Friday, September 17, 2004

MEDIA ETHICS PROJECT SEEKS FCC RULING AGAINST CBS NEWS FOR BROADCASTING REPORTS BASED ON FORGED DOCUMENTS


MEDIA ETHICS PROJECT
515 MADISON AVENUE
NEW YORK, NY 10022-5403
Email: mediaethics@email.com
Website: www.mediaethics.8k.com

PRESS RELEASE
For Immediate Release


MEDIA ETHICS PROJECT BRINGS ACTION AGAINST CBS NEWS
,
__________________



GROUP’S FILING WITH FCC BASED ON DAN RATHER’S USE OF FORGED DOCUMENTS


New York, NY , September 17, 2004 . Media Ethics Project (“MEP”) of New York today petitioned the Federal Communications Commission (“FCC”) to sanction CBS News and its parent organization, Viacom, Inc., for its recent broadcast of news reports based on use of forged documents. MET is a newly formed group seeking to focus on the public interest responsibilities of mass media organizations.

In announcing the FCC filing, MEP Chairman William L. Whitely stated: “The actions of CBS News over the last week have been truly outrageous. Most people familiar with Dan Rather’s reports have seen solid evidence from various credible sources showing the documents to be forged. Yet, day in and day out, CBS has stubbornly continued to maintain that the memos are authentic. This is supremely arrogant conduct violates the public trust and the rules and policies of the FCC. Viacom, as the holder of 39 television station licenses and 185 radio stations, cannot be allowed to flaunt the Commission’s rules and policies in this manner. ”

The MEP Petition to the FCC cites two recent 60 Minutes II broadcasts and several editions of CBS Evening News, which carried reports by CBS anchor, Dan Rather, and others, criticizing the National Guard service records of President George W. Bush. The CBS reports referenced as supporting materials certain purported U.S. Government documents allegedly written by a National Guard officer critical of the then Lieutenant Bush.

Immediately following the airing of the original 60 Minutes II report, questions began to be raised, initially via Internet news sites and blogs, and subsequently by various news organizations, challenging the authenticity of the documents. Additional questions have been raised daily since the first broadcast on September 8.

MEP contends that CBS actions in continuing to maintain the authenticity of the documents in the face of mounting evidence to the contrary, violates the established policies of the FCC. The Commission prohibits the broadcasting of falsified, faked, distorted or staged news reports as contrary to the public interest.

MEP contacted Viacom counsel on Monday and Tuesday of this week, proposing that the entire controversy be referred to an independent reviewer. Viacom rejected the MEP approach in a public statement issued late Wednesday by Andrew Hayward, President of CBS News. Hayward stated that notwithstanding “all the questions” that had been raised, CBS remained satisfied that the “memos were accurate” and would redouble [its] efforts to answer those questions.

MEP is seeking a ruling by the FCC finding that the deliberate actions of CBS and Viacom in continuing to report the underlying National Guard story, while maintaining the authenticity of the documents, constitutes fraud and a violation of the Commission’s rules and policies. MEP is asking the FCC to sanction Viacom including imposing fines and ordering forfeiture of one or more broadcast licenses .

Mr. Whitely added that, “This whole episode must be regarded as a remarkable failure of management. It is truly sad that the proud traditions of professionalism of CBS News, the division built by the likes of Morrow, Severeid, Reasoner, Mudd and Cronkite, have been allowed to slowly fade away. In their place is an organization where unprincipled ego, bias, negligence, partisanship and vindictiveness apparently determine the setting of management policy. Such changes are not in the best interest of CBS, the CBS affiliates and CBS shareholders, nor, most certainly, are they in the public interest as well. Staying to this course, the House that Paley Built will likely become the Network that Rather Wrecked.”

Since the CBS reports attacking President Bush’ s National Guard service hold the possibility of directly impacting the views of voters, MEP has asked that the FCC expedite its consideration of the group’s Petition.

