Loud television commercials are a problem at our house. During television shows my wife and I tell the kids "Turn it up!" because we can't hear as well as they do- at the volume they are comfortable with the shows sound like mumbling to us. But when the commercials come on they are so loud we all jump. Representative Anna Eshoo (D-CA ) and Senator Sheldon Whitehouse (D-RI) have introduced legislation designed to reduce the loudness of television commercials. Would this legislation be constitutional? Yes, and here's why.
In this AP story, it is reported that Representative Eshoo and Senator Whitehouse have introduced identical legislation in the House and Senate addressing the problem of loud television commercials. In the House it is bill number H.R. 1084, and in the Senate it is S. 2847. The bill is entitled "Commerical Advertisement Loudness Mitigation Act" (or CALM Act). The operative portion of the proposed law states:
Within 1 year after the date of enactment of this Act, the Federal Communications Commission shall prescribe pursuant to the Communications Act of 1934 (47 U.S.C. 151 et seq.) a regulation that is limited to incorporating by reference the `Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television' (A/85), and any successor thereto, approved by the Advanced Television Systems Committee, only insofar as such recommended practice concerns the transmission of commercial advertisements by a television broadcast station, cable operator, or other multichannel video programming distributor.
According to its website, the Advanced Television Systems Committee is a private, international, non-profit organizations that develops voluntary standards for digital television. On November 5 the ATSC issued this press release announcing that it had developed a Recommended Practice on "loudness management." The press release quotes ATSC President Mark Richer as stating:
"The new Recommended Practice provides the industry with uniform operating strategies that will optimize the audience listening experience by eliminating large changes in sound levels."
The proposed legislation would turn this "Recommended Practice" into a legally mandated standard, but it would apply this standard to commercial advertisements only. I am not sure that makes sense – the purpose of the law would seem to be that commercials should be no louder than the programming, not that commercials should not be louder than each other – but assuming that the FCC understands what Congress is asking it to do and that this is technologically feasible, would this law be constitutional?
Yes. First of all, under the Commerce Clause Congress has the power to regulate the broadcast industry. Television broadcast signals move interstate, so this is well within Congress' power to "regulate commerce among the several states."
Second, under the doctrine of Separation of Powers, Congress has authority to enact legislation prescribing the responsibilities of administrative agencies within the executive branch, and may, if it chooses, either enact statutes that agencies must enforce or prescribe regulations that the agencies must issue and enforce. Congress may, if it chooses, even defund or disband an administrative agency. Accordingly, there is no problem with Congress instructing an executive branch agency to adopt a particular regulation.
Third, the First Amendment poses no bar to the enactment of this law. This is not a regulation of the content of television commercials. The proposed legislation is a "content neutral" law, that is, a law regulating the time, place, or manner of speech; it is not regulating the ideas that are being expressed. Content neutral laws are evaluated under a lower standard called "intermediate scrutiny," which requires only that the law be narrowly tailored to serve an important governmental interest, and that the law must leave open ample alternative channels of communication. In other words, the law may regulate the time, place, or manner of speech so long as it does not substantially cut off opportunities for expression. The CALM Act would not seem to significantly abridge the ability of advertisers to express themselves.
The Supreme Court has upheld local noise ordinances before, in Kovacs v. Cooper (1949) (upholding municipal ordinance banning sound trucks) and Ward v. Rock Against Racism (1989) (upholding municipal regulation allowing city technicians to control the volume and mix of acoustical equipment at an outdoor bandshell in an urban area). I believe that the Court would uphold this proposed federal law as well.
Professor Huhn has taught Constitutional Law at The University of Akron School of Law for over 25 years. You may access his website on constitutional law for materials relating to his course as well as links to other sources of information on constitutional law.
{ 7 comments… read them below or add one }
Could they make the law? Probably. If there is one angle that I would pursue as a broadcaster, it would be along First Amendment grounds. Considering all of the expanded definitions of speech, it is hard to believe that you couldn't include raised voices as part of speech. Not necessarily to the level of screaming, but a raised voice is a natural part of speaking.
Should they make the law? Of course not. The purpose of Congress is not to micro manage the country. Magnavox sells a feature they call Smart Sound, this will automatically adjust the level on your tv. The market has provided a solution.
Who gets their TV via broadcast signal? I think this number is hovering around 10%. So even if congress fixes the problem, they will only fix it for a small fraction of the country.
Now the feds shoehorning their way into cable tv, that leads to interesting questions and case law.
How about background soundtracks in movies? I can't hear the actors talk but then the music, etc., just blares. And why not look into regulating the use of electric piano in rock and roll music. Robby Krieger's guitar work is completely lost on most Doors songs because that dang keyboardist. And maybe Congress should also look into the smell of pumpkin pie, which at this time of year overwhelms the smell of fresh baked Chicago rolls that I usually enjoy in the Kroger's bakery area.
Maybe you are right larry, maybe we should embrace these things.
How about we get down to the business of regulating beverage sizes.
If you have 3 sizes, they are to be known as small, medium and large. Imagine the nerve of having regular, large and jumbo. Don't get me started on tall, grande and venti. Still others have king size, fish bowl, big gulps and pints.
Of course a small at one place can be a different size than another place. Maybe we should define how many ounces constitutes a small beverage. Who hasn't been disappointed by a inadequate portion of juice. This could even lead to more efficient law enforcement. The question, 'How many drinks have you had?', is arbitrary in a world without synchronized sizes.
You are right, Dave. I once accepted a cashier's offer to upsize to a "large" Number One at McDonalds and received a soft drink so gargantuan that it would not fit in my car's cupholder and by the time I reached my job interview I was unhireable because it looked like I had urinated in my pants from holding the darn thing while I drove.
Of course at the same time, the Big Mac I received was the exact same size as the "medium" Number One. Any legislation would be better than what we have now.
This is all part of my plan to regulate pizza sizes. There are less names for the sizes, but there are still differences in what can be called medium. Then there is the problem of non-circular pizzas. We should not have to try to compare surface areas of different geometrical shapes.
My fear is that we may need to get the UN involved because it comes from Italy.
You're so right and come to think of it, "deep dish" has become a cruel joke–all bread. And what the heck is the difference between "original" crust and "hand-tossed"? It's the Wild West out there in the wake of all of Bush's deregulation.
Interesting how all of a sudden FCC is about to address loudness when for decates the FCC denied the occurrence and said it was a figment of the public's imagination. Now HOW ABOUT ELIMINATING LOGOGRAMS OR SYMBOLS THAT ARE PLASTERED ALL over every channel ruining viewing pleasure? Love this site! ! ! ! !