By Falen O. Cox, Esq., Founding Partner, Cox, Rodman, and Middleton

The case, Comcast Corp. v. National Association of African American Owned Media and Entertainment Studios Networks, is, on the surface, a case about procedural issues. Beneath the surface it is about the ease or complexity a plaintiff may face when raising claims of racial discrimination under 42 US 1981.

Even though it has reached the United States Supreme Court, procedurally, the lawsuit is in the beginning stages, and the Supreme Court will be deciding whether the plaintiffs (Byron Allen company) may move forward in the legal process to have its “day in court” before a jury, or whether its suit should be dismissed before it reaches a jury or the investigatory process that we lawyers call “discovery.”

During the discovery process each side has an opportunity to ask questions of the other and compel answers, to request documents, and to question potential witnesses. This process is “investigative” and allows the plaintiff to gather the information necessary to present his or her case to a jury, and the defendant the ability to form any defenses he or she may have.

For example, if a plaintiff sues a defendant for rear-ending her at a red light, during the discovery process the plaintiff can ask the defendant whether he was texting at the time of the accident — if he was, the plaintiff can use that to show that the defendant was negligent.

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On the other hand, if the plaintiff claims that she has back pain as a result of the collision, the defendant can ask if she has ever had back problems before. If she had been seeing a doctor about back pain prior to the collision, the defendant may be able to show that her back pain was not a result of the collision. However, if the court dismisses a case before the discovery process begins, the case is over, and these “discoveries” are never made.

In short, whether a case makes it to the discovery process, depends on whether the case is allowed to move forward after the plaintiff files a complaint. As common practice, defendants usually file a motion for summary judgement, asking the court to dismiss the plaintiff’s complaint prior to discovery and prior to any decision on the merits of the plaintiff’s claim along with its answer to the plaintiff’s complaint. It is a procedural tactic to prevent the lawsuit from moving further than the written complaint.

There are valid reasons for motions for summary judgement (dismissal). It is designed to make sure that frivolous claims do not overwhelm the court system and to ensure that the court’s limited resources and time are spent on legitimate claims. Additionally, defending a lawsuit can be time consuming and extremely costly for a defendant. A defendant should not have to spend thousands (or in this case probably hundreds of thousands) on legal fees and lost productivity to defend a frivolous claim. The motion for summary judgement acts as a gatekeeper to the legal system.

In this case, the National Association of African-American Owned Media and Entertainment Studios Networks, Inc. (the “Plaintiffs”) filed suit against Comcast, Time-Warner Cable, the former FCC Commissioner, the NAACP, the National Urban League, the National Action Network, and Reverend Al Sharpton alleging that Comcast and the others conspired together to deny it a contract to carry its network/television shows because it is a 100% black-owned company. (Editor’s note: NAN, NUL, and NAACP each are no longer party to the lawsuit).

However, the Court dismissed the suits against everyone except Comcast and Time-Warner for lack of personal jurisdiction, and the plaintiffs abandoned its argument of conspiracy.

At issue now, and before the United States Supreme Court, is whether Comcast, in refusing to contract with the Plaintiff, is in violation of 42 USC 1981. More specifically, whether a plaintiff who alleges discrimination in violation of 42 USC 1981 must allege that racial discrimination was the but for cause of the refusal to contract: “But for the plaintiff’s race, Comcast would have contracted with the plaintiff,” or whether the plaintiff may allege that race was a motivating factor in Comcast’s refusal to contract.

Even though there may have been other reasons that Comcast did not contract with Plaintiffs, the fact that it is a black company was a motivating factor. For context, 42 USC 1981 was enacted in 1886 during Reconstruction (after slavery) and reads:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

The District Court, which acts as a trial court in the federal court system, dismissed the Plaintiff’s complaint three times for failure to state a claim for which relief can be granted. It held that the Plaintiff’s complaint failed to show that, but for racial discrimination, Comcast would have contracted with Plaintiff, and that Plaintiff failed to allege that other companies that Comcast did in fact contract with were similarly situated to Plaintiff.

However, Plaintiff appealed the District Court’s decision to the 9th Circuit Court of Appeals which reversed the District Court’s rulings and held that Plaintiff could move forward with its lawsuit. It denied Comcast’s motion for rehearing. Comcast filed a petition for certiorari in the United States Supreme Court, which was granted.

