§ 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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