####

For additional information please contact::
mediaethics@email.com
or
www.wmediaethics.8k.com


PETITION FELED BY MEDIA ETHICS PROJECT





BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, DC 20554


In the Matter of

CBS News Dissemination of
TV Programming Based Upon
Allegedly Forged Documents


PETITION FOR DECLARATORY RULING


Media Ethics Project (“MEP”) [1] [Footnotes] herewith submits this Petition for Declaratory Ruling (Petition) related to the recent activities of CBS News. As outlined fully below, the actions of CBS News, including its journalists and management executives, appear to involve violations of fundamental licensee public interest obligations and other basic statutory and regulatory responsibilities under the Communications Act of 1934, as amended (47 USC § 153, et seq) (“Communications Act”), and the rules and policies of the Commission (47 C.F.R.), including those involving the presentation of falsified, distorted, faked or staged news programming. These serious failures on the part of the CBS News Division and its parent organizations, CBS Worldwide, Inc. (“CBS”) and Viacom, Inc. (“Viacom”), give rise to the submission of the instant Petition pursuant to 47 C.F.R. § 1.5.

1. The Facts


The matters at issue principally relate to the 60 Minutes II broadcast of September 8, 2004 over the CBS TV Network, which concerned the National Guard service records of President George W. Bush. The report by Mr. Rather referenced as supporting materials certain purported U.S. Government documents (“National Guard Documents” ). [2] Immediately following the airing of the 60 Minutes II report, questions began to be raised (and continue to be raised), initially via Internet news sites and blogs, and subsequently by various news organizations, including the Associated Press, challenging the authenticity of the National Guard Documents as cited by CBS.

In its initial report, for example, AP provided the following information challenging the genuineness of the National Guard Documents:

Independent document examiner Sandra Ramsey Lines said the memos looked like they had been produced on a computer using Microsoft Word software. Lines, a document expert and fellow of the American Academy of Forensic Sciences, pointed to a superscript [in the memo] - a smaller, raised "th" in "111th Fighter Interceptor Squadron" - as evidence indicating forgery. See http://apnews.myway.com/article/20040910/D850SGS80.html

With respect to Internet fact finding concerning the 60 Minutes II report, the following was reported by ZD Net, which regularly monitors web activities:

Not long after CBS aired its story on "60 Minutes II," dealing with memos that allegedly showed President Bush's Texas National Guard superiors raising questions about his service, a pseudonymous message board posting on the conservative FreeRepublic.com Web site called the documents a hoax.

This kind of rhetoric is common on that site's message boards, but the author asserted that the typewriter font used in the CBS memos was anachronistic and would not have come into common use until after the alleged date of the memos.

Thursday morning, while most news services were still catching up to the CBS story, Minneapolis attorney Scott Johnson posted a link to the FreeRepublic claim on his conservative-leaning Power Line blog. The item sparked an eruption of e-mail from readers, ranging from former military officers to an IBM typewriter repairman, many doing detailed, expert-sounding analysis of the memos' typography. Johnson posted excerpts from the messages, most of which said the memos were likely to have been forgeries. http://news.zdnet. com/2102-3513_22-5362393.html?tag=printthis

In response to the serious questions raised concerning the National Reserve Documents, CBS issued press releases on September 10 stating that its experts “who examined the documents concluded that they were authentic.“ See http://ap news.myway.com/ article/20040910/D850SGS80.html

In addition, CBS Evening News on Friday, September 10, aired a report designed to deal with the growing controversy. This report, again delivered by Mr. Rather, included an interview with a handwriting expert and concluded with the following observations by Mr. Rather:

“The '60 Minutes' report was based not solely on the recovered documents but on a preponderance of evidence, including documents that were provided by what we consider to be solid sources and interviews with former officials of the Texas National Guard. If any definitive evidence to the contrary of our story is found, we will report it. So far, there is none."

Following the CBS Evening News broadcast, Mr. Rather was interviewed by Wolf Blitzer of CNN as follows :

"I believe that the witnesses and the documents are authentic,"[Rather] said. "We wouldn't have gone to air if they would not have been." http://www.cnn.com/2004/US/09/10/rather/index.html

Asked by Mr. Blitzer if there would be an apology or retraction, Rather replied,

"Not even discussed, nor should it be. I want to make clear to you, I want to make clear to you if I have not made clear to you, that this story is true, and that more important questions than how we got the story, which is where those who don't like the story like to put the emphasis, the more important question is what are the answers to the questions raised in the story, which I just gave you earlier." Id.

Since the airing of the Rather response, additional information has been reported by news organizations and posted on the Internet detailing over 50 discrepancies with regard to the National Guard Documents consistent with the allegations questioning the authenticity of the documents. Listings of these 50+ incongruities and inconsistencies are set out in Exhibit 1.

