FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 1998 Decided August 11, 1998
No. 95-1385
Alexander J. Serafyn, et al.,
Appellants
v.
Federal Communications Commission,
Appellee
CBS Inc., et al.,
Intervenors
Consolidated with
Nos. 95-1440, 95-1608
Appeal of Orders of the
Federal Communications Commission
Arthur V. Belendiuk argued the cause and filed the briefs
for appellants. Shaun A. Maher and Donna T. Pochoday
entered appearances.
C. Grey Pash, Jr., Counsel, Federal Communications Com
mission, argued the cause for appellee, with whom Christo
pher J. Wright, General Counsel, and Daniel M. Armstrong,
Associate General Counsel, were on the brief.
Richard E. Wiley, Lawrence W. Secrest, III, James R.
Bayes, and Daniel E. Troy were on the brief for intervenors
CBS Inc. and Westinghouse Electric Corporation. John
Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss
entered appearances.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Alexander Serafyn petitioned the
Federal Communications Commission to deny or to set for
hearing the application of CBS for a new station license.
Serafyn objected that CBS was not fit to receive a license
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
