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

3. The Department of Justice’s Regulatory Developments Reinforce that Netflix is a Public Accommodation

Contrary to Defendant’s unsupported assertions, the Department’s ongoing regulatory developments support that Netflix is a public accommodation subject to title III of the ADA. The Department is currently developing regulations specifically addressing the accessibility of goods and services offered via the web by entities covered by the ADA. The fact that the regulatory process is not yet complete in no way indicates that web services are not already covered by title III.

Title III regulations have always required that public accommodations provide effective communication to persons with disabilities through the provision of auxiliary aids and services, including, where appropriate, captioning. 28 C.F.R. § 36.303(b)(1), 28 C.F.R. Part 36, App. C, § 36.303; see also Arizona v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 675 (9th Cir. 2010) (holding that the ADA required a chain of movie theaters to exhibit movies with closed captioning and video description unless the theaters could show that to do so would amount to a fundamental alteration or undue burden); Agreement Between the United States of America and Walt Disney World Co. Under the Americans With Disabilities Act Concerning the Use of Auxiliary Aids at Walt Disney World (January 17, 1997), available at http://www.ada.gov//disagree.htm (requiring Walt Disney World to provide auxiliary aids and services necessary for deaf and hard of hearing individuals to enjoy the programs and services at Walt Disney World Resort, including captioning, sign language interpreters, assistive listening systems, and written aids).

In addition, the Department has long affirmed the application of title III of the ADA to websites of public accommodations, and the Department’s views on title III are entitled to deference. Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility of websites to individuals with visual disabilities. See Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996), available at http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_tal/tal712.txt. In 2000, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, Inc., 232 F. 3d 208 (5th Cir. 2000) which involved a web-only business. The Department’s brief explained that a business providing services solely over the Internet is subject to title III’s prohibitions on discrimination on the basis of disability. See Brief of the United States as Amicus Curiae in Support of Appellant, (No. 99-50891), 1999 WL 33806215, available at http://www.justice.gov/crt/about/app/briefs/hooks.pdf.

Contrary to Defendant’s assertion, DOJ has not “declined to adopt” regulations regarding web accessibility. Def’s. Mem. at 12. Rather, DOJ is engaged in an ongoing regulatory process, and the regulatory proposal currently being considered by the Department supports the long-standing coverage of websites. In 2008, the Department issued a Notice of Proposed Rulemaking (“NPRM”)to adopt the new ADA Accessibility Guidelines published by the U.S. Access Board and to update the title III regulation on such topics as safe harbor for barrier removal, service animals, equipment and furniture, wheelchairs and other power-driven mobility devices, and auxiliary aids and services, among others. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508, 34514-19 (June 17, 2008). The NPRM explained that the Department was considering options for requiring movie theater owners and operators to exhibit movies that are captioned, explaining that “both open and closed captioning are examples of auxiliary aids and services under the Department’s regulation, 28 CFR § 36.303(b)(1),” and that closed captioning technology did not yet exist at the time the ADA was enacted for first run movies in theaters. Id. at 34530. The NPRM sought comments on movie captioning but did not propose regulatory language. The Department received numerous comments urging the Department to issue captioning and video description regulations. The Department promulgated a Final Rule revising the title III regulations on September 15, 2010, which did not include specific regulations governing movie captioning beyond the general effective communication requirements. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed. Reg. 56236 (Sept. 15, 2010).

On July 26, 2010, the Department issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) on Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. 75 Fed Reg. 43460. The Department explained in the ANPRM that although the Department has been clear that the ADA applies to websites of public accommodations, inconsistent court decisions, differing standards for determining web accessibility, and repeated calls for Department action warranted further guidance. Id. at 43464. Through the ANPRM, the Department sought to explore what regulatory provisions it could propose to make clear to entities covered by the ADA their obligations to make their websites accessible - including captioning of videos—and what specific requirements could be adopted to provide the disability community consistent access to websites and covered entities clear guidance on what is required under the ADA. Id. at 43464, 43467 Question 15. The Department asked for comments on what website accessibility standards should be used, any coverage limitations, and compliance dates, among other issues.

The comment period was open for 180 days after publication in the Federal Register on July 26, 2010. In response to the ANPRM, the Department received approximately 440 public comments and is reviewing these comments. See Office of Information and Regulatory Affairs, Office of Management and Budget, Reginfo.gov, Unified Agenda, Fall 2011 Agency Statements of Regulatory Priorities (Department of Justice), available at http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201110/Statement_1100.html. After reviewing the comments, the Department may issue an NPRM, receive comments, and issue a Final Rule.

While the regulatory process may not have proceeded as quickly as Defendant expects, it is still very much ongoing, as confirmed by the DOJ Fall 2011 Unified Agenda (DOJ’s statement to the Office of Management and Budget of its regulatory agenda). The fact that that the regulatory process is not yet complete does not support any inference whatsoever that web-based services are not already covered by the ADA, or should not be covered by the ADA.⁵

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⁵ Defendant also is incorrect that “Congress has also declined to update the statute to include websites and video programming . . . despite making several amendments to the ADA since 1990.” Def.’s Mem. at 13. In reality, the ADA has been amended by Congress only once, in 2008, through the ADA Amendments Act (“ADAAA”), Pub. L. 110-325 (Sept. 25, 2008). The purpose of the ADAAA was to clarify Congress’ intent to broadly cover individuals with disabilities, and to supersede court decisions that had too narrowly interpreted the ADA’s disability definition. ADAAA, Sec. 2 Findings and Purposes. It is unreasonable to draw any conclusion about whether a web-based service is or is not a public accommodation from the enactment of the ADAAA.