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Comcast Case at The Supreme Court

March 23, 2020

As today’s Supreme Court unanimous ruling demonstrated, this case centers on a narrow, technical point of law that will not in any way lessen the nation’s civil rights laws.

“We are pleased the Supreme Court unanimously restored certainty on the standard to bring and prove civil rights claims. The well-established framework that has protected civil rights for decades continues.  The nation’s civil rights laws have not changed with this ruling; they remain the same as before the case was filed.

We now hope that on remand the 9th Circuit will agree that the District Court properly applied the law in dismissing Mr. Allen’s case three separate times for failing to state any claim.

We are proud of our record on diversity and will not rest on this record. We will continue to look for ways to add even more innovative and diverse programming that appeals to our diverse viewership and continue our diversity and inclusion efforts across the company.”

Questions About Comcast vs ESN.

Comcast believes civil rights laws are an essential tool for protecting the rights of African-Americans and other diverse communities.  We have a strong record of supporting civil rights and diversity  including our outstanding history of supporting and fostering diverse programming from African-American owned channels.

Unfortunately, a meritless $20 billion lawsuit filed against Comcast led to a case that was argued before the U.S. Supreme Court in November 2019 and an opinion was issued March 23, 2020. 

There has been no finding of discriminatory conduct by Comcast against Entertainment Studios Networks or Byron Allen by any court, and there has been no discrimination.  The claims were roundly dismissed three times by the trial court as unsubstantiated.

Q: What is Comcast’s record on programming for African Americans and other diverse audiences?

Since merging with NBCUniversal in 2010, Comcast has launched eight new independent TV networks on our Xfinity platform owned by people of color, including four African American-owned networks.  We proudly distribute these networks to millions of our customers and invest in the creation of new content by African American creators and for African American audiences. 

Comcast carries several TV networks owned or launched by African American entrepreneurs and investors such as TV One, ASPiRE, REVOLT TV, AFRO, CLEO TV, The Impact Network, The Africa Channel, KweliTV and The Weather Channel (which was purchased last year by Byron Allen’s company).  Comcast also recently launched the Black News Channel as a subscription service.

Additionally, Comcast distributes several networks, led by African American executives and serving Black audiences, which are owned or co-owned by larger media companies, including OWN, BET,BET Her, Bounce TV, UMC (Urban Movie Channel) and Brown Sugar.

Overall, Comcast’s carriage of diverse networks has increased 76% since 2010.  We’ve also invested heavily to promote diverse content on our platforms, where more than 11,000 hours of diverse programming are now available on demand and nearly 13,000 hours are available online.

Beyond carriage on our Xfinity TV lineups, we’re also proud of our record at NBCUniversal.  NBCUniversal’s film and TV production units are also industry leaders in cultivating diversity and inclusion— both in front of and behind the camera.  The diverse representation of individuals, cultures, and stories on air is a deeply ingrained part of our values.  This commitment is reflected in our Global Talent Development & Inclusion initiative and NBCUniversal TIPS, programs that aim to identify, cultivate, and promote diverse talent on both sides of the camera.

Universal Studios has brought incredibly successful films with African American talent on both sides of the camera to audiences in recent years, including Us, Get Out, Straight Outta Compton, Girls Trip, Little, and The Photograph.  All of those films have black directors and lead talent.  Focus Features film Harriet received two Oscar nominations, including the only actor or actress of color nominated in 2020, Cynthia Erivo.

At the NAACP’s most recent Image Awards, NBCUniversal programming and films won  five awards:

  • Outstanding Actress in a Motion Picture: Lupita Nyong’o – Us – Universal Pictures
  • Outstanding Supporting Actress in a Motion Picture: Marsai Martin – Little – Universal Pictures
  • Outstanding Breakthrough Performance in a Motion Picture: Marsai Martin – Little – Universal Pictures
  • Outstanding Writing in a Comedy Series: Cord Jefferson – The Good Place “Tinker, Tailor, Demon, Spy” – NBC
  • Outstanding Writing in a Motion Picture (Film): Jordan Peele – Us – Universal Pictures
  • You can read more about these core values in our 2019 Diversity Report.

