WASHINGTON — The Supreme Court on Monday agreed to decide whether Comcast, the nation’s largest cable company, may be sued for race discrimination over its decision not to carry programming from an entertainment company owned by Byron Allen, an African-American entrepreneur.
A federal appeals court in California ruled that the case could move forward under a Reconstruction-era federal law that gives “all persons” the same right to “make and enforce contracts” as “is enjoyed by white citizens.”
A unanimous three-judge panel of the court, the United States Court of Appeals for the Ninth Circuit, said that Mr. Allen’s company, Entertainment Studios Networks, had made accusations that were serious enough to avoid dismissal at an early stage of the litigation.
Entertainment Studios said Comcast had expressed interest in its programming but never closed a deal, reversed its position on what Entertainment Studios needed to do to secure carriage, carried every network that its main competitors did except Entertainment Studios and offered space to “lesser known, white owned” networks even as it said it lacked capacity to carry Entertainment Studios.
Comcast, in urging the Supreme Court to hear its appeal, said its decision not to make a deal with Mr. Allen’s company was prompted by ordinary business calculations, “including bandwidth constraints, a preference for sports and news programming” and insufficient demand for Entertainment Studios’s offerings.
Comcast’s stated reasons were pretexts, Entertainment Studios said in its own brief. “For example,” the brief said, “Comcast claimed that it did not have sufficient bandwidth to carry Entertainment Studios’s channels, but Comcast launched more than 80 white-owned channels at the same time.”
The race-discrimination suit, Comcast’s brief said, was based on claims of “an outlandish racist conspiracy.”
“Plaintiffs contend that Comcast did not base its decision on legitimate business considerations, but on an outlandish racist plot against ‘100 percent African-American-owned media companies’ — a contrived racial category gerrymandered to include plaintiffs and virtually no one else — that involved, among others, the United States government, the country’s oldest and most respected civil rights organizations (including the N.A.A.C.P. and the National Urban League), prominent African-Americans (including Earvin ‘Magic’ Johnson, Sean ‘Diddy’ Combs and Al Sharpton), and ‘white-owned media,’” Comcast’s brief said.
Entertainment Studios said it was not pursuing those claims. “Like it did in the Ninth Circuit below, Comcast is still attacking a conspiracy claim that respondents dropped over three years ago,” Entertainment Studios’s brief said. “Respondents are pursuing a direct claim against Comcast. Comcast cannot avoid this lawsuit by ignoring the allegations against it.”
The legal question for the justices in the case, Comcast Corporation v. National Association of African American-Owned Media, No. 18-1171, is whether Entertainment Studios must assert and prove that race was the key reason for Comcast’s decision or one factor among many.
The appeals court said the second kind of evidence would suffice.
“Plaintiffs needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract,” a unanimous three-judge panel wrote, “and not necessarily the but-for cause of that decision.”
In a statement, Comcast said the case concerned “a technical point of law” and that it was proud of its efforts to promote diversity.
“Comcast has an outstanding record of supporting and fostering diverse programming, including programming from African-American owned channels, two more of which we launched earlier this year,” the company’s statement said. “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.”
Mr. Allen issued a statement disputing some of the points Comcast made.
“This case is not about African-American-themed programming, but is about African-American ownership of networks,” he said. “Unfortunately, the networks Comcast refers to as ‘African-American-owned’ are not wholly owned by African-Americans, and did not get any carriage until I stood up and spoke out about this discrimination and economic exclusion.”
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