Charter, FCC Seek Dismissal of Entertainment Studios Racism Complaint
Suing in U.S. District Court is automatically the wrong route since it has no jurisdiction over FCC actions, the agency said in a motion to dismiss filed in U.S. District Court in Los Angeles against complaints of Entertainment Studios Networks (ESN) and the National Association of African American Owned Media (NAAAOM). In a sister motion to dismiss also filed Thursday with the court (see here and here, in Pacer), Charter called the $10 billion ESN/NAAAOM discrimination complaint that also targeted the FCC (see 1601280063) "a scam." The company said plaintiffs failed to show any discriminatory intent in the decision not to carry ESN programming.
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"Their legal arguments are wrong," plaintiffs' counsel Skip Miller of Miller Barondess told us Friday. "The case is a very important case. This case needs to be heard fully in court on the merits." Hearings on the FCC motion will be July 14 and the Charter motion Aug. 25 before U.S. District Judge George Wu in Los Angeles.
The FCC motion focused solely on court jurisdictional issues and law cited by ESN/NAAAOM. The ESN/NAAAOM complaint against the FCC "is a serious departure from settled principles of administrative law" and would undermine the statutory review process set up by Congress that makes review of FCC orders the bailiwick of the courts of appeals, the agency said. It also disputed the ESN/NAAAOM argument that it would be futile to seek relief through the commission itself, saying even if the plaintiffs could demonstrate that raising their arguments with the FCC itself is pointless, that argument is irrelevant to whether the U.S. District Court has jurisdiction in the complaint.
The agency also argued it isn't subject to federal law banning race discrimination in contracts -- 42 USC Section 1981 -- because sovereign immunity bars claims under that code against the U.S. and its agencies.
Calling ESN and NAAAOM "serial litigants" who use lawsuits to force carriage of ESN channels, Charter said the ESN/NAAAOM argument creates a narrowly defined class of 100 percent African American-owned media that includes only ESN, but the plaintiffs "conspicuously fail" to allege any discrimination by Charter against the broader protected class of majority African-American owned businesses. "The upshot of all of Plaintiff's breathless accusations about racism before Charter's regulators was a request for a competition-free set aside of 50 channels designed to line the pockets" of ESN owner Byron Allen, Charter said.
Charter said the ESN/NAAAOM complaint itself points out reasons why the operator hasn't carried ESN, including bandwidth limitations and not planning new general entertainment channels on the expanded basic tier. Instead, the complaint is "pure diatribe, hurling baseless and defamatory accusations," Charter said. And the cable company argued that under the Supreme Court's 1994 Turner Broadcasting Systems v. FCC, cable operators have First Amendment protection in selecting programming for distribution.
ESN also is pursuing a suit and related FCC complaint against Comcast (see 1606100017), with that operator having a July 11 deadline for a motion to dismiss the second amended complaint against it. The FCC didn't comment Friday on the state of the complaint.