United States Court of Appeals, District of Columbia Circuit
Multicultural Media, Telecom and Internet Council and The League of United Latin American Citizens, Petitioners
Federal Communications Commission and United States of America, Respondents
May 11, 2017
Petition for Review of an Order of the Federal Communications
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.
Jay Schwartzman was on the brief for amici curiae Former FCC
Officials in support of petitioners.
K. Sundaresan, Counsel, Federal Communications Commission,
argued the cause for respondents. With her on the 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
Henderson, Kavanaugh, and Millett, Circuit Judges.
KAVANAUGH, CIRCUIT JUDGE.
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).
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
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."
purposes of this case, two groups are especially relevant.
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.
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 to the
public. Importantly, the process by which broadcasters
receive and broadcast emergency alerts is automated and
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.
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.
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.
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.
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.").
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 emergency alerts
and broadcast them in languages in addition to English.
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
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 ...