Nanny State Says: “Shhhhh! That Commercial is Too Loud!”

by on October 8, 2009 · 27 comments

steigman-steve-blown-awayWhen the government tells someone to shut up, we call it censorship and the First Amendment requires the government to defend its regulation. But what if the government just says, “Shhhh… could you please turn that down?” Rep. Anna Eshoo’s Commercial Advertisement Loudness Mitigation Act (“CALM Act” - HR 1084) would do just that: require the FCC to issue rules that broadcast and cable TV ads:

(1) … shall not be excessively noisy or strident;

(2) … shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and

(3) [their] average maximum loudness…  shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany.

Now,  I understand where Ms. Eshoo is coming from: I have a very low tolerance for noise in general and for television in particular—and it’s not just about commercials. (I find TV news at least as “noisy” and “strident” as commercials. That’s why I opted-out from the whole TV thing in about 2000. Yup, that’s right: I found better things to do with my time and the supposedly all-powerful “gatekeepers” of Hollywood couldn’t do a damn thing about it. You should try it if you don’t like what’s on TV! To paraphrase Voltaire, “I disapprove of what you say watch,  but I will defend to the death your right to say watch it! You can get most of what’s worth watching on DVD or online anyway.) But do we really need bureaucrats in Washington micromanaging volume levels? Maybe Congressmen would have a little more time to read the bills they vote for if they they weren’t so busy fiddling with everyone else’s remote!

Eshoo’s bill has passed the House Energy & Commerce Committee’s Communications Subcommittee just as the TV industry is completing work on voluntary standards of their own. That’s one “less restrictive” alternative to regulation. What about technological empowerment? If Americans really hate loud commercials so much, why don’t they demand TVs with built-in volume normalization features? But this bill isn’t merely unnecessary, it would also set a disturbing precedent in at least six ways.

First, while it might seem that a regulation could draw clear lines with simple rules here about volume, Cliff Stearns (R-Fl) points out that “it is difficult to regulate volumes, since commercials are produced by a number of studios and companies that use different technologies and volume standards.” But this ambiguity merely increased the potential for selective enforcement, which would exist even where it were possible to craft precise rules.  Because the law makes no distinction about “non-commercial” (i.e., not-for-profit) advertisements, this means a politicized FCC could use volume controls as a weapon against opposing political advertising or other non-profit speech it did not like. Anyone who’s ever lived under a Home Owner’s Association should understand how easily an HOA president with a personal grudge could use hyper-technical rules about what shade of blue you have to paint your own mailbox to harass you. And isn’t “strident” the very adjective most commonly used to write off the arguments of those with whom we disagree?

Second, even though it does not exempt non-commercial ads, the bill does embody a recurrent presumption that it’s ok to regulate advertising in ways we wouldn’t accept for the “show” itself (i.e., non-advertising content). Of course, the show could be “commercial” (which, in First Amendment terms, means it would generally get only “intermediate” scrutiny) while the advertisement could be “non-commercial”—such as a political ad. But even if most ads are commercial, so what? If the government is going to protect us from “noisy or strident” commercials, why not all “noisy or strident” programming? Even the most annoying TV ad is probably less annoying than, say, the James Carvilles of the world debating the Glenn Becks of the world. (Of course, users really bothered by noise, but unwilling to give up TV, would probably much rather have a dynamic market for TVs with volume moderating features than rules that dull the din of commercials alone.)

Third, I’m sure that the government would defend Eshoo’s bill, if signed into law, as a restriction on the “time, place and manner” of speech. Although such restrictions are much easier for the government to defend than most restrictions on speech, the government must still show that the regulation is “narrowly drawn” and “serves a significant government interest.” So… what’s the interest here? I’m a little disturbed by the idea that the government has a “significant interest” in what goes on in the space between Americans, their couches, and the electronic display of their choosing. (If we were talking about non-consensual “second-hand television” like TVs blaring in airports, I might be slightly more sympathetic: It’s awfully hard to escape the sound of TV when you’re stuck at the gate waiting for a flight. But commercials are only marginally more annoying to me than most TV, and airport TVs generally show news anyway—the height of annoyingness. I’d much rather see airports, bars, etc. adopt directional sound technologies so that users can move out of the “blast radius” and into peace and quiet simply by moving over a few seats.)

