Case 3:11-cv-30168-MAP Document 52 Filed 06/19/12 Page 1 of 31

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiffs
v.
NETFLIX, INC., Defendant

) ) ) )
) C.A. NO. 11-CV-30168-MAP
) ) )

MEMORANDUM AND ORDER REGARDING MOTION FOR JUDGMENT ON THE PLEADINGS
(Dkt. No. 43) June 19, 2012 PONSOR, U.S.D.J. I. INTRODUCTION Plaintiffs, the National Association of the Deaf ("NAD"), the Western Massachusetts Association of the Deaf and Hearing Impaired ("WMAD/HI"), and Lee Nettles, bring this action under Title III of the Americans with Disabilities Act ("ADA") against Defendant, Netflix, Inc. ("Netflix"), for failure to provide equal access to its video streaming web site, "Watch Instantly," for deaf and hearing impaired individuals. Plaintiffs seek injunctive and declaratory relief requiring Defendant to provide closed captioning for all of its Watch Instantly content.

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Defendant has filed a motion for judgment on the pleadings, arguing that Plaintiffs have failed to allege sufficient facts for a claim under the ADA, that Plaintiffs' interpretation of the ADA is precluded by the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA"), Pub. L. No. 111-260, 124 Stat. 2751 (codified at 47 U.S.C. § 613), and that Plaintiffs' claim is moot. (Dkt. No. 43.) Plaintiffs oppose Defendant's motion (Dkt. No. 46), and the Department of Justice has filed a statement of interest in opposition to Defendant's motion as well (Dkt. No. 45). For the reasons set forth below, this motion will be denied.
II. BACKGROUND Defendant is the leading provider of streaming television and movies on the Internet through its on-demand service web site, called "Watch Instantly." Watch Instantly allows subscribers to stream available videos through the Internet on a computer, television, or other device. Plaintiffs NAD and WMAD/HI are non-profit organizations that advocate on behalf of deaf and hard of hearing individuals. Plaintiff Lee Nettles is a deaf individual and
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a member of both WMAD/HI and NAD. Plaintiffs allege that Defendant provides closed captioning, which allows deaf and hard of hearing individuals to view television shows and movies by reading captioned text that they can activate on the display, for only a small portion of the titles available on Watch Instantly. Plaintiffs further allege that other Netflix services are also not accessible to deaf and hard of hearing individuals. For example, captioned films are not categorized in the same manner as other films, making it impossible for deaf and hard of hearing individuals to use Netflix's personalized film recommendations.
On the basis of these allegations, Plaintiffs have brought a claim under Title III of the ADA, arguing that Defendant's failure to caption all of its streaming library violates the ADA's prohibition of discrimination on the basis of disability. 42 U.S.C. § 12182 (a) .
In response to the complaint, Defendant filed a motion to dismiss on September 12, 2011, arguing that, by enacting the CVAA, Congress gave the FCC primary jurisdiction to decide the extent to which Internet streaming video
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providers must offer closed captioning. (Dkt. No. 22.) Congress enacted the CVAA in October 2010 "to help ensure that persons with disabilities are able to utilize communications services and equipment and to better access video programming." S. Rep. No. 111-386, at 1 (2010). Along with other technological advancements, the CVAA addressed the closed captioning of streaming video programming on the Internet. The Act mandated that the Federal Communications Commission ("FCC") issue regulations requiring "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." 47 U.S.C. § 613(c) (2)
(A) .
At the time of the hearing on Defendant's motion to dismiss, the FCC had not yet promulgated regulations implementing the CVAA. The court denied Defendant's motion on November 10, 2011, but granted a stay pending the completion of rule-making proceedings by the FCC. (Dkt. No. 32. )
The FCC issued its final regulations on January 13,
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2012. See 47 C.F.R. § 79.4. Among other things, the regulations defined captioning responsibilities for distributors of internet video programming, set deadlines and grace periods for compliance, prohibited private rights of action, and established an administrative complaint procedure. The regulations went into effect on April 30, 2012. Defendant has now filed a motion for judgment on the pleadings.
III. DISCUSSION Defendant argues that judgment on the pleadings is required because: (1) Plaintiffs have failed to allege the existence of a "place of public accommodation," as required for a cla~ under the ADA; (2) Plaintiffs have failed to allege that Defendant has control over the captioning that Plaintiffs seek, as also required for a claim under the ADA; (3) Plaintiffs' interpretation of the ADA is precluded by the CVAA; and (4) Plaintiffs' cla~ is moot. For the reasons set forth below, none of Defendant's arguments is persuasive. A. Place of Public Accommodation. To state a claim under the ADA, a plaintiff must show
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that the alleged discrimination involves the services of a "place of public accommodation." 42 U.S.C. § 12182 (a) . Plaintiffs in this case allege that Defendant's Watch Instantly web site is a place of public accommodation. (Dkt. No. 19, Am. Compl. i 6.) Defendant disputes that a web site in general, and Watch Instantly in particular, can be a place of public accommodation under the ADA.
The ADA lists twelve categories of entities that qualify as places of public accommodation. 42 U.S.C. § 12181(7). Plaintiffs argue that the Watch Instantly web site falls within the scope of four of these categories: "place of exhibition and entertainment," "place of recreation," "sales or rental establishment," and "service establishment." Id. According to Plaintiffs, Defendant is a business that provides a subscription service of internetbased streaming video through the Watch Instantly web site and, as such, is analogous to a brick-and-mortar store or other venue that provides similar services, such as a video rental store.
Plaintiffs' interpretation of the statute as applying to web-based businesses is supported by the First Circuit's
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decision in Carparts Distrib. Ctr. v. Auto. Wholesaler's Assoc., which held that "places of public accommodation" are not limited to "actual physical structures." 37 F.3d 12, 19 (1st Cir. 1994). The First Circuit explained that
[i]t would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.
Carparts's reasoning applies with equal force to services purchased over the Internet, such as video programming offered through the Watch Instantly web site. 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. Id. at 20. Defendant argues that Carparts is irrelevant because the issue here is not whether the ADA applies to non-
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physical structures, but whether the list of public accommodations in the statute includes entities like web sites or services such as streaming video programming. Because it does not, according to Defendant, the Watch Instantly web site does not fall within the scope of the ADA.
This argument fails because the fact that the ADA does not include web-based services as a specific example of a public accommodation is irrelevant. First, while such webbased services did not exist when the ADA was passed in 1990 and, thus, could not have been explicitly included in the Act, the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology. See. e.g., H.R. Rep. 101-485 (II), at 108 (1990) ("[T]he Committee intends 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.").
Second, and more importantly, Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations. Plaintiffs must show
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only that the web site falls within a general category listed under the ADA. See, e.g., S. Rep. No. 116, at 59 (1990) ("[W]ithin 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 . . "); H. R. Rep. No. 485 (III), at 54 (1990) ("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.").
Plaintiffs convincingly argue that the Watch Instantly web site falls within at least one, if not more, of the enumerated ADA categories. The web site may qualify as: a "service establishment" in that it provides customers with the ability to stream video programming through the internet; a "place of exhibition or entertainment" in that it displays movies, television programming, and other content; and a "rental establishment" in that it engages customers to pay for the rental of video programming. 42
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U.S.C. § 12181(7).

Defendant next argues that the Watch Instantly web site

cannot be a place of public accommodation because it is

accessed only in private residences, not in public spaces.

According to Defendant, every specific example of a public

accommodation in the ADA refers to a public arena that

involves people outside of the home (e.g., motion picture

house, bakery, laundromat, zoo, and the like). Under the

doctrine of ejusdem generis -- which provides that "where

general words . . follow the enumeration of particular

classes of things

. , the general words will be

construed as applying only to things of the same general

class as those enumerated," United States v. McKelvey, 203

F.3d 66, 71 (1st Cir. 2000) -- Defendant argues that all

"public accommodations" must be accessed outside of a

private residence.

Again, this argument is unpersuasive. The ADA covers

the services "of" a public accommodation, not services "at"

or "in" a public accommodation. 42 U.S.C. § 12182 (a) . This

distinction is crucial. Accord Nat' I Fed'n of the Blind v.

Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006)

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("The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute."). Consequently, while the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation.
Under Defendant's reading of the statute, many businesses that provide services to a customer's home such as plumbers, pizza delivery services, or moving companies would be exempt from the ADA. The First Circuit held in Ca~arts that such an interpretation is absurd. 37 F.3d at 19 (extending the ADA to businesses that offers services to customers in their homes through the telephone or mail). Under the Ca~arts decision, the Watch Instantly web site is a place of public accommodation and Defendant may not discriminate in the provision of the services of that public accommodation -- streaming video even if those services are accessed exclusively in the home.
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B. Control. To plead a violation of the ADA, a plaintiff must also
show that a defendant "owns, leases (or leases to), or operates" a place of public accollDllOdation. 42 U.S.C. § 12182 (a) . The First Circuit has not addressed the meaning of "owns, leases [], or operates," but other courts have held that the relevant inquiry is whether the defendant "specifically controls the modification of the [things at issue] to improve their accessibility to the disabled." Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995). At least one court in the District of Massachusetts has adopted this definition. See Gluckenberger v. Boston Univ., 957 F. Supp. 306, 322-23 (D. Mass. 1997).
Defendant argues that Plaintiffs must, and have failed to, allege that Defendant controls the captioning of streaming video content. According to Defendant, owners of video programming -- not distributors, like Defendant -hold the exclusive copyrights necessary to caption content. Because Defendant cannot caption content without the copyright owners' permission, it follows that Defendant does not control the captioning of video programming and
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therefore cannot be liable under the ADA. Once again, this argument lacks traction. Plaintiffs
have pled that Defendant owns and operates the Watch Instantly web site -- a place of public accommodation and that Defendant has stated that it is working to provide captioning for the content on Watch Instantly. (Dkt. No. 19, Am. Compl. i i 13, 16-20, 26.) These allegations are sufficient at this stage of the litigation to establish that Defendant "owns, leases [], or operates" a place of public accommodation for purposes of the ADA.
The cases Defendant cites in which courts have granted motions to dismiss or for summary judgment on the basis of a lack of control are distinguishable from the case at hand in that they concerned defendants who did not actually own or operate a place of public accommodation. See. e.g., Pickern v. Pier 1 Imps. CU.E.>. Inc., 457 F.3d 963, 965-67 (9th Cir. 2006) (affirming grant of summary judgment and holding that a store was not liable for installing a ramp across a cityowned strip of grass between the sidewalk and store because the store did not own that strip of grass); Neff, 58 F.3d at 1066-68 (affirming grant of summary judgment where a
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franchisor with limited control over a franchisee's store, as outlined by the franchise agreement, did not operate a place of public accommodation); Gluckenberger, 957 F. Supp. at 322-23 (granting motion to dismiss ADA cla~ as to one university employee on the ground that employee did not have decision-making power over the university's operations). In this case, on the other hand, Defendant fully owns and operates a place of public accommodation, but would potentially be unable to make the modifications desired by Plaintiffs for other reasons.
While further discovery may reveal that, even though Defendant owns the Watch Instantly web site, it does not have the power to provide the captioning Plaintiffs seek due to copyright issues, this question is not properly before the court now. There is currently no evidence before the court concerning how much of the streaming content and associated copyrights Defendant owns, what the terms of Defendant's agreements with other copyright owners may be (including whether Defendant already has permission to caption content), and whether content is delivered to Defendant with or without captioning. This issue may be
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revisited on a motion for summary judgment.
C. CVAA.
In the alternative, Defendant argues that, even if Plaintiffs adequately pled a claim under the ADA, interpreting the ADA to cover the captioning of streaming video programming would create an irreconcilable conflict with the CVAA. Consequently, according to Defendant, the court should read the CVAA as removing the captioning of video programming from the scope of the ADA. Plaintiffs respond, first, that the statutes are compatible and, second, that Congress could not have intended the CVAA to supplant the ADA because the CVAA applies to only a small subset of streaming video programming. A review of the statutes and the pertinent authorities reveals that Plaintiffs are correct: the CVAA was clearly intended to complement, not supplant, the ADA.
1. Irreconcilable Conflict. It is well-established that, when there is a conflict between two statutes, "the most recent and more specific congressional pronouncement will prevail over a prior, more generalized statute." Nat. Res. Def. Council. Inc. v. U.S.
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Envt'l Prot. Agency, 824 F.2d 1258, 1278 (1st Cir. 1987).
According to Defendant, there is an irreconcilable conflict
between the CVAA and the ADA when applied to captioning of
streaming video. Because the CVAA specifically addresses
such captioning while the ADA covers disability
discrimination generally, Defendant argues that Congress
intended the CVAA to "carve out" the captioning of streaming
video programming from the scope of the ADA. 1 Stewart v.
1 The parties disagree on what doctrine of statutory interpretation should apply. Plaintiffs contend that using the CVAA to repeal portions of the ADA contravenes the strong presumption against implied repeals. See Branch v. Smith, 538 u.S. 254, 273 (2003) ("An implied repeal will only be found where the provisions in two statutes are in irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.").
Defendant argues that the doctrine of implied repeal is irrelevant because the CVAA "carves out" a specific subjectmatter from the ADA; it does not "repeal" any provisions of the ADA. These doctrines, according to Defendant, are distinct. See Greenless v. Almond, 277 F.3d 601, 608-09 (1st Cir. 2002) ("The 'implied repeal' argument is an odd one because at issue is not whether Congress totally repealed [the older statutory provision], but whether it intended to carve out [a specific subject matter] from the reach of that provision.").
Regardless of which doctrine applies or whether they are substantially different, if there is no conflict between the statutes -- as Plaintiffs argue and the court concludes -- neither an implied repeal nor a carve out is appropriate without indication from Congress to the contrary.
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Smith, 673 F.2d 485, 492 (D.C. Cir. 1982) ("When one statute speaks in general te~s while the other is specific, conflicting provisions may be reconciled by carving out an exception from the more general enactment for the more specific statute.").
Defendant argues that Plaintiffs' interpretation of the ADA is irreconcilable with the CVAA and the accompanying FCC regulations in four distinct aspects. In each instance, however, Defendant has not made a showing that complying with the ADA would be inconsistent with its obligations under the CVAA. The two statutes can coexist even though they cover overlapping subject matter.
The first potential conflict between the statutes arises from the FCC regulations, which charge video content owners -- not distributors, like Netflix -- with primary responsibility for captioning. 47 C.F.R. § 79.4(c) (1). Plaintiffs of course seek to impose responsibility for captioning on Defendant, a distributor, under the ADA.
While it is true that Plaintiffs seek to impose a duty on Defendant under the ADA that may not exist under the CVAA, this difference does not constitute an irreconcilable
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conflict. If the court eventually finds that Defendant has a duty to provide captioning under the ADA, the responsibility to perfo~ that duty would not contravene any provision of the CVAA. In other words, Defendant could comply with the requirements of both statutes without contradiction. Indeed, as Plaintiffs suggest, the duty imposed by the CVAA on owners of video programming may make it easier for Defendant to comply with its alleged duties under the ADA.
The second potential conflict arises from the timeliness of captioning. The FCC regulations establish a schedule of compliance deadlines for the captioning of programming, which ranges from September 30, 2012 to March 30, 2014 depending on the type of programming, when it is shown on television, and whether it is already in the distributor'S library. 47 C.F.R. S79.4(b). Plaintiffs seek equitable relief requiring immediate captioning of all of Defendant's Watch Instantly content.
The fact that the ADA may require Defendant to comply with a different time line than that set by the CVAA does not create an irreconcilable conflict because, once again,
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Defendant can comply with both statutes. Cf. Rathbun v. Autozone, Inc., 361 F.3d 62, 70 (1st Cir. 2004) (holding that a "legislature's decision to offer claimants separate administrative and judicial paths through which to rectify the same wrongs" will inevitably lead to different treatment of factually identical claims). While the schedule established by the FCC undoubtedly reflects informed decisions regarding the technological and economic difficulties of captioning, the FCC time line reflects only minimum compliance standards that apply to a diverse industry. Not all of the concerns motivating the FCC's schedule will necessarily apply to the defendant in this particular case. If the court finds that Defendant has a duty to provide closed captioning under the ADA, it may itself consider the appropriate time line for compliance, taking into account the technological and economic burdens on Defendant, under the ADA's "undue burden" analysis after further discovery. 42 U.S.C. § 12182 (b) (2) (A) (iii).
The third potential conflict cited by Defendant arises from the CVAA's prohibition of "private rights of action." 47 U.S.C. § 613(j). In accordance with this prohibition,
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the FCC regulations created an administrative complaint procedure through which viewers could alert the FCC to violations of the Act. 47 C.F.R. § 79.4(e). Defendant argues that Plaintiffs are attempting to circumvent this administrative process by filing suit under the ADA.
Like the previous two provisions cited by Defendant, this conflict is also illusory. The existence of an administrative complaint procedure under the CVAA is entirely consistent with a private right of action under the ADA for the same wrong. See Rathbun, 361 F.3d at 70 (explaining that Congress may provide "separate administrative and judicial paths through which to rectify the same wrongs" without creating an irreconcilable conflict). Indeed, when interpreting the CVAA's predecessor, the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 126, in a case concerning the alleged failure to provide closed captioning for television broadcasts, at least one district court held that plaintiffs retained a right to sue under the ADA despite the existence of an administrative complaint procedure under the Telecommunications Act. See Zulauf v. Kentucky Educ.
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Television, 28 F. Supp. 2d 1022, 1023-24 (E.D. Ky. 1998).2
There is no indication that the CVAA, unlike the
Telecommunications Act, extinguishes private rights of
action under the ADA for closed captioning of video
programming on the Internet.
The fourth and final potential conflict between the
statutes arises from a provision in the CVAA that permits
the FCC to exempt captioning that would be "economically
burdensome" from the requirements of the CVAA. 47 U.S.C. §
613(c) (2) (D) (ii). The FCC regulations detail what qualifies
as an exception to liability based on economic burden. 47
C.F.R. § 79.4(d). The regulations also provide that "a de
2 In Zulauf, the court held that the plaintiff had to first exhaust his remedies under the Telecommunications Act before filing suit under the ADA. 28 F. Supp. 2d at 102324. Such a requirement, however, would not be appropriate in this case.
As will be discussed later in this memorandum, some of Plaintiffs' claims may fall outside of the scope of the CVAA, leaving no administrative remedies for those claims. However, attempting to separate the claims that are covered by the CVAA from those that are not is impractical as the CVAA's coverage of video programming fluctuates depending on whether and when that programming is shown on television. See infra Part III, Section C.2. Consequently, permitting Plaintiffs to litigate the entirety of their ADA claim without first exhausting the CVAA's administrative remedies would promote efficiency and avoid undue delay.
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minimis failure to comply . . . shall not be treated as a violation of the [CVAA's] requirements." Id. § 79.4(c) (3). Defendant argues that Plaintiffs seek to hold it liable under the ADA without taking these exceptions into account.
Defendant's argument overlooks the fact that the ADA also recognizes the need to take economic hardship into account when determining the extent of a defendant's duties. See 42 U.S.C. § 12182 (b) (2) (A) (iii) (creating an "undue burden" exception under the ADA). Under the ADA, the court will conduct an analysis of the economic burden of captioning on Defendant at a later stage of this litigation that will take into account factors that are similar to those considered by the FCC regulations. Furthermore, under the economic burden analysis, the court may determine that the ADA also forecloses liability for a de minimis lack of captioning that was reasonable under the circumstances.
In sum, although the subject matter of the CVAA overlaps with that of the ADA and the two statutes to some extent impose different requirements on distributors of video programming, such as Defendant, none of these differences create a "positive repugnancy" between the two
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laws. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992) (internal quotation omitted). As such, the court must give effect to both statutes. Id. ("Redundancies across statutes are not unusual events in drafting, and so long as there is no 'positive repugnancy' between two laws . . . a court must give effect to both." (internal citation omitted».
2. Scope of the CVAA. In addition to the lack of any irreconcilable conflict between the two statutes, Plaintiffs argue that the CVAA and ADA are also not co-extensive in the scope of the video programming they cover. While the ADA covers the entirety of Plaintiffs' claim, the CVAA applies to only a portion of the video programming that Plaintiffs allege Defendant has failed to caption. The limited scope of the CVAA, according to Plaintiffs, suggests that Congress did not intend the CVAA to supplant, implicitly repeal, or carve out a section of the ADA because doing so would leave many plaintiffs without a remedy for significant instances of discrimination. The CVAA mandates that the FCC regulations "require the provision of closed captioning on video programming
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delivered using Internet protocol that was published or

exhibited on television with captions after the effective

date of such regulations." 47 U.S.C. § 613 (c)(2)(A) . The

FCC regulations implementing the CVAA, in turn, require

closed captioning of "full-length video programming

delivered using Internet protocol

if the programming

is published or exhibited on television in the United States

with captions on or after [certain] dates . . . . " 47

C.F.R. § 79.4(b). "[F]ull-length video programming" is

defined as "video programming that appears on television and

is distributed to end users, substantially in its entirety,

via Internet protocol

" Id. § 79.4 (a) (2) .

Plaintiffs argue that, under the terms of the CVAA and

the FCC regulations, the CVAA applies only to programming

that is (1) shown on television, (2) with captions, and (3)

after the effective date of the FCC regulations. Plaintiffs

allege that the Watch Instantly web site includes

programming that does not fall within this narrow scope,

including original Netflix content that has never been shown

on television, programming that was shown on television

before the effective date of the regulations, and foreign

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programming that is shown exclusively on Netflix in the
United States. Likewise, Netflix's recommendation system,
which is also the subject of the ADA claim, is not covered
by the CVAA.
Defendant disagrees with Plaintiffs' interpretation of
the CVAA's scope. During the hearing on Defendant's motion,
counsel for Defendant conceded that the current FCC
regulations limit the type of programming that must be
captioned. Defendant argues, however, that the CVAA is
broader in scope than the FCC regulations. 3 In other words,
according to Defendant, the FCC made a conscious choice,
after balancing the benefits and burdens of captioning, to
issue regulations that require captioning of only a subset
3 Defendant contends that Plaintiff NAD previously argued in public comments to the FCC during rule-making proceedings that the CVAA applies to all video programming published or exhibited on television at any time. Defendant argues that Plaintiffs should now be bound by their prior interpretation of the Act. However, NAD's representations before the FCC in an administrative proceeding have no bearing on these judicial proceedings. The cases Defendant cites in support of its argument are inapposite. See. e.g., InterGen N.V. v. Grina, 344 F.3d 134, 144-45 (1st Cir. 2003) ("[T]he doctrine of judicial estoppel prevents a litigant from pressing a claim that is inconsistent with a position taken by that litigant ... in a prior legal proceeding." (emphasis added».
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of the video programming that falls within the scope of the
CVAA.
First, Defendant argues that the CVAA is not limited to programming that was shown on television, but applies to all video programming delivered via the Internet. The FCC regulations define "video programming" as "programming provided by, or generally considered comparable to programming provided by, a television broadcast station." 47 C.F.R. § 79.4(a) (1). Streaming video programming that is not shown on television, according to Defendant, is "comparable to" programming shown on television. Defendant further argues that when the CVAA refers to "published or exhibited on television," the phrase "on television" modifies only the word "exhibited." 47 U.S.C. § 613(c) (2) (A). Thus, according to Defendant, the CVAA applies to (1) all programming that is "published" and (2) all programming that is "exhibited on television." Defendant argues that Plaintiffs' interpretation, which requires that programming be shown on television to be covered by the CVAA, renders the word "published" superfluous.
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Second, Defendant argues that the CVAA applies to all programming, regardless of when it was published. The Telecommunications Act of 1996, which concerned captioning of video programming on television, required the FCC to issue regulations ensuring that
(1) video programming first published or exhibited after the effective date of such regulations is fully accessible through the provision of closed captions, except as provided in subsection (d) of this section; and (2) video programming providers or owners max~ze the accessibility of video programming first published or exhibited prior to the effective date of such regulations through the provision of closed captions, except as provided in subsection (d) of this section. Id. § 613 (b) (emphasis added). Defendant argues that the CVAA incorporates these provisions by reference and, thus, applies to video programming that was published both before and after the effective date of the regulations. Id. § 613(c) (1) ("The regulations prescribed pursuant to subsection (b) shall include an appropriate schedule of deadlines for the provision of closed captioning of video programming once published or exhibited on television."). Defendant's interpretation of the CVAA is untenable.
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First, and most importantly, it is inconsistent with the plain language of the statute, which "require[s] 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." 47 U.S.C. § 613(c)(2)(A) (emphasis added).
Furthermore, as Defendant concedes, its interpretation is in direct conflict with the FCC regulations, which make clear that only programming that is shown on television after the effective date of the regulations is subject to the regulations. See 47 C.F.R. § 79.4(a) (2) (defining "full-length video programming" as "video programming that appears on television . . . . "); id. § 79.4(b) (requiring closed captioning for "full-length video programming delivered using Internet protocol . . . if the programming is published or exhibited on television in the United States with captions on or after the following dates . . . . "). Nothing in the regulations or in the FCC's commentary to the regulations suggests that the FCC intended the scope of the regulations to be narrower than that of the CVAA. On the
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contrary, the FCC's commentary suggests that, under the

FCC's interpretation of the statute, the limitations imposed

by the FCC regulations stem from the limitations in the CVAA

itself. See 77 Fed. Reg. 19480, 19489 n.34 (March 30, 2012)

("We interpret Section 202(b) [of the CVAA] to cover any

programming delivered to consumers using [internet

protocol], provided that the programming was published or

exhibited on television with captions after the effective

date of the regulations. We believe that this

interpretation is consistent with the language, history, and

purpose of the statute."). The FCC's interpretation is

entitled to deference by the courts. Chevron U.S.A. Inc. v.

