EAS 375

The Multicultural Media, Telecom and Internet Council (MMTC) is asking the full D.C. Circuit Court of Appeals to review an October ruling that upheld a decision by the Federal Communications Commission not to require that stations transmit multilingual Emergency Alert System messages. MMTC argues a three-judge panel “issued an erroneous decision” when it concluded the FCC was within its authority by opting to “ignore common-sense proposals aimed at saving lives,” calling it “a case of exceptional importance raising significant public safety issues.”

When the FCC wrapped a multiyear rulemaking proceeding in March, the agency decided that that radio and television stations wouldn’t be required to offer EAS messages in languages other than English. The FCC said it would be “difficult if not impossible to do” within the existing emergency alerting architecture. Instead, the Commission decided “voluntary arrangements” among EAS participants are currently sufficient to reach local communities. The agency did however require broadcasters to begin reporting all the steps—if any—that they take to distribute alerts in other languages. Unhappy with that outcome, MMTC filed a legal challenge.

MMTC Seeks Review By Full Circuit

In a 2-1 decision the appeals court said this fall that the outcome of the FCC’s rulemaking was “consistent with the relevant statute and was reasonable and reasonably explained.” Judge Brett Kavanaugh, who wrote the 13-page opinion for the majority, said the FCC may yet use its authority over broadcasters to require EAS alerts in a variety of languages. “The FCC is studying—admittedly on what one might call ‘bureaucracy standard time’—whether to require broadcasters to do so,” Kavanaugh wrote. “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.”

MMTC thinks that decision is in conflict with earlier rulings from both the D.C. Circuit and the U.S. Supreme Court. That’s why it believes what’s known as an en banc hearing—with arguments presented to all the judges not just a panel—should now be allowed. “The FCC’s decision to further delay action regarding multilingual emergency information is manifestly unreasonable in light of the life-threatening consequences of inaction,” MMTC wrote in its 19-page petition with the Washington court. To support its argument MMTC has seized upon several statements made by Judge Patricia Miller, who in her dissenting opinion was critical of the FCC failing to respond to an apparent EAS shortcoming first pointed out in 2005 by Hurricane Katrina.

The FCC hasn’t yet submitted a response to the petition, but in a filing it noted that the court has already determined that its decision didn’t violate the Communications Act and that it was reasonable to allow the Commission to gather more information before deciding whether to compel broadcasters to translate emergency alerts. Pointing to the holiday vacation schedule of several Dept. of Justice attorneys involved in the case, the FCC asked for—and has received—more time to respond to MMTC’s petition. The court will give the government until Jan. 19, 2018 to submit its response.

FCC Starts Collecting Stations’ EAS Data

As the court case moves forward, so does the FCC’s assessment of how the EAS system is currently working. Stations were required to file reports last month telling state officials what they’re doing to distribute messages to listeners who may not be fluent in English. State Emergency Communications Committees will compile that information as they prepare and submit state EAS plans to the FCC for approval. State emergency management officials will then have until next May to assess how well broadcasters and other outlets are getting alerts to non-English speakers and submit their reports to Washington. After that the Public Safety and Homeland Security Bureau will then review the state plans and determine whether any additional FCC action is needed—including whether a fresh look needs to be taken at the recent decision not to require broadcasters to distribute multilingual EAS messages.

The issue of multilingual alerts has been percolating since 2005 when, in the wake of Hurricane Katrina, a number of advocacy groups urged the FCC to take steps to ensure non-English-language alerts would offer lifesaving information during a natural disaster. They pointed out that New Orleans’ only Spanish-language station—Crocodile Broadcasting daytimer “Tropical Caliente 1540” KGLA—was knocked off the air during that storm, leaving as many as 100,000 residents without a radio lifeline for eight days.

The National Association of Broadcasters has sided with the FCC, saying it made a “reasonable” decision when it opted to embrace a “more flexible approach” that relies on emergency management officials to create alerts in multiple languages for distribution across a variety of platforms. NAB said radio and TV stations are “passive conduits” of EAS messages in a machine-generated, automated system with no control over the timing or content of alerts. “Requiring thousands of individual stations to translate EAS messages into other languages before distribution to the public could undermine the accuracy, uniformity and timeliness of alerts, especially because reliable automated alert translation technology is still maturing,” it said in a friend of the court brief earlier this year.

Even without any formal FCC mandate, more stations seem to be open to alerts in other languages. The FCC reported earlier this month that during September’s national EAS test a total of 207 participants retransmitted the IPAWS-generated Spanish-language version of the alert. That was nearly three-times the 75 that did so when the 2016 national test was conducted.