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assessment of allegations of news distortion, in sum,
focuses on evidence of intent of the licensee to distort,
not on the petitioner's clam that the true facts of the
incident are different from those presented.
WGPR, 10 FCC Rcd at 8147.
Serafyn argues that the definition quoted above does not
purport to be all-inclusive, and that the Commission acted
unreasonably in holding that the evidence he submitted is not
also extrinsic. In his view the agency should inquire "wheth
er the licensee has distorted a news program" and the
Commission can make this inquiry--without becoming a na
tional arbiter of truth--by relying upon "objective" evidence
to disprove assertions made in a news show. Intervenor CBS
argues that the "objective" nature of evidence has never been
considered in determining whether it is extrinsic. The Com
mission responds that however one defines "extrinsic evi
dence," it does not include that which goes only to the truth
of a matter stated in the broadcast.
The Commission has not so much defined extrinsic evidence
as provided examples of the genre and what lies outside it.
While the Commission certainly may focus upon evidence
relevant to intent and exclude all else, the problem is--as the
Commission's past decisions show--that the inaccuracy of a
broadcast can sometimes be indicative of the broadcaster's
intent. See Application of WMJX, 85 FCC 2d 251 (1981)
(station denied intent to mislead public but admitted it knew
news broadcast was false; Commission implicitly concluded
from broadcaster's knowledge of falsity that it had intended
to mislead public); see also Hunger in America, 20 FCC 2d
at 147 (Commission may intervene "in the unusual case where
the [truth of the] matter can be readily and definitely re
solved").
Here, Serafyn argues that CBS got its facts so wrong that
its decision to broadcast them gives rise to the inference that
CBS intentionally distorted the news. Without deciding
whether Serafyn's arguments about individual facts are cor
rect, or even specifying what standard the Commission should
use when analyzing claims of factual inaccuracy, we must
point out that an egregious or obvious error may indeed
suggest that the station intended to mislead. This is not to
say that the Commission must investigate every allegation of
factual inaccuracy; if the broadcaster had to do historical
research or to weigh the credibility of interviewees, for
example, then any alleged inaccuracy is almost certainly
neither egregious nor obvious. Our point is only that as an
analytical matter a factual inaccuracy can, in some circum
stances, raise an inference of such intent. The Commission
therefore erred insofar as it categorically eliminated factual
inaccuracies from consideration as part of its determination of
intent.*
The chief example we have in mind is the apparent mis
translation of "zhyd" as "kike." Such a highly-charged word
is surely not used lightly. Of course, translation is a tricky
business, and it is axiomatic that one can never translate
perfectly. Nonetheless, a mistranslation that "affect[s] the
basic accuracy" of the speaker is problematic under the
Commission's standard. Galloway, 778 F.2d at 20.
Translating can be compared to editing a long interview
down to a few questions and answers. In The Selling of the
Pentagon, the Commission addressed an interviewee's allega
tion that CBS's "60 Minutes" had "so edited and rearranged
[his answers to questions posed] as to misrepresent their
content." 30 FCC 2d 150, 150 (1971). Although it decided in
that case that the interviewee had not been so badly misrep
resented as to require action by the Commission, the agency
allowed that it "can conceive of situations where the documen
tary evidence of deliberate distortion would be sufficiently
strong to require an inquiry--e.g., where a 'yes' answer to
one question was used to replace a 'no' answer to an entirely
different question." Id. Changing "Jew" to "kike" may be
as blatant a distortion as changing a "no" answer to a "yes,"
so greatly does it alter the sense of the speaker's statement;
if so, then the basic accuracy of the report is affected.
Further, when the word chosen by the translator is an
inflammatory term such as "kike," the licensee could be
expected to assure itself of the accuracy of the translation; if
it does not do so, the Commission may appropriately consider
that fact in reaching a conclusion about the broadcaster's
_______________________________
* Counsel for the Commission was unable to say at oral argu
ment whether the agency simply did not believe that such evidence
could ever be probative--which would be a mistake--or understood
the point we are making but chose to exclude such evidence for
prudential reasons--which would be an exercise of judgment within
its discretion if not unreasonable.
intent to distort the news. The Commission was therefore
unreasonable in dismissing this charge without an explana
tion.
We need not discuss here each of the other factual inaccu
racies raised by Serafyn. On remand the Commission should
consider whether any other error was sufficiently obvious and
egregious to contribute to an inference about CBS's intent,
and therefore to qualify as "extrinsic evidence."
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
D. Misrepresentation
In Stockholders of CBS, Inc. Serafyn argued that CBS
made a misrepresentation to the Commission by misleading
WUSA about its treatment of the viewer letters and thereby
causing the affiliate to transmit that erroneous information to
the Commission. The Commission responded that "[m]isrep
resentation is composed of two elements: a material false
statement made to the Commission and an intent to make
such a statement." 11 FCC Rcd at 3753. The Commission
then held Serafyn had neither alleged that CBS had made its
representation directly to the Commission nor "provided
[any] evidence that CBS [had] intended to convey false infor
mation to the Commission through its affiliate." Id.
In reviewing the Commission's conclusion that CBS did not
make a misrepresentation we ask only whether the Commis
sion was "cognizant of the issue raised and, upon the record,
reasonably resolve[d] that issue." WEBR, Inc. v. FCC, 420
F.2d 158, 164 (D.C. Cir. 1969). In this case the answer to
both questions is yes.
