FCC rejects three petitions brought by Ukrainian Americans against CBS (08/06/95)

FCC rejects three petitions brought by Ukrainian Americans against CBS

by Roman Woronowycz

JERSEY CITY, N.J. - The FCC has rejected all three of the petitions filed by various Ukrainian Americans against CBS for its airing of "The Ugly Face of Freedom" on its "60 Minutes" program. The latest to hear the agency's unsympathetic voice is Alexander Serafyn of Troy, Mich., whose petition to block CBS a transfer of license in the Detroit viewing area was denied on July 17.

The final decision regarding another petition, filed by Oleh Nikolyszyn of Providence, R.I., against CBS to block assignment of a license from WPRI-TV in Providence to CBS, hinged on the outcome of the Detroit petition and also was denied. CBS had been given conditional assignment of the license while the FCC deliberated the Serafyn petition.

The two petitions had accused CBS primarily of news distortion and failure to meet public interest obligations by not serving the needs of the Ukrainian American community.

The FCC decision said it has long ruled that "it will not attempt to judge the accuracy of broadcast news reports to determine whether a reporter should have included additional facts." It also emphasized that the petitioners, Messrs. Nikolyszyn and Serafyn, had to show that the news distortion they allude to arose from the actions of CBS in preparing the segment and not from the contents of the broadcast itself. It ruled that "Serafyn's broad-based speculation derives from a single episode of a single CBS program, one which... Serafyn has failed to demonstrate rises to the level of new distortion."

On another point, the FCC stated, "Even if the '60 Minutes' episode represented a 'hateful attack,' as characterized by Mr. Serafyn, such an isolated instance does not, and indeed cannot, rise to the level of 'a pattern of prejudice,' the burden required..."

Arthur Belendiuk, Mr. Serafyn's attorney, said he felt the regulatory body had wrongly decided that the issues were not sufficiently serious for a hearing, although he was not surprised by the FCC decision. "Again (FCC) asked the wrong question. The question is whether we provided enough evidence to set the matter for hearing and not whether we proved our case," said Mr. Belendiuk.

He said the FCC has set an impossibly stringent standard of proof of news distortion. "The only way we could've met the standard is if CBS was to admit guilt."

Another attorney, Bohdanna Pochoday, who represented Mr. Nikolyszyn in the second petition, explained that dealing with the FCC is difficult also because legal procedures are different than in the civil or criminal judicial system. She said that to gather the evidence required to prove news distortion she needed "discovery," a legal procedure that allows for the gathering of facts, but not allowed in FCC proceedings until a petition is set for a hearing. "Of course I am disappointed," she said, "because their decision states that we did not provide extrinsic evidence. It was David fighting Goliath."

Mr. Belendiuk said that, without an open hearing, how the news show segment was put together would never be known. "CBS has consistently refused to supply any evidence, any documents that would show it was a fair and accurate broadcast. We would like them to show us the experts that said 'kike' is a fair and accurate translation of 'zhyd'. They haven't put out a single word of explanation," said Mr. Belendiuk.

"If CBS told the truth, we should give them a chance to show their evidence," he went on. "If it is a fair and accurate statement we will back off."

Attorneys for the two petitioners said they will proceed with separate appeals to the United States Circuit Court of Appeals in Washington. Mr. Belendiuk filed an appeal on behalf of Mr. Serafyn on July 28. Ms. Pochoday said she would file soon for Mr. Nikolyszyn.

The third party with grievances against CBS because of the "60 Minutes" piece is the Ukrainian Congress Committee of America, which had filed a personal attack complaint with the FCC on November 10, 1994, that was subsequently denied, as was an application for review filed five months later and rejected on July 10.

The FCC stated in its original decision that "persons of Ukrainian ancestry" was too broad a group to be sufficiently identifiable as a legal person. In rejecting the appeal, the FCC said it agreed with the original decision and agreed that the CBS broadcast in question referred to persons residing in Ukraine and not to Ukrainian Americans.

The UCCA is now preparing a petition for reconsideration of the FCC rulings, but Askold Lozynskyj, president of the organization, is not very optimistic anything will change. "I'm not expecting to win it in the FCC, because they have pretty much made up their minds," he said. "We have issues we want to raise which we do not want precluded at the Circuit Court appeal level." He said that the UCCA is also preparing to file an appeal with the Federal Circuit Court of Appeals.

The UCCA is requesting that individuals who were "negatively impacted" by the airing of "The Ugly Face of Freedom" contact the Ukrainian National Information Service. Mr. Lozynskyj said, "We have to show that Ukrainian Americans were not only emotionally affected by watching the program but that we were outwardly affected. One example he gave was being called anti-Semitic by individuals at some time after the program appeared.

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In related matters, Rep. Sander Levin (D-Mich.) joined his Michigan Democratic counterpart Rep. David Bonior, calling on the FCC to hold public hearings in the matter of the CBS "The Ugly Face of Freedom" broadcast. In a July 13 letter to FCC Chairman Reed E. Hundt, Rep. Levin said he was "so outraged," he spoke on the House floor to express his protest. He called the CBS segment "highly irresponsible broadcasting."

Also, the IBM Corp. has joined AT&T in announcing that it will not advertise on a "60 Minutes" broadcast that would rerun "The Ugly Face of Freedom." Marianne Caponneto responded on July 11 to several Ukrainian Americans who had written in protest to IBM advertising on the program, stating "that we will not be airing during a repeat of this program."

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