Natural Res. Def. Council, 467 U.S. 837 (1984).

Finally, Defendant's interpretation is also belied by

the CVAA's legislative history, which uses the phrase

"transmitted for display on television" interchangeably with

"published or exhibited on television," removing any

potential ambiguity from the latter phrase. See H.R. 3101,

§ 202(2) (A) ("[T]he regulations shall apply to video

programming

. in so far as such programming is

transmitted for display on television in digital format.").

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This analysis makes it manifest that the scope of the CVAA, unlike that of the ADA, is limited to video programming that was shown on television with captions after the effective date of the FCC regulations. As a result, the CVAA does not cover all of the streaming video programming and other services that are the subject of Plaintiffs' ADA claim. Interpreting the CVAA as repealing or carving out portions of the ADA would leave litigants, such as Plaintiffs, without any remedy for potential violations of the ADA. Without a clear indication from Congress, the court will not limit the ADA in this way. D. Mootness.
Finally, Defendant argues that Plaintiffs' claim is moot now that the FCC regulations have gone into effect. This argument is intertwined with Defendant's other arguments that have been rejected above. The CVAA does not cover all programming that is the subject of Plaintiffs' claim and it does not carve out any exceptions to the ADA. Because Plaintiffs' claim is brought under the ADA, the fact that the FCC regulations have gone into effect is irrelevant.
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IV. CONCLUSION For the foregoing reasons, Defendant's Motion for Judgment on the Pleadings (Dkt. No. 43) is hereby DENIED. It is so Ordered.
lsI Michael A. Ponsor
MICHAEL A. PONSOR U. S. District Judge
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 Case 3:11-cv-30168-MAP Document 19 Filed 08/09/11 Page 1 of 19
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WESTERN DIVISION

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED AND LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC., a corporation, Defendant.

CIVIL ACTION NO. 11-30168-MAP
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
LEAVE TO FILE GRANTED ON JULY 8, 2011

INTRODUCTION 1. The National Association of the Deaf (“NAD”), the Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”), and Lee Nettles bring this action against Defendant Netflix, Inc. (“Netflix”) for its failure to provide equal access to the fastest growing entertainment venue in the country, the Netflix streaming website. With over 60% of the industry market share, Netflix is the leading provider of streamed television and movies on the Internet through its on-demand service, known as “Watch Instantly.” Plaintiffs allege that Netflix has failed to provide equal access to its Watch Instantly service by refusing to make available closed captioned text for the deaf and hard of hearing—a feature that is necessary for such individuals to understand the audio portion of the streamed video. 2. Netflix’s Watch Instantly streaming titles are available with the click of a mouse or remote control and are played through the Internet on one’s computer or on television through a Netflix-ready device, including game consoles (e.g., the PlayStation®3 System, Wii Console,

Case 3:11-cv-30168-MAP Document 19 Filed 08/09/11 Page 2 of 19
and Xbox 360), Blu-Ray players, and the TiVo Digital Video Recorder (“DVR”). Unlimited access to Netflix’s Watch Instantly service is available to the general public for just $7.99 per month.
3. Netflix’s Watch Instantly site was recently named the “biggest source of Internet traffic in the US” according to the 2011 Sandvine Global Internet Phenomena Report. Sandvine also reports that streaming of video and audio now accounts for nearly 50 percent of peak time traffic in the U.S., with Netflix alone accounting for nearly 30 percent of peak time traffic.
4. Approximately 36 million Americans are deaf or hard of hearing. Many of these individuals require captioning to meaningfully access the audio component of television and video content. Just as buildings without ramps bar people who use wheelchairs, video content without captions excludes deaf and hard of hearing individuals. Closed captioning is a viewer activated system that displays text on, for instance, television programming, or DVD movies. This is different from open captioning or subtitles, which are burned into the video file and automatically displayed for everyone to see, such as subtitles in foreign language movies. With closed captioning, deaf and hard of hearing individuals have the opportunity to enjoy movies and television shows by reading the captioned text. With closed captioning, these individuals can also watch videos with hearing family members and friends.
5. Despite repeated requests by NAD and members of the deaf and hard of hearing community to Netflix to provide closed captioning on its Watch Instantly content, Netflix has provided captions on only a small portion of the overall titles available on the Watch Instantly service. The advent of streaming offers an opportunity for people to have access to thousands of movies and television shows at any time in their homes. That is why Netflix has over 20 million subscribers with the number growing every day. By not providing captioning, Netflix is closing
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deaf and hard of hearing individuals out of this opportunity, increasing the sense of isolation and stigma that the Americans with Disabilities Act (“ADA”) was meant to redress for individuals with disabilities.
6. The failure of Netflix to provide equal access to millions of deaf and hard of hearing individuals violates the mandate of the ADA to provide “full and equal enjoyment” of a public accommodation’s goods, services, facilities, and privileges. Places of public accommodation include, “place[s] of exhibition and entertainment,” “place[s] of recreation,” “sales or rental establishment[s],” and “service establishments.” 28 C.F.R. § 36.201(a); 42 U.S.C. §12181(7). Because the Netflix Watch Instantly website is a “place of public accommodation,” denial of equal access to the movies and TV shows available to hearing customers violates the ADA. Remedying that violation is critical to the ADA’s goal of providing people with disabilities the same access that others take for granted. Accordingly, Plaintiffs seek injunctive and declaratory relief to ensure that deaf and hard of hearing individuals have equal access to Netflix’s Watch Instantly subscription packages.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
8. Venue is proper in this District, pursuant to 28 U.S.C. § 1391, because Defendant operates its nationwide streaming business on the Internet in this District, and has sufficient contacts to be subject to personal jurisdiction in this District. A substantial part of the acts or omissions giving rise to Plaintiffs’ claims has occurred in this District.
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9. Assignment to the Western Division is appropriate pursuant to Rule 40.1(D)(1)(c) of the Local Rules of the United States District Court for the District of Massachusetts because the only parties residing in this District reside in the Western Division.
PARTIES
10. Plaintiff National Association of the Deaf (“NAD”) is the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals. NAD is organized as a non-profit corporation under the laws of the State of Maryland and has its national headquarters in Silver Spring, Maryland. NAD membership includes individuals and associations from all fifty states and Washington, D.C., including its affiliate, the Massachusetts State Association of the Deaf. NAD is also the United States member of the World Federation of the Deaf, which has over 120 national associations of deaf people as members.
11. Plaintiff Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”) is organized as a non-profit organization under the laws of the Commonwealth of Massachusetts and is headquartered in Springfield, Massachusetts. Its mission is to advocate for the rights of and to serve the needs of deaf and hard of hearing individuals in Western Massachusetts, including advocating for increased access to community life through the provision of sign language interpreters and captioning. WMAD/HI provides lists of interpreters to community agencies, has filed complaints about the relay services in Massachusetts, and has advocated for real time captioning on local news.
12. Plaintiff Lee Nettles is a deaf individual and a member of WMAD/HI and NAD. Mr. Nettles is the Director of Deaf and Hard of Hearing Independent Living Services at the Stavros Center for Independent Living in Springfield, Massachusetts. He resides in Westfield, Massachusetts with his wife, Diane. He has never subscribed to Netflix because of its failure to
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provide full and equal access through closed captioning. Without access to Netflix, Mr. Nettles must resort to purchasing on-demand movies from other services that are more expensive and are available only on a cost per movie basis, rather than paying $7.99 per month for unlimited viewing through Watch Instantly. If Netflix provided equal access to its Watch Instantly streaming titles, Mr. Nettles would subscribe to Netflix.
13. Defendant Netflix is a corporation incorporated in Delaware, with its principal place of business in California. As also described above, Netflix operates a nationwide streaming business that offers its subscribers in this District and elsewhere a number of subscription packages, including Watch Instantly, which provides on-demand streaming titles on the Internet. Netflix also operates a DVD rental business that sends rented DVDs of television programming and movies through postal mail.
NETFLIX FAILS TO PROVIDE MEANINGFUL ACCESS TO ITS WATCH INSTANTLY STREAMING TITLES FOR INDIVIDUALS
WHO ARE DEAF AND HARD OF HEARING.
14. Netflix was recently described in a New York Times article as the “only major player in the online-only video subscription business.” According to a recent survey conducted by a leading market research company, as of March 2011, Netflix had 61% of the market share of digital video services.
15. Although it started out as a physical DVD rental company and continues to offer DVDs for rent, Netflix has shifted its focus to online streamed video content through its Watch Instantly service. As Netflix’s CEO, Reed Hastings, was recently quoted in a New York Times blog: “We are now primarily a streaming video company delivering a wide selection of TV shows and films over the Internet.” (Emphasis added.)
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16. Netflix offers a subscription plan that allows members to access unlimited Watch Instantly Internet streaming titles for $7.99 per month. The overwhelming majority of the content on Watch Instantly streaming titles is not captioned and is therefore inaccessible to Plaintiffs NAD and WMAD/HI and their members, including Mr. Nettles.
17. Netflix began offering streamed content on or about January 2008. In June 2009, Neil Hunt, the Chief Product Officer at Netflix, published an entry on the Netflix blog stating that there were technological challenges to providing captions, but that he “expect[ed] to deliver subtitles or captions to Silverlight clients sometime in 2010.”
18. In April 2010, Mr. Hunt reported that: “Although it’s a limited library of content with subtitles available – about 100 titles – we [Netflix] now have released the technology and we will be working to fill in the library over time.”
19. On February 24, 2011, Mr. Hunt announced that Netflix had expanded its Watch Instantly inventory to include 3,500 television and movie titles “representing about 30% of viewing” and that Netflix expected to provide captions for 80% of “viewing coverage” by the end of 2011. In addition, Mr. Hunt provided a link to a log-in page for members providing a list of Netflix’s streaming titles inventory with captions. As of June 14, 2011, this website listed just 1,684 streaming titles available with captions on Watch Instantly. Consumers cannot determine the exact percentage of captioned content based on Netflix’s website. Moreover, those titles that are captioned are hard to locate because captioned films are not categorized in the same manner as non-captioned films. The Netflix site recommends movies based on previous usage, lists new movies, and has many other categories to address viewer preferences. None of these categories is available on the page listing Watch Instantly titles with captions. Therefore, a deaf or hard of hearing subscriber must open each movie icon in any given category to determine if captions are
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available. Since captions are generally not available, this exercise is time consuming and ineffective.
20. Netflix admits that its goal is not to provide equal access to the movies and TV shows available on “Watch Instantly.” Instead, its goal is to provide captioning only on a certain percentage of its streaming video “viewing” or “usage.” Clearly this popularity-based measure does not provide deaf and hard of hearing people equal access to the goods, services and privileges that Netflix offers to others. Deaf and hard of hearing individuals have the same diversity of tastes and preferences as other Netflix subscribers and cannot be limited to viewing only the most popular shows.
21. The deaf and hard of hearing community has expressed its concern about Netflix’s failure to provide closed captioning in a number of forums. A petition on the activist website, Change.org, entitled “Netflix: Make Films Accessible for the Deaf & Hard of Hearing,” demands closed captioning on Netflix’s Watch Instantly service. As of June 14, 2011, this petition had 1,054 signatures. Further, there are various Facebook groups dedicated to this topic, including: “Netflix Watch-Instantly Needs Closed Captions!” (2,708 members as of June 14, 2011) and “Netflix MUST HAVE subtitles on streamed movies” (478 members as of June 14, 2011). The Facebook page “Must Caption Netflix” received 1,334 “likes” (a showing of support) as of June 14, 2011.
22. Several web-logs (“blogs”) have expressed dissatisfaction with Netflix’s failure to provide closed captioning. On “Deaf World as Eye See It,” Amy Cohen Efron highlighted the absurdity of Netflix’s failure to caption “Through Deaf Eyes,” a PBS documentary that explores 200 years of deaf life in America. On the “Deaf Politics” blog, Allison Polk encouraged other
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deaf subscribers to abandon Netflix, stating: “We love the entertainment Netflix provides, but not at the expense of our consumer rights.”
23. NAD has made numerous requests to Netflix that it provide closed captioning on Watch Instantly streamed content.
24. On September 9, 2009, NAD’s former Director of Law and Policy, Rosaline Crawford, requested that Netflix provide a captioned version of the streaming title, The Wizard of Oz, which Netflix intended to make available for free to the general public in commemoration of the 70th anniversary of the movie’s premier. The streaming title aired on October 3, 2009, and Netflix neither responded nor provided captions in time for the free screening.
25. On October 4, 2009, Catherine Fisher, Director of Communications at Netflix responded to NAD by stating: “Netflix frequently communicates its commitment to provide closed captioning for the TV episodes and movies you can watch instantly,” but that “[i]t was not simple for Netflix to instantly stream the Wizard of Oz this past weekend, otherwise we would have done it. Netflix developers continue to work on closed captioning and we will keep the deaf and hard of hearing community apprised of the progress.” Three days later, Ms. Fisher declined NAD’s request to meet.
26. On October 5, 2009, NAD posted a response on its website stating that the process of captioning was both “technically possible and relatively simple to achieve. The television version and the DVD version of the film [the Wizard of Oz] have already been captioned. Captions can be programmed into the Microsoft Silverlight application that Netflix uses for its Watch Instantly feature. Captions have been included in videos, programming, and movies made available for viewing online.”
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27. On February 9, 2011, Plaintiffs’ counsel also requested that Netflix provide closed captioning on streaming titles on an equal basis for deaf and hard of hearing individuals, but the demand was ultimately rejected.
INDIVIDUAL AND ASSOCIATIONAL PLAINTIFFS’ STANDING
28. Paragraphs 1-27 are each re-alleged and incorporated as if fully set forth herein. 29. NAD: NAD has standing to sue as an association on behalf of its deaf and hard of hearing members, as Defendant’s unlawful conduct interferes with NAD members’ rights to have full and equal access to society, a core goal of NAD. First, as described further below, NAD members Alan Gifford, Kelby Brick, and James Johnson would have standing to sue as individuals because they are injured by Netflix’s failure to provide captions on Watch Instantly and would subscribe to Netflix if Watch Instantly provided closed captions. Second, advocating on behalf of its members on this issue is germane to NAD’s mission of advocating for its members’ rights to full and equal access to society. Finally, none of NAD’s members will be required to participate in this action because it is for declaratory and injunctive relief, and does not seek individualized remedies. 30. Alan Gifford is one example of a NAD member who is deaf and is injured by Netflix’s failure to provide captions on Watch Instantly. Mr. Gifford is also president of NAD’s Massachusetts affiliate, MSAD. Mr. Gifford and his wife, who is also deaf, are parents to two hearing children who live at home. Mr. and Ms. Gifford’s two hearing teenage sons asked their parents to subscribe to Netflix Watch Instantly and stated that their friends at school have it. Mr. Gifford and his wife refused to subscribe to Netflix because it provides limited captioning. They believe that as parents it is their responsibility to monitor what their hearing children watch on television. Without captions, they lack that ability. Moreover, without captions they cannot
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watch programming as a family. Netflix’s failure to provide Mr. Gifford with equal access to its Watch Instantly service has caused him harm on the basis of his disability. Mr. Gifford, like many other NAD members, would subscribe to Netflix if Watch Instantly was fully accessible.
31. Kelby Brick, a deaf individual and a resident of Maryland, is another example of a NAD member who is injured by Netflix’s failure to provide captions on Watch Instantly. Mr. Brick works as Vice President of Regulatory & Strategic Policy at Purple Communications—the nation’s premier communication service tailored to people who are deaf or hard of hearing—and is also a board member of the American Association of People with Disabilities. He has repeatedly criticized Netflix on his Twitter account for its failure to provide closed captioning.
32. After learning from his father, friends, and colleagues that Netflix fails to provide captions on the vast majority of their streaming content, Mr. Brick opted not to subscribe to Netflix. Netflix’s failure to provide equal access to its Watch Instantly service has caused him harm on the basis of his disability. Because he is unable to access Netflix, he has invested in buying a DVR for his home and purchased Slingbox hardware and software which has allowed him to watch movies and shows on television, save them on the DVR, and then stream them to his computer or mobile phone when he is away from home—a time at which he prefers to watch such content. Were Netflix’s Watch Instantly service fully accessible to him, he would not have had to make these investments and would be able to access Netflix’s full Watch Instantly library as hearing subscribers are able to do. In Mr. Brick’s own words: “It is frustrating to be unable to access a popular service in society. Netflix’s denial of accessible services for me isolates me from family, friends, and colleagues in conversations regarding the latest social trends and issues. This isolation stigmatizes me and causes me unnecessary frustration. As a result, I am forced to spend additional funds elsewhere just to be able to participate in society as an equal
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member.” However, if Netflix decided to provide equal access to its Watch Instantly content, Mr. Brick would subscribe.
33. James Johnson, who currently lives in Maryland, and is deaf, is another example of an NAD member harmed by Netflix’s failure to provide closed captioning on its streaming titles. Mr. Johnson’s wife and child are also deaf. Mr. Johnson and his family have joined Netflix twice based on representations that closed captioning would be made available, but have cancelled their subscriptions both times due to lack of closed captioning. The last time Mr. Johnson had a subscription to Netflix was in December 2010. Mr. Johnson would like fully equal access to Netflix’s Watch Instantly titles—a privilege that hearing subscribers take for granted. Mr. Johnson loves watching movies with his family and Netflix’s failure to provide him with equal access to its Watch Instantly service has caused him harm on the basis of his disability. If Netflix were to provide equal access to its Watch Instantly content, Mr. Johnson and many other NAD members would subscribe.
34. Expanding access to Netflix for deaf and hard of hearing individuals is not only germane, but is central, to NAD’s purpose. NAD has strongly advocated for access through captioning of audio and audiovisual material in all distribution methods, including Internet streaming. NAD provides guidance about effective captioning on its website and administers the Described and Captioned Media Program (DCMP) through a cooperative agreement with the U.S. Department of Education. The DCMP promotes equal access to communication and learning through described and captioned educational media. The DCMP provides services designed to support and improve the academic achievement of students who are blind, visually impaired, deaf, hard of hearing, or deaf-blind. The DCMP has a library of over 4,000 titles of described and captioned educational media available for loan to teachers, parents, and students
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who are deaf, blind, hard of hearing, visually impaired, or deaf-blind. The DCMP also offers a clearinghouse of information related to education and accessibility, including captioning, description, laws pertaining to accessibility, and assistive technology.
35. NAD has received many complaints about Netflix directly from deaf and hard of hearing individuals, including from its members, from all over the country. Examples of these comments include:
“I am frustrated with Netflix for not having captioning. I have a hearing grandson who wants to watch these streamed programs, but it means my deaf daughter and deaf husband are discriminated against…not allowed to view the same program, given the lack of captions. . .I hope this is rectified quickly.” “I’m a Netflix subscriber and am VERY disappointed in the selection of closed captioned movies I can download instantly. . .I feel like I have a very small selection as opposed to what they really have in their movie library. I’d like to see more movies closed captioned.” “I support the enforcement of closed captioned films provided by Netflix…It is a multimillion dollar corporation and they should be held to the same standards along with the broadcast television companies. The lack of the closed captions films provided by Netflix is a slap in the deaf communities’ face.” “I am unable to watch Netflix movies, unlike my hearing husband and children who can watch any movies. I cannot watch movies with my children and cannot know what they are listening to or the contents of the movies. . . .” “. . . I’m very upset that Netflix has not provided captions for their ‘watch instantly movies’ that stream online. I would support any legal actions against Netflix.” These comments are only a few of the many inquiries that NAD received from consumers across the country expressing their frustrations that Netflix does not provide access to its Watch Instantly programming. For these individuals, this Netflix feature is more aptly described as: “Watch Later (or Never) When/If Netflix Decides to Caption.”
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36. Defendant’s unlawful conduct interferes with NAD’s members’ rights to “full and equal enjoyment” of the goods, services, facilities, and privileges it provides others. NAD’s members have been injured by Netflix’s failure to provide closed captioning.
37. WMAD/HI: WMAD/HI has standing to sue as an association on behalf of its deaf and hard of hearing members, as its members would have standing to sue as individuals, advocating on this issue is germane to its purpose, and none of its members will be required to participate in this action.
38. WMAD/HI President and member, Diane Nettles, is a deaf individual who has been harmed by Netflix’s failure to provide closed captioning on its streaming titles. Also a member of NAD, Ms. Nettles resides in Westfield, Massachusetts. She is a Data Supervisor at the Connecticut Department of Public Health and has been Adjunct Faculty at Elms College, and at Holyoke Community College, where she teaches about deaf culture. Ms. Nettles regularly visits homes in Western Massachusetts in order to teach basic American Sign Language skills to families with young children who are deaf or hard of hearing. She has been harmed by her exclusion from Netflix, as she feels that it is unfair that she has inadequate access to Watch Instantly, which she believes to be the most competitively priced unlimited viewing option for streaming movies and TV programming. Ms. Nettles has never subscribed to Netflix because of its failure to provide closed captioning. If Netflix provided equal access to Watch Instantly, she and many members of WMAD/HI would subscribe.
39. This lawsuit is germane to WMAD/HI’s organizational purpose. One of its purposes is to reduce communication barriers and to ensure that members have equal access to civic and social life. At a recent member meeting, WMAD/HI’s members expressed frustration about the inaccessibility of the majority of Watch Instantly streaming titles. Like Lee and Diane
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Nettles, many of WMAD/HI’s members enjoy watching movies at home and would love to be able to access the convenience and spontaneity that Watch Instantly provides. WMAD/HI’s members would like to be able to watch on-demand streaming titles through Watch Instantly and to have full and equal access to those titles. Like NAD, WMAD/HI has also worked generally to reduce the communication barriers faced by its members. A recent concern has been emergency warnings on TV about the tornado crisis. WMAD/HI has been advocating with local news stations to use real time captioning. WMAD/HI also advocates with health care and other community services to use interpreters and provides lists of interpreters to further this mission.
40. Finally, no WMAD/HI members would be required to participate in this action, which is for declaratory and injunctive relief and will not include individualized remedies.
41. Mr. Nettles: Plaintiff Lee Nettles has standing because he has suffered an injury that this lawsuit will redress. Mr. Nettles has not subscribed to Netflix because Netflix has failed to provide closed captioning on its streaming library. Mr. Nettles must pay more to watch movies and television shows at home with his wife, Diane, and does not have access to the unparalleled large selection of Watch Instantly titles that Netflix provides to hearing individuals. If Netflix were to provide closed captioning on its streaming library, Plaintiff’s injury would be cured and he would subscribe to Netflix.
42. Summary: In sum, there are several ways in which the inaccessibility of Watch Instantly harms deaf and hard of hearing individuals, including the members of NAD and WMAD/HI, and Mr. Nettles. First, members of NAD and WMAD/HI, and Mr. Nettles, are denied full and equal access to the ever-growing Watch Instantly library. While hearing subscribers are able to access the full content of this library, the members of NAD and
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WMAD/HI, and Mr. Nettles, would be unable to do so if they subscribed since most of the titles lack captions.
43. Second, members of NAD and WMAD/HI, and Mr. Nettles, are harmed in being denied full access to the least expensive “Unlimited” subscription packages offered by Netflix, the Watch Instantly-only subscription that is available for $7.99 per month. Third, members of NAD and WMAD/HI, and Mr. Nettles, are harmed in being denied the convenience of Watch Instantly that hearing Netflix subscribers take for granted. Hearing Netflix subscribers with Watch Instantly subscriptions can access Watch Instantly content anytime and anywhere. Further, it is possible to view Watch Instantly content “on the go,” using one’s laptop or smartphone, whereas physical DVDs may be viewed only in places where there is a physical DVD player. As video content increasingly shifts from physical DVDs to online streaming, this ondemand culture is becoming the norm.
44. Last, and most importantly, the ADA was intended to remove barriers and bring people with disabilities into the mainstream. While streaming provides more access to entertainment to the general public, it threatens to be yet another barrier to people who are deaf and hard of hearing. Watching, sharing, and talking about movies is a great American pastime. Plaintiffs and their members not only want to see the movies, but, like the rest of society, want to share the experience with their families, friends and co-workers. The lack of captions intrudes on this ability in a way that increases the sense of isolation and stigma that the ADA was intended to eliminate.
45. Under the ADA, Plaintiffs do not have to engage in the “futile gesture” of purchasing a subscription when they have actual knowledge that they will have inferior,
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ineffective access to the services and privileges that Netflix provides subscribers. 42 USC § 12188(a).
COUNT I (VIOLATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT)
46. Paragraphs 1-45 are each re-alleged and incorporated as if fully set forth herein. 47. Plaintiffs Lee Nettles and members of NAD and WMAD/HI are deaf and/or hard of hearing individuals who require captioning to have full and equal access to audio and audiovisual content and are, therefore, “individual[s] with a disability” as defined in 42 U.S.C. § 12102(1)-(2) because each has a hearing impairment that substantially limits one or more of their major life activities, including the major life activity of hearing. 48. Defendant Netflix operates a place of public accommodation as defined by Title III of the ADA, 42 U.S.C § 12181(7) (“place of exhibition and entertainment,” “place of recreation,” “sales or rental establishment,” and “service establishments”). 49. Netflix has failed to make its Watch Instantly streaming service accessible to individuals who are deaf or hard of hearing by failing to provide closed captioning on the vast majority of its ever-growing Watch Instantly library, failing to make its recommendations available with a closed captioning filter, and failing to maintain captions on previously captioned movies and TV shows. 50. Title III of the ADA provides that “places of public accommodation” may not discriminate against people with disabilities. Specifically, it directs that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public
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accommodation by any person who owns…or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
51. Discrimination under Title III includes the denial of an opportunity for the person who is deaf or hard of hearing to participate in programs or services, or providing a service that is not as effective as what is provided to others. 42 U.S.C. § 12182(b)(1)(A)(i-iii).
52. Discrimination specifically includes the failure to provide “effective communication” to deaf and hard of hearing individuals through auxiliary aids and services, such as captioning, pursuant to 42 U.S.C. §12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(c).
53. Discrimination also includes the failure to maintain accessible features of facilities and equipment that are required to be readily accessible to and usable by persons with disability. 28 C.F.R. §36.211.
54. Under the ADA, Plaintiffs do not have to engage in the “futile gesture” of purchasing a subscription when they have actual knowledge that they will have inferior, ineffective access to the services and privileges that Netflix provides subscribers. 42 USC § 12188(a)(1).
55. Modifying its policies, practices, and services by providing closed captions to make Watch Instantly content accessible to deaf and hard of hearing individuals would not fundamentally alter the nature of Netflix’s home entertainment business, nor would it pose an undue burden to this flourishing company.
56. Netflix’s conduct constitutes an ongoing and continuous violation of the law. Netflix has failed to take any prompt and equitable steps to remedy its discriminatory conduct. Unless restrained from doing so, Netflix will continue to so violate the law. Netflix’s conduct has caused and will continue to cause Plaintiffs injury. Plaintiffs have no adequate remedy at
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law for the injuries they suffer and will continue to suffer. Thus, Plaintiffs are entitled to
injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court:
1. Declare that Defendant’s failure to provide closed captions to its Watch Instantly
content violates Title III of the Americans with Disabilities Act;
2. Issue an injunction requiring Netflix to provide effective communication through
closed captioning on Watch Instantly content and to provide easy identification of captioned
content.
3. Award costs and reasonable attorneys’ fees; and
4. Award such other and further relief as the Court deems just and proper.
Respectfully submitted, NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED, AND LEE NETTLES,
By their Attorneys, /s/ Arlene Mayerson ______________________________ Arlene Mayerson Charlotte Lanvers Shira Wakschlag DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 3075 Adeline Street, Suite 210 Berkeley, CA 94703 Telephone: (510) 644-2555 amayerson@dredf.org clanvers@dredf.org swakschlag@dredf.org
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/s/ Brad Seligman
____________________________
Brad Seligman (pro hac vice pending) Bill Lann Lee Catha Worthman Joshua Davidson LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607-4048 Telephone: (510) 839-6824 bseligman@lewisfeinberg.com blee@lewisfeinberg.com cworthman@lewisfeinberg.com jdavidson@lewisfeinberg.com

