by Lori Lakin Hutcherson (@lakinhutcherson)
According to PRNewswire, Byron Allen’s Entertainment Studios (ES) and the National Association of African-American Owned Media (NAAAOM) – plaintiffs in federal lawsuits filed against Comcast and Charter Communications – have announced two decisions issued by the United States Court of Appeals for the Ninth Circuit that will allow them to go to trial against two of the largest cable television carriers in the country.
In the $20 billion lawsuit against Comcast and the $10 billion suit against Charter, the carriers are accused of violating the Civil Rights Act of 1866, which prohibits racial discrimination in contracting. For years, Entertainment Studios has been requesting that Comcast and Charter carry its networks, which are distributed by Comcast and Charter’s competitors, including Verizon, DirecTV, AT&T, DISH, and many other carriers, to millions of people around the country.
Both Comcast and Charter, however, refused all of Allen’s requests for network carriage. Subsequently, Allen filed lawsuits in federal district court in Los Angeles.
In two historically significant decisions, the United States Court of Appeals for the Ninth Circuit rejected Comcast and Charter’s attempts to dismiss the cases before trial. The Court upheld Entertainment Studios’ Section 1981 claims against both Comcast and Charter; and instead ruled that both cases could proceed in the trial courts to discovery and trial.
“These two decisions against Comcast and Charter are very significant, unprecedented, and historic,” said Byron Allen, Founder/Chairman/CEO of Entertainment Studios. “The lack of true economic inclusion for African Americans will end with me, and these rulings show that I am unwavering in my commitment to achieving this long overdue goal.”
“The Court’s rulings overwhelmingly reflect the Ninth Circuit’s rejection of the Defendants’ positions and arguments,” said Mark DeVitre, President of plaintiff, NAAAOM. “I look forward to quickly moving into discovery where we expect much more evidence to surface.”
“These decisions are hugely important in terms of opening the courts to African American-owned media. The Court paved the way to our eventual success at trial by ensuring that the proper ‘mixed motive’ standard for our claims – a lower standard of proof than the ‘but for’ standard argued by Comcast and Charter – applies,” said Entertainment Studios’ attorney, Skip Miller, partner in Miller Barondess. “Additionally, the Court dismissed Charter’s and Comcast’s attempts to use the First Amendment as a shield for their alleged discrimination. I very much look forward to trying these cases. And I give Mr. Allen tremendous credit for having the will and the constitution to invest the capital and resources to pursue them relentlessly.”
According to Deadline.com, Charter and Comcast issued separate statements, expressing disappointment with the ruling. “We respectfully disagree with the Court’s decision, and are reviewing the decision and considering our options,” Comcast said in a statement.
Charter was more pointed in its response. “This lawsuit is a desperate tactic that this programmer has used before with other distributors,” Charter said in a statement to Deadline. “We are disappointed with today’s decision and will vigorously defend ourselves against these claims.”
The Los Angeles-based Entertainment Studios alleged Charter’s former senior vice president of programming, Allan Singer, refused to meet with its representatives. Singer rescheduled and postponed meetings and offered “disingenuous” explanations for refusing to carry it programming, according to court documents.
Singer said bandwidth limitations and operational demands precluded carriage of ENT’s cable networks, while reaching carriage agreements with “lesser-known, white-owned channels” such as the rural focused RFD-TV and the horror channel Chiller.
Court documents cite evidence of racial bias, including one instance in which Singer allegedly approached an African-American protest group outside Charter’s headquarters and told them “to get off welfare.” Additionally, in court documents Charter CEO Tom Rutledge is alleged to have referred to Allen as “Boy” at an industry event.
“Plaintiffs suggest that these incidents are illustrative of Charter’s institutional racism,” the Appeals Court writes, in summarizing the case’s history. “Noting also that the cable operator had historically refused to carry African American-owned channels and, prior to its merger with Time Warner Cable, had a board of directors composed only of white men.”
Entertainment Studios ascribed similar discriminatory motives on the part of Comcast, which offered carriage deals to such networks as Inspirational Network, Fit TV, Outdoor Channel and Baby First Americas while telling Allen it had no bandwidth or storage capacity for his networks.
Allen founded Entertainment Studios in 1993 and owns eight 24-hour HD television networks serving nearly 160 million subscribers: THE WEATHER CHANNEL, PETS.TV, COMEDY.TV, RECIPE.TV, CARS.TV, ES.TV, MYDESTINATION.TV, and JUSTICE CENTRAL.TV. The company also produces, distributes, and sells advertising for 41 television programs, making it one of the largest independent producers/distributors of first-run syndicated television programming for broadcast television stations.
Entertainment Studios Motion Pictures is a full-service, theatrical motion picture distribution company specializing in wide release commercial content. ESMP released 2017’s highest-grossing independent movie, the shark thriller 47 METERS DOWN, which grossed over $44.3 million. In 2018, ESMP also released the critically-acclaimed and commercially successful Western HOSTILES and the historic mystery-thriller CHAPPAQUIDDICK.
Upcoming releases include the Keanu Reeves sci-fi thriller REPLICAS, the John Krasinski/Emily Blunt-starring animated feature ANIMAL CRACKERS, and Joe Carnahan’s Mel Gibson/Naomi Watts starring action-thriller BOSS LEVEL.
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