Justices will hear Comcast race case

WASHINGTON — The Supreme Court on Monday agreed to decide whether Comcast, the nation’s largest cable company, may be sued for race discrimination over its decision not to carry programming from an entertainment company owned by Byron Allen, an African American entrepreneur.

A federal appeals court in California ruled that the case could move forward under a Reconstruction-era federal law that gives “all persons” the same right to “make and enforce contracts” as “is enjoyed by white citizens.”

A unanimous three-judge panel of the court, the 9th U.S. Circuit Court of Appeals, said Allen’s company, Entertainment Studios Networks, had made accusations that were serious enough to avoid dismissal at an early stage of the litigation.

Entertainment Studios said Comcast had expressed interest in its programming but never closed a deal, reversed its position on what Entertainment Studios needed to do to secure carriage, carried every network that its main competitors did except Entertainment Studios and offered space to “lesser-known, whiteowned” networks even as it said it lacked capacity to carry Entertainment Studios.

Comcast, in urging the Supreme Court to hear its appeal, said its decision not to make a deal with Allen’s company was prompted by ordinary business calculations, “including bandwidth constraints, a preference for sports and news programming,” and insufficient demand for Entertainment Studios’ offerings.

Comcast’s stated reasons were pretexts, Entertainment Studios said in its own brief.

“For example,” the brief said, “Comcast claimed that it did not have sufficient bandwidth to carry Entertainment Studios’ channels, but Comcast launched more than 80 white-owned channels at the same time.”

The race-discrimination suit, Comcast’s brief said, was based on claims of “an outlandish racist conspiracy.”

“Plaintiffs contend that Comcast did not base its decision on legitimate business considerations, but on an outlandish racist plot against ‘100% African-American-owned media companies’ — a contrived racial category gerrymandered to include plaintiffs and virtually no one else — that involved, among others, the U.S. government, the country’s oldest and most respected civilrights organizations (including the NAACP and the National Urban League), prominent African Americans (including Earvin ‘Magic’ Johnson, Sean ‘Diddy’ Combs and Al Sharpton), and ‘white-owned media,’” Comcast’s brief said.

Entertainment Studios said it was not pursuing those claims.

“Like it did in the 9th Circuit below, Comcast is still attacking a conspiracy claim that respondents dropped over three years ago,” Entertainment Studios’ brief said. “Respondents are pursuing a direct claim against Comcast. Comcast cannot avoid this lawsuit by ignoring the allegations against it.”

The legal question for the justices in the case, Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171, is whether Entertainment Studios must assert and prove that race was the key reason for Comcast’s decision or one factor among many.

The appeals court said the second kind of evidence would suffice.