Dated: August 9, 2011

/s/ Christine M. Netski
_________________________ Christine M. Netski, BBO #546936 SUGARMAN, ROGERS, BARSHAK & COHEN, P.C. 101 Merrimac Street Boston, MA 02114-4737 Telephone: (617) 227-3030 netski@srbc.com

CERTIFICATE OF SERVICE
I, Christine M. Netski, hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on August 9, 2011.
/s/ Christine M. Netski Christine M. Netski

#436193
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 Case 3:11-cv-30168-MAP Document 43 Filed 05/01/12 Page 1 of 32

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED, and LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC.,
Defendant.

Civil Action No. 3:11-cv-30168

NETFLIX, INC.’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES

[ORAL ARGUMENT REQUESTED]

Case 3:11-cv-30168-MAP Document 43 Filed 05/01/12 Page 2 of 32

TABLE OF CONTENTS

Page

NOTICE OF MOTION AND MOTION ..................................................................................... vii CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1............................................... viii REQUEST FOR ORAL ARGUMENT ........................................................................................ ix MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 1 I. INTRODUCTION ............................................................................................................. 1 II. RELEVANT ALLEGATIONS AND BACKGROUND................................................... 3 III. PLAINTIFFS DO NOT ALLEGE “CONTROL” UNDER THE ADA ............................ 6
A. Applicable Law ...................................................................................................... 6 B. Plaintiffs Do Not Allege Facts Showing Netflix Controls Captions ..................... 7 IV. PLAINTIFFS DO NOT ALLEGE A “PLACE OF PUBLIC ACCOMMODATION” UNDER THE ADA .................................................................... 9 A. The Issue Is Not Whether a Website Is a “Physical Place.” .................................. 9 B. Websites and Video Programming Are Not Within the “Exhaustive”
Enumerated Lists of “Places of Public Accommodation.” .................................. 10 C. Subsequent History Confirms the Exclusion “Was Intentional.” ........................ 12 V. EVEN IF PLAINTIFFS’ CLAIM CAME WITHIN THE ADA’S POTENTIAL SCOPE, IT CANNOT BE RECONCILED WITH THE CVAA AND FCC REGULATIONS.............................................................................................................. 13 A. Applicable Law .................................................................................................... 13 B. The CVAA Carves Out Streaming Video Captioning From the ADA................ 15
1. Congress intended the CVAA and Regulations to address captioning of all streaming video programming ...................................... 15
2. Plaintiffs’ interpretation of the ADA conflicts with the CVAA .............. 16 C. Plaintiffs’ Own Statements Support Netflix On the CVAA’s Scope .................. 18 VI. PLAINTIFFS’ CLAIM IS MOOT................................................................................... 19 VII. CONCLUSION................................................................................................................ 20

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TABLE OF AUTHORITIES

CASES

Page(s)

Abbott v. Town of Salem, No. 05-cv-127, 2006 U.S. Dist. LEXIS 4338 (D.N.H. Feb. 2, 2006) ...............................................................11

Agee v. Paramount, 59 F.3d 317 (2d. Cir. 1995)........................................................................................................8

Barton v. Clancy, 632 F.3d 9 (1st Cir. 2011) ........................................................................................................10

Brown v. 1995 Tenet ParaAmerica Bicycle Challenge, 959 F. Supp. 496 (N.D. Ill. 1997) ..............................................................................................7

Carparts Dist. Ctr. v. Automobile Wholesaler’s Ass’n, 37 F.3d 12 (1st Cir. 1994) ....................................................................................................9, 10

Castro-Soto v. Holder, 596 F.3d 68 (1st Cir. 2010) ................................................................................................10, 11

Coddington v. Adelphi Univ., 45 F. Supp. 2d 211 (E.D.N.Y. 1999) .........................................................................................7

Cortez v. Nat’l Basketball Ass’n, 960 F. Supp. 113 (W.D. Tex. 1997)...........................................................................................7

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).......................................................................................................13, 14, 15

Dixon v. Shamrock Fin. Corp., 522 F.3d 76 (1st Cir. 2008) ....................................................................................................7, 9

Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) ...................................................................................................12

Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998).....................................................................................................10

GE HFS Holdings, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 520 F. Supp. 2d 213 (D. Mass. 2007) ......................................................................................19

Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir. 1976).........................................................................................................8

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TABLE OF AUTHORITIES (cont’d)

CASES (CONT’D)

Page(s)

Greenless v. Almond, 277 F.3d 601 (1st Cir. 2002) ........................................................................................13, 14, 15

Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997) .............................................................................................7

InterGen Naamloze Vennootschap v. Grina, 344 F.3d 134 (1st Cir. 2003) ....................................................................................................19

Iverson v. Comsage, Inc., 132 F. Supp. 2d 52 (D. Mass. 2001) ........................................................................................10

Iwata v. Intel Corp., 349 F. Supp. 2d 135 (D. Mass. 2004) ......................................................................................10

Jankey v. Twentieth Century Fox Film Corp., 14 F. Supp. 2d 1174 (C.D. Cal. 1998), aff’d, 212 F.3d 1159 (9th Cir. 2000) .......................................................................................10

Kepner v. United States, 195 U.S. 100 (1904).................................................................................................................13

Lopez v. Massachusetts, 588 F.3d 69 (1st Cir. 2009) ......................................................................................................10

Nat. Resources Def. Council, Inc. v. Envt’l Prot. Agency, 824 F.2d 1258 (1st Cir. 1987)..................................................................................................13

Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996) ........................................................................................6, 7

Oakville Dev. Corp. v. Fed. Deposit Ins. Co., 986 F.2d 611 (1st Cir. 1993) ....................................................................................................19

Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) .................................................................................................10

Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963 (9th Cir. 2006) .................................................................................................6, 7

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)...................................................................................................................16

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TABLE OF AUTHORITIES (cont’d)

CASES (CONT’D)

Page(s)

Stewart v. Abend, 495 U.S. 207 (1990)...................................................................................................................8

Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982) .................................................................................................13

Wattleton v. Doe, No. 10-11969, 2010 U.S. Dist. LEXIS 137541 (D. Mass. Dec. 14, 2010)..............................11

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) .................................................................................................10

WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622 (7th Cir. 1982) .....................................................................................................8

Zulauf v. Kentucky Educational Television, 28 F. Supp. 2d 1022 (E.D. Ky. 1998) ..........................................................................14, 15, 17

STATUTES

ADA Amendments Act of 2008, Pub. L. 110-325 (Sept. 25, 2008)| § 2.............................................................................................................................................12

Twenty-First Century Communicationss and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 (Oct. 8, 2010) § 201(a) ................................................................................................................................4, 17 § 202(b) ............................................................................................................................3, 4, 15 § 202(f).....................................................................................................................................17

17 USC § 1201(a) ....................................................................................................................................8

42 USC § 12181(7) ................................................................................................................................11 § 12182(a) ..............................................................................................................................6, 9

47 USC § 613(a)(2)(A) .........................................................................................................................16 § 613(b) ....................................................................................................................................15 § 613(c)(2)(D)(iii) ...................................................................................................................16 § 613(c)(2)(D)(iv) ....................................................................................................................16

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TABLE OF AUTHORITIES (cont’d)

STATUTES (CONT’D)

Page(s)

47 USC (cont’d) § 613(c)(2)(D)(v) .....................................................................................................................16 § 613(c) ....................................................................................................................................15 § 613(c)(2)(A) ............................................................................................................................3 § 613(c)(2)(D)(ii) ...............................................................................................................16, 18 § 613(d) ....................................................................................................................................15 § 613(j).....................................................................................................................................17

REGULATIONS

FCC, Report and Order: In the Matter of Closed Captioning of Internet ProtocolDelivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, FCC 12-9 (Jan. 13, 2012), summarized and pub’d at 77 Fed. Reg. 19,480 (Mar. 30, 2012) .................1, 4, 5, 6, 16, 17, 18

28 CFR § 36.104....................................................................................................................................11

47 CFR § 79.4..........................................................................................................................................1 § 79.4(f)....................................................................................................................................17

LEGISLATIVE AND REGULATORY HISTORY

DOJ, Adv. Notice of Proposed Rulemaking, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,460 (July 26, 2010)........................................................................................12

FCC, Notice of Proposed Rulemaking, Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Comm’ns and Video Access. Act of 2010, 76 Fed. Reg. 59,963 (Sept. 28, 2011).............................................5

FCC Public Notice, Notice of Effective Date of New IP Closed Captioning Rules, DA 12-505 (Mar. 30, 2012) .......................................................................................................6

FCC Public Notice, Video Programming and Emergency Access Advisory Comm. Announcement of Members, DA 10-2320 (Dec. 7, 2010)..........................................................4

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TABLE OF AUTHORITIES (cont’d)

LEGISLATIVE AND REGULATORY HISTORY (CONT’D)

Page(s)

FCC Public Comments in Response to Notice of Proposed Rulemaking , Comments of Google, Inc. (Oct. 18, 2011) .........................................................................5, 17 Comments of NAD et al. (Nov. 1, 2011) ....................................................................................5 Reply Comments of NAD et al. (Nov. 1, 2011) ..............................................................5, 18, 19

House Comm. on Energy and Commerce, Conf. Rep., H. Rep. 11-563 (July 26, 2010)............................................................................................3, 15

Senate Comm. on Commerce, Science and Transp. Conf. Rep. S. Rep. No. 111-386 (Dec. 22, 2010)...................................................................................3, 15

Fed. Reg. Unified Agenda 1190-AA63, http://federalregister.gov/r/1190-AA63 (Fall 2011) ................................................................12

TREATISES

Norman J. Singer & J.D. Shambie Singer, Southerland’s Statutes and Statutory Construction (7th ed. 2008) § 51:2 .......................................................................................................................................13

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NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on June 11, 2012, at 10:00 a.m., or as soon thereafter as

this matter may be heard before The Honorable Michael A. Ponsor in the Hampden Courtroom,

located at 300 State Street, Springfield, Massachusetts 01105, defendant Netflix, Inc. (“Netflix”)

will, and hereby does, move for an order dismissing with prejudice the entire First Amended

Complaint (the “FAC”)—premised entirely on violation of Americans with Disabilities Act (the

“ADA”)—under Federal Rule of Civil Procedure 12(c) on the following independent grounds:

1. Plaintiffs fail to allege Netflix has specific control over captions Plaintiffs seek;

2. Plaintiffs fail to allege the existence of an actionable “place of public

accommodation”;

3. Plaintiffs’ interpretation of the ADA is precluded by the Twenty-First Century

Communications and Video Accessibility Act (the “CVAA”) and implementing regulations,

which exclude captioning of streaming video programming from the ADA’s scope; and

4. Plaintiffs’ claim is moot.

This motion is based upon this Notice of Motion and Motion, the attached Memorandum

of Points and Authorities, the Request for Judicial Notice filed herewith, all other pleadings and

papers on file herein, and such other argument and evidence as may be presented.

May 1, 2012

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

Pursuant to Local Rule 7.1(a)(2), counsel met and conferred on April 30, 2012, in a good

faith attempt to resolve or narrow the issues raised in this Motion.

May 1, 2012

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454

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Case 3:11-cv-30168-MAP Document 43 Filed 05/01/12 Page 10 of 32

REQUEST FOR ORAL ARGUMENT

Netflix hereby requests oral argument on the Motion submitted herewith.

May 1, 2012

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454

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Case 3:11-cv-30168-MAP Document 43 Filed 05/01/12 Page 11 of 32
MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. By bringing this action under the Americans with Disabilities Act, Plaintiffs attempt to force a square peg into a round hole. Plaintiffs, two organizations and an individual led by the National Association of the Deaf, seek an extraordinary, overreaching, and unprecedented reinterpretation of the ADA, thrusting that statute into a realm that its language, legislative history, and regulations do not support: closed captioning of streaming video programming. Captioning of video programming is not like dropping a ramp over a lawn; issues of copyright ownership, control, practical burdens, and economic reality greatly complicate the process in ways the ADA does not and cannot address. The peg that fits is the Twenty-First Century Communications and Video Accessibility Act (the “Act” or “CVAA”).1 The Act directed the Federal Communications Commission (“FCC”)—with the help of a committee of industry and consumer group representatives (including NAD)—to find a way of captioning streaming content while properly wrestling with these complications. The FCC did so, and that effort culminated in the FCC’s CVAA regulations (the “Regulations”), 2 a well-rounded system that guarantees accessibility to streaming video while balancing the other considerations ignored by the ADA, as Congress intended.
1 Request for Judicial Notice (“RJN”), Ex. A, Twenty-First Century Comm’ns and Video Access. Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, codified at 47 USC § 613 (Oct. 8, 2010).
2 RJN Ex. B, FCC, Report and Order: In the Matter of Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, FCC 12-9 (Jan. 13, 2012) (codified in relevant part at 47 CFR §§79.4 et seq.), summarized and pub’d at 77 Fed. Reg. 19,480 (Mar. 30, 2012) (“This is a summary of the Commission’s Report and Order, FCC 12–9”).
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Plaintiffs hope the ADA will give them more than that balance can bear. As the newly minted regulations make clear, their ill-fitting interpretation of the ADA fails as a matter of law.
First, Plaintiffs do not state an ADA claim because Plaintiffs fail to meet their burden to show Netflix has “sufficient control over the modification”—captioning—that Plaintiffs seek. Plaintiffs’ interpretation, which wholly ignores the critical issue of whether Netflix even has the legal right to caption all the video programming Plaintiffs’ seek, would have Netflix create infringing derivative works that conflict with the video owners’ copyrights. Without the requisite control, the ADA does not apply.
Second, Plaintiffs’ claims do not involve a “place of public accommodation.” To the contrary, the ADA’s text, regulations, and legislative history all show Congress and the Department of Justice (“DOJ”) affirmatively rejected the tenuous interpretation Plaintiffs propose here: that the ADA applies to video programming or websites—particularly in light of the on-point CVAA.
Third, even if, arguendo, this action facially came within the realm of the ADA, the CVAA “carves out” closed captioning of streaming video programming from the ADA’s scope in this context. Addressing the technical, practical, economic, and legal limitations the ADA ignores, the CVAA and regulations assign primary captioning responsibilities to programming owners, not distributors like Netflix; impose a two-year grace period for compliance to allow involved parties to work through initial practical difficulties; address captioning problems through a comprehensive case-by-case complaint mechanism; and “protect[] from liability” good faith captioning efforts. Brushing aside that measured approach, Plaintiffs’ irreconcilable interpretation of the ADA would impose captioning responsibilities directly on Netflix, do so immediately, through a prohibited private right of action outside the exclusive complaint
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procedures, and despite exemptions from liability. Plaintiffs’ interpretation simply does not withstand scrutiny in light of the CVAA and new Regulations.
Fourth, the case is moot anyway, as the CVAA’s effective date—April 30, 2012—has now passed, and the Regulations are now in effect.
For these reasons, Plaintiffs’ claim fails as a matter of law. II. RELEVANT ALLEGATIONS AND BACKGROUND. Early Captioning Efforts (2008–2009). Plaintiffs allege that in January 2008, Netflix began offering video programming over the Internet to “Watch Instantly” Netflix subscribers (ECF No. 19, 1st Am. Compl. [“FAC”], ¶¶ 16, 17.) Netflix began voluntarily offering closed captioning on an increasing number of video programming titles, and stated that “we will be working to fill in the library over time.” (Id. ¶¶ 17–19, citation omitted.) Netflix explained, though, that technical challenges and practical considerations prevented immediate captioning of all streaming video programming. (Id.) Notwithstanding the problems, members of the deaf and hard of hearing community complained about the pace of captioning of content supposedly accessed by Netflix subscribers. (Id. ¶¶ 20–27.) Congress Addresses Captioning Through the CVAA (2010). In October 2010, Congress enacted the CVAA, directing the FCC to “revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol.” (Ex. A, CVAA § 202(b), 124 Stat. at 2770, codified at 47 USC § 613(c)(2)(A).) The CVAA serves two purposes. First, it ensures that “individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.” (RJN Ex. C, Senate Comm. on Commerce, Science and Transp., Conf. Rep. [“Senate Report”], S. Rep. No. 111-386, at 1 (Dec. 22, 2010).) Second, given the technical and practical issues of the type cited by Netflix, the CVAA prohibits “application of [closed captioning] regulations [that] would be economically burdensome.” (RJN
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Ex. D, House Comm. on Energy and Commerce, Conf. Rep., [“House Report”] H. Rep. 11-563, at 30 (July 26, 2010).)
Congress assigned the FCC responsibility for drafting captioning regulations, and required that it consult with the CVAA-created Video Programming Accessibility Advisory Committee (the “Advisory Committee”) to meet the statute’s dual goals. (RJN Ex. A, CVAA § 201(a)–(b), 124 Stat. at 2764–65.) NAD is a prominent member Advisory Committee; Netflix is not. (RJN Ex. E, FCC Public Not., Video Programming and Emergency Access Advisory Comm. Announcement of Members, DA 10-2320 (Dec. 7, 2010) [“Advisory Committee Roster”] at 2–3. The NAD, the FCC and the Advisory Committee were to spend 12 months drafting the regulations, with a deadline of January 2012. (Ex. A § 202(b), 124 Stat. at 2770– 71.)
This Lawsuit (June 2011). On June 16, 2011—months after the FCC, Advisory Committee, and NAD began their meetings, but well before the CVAA-set January 2012 deadline to finish the regulations—NAD and Plaintiffs filed this action, alleging Netflix violated the ADA by failing to caption video programming delivered to Netflix subscribers through “Watch Instantly,” a streaming video website. (ECF No. 1, 19 [“FAC”] ¶¶ 1–6, 14–27, 46–56.)3 Plaintiffs do not state facts describing what programming lacks captioning, whether Netflix controls (or can control) the alleged lack of captions, or even whether any plaintiff actually viewed a lack of captions. That paucity of factual allegations notwithstanding, Plaintiffs seek a declaration that “Defendant’s failure to provide closed captions to its Watch Instantly” violates the ADA, and an injunction requiring Netflix “to provide effective communication through closed captioning on Watch Instantly content.” (ECF No. 19, FAC, Prayer for Relief ¶¶ 1, 2.)
3 After Netflix filed its initial motion to dismiss, Plaintiffs filed the operative complaint, the First Amended Complaint, on August 9, 2011. (ECF No. 19.)
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CVAA Notice and Comment Period, and Stay in This Case (Sept.–Nov. 2011). On September 12, Netflix filed a motion to dismiss, stay or transfer, in part asking the Court to allow the FCC to complete its rulemaking procedures under the CVAA. (ECF No. 22.)
On September 28, the FCC issued a Notice of Proposed Rulemaking requesting public comment on, inter alia, the scope of the statute, the technical and economic feasibility of captioning, practicability of deadlines, and standards for regulating captioning. (RJN Ex. F, FCC, Not. of Prop. Rulemaking, Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Comm’ns and Video Access. Act of 2010 [“FCC Notice of Proposed Rulemaking”], 76 Fed. Reg. 59,963 (Sept. 28, 2011).)
On October 18 and November 1, NAD and others filed public comments in response. (See, e.g., RJN Ex. G, Public Comments in Response to FCC Notice of Proposed Rulemaking, Comments of NAD et al. (Oct. 18, 2011) [“NAD Comments”]; Ex. H, Public Comments in Response to FCC Notice of Proposed Rulemaking , Reply Comments of NAD et al. (Nov. 1, 2011) [“NAD Reply Comments”]; Ex. I, Public Comments in Response to FCC Notice of Proposed Rulemaking , Comments of Google, Inc. (Oct. 18, 2011) [“Google Comments”].) In those public comments, NAD interpreted the CVAA broadly to encompass all video programming displayed over the Internet, including all programming that “has been previously been [sic] ‘published or exhibited on television with captions’ at any time prior to or simultaneously with the Internet delivery.” (RJN Ex. G, NAD Comments, at 5; see id. Ex. H, decrying “limits” on CVAA’s scope.)
NAD’s representations to the FCC contrast sharply with its primary argument in this litigation: that the CVAA “covers, at best, only a subset of the content Plaintiffs seek to caption—post-January 2012 television programming.” (ECF No. 26, “Corrected Opp’n,” 8.)
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On November 8, the Court granted a stay of the litigation to permit the FCC to complete its regulations. (ECF No. 32, at 2.)
Publication of Final Regulations and Stay (Jan. 2012). On January 13, 2012, the FCC issued its Final Report and Order (summarized and published in the Federal Register on March 30, 2012). (RJN Ex. B, Regulations.) Among other things, the Regulations defined captioning responsibilities for distributors, set deadlines and grace periods for compliance, prohibited “private rights of action,” and established a mandatory complaint procedure for captioning inadequacies. (See generally id.: see also infra Part V.B.2.) Without these limitations, the FCC concluded captioning would become “overly burdensome” and “may cause [distributors] to refrain from posting videos online.” (RJN Ex. B, Regulations ¶ 17.)
Effective Date (April 30, 2012). The FCC set the effective date of the Regulations at April 30, 2012. (RJN, Ex. J, FCC Public Not., Notice of Effective Date of New IP Closed Captioning Rules, DA 12-505 (Mar. 30, 2012) [“Effective Date Notice”] at 1.)
III. PLAINTIFFS DO NOT ALLEGE “CONTROL” UNDER THE ADA. A. Applicable Law.
Plaintiffs contend Netflix violated the ADA by failing to provide closed captioning on streaming video programming made available to Netflix subscribers. (FAC ¶ 49; see id. ¶ 4 [“Just as buildings without ramps bar people who use wheelchairs, video content without captions excludes deaf and hard of hearing individuals”].) But to plead a violation of the ADA, Plaintiffs must show Netflix “owns, leases (or leases to), or operates” the programming that Netflix allegedly failed to caption. 42 USC § 12182(a). Plaintiffs fail to do so.
The First Circuit has not addressed the meaning of “own[], lease[], or operate[].” This District has followed the Fifth and Ninth Circuits, which define the relevant inquiry as “whether [the defendant] specifically controls the modification of the [things at issue] to improve their
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accessibility to the disabled.” Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1066, 1067– 170 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996)) (affirming dismissal of ADA claim; explaining “operate” implies “control”) (emphasis added); Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963, 964, 965, 966–67 (9th Cir. 2006) (affirming dismissal of ADA claim alleging defendant failed to place ramp over lawn defendant did not own because defendants “do not manage the strip of grass, mow it, or maintain it in any manner”; following Neff ); see Guckenberger v. Boston Univ., 957 F. Supp. 306, 322–23 (D. Mass. 1997) (granting motion to dismiss ADA action against defendant who lacked “the authority, control, or discretion that is necessary for one to be deemed an ‘operator’ of a place of public accommodation”; following Neff and Pickern). Thus, where the defendant does not control the “ramp”—the means of access—it cannot be held liable under the ADA. Pickern, 457 at 963–67; see also Coddington v. Adelphi Univ., 45 F. Supp. 2d 211, 217 (E.D.N.Y. 1999) (noting ADA applies only to “individuals who have the power to facilitate any necessary accommodation.”).
Courts here and elsewhere repeatedly grant motions to dismiss where, as here, a plaintiff fails to allege defendant exercises sufficient “control” to adopt the requested modification. E.g., Guckenberger, 957 F. Supp. at 322 (D. Mass. 1997) (granting motion to dismiss Title III claims because defendant did not exercise “control” over the sought-after modification); Coddington, 45 F. Supp. 2d at 213–218 (same)4; Cortez v. Nat’l Basketball Ass’n, 960 F. Supp. 113, 117 (W.D. Tex. 1997) (same); Brown v. 1995 Tenet ParaAmerica Bicycle Challenge, 959 F. Supp. 496, 499 n.1 (N.D. Ill. 1997) (same). This motion should also be granted.
4 The decision erroneously states the court granted a “motion for summary judgment,” id. at 218, but the rest of the opinion clarifies it concerned a motion to dismiss, id. at 213–14.
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B. Plaintiffs Do Not Allege Facts Showing Netflix Controls Captions. Plaintiffs cannot credibly allege Netflix sufficiently controls the captioning to make it liable under the ADA. As the threshold, Plaintiffs merely speculate that, because Netflix maintains a website through which subscribers can view the programming, Netflix has the ability to modify all the content available for viewing. (FAC ¶ 6.) Such speculation does not suffice. See Dixon v. Shamrock Fin. Corp., 522 F.3d 76, 79 (1st Cir. 2008) (affirming dismissal for failure to “‘raise a right to relief above the speculative level,’” and rejecting plaintiff’s “‘unsupported conclusions or interpretations of law.’”) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)). No legal basis supports Plaintiffs’ speculative theory because programming distributors like Netflix lack the legal right to engage in captioning. That ownership and control belongs to the programming owners, who alone hold the exclusive rights necessary to caption content, including reproduction rights, adaptation rights, distribution rights, and public performance rights to copy and modify audiovisual works. To caption video programming is to create a derivative work, which is “infringing” if done without the underlying copyright owner’s permission. Stewart v. Abend, 495 U.S. 207, 223, 235 (1990) (noting Copyright Act “requires consent by the author of the pre-existing work before the derivative work may be produced”); see Agee v. Paramount, 59 F.3d 317, 324 (2d. Cir. 1995) (explaining that Paramount infringed plaintiff’s reproduction rights at the moment it put portions of his recording on tape to make a segment for another medium; WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622 (7th Cir. 1982) (holding that unauthorized “teletexting” of broadcasts, like unauthorized “subtitles,” infringe broadcaster copyrights); Gilliam v. American Broadcasting Co., 538 F.2d 14, 21 (2d Cir. 1976) (holding “unauthorized editing of the underlying [movie]”
8

