A U.S. District Court has declined to dismiss Circle City Broadcasting's (joined by NABOB, the National Association of Black-Owned Broadcasters) amended complaint against Dish Network charging that the satellite operator refused to negotiate for carriage of its TV stations in a nondiscriminatory manner. The court concluded that Circle City had made at least a circumstantial case for intentional discrimination.
Unlike a preliminary injunction, a motion to dismiss does not hinge on the likelihood that either side will likely win, but on whether a legitimate claim has been stated properly.
Dish asked the U.S. Court of Appeals for the Southern District of Indiana to dismiss the suit in part because the complaint did not allege the required "but-for causation," meaning that Circle City must prove that, but for race, "it would not have suffered the loss of a legally protected right."
The court can dismiss a suit if it fails to state a claim on which legal relief can be granted. It concluded that there was enough of case to keep the suit alive at least at this preliminary stage.
"Having examined the but-for causation standard and [judicial precedent], the Court agrees with Plaintiffs [Circle City] that their Amended Complaint survives dismissal at this stage, because Plaintiffs have pled enough in the way of facts to at minimal, present a circumstantial case for intentional discrimination."
At issue is Dish's carriage--or non-carriage--of WISH-TV and WNDY-TV Indianapolis, which Circle City bought from Nexstar. Dish carried the stations when Nexstar owned them, but Circle City said it refused to negotiate a new deal or even agree to keep the old one in place, instead offering the minority owned broadcaster pennies on the dollars in paid Nexstar. Circle pointed out it was able to strike deals with Comcast and Charter and that it had made improvements to the stations.
Dish had argued that that there was a business case for paying what it offered the stations that had nothing to do with race, and that it did not plead facts showing that the stations were as valuable as when Nexstar owned them or that there was any demand for the stations. The court was not weighing in on whether either side was right, but said that it agreed with Circle that to establish that would require an extensive comparison and factual inquiry that was inappropriate at this early stage of the case.
Circle City contends that "Dish has violated, and continues to violate, Circle City's civil rights … by not allowing Circle City its right to make and enforce contracts as is enjoyed by white persons in America."
It is seeking "fair market" retrans fees as well as damages and costs.
Dish has signaled that if the court did not dismiss it would seek summary judgment and show why business considerations, not race, are the "but for" reason Dish has no carriage contract with Dish.
The court said Circle Was forewarned and that "whether or not these claims can survive summary judgment is a matter for another day."
Circle City and CEO DuJuan McCoy have filed a similar suit in the same court against AT&T and DirecTV.
The smarter way to stay on top of the multichannel video marketplace. Sign up below.
Thank you for signing up to Multichannel News. You will receive a verification email shortly.
There was a problem. Please refresh the page and try again.