ГУЛаг Палестины

because it had aired a news program in which it intentionally

distorted the situation in Ukraine by claiming that most

Ukrainians are anti-Semitic. The Commission summarily

denied the petition, holding that Serafyn had not submitted

enough evidence to warrant a hearing. Because the Commis

sion neither applied the correct standard nor provided a

reasoned explanation in its decision, we vacate its order and

remand the matter to the agency for further proceedings.

Serafyn also petitioned to revoke CBS's existing licenses on

the ground that CBS made a material misrepresentation to

the Commission when it gave an affiliated station false infor

mation regarding its handling of viewer letters complaining

about the same program. The Commission denied that peti

tion on the ground that Serafyn had not alleged that CBS

intentionally misrepresented the matter to the Commission.

We uphold the Commission's decision in this matter as rea

sonable.

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

I. Background

Section 309(a) of the Communications Act provides that the

Federal Communications Commission may grant a broadcast

license only when it determines that doing so would serve the

"public interest, convenience, and necessity." 47 U.S.C.

s 309(a). Under s 309(d) of the Act any interested person

may petition the FCC to deny or to set for hearing any

application for a broadcast license or to revoke an existing

broadcaster's license. The petition must contain

specific allegations of fact sufficient to show that ... a

grant of the application would be prima facie inconsistent

with [the public interest, convenience, and necessity].

Such allegations of fact shall ... be supported by affida

vit of a person ... with personal knowledge thereof.

Id. The FCC must hold a hearing if it finds that the

application presents a "substantial and material question of

fact" or if it is otherwise unable to conclude that granting the

application would serve the public interest. See s 309(e).

As the Commission interprets it, s 309 erects a two-step

barrier to a hearing: (1) a petition must contain specific

allegations of fact that, taken as true, make out a prima facie

case that grant of the application would not serve the public

interest; and (2) the allegations, taken together with any

opposing evidence before the Commission, must still raise a

substantial and material question of fact as to whether grant

of the application would serve the public interest. See Astro

line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C.

Cir. 1988) (describing two-step test). At the first step, "[t]he

Commission's inquiry ... is much like that performed by a

trial judge considering a motion for a directed verdict: if all

the supporting facts alleged in the affidavits were true, could

a reasonable factfinder conclude that the ultimate fact in

dispute had been established." Gencom, Inc. v. FCC, 832

F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan

tial and material question is raised when "the totality of the

evidence arouses a sufficient doubt on the [question whether

grant of the application would serve the public interest] that

further inquiry is called for."

Citizens for Jazz on WRVR,

Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985).

In determining whether an allegation of news distortion

raises a question about the licensee's ability to serve the

public interest, the Commission analyzes both the substantial

ity and the materiality of the allegation. The Commission

regards an allegation as material only if the licensee itself is

said to have participated in, directed, or at least acquiesced in

a pattern of news distortion. The Commission stated its

policy about 30 years ago as follows:

[W]e do not intend to defer action on license renewals

because of the pendency of complaints of [news distor

tion]--unless the extrinsic evidence of possible deliberate

distortion or staging of the news which is brought to our

attention, involves the licensee, including its principals,

top management, or news management.... [I]f the

allegations of staging ... simply involve news employees

of the station, we will, in appropriate cases ... inquire

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