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edits to movie violated owner’s copyrights; “the ability of the copyright holder to control his work remains paramount in our copyright law.”).
In addition, captioning may also require Netflix to decrypt digital rights management protections that accompany video files, a separate violation of the Digital Millennium Copyright Act, which prohibits “circumvent[ing] a technological measure that effectively controls access to a work protected” by copyright, including by “decrypt[ing] an encrypted work.” 17 USC § 1201(a).
In this context, the ADA’s “control” requirement ensures that a defendant is not placed in the precarious position of providing an accommodation that would interfere with the rights of others. (The CVAA addresses these concerns by assigning primary captioning responsibilities to programming owners, see infra Part V.B.2.) As a result, Plaintiffs’ claim fails.
IV. PLAINTIFFS DO NOT ALLEGE A “PLACE OF PUBLIC ACCOMMODATION” UNDER THE ADA A. The Issue Is Not Whether a Website Is a “Physical Place.”
Even if, arguendo, Netflix had sufficient control over the material to be captioned, the ADA imposes on Plaintiffs the additional burden to show that a “place of public accommodation” is at issue. 42 USC § 12182(a). Plaintiffs instead make the threadbare conclusory assertion that “the Netflix Watch Instantly website is a ‘place of public accommodation’” without actual factual allegations or legal basis. (FAC ¶ 6); cf. Dixon, 522 F.3d at 79 (“unsupported conclusions or interpretations of law” inappropriate). The ADA does not support Plaintiffs’ theory.
At the outset, this is not simply about whether Netflix’s streaming video is a “physical place,” the only relevant issue in Carparts Distribution Center v. Automobile Wholesaler’s Association, 37 F.3d 12, 20 (1st Cir. 1994). In Carparts, the court addressed whether the district
9

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court correctly concluded that a health insurance plan could not constitute a “place of public accommodation” simply because a plan was not a “physical” place. Id. at 18–19. Finding the statutory language “general and ambiguous” and the available legislative and regulatory history similarly unhelpful, Carparts came to the narrow conclusion that a place of public accommodation “might, in some circumstances,” include things that are not “actual, physical structures.” Id. at 19 (emphasis added). Because “the case must be remanded on other grounds,” noted the court, it directed the district court also to determine whether those such circumstances were present in the health plan in that case. Id.
The First Circuit has subsequently noted Carparts stands for that narrow proposition and nothing more, and has distinguished it more than once as involving “an unusual set of facts, and a particular procedural posture.” Barton v. Clancy, 632 F.3d 9, 19 (1st Cir. 2011); Lopez v. Massachusetts, 588 F.3d 69, 88 (1st Cir. 2009) (same); see also Iwata v. Intel Corp., 349 F. Supp. 2d 135, 145 (D. Mass. 2004) (“[Carparts] acknowledged the possibility that the public accommodations provisions of Title III might apply to health benefit plans, at least in some circumstances.”) (emphasis added). Other circuits have questioned its viability outright.5
In any event, Carparts is not nearly as broad as Plaintiffs contend, and provides no support for the notion that video programming or websites are places of public accommodation.
B. Websites and Video Programming Are Not Within the “Exhaustive” Enumerated Lists of “Places of Public Accommodation.”
Independent of whether a place of public accommodation includes “non-physical” locations, the statute does not include anything like websites or streaming video programming
5 See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000) (holding that an insurer administering a disability plan is not a place of public accommodation; “the authority underlying Carparts has been largely repudiated”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998) (noting Carparts failed to construe statute correctly); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (“a public accommodation is a physical place”).
10

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among the ADA’s two statutory and regulatory lists defining “place of public accommodation”, which are “exhaustive, not merely exemplary or illustrative.” Jankey v. Twentieth Century Fox Film Corp., 14 F. Supp. 2d 1174, 1178 (C.D. Cal. 1998), aff’d, 212 F.3d 1159, 1161 (9th Cir. 2000) (applying Carparts, 37 F.3d at 20).
The First Circuit interprets silence from an exhaustive list to mean “this exclusion was intentional.” Castro-Soto v. Holder, 596 F.3d 68, 73 n.5 (1st Cir. 2010) (applying expressio unius est exclusio alterius canon to find challenged conduct did not come within scope of regulations under immigration statute); see Iverson v. Comsage, Inc., 132 F. Supp. 2d 52, 55 (D. Mass. 2001) (applying expressio unius canon to ADA; “The incorporation of one statutory provision to the exclusion of another must be presumed intentional.”)
Here, none of the 12 enumerated categories of “place[s] of public accommodation,” 42 USC § 12181(7)—hotels; restaurants; theaters; auditoria; retail centers; personal service providers; public transportation terminals; museums and libraries; parks and zoos; schools; social service establishments; and recreation centers—include websites or video programming. The same is true of the implementing regulations, codified at 28 CFR § 36.104. Section 36.104 defines place of public accommodation, in relevant part, as “a facility operated by a private entity whose operations . . . fall within one of the [categories enumerated by § 12182(7).” Id. “Facility,” in turn, is defined as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” Id. Again, the Internet or videos are not listed “place[s] of public accommodation.”
Because the “place” at issue here does not fall within any of the enumerated categories, it does not come within the ADA’s scope. E.g., Wattleton v. Doe, No. 10-11969, 2010 U.S. Dist.
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LEXIS 137541, at *4 (D. Mass. Dec. 14, 2010) (granting motion to dismiss ADA claim against prison because “Title III does not include the Bureau of Prisons, or any other federal entity, among its exhaustive list of public accommodations”); Abbott v. Town of Salem, No. 05-cv-127, 2006 U.S. Dist. LEXIS 4338, at *7–10 (D.N.H. Feb. 2, 2006) (granting motion to dismiss because defendant “operates a security service[,] not [] a place of public accommodation”).
C. Subsequent History Confirms the Exclusion “Was Intentional.” Congress’s and the DOJ’s intentional decisions not to expand those lists to include the conduct here confirms the exclusion of websites and video programming from 42 USC § 12181(7) and 28 CFR § 36.104 “was intentional.” Castro-Soto, 596 F.3d at 73. The DOJ has repeatedly failed to include websites and video programming in final regulations implementing the ADA. In 2008, the DOJ issued a Notice of Proposed Rulemaking to add closed captions to the list of accommodations required by the ADA, but ultimately decided not to issue those regulations, citing “significant setbacks” to businesses resulting from the recent recession, rapid technological development, and considerations that would “make any regulatory requirements for captioning . . . more difficult . . . to implement.” Fed. Reg. Unified Agenda 1190-AA63, http://federalregister.gov/r/1190-AA63 (Fall 2011). In 2010, the DOJ issued another Notice of Proposed Rule Making that would have applied the ADA to the Internet, but the DOJ declined to adopt those proposed regulations6 (presumably because the CVAA was well on its way to becoming law). And while the failure to complete those regulations is telling, the regulations they have merely proposed have no legal weight. See Doe
6 DOJ, Proposed Rule, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,460 (July 26, 2010).
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v. Mut. of Omaha Ins. Co., 179 F.3d 557, 563 (7th Cir. 1999) (incomplete agency statements cannot “claim much democratic legitimacy to set over against the intent of Congress”).
Congress has also declined to update the statute to include websites and video programming among the enumerated categories of “place[s] of public accommodation,” despite making several amendments to the ADA since 1990. E.g., ADA Amendments Act of 2008, § 2, Pub. L. 110-325 (Sept. 25, 2008) (expanding set of individuals covered by the ADA). Instead, Congress elected to place regulation of captioning of Internet-based content within the direct and exclusive realm of the CVAA and FCC. (See infra Part V.B.1.) The Court should decline Plaintiffs’ invitation to legislate a new addition to the ADA’s “exhaustive” lists.
V. EVEN IF PLAINTIFFS’ CLAIM CAME WITHIN THE ADA’S POTENTIAL SCOPE, IT CANNOT BE RECONCILED WITH THE CVAA AND FCC REGULATIONS. A. Applicable Law.
Even if, arguendo, Plaintiffs’ potentially raised a facial ADA claim, Plaintiffs’ interpretation of the ADA would conflict with the CVAA, which specifically addresses the conduct (accessibility to streaming video) and remedy (closed captioning) at issue.
It is long-settled “that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” Kepner v. United States, 195 U.S. 100, 125 (1904) (citations omitted); Nat. Resources Def. Council, Inc. v. U.S. Envt’l. Prot. Agency, 824 F.2d 1258, 1278 (1st Cir. 1987) (“the most recent and more specific congressional pronouncement will prevail over a prior, more generalized statute.”); 2B Norman J. Singer & J.D. Shambie Singer, Southerland’s Statutes and Statutory Construction § 51:2 (7th ed. 2008) (“If there is an irreconcilable conflict between a new provision and prior statutes, the new provision will control as it is the later expression of the
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legislature.”). Simply put, “[a] statutory interpretation that renders another statute superfluous is [] to be avoided.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 35 (2003).
Thus, the First Circuit will harmonize conflicting statutes by interpreting the later statute to “carve out” a specific area “from the reach of” the older, more general one. Greenless v. Almond, 277 F.3d 601, 608–09 (1st Cir. 2002); see Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982) (“When one statute speaks in general terms while the other is specific, conflicting provisions may be reconciled by carving out an exception from the more general enactment for the more specific statute.”). Thus, the later statute “can be deemed an exception to the general rule enunciated in the other statute.” 2B Singer, Southerland’s Statutory Construction § 51:2.
The Supreme Court and First Circuit routinely dismiss claims premised on statutes where the subject matter has been implicitly carved out by a later statute. See, e.g., Dastar Corp., 539 U.S. at 33–35 (dismissing claims; carving out “misrepresentation of origin of noncopyrighted works” from scope of the Lanham Act, which facially covers “false designation of origin,” because the claim would have rendered “superfluous” the later Visual Artists Rights Act, “which addresses that subject specifically”); Greenless, 277 F.3d at 604, 605, 609 n.8 (dismissing claims; carving out entitlement to federal money from the scope of prior tobacco settlement statute, which facially entitled victims to all “remainder” proceeds remaining after reimbursement to “states”).
These principles were applied to carve out closed captioning of television programming from the scope of the ADA in Zulauf v. Kentucky Educational Television, 28 F. Supp. 2d 1022 (E.D. Ky. 1998). There, a deaf television viewer claimed a television station’s lack of closed captioning violated the ADA. Id. at 1023. The Video Programming Accessibility Act of 1996 (“VPAA”), however, was “the latest and most specific statute addressing a broadcaster’s duty to
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provide closed captioning for its video programming.” Id. at 1023. Under the VPAA, “Congress directed the [FCC] to establish appropriate deadlines for the closed captioning of video programming, taking into account the realities of the marketplace . . . . Consistent with its mandate, the FCC adopted rules implementing the VPAA. ” Id. at 1023. Because the later and more specific statute “controls the earlier and more general one,” the court dismissed the action. Id.at 1024 (“If the Court ruled any other way, . . . [the VPAA] would be rendered meaningless because every plaintiff would circumvent [it] by suing under the ADA.”)
Here, as in Dastar, Greenless, and Zulauf, the specific and recent statute (the CVAA) carves certain conduct (closed captioning of streaming video programming) from the scope of the older and more general statute (the ADA).
B. The CVAA Carves Out Streaming Video Captioning From the ADA. 1. Congress intended the CVAA and Regulations to address captioning of all streaming video programming.
Even if the ADA potentially applied on its face to Plaintiffs’ claims, Congress intended the CVAA and FCC to carve captioning of streaming video programming from the ADA’s scope.
This intended carve out is clear from the CVAA’s purpose. Congress intended the CVAA to ensure that “individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.” (Ex. C, Senate Report, S. Rep. No. 111-386, at 1; see Ex. B, Regulations ¶ 1 (“The rules we adopt here will better enable individuals who are deaf or hard of hearing to view IP-delivered video programming, as Congress intended.”).) The CVAA also accounts for the technical and economic issues involved in this form of access, because of which Congress prohibited “application of [captioning] regulations [that] would be economically burdensome.” (RJN Ex.C, Senate Report, S. Rep. No.
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111-386, at 1, 13; see id. Ex. D, House Report, H. Rep. 11-563, at 15, 30 (same). Otherwise, “overly burdensome standards may cause [distributors] to refrain from posting videos online.” (RJN Ex. B, Regulations ¶ 17, applying 47 USC § 613(d).)
The carve-out is also clear from the CVAA’s scope. 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 (April 30, 2012). see RJN Ex. A, CVAA § 202(b), 124 Stat. at 2767 (codified at 47 USC § 613(c)) (incorporating § 613(b) and requiring the FCC to regulate according to its standards). As NAD itself previously maintained when it promoted a broad interpretation of the CVAA (infra Part V.C), any video programming content that “‘has been displayed on television’” or will have been displayed on television with captions “after the effective date” comes within the broad scope of the Regulations. (RJN Ex.G, NAD Comments at 8, quoting 56 Cong. Rec. H6007 (2010) (statement of Rep. Boucher).) The CVAA also covers programming not necessarily displayed on television—e.g., live programming (RJN Ex. B, Regulations ¶¶ 55–56); near-live programming (id. ¶¶ 57–58); video clips (id. ¶¶ 44–47); foreign programming (id. ¶ 50) and home video programming (id. ¶¶ 42, 60). In some of these cases, captioning is inappropriate currently because of the risk of “creat[ing] many difficulties.” (E.g., id. ¶ 50, discussing foreign programming); see also Sprietsma v. Mercury Marine, 537 U.S. 51, 66 (2002) (noting agency’s election not to regulate may be “authoritative [] determination that [] area is best left unregulated”).
2. Plaintiffs’ interpretation of the ADA conflicts with the CVAA. Plaintiffs’ conception of the ADA is irreconcilable with the CVAA. Irreconcilable Conflict With Allocation of Responsibilities. Under the CVAA, video content owners (e.g., movie studios)—not distributors like Netflix—initially have primary responsibility for captioning. See 47 USC § 613(a)(2)(A), (c)(2)(D)(iii)–(v) (directing FCC to
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allocate captioning responsibilities). The FCC thoroughly considered the myriad economic, technical, practical, and “substantial copyright infringement concerns” posed by captioning streaming content during the notice and comment period, and concluded that video content owners are “farther up in the distribution chain” and more efficiently can caption content. (Ex. B, Regulations, ¶¶ 21–24.) “Given their unique position as the [creators and owners] of video programming and its copyright, [owners] are ideally situated to create and distribute required closed captioned files, and to do so efficiently by distributing the video file and closed captioning simultaneously.” (RJN Ex. I, Google Comments, at 7, responding to FCC request for “comment on any copyright concerns implicated [by captioning],” RJN Ex. F, ¶ 19.) Plaintiffs’ requested relief—to make a distributor guarantee captioning—would upend this allocation.
Irreconcilable Conflict With Grace Periods and Deadlines. Plaintiffs demand immediate captioning, but the CVAA and Regulations provide a two-year grace period and schedule of compliance deadlines to provide owners and distributors a “reasonable period of time to develop processes or methods” to caption programming, given the many “costs and complexities” of captioning. (RJN, Ex. B, Regulations,. ¶¶ 34, 51 n. 218; id. ¶¶ 51–60 [describing deadlines]; see RJN Ex. A, CVAA § 201(a), (f) (requiring compliance deadlines to minimize “economic[] burden[s]”). Plaintiffs urge this Court to impose the manifestly unreasonable captioning requirements outside these deadlines.
Irreconcilable Conflict With “Prohibit[ion] on Private Rights of Action.” “Private rights of action” concerning captioning under the CVAA are “prohibited.” 47 USC § 613(j); 47 CFR § 79.4(f). Thus, the Regulations create an extensive “complaint procedure” through which streaming video viewers alert the FCC or video distributors can resolve captioning issues. (RJN Ex. B, Regulations ¶¶ 75–91.) Viewers have 60 days to file a complaint with the FCC,
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after which time the FCC will investigate the complaint and, if necessary, “employ the full range of sanctions available” against noncompliant entities. (Id. ¶¶ 76, 78, 80–82, 86.) Even NAD argued that a “robust, consumer-driven complaint and enforcement mechanism is necessary” under the CVAA (RJN Ex. G, NAD Comments, at 20), but here, as in Zulauf, Plaintiffs would “render[] [the mechanism] meaningless because every plaintiff would circumvent this provision by suing under the ADA.” Zulauf, 28 F. Supp. 2d at 1024.
Irreconcilable Conflict With Exemptions From Liability. The CVAA precludes liability where the FCC determines the captioning regulations “would be economically burdensome.” 47 USC § 613(c)(2)(D)(ii). Thus, Regulations provide categorical “safe harbors” which entities are expressly “protected from liability,” including where entities (a) make “good faith efforts” to identify and content and render “pass-through” of captions, (b) employ industry standards for captioning content, (c) employ “alternative means of compliance,” or (d) make only “de minimis” failures to caption. (Ex. B, Regulations, ¶¶ 16, 72–74; see ¶¶ 124–126 (“we adopt the [SMPTE-TT standard] format . . . as a safe harbor interchange and delivery format”).) Plaintiffs would have the ADA compel a finding of liability against Netflix, even where Netflix’s “good faith efforts” or compliance with industry standards or “alternative means” would excuse it.
Given these considerations, the CVAA has meaning only if it applies to closed captioning of streaming video content to the exclusion of the ADA, as Congress intended.
C. Plaintiffs’ Own Statements About the CVAA’s Scope Support Netflix’s Position.
Plaintiffs have tried to sidestep the CVAA by claiming it “covers, at best, only a subset of the content Plaintiffs seek to caption—post-January 2012 television programming.” (ECF No. 26 at 8.) Yet, as late as October 2011, when it was advocating for an expanded interpretation of the CVAA, NAD represented in its public comments to the FCC precisely the opposite position.
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In that filing, NAD responded to the comments of other industry groups that urged the FCC to interpret the CVAA as Plaintiffs do here—that any video programming published “prior to” the effective date of the Regulations would not come within the Regulations’ scope. (RJN Ex. H, NAD Reply Comments, 6.) NAD rejected that position, explaining that
Such a limitation would effectively deny consumers who are deaf or hard of hearing access to the vast back catalog of television shows and movies that have been published or exhibited on television with captions over the past decade and are now offered online via services such as Netflix, Hulu, and Amazon. . . . The legislative history does not support the proposition that Congress intended such a result. (Id. at 6 n.9.) Instead, said NAD, the CVAA applies whenever video programming was displayed with captions “at any time prior to or simultaneously with the Internet delivery.” (Id. 4–6.) Plaintiffs’ change of position is troubling. They cannot represent that the CVAA applies broadly before the FCC, then say it applies only to a “small subset” of “post-2012 programming” here. The Court should hold Plaintiffs to their previous position, put a stop to their “intentional self-contradiction,” and prevent them from “obtaining unfair advantage” of the parallel forums. GE HFS Holdings, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 520 F. Supp. 2d 213, 223 (D. Mass. 2007) (citations omitted); see InterGen Naamloze Vennootschap v. Grina, 344 F.3d 134, 144 (1st Cir. 2003) (applying estoppel to “a claim that is inconsistent with a position taken by that litigant [] in a prior legal proceeding”). VI. PLAINTIFFS’ CLAIM IS MOOT. Plaintiffs have proceeded on the theory that injunctive relief is necessary because the CVAA did not cover captioning before the “effective date.” (See, e.g., Nov. 8, 2011 Tr. at 17.) The effective date (April 30) has now come and gone, the Court “cannot provide effectual
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relief,” and Plaintiffs’ claim is moot. Oakville Dev. Corp. v. Fed. Deposit Ins. Corp., 986 F.2d

611, 613 (1st Cir. 1993) (ordering dismissal where court could not provide further relief).

