Byron Allen’s racial bias suits against Comcast, Charter are now before the U.S. Supreme Court

Byron Allen got his start in Hollywood in the 1970s as a 14-year-old comedy writer with Good Times actor Jimmie Walker, David Letterman, and Jay Leno, penning laughs for $25 a joke. At 18, he debuted on Johnny Carson.

And in his early 30s, in 1993, Allen syndicated the low-budget interview-format Entertainers with Byron Allen to television stations. His first talent booker was Philadelphia native Joan Robbins who still works for him, first in Los Angeles and now in far Northeast Philadelphia.

It’s from this humble beginning — Allen interviewing stars as they promoted their movies — that the comedian assembled a Hollywood empire of 43 syndicated television series, eight cable networks, Weather Channel, and a movie studio that distributed Chappaquiddick and shark thriller 47 Meters Down. He’s calls it “100 percent African American-owned.”

But there’s one part of the entertainment business that Allen hasn’t cracked: cable distribution to about 36 million subscriber homes served by Comcast Corp. and Charter Communications. Allen has filed two lawsuits against both companies, alleging discrimination for not carrying his JusticeCentral.TV, Comedy.TV, and other cable channels. He seeks $20 billion under a Reconstruction-era civil rights law that says companies can’t discriminate based on race in business contracts.

And now the U.S. Supreme Court has been asked to deal with his complaint.

In his suits, Allen cites racially biased comments by executives at both companies. He also claims in the Comcast suit that two African American-owned channels that Comcast agreed to distribute as part of an agreement with the Federal Communications Commission for the NBCUniversal deal have “questionable ownership and control.”

Comcast and Charter deny that race played any part in their business decisions not to distribute Allen’s cable networks over the last decade. They say they based their decisions on limited channel capacity on their systems, cost, popularity and ratings of Allen’s networks, and the cable giants’ First Amendment right to decide what they want their customers to watch.

"We believe the multiple attempts by Mr. Allen to manipulate the legal and regulatory systems are meritless and we will continue to defend against inaccurate and unsupported allegations,” Comcast spokeswoman Sena Fitzmaurice said recently.

“We currently carry more than 100 networks geared toward diverse audiences, including multiple networks owned or controlled by minorities. In 2018, we offered more than 18,000 hours of programming geared toward diverse audiences On Demand and Online,” Fitzmaurice said.

Charter said in a statement that the lawsuit against it “is a desperate tactic and the allegations in it are entirely false. Race plays no role whatsoever in our programming decisions.”

Carriage disputes are a common practice in the cable industry. Entertainment companies such as Allen’s want their channels broadly distributed to tens of millions of cable homes for monthly subscriber fees and the potential to sell the cable audience to advertisers.

Patrick Gottsch, the head of RFD-TV that caters to rural audiences, blasted Comcast in 2014 for not broadly distributing his channel in a public hearing in Washington over Comcast’s proposed deal to acquire Time Warner Cable.

Other Comcast carriage disputes that spilled into the headlines involved the Big Ten Network and the Tennis Channel, which Comcast only distributed on its extra-charge sports tier. Tennis Channel wanted broader distribution to all Comcast homes without the extra charge. The Tennis Channel appealed to the FCC and the courts. Comcast eventually distributed the Big Ten but prevailed in the courts over its denial of Tennis Channel.

In February 2015, Allen sued Comcast in Los Angeles federal court for not carrying his cable channels as the Philadelphia cable giant was seeking to acquire Time Warner Cable — which would be later acquired by Charter Communications.

Federal judge Terry J. Hatter dismissed the suit brought by Allen’s Entertainment Studios Networks and the National Association of African American-Owned Media, concluding that there could be legitimate business reasons for Comcast to act as it did. Allen appealed.

In 2016, Allen sued Charter Communications with similar claims of discrimination. A different Los Angeles federal judge, George H. Wu, ruled that there were sufficient racial claims in the Charter case. Charter appealed.

The U.S. Court of Appeals for the Ninth Circuit Court decided in late 2018 that both the Comcast and Charter cases had sufficient claims to proceed into discovery and depositions, sending them back to their original judges. Comcast and Charter are now appealing the Ninth Circuit decisions to the U.S. Supreme Court. The nation’s highest court has not decided whether it will consider them.

The suits contain some inflammatory claims. A Comcast executive told someone at Allen’s company, Entertainment Studios Networks, that “we’re not trying to create any more Bob Johnsons,” or a powerful African American-owned entertainment company. The reference was to Robert “Bob” Johnson, a hugely successful African American TV executive who created Black Entertainment Television, or BET, and sold it to Viacom for $3 billion almost two decades ago.

Court documents do not say who at Comcast made the comment or when.

The suit also says that Comcast launched 80 networks that were newer and “white-owned” during the years that it was telling Entertainment Studios Networks that it lacked the channel capacity on its cable systems for more channels.

Allen’s attorneys told the court that 50 pay-TV operators already distribute Entertainment Studios Networks, including Verizon Fios, DirecTV, RCN and Suddenlink, to 80 million subscribers.

Comcast said it has taken steps in the past to include African American programmers. As part of its agreement with the government to acquire NBCUniversal in 2011, Comcast agreed to distribute four African American-owned cable networks.

Magic Johnson’s Aspire, an inspirational African American network, and rapper P. Diddy Combs’ Revolt, a hip-hop channel, were the first two African American networks selected after the agreement.

Allen claims in the Comcast suit that both channels have significant white ownership. “Aspire is a sham designed to create the false impression of compliance” to government regulators," Allen’s suit claims.

Aspire rejected Allen’s claims in a 2016 letter to the FCC, saying that Magic Johnson controls three of the five appointees to the network’s board of managers. The letter doesn’t disclose Johnson’s financial ownership stake in Aspire, which was formed in 2012.

Yucaipa Funds, a Los Angeles investment firm cofounded by Ronald Burkle and specializing in leveraged buyouts and supermarkets, also owns part of Aspire and controls one appointee to the management board, the letter said.

So it is the NBA Hall of Famer who “controls Aspire and exercises that control in its operations and content,” Melissa M. Ingram, Aspire’s vice president for business affairs and channel operations, told the FCC in 2016 in response to Allen’s claims.

Revolt did not respond to requests for comment. The Hollywood publication Variety reported last May that Revolt Media was laying off one-third of its staff.

Allen seems confident that his claims will prevail, if he gets a chance to grill his opponents in discovery. “We are highly confident that we will win this lawsuit and make history," Allen said recently. "Very soon, a jury will show Comcast that they can no longer bully African American-owned media companies like Entertainment Studios.”

Allen also said that the top executives at Comcast and Charter, Brian Roberts and Tom Rutledge, “refused my offers to sit down to discuss these very serious matters.” His full statement can be read here.

Comcast hasn’t totally shut out Allen. In March 2018, Allen’s company, Allen Media LLC, acquired the Weather Channel for a reported $300 million from an investment group comprised of the Blackstone Group, Bain Capital, and Comcast/NBCUniversal. And Comcast distributes the Weather Channel.

This January, Comcast launched two new African American-owned cable channels, AFRO and CLEO TV, to fulfill its promise to the government to add four African-American-owned networks.

Comcast described the networks as African American majority-owned independent networks. CLEO targets Generation X and millennial women of color. AFRO is a lifestyle network broadcasting black movies, dramas, sitcoms, music, talk and comedy.