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Notwithstanding the requirement in 47 C.F.R. s 73.1202
that a licensee keep and make available all letters received
from viewers, WUSA-TV in Washington, D.C., forwarded the
letters it received to CBS's main office in New York. When a
representative of the Ukrainian-American Community Net
work asked to see the letters, WUSA contacted CBS in New
York and was told by Raymond Faiola that the letters were
in storage and that a response had been sent to each viewer
who wrote in; Faiola attached what he said was a copy of that
response. After failing to locate any viewer who had received
such a reply, the UACN representative questioned this story.
A CBS attorney in turn questioned Faiola, who then ex
plained that the response letter had been sent to only about a
quarter of the viewers who had written in about the program.
When an intensive advertising campaign, however, failed to
turn up even one person in the Ukrainian-American commu
nity who had received a response, the UACN representative
complained to the Commission and sent a copy of the com
plaint to counsel for CBS. When CBS's counsel asked Faiola
for an affidavit confirming his story, Faiola admitted that the
letter he had sent WUSA had been merely a draft and that he
had forgotten to have any actual response letters sent out.
Nos. 95-1385, 1440. Alexander Serafyn, an American of
Ukrainian ancestry, petitioned the Commission to deny or to
set for hearing the application of CBS to be assigned the
licenses of two stations, arguing that the "60 Minutes" broad
cast showed that CBS had distorted the news and therefore
failed to serve the public interest. In support of his petition,
Serafyn submitted the broadcast itself, outtakes of interviews
with Rabbi Bleich, viewer letters, a dictionary supporting his
claim about the mistranslation of "zhyd," historical informa
tion about the Galicia Division, information showing that CBS
had rebuffed the offer of a professor of Ukrainian history to
help CBS understand the subject, and seven other items of
evidence.
Serafyn also submitted evidence that "60 Minutes" had no
policy against news distortion and indeed that management
considered some distortion acceptable. For example, accord
ing to the Washington Post, Mike Wallace, a longtime report
er for "60 Minutes," told an interviewer: "You don't like to
baldly lie, but I have." Colman McCarthy, The TV Whisper,
Wash. Post, Jan. 7, 1995, at A21. Don Hewitt, the executive
producer of "60 Minutes," is quoted in the same article as
saying that some deception is permissible because "[i]t's the
small crime vs. the greater good," and elsewhere as saying
that "I wouldn't make Hitler look bad on the air if I could get
a good story." Richard Jerome, Don Hewitt, People, Apr. 24,
1995, at 85, 90.
CBS, taking the position that any official investigation into
its news broadcasting "offends the protections of a free
press," did not submit any evidence. Nonetheless, the Com
mission denied the petition without a hearing. See WGPR,
Inc., 10 FCC Rcd 8140, 8146-48 (1995). Explaining that it
would not investigate an allegation of news distortion without
"substantial extrinsic evidence" thereof, the Commission de
termined that only three of Serafyn's items of evidence were
extrinsic to the broadcast itself: the viewer letters, the
outtakes of interviews with Rabbi Bleich, and CBS's refusal
to use the services of the history professor. All the other
evidence, according to the Commission, either concerned "dis
putes as to the truth of the event ... or embellishments
concerning peripheral aspects of news reports or attempts at
window dressing which concerned the manner of presenting
the news." Id. at 8147 (emphasis in original, citations omit
ted). The Commission then held that the three items it
regarded as extrinsic evidence "in total ... do[ ] not satisfy
the standard for demonstrating intent to distort." Id. at
8148. Serafyn had therefore failed to show that CBS had not
met its public interest obligations and had "failed to present a
substantial and material issue of fact that the grant of the
application ... would be inconsistent with the public inter
est." Id. at 8149.
Serafyn and Oleg Nikolyszyn, another viewer who com
plained to the Commission and whose appeal we consolidated
with Serafyn's, argue that the Commission violated its own
standard in concluding that no hearing was necessary.
Serafyn implicitly objects also to the standard itself insofar as
he argues that it "imposed an impossible burden" upon him
by requiring that he present extrinsic evidence sufficient to
prove his claim without the benefit of discovery, and that the
"objective" evidence he offered should be deemed adequate to
warrant a hearing upon the public interest question.
No. 95-1608. Serafyn and the Ukrainian Congress Com
mittee of America also petitioned the Commission to revoke
or set for a revocation hearing all of the broadcast licenses
owned by CBS, arguing that CBS had made misrepresenta
tions to the Commission regarding its treatment of the viewer
letters. The Commission denied the petition on the grounds
that Serafyn had neither alleged that CBS made a false
statement to the Commission (as opposed to WUSA) nor
proved that CBS intended to make a false statement. With
respect to the latter point the Commission relied solely upon
Fiola's affidavit; it did not consider Serafyn's allegations
that CBS intentionally misrepresented the facts because they
were "not supported by an affidavit from a person with
personal knowledge thereof" and therefore did not meet the
threshold requirement of s 309(d). See Stockholders of CBS
Inc., 11 FCC Rcd 3733 (1995).
