CBC Takes Issue with Comcast Suit Challenge

The Congressional Black Caucus has weighed in on Comcast v. National Association of African American-Owned Media (NAAAOM), with a statement from its chair, Rep. Karen Bass (D-Calif.), saying the legal challenge threatens to roll back civil rights protections, something Comcast strongly disputes.

Related: Rep. Rush Slams Comcast Over Byron Allen Suit

The Supreme Court heard oral argument earlier this month on Comcast's challenge to an appeals court rejection of its motion to dismiss a suit spearheaded by Entertainment Studio’s chief Byron Allen against Comcast for allegedly discriminating in Comcast's noncarriage of networks.

The central issue is whether a discrimination claim can be made if a decision included race as a factor but was ultimately made for other, non-related, business reasons that had nothing to do with race. The Ninth Circuit Court of Appeals said it could be and declined to stop the suit from going to trial.

"Comcast Corporation, backed by Trump’s Department of Justice, is arguing that plaintiffs claiming discrimination under Section 1981 must prove at the outset of the case that they would have received a contract but for racial prejudice," said the Caucus statement. "This means defendants could quash a case at the outset by claiming any reason other than race for a contract decision, even if racial discrimination was afoot. This also strips plaintiffs of the benefits of discovery when defendants are usually in control of the information that would prove discrimination.

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"The Congressional Black Caucus is shocked that the Comcast Corporation, a multinational conglomerate, would take steps to completely gut a civil rights law to protect their bottom line," the caucus said.

"It has always been our intention to maintain the strength of the civil rights laws, and we believe a review of the oral argument at the Supreme Court demonstrates that," said Comcast senior EVP and chief diversity officer David Cohen. "Based on the oral argument, any fears that this case would have broad implications on civil rights enforcement have been proven unfounded.”

The caucus statement was provided by representatives of Allen, who also included a letter from a familiar name and investor in the Africa Channel, one of the networks that Comcast has pointed to in arguing that it does carry minority networks, just not the ones Allen wants it to, and for business, not racial, reasons.

"Although Comcast has not shut out TAC, Comcast has not been a good business partner. With an unkempt — yet repeated — promise by Comcast of 4 million additional subscribers it’s inaccurate to include TAC in any grouping of Black-owned independent networks which would typify the Comcast business relationship as good or in any way proactive," said Paula Madison, former NBCU chief diversity officer whose family business is the largest shareholder in The Africa Channel."I believe Byron Allen’s $20 billion lawsuit must be allowed to proceed to trial so we can hear all of the details and the truth," said Madison.

“Comcast is proud of our strong commitment to diversity and inclusion, including an unmatched record of supporting diverse and independent networks, carrying 160 independent networks, 100 of which are targeted to diverse audiences," Comcast said. "We are also proud to have launched eight new minority owned cable channels since 2011, bringing these channels into millions of homes [that was one of its pledges in the NBCU deal]. From the start, we provided a long-term commitment to carriage of these channels and were committed to the success of these channels. Seven years after the launch of the channels under the MOU [memorandum of understanding], all of them are still carried to millions of Comcast homes.

"We are proud to be The Africa Channel’s largest distributor, a commitment which is over a decade old, and pre-dates our acquisition of NBCUniversal," the company said. "We have always met or exceeded our commitments to this channel. We’ve included the network’s content in tentpole on-demand events. To be successful industry wide, beyond the distribution and promotion by any one company, the responsibility to market and have a successful business plan belongs to the network.”

In the run-up to the suit, Comcast told the FCC to reject a petition by Allen's Entertainment Studios and the National Association of African-American Owned Media asking the agency to investigate what they called Comcast's "failed" promise, codified in a condition of the merger with NBCUniversal, to add majority-controlled African American-owned media networks.

Instead, Comcast told the commission in a filing that the petition’s assertions were false, unsupported, and ridiculous, and just the latest gambit in Entertainment Studio's strategy to use litigation was a way to obtain the business goal of securing carriage for Entertainment Studios networks that "the market has not supported."

Comcast pointed out that it was not the first ("or second or third") time a programming distributor has been accused of racist practices, calling Entertainment Studios and NAAAOM "serial litigants" and pointing to suits against AT&T, DirecTV, Time Warner Cable and Charter claiming discrimination in each case.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.