Nat'l Ass'n of African Am.-Owned Media v. Charter Commc'ns, Inc.

• Citation: 915 F.3d 617
• Decision Date: 04 February 2019
• Docket Number: No. 17-55723,17-55723
• Parties: NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA, a California Limited Liability Company; Entertainment Studios Networks, Inc., a California Corporation, Plaintiffs-Appellees, v. CHARTER COMMUNICATIONS, INC., a Delaware Corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

915 F.3d 617

NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA, a California Limited Liability Company; Entertainment Studios Networks, Inc., a California Corporation, Plaintiffs-Appellees,

v.CHARTER COMMUNICATIONS, INC., a Delaware Corporation, Defendant-Appellant.

No. 17-55723

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2018 Pasadena, California

Filed February 4, 2019

ORDER

Defendant-Appellant’s petition for panel rehearing is GRANTED. The opinion filed November 19, 2018, and reported at 908 F.3d 1190 (2018), is hereby withdrawn. A superseding opinion will be filed concurrently with this order.

Judge M. Smith and Judge Nguyen vote to deny the petition for rehearing en banc, and Judge Schroeder so recommends. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained.

M. SMITH, Circuit Judge:

Plaintiff-Appellee Entertainment Studios Networks, Inc. (Entertainment Studios), an African American-owned operator of television networks, sought to secure a carriage contract from Defendant-Appellant Charter Communications, Inc. (Charter). These efforts were unsuccessful, and Entertainment Studios, along with Plaintiff-Appellee National Association of African American-Owned Media (NAAAOM, and together with Entertainment Studios, Plaintiffs), claimed that Charter’s refusal to enter into a carriage contract was racially motivated, and in violation of 42 U.S.C. § 1981. The district court, concluding that Plaintiffs’ complaint sufficiently pleaded a § 1981 claim and that the First Amendment did not bar such an action, denied Charter’s motion to dismiss. The court then certified that order for interlocutory appeal. We have jurisdiction pursuant to 28 U.S.C. § 1292(b), and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

Entertainment Studios is a full-service television and motion picture company owned by Byron Allen, an African-American actor, comedian, and entrepreneur. It serves as both a producer of television series and an operator of television networks, and currently operates seven channels and distributes thousands of hours of programming.

Entertainment Studios relies on cable operators like Charter for "carriage contracts"; these operators, which range from local cable companies to nationwide enterprises, carry and distribute channels and programming to their television subscribers. Although Entertainment Studios managed to secure carriage contracts with more than 50 operators—including prominent distributors like Verizon, AT&T, and DirecTV—it was unable to reach a similar agreement with Charter, the third-largest cable television-distribution company in the United States, despite efforts that began in 2011.

From 2011 to 2016, Charter’s senior vice president of programming, Allan Singer, declined to meet with Entertainment Studios representatives or consider its channels for carriage. Plaintiffs alleged that, instead of engaging in a meaningful discussion regarding a potential carriage contract, Singer and Charter repeatedly refused, rescheduled, and postponed meetings, encouraging Entertainment Studios to exercise patience and proffering disingenuous explanations for its refusal to contract. Although Singer stated that Charter was not launching any new channels and that bandwidth and operational demands precluded carriage opportunities, Plaintiffs claimed that Charter nonetheless negotiated with other, white-owned networks during the same period, and also secured carriage agreements with The Walt Disney Company and Time Warner Cable Sports. Charter allegedly communicated that it did not have faith in Entertainment Studios’ "tracking model," despite contracting with other white-owned media companies that used the same tracking model. Plaintiffs also asserted that Singer blocked a meeting between Entertainment Studios and Charter CEO Tom Rutledge because the latter "does not meet with programmers," despite the fact that Rutledge regularly met with the CEOs of white-owned programmers, such as Viacom’s Philippe Dauman. Singer was allegedly steadfast in his opposition to Entertainment Studios, saying, "Even if you get support from management in the field, I will not approve the launch of your network."

