New Testament, and when it came to the torturing of Jesus Christ, his
      nurse or housemaid would exclaim: "the hideous Jews, they surely killed
      Christ by torture!" (p. 23).
      The pogroms of the years 1880 in Kishinev and Homel, came as the result
      of false rumors and of promises of exemption from punishment for
      plundering during three days. This time, however, the participation of
      Jews in the Bolshevist movement was no more a rumor, but a fact which it
      was very easy to exaggerate. On the other side, the impunity for
      plundering lasted this time not only three days, but indefinitely on
      account of the absence of any authority that could stop the plundering.
      For, what authority could exist during the panic of retreat before
      Trotsky's army? ... Under such conditions a favorable atmosphere was
      created for the rapacious instincts of the demoralized segments of the
      army, as well as for the development of the ideological barbarity of
      Semesenko and for the provocateurs from the Russian Black-Hundred camp,
      who were pogrommongers by conviction and wished at the same time to
      discredit the Ukrainian movement by branding it as being guilty of
      pogroms.
      All this, of course, is not justification, but only one of many
      explanations of the origin of pogroms during the period of the
      Directorate.
      Quite a different picture is displayed by the comparison of this period
      of pogroms with the pogroms by Denikin's army. Here is no question of
      retreat and of chaos that is connected with retreat. On the contrary,
      the more successful the advance, the more organized and stronger is the
      propaganda from above and the more according to plan the pogroms are
      developed. If the beginning of the demoralization of the Ukrainian army
      was at its tail, by Denikin's army the poison of demoralization came from
      the head. As we have seen already, the Denikin officers openly declared
      that they were fighting not against the Bolsheviks, but against the Jews.
      To be sure, there were also in Denikin's army many persons of a purely
      rapacious type. But the most horrible thing was the deeply rooted
      anti-Semitism of the chiefs that surrounded Denikin, and their sadistic
      hate of Jews. I, personally, am not inclined to assume that Denikin
      himself wanted pogroms. Even to Denikin, in spite of his anti-Semitism,
      it was impossible not to see the fatal results of pogroms for his army.
      But he, too, was powerless on the question of pogroms, nor had he any
      inclination to come forward in defense of the Jews.
      The second characteristic feature which distinguishes the very course of
      the pogroms in one area from the other consists in the fact that in
      Petlura's army, we surely find cases when some individual persons or
      groups succeeded in preventing or stopping pogroms. Two such cases are
      cited by Temkin in his report, the other two cases are given in the
      report of the Relief Committee for the Victims of Pogroms. Red Army
      soldiers arranged an anti-Jewish pogrom in the city of Korosten in March
      13, 1919. When the soldiers of Petlura's army which was at that time
      advancing, reached the city, they stopped the pogroms. In Bila Tserkva
      the Ukrainian army - having expelled in August the Denikin troops of Gen.
      Shkuro and then the Red troops, who one after another plundered and
      massacred the population - behaved in full dignity until in turn they
      were substituted by Zeleny's bands that immediately arranged a pogrom.
      Later the unfortunate town was attacked by Sokolov's bands, after which
      the Ukrainian troops again succeeded in restoring order for a short time.
      Lubny escaped a pogrom thanks to the fact that a hundred men were found
      in the Ukrainian ranks, who with their arms stood in the way of the
      pogrommakers. Fourteen of the defenders fell in the fight but the town
      was saved. While reading the story about Lubny in this part of the
      report, I recalled the year 1905 when a City Committee of Defense was
      organized in Lubny, which also saved the city from a pogrom.
      Such facts were unknown in Denikin's army. Here the "guilty" of such
      patronage and defense of Jews were punished with dismissal from their
      posts.
      The third feature, a very disadvantageous one for Denikin's army and
      government, appears as a result of the comparison of the declarations by
      the Ukrainian government on the Jewish question, of laws concerning
      personal-national autonomy and Jewish Communities on the one hand, with
      the clauses restricting the number of Jews in educational institutions as
      well as in civil and military services in Denikin's empire - on the other
      hand. Here, on the part of the Ukrainian government, an effort to draw
      on representatives of Jews in all levels of government posts, and over
      there - in Denikin's camp - removal of Jewish officers from the army, and
      of Jewish officials from district and city offices. And this - in spite
      of the fact that so many Jews joined voluntarily at the very beginning
      Koltchak's and Denikin's armies. And how many Jews having been brought
      up with a Russian culture died for Russia that had been always a
      stepmother to them? On the other hand, how small a group of us, Jews,
      joined the Ukrainian movement at the beginning of the second revolution!
