The Ninth Circuit Court of Appeals dealt a double win to Byron Allen and his Entertainment Studios Networks (NES).
In addition to upholding a lower court decision that Allen, joined by the National Association of African American-Owned Media, had at least a plausible case of discrimination against Charter, the court also reversed the decision by a different judge in the same lower court dismissing a similar suit against Comcast.
That means both suits can go to trial on the facts.
Both suits claimed that the cable operators' decisions not to strike a deal for carriage of NES networks was racially motivated.
In both the Comcast and Charter decisions, the appeals court did not find that the decisions were racially motivated, or even weigh in on the facts.
It simply concluded that the district court in the Comcast case had erred in dismissing the suit because racial bias was not the only plausible explanation and the Charter court had been correct in saying Allen and company only had to show that bias was a plausible explanation.
As with the Charter case, the court said if the allegations of bias are correct, discriminatory intent played some part, which was enough to make it illegal per the law against racial bias in contracting.
“These two decisions against Comcast and Charter are very significant, unprecedented, and historic,” said Allen. “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.”
"These decisions are hugely important in terms of opening the courts to African American-owned media," said Entertainment Studios’ attorney, Skip Miller, partner in Miller Barondess. "The Court paved the way to our eventual success at trial by ensuring that the proper ‘mixed motive’ standard for our claims – a lower standard of proof than the ‘but for’ standard argued by Comcast and Charter – applies. Additionally, the Court dismissed Charter’s and Comcast’s attempts to use the First Amendment as a shield for their alleged discrimination. I very much look forward to trying these cases."
“We respectfully disagree with the Court’s decision; we are reviewing it and considering our options," said Comcast in a statement.