Comcast argues that Plaintiff’s lawsuit should be dismissed because it alleges that Plaintiff’s complaint was insufficient and that it did not allege “but for” causation or refute what Comcast alleges are legitimate business considerations for its refusal to contract with Plaintiff.

Comcast argues that it did not extend a contract to Plaintiff’s as a result of legitimate business practices, e.g.: that it did not have the bandwidth necessary, that it had a preference for sports and news programming, and that there was a lack of demand for Plaintiff’s programming. As a result, Comcast argues that Plaintiffs have failed to show that Comcast would have contracted with them but for Plaintiff’s race.

Comcast points out that it had, within the same time period, considered contracting with ESN; that it had in fact contracted with “Aspire” led by Earvin “Magic” Johnson and Revolt TV led by Sean “Diddy” Combs, which it claims has majority or substantial African-American ownership. Additionally, Comcast alleges that it has carried two 100% black-owned networks, African Channel and Black Family Channel.

Lastly, Comcast argues that Plaintiff’s case should be dismissed because Plaintiff has failed to show that it was similarly situated to the white-owned channels that it did contract with. The reasoning there is that apples must be compared to apples. For instance, if there is a white-owned channel with tremendous interest that is within Comcast’s preferred programming, then the fact that Comcast contracted with that network as opposed to Plaintiff’s — which Comcast alleges does not have interest and is not its preferred programing —is not a result of race discrimination, but instead is Comcast simply choosing the best content for its company.

On the other hand, Plaintiffs allege that it has attempted to contract with Comcast for approximately 8 years and has repeatedly been passed over for white-owned companies despite Comcast’s assurances that its channels were “good enough” and that it was on a “short list.” Additionally, Plaintiff offered its Justice.TV network to Comcast for free and without licensing fees. Comcast declined. As it relates to the lack of bandwidth that Comcast claims is a reason for its refusal to contract, Plaintiff notes that Comcast carries every channel (more than 500) that its competitors carry, except for Plaintiff’s.

Plaintiff’s channels are currently carried on Verizon, FIOS, AT&T, U-Verse, Direct TV, Sudden Link, RCN, Century Link, and many others. Additionally, despite its refusal to contract with Plaintiff as a result of its alleged bandwidth scarcity, Comcast has launched more than 80 lesser known white-owned channels. Plaintiff alleges that during the 8 years that it attempted to contract with Comcast, Comcast directed it to gain field support within the Comcast corporation, once that support had been gained, Plaintiffs were told that field support was no longer a factor.

Next, Plaintiffs were told that it needed Division Support only to be told by the Divisions that it deferred to corporate.

Plaintiffs allege that it spent hundreds of thousands of dollars in marketing and travel to gather support that was deemed necessary, but once achieved, was no longer sufficient.

Most explicit, is Plaintiff’s claim that a Comcast Executive stated, “We’re not trying to create anymore Bob Johnsons.” Bob Johnson is the founder and former owner of B.E.T. which was sold to Viacom for a reported $3 billion.

Plaintiffs allege that Comcast’s refusal to contract, in addition to being motivated by race alone, is also motivated by its desire not to have its networks (and the white-owned networks that it carries) be required to compete with Plaintiff’s networks, which are black-owned.

The United States Supreme Court’s decision will determine whether a plaintiff who alleges race discrimination pursuant to 42 USC 1981 may have his or her day in court if he or she can show that racial discrimination was a factor, even among others, in a defendant’s refusal to do business. If so, the plaintiff will be able to move forward through the legal process — and most importantly, through the discovery process — to investigate his or her claim and obtain the evidence necessary (if it exists) to put the question before a jury.

On the other hand, if the Court rules instead that a plaintiff must allege that, but for racial discrimination, the defendant would have contracted with him or her, a plaintiff looking to have his or her day in court will need much stronger evidence, and will be required to disprove any other reason given by the defendant for its refusal to contract without the benefit of discovery.

For example, if a defendant denies discrimination and instead says that it refused to contract because of limited resources without the benefit of discovery, the plaintiff may never learn that the defendant doubled its spending with white-owned companies within that same time period. To the contrary, this is information that the plaintiff might learn through the discovery process if his or her case is allowed to proceed.

This case, like so many other recent cases, will test the Supreme Court’s interpretation of the strength of civil rights law.

Falen O. Cox is the founding partner and director of operations at the Savannah, Ga.-based law firm of Cox, Rodman and Middleton.

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