Лев Гунин - ГУЛаг Палестины

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