Текст книги "ГУЛаг Палестины"
Автор книги: Лев Гунин
сообщить о нарушении
Текущая страница: 61 (всего у книги 88 страниц)
To be sure, there were also in Denikin's army many persons of a purely
rapacious type. But the most horrible thing was the deeply rooted
anti-Semitism of the chiefs that surrounded Denikin, and their sadistic
hate of Jews. I, personally, am not inclined to assume that Denikin
himself wanted pogroms. Even to Denikin, in spite of his anti-Semitism,
it was impossible not to see the fatal results of pogroms for his army.
But he, too, was powerless on the question of pogroms, nor had he any
inclination to come forward in defense of the Jews.
The second characteristic feature which distinguishes the very course of
the pogroms in one area from the other consists in the fact that in
Petlura's army, we surely find cases when some individual persons or
groups succeeded in preventing or stopping pogroms. Two such cases are
cited by Temkin in his report, the other two cases are given in the
report of the Relief Committee for the Victims of Pogroms. Red Army
soldiers arranged an anti-Jewish pogrom in the city of Korosten in March
13, 1919. When the soldiers of Petlura's army which was at that time
advancing, reached the city, they stopped the pogroms. In Bila Tserkva
the Ukrainian army – having expelled in August the Denikin troops of Gen.
Shkuro and then the Red troops, who one after another plundered and
massacred the population – behaved in full dignity until in turn they
were substituted by Zeleny's bands that immediately arranged a pogrom.
Later the unfortunate town was attacked by Sokolov's bands, after which
the Ukrainian troops again succeeded in restoring order for a short time.
Lubny escaped a pogrom thanks to the fact that a hundred men were found
in the Ukrainian ranks, who with their arms stood in the way of the
pogrommakers. Fourteen of the defenders fell in the fight but the town
was saved. While reading the story about Lubny in this part of the
report, I recalled the year 1905 when a City Committee of Defense was
organized in Lubny, which also saved the city from a pogrom.
Such facts were unknown in Denikin's army. Here the "guilty" of such
patronage and defense of Jews were punished with dismissal from their
posts.
The third feature, a very disadvantageous one for Denikin's army and
government, appears as a result of the comparison of the declarations by
the Ukrainian government on the Jewish question, of laws concerning
personal-national autonomy and Jewish Communities on the one hand, with
the clauses restricting the number of Jews in educational institutions as
well as in civil and military services in Denikin's empire – on the other
hand. Here, on the part of the Ukrainian government, an effort to draw
on representatives of Jews in all levels of government posts, and over
there – in Denikin's camp – removal of Jewish officers from the army, and
of Jewish officials from district and city offices. And this – in spite
of the fact that so many Jews joined voluntarily at the very beginning
Koltchak's and Denikin's armies. And how many Jews having been brought
up with a Russian culture died for Russia that had been always a
stepmother to them? On the other hand, how small a group of us, Jews,
joined the Ukrainian movement at the beginning of the second revolution!
Of course, there was nothing strange in it. Wilson's points had been
declared but recently, and the realization of the right of
self-determination by the Ukrainian people wa such a new and fresh event
that not only the average Jewish citizen, but also the intellectuals,
with few exceptions, did not digest or understand all that had happened.
But the fact remains, Jews were represented by a very considerable number
in the ranks both of the Bolsheviks and, at the beginning, of Denikin's
army. The Ukrainian movement was joined only by a few Jews.
The representatives of Russian and Jewish capital and heavy industry were
marching hand-in-hand with the Volunteer Armies of Denikin, Yudenitch,
and Koltchak. And even after all those pogroms committed by Denikin's
army, the Jewish capitalists and industrialists followed the call of his
successor Wrangel, and joined him
Finally, one more feature out of many others that distinguish the
Ukrainian Movement from that of Denikin: An anti-Jewish pogrom was openly
carried on in Kiev in the presence of Denikin's generals, Drahomirov and
Bredov. Never did happen anything like that, wherever the Directorate
set up headquarters, neither in Kiev, nor in Vynnytsia, nor in
Kamanets-Pololsk. The Kiev population knows from bitter experience the
difference between those two regimes.
