[00:00:02] Speaker 01:
Case number 16-1122, Multicultural Media at ELL Petitioners versus Federal Communications Commission at ELL.

[00:00:10] Speaker 01:
Ms.

[00:00:10] Speaker 01:
Vendale for the petitioners, Ms.

[00:00:12] Speaker 01:
Sunda-Rason for the respondents.

[00:00:55] Speaker 02:
One second, let's get everybody seated.

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All right, Ms.

[00:01:05] Speaker 02:
Vanzalle.

[00:01:06] Speaker 02:
Good morning.

[00:01:07] Speaker 04:
Good morning.

[00:01:08] Speaker 04:
May it please the Court, Caroline Vanzalle, for Petitioners Multicultural Media Telecom and Internet Council and League of United Latin American Citizens.

[00:01:15] Speaker 04:
With the Court's permission, I would like to request two minutes for rebuttal.

[00:01:20] Speaker 04:
We are here today because the FCC has ignored the needs of millions of Americans for over 11 years.

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And it has done so in a textbook violation of the Administrative Procedure Act and the tenets of recent decision making.

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In the wake of Hurricane Katrina, over a decade ago, MMTC and others petitioned the agency to take steps to ensure that Americans with limited English proficiency were able to receive life-saving information before, during, and after an emergency.

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Eleven years later, after repeatedly acknowledging the seriousness of the problem, the agency denied the petition.

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It did so without providing a meaningful response and while ignoring important aspects of the problem.

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At the outset, I'd like to focus on two aspects of the order that highlight the arbitrary and capricious nature of the decision-making process here.

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First, the agency's arbitrary decision to limit its order to the formal EAS architecture,

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thereby ignoring several of MTC's proposals, and second, the agency's representation that the record supports wholly voluntary solutions to the multilingual emergency information issue.

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The FCC's order, paragraph 31, states that its decision is, quote, limited to EAS content.

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In the same breath, the agency acknowledged that petitioner's primary concern was non-EAS information, namely the receipt of information in language during and after an emergency.

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Indeed, the agency itself observed as early as 2007 that our request was broader than the formal EAS framework.

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At that same time, it committed itself to

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solving the issue to undertaking action within six months.

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In its order, however, the agency arbitrarily and capriciously ignored this issue.

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It declined to even consider whether the problem could be solved by an exercise of the agency's public interest authority over broadcasters under sections 303, 307, and 309.

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We submitted that the designated hitter proposal, one of our three main proposals, could have been implemented by leveraging this public interest obligation during the license renewal process.

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To this day, we have no idea why the FCC failed to consider this important non-EAS aspect of the problem.

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The APA demands more than that.

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State Farm and City of Brookings demand more than that.

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Second, the agency also stated at paragraph 32 of its order, the record supports reliance upon voluntary arrangements.

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That statement demonstrates a lack of any rational connection between the facts found and the choice made.

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The FCC has been encouraging the industry to adopt voluntary solutions since this proceeding began.

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You can find that in their first report in order at JA82.

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Yet after 11 years and three requests for comment, the record is barren of any additional efforts that have been undertaken between Hurricane Katrina in 2005 and the agency's order in 2016.

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The state of play is exactly the same now as it was then.

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It's exactly the same now as it was in 2007 when the agency acknowledged the seriousness of the problem and committed to correcting the problem.

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and the record simply does not rationally support the agency's conclusion that voluntary efforts can solve this acknowledged problem.

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Well, go ahead.

[00:04:49] Speaker 03:
I was going to ask you, how does that map onto the time frame for them addressing the issue of auditory disabilities?

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So the auditory disability issue was addressed in the six report in order.

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And I believe that that was 2015.

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It was later on.

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So they did take some time.

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They did take some time to address that issue as well, Your Honor.

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But we would submit that

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neither delay was appropriate or reasonable.

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Both well exceeded timelines that this court acknowledged were too long to be reasonable.

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And I think, you know, the amount of time that was taken here really plays into the APA argument because, you know, we have an 11 year long record where the agency has

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not once, but three times, requested information from broadcasters and from states as to how they are going about addressing this problem.

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And each time, the agencies receive the same response, which is in essence that pretty much nothing is going on, that there have been no additional efforts to address multilingual emergency.

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Has anything been going on in Congress that you're aware of?

[00:06:05] Speaker 04:
Not that I am aware of.

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The reason I ask is because the statutory hook here is thin and I understand your point that this would make a lot of sense as a policy matter and that they have to act reasonably.

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But it's a complicated problem is their basic answer and their

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studying it like government does and looking at it, but it's still a lot of actors involved, a lot of complicated issues, and there's no real statutory mandate that requires them to do much of anything here.

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I think they would say.

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And so they're looking at it and they have authority to do it, but they don't have a mandate to do something like this.

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So how do you respond to the idea it's a big complicated problem involving a lot of players and they're moving slowly but incrementally in studying the problem?

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And why is that unreasonable?

[00:07:05] Speaker 04:
I think it's unreasonable for several reasons, Your Honor.

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It's a complicated problem that has existed for over 11 years at this point, and the particular way that the agency has chose to address the problem has been tried three times before.

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And so I think it's difficult to call that progress, even incremental progress.

