Multicultural Media v. Fed. Commc'ns Comm'n

• Decision Date: 17 October 2017
• Docket Number: No. 16-1222.,16-1222.
• Citation: 873 F.3d 932
• Parties: MULTICULTURAL MEDIA, TELECOM AND INTERNET COUNCIL and the League of United Latin American Citizens, Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

873 F.3d 932

MULTICULTURAL MEDIA, TELECOM AND INTERNET COUNCIL and the League of United Latin American Citizens, Petitioners

v.FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents

No. 16-1222.

United States Court of Appeals, District of Columbia Circuit.

Argued May 11, 2017

Decided October 17, 2017

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.

Andrew Jay Schwartzman was on the brief for amici curiae Former FCC Officials in support of petitioners.

Thaila 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 respondents.

Before Henderson, Kavanaugh, and Millett, Circuit Judges.

Opinion for the Court filed by Circuit Judge Kavanaugh, with whom Circuit Judge Henderson joins and with whom Circuit Judge Millett joins as to Part II.A.

Opinion concurring in part and dissenting in part filed by Circuit Judge Millett.

Kavanaugh, Circuit Judge:

In some 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

In 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 review.

I

The 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."

For purposes of this case, two groups are especially relevant.

First 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.

Second 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 automatic.

Alert 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.

By 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.

II

Several 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.

A

First, 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.

The 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.").

If 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, 120 S.Ct. 1291, 146 L.Ed.2d 121 (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.

B

All of 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 English.¹

Based 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 than using its authority to mandate multilingual alerts now.

In arbitrary and capricious cases, we distinguish substantive unreasonableness claims from lack-of-reasoned-explanation claims. A substantive unreasonableness claim ordinarily is an argument that, given the facts, the agency exercised its discretion unreasonably. A decision that the agency's action was substantively unreasonable generally means that, on remand, the agency must exercise its discretion differently and reach a different bottom-line decision. By contrast, a lack-of-reasoned-explanation claim in this context ordinarily consists of a more modest claim that the agency has failed to adequately address all of the relevant factors or to adequately explain its exercise of discretion in light of the information before it.²

In short, an agency's exercise of discretion must be both reasonable and reasonably explained. See Cytori Therapeutics, Inc. v. FDA , 715 F.3d 922, 926 (D.C. Cir. 2013) ; National Telephone Cooperative Association v. FCC , 563 F.3d 536, 540 (D.C. Cir. 2009). That "reasonable and reasonably explained" standard is deferential: The court does not substitute its own policy judgment for that of the agency. According to the Supreme Court, moreover, an agency's refusal to promulgate a new rule is subject to even more deferential review: Review in such cases is "extremely limited and highly deferential." Massachusetts v. EPA , 549 U.S. 497, 527–28, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (internal quotations omitted). At the same time, the standard of review is not toothless: The court must ensure that the agency's action—and the agency's explanation for that action—falls within a zone of reasonableness. See State Farm , 463 U.S. at 43, 103 S.Ct. 2856.

The precise legal question here, therefore, is whether the FCC has exercised its discretion in a manner that was reasonable and reasonably explained.

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