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cal inaccuracies and offensive statements or characterizations
in the show.
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
evidence to "demonstrate" that CBS had intentionally distort
ed the "60 Minutes" episode about Ukraine, the Commission's
denial of Serafyn's petition also rested upon the alternative
ground that he had not alleged a general pattern of distortion
extending beyond that one episode. Upon appeal Serafyn
argues--and the Commission does not dispute--that he did
present evidence regarding CBS's general policy about distor
tion, namely the comments of Wallace and Hewitt quoted
above, and that the Commission failed to discuss or even to
mention this evidence. Both Wallace's comment ("you don't
like to baldly lie, but I have") and Hewitt's ("it's the small
crime vs. the greater good") are, to say the least, suggestive.
Furthermore, both Wallace (as the most senior reporter and
commentator for "60 Minutes") and Hewitt (as the producer
of the series) are likely members of the "news management"
whose decisions can fairly be attributed to the licensee.
Hunger in America, 20 FCC 2d at 150. The Commission's
failure to discuss Serafyn's allegation relating to CBS's policy
on veracity is therefore troubling. Indeed, because of the
importance the Commission placed upon the supposed lack of
such evidence, its presence in the record casts the Commis
simon alternative ground into doubt. The Commission must
consider these allegations upon remand.
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
C. Nature of particular evidence
The Commission gave illogical or incomplete reasons for
finding non-probative two of the three pieces of evidence it
determined were "extrinsic." It also failed to discuss individ
ually certain alleged factual inaccuracies that Serafyn brought
to its attention. Before discussing the Commission's opinion
in detail, however, we set out a brief excerpt from the
transcript of the broadcast.
MORLEY SAFER, co-host: ... [T]he west [of Ukraine],
where we go tonight, is on a binge of ethnic national
ism. "Ukraine for the Ukrainians" can have a fright
ening ring to those not ethnically correct, especially in
a nation that barely acknowledges its part in Hitler's
final solution.
... [J]ust about every day of the week, the sounds of
freedom can be heard, men and women giving voice to
their particular view of how the new independent
Ukraine should be governed. They disagree about
plenty, but do have two things in common: their old
enemy, Russian communism, and their old, old enemy,
the Jews.
Unidentified Man # 1: (Through Translator) We Ukrain
ians not have to rely on American [sic] and kikes.
SAFER: Yacoov [sic] Bleich left the United States five
years ago to take over as the chief rabbi for the
Ukraine.
Rabbi YACOOV [sic] BLEICH: There is, obviously, a lot
of hatred in these people that are--that are expound
ing these things and saying, you know--obviously if
someone, you know, screams, "Let's drown the Rus
sians in Jewish blood," there isn't much love lost there.
...
SAFER: ... In western Ukraine at least, Hitler's dream
had been realized. It was juden-frei, free of Jews. In
the 50 years since, Jews have drifted in from other
parts of the old Soviet Union, about 7,000 now in
[Lviv]. For some Ukrainians, that's 7,000 too many.
Rabbi BLEICH: Yeah. Well, that's not a secret.
They're saying that they want the Jews out.
...
SAFER: The western Ukraine is fertile ground for
hatred. Independence only underlined its backward
ness: uneducated peasants, deeply superstitious, in
possession of this bizarre anomaly: nuclear weap
ons.... Western Ukraine also has a long, dark history
of blaming its poverty, its troubles, on others.
[Unidentified] Man # 2: (Through Translator) Kikes
have better chances here than even the original popu
lation.
SAFER: Than the Ukrainians.
Man # 2: (Through Translator) Yes.
...
SAFER: The church and government of Ukraine have
tried to ease people's fears, suggesting that things are
not as serious as they might appear; that Ukrainians,
despite the allegations, are not genetically anti-Semitic.
But to a Jew living here ... such statements are little
comfort....
Transcript, Joint Appendix at 92-96.
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
1. Extrinsic evidence
We discuss first the Commission's analysis of the three
pieces of evidence it found were "extrinsic." The Commission
has the responsibility to determine the weight of such evi
dence. The reasons it gives for doing so, however, must be
reasonable and not unfounded.
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) Outtakes of the interview with Rabbi Bleich
The outtakes show that all of Rabbi Bleich's quoted com
ments were made in response to questions about radical
nationalists. Serafyn argued to the Commission that CBS
had misrepresented Bleich's views when it broadcast his
statements without making clear the context in which they
were spoken and without including the qualifications and
positive statements that accompanied them. The Commission
found that the outtakes could indeed "properly serve as
circumstantial evidence of intent," but went on to find that
they did not demonstrate an intent to distort the news
because:
Rabbi Bleich's latter, allegedly misleading comments im
mediately followed ... Safer's statement ... that only
"some Ukrainians" are anti-Semitic.... Indeed, that
the focus of the "60 Minutes" program was upon only a
certain sector of the Ukrainian population is evident from
at least three other express references by Safer to
"Ukrainian ultranationalist parties," "the Social National
ists," and other apparently isolated groups of Ukrainians.
