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difference between those two regimes.
Nevertheless, in spite of all these quite essential differences, here
abroad the pogroms of the followers of Petlura are much more known than
those perpetrated by Denikin's army, although the latter numerically and
qualitatively surpassed considerably the former. This is to be explained
not only by the propaganda of the Russian groups which have old
connections and larger means in Europe and America, but also by the
incontestable fact that the first series of pogroms attracted the
greatest attention and brought forth the strongest expression of
dissatisfaction on the part of the public.
(In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations
during the Years of the Revolution (1917-1921): Collection of Documents
and Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956, pp. 48-51)
HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98
Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission
Serafyn also submitted evidence that "60 Minutes" had no policy against
news distortion and indeed that management considered some distortion
acceptable. For example, according to the Washington Post, Mike
Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You
don't like to baldly lie, but I have."
An introduction to the United States Court of Appeals decision below can
be found in an Associated Press article by Jeannine Aversa which is on
the Ukrainian Archive.
The original of the Court of Appeals decision below can be found on the
United States Court of Appeals web site whose home page is at
www.cadc.uscourts.gov and where the decision can either be accessed by
following links from the Court of Appeals home page, or else accessed
directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt.
As page numbering was not indicated in the Court of Appeals web site
version, it could not be inserted below, although page boundaries could
be inferred and are indicated below by means of horizontal lines.
The version below inserts clickable yellow CONTENTS boxes to remedy the
general problem of a reader's losing track of where he is within a large
document when reading it on screen, and to facilitate moving effortlessly
from one part of the document to another.
CONTENTS:
Title Page
I. Background
II. News Distortion
A. Evidentiary standard
B. Licensee's policy on distortion
C. Nature of particular evidence
1. Extrinsic evidence
(a) Outtakes of the interview with Rabbi Bleich
(b) The viewer letters
(c) The refusal to consult Professor Luciuk
2. Evidence of factual inaccuracies
D. Misrepresentation
III. Conclusion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 1998 Decided August 11, 1998
No. 95-1385
Alexander J. Serafyn, et al.,
Appellants
v.
Federal Communications Commission,
Appellee
CBS Inc., et al.,
Intervenors
Consolidated with
Nos. 95-1440, 95-1608
Appeal of Orders of the
Federal Communications Commission
Arthur V. Belendiuk argued the cause and filed the briefs
for appellants. Shaun A. Maher and Donna T. Pochoday
entered appearances.
C. Grey Pash, Jr., Counsel, Federal Communications Com
mission, argued the cause for appellee, with whom Christo
pher J. Wright, General Counsel, and Daniel M. Armstrong,
Associate General Counsel, were on the brief.
Richard E. Wiley, Lawrence W. Secrest, III, James R.
Bayes, and Daniel E. Troy were on the brief for intervenors
CBS Inc. and Westinghouse Electric Corporation. John
Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss
entered appearances.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Alexander Serafyn petitioned the
Federal Communications Commission to deny or to set for
hearing the application of CBS for a new station license.
Serafyn objected that CBS was not fit to receive a license
because it had aired a news program in which it intentionally
distorted the situation in Ukraine by claiming that most
Ukrainians are anti-Semitic. The Commission summarily
denied the petition, holding that Serafyn had not submitted
enough evidence to warrant a hearing. Because the Commis
sion neither applied the correct standard nor provided a
reasoned explanation in its decision, we vacate its order and
remand the matter to the agency for further proceedings.
Serafyn also petitioned to revoke CBS's existing licenses on
the ground that CBS made a material misrepresentation to
the Commission when it gave an affiliated station false infor
mation regarding its handling of viewer letters complaining
about the same program. The Commission denied that peti
tion on the ground that Serafyn had not alleged that CBS
intentionally misrepresented the matter to the Commission.
We uphold the Commission's decision in this matter as rea
sonable.
CONTENTS:
Title Page
I. Background
II. News Distortion
A. Evidentiary standard
B. Licensee's policy on distortion
C. Nature of particular evidence
1. Extrinsic evidence
(a) Outtakes of the interview with Rabbi Bleich
(b) The viewer letters
(c) The refusal to consult Professor Luciuk
2. Evidence of factual inaccuracies
D. Misrepresentation
III. Conclusion
I. Background
Section 309(a) of the Communications Act provides that the
Federal Communications Commission may grant a broadcast
license only when it determines that doing so would serve the
"public interest, convenience, and necessity." 47 U.S.C.
s 309(a). Under s 309(d) of the Act any interested person
may petition the FCC to deny or to set for hearing any
application for a broadcast license or to revoke an existing
broadcaster's license. The petition must contain
specific allegations of fact sufficient to show that ... a
grant of the application would be prima facie inconsistent
with [the public interest, convenience, and necessity].
Such allegations of fact shall ... be supported by affida
vit of a person ... with personal knowledge thereof.
Id. The FCC must hold a hearing if it finds that the
application presents a "substantial and material question of
fact" or if it is otherwise unable to conclude that granting the
application would serve the public interest. See s 309(e).
