United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2017 Decided October 17, 2017
No. 16-1222
MULTICULTURAL MEDIA, TELECOM AND INTERNET COUNCIL
AND THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of
the Federal Communications Commission
Caroline S. Van Zile argued the cause for petitioners. With
her on the briefs was Clifford M. Sloan.
Michael J. Gottlieb and Gregory J. Dubinsky were on the
brief for amici curiae Asian Americans Advancing Justice |
AAJC, et al. in support of petitioners.
Andrew Jay Schwartzman was on the brief for amici
curiae Former FCC Officials in support of petitioners.
Thaila K. Sundaresan, Counsel, Federal Communications
Commission, argued the cause for respondents. With her on the
2
brief were Robert B. Nicholson and Jonathan Lasken,
Attorneys, U.S. Department of Justice, Howard J. Symons,
General Counsel at the time the brief was filed, Federal
Communications Commission, David M. Gossett, Deputy
General Counsel, and Jacob M. Lewis, Associate General
Counsel. Richard K. Welch, Deputy Associate General
Counsel, entered an appearance.
Jerianne Timmerman was on the brief for amicus curiae
The National Association of Broadcasters in support of
respondents.
Before HENDERSON, KAVANAUGH, and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH,
with whom Circuit Judge HENDERSON joins and with whom
Circuit Judge MILLETT joins as to Part II.A.
Opinion concurring in part and dissenting in part filed by
Circuit Judge MILLETT.
KAVANAUGH, Circuit Judge: In some Administrative
Procedure Act cases, an agency is alleged to have acted
contrary to a statutory command or prohibition, or to have
exceeded the scope of statutory authority granted to the agency
by Congress. See, e.g., Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). In
other APA cases, by contrast, the agency is acknowledged to
have discretion under the relevant statute, but is alleged to have
exercised that discretion in an arbitrary and capricious (that is,
unreasonable) manner. See, e.g., Motor Vehicle Manufacturers
Association v. State Farm Mutual Automobile Insurance Co.,
463 U.S. 29 (1983).
3
In this case, petitioners raise both kinds of challenges – a
statutory argument and, in the alternative, an arbitrary and
capricious argument – to an FCC decision regarding the
nationwide emergency alert system. Under the FCC’s
decision, when broadcasters receive emergency alerts from
government entities, the broadcasters may, if they choose,
broadcast the alerts only in English. The broadcasters are not
required to translate emergency alerts and broadcast the alerts
in languages in addition to English. The FCC decided that it
needed to gather more information before it could conceivably
impose multi-lingual requirements of that kind on
broadcasters. We conclude that the FCC’s decision was
consistent with the relevant statute and was reasonable and
reasonably explained. We therefore deny the petition for
review.
I
The emergency alert system is a complicated endeavor.
The system involves the federal government, state
governments, and local governments. It also involves
hundreds of television stations, cable systems, and radio
stations, whom we will refer to collectively as “broadcasters.”
For purposes of this case, two groups are especially
relevant.
First are the alert originators who compose the emergency
alerts and transmit them to broadcasters. The alert originators
are ordinarily government entities – usually the National
Weather Service or state or local governments.
Second are the private broadcasters who act as passive
conduits for the emergency alerts. Broadcasters receive the
alerts from the alert originators and then broadcast those alerts
4
to the public. Importantly, the process by which broadcasters
receive and broadcast emergency alerts is automated and
automatic.
Alert originators can (and sometimes do) compose and
transmit alerts in languages in addition to English. And
broadcasters in those circumstances then automatically
broadcast the alerts in those other languages as well. But as
petitioners concede, the FCC lacks authority over alert
originators and therefore cannot compel alert originators to
transmit alerts in languages in addition to English. See Tr. of
Oral Arg. at 33-34.
By contrast, the FCC does have authority over
broadcasters who participate in the emergency alert system.
But as of now, the FCC does not require broadcasters to
translate emergency alerts into other languages and then
broadcast the alerts in those other languages as well as in
English. The FCC is studying (admittedly on what one might
call “bureaucracy standard time”) whether to require
broadcasters to do so. But before deciding that question, the
FCC for now has sought more comprehensive information on
whether and how broadcasters can translate emergency alerts
and broadcast them in languages in addition to English.
II
Several public interest organizations have challenged the
FCC’s decision to gather more information rather than to now
require broadcasters to translate alerts and broadcast the alerts
in multiple languages. Petitioners advance substantial policy
arguments. But the issue before us is one of law, not policy.
And under the law, the FCC’s approach passes muster.
