National Ass'n of the Deaf v. Netflix, Inc.

Citations: 869 F. Supp. 2d 196; 26 Am. Disabilities Cas. (BNA) 1091; 2012 U.S. Dist. LEXIS 84518; 2012 WL 2343666Docket: C.A. No. 11-CV-30168-MAP

Court: District Court, D. Massachusetts; June 19, 2012; Federal District Court

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Plaintiffs, including the National Association of the Deaf (NAD), the Western Massachusetts Association of the Deaf and Hearing Impaired (WMAD/HI), and individual Lee Nettles, have filed a lawsuit against Netflix, Inc. under Title III of the Americans with Disabilities Act (ADA), claiming the company's streaming service, Watch Instantly, does not provide adequate closed captioning for deaf and hard of hearing users. They seek injunctive and declaratory relief to mandate closed captioning for all content. Netflix has moved for judgment on the pleadings, arguing that the plaintiffs fail to provide sufficient factual allegations for an ADA claim, that their interpretation of the ADA conflicts with the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), and that the case is moot. The plaintiffs oppose this motion, and the Department of Justice has submitted a statement of interest in their favor.

The court noted that Netflix is the leading provider of streaming media and that the plaintiffs argue that only a small fraction of titles on Watch Instantly are captioned, limiting accessibility for deaf and hard of hearing individuals. They also claim that the lack of categorization for captioned films impedes personalized recommendations. In response to the complaint, Netflix previously filed a motion to dismiss, contending that the CVAA assigned the Federal Communications Commission (FCC) the primary authority to regulate closed captioning for streaming services. The CVAA, enacted to enhance access to communications for individuals with disabilities, required the FCC to create regulations for closed captioning on Internet-delivered video programming. Although the FCC had not yet issued these regulations at the time of the initial motion hearing, the court denied Netflix's motion to dismiss and stayed proceedings pending FCC rule-making. The FCC later issued final regulations on January 13, 2012.

Regulations established captioning responsibilities for internet video programming distributors, setting compliance deadlines and prohibiting private lawsuits, with an administrative complaint process effective from April 30, 2012. The Defendant has moved for judgment on the pleadings, arguing that Plaintiffs failed to demonstrate the existence of a "place of public accommodation" as required under the ADA, lacked allegations that the Defendant controlled the captioning, were precluded by the CVAA from interpreting the ADA, and that the claim is moot. Each of these arguments is found unpersuasive. 

To establish a claim under the ADA, a plaintiff must show that the discrimination relates to a "place of public accommodation." Plaintiffs assert that the Defendant’s Watch Instantly website qualifies as such, falling under four categories defined by the ADA. They argue that the website, which offers a subscription-based streaming video service, is akin to a physical video rental store. The First Circuit's decision in Carparts Distrib. Ctr. v. Auto. Wholesaler’s Assoc. supports this interpretation, indicating that "places of public accommodation" extend beyond physical structures, as excluding online services would contradict the ADA's intent to provide equal access for individuals with disabilities. The Defendant’s argument that the ADA does not explicitly list web-based services as public accommodations is rejected, as the legislative history indicates Congress's intent for the ADA to adapt to technological advancements.

Congress did not intend for the ADA to be limited to specific examples of public accommodations; instead, plaintiffs only need to demonstrate that a website falls within a general category defined by the ADA. The legislation includes the phrase "other similar" entities, which should be interpreted broadly to align with the intent of the law. Plaintiffs argue that the Watch Instantly website qualifies as a "service establishment," a "place of exhibition or entertainment," and a "rental establishment" under the ADA because it allows users to stream video content.

The defendant contends that the website cannot be considered a public accommodation since it is accessed only from private residences, asserting that all examples in the ADA refer to public venues. However, this interpretation is rejected. The ADA applies to the services of a public accommodation, not solely to services occurring on-site. Limiting the ADA in such a manner would contradict its language, as it would exempt businesses providing services to homes, which the First Circuit has deemed absurd in earlier rulings. Thus, the Watch Instantly website is classified as a public accommodation, and the defendant is prohibited from discriminating against users accessing its services from home.

