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In February, as Comcast was in the midst of attempting to get regulatory approval of its now-aborted acquisition of Time Warner Cable, the media giant was hit with a $20 billion racial discrimination lawsuit that alleged it discriminated against black-owned media and that various African-American advocacy groups and MSNBC host Al Sharpton had been bought off.
“Their theory is as preposterous as it is offensive,” states a memorandum filed on Friday in support of dismissing the lawsuit.
The defendants — Comcast, Sharpton, the NAACP and former FCC commissioner Meredith Attwell Baker — have submitted a retort that’s above and beyond the usual poison language in a motion to dismiss. Represented by noted litigator Miguel Estrada, the defendants hold virtually nothing back against the National Association of African American Owned Media, which along with Byron Allen‘s Entertainment Studios Networks, asserted in its lawsuit that Comcast has a “Jim Crow” process with respect to licensing black-owned channels.
“Unsurprisingly, the Complaint is completely devoid of factual allegations that could remotely support Plaintiffs’ outlandish and defamatory claims under the applicable pleading standard,” states the memo. “Indeed, the allegations of the Complaint — including its demand of twenty billion dollars — are entirely fantastical and do not remotely resemble the factually supported grievance of any actual victim of discrimination.”
Comcast’s lawyer points out that the company does do business with African-Americans — as the plaintiffs concede — but that the lawsuit has “contrived” a class of “100% African American-owned” companies that have received less than $3 million in licensing money.
“African Americans who do not meet Plaintiffs’ peculiar notions of racial identity are offensively labeled as ‘token fronts’ and ‘window dressing,'” continues the memo.
The defendants ask the judge to find the lawsuit as falling short in various ways — e.g., that a California court lacks personal jurisdiction over Sharpton as he lacks contact there, that Baker is immune from claims in her capacity as a government official — but the bulk of the arguments are deployed to address the supposed conspiracy that happened after Comcast bought NBCUniversal in 2010 and entered into memoranda of understanding with groups like the NAACP and the National Action Network.
The lawsuit says Comcast’s commitment to voluntary diversity agreements is a “sham,” and that Comcast made large cash donations to Sharpton and others to gather support from them.
Comcast has a different read: It says the memoranda of understanding show Comcast’s commitment to increase diversity by offering additional opportunities for African-American content providers even if bandwidth constraints mean it can’t allow every carriage request.
“It is shameful that Plaintiffs claim to champion racial justice for African Americans even as they defame respected civil rights organizations for securing such additional opportunities for minority communities,” states the retort. “And it would be a travesty if Defendants’ efforts to provide those additional opportunities to African Americans allowed this discrimination suit to survive dismissal. The reality is that this is an ordinary business grievance masquerading as a racial discrimination claim. … The Complaint nowhere contains allegations setting forth facts that would negate the most plausible interpretation of these facts, to wit, that Comcast decided not to offer carriage to ESN’s channels because it found no good business reason to do so.”
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