Q:  What is this dispute with Entertainment Studios Networks about? 

Several years ago, Entertainment Studios Networks, owned by Byron Allen, insisted that Comcast pay hundreds of millions of dollars to carry seven of Mr. Allen’s networks despite the fact that the lacked quality content and showed little consumer demand.  These were general interest channels not directly aimed at diverse or African American audiences (pets.tv, recipe.tv, my destination.tv, cars.tv etc). 

When Comcast (and several other distributors) declined carriage, Mr. Allen decided to make standard program carriage disagreement into a civil rights claim.  Instead of pursuing carriage through the market or the FCC process, he filed a $20 billion discrimination suit in 2015 against Comcast and leading civil rights organizations and figures – the NAACP, the National Urban League, Rev. Al Sharpton, and the National Action Network – who had helped advise Comcast on launching several African American owned and focused networks.  The claims against the civil rights organizations were eventually dropped.

ESN chose not to participate in the process that led to four other networks with African American ownership being carried on Xfinity.

Q:  Why did Mr. Allen using the civil rights laws to allege racial discrimination?

The facts show Comcast’s reasons for declining carriage were purely commercial - its customers would have to pay hundreds of millions of dollars for programming that didn’t have proven demand.  The decision had nothing to do with race.

Comcast believes that racial animus has no place in American life, and our record shows an unmistakably strong commitment to diversity and inclusivity.  As a company, we have always supported strong enforcement of civil rights laws.

Q. What have the courts previously said about Mr. Allen’s claims?

Mr. Allen brought his suit in federal district court where it was dismissed three times by Judge Terry Hatter, a respected African American jurist appointed by President Jimmy Carter.  Judge Hatter ruled that Mr. Allen failed to plausibly allege that race played any role in Comcast’s decision not to contract with ESN, despite having been provided three opportunities to do so. 

Mr. Allen appealed the dismissal to the Ninth Circuit Court of Appeals in California. 

Q. What happened on appeal?

Without ruling on whether or not the case has any merit, the Ninth Circuit Court of Appeals ruled that the lower federal district court should reconsider the allegations in the case using a different legal standard than has historically been used in every other circuit that has examined cases of this type.  In particular, the Ninth Circuit ruled that the law in question – Section 1981 of the 1866 Civil Rights Act which forbids racial discrimination in the making of contracts – should be interpreted differently than courts have traditionally interpreted the law. 

Q. What does that “different” standard mean.

We did not seek and don’t support any weakening of existing civil rights law.

The appeal of this case to the U.S. Supreme Court tested only the question of whether the law should be read in accordance with the traditional standard or whether it should be interpreted as the Ninth Circuit did.  

The Supreme Court has now instructed to 9th Circuit to use the well-established framework which has been in place for decades and apply it to this case.

Q. Has Mr. Allen launched similar lawsuits against other TV television distributors?

Mr. Allen filed similar multi-billion-dollar suits against other TV distributors that declined to carry his channels, often timing his lawsuits to when the companies were engaged in merger negotiations and would be most likely to settle the suits quickly.  Comcast declined to settle this meritless lawsuit, as did others, including Charter Communications who was sued for $10 billion by Mr. Allen.  Their case is also on appeal.

Q: Why was the Department of Justice involved in this case?

After meeting with both parties to this case (at the Department of Justice’s request), the Justice Department decided to enter the case entirely on its own, as it often does on cases that have broad implications for federal policymaking.  This was exclusively a Justice Department decision consistent with historic practice in both Democratic and Republican led administrations.

Q: So what happens next?

With the narrow ruling issued by the U.S. Supreme Court, the well-established framework that has protected civil rights for decades continues.  The case will now return for review under that standard framework at the 9th Circuit.  We believe with it properly applied, the ruling by the District Court dismissing the case three times will prevail.

Read more about Comcast’s steadfast commitment to promoting diversity and upholding civil rights:

 

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