The authors are with the law firm Fletcher, Heald & Hildreth, on whose website this article originally appeared.
How do you say EAS en español? Apparently, that’s something EAS participants won’t need to worry about anytime soon. The FCC has rejected a proposal that would have mandated the availability of emergency announcements in Spanish (and, in some places, other languages as well). But, presumably not wishing to seem like they were totally turning their back on the not insubstantial non-English speaking populations of our great country, the Commission did make a concession of sorts to the proponents – but not one that’s likely to make them muy feliz.
This all started when the proponents – Independent Spanish Broadcasters Association, the Office of Communication of the United Church of Christ, Inc., and the Minority Media and Telecommunications Council – asked the Commission to modify its Emergency Alert System rules to help non-English speakers. The proposals were set out in a “Petition for Immediate Interim Relief” filed in 2005, just over a decade ago. (So much for any notion of “emergency” or “immediate”…) Specifically, they proposed that:
● all Presidential level messages would have to be broadcast in both English and Spanish on the 34 stations designated as “Primary Entry Point” stations in the EAS system;
● a separate primary multilingual station (proposed designation: “LP-M”) in areas where a substantial portion of the audience speaks a language other than English or Spanish;
● state and local EAS plans would have to designate both a Spanish language station to serve as a primary EAS station (to be designated “LP-S”) been assigned primary EAS status, and
● at least one station in every market would have to monitor and rebroadcast those LP-S and LP-M stations; and
● should those LP-S and/or LP-M stations go off the air in the event of an emergency, stations still on the air would have to carry those multilingual and Spanish-language alerts.
This was, to say the least, an ambitious ask. Probably not surprisingly, the Commission really couldn’t give them everything they asked for. As it turned out, it didn’t give them pretty much anything they asked for.
But don’t get the wrong impression. The FCC’s heart really is in the right place – just ask them. The Commission opened its decision expressing its commitment to promoting the delivery of Emergency Alert System (EAS) alerts to as wide an audience as technically feasible, including to those who communicate in a language other than English or may have a limited understanding of the English language.
And then it got down to business, implementing the “spirit” of the petitioners’ request. Instead of doing anything the petitioners asked for, the FCC came up with its own Plan B. We’ll let you be the judge of how that worked out.
First, the Commission acknowledged (along with the majority of commenters) that EAS messages originate not from broadcast stations or other EAS participants, but from the federal, state and local authorities who initiate EAS messages. So logically, the provision of foreign language versions of those messages could best be dealt with in the first instance at that level. But there are a wide range of variables (e.g., local population, topography, available resources) that weigh against imposing any “one-size-fits-all” approach to all markets nationwide. So requiring all alert originators to adopt a common foreign language messaging protocol was not in the tickets.
Still, under the current EAS, each state has to have its own State EAS Plan, subject to FCC approval. That being the case, the Commission has decided to require that each such Plan include a description of what actions, if any, EAS participants in the geographic area covered by the Plan have taken – or plan to take – to make EAS content available for non-English speaking audience(s). Also to be included in State Plans: “[a]ny other relevant information that the EAS Participant may wish to provide, including state-specific demographics on languages other than English spoken within the state, and identification of resources used or necessary to originate current or proposed multilingual EAS alert content.”
But these new requirements mean that the various State Emergency Communications Committees (SECCs) responsible for preparing State Plans must have access to the necessary underlying information. So the Commission is also requiring all EAS participants to provide that information to their respective SECCs.
Timing-wise, EAS participants will have to give their SECCs the required information within one year of the effective date of the new rules, and the SECCs in turn will have to submit amended State Plans incorporating the information within six months after that. (The effective date won’t be set until the rules have been run through the Paperwork Reduction Act drill at OMB – which won’t be wrapped up for several months, at least. Check back here for updates on that front.)
In other words, the FCC’s “commitment to promoting the delivery of Emergency Alert System (EAS) alerts to as wide an audience as technically feasible” extends, in effect, only to gathering information a couple of years from now (and this after cogitating on the petitioners’ original proposal for more than a decade). Sure, the FCC is requiring EAS participants and SECCs upstream in the system to provide reports on what, if anything, they’ve done or may plan to do to provide non-English emergency alerts. But that reporting requirement expressly contemplates that the reports may reflect simply that no steps have been taken at all – and that’s apparently OK with the Commission. In fact, that’s what the Commission seems to expect will happen:
Based on the fact that virtually no parties responding to our various requests for comment on this matter have identified multilingual EAS activities currently in progress, we suspect that few EAS Participants are actually engaged in multilingual EAS activities. It therefore seems likely that the vast majority of EAS Participants will need to submit nothing more than a very brief statement to their SECC explaining their decision to plan or not plan future actions to provide EAS alert content in languages other than English to their non-English speaking audience(s).
So how exactly does this Order promote the delivery of non-English EAS announcements? We’re probably as unclear as you on that point.
On the one hand, the FCC could be trying to shame EAS participants into getting on board voluntarily. The theory could be that, rather than report no efforts – and thereby appear to be leaving the non-English audience in the lurch when emergencies are imminent – EAS participants might be inclined at least to start to think about what they might do so that they won’t look like a bunch of callous xenoglossophobics.
On another hand, this new information-gathering requirement could just be a precursor to further regulation. That’s at least what Commissioner O’Rielly seems to think. In a partial dissent, he observed that “today’s reporting requirements tend to miraculously morph into tomorrow’s regulations”. His concern is that, if the now-mandatory reports concerning multilingual EAS activities reflect that EAS participants are not engaging in any such activities (regardless of the justification for such non-activity), the Commission could then use that information as the “sole basis for costly, burdensome rules”. And should that occur, O’Rielly has put everybody on notice that he is “unlikely to support” such an effort.
To summarize, then, acting in response to a request for “immediate” action in connection with its Emergency Alert System, the Commission took 11 years only to reject the proposals (notwithstanding its protestations of genuine concern for the non-English speaking audience). The petitioners are likely to be a bit surprised, then, when they get to the antepenultimate paragraph of the Commission’s order and find that, in the FCC’s view, the petition has been “GRANTED” at least to some extent. How can the Commission rationalize that assertion? As it sees things, the new reporting requirements “are consistent with [the petition’s] stated purpose of facilitating the dissemination of multilingual local, state and national emergency information via the EAS.”
If that strikes you as something of a distortion of the conventional meaning of “granted”, that’s the way it looks to us, too. Perhaps something got lost in translation.