Also, on September 10. NBC News posted a report on its MSNBC Internet site, which again quoted independent document reviewer Sandra Ramsey Lewis as follows:

“I’m virtually certain these were computer-generated,’” Lines said after reviewing copies of the documents at her office in Paradise Valley, Ariz. http://www.msnbc.msn.com/id/5963843/

NBC stated that Ms. Lewis had produced a nearly identical document using her computer’s Microsoft Word software.

In its Internet report, NBC News observed that CBS had provided additional evidence supporting the position that the documents are genuine:

An unnamed "senior CBS official" told the Washington Post that one of the network's backup sources was retired Maj. Gen. Bobby W. Hodges, Killian's immediate superior. The CBS executive said a CBS reporter read the documents to Hodges over the phone, and that Hodges replied that "these are the things that Killian had expressed to me at the time," the Post reported Friday. Id.

However, by Sunday, September 12, The Dallas Morning News carried the following report, which called into question the backup sources cited by CBS:

On Monday evening, a 60 Minutes producer called Gen. Hodges and read him over the telephone portions of the four memos allegedly written by the now deceased Lt. Col. Jerry Killian.Gen. Hodges says that when he was asked to verify the memos, he believed that the documents were handwritten.

"Without seeing them, I assumed that they were hand-written notes from a personal file that Lt. Col. Killian (who died in 1984) may have maintained without anyone's knowledge," Mr. Hodges wrote in a statement he released on Saturday.

Gen. Hodges, who retired from the Guard in 1989, said that after he saw the typewritten memos on Friday morning, he believed Col. Killian did not, in fact, write them. "I don't think Killian wrote them – official or unofficial," he said.
ttp://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/091204dnpolbushguard.11076.html ; see also http://www.washington post.com/wp-dyn/articles/A14627-2004Sep11.html?nav=rss_politics/elections/2004

Also on Monday, September 13, the Washington Post reported that its own detailed comparison of memos obtained by CBS News with authenticated documents on President Bush’s National Guard service “reveals dozens of inconsistencies, ranging from conflicting military terminology to different word processing techniques.” http://www.washington post.com/as2/wp-dyn/A18982-2004Sep13?language=printer

On Wednesday, September 14, ABC News issued a report detailing additional evidence questioning the documents, including the following:

At the heart of the dispute is whether any typewriter existed in 1972 that could have produced the documents, with their distinct type style, even spacing, and the tiny raised "th" known as superscript.

Two experts told ABC News today there was no such machine, not even the IBM Selectric Composer, the most advanced typewriter available in 1972.

"This machine is not the culprit for these documents," said software engineer Gerry Kaplan.

Other new questions were raised today by National Guard officials who told ABC News that some of the language and abbreviations in the documents were not in use at the time…

Killian's former secretary, Marian Carr Knox, told ABC News she believes the documents are fake, but that they do reflect some of what her former boss thought of then-Lt. George W. Bush. http://abcnews.go.com/sections/WNT/ Investigation/bush_guard_documents_040914.html.

On Wednesday evening, September 15, CBS Evening News and 60 Minutes II aired reports which featured interviews with Col. Killian’s “former secretary,” who confirmed the information she had earlier supplied to ABC News. [3]

Thus, as of this time, a myriad of questions have been raised calling into question the authenticity of the National Guard Documents cited by Mr. Rather, both in his original 60 Minutes II story, a follow-up report carried on 60 Minutes II on September 15, as well as a series of reports on successive editions of CBS Evening News.


2. Need for Independent Investigation


It is quite obvious that most serious questions have been raised concerning the broadcasting by CBS of news reports based upon forged or fraudulent documents. These reports in turn have been disseminated to all CBS television stations. To this point, CBS has in large part been content to allow Mr. Rather, his producers and certain senior managers respond to the growing criticism of the subject news story.

Certainly, the present controversy related to the cited documents (which has become known as Rathergate in the Internet blogger world ) [4] is a most serious matter, impacting Mr. Rather, CBS News , the CBS Owned and Operated Stations and Affiliates and Viacom. This is a complex and critical matter, which certainly must be addressed by senior management of Viacom and CBS. Without question, Viacom, the owner of CBS and its related broadcasting entities, including the CBS News Division, must in the end be held fully responsible for the 60 Minutes II broadcasts, the follow-up reports and all associated ramifications.