As the Commission interprets it, s 309 erects a two-step
barrier to a hearing: (1) a petition must contain specific
allegations of fact that, taken as true, make out a prima facie
case that grant of the application would not serve the public
interest; and (2) the allegations, taken together with any
opposing evidence before the Commission, must still raise a
substantial and material question of fact as to whether grant
of the application would serve the public interest. See Astro
line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C.
Cir. 1988) (describing two-step test). At the first step, "[t]he
Commission's inquiry ... is much like that performed by a
trial judge considering a motion for a directed verdict: if all
the supporting facts alleged in the affidavits were true, could
a reasonable factfinder conclude that the ultimate fact in
dispute had been established." Gencom, Inc. v. FCC, 832
F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan
tial and material question is raised when "the totality of the
evidence arouses a sufficient doubt on the [question whether
grant of the application would serve the public interest] that
further inquiry is called for."
Citizens for Jazz on WRVR,
Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985).
In determining whether an allegation of news distortion
raises a question about the licensee's ability to serve the
public interest, the Commission analyzes both the substantial
ity and the materiality of the allegation. The Commission
regards an allegation as material only if the licensee itself is
said to have participated in, directed, or at least acquiesced in
a pattern of news distortion. The Commission stated its
policy about 30 years ago as follows:
[W]e do not intend to defer action on license renewals
because of the pendency of complaints of [news distor
tion]--unless the extrinsic evidence of possible deliberate
distortion or staging of the news which is brought to our
attention, involves the licensee, including its principals,
top management, or news management.... [I]f the
allegations of staging ... simply involve news employees
of the station, we will, in appropriate cases ... inquire
into the matter, but unless our investigation reveals
involvement of the licensee or its management there will
be no hazard to the station's licensed status....
.... Rather, the matter should be referred to the
licensee for its own investigation and appropriate han
dling.
.... Rigging or slanting the news is a most heinous
act against the public interest .... [b]ut in this democra
cy, no Government agency can authenticate the news, or
should try to do so.
Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
footnote the Commission added:
[W]e stress that the licensee must have a policy of
requiring honesty of its news staff and must take reason
able precautions to see that news is fairly handled.
An allegation of distortion is "substantial" when it meets
two conditions, as we summarized in an earlier case.
[F]irst, ... the distortion ... [must] be deliberately
intended to slant or mislead. It is not enough to dispute
the accuracy of a news report ... or to question the
legitimate editorial decisions of the broadcaster....
The allegation of deliberate distortion must be supported
by "extrinsic evidence," that is, evidence other than the
broadcast itself, such as written or oral instructions from
station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event
and not merely a minor or incidental aspect of the news
report.... [T]he Commission tolerates ... practices
[such as staging and distortion] unless they "affect[ ] the
basic accuracy of the events reported."
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
Commission's holding that CBS's "60 Minutes" had not dis
torted news by staging insurance investigator's interrogation
of fraudulent claimant; because she "actually did participate
in the fraud and did confess, even if not in precisely the
manner portrayed, the 'basic accuracy of the events reported'
... has not been distorted").
As we noted in Galloway, the Commission's policy makes
its investigation of an allegation of news distortion "extremely
limited [in] scope. But within the constraints of the Constitu
tion, Congress and the Commission may set the scope of
broadcast regulation; it is not the role of this court to
question the wisdom of their policy choices." Id. at 21.
In 1994 CBS produced and broadcast a controversial seg
ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
about modern Ukraine. The broadcast angered some viewers
who believed that many elements of the program had been
designed to give the impression that all Ukrainians harbor a
strongly negative attitude toward Jews. For example, inter
viewer Morley Safer suggested that Ukrainians were "genet
ically anti-Semitic" and "uneducated peasants, deeply super
stitious." Also, soundbites from an interview with the Chief
Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
that he believes all Ukrainians are anti-Semites who want all
Jews to leave Ukraine. In addition, CBS overlaid the sound
of marching boots on a film clip of Ukrainian Boy Scouts
walking to church and introduced it in such a way as to give
viewers the impression that they were seeing "a neo-Nazi,
Hitler Youth-like movement." The narrator also stated that
the Ukrainian Galicia Division had helped in the roundup and
execution of Jews from Lviv in 1941, though this Division was
not in fact even formed until 1943 and therefore could not
possibly have participated in the deed. Perhaps most egre
giously, when Ukrainian speakers used the term "zhyd,"
which means simply "Jew," they were translated as having
said "kike," which is a derogatory term.
After the broadcast interviewees and members of the
Ukrainian-American community deluged CBS with letters.
In his letter Rabbi Bleich stated "unequivocally" that his
"words were quoted out of the context that they were said"
and that "the CBS broadcast was unbalanced" and "did not
convey the true state of affairs in Ukraine." Cardinal Luba
chivsky, the head of the Ukrainian Greek Catholic Church,
who had also been interviewed, both sent a letter to CBS and
released a statement to the press. In the latter he stated,
"[M]y office was misled as to the actual thrust of the report.
Mr. Fager [the producer] presented the piece as one about
'post-communist Ukraine.' ... I can only deduce that the
goal of the report was to present all Western Ukrainians as
rabid anti-semites." Many other viewers pointed out histori
cal inaccuracies and offensive statements or characterizations
in the show.
Notwithstanding the requirement in 47 C.F.R. s 73.1202
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