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