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The solutions we proposed were actually, we would submit, not that complicated.

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find a way to designate one broadcaster, English language broadcaster, in each station who would essentially step up if multilingual or Spanish emergency information were not available in an area.

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I personally don't see the incredible complexity of that.

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How do you deal with the multilingual issue?

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Obviously, if this were just Spanish, that's one issue, but in a lot of areas in the country, that's not gonna solve your basic problem.

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Isn't that part of the issue they're trying to deal with, too?

[00:08:01] Speaker 04:
Absolutely, Your Honor.

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And we acknowledge that there's got to be some line drawing here, right?

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And someone's going to end up on the wrong side of the line.

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But the problem here is that the agency just threw up its hands and decided to draw no lines at all.

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I think the amicus brief of Petitioner AAJC is very helpful in this regard.

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That's an advocacy group that is

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predominantly comprised of Asian Americans who do not speak Spanish.

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But even they said, you know, this is a big problem.

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We would love to see it solved.

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If the agency wanted to just start with Spanish first,

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That would be something.

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We would be OK with that.

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And then you could see how that worked and perhaps translate lessons learned to the multilingual context.

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So we do acknowledge that there are complexities there.

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But the agency didn't deny the petition on the basis of those complexities.

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The agency denied the petition because it said, well, voluntary solutions could work fine.

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So I think there's also a chennery problem there, that the agency itself

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didn't say, well, this is just too complicated, so we're not going to do it.

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They said, well, we're just going to look at the aspect of this, and addressing that would force us to change our part 11 rules, and so we won't do it.

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and we would submit that that is the very definition of arbitrary and capricious decision-making to receive a request to change the rules to receive a request that's also broader than that and then to simply say Well, we'd have to change our two-minute rule.

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We'd have to change our 15-minute rules.

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So petition denied essentially on the

[00:09:37] Speaker 03:
On the question of legislation, I think it was last year, the Integrated Public Alert and Warning System Modernization Act actually counts.

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FEMA, yeah.

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I am recalling that now.

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Yes, FEMA with addressing this problem of limited English proficiency.

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So I guess two questions.

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One, do you know if FEMA's doing anything?

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to why isn't the lawsuit into FEMA then?

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So the FCC, both in this sense, but also, to the extent the National Weather Service is the originator.

[00:10:10] Speaker 03:
Someone who's the originator of these messages.

[00:10:12] Speaker 04:
I understand, Your Honor.

[00:10:14] Speaker 04:
So there is a reason that the lawsuit is not aimed at FEMA, which is that the lawsuit is broader than just the emergency alert system.

[00:10:21] Speaker 04:
We do think that it's important that those who do not speak English be able to receive those lifesaving alerts as well.

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But there's a separate issue of emergency information during and after an emergency.

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So for example, in the wake of Hurricane Katrina, those who spoke Spanish didn't know where to go to find shelter, to find clean water, to obtain food or medical assistance.

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And that's not an EAS problem.

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That's a broader problem.

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We would submit a public interest problem.

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And as MMTC said on the record, if a broadcast license, if the FCC's public interest obligation and the intended obligations of licensees are to mean anything, surely they have to mean

[00:11:05] Speaker 04:
that broadcasters would be willing to open up their airwaves, if only for a short period of time, to provide that kind of information, not just for those who speak English, but for those who do not, at least in these extreme circumstances where the local station that does transmit in language is knocked off the air, or where there is no station that meets those qualifications whatsoever.

[00:11:27] Speaker 03:
But what is your answer to the, that's my question, and that is to the extent we're focusing on the emergency alerts.

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that as to that aspect, Congress has said FEMA is tasked with solving that problem.

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How does that impact your argument as to that aspect of the problem that FCC should?

[00:11:47] Speaker 04:
Well, Your Honor, I think, again, it's a chennery problem, because that's not an argument that was raised by the FCC.

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Certainly, it is something that they could address on remand.

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as to whether or not that particular act solves the EAS issue.

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I'm not sure that it does, to be honest with you.

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But again, this court is bound to either uphold or to review the agency's action below on the basis, the reasons given by the agency.

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And so I think in that respect, you can't really take into account the IPAWS or FEMA legislation.

[00:12:25] Speaker 00:
What's the specific relief you would ask us to direct them to achieve?

[00:12:33] Speaker 04:
We're asking for a remand, Your Honor.

[00:12:36] Speaker 04:
We're asking for the petition for review to be granted to remand to the agency.

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Would we direct them to do some particular aspect of this?

[00:12:46] Speaker 04:
I think the court would direct them to address these issues that have been left unaddressed to at least consider the non EAS aspects of the petition and you know we think that on this record the representation that voluntary solutions are sufficient is

[00:13:04] Speaker 04:
runs directly counter to the evidence before the agency how they want to address either of those issues I think they have some flexibility in doing that they are the expert agency but they are issues that need to be confronted and we hope that once the issue does once the agency does look at those issues squarely that the result perhaps would change but under the administrative procedure act obviously what we'd be entitled to would be a remand with

[00:13:31] Speaker 04:
some instructions to take a hard look at this very important problem that the agency committed to taking a hard look at in 2007.

