CMCSA Comcast Corporation

By Jess Bravin 

WASHINGTON -- The Supreme Court said Monday it would consider whether a black television producer can pursue racial discrimination claims against Comcast Corp. for declining to carry his programming channels on its cable system.

The justices also agreed to decide whether landowners near a Montana superfund site can use state law to require that Atlantic Richfield Co. restore the Anaconda Smelter property beyond remediation plans ordered by the U.S. Environmental Protection Agency.

But the court declined to consider a Guantanamo inmate's challenge to his indefinite detention without charge, which has lasted 17 years. Justice Stephen Breyer issued a statement saying "it is past time" for the court to decide whether "Congress has authorized and the Constitution permits" keeping enemy prisoners in "perpetual detention."

The Comcast case stems from the cable operator's decision not to carry Pets.TV, Recipes.TV and other channels from Entertainment Studios Networks Inc. The Los Angeles company is solely owned by Byron Allen, who gained celebrity as co-host of "Real People," a 1980s reality show.

Comcast has carried channels owned mostly or substantially by African-Americans, such as Magic Johnson's Aspire and Sean "Diddy" Combs's music channel, Revolt TV, as well as Black Entertainment Television, whose African-American founder, Robert Johnson, sold to Viacom in 2001.

The suit, filed under Reconstruction-era law affording "the same right" to contract "as is enjoyed by white citizens," alleges, however, that Comcast discriminated against "100% African American" owned media such as Entertainment Studios.

A federal appeals court in San Francisco allowed the suit to proceed. "If discriminatory intent plays any role in a defendant's decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen," Judge Milan Smith wrote for the Ninth U.S. Circuit Court of Appeals.

Comcast denies the allegations and says it was concerned the Entertainment Studios programming wouldn't draw enough of an audience to justify allotting it bandwidth. The cable operator argues that federal law requires the plaintiff to show that he or she would have gotten the contract absent racial bias.

In total, the court added four new cases to the fall docket and decided three from the current term. Still to come as the term winds down this month are high-profile rulings on partisan gerrymandering, a citizenship question on the 2020 census form and the constitutionality of a 40-foot cross in a state-owned traffic circle.

In a 6-3 decision Monday that saw Justice Sonia Sotomayor depart from fellow liberals, the court ruled that unlike private parties, federal agencies may not challenge patents through an administrative panel created under a 2011 patent-law overhaul.

The decision originated with a complaint from Birmingham, Ala.,-based Return Mail Inc. that the U.S. Postal Service infringed its business-method patent for processing undeliverable mail.

The issue before the Supreme Court was whether the Postal Service was a "person" authorized by the Leahy-Smith America Invents Act of 2011 to bring disputes to the relatively expeditious Patent Trial and Appeal Board -- or had to challenge patents through the courts, which critics consider the legal equivalent of snail mail.

Precedent suggests that the government isn't a "person," Justice Sotomayor wrote for the court, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. And the Postal Service provided no good reason to overcome that presumption, she wrote.

Congress had reason to provide expedited treatment for private parties, she wrote. Unlike government agencies, "other actors face greater and more uncertain risks if they misjudge their right to use technology that is subject to potentially invalid patents."

Justice Breyer, joined by Justices Ruth Bader Ginsburg and Elena Kagan, dissented. He wrote that the reasons Congress created the appeals board -- to foster innovation by making it easier to weed out weak patents -- are served by allowing government agencies as well as private parties to use the expedited process.

Write to Jess Bravin at jess.bravin@wsj.com

(END) Dow Jones Newswires

June 10, 2019 15:50 ET (19:50 GMT)

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