Plaintiffs claimed that they finally managed to secure a meeting with Singer in July 2015. However, during the meeting at Charter’s headquarters in Stamford, Connecticut, Singer once again made clear that Entertainment Studios would not receive a carriage contract, citing a series of allegedly insincere explanations for this decision. For example, Singer informed Entertainment Studios that he wanted to wait and "see what AT&T does," despite the fact that AT&T already carried one of Entertainment Studios’ networks. Charter also mentioned its purported lack of bandwidth, even though at that time, it expanded the distribution of two lesser-known, white-owned channels into major media markets: RFD-TV, a network focused on rural and Western lifestyles, and CHILLER, a horror channel.

In addition to recounting Entertainment Studios’ failed negotiations with Charter, Plaintiffs’ amended complaint also included direct evidence of racial bias. In one instance, Singer allegedly approached an African-American protest group outside Charter’s headquarters, told them "to get off of welfare," and accused them of looking for a "handout." Plaintiffs asserted that, after informing Charter of these allegations, it announced that Singer was leaving the company. In another alleged instance, Entertainment Studios’ owner, Allen, attempted to talk with Charter’s CEO, Rutledge, at an industry event; Rutledge refused to engage, referring to Allen as "Boy" and telling Allen that he needed to change his behavior. Plaintiffs suggested that these incidents were illustrative of Charter’s institutional racism, noting also that the cable operator had historically refused to carry African American-owned channels and, prior to its merger with Time Warner Cable, had a board of directors composed only of white men. The amended complaint further alleged that Charter’s recently pronounced commitments to diversity were merely illusory efforts to placate the Federal Communications Commission (FCC).

II. Procedural Background

Plaintiffs initiated this action on January 27, 2016, asserting both a claim against Charter under § 1981 and a claim against the FCC under the due process clause of the Fifth Amendment.¹ After learning of the derogatory racial comments allegedly made by Singer and Rutledge, Plaintiffs sought leave to file a first amended complaint (FAC), which the district court granted. The FAC alleged one claim against Charter for racial discrimination in contracting in violation of § 1981.

Charter moved to dismiss the FAC, arguing that it failed to plead that racial animus was the but-for cause of Charter’s conduct and that the First Amendment barred a § 1981 claim based on a cable operator’s editorial discretion. The district court denied the motion. It determined that, under Metoyer v. Chassman , 504 F.3d 919 (9th Cir. 2007), Plaintiffs needed only to plead that racism was a motivating factor in Charter’s decision, not the but-for cause—a requirement, the court concluded, that Plaintiffs satisfied. Addressing Charter’s contention that Metoyer was no longer good law following two subsequent Supreme Court decisions, the district court concluded that "if Metoyer is no longer good law on this point, [then] the Ninth Circuit [ ] should announce that conclusion." As for Charter’s First Amendment challenge, the district court allowed that the cable operator’s "ultimate carriage/programming activity is entitled to some measure of First Amendment protection," but declined to apply strict scrutiny and bar the § 1981 claim.

Subsequently, Charter moved for certification of the district court’s order under 28 U.S.C. § 1292(b), which the district court granted. This appeal followed.

STANDARD OF REVIEW AND JURISDICTION

"We review de novo a district court order denying a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)." Fortyune v. City of Lomita , 766 F.3d 1098, 1101 (9th Cir. 2014). We have jurisdiction pursuant to 28 U.S.C. § 1292(b).²

ANALYSIS

" Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship." Domino’s Pizza, Inc. v. McDonald , 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). The statute provides that "[a]ll persons ... shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ...." 42 U.S.C. § 1981(a). It further defines "make and enforce contracts" as including "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b). The Supreme Court has emphasized that § 1981 reaches both public and "purely private acts of racial discrimination." Runyon v. McCrary , 427 U.S. 160, 170, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) ; see also 42 U.S.C. § 1981(c) ("The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law."). However, it "reaches only purposeful discrimination." Gen. Bldg. Contractors Ass’n v. Pennsylvania , 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (emphasis added).³

Charter advances three primary arguments on appeal: the district court applied the wrong causation standard to Plaintiffs’ § 1981 claim; Plaintiffs’ FAC failed to plead a plausible claim; and the First Amendment bars a § 1981 claim premised on a cable operator’s editorial decisions. We will consider each of these arguments in turn.

I. Causation Standard

Charter argues that the Supreme...