[00:13:42] Speaker 00:
On your statutory argument?

[00:13:44] Speaker 00:
Yes, Your Honor.

[00:13:47] Speaker 00:
That statutory provision is just, as you know, just the provision that creates the FCC as a statement of purpose, so it doesn't

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having a little trouble seeing how the operative language gets you from the language of that statute into they have to provide multi-lingual emergency alert system.

[00:14:08] Speaker 00:
Can you address that?

[00:14:10] Speaker 04:
Sure.

[00:14:10] Speaker 04:
Two points on that, Your Honor.

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One procedural and one substantive.

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First is the procedural point that the agency didn't even address its section one obligations in the first instance.

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And so I think this is another case where it might make sense to

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state plainly that that is an APA violation, that they need to address it on remand, deal with the issue that way.

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But second, on the substantive issue, the anti-discrimination language in Section 1 does mirror the anti-discrimination language in statutes like Title VI, Title VII, the Americans with Disabilities Act.

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And so even though it's embedded within what we openly acknowledge as a policy statement,

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We do think that that provision has teeth.

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Now, we don't think that it expands the agency's jurisdiction, but we do think that it imposes an obligation or a limit on the agency not to discriminate.

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Now, how they want to go about addressing this issue such that their actions are not discriminatory on the basis of national origin, again, the agency we believe would have some flexibility on that front, but based on the language of the anti-discrimination provision, we do think that that is operative language, Your Honor.

[00:15:17] Speaker 02:
What about our 2010 decision in Comcast?

[00:15:21] Speaker 02:
And we said Section 1 was a policy statement.

[00:15:24] Speaker 04:
Yes, Your Honor.

[00:15:26] Speaker 04:
And we agree with that.

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And we, in fact, cited Comcast in our jurisdiction.

[00:15:30] Speaker 02:
That's all it is.

[00:15:31] Speaker 04:
Well, so first of all, Your Honor, Comcast wasn't addressing the anti-discrimination provision here specifically.

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And second of all, Comcast did also say that despite being a policy provision, Section 1 can still give contour or

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perhaps provide limits, shed light on other active provisions of the act.

[00:15:51] Speaker 04:
So here, that would be section 606, which gives the president the authority to implement EAS.

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And so what we're really saying here is that whatever the agency does to implement its obligations under section 606, it has to do so in a nondiscriminatory manner.

[00:16:12] Speaker 04:
If there are no further questions, I will save the remainder of my time for a vote.

[00:16:17] Speaker 04:
All right.

[00:16:36] Speaker 05:
Good morning, may it please the court?

[00:16:38] Speaker 05:
My name is Thailas Nuresen and I represent the Federal Communications Commission.

[00:16:42] Speaker 05:
The issue before this court is whether the Commission reasonably denied MMTC's three proposals.

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The first, the designated hitter,

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They concede now is outside of the EAS framework.

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But they filed their petition in the commission's EAS docket, and their proposals were couched as amending the commission's part 11 rules, which are about EAS and EAS only.

[00:17:07] Speaker 05:
So their proposal had to fall within the confines of EAS.

[00:17:11] Speaker 05:
As for their state-based proposal, they're asking the Commission to require that states account for multilingual alerts in their state plans.

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But to be clear, the FCC has no jurisdiction over the states who originate these alerts.

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And while we do have jurisdiction over the EAS participants, we recently concluded in the order

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that the role of translation should rest with the alert originator, the authorized government official, and not a private TV or radio station.

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And as for the LPS and LPM model, we recently concluded that shifting the role of translation from an authorized government official

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to a private broadcaster would raise a host of concerns that could undermine the integrity of EAS.

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EAS is a highly technical, complex system, and given the Commission's reasonable approach here, the Court should defer to the Commission's conclusion.

[00:18:09] Speaker 00:
Are you saying, for example, the designated hitter proposal would be impossible to achieve?

[00:18:15] Speaker 05:
So the role of EAS, your honor, it was designed to provide notice of an impending emergency.

[00:18:23] Speaker 05:
So hurricane is coming, tornado is coming.

[00:18:26] Speaker 05:
The designated hitter proposal contemplates that broadcasters would air emergency programming before, during, and after an emergency.

[00:18:36] Speaker 05:
And the EAS system is not designed to serve as a conduit for emergency programming.

[00:18:40] Speaker 05:
We discuss that in paragraph 31 of our order.

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It has a limited role to provide notice so that alerts are sent as quickly as possible to the entire American public within a matter of minutes.

[00:18:53] Speaker 05:
It's not designed to provide ongoing programming.

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Now, if MMTC wants the commission to consider adopting regulations around emergency programming, they are welcome to file a petition for rulemaking in a separate docket altogether.

[00:19:10] Speaker 05:
But it was reasonable for the commission.

[00:19:12] Speaker 00:
How many years would that take, you think?

[00:19:13] Speaker 05:
Your honor, the delay here is unfortunate.

[00:19:19] Speaker 05:
If I can give some context for the delay here.

[00:19:21] Speaker 05:
So in 2004, the commission issued a notice of proposed rulemaking in which we sought input about whether EAS was the most effective warning mechanism and if not, how it could be improved.

