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'
      means the degree of evidence necessary to make, not a fully
      persuasive case, but rather what a reasonable factfinder
      might view as a persuasive case--the quantum, in other
      words, that would induce a trial judge to let a case go to the
      jury even though he himself would (if nothing more were
      known) find against the plaintiff").
      We are also concerned about the Commission's method of
      analyzing the various pieces of evidence that Serafyn present
      ed. In making its decision the Commission must consider
      together all the evidence it has. See Gencom, 832 F.2d at
      181; Citizens for Jazz, 775 F.2d at 395. The decision under
      review, however, suggests (though not conclusively) that the
      Commission analyzed each piece of evidence in isolation only
      to determine, not surprisingly, that no item by itself crossed
      the threshold. See WGPR, 10 FCC Rcd at 8147-48. Be
      cause we must remand this matter in any case, we need not
      determine whether the Commission in fact erred in this
      regard. We simply note that upon remand the Commission
      must consider all the evidence together before deciding
      whether it is sufficient to make a prima facie case or to raise
      a substantial and material question of fact.
      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
      B. Licensee's policy on distortion
      In addition to holding that Serafyn presented insufficient
      evidence to "demonstrate" that CBS had intentionally distort
      ed the "60 Minutes" episode about Ukraine, the Commission's
      denial of Serafyn's petition also rested upon the alternative
      ground that he had not alleged a general pattern of distortion
      extending beyond that one episode. Upon appeal Serafyn
      argues--and the Commission does not dispute--that he did
      present evidence regarding CBS's general policy about distor
      tion, namely the comments of Wallace and Hewitt quoted
      above, and that the Commission failed to discuss or even to
      mention this evidence. Both Wallace's comment ("you don't
      like to baldly lie, but I have") and Hewitt's ("it's the small
      crime vs. the greater good") are, to say the least, suggestive.
      Furthermore, both Wallace (as the most senior reporter and
      commentator for "60 Minutes") and Hewitt (as the producer
      of the series) are likely members of the "news management"
      whose decisions can fairly be attributed to the licensee.
      Hunger in America, 20 FCC 2d at 150. The Commission's
      failure to discuss Serafyn's allegation relating to CBS's policy
      on veracity is therefore troubling. Indeed, because of the
      importance the Commission placed upon the supposed lack of
      such evidence, its presence in the record casts the Commis
      simon alternative ground into doubt. The Commission must
      consider these allegations upon remand.
      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
      C. Nature of particular evidence
      The Commission gave illogical or incomplete reasons for
      finding non-probative two of the three pieces of evidence it
      determined were "extrinsic." It also failed to discuss individ
      ually certain alleged factual inaccuracies that Serafyn brought
      to its attention. Before discussing the Commission's opinion
      in detail, however, we set out a brief excerpt from the
      transcript of the broadcast.
      MORLEY SAFER, co-host: ... [T]he west [of Ukraine],
      where we go tonight, is on a binge of ethnic national
      ism. "Ukraine for the Ukrainians" can have a fright
      ening ring to those not ethnically correct, especially in
      a nation that barely acknowledges its part in Hitler's
      final solution.
      ... [J]ust about every day of the week, the sounds of
      freedom can be heard, men and women giving voice to
      their particular view of how the new independent
      Ukraine should be governed. They disagree about
      plenty, but do have two things in common: their old
      enemy, Russian communism, and their old, old enemy,
      the Jews.
      Unidentified Man # 1: (Through Translator) We Ukrain
      ians not have to rely on American [sic] and kikes.
      SAFER: Yacoov [sic] Bleich left the United States five
      years ago to take over as the chief rabbi for the
      Ukraine.
      Rabbi YACOOV [sic] BLEICH: There is, obviously, a lot
      of hatred in these people that are--that are expound
      ing these things and saying, you know--obviously if
      someone, you know, screams, "Let's drown the Rus
      sians in Jewish blood," there isn't much love lost there.
      ...
      SAFER: ... In western Ukraine at least, Hitler's dream
      had been realized. It was juden-frei, free of Jews. In
      the 50 years since, Jews have drifted in from other
      parts of the old Soviet Union, about 7,000 now in
      [Lviv]. For some Ukrainians, that's 7,000 too many.
      Rabbi BLEICH: Yeah. Well, that's not a secret.
      They're saying that they want the Jews out.
      ...
      SAFER: The western Ukraine is fertile ground for
      hatred. Independence only underlined its backward
      ness: uneducated peasants, deeply superstitious, in
      possession of this bizarre anomaly: nuclear weap
      ons.... Western Ukraine also has a long, dark history
      of blaming its poverty, its troubles, on others.
      [Unidentified] Man # 2: (Through Translator) Kikes
      have better chances here than even the original popu
      lation.
      SAFER: Than the Ukrainians.
      Man # 2: (Through Translator) Yes.
      ...
      SAFER: The church and government of Ukraine have
      tried to ease people's fears, suggesting that things are
      not as serious as they might appear; that Ukrainians,
      despite the allegations, are not genetically anti-Semitic.
      But to a Jew living here ... such statements are little
      comfort....
      Transcript, Joint Appendix at 92-96.
      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
      1. Extrinsic evidence
      We discuss first the Commission's analysis of the three
      pieces of evidence it found were "extrinsic." The Commission
      has the responsibility to determine the weight of such evi
      dence. The reasons it gives for doing so, however, must be
      reasonable and not unfounded.
