of noncompliance with the ATSC A/85 RP, no further
   annual  spot checks are required to remain in the safe harbor for that
   channel.

   (5) Even after the two year period, if a spot check shows noncompliance on a
   non-certified channel, the cable operator or other MVPD must once again
   perform annual spot checks of that channel to be in the safe harbor for that
   programming. If these renewed annual spot checks are performed for two
   consecutive years without finding additional evidence of noncompliance with
   the ATSC A/85 RP, no further annual spot checks are required to remain in
   the safe harbor for that channel.

   (D) With reference to the spot checks in response to an enforcement inquiry
   pursuant to § 76.607(a)(3)(i)(C), (ii), or (iii):

   (1) If notified of a pattern or trend of complaints, the cable operator or
   other MVPD must perform the 24-hour spot check of the channel or programming
   at issue within 30 days or as otherwise specified by the Enforcement Bureau;
   and

   (2) If the spot check reveals actual compliance, the cable operator or other
   MVPD must notify the Commission in its response to the enforcement inquiry.

   (E) If any spot check shows noncompliance with the ATSC A/85 RP, the cable
   operator  or  other MVPD must notify the Commission and the network or
   programmer within 7 days, direct the programmer's attention to any relevant
   complaints,  and must perform a follow-up spot check within 30 days of
   providing such notice. The cable operator or other MVPD must notify the
   Commission and the network or programmer of the results of the follow-up
   spot check. Notice to the Federal Communications Commission must be provided
   to the Chief, Investigations and Hearings Division, Enforcement Bureau, or
   as otherwise directed in a Letter of Inquiry to which the cable operator or
   other MVPD is responding.

   (1) If the follow-up spot check shows compliance with the ATSC A/85 RP, the
   cable operator or other MVPD remains in the safe harbor for that channel or
   programming.

   (2) If the follow-up spot check shows noncompliance with the ATSC A/85 RP,
   the cable operator or other MVPD will not be in the safe harbor with respect
   to commercials contained in programming for which the spot check showed
   noncompliance until a subsequent spot check shows that the programming is in
   compliance.

   (4)  Use of a real-time processor. A cable operator or other MVPD that
   installs, maintains and utilizes a real-time processor in a commercially
   reasonable manner will be deemed in compliance with the ATSC A/85 RP with
   regard to any commercial advertisements on which it uses such a processor,
   so long as it also:

   (i)  Provides  records  showing the consistent and ongoing use of this
   equipment in the regular course of business and demonstrating that the
   equipment has undergone commercially reasonable periodic maintenance and
   testing to ensure its continued proper operation;

   (ii) Certifies that it either has no actual knowledge of a violation of the
   ATSC A/85 RP, or that any violation of which it has become aware has been
   corrected promptly upon becoming aware of such a violation; and

   (iii) Certifies that its own transmission equipment is not at fault for any
   pattern or trend of complaints.

   (5)  Commercials  locally inserted by a cable operator or other MVPD's
   agent—safe harbor. With respect to commercials locally inserted, which for
   the purposes of this provision are commercial advertisements added to a
   programming stream for the cable operator or other MVPD by a third party
   after it has been received from the programmer but prior to or at the time
   of transmission to viewers, a cable operator or other MVPD may demonstrate
   compliance  with  the ATSC A/85 RP by relying on the third party local
   inserter's certification of compliance with the ATSC A/85 RP, provided that:

   (i) The cable operator or other MVPD has no reason to believe that the
   certification is false;

   (ii) The cable operator or other MVPD certifies that its own transmission
   equipment is not at fault for any pattern or trend of complaints; and

   (iii) The cable operator or other MVPD performs a spot check, as defined in
   § 76.607(a)(3)(iv)(A), (B), (D), and (E), on the programming at issue in
   response  to  an  enforcement inquiry concerning a pattern or trend of
   complaints regarding commercials inserted by that third party.

   (6)  Instead of demonstrating compliance pursuant to paragraphs (a)(2)
   through (5) of this section, a cable operator or other MVPD may demonstrate
   compliance  with  paragraph  (a)(1)  of this section in response to an
   enforcement  inquiry  prompted  by a pattern or trend of complaints by
   demonstrating  actual  compliance with ATSC A/85 RP with regard to the
   commercial  advertisements  that  are  the subject of the inquiry, and
   certifying that its own transmission equipment is not at fault for any such
   pattern or trend of complaints.

   Note to § 76.607(a): For additional information regarding this requirement,
   see Implementation of the Commercial Advertisement Loudness Mitigation
   (CALM) Act, FCC 11-182.

   (b) [Reserved]

   [ 77 FR 40300 , July 9, 2012]

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