Nevertheless, in spite of all these quite essential differences, here
abroad the pogroms of the followers of Petlura are much more known than
those perpetrated by Denikin's army, although the latter numerically and
qualitatively surpassed considerably the former. This is to be explained
not only by the propaganda of the Russian groups which have old
connections and larger means in Europe and America, but also by the
incontestable fact that the first series of pogroms attracted the
greatest attention and brought forth the strongest expression of
dissatisfaction on the part of the public.
(In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations
during the Years of the Revolution (1917-1921): Collection of Documents
and Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956, pp. 48-51)
HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98
Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission
Serafyn also submitted evidence that "60 Minutes" had no policy against
news distortion and indeed that management considered some distortion
acceptable. For example, according to the Washington Post, Mike
Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You
don't like to baldly lie, but I have."
An introduction to the United States Court of Appeals decision below can
be found in an Associated Press article by Jeannine Aversa which is on
the Ukrainian Archive.
The original of the Court of Appeals decision below can be found on the
United States Court of Appeals web site whose home page is at
www.cadc.uscourts.gov and where the decision can either be accessed by
following links from the Court of Appeals home page, or else accessed
directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt.
As page numbering was not indicated in the Court of Appeals web site
version, it could not be inserted below, although page boundaries could
be inferred and are indicated below by means of horizontal lines.
The version below inserts clickable yellow CONTENTS boxes to remedy the
general problem of a reader's losing track of where he is within a large
document when reading it on screen, and to facilitate moving effortlessly
from one part of the document to another.
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
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 1998 Decided August 11, 1998
No. 95-1385
Alexander J. Serafyn, et al.,
Appellants
v.
Federal Communications Commission,
Appellee
CBS Inc., et al.,
Intervenors
Consolidated with
Nos. 95-1440, 95-1608
Appeal of Orders of the
Federal Communications Commission
Arthur V. Belendiuk argued the cause and filed the briefs
for appellants. Shaun A. Maher and Donna T. Pochoday
entered appearances.
C. Grey Pash, Jr., Counsel, Federal Communications Com
mission, argued the cause for appellee, with whom Christo
pher J. Wright, General Counsel, and Daniel M. Armstrong,
Associate General Counsel, were on the brief.
Richard E. Wiley, Lawrence W. Secrest, III, James R.
Bayes, and Daniel E. Troy were on the brief for intervenors
CBS Inc. and Westinghouse Electric Corporation. John
Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss
entered appearances.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Alexander Serafyn petitioned the
Federal Communications Commission to deny or to set for
hearing the application of CBS for a new station license.
Serafyn objected that CBS was not fit to receive a license
because it had aired a news program in which it intentionally
distorted the situation in Ukraine by claiming that most
Ukrainians are anti-Semitic. The Commission summarily
denied the petition, holding that Serafyn had not submitted
enough evidence to warrant a hearing. Because the Commis
sion 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.
Serafyn also petitioned to revoke CBS's existing licenses on
the ground that CBS made a material misrepresentation to
the Commission when it gave an affiliated station false infor
mation regarding its handling of viewer letters complaining
about the same program. The Commission denied that peti
tion on the ground that Serafyn had not alleged that CBS
intentionally misrepresented the matter to the Commission.
We uphold the Commission's decision in this matter as rea
sonable.
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
I. Background
Section 309(a) of the Communications Act provides that the
Federal Communications Commission may grant a broadcast
license only when it determines that doing so would serve the
"public interest, convenience, and necessity." 47 U.S.C.
s 309(a). Under s 309(d) of the Act any interested person
may petition the FCC to deny or to set for hearing any
application for a broadcast license or to revoke an existing
broadcaster's license. The petition must contain
specific allegations of fact sufficient to show that ... a
grant of the application would be prima facie inconsistent
with [the public interest, convenience, and necessity].
Such allegations of fact shall ... be supported by affida
vit of a person ... with personal knowledge thereof.
Id. The FCC must hold a hearing if it finds that the
application presents a "substantial and material question of
fact" or if it is otherwise unable to conclude that granting the
application would serve the public interest. See s 309(e).
