Appeals Court Rejects Charter/Comcast Motion To Dismiss Byron Allen’s Multibillion-Dollar Civil Rights Suit – Update

Entertainment Studios

UPDATED, 5:12: PM: The 9th Circuit Court of Appeals today rejected Comcast and Charter’s motion to dismiss Byron Allen’s multibillion-dollar civil rights lawsuit against them. Read the filing here and details of the case below.

Here is a statement Allen released after the ruling:

Comcast and Charter are wrong by pursuing a legal defense that the First Amendment allows them to discriminate.

We are very pleased with the ruling by the Ninth Circuit to uphold their decisions in our favor for a second time. If Comcast and Charter want to pursue the Supreme Court, we are highly confident that the Supreme Court will affirm the Ninth Circuit and support these historic legal decisions. Unfortunately, Brian Roberts of Comcast and Tom Rutledge of Spectrum/Charter have refused my offers to sit down to discuss these very serious matters. Now, we have no choice but to enter the discovery phase to depose all of their executives and business associates, as well as receive all of their correspondence/emails and contracts, to prove our cases in front of a jury.

Every American, elected official, civil rights organization, and the Department of Justice should be offended that the largest cable companies in the U.S. pursued a legal defense that the First Amendment allowed them to discriminate against ANY American. Comcast’s and Charter’s shareholders and Board members should find this immoral, unacceptable, and be concerned that these companies will be held fully accountable because this has officially become very serious business.

We will continue to win these cases because we are on the right side of history. As the Bible has taught us, what is done in the dark will come to light.

PREVIOUSLY, November 19: A federal appeals court cleared the way for Byron Allen’s Entertainment Studios Networks to pursue civil rights suits against two of the nation’s biggest cable operators, Charter Communications and Comcast.

These lawsuits seek sizable damages  — $20 billion against Comcast and $10 billion against Charter — for alleged violations of the Civil Rights Act.

The African-American executive said he tried for years to get the cable giants to carry his networks, which were available to millions of television viewers through rival distributors including Verizon, DirecTV, AT&T, DISH. Allen said he has been repeatedly rebuffed, and alleges race played a factor.

Charter attempted to have Entertainment Studios Network’s suit dismissed on First Amendment grounds, arguing that its choice of cable channels is a form of expression.

The Court of Appeals for the 9th Circuit today supported the district court’s ruling, which found that the First Amendment doesn’t shield Charter from engaging in discriminatory conduct. The appeals court reached a similar decision in the suit against Comcast, sending both cases back to the trial court.

“These two decisions against Comcast and Charter are very significant, unprecedented, and historic,” said Allen in a statement lauding the decision. “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.”

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 issued a more pointed in its response, calling the allegations of racial animus a “desperate tactic.”

“This lawsuit is a desperate tactic that this programmer has used before with other distributors,” said Charter in a statement to Deadline. “We are disappointed with today’s decision and will vigorously defend ourselves against these claims.”

Entertainment Studios Networks — a constellation of eight channels, including Pets.TV, Comedy.TV, Recipe.TV, Justice Central.TV and its recent, high-profile acquisition, The Weather Channel — filed suits in federal district court in Los Angeles.

The Los Angeles-based media company alleged Charter’s former senior vice president of programming, Allan Singer, refused to meet with Entertainment Studios 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.” Charter CEO Tom Rutledge referred to Allen as “Boy” at an industry event, court documents allege.

“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 informing Allen it had no bandwidth or storage capacity for his networks.

The National Association of African American-Owned Media also is a party to the suits.

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