Ukrainians win a round in case against CBS (08/16/98)

Ukrainians win a round in case against CBS

by Roma Hadzewycz

PARSIPPANY, N.J. - The Ukrainian community has won a significant victory in its nearly four-year-old battle with CBS over the controversial "60 Minutes" segment called "The Ugly Face of Freedom." The U.S. Court of Appeals for the District of Columbia has found that there are serious questions about whether CBS intentionally distorted information in that news report aired on October 23, 1994, and it has ordered the Federal Communications Commission (FCC) to revisit the case.

Thus, it now appears that the network's journalistic integrity is on the line - along with its broadcast licenses.

The federal appeals court ruled on August 11 that the FCC "acted arbitrarily and capriciously" in denying a petition for a hearing on the issue of whether CBS engaged in news distortion when it broadcast the segment, which purported to uncover rampant anti-Semitism in Ukraine.

The Federal Communications Commission made its decision "without analyzing more precisely the evidence" presented, the court said as it vacated the FCC's decision and ordered that federal agency to review the matter.

Significantly, the appellants, Alexander J. Serafyn et al, showed that CBS did not have a policy against news distortion. As noted in the appeals court's decision, "Serafyn also submitted evidence that '60 Minutes' had no policy against news distortion and indeed that management considered some distortion acceptable."

Proof that the network considered some degree of distortion admissable consisted of articles published in the press in which both long-time "60 Minutes" reporter Mike Wallace and the program's executive producer Don Hewitt reflect on deception as a tool used by "60 Minutes." The court found that the FCC "failed to discuss or even to mention this evidence," and that this "failure to discuss Serafyn's allegation relating to CBS's policy on veracity is therefore troubling."

The court also referred in its decision to CBS's misrepresentation of the views of Rabbi Yaakov Bleich, chief rabbi of Kyiv and Ukraine, "when it broadcast his statements without making clear the context in which they were spoken and without including the qualifications and positive statements that accompanied them"; as well as to the broadcaster's misrepresentation to interview subjects of the segment's intent, as "for example, Cardinal [Myroslav Ivan] Lubachivsky [primate of the Ukrainian Greek-Catholic Church] charged that the producers misled him as to the nature of the show."

It referred also to the mistranslation of the word "Zhyd" (Jew) as "kike," noting: "when the word chosen by the translator is an inflammatory term such as 'kike,' the licensee could be expected to assure itself of the accuracy of the translation; if it does not do so, the commission may appropriately consider that fact in reaching a conclusion about the broadcaster's intent to distort the news."

"The inaccuracy of a broadcast can sometimes be indicative of the broadcaster's intent," the court pointed out.

(For excerpts of the court's decision, see page 3.)

Case goes back to December 1994

Mr. Serafyn, a Ukrainian community activist from Detroit, had filed a petition with the FCC on December 22, 1994, seeking to have the agency deny CBS a broadcast license for WPRG-TV (now WWJ) in the Detroit area. He argued that granting the license would not serve the public interest because CBS had distorted the news.

He explained that he had acted because "I've always been active in my community and felt it was my responsibility to defend my good name and the good name of the Ukrainian people against the inaccurate and biased CBS report."

Later, on April 26, 1995, a similar petition was filed by Oleg Nikolyszyn of Rhode Island, who attempted to block the assignment of a broadcast license to CBS for WPRI-TV in Providence. The Nikolyszyn petition was later combined with Mr. Serafyn's as both were precipitated by the same broadcast and sought similar relief.

The Ukrainian Congress Committee of America had filed a personal attack complaint and was also an appellant in this proceeding. The FCC's rejection of the personal attack complaint is being appealed by the UCCA.

Mr. Serafyn's petition was rejected by the FCC on July 17, 1995, and CBS was assigned the license for WGPR-TV. At the same time, the FCC granted CBS the broadcast license in Providence. Eleven days later Mr. Serafyn filed an appeal in U.S. federal court. The Appeals Court for the District of Columbia heard oral arguments in the case on January 23 of this year.

The FCC's 1995 decision had stated that Mr. Serafyn had "failed to present a substantial and material question of fact that the grant of the application [for the broadcast license for WGPR-TV] before us would be inconsistent with the public interest." The appeals court, however, found that "Because the commission [FCC] neither applied the correct standard, nor provided a reasoned explanation in its decision, we vacate its order and remand the matter to the agency for further proceedings." The court said the FCC had misapplied its standard for holding a hearing on Mr. Serafyn's petition because it required the appellant to "demonstrate" that the CBS had intended to distort the news, rather than applying the less stringent requirement that he "raise a substantial and material question of fact."

"Since the FCC's decision was vacated, we're now back to square one," said Arthur V. Belendiuk, a communications attorney with Smithwick and Belendiuk, P.C., who represented Mr. Serafyn.

"They [CBS] have never lost a case like this - image is everything to them - so it's got to sting," said Mr. Belendiuk. Furthermore, "the appeals court had some pretty harsh words for the FCC, they said their reasoning was muddled, that they did not take the steps required in handling this petition."

In addition, a key point of the ruling, according to Mr. Belendiuk, is that the grants of broadcast licenses to CBS are now under question.

What the Ukrainian community got out of the case was "a full voicing of our concerns that this report ['The Ugly Face of Freedom'] looks like distortion."

"The FCC now has to look at every piece of evidence and decide whether there has was distortion. If there is a series of factual errors, more and more it looks intentional, and at some point the court will say this is evidence of intent," he explained.

Asked for his reaction to this legal victory, Mr. Belendiuk said, "This is the best we could get out of the court. The court overturned the FCC's decisions and said it was improper, not based on the evidence or the facts; it said you [the FCC] have to look at this petition more seriously."

On a personal note, he said, "I feel great. For a communications lawyer, this is a home run. The odds of winning against the FCC are not very good. This was a real rarity."

"It happened because we had such a compelling set of facts," he added.

Mr. Belendiuk noted that as of last week CBS was standing by its story, saying the report was fair and accurate. "They are standing by every single lie, they are refusing to back off," he stated.

The FCC now has three options, according to Mr. Belendiuk: rework its decision, call for more evidence, or call a full-scale hearing on the matter.

Mr. Belendiuk concluded: "It's not easy to get a decision of this type. This is the first time that CBS has lost a case like this; this is the first news distortion case ever overturned on appeal - a milestone case."

Clearly, CBS's journalistic integrity is at stake. "The court's decision has put it out for all to see: CBS seems to find some level of distortion acceptable," Mr. Belendiuk underlined.

FOR THE RECORD: Excerpts of decision in Serafyn et al v. FCC

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