As the Commission interprets it, s 309 erects a two-step
barrier to a hearing: (1) a petition must contain specific
allegations of fact that, taken as true, make out a prima facie
case that grant of the application would not serve the public
interest; and (2) the allegations, taken together with any
opposing evidence before the Commission, must still raise a
substantial and material question of fact as to whether grant
of the application would serve the public interest. See Astro
line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C.
Cir. 1988) (describing two-step test). At the first step, "[t]he
Commission's inquiry ... is much like that performed by a
trial judge considering a motion for a directed verdict: if all
the supporting facts alleged in the affidavits were true, could
a reasonable factfinder conclude that the ultimate fact in
dispute had been established." Gencom, Inc. v. FCC, 832
F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan
tial and material question is raised when "the totality of the
evidence arouses a sufficient doubt on the [question whether
grant of the application would serve the public interest] that
further inquiry is called for."
Citizens for Jazz on WRVR,
Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985).
In determining whether an allegation of news distortion
raises a question about the licensee's ability to serve the
public interest, the Commission analyzes both the substantial
ity and the materiality of the allegation. The Commission
regards an allegation as material only if the licensee itself is
said to have participated in, directed, or at least acquiesced in
a pattern of news distortion. The Commission stated its
policy about 30 years ago as follows:
[W]e do not intend to defer action on license renewals
because of the pendency of complaints of [news distor
tion]–unless the extrinsic evidence of possible deliberate
distortion or staging of the news which is brought to our
attention, involves the licensee, including its principals,
top management, or news management.... [I]f the
allegations of staging ... simply involve news employees
of the station, we will, in appropriate cases ... inquire
into the matter, but unless our investigation reveals
involvement of the licensee or its management there will
be no hazard to the station's licensed status....
.... Rather, the matter should be referred to the
licensee for its own investigation and appropriate han
dling.
.... Rigging or slanting the news is a most heinous
act against the public interest .... [b]ut in this democra
cy, no Government agency can authenticate the news, or
should try to do so.
Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
footnote the Commission added:
[W]e stress that the licensee must have a policy of
requiring honesty of its news staff and must take reason
able precautions to see that news is fairly handled.
An allegation of distortion is "substantial" when it meets
two conditions, as we summarized in an earlier case.
[F]irst, ... the distortion ... [must] be deliberately
intended to slant or mislead. It is not enough to dispute
the accuracy of a news report ... or to question the
legitimate editorial decisions of the broadcaster....
The allegation of deliberate distortion must be supported
by "extrinsic evidence," that is, evidence other than the
broadcast itself, such as written or oral instructions from
station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event
and not merely a minor or incidental aspect of the news
report.... [T]he Commission tolerates ... practices
[such as staging and distortion] unless they "affect[ ] the
basic accuracy of the events reported."
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
Commission's holding that CBS's "60 Minutes" had not dis
torted news by staging insurance investigator's interrogation
of fraudulent claimant; because she "actually did participate
in the fraud and did confess, even if not in precisely the
manner portrayed, the 'basic accuracy of the events reported'
... has not been distorted").
As we noted in Galloway, the Commission's policy makes
its investigation of an allegation of news distortion "extremely
limited [in] scope. But within the constraints of the Constitu
tion, Congress and the Commission may set the scope of
broadcast regulation; it is not the role of this court to
question the wisdom of their policy choices." Id. at 21.
In 1994 CBS produced and broadcast a controversial seg
ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
about modern Ukraine. The broadcast angered some viewers
who believed that many elements of the program had been
designed to give the impression that all Ukrainians harbor a
strongly negative attitude toward Jews. For example, inter
viewer Morley Safer suggested that Ukrainians were "genet
ically anti-Semitic" and "uneducated peasants, deeply super
stitious." Also, soundbites from an interview with the Chief
Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
that he believes all Ukrainians are anti-Semites who want all
Jews to leave Ukraine. In addition, CBS overlaid the sound
of marching boots on a film clip of Ukrainian Boy Scouts
walking to church and introduced it in such a way as to give
viewers the impression that they were seeing "a neo-Nazi,
Hitler Youth-like movement." The narrator also stated that
the Ukrainian Galicia Division had helped in the roundup and
execution of Jews from Lviv in 1941, though this Division was
not in fact even formed until 1943 and therefore could not
possibly have participated in the deed. Perhaps most egre
giously, when Ukrainian speakers used the term "zhyd,"
which means simply "Jew," they were translated as having
said "kike," which is a derogatory term.