To establish a violation of the ADA, a plaintiff must show that the defendant "owns, leases, or operates" a public accommodation. While the First Circuit has not clarified these terms, other courts suggest that the key factor is whether the defendant has control over the modifications to improve accessibility for the disabled. This interpretation has been recognized in various cases, including in the District of Massachusetts.

Defendant contends that Plaintiffs must demonstrate that Defendant controls the captioning of streaming video content, asserting that only copyright owners can caption material. Consequently, Defendant claims it cannot be held liable under the ADA since it lacks the authority to caption without permission from copyright owners. However, the court finds Plaintiffs' allegations sufficient at this stage, as they assert that Defendant owns and operates the Watch Instantly website, a public accommodation, and is actively working on providing captioning for its content. The cases cited by Defendant involve parties that did not own or operate public accommodations, distinguishing them from the current case where Defendant does own such a platform.

Further, the court acknowledges that while additional discovery may reveal limitations on Defendant's ability to provide captioning due to copyright constraints, the matter is not ripe for determination at this time. No evidence has been presented regarding the extent of Defendant's ownership of content or agreements with copyright holders, which may affect its ability to caption.

Additionally, Defendant argues that interpreting the ADA to include captioning for streaming video would conflict with the CVAA, suggesting that the CVAA should supersede the ADA in this context. Plaintiffs counter that the two statutes are compatible and that the CVAA applies only to a limited range of programming, indicating it was meant to complement rather than replace the ADA. The court notes the legal principle that, in cases of conflict between statutes, the more recent and specific law prevails, but finds the current statutes to be reconciliable.

Defendant asserts that the CVAA specifically governs captioning for streaming video, thus suggesting Congress intended it to exclude captioning from the ADA's broader disability discrimination framework. The argument is based on the principle that specific statutes can carve out exceptions from more general ones when there are conflicting provisions. Defendant identifies four potential conflicts between the statutes but fails to demonstrate that compliance with the ADA would conflict with CVAA obligations. 

Firstly, the FCC regulations assign primary captioning responsibility to video content owners rather than distributors like Netflix, which Plaintiffs argue should also bear this responsibility under the ADA. However, this does not create an irreconcilable conflict; if the court finds a duty under the ADA, compliance with both statutes remains feasible. 

Secondly, while the FCC has established a compliance timeline for captioning (September 30, 2012, to March 30, 2014), Plaintiffs seek immediate captioning for Defendant’s content. Again, differing timelines do not constitute an irreconcilable conflict, as Defendant could still satisfy both statutes.

Thirdly, Defendant references the CVAA's prohibition of private rights of action, arguing that Plaintiffs are bypassing an administrative complaint process. However, this administrative procedure aligns with the ADA's private right of action, indicating that both can coexist without conflict. 

In summary, the Defendant maintains that no irreconcilable conflict exists between the ADA and CVAA; both statutes can coexist while imposing respective obligations on the Defendant.

Congress can establish separate administrative and judicial remedies for the same grievances without causing conflict, as outlined in Rathbun, 361 F.3d at 70. A precedent under the Telecommunications Act of 1996 recognized that plaintiffs could pursue ADA claims even with an existing administrative complaint mechanism, as seen in Zulauf v. Kentucky Educ. Television, 28 F.Supp.2d 1022 (E.D.Ky. 1998). The CVAA does not appear to eliminate private rights of action under the ADA regarding closed captioning for online video programming, unlike its predecessor. 

A potential conflict arises from the CVAA’s provision allowing the FCC to exempt captioning requirements if deemed "economically burdensome" (47 U.S.C. 613(c)(2)(D)(ii)). The FCC regulations outline criteria for these exemptions and note that minor compliance failures may not constitute violations (47 C.F.R. 79.4(d) and 79.4(c)(3)). The defendant argues that plaintiffs are ignoring these exceptions when holding them liable under the ADA; however, the ADA also accounts for economic hardship through an "undue burden" exception (42 U.S.C. 12182(b)(2)(A)(iii)). Thus, the court will evaluate the economic burden of captioning on the defendant in relation to both statutes, recognizing that reasonable de minimis failures may also absolve liability under the ADA.