VII. CONCLUSION.

For the foregoing reasons, Netflix respectfully requests this action be dismissed.

May 1, 2012
1168016

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454

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Case 3:11-cv-30168-MAP Document 43 Filed 05/01/12 Page 31 of 32
[PROPOSED] ORDER Defendant Netflix, Inc.’s Motion for Judgment on the Pleadings as to the First Amended Complaint of plaintiffs National Association of the Deaf; Western Massachusetts Association of the Deaf and Hearing Impaired; and Lee Nettles came on regularly for hearing on Tuesday, June 11, 2012, at 10:00 a.m. in the Hampden Courtroom of the above-entitled court. After considering the moving, opposition, and reply papers, arguments of counsel and all other matters presented to the Court, IT IS HEREBY ORDERED THAT the motion is ALLOWED, this Action is DISMISSED WITH PREJUDICE, and JUDGMENT IS ENTERED in favor of defendant and against plaintiffs. IT IS SO ORDERED, DECREED, and ADJUDGED.
By: Hon. Michael A. Ponsor, U.S. District Judge

Case 3:11-cv-30168-MAP Document 43 Filed 05/01/12 Page 32 of 32 CERTIFICATE OF SERVICE
I, David F. McDowell, hereby certify that a copy of the foregoing documents has been served upon all opposing counsel of record by ECF on this 1st day of May, 2012.
/s/ David F. McDowell David F. McDowell
2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF, LEE NETTLES,
Plaintiffs
v.
NETFLIX, INC., Defendant

) ) ) ) ) ) ) C.A. NO. 11-cv-30168-MAP ) ) )

MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION TO DISMISS
AMENDED COMPLAINT (Dkt. No. 22)
November 10, 2011 PONSOR, D.J.
Plaintiffs, the National Association of the Deaf, the Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles, have brought this action under Title III of the Americans with Disabilities Act (“ADA”) against Defendant Netflix, Inc., for failure to provide equal access to its video streaming service, “Watch Instantly,” for deaf and hearing impaired individuals. Defendant filed a Motion to Dismiss Plaintiffs’ Amended Complaint (Dkt. No. 22) and the court heard argument on the motion on November 8, 2011. At the conclusion of the hearing, the court indicated that it would deny Defendant’s motion to the extent that Defendant sought dismissal of the

complaint, stating its reasons in detail. In summary, dismissal under the “primary jurisdiction
analysis” would be improper, and Defendant’s arguments with regard to Plaintiffs’ lack of standing and the “first-filed” rule are unpersuasive. Similarly, the court is not persuaded that the “first-filed” rule justifies transfer of this case to the Northern District of California.
Defendant’s motion, however, will be allowed to the extent that it seeks a stay of this case pending rule-making action by the Federal Communications Commission (“FCC”). The FCC’s determination “lies at the heart” of the matters at issue here, its expertise will throw light on some technical aspects of the case, and its determination will be of assistance to the court. Rymes Heating Oils, Inc. v. Springfield Terminal Ry. Co., 358 F.3d 82, 91 (1st Cir. 2004). The motion to stay will be allowed until February 6, 2012, on the assumption that the FCC’s rule-making process will be complete before the end of January 2012.
As the court indicated at the conclusion of the hearing, Defendant will file its answer within thirty days. The parties will submit a status report no later than February 6, 2012, including copies of any materials issued by the FCC and a proposed schedule for completion of pretrial proceedings. In the event that the FCC delays
-2-

action, the court may reconsider the stay at that time. In summary, Defendant’s Motion to Dismiss (Dkt. No. 22)
is hereby DENIED, except to the extent that this matter is stayed until February 6, 2012.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
-3-

 
 Case 3:11-cv-30168-MAP Document 22 Filed 09/12/11 Page 1 of 31

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED, and LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC.,
Defendant.

Civil Action No. 3:11-cv-30168
[Leave to file granted September 12, 2011]

NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT (OR, IN THE ALTERNATIVE, TRANSFER TO
THE NORTHERN DISTRICT OF CALIFORNIA); MEMORANDUM OF POINTS AND AUTHORITIES

[ORAL ARGUMENT REQUESTED]

Case 3:11-cv-30168-MAP Document 22 Filed 09/12/11 Page 2 of 31

TABLE OF CONTENTS

Page

NOTICE OF MOTION AND MOTION ....................................................................................... v
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 ................................................vii
REQUEST FOR ORAL ARGUMENT ......................................................................................viii
MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 1
I. INTRODUCTION AND RELEVANT BACKGROUND................................................. 1
II. THE COMPLAINT’S REQUEST FOR ADJUDICATION OF AN ISSUE DEDICATED EXCLUSIVELY TO THE FCC COMPELS DISMISSAL UNDER THE PRIMARY JURISDICTION DOCTRINE........................... 3
A. First Circuit Primary Jurisdiction Doctrine Requires Dismissal............................ 3
B. Each Primary Jurisdiction Factor Favors Dismissal .............................................. 5
1. The adequacy of streaming video captioning lies at the heart of the FCC’s assigned task ...................................................... 5
2. The FCC’s expertise is required to unravel intricate, technical facts concerning Netflix’s captioning ......................................... 7
3. The FCC’s determination would materially aid in resolving the issues .................................................................................... 9
III. THE COMPLAINT’S FAILURE TO ALLEGE ANY COGNIZABLE INJURY RENDERS THE MATTER UNRIPE FOR ADJUDICATION AND COMPELS DISMISSAL FOR LACK OF STANDING ....................................... 10
A. Plaintiffs Have Not Suffered Any Actual Injury.................................................. 10
B. Plaintiffs Do Not Qualify for the “Futile Gesture” Rule Because the Action Is Not Ripe and Plaintiffs Suffer No Hardship................................... 11
IV. THE COMPLAINT’S DUPLICATION OF THE FIRST-FILED CULLEN ACTION COMPELS DISMISSAL OR, AT MINIMUM, TRANSFER TO THE NORTHERN DISTRICT OF CALIFORNIA.................................................................. 14
A. The First-Filed Rule Compels Dismissal ............................................................. 14
B. In the Alternative, This Case Should Be Transferred to the Northern District of California............................................................................. 18
1. Applicable law.......................................................................................... 18
2. Existence of the first-filed Cullen Action favors transfer ........................ 19
3. Convenience of the parties, access to sources of proof, and the interests of justice also favor transfer....................................................... 19
V. CONCLUSION ................................................................................................................ 20
[PROPOSED] ORDER ....................................................................................................................

i

Case 3:11-cv-30168-MAP Document 22 Filed 09/12/11 Page 3 of 31
TABLE OF AUTHORITIES
Page(s)
CASES
Am. Tel. & Tel. Co. v. IMR Capital Corp., 888 F. Supp. 221 (D. Mass. 1995) ............................................................................................ 7
Biolitec, Inc. v. AngioDynamics, Inc., 581 F. Supp. 2d 152 (D. Mass. 2008) ..................................................................................... 15
Carey v. Hillsborough Cnty. Dep’t of Corr., No. 05-cv-442-PB, 2006 U.S. Dist. LEXIS 23515 (D.N.H. Mar. 6, 2006) ...................... 14, 15
Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7 (1st Cir. 1987) ........................................................................................... 14, 18, 19
Clark v. Time Warner Cable, 523 F.3d 1110 (9th Cir. 2008)................................................................................................... 7
Cont’l Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960) .................................................................................................................. 19
Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997) .......................................................................................... 10
Handigran v. Travis & Natalie, Inc., 379 F. Supp. 2d 83 (D. Mass. 2005) ....................................................................................... 18
Impervious Paint Indus., Ltd. v. Ashland Oil, Inc., 444 F. Supp. 465 (E.D. Pa. 1978) ........................................................................................... 20
Liquilux Gas Corp. v. Martin Gas Sales, 771 F. Supp. 502 (D.P.R. 1991), aff’d., 979 F.2d 887 (1st Cir. 1992)........................................................................................... 3
Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st Cir. 1995) ................................................................................................... 4, 7
McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63 (1st Cir. 2003) .............................................................................................. passim
Murphy v. United States, 45 F.3d 520 (1st Cir. 1995) ..................................................................................................... 11
N. Cnty Commc’ns Corp. v. Cal. Catalog & Tech., 594 F.3d 1149 (9th Cir. 2010)................................................................................................... 7
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TABLE OF AUTHORITIES (continued)
Page(s) Resnick v. Magical Cruise Co., Ltd.,
148 F. Supp. 2d 1298 (M.D. Fla. 2001) .................................................................................. 13
Rymes Heating Oils, Inc. v. Springfield Terminal Ry. Co., 358 F.3d 82 (1st Cir. 2004) ................................................................................................... 3, 4
Scheinbart v. Certain-Teed Prods. Corp., 367 F. Supp. 707 (S.D.N.Y. 1973).......................................................................................... 18
Serlin v. Arthur Andersen & Co., 3 F.3d 221 (7th Cir. 1993)....................................................................................................... 15
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988) .................................................................................................................. 18
TRW Inc. v. Andrews, 534 U.S. 19 (2001) .................................................................................................................... 9
United States ex rel. Ondis v. City of Woonsocket, R.I., 480 F. Supp. 2d 434 (D. Mass. 2007), aff’d, 587 F.3d 49 (1st Cir. 2009)................................................................................ 17, 19, 20
United States v. W. Pac. R.R. Co., 352 U.S. 59 (1956) .................................................................................................................... 3
W. Gulf Mar. Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721 (5th Cir. 1985)............................................................................................. 14, 17
Wiley v. Gerber Prods. Co., 667 F. Supp. 2d 171 (D. Mass. 2009) ..................................................................................... 19
Young v. Kelly, No. 88-cv-0511E(M), 1993 U.S. Dist. LEXIS 13816 (W.D.N.Y. Sept. 30, 1993), aff’d, 33 F.3d 49 (2d. Cir. 1994) ....................................................................................... 16, 17
Zulauf v. Kentucky Educ. Television, 28 F. Supp. 2d 1022 (E.D. Ky. 1998) .............................................................................. passim
RULES & STATUTES
Federal Rules of Civil Procedure 12(b)(1)...................................................................................................................................... 3
Twenty-First Century Telecommunications and Video Accessibility Act, Pub. L. No. 111-260, §§ 201 & 202, 124 Stat. 2751 ........................................................................... passim
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TABLE OF AUTHORITIES (continued) Page(s)
28 USC § 1404(a) ..................................................................................................................... 18, 19, 20
42 USC § 12188(a)(1)..................................................................................................................... 11, 12
47 USC § 613(i) .................................................................................................................................. 3, 6 § 613(a)(2)(A) .......................................................................................................................... 6 § 613(c)(2)(A) ....................................................................................................................... 6, 8 § 613(c)(2)(B) ........................................................................................................................... 8 § 613(c)(2)(D)(ii) .................................................................................................................. 6, 8 § 613(c)(2)(D)(iii) ..................................................................................................................... 6 § 613(c)(2)(D)(iv) ..................................................................................................................... 6 § 613(c)(2)(D)(iv) ..................................................................................................................... 6
OTHER AUTHORITIES FCC, First Report of the Video Programming Accessibility Advisory Committee on the
Twenty-First Century Communications and Video Accessibility Act of 2010: Closed Captioning of Video Programming Delivered Using Internet Protocol (July 13, 2011).......... 8 Senate Committee on Commerce, Science and Transportation, Conference Report, S. Rep. No. 111-386 (2010) ...................................................................................................... 6 15 Wright, Miller & Cooper, Fed. Prac. & Proc. (3d ed. 2007) § 3854...................................................................................................................................... 19
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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on October 17, 2011, at 8:30 a.m., or as soon thereafter as this matter may be heard before The Honorable Michael A. Ponsor in the Hampden Courtroom, located at 300 State Street, Springfield, Massachusetts 01105, defendant Netflix, Inc. (“Netflix”) will, and hereby does, move for an order dismissing with prejudice the entire First Amended Complaint (“FAC”) in this action (the “NAD Action”) on the following three independent grounds: First, pursuant to Federal Rule of Civil Procedure 12(b)(1), the Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, §§ 201 & 202, 124 Stat. 2751, codified in part at 47 USC § 613 (2010) gives the Federal Communications Commission (“FCC”) exclusive primary jurisdiction over the main issues in this matter, and the Court’s adjudication of the matter at this time would conflict with and undermine both the FCC’s jurisdiction and the 21st Century Act’s mandates; Second, pursuant to Federal Rule of Civil Procedure 12(b)(1), plaintiffs lack standing to bring this action because they have not suffered — and cannot have suffered — any injury resulting from the conduct alleged; and plaintiffs cannot avoid standing requirements by invoking the “futile gesture” rule of the Americans with Disabilities Act, 42 USC § 12101 et seq.; and Third, pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6), the NAD Action is duplicative of a virtually identical case, Cullen v. Netflix, Inc., No. 5:11-cv-01199, filed three months before this case in the United States District Court for the Northern District of California, and should be dismissed under the first-filed rule. (In the alternative, Netflix will, and hereby does, move for an order pursuant to Federal Rule of Civil Procedure 12(b)(3) and
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28 USC § 1404(a) transferring this action to the Northern District of California for the

convenience of the parties.)

This motion is based upon this Notice of Motion and Motion, the attached Memorandum

of Points and Authorities, the Declarations of David F. McDowell and Neil Hunt, all other

pleadings and papers on file herein, and such other argument and evidence as may be presented.

September 12, 2011

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454 dmcdowell@mofo.com jacobharper@mofo.com

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

Pursuant to Local Rule 7.1(a)(2), counsel met and conferred on September 9, 2011, in a

good faith attempt to resolve or narrow the issues raised in this Motion.

September 12, 2011

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454 dmcdowell@mofo.com jacobharper@mofo.com

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REQUEST FOR ORAL ARGUMENT

Netflix hereby requests oral argument on the Motion submitted herewith.

September 12, 2011

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454 dmcdowell@mofo.com jacobharper@mofo.com