5
A
First, petitioners raise a statutory argument. They contend
that the FCC’s decision violates Section 1 of the
Communications Act. Section 1 is the Act’s statement of
purpose. As amended in 1996, Section 1 provides that the FCC
operates “so as to make available, so far as possible, to all the
people of the United States, without discrimination on the basis
of race, color, religion, national origin, or sex, a rapid, efficient,
Nation-wide, and world-wide wire and radio communication
service.” 47 U.S.C. § 151.
The problem for petitioners is that this general policy
provision does not require the FCC to compel broadcasters to
broadcast emergency alerts in any language other than English.
To begin with, policy statements, “by themselves, do not create
statutorily mandated responsibilities.” Comcast Corp. v. FCC,
600 F.3d 642, 644 (D.C. Cir. 2010) (internal quotations
omitted). In addition, Section 1 by its terms does not impose
an affirmative obligation on the FCC to take any particular
action. Unlike other statutes, moreover, Section 1 says nothing
about English language abilities. Cf. Voting Rights Act § 2, 52
U.S.C. § 10303(f)(2) (“No voting qualification or prerequisite
to voting, or standard, practice, or procedure shall be imposed
or applied by any State or political subdivision to deny or
abridge the right of any citizen of the United States to vote
because he is a member of a language minority group.”).
If Congress intended to require multi-lingual
communications in general, and multi-lingual emergency alerts
in particular, we would expect Congress to have spoken far
more clearly than it has done in this general statement of
policy. See generally FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120 (2000). In short, Section 1 does not
obligate the FCC to require broadcasters to translate
6
emergency alerts and broadcast them in languages in addition
to English.
B
All of that said, Congress has not expressly prohibited
the FCC from requiring broadcasters in the emergency alert
system to translate emergency alerts and broadcast them in
languages in addition to English. Congress appears to have
granted the FCC the authority to decide that question. In other
words, under Congress’s various broadly worded grants of
authority to the FCC, the FCC apparently has discretion to
require participating broadcasters to translate emergency alerts
and broadcast them in languages in addition to English. 1
Based on that premise, petitioners argue that the FCC has
exercised its discretion in an arbitrary and capricious (that is,
unreasonable) manner by seeking more information from
broadcasters rather than using its authority to mandate multi-
lingual alerts now.
In arbitrary and capricious cases, we distinguish
substantive unreasonableness claims from lack-of-reasoned-
explanation claims. A substantive unreasonableness claim
ordinarily is an argument that, given the facts, the agency
exercised its discretion unreasonably. A decision that the
agency’s action was substantively unreasonable generally
means that, on remand, the agency must exercise its discretion
differently and reach a different bottom-line decision. By
contrast, a lack-of-reasoned-explanation claim in this context
1
To be precise, no one in this case disputes that the FCC has
statutory authority to require participating broadcasters to broadcast
alerts in other languages. For purposes of this case, we will therefore
assume without deciding that the FCC possesses such authority.
7
ordinarily consists of a more modest claim that the agency has
failed to adequately address all of the relevant factors or to
adequately explain its exercise of discretion in light of the
information before it. 2
In short, an agency’s exercise of discretion must be both
reasonable and reasonably explained. See Cytori Therapeutics,
Inc. v. FDA, 715 F.3d 922, 926 (D.C. Cir. 2013); National
Telephone Cooperative Association v. FCC, 563 F.3d 536, 540
(D.C. Cir. 2009). That “reasonable and reasonably explained”
standard is deferential: The court does not substitute its own
policy judgment for that of the agency. According to the
Supreme Court, moreover, an agency’s refusal to promulgate a
new rule is subject to even more deferential review: Review in
such cases is “extremely limited and highly deferential.”
Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007) (internal
quotations omitted). At the same time, the standard of review
is not toothless: The court must ensure that the agency’s
action – and the agency’s explanation for that action – falls
within a zone of reasonableness. See State Farm, 463 U.S. at
43.
The precise legal question here, therefore, is whether the
FCC has exercised its discretion in a manner that was
reasonable and reasonably explained.
On this record, it was not unreasonable for the FCC to
gather more information from relevant parties before deciding
2
As those familiar with administrative law understand,
however, a court sometimes issues a decision on lack-of-reasoned-
explanation grounds that, in reality, leaves the agency little to no
choice but to reach a different substantive result on remand. In those
circumstances, the court’s conclusion that the agency failed to
adequately explain its exercise of discretion can be equivalent (in its
effects) to a substantive unreasonableness decision.
