DuJuan McCoy Seeks Return Of Racial Discrimination Cases

“Appeal No. 23-1787,” the second argument heard on Wednesday morning by the U.S. Court of Appeals for the Seventh Circuit in Chicago, could give Indiana broadcast television station owner DuJuan McCoy a renewed racial discrimination fight against the nation’s two direct broadcast satellite (DBS) providers.

With Andrew McNeil of Bose McKinney & Evans LLP as his legal counsel, McCoy’s arguments that racial discrimination charges against both DirecTV and Dish be reinstated were presented to the three-judge appellate court.

McCoy’s twin lawsuits against the DBS providers were filed in 2020. In each case, McCoy believes his Circle City Broadcasting is the victim of race preferences, as both DirecTV and Dish, in his view, refused to negotiate retransmission consent agreements for both WISH-8 and WNDY-20 in Indianapolis.

In the first case, McNeil argued that AT&T and DirecTV negotiated under a pretext of potentially offering compensation to air its stations before eventually revealing the company would not agree to monetary payments.

It was also argued that DirecTV “redlined” the Black-owned television broadcasting company through what McCoy calls “an unprecedented move” that blocked it from receiving the same payments made to WISH-8’s previous owner, Nexstar Media Group.

“This text is a pretext case,” McNeil told the court, “that when there are inconsistencies, implausibilities, contradictory statements or weaknesses that are shown in a stated reason for a certain action, then a reasonable fact finder can conclude that that stated reason is unworthy of credence.”

A CHALLENGE FROM THE START

In seeking the appeal, McNeil disputed the district court’s decision to remove the racial discrimination claim.

But, that immediately rose a key question from Judge Diane Wood, who said to McNeil, “What worries me about this case … is I’m looking for evidence to see that the reason the things that you are talking about didn’t happen was an impermissible racially based reason, and I would like for you to summarize the best evidence you think there is in the record that would tie the fact that these recently purchased stations didn’t command the same kind of price that the Nexstar package did. It seems to me there are all sorts of reasons why that might have been and I can’t find race among them.”

His reply? “What DirecTV did, knowing that DuJuan McCoy is a black man and the owner of Circle City, excluded Circle City by name from the change in control provision in an unprecedented provision in a DIRECTV contract,” McNeil said. “They could not identify another contract where a station group was excluded by name from this change in control provision.”

McNeil then points to a post-deposition affadavit from DirecTV Senior Vice President Linda Burakoff, in which he claims he states “it is our general practice not to offer fees to these standalone non-‘Big Four’ stations.” To NcNeil, “that general practice does not square at all with this change in control language in section 11b because [it] presumes the rate follows the station when the purchaser does not already have a contract.”

That’s where the court has trouble, as the reasons stated in the record show that any standalone station, which has free, over-the-air streaming and doesn’t have the advantages of big packages. “I can’t understand why again we are going to assume that the reason the price it can command is lower has anything to with factors other than these structural factors,” Judge Wood said.

DIRECTV EXPLAINS ITS NON-PAYMENT CLAUSE

DirecTV’s attorney told Wood that conversion of no-fee agreements is driven by market dynamics, not racial aminus. “The most Circle City can do is argue that certain facts are fishy in the hopes of creating some metaphysical doubt about DirecTV’s motives,” the DBS provider’s legal counsel told the court.

McCoy filed his appeal in April 2023. The legal matter dates to March 10, 2020, when a summons was issued to Dish. On August 11, 2020, a summons was then issued to AT&T Corp. for DirecTV.

At issue is a “reset” of retransmission consent fees, and for McCoy he seeks to establish a race-based argument. That argument did not pass muster with Judge Tanya Walton Pratt, the Chief Judge for the U.S. District Court for the Southern District of Indiana.

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.”