There is no dispute that CBS did not make its false
statement directly to the Commission. Serafyn argues, how
ever, that directness has never been required, that "CBS was
aware of Appellants' complaint against WUSA-TV," and that
CBS's misrepresentations to WUSA therefore should "be
taken as seriously as if made directly to the Commission."
The Commission responds first that there is no evidence that
CBS intended to make any misrepresentation--"the most
that was shown in the record below was that one official of
CBS was careless or negligent in providing information to
[WUSA]"--and second that it will sanction only a misrepre
sentation made directly to the Commission or intended to be
passed on to the Commission.
The Commission reasonably found Serafyn had not alleged
that CBS intended to make any representation either directly
or indirectly "to the Commission." Assuming for the sake of
the argument that CBS could be sanctioned for making a
misrepresentation through WUSA, we agree with the Com
mission that Serafyn did not substantiate his claim that CBS
knew about the complaint pending before the agency when it
made the two misrepresentations to WUSA. Serafyn's only
evidence is that the UACN had sent CBS's counsel a copy of
the complaint, but that was after WUSA had received the
misinformation and relayed it to the Commission. Absent
any allegation that CBS knew that the first two versions of
the incident it provided to WUSA would make their way to
the Commission, the agency reasonably decided not to sanc
tion CBS for misrepresentation.
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
III. Conclusion
The Commission acted arbitrarily and capriciously in deny
ing Serafyn's petition without analyzing more precisely the
evidence he presented. On the other hand, the Commission
reasonably held that CBS did not make a misrepresentation
to the Commission. We therefore vacate and remand the
Commission's decision in WGPR and affirm its decision in
Stockholders of CBS Inc.
So ordered.
HOME DISINFORMATION 60 MINUTES 738 hits since 12Aug98
Jeannine Aversa Associated Press 12Aug98 FCC must review 60 Minutes Segment
Serafyn had asked the FCC to turn down CBS' license request for
WGPR-TV in Detroit - now WWJ-TV - arguing that the network was not
fit to receive the license because it had aired a distorted news program.
The Associated Press article below provides a brief introduction to the
full United States Court of Appeals decision which is available on the
Ukrainian Archive. The original of the Associated Press article was
provided by Yahoo, more specifically at Jeannine Aversa.
Wednesday August 12 2:58 AM EDT
FCC To Look at '60 Minutes' Segment
JEANNINE AVERSA Associated Press Writer
WASHINGTON (AP) - Responding to a federal appeals court decision,
government TV regulators will take a new look at whether CBS' "60
Minutes" intentionally distorted the news in a 1994 segment on the
Ukraine.
A Federal Communications Commission ruling against CBS on the matter
could call into question the network's fitness to hold all or some of its
broadcast licenses, said attorneys for the agency and for Alexander
Serafyn, who led the court case against the "60 Minutes" report.
But CBS attorneys, speaking on condition of anonymity, disagreed. They
said only WWJ-TV in Detroit - the station involved in the present
challenge - could be affected.
On Tuesday the U.S. Court of Appeals for the District of Columbia
concluded that the FCC didn't sufficiently explain why it decided not to
hold a hearing on the allegations involving the "60 Minutes" segment.
Given the court's ruling, the commission will re-examine the entire
record, including Serafyn's allegations that the segment was
intentionally distorted, an FCC attorney said.
Serafyn had asked the FCC to turn down CBS' license request for WGPR-TV
in Detroit - now WWJ-TV - arguing that the network was not fit to receive
the license because it had aired a distorted news program.
Serafyn, an American of Ukrainian ancestry who is retired and living in
Detroit, had submitted evidence to the FCC involving his allegation about
the broadcast, entitled, "The Ugly Face of Freedom." The FCC denied
Serafyn's petition for a hearing, saying it would not investigate an
allegation of news distortion without "substantial extrinsic evidence."
The court said the FCC misapplied its standard for holding a hearing
because it required Serafyn to demonstrate that CBS intended to distort
the news rather than merely requiring that he "raise a substantial and
material question of fact" - a less demanding test.
CBS attorneys asserted there was no evidence the network intentionally
distorted the segment. In addition, they said the FCC has never revoked
a broadcast license on such grounds.
The broadcast angered some viewers who believed that parts had been
designed to give the impression that all Ukrainians harbor a strongly
negative attitude toward Jews, the court said.
"This is basically an effort on the part of the Ukrainian community,"
said Arthur Belendiuk, Serafyn's attorney. "The case is not so much
about Mr. Serafyn as it is about a community that felt horribly maligned
by what was said."
After the FCC revisits the case, the commission has several options: It
could issue a new order that basically upholds its 1995 order but
provides more details on how the decision was reached; it could order a
hearing on the matter; or it could ask interested parties to comment and
then it could issue a new order, the FCC attorney said.
Whatever the commission ultimately decides is likely to be appealed by
the losing party, Belendiuk and other attorneys said.
HOME DISINFORMATION 60 MINUTES 1156 hits since 12May98
Rabbi David H. Lincoln Ukrainian Weekly 30October94 A New York rabbi's response
Rabbi David H. Lincoln of the Park Avenue Synagogue in New York was among the first to object to the 60 Minutes
broadcast, The Ugly Face of Freedom of 23Oct94. Rabbi Lincoln has had a longstanding interest in Ukraine, inherited
from his father, as is explained in the discussion of The Ukrainian Question in 1935.
Everything below is from the Ukrainian Weekly.
A New York rabbi's response
Following is the text of a letter sent on October 25 to the CBS program "60 Minutes" by Rabbi David H. Lincoln of
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