8
whether to compel broadcasters to translate emergency alerts
and broadcast them in languages in addition to English.
To begin with, the National Association of Broadcasters
has noted in its amicus brief that affected individuals who do
not understand English often rely on sources other than the
traditional emergency alert system for information about future
and existing emergencies. For example, a separate wireless
emergency alert system now applies to wireless devices.
Individuals who select Spanish as their preferred language on
their mobile devices will receive emergency text alerts in
Spanish. Moreover, individuals who do not understand
English sometimes may rely on the same Internet, television,
and radio news sources that they ordinarily rely on to obtain
information in the languages that they understand. But those
alternative sources, while undoubtedly helpful, do not fully
resolve petitioners’ concerns because those sources, at least at
this time, are not always adequate substitutes in certain kinds
of emergencies.
As the FCC explained, the best way to ensure multi-lingual
emergency alerts through the traditional emergency alert
system would be for the alert originators – who themselves are
ordinarily federal, state, or local government entities – to
transmit emergency alerts to broadcasters in multiple
languages. See Final Order ¶ 20, J.A. 12. 3 That is because the
emergency alert system is automated and automatic.
Broadcasters operate as passive conduits between the alert
originators and the general public. The problem for petitioners,
as they concede, is that the FCC lacks authority to require alert
3
In certain States such as Florida, some alert originators do
transmit emergency alerts in Spanish. Tr. of Oral Arg. at 18. So too
in Puerto Rico, alert originators transmit alerts in Spanish. Id.
9
originators to offer the alerts in languages in addition to
English. See Tr. of Oral Arg. at 33-34.
To be sure, the FCC does regulate broadcasters. But to
reiterate, even though the FCC has authority over broadcasters,
broadcasters traditionally have been mere passive conduits for
emergency alerts. In other words, broadcasters traditionally
have not created or altered the content of emergency alerts
transmitted to them by the alert originators.
As the FCC has pointed out, moreover, there are real
practical and technological concerns about forcing
broadcasters into a new role in the emergency alert system.
The emergency alert system is largely automated. Many
broadcasters lack the personnel to translate and then broadcast
in other languages the emergency messages that they receive
from alert originators. In some circumstances, there may be no
personnel in the station at the time of an emergency alert. In
other circumstances, the broadcasters may have personnel
present in the station, but those personnel may lack the
language skills to make a translation into other languages.
In addition, broadcasters face stringent time constraints.
In emergencies such as tornadoes or floods or terrorist attacks,
every second can matter. By regulation, broadcasters must
broadcast state and local emergency alerts within 15 minutes
of receipt. See 47 C.F.R. § 11.51(n). They must broadcast
Presidential emergency messages immediately. In addition,
the alert messages themselves typically must be no more than
two minutes. See 47 C.F.R. § 11.33(a)(9). Therefore,
broadcasters would have to translate an alert, squeeze both the
original and translated messages into two minutes (at most),
and broadcast both messages within 15 minutes of receipt of
the alert. Because broadcasters would not have much time
10
during emergencies to accomplish all of that, they would
presumably need to have personnel available at all times who
could translate emergency alerts into multiple languages.
Broadcasters are not currently equipped to meet such a
requirement.
On top of that, petitioners’ approach would change an
automated system into a system with a substantial possibility
of human error in translation (as well as potential after-the-fact
liability against broadcasters for erroneous translations). The
current automated and automatic system – with the onus on
alert originators to provide multi-lingual alerts when they see
fit to do so – does not carry that same risk of inaccuracies.
In considering this question, moreover, it bears mention
that petitioners do not want alerts just in English and Spanish.
They want alerts in whatever languages might be commonly
spoken in particular local communities, such as (to name just a
few) Portuguese, Chinese, Vietnamese, Japanese, or Arabic.
Given the variety of languages in addition to English that are
spoken throughout the United States, that would be a difficult,
complicated, and costly task for many broadcasters.
In contending that the FCC has acted unreasonably here,
petitioners point to the FCC’s recent action requiring that
emergency alerts be made visually available to individuals with
hearing disabilities. Petitioners contend that this example
shows that the FCC could do something similar for people who
do not understand English. Congress mandated the visual
emergency alerts for persons with hearing disabilities. See
Twenty-First Century Communications and Video
Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751.
Congress has not issued a similar mandate for multi-lingual
alerts. In any event, petitioners’ point fails because the needs
of individuals with hearing disabilities can be met with a visual
11
crawl – no translation is necessary. By contrast, mandating that
broadcasters translate the content of alert messages into other
languages would require, among other things, that broadcasters
hire personnel who would be available at all times and could
translate alerts into other languages.