Thus, rather than constitute a distortion, Rabbi Bleich's
negative comments about Ukrainians as utilized can
rightly be viewed as limited to only a segment of the
Ukrainian population.... Nor do we find intent to
distort because CBS did not include in its episode posi
tive statements about Ukraine made by Rabbi Bleich....
[T]he determination of what to include and exclude from
a given interview constitutes the legitimate "journalistic
judgment" of a broadcaster, a matter beyond the Com
mission's "proper area of concern."
WGPR, 10 FCC Rcd at 8147.
Serafyn argues upon appeal that the Commission erred in
failing to find the outtakes persuasive evidence of CBS's
intent to distort. The Commission was not unreasonable,
however, in finding that Safer's phrase "some Ukrainians"
and his other references to extremist groups effectively limit
ed the scope of Bleich's comments to "a segment of the
Ukrainian population." Id.
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) The viewer letters
The Commission held that the letters CBS received from
viewers were extrinsic evidence because they were "external
to the program." Id. at 8148. In the Commission's view,
however, the letters were not probative because the letter
writers were not
"insiders," that is, employees or members of manage
ment of CBS. Nor are they persons with direct personal
knowledge of intent to falsify.... And letters sent by
viewers subsequent to the broadcast [are] evidence clear
ly incapable of going to intent, because intent is a state of
mind accompanying an act, not following it.
Id.
The Commission's reasoning here is flawed in two respects.
First, a person need not have "direct" personal knowledge of
intent in order to have relevant information that constitutes
circumstantial evidence about such intent. See Crawford-El
v. Britton, 93 F.3d 813, 818 (1996) ("[T]he distinction between
direct and circumstantial evidence has no direct correlation
with the strength of the plaintiff's case"); CPBF v. FCC, 752
F.2d at 679 ("Intent [may] be inferred from the subsidiary
fact of [a broadcaster's] statements to third parties"). Sec
ond, evidence that sheds light upon one's intent is relevant
whether it was prepared before or after the incident under
investigation; consider, for example, a letter written after but
recounting words or actions before an event.
Upon remand, therefore, the Commission may wish to
consider separately two types of letters. First, there may be
letters that convey direct information about the producers'
state of mind while the show was in production. For exam
ple, Cardinal Lubachivsky charged that the producers misled
him as to the nature of the show. Second, there are letters
that point out factual inaccuracies in the show. For example,
Rabbi Lincoln, a viewer, wrote in about the mistranslation of
"zhyd." Although letters of this type may not have indepen
dent significance, they may yet be probative in determining
whether an error was obvious or egregious, and if so whether
it bespeaks an intent to distort the facts. See Part II.C.2
below.
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
(c) The refusal to consult Professor Luciuk
Serafyn asserted that CBS's refusal to consult Professor
Luciuk demonstrated its intent to distort the news because
only someone with no intention to broadcast the truth would
refuse to use the services of an expert. The Commission
found that evidence of the broadcaster's decision was extrin
sic to the program but that it "falls far short of demonstrating
intent to distort the ... program" because the "[d]etermina
tion[ ] as to which experts to utilize is a decision solely within
the province of the broadcaster." WGPR, 10 FCC Rcd at
8148. Once again, the agency's reasoning is too loose.
Serafyn raises no question about the broadcaster's discretion
to decide whom, if anyone, to employ; it is only because the
broadcaster has such discretion that its ultimate decision may
be probative on the issue of intent. Before the Commission
may reject this evidence, therefore, it must explain why
CBS's decision to employ one expert over another--or not to
employ one at all--is not probative on the issue of its intent
to distort.
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
2. Evidence of factual inaccuracies
In describing what evidence it would accept to substantiate
Serafyn's claim of news distortion, the Commission stated
that it has "long ruled that it will not attempt to judge the
accuracy of broadcast news reports or to determine whether a
reporter should have included additional facts." WGPR, 10
FCC Rcd at 8147. In "balancing First Amendment and
public interest concerns," it explained, the Commission
will not attempt to draw inferences of distortion from the
content of a broadcast, but it will investigate where
allegations of news distortion are supported by "substan
tial extrinsic evidence" that the licensee has deliberately
distorted its news report. Mrs. J.R. Paul, 26 FCC 2d at
592. "Extrinsic evidence," that is, evidence outside the
broadcast itself, includes written or oral instructions
from station management, outtakes, or evidence of brib
ery. Hunger in America, 20 FCC 2d at 151. Our
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
the Park Avenue Synagogue. The letter is reprinted here with the permission of Rabbi Lincoln, who last year traveled
in the show.