Fourth, I understand that most users probably do wish that commercials probably weren’t so loud. But, this very fact, combined with the ease with which users can now skip all commercials (36% of U.S. homes have a DVR), creates a pretty powerful incentive for the TV industry to self-regulate the volume level of advertising. “Noisy or strident” advertising is just another example of the “tragedy of the commons” at work: Absent any rules, every individual advertiser has an incentive to jack up the volume in order to attract attention, and doing so will probably work up to a certain point of increased annoyance by the user. But collectively, such ads hurt all advertisers because they increase ad blindness, ad deafness, and/or outright commercial skipping. The same dynamic plays out on the Internet, where flashing, blinking, bouncing, strobing dancing ads really drive users nuts and make them turn to tools like AdBlock Plus and Flashblock—which is why ad networks like Google have policies that implement their own “time, place and manner” rules out of pure self-interest. Such rules are useful and valuable. They benefit advertisers, consumers and the ad network alike, because there exists a basic harmony of interests between them: annoying ads don’t really benefit anyone in the long-term.  Do we really want government bureaucrats making these decisions instead?

Fifth, if the FCC has a “significant” interest in “protecting” us from annoying TV ads, why shouldn’t the FTC protect us from annoying ads online? Here, the problems of government making rules become even more obvious as the medium is far more dynamic. But users already have radical user empowerment tools.

Finally, what about the unintended consequences of such regulation? For example, will intermediaries be responsible for compliance?

Rep. Zack Space (D-Ohio), raised the issue of the impact of the bill on small cable operators. He said that while he was not disputing the need for uniform commercial volume, he said the bill, “perhaps unintentionally” was prejudiced [against] small operators.

He pointed out that many of those operators did not insert ads themselves or have “the right to alter national feeds unilaterally, like some of the bigger cable companies.” He said that those operators “simply pass through broadcast signals and have no means of adjusting the volume of commercials on the stream.”

If the FCC were to hold ad-distributor intermediaries liable for the volume-compliance of ad-producers, that could certainly disadvantage small distributors and perhaps even promote consolidation—both horizontal and vertical. But isn’t media consolidation the great evil that “media reformistas” are constantly warning us about?

  • http://www.facebook.com/robb.topolski Robb Topolski

    Hi Berin, it'll be too bad if federal law is what's required to get commercial advertisements under control. That said, Cliff Stearns answer rings like Sen. Steven's “series of tubez” to me. Allow me to apply this thought directly to your forehead: The ad industry sometimes is a race to the bottom where the most obtrusive and annoying. It would truly be hell if every commercial is being delivered in Billy Mays's style. Thank God for DVRs. I hope the bill doesn't pass, but I hope that it lasts long enough to push the industry into fixing the problem. –Robb

  • jeffhammond001

    Ad Loudness Mitigation legislation seems to have been knocking around for quite some time (I posted on it 18 months ago.. http://whispershout.blogspot.com/2008/06/intrus… ). The challenge to advertisers is, as Robb implies, not seeking to outshout to be heard. Opt-in, behavioral, context-based marketing would make a whisper more effective than a shout, imo. Of course, those approaches may also be the subject of legislative attention.

  • bobexample

    Why shouldn't MY government get rid of these annoying behaviors if the advertisers are jerks.

    MY government is there for me first and not corporations using my airwaves.

    This is not a nanny state issue. This is a government doing what its people demand.

  • http://srynas.blogspot.com/ Steve R.

    A while back, Jim Harper posted Consumer Protection, Internet Style: ProFlowers.com. In that post Jim was lamenting about the disingenuous business practices of that company, I threw in my Verizon complaint. You had a somewhat adverse reaction to my assertion that iwhen companies act badly, they should be regulated. Now, both Bob and Rob weigh on this issue noting that the add industry is taking the “liberty” of being annoying and obtrusive. So why should we silently take this abuse?

