ГУЛаг Палестины - Лев Гунин

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