[00:19:33] Speaker 05:
Then for the next couple of years, EAS was in a period of flux.

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We weren't sure if we were going to scrap the system, if we were going to make modifications.

[00:19:40] Speaker 05:
Then in 2008, FEMA said,

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we're going to adopt CAP alerts, or IP-based alerts.

[00:19:47] Speaker 05:
So then that then triggered the FCC to require that each of these 27,000 EAS participants be able to receive CAP alerts.

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So then that took a couple of years for all of these devices to get into compliance.

[00:20:01] Speaker 05:
Then in 2012, FEMA said, we need to keep the legacy EAS system because it has inherent operational benefits.

[00:20:09] Speaker 05:
In that, if wireless goes down, if internet goes down, we have a robust and reliable backup system where the president can transmit emergency alerts through TV and radio.

[00:20:20] Speaker 05:
So at that point, once FEMA made that decision,

[00:20:24] Speaker 05:
MMTC's petition was incapable of being granted because the system is a top-down, machine-generated, automated system.

[00:20:34] Speaker 05:
And MMTC's proposals would require injecting a manual translation into what was always designed to be automated.

[00:20:43] Speaker 05:
And when you include manual translations in an automated system, there is a risk of inaccuracy.

[00:20:48] Speaker 05:
Do you know what happens in Puerto Rico?

[00:20:51] Speaker 05:
In Puerto Rico, my understanding is that the alert originator sends messages in Spanish and English.

[00:20:59] Speaker 05:
And we are fine with that.

[00:21:01] Speaker 05:
That is great.

[00:21:03] Speaker 05:
And Florida does that as well.

[00:21:04] Speaker 03:
What if the president had to get a message to Puerto Rico?

[00:21:07] Speaker 03:
Is there any mechanism?

[00:21:10] Speaker 03:
I know that hasn't happened, and we all hope it doesn't.

[00:21:14] Speaker 05:
So the president could designate FEMA to provide a translation and that would then get disseminated.

[00:21:22] Speaker 05:
I know that in Florida, for example, they do have LPS stations

[00:21:29] Speaker 05:
which transmits Spanish alerts.

[00:21:32] Speaker 05:
So the alert originator creates the alert in English and Spanish and then the LPS station disseminates the Spanish alert to downstream participants, all of whom are foreign language broadcasters.

[00:21:45] Speaker 05:
So states are free to do that.

[00:21:47] Speaker 05:
If they want to set up their state plan to accommodate Spanish or any other language, they are welcome to do that.

[00:21:54] Speaker 05:
And states already are doing that.

[00:21:55] Speaker 05:
For example, Florida.

[00:21:57] Speaker 05:
Minnesota is another good example.

[00:21:59] Speaker 05:
Their alert originator issues alerts in four languages, Hmong, Somali, English, and Spanish.

[00:22:06] Speaker 05:
So we believe that states are in a position to do this, and states are doing it to the extent they are not

[00:22:14] Speaker 05:
You have to remember that there's a wide variation with states' needs.

[00:22:19] Speaker 05:
There's some states like West Virginia and Montana that have less than a 1% LEP population.

[00:22:25] Speaker 05:
So it probably doesn't make sense for them to focus on multilingual learning.

[00:22:29] Speaker 05:
There are other states that have large LEP populations.

[00:22:31] Speaker 05:
And they are making advancements in this space.

[00:22:35] Speaker 05:
And this reporting requirement that we have now mandated requires for the first time for each of these 27,000 EAS participants to complete a report that tells us what they're doing in this space, what they plan to do.

[00:22:51] Speaker 05:
And we have, MMTC points out, an argument today, well, we've made this request a couple of times before.

[00:22:57] Speaker 05:
That was a request.

[00:22:58] Speaker 05:
This is a mandate.

[00:23:00] Speaker 05:
And this will then help inform our decision.

[00:23:03] Speaker 03:
Well, you said we're not really expecting to get much.

[00:23:08] Speaker 03:
We don't expect, and you can tell us you've done nothing.

[00:23:11] Speaker 03:
And so that was the problem.

[00:23:13] Speaker 03:
Part of the problem is that you have asked for information before, and it turns out folks aren't doing much.

[00:23:19] Speaker 03:
And then you said here, even though this is a requirement that you give us the information, we're still not expecting to get much.

[00:23:28] Speaker 05:
We are not expecting to get much from states that have homogenous populations that are not doing multilingual, that don't have the LEP population to justify multilingual alerting.

[00:23:40] Speaker 05:
However, we have since learned, again, our order was based on the record that was before us.

[00:23:46] Speaker 05:
And because these were simply information requests,

[00:23:50] Speaker 05:
There was no obligation to submit this reporting.

[00:23:52] Speaker 05:
However, we have since learned that there are states like Florida and California and Texas and Minnesota that are doing multilingual alerting.

[00:24:00] Speaker 05:
For whatever reason, they did not respond to our inquiry or request.

[00:24:04] Speaker 03:
But we do think... So the Commission wasn't aware?

[00:24:06] Speaker 03:
Because there were also these meetings, these gatherings of specialists during the study period.

[00:24:13] Speaker 03:
And you're telling me that the FCC was not aware prior to this rule what Florida was doing?

