WASHINGTON — Comedian and media mogul Byron Allen wants viewers to watch channels produced by his company — from one that airs “Judge Judy” type shows all day to ones devoted to comedy, cars, food and pets. But while many distributors carry Allen’s channels, two cable giants refused.
Allen says the reason is that he is black and therefore being sued for racial discrimination. An appeals court let its lawsuit go ahead, but now the Supreme Court will weigh in and could inflict a setback.
Judges will hear arguments Nov. 13 in a $20 billion lawsuit Allen has filed against Comcast, with the outcome also affecting a $10 billion case he filed against Charter Communications.
If Allen wins, black-owned businesses will have an easier time winning lawsuits alleging discrimination in contracting. If Comcast wins, the bar will be high to bring in and succeed with similar costumes.
The question for the judges is whether Allen needs to show that race was only a factor in Comcast’s decision not to offer him a contract or if it was the only factor.
Allen said his case is about eliminating institutionalized racism. Pursuing that claim, he said, “is one of the greatest things I’ve ever done in my life” and “one of the things I’m most proud of.”
But Comcast says its decision not to carry Allen’s channels has nothing to do with race. Allen’s content is “not particularly original” and “not of particularly high quality,” said Comcast attorney Lynn Charytan, and Comcast simply made the editorial decision not to carry it.
A lower court dismissed Allen’s lawsuit three times in an appeals court that Comcast wrongly let him go ahead with. The Trump administration has sided with Comcast.
Allen, 58, began his road to media mogul as a child when his family moved from Detroit to Los Angeles. His mother got a job at NBC, which meant Allen was hanging around the studios. It would see Johnny Carson recording “The Tonight Show” and comedian Flip Wilson rehearsing for his variety show.
As a teenager, Allen began doing comedy himself, and he first appeared on the “Tonight Show” when he was 18. This led to a job as a host for the forerunner of reality television “Real People” while a student at the University of Southern California. Ultimately, Allen’s interests turned to the television business, and in 1993 he founded his own media company.
Today, its Los Angeles-based Entertainment Studios has 10 television networks, including Cars.tv, Comedy.tv, Pets.tv, Recipe.tv and JusticeCentral.tv. Last year he bought The Weather Channel. He also has a film distribution company.
But Comcast and Charter Communications, the two largest cable companies in the country, stopped carrying Allen’s channels. Other distributors, including Verizon FIOS, carry the channels. The same goes for AT&T and DirecTV, now merged, after Allen sued them and they settled down.
Comcast called Allen’s complaint a “scam”, saying it and others filed by Allen were intended to attract media attention and timed to be exploited when the companies were working on mergers. Comcast noted that Allen initially sued Comcast but also civil rights groups, including the NAACP and the National Urban League, claiming they conspired to discriminate against him. Comcast called the allegations absurd.
“This is really a trivial car dispute that was dressed up by Mr. Allen under the guise of racial discrimination for his own ends,” said Comcast attorney Miguel Estrada.
But Skip Miller, one of Allen’s lawyers, said Allen’s channels were “very good channels” and “popular programming in many areas”. Miller said he saw no legitimate reason why Comcast and Charter would refuse to carry them.
“There’s no reason, no reason in our opinion, other than he’s black,” Miller said.
Allen sued Comcast in 2015, citing Section 1981 of the Civil Rights Act of 1866. Enacted a year after the Civil War ended, the law prohibits racial discrimination, saying everyone should have “the same right…to enter into and enforce contracts…as that enjoyed by white citizens”.
Allen and his attorneys argue that to sue under the law and win, he only needs to show that his race played a role in Comcast’s decision not to offer him a contract. Comcast says Allen must demonstrate that he didn’t get a contract solely because of his race.
No matter what the justices decide, Allen is prepared to make either argument and have the case proceed after the Supreme Court’s decision, his attorney said. Last week, he won support from the Los Angeles Urban League, which threatened Comcast with a boycott and other action if it didn’t drop the case.
“This case is bigger than me,” Allen said.