The owner of WISH-8 and WNDY-20 in Indianapolis is busily preparing with his legal counsel at Bose McKinney & Evans an appeal of a U.S. District Court decision that presents a victory to both DirecTV and Dish Network, and dismisses twin racial discrimination claims filed against the digital broadcast satellite service providers by DuJuan McCoy and his Circle City Broadcasting.
The decision from Judge Tanya Walton Pratt, the Chief Judge for the U.S. District Court for the Southern District of Indiana, is a setback for McCoy but not a defeat.
As such, McCoy is moving on to the appellate court as he seeks a return of his stations, which serve as affiliates of The CW Network and MyNetwork TV in the Indianapolis DMa, to both Dish and DirecTV.
Circle City in 2020 sued Dish on the grounds that it refused to offer fair-market compensation for airing WISH-8, Indianapolis’ home for The CW, and MyNetwork sibling WNDY-23. The matter resulted from a reset of the stations’ retransmission consent fees, as Nexstar Media Group‘s sale agreement signed by McCoy stated that Dish and DirecTV would not be required to keep the rates negotiated by Nexstar should any sale of the stations transpire during the period for which they were set.
McCoy knew that, and presented retransmission rates he thought were justified. DirecTV and Dish responded with rates he not only couldn’t accept but argued were so low, the decisionmaking process by each of the DBS providers was racially motivated.
In March 2021, Pratt led the case against Dish proceed; there was concern it would be dismissed at that time. Now, more than two years later, Pratt has decided not only on this matter, but on an August 2020 claim filed against DirecTV by Circle City.
And, Pratt did so with concurrent motion for summary judgment grants. Noting that the issue before the court is whether a question of material fact exists regarding whether DirectTV (and Dish) had the intent to discriminate against Circle City based on its race.
When evaluating a race discrimination claim, a district court must determine “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race . . . caused” the adverse action; she cited the 2016 case Ortiz v. Werner Enters. Inc..
Then, there is a Comcast case that says “a plaintiff bears the burden of showing that race
was a but-for cause of its injury.”
DirecTV argued Circle City cannot meet this burden, and did not treat Circle City any different than any other owner.
At issue is a DirecTV contention that its company has a policy of not paying retransmission consent fees to standalone, non-Big 4 stations as “it does not believe those stations generate sufficient economic value to justify paying fees.”
And, what led Judge Pratt to grant the summary judgment in the DirecTV case is that Circle City did not directly challenge that policy. Rather, it argued that a jury could reasonably reject the alleged policy as pretextual. This pretext could not be proven, Pratt ruled.
The decision, which was released late Friday by Pratt, was made concurrent to a her ruling favoring Dish. In that decision, Pratt came to a different conclusion in deciding in favor of the DBS provider. Here, she said, “the Court is not persuaded that Circle City reaching broadcasting agreements with other MVPDs equates to establishing irrefutable market rates or means that DISH’s only reason for not matching these rates was based on race.”
What’s next for McCoy? His legal team led by Andrew McNeil at Bose McKinney & Evans is working to initiate an appeal by April 30. According to an internal memo obtained by RBR+TVBR, McNeil notes that Pratt seemed to be looking for race-specific evidence, “but in a pretext case all we need to show is that the defendant lied or gave conflicting accounts of its reasons. We thought we did that, but she resolved those issues in favor of the defendants. If there is an appellate argument, it will be found in that approach to the decisions.”
McCoy commented to RBR+TVBR by noting, “She was looking for direct discrimination. Nothing is direct anymore. It’s always overt. Big companies know how to avert the direct nowadays.”
McCoy also issued a formal statement on the ruling, in which he says, “Although we are disappointed in the court’s ruling, I have always known as one of the few black entrepreneurs in America that the fight for equality in media is always going to be difficult. We firmly believe that Dish and AT&T are both discriminatory companies in contracting. Separately and individually they discriminate!”
McCoy also addressed speculation that Dish and DirectTV are contemplating a merger. “If they discriminate individually, they will surely continue and increase their discriminatory practices as one company,” he said. “We plan to appeal this decision as well as do everything in our power to prevent their rumored merger from happening. It would be a sad day in media if regulators allowed this rumored monopolistic transaction to consummate.”
