Supreme Court seizes Comcast complaint against racial bias

The US Supreme Court agreed to hear a call from Comcast in a case to determine whether the telecommunications giant discriminated against an African-American television network operator by refusing to broadcast the company's channels on its network. cable service.

The case concerns Byron Allen's Entertainment Studios Networks (ESN), who claimed that Comcast's refusal to broadcast ESN channels was racial in nature. Comcast tried to close the case in camera before it could rule on the central claim of racial bias. But in November 2018, the US Court of Appeals of the 9th Circuit ruled that the case could be the subject of a lawsuit, claiming that a US district court had improperly granted Comcast's request to dismiss ESN's complaint.

Comcast then asked the Supreme Court to seize the case. He told the court that the ESN complaint was based on the alleged existence of a "senseless racist conspiracy against" 100% African-owned media ventures "- a racially artificial racial category. to include the plaintiffs and virtually no one else. "

The Supreme Court has agreed to take Comcast's appeal today. The court said it would consider a legal issue raised in Comcast's motion: "Will a complaint of racial discrimination based on § 42 of the United States of America § 1981 fail in the absence of of causation? "

It's the law on discrimination that ESN accused Comcast of having violated. The court of appeal of the 9th Circuit stated that the case of ESN could be dealt with because the plaintiffs "had only plausibly to allege that the discriminatory intent was a determining factor in Comcast's refusal to contract, and not necessarily the reason for that decision. " As the Legal Information Institute explains, a "but-for-test" asks "if the existence of X existed, would it have happened?"

The appeal court's decision against Comcast also stated:

Here, the applicants [complaint] includes sufficient allegations that it can reasonably be inferred that Entertainment Studios has suffered heterogeneous treatment due to its race and therefore has been denied the same right to contract as a whites owned business, which constitutes a violation of § 1981. See 42 United States. § 1981 (a) ("In all States and Territories, the right to conclude and enforce contracts … is the same as that enjoyed by white citizens"). These allegations include: Comcast's expressions of interest followed by repeated refusals to contract; Comcast's usual practice of suggesting various methods to gain support from the distribution only to reverse its position once Entertainment Studios has taken these steps; the fact that Comcast was broadcasting each of the approximately 500 networks also owned by its major competitors (Verizon FIOS, AT & T U-verse and DirecTV), with the exception of Entertainment Studios; and, more importantly, Comcast's decisions to award distribution contracts to "less known, white-owned" networks (including Inspirational Network, Fit TV, Outdoor Channel, Current TV and Baby First Americas), while informing Entertainment Studios that there was no bandwidth or carrying capacity.

The eight ESN networks are Cars.TV, Comedy.TV, ES.TV, JusticeCentral TV, MyDestination.TV, Pets.TV, Recipe.TV and The Weather Channel. ESN and the National Association of African-American Media have asked for a $ 20-billion judgment because of Comcast's refusal to pay for channel distribution. A comedian and media mogul, Byron Allen founded ESN in 1993 and is the president and CEO.

Comcast: The Court ignored other decisions

In its application to the Supreme Court, Comcast stated that five other US appellate courts had concluded that the non-suit test was the "default rule" for this type of discrimination complaint. "Nothing in the text of the statute claims to replace the common law rule requiring a causal link," Comcast told the Supreme Court. Comcast argued that the Court of Appeal had based its decision "not on evidence that Congress intended to depart from the default rule of the causation principle, but rather on the fact that there was, in his opinion, a lack of evidence "explicitly suggests[ing] but for causation. "

The Supreme Court refused to repeat the other issue raised in Comcast's motion, which asked: "Can a plaintiff make a plausible claim for relief if the claim does not allege facts that exclude obvious alternative explanations? disputed behavior and does not claim to support all elements of the claim? "

Comcast had previously argued that the First Amendment prohibited ESN from suing to change the selection of Comcast's cable television channels. Comcast argued that he had "an editorial discretion as to which networks to offer to his audience" just like a newspaper. But this argument was rejected by the Court of Appeals and Comcast did not bother to raise the First Amendment's claim in its application to the Supreme Court.

Allen predicted victory at the Supreme Court. "We have already been successful in the US Court of Appeals for the 9th Circuit and we are very confident that we can take it to the US Supreme Court," Allen said in a statement. to Ars. "Comcast – one of the largest lobbyists in Washington DC – will continue to lose its case, and the American people who take a stand against racial discrimination will win it."

Comcast said it believed that the case of the 9th circuit "was badly decided".

"At this point, the case concerns a technical point of law that was decided in a new way by the 9th circuit," said Comcast in a statement provided to Ars. "We hope that the Supreme Court will reverse the unusual interpretation of the law by the 9th Circuit and put an end to this case."

Comcast also defended its record of "supporting and promoting various programs, including programs from African-American owned channels, two more we launched earlier this year."

"There was no finding of discriminatory conduct on the part of Comcast against this complainant, because there was none, we have more than 100 networks dedicated to varied audiences, "Comcast said.

Allen's statement replied that "the networks that Comcast calls" belonging to African-Americans "are not entirelyowned by African Americans and did not get all until I get up and talk about this discrimination and economic exclusion. "

Similar case against the Charter still pending

ESN filed a similar lawsuit against Charter, the country's second-largest cable company after Comcast. The court of appeal of the 9th Circuit was pronounced against both Charter and Comcast the same day last November.

The Charter has also appealed to the Supreme Court, but it has not yet clarified whether it will handle the case. Whatever the case may be, the treatment of the Comcast case by the Supreme Court could affect the outcome of the ESN battle against the Charter.

Disclosure: The Advance / Newhouse partnership, which owns 13% of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, who owns Ars Technica.