Jon Brodkin, Ars Technica, June 10, 2019
The US Supreme Court has agreed to hear a Comcast appeal in a case centering on whether the telecommunications giant discriminated against an African American-owned TV network operator by refusing to carry the company’s channels on its cable service.
The case involves Byron Allen’s Entertainment Studios Networks (ESN), which claimed that Comcast’s refusal to carry ESN channels was racially motivated. Comcast tried to get the case thrown out of court before the central claim of racial bias could be ruled upon. But in November 2018, the US Court of Appeals for the 9th Circuit ruled that the case can move forward to a trial, saying that a US District Court improperly granted Comcast’s motion to dismiss ESN’s complaint.
Comcast subsequently petitioned the Supreme Court to take up the case. It told the court that ESN’s claim is based on the purported existence of “an outlandish racist plot against ‘100% African American-owned media companies’ — a contrived racial category gerrymandered to include Plaintiffs and virtually no one else.”
The Supreme Court agreed to take up Comcast’s appeal today. The court said it will consider one legal question raised in Comcast’s petition: “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?”
That’s the discrimination law that ESN accused Comcast of violating. The 9th Circuit appeals court said that ESN’s case could proceed because the plaintiffs “needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract, and not necessarily the but-for cause of that decision.” As the Legal Information Institute explains, a “but-for test” asks “but for the existence of X, would Y have occurred?”
ESN’s eight 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 Owned Media have been seeking a $20 billion judgment because of Comcast’s refusal to pay for carriage of the channels. Comedian and media mogul Byron Allen founded ESN in 1993 and is the company’s chairman and CEO.
Comcast: Court ignored other rulings
Comcast’s petition to the Supreme Court said that five other US appeals courts have found that the but-for test is the “default rule” for this type of discrimination claim. “Nothing in the text of the statute purports to displace the common-law rule requiring but-for causation,” Comcast told the Supreme Court. Comcast argued that the appeals court based its decision “not on any evidence that Congress intended to depart from the default rule of but-for causation, but instead because there was, in its view, a lack of evidence ‘explicitly suggest[ing] but-for causation.'”
Comcast previously argued that the First Amendment prohibits ESN from suing to alter Comcast’s selection of cable TV channels. Comcast argued that it has “editorial discretion regarding which networks to offer to its audience,” just like a newspaper. But this argument was rejected by the appeals court, and Comcast didn’t bother raising the First Amendment claim in its petition to the Supreme Court.
Comcast also defended its record of “supporting and fostering diverse programming, including programming from African American-owned channels, two more of which we launched earlier this year.”
“There has been no finding of discriminatory conduct by Comcast against this plaintiff because there has been none. We carry more than 100 networks geared toward diverse audiences,” Comcast also said.