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
evidence to "demonstrate" that CBS had intentionally distort
ed the "60 Minutes" episode about Ukraine, the Commission's
denial of Serafyn's petition also rested upon the alternative
ground that he had not alleged a general pattern of distortion
extending beyond that one episode. Upon appeal Serafyn
argues--and the Commission does not dispute--that he did
present evidence regarding CBS's general policy about distor
tion, namely the comments of Wallace and Hewitt quoted
above, and that the Commission failed to discuss or even to
mention this evidence. Both Wallace's comment ("you don't
like to baldly lie, but I have") and Hewitt's ("it's the small
crime vs. the greater good") are, to say the least, suggestive.
Furthermore, both Wallace (as the most senior reporter and
commentator for "60 Minutes") and Hewitt (as the producer
of the series) are likely members of the "news management"
whose decisions can fairly be attributed to the licensee.
Hunger in America, 20 FCC 2d at 150. The Commission's
failure to discuss Serafyn's allegation relating to CBS's policy
on veracity is therefore troubling. Indeed, because of the
importance the Commission placed upon the supposed lack of
such evidence, its presence in the record casts the Commis
simon alternative ground into doubt. The Commission must
consider these allegations upon remand.
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
C. Nature of particular evidence
The Commission gave illogical or incomplete reasons for
finding non-probative two of the three pieces of evidence it
determined were "extrinsic." It also failed to discuss individ
ually certain alleged factual inaccuracies that Serafyn brought
to its attention. Before discussing the Commission's opinion
in detail, however, we set out a brief excerpt from the
transcript of the broadcast.
MORLEY SAFER, co-host: ... [T]he west [of Ukraine],
where we go tonight, is on a binge of ethnic national
ism. "Ukraine for the Ukrainians" can have a fright
ening ring to those not ethnically correct, especially in
a nation that barely acknowledges its part in Hitler's
final solution.
... [J]ust about every day of the week, the sounds of
freedom can be heard, men and women giving voice to
their particular view of how the new independent
Ukraine should be governed. They disagree about
plenty, but do have two things in common: their old
enemy, Russian communism, and their old, old enemy,
the Jews.
Unidentified Man # 1: (Through Translator) We Ukrain
ians not have to rely on American [sic] and kikes.
SAFER: Yacoov [sic] Bleich left the United States five
years ago to take over as the chief rabbi for the
Ukraine.
Rabbi YACOOV [sic] BLEICH: There is, obviously, a lot
of hatred in these people that are--that are expound
ing these things and saying, you know--obviously if
someone, you know, screams, "Let's drown the Rus
sians in Jewish blood," there isn't much love lost there.
...
SAFER: ... In western Ukraine at least, Hitler's dream
had been realized. It was juden-frei, free of Jews. In
the 50 years since, Jews have drifted in from other
parts of the old Soviet Union, about 7,000 now in
[Lviv]. For some Ukrainians, that's 7,000 too many.
Rabbi BLEICH: Yeah. Well, that's not a secret.
They're saying that they want the Jews out.
...
SAFER: The western Ukraine is fertile ground for
hatred. Independence only underlined its backward
ness: uneducated peasants, deeply superstitious, in
possession of this bizarre anomaly: nuclear weap
ons.... Western Ukraine also has a long, dark history
of blaming its poverty, its troubles, on others.
[Unidentified] Man # 2: (Through Translator) Kikes
have better chances here than even the original popu
lation.
SAFER: Than the Ukrainians.
Man # 2: (Through Translator) Yes.
...
SAFER: The church and government of Ukraine have
tried to ease people's fears, suggesting that things are
not as serious as they might appear; that Ukrainians,
despite the allegations, are not genetically anti-Semitic.
But to a Jew living here ... such statements are little
comfort....
Transcript, Joint Appendix at 92-96.
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
1. Extrinsic evidence
We discuss first the Commission's analysis of the three
pieces of evidence it found were "extrinsic." The Commission
has the responsibility to determine the weight of such evi
dence. The reasons it gives for doing so, however, must be
reasonable and not unfounded.
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) Outtakes of the interview with Rabbi Bleich
The outtakes show that all of Rabbi Bleich's quoted com
ments were made in response to questions about radical
nationalists. Serafyn argued to the Commission that CBS
had misrepresented Bleich's views when it broadcast his
statements without making clear the context in which they
were spoken and without including the qualifications and
positive statements that accompanied them. The Commission
found that the outtakes could indeed "properly serve as
circumstantial evidence of intent," but went on to find that
they did not demonstrate an intent to distort the news
because:
Rabbi Bleich's latter, allegedly misleading comments im
mediately followed ... Safer's statement ... that only
"some Ukrainians" are anti-Semitic.... Indeed, that
the focus of the "60 Minutes" program was upon only a
certain sector of the Ukrainian population is evident from
at least three other express references by Safer to
"Ukrainian ultranationalist parties," "the Social National
ists," and other apparently isolated groups of Ukrainians.
