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into the matter, but unless our investigation reveals
involvement of the licensee or its management there will
be no hazard to the station's licensed status....
.... Rather, the matter should be referred to the
licensee for its own investigation and appropriate han
dling.
.... Rigging or slanting the news is a most heinous
act against the public interest .... [b]ut in this democra
cy, no Government agency can authenticate the news, or
should try to do so.
Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
footnote the Commission added:
[W]e stress that the licensee must have a policy of
requiring honesty of its news staff and must take reason
able precautions to see that news is fairly handled.
An allegation of distortion is "substantial" when it meets
two conditions, as we summarized in an earlier case.
[F]irst, ... the distortion ... [must] be deliberately
intended to slant or mislead. It is not enough to dispute
the accuracy of a news report ... or to question the
legitimate editorial decisions of the broadcaster....
The allegation of deliberate distortion must be supported
by "extrinsic evidence," that is, evidence other than the
broadcast itself, such as written or oral instructions from
station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event
and not merely a minor or incidental aspect of the news
report.... [T]he Commission tolerates ... practices
[such as staging and distortion] unless they "affect[ ] the
basic accuracy of the events reported."
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
Commission's holding that CBS's "60 Minutes" had not dis
torted news by staging insurance investigator's interrogation
of fraudulent claimant; because she "actually did participate
in the fraud and did confess, even if not in precisely the
ma
... has not been distorted").
As we noted in Galloway, the Commission's policy makes
its investigation of an allegation of news distortion "extremely
limited [in] scope. But within the constraints of the Constitu
tion, Congress and the Commission may set the scope of
broadcast regulation; it is not the role of this court to
question the wisdom of their policy choices." Id. at 21.
In 1994 CBS produced and broadcast a controversial seg
ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
about modern Ukraine. The broadcast angered some viewers
who believed that many elements of the program had been
designed to give the impression that all Ukrainians harbor a
strongly negative attitude toward Jews. For example, inter
viewer Morley Safer suggested that Ukrainians were "genet
ically anti-Semitic" and "uneducated peasants, deeply super
stitious." Also, soundbites from an interview with the Chief
Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
that he believes all Ukrainians are anti-Semites who want all
Jews to leave Ukraine. In addition, CBS overlaid the sound
of marching boots on a film clip of Ukrainian Boy Scouts
walking to church and introduced it in such a way as to give
viewers the impression that they were seeing "a neo-Nazi,
Hitler Youth-like movement." The narrator also stated that
the Ukrainian Galicia Division had helped in the roundup and
execution of Jews from Lviv in 1941, though this Division was
not in fact even formed until 1943 and therefore could not
possibly have participated in the deed. Perhaps most egre
giously, when Ukrainian speakers used the term "zhyd,"
which means simply "Jew," they were translated as having
said "kike," which is a derogatory term.
After the broadcast interviewees and members of the
Ukrainian-American community deluged CBS with letters.
In his letter Rabbi Bleich stated "unequivocally" that his
"words were quoted out of the context that they were said"
and that "the CBS broadcast was unbalanced" and "did not
convey the true state of affairs in Ukraine." Cardinal Luba
chivsky, the head of the Ukrainian Greek Catholic Church,
who had also been interviewed, both sent a letter to CBS and
released a statement to the press. In the latter he stated,
"[M]y office was misled as to the actual thrust of the report.
Mr. Fager [the producer] presented the piece as one about
'post-communist Ukraine.' ... I can only deduce that the
goal of the report was to present all Western Ukrainians as
rabid anti-semites." Many other viewers pointed out histori
cal inaccuracies and offensive statements or characterizations
in the show.
Notwithstanding the requirement in 47 C.F.R. s 73.1202
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