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McCoy asks appeals court: Let AT&T, DISH Network discrimination cases be heard

DuJuan McCoy, Owner, President and CEO of Circle City Broadcasting, parent company of WISH-TV and WNDY

CHICAGO (WISH) — DuJuan McCoy, Owner, President and CEO of Circle City Broadcasting, has asked a federal appeals court to reinstate racial discrimination lawsuits against DIRECTV and DISH Network.

A three-judge panel of the 7th Circuit Court of Appeals heard oral arguments from attorneys in the two cases Wednesday morning in Chicago.

McCoy sued AT&T and DISH Network in 2020, accusing the companies of racial discrimination for refusing to negotiate retransmission contracts for WISH-TV and WNDY. 

In the first case, attorneys for Circle City 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.

Circle City also argued that DIRECTV essentially ‘redlined’ the black-owned company through an unprecedented move that blocked it from receiving the same payments made to WISH-TV’s previous owner, Nexstar Broadcasting.

“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,” Andrew McNeil, attorney for Circle City Broadcasting, told the appeals court panel. “They could not identify another contract where a station group was excluded by name from this change in control provision.”

Judge Diane Wood questioned DIRECTV’s attorney about the considerations that go into a contract where DirecTV does not pay retransmission fees to a local station.

“DIRECTV is getting content so they’re getting what WISH has to offer, so what’s in it for WISH? I mean, why give your business product away?,” Judge Wood quizzed.

McNeil also argued this case gets to the heart of issues the appeals court has been trying to answer for several years.

“What DIRECTV is attempting to do is put evidence in a silo and say consider this silo,” McNeil argued. “What we’re saying is when you consider all this evidence as a whole, the stated reasons offered by DIRECTV show signs of inconsistency, suspicion, incompleteness.”

McNeil says those actions meet the case law definition of pretext, presenting a false reason to hide true intentions or motivations, and means the case should be returned to a federal court in Indianapolis for trial.

In the case against DISH Network, McNeil also argued negotiations were under pretext, and that the satellite television provider had “shifting reasons” in its negotiations with McCoy.

DISH claimed WISH-TV’s top two on-air products were newscasts and Cubs baseball, McNeil told the judges, and that DISH argued Cubs games would be moving off the station and that newscasts were available streaming for free on WISH’s website.

“It’s worse because the internal documents at DISH show that it’s a phony explanation,” McNeil said in the open court hearing.

He cited a DISH analysis that showed the “Cubs were in less than one percent of the top 500 broadcasts for WISH-TV, and its news package was in 96.4% of the top 500 programs, even though it was available online for free.”

DISH Network’s attorney argued there was “no evidence of racism” in the case, and went on to applaud the work done by WISH-TV and WNDY.

“Mr. McCoy has created a great business in Indianapolis. He’s done many great things, and WISH and WNDY are great stations.”

A federal judge in Indianapolis issued summary judgment dismissing both cases on March 31, 2023.

McCoy vowed the fight against the two companies would continue to the federal appeals courts.

“I have always known as one of the few black media executives in America that the fight for equality in media is always going to be difficult,” McCoy said after Judge Tanya Walton Pratt’s ruling in 2023. “We firmly believe that DISH and AT&T are both discriminatory companies in contracting. Separately and individually, they discriminate!”

McCoy’s lawsuit also accused AT&T of offering zero compensation to retransmit WISH-TV and WNDY on DirecTV and AT&T U-Verse.

In April 2023, Judge Pratt rejected a DISH request to seal 17 words from her ruling that Circle City claimed “DISH refused to contract with it for the payment of fees for that right, for the longest time offering zero dollars, and at the eleventh hour offering only pennies per subscriber.

There is no timeline for when the appeals court might issue its ruling.