The subject matter of the 60 Minutes II reports is of critical importance as they involve an attack against the President of the United States, aired with less than 60 days left in an election campaign. Furthermore, the forged document allegations themselves strike at the base of the company’s fundamental obligations as a broadcast licensee. Based on information available at this point, it appears that CBS News, notwithstanding the fact that it had been working on this story for some five years [5] , used documents that it knew or should have known were of a questionable nature [6].

CBS News apparently rushed ahead with the airing of the original 60 Minutes II report, without subjecting the memos to the most basic tests to verify their genuineness and authenticity. As it turned out, these basic tests were later undertaken quite efficiently and effectively by other news reporters and Internet bloggers. It has been these subsequent independent tests that to reasonable observers have seemingly established the National Guard Documents to be forgeries, and which have resulted in the avalanche of criticism leveled against CBS News and Mr. Rather.

3. FCC Standards With Respect to News Programming by Licensees

As the owner of 39 television stations (Viacom Stations Group) and 185 radio stations (Infinity Broadcasting), and the operator of CBS, the CBS Television Network, United Paramount Network, Paramount Television, Paramount Advertisers Services, CBS Enterprises and CBS Entertainment, Viacom quite obviously is more than familiar with the public interest obligations and mode of conduct expected of all Commission licensees.

It is well established that under the no-censorship provision in Section 326 of the Communications Act, the Commission cannot direct broadcasters in their selection of material for news programs, or prohibit the broadcasting of an opinion on any subject. In addition, the Commission does not engage in reviewing the qualifications of anyone to gather, edit, announce or comment on the news; such decisions are a responsibility of the station licensee. See Summary of FCC Policies, http://www.fcc. gov/mb/enf/forms/fcc100.html (“FCC Policies”).

This having been said, the broadcasters rights have in fact been determined to be limited by certain constraints. [7] The Supreme Court has determined that:
“Congress has affirmatively indicated in the Communications Act that certain journalistic decisions are for the licensee, subject only to the restrictions imposed by evaluation of its overall performance under the public interest standard. “ Id.

Thus, the Commission must be expected to act in cases where news programming has been falsified, distorted, faked or staged as violations of the public interest [8]. In adopting its policies,[9] the Commission has determined that it will only intervene where it receives extrinsic evidence (evidence apart from program content) of deliberate conduct by a licensee and/or its management personnel involving the presentation of falsified, distorted, faked or staged news programming. (See FCC Policies)

The Commission has stated that it "recognizes that some abuses may occur, but it believes that without extrinsic evidence of deliberate intent to falsify or distort, any interference by it, the government licensing agency, in the editorial or news judgment of broadcasters would be a greater danger.” Id. The Commission has further emphasized "the right of broadcasters to be as outspoken as they wish, and that allowance must be made for honest mistakes on their part." Id.

MEP fully agrees with and supports the Commission’s stated policy guidelines with respect to licensee presentation of news programming. However, based on the extrinsic evidence, which has accumulated over the past week questioning the authenticity of the National Guard Documents, and the failure of CBS to properly address the situation, it is obvious that the necessary evidentiary threshold for falsified, distorted, faked or staged news programming has been reached, calling into serious question the conduct of CBS management.

Over the past seven days, CBS and the public have been presented with documentary and other evidence, including new statements by Mr. Rather’s sources and counter sources, which any reasonable reviewer would conclude support the charge that the National Guard Documents appear to be forgeries. For Viacom and CBS to be presented with such evidence and fail to take immediate action to employ a fully qualified, independent reviewer (or reviewing body) to determine the true facts clearly constitutes a violation of its public interest obligations as a licensee. [10]

In addition, in the event the documents are shown by the independent review to be forgeries, Viacom and/or CBS must be expected to issue an appropriate retraction and apology and take proper steps, including necessary sanctioning of CBS News personnel involved in this incident, to assure that such fundamental misconduct does not occur in the future. The continued failure of Viacom to undertake such corrective actions would constitute additional violations of its licensee responsibilities. [11]

4. CBS Refusal To Undertake Corrective Actions

To date, Viacom and CBS have refused to take corrective actions of the type suggested by MEP [12]. Instead, the companies have thus far chosen to accept the position of Mr. Rather and his producers supporting the authenticity of the basic news report and the National Guard Documents, with certain, carefully crafted limitations.