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
II. News Distortion
With regard to the Commission's requirement that he
prove by extrinsic evidence that CBS intended to distort the
news, Serafyn argues that the Commission "has never articu
lated a precise definition of 'extrinsic evidence' " and that its
prior decisions suggest it is merely seeking "objective evi
dence from outside the broadcast which demonstrates, with
out any need for the Commission to second-guess a licensee's
journalistic judgment or for the Commission to make credibil
ity findings, that the licensee has distorted a news program."
He then argues that the Commission misapplied the extrinsic
evidence standard by mischaracterizing some evidence as
non-extrinsic, failing to discuss other evidence he presented,
analyzing each piece of extrinsic evidence separately rather
than cumulatively, and requiring him to prove his case rather
than simply to raise a material question.
The Commission stands by its characterization of the evi
dence based upon its definition of extrinsic evidence, which it
says " 'is evidence outside the broadcast itself,' such as evi
dence of written or oral instructions from station manage
ment, outtakes, or evidence of bribery." Further, the Com
mission explains that its investigation properly "focuse[d] on
evidence of intent of the licensee to distort [deliberately], not
on the petitioner's claim that the true facts of the incident are
different from those presented," because "[e]xtrinsic evidence
[must] demonstrate[ ] that a broadcaster knew elements of a
news story were false or distorted, but nevertheless, proceed
ed to air such programming."
We review the Commission's decision under the arbitrary
and capricious standard. See Astroline, 857 F.2d at 1562.
We will uphold the decision if it is "reasonable and supported
by the evidence before it," but "will not 'hesitate to intervene
where the agency decision appears unreasonable or bears
inadequate relation to the facts on which it is purportedly
based.' " Beaumont Branch of the NAACP v. FCC, 854 F.2d
501, 507 (D.C. Cir. 1988) (quoting California Public Broad
casting Forum v. FCC, 752 F.2d 670, 675 (D.C. Cir. 1985)).
Analyzing the Commission's decision under this standard, we
conclude that the agency has failed adequately to explain its
decision not to set the application of CBS for a hearing. We
therefore vacate the decision of the Commission and remand
the matter for further administrative proceedings.
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
A. Evidentiary standard
At the outset, we note that the Commission never explained
under which step of the inquiry it resolved this case. It
began by stating that Serafyn "must satisfy the threshold
extrinsic evidence standard in order to elevate [his] allega
tions to the level of 'substantial and material' "; but then said
that Serafyn had not "demonstrate[d]" that CBS intended to
distort the news; and finally concluded that because his
allegations concerned only one show "such an isolated in
stance ... cannot[ ] rise to the level of a 'pattern of preju
dice,' the burden required of a petitioner who seeks to make a
prima facie case." WGPR, 10 FCC Rcd at 8148. The
Commission's muddled discussion suggests that it not only
conflated the first and second steps but also applied the
wrong standard in judging the sufficiency of the evidence.
As we have explained, the appropriate questions for the
Commission to ask at the threshold stage are first, whether
the petitioner's allegations make out a prima facie case, and
second, whether they raise a substantial and material ques
tion of fact regarding the licensee's ability to serve the public
interest. Instead, the Commission apparently asked whether
Serafyn's evidence proved CBS's intent to distort the news,
for it concluded by saying:
[W]e find, in sum, that the outtakes of the rabbi's inter
view fail to demonstrate CBS's intent to distort....
The two remaining pieces of evidence ... fall[ ] far
short of demonstrating intent to distort.... Serafyn's
extrinsic evidence in total, therefore, does not satisfy the
standard for demonstrating intent to distort.
Id. at 8147, 8148. In requiring Serafyn to "demonstrate" that
CBS intended to distort the news rather than merely to
"raise a substantial and material question of fact" about the
licensee's intent, the Commission has misapplied its standard
in a way reminiscent of the problem in Citizens for Jazz:
"The statute in effect says that the Commission must look
into the possible existence of a fire only when it is shown a
good deal of smoke; the Commission has said that it will look
into the possible existence of a fire only when it is shown the
existence of a fire." 775 F.2d at 397. For this reason alone
we must remand the case to the agency. Although we do not
propose to determine just how much evidence the Commis
sion may require or whether Serafyn has produced it, which
are matters for the Commission itself to determine in the first
instance, we can safely say that the quantum of evidence
needed to raise a substantial question is less than that
required to prove a case. See id. (" '[P]rima facie sufficiency'
means the degree of evidence necessary to make, not a fully
persuasive case, but rather what a reasonable factfinder
might view as a persuasive case--the quantum, in other
words, that would induce a trial judge to let a case go to the
jury even though he himself would (if nothing more were
known) find against the plaintiff").
We are also concerned about the Commission's method of
analyzing the various pieces of evidence that Serafyn present
ed. In making its decision the Commission must consider
together all the evidence it has. See Gencom, 832 F.2d at
181; Citizens for Jazz, 775 F.2d at 395. The decision under
review, however, suggests (though not conclusively) that the
Commission analyzed each piece of evidence in isolation only
to determine, not surprisingly, that no item by itself crossed
the threshold. See WGPR, 10 FCC Rcd at 8147-48. Be
cause we must remand this matter in any case, we need not
determine whether the Commission in fact erred in this
regard. We simply note that upon remand the Commission
must consider all the evidence together before deciding
whether it is sufficient to make a prima facie case or to raise
a substantial and material question of fact.
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
B. Licensee's policy on distortion
In addition to holding that Serafyn presented insufficient
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