SB American News Week Ending 11/27

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Vol. 50 No. 31

November 21, 2019 - November 27, 2019

Power concedes nothing without a demand. It never did and it never will. Find out just what people will submit to and you have found out the exact amount of injustice and wrong which will be imposed upon them and these will continue till they have resisted either with words or blows or words or with both. The limits of tyrants are prescribed by the endurance of those whom they suppress. —Fredrick Douglass (1849)

Byron Allen, Comcast to Square Off in Supreme Court on Racial Discrimination Case By CYNTHIA LITTLETON Business Editor Byron Allen’s racial discrimination case against Comcast Corp. on Wednesday heads to the Supreme Court, where justices will consider Comcast’s argument that the case should hinge on two words: “but for.” Allen filed a $20 billion lawsuit against Comcast in February 2015, arguing that the nation’s largest cable operator was discriminating against his company, Entertainment Studios, by refusing to carry its seven lifestyle cable channels. Comcast maintained the decision was made strictly on business grounds because of the lack of audience demand for Allen’s channels. Allen asserts that Comcast’s actions over a decade violated a post-Civil War statute designed to ensure that African Americans had the same rights to “make and enforce contracts” as white Americans. The lawsuit further accuses the NAACP and Rev. Al Sharpton’s National Action Network and other civil rights figures of conspiring with Comcast to “whitewash Comcast’s discriminatory business practices” by supporting the company’s 2011 acquisition of NBCUniversal, among other allegations. Comcast has vehemently denied that race played a part in its decision making. Allen’s suit details allegations that Comcast strung Entertainment Studios along with suggestions of how to make the channels more likely to secure carriage, only to reverse course later. The original complaint also cites allegations that Comcast executives made racially charged statements during the course of Allen’s dealings with the company. Allen’s case was dismissed by three lower courts. In 2018, the Ninth Circuit Court of Appeals reversed that decision, ruling that it only needed to demonstrate that race was a factor in Comcast’s decision-making on Entertainment Studios’ channels, not the sole reason for declining to carry the channels. Comcast’s petition to the Supreme Court focuses on the precedent involving section 1981 of the Civil Rights Act of 1866, which bars discrimination on the basis of race, color and ethnicity when making and enforcing contracts. In the past, Comcast argues, the courts have evaluated Section 1981 claims on the

Email: sbamericannews@gmail.com Clifton Harris Editor in Chief Publisher of The San Bernardino AMERICAN News

Ahead of Supreme Court Oral Arguments, Rep. Waters Leads House in Affirming the Civil Rights Act of 1866 & its Section 1981 NNPA NEWSWIRE — “Since their inception, the Civil Rights Act of 1866 and Section 1981 of the Act have made it unlawful for any citizen to be denied equal rights and equitable treatment on the basis of race; protected people of color from discrimination when forming business contracts; and provided a legal pathway for those who have been racially discriminated against to seek justice.” By Congresswoman Maxine Waters

(Pictured: Byron Allen) CREDIT: KATIE JONES/VARIETY/SHUTTERSTOCK standard that “but for” a person’s race or ethnicity, a contract would have been executed. Comcast argues that the Ninth Circuit erred in interpreting Section 1981 as allowing a claim if race is only one factor in the reasoning. “Applying the proper but-for causation standard, there is no doubt that Plaintiffs’ allegations are inadequate to state a plausible Section 1981 claim,” Comcast wrote in August in seeking the Supreme Court’s review. “Comcast adamantly denies that it has engaged in any racial discrimination at any time, but even taking the allegations of the complaint at face value, Plaintiffs have not remotely pleaded a valid claim.” Miguel Estrada of Gibson, Dunn & Crutcher will argue the case on behalf of Comcast. Erwin Chemerinsky, dean of Berkeley Law and Louis “Skip” Miller of Miller Barondess will argue for Entertainment Studios and the National Association of African American Owned Media, an organization started by Allen. Entertainment Studios also has a case pending against Charter Communications, which is not part of Wednesday’s hearing. A similar lawsuit against AT&T was settled in late 2015 with an agreement to add Entertainment Studios’ channels to DirecTV. Allen’s quest has raised thorny questions about bias, access and diversity efforts across the industry. Allen’s detractors say he has opportunistically targeted major distributors for lawsuits at key moments when the media

