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Thursday, December 17, 2009

Congresswoman, CALM Thyself! LA Times Eschews Eshoo Nanny State Bill to Regulate Ad Volume
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The LA Times has come out swinging in a devastating editorial against Rep. Anna G. Eshoo's (D-CA) Commercial Advertisement Loudness Mitigation (CALM) Act, passed by the House on Tuesday. As Adam Thierer and I have discussed (here, here, and here), and as Ken Ferree notes here, this silly paternalist law would 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.

The LA Times's pithy response: "Ads too loud? Try 'mute.'" Three cheers for trusting users to take advantage of the simple tools available to them to make these decisions for themselves (like the "mute" button on their remote), instead of leaping to legislative solutions:
Eshoo might have the public on her side, but as a representative of Silicon Valley, she should be more wary of having the government dictate technological solutions to problems that individuals can solve themselves. The market is already responding -- more than 30% of TV viewers use ad-skipping video recorders. Besides, as dissenting Republicans on the House Energy and Commerce Committee pointed out,"Americans' televisions still have volume control, and remote controls still have 'mute' buttons. Consumers do not need the government to come into their homes and operate their remote controls for them." With all the challenges facing the country, you'd think lawmakers could find better things to do than invite themselves into their constituents' living rooms.

Besides the broad philosophical precedent that this elitist law sets (consumers are too stupid and helpless to take care of themselves so government must do it for them), I explained in some detail five other reasons why this law is a terrible idea when I blogged about it in October:

  1. Technologically, it's not as easy as it sounds to impose such volume limitations, which creates the possibility for selective enforcement that could be used for political or other non-content-neutral manipulation by the FCC (i.e., "stealth censorship").
  2. The bill embodies 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).
  3. To survive a First Amendment challenge, the government would have to show that it has a "significant interest" in what goes on in the space between Americans, their couches, and the electronic display of their choosing. Lowering the bar to include annoying commercials in that critical term would allow government to get away with other restrictions on speech in the future that might not seem so desirable to even some supporters of this bill.
  4. The fact that most users probably do wish that commercials probably weren't so loud, 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.
  5. 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? The War on Advertising is, in fact, a War on "Free," because consumers will end up paying more for content or getting less of it, if advertising is restricted as a funding source for the creators of content and services enjoyed by consumers.
On the other hand, Congress doesn't really have any other more pressing issues to deal with! Since things are just hunky-dory in the Land of the Free (and just-slightly-less-prosperous- then-usual), it's a good thing that our elected representatives are taking care of important issues we "ordinary" citizens couldn't possibly take care of ourselves, given our painfully limited mental capacities as "average" users (i.e., "vegetables with hair--unable to use any tool..., no matter how simple, and barely able to tie their own shoelaces without government reminding them how). Of course, since we can't seem to operate our own remote controls to mute commercials or use DVRs to skip them completely, we are also apparently all too stupid to figure out that we don't actually need to pay hundreds or even thousands of dollars a year to find the video programming of our choice on the increasing array of options available online-- so government has to regulate that too!

Now, why can't government "do something" about all those "excessively loud" voices constantly putting counter-revolutionary, bourgeois, cyber-libertarian ideas inside my head?

P.S. Obviously, I am only disguised as a homo sapiens, since no mere human being could possibly have both figured this out and managed to write it all down in one of those content-management-blog-do-hickey-thing-a-ma-bobbers. Also, if I were actually human, clearly I would "care more" about the plight of my fellow, helpless simpletons who are relentlessly bombarded with excessively loud commercials with no means of defending themselves (that they can use--lacking, as they do, the mental equivalents of opposable thumbs).


posted by Berin Szoka @ 12:25 PM | Advertising & Marketing , Free Speech , Philosophy / Cyber-Libertarianism

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