On September 13, the undersigned submitted a letter and draft copy of this Petition to counsel for Viacom. It was requested that counsel review the Petition. Further, the cover letter underscored MEP’s position that in view of the serious nature of questions raised, the document controversy should be referred to an independent reviewer or reviewing body to determine the authenticity of the memos. Such a process could properly establish the genuineness of the documents, and, if they are found to be fakes, attempt to determine the circumstances surrounding their creation and dissemination. [13] The resulting information could also be provided to the appropriate federal prosecutors, should the independent review find evidence that deliberate attempts by the forger and/or others have been made to produce fraudulent federal government documents with the intention to illegally influence a federal election.

It was requested that Viacom counsel provide a written response by close of business on September 15, noting that in the event Viacom-CBS elected to refer the matter to an independent authority, MEP would postpone submission of this Petition to the Commission, pending the completion of the independent review.

On September 14, the undersigned submitted a supplemental letter to Viacom counsel. This letter outlined additional evidence supporting the position that the Reserve Guard Documents are forgeries. MEP again requested a timely response.

Beginning at 11 am on Wednesday, September 15, the press carried reports that CBS had announced plans to issue a “clarification” of its position with respect to the document controversy. The news reports continued throughout the day, referencing planned release times for the CBS clarification announcement at 12 noon, 3 PM, 3:30 PM, and 5 PM.

The clarification was issued following the close of business on September 15 in the form of a statement by Andrew Heyward, president of CBS [14]:

'We established to our satisfaction that the memos were accurate or we would not have put them on television. There was a great deal of coroborating [sic] evidence from people in a position to know. Having said that, given all the questions about them, we believe we should redouble our efforts to answer those questions, so that's what we are doing'... http://www.drudgereport.com/, emphasis added

Also late Wednesday, CBS also issued a detailed statement on the document controversy to its affiliated stations, which included the following conclusions:

Through all of the frenzied debate of the past week, the basic content of the 60 MINUTES Wednesday report - that President Bush received preferential treatment to gain entrance to the Texas Air National Guard and that he may not have fulfilled all of the requirements -- has not been substantially challenged.

CBS News will make every effort to resolve the contradictions and answer the unanswered questions about the documents and will continue to report on all aspects of the story. http://www.freerepublic.com/focus/f-news/1217231/posts

In addition, also on Wednesday, the New York Observer carried an extended interview with Mr. Rather, which included the following statement:

"I think the public, even decent people who may be well-disposed toward President Bush, understand that powerful and extremely well-financed forces are concentrating on questions about the documents because they can’t deny the fundamental truth of the story," [Rather] said. "If you can’t deny the information, then attack and seek to destroy the credibility of the messenger, the bearer of the information. And in this case, it’s change the subject from the truth of the information to the truth of the documents.

"This is your basic fogging machine, which is set up to cloud the issue, to obscure the truth," he said. http://nyobserver.com/pages/frontpage1.asp


Thus, based on the above statements, it is clear that Mr. Rather and CBS have chosen not to refer the document controversy to an independent reviewer, and have elected to remain the sole originator, disseminator and adjudicator of the news reports referencing the memos in question. CBS and Mr. Rather are taking this position notwithstanding the fact that an ever growing body of evidence supports the proposition that CBS has intentionally or unintentionally been a party to a scheme to utilize a series of forged US Government documents as the basis of a story which will to some degree directly or indirectly influence American voters taking part in the 2004 Presidential Election.

MEP believes that such deliberate action on the part of Viacom and CBS management directly contravenes the Communications Act and the applicable rules and policies of the Commission. Where a licensee has presented a news report which is shown through extrinsic evidence to include falsified, distorted, faked or staged programming material, its responsibility clearly is to take action immediately to rectify the situation.

In the present case, based on available evidence, it can be determined that CBS News, through negligence or misfeasance, broadcast a series of news reports premised on forged documents. In such a case, the obligation must fall to Viacom and CBS to refer the matter to an independent, credible authority to ascertain the true state of facts and undertake appropriate remedial actions.

To date, Viacom-CBS has chosen to perpetuate the fraud by continuing to report the underlying story, while maintaining the authenticity of the documents. In so doing, Viacom and CBS have violated the public interest in disseminating news reports containing false and fraudulent information. As a result, MEP seeks the issuance of a declaratory ruling determining the Viacom-CBS mode of conduct to constitute direct violation of the Commission’s rules and policies and the public interest [15].


