National Association of the Deaf, Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles, Plaintiffs v. NETFLIX, INC., Defendant - Statement of Interest

2. Netflix’s Watch Instantly Service Falls Within the Enumerated Categories of Public Accommodations

Title III and its implementing regulation enumerate 12 categories of private entities whose operations affect commerce that are considered public accommodations. 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104. Netflix’s Watch Instantly service falls within at least one, if not more, of these categories, as a “service establishment,” 42 U.S.C. § 12181(7)(F) (including travel service, shoe repair service, etc.), as a “place of exhibition or entertainment,” 42 U.S.C. § 12181(7)(C) (including motion picture house, theater, etc), and/or as a “sales or rental establishment,” 42 U.S.C. § 12181 (7)(E) (including grocery store, shopping center, etc.). See also 28 C.F.R. § 36.104.

Like a travel service that has no physical structure open to the public, Netflix is a “service establishment” that enables customers to instantly stream a wide variety of programming via its website wherever they have an Internet connection. Netflix also falls into the “exhibition or entertainment” category as its service displays movies, television programs, and other entertainment content. Finally, Netflix is also a “rental establishment” because its customers are paying for the rental of video programming via its website.

The absence of web-based services as a specific example in these categories is not surprising – when Congress enacted the ADA in 1990, the World Wide Web had not yet been invented. See Pub. L. No. 101-336, 104 Stat. 327 (ADA passed on July 26, 1990); Nerds 2.0.1 Timeline: 1990-1998, PBS (1998) http://www.pbs.org/opb/nerds2.0.1/timeline/90s.html (World Wide Web released in 1991). Further, such absence does not mean that such services aren’t included. Congress intended that the statute not be limited to the specific examples listed in each category. The House Report explains that the list of examples in the definition of “public accommodations” is not meant to be a limitation on the more general catchall categories:

• A person alleging discrimination does not have to prove that the entity being charged with discrimination is similar to the examples listed in the definition. Rather, the person must show that the entity falls within the overall category. For example, it is not necessary to show that a jewelry store is like a clothing store. It is sufficient that the jewelry store sells items to the public.

H.R. Rep. No. 485, pt. 3, at 54 (1990). The Senate Report similarly states that

• within each of these categories, the legislation only lists a few examples and then, in most cases, adds the phrase “other similar” entities. The Committee intends that the “other similar” terminology should be construed liberally consistent with the intent of the legislation that people with disabilities should have equal access to the array of establishments that are available to others who do not currently have disabilities.

S. Rep. No. 116, at 59 (1989).

Importantly, Congress intended to include public accommodations that take advantage of new technology. The House Committee on Education and Labor stated that it intended “that the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times[,]” and that technological advances “may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities.” H.R. Rep. No. 485, pt. 2, at 108 (1990). Indeed, the statute cannot be, and has not been, limited by what Congress envisioned at the time of enactment. See, e.g., Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 211 (1998) (ruling that ADA applies to prisons, even if “Congress did not envision that the ADA would be applied to state prisoners”) (citation and internal punctuation omitted); cf., Oncale v. Sundowner, 523 U.S. 75, 79 (1998) (holding that same-sex sexual harassment was actionable under Title VII, even if Congress did not contemplate same-sex sexual harassment when it enacted the Civil Rights Act of 1964 because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils”); Dean v. Ashling, 409 F.2d 754, 755 (5th Cir. 1969) (ruling that title II of the Civil Rights Act of 1964 applies to rental space in a trailer park, even though “[n]othing in the legislative history suggests that anyone considered trailer parks”).

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Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir. 2000) (requiring some connection between the goods or services complained of and an actual physical place); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (finding no nexus between challenged insurance policy and services offered to the public from insurance office).