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND RELEVANT BACKGROUND. When defendant Netflix, Inc. (“Netflix”) launched “Watch Instantly,” its popular Internet-based streaming video plan, the company revolutionized the video rental business by bringing movies and TV shows directly to Netflix subscribers over the Internet. (FAC ¶¶ 1–3, 13–16.) New technology, as always, brought new challenges: what made Watch Instantly possible also created substantial technical hurdles to providing some common services in traditional videos, including closed captioning — and rendered existing regulatory guidance obsolete. (Id. ¶¶ 3–5, 16–17.) That notwithstanding, in January 2008, Netflix began a campaign to caption, voluntarily, its most popular streaming videos, with the goal of captioning 80% of them by the end of 2011. (Id. ¶¶ 17–19). Meanwhile, in October 2010, Congress enacted the Twenty First Century Communications and Video Accessibility Act (“21st Century Act”) to require the Federal Communications Commission (“FCC”) to determine how best to regulate captioning of Internet-based streaming videos, includding those available on Watch Instantly. Technology and Congress, however, were not fast enough for some, who, following Internet rumors that some Netflix streaming videos lack captions (FAC ¶¶ 21–26), opted for another course: litigation. In March, a hearing-impaired Netflix subscriber filed Cullen v. Netflix, Inc. (the “Cullen Action”), a class action in the Northern District of California alleging Netflix’s inability to caption immediately every one its streaming video violates antidiscrimination laws, and seeking an order compelling Netflix to caption all streaming content. Three months later, the National Association of the Deaf; Western Massachusetts Association of the Deaf and Hearing Impaired; and Lee Nettles (together, “NAD” or “Plaintiffs”) — comprising exclusively NAD members who do not subscribe to Netflix — filed this copycat suit, the “NAD Action,” which, like the first-filed Cullen Action and based on virtually identical allegations,
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accuses Netflix of violating anti-discrimination laws — in particular, the Americans with Disabilities Act (“ADA”) — and seeks an order compelling it to caption all streaming videos.
Neither suit has any merit; but the NAD Action — filed in the wrong place at the wrong time by the wrong people — is particularly troublesome. Three reasons compel dismissal.
Primary Jurisdiction. Adjudication of this action would directly conflict with the primary jurisdiction of the FCC, which, under the 21st Century Act, has exclusive authority to make a first pass, through regulation, at the precise issue raised: the extent to which streaming video providers must offer closed captioning. The 21st Century Act requires the FCC to balance the benefits of captioning against the economic costs and technical feasibility of implementation. Because Plaintiffs ask the Court to pass judgment on issues within the FCC’s exclusive realm but without the guidelines established by Congress, the case should be dismissed to avoid conflict with legislative and agency prerogatives.
No Standing. Primary jurisdiction issues aside, this action was brought by the wrong plaintiffs — all of whom lack standing. Conceding that they “ha[ve] not subscribed to Netflix” or viewed any supposedly “ineffective” closed captioning, Plaintiffs cannot have suffered a particularized injury caused by Netflix. (FAC ¶¶ 30, 31, 33, 35, 41, 45.) Plaintiffs allege that the ADA shields them from having to engage in the “futile gesture” of suffering injury before filing suit (FAC ¶ 54), but their claims are not ripe until Plaintiffs have first-hand “actual notice” of, and suffer injury from, the alleged conduct — they cannot simply rely, as here, on a hypothetical chain of contingencies: that if an individual subscribed to Netflix, and if she had actually viewed “ineffective” captioning, she might suffer injury.
First-Filed Rule. Finally, even if jurisdiction exists in a federal court, the first-filed rule requires dismissal of this action from this Court because it is materially identical to the first-filed
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Cullen Action in the Northern District of California, the proper venue for both actions. Allowing this action to proceed would waste scarce judicial resources and risk inconsistent judgments. Otherwise, the case should be transferred to the Northern District of California for consolidation.
II. THE COMPLAINT’S REQUEST FOR ADJUDICATION OF AN ISSUE DEDICATED EXCLUSIVELY TO THE FCC COMPELS DISMISSAL UNDER THE PRIMARY JURISDICTION DOCTRINE. A. First Circuit Primary Jurisdiction Doctrine Requires Dismissal.
The NAD Action should be dismissed because it invites inevitable conflict with the “exclusive” primary jurisdiction of the FCC, to which, under the 21st Century Act,1 Congress assigned the task to decide the precise issue raised here: the extent to which Internet-based streaming video providers must offer closed captioning — or, in NAD’s terms, whether Netflix’s closed captioning is “effective” as a matter of law. Compare (FAC Prayer ¶¶ 1–2) with 47 USC § 613(i) (“The Commission shall have exclusive jurisdiction with respect to any complaint under this section.”).2
As such, dismissal under the primary jurisdiction doctrine is warranted. Under the primary jurisdiction doctrine,
a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956); see Rymes Heating Oils, Inc. v. Springfield Terminal Ry. Co., 358 F.3d 82, 91 (1st Cir. 2004) (affirming dismissal under primary
1 Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, §§ 201 & 202, 124 Stat. 2751, codified in part at 47 USC § 613 (2010).
2 Motions to dismiss for lack of primary jurisdiction are governed by Federal Rule of Civil Procedure 12(b)(1). Liquilux Gas Corp. v. Martin Gas Sales, 771 F. Supp. 502 (D.P.R. 1991), aff’d., 979 F.2d 887 (1st Cir. 1992).
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jurisdiction doctrine, which “promotes uniformity” in resolution of nationally important issues and permits agencies that are “uniquely suited” resolve them). Three factors determine whether primary jurisdiction compels dismissal:
(1) whether the agency determination lies at the heart of the task assigned the agency by Congress; (2) whether agency expertise is required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court.
Rymes Heating Oils, 358 F.3d at 91 (applying factors to affirm dismissal); accord Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992–993 (1st Cir. 1995) (deferring to agency’s decision as to whether defendant’s conduct violated federal law).
Primary jurisdiction has compelled dismissal of cases with facts materially identical to those presented in the NAD Action. Zulauf v. Kentucky Educ. Television, 28 F. Supp. 2d 1022 (E.D. Ky. 1998), dismissed a complaint alleging a television station discriminated against deaf viewers by “failing to provide closed captioning for all of its programs” in violation of the ADA. Id. at 1023. In light of the Video Programming Accessibility Act of 1996 (the “1996 Act,” predecessor of the 21st Century Act), which delegated to the FCC authority to promulgate regulations for closed captioning of television programming, the central issue was, as here, how Congress’s delegation to the FCC “affect[ed] suits brought under . . . the ADA alleging discrimination due to a broadcaster’s failure to provide closed captioning for all of its programs.” Id. Because the 1996 Act gave primary jurisdiction to regulate closed captioning of television programming to the FCC, the court dismissed the complaint. The court relied on essentially the same analysis required by the First Circuit: (1) under the 1996 Act, the FCC had “exclusive jurisdiction” over closed captioning regulations, and the 1996 Act provided a comprehensive scheme “addressing a broadcaster’s duty to provide closed captioning for its video
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programming,” id. at 1023–1024; (2) “the FCC ha[d] expertise” in broadcasting and captioning
and the 1996 Act “was to promote uniformity,” id. at 1023; and (3) the Court required the FCC
to take a first pass on the issue “to give full effect to each of the statutes,” id.
Replacing only the name of the statute (“21st Century Act” for the 1996 Act) underscores
the core rational of Zulauf maps perfectly onto this case — both of which require dismissal under
the primary jurisdiction doctrine because
the [21st Century Act] is the latest and most specific statute addressing a [streaming video provider’s] duty to provide closed captioning for its video programming, and the Court is merely honoring Congress’s intent to allow the FCC to address any complaints under the statute. Additionally, Congress’s intent in giving the FCC exclusive jurisdiction over any complaints filed under the [21st Century Act] was to promote uniformity in the area of closed captioning, and the Court’s ruling recognizes this intent. Finally, on this point, the FCC has expertise in the area of broadcasting and has already taken steps to determine how much closed captioning broadcasters can reasonably provide. It would be inefficient and a waste of judicial resources for the Court to try and reinvent the wheel and determine the proper rate at which [streaming video providers] should be providing closed captioning for their programming. Zalauf, 28 F. Supp. 2d at 1023–24 (emphasis added).
The reasons for dismissing the NAD Action are even more compelling than in Zulauf.
B. Each Primary Jurisdiction Factor Favors Dismissal. 1. The adequacy of streaming video captioning lies at the heart of the FCC’s assigned task.
The three primary jurisdiction factors plainly require dismissal of the NAD Action.
First, the NAD Action presents precisely the issue of first impression that the 21st
Century Act empowers the FCC to resolve: as noted, the extent to which federal law requires
subtitles in Internet-based streaming videos its affect on ADA claims. (E.g., FAC Prayer ¶ 2
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[seeking an injunction requiring Netflix “to provide effective communication through closed captioning on Watch Instantly content”] [emphasis added].)
Congress expressly recognized the need to articulate legal standards for whether Internetbased video providers offer sufficient — in NAD’s words, “effective” — closed captioning:
The purpose of [the 21st Century Act] is to update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming. Senate Committee on Commerce, Science and Transportation, Conference Report, S. Rep. No. 111-386, at 1 (2010); accord 47 USC § 613(c)(2)(A) (the FCC “shall revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol”). That the 21st Century Act expressly requires that the FCC “shall have exclusive jurisdiction with respect to any complaint under this section,” 47 USC § 613(i), underscores the importance of this issue to the FCC’s assigned task, see Zulauf, 28 F. Supp. 2d at 1024 (construing identical provision to FCC exclusive jurisdiction to regulate closed captioning). The 21st Century Act’s structure confirms the FCC’s primary jurisdiction by directing the FCC to “revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol” by, among other things, (1) defining the “video programming distributors” and “video programming providers” subject to regulation, (2) “describ[ing] [distributors’ and providers’] responsibilities,” and (3) establishing a “mechanism to make available to [distributors and providers] information on video programming subject to the Act on an ongoing basis.” 47 USC § 613(a)(2)(A), (c)(2)(D)(iii)–(v). Thus, the issue of whether Netflix’s streaming video captioning complies with federal law falls squarely in the FCC’s exclusive domain.
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2. The FCC’s expertise is required to unravel intricate, technical facts concerning Netflix’s captioning.
Second, the FCC’s expertise in policy, technology, and applying telecommunications law renders the agency particularly apt for determining under what circumstances a streaming video provider’s closed captioning practices comply with federal law. E.g., Blackstone Valley, 67 F.3d at 992–993 (deferring to agency judgment because the “judicial machinery is ill-suited” to balance various technical factors required to determine whether action violates federal law, a “determination [] much better left to” agency decision); N. Cnty Commc’ns Corp. v. Cal. Catalog & Tech., 594 F.3d 1149, 1162 (9th Cir. 2010) (applying primary jurisdiction doctrine because courts are “ill equipped to properly resolve” plaintiff’s claim without “a predicate determination from the [FCC].”). Issues coming within the FCC’s regulatory authority are especially appropriate for invoking the primary jurisdiction doctrine, which, as the Ninth Circuit has explained, is designed
to protect agencies possessing quasi-legislative powers and that are actively involved in the administration of regulatory statutes. Charged with the administration of the Telecommunications and Federal Communications Acts, the FCC is such an agency. Clark v. Time Warner Cable, 523 F.3d 1110, 1115 (9th Cir. 2008) (citations and internal quotations omitted); accord Am. Tel. & Tel. Co. v. IMR Capital Corp., 888 F. Supp. 221, 244–45 (D. Mass. 1995) (dismissing claim for primary jurisdiction; “It is obvious that the FCC, and not this Court” has “a detailed knowledge of the economics and standard practices of the [] industry, and an understanding of the technical feasibility of various proposed alternatives.”). The 21st Century Act expressly leverages the FCC’s expertise to make it better situated than the Court to determine the “effectiveness” and adequacy of Netflix’s closed captioning. For example, the 21st Century Act mandates that closed captioning regulations reflect careful costbenefit analyses, imposed in part by a detailed, 14-month schedule that ensures any regulations
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account for the “economic[] burden[s]” of compliance. 47 USC § 613(c)(2)(A), (B), (D)(ii); 21st Century Act § 201(a), (e), 124 Stat. at 2765–68 (prescribing timeline); Zulauf, 28 F. Supp. 2d at 1023 (inferring intent to create comprehensive scheme from timeline to draft regulations).
To these ends, the 21st Century Act also created the Video Programming and Emergency Access Advisory Committee (“Advisory Committee”), comprising industry representatives and disabled group advocates whose membership ensures that the FCC considers their competing interests when drafting and revising regulations. 47 USC § 613(c)(2)(A); accord 21st Century Act § 201(a), (e), 124 Stat. at 2765. (An important note: NAD sits on the Advisory Committee as one of the 15 designated representatives for disabled individuals.) The FCC has already begun formal procedures for implementing the statute, and half of the Advisory Committee’s most recent report for the FCC addresses “Technical Requirements,” “Technical Capabilities and Procedures Needed,” and “New Developments” concerning regulation of streaming video closed captioning — all drawing on the FCC’s superior technical knowledge.3 The Court has no such policy committee to assist it with the complex policy issues raised by the NAD Action.
Nor would the Court benefit from an additional fail-safe that will, when the FCC promulgates them, ensure captioning regulations do not impose stifling technological burdens: “exemptions” where, as will likely be the case here, the FCC “determine[s] that the application of such regulations would be economically burdensome.” 47 USC § 613(c)(2)(D)(ii).
If the Court considered the NAD Action now, it would assume the task of engaging in precisely the same policy-heavy cost-benefit analysis that Congress delegated to the FCC’s exclusive jurisdiction — without the benefit of FCC’s expertise or Congress’s fail-safes and
3 FCC, First Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010: Closed Captioning of Video Programming Delivered Using Internet Protocol (July 13, 2011) at 16–30, http:// transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf.
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would necessarily conflict with, and render superfluous, the 21st Century Act’s mandates that the FCC use its technical and policy expertise to address Congress’s concerns. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”).
3. The FCC’s determination would materially aid in resolving the issues.
Third, the FCC’s determination of what constitutes appropriate closed captioning would materially aid in effecting appropriate closed captioning on Internet-based streaming video. Allowing for the FCC to promulgate appropriate regulations would allow Netflix’s (and others’) captioning systems for streaming videos to proceed with appropriate, federally mandated guidance. By contrast, Plaintiffs’ alternative — this lawsuit — invites “irreconcilable inconsistency” between two statutes: (1) the older ADA, which Plaintiffs claim entitles them to immediate closed captioning for all streaming videos; and (2) the recent 21st Century Act, which requires the FCC to analyze the costs and benefits of captioning streaming video. Zulauf, 28 F. Supp. 2d at 1023 (“in case of an irreconcilable inconsistency between them the later and more specific statute usually controls the earlier and more general one”). In short, dismissal would permit the FCC to regulate Netflix’s closed captioning practices as Congress intended; adjudication of this suit, however, would undermine those efforts.
For these reasons, Netflix respectfully requests that the Court dismiss Plaintiffs’ attempted end-run around the 21st Century Act and FCC.
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III. THE COMPLAINT’S FAILURE TO ALLEGE ANY COGNIZABLE INJURY RENDERS THE MATTER UNRIPE FOR ADJUDICATION AND COMPELS DISMISSAL FOR LACK OF STANDING. A. Plaintiffs Have Not Suffered Any Actual Injury.
Even if the FCC did not have primary jurisdiction, neither would this Court because Plaintiffs have not suffered a cognizable injury and, therefore, lack standing. Indeed, the NAD Action is premised on the purported standing of individuals who, “ha[ving] not subscribed to Netflix,” do not have any first-hand knowledge about Netflix’s alleged discrimination, have not even attempted to view closed captioning on Netflix streaming videos (because, as nonsubscribers, they cannot) (FAC ¶¶ 29, 30, 31, 33, 38, 41)4 — and thereby cannot have suffered any actual and direct injury from Netflix’s closed captioning. Instead, NAD alleges members might suffer injury if they become Netflix subscribers; if, after subscribing, they select one of the less popular streaming videos without closed captioning; and, only then, possibly suffer an injury here. (Id.) Plaintiffs’ standing — both for the individual plaintiff and the two organizations (which sue solely “on behalf of [their] deaf and hard of hearing members” [FAC ¶¶ 29, 37]) — depends entirely on the attenuated threat of future injury.
Even under their theory of future harm, however, Plaintiffs have the burden to show — but cannot — that that “the threatened injury is impending and concrete” and that they have “such a personal stake in the outcome of the controversy as to warrant invocation of federalcourt jurisdiction.” McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 67–68 (1st Cir. 2003) (affirming dismissal of ADA claim based on threat of future injury for lack of standing); accord Guckenberger v. Boston Univ., 957 F. Supp. 306, 320–21 (D. Mass. 1997) (dismissing association’s ADA claim; members lacked “standing to sue in their own right,” “an essential
4 The sole exception (James Johnson, FAC ¶ 33) cancelled his subscription in December 2010, so he too has no actual notice about Netflix’s captioning as of the time of the suit.
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element of representational standing.”). Allegations are particularly insufficient where, as here, they are based entirely on “[s]ubjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts,” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) — such as which videos lacked captioning and what would constitute “effective” captioning.
As shown below, Plaintiffs fail to meet their burden to show an impending and concrete injury beyond merely a “general scenario” unsupported by anything but subjective and unsupported characterizations.
B. Plaintiffs Do Not Qualify for the “Futile Gesture” Rule Because the Action Is Not Ripe and Plaintiffs Suffer No Hardship.
Plaintiffs’ standing theory relies on the “futile gesture” provision of the ADA, which provides:
The remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 USC 2000a-3(a)) are the remedies and procedures this title provides to any person . . . who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this title does not intend to comply with its provisions. 42 USC § 12188(a)(1) (emphasis added). Under the “futile gesture” rule, Plaintiffs say they “do not have to engage in the ‘futile gesture’ of purchasing a subscription when they have actual knowledge that they will have inferior, ineffective access to the services and privileges that Netflix provides subscribers.” (FAC ¶¶ 45, 54.) Plaintiffs misconstrue § 12188 and ignore their burden to show that an injury is “impending and concrete.” McInnis, 319 F.3d at 68. The First Circuit rejected precisely this position in McInnis-Misenor v. Maine Medical Center, where, as here, plaintiffs prematurely filed an ADA suit under the theory that, though
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they had not suffered an injury from alleged discrimination, the possibility of a future injury brought them under the “futile gesture” rule. 319 F.3d at 66. There, plaintiffs, a husband and his wheelchair-bound wife, claimed the defendant hospital’s post-birth recovery area lacked certain ADA-required accommodations for wheelchair-bound patients — a condition that disrupted the birth of her first child and would, plaintiffs alleged, complicate the birth of a planned second child. Id. at 66. After filing a claim with the Maine Human Rights Commission, plaintiffs filed a federal suit under the theory that actual pregnancy and delivery at the hospital amounted to a “futile gesture” that should not stop them from seeking preventative relief. Id.
Disagreeing, the district court granted the hospital’s motion to dismiss the claim for lack of standing and the First Circuit affirmed. After reviewing § 12188(a)(1), the court found that the McInnis plaintiffs, like the NAD plaintiffs here, are
not “being subjected to discrimination,” so [the plaintiff’s] claim must rest on whether she “has reasonable grounds for believing [she, like the NAD plaintiffs,] is about to be subjected to discrimination.” The statutory language “about to be subjected to discrimination” dovetails with the usual prudential analysis as to whether McInnis-Misenor’s claims are too contingent and premature. McInnis, 319 F.3d at 69 (quoting § 12188(a)(1)). Because the ADA cannot “displace the normal background prudential standing limitations,” plaintiffs relying on the futile gesture rule must still satisfy constitutional ripeness principles, which “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Id. at 69–70. To prove ripeness, the complaint must demonstrate (1) fitness for judicial decision (i.e., “whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all”); and (2) potential hardship (i.e., “the extent to which withholding judgment will impose hardship — an inquiry that typically turns upon whether the challenged action creates a ‘direct and immediate’ dilemma for the parties”). Id.
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Here, as in McInnis, plaintiffs’ claims fail on both counts. Not Fit for Adjudication. Like McInnis, the NAD Action is not fit for adjudication because “[t]he chain of contingencies lying between the plaintiffs’ current state and their complained-of future injury” is far too tenuous. 319 F.3d at 72. In McInnis, the wheelchairbound wife was not yet pregnant with her second child, the hospital might have improved its facilities to accommodate her, and the plaintiff might not have used that hospital in the event of pregnancy — all rendering the prospect of injury too hypothetical to establish “actual injury.” Id. Here, the prospect of NAD members’ supposed injury is even more attenuated. First, because none of the members subscribes to Watch Instantly (FAC ¶¶ 29, 30, 31, 33, 38, 41), they cannot have “actual notice” that “discrimination” occurred in the first place, know whether they would actually use the subscription, predict whether the videos they will watch lack captioning, or suffer any injury. NAD members may think Netflix and might eventually cause them injury based on bloggers’ musings about their “concern about” Netflix’s captioning (FAC ¶¶ 21–25), but notions based on online rumors do not amount to “actual notice,” let alone satisfy standing. E.g., Resnick v. Magical Cruise Co., Ltd., 148 F. Supp. 2d 1298, 1302–1303 (M.D. Fla. 2001) (dismissing claim ADA claim because “merely reviewing [a] website” is not “actual notice” of discrimination). (At least the McInnis plaintiffs previously witnessed the lack of accommodations themselves.) Second, the appropriate regulatory body here, the FCC, has not even drafted regulations governing closed captioning. (See Part II, supra.) (Even in McInnis, the appropriate regulatory body (the Maine Human Rights Commission) had at least passed judgment on the issue. 319 F.3d at 72–73.) No Hardship. The NAD Action alleges “wholly contingent harm,” not the “direct and immediate” harm required for standing. McInnis, 319 F.3d at 73. Indeed, Plaintiffs’ purported
13

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injury epitomizes “contingent” — it depends on a number of conditions that are far from certain to occur: (1) purchasing a Netflix subscription, (2) using the subscription, and (3) happening to choose one of the videos that lack captioning out of the thousands of the available streaming movies and TV shows. That Plaintiffs’ claims concern watching videos — in contrast to the more grievous but still insufficient potential harm from giving inadequate care to a new mother in McInnis — further undermines the claim.
Because the NAD Action is, “at this stage, largely hypothetical,” it is not “fit for federal judicial review” and must be dismissed. Id. at 73.
IV. THE COMPLAINT’S DUPLICATION OF THE FIRST-FILED CULLEN ACTION COMPELS DISMISSAL OR, AT MINIMUM, TRANSFER TO THE NORTHERN DISTRICT OF CALIFORNIA. A. The First-Filed Rule Compels Dismissal.
Even if the NAD Action were properly in a federal court, the District of Massachusetts is not in the correct one: Principles of comity and the orderly administration of justice dictate that this action be dismissed as duplicative of the earlier-filed Cullen Action pending in the Northern District of California. As the First Circuit has explained:
Where identical actions are proceeding concurrently in two federal courts, entailing duplicative litigation and a waste of judicial resources, the first filed action is generally preferred in a choiceof-venue decision. Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir. 1987); accord W. Gulf Mar. Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 729 (5th Cir. 1985) (dismissal in favor of first-filed case proper in order “to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result”); Carey v. Hillsborough Cnty. Dep’t of Corr., No. 05-cv-442-PB, 2006 U.S. Dist. LEXIS 23515, at *6–7 (D.N.H. Mar. 6, 2006) (dismissing later-filed action as duplicative).
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“Identical actions” are duplicative of pending litigation and should be dismissed as such where, as here, “the claims, parties, and available relief do not significantly differ between the two actions.” Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (internal quotation and emphasis omitted); see Carey, 2006 U.S. Dist. LEXIS 23515, at *6–7 (adopting Serlin’s definition of “duplicative” litigation); accord Biolitec, Inc. v. AngioDynamics, Inc., 581 F. Supp. 2d 152, 157–58 (D. Mass. 2008) (Neiman, J.) (dismissing action under first-filed rule; though “the claims in the two cases are not mirror images of one another,” “the essence of Plaintiff’s position in the two suits . . . is identical”). The parallel actions here “do not significantly differ” because NAD virtually copies the allegations of the Cullen Action. Serlin, 3 F.3d at 223. Among other similarities, both actions:
Name the same single defendant, Netflix, whose principal place of business is in Los Gatos, California (compare FAC ¶ 13 with Exhibit A to the Declaration of David F. McDowell (“McDowell Decl.”), Cullen Compl. ¶ 2); Complain about precisely the same conduct: that Netflix fails to provide “meaningful” and “effective” closed captioning (compare FAC ¶¶ 4, 14 with McDowell Decl., Ex. A, Cullen Compl. ¶¶ 11, 15, 33) because, according to both sets of plaintiffs, Netflix does not currently provide closed captioning of a sufficient “percentage” of its streaming videos (compare, e.g., FAC ¶ 20 with McDowell Decl., Ex. A, Cullen Compl. ¶¶ 7, 33–40); Recite the same representations purportedly revealing Netflix’s motives, including:
o an October 5, 2009, email exchange between Netflix and NAD regarding the progress of Netflix’s captioning (compare FAC ¶¶ 25–26 with McDowell Decl., Ex. A, Cullen Compl. ¶¶ 20–21),
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o an April 2010, announcement by Netflix CEO, Neil Hunt, that Netflix released a “limited library” of subtitled streaming videos (compare FAC ¶ 18 with McDowell Decl., Ex. A, Cullen Compl. ¶ 22), and
o a February 24, 2011, Netflix announcement that Netflix expanded its subtitled streaming videos to include “3,500 television and movie titles” “representing about 30% of viewing,” and that Netflix expected to provide captions for “80% of ‘viewing coverage’ by the end of 2011” (compare FAC ¶ 19 with McDowell Decl., Ex. A, Cullen Compl. ¶¶ 27–29);
Charge Netflix with “discrimination” against hearing impaired individuals based on the virtually identical anti-discrimination statutes (compare FAC ¶¶ 47–55 [ADA] with McDowell Decl., Ex. A, Cullen Compl. ¶¶ 103–112 [California analogues to the ADA]);5 and
Seek virtually identical declaratory and injunctive relief requiring Netflix to provide “effective” or “meaningful” captioning on all streaming videos (compare FAC Prayer ¶¶ 1–2 with McDowell Decl., Ex. A, Cullen Compl. Prayer ¶¶ B–C).
The Cullen Action’s only material distinction from the NAD Action — that it seeks class relief and additional relief for additional causes of action — further compels dismissal because the Cullen Action wholly subsumes every aspect of the NAD Action. Thus, as in Young v. Kelly,
5 Both the Cullen Action and NAD Action assert the same discrimination claims, though under different names — a fact confirmed by the procedural history of both. The Cullen Action was first filed March 11, 2011 (McDowell Decl. ¶ 2), and alleged, as here, an ADA claim. After Netflix filed its Motion to Dismiss the NAD Action under the First-Filed Rule on July 29, 2011 (Dkt. No. 14), plaintiffs in the Cullen Action filed a Second Amended Complaint (McDowell Decl., Ex. A) — which, having removed a cause of action under the ADA, was an apparent attempt to distinguish the NAD Action and allow the duplicative NAD Action to proceed. That attempt fails, however, because the Cullen Action continues to assert claims under the California’s Unruh Civil Rights Act and Disabled Persons Act — both of which claims rise and fall with ADA claims. See Cal. Civ. Code § 51(f) (violation under ADA “shall also constitute” Unruh Civil Rights Act violation); Cal. Civ. Code § 54(c) (violation under ADA “shall also constitute” Disabled Persons Act violation). In short, though asserted under different names, the claims remain the same.
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No. 88-cv-0511E(M), 1993 U.S. Dist. LEXIS 13816 (W.D.N.Y. Sept. 30, 1993), aff’d, 33 F.3d 49 (2d. Cir. 1994), the later-filed individual action seeking declaratory and injunctive relief should be dismissed in favor of the first-filed class action
in order to prevent interference with the orderly administration of the class action and to avoid a risk of inconsistent adjudications. . . . Moreover, one action can yield in deference to another earlier action even if claims and parties are not identical. Id. at *2–3 (dismissing later-filed individual action subsumed within earlier-filed class action); cf. W. Gulf, 751 F.2d at 730 (“Regardless of whether or not the suits here are identical, if they overlap on the substantive issues, the cases would be required to be consolidated in . . . the jurisdiction first seized of the issues.”) The “risk of inconsistent adjudications” is particularly striking here, where competing requests for orders requiring Netflix to provide “effective” captioning (FAC Prayer ¶¶ 1–2) or “meaningful” captioning (McDowell Decl., Ex. A, Cullen Compl. Prayer ¶¶ B–C)]) raises the risk of pitting one district court’s order against another’s. Captioning that Judge Davila in the Northern District of California considers “meaningful” may conflict with this Court’s conception of “effective,” yet Netflix could be compelled to comply with both. Such inconsistency is exactly what the comity doctrine is meant to prevent. Nor does NAD have any overwhelming need to litigate in the District of Massachusetts instead of the Northern District of California. First, because this lawsuit alleges nationwide conduct arising from Los Gatos, California (FAC ¶¶ 13, 14, 19) and NAD’s membership includes individuals “from all fifty states” (FAC ¶ 10), this district has no unique interest in adjudicating whether subtitling is adequate. E.g., United States ex rel. Ondis v. City of Woonsocket, R.I., 480 F. Supp. 2d 434, 436 (D. Mass. 2007), aff’d, 587 F.3d 49 (1st Cir. 2009) (“where the operative facts of the case have no material connection with this district, plaintiff’s
17

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choice of forum carries less weight.”). Second, Netflix’s principal place of business in Los Gatos, California is squarely in the Northern District of California. (FAC ¶ 13.) Third, seven of Plaintiffs’ eight counsel are located in Berkeley and Oakland, California, also in the Northern District of California, with just a single local counsel located in Boston. (FAC at 18–19.) Fourth, because NAD certainly was aware of the Cullen Action at the time this lawsuit was, NAD’s selection of an alternate district in which to file, notwithstanding their addition of a handful of local plaintiffs, smacks of forum shopping. Cf. Scheinbart v. Certain-Teed Prods. Corp., 367 F. Supp. 707, 711 (S.D.N.Y. 1973) (“A plaintiff’s obvious forum shopping merely adds weight to the other considerations”).
To prevent inconsistent judgments, the waste of judicial resources, and the unfair burden of two-front litigation, Netflix respectfully urges the Court to dismiss the NAD Action.
B. In the Alternative, This Case Should Be Transferred to the Northern District of California. 1. Applicable law.
In the alternative, Netflix respectfully requests that the Court transfer the NAD Action to the Northern District of California for the convenience of parties and witnesses and in the interests of justice. 28 USC § 1404(a).6 The Court has wide discretion to transfer this case to the most appropriate forum. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (district courts have discretion “to adjudicate motions for transfer according to an individualized, caseby-case consideration of convenience and fairness”) (citation omitted). The factors to be considered with respect to transfer include (a) the existence of related litigation; (b) convenience of the parties; (c) parties’ contacts with the forum and the relationship of claims to the forum;
6 Venue is proper in the Northern District of California; it is beyond dispute that Netflix “does business” there. Handigran v. Travis & Natalie, Inc., 379 F. Supp. 2d 83, 84 (D. Mass. 2005) (citing 28 USC § 1404(a).)
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(d) the relative ease of access to sources of proof; (e) availability of process to compel the presence of unwilling witnesses; and (f) the interests of justice in general. Stewart Org., 487 U.S. at 29; Cianbro Corp., 814 F.2d at 11 (reciting factors).
Each of the reasons for dismissing this action based on comity also support transferring it to the Northern District of California.
2. Existence of the first-filed Cullen Action favors transfer. The first-to-file rule supports transfer without reaching other factors traditionally considered under 28 USC § 1404(a) where, as here, another pending action involves substantially similar legal and factual issues. See Cianbro, 814 F.2d at 11 (affirming transfer of duplicative case; “we regard these factors as irrelevant” and “inconclusive” in light of first-filed rule). Even where the section 1404(a) factors are applied, the desire to avoid multiplicity of litigation should be given “great weight” in ruling on motions to transfer. 15 Wright, Miller & Cooper, Fed. Prac. & Proc. § 3854 at 250 (3d ed. 2007).
To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent. Cont’l Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960); see Wiley v. Gerber Prods. Co., 667 F. Supp. 2d 171, 172 (D. Mass. 2009) (transferring later-filed action to venue of first-filed action “to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense”). The existence of the first-filed Cullen Action strongly favors transfer of the NAD Action to the Northern District of California.
3. Convenience of the parties, access to sources of proof, and the interests of justice also favor transfer.
The other factors under § 1404(a) also favor transfer to the Northern District of California. Nearly everything related to this case, including witnesses, are in Los Gatos,
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California — a factor that “strongly favor[s]” transfer to the Northern District of California,

Ondis, 480 F. Supp. 2d at 437 (“convenience of the witnesses is probably the most important

factor”): Netflix’s primary place of business is there; all key personnel responsible for closed

captioning of streaming video content live and work there; and most of the relevant documents

are located there. (Declaration of Neil Hunt ¶¶ 2–4.) Even NAD’s counsel come almost

exclusively from the Northern District of California. In Massachusetts, by contrast, Netflix has

no personnel with knowledge about the topic or relevant documents. (Id. ¶¶ 2–4). In these

circumstances, Plaintiffs’ choice of forum “carries less weight.” Ondis, 480 F. Supp. 2d at 436;

accord Impervious Paint Indus., Ltd. v. Ashland Oil, Inc., 444 F. Supp. 465, 468 (E.D. Pa. 1978)

(transfer proper if “§ 1404(a) factors are in equipoise or favor one district particularly.”).