After the broadcast interviewees and members of the
Ukrainian-American community deluged CBS with letters.
In his letter Rabbi Bleich stated "unequivocally" that his
"words were quoted out of the context that they were said"
and that "the CBS broadcast was unbalanced" and "did not
convey the true state of affairs in Ukraine." Cardinal Luba
chivsky, the head of the Ukrainian Greek Catholic Church,
who had also been interviewed, both sent a letter to CBS and
released a statement to the press. In the latter he stated,
"[M]y office was misled as to the actual thrust of the report.
Mr. Fager [the producer] presented the piece as one about
'post-communist Ukraine.' ... I can only deduce that the
goal of the report was to present all Western Ukrainians as
rabid anti-semites." Many other viewers pointed out histori
cal inaccuracies and offensive statements or characterizations
in the show.
Notwithstanding the requirement in 47 C.F.R. s 73.1202
that a licensee keep and make available all letters received
from viewers, WUSA-TV in Washington, D.C., forwarded the
letters it received to CBS's main office in New York. When a
representative of the Ukrainian-American Community Net
work asked to see the letters, WUSA contacted CBS in New
York and was told by Raymond Faiola that the letters were
in storage and that a response had been sent to each viewer
who wrote in; Faiola attached what he said was a copy of that
response. After failing to locate any viewer who had received
such a reply, the UACN representative questioned this story.
A CBS attorney in turn questioned Faiola, who then ex
plained that the response letter had been sent to only about a
quarter of the viewers who had written in about the program.
When an intensive advertising campaign, however, failed to
turn up even one person in the Ukrainian-American commu
nity who had received a response, the UACN representative
complained to the Commission and sent a copy of the com
plaint to counsel for CBS. When CBS's counsel asked Faiola
for an affidavit confirming his story, Faiola admitted that the
letter he had sent WUSA had been merely a draft and that he
had forgotten to have any actual response letters sent out.
Nos. 95-1385, 1440. Alexander Serafyn, an American of
Ukrainian ancestry, petitioned the Commission to deny or to
set for hearing the application of CBS to be assigned the
licenses of two stations, arguing that the "60 Minutes" broad
cast showed that CBS had distorted the news and therefore
failed to serve the public interest. In support of his petition,
Serafyn submitted the broadcast itself, outtakes of interviews
with Rabbi Bleich, viewer letters, a dictionary supporting his
claim about the mistranslation of "zhyd," historical informa
tion about the Galicia Division, information showing that CBS
had rebuffed the offer of a professor of Ukrainian history to
help CBS understand the subject, and seven other items of
evidence.
Serafyn also submitted evidence that "60 Minutes" had no
policy against news distortion and indeed that management
considered some distortion acceptable. For example, accord
ing to the Washington Post, Mike Wallace, a longtime report
er for "60 Minutes," told an interviewer: "You don't like to
baldly lie, but I have." Colman McCarthy, The TV Whisper,
Wash. Post, Jan. 7, 1995, at A21. Don Hewitt, the executive
producer of "60 Minutes," is quoted in the same article as
saying that some deception is permissible because "[i]t's the
small crime vs. the greater good," and elsewhere as saying
that "I wouldn't make Hitler look bad on the air if I could get
a good story." Richard Jerome, Don Hewitt, People, Apr. 24,
1995, at 85, 90.