In arguing for multi-lingual alerts, petitioners advanced a
variety of specific proposals to the FCC. But the FCC
concluded that none of the proposals fully resolved the various
practical problems with requiring broadcasters to translate
alerts and broadcast them in languages in addition to English.
The vast majority of commenters opposed petitioners’ specific
proposals. The FCC concluded that “implementing”
petitioners’ specific proposals, “even in modified form, would
be difficult if not impossible to do within the existing EAS
architecture.” Final Order ¶ 2, J.A. 2.
Given all of the legal and factual circumstances
surrounding this issue at the present time, it likely would be
reasonable for the FCC to flatly say that the alert originators
(the federal, state, and local government entities) are the parties
responsible for deciding whether and when to issue emergency
alerts in languages in addition to English, and to leave the issue
with those government entities. In the words of the National
Association of Broadcasters in its amicus curiae brief, it may
be that the “only reasonable way to implement multilingual
EAS alerting is a top-down approach, with emergency
managers determining whether and how to issue non-English
EAS alerts, and broadcasters automatically passing on such
alerts.” Brief for National Association of Broadcasters as
Amicus Curiae Supporting Respondents, at 18. After all, alert
originators are not subject to the same practical and
technological constraints as the broadcasters. For example, for
an alert originator to transmit an alert in another language, it
would take only one translator rather than the hundreds or
12
thousands of translators for all of the broadcasters in the
relevant areas.
In any event, it is surely reasonable (even if frustrating to
petitioners) for the FCC to move cautiously and gather more
comprehensive information before deciding whether to force
private broadcasters to play a major new role in the emergency
alert system.
What about the separate question of whether the FCC
reasonably explained its decision here? The FCC’s
explanation was not lengthy. But “State Farm does not require
a word count; a short explanation can be a reasoned
explanation.” American Radio Relay League, Inc. v. FCC, 524
F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J., concurring in
part and dissenting in part). Here, the FCC reasonably
explained that shifting some of the responsibility for message
content from alert originators to broadcasters by requiring
broadcasters to translate and re-broadcast emergency alerts in
other languages would generate practical problems and could
undermine the workability of the emergency alert system at this
time. Ultimately, the FCC stated: “We agree with the majority
of commenters that alert originators are best positioned to
effect multilingual alerting.” Final Order ¶ 20, J.A. 12. For
that reason, the FCC said that it would seek more
comprehensive information before deciding whether to
transform the role of broadcasters in the emergency alert
system. The FCC’s explanation falls comfortably within the
zone of reasonableness for purposes of our deferential arbitrary
and capricious review under the Administrative Procedure Act.
* * *
Petitioners understandably want emergency alerts to be
provided in languages in addition to English. As the FCC
13
noted, the easiest solution to petitioners’ concern would be for
alert originators – the federal, state, and local government
entities – to transmit emergency alerts in languages in addition
to English in appropriate circumstances. But the FCC lacks
authority to compel such action by alert originators, as
petitioners concede. In the meantime, the FCC has chosen to
gather more information before deciding whether to implement
a second-best option of requiring broadcasters to translate
emergency alerts and broadcast them in multiple languages.
Petitioners want the Judiciary to force broadcasters to play
a major new role in the emergency alert system even though
Congress and the FCC have not yet required broadcasters to do
so. But the Judiciary does not make those kinds of policy
choices in our system of separation of powers. Under the law
and facts of this case, our judicial role is limited to assessing
whether the FCC’s decision was consistent with the relevant
statute and was reasonable and reasonably explained. We
conclude that the FCC cleared those bars. The FCC’s decision
to gather more information was consistent with the relevant
statute and was reasonable and reasonably explained. To be
sure, the FCC should move expeditiously in finally deciding
whether to impose a multi-lingual requirement on broadcasters,
or instead to leave the issue with alert originators and others.
At some point, the FCC must fish or cut bait on this question.
We deny the petition.
So ordered.
MILLETT, Circuit Judge, concurring in part, and dissenting
in part:
The federal Emergency Alert System provides immediate
life-saving information to the public when emergencies like
hurricanes, earthquakes, tornadoes, or terrorist attacks occur.
