In the 26 years that he’s been building his media empire, comedian and businessman Byron Allen has seen firsthand the panoply of ways that African-American and non-white media entrepreneurs have been shut out of the game by their powerful White counterparts and other gatekeepers.
Allen, 58, a respected global business leader, sits atop a burgeoning media giant, Entertainment Studios, which includes nine digital cable networks, 43 syndicated TV shows, 21 regional sports networks, The Grio, the Weather Channel – which he bought for $300 million – and other media properties said to value about $1 billion.
Despite his successes, Allen, in his lawsuit, argues that Comcast refused to carry any of his company’s channels because of his race. He filed suit in 2015 after being approached by Obama administration officials which asked if Comcast and Charter Communications were good corporate citizens.
“I didn’t just tell them no, I said hell no,” Allen has recounted in numerous interviews. “They said how do you figure? Well, the industry spends $70 billion in licensing cable networks. $70 billion and African American-owned media get zero. And that’s not fair. They said we hear that a lot. They asked what I’m willing to do. They said people were afraid to speak up because of repercussions and I said I’ll speak up and do it in a way that it wouldn’t be a problem again. So, I filed a lawsuit.”
Allen sued Comcast in federal court for $20 billion and Charter Communications for $10 billion. Judges on the Ninth Circuit Court of Appeals sided with him twice; that’s when Comcast petitioned to Supreme Court. Justices will hear the case on Nov. 13.
All he seeks, Allen has said repeatedly, is economic inclusion, a chance to sit at the table and have an influential in determining the narrative and controlling the images that Black people see on their TV screens, tablets, cell phones or other devices.
“Comcast, which makes billions of dollars annually from African-American subscribers, has taken the position that a plaintiff must show that racial discrimination was the only, 100 percent “but for” reason not to do business with African Americans,” Allen said in an August 20 guest column in Deadline. “In other words, Comcast argues that an African American-owned business must show not only that the defendant considered race (which the statute forbids), but that the professed, hypothetical race-neutral reasons that could have motivated the defendant are false.”
He said he is concerned that if the Supreme Court favors Comcast, the impact will make it much harder for him and 100 million other Americans to secure economic inclusion now or in the future.
Allen, chairman, founder and CEO of Entertainment Studios notes in his lawsuit the importance of Section 1981 of the Act, which says that all people should have “the same right … to make and enforce contracts … as is enjoyed by white citizens.”
He has expressed confidence that he’ll win in the Supreme Court but the decision by the Trump administration’s Department of Justice to file an amicus (friend of the court) brief in support of Comcast and their reasoning for doing so has raised the stakes considerably and ratcheted up concerns by civil rights organizations, legal scholars and other interested parties of the potential harm to African Americans and others who have been protected by this law for the past 153 years.
“This is an extremely consequential case. This law was the first action the nation took to give Black people access to economic power,” said political commentator and author Dr. Avis Jones-DeWeever. “A White supremacist organization and the DOJ – which has inserted itself into this case – wrote a brief that would kill our ability to fight discrimination.”
“It’s a big deal. The extent to which we can put pressure on Comcast, we must do so, so they agree to settle the case.”
Cori Harvey, a Florida-based attorney who specializes in business law, economics and entrepreneurship, said the case could be consequential.
“This could represent a significant lowering of the barrier to justice,” Harvey told Trice Edney News Wire. “It’s a fundamental question of who has access to legal recourse. The defendant has information needed such as if anything happened in emails, correspondence, etc. The plaintiff is in the dark. There’s power in darkness in shielding the defendant.”
“This represents a redistribution of power from the plaintiff to the defendant. He’ll be able to get access to emails, correspondence … this forces them (Comcast) to deliver into the public sphere information previously hidden. The Ninth Circuit gave Mr. Allen a shot. It forces Comcast to open secret chambers. That doesn’t happen too often. The ability to shield and hide equals power. This leaves Comcast exposed and vulnerable.”
Comcast officials have dismissed Mr. Allen’s claims, saying race had nothing to do with rejecting Allen’s channels, noting that they had low ratings and were of low quality. Comcast spokesperson Sena Fitzmaurice responding to a reporter’s query said: “This case arises from a frivolous discrimination claim that cannot detract from Comcast’s strong civil rights and diversity record or our outstanding record of supporting and fostering diverse programming from African American-owned channels. We have been forced to appeal this decision to defend against a meritless $20 billion claim but have kept our argument narrowly focused. We are not seeking to roll back the civil rights laws – all we are asking is that the court apply Section 1981 in our case the same way it has been interpreted for decades across the country.”
A slew of civil rights organizations, the National Association of Black Journalists, presidential candidates Sens. Kamala Harris and Cory Booker, plus eight of the 55 members of the Congressional Black Caucus, have signed on as friends of the court.
Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said on Twitter “Section 1981 of the Civil Rights Act of 1866 is literally one of the nation’s oldest civil rights statutes. We are proud to stand with @NAACP@NAACP_LDF & @civilrightsorg in calling on the #SCOTUS to reject Comcast’s attempt to cut the heart of this historic law. @LawyersComm.”
Clarke described the case elsewhere as “the most important civil rights case to be heard by the Supreme Court in term. A negative ruling stands to all but shut the courthouse door on a vast number of victims of discrimination all across the country.”
Los Angeles Urban League President and CEO Michael Lawson said what Comcast is doing is a clear violation of the 1866 act which prohibits racial discrimination in business dealings.
“We are appalled by your decision to challenge and destroy the federal civil rights statute of 1866 in the U.S. Supreme Court and do so in partnership with the Trump Administration’s Department of Justice,” Lawson said in a recent letter sent to Comcast chairman Brian Roberts and senior executive vice president David Cohen. “If you choose to continue your attempt to eviscerate this civil rights law, we will have no choice but to call for a boycott of everything Comcast, effective immediately.”