ГУЛаг Палестины - Лев Гунин

assessment of allegations of news distortion, in sum,

focuses on evidence of intent of the licensee to distort,

not on the petitioner's clam that the true facts of the

incident are different from those presented.

WGPR, 10 FCC Rcd at 8147.

Serafyn argues that the definition quoted above does not

purport to be all-inclusive, and that the Commission acted

unreasonably in holding that the evidence he submitted is not

also extrinsic. In his view the agency should inquire "wheth

er the licensee has distorted a news program" and the

Commission can make this inquiry--without becoming a na

tional arbiter of truth--by relying upon "objective" evidence

to disprove assertions made in a news show. Intervenor CBS

argues that the "objective" nature of evidence has never been

considered in determining whether it is extrinsic. The Com

mission responds that however one defines "extrinsic evi

dence," it does not include that which goes only to the truth

of a matter stated in the broadcast.

The Commission has not so much defined extrinsic evidence

as provided examples of the genre and what lies outside it.

While the Commission certainly may focus upon evidence

relevant to intent and exclude all else, the problem is--as the

Commission's past decisions show--that the inaccuracy of a

broadcast can sometimes be indicative of the broadcaster's

intent. See Application of WMJX, 85 FCC 2d 251 (1981)

(station denied intent to mislead public but admitted it knew

news broadcast was false; Commission implicitly concluded

from broadcaster's knowledge of falsity that it had intended

to mislead public); see also Hunger in America, 20 FCC 2d

at 147 (Commission may intervene "in the unusual case where

the [truth of the] matter can be readily and definitely re

solved").

Here, Serafyn argues that CBS got its facts so wrong that

its decision to broadcast them gives rise to the inference that

CBS intentionally distorted the news. Without deciding

whether Serafyn's arguments about individual facts are cor

rect, or even specifying what standard the Commission should

use when analyzing claims of factual inaccuracy, we must

point out that an egregious or obvious error may indeed

suggest that the station intended to mislead. This is not to

say that the Commission must investigate every allegation of

factual inaccuracy; if the broadcaster had to do historical

research or to weigh the credibility of interviewees, for

example, then any alleged inaccuracy is almost certainly

neither egregious nor obvious. Our point is only that as an

analytical matter a factual inaccuracy can, in some circum

stances, raise an inference of such intent. The Commission

therefore erred insofar as it categorically eliminated factual

inaccuracies from consideration as part of its determination of

intent.*

The chief example we have in mind is the apparent mis

translation of "zhyd" as "kike." Such a highly-charged word

is surely not used lightly. Of course, translation is a tricky

business, and it is axiomatic that one can never translate

perfectly. Nonetheless, a mistranslation that "affect[s] the

basic accuracy" of the speaker is problematic under the

Commission's standard. Galloway, 778 F.2d at 20.

Translating can be compared to editing a long interview

down to a few questions and answers. In The Selling of the

Pentagon, the Commission addressed an interviewee's allega

tion that CBS's "60 Minutes" had "so edited and rearranged

[his answers to questions posed] as to misrepresent their

content." 30 FCC 2d 150, 150 (1971). Although it decided in

that case that the interviewee had not been so badly misrep

resented as to require action by the Commission, the agency

allowed that it "can conceive of situations where the documen

tary evidence of deliberate distortion would be sufficiently

strong to require an inquiry--e.g., where a 'yes' answer to

one question was used to replace a 'no' answer to an entirely

different question." Id. Changing "Jew" to "kike" may be

as blatant a distortion as changing a "no" answer to a "yes,"

so greatly does it alter the sense of the speaker's statement;

if so, then the basic accuracy of the report is affected.

Further, when the word chosen by the translator is an

inflammatory term such as "kike," the licensee could be

expected to assure itself of the accuracy of the translation; if

it does not do so, the Commission may appropriately consider

that fact in reaching a conclusion about the broadcaster's

_______________________________

* Counsel for the Commission was unable to say at oral argu

ment whether the agency simply did not believe that such evidence

could ever be probative--which would be a mistake--or understood

the point we are making but chose to exclude such evidence for

prudential reasons--which would be an exercise of judgment within

its discretion if not unreasonable.

intent to distort the news. The Commission was therefore

unreasonable in dismissing this charge without an explana

tion.

We need not discuss here each of the other factual inaccu

racies raised by Serafyn. On remand the Commission should

consider whether any other error was sufficiently obvious and

egregious to contribute to an inference about CBS's intent,

and therefore to qualify as "extrinsic evidence."

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

D. Misrepresentation

In Stockholders of CBS, Inc. Serafyn argued that CBS

made a misrepresentation to the Commission by misleading

WUSA about its treatment of the viewer letters and thereby

causing the affiliate to transmit that erroneous information to

the Commission. The Commission responded that "[m]isrep

resentation is composed of two elements: a material false

statement made to the Commission and an intent to make

such a statement." 11 FCC Rcd at 3753. The Commission

then held Serafyn had neither alleged that CBS had made its

representation directly to the Commission nor "provided

[any] evidence that CBS [had] intended to convey false infor

mation to the Commission through its affiliate." Id.

In reviewing the Commission's conclusion that CBS did not

make a misrepresentation we ask only whether the Commis

sion was "cognizant of the issue raised and, upon the record,

reasonably resolve[d] that issue." WEBR, Inc. v. FCC, 420

F.2d 158, 164 (D.C. Cir. 1969). In this case the answer to

both questions is yes.