Since its inception, however, the Emergency Alert System has
only required that those life-or-death messages be broadcast in
English. In 2005, Hurricane Katrina laid bare the tragic
consequences of that gap when peoples’ lives were lost because
they could not understand the warnings. The Federal
Communications Commission, which regulates emergency
broadcasters, has repeatedly emphasized the urgency of
bridging that critical communications divide. After spending a
full decade studying the problem and potential solutions, the
Commission’s long-awaited answer to this crisis was to stall:
To simply ask for the third time a question for which it already
knew it would get no satisfactory response.
That is unreasonable. If the Commission needs new
information, it should ask for new information. If it believes it
should regulate, it should say so. If the Commission believes
it is not the right agency to address the problem, it should say
that and put the ball in what it thinks is the right court. At a
minimum, the Commission was obligated to explain why it
rejected the multiple solutions reasonably proposed to and
previously recognized by it. The problem of ensuring effective
communication to the public during crises is too grave to be
ensnared in seemingly interminable bureaucratic limbo.
Accordingly, while I join the court’s holding in Section II.A
that the Commission has not violated the anti-discrimination
provision of the Federal Communications Act, 47 U.S.C.
§ 151, I dissent from the holding that the Commission’s
regulatory foot-dragging is not arbitrary and capricious. I do
so for four central reasons.
2
First, at bottom, the majority opinion holds that it is
reasonable for the Commission to again solicit information
from States about voluntary efforts that they have undertaken
regarding the transmission of multilingual alerts. Final Order,
31 FCC Rcd. 2414, 2415 ¶ 1 (2016). Ordinarily no one would
begrudge an agency’s effort to compile relevant information
about a complicated problem. The problem here is that the
Commission (i) had already requested that same information
twice within the last ten years, including as recently as two
years before the Final Order, and (ii) had specifically found the
results of those requests unilluminating. See Record Refresh
Order, 29 FCC Rcd. 2682, 2689 (2014); Second Report, 22
FCC Rcd. 13,275, 13,307 ¶ 72 (2007).
In choosing to repeat an inquiry that has twice been asked
and answered, the Commission identified no reason to believe
that round three of reporting would reveal new ways to address
the multilingual problem. After all, the lack of helpful
feedback in those earlier reports was not due to any apparent
flaw in the nature of the earlier requests. It was because the
overwhelming number of States and localities simply have not
been taking voluntary measures to address the need for
multilingual alerts. Underscoring the emptiness of its measure,
the Commission candidly acknowledged in the Final Order that
the required reports are virtually certain to show what they had
already shown in 2007 and in 2014: The “vast majority” of
participants are doing nothing with respect to multilingual
alerts. Final Order, 31 FCC Rcd. at 2427 ¶ 25. The
Commission, in other words, knew it was fishing in a dry river
bed.
The closest the Commission comes to even hoping that the
information might have some future utility is its anemic
statement that the information “may provide insight into
structural impediments that might be ameliorated by future
3
Commission or federal action[,] if appropriate.” Final Order,
31 FCC Rcd. at 2426 ¶ 23 (emphases added). But of course the
earlier studies had already trod that same ground. When
confronted with an issue of admitted urgency and public safety,
“[d]oing the same thing over and over again and expecting
different results” would seem to be strong evidence of arbitrary
and capricious agency action. 1
Second, the Final Order’s exclusive focus on voluntary
efforts needs to be explained given that the Commission’s prior
attempts at using voluntary measures to ameliorate the
multilingual-access problem had failed miserably. In 2008, the
Commission tried what was called the “designated-hitter test,”
in which a specific station was chosen in advance to provide
emergency alerts in a second language if there were no other
stations broadcasting in that language during the emergency.
That approach floundered because no one was willing to
volunteer to serve as a designated hitter or a Local Primary
Spanish or Multilingual station. On top of that, “virtually no
parties” responded to the Commission’s past requests for
information about any voluntarily adopted “multilingual
[Emergency Alert System] activities currently in progress[.]”
Final Order, 31 FCC Rcd. at 2427 ¶ 25. The Final Order
provides no reasoned basis for thinking that anything has
changed. To the contrary, the Commission candidly expects
nothing different. See Final Order, 31 FCC Rcd. at 2425 ¶ 21
(“This requirement may be fulfilled by indicating that no steps
have been taken.”); id. at 2427 ¶ 26.
Third, the majority opinion says next to nothing about the
Commission’s unexplained blanket rejection of all of the
solutions proposed by petitioner Multicultural Media and
others. Majority Op. 11.
1
Quotation attributed to Albert Einstein.
4
Twelve years ago, six specific approaches to facilitating
the multilingual dissemination of emergency information were
presented to the Commission:
• Require all National Primary stations to air all
presidential messages in both English and Spanish,
and for all other stations to retransmit such
messages in both languages.