    As I have previously discussed, before you get to the issue of regulation there is self-responsibility. One of the the CATO Institute's summary of Libertarianism is that “Libertarianism is thus the combination of liberty (the freedom to live your life in any peaceful way you choose), responsibility (the prohibition against the use of force against others, except in defense), and tolerance (honoring and respecting the peaceful choices of others).” Companies, like the government, do not have an implicit right to intrude or act irresponsibly. So when they do (such as Comcast), instead of lamenting over proposed regulation; where are the posts calling for them to act ethically? Act responsibly and you won't get regulated.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Robb, you are correct that: “The ad industry sometimes is a race to the bottom where the most obtrusive and annoying.” That's precisely what I meant when I said that ““Noisy or strident” advertising is just another example of the 'tragedy of the commons' at work.”

    So, yes, the answer is regulation, if by “regulation” we mean setting rules for use of the commons so that there won't be this race to the bottom of each advertiser trying to go louder than the others, each of them bearing only a fraction of the cost of increased ad-skipping or ad-deafness on the part of consumers.

    The question is whether we think the FCC will really do a better job than self-regulation by industry and, if so, whether this advantage is worth the costs I outline above. I'm skeptical. Again, the television industry has a strong incentive to fix this problem on their own, so if they're finally on the verge of adopting self-regulation, why not wait and see how that develops?

  • http://srynas.blogspot.com/ Steve R.

    Berin, Good Response.

  • Jim Reardon

    This legislation seems like a solution in search of a problem. It appears to be an ill-conceived idea to resolve conflict in a world of declining social skills. Perhaps Ms. Eshoo lives with an inconsiderate spouse or child who cannot be told to “turn down” the television? Or maybe she herself is a passive-aggressive type who is aiming to to “get even” for what she perceives to be a failure of others, but is in fact her own failure to communicate her preferences within her own living space.

    Noise and/or stridency is often exactly what a viewer seeks when turning to television entertainment. Any parent could comment on this. Why should the commercials look any different than the programs themselves?

    A restriction on “modulation levels” is outdated and unnecessary. Back in the day when television audio was delivered on an FM carrier, “modulation levels” were meaningful and the FCC did limit modulation levels without legislation. The purpose of this regulation was to prevent modulation wars among FM radio broadcasters who would seek to present the “loudest” signal on the FM “dial”. However, today we have digital radios and televisions; channel selection no longer involves tuners and dials. There is no “modulation level” that directly relates to the loudness of audio.

    The technical control of program volume is within the capability of broadcasters today. Audio is all bits these days and modern signal processing can not only control the volume, but a whole variety of other sound characteristics. As the article points out, technology in the hands of consumers can do away with advertising altogether (not to mention the programming itself). Furthermore, many modern televisions contain a feature that limits audio volume automatically — a feature that many people never activate!

    The real problem today is that “televisions” are no longer self-contained products. Often, a television is a mere display, combined with elaborate surround sound systems with front and rear speakers and dedicated bass amplification. It is this equipment that is responsible for the wide variation in sound levels contained in digital programs presented by cable, satellite, and over-the-air digital broadcasters. It is the transition between programming encoded one way (e.g., 5.1 Dolby) and commercials without such encoding, and then back again, that is so objectionable — even to the person who is trying to watch the television.

    But this problem is solvable. Broadcasters here in Los Angeles are still trying to figure out how to transition smoothly from a high-definition source to a standard-definition source, and back again. They often broadcast malformed signals with wrong aspect-ratio and bad audio. But they're learning. They've only had this problem since June, thanks to a meddling Congress. The issue of uneven audio levels will be technically be resolved. The incentive to do so already exists: viewer retention is a life or death matter for these broadcasters.

    Like Berin, this legislation is pointless in our household. The television mostly gathers dust. But if one were to make a real contribution to the utility of television, the last part of Eshoo's legislation should simply be turned around:

    [their] average maximum loudness… shall not be substantially lower than the average maximum loudness of the commercial material that such programs accompany.

    This idea would resolve a real problem for our aging population of people who have reduced hearing acuity ad who must adjust the television volume up very high in order to merely hear the programming!

    But in the end, either approach is just Nanny State meddling. I hope Ms. Eshoo is doing something else in Congress to earn her wage and status. This is a waste of time.

