Страница 232 из 340
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