[00:24:19] Speaker 05:
We were aware of what Florida was doing, Your Honor, and that is part of the record.

[00:24:25] Speaker 05:
But we believe that this process of examining, maybe for the first time, what the local population needs are will spur

[00:24:35] Speaker 05:
states to take action and perhaps states have not looked carefully into this issue and not to mention that once we get this reporting information as we talk about in paragraphs 23 and 27 our order the Commission may take action as well.

[00:24:52] Speaker 00:
What action may the Commission take?

[00:24:56] Speaker 05:
Well we could possibly look into this idea of incorporating mandates as part of their state plan

[00:25:05] Speaker 05:
we could possibly look at Florida as sort of the model to follow, where they have designated LPS stations.

[00:25:12] Speaker 00:
Why is it that hard?

[00:25:14] Speaker 00:
I mean, these states have done it.

[00:25:15] Speaker 00:
Is it really that complex an issue?

[00:25:19] Speaker 05:
It is a very complex issue, Your Honor, and for a couple of reasons.

[00:25:23] Speaker 00:
Those states were able to do it, though, right?

[00:25:27] Speaker 00:
Yes, including four languages in Minnesota, you said they were.

[00:25:31] Speaker 05:
And again, that's in recognition of the fact that there is this large multilingual population in these states.

[00:25:38] Speaker 05:
And if states want to do that, they can't.

[00:25:41] Speaker 00:
But before telling states that at least if you have a sizable population, you have to do it.

[00:25:47] Speaker 00:
Couldn't the commission do that?

[00:25:49] Speaker 05:
Well, again, we don't have any

[00:25:52] Speaker 05:
authority over the originator, the states themselves.

[00:25:56] Speaker 05:
We do have authority, of course, over the EAS participants, but as we talk about in the order, asking the

[00:26:04] Speaker 05:
private radio or TV station to insert a translation into what is always intended to be an automated system, it raises concerns.

[00:26:13] Speaker 05:
First of all, MMTC.

[00:26:15] Speaker 00:
Is it really, they're so incompetent they can't do it?

[00:26:19] Speaker 00:
What's the, there'll be a mistake now and then, no doubt, but is that really a reason to throw the whole idea out the window of there's gonna be a mistake because we're, humans are gonna be involved and so we're just gonna forget about it?

[00:26:31] Speaker 05:
Your honor, that also assumes that there are actual people at these stations to perform the translation.

[00:26:38] Speaker 05:
MMTC is contending that translation technology is not sufficiently accurate, so you need an actual live human being.

[00:26:44] Speaker 05:
But as we talk about in our order of paragraph five, many of these stations are entirely unattended.

[00:26:50] Speaker 05:
They don't have staff on hand.

[00:26:52] Speaker 05:
Either they're completely unmanned, and they're just running syndicate or network programming, or they might have staff on hand for a few hours a day.

[00:27:00] Speaker 05:
But as we all know, weather-related emergency alerts come in at all hours of the night.

[00:27:05] Speaker 05:
And so to expect that there's staff on hand at each of these stations to perform the translations, unfortunately, that's not practical.

[00:27:12] Speaker 03:
So just to clarify then, in the jurisdictions that you're aware of thus far, where

[00:27:20] Speaker 03:
their Spanish or multilingual transmissions occur.

[00:27:23] Speaker 03:
Do all of those occur because the originator is doing it in dual languages, or are there any that you're aware of that's done by the broadcasters themselves?

[00:27:33] Speaker 05:
It's by the alert originator.

[00:27:35] Speaker 03:
And you have no authority over the alert originators.

[00:27:38] Speaker 05:
That's right.

[00:27:39] Speaker 05:
That's right.

[00:27:39] Speaker 05:
If MMTC wanted to lobby the alert originators, of course they're welcome to do that.

[00:27:48] Speaker 05:
But we don't have any jurisdiction over the state entities themselves.

[00:27:52] Speaker 05:
I will say that the state emergency management authorities that did submit comments to us

[00:27:57] Speaker 05:
They agreed with the Commission that the responsibility for translation should rest with them, with the authorized government entity.

[00:28:06] Speaker 05:
And in fact, every single entity who actually has experience in administering EAS, such as FEMA, National Weather Service, State Emergency Management Authorities, broadcasters, they all rejected MMTC's proposal that this role of translation, if the alert originator doesn't do it, then that should fall to the LPS and LPM station.

[00:28:27] Speaker 05:
So there's that as well.

[00:28:34] Speaker 05:
Now, if I can turn to, one important point I want to make too is EAS is a very important backup system.

[00:28:44] Speaker 05:
in that, when everything else falls, wireless goes down, cell phone service, internet goes down, it's intended to serve as a robust and reliable system where the president can transmit an alert within a matter of minutes to the entire American public.

[00:28:59] Speaker 03:
That's exactly their concern, right?

[00:29:01] Speaker 03:
I'm sorry?

[00:29:01] Speaker 03:
That's exactly their concern, is that this is vital.

[00:29:05] Speaker 03:
I mean, I think you have to see, recognize, doesn't dispute how vital and important it is to come up with some mechanism of

[00:29:13] Speaker 03:
getting those messages out.

