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)).