[author: Michele Bowman]
The Americans with Disabilities Act has come to the rescue of hearing-impaired movie lovers who can’t watch all their favorites online because some titles lack closed-captioning. On Oct. 11, Netflix Inc. settled a class action brought by deaf viewer Lee Nettles and two groups representing deaf and hearing-impaired people who had sued the company under the ADA.
Under a consent order entered in federal court in Massachusetts, Netflix agreed to provide 100 percent of its video-streamed content with closed captions within two years.
Plaintiffs Held Out for 100 Percent
Netflix had claimed in court filings that 90 percent of its content was closed-captioned, and it resisted the suit brought by the National Association of the Deaf (NAD), the Western Massachusetts Association of the Deaf and Hearing Impaired and Nettles.
“When we started talking to Netflix, they had only 30 percent of the most popular content captioned,” says Arlene Mayerson, directing attorney with the Disability Rights Education & Defense Fund (DREDF), which along with two law firms, represented the plaintiffs. Over the course of the lawsuit, Netflix increased that number to 82 percent, but the NAD insisted that the site be 100-percent accessible, she says.
The most important thing to come out of this case is “the principle that all, not some, of the content must be accessible,” Mayerson points out. “Deaf and hard-of-hearing people are not satisfied with only the most popular content being covered. Like others, hearing-impaired consumers have varied taste and must not be pigeonholed or limited in their choices.”
No Wiggle Room for Netflix
The NAD insisted that under the ADA, as a place of public accommodation Netflix was required to provide “full and equal enjoyment” of its goods, services, facilities, and privileges. Netflix tried to argue that it is not a place of public accommodation, and thus not subject to the ADA, but the judge shot down that argument easily.
Netflix also said it was only subject to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), rather than to the ADA. “Netflix did not want to be subject to the ADA,” Mayerson says pointedly.
The CVAA Adds Protections
The CVAA requires certain communications services and products, including text messaging, email, instant messaging, and video communications, to be accessible by people with disabilities. New regulations issued by the Federal Communications Commission in January went into force in April.
The new FCC regs define captioning responsibilities for distributors of Internet video programming and set guidelines and grace periods for compliance. They also bar private lawsuits for violations, instead establishing an administrative complaint procedure.
But the CVAA was too narrow to apply to the Netflix case. “The CVAA is limited to programs shown on TV after September 30, 2012,” notes Mayerson. “We argued that the ADA was broader, requiring full and equal access.”
The judge agreed and Netflix was finally backed into a corner. When the judge sent the parties to dispute resolution, which Mayerson says “was very helpful,” the company finally knuckled under. In addition to paying attorneys’ fees to the tune of $755,000, Netflix will pay NAD $40,000 to monitor its progress for the duration of the consent decree, which will last four years.
So keep an eye out for that progress; your favorite movie should appear with captions by October 1, 2014. And if you are hearing impaired and come across other commercial streaming sites that do not contain captions, Mayerson suggests contacting the DREDF.
If you are concerned about your rights under the ADA or the CVAA, contact a disability rights lawyer on Lawyers.com.