Legislative Trickle Becomes a Flood in Lame Duck Session
Members of the Communications Industry that don’t keep up with legal and political developments in Washington aren’t in the industry for long. That truism has been particularly apt in the past few months, starting with the President’s October signing of the Twenty-First Century Communications and Video Accessibility Act of 2010 which, among other things, cleared the way for reinstatement of the FCC’s former Video Description rules for television broadcasters, extended closed captioning of video programming to the Internet, and required the FCC to examine methods of increasing the accessibility of emergency information.
Normally, the weeks before a congressional election and the lame duck session afterwards are not a fertile environment for communications legislation, which has a tendency to be controversial because of the stakes involved (can you say “net neutrality”?). However, the Twenty-First Century Communications and Video Accessibility Act, which was spurred to passage by a congressional desire to commemorate the 20th anniversary of the Americans with Disabilities Act, was merely the beginning.
The lame duck session has now generated several more pieces of successful legislation. Last week the President signed the first of these, the Commercial Advertisement Loudness Mitigation Act, which requires television stations to transmit at a consistent volume level (rather than make viewers lunge for their mute button at every commercial break). Congress followed the CALM Act with passage of the Truth in Caller ID Act of 2009, which is now awaiting the President’s signature. This legislation prohibits manipulation of caller ID information with intent to defraud or harm others.
Apparently building steam, Congress proceeded to adopt the Local Community Radio Act of 2010 this past weekend, which reduces the extent of interference protection that full power radio stations will receive from Low Power FM stations, thus clearing the way for many more LPFM stations to be wedged into the FM radio band. This legislation is also now waiting for the President’s signature.
So, is there something in the DC drinking water that has a lame duck Congress suddenly tackling communications issues as though “gridlock” was only a term from morning traffic reports? Maybe. But the truth is more complicated than that. With regard to the CALM Act, controversy about loud television commercials dates back decades. The FCC long ago considered adopting rules to prohibit such “variable volume” broadcasting, but concluded in 1984 that “due to the subjective nature of many of the factors that contribute to loudness, it would be virtually impossible to craft new regulations that would be effective.” However, the transition to digital television has made it far more feasible to craft and enforce objective technical standards for loudness, lessening somewhat broadcasters’ concerns that regulation would lead to free-roaming loudness police second-guessing a station’s engineering practices.
Similarly, the LPFM interference issue has been simmering for a decade, with a succession of bills trying and failing to eliminate the requirement that LPFM stations protect full power stations’ third-adjacent channels from interference. However, what finally put the Local Community Radio Act over the top was a legislative compromise that, among other things, assured full power broadcasters that LPFM will be categorized as a secondary service to full power stations. This means that full power broadcast stations can continue to modify their facilities to improve their audience reach without finding themselves blocked by the interference such a modification might cause local LPFM stations. In light of this and other modifications to the bill, broadcasters were able to offer their support for its adoption, finally breaking the longstanding impasse.
So what’s next? Well, Congress remains keenly interested in communications issues, as evidenced by the lively discussion (and legislative threats) surrounding the FCC’s upcoming net neutrality order. Broadcasters, however, are hoping that this lame duck session concludes quickly, leaving the Performance Rights Act and its goal of requiring broadcasters to pay royalties to the recording industry the subject of continued inter-industry negotiations, rather than the latest statutory mandate emerging from the twilight hours of the 111th Congress.