FCC Vaults Challenge to English-Only Emergency Alerts

WASHINGTON (CN) – The D.C. Circuit backed the Federal Communication Commission on Tuesday in a case that challenges English-only emergency alerts from broadcasters.

Inspired by the aftermath of Hurricane Katrina, the groups League of United Latin American Citizens and the Multicultural Media, Telecom and Internet Council petitioned the FCC to force multiple-language alerts by broadcasters when there is an emergency.

Under the current system, broadcasters receive emergency messages from the government in English and then have the choice to send them out in other languages.

The FCC ultimately declined to adopt any of the groups’ suggestions, however, opting instead to begin a study of the issue.

A three-judge panel of the D.C. Circuit heard oral arguments on the case in May, but sided with the agency 2-1 on Tuesday.

Though he chided its reliance on “bureaucracy standard time,” U.S. Circuit Judge Brett Kavanaugh wrote for the majority that the FCC acted within its authority.

“Petitioners advance substantial policy arguments,” Kavanaugh wrote. “But the issue before us is one of law, not policy. And under the law, the FCC’s approach passes muster.”

In petitioing for relief, the groups cited the Communications Act’s aspiration to make broadcasts available “so far as possible” to every person, regardless of their race or national origin.

Kavanaugh determined, however, that this “general policy provision” does not mean the FCC must require broadcasters to send out emergency alerts in other languages.

“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,” Kavanaugh wrote.

As to the claims that the FCC’s decision was “arbitrary and capricious,” Kavanaugh noted the various flaws in each of the suggestions proposed by the challengers.

He said the agency was well within its rights to take its time deciding the best way of translating emergency messages into multiple languages in a short time period.

Because the emergency broadcast system is essentially automated, as Kavanaugh noted, broadcasters would need staff available to translate any message into multiple languages quickly and at any time of the day.

Finding these concerns valid, Kavanaugh said the FCC effectively explained its decision to go back and study the issue further.

“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,” wrote Kavanaugh, who was appointed to the court by President George W. Bush.

The dissent Tuesday came from U.S. Circuit Judge Patricia Millett, who was named to the court by President Barack Obama.

Agreeing with Kavanaugh only about the commission’s statutory freedom when it comes to forcing multilingual emergency alerts, Millett showed contempt for the commission’s bid to gather more evidence.

Indeed the agency has asked for more information on the issue before, and that request has yet to translate into new policy, Millett noted.

“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,” the 12-page dissent states (emphasis in original). “And handwringing over challenges created by the commission’s own regulations is a self-constructed barrier, not a reasoned response.”

The League of United Latin American Citizens and the Multicultural Media, Telecom and Internet Council expressed “deep displeasure” over the D.C. Circuit’s decision, saying the lack of multilingual broadcasts puts lives in danger in emergency situations.

“More than 12 years after Katina, not only has the FCC not acted, but the court has refused to compel the FCC to act,” Kim Keenan, president of the council, said in a statement. “Shortly, MMTC and LULAC will decide whether to appeal to the new FCC leadership, or to Congress, to take a stand and correct this deep moral injustice.”

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