[00:29:16] Speaker 03:
As I've read the commission, they're not cold-heartedly saying, no, we're not going to care.

[00:29:21] Speaker 03:
We recognize this is life and death information.

[00:29:25] Speaker 03:
And when you made the changes to address auditory disabilities, they have to see them and say, we're not going to go slow, we've got to go fast here.

[00:29:34] Speaker 03:
This is really important.

[00:29:35] Speaker 03:
It affects people's lives and safety.

[00:29:38] Speaker 03:
We did it within, I think, four to five years.

[00:29:41] Speaker 03:
So why isn't one of the problems here the sort of dramatic disparity in timing here on the FCC?

[00:29:51] Speaker 03:
You acknowledge there's a problem that needs to be addressed.

[00:29:54] Speaker 03:
You don't dispute that.

[00:29:55] Speaker 03:
You acknowledge the severity and importance of the problem.

[00:29:58] Speaker 03:
And yet, unlike auditory disabilities, this is going as slow as watching paint dry, it seems like.

[00:30:07] Speaker 05:
So Your Honor, on the issue of auditory disabilities, Congress has spoken on this issue.

[00:30:13] Speaker 05:
Congress has mandated that the Commission ensure that communication services like EAS are fully accessible to persons with disabilities.

[00:30:21] Speaker 05:
And that's through the 21st Century Communications and Video Accessibility Act, which updated accessibility laws dating from the 1980s requiring that we make sure that communication services are fully accessible to persons with disabilities.

[00:30:34] Speaker 05:
Unfortunately, Congress has not made a similar directive toward persons with limited English proficiency, but even putting that aside, the EAS is able to accommodate persons with disabilities in that those who are hearing impaired can see a visual crawl displayed at the bottom of a television screen that they can read, and visual crawls are entirely automated.

[00:30:58] Speaker 05:
So it doesn't require injecting manual translations, which would undermine the integrity of EAS.

[00:31:04] Speaker 05:
But in contrast, MMTC's proposals require a fundamental altering of how EAS is set up.

[00:31:10] Speaker 05:
And so that's the distinction there.

[00:31:12] Speaker 05:
But even with respect to persons with disabilities, we noted in the order under review, I believe it's

[00:31:18] Speaker 05:
footnote 26 that there are limitations with EAS even with respect to persons with disabilities.

[00:31:24] Speaker 05:
We know that many people who are hearing impaired prefer to see their alerts through American sign language, but unfortunately at this point, legacy EAS is not able to readily convey messages through

[00:31:37] Speaker 05:
American Sign Language.

[00:31:39] Speaker 05:
And so even with respect to persons with disabilities, there are limits because this system is technical, it's automated, it's machine generated, and FEMA has made this determination that this is the system we have, warts and all.

[00:31:57] Speaker 05:
And by the way, that determination was made in the fifth report in order, MMTC did not challenge or even comment on that decision.

[00:32:04] Speaker 05:
And so this is the system that we have.

[00:32:07] Speaker 05:
But I will also say, even within the system, there are ways to facilitate multilingual alerting.

[00:32:14] Speaker 05:
So one we've talked about, if the alert originator includes a translation, it will be disseminated in its entirety by downstream EAS participants.

[00:32:22] Speaker 05:
We've also adopted a rule, 47 CFR, 11.55C4.

[00:32:26] Speaker 05:
encouraging foreign language broadcasters to air translations of the alerts.

[00:32:33] Speaker 05:
And the way that they can do that, that stays true to the automated nature of EAS, is that they can take the incoming header codes of the alert, so HUR Hurricane, PGC, PG County, and they can convert that into a basic visual crawl in Spanish, or in Creole, or any other language, and that's entirely automated.

[00:32:56] Speaker 05:
Or they can air the English translation.

[00:32:59] Speaker 03:
Sorry, so you're saying you can automatically translate these headers into foreign languages, with so many words involved.

[00:33:05] Speaker 03:
You can't.

[00:33:05] Speaker 03:
And that capability exists now?

[00:33:07] Speaker 03:
Yes, it does exist.

[00:33:08] Speaker 03:
The FCC doesn't require it.

[00:33:09] Speaker 05:
I'm sorry?

[00:33:10] Speaker 03:
The FCC doesn't require it?

[00:33:11] Speaker 05:
We don't require it.

[00:33:12] Speaker 05:
But the rule is permissive.

[00:33:14] Speaker 05:
It's not mandatory.

[00:33:15] Speaker 05:
It says should.

[00:33:16] Speaker 05:
So we do certainly encourage it.

[00:33:18] Speaker 05:
Another way that they can comply with that rule is that they can air the English translation.

[00:33:23] Speaker 05:
And then after the end of message code,

[00:33:25] Speaker 05:
Someone can get on the air and actually translate

[00:33:29] Speaker 05:
the alert into a mic.

[00:33:31] Speaker 05:
And because that's after the end of message code, that translation would not get propagated downstream, it would just go directly to their audience.

[00:33:39] Speaker 05:
So that's another way they can comply with this rule.

[00:33:42] Speaker 05:
CAP is a very important mechanism that we haven't talked about.

[00:33:47] Speaker 05:
That's an IP-based alert that allows the alert originator to include multiple translations of the alert.