giants were seeking federal approval for megabucks mergers, such as AT&T’s 2015 acquisition of DirecTV and Comcast and Charter’s pursuit of Time Warner Cable. Allen maintains that he was denied carriage by Comcast even as the company added a host of other channels to its lineup. Allen argues that litigation is needed for Entertainment Studios to gain access to the documents and information it needs to prove race was a factor. Allen’s legal filings dispute Comcast’s argument on the but-for causation test. “A plaintiff need only submit evidence that raises an inference of discrimination; it is enough to allege and present a prima facie case that race was a motivating factor in the refusal to contract,” Allen wrote in a September filing to the high court. “Once a plaintiff does that, the burden shifts to the defendant to submit evidence that it was motivated by raceneutral reasons. Only then is a plaintiff required to negate those reasons.” Industry watchers say that even with the Ninth Circuit’s decision, Allen’s case still has to clear a high bar. “It will be a difficult case to win,” said Erik Gordon, assistant professor at the University of Michigan’s Ross School of Business. “Allen will have to prove that Comcast would have made enough money carrying his channels but decided not to because of race. That will not be easy, especially if Comcast has a business analysis that shows a

business reason it declined to carry his channels.” Allen’s case has spurred interest on Capitol Hill. On Nov. 8, U.S. Rep. Bobby Rush (D-Ill.) sent a letter to Comcast chairmanCEO Brian Roberts asserting his view that Comcast needs to be “broken up” in part because of its long-running dispute with Allen. “In pursuing this case to the Supreme Court of the United States, Comcast is putting corporate profits ahead of public interest, and is employing a scorched earth policy to defend a corporate business decision,” Rush wrote. In a comment on the letter, Comcast cited its business relationships with African American-led media outfits such as Oprah Winfrey’s OWN and Sean Combs’ Revolt TV. It also defended its right to challenge Allen’s allegations against Rush’s assertion that the company was trying to dismantle civil rights laws. “We believe that the civil rights laws are an essential tool for protecting the rights of African Americans and other diverse communities,” Comcast said in a statement. “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 any civil rights laws — all we are asking is that section 1981 in our case be interpreted the same way it has been for decades across the country.”

Don’t Miscount Us: Black Leaders Rev Up Push for 2020 Census By Charlene Muhammad | California Black Media African-American leaders across the country – and around California - are pulling out all the stops this time. They say Blacks cannot afford to be undercounted in the US 2020 Census. During the last census in 2010, field reps undercounted African Americans across the United States by more than an estimated 800,000 people. The data census workers collect is used to determine how over $800 billion in federal, state and local money for programs like Medicaid, Head Start, WIC, SNAP, Community Block Grants, Title 1, and more, is distributed among communities throughout the nation. The federal

Publisher’s Corner

government also uses that information to decide how many United States representatives each state is allotted in Congress. “There are certain zip codes and certain populations that are hard to count,” said Cassandra Jennings, president and CEO of the Greater Sacramento Urban League. “Those groups include Blacks, Latinos, Asians, the youth, elderly and renters.” Jennings also serves as a subcommittee chair for California’s Census 2020 Hard to Count Campaign, tasked with making sure there is full participation among Californians. In Sacramento County where Jennings lives, she is working

with 50 partners to develop culturally sensitive outreach methods for targeting Blacks. Trusted messengers in the community, Jennings says, like community based groups and African-American media, including Black-owned radio stations, newspapers and magazines, will help the Urban League get the word out. Last month, African-American leaders around the country convened a ‘Tele-Townhall’ titled “Make Black Count.” Civil rights leaders, activists, journalists, members of the clergy and concerned citizens joined the conversation via teleconference to get a better sense of ways they

can encourage people of African descent living in the United States to participate in the upcoming census. The National Urban League (NUL), the National Association for the Advancement of Colored People (NAACP), the Lawyers Committee for Civil Rights Under Law (LCCR) and the National Coalition on Black Civic Participation (NCBCP) hosted the town hall, held on Oct. 22. Stacey Abrams, who ran for governor of Georgia last November, joined Marc H. Morial, president of NUL, the Rev. Al Sharpton, president of NAN, and Melanie Campbell, president of (continued on page 8)