5. Request for Declaratory Ruling


In view of the foregoing, MEP requests the Commission to issue a Declaratory Ruling as follows:

Where it is determined that (1) Viacom, Inc. has, through its CBS News Division, broadcast a series of news reports to the CBS owned and operated stations and CBS affiliated stations citing purported U.S. Government documents which, based on documentary and other extrinsic evidence and analysis (i.e. evidence apart from program content), are alleged to constitute forgeries, and (2) Viacom has failed to take appropriate actions, including employing qualified, independent parties to review the challenged documents in order to establish in good faith the genuineness and authenticity of the alleged forged documents, and (3) Viacom has continued the broadcast successive news reports based upon the alleged forged documents, Viacom shall be found to be guilty of deliberate conduct by a licensee and/or its management personnel involving the presentation of falsified, distorted, faked or staged news programming in violation of Commission policy, and to have failed to comply with its statutory public interest obligations and, as a consequence, it shall be subject to sanctions, including fines and forfeiture of broadcast licenses as determined by the Commission.

In view of the unusual circumstances related to the matter under review, including possible implications with respect to the Presidential elections, expedited consideration is respectfully requested.



Respectfully submitted,


Media Ethics Project
515 Madison Avenue
New York, NY 10022
mediaethics@email.com
www.mediaethics.8k.com

By___________________
William L. Whitely
Its Chairman

Dated: September 16, 2004


EXHIBIT 1

As appearing on www.freerepublic.com:

Reasons Why Dan Rather's Documents were Forgeries (Posted on 09/13/2004 6:39:52 AM PDT)

List of problems with these documents

1. Proportional spacing not generally available

2. Superscripts not generally available

3. Small "th" single element not generally available (not common, but available. Highly unlikely the machines were available at TANG)

4. Smart quotes. Curved apostrophes and quotation marks were not available

5. The blurriness of the copy indicates it was recopied dozens of times, tactic of forgers

6. Signature block. Typical authentic military signature block has name, then rank, then on the next line the person's position. This just has rank beneath the name.

7. Margins. These look like a computer's unjustified default, not the way a person typing would have done it.

8. Date usually with three letters, or in form as 110471.

9. Words run over consistent with word processor

10. Times Roman has been available since 1931, but only in linotype print shops...until released with Apple Macintosh in 1984 and Windows 3.1 in 1991.

11. Signature looks faked

12. No errors and whiteout

13. No letterhead

14. Exact match for Microsoft Word Processor

15. Paper size problem, Air Force and Guard did not use 8 1/2 x 11 inch paper until the 1980s.

16. Overlap analysis is an exact match

17. Absence of hyphens to split words between lines, c/w 1970's typewriter.

18. 5000 Longmont #8 in Houston TX. does not exist (actually does exist, but Mr. Bush had already moved TWICE from this address at the time the memo was written).

19. Box 34567 is suspicious, at best. The current use of the PO Box 34567 is Ashland Chemical Company, A Division of Ashland Oil, Incorporated, P. O. Box 34567 Houston (this has been confirmed by the Pentagon, per James Rosen on Fox News-However, many documents on John Kerry's website show same)

20. It would have been nearly impossible to center a letterhead with proportional spacing without a computer.

21. Bush's grade would "normally" be abbreviated "1Lt" not "1st Lt"

22. Subject matter bizarre

23. Air Force did not use street addresses for their offices, rather HQ AFLC/CC, Wright-Patterson AFB, OH 45433.

24. Kerning was not available

25. In the August 18, 1973 memo, Jerry Killian purportedly writes: "Staudt has obviously pressured Hodges more about Bush. I'm having trouble running interference and doing my job." but General Staudt, who thought very highly of Lt. Bush, retired in 1972.

26. Language not generally used by military

27. Not signed or initialed

28. Not in any format that a military person would use, e.g. orders not given by Memo.

29. Is the document original or a copy of an original?

30. Why all the background noise such as black marks and a series of repeated dots (as if run through a Xerox).(Rather explained his document was a photocopy-brings up additional questions of how redacted black address was visible from a several generation copy)

31. The Killiam family rejected these documents as forgeries. Then where did the personal files come from if not the family?

32. Why no three hole punches evident at the top of the page?

33. Mr. Bush would have had automatic physical scheduled for his Birthday in July! He would not have received correspondence.

34. Why is the redacted address of Longmont #8 visible beneath the black mark? This would have been impossible after one copy, but it would be visible if the document was scanned.

35. Why were these exact same documents available for sale on the Internet y Marty Heldt, of leftist web site Tom Paine, as early as January 2004? Is this where CBS obtained their copies?

