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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

manner portrayed, the 'basic accuracy of the events reported'

... 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

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