During its upcoming session, the Supreme Court will consider whether a Black television programmer can use civil rights laws to sue the nation’s largest cable TV provider for refusing to do business with him.

Philadelphia-based Comcast Corp. lost its case before the 9th Circuit Court of Appeals, but the Supreme Court has agreed to hear the case, known as Comcast Corp. v. National Association of African American-Owned Media.

The Case Basics

The case was filed in February 2015, as Comcast was in the midst of attempting to get regulatory approval of its now-aborted acquisition of Time Warner Cable. The $20 billion racial discrimination lawsuit alleged it discriminated against Black-owned media and that various African-American advocacy groups and MSNBC host Al Sharpton had been bought off.

Comcast declined to do business with Entertainment Studios Networks (ESN), which is owned by Black entrepreneur Byron Allen. ESN sued under provisions of the Civil Rights Act of 1866, now known as 42 U.S. Code Section 1981.

In its petition, the company stated that ESN, which owns several TV networks that it wanted Comcast to carry on its cable system, “met multiple times to discuss a potential deal, but Comcast ultimately declined to carry ESN’s networks.”

Sharpton, NAACP Paid Off?

The defendants, in addition to Comcast, include Sharpton, the NAACP and former FCC commissioner Meredith Attwell. In their lawsuit, Allen, NAAAOM and ESN assert that Comcast has a “Jim Crow” process with respect to licensing Black-owned channels. The bulk of the plaintiff’s arguments are deployed to address the supposed conspiracy that happened after Comcast bought NBCUniversal in 2010 and entered into memoranda of understanding with groups like the NAACP and the National Action Network.

The lawsuit says Comcast’s commitment to voluntary diversity agreements is a “sham,” and that Comcast made large cash donations to Sharpton and others to gather support from them.

Comcast has a different read: It says the memoranda of understanding show Comcast’s commitment to increase diversity by offering additional opportunities for African-American content and that it decided not to deal with ESN out of ordinary business calculations “including bandwidth constraints, a preference for sports and news programming, and the lack of demand for ESN’s offerings.”

“Everybody talks about diversity, and everybody complains about the lack of diversity and economic inclusion,” said Byron Allen, founder, chairman, and CEO of Entertainment Studios. “Today, we made history by doing something about it. This lawsuit was filed to provide distribution and real economic inclusion for 100-percent-African-American-owned media. The cable industry spends $70 billion a year licensing cable networks and 100-percent-African-American-owned media receives ZERO. This is completely unacceptable. We will not stop until we achieve real economic inclusion for 100-percent-African-American-owned media.”

Civil Rights Act of 1866

Civil rights organizations are keeping an eye on the case because of i’s potential impact on the Civil Rights Act of 1866. ESN cites the act in its lawsuit and implies an Affirmative Action-like right to be carried by Comcast. They claim the company carries every network that its main competitors carry and even gives space to “White-owned, lesser-known networks.”

Section 1981 of the Civil Rights Act of 1866, a code that applies to contracting, was passed to ensure that newly freed slaves were afforded the same opportunities as their White counterparts in contract formation.

“The reach of Section 1981 cannot be understated,” wrote the Congressional Black Caucus in a statement about the case. “It applies not only to government-sponsored discrimination, but also to private discrimination, including in the employment, housing, lending, and retail contexts. Companies are prohibited from discrimination on the basis of race, color, and ethnicity when making and enforcing contracts.

The Comcast case has the potential to make it much harder for those facing discrimination to seek legal recourse by requiring “but-for” causation. This requires the plaintiff to prove the adverse outcome would not have occurred “but for” discrimination on the part of the defendant. This heightened standard would close the courthouse doors to many litigants and rob them of their opportunity to have their matter heard by the courts.

The Congressional Black Caucus and others are watching this case closely as part of their concerns about preserving the nation’s civil rights laws.

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