DC Circuit Focuses on FCC Delay in MMTC EAS Challenge
The 11-year span between the Multicultural Media, Telecom and Internet Council’s filing of a petition on multilingual emergency alert system messages and the FCC denying that petition was a major focus of a three-judge panel at the U.S. Court of Appeals for the D.C. Circuit Thursday. Judge Patricia Millett called the delay "dramatic” and the wait was the subject of several questions by Judge Brett Kavanaugh, who said the commission was “moving slowly.”
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Judges “clearly got the point that the commission is kicking the can down the road,” said Georgetown Institute for Public Representation Senior Counselor Andrew Schwartzman, who filed an amicus brief supporting MMTC, in an interview. Kavanaugh also expressed doubt about MMTC’s argument the FCC is bound by the anti-discriminatory language in the Communications Act to offer multilingual alerts. The “statutory hook” for MMTC’s argument is “thin,” Kavanaugh said. Several attorneys hadn't expected MMTC to win (see 1705040063).
The FCC acted arbitrarily in not taking action on the MMTC petition, and the multilingual EAS reporting rules in the EAS order that MMTC challenged are an excuse for further inaction, said Skadden Arps attorney Caroline Van Zile, representing MMTC. Though the commission argued the record shows allowing the states to take voluntary action is the best course, Van Zile said the past 11 years of inaction belie that. “There’s nothing going on,” she said. The FCC defended the reporting requirement. It's "reasonable for the commission to say we need comprehensive information,” Counsel-Appellate Litigation Thaila Sundaresan said. The FCC and MMTC didn't comment for this story.
Sundaresan said MMTC suggestions for offering multilingual alerts weren’t compatible with the current alert system, and the commission doesn’t have the jurisdiction to compel the originators of emergency alerts to offer them in multiple languages. “The FCC has no jurisdiction over the states,” she said. Sundaresan said the system is very complicated, and the court should defer to the FCC’s ruling on how multilingual alerts would affect the system. MMTC’s plan would require that individual translations be “injected” into the largely automated alert system, she said. MMTC’s petition also concerned issues outside the EAS docket, Sundaresan said, suggesting MMTC could file a separate petition for rulemaking to request FCC action on matters outside EAS. Kavanaugh responded, “And how many years would that take, another 10?”
The FCC hasn’t denied the issue of multilingual alerts is a serious problem, but its speed in acting on the matter has been comparable to “watching paint dry,” said Millett. The FCC acted with dispatch to make alerts accessible to the hearing impaired, she said. That’s because Congress specifically ordered the FCC to act on accessibility, Sundaresan said, but there’s been no such directive on multilingual alerts. Kavanaugh agreed: "There’s no real statutory mandate that requires them to do much of anything,” he said of the FCC.
Jurists showed interest in Sundaresan’s descriptions of existing programs that approach multilingual alerting, such as systems for automatically translating warnings of hurricanes and location codes, which are not mandated by the commission. “You can do it, but you don’t require it?” Millett asked. Judges also asked about the few existing multilingual alerting programs run by states such as Florida. Judge Karen Henderson asked if presidential alerts were translated before going out, and Sundaresan said that would be the prerogative of the White House.
More states might offer multilingual alerts if the FCC gave them a “nudge,” said Van Zile. MMTC asked the court to remand the order to the commission and require the FCC to “take a hard look” at the order.