• Mandate that state and local Emergency Alert
System plans include a station designated as a
“Local Primary Spanish” station in any community
with a Latino population of either 50,000 or 5% of
the total market population, which would be
responsible for distributing local emergency alerts,
such as those from the National Weather Service,
in Spanish.
• Direct state and local plans to include a “Local
Primary Multilingual” station in any community
with a language minority population (such as
Vietnamese) of either 50,000 or 5% of the total
market population, which would be responsible for
broadcasting emergency alerts in a second
language.
• Require at least one station in each market to
monitor the Local Primary Spanish and Local
Primary Multilingual stations and rebroadcast their
emergency alerts in the second language as well as
English.
• Issue a rule requiring those stations that remain on
the air during an emergency to rebroadcast
emergency information in the second language if
5
the Local Primary Spanish or Local Primary
Multilingual station goes off the air.
• Encourage all broadcasters to assist a Local
Primary Spanish or Local Primary Multilingual
station damaged in an emergency to return to the
air as soon as possible.
After ten years of soliciting general comments and
additional submissions from petitioners (and others), the
Commission discarded those specific proposals en masse in the
last three paragraphs of the Order. The Commission stated
without elaboration that the “[p]roposals [a]re [u]nsupported
and [l]ack [s]pecificity.” Final Order, 31 FCC Rcd. at 2429.
It is textbook administrative law that the Commission
“must consider and explain its rejection of ‘reasonably obvious
alternatives’” to its proposed rule. National Shooting Sports
Found., Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013)
(quoting Natural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031,
1053 (D.C. Cir. 1979)). We are, moreover, “particularly
reluctant to blink at an agency’s ignoring ostensibly reasonable
alternatives where it admits, as the Commission has here, that
the choice embraced suffers from noteworthy flaws.” City of
Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1169 (D.C.
Cir. 1987). Confronted with a matter of critical public safety,
the Commission’s failure to explain why it chose the path of
expectedly ineffectual reporting, rather than any of the
proposed alternatives, compounds the unreasonableness of its
decision.
For example, the petitioners proposed that the
Commission require state plans to address multilingual alerts
in light of their populations’ particular needs. That proposal is
sufficiently tenable to warrant serious consideration. In fact,
6
the Commission-sponsored report following Hurricane Katrina
proposed “encourag[ing] state and local government agencies
* * * to take steps to make critical emergency information
accessible” to non-English speaking Americans. J.A. 182. The
Commission doubled down on this idea in its 2014 request to
refresh the record, expressly proposing that “one potential
approach” to addressing multilingual alerts is “for the
Commission to require that this issue be addressed as part of
state [Emergency Alert System] plans[.]” Record Refresh
Order, 29 FCC Rcd. at 2688. The Commission explained that
“incorporating this requirement into the state [Emergency Alert
System] plan rules would ensure that this issue is addressed in
a manner consistent with other parts of a state’s overall
[Emergency Alert System] planning.” Id. In addition,
allowing States to address multilingual alerts themselves would
alleviate concerns about “mandat[ing] ‘one size fits all’
solutions,” given the “variance of key factors, such as the
make-up of the local population, topography, etc., that applies
in each market.” Final Order, 31 FCC Rcd. at 2425 ¶ 20.
The proof of this model’s potential viability is in the
pudding. As the majority opinion notes (at 8 n.3), Florida and
Puerto Rico have successfully issued alerts in Spanish. In
addition, according to the Commission, Minnesota issues alerts
in four languages (English, Spanish, Hmong, and Somali).
Oral Argument Tr. at 18.
Yet when it came to the Final Order, the Commission was
inexplicably mute about this potentially workable approach.
After all, if “the determinative factors in disseminating non-
English [emergency] alert content are largely localized,” Final
Order, 31 FCC Rcd. at 2428 ¶ 28, mandating that local areas
and States individually address the need for multilingual alerts
and the best approach for providing them (i.e., whether through
7
alert originators or broadcasters) seems at least worth
considering.
Likewise, the Commission might have required the use of
decoders or encoders capable of issuing multilingual alerts.