      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) Outtakes of the interview with Rabbi Bleich
      The outtakes show that all of Rabbi Bleich's quoted com
      ments were made in response to questions about radical
      nationalists. Serafyn argued to the Commission that CBS
      had misrepresented Bleich's views when it broadcast his
      statements without making clear the context in which they
      were spoken and without including the qualifications and
      positive statements that accompanied them. The Commission
      found that the outtakes could indeed "properly serve as
      circumstantial evidence of intent," but went on to find that
      they did not demonstrate an intent to distort the news
      because:
      Rabbi Bleich's latter, allegedly misleading comments im
      mediately followed ... Safer's statement ... that only
      "some Ukrainians" are anti-Semitic.... Indeed, that
      the focus of the "60 Minutes" program was upon only a
      certain sector of the Ukrainian population is evident from
      at least three other express references by Safer to
      "Ukrainian ultranationalist parties," "the Social National
      ists," and other apparently isolated groups of Ukrainians.
      Thus, rather than constitute a distortion, Rabbi Bleich's
      negative comments about Ukrainians as utilized can
      rightly be viewed as limited to only a segment of the
      Ukrainian population.... Nor do we find intent to
      distort because CBS did not include in its episode posi
      tive statements about Ukraine made by Rabbi Bleich....
      [T]he determination of what to include and exclude from
      a given interview constitutes the legitimate "journalistic
      judgment" of a broadcaster, a matter beyond the Com
      mission's "proper area of concern."
      WGPR, 10 FCC Rcd at 8147.
      Serafyn argues upon appeal that the Commission erred in
      failing to find the outtakes persuasive evidence of CBS's
      intent to distort. The Commission was not unreasonable,
      however, in finding that Safer's phrase "some Ukrainians"
      and his other references to extremist groups effectively limit
      ed the scope of Bleich's comments to "a segment of the
      Ukrainian population." Id.
      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
      (b) The viewer letters
      The Commission held that the letters CBS received from
      viewers were extrinsic evidence because they were "external
      to the program." Id. at 8148. In the Commission's view,
      however, the letters were not probative because the letter
      writers were not
      "insiders," that is, employees or members of manage
      ment of CBS. Nor are they persons with direct personal
      knowledge of intent to falsify.... And letters sent by
      viewers subsequent to the broadcast [are] evidence clear
      ly incapable of going to intent, because intent is a state of
      mind accompanying an act, not following it.
      Id.
      The Commission's reasoning here is flawed in two respects.
      First, a person need not have "direct" personal knowledge of
      intent in order to have relevant information that constitutes
      circumstantial evidence about such intent. See Crawford-El
      v. Britton, 93 F.3d 813, 818 (1996) ("[T]he distinction between
      direct and circumstantial evidence has no direct correlation
      with the strength of the plaintiff's case"); CPBF v. FCC, 752
      F.2d at 679 ("Intent [may] be inferred from the subsidiary
      fact of [a broadcaster's] statements to third parties"). Sec
      ond, evidence that sheds light upon one's intent is relevant
      whether it was prepared before or after the incident under
      investigation; consider, for example, a letter written after but
      recounting words or actions before an event.
      Upon remand, therefore, the Commission may wish to
      consider separately two types of letters. First, there may be
      letters that convey direct information about the producers'
      state of mind while the show was in production. For exam
      ple, Cardinal Lubachivsky charged that the producers misled
      him as to the nature of the show. Second, there are letters
      that point out factual inaccuracies in the show. For example,
      Rabbi Lincoln, a viewer, wrote in about the mistranslation of
      "zhyd." Although letters of this type may not have indepen
      dent significance, they may yet be probative in determining
      whether an error was obvious or egregious, and if so whether
      it bespeaks an intent to distort the facts. See Part II.C.2
      below.
      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
      (c) The refusal to consult Professor Luciuk
      Serafyn asserted that CBS's refusal to consult Professor
      Luciuk demonstrated its intent to distort the news because
      only someone with no intention to broadcast the truth would
      refuse to use the services of an expert. The Commission
      found that evidence of the broadcaster's decision was extrin
      sic to the program but that it "falls far short of demonstrating
      intent to distort the ... program" because the "[d]etermina
      tion[ ] as to which experts to utilize is a decision solely within
      the province of the broadcaster." WGPR, 10 FCC Rcd at
      8148. Once again, the agency's reasoning is too loose.
      Serafyn raises no question about the broadcaster's discretion
      to decide whom, if anyone, to employ; it is only because the
      broadcaster has such discretion that its ultimate decision may
      be probative on the issue of intent. Before the Commission
      may reject this evidence, therefore, it must explain why
      CBS's decision to employ one expert over another--or not to
      employ one at all--is not probative on the issue of its intent
      to distort.
      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
      2. Evidence of factual inaccuracies
      In describing what evidence it would accept to substantiate
      Serafyn's claim of news distortion, the Commission stated
      that it has "long ruled that it will not attempt to judge the
      accuracy of broadcast news reports or to determine whether a
      reporter should have included additional facts." WGPR, 10
      FCC Rcd at 8147. In "balancing First Amendment and
      public interest concerns," it explained, the Commission
      will not attempt to draw inferences of distortion from the
      content of a broadcast, but it will investigate where
      allegations of news distortion are supported by "substan
      tial extrinsic evidence" that the licensee has deliberately
      distorted its news report. Mrs. J.R. Paul, 26 FCC 2d at
      592. "Extrinsic evidence," that is, evidence outside the
      broadcast itself, includes written or oral instructions
      from station management, outtakes, or evidence of brib
      ery. Hunger in America, 20 FCC 2d at 151. Our
      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