Thus, rather than constitute a distortion, Rabbi Bleich's
negative comments about Ukrainians as utilized can
rightly be viewed as limited to only a segment of the
Ukrainian population.... Nor do we find intent to
distort because CBS did not include in its episode posi
tive statements about Ukraine made by Rabbi Bleich....
[T]he determination of what to include and exclude from
a given interview constitutes the legitimate "journalistic
judgment" of a broadcaster, a matter beyond the Com
mission's "proper area of concern."
WGPR, 10 FCC Rcd at 8147.
Serafyn argues upon appeal that the Commission erred in
failing to find the outtakes persuasive evidence of CBS's
intent to distort. The Commission was not unreasonable,
however, in finding that Safer's phrase "some Ukrainians"
and his other references to extremist groups effectively limit
ed the scope of Bleich's comments to "a segment of the
Ukrainian population." Id.
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) The viewer letters
The Commission held that the letters CBS received from
viewers were extrinsic evidence because they were "external
to the program." Id. at 8148. In the Commission's view,
however, the letters were not probative because the letter
writers were not
"insiders," that is, employees or members of manage
ment of CBS. Nor are they persons with direct personal
knowledge of intent to falsify.... And letters sent by
viewers subsequent to the broadcast [are] evidence clear
ly incapable of going to intent, because intent is a state of
mind accompanying an act, not following it.
Id.
The Commission's reasoning here is flawed in two respects.
First, a person need not have "direct" personal knowledge of
intent in order to have relevant information that constitutes
circumstantial evidence about such intent. See Crawford-El
v. Britton, 93 F.3d 813, 818 (1996) ("[T]he distinction between
direct and circumstantial evidence has no direct correlation
with the strength of the plaintiff's case"); CPBF v. FCC, 752
F.2d at 679 ("Intent [may] be inferred from the subsidiary
fact of [a broadcaster's] statements to third parties"). Sec
ond, evidence that sheds light upon one's intent is relevant
whether it was prepared before or after the incident under
investigation; consider, for example, a letter written after but
recounting words or actions before an event.
Upon remand, therefore, the Commission may wish to
consider separately two types of letters. First, there may be
letters that convey direct information about the producers'
state of mind while the show was in production. For exam
ple, Cardinal Lubachivsky charged that the producers misled
him as to the nature of the show. Second, there are letters
that point out factual inaccuracies in the show. For example,
Rabbi Lincoln, a viewer, wrote in about the mistranslation of
"zhyd." Although letters of this type may not have indepen
dent significance, they may yet be probative in determining
whether an error was obvious or egregious, and if so whether
it bespeaks an intent to distort the facts. See Part II.C.2
below.
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
(c) The refusal to consult Professor Luciuk
Serafyn asserted that CBS's refusal to consult Professor
Luciuk demonstrated its intent to distort the news because
only someone with no intention to broadcast the truth would
refuse to use the services of an expert. The Commission
found that evidence of the broadcaster's decision was extrin
sic to the program but that it "falls far short of demonstrating
intent to distort the ... program" because the "[d]etermina
tion[ ] as to which experts to utilize is a decision solely within
the province of the broadcaster." WGPR, 10 FCC Rcd at
8148. Once again, the agency's reasoning is too loose.
Serafyn raises no question about the broadcaster's discretion
to decide whom, if anyone, to employ; it is only because the
broadcaster has such discretion that its ultimate decision may
be probative on the issue of intent. Before the Commission
may reject this evidence, therefore, it must explain why
CBS's decision to employ one expert over another--or not to
employ one at all--is not probative on the issue of its intent
to distort.
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
2. Evidence of factual inaccuracies
In describing what evidence it would accept to substantiate
Serafyn's claim of news distortion, the Commission stated
that it has "long ruled that it will not attempt to judge the
accuracy of broadcast news reports or to determine whether a
reporter should have included additional facts." WGPR, 10
FCC Rcd at 8147. In "balancing First Amendment and
public interest concerns," it explained, the Commission
will not attempt to draw inferences of distortion from the
content of a broadcast, but it will investigate where
allegations of news distortion are supported by "substan
tial extrinsic evidence" that the licensee has deliberately
distorted its news report. Mrs. J.R. Paul, 26 FCC 2d at
592. "Extrinsic evidence," that is, evidence outside the
broadcast itself, includes written or oral instructions
from station management, outtakes, or evidence of brib
ery. Hunger in America, 20 FCC 2d at 151. Our
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
the Park Avenue Synagogue. The letter is reprinted here with the permission of Rabbi Lincoln, who last year traveled