[00:33:55] Speaker 05:
And all EAS devices must

[00:33:58] Speaker 05:
must be able to receive and process.

[00:34:00] Speaker 03:
That doesn't help if, as you said, the Internet goes down.

[00:34:03] Speaker 03:
wireless goes down.

[00:34:05] Speaker 05:
So CAP can, you're right, Your Honor, if the internet goes down, that's right, you're right.

[00:34:11] Speaker 03:
Another... But this translation of the headers into foreign language would work.

[00:34:16] Speaker 05:
Yes, and another similarly automated nature is text-to-speech software.

[00:34:22] Speaker 05:
So EAS participants can take English text and use their software to convert that into a Spanish

[00:34:29] Speaker 05:
audio, and so that is a technology that is available right now.

[00:34:33] Speaker 05:
And then we also have an entirely separate... But none of that's mandated by the FCC.

[00:34:37] Speaker 03:
I'm sorry?

[00:34:38] Speaker 03:
None of that's mandated by the FCC.

[00:34:39] Speaker 05:
It's not mandated by the FCC.

[00:34:40] Speaker 05:
No, you're right.

[00:34:41] Speaker 05:
And then we have this separate wireless alerting system.

[00:34:46] Speaker 05:
And we've adopted rules mandating that mobile devices must support the transmission of Spanish emergency text messages.

[00:34:55] Speaker 05:
So if you're a subscriber and you say, I want to get my emergency alerts through Spanish text,

[00:35:01] Speaker 05:
We've adopted rules now requiring that, and given most of us, we have our cell phone tethered to us at all times.

[00:35:08] Speaker 05:
We're not necessarily tuning into our radio.

[00:35:11] Speaker 05:
So this is a very powerful way for the Spanish-speaking population, which is the largest limited English proficiency population in this country,

[00:35:19] Speaker 05:
to get their emergency alerts in Spanish.

[00:35:22] Speaker 05:
So taken together, the EAS, we are providing a mechanism for EAS participants to disseminate multilingual alerts.

[00:35:34] Speaker 05:
We also denied, while we denied MMTC's proposals, we are still looking to this issue, and that is what this reporting requirement is about.

[00:35:42] Speaker 05:
And so next year, when we get this information, we will analyze it, and to the extent that states are telling us, you know,

[00:35:49] Speaker 05:
obstacles or structural impediments that are preventing us from moving forward, the Commission is open to looking into this issue and seeing how we can help.

[00:35:58] Speaker 05:
But before you start tinkering with a highly complex system involving 28,000 EAS participants nationwide, I think it's reasonable for the Commission to say, you know what, we need comprehensive, accurate information about what the landscape looks like first before we start

[00:36:17] Speaker 05:
interfering with the system and potentially messing it up.

[00:36:21] Speaker 05:
Because it is a very important backup system.

[00:36:23] Speaker 05:
And it needs to be robust and reliable at all times.

[00:36:27] Speaker 02:
Can I ask you about the nationwide alert?

[00:36:29] Speaker 02:
I know it's been around since the Eisenhower era.

[00:36:33] Speaker 02:
You haven't been around that long.

[00:36:34] Speaker 02:
I haven't.

[00:36:35] Speaker 02:
And I don't remember ever hearing a nationwide alert.

[00:36:39] Speaker 02:
And how, if you know, how is that processed?

[00:36:44] Speaker 02:
by wireless, by cap, by TV broadcast.

[00:36:48] Speaker 02:
Is it also in other languages or do you know?

[00:36:50] Speaker 05:
So the nationwide alert is the presidential alert.

[00:36:54] Speaker 05:
So the president

[00:36:56] Speaker 05:
through FEMA, gets on a mic, issues a message.

[00:37:00] Speaker 05:
At that point, the nationwide code is activated, which locks the facilities of all of the EAS participants.

[00:37:09] Speaker 05:
So it's sort of a dumb pipe that goes from the president to each of these devices.

[00:37:13] Speaker 05:
And they will air that audio immediately.

[00:37:17] Speaker 05:
And that goes through EAS.

[00:37:19] Speaker 05:
That also goes through FEMA's iPAWS server, which is the alert aggregator.

[00:37:23] Speaker 05:
And iPAWS distributes it through

[00:37:25] Speaker 05:
over the internet, through cell phones, through national weather service radios.

[00:37:31] Speaker 05:
So while we've never had a presidential alert, that's the way that it's set up.

[00:37:36] Speaker 05:
So whatever the president says is immediately disseminated in issue one.

[00:37:39] Speaker 02:
In English only?

[00:37:40] Speaker 05:
I'm sorry?

[00:37:40] Speaker 02:
In English only?

[00:37:42] Speaker 05:
Well, no.

[00:37:43] Speaker 05:
The president is welcome to issue a translation if they so choose.

[00:37:47] Speaker 05:
Again, we've never seen one of these before, so we're not sure what the president might do in that instance.

[00:37:52] Speaker 05:
But of course, the FCC has no authority.

[00:37:54] Speaker 05:
to mandate that the president issue a translation.

[00:37:57] Speaker 05:
Your honor, if there's no further questions, we ask that the commission's order be affirmed.

