[Tn-talk] Federal District Court in Massachusetts First in Country to Hold that the Americans with Disabilities Act Applies to Website-Only Businesses

[Sheri Anderson]

Good morning,

While the below case is not a TN finding, and even though it has been
brought about by the deaf community and not the blind community, this
ruling will have a huge impact on the lives of blind Tennesseans.

Website only based businesses are fast becoming the way of conducting
commerce for entertainment as well as daily home and work tasks. What
Netflix was attempting was not only harmful for millions of those
wanting to view movies and TV programming, but if they had been
successful, they would have crippled blind individuals access to vital
services and opportunities.

Judge Ponsor should be commended for his understanding of equal access
for all, and his refusal to allow a corporate minded entity to
manipulate the law.

Please read and share.

Sheri Anderson

http://nad.org/news/2012/6/landmark-precedent-nad-vs-netflix
Federal District Court in Massachusetts First in Country to Hold that
the Americans with Disabilities Act Applies to Website-Only Businesses

Judge Denies Netflix’s Motion for Judgment on the Pleadings and Allows
Disability Civil Rights Case, National Association of the Deaf, et al.
v. Netflix, Case No. 3:11-cv-30168, to Move Forward

The National Association of the Deaf (“NAD”), the nation’s premier
civil rights organization of deaf and hard of hearing individuals, won
a major victory today when Judge Ponsor denied defendant Netflix’s
Motion for Judgment on the Pleadings seeking dismissal of the case.
The District Court of Massachusetts is the first court in the country
to hold that the Americans with Disabilities Act (“ADA”) applies to
website-only businesses. The underlying lawsuit alleges that Netflix
violates the ADA by failing to provide closed captioning on most of
its “Watch Instantly” programming streamed on the Internet, thereby
denying equal access to the deaf and hard of hearing community.

Netflix argued that the ADA applies only to physical places and
therefore could not apply to website-only businesses like Netflix’s
“Watch Instantly” streaming service. Judge Ponsor denied the motion,
stating that it would be “irrational to conclude” that: “places of
public accommodation are limited to actual physical structures…In a
society in which business is increasingly conducted online, excluding
businesses that sell services through the Internet from the ADA would
run afoul of the purposes of the ADA and would severely frustrate
Congress’s intent that individuals with disabilities fully enjoy the
goods, services, privileges and advantages, available indiscriminately
to other members of the general public.” Moreover, Judge Ponsor stated
that the fact that the ADA “does not include web-based services as a
specific example of a public accommodation is irrelevant” since such
web-based services did not exist when the ADA was passed in 1990 and
because “the legislative history of the ADA makes clear that Congress
intended the ADA to adapt to changes in technology.”

The Disability Rights Education and Defense Fund’s Directing Attorney,
Arlene Mayerson, stated: “By recognizing that web-sites are covered by
the ADA, the court has ensured that the ADA stays relevant as much of
our society moves from Main Street to the Internet.  Netflix's
argument that the neighborhood video store is covered by the ADA, but
it, with its over 20 million subscribers, is not, was soundly rejected
by the Court.”

“This victory ensures that the ADA will continue to be a powerful
force in our rapidly changing lives, protecting our right to equal
access on the Internet,” said NAD President Bobbie Beth Scoggins.
“Netflix’s flat-out refusal to fully serve our community simply
because it is an Internet-based business is unacceptable. Leaving
millions of deaf and hard of hearing consumers without equal access is
not an option.”

"This legal ruling is a major decision that ensures the ADA remains
current with this technological age and makes it possible for deaf and
hard of hearing people and people with disabilities to have full
access to the same programs and services available to everyone else,"
said NAD CEO Howard Rosenblum.

In addition, Netflix argued that the case should be dismissed because
it does not own copyrights to its programming and therefore cannot be
forced to provide closed captions and that the 21st Century
Communications and Video Accessibility Act (“CVAA”) “carves out” all
video programming streamed on the Internet as separate from the ADA.
Judge Ponsor found that at this stage, the Plaintiffs had sufficiently
alleged that Netflix “owns, leases..., or operates” a place of public
accommodation for purposes of the ADA and that the CVAA does not
“carve out” streaming programming from the ADA because there is “no
conflict between the statutes” and there is no indication from
Congress to the contrary.

In addition to the NAD, other Plaintiffs include the Western
Massachusetts Association of the Deaf and Hearing-Impaired (WMAD/HI)
and a deaf Massachusetts resident.

The plaintiffs are represented by the Disability Rights Education &
Defense Fund in Berkeley, CA, the Oakland, CA law firm Lewis,
Feinberg, Lee, Renaker & Jackson P.C., and the Boston, MA law firm
Sugarman, Rogers, Barshak & Cohen, P.C.

The Disability Rights Education & Defense Fund and the NAD ask deaf
and hard of hearing individuals who want to learn more about the
lawsuit to visit: http://www.dredf.org/captioning, call the toll-free
number 1-800-348-4232 (V), or email Shane Feldman at
netflixlawsuit at nad.org or Charlotte Lanvers at clanvers at dredf.org.