If this case is not dismissed, it should be transferred to the Northern District of California.

V. CONCLUSION.

For the foregoing reasons, Netflix respectfully requests this action be dismissed; or, in the

alternative, transferred to the Northern District of California.

September 12, 2011

NETFLIX, INC., by its counsel,

By:

/s/ David F. McDowell

David F. McDowell (pro hac vice)

MORRISON & FOERSTER LLP David F. McDowell (CA Bar No. 125806) (pro hac vice) Jacob M. Harper (CA Bar No. 259463) (pro hac vice) 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454 dmcdowell@mofo.com jacobharper@mofo.com

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[PROPOSED] ORDER Defendant Netflix, Inc.’s Motion to Dismiss plaintiffs National Association of the Deaf; Western Massachusetts Association of the Deaf and Hearing Impaired; and Lee Nettles’s First Amended Complaint came on regularly for hearing on Monday, October 17, 2011, at 8:30 a.m. in the Hampden Courtroom of the above-entitled court. After considering the moving, opposition, and reply papers, arguments of counsel and all other matters presented to the Court, IT IS HEREBY ORDERED THAT the motion is ALLOWED. This Action is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

By: Hon. Michael A. Ponsor, U.S. District Judge

Case 3:11-cv-30168-MAP Document 22 Filed 09/12/11 Page 31 of 31 CERTIFICATE OF SERVICE
I, Elsa Laris, hereby certify that a copy of the foregoing documents has been served upon all opposing counsel of record by ECF on this 12th day of September, 2011.
/s/ Elsa Laris Elsa Laris
1138703
2

 
 Case 3:11-cv-30168-MAP Document 24 Filed 10/03/11 Page 1 of 23

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION

_________________________________________

)

NATIONAL ASSOCIATION OF THE DEAF, )

WESTERN MASSACHUSETTS ASSOCIATION )

OF THE DEAF AND HEARING IMPAIRED, )

and LEE NETTLES,

)

)

Plaintiffs,

)

)

v.

)

)

NETFLIX, INC.,

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 3:11-cv-30168

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT

Case 3:11-cv-30168-MAP Document 24 Filed 10/03/11 Page 2 of 23

The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 517 because this litigation implicates the interpretation and application of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and its implementing regulations.1 Plaintiffs, an individual who is deaf and two advocacy organizations serving the interests of persons with hearing impairments, allege that Netflix has violated the ADA by failing to provide closed captioning on the vast majority of the movie and television titles offered on its “Watch Instantly” on-demand streaming video service, as well as equal access to other services offered to Netflix members (such as Netflix “recommendations” and genre-sorted movie listings). See First Amended Complaint for Declaratory and Injunctive Relief ¶¶ 1-6, 47-56 (filed Aug. 9, 2011) (Docket # 19) (“FAC”).
Streaming of video programming over the Internet—by defendant Netflix and other similar providers— has revolutionized the home entertainment industry; it is fast becoming the dominant means of delivering movies, television shows, and other entertainment offerings to the American public. Persons who are deaf or hard of hearing should not be left behind. A fundamental goal of the ADA is to bring persons with disabilities into the mainstream of society by requiring public accommodations (such as Netflix) to, among other things, refrain from disability-based discrimination in the provision of their goods and services and provide appropriate auxiliary aids and services when necessary to ensure effective communication. See, e.g., 42 U.S.C. §§ 12101, 12182 (2005); 28 C.F.R. §§ 36.201, 36.202, 36.303 (2011). The denial of equal access to, and full enjoyment of, Netflix’s “Watch Instantly” service as alleged by Plaintiffs thus represents a violation of the ADA. Accordingly, the United States has a strong interest in the resolution of this matter and

1

Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be

sent by the Attorney General to any . . . district in the United States to attend to the interests of the United

States in a suit pending in a court of the United States[.]” The Department of Justice (“Department” or

“DOJ”), moreover, is the federal agency with primary responsibility for enforcing title III of the ADA and its

implementing regulations. See 42 U.S.C. §§ 12186(b), 12188(b); 28 C.F.R. pt. 36 (2011).

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respectfully requests that this Court, for the reasons stated below, deny defendant Netflix’s Motion to Dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Significantly, Netflix’s motion to dismiss does not challenge the substantive sufficiency of plaintiffs’ ADA claims. Rather, Netflix alleges that this Court lacks subject matter jurisdiction over the First Amended Complaint because: (i) the Federal Communication Commission (“FCC”) has exclusive primary jurisdiction over closed captioning of video programming streamed over the Internet pursuant to the recently-enacted Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 (2010) (codified in scattered sections of 47 U.S.C.) [hereinafter “CVAA”]; and, (ii) the individual plaintiff (Nettles), as well as the two organizational plaintiffs (NAD and WMAD/HI), lack standing because they are not current Netflix subscribers. See Netflix Dismiss Mem. at 3-14. 2
Netflix, however, cannot so easily side-step judicial adjudication of the important ADA claims in this case. First, with respect to primary jurisdiction, the CVAA contains no express language preempting ADA claims; indeed, an existing savings clause makes plain Congress’ intent to reserve ADA rights and remedies when updating federal communications laws. Second, fundamental principles of statutory construction strongly counsel against interpreting the CVAA as repealing the ADA (or any of its provisions) by implication. Third, evaluation of prudential considerations in the primary jurisdiction calculus weigh heavily in favor of this Court rejecting Netflix’s primary

2

The United States takes no position on Netflix’s third dismissal argument arising under Fed. R. Civ. P.

12(b)(3) and (b)(6)—that is, that “the first-filed rule” requires dismissal (or transfer) of the instant case

because it mirrors a previously-filed action currently pending in the Northern District of California (Cullen v.

Netflix). See Notice of Motion and Motion to Dismiss First Amended Complaint (Or, In the Alternative,

Transfer to the Northern District of California); Memorandum of Points and Authorities 2-3, 14-20 (filed Sept.

12, 2011) (Dkt # 22) (“Netflix Dismiss Mem”). Resolution of this argument calls for interpretation of state

law-based claims in the Cullen complaint, as well as knowledge of facts outside the ken of the United States as

a non-party.

2

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jurisdiction argument and, thereby, permitting the parties to litigate this matter expeditiously. Lastly, because a private plaintiff has standing to sue under the ADA whenever he or she is likely to suffer future harm absent injunctive relief, Netflix’s standing-based dismissal argument has no merit.
STATUTORY AND REGULATORY BACKGROUND To put the recently-enacted Twenty-First Century Communications and Video Accessibility Act [hereinafter “CVAA”] into the proper legal perspective, it is helpful to understand how this Act fits into the overall framework of federal communications law governing captioning of video programming. The Communications Act of 1934 (47 U.S.C. § 153 et seq.) was enacted originally to regulate wire and radio communications. Over the intervening years, this Communications Act has been amended from time to time to address technological changes, as well as to improve the accessibility of communications services and devices for persons with disabilities. Of particular relevance here are the amendments related to captioning of television programs. In the early 1970s, captioning first appeared on television in an “open” format with text displayed on the screen for all viewers (i.e., similar to subtitles). See generally Notice of Proposed Rulemaking, Closed Captioning of Internet Protocol-Delivered Video Programming, 76 Fed. Reg. 59,963, 59,965-66 (Sept. 28, 2011) [hereinafter “NPRM Re: Closed Captioning of IP-Delivered Video Programming”]; First Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010 - Closed Captioning of Video Programming Delivered Using Internet Protocol 6-8 (dated July 13, 2011) [hereinafter “CVAA Advisory Comm. Report.”].3 Later in the decade, “closed” captioning systems were

3

The Video Programming Accessibility Advisory Committee (“VPAAC”), a committee established by

the FCC to develop recommendations on delivering video programming over the Internet, produced a report in

July 2011 that is available on the FCC’s website at http://www.fcc.gov/encyclopedia/twenty-first-century-

communications-and-video-accessibility-act-0.

3

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developed whereby captions could be transmitted within the television signal as encoded data to decoders—in the form of stand-alone set-top boxes or, later, integrated into the television circuitry— which allowed users to turn captioning on or off. Id.
The advent of closed captioning systems led Congress, as well as the FCC, to update communications standards to ensure that persons who were deaf or hearing-impaired had equal access to the television medium. First, in 1977, the FCC promulgated rules setting out technical standards for transmission and display of closed captioning as part of the television signal. See NPRM Re: Closed Captioning of IP-Delivered Video Programming at 59,965-66. Later, in 1990, Congress enacted the Television Decoder Circuitry Act which mandated that closed caption decoding capability be built into all new television sets (with picture sizes over 13”) sold or manufactured in the United States. See Television Decoder Circuitry Act of 1990, Pub L. No. 101-431, 104 Stat. 960 (1990) (codified at 47 U.S.C. §§ 303(u), 330(b)).
Congress nonetheless remained concerned over the following years that voluntary industry captioning efforts were not providing equal access to television programming across all delivery systems (e.g., traditional over-the-air television broadcasters, cable broadcasters, syndicated programming) for persons who are deaf or hard of hearing. See NPRM Re: Closed Captioning of IPDelivered Video Programming at 59,966. Thus, in 1996, when Congress significantly revised the Communications Act to de-regulate telecommunications markets, it also added new provisions expressly mandating—for the first time—closed captioning of television programs. See Telecommunications Act of 1996, Pub. L. No. 104-104, § 713, 110 Stat. 126 (1996) (codified at 47 U.S.C. § 613). Congress tasked the FCC with promulgation of regulations to ensure that all television programming (referred to as “video programming”) was, unless otherwise exempted, “fully
4

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accessible through the provision of closed captions.” 47 U.S.C. § 613(b). Congress also granted the FCC exclusive jurisdiction to process and resolve complaints alleging violations of the agency’s regulations. Id. at § 613(h). The following year, as required by the Telecommunications Act, the FCC published its final rule on video programming accessibility. See Closed Captioning of Video Programming – Final Rule, 62 Fed. Reg. 48,493 (Sept. 16, 1997) (codified as amended at 47 C.F.R. pt 79 (2010)).
After 1996, the legislative landscape with respect to federal communications law remained fallow for nearly fifteen years. Communication technology, however, did not stand still. These years witnessed not only the explosive growth of mobile technologies and devices (e.g., smart phones), but also Internet-based communications services fueled by improved broadband coverage and capabilities (e.g., streaming online videos, electronic messaging, video conferencing). In 2010, Congress took note of these technological advancements and the ways in which, to a great extent, such technologies were not accessible to persons with disabilities. See, e.g., The Twenty-First Century Communications and Video Accessibility Act of 2009: Hearing on H.R. 3101 Before the H. Comm. On Energy & Commerce, 111th Cong. (2010).
As a result, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) in order to update federal communications law and “to help ensure that persons with disabilities are able to utilize communications services and equipment and to 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 wide range of advanced communications services and devices, of particular relevance here are the provisions relating to closed captioning of video programming delivered using Internet protocol [hereinafter referred to as “IP-delivered” or “IP-
5

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based”]. Section 202 of the CVAA adds a new section to the Communications Act that requires the FCC, after due consideration of a report from its Video Programming Accessibility Advisory Committee (“VPAAC”), to promulgate regulations addressing closed captioning of IP-delivered video programming within six months of receiving this report (i.e., by mid-January 2012). See CVAA § 202(b)(2)(A) (codified at 47 U.S.C. § 613(b)(2)(A)).
The CVAA also details the legal parameters and content for the FCC’s implementing regulations. First, the CVAA specified that such regulations must require closed captioning of IPdelivered video programming “that [has been] published or exhibited on television with captions after the effective date of the regulations.” Id. (emphasis added). Additionally, the CVAA provided that the FCC’s regulations, inter alia, must: establish a schedule for compliance deadlines that takes into account the type of video programming (i.e., pre-recorded, edited, or live); describe the responsibilities of video programming owners and providers; and, provide that de minimis failure to comply with the regulations should not be considered a regulatory violation. See id. at §§ 202(b)(2)(B)-(D) (codified at 47 U.S.C. §§ 613(b)(2)(B)-(D)).
The FCC’s administrative process leading to promulgation of final regulations implementing the CVAA is well on its way, but not yet complete. In July 2011, the VPAAC published its report. See First Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010 - Closed Captioning of Video Programming Delivered Using Internet Protocol (dated July 13, 2011) [hereinafter “VPAAC Report.”]. Thereafter, in late September 2011, the FCC published its notice of proposed rulemaking for regulations implementing the CVAA’s provisions addressing the delivery of IP-based captioning. See Notice of Proposed Rulemaking, Closed Captioning of Internet Protocol-Delivered Video
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Programming, 76 Fed. Reg. 59,963 (Sept. 28, 2011) [hereinafter “NPRM Re: Closed Captioning of IP-Delivered Video Programming”]. While a detailed discussion of the NPRM is beyond the scope of this Statement of Interest, it bears noting that, in this notice, the FCC: specifies the respective obligations of CVAA-covered video programming owners and providers; declines to adopt specific technical standards for IP-delivered video programming; proposes a general performance standard whereby captioning of IP-delivered video programming must be “of at least the same quality” as the captioning of the program when shown on television; proposes a phased-in implementation schedule whereby covered programming must have compliant closed captioning within six months, twelve months, or eighteen months of publication of the final rules based on the nature of video programming; and, establishes procedures for the processing of administrative complaints. See, e.g., id. at 3-4 (summarizing proposed regulations).
ARGUMENT A. Defendant Netflix’s Primary Jurisdiction-Based Dismissal Arguments Lack Merit
Netflix’s opening salvo in its motion to dismiss rests on its assertion that this Court lacks subject matter jurisdiction over the First Amended Complaint because Congress, in the CVAA, afforded “exclusive” primary jurisdiction to the FCC over the “precise issue” raised in this Complaint—namely, “the extent to which Internet-based streaming video providers must offer closed captioning.” See, e.g., Netflix Dismiss Mem. at 3; see also id. at 1, 4-7.
In so arguing, Netflix conflates two distinct strands of primary jurisdiction doctrine: (a) the legal determination (based solely on statutory interpretation) whether Congress has vested an agency with exclusive jurisdiction to resolve a dispute or matter; and (b) the largely prudential issue whether a court presented with an otherwise jurisdictionally-proper claim or complaint, nonetheless should
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deferentially “refer” such matter to an administrative agency because its input would provide requisite specialized expertise or uniformity. Compare, e.g., Netflix Dismiss Mem. at 2, 6 (characterizing Plaintiffs’ claims as falling “within the FCC’s exclusive realm” and “exclusive domain”) with id. at 3-4 (discussing primary jurisdiction calculus when claims, originally cognizable in federal court, nonetheless warrant referral in deference to special administrative expertise); see generally Brady v. National Football League, -- F.Supp.2d --, 2011 WL 1535240, *3-5 (D. Minn. 2011), revs’d on other grounds, 640 F.3d 785 (8th Cir. 2011); Gulf Oil Corp. v. Tenneco, Inc., 608 F. Supp. 1493, 1498-99 (E.D. La. 1985); 4 Charles H. Koch, Jr., Administrative Law and Practice § 12:23[1] (3d ed. 1997) (“Reference to an agency with primary jurisdiction should not be confused with dismissal because the administrative scheme is exclusive and does not recognize an initial judicial role.”)
Under either form of primary jurisdiction analysis, however, Netflix’s dismissal argument proves unavailing. As discussed more fully below, Plaintiffs’ ADA-based claims in the First Amended Complaint are jurisdictionally sound because Congress did not intend the CVAA—either expressly or by implication—to preempt the ADA. Moreover, prudential considerations strongly counsel in favor of allowing Plaintiffs to continue prosecuting their ADA action in this Court. Thus, defendant Netflix’s argument that this case should be dismissed on primary jurisdiction grounds must fail.
1. Congress Did Not Intend the CVAA to Preempt ADA-Based Claims It is beyond peradventure that, except as otherwise provided by Congress, federal courts have original jurisdiction of complaints arising under title III of the ADA. See, e.g., 28 U.S.C. § 1331; 42 U.S.C. § 12188(a). Netflix asserts that the CVAA represents just such a jurisdiction-ousting statute by virtue of its reference to the “exclusivity” of the FCC’s administrative jurisdiction. See, e.g.,
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Netflix Dismiss Mem. at 2-3, 6. Netflix’s claim lacks merit. The CVAA contains no language expressly preempting ADA claims. Further, fundamental principles of statutory construction militate against interpreting the CVAA as repealing the ADA (or sections thereof) by implication.
Netflix’s contentions notwithstanding, nowhere does the CVAA expressly preempt any federal statute, let alone particular ADA provisions. As discussed previously, see supra pp. 5-7, the CVAA updated communications laws to ensure that persons with disabilities are able to fully utilize “advanced” communications services and devices and to better access video programming delivered using Internet protocols. The Act is silent with respect to rights or remedies under other federal statutes. Indeed, the exclusive regulatory jurisdiction provision on which Netflix so heavily relies was not even enacted by the CVAA, but, rather, its predecessor amendments to the Communications Act—that is, the Telecommunications Act of 1996. See Pub. L. No. 104-104, § 713(h), 110 Stat. 126 (1996) (currently codified at 47 U.S.C. § 613(j)).4 The Telecommunications Act of 1996, in turn, contains the following broad savings clause:
NO IMPLIED EFFECT.—This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or amendments. Pub. L. No. 104-104, § 601(c)(1) (reprinted in 47 U.S.C. § 152, historical and statutory notes). Because the ADA was enacted five years before the Telecommunications Act, this savings clause clearly evidences Congress’s express desire to leave ADA rights and remedies intact. See AT&T Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1328 (11th Cir. 2000) (holding that Telecommunications Act’s broad savings clause preserved availability of existing § 1983 remedies);

4

Defendant Netflix’s dismissal memorandum mistakenly cites to “§ 613(i)” when discussing the

Communication Act’s exclusive jurisdiction provision. See, e.g., Netflix Dismiss Mem. at 6. Originally

codified at 47 U.S.C. § 613(h) when enacted as part of the Telecommunications Act of 1996, this provision

was redesignated by the CVAA as subsection § 613(j). See CVAA § 202(a)(2). Due to a legislative error,

however, no subsection (i) exists for § 613. See 47 U.S.C.A. § 613(j) (footnote notation).

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Sprint Telephony PCS, L.P. v. County of San Diego, 311 F.Supp.2d 898, 915-16 (S.D. Cal. 2004) (finding the Telecommunications Act’s savings clause “broad, sweeping, and a clear indication that Congress intended to leave federal laws untouched and unaltered unless they specified otherwise explicitly”).
Nor can the CVAA be read as repealing by implication the judicial forum and remedies otherwise available under title III’s enforcement scheme. Implied repeals are highly disfavored and only permitted on rare occasions “when the earlier and later statutes are irreconcilable.” J.E.M. AG Supply v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 145, 141-42 (2001) (internal quotation omitted); see also Morton v. Mancari, 417 U.S. 535, 550 (1974) (noting “when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective”); United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 9-10 (1st Cir. 2005) (same). Moreover, this presumption against implied repeals is even stronger where, as here, the repeal would implicate federal subject matter jurisdiction. Lahey Clinic Hosp., 399 F.3d at 9 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)).
Simply put, no irreconcilable conflict exists between title III of the ADA and § 613 of the CVAA. Title III’s broad remedial mandate generally prohibits disability-based discrimination by public accommodations in a wide range of contexts and provides for enforcement in federal courts by aggrieved parties and the Attorney General. See 42 U.S.C. §§ 12182, 12188. Section 613 of the CVAA, on the other hand, focuses more narrowly on regulatory standards for closed captioning of certain IP-delivered video programming (i.e., video programs previously exhibited on television) and limits enforcement to administrative complaints. See discussion supra pp. 5-6. More specifically, there is no inherent tension between, on the one hand, § 613’s grant of exclusive FCC jurisdiction
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over complaints “under this section” and, on the other hand, title III claims—such as those raised in the First Amended Complaint—alleging failure to provide equal access to Internet-delivered video programming due to lack of closed captioning and other related services. Necessarily, Plaintiffs’ title III claims arise “under” the ADA, not § 613’s administrative scheme.
Thus, title III of the ADA and the CVAA can be read as coexisting capably given their differing legislative focus, requirements, forums, and remedies. Cf. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws . . . a court must give effect to both.”) (internal citation omitted); Baumgardner v. County of Cook, 108 F.Supp.2d 1041, 1043-51 (N.D. Ill. 2000) (permitting disabled employee to assert title I-based ADA claim against county employer, as well as equal protection claim under § 1983 against individual supervisor, even when same facts formed basis for both claims). Under such circumstances, the CVAA cannot, as a matter of law, be deemed to impliedly repeal title III of the ADA.
2. Prudential Considerations Do Not Require Dismissal of Complaint Under Primary Jurisdiction Doctrine
Turning to the prudential side of the primary jurisdiction doctrine, Netflix’s dismissal argument fares no better. Netflix’s contentions notwithstanding, see Netflix Dismissal Mem. at 3, permitting Plaintiffs to litigate their claims raised in the First Amended Complaint would not invite “inevitable conflict” with either the CVAA or its implementing regulations. Indeed, there is guaranteed to be minimal overlap—at least for the foreseeable future—between Plaintiffs’ ADA claims and CVAA’s implementing regulations. The FCC’s implementing regulations likely will not take full effect for about one to two years and, even then, will only require the provision of closed captioning of IP-delivered video programming that has been broadcast on television (with captions)
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after the effective date. This low risk of potential conflict with CVAA regulatory requirements in the foreseeable future, when balanced against the harm to Plaintiffs from unduly delaying prosecution of their ADA claims, strongly counsels in favor of rejecting Netflix’s request for dismissal based on primary jurisdiction.
Generally speaking, in its prudential form, primary jurisdiction is aimed at maintaining proper relationships between federal courts and administrative agencies charged with particular regulatory tasks. Primary jurisdiction is not applicable simply because a claim or issue may conceivably fall within (or overlap with) an agency’s purview. See, e.g., Brown v. MCI Worldcom Network Services, Inc., 277 F.3d 1166, 1172 (9th Cir. 2002); New York State Thruway Auth. v. Level 3 Communications, LLC, 734 F.Supp.2d 257, 265 (N.D.N.Y. 2010). Rather, while there is no fixed formula for applying the primary jurisdiction doctrine, United States v. Western Pacific R.R. Co., 352 U.S. 59, 64 (1956), the touchstones are specialized agency expertise or a need to ensure national uniformity in the context of a comprehensive regulatory scheme. See, e.g., American Auto. Mfrs. Ass’n v. Massachusetts Dept. of Envt’l Prot., 163 F.3d 74, 80-82 (1st Cir. 1998); see also U.S. Public Interest Research Grp. v. Atlantic Salmon of Maine, LLC, 339 F.3d 23, 34 (1st Cir. 2003). Federal courts must also weigh the advantages of invoking primary jurisdiction against the potential harm from judicial forbearance. American Automobile Ass’n, 163 F.3d at 81-82. For such reasons, federal courts—including this Circuit—often caution that primary jurisdiction should be invoked “sparingly.” See, e.g., U.S.P.I.R.G., 339 F.3d at 34; Locust Cartage Co. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 340 n.5 (1st Cir.), cert. denied, 400 U.S. 964 (1970); Palmer Foundry, Inc., v. Delta-Ha, Inc., 319 F.Supp.2d 110, 112 (D. Mass. 2004) (characterizing invocation of primary jurisdiction as “rare”).
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With these legal guideposts framing the primary jurisdiction calculus, there is no cogent reason to dismiss the First Amended Complaint. Prudential considerations counseling against a finding of primary jurisdiction include the following:
(a). Because the captioning requirements set forth in § 613(c)(2)(A) of the CVAA do not apply to IP-delivered video programming exhibited on television prior to the regulatory effective date(s), the entirety of Netflix’s current “Watch Instantly” video library—as well as any movies or television shows added prior to the effective date(s)—falls outside the purview of that Act. Plaintiffs’ allegations that Netflix violates title III of the ADA when failing to provide equal access to other services offered to Netflix members (such as Netflix “recommendations” and genre-sorted movie listings) likewise falls outside both the CVAA and the FCC’s administrative jurisdiction. Dismissal of the First Amended Complaint would thus leave Plaintiffs without a forum (or legal remedy) for their ADA claims to the extent they relate to Netflix’s conduct that is not covered by the CVAA or its implementing regulations.
(b). At this stage of the proceedings, Plaintiffs’ ADA claims present straightforward statutory interpretation and liability issues that Congress committed to the federal courts, not the FCC, for resolution—namely: (a) whether Netflix is a “public accommodation” covered by title III of the ADA (42 U.S.C. § 12182); and, (b) if so, whether Netflix has violated title III by failing to provide closed captioning on the vast majority of the movies and television titles offered on its “Watch Instantly” on-demand streaming video service, as well as equal access to other services offered to Netflix members. See FAC ¶¶ 14-27, 46-56. Resolution of these issues does not require specialized expertise beyond the typical ken of federal courts. Nor would adjudication of these issues require interpretation or application of the CVAA or the FCC’s forthcoming implementing
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regulations.5 Indeed, other federal courts have, under analogous circumstances, declined to exercise primary jurisdiction. See, e.g., National Commc’ns Ass’n, Inc., v. American Tel. and Tel. Co., 46 F.3d 220, 223-24 (2nd Cir. 1995) (“NCA II”) (finding district court erred when granting referral to FCC based on primary jurisdiction when billing dispute between telecommunications companies did not involve technical tariff issues); New York State Thruway Auth., 734 F.Supp.2d at 267-71 (stating that “primary jurisdiction does not apply to questions within the conventional competence of the courts”) (internal citation omitted); AT&T Commc’ns v. City of Austin, 975 F. Supp. 928, 939 (W.D. Tex. 1997) (ruling primary jurisdiction inapplicable when resolution of threshold preemption issue under the Telecommunications Act of 1996 required conventional legal knowledge, rather than the FCC’s specialized expertise), vacated as moot, 235 F.3d 241 (5th Cir. 2000).
(c). There appears to be little danger of inconsistent rulings between this Court and the FCC in the near term given the likelihood of phased-in implementation deadlines for CVAA-required closed captioning of IP-delivered video programming. The FCC has indicated it will issue its final rule in mid-January 2012. See NPRM Re: Closed Captioning of IP-Delivered Video Programming at 3; see also 47 U.S.C. § 613(c)(2)(A). If the implementation schedule in the final rule remains the same as proposed in the NPRM, deadlines for the provision of closed captioning of covered IPdelivered video programming would range from July 2012 for unedited programming (i.e., six months after mid-January 2012) to July 2013 for prerecorded and edited programming (i.e., eighteen months after mid-January 2012). See discussion supra pp. 6-7. In light of this regulatory timeframe, there would appear to be minimal risk that this action would result in legal standards for closed