[00:38:03] Speaker 05:
Thank you.

[00:38:05] Speaker 02:
Does Ms.

[00:38:06] Speaker 02:
Van Zyl have any time left?

[00:38:09] Speaker 02:
All right, why don't you take a couple minutes.

[00:38:15] Speaker 04:
Thank you, your honor.

[00:38:21] Speaker 04:
Several points were raised during my colleague's argument that I would like to respond to.

[00:38:25] Speaker 04:
The last being that the representation that the FCC is still looking at this.

[00:38:32] Speaker 04:
Well, the fact of the matter is that the FCC denied our petition.

[00:38:36] Speaker 04:
It closed out this petition.

[00:38:38] Speaker 04:
And so to the extent that they're still looking at it, that really wasn't a reason relied on by the agency in its own order.

[00:38:46] Speaker 04:
Second, in terms of this idea that because we filed our petition in an EAS docket that the commission was somehow limited to EAS only solutions, again that's not something that was articulated in the order and indeed the agency said

[00:39:04] Speaker 04:
essentially the opposite, in 2007 in a second report in order when it acknowledged that our request was broader than the formal EAS system and said we're prepared to take action on this within six months.

[00:39:15] Speaker 04:
Subsequent discussions also did not raise any concerns about this having been filed in the wrong docket.

[00:39:21] Speaker 04:
In addition to that, there actually was a second docket in which the agency could have acted.

[00:39:26] Speaker 04:
That was the sort of independent panel that investigated what happened with communications infrastructure more broadly during Hurricane Katrina, docket number 06-119.

[00:39:37] Speaker 04:
The two dockets were linked for a period of time.

[00:39:39] Speaker 04:
Inexplicably, the FCC did not list that docket number in its order.

[00:39:44] Speaker 04:
And so I think the record belies that contention.

[00:39:49] Speaker 04:
The FCC also contended that while there are some states that don't have large multilingual populations, we agree with that.

[00:39:56] Speaker 04:
We identified 15 states that would not necessarily need to modify either their EAS systems or to engage in a designated header plan, but there are 35 states that do.

[00:40:06] Speaker 04:
And I only heard four mentioned as even having

[00:40:09] Speaker 04:
made gestures towards solving the problem.

[00:40:12] Speaker 04:
And within those 35 states that includes 48 markets that aren't being served in terms of just Spanish language information alone.

[00:40:21] Speaker 04:
Third, in terms of the idea that, oh, well, you would need people to translate, and we just don't have people to translate here.

[00:40:29] Speaker 04:
I think the FCC itself addressed this contention when it said that the header codes could automatically be translated.

[00:40:34] Speaker 04:
Obviously, there's technology there.

[00:40:36] Speaker 04:
But in terms of information during and after an emergency,

[00:40:39] Speaker 04:
In 2005, in our original petition, the Spanish Broadcasters Association represented that all or almost all of its 200 stations would be willing to volunteer to translate alerts into Spanish.

[00:40:51] Speaker 04:
And so again, I think that that contention is relied by the record.

[00:40:55] Speaker 04:
In terms of the idea that this should be left to alert originators.

[00:40:59] Speaker 04:
The FCC contends that they don't have authority over alert originators.

[00:41:03] Speaker 04:
We would concede to that.

[00:41:04] Speaker 04:
But they do have authority over states and localities that want to use the EAS infrastructure.

[00:41:10] Speaker 04:
And they regularly place conditions on those states and localities.

[00:41:14] Speaker 04:
The states, of course,

[00:41:15] Speaker 04:
could, if they chose to, tell alert originators that they had to furnish translations where reasonable.

[00:41:24] Speaker 04:
One of our suggestions was simply that states address this issue in their EAS plans, which would have given states and localities maximum flexibility to decide how they want to act on the issue.

[00:41:33] Speaker 00:
Why don't you think the states are doing more on this as of now?

[00:41:38] Speaker 00:
Is there information on that in the record?

[00:41:42] Speaker 04:
Not much, Your Honor, not much.

[00:41:44] Speaker 04:
I mean, the states that have acted, Florida, for example, represented that their satellite-based system was relatively low cost, that it was simply not that difficult.

[00:41:54] Speaker 04:
So it is a bit of a puzzle as to why other states aren't doing this.

[00:41:57] Speaker 04:
I mean, we would hope that a mandate or even a nudge might change that, and that's really what we're asking for here.

[00:42:09] Speaker 04:
Lastly, I'd like to address my colleague's contention that somehow this wireless emergency alert evolution solves the problem.

[00:42:20] Speaker 04:
We would represent that it does not, but we didn't make that statement on the record below because we had no opportunity to.

[00:42:26] Speaker 04:
The agency itself didn't rely on this wireless emergency alert order.

[00:42:30] Speaker 04:
And so again, it's a classic chenri problem to which we had no ability to respond.

[00:42:36] Speaker 04:
We don't think that it solves the issue.

[00:42:39] Speaker 04:
But in any event, the agency can't rely on it here given that they didn't rely on it in the order itself.

[00:42:46] Speaker 04:
If there are no further questions, we would ask the court to grant the petition for review and remand to the agency.

[00:42:51] Speaker 04:
Thank you, Your Honor.