The Empty Promises of Diversity MOU'S: How the FCC Can Strengthen Commitments to Racial Equity

Authors

Jeleesa Omala

Abstract

(Excerpt)

African Americans have been systematically disenfranchised from nearly all sectors of American society since the country’s founding. As such, African Americans do not just perceive the problem of racial discrimination as a matter of personal prejudice but also a matter of survival. Without access to fundamental resources like higher education, healthcare, and economic opportunity, the quality of Black life decreases astronomically. The nation begins to equate being Black with being “less than,” and continues to disinvest in Black populations, which signals to Black people that their lives do not matter.

Nevertheless, determined Black entrepreneurs continue to fight to expand opportunities for Black people. One such entrepreneur is media mogul Byron Allen, whose most recent fight took him all the way to the Supreme Court. The controversy began on June 21, 2010, when Allen, in his capacity as the Chairman and Chief Executive Officer of Entertainment Studios, Inc. (“ESI”), filed a public comment opposing the pending application for a merger between Comcast and NBC Universal (“NBCU”). Citing Comcast’s failure to carry independent, 100% African American-owned programming on equal tiers to other similar channels, he claimed that the merger would give “Comcast-NBCU the ability and incentive to discriminate against new independent programming networks to restrain competition, to the detriment of . . . viewers.” As a remedy, he requested that the Federal Communications Commission (“FCC”) either deny the application entirely or condition the merger on Comcast’s commitment to set aside channels for independently owned African American programming.

Denying any systemic racism in its programming, Comcast asserted that it carried eleven African American-owned or targeted networks, and that it would implement a race quota in its programming. Comcast also submitted to the FCC further proof of its commitment to diversity with regard to African Americans in the form of a Memorandum of Understanding (“MOU”) between itself and the National Association for the Advancement of Colored People, the National Urban League, and the National Action Network, which contained additional race-quota-based commitments.

In granting the merger license, the FCC failed to adopt Comcast’s race quotas out of fear of running afoul of the Constitution and FCC precedent. The FCC described the race quotas and other provisions within the diversity MOUs as merely private agreements meant only to appease the commenters who were concerned about “the treatment of minority and other groups by Comcast and NBCU.” Yet the FCC still relied on these agreements as enhancements to the conditions it would impose on Comcast’s merger license, and commended Comcast for “meeting with a broad range of stakeholders” and “effectuating agreements” that would “further mitigate” the potential public interest harms.

Without government oversight and enforcement, however, the private diversity commitments proved less effective in dealing with racial inequities than the FCC anticipated. In February 2015, less than five years after the merger, Byron Allen’s organizations, Entertainment Studios Networks, Inc. (“ESN”) and the National Association of African-American-Owned Media (“NAAOM”), filed a federal race discrimination suit against Comcast for $20 billion in damages. The plaintiffs claimed that the diversity commitments were simply “window dressing” designed to hide Comcast’s discriminatory practices from the scrutiny of the FCC and the public. The discriminatory practices alleged included Comcast’s use of the diversity programs and application processes outlined under the MOU to (1) segregate the application process, (2) buy the support of various minority special interest groups, and (3) string ESN along with multiple recommendations for improving its application but never with any true intent of carrying its channels.