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  • Douglas

    Hey, hasn't a company in Eshoo's district recently come out with a product that would make compliance with this law pretty easy?

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  • Jschmede

    All the bill requires is that the commercial ad's decibel level not exceed that of the show. It makes sense that if you are watching a show, you shouldn't have to turn it down during a commercial because the commercial is played at twice the volume as the show you're trying to watch.

    Yes, you can say that the bill violates our freedoms or rights as Americans, but the bill is not regulating the content. One could argue that noise ordinances are a violation of our first amendment using the same logic, which is absurd; if someone was screaming through a megaphone in your ear you would request that person turn it down.

    To allow this problem to go unchecked could result in excessively loud commercials. Commercials could blow the speakers on all your electronics, since there is no law that says they can't broadcast as loud as they want.

    I think the article above by Berin completely misrepresents the actual battle that is happening right now. The bill does not require that the volume be at a level that is not audible. Also, the user has the choice to turn up the volume. A loud show followed by commercials that I can't quite hear sounds better to me than a show I can hardly hear followed by blaring advertisements.

    Advertisers who disagree with the bill have many other medium options to choose from. There is no regulation of volume on the internet; as all of us have probably experienced. There is the radio, video games, newspapers, magazines, live events, movies, yellowpages, billboards, mail, refrigerator magnets, etc.

    So for those of you who immediately say any regulation is bad, read the bill, learn what it entails, the effects it will have, and ask yourself if it really is a bad thing, if it really is violating any persons rights or the constitution, and why those affected (such as advertisers) would fight so hard to keep it from passing. Then ask yourself if you are preconditioned to think all government regulation is bad.

    I for one, a practitioner of free speech and a protector of the constitution, full heartedly support the bill.

  • Jschmede

    All the bill requires is that the commercial ad's decibel level not exceed that of the show. It makes sense that if you are watching a show, you shouldn't have to turn it down during a commercial because the commercial is played at twice the volume as the show you're trying to watch.

    Yes, you can say that the bill violates our freedoms or rights as Americans, but the bill is not regulating the content. One could argue that noise ordinances are a violation of our first amendment using the same logic, which is absurd; if someone was screaming through a megaphone in your ear you would request that person turn it down.

    To allow this problem to go unchecked could result in excessively loud commercials. Commercials could blow the speakers on all your electronics, since there is no law that says they can't broadcast as loud as they want.

    I think the article above by Berin completely misrepresents the actual battle that is happening right now. The bill does not require that the volume be at a level that is not audible. Also, the user has the choice to turn up the volume. A loud show followed by commercials that I can't quite hear sounds better to me than a show I can hardly hear followed by blaring advertisements.

    Advertisers who disagree with the bill have many other medium options to choose from. There is no regulation of volume on the internet; as all of us have probably experienced. There is the radio, video games, newspapers, magazines, live events, movies, yellowpages, billboards, mail, refrigerator magnets, etc.

    So for those of you who immediately say any regulation is bad, read the bill, learn what it entails, the effects it will have, and ask yourself if it really is a bad thing, if it really is violating any persons rights or the constitution, and why those affected (such as advertisers) would fight so hard to keep it from passing. Then ask yourself if you are preconditioned to think all government regulation is bad.

    I for one, a practitioner of free speech and a protector of the constitution, full heartedly support the bill.

  • http://profiles.yahoo.com/u/WG5NQZOJM4QIDA54ZDHPZSLDL4 tsimm97

    We should not have only two options, suffer with the noise or get rid of the tv. With the sweatheart deals the companies that own tv stations I don't think it will destroy the constitution by requiring them to have the comercials no louder than the volume you are watching the program. I love people who think they are so enlightened because they don't watch tv. I'm not impressed.

  • http://profiles.yahoo.com/u/WG5NQZOJM4QIDA54ZDHPZSLDL4 tsimm97

    We should not have only two options, suffer with the noise or get rid of the tv. With the sweatheart deals the companies that own tv stations I don't think it will destroy the constitution by requiring them to have the comercials no louder than the volume you are watching the program. I love people who think they are so enlightened because they don't watch tv. I'm not impressed.

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