Добавить в цитаты Настройки чтения

Страница 231 из 340

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 ma

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 ... ca

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