D. Mass.: Websites Can Be “Places of Public Accommodation” Subject to the Americans with Disabilities Act

Published On June 28, 2012 | By Dan Sachs | General
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In a controversial decision, the Massachusetts District Court has ruled that Netflix’s Watch Instantly streaming video service must comply with the requirements of the Americans with Disabilities Act (“ADA”).

The Plaintiffs, in Nat’l Ass’n of the Deaf v. Netflix, Inc, No. 3:11-cv-30168-MAP (D. Mass. June 19, 2012), brought suit, alleging that Netflix failed to provide equal access to its streaming video content, for deaf and hearing impaired individuals.  Netflix moved to dismiss the complaint on the basis that: (1) it is not a “place of public accommodation,” and therefore not required to comply with the ADA; (2) it does not have the ability to place closed captioning on its content under copyright law, and is not responsible under the ADA for what it cannot control; and (3) the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), 47 U.S.C. § 613, gave the Federal Communications Commission primary jurisdiction to decide the extent to which Internet streaming video providers must offer closed captioning, removing the issue from the scope of the ADA.

In denying Netflix’s motion to dismiss, the district court noted that, under First Circuit precedent, the “places of public accommodation” language of the ADA has been interpreted to mean more than actual physical structures, including services offered by telephone or mail. The court then concluded that, under this precedent, services offered over the web are “places of public accommodation,” even when they are only accessed in users’ homes.

Having determined that the ADA applies to web-based services, the court considered whether Netflix should be exempt from closed captioning requirements because, under copyright law, it is unable to create closed captioned versions of video content. While the court did not decide the issue, it ruled that Netflix must provide proof of its lack of control, such as copies of the terms of its agreements with copyright holders.

Turning to the CVAA, the court concluded that Congress “clearly intended” for FCC regulations promulgated under the CVAA to supplement, rather than replace, the closed captioning requirements imposed on streaming video providers under the ADA.

The First Circuit’s interpretation of “places of public accommodation,” under which this case was decided, is more expansive than that of other circuits. If the First Circuit does not change its course in deciding the appeal in this case, this question of interpretation could end up before the Supreme Court. Until then, websites providing video content must either undertake the costly and potentially difficult process of obtaining closed captioned versions of others’ copyrighted works, or else face the threat of federal discrimination suits.

About The Author

Dan Sachs, ZwillGen’s inaugural Fellow, assists ZwillGen attorneys on a broad range of matters, including litigation, investigations, product counseling, regulatory compliance, and policy. Prior to joining the firm, Dan worked at Facebook, where he assisted the Chief Privacy Officer for Policy in responding to federal, state, and international policy developments, engaging with regulators and stakeholders, and advising business units on privacy issues. During law school, Dan was a member of the George Washington Law Review and served as a research assistant to Professor Jeffrey Rosen, focusing on U.S. and international consumer privacy and surveillance issues. He was a legal intern with ZwillGen in the summer of 2012. Dan also worked as a legal intern with the U.S. Attorney’s Office for the District of Columbia.