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

STATUTORY AND REGULATORY BACKGROUND

The history behind the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) was recited in the United States’ Statement of Interest in Opposition to Defendant’s Motion to Dismiss the First Amended Complaint (filed Oct. 3, 2011) (Docket #24) and need not be repeated fully here. In short, in 1996, Congress enacted the Telecommunications Act of 1996, Pub. L. No. 104-104, § 713, 110 Stat. 126 (1996) (codified at 47 U.S.C. § 613), requiring for the first time closed captioning of television programs. Previously, the television industry had voluntarily provided some television captioning. In 2010, Congress passed the CVAA in order to update federal communications law and “to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.” See S. Rep. No. 111-386, at 1- 4 (2010); H. Rep. No. 111-563, at 19-20 (2010). While the CVAA addresses a range of communication technology and devices, at issue in this case are the provisions relating to closed captioning of video programming (i.e., television programming) delivered using Internet protocol.  Specifically, Section 202 of the CVAA requires the Federal Communications Commission (“FCC”) to promulgate regulations “to require the provision of closed captioning on video programming delivered using Internet protocol that was published or exhibited on television with captions after the effective date of such regulations.” See CVAA § 202(b) (codified at 47 U.S.C. § 613(c)(2)(A)). The FCC published its regulations through a Final Report and Order released January 13, 2012 (Def.’s Ex. B), as summarized in a Final Rule published in the Federal Register on March 30, 2012. Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, FCC 12-9 (Jan. 13, 2012) (“FCC 12-9”), summarized and pub’d at 77 Fed. Reg. 19480-01, 2012 WL 1048800 (Mar. 30, 2012), codified at 47 CFR Pts. 15 and 79.

Despite Defendant’s misrepresentations,² both the CVAA and the FCC’s implementing regulations make absolutely clear that the CVAA requires closed captioning of certain video programming that is streamed on the Internet only if it was exhibited on TV with captions after the effective date of the regulations. See CVAA § 202(b) (codified at 47 U.S.C. § 613(c)(2)(A)); 47 C.F.R. § 79.4(b). While the regulations published in the Federal Register on March 30, 2012 take effect on April 30, 2012, the regulations establish compliance deadlines for captioning of streamed video programming ranging from 6 to 24 months after April 30, 2012. 47 C.F.R. § 79.4(b). Such programming must be captioned if the programming is exhibited on television in the United States with captions on or after the following dates: (1) September 30, 2012, for prerecorded programming that is not substantially edited for Internet distribution; (2) March 30, 2013 for live and near-live programming; and (3) September 30, 2013 for prerecorded programming that is substantially edited for Internet distribution. Id. However, these dates do not apply if the programming was already in the video programming distributor’s library. If this is the case, then such programming must be captioned within certain time frames only if it is shown on television with captions on or after March 30, 2014. Id. Consequently, the CVAA requires streamed Internet programs to be captioned, at the earliest, on September 30, 2012. The CVAA does not require programming shown on television before September 30, 2012 to be captioned when streamed on the Internet, unless and until the programming is shown again on television on or after September 30, 2012.
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² Defendant states that “The CVAA applies to all streaming video programming produced at any time, including anything that will have been exhibited on television ‘prior to’ or ‘after’ the effective date,” citing to CVAA § 202(b), codified at 47 U.S.C. § 613(c). See Def.’s Mot. for J. on the Pleadings, Mem. of Points and Authorities at 16 (“Def.’s Mem.”). In fac, the “prior to” language does not exist in § 202(b), which only governs programming exhibited on television after the effective date.