CBS, taking the position that any official investigation into
its news broadcasting "offends the protections of a free
press," did not submit any evidence. Nonetheless, the Com
mission denied the petition without a hearing. See WGPR,
Inc., 10 FCC Rcd 8140, 8146-48 (1995). Explaining that it
would not investigate an allegation of news distortion without
"substantial extrinsic evidence" thereof, the Commission de
termined that only three of Serafyn's items of evidence were
extrinsic to the broadcast itself: the viewer letters, the
outtakes of interviews with Rabbi Bleich, and CBS's refusal
to use the services of the history professor. All the other
evidence, according to the Commission, either concerned "dis
putes as to the truth of the event ... or embellishments
concerning peripheral aspects of news reports or attempts at
window dressing which concerned the manner of presenting
the news." Id. at 8147 (emphasis in original, citations omit
ted). The Commission then held that the three items it
regarded as extrinsic evidence "in total ... do[ ] not satisfy
the standard for demonstrating intent to distort." Id. at
8148. Serafyn had therefore failed to show that CBS had not
met its public interest obligations and had "failed to present a
substantial and material issue of fact that the grant of the
application ... would be inconsistent with the public inter
est." Id. at 8149.
Serafyn and Oleg Nikolyszyn, another viewer who com
plained to the Commission and whose appeal we consolidated
with Serafyn's, argue that the Commission violated its own
standard in concluding that no hearing was necessary.
Serafyn implicitly objects also to the standard itself insofar as
he argues that it "imposed an impossible burden" upon him
by requiring that he present extrinsic evidence sufficient to
prove his claim without the benefit of discovery, and that the
"objective" evidence he offered should be deemed adequate to
warrant a hearing upon the public interest question.
No. 95-1608. Serafyn and the Ukrainian Congress Com
mittee of America also petitioned the Commission to revoke
or set for a revocation hearing all of the broadcast licenses
owned by CBS, arguing that CBS had made misrepresenta
tions to the Commission regarding its treatment of the viewer
letters. The Commission denied the petition on the grounds
that Serafyn had neither alleged that CBS made a false
statement to the Commission (as opposed to WUSA) nor
proved that CBS intended to make a false statement. With
respect to the latter point the Commission relied solely upon
Fiola's affidavit; it did not consider Serafyn's allegations
that CBS intentionally misrepresented the facts because they
were "not supported by an affidavit from a person with
personal knowledge thereof" and therefore did not meet the
threshold requirement of s 309(d). See Stockholders of CBS
Inc., 11 FCC Rcd 3733 (1995).
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
II. News Distortion
With regard to the Commission's requirement that he
prove by extrinsic evidence that CBS intended to distort the
news, Serafyn argues that the Commission "has never articu
lated a precise definition of 'extrinsic evidence' " and that its
prior decisions suggest it is merely seeking "objective evi
dence from outside the broadcast which demonstrates, with
out any need for the Commission to second-guess a licensee's
journalistic judgment or for the Commission to make credibil
ity findings, that the licensee has distorted a news program."
He then argues that the Commission misapplied the extrinsic
evidence standard by mischaracterizing some evidence as
non-extrinsic, failing to discuss other evidence he presented,
analyzing each piece of extrinsic evidence separately rather
than cumulatively, and requiring him to prove his case rather
than simply to raise a material question.
The Commission stands by its characterization of the evi
dence based upon its definition of extrinsic evidence, which it
says " 'is evidence outside the broadcast itself,' such as evi
dence of written or oral instructions from station manage
ment, outtakes, or evidence of bribery." Further, the Com
mission explains that its investigation properly "focuse[d] on
evidence of intent of the licensee to distort [deliberately], not
on the petitioner's claim that the true facts of the incident are
different from those presented," because "[e]xtrinsic evidence
[must] demonstrate[ ] that a broadcaster knew elements of a
news story were false or distorted, but nevertheless, proceed
ed to air such programming."
We review the Commission's decision under the arbitrary
and capricious standard. See Astroline, 857 F.2d at 1562.
We will uphold the decision if it is "reasonable and supported
by the evidence before it," but "will not 'hesitate to intervene
where the agency decision appears unreasonable or bears
inadequate relation to the facts on which it is purportedly
based.' " Beaumont Branch of the NAACP v. FCC, 854 F.2d
501, 507 (D.C. Cir. 1988) (quoting California Public Broad
casting Forum v. FCC, 752 F.2d 670, 675 (D.C. Cir. 1985)).
Analyzing the Commission's decision under this standard, we
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
"raise a substantial and material question of fact" about the
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