      Of course, there was nothing strange in it. Wilson's points had been
      declared but recently, and the realization of the right of
      self-determination by the Ukrainian people wa such a new and fresh event
      that not only the average Jewish citizen, but also the intellectuals,
      with few exceptions, did not digest or understand all that had happened.
      But the fact remains, Jews were represented by a very considerable number
      in the ranks both of the Bolsheviks and, at the beginning, of Denikin's
      army. The Ukrainian movement was joined only by a few Jews.
      The representatives of Russian and Jewish capital and heavy industry were
      marching hand-in-hand with the Volunteer Armies of Denikin, Yudenitch,
      and Koltchak. And even after all those pogroms committed by Denikin's
      army, the Jewish capitalists and industrialists followed the call of his
      successor Wrangel, and joined him
      Finally, one more feature out of many others that distinguish the
      Ukrainian Movement from that of Denikin: An anti-Jewish pogrom was openly
      carried on in Kiev in the presence of Denikin's generals, Drahomirov and
      Bredov. Never did happen anything like that, wherever the Directorate
      set up headquarters, neither in Kiev, nor in Vynnytsia, nor in
      Kamanets-Pololsk. The Kiev population knows from bitter experience the
      difference between those two regimes.
      Nevertheless, in spite of all these quite essential differences, here
      abroad the pogroms of the followers of Petlura are much more known than
      those perpetrated by Denikin's army, although the latter numerically and
      qualitatively surpassed considerably the former. This is to be explained
      not only by the propaganda of the Russian groups which have old
      connections and larger means in Europe and America, but also by the
      incontestable fact that the first series of pogroms attracted the
      greatest attention and brought forth the strongest expression of
      dissatisfaction on the part of the public.
      (In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations
      during the Years of the Revolution (1917-1921): Collection of Documents
      and Testimonies by Prominent Jewish Political Workers, The Ukrainian
      Information Bureau, Munich, 1956, pp. 48-51)
      HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98
      Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission
      Serafyn also submitted evidence that "60 Minutes" had no policy against
      news distortion and indeed that management considered some distortion
      acceptable. For example, according to the Washington Post, Mike
      Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You
      don't like to baldly lie, but I have."
      An introduction to the United States Court of Appeals decision below can
      be found in an Associated Press article by Jeannine Aversa which is on
      the Ukrainian Archive.
      The original of the Court of Appeals decision below can be found on the
      United States Court of Appeals web site whose home page is at
      www.cadc.uscourts.gov and where the decision can either be accessed by
      following links from the Court of Appeals home page, or else accessed
      directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt.
      As page numbering was not indicated in the Court of Appeals web site
      version, it could not be inserted below, although page boundaries could
      be inferred and are indicated below by means of horizontal lines.
      The version below inserts clickable yellow CONTENTS boxes to remedy the
      general problem of a reader's losing track of where he is within a large
      document when reading it on screen, and to facilitate moving effortlessly
      from one part of the document to another.
      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
      United States Court of Appeals
      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
      said to have participated in, directed, or at least acquiesced in
      a pattern of news distortion. The Commission stated its
      policy about 30 years ago as follows:
      [W]e do not intend to defer action on license renewals
      because of the pendency of complaints of [news distor
      tion]--unless the extrinsic evidence of possible deliberate
      distortion or staging of the news which is brought to our
      attention, involves the licensee, including its principals,
      top management, or news management.... [I]f the
      allegations of staging ... simply involve news employees
      of the station, we will, in appropriate cases ... inquire
      into the matter, but unless our investigation reveals
      involvement of the licensee or its management there will
      be no hazard to the station's licensed status....
      .... Rather, the matter should be referred to the
      licensee for its own investigation and appropriate han
      dling.
