Court Rejects Claim of Racism in Comcast Carriage Decisions

of Los Angeles said the court made clear in its previous dismissal of the first amended complaint (see 1606100017) plaintiffs' benchmarks showing demand for ESN channels were ambiguous and didn't rule out Comcast's argument that it had a legitimate business reason to refuse to contract with ESN. But the second amended complaint "merely provided the Court with different opaque benchmarks" and doesn't include any new facts that point to racial discrimination as the cause of Comcast's decision not to carry ESN content, Hatter said. He noted the court said in the dismissal of the first amended complaint if the second amended complaint has pleading deficiencies, it would be dismissed with prejudice, and said the deficiencies "have not been cured." "We properly pleaded a claim for racial discrimination in contracting under section 1981 of the Civil Rights Act, based on Supreme Court and 9th Circuit law," plaintiffs' counsel Skip Miller of Miller Barondess emailed us Thursday. "We are going to appeal and get this decision overturned, and the case will be reinstated. Then, we will go forward with discovery and trial." Plaintiffs are pursuing similar litigation against Charter and related complaints against the FCC (see 1601280063). In a filing (in Pacer) Monday in opposition to a Charter motion to dismiss, plaintiffs called the Charter motion "strong on invective but ... weak on the facts and the law." It said race-neutral reasons don't explain Charter's not contracting with ESN, and pointed to supposedly racially biased comments by Charter executives (see 1608120028) as not being stray, but constituting proof of discriminatory intent. In its motion (in Pacer) to dismiss in September, Charter said the first amended complaint is just the latest in ESN/NAAAOM's "cynical objective ... to force the distributors to carry the channels," but it fails to state a claim.