WASHINGTON – Ahead of the first day of oral arguments in the Supreme Court case Comcast Corp. V. National Association of African American-Owned Media (NAAOM), Congresswoman Maxine Waters (CA-43) led her colleagues in introducing a resolution that affirms the vital role that the Civil Rights Act of 1866 – particularly Section 1981 of the Act – has played in prohibiting discrimination on the basis of race or ethnicity when making and enforcing business contracts. Should Comcast Corporation, the plaintiffs in the case, prevail at the Supreme Court, it will be nearly impossible for entrepreneurs, innovators, and creators of color who have been victims of racial discrimination to bring forth lawsuits and have their rights protected and enforced in a court of law. Congresswoman Waters’ resolution that makes clear that the U.S. Congress strongly opposes this, and any other attack, on equal rights protections for people of color and marginalized groups under the Civil Rights Act of 1866. “More than a century after the passage of the Civil Rights Act of 1866, it is absolutely outrageous that one of the largest media companies in the world would have the audacity to petition the U.S. Supreme Court to hear arguments in a case that undermines this vital law,” said Congresswoman Maxine Waters. “Nearly ten years ago when Comcast sought to merge with NBC Universal, both companies were forced, under pressure from my efforts in Congress and the FCC, to commit to credible diversity and inclusion initiatives as a condition for the merger. Today, they are seeking to effectively destroy one of our nation’s oldest civil rights statutes dating back to Reconstruction. In doing so, Comcast is opening the flood gates to discrimination in business contracts with no legal remedy or recourse. Those of us who know our history, understand all too well the harmful impact this could have on future generations of entrepreneurs and creators of color. I am proud to lead my colleagues in a resolution that makes clear that any and all assaults on civil rights protections for Americans – particularly people of color and

Congresswoman Maxine Waters (D-CA), Chairwoman of the House Financial Services Committee other marginalized groups – will not be tolerated by the U.S. Congress.” In the aftermath of the Civil War, African Americans suffered through a tumultuous integration. They were systematically and routinely subject to laws, such as the Black Codes, which were designed to restrict African American’s freedom and keep formerly enslaved persons from thriving in society. In response, Congress enacted the Civil Rights Act of 1866. Since their inception, the Civil Rights Act of 1866 and Section 1981 of the Act have made it unlawful for any citizen to be denied equal rights and equitable treatment on the basis of race; protected people of color from discrimination when forming business contracts; and provided a legal pathway for those who have been racially discriminated against to seek justice. Congresswoman Waters’ resolution is supported by Reps. Karen Bass (CA-37), Andre Carson (IN-7), Yvette Clarke (NY9), Danny Davis (IL-7), Al Green (TX-9), Sheila Jackson Lee (TX18), Barbara Lee (CA-13), and Bennie Thompson (MS-2), and acknowledges the history and significance of the Civil Rights Act of 1866 and Section 1981 of the Act, and their integral role as a key pillar of civil rights jurisprudence. Throughout her career in public service, Congresswoman Waters has been a leading advocate for diversity and inclusion in the media. Her years-long efforts during the Comcast-NBC Universal merger review – which included holding congressional hearings, urging the Federal Communications Commission (FCC) to extend the public comment period, filing comments on behalf of independent minority producers, directors, and writers, and leading the congressional efforts to ensure that the terms of the merger included voluntary commitments and proposals for (continued on page 6)

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