      .... Rigging or slanting the news is a most heinous
      act against the public interest .... [b]ut in this democra
      cy, no Government agency can authenticate the news, or
      should try to do so.
      Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
      footnote the Commission added:
      [W]e stress that the licensee must have a policy of
      requiring honesty of its news staff and must take reason
      able precautions to see that news is fairly handled.
      An allegation of distortion is "substantial" when it meets
      two conditions, as we summarized in an earlier case.
      [F]irst, ... the distortion ... [must] be deliberately
      intended to slant or mislead. It is not enough to dispute
      the accuracy of a news report ... or to question the
      legitimate editorial decisions of the broadcaster....
      The allegation of deliberate distortion must be supported
      by "extrinsic evidence," that is, evidence other than the
      broadcast itself, such as written or oral instructions from
      station management, outtakes, or evidence of bribery.
      Second, the distortion must involve a significant event
      and not merely a minor or incidental aspect of the news
      report.... [T]he Commission tolerates ... practices
      [such as staging and distortion] unless they "affect[ ] the
      basic accuracy of the events reported."
      Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
      Commission's holding that CBS's "60 Minutes" had not dis
      torted news by staging insurance investigator's interrogation
      of fraudulent claimant; because she "actually did participate
      in the fraud and did confess, even if not in precisely the
      manner portrayed, the 'basic accuracy of the events reported'
      ... has not been distorted").
      As we noted in Galloway, the Commission's policy makes
      its investigation of an allegation of news distortion "extremely
      limited [in] scope. But within the constraints of the Constitu
      tion, Congress and the Commission may set the scope of
      broadcast regulation; it is not the role of this court to
      question the wisdom of their policy choices." Id. at 21.
      In 1994 CBS produced and broadcast a controversial seg
      ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
      about modern Ukraine. The broadcast angered some viewers
      who believed that many elements of the program had been
      designed to give the impression that all Ukrainians harbor a
      strongly negative attitude toward Jews. For example, inter
      viewer Morley Safer suggested that Ukrainians were "genet
      ically anti-Semitic" and "uneducated peasants, deeply super
      stitious." Also, soundbites from an interview with the Chief
      Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
      that he believes all Ukrainians are anti-Semites who want all
      Jews to leave Ukraine. In addition, CBS overlaid the sound
      of marching boots on a film clip of Ukrainian Boy Scouts
      walking to church and introduced it in such a way as to give
      viewers the impression that they were seeing "a neo-Nazi,
      Hitler Youth-like movement." The narrator also stated that
      the Ukrainian Galicia Division had helped in the roundup and
      execution of Jews from Lviv in 1941, though this Division was
      not in fact even formed until 1943 and therefore could not
      possibly have participated in the deed. Perhaps most egre
      giously, when Ukrainian speakers used the term "zhyd,"
      which means simply "Jew," they were translated as having
      said "kike," which is a derogatory term.
      After the broadcast interviewees and members of the
      Ukrainian-American community deluged CBS with letters.
      In his letter Rabbi Bleich stated "unequivocally" that his
      "words were quoted out of the context that they were said"
      and that "the CBS broadcast was unbalanced" and "did not
      convey the true state of affairs in Ukraine." Cardinal Luba
      chivsky, the head of the Ukrainian Greek Catholic Church,
      who had also been interviewed, both sent a letter to CBS and
      released a statement to the press. In the latter he stated,
      "[M]y office was misled as to the actual thrust of the report.
      Mr. Fager [the producer] presented the piece as one about
      'post-communist Ukraine.' ... I can only deduce that the
      goal of the report was to present all Western Ukrainians as
      rabid anti-semites." Many other viewers pointed out histori
      cal inaccuracies and offensive statements or characterizations
      in the show.
      Notwithstanding the requirement in 47 C.F.R. s 73.1202
      that a licensee keep and make available all letters received
      from viewers, WUSA-TV in Washington, D.C., forwarded the
      letters it received to CBS's main office in New York. When a
      representative of the Ukrainian-American Community Net
      work asked to see the letters, WUSA contacted CBS in New
      York and was told by Raymond Faiola that the letters were
      in storage and that a response had been sent to each viewer
      who wrote in; Faiola attached what he said was a copy of that
      response. After failing to locate any viewer who had received
      such a reply, the UACN representative questioned this story.