36. Acronym should be ORT, not ORET.

37. Last line of document 4 "Austin will not be pleased with this" is not in the same font and has been added!

38. Handwriting experts are not document experts apples and oranges.

39. Lt Col Killian didn't type

40. The forged documents had no initials from a clerk

41. There was no CC list (needed for orders)

42. Subject line in memos was normally CAPITALIZED in the military

43. The forged documents used incorrect terminology ("physical examination" instead of "medical")

44. There was no "reciept confirmation box" (required for orders)

45. The superscript "th" in the forged documents was raised half-way above the typed line (consistent with MS Word, but inconsistent with military typewriters which kept everything in-line to avoid writing outside the pre-printed boxes of standard forms)

46. CBS admits that it does *not* have the originals, but only original documents can be proven to be real; copies can *never* be authenticated positively...repeat: only original documents can be proven real. CBS never had the originals, so CBS knew that it was publishing something that couldn't be assured of authenticity.

47. The manual cited in the first forged document on line 2 of the first point #1 of "AFM 35-13" doesn't exist. That line of text reads: "to conduct annual physical examination (flight)IAW AFM 35-13". "IAW" means "In Accordance With" and "AFM 35-13" would mean "Air Force Manual 35-13". There is no such Air Force Manual 35-13.

www.freerepublic.com/focus/f-bloggers/1214544/posts

ADDITIONAL LISTING OF DISCREPANCIES ALSO APPEARING ON www.freerepublic.com:

48. CBS admits that it does *not* have the originals, but only original documents can be proven to be real; copies can *never* be authenticated positively...repeat: only original documents can be proven real. CBS never had the originals, so CBS knew that it was publishing something that couldn't be assured of authenticity

49. 4's produced on a typewriter are open at the top. 4's on a word processor are closed. Compare the genuine Bush ANG documents, where the 4's are open at the top, to Rather's forgeries, where the 4's are closed at the top

50. Smart quotes. Curved apostrophes and quotation marks were not available – only vertical hash marks.

51. Not signed or initialed by author, typist, or clerk.

52. The forged documents used incorrect terminology ("physical examination" instead of "medical")

53. There was no "receipt confirmation box" (required for orders)

54. The superscript "th" in the forged documents was raised half-way above the typed line (consistent with MS Word, but inconsistent with military typewriters which kept everything in-line to avoid writing outside the pre-printed boxes of standard forms).

55. Regarding superscript - typewriter example had it underlined in the keystroke but the forged document doesn't.

56. May 4, 1972 "order" memo and the May 19, 1972 "commitment" memo typeface doesn't match the official evaluation signed 26 May 1972. Or does the TxANG have a new typewriter just for Col. Killian's memorandum

57.The Director of the Texas Air National Guard at the time President Bush served there said Sunday that Guard documents obtained by "60 Minutes" purporting to show dissatisfaction over his performance are "forged as hell." "They're forged as hell," former Guard director Earl W. Lively told the Washington Times. "There's no way that [Bush's commanding officer] Jerry Killian would have written what they've come up with."


FOOTNOTES

1 Media Ethics Project has been formed by a number of individuals and organizations, including the Litigation Recovery Trust, as a result of the apparent stark failures of CBS News to observe and enforce proper ethical standards with respect to its production of programming. As a general matter, Media Ethics Project shall seek to focus attention on the serious failures of mass media organizations such as CBS News to establish and enforce proper codes of ethics to guide their presentation of news, information and other forms of programming to the public. Such ethical codes should be based upon the concept that the mass media operate pursuant to a public trust. Accordingly, the organizations should seek to follow the highest standards of good taste, integrity and decency. In the presentation of news specifically, mass media organizations should seek to report information truthfully, fairly, impartially and with integrity and independence, and full accountability for their actions. See www.mediaethics.8k.com

2 60 Minutes II used the documents in question,– four memos purportedly written by the late Col. Jerry Killian, President Bush's squadron commander – to assert that the commander was pressed to "sugar coat" a performance evaluation for President Bush, and that he did not follow an order to report for a physical.

3. Gary Killian, son of Col. Jerry Killian, has stated that Marian Carr Knox was one of a number of “pool” secretaries at the National Guard and did not function as private secretary to his father. (see Fox Cable, Hannity & Combs, September 15, 2004 http://www.foxnews.com/story/0,2933,132245,00.html . Mr. Rather did not include this information in his 60 Minutes II interview of Ms. Knox, nor did he identify her as a member of the Democratic Party.

