By Kevin Stawicki, Law360 – June 11, 2020 – A black-owned production studio whose discrimination suit against Comcast went to the U.S. Supreme Court reached a settlement with the cable company that includes a new content and distribution arrangement to resolve claims it would have carried its channels “but for” racial bias.
Entertainment Studios Networks Inc., a company owned by African American comedian Byron Allen, and Comcast announced Thursday they will withdraw the suit the high court sent back to the Ninth Circuit in March after finding that claims of racial bias in contracting must clear a high bar.
The deal, whose financial terms weren’t disclosed, extends a content agreement for The Weather Channel and various broadcast stations and includes a new distribution agreement for the network’s programming like Comedy.TV and JusticeCentral.TV.
“We’re excited to begin a new phase of partnership with Comcast and Xfinity, including the distribution of our cable channels for the first time on Xfinity platforms,” said Byron Allen, CEO of Entertainment Studios, in a statement.
Bec Heap, Comcast’s senior vice president of video and entertainment, said the company looks forward to the ongoing partnership.
“We are pleased to have reached this multifaceted agreement that continues our long relationship with The Weather Channel while bringing Xfinity customers additional content,” he said.
Entertainment Studios and the National Association of African American Owned Media LLC filed their suit in 2016 accusing major cable companies of “sensational charges of discrimination” to force them into carrying ESN channels.
The case began to take on a life of its own when a California federal judge shut down Allen’s case against Comcast in late 2016 — finding Comcast’s refusal to work with ESN could’ve been based on legitimate business reasons — a separate judge in the same California court decided to let the Charter case move forward just a few weeks later.
In 2018, the Ninth Circuit ruled that Section 1981 of the Civil Rights Act, a Reconstruction-era law that bars discrimination in contracting, doesn’t require the “but-for” test to evaluate allegations of racial bias.
But the high court in March mandated courts use the “but for” test, ordering ESN to prove discrimination was the defining factor in a contracting decision, not that it played “some role,” as the Ninth Circuit had when it cleared the bias case to move forward.
Comcast is represented by Miguel A. Estrada, Thomas G. Hungar, Douglas M. Fuchs, Jesse A. Cripps, Bradley J. Hamburger and Samuel Eckman of Gibson Dunn & Crutcher LLP.
NAAAOM and Entertainment Studios are represented by Louis R. Miller, J. Mira Hashmall and David W. Schecter of Miller Barondess LLP and Erwin Chemerinsky of the University of California, Berkeley School of Law.
The case is Comcast Corp. v. National Association of African American-Owned Media et al., case number 18-1171, in the U.S. Supreme Court.