Oral Argument in Comcast Programming Discrimination Appeal Sees Both Sides Challenged
A 9th U.S. Circuit Court of Appeals panel challenged counsel for Comcast and Entertainment Studios Networks/National Association of African American Owned Media in oral argument Tuesday (see here, docket 16-56479). ESN and NAAAOM are appealing a lower court's 2016 dismissal…
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of a racial discrimination claim against Comcast (see 1704170017). Judge Milan Smith is "struggling" with the difficulties the lower court had in finding the ESN claims plausible. He said there's a seeming lack of proof that white-owned companies were treated differently by Comcast in its programming decisions. ESN outside counsel Erwin Chemerinsky said Comcast not contracting with almost any black-owned programmers is evidence of a plausible claim. Judges also questioned Comcast outside counsel Miguel Estrada of Gibson Dunn about what ESN would have to show to have a valid pleading. Estrada said ESN is "finding shreds that are arguably actual in a complaint that is brimming with conspiracy theory." He said the complaint is implausible because it affirms Comcast gave carriage to other majority black-owned networks Aspire and Revolt and Africa Channel and ESN arguments involve a contrived category of 100 percent African-American owned.