The Commission has long been aware, as documented in this
very administrative record, that technology could likely be
developed to translate messages and alerts automatically. In its
first notice of proposed rulemaking in 2004, the Commission
observed that “products can be developed to convert the
[emergency alert] digital signal to provide aural and visual
messages in any language.” First Notice, 19 FCC Rcd. 15,775,
15,790 ¶ 40 (2004); see also Second Report, 22 FCC Rcd. at
13,295 ¶ 40 (discussing possible development of technology
that will enable “the simultaneous transmission of multilingual
messages”). In its notice seeking to refresh the record in 2014,
the Commission again sought comments on “the advancement
of possible technical solutions for multilingual alerting since
2007,” and the ability to use such technologies to translate
alerts. Record Refresh Order, 29 FCC Rcd. at 2689. This
approach would also alleviate the resource constraint and
human error concerns raised by the majority (Op. 8–10).
Even more importantly, by the time the Commission
issued its Final Order, some such technology apparently was
available. As the Commission itself explained in the Final
Order, there is technology capable of “generat[ing] multiple
language audio translations” and of “includ[ing]” “translations
of other language(s)” in text that crawls across the bottom of
broadcast screens. Final Order, 31 FCC Rcd. at 2418 ¶ 7; see
also Oral Argument Tr. at 26:22–25 (FCC Counsel:
“[Broadcasters] can take the incoming header codes of the alert
* * * and they can convert that into a basic visual crawl in
Spanish or in foreign Creole or any language and that’s entirely
automated.”); id. at 28:11–14 (FCC Counsel: “[S]o
8
[Emergency Alert System] participants can take English text
and user software to convert that into a Spanish audio and so
that is the technology that is available now.”). Moreover, the
technology is sufficiently reliable that the Commission has
encouraged participants to adopt it. See Final Order, 31 FCC
Rcd. at 2418 ¶ 7; see also Oral Argument Tr. at 27:6–11,
28:10–22.
Once more, the Final Order is completely silent as to why
that alternative could not be tried. The Commission never
explains why it cannot mandate that participants, either
generally or those designated as Local Primary Spanish or
Multilingual stations, investigate the use of available
technology to address the need for translation. After all, the
Commission already mandates that participants have
equipment capable of meeting other technical requirements,
such as transmitting a visual message to reach deaf individuals.
See, e.g., 47 C.F.R. § 11.51(h)(3).
One more illustration: The petitioners proposed that the
Commission assign Local Primary Spanish or Multilingual
stations the duty to translate and re-transmit any alerts. The
Commission never addressed this proposal in the Final Order
at all, let alone explained why it could not require States to
consider this option in their state plans.
Instead of analyzing those potentially viable options—
some of which the Commission itself had previously endorsed
as worthy of consideration—the Commission’s Final Order
seemingly throws up its hands in the face of an array of rules
that could make implementing new measures complicated.
The Commission notes that participants must air all alerts
within fifteen minutes of receipt, making it difficult to translate
the original alert in time. Final Order, 31 FCC Rcd. at 2417–
2418 ¶ 6; see 47 C.F.R. § 11.51(n). Participants could not get
9
around that problem by generating a second alert with the
translated message, the Commission reasoned, because the
system would reject a duplicative alert. Final Order, 31 FCC
Rcd. at 2418 ¶ 6 n.21; id. at 2429 ¶ 33 n.86; see 47 C.F.R.
§ 11.33(a)(10). Nor could the participants simply transmit
audio in both English and another language because, according
to the Commission, alert messages are limited to two minutes.
Final Order, 31 FCC Rcd. at 2418 ¶ 6; id. at 2429 ¶ 33 n.86;
see 47 C.F.R. § 11.33(a)(9).
The need for multilingual alerts is no doubt a complicated
problem—a point the majority opinion fairly acknowledges.
That presumably is why the Commission spent a decade
collecting needed information and studying options. But
invoking their regulations does not substitute for reasoned
decision making because those are largely barriers of the
Commission’s own making. It is the Commission’s rules that
require messages to be transmitted within fifteen minutes, that
treat a translated message as a duplicate message and bar its
transmission, and that require messages to be two minutes or
shorter in duration. Those rules, however, are not written in
stone; the Commission has considered their modification
before to improve the reach of alert transmissions. See Review
of the Emergency Alert System, Third Notice of Proposed
Rulemaking, 26 FCC Rcd. 8149, 8193–8194 ¶¶ 119–121
(2011) (proposing to create a new message originator or event
code for gubernatorial messages to facilitate mandatory
carriage of such alerts); id. at 8198–8199 ¶ 134 (requesting
comment on whether to expand the time frame for messages
from governors or to allow participants to disable the reset
function for such messages). Given the acknowledged
importance of addressing the language gap in the Emergency
Alert System, it was incumbent on the Commission to explain
why it could not also adjust its regulations to accommodate this
growing public-safety need.
