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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 ... 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'