      A CBS attorney in turn questioned Faiola, who then ex
      plained that the response letter had been sent to only about a
      quarter of the viewers who had written in about the program.
      When an intensive advertising campaign, however, failed to
      turn up even one person in the Ukrainian-American commu
      nity who had received a response, the UACN representative
      complained to the Commission and sent a copy of the com
      plaint to counsel for CBS. When CBS's counsel asked Faiola
      for an affidavit confirming his story, Faiola admitted that the
      letter he had sent WUSA had been merely a draft and that he
      had forgotten to have any actual response letters sent out.
      Nos. 95-1385, 1440. Alexander Serafyn, an American of
      Ukrainian ancestry, petitioned the Commission to deny or to
      set for hearing the application of CBS to be assigned the
      licenses of two stations, arguing that the "60 Minutes" broad
      cast showed that CBS had distorted the news and therefore
      failed to serve the public interest. In support of his petition,
      Serafyn submitted the broadcast itself, outtakes of interviews
      with Rabbi Bleich, viewer letters, a dictionary supporting his
      claim about the mistranslation of "zhyd," historical informa
      tion about the Galicia Division, information showing that CBS
      had rebuffed the offer of a professor of Ukrainian history to
      help CBS understand the subject, and seven other items of
      evidence.
      Serafyn also submitted evidence that "60 Minutes" had no
      policy against news distortion and indeed that management
      considered some distortion acceptable. For example, accord
      ing to the Washington Post, Mike Wallace, a longtime report
      er for "60 Minutes," told an interviewer: "You don't like to
      baldly lie, but I have." Colman McCarthy, The TV Whisper,
      Wash. Post, Jan. 7, 1995, at A21. Don Hewitt, the executive
      producer of "60 Minutes," is quoted in the same article as
      saying that some deception is permissible because "[i]t's the
      small crime vs. the greater good," and elsewhere as saying
      that "I wouldn't make Hitler look bad on the air if I could get
      a good story." Richard Jerome, Don Hewitt, People, Apr. 24,
      1995, at 85, 90.
      CBS, taking the position that any official investigation into
      its news broadcasting "offends the protections of a free
      press," did not submit any evidence. Nonetheless, the Com
      mission denied the petition without a hearing. See WGPR,
      Inc., 10 FCC Rcd 8140, 8146-48 (1995). Explaining that it
      would not investigate an allegation of news distortion without
      "substantial extrinsic evidence" thereof, the Commission de
      termined that only three of Serafyn's items of evidence were
      extrinsic to the broadcast itself: the viewer letters, the
      outtakes of interviews with Rabbi Bleich, and CBS's refusal
      to use the services of the history professor. All the other
      evidence, according to the Commission, either concerned "dis
      putes as to the truth of the event ... or embellishments
      concerning peripheral aspects of news reports or attempts at
      window dressing which concerned the manner of presenting
      the news." Id. at 8147 (emphasis in original, citations omit
      ted). The Commission then held that the three items it
      regarded as extrinsic evidence "in total ... do[ ] not satisfy
      the standard for demonstrating intent to distort." Id. at
      8148. Serafyn had therefore failed to show that CBS had not
      met its public interest obligations and had "failed to present a
      substantial and material issue of fact that the grant of the
      application ... would be inconsistent with the public inter
      est." Id. at 8149.
      Serafyn and Oleg Nikolyszyn, another viewer who com
      plained to the Commission and whose appeal we consolidated
      with Serafyn's, argue that the Commission violated its own
      standard in concluding that no hearing was necessary.
      Serafyn implicitly objects also to the standard itself insofar as
      he argues that it "imposed an impossible burden" upon him
      by requiring that he present extrinsic evidence sufficient to
      prove his claim without the benefit of discovery, and that the
      "objective" evidence he offered should be deemed adequate to
      warrant a hearing upon the public interest question.
      No. 95-1608. Serafyn and the Ukrainian Congress Com
      mittee of America also petitioned the Commission to revoke
      or set for a revocation hearing all of the broadcast licenses
      owned by CBS, arguing that CBS had made misrepresenta
      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