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