10
Fourth, the majority opinion’s acceptance of more agency
temporizing loses sight of what is at stake here. Since 2006,
the Commission has repeatedly stressed that emergency alerts
are “essential to help save lives and protect property during
times of national, state, regional, and local emergencies.”
Review of the Emergency Alert System, Sixth Report and Order,
30 FCC Rcd. 6520, 6545 ¶ 53 (2015) (emphasis added). Such
alerts “must be accessible if the [System] is to fulfill its purpose
of informing all Americans * * * of imminent dangers to life
and property.” Id. at 6538 ¶ 37. That is why the Commission
has emphasized time and again “the need for all Americans—
including those whose primary language is not English—to be
alerted in the event of an emergency.” Second Report, 22 FCC
Rcd. at 13,306 ¶ 72; see also id. at 13,295 ¶ 40 (“We also affirm
our commitment that non-English speakers should have access
to EAS alerts[.]”); First Notice, 19 FCC Rcd. at 15,790 ¶ 40
(“We should also consider the needs of people with primary
languages other than English when considering the best method
of contacting the public during an emergency.”).
In addition, a report ordered by the Commission after
Hurricane Katrina expressly recommended that the
Commission “commence efforts to ensure that * * * non-
English speaking Americans receive meaningful alerts[.]” J.A.
141; see also J.A. 170–171 (discussing the failure to get
meaningful emergency alerts and information to non-English
speakers during the hurricane); J.A. 182 (listing steps the
Commission should take to “ensure that all Americans,
including those * * * who do not speak English, can receive
emergency communications”).
The Commission has inexplicably failed to match its
actions to its words. Unquestionably, the lives of non-English
speakers are just as much in need of saving as those of English
speakers. And the Commission forthrightly acknowledges that
11
effective communications through the Emergency Alert
System are just as vital for non-English speakers to receive as
they are for English speakers.
Even worse, the Commission knows that agency inaction
comes at a terrible price. When Hurricane Katrina and its
flooding hit, KGLA(AM)—the sole Spanish language station
in the New Orleans area—went off the air, leaving the city’s
tens of thousands of primarily Spanish-speaking residents
without ready access to vital information on the hurricane and
its aftermath, or to official guidance concerning safety
measures and places to get help. The consequences of that
communications shortfall proved deadly. For example, KGLA
reported that an entire Latino family, unaware of gas leaks in
the area, was killed after lighting a match in their home. In
addition, the National Council of La Raza reported that, when
the storm destroyed an apartment building in Gulfport,
Mississippi, 70 to 80 Jamaican, Peruvian, and Brazilian
residents went missing and were presumed dead because they
had not received the evacuation warnings in Spanish or
Portuguese. 2
Recent events underscore the singular importance of the
Emergency Alert System’s broadcast channels. When
Hurricane Maria hit Puerto Rico, 95% of the island’s wireless
cell sites went out of service, preventing residents from
accessing information on their mobile devices, cell phones, and
computers. At one point, a single radio station was the sole
source of emergency information for the entire island. 3
2
The report also recounted the story of a woman in New
Orleans who did not receive reports of flooding in her community
and barely managed to escape the rising waters with her two-year-
old son.
3
See Luis Ferré-Sadurní, Hurricane Maria Updates: In Puerto
Rico, the Storm ‘Destroyed Us’, N.Y. TIMES, Sep. 22, 2017,
12
With lives on the line, a decade of study would seem to
have been ample time to decide something. Or at the very least
to provide some explanation as to why potentially viable
options before it were cast aside, while the Commission chose
to spin its wheels.
*****
To sum up, the problem with the Commission’s decision
is not that it had to regulate or had to choose a specific solution.
The majority opinion is correct that the Commission may
exercise reasonable judgment in this area. The problem is that,
when facing a life-endangering problem that the Commission
admits is imperative to address, the Commission chose to just
do again what had not worked before, without giving any
reasoned explanation for its knowingly ineffectual action. And
handwringing over challenges created by the Commission’s
own regulations is a self-constructed barrier, not a reasoned
response. If the Commission’s decade of serious study
revealed that this is a problem for alert originators to address,
it should say so, and pass responsibility to whoever the
Commission concludes can save lives. What is unreasonable
is retaining ownership of the problem for decades while, in
reality, just continuing to tread water. This is not an agency
acting on “bureaucracy standard time” (Op. 4). This is the
regulatory equivalent of fiddling while Rome burns.
I respectfully dissent.
available at https://www.nytimes.com/2017/09/21/us/hurricane-
maria-puerto-rico.html.