There is no dispute that CBS did not make its false

statement directly to the Commission. Serafyn argues, how

ever, that directness has never been required, that "CBS was

aware of Appellants' complaint against WUSA-TV," and that

CBS's misrepresentations to WUSA therefore should "be

taken as seriously as if made directly to the Commission."

The Commission responds first that there is no evidence that

CBS intended to make any misrepresentation--"the most

that was shown in the record below was that one official of

CBS was careless or negligent in providing information to

[WUSA]"--and second that it will sanction only a misrepre

sentation made directly to the Commission or intended to be

passed on to the Commission.

The Commission reasonably found Serafyn had not alleged

that CBS intended to make any representation either directly

or indirectly "to the Commission." Assuming for the sake of

the argument that CBS could be sanctioned for making a

misrepresentation through WUSA, we agree with the Com

mission that Serafyn did not substantiate his claim that CBS

knew about the complaint pending before the agency when it

made the two misrepresentations to WUSA. Serafyn's only

evidence is that the UACN had sent CBS's counsel a copy of

the complaint, but that was after WUSA had received the

misinformation and relayed it to the Commission. Absent

any allegation that CBS knew that the first two versions of

the incident it provided to WUSA would make their way to

the Commission, the agency reasonably decided not to sanc

tion CBS for misrepresentation.

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

III. Conclusion

The Commission acted arbitrarily and capriciously in deny

ing Serafyn's petition without analyzing more precisely the

evidence he presented. On the other hand, the Commission

reasonably held that CBS did not make a misrepresentation

to the Commission. We therefore vacate and remand the

Commission's decision in WGPR and affirm its decision in

Stockholders of CBS Inc.

So ordered.

HOME DISINFORMATION 60 MINUTES 738 hits since 12Aug98

Jeannine Aversa Associated Press 12Aug98 FCC must review 60 Minutes Segment

Serafyn had asked the FCC to turn down CBS' license request for

WGPR-TV in Detroit - now WWJ-TV - arguing that the network was not

fit to receive the license because it had aired a distorted news program.

The Associated Press article below provides a brief introduction to the

full United States Court of Appeals decision which is available on the

Ukrainian Archive. The original of the Associated Press article was

provided by Yahoo, more specifically at Jeannine Aversa.

Wednesday August 12 2:58 AM EDT

FCC To Look at '60 Minutes' Segment

JEANNINE AVERSA Associated Press Writer

WASHINGTON (AP) - Responding to a federal appeals court decision,

government TV regulators will take a new look at whether CBS' "60

Minutes" intentionally distorted the news in a 1994 segment on the

Ukraine.

A Federal Communications Commission ruling against CBS on the matter

could call into question the network's fitness to hold all or some of its

broadcast licenses, said attorneys for the agency and for Alexander

Serafyn, who led the court case against the "60 Minutes" report.

But CBS attorneys, speaking on condition of anonymity, disagreed. They

said only WWJ-TV in Detroit - the station involved in the present

challenge - could be affected.

On Tuesday the U.S. Court of Appeals for the District of Columbia

concluded that the FCC didn't sufficiently explain why it decided not to

hold a hearing on the allegations involving the "60 Minutes" segment.

Given the court's ruling, the commission will re-examine the entire

record, including Serafyn's allegations that the segment was

intentionally distorted, an FCC attorney said.

Serafyn had asked the FCC to turn down CBS' license request for WGPR-TV

in Detroit - now WWJ-TV - arguing that the network was not fit to receive

the license because it had aired a distorted news program.

Serafyn, an American of Ukrainian ancestry who is retired and living in

Detroit, had submitted evidence to the FCC involving his allegation about

the broadcast, entitled, "The Ugly Face of Freedom." The FCC denied

Serafyn's petition for a hearing, saying it would not investigate an

allegation of news distortion without "substantial extrinsic evidence."

The court said the FCC misapplied its standard for holding a hearing

because it required Serafyn to demonstrate that CBS intended to distort

the news rather than merely requiring that he "raise a substantial and

material question of fact" - a less demanding test.

CBS attorneys asserted there was no evidence the network intentionally

distorted the segment. In addition, they said the FCC has never revoked

a broadcast license on such grounds.

The broadcast angered some viewers who believed that parts had been

designed to give the impression that all Ukrainians harbor a strongly

negative attitude toward Jews, the court said.

"This is basically an effort on the part of the Ukrainian community,"

said Arthur Belendiuk, Serafyn's attorney. "The case is not so much

about Mr. Serafyn as it is about a community that felt horribly maligned

by what was said."

After the FCC revisits the case, the commission has several options: It

could issue a new order that basically upholds its 1995 order but

provides more details on how the decision was reached; it could order a

hearing on the matter; or it could ask interested parties to comment and

then it could issue a new order, the FCC attorney said.

Whatever the commission ultimately decides is likely to be appealed by

the losing party, Belendiuk and other attorneys said.

HOME DISINFORMATION 60 MINUTES 1156 hits since 12May98

Rabbi David H. Lincoln Ukrainian Weekly 30October94 A New York rabbi's response

Rabbi David H. Lincoln of the Park Avenue Synagogue in New York was among the first to object to the 60 Minutes

broadcast, The Ugly Face of Freedom of 23Oct94. Rabbi Lincoln has had a longstanding interest in Ukraine, inherited

from his father, as is explained in the discussion of The Ukrainian Question in 1935.

Everything below is from the Ukrainian Weekly.

A New York rabbi's response

Following is the text of a letter sent on October 25 to the CBS program "60 Minutes" by Rabbi David H. Lincoln of