The Multicultural Media, Telecom and Internet Council brought its petition in the wake of Hurricane Katrina, saying many victims of the 2005 storm were people who could not access emergency broadcast systems because they spoke limited English.
The council, a nonprofit that advocates for equal opportunity in the broadcast industry, is appealing to the D.C. Circuit after the Federal Communications Commission waited 11 years to deny its petition.
Caroline Van Zile, an attorney for the council with the firm Skadden Arps, complained Thursday that the agency barely tested out any of the council’s recommendations for implementing its requested translations.
“The state of play now is exactly as it was then,” Van Zile told told the court’s three-judge panel.
Multicultural Media’s brief quotes the FCC as rejecting its petition after one failed pilot program, saying that it would be “difficult if not impossible” to implement any of its proposals.
One idea the council recommended was a pilot program that would allow one English-language station in a market to “volunteer” to air multilingual alerts if the area’s non-English station went offline during an emergency.
U.S. Circuit Judge Brett Kavanaugh undercut Van Zile’s argument that the FCC could require states to undertake similar programs.
The “statutory book is thin,” Kavanaugh said, questioned whether the agency has the legal authority to do so.
FCC attorney Thaila Sundaresan told Kavanaugh that Congress could compel such action if it wanted.
Some states have already put in place programs that send out alerts in other languages, including Spanish, Sundaresan said, but she noted that the agency is limited in its ability to make others do the same.
Sundaresan attributed the agency’s delay on resolving Multicultural Media’s petition to uncertainty at the agency with how to bring the emergency-alert system into the digital era.
Translating alerts from English to other languages can cause mistakes in the fully automated system, and the number of people who don’t speak English varies widely by state, making a universal system difficult, Sundaresan argued.
“If they want to set up their state plan to accommodate Spanish or any other language, they are welcome to do that,” Sundaresan said Thursday.
Judge Kavanaugh did not find that argument compelling, however, questioning whether the mere possibility of a mistaken translation should warrant the government ditching its efforts to incorporate more languages.
“Why is it that hard?” Kavanaugh asked. “These states have done it, is it that complicated an issue?”
The judges also pressed Van Zile on how many languages the government should try to include in its emergency-alert system. Van Zile acknowledged that there would be some languages left out of any system, but said that is not a good reason for the agency to simply exclude all languages.
“There’s got to be some line-drawing here and someone is going to end up on the wrong side of the line,” Van Zile said. “The problem is the agency just threw up its hands and decided to draw no lines at all.”