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