4. A website, www.rathergate.com, has been established to track events in this controversy.

5. As reported in the New York Observer: “Mr. Rather said that he and his longtime CBS producer, Mary Mapes, had investigated the story for nearly five years, finally convincing a source to give them the National Guard documents.” http://nyobserver.com/pages/frontpage1.asp

6. ABC News has reported that “[t]wo of the document experts hired by CBS News say the network ignored concerns they raised prior to the broadcast of a report citing documents that questioned George W. Bush's service in the National Guard during the Vietnam War.” http://abcnews.go.com/ sections/WNT/Investigation/bush_guard_documents_040914.html

7. A broadcast licensee has a large measure of journalistic freedom but not as large as that exercised by a newspaper. A licensee must balance what it might prefer to do as a private entrepreneur with what it is required to do as a "public trustee." To perform its statutory duties, the Commission must oversee without censoring. This suggests something of the difficulty and delicacy of administering the Communications Act - a function calling for flexibility and the capacity to adjust and readjust the regulatory mechanism to meet changing problems and needs. Columbia Broadcasting v. Democratic National Committee, 412 U.S. 94, 118-119 (1973)

8. 'An important element of public interest and convenience affecting the issue of a license is the ability of the licensee to render the best practicable service to the community reached by his broadcasts.' Federal Communications Comm. v. Sanders Bros. Radio Station, 309 U.S. 470, 475 , 642 S., 60 S.Ct. 693, 697, 1037.

9. Congress endowed the Communications Commission with comprehensive powers to promote and realize the vast potentialities of radio. Section 303(g) provides that the Commission shall 'generally encourage the larger and more effective use of radio in the public interest'; subsection (i) gives the Commission specific 'authority to make special regulations applicable to radio stations engaged in chain broadcasting'; and subsection (r) empowers it to adopt 'such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act'. National Broadcasting Co. v. United States, 319 U.S., at 218

10. The regulatory scheme evolved slowly, but very early the licensee's role developed in terms of a "public trustee" charged with the duty of fairly and impartially informing the public audience. In this structure the Commission acts in essence as an "overseer," but the initial and primary responsibility for fairness, balance, and objectivity rests with the licensee. This role of the Government as an "overseer" and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic "free agent" call for a delicate balancing of competing interests. CBS v DNC,412 US 117.

11. The CBS conduct in this case also has directly violated the CODE OF ETHICS AND PROFESSIONAL CONDUCT of the RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION, which, among other things, requires members to “respond to public concerns. Investigate complaints and correct errors promptly and with as much prominence as the original report.” http://www.rtnda. org/ethics/coe.shtml.

12. LRT is not the only party urging that the document controversy be referred to an outside authority. Others proposing independent investigations include William Saffire of the New York Times who has called for an independent investigation, noting: It may be that CBS is the victim of a whopping journalistic hoax, besmearing a president to bring him down. http://www.nytimes.com/2004/09/13/ opinion/13safire.html.

13. Quite obviously, since CBS personnel were involved in the news gathering process, an independent review is clearly required.

14. The clarification was also read by Mr. Hayward during a CBS Evening News report at 6:30 pm EDT on Wednesday, September 15.

15. The regulatory scheme evolved slowly, but very early the licensee's role developed in terms of a "public trustee" charged with the duty of fairly and impartially informing the public audience. In this structure the Commission acts in essence as an "overseer," but the initial and primary responsibility for fairness, balance, and objectivity rests with the licensee. This role of the Government as an "overseer" and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic "free agent" call for a delicate balancing of competing interests…. Every licensee is already held accountable for the totality of its performance of public interest obligations.CBS v. DNC 412 U.S. at 120-121.







CERTIFICATE OF SERVICE

I, William L. Whitely, hereby certify that I have this 16th day of September, 2004 forwarded a copy of this Petition for Declaratory Ruling to the parties listed below via facsimile transmission, mail or Federal Express.:

Michael Fricklas
Executive Vice President,
General Counsel & Secretary
Viacom, Inc.
1515 Broadway
New York, NY 10036

Mark Morril
Vice President and Deputy General Counsel
Viacom, Inc.
1515 Broadway
New York, NY 10036


____________________________
William L. Whitely