Although the CVAA and ADA overlap in subject matter, their differences do not create a "positive repugnancy," and courts must enforce both statutes. Redundancies in legal statutes are common, and as long as there’s no significant conflict, both can coexist. Plaintiffs argue that the scopes of the CVAA and ADA are not identical; the ADA encompasses all claims, while the CVAA is limited in its applicability. The CVAA mandates closed captioning for video programming delivered via Internet protocol that was previously aired on television with captions, highlighting that it does not replace or diminish the ADA's broader coverage, which addresses significant discrimination instances. The CVAA specifically requires closed captioning for "full-length video programming" that has been broadcast on television and is subsequently distributed via Internet protocol (47 U.S.C. 613(c)(2)(A) and 47 C.F.R. 79.4(b)).

Plaintiffs assert that the CVAA and FCC regulations are applicable solely to television programming that includes captions and aired after the regulations were enacted. They claim the Watch Instantly website features content outside this definition, such as original Netflix productions not broadcast on television, programming aired prior to the regulations, and foreign content available exclusively on Netflix in the U.S. Additionally, they contend that Netflix's recommendation system falls outside the CVAA's purview.

Defendant counters that the CVAA encompasses a broader range of video programming than the FCC's regulations. They acknowledge that current FCC regulations limit captioning requirements but argue that the CVAA covers all internet-delivered video programming, not just that shown on television. Defendant interprets the CVAA to mean that "published" includes all programming, while "exhibited on television" only modifies "exhibited," thus encompassing programming that is both published and exhibited. They also argue that the CVAA applies to programming published before and after the regulations' effective date, citing the Telecommunications Act of 1996, which mandates accessibility for programming regardless of publication timing.

Defendant's interpretation, however, is criticized as inconsistent with the statute's language and in direct conflict with FCC regulations, which specify that only television programming aired after the regulations are subject to captioning requirements.

Closed captioning is mandated for full-length video programming delivered via Internet protocol if it was published or exhibited on television in the U.S. with captions after certain dates. The regulations and FCC commentary do not indicate an intent to narrow the scope of the regulations relative to the CVAA (Twenty-First Century Communications and Video Accessibility Act). The FCC interprets the CVAA to include any programming delivered via Internet protocol, provided it aired on television with captions after the regulations' effective date, aligning with the statute's language and purpose. Courts are expected to defer to the FCC’s interpretation under the Chevron deference principle.

The CVAA’s legislative history uses the terms "transmitted for display on television" and "published or exhibited on television" interchangeably, clarifying that the CVAA applies only to programming shown on television with captions following the regulations' effective date. Consequently, the CVAA does not encompass all streaming video programming relevant to the plaintiffs’ ADA (Americans with Disabilities Act) claim, and interpreting it as altering the ADA would leave plaintiffs without legal recourse for ADA violations.

Defendant's claim of mootness—asserting that the plaintiffs' claims are void since the FCC regulations are now in effect—fails because the CVAA does not cover all relevant programming and does not exempt any ADA provisions. Thus, the plaintiffs' ADA claim remains valid despite the implementation of FCC regulations.

The court denies the Defendant’s Motion for Judgment on the Pleadings, noting a disagreement over statutory interpretation doctrines. Plaintiffs argue against implied repeal of the ADA by the CVAA, citing a strong presumption against such repeals unless there is a clear conflict or substitution intent. The Defendant counters that the CVAA carves out specific subject matter rather than repealing ADA provisions. The court concludes that if there is no conflict between the statutes, neither an implied repeal nor a carve-out is warranted without explicit Congressional intent.

The court in Zulauf determined that a plaintiff must exhaust remedies under the Telecommunications Act before pursuing a lawsuit under the ADA. However, in the current case, this requirement is deemed inappropriate because some of the plaintiffs' claims may not be covered by the CVAA, thus lacking available administrative remedies. The challenge of distinguishing which claims fall under the CVAA is complicated by the varying coverage of video programming based on its television broadcast timing. Allowing the plaintiffs to pursue their ADA claims without exhausting CVAA remedies is viewed as more efficient and less prone to delays. The defendant argues that the National Association of the Deaf (NAD) should be bound by its previous statements to the FCC asserting the CVAA's broad applicability to all televised programming. Nonetheless, such representations in administrative contexts do not influence the current judicial proceedings, and the defendant's cited cases do not support its argument. The principle of judicial estoppel, which prohibits a party from contradicting a previous position in a legal context, is relevant here.