considered in determining whether it is extrinsic. The Com
mission responds that however one defines "extrinsic evi
dence," it does not include that which goes only to the truth
of a matter stated in the broadcast.
The Commission has not so much defined extrinsic evidence
as provided examples of the genre and what lies outside it.
While the Commission certainly may focus upon evidence
relevant to intent and exclude all else, the problem is--as the
Commission's past decisions show--that the inaccuracy of a
broadcast can sometimes be indicative of the broadcaster's
intent. See Application of WMJX, 85 FCC 2d 251 (1981)
(station denied intent to mislead public but admitted it knew
news broadcast was false; Commission implicitly concluded
from broadcaster's knowledge of falsity that it had intended
to mislead public); see also Hunger in America, 20 FCC 2d
at 147 (Commission may intervene "in the unusual case where
the [truth of the] matter can be readily and definitely re
solved").
Here, Serafyn argues that CBS got its facts so wrong that
its decision to broadcast them gives rise to the inference that
CBS intentionally distorted the news. Without deciding
whether Serafyn's arguments about individual facts are cor
rect, or even specifying what standard the Commission should
use when analyzing claims of factual inaccuracy, we must
point out that an egregious or obvious error may indeed
suggest that the station intended to mislead. This is not to
say that the Commission must investigate every allegation of
factual inaccuracy; if the broadcaster had to do historical
research or to weigh the credibility of interviewees, for
example, then any alleged inaccuracy is almost certainly
neither egregious nor obvious. Our point is only that as an
analytical matter a factual inaccuracy can, in some circum
stances, raise an inference of such intent. The Commission
therefore erred insofar as it categorically eliminated factual
inaccuracies from consideration as part of its determination of
intent.*
The chief example we have in mind is the apparent mis
translation of "zhyd" as "kike." Such a highly-charged word
is surely not used lightly. Of course, translation is a tricky
business, and it is axiomatic that one can never translate
perfectly. Nonetheless, a mistranslation that "affect[s] the
basic accuracy" of the speaker is problematic under the
Commission's standard. Galloway, 778 F.2d at 20.
Translating can be compared to editing a long interview
down to a few questions and answers. In The Selling of the
Pentagon, the Commission addressed an interviewee's allega
tion that CBS's "60 Minutes" had "so edited and rearranged
[his answers to questions posed] as to misrepresent their
content." 30 FCC 2d 150, 150 (1971). Although it decided in