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
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,