5

Of course, should any future remedial proceedings in this ADA litigation present technical or other

issues enmeshed with the CVAA, this Court may always revisit the necessity of referring certain CVAA-

specific matters to the FCC. See, e.g., National Commc’ns Ass’n, 820 F. Supp. 139, 141 (S.D.N.Y. 1993)

(“NCA I”).

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captioning that are inconsistent with CVAA’s implementing regulations because much (if not all) of this litigation could be completed before July 2013. See, e.g., NCA II, 46 F.3d at 225 (noting, when reversing district court’s referral to FCC based on primary jurisdiction: “Since the district court can conclude this matter far more expeditiously, a potential delay of even two years more than outweighs any benefit that might be achieved by having the FCC resolve this relatively simple dispute”).
(d). The Court also needs to be mindful of the potential harm to Plaintiffs were this action dismissed to await the full implementation of the FCC’s final regulations. No matter the content of these final regulations, Plaintiffs will still need to pursue discovery on their ADA claims. Dismissal of the complaint would thus do little more than delay needed discovery and impede the expeditious disposition of this litigation. Under such circumstances, this Court should decline to grant defendant Netflix’s primary jurisdiction-based dismissal request. As one federal court noted when declining to stay litigation pending the FCC’s ruling on a preemption petition: “Courts should resist the temptation of passing the issue off to another entity for the sake of judicial economy and should hold fast to [their] ‘unflagging obligation . . . to exercise the jurisdiction given [to them].’” New York State Thruway Auth., 734 F.Supp.2d at 268 (quoting Tassy v. Brunswick Hosp. Center, Inc., 296 F.3d 65, 73 (2nd Cir. 2002)).
Against the substantial force of the foregoing considerations, Netflix offers only the counterweight of Zulauf v. Kentucky Educational Television, 28 F.Supp.2d 1022 (E.D. Ky. 1998). See Netflix Dismiss Mem. at 4-9. In Zulauf, a plaintiff sued an educational broadcaster (KET) alleging violations of the ADA and the Rehabilitation Act due to failure to provide closed captioning for some television programming. Defendant KET moved to dismiss based on the FCC’s exclusive jurisdiction over issues relating to television captioning pursuant to § 613(h) of the
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Telecommunications Act of 1996. Id. at 1023. After noting that the Telecommunications Act did not preempt the ADA or Rehabilitation Act, the district court nonetheless concluded that primary jurisdiction considerations warranted dismissal so that plaintiff could exhaust his administrative remedies with the FCC before pursuing his civil rights complaint. Id. at 1023-24. The court dismissed the action based on its belief that, because resolution of plaintiff’s civil rights claims would require interpretation of the Telecommunications Act and the FCC’s implementing regulations, judicial resolution of plaintiff’s civil rights claims—at least in the first instance—would be “inefficient and a waste of judicial resources.” Id. at 1024.
Zulauf, however, is inapplicable here for two significant and obvious reasons. First, Zulauf presented an entirely different procedural posture vis-à-vis the federal litigation and the FCC’s administrative proceedings. Whereas, in Zulauf, the FCC’s television captioning regulations were already in place when the complaint was filed, there is no such regulatory framework in place here. As noted above, see supra pp. 6-7, the FCC will not be issuing final regulations to implement the CVAA until mid-January 2012 and, even then, it will still be another six to eighteen months before such regulations become fully effective for all types of IP-delivered video programming. This Court thus need not be concerned that its efforts would be duplicative of any CVAA-related FCC proceedings because presently, as Gertrude Stein famously said, “there is no there there.” Gertrude Stein, Everybody’s Biography (1937).
Second, for related reasons, Zulauf is distinguishable by the degree to which issues raised in that civil rights complaint were enmeshed with regulatory issues within FCC’s jurisdiction. Indeed, in Zulauf, there was complete overlap between the plaintiff’s claims under the ADA and Rehabilitation Act and his rights under the Telecommunications Act because each civil rights claim
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mirrored a potential administrative claim under the FCC’s implementing regulations. Here, by contrast, none of Plaintiffs’ ADA claims (at present) mirror potential CVAA-related administrative claims. That is, even assuming the FCC’s regulations implementing the CVAA were already in place, the CVAA only applies to closed captioning of IP-based video programming which has been exhibited on television (with captions) after the applicable regulatory effective date. See 47 U.S.C. § 613(c)(2); see also NPRM Re: Closed Captioning of IP-Delivered Video Programming at 4, 13-16. (discussing proposed phased-in implementation schedule for CVAA-required closed captioning). Plaintiffs’ ADA claims premised on Netflix’s failure to provide closed captioning for video programming exhibited prior to the applicable regulatory effective date—which, currently, represents the entirety of the complaint—simply have no administrative counterpart. Moreover, also falling outside the FCC’s administrative jurisdiction are Plaintiffs’ allegations that Netflix violates title III of the ADA by failing to provide equal access to other services offered to Netflix members (such as Netflix “recommendations” and genre-sorted movie listings).
Under such circumstances, referral of Plaintiffs’ complaint to the FCC would be futile because the Commission has no jurisdiction over these ADA claims. Cf. Community Television of Southern California v. Gottfried, 459 U.S. 498, 892-893 (1983) (holding FCC lacked original jurisdiction to adjudicate Rehabilitation Act claims). C. Plaintiffs Have Standing to Assert Their ADA Claims
Netflix also moves for dismissal under Fed. R. Civ. P. 12(b)(1) on the ground that Plaintiffs lack standing. See Netflix Dismiss Mem. at 2, 10-14. Netflix argues that, because neither the individual plaintiff (Nettles) nor the members of the two organizational plaintiffs (NAD and WMAD/HI) identified in the First Amended Complaint are current Netflix members, they fail to
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allege particularized injuries sufficient to create standing. Id. at 10-12. Nor can Plaintiffs assert the “futile gesture” exception, Netflix contends, because they lack actual knowledge of Netflix’s captioning practices. Id. at 11-14. Netflix’s arguments, however, misapprehend standing requirements for claims under title III of the ADA. Plaintiffs indeed have standing to assert the ADA claims in their First Amended Complaint.
First, Netflix erroneously focuses on Plaintiffs’ past injuries (or, according to Netflix, the lack thereof) to assess standing. Under the ADA, however, a private plaintiff has standing to seek injunctive relief when alleging that he or she is likely to suffer future harm absent injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); accord Disabled Amer. for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 65 (1st Cir. 2005). Because an injunction is prospective relief, the injury that enables the plaintiff to seek an injunction is the threat of future harm, not the past harm. See Lyons, 461 U.S. at 102; Nelsen v. King County, 895 F.2d 1248, 1251 (9th Cir. 1990) (stating that the existence of past harm is "largely irrelevant" to determining whether plaintiff has standing to seek injunctive relief). Moreover, there is no requirement that a plaintiff have suffered an injury in the past in order to have standing to prevent future harm. For standing purposes, the alleged harm may be "actual or imminent" as long as it is not "conjectural or hypothetical." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Lyons, 461 U.S. at 101102); accord Department of Commerce v. United States House of Representatives, 525 U.S. 316, 324 (1999). Thus, courts often grant injunctions to prevent future harm, even though the threatened harm has not yet occurred. See, e.g., Dimarzo v. Cahill, 575 F.2d 15, 18 (1st Cir.), cert. denied, 439 U.S. 927 (1978); Cutler v. Kennedy, 475 F. Supp. 838, 848 (D.D.C. 1979). In such cases, the risk of future harm that violates a statutory or constitutional provision "constitutes a distinct and palpable
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injury" sufficient to establish standing. Id. Second, Netflix too readily dispatches title III’s “futile gesture” provision. Section 308(a)(1)
of the ADA states, in relevant part, that [n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.
42 U.S.C. § 12188(a)(1). This provision makes plain that a plaintiff may bring suit against a noncompliant covered entity without first subjecting himself or herself to the humiliation, burden, or expense of attempting to access inaccessible services or enter an inaccessible facility. Once a plaintiff has actually become aware of an accessibility barrier or discriminatory policy, and is deterred thereby from visiting or patronizing the public accommodation, he or she has suffered injury sufficient to confer standing. See, e.g., Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306-307 (1st Cir. 2003) (stating that courts should interpret “futile gesture” provision generously in light of remedial purpose underlying ADA); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-37 (9th Cir.) (ruling that injury under ADA accrues once plaintiff is aware of discriminatory condition and is thereby deterred), cert. denied, 537 U.S. 1030 (2002); Fieldler v. Ocean Front Properties, Ltd., 683 F.Supp.2d 57, 67-68 (D. Me. 2010) (holding that prospective disabled patron had standing to sue hotel under title III despite cancelling reservation and never visiting hotel because communications with hotel staff and research gave him actual knowledge of barriers in room, which conferred standing).
Netflix’s narrow reading of the “futile gesture” provision thus cannot be squared with either the text of § 12188(a)(1) or the ADA's underlying remedial goals. Under Netflix’s view, Plaintiffs would have to become Netflix members, pay the associated monthly subscription fee, and attempt to
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watch (and comprehend) one or more uncaptioned movies via the “Watch Instantly” service before being permitted to bring suit even though—as Plaintiffs allege in the First Amended Complaint (see FAC ¶¶ 5, 17-27, 30-41) and Netflix concedes (see Netflix Dismiss Mem. at 1; McDowell Dec., Exs. A, C, E (blog posts by Netflix Chief Product Officer); FAC ¶¶ 17-20)—the majority of movies currently available for online streaming through “Watch Instantly” lack captions or subtitles. Such an interpretation not only contravenes the plain language of the statute, it leads to results that directly conflict with the ADA's remedial purpose. Plaintiffs would have to subject themselves to the very conduct that the ADA was intended to prevent in order to obtain relief. The ADA does not require such a result. So long as a plaintiff adequately alleges that he or she would likely use a public accommodation in the future if accessibility barriers were removed, which Plaintiffs have done in the First Amended Complaint, the presence of those barriers can properly be said to cause injury. See Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 707 n.4 (D. Or. 1997); cf. International Bhd. of Teamsters v. United States, 431 U.S. 324, 365-366 (1977) (persons who have not applied for employment may, under some circumstances, receive equitable relief under Title VII).
CONCLUSION For the foregoing reasons, defendant Netflix’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) based on primary jurisdiction and standing should be rejected.
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Dated: October 3, 2011

Respectfully submitted:
Thomas E. Perez Assistant Attorney General Civil Rights Division
Carmen M. Ortiz United States Attorney
Eve Hill Senior Counsel to the Assistant Attorney General Civil Rights Division
Allison J. Nichol, Chief Kathleen P. Wolfe, Acting Special Legal Counsel Alberto Ruisanchez, Acting Deputy Chief Disability Rights Section
/s/ Gretchen E. Jacobs Gretchen E. Jacobs
Senior Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. 1425 NY Avenue Building Washington, D.C. 20530 (202) 514-9584 (202) 307-1198 (fax) gretchen.jacobs@usdoj.gov
Counsel for United States of America

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CERTIFICATE OF SERVICE
I hereby certify that, on October 3, 2011, I electronically filed the Statement of Interest of the United States of America in Opposition to Defendant’s Motion to Dismiss First Amended Complaint with the Clerk of the Court using the CM/ECF system which will send Notices of Electronic Filing (NEF) to all registered participants and that paper copies will be sent to those counsel listed as non-registered participants on this same date.
/s/ Gretchen E. Jacobs
GRETCHEN E. JACOBS Senior Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. 1425 N.Y. Avenue Building Washington, D.C. 20530
(202) 514-9584 (202) 307-1198 (fax) gretchen.jacobs@usdoj.gov
Counsel for United States of America

 
 Case 3:11-cv-30168-MAP Document 45 Filed 05/15/12 Page 1 of 22

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION

_________________________________________

)

NATIONAL ASSOCIATION OF THE DEAF, )

WESTERN MASSACHUSETTS ASSOCIATION )

OF THE DEAF AND HEARING IMPAIRED, )

and LEE NETTLES,

)

)

Plaintiffs,

)

)

v.

)

)

NETFLIX, INC.,

)

)

Defendant.

)

_________________________________________ )

Civil Action No. 3:11-cv-30168

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA IN OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

Case 3:11-cv-30168-MAP Document 45 Filed 05/15/12 Page 2 of 22

The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 517 because this litigation implicates the interpretation and application of title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and its implementing regulation.1 Plaintiffs, an individual who is deaf and two advocacy organizations serving the interests of persons who are deaf or hard of hearing, allege that Netflix has violated the ADA by failing to provide closed captioning on the vast majority of the movie and television titles offered on its “Watch Instantly” on-demand streaming video service, as well as equal access to other services offered to Netflix members (such as Netflix “recommendations” and genre-sorted movie listings). See First Am. Compl. for Declaratory and Injunctive Relief ¶¶ 1-6, 47-56 (Aug. 9, 2011) (Docket # 19) (“FAC”).
Congress’ purpose in enacting the ADA was “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(1), having found that “discrimination against individuals with disabilities persists in such critical areas as . . . recreation . . .” and that “many people with physical or mental disabilities have been precluded from [fully participating in all aspects of society].” 42 U.S.C. § 12101(a)(3) and (1). To remedy such discrimination, the ADA prohibits a public accommodation, such as Netflix, from denying individuals who are deaf or hard of hearing the “full and equal enjoyment of [its] goods, services, facilities, privileges, advantages, or accommodations….” 42 U.S.C. § 12182(a). Streaming of video programming over the Internet—by defendant Netflix and other similar providers— has revolutionized the entertainment industry; it is fast becoming the dominant means of delivering movies, television shows, and other entertainment offerings to the American public. Persons who are

1

Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be

sent by the Attorney General to any . . . district in the United States to attend to the interests of the United

States in a suit pending in a court of the United States[.]” The Department of Justice (“Department” or

“DOJ”), moreover, is the federal agency with primary responsibility for enforcing title III of the ADA and its

implementing regulations. See 42 U.S.C. §§ 12186(b), 12188(b); 28 C.F.R. pt. 36.

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deaf or hard of hearing should not be prevented from fully participating in this aspect of American life. Netflix’s denial of equal access to, and full enjoyment of, its “Watch Instantly” service violates the ADA. Defendant’s claims that the ADA does not apply to its “Watch Instantly” service and is preempted by the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), Pub. L. No. 111-260, 124 Stat. 2751 (Oct. 8, 2010), are incorrect. Accordingly, the United States has a strong interest in the resolution of this matter and respectfully requests that this Court deny Defendant Netflix’s Motion for Judgment on the Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.
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”)
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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
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 fact, the “prior to” language does not exist in § 202(b), which only governs programming exhibited on television after the effective date.
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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.
ARGUMENT Defendant Netflix is a public accommodation that offers its Watch Instantly and other services to the public. As such, Netflix is subject to title III of the ADA, even if it has no physical structure. Netflix falls within the twelve enumerated categories of public accommodations, and Congress, when passing the ADA in 1990, intended to cover advances in technology, such as the advent of the Internet. Further, the Department of Justice (“DOJ” or the “Department”) has long interpreted title III to apply to web services, and DOJ’s ongoing regulatory developments concerning the accessibility of web content and services support that Netflix is a public accommodation subject to title III of the ADA. Netflix clearly owns and operates its Watch Instantly service, and thus its alleged lack of control over captioning does not undermine Netflix’s coverage as a public accommodation. Finally, the CVAA does not preempt the ADA or conflict with its application to this case.
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A. Netflix’s Web-Only Service is a Public Accommodation Subject to Title III 1. Carparts Held That Public Accommodations are Not Limited to Physical Structures Netflix, which operates its website and Watch Instantly service through computer servers and
the Internet, is a public accommodation subject to title III of the ADA, even if it has no physical structure where customers come to access its services. In Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc., 37 F.3d 12 (1st Cir. 1994), the First Circuit held that a public accommodation under title III of the ADA is not limited to physical structures. 37 F.3d at 19. The Court specifically analyzed a “travel service,” which is identified in the statute as a public accommodation, and concluded that Congress clearly intended to “include providers of services which do not require a person to physically enter an actual physical structure.” Id. The Court also found that its conclusion was consistent with the legislative history of the ADA, given “Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.” Id. at 19, 20.
Defendant’s discussion of Carparts in support of its assertion that it is not a public accommodation is inaccurate and misleading. Defendant argues that Carparts “came to the narrow conclusion that a place of public accommodation ‘might, in some circumstances,’ include things that are not ‘actual, physical structures.’” Def.’s Mem. at 10. First, the qualifying language that Defendant attributes to the case – “might, in some circumstances” – does not appear in the decision. Second, Defendant misleads by claiming that subsequent First Circuit and District Court cases have failed to follow Carparts, conveniently ignoring that those subsequent cases had nothing to do with the issue at hand. Def.’s Mem. at 10, citing to Barton v. Clancy, 632 F.3d 9, 19 (1st Cir. 2011) (considering whether an entity would be an employer under the ADA if it exercised control over an
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important aspect of the plaintiff’s employment); Lopez v. Massachusetts, 588 F.3d 69, 88 (1st Cir. 2009) (same); and Iwata v. Intel Corp., 349 F.Supp.2d 135, 144 n. 3 (D. Mass. 2004) (stating, in a title I and ERISA action, that title III might apply to health benefit plans).3
Although the First Circuit has not addressed specifically whether an entity like Netflix, which provides a subscription video service via its website, is a public accommodation, the analysis in Carparts clearly compels such a result. Under the Carparts analysis, a web-based service like Netflix, whose customers pay for a video service through its website but has no physical structure for customers to enter, should be considered a public accommodation just like a travel service that has no physical structure for customers to enter, but conducts business by telephone. As the First Circuit said in Carparts, “Congress could not have intended such an absurd result” as to cover services offered at a store, but not those same services offered through the telephone, or likewise, the Internet. Carparts, 37 F.3d at 19; see also Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“The core meaning of [title III’s nondiscrimination provision, 42 U.S.C. § 12182(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons . . .”) (internal citation omitted); Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456, 459 (7th Cir. 2001) (rejecting that public accommodation must be a physical site).4
3 In fact, First Circuit and District Courts have cited approvingly to Carparts’ holding that a public accommodation need not have a physical structure. See Tompkins v. United Health Care of New England, 203 F.3d 90, 95 n.4 (1st Cir. 2000); Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 115 (D. Mass. 2005); Conners v. Maine Med. Ctr., 42 F. Supp. 2d 34, 46 (D. Me. 1999); Boots v. Northwestern Mutual Life Ins., 77 F. Supp. 2d 211, 215 (D.N.H. 1999); Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 425-27 (D.N.H. 1996). 4 While some courts in other circuits have held that title III does not apply to web-only services, this conclusion does not comport with the First Circuit’s ruling in Carparts, the ADA’s legislative history, or the Department of Justice’s interpretation of title III. See Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) (finding a Website is only covered if it affects access to a physical place of public accommodation); see also Weyer v.
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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: 19901998, 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
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).
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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
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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”).
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
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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. 9950891), 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,
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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
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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
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.
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B. Defendant is Covered Under Title III Because it Owns and Operates its Watch Instantly Service; Other Control Arguments Are Not Supported or Are Inappropriate for Judgment on the Pleadings For title III to apply, a defendant must be a “person who owns, leases (or leases to), or
operates a place of public accommodation.” 42 U.S.C. § 12182. There is no dispute that Defendant owns and operates its business, including the Watch Instantly service, which provides video programming to customers via its website. FAC ¶ 13; Answer of Def. to First Am. Compl. ¶ 13 (Dec. 8, 2011) (Docket #34). Defendant also controls what video programming it offers to customers through its website, and how that programming is prepared and formatted to make it available through Internet streaming. Accordingly, Defendant exerts sufficient ownership and control of a public accommodation to be covered under the ADA.
Defendant attempts to argue that it lacks control over the ability to caption its video programming, and thus it has not violated the ADA because it does not “own[], lease[] (or lease[] to), or operate[] a place of public accommodation,” 42 U.S.C. § 12182(a). Def.’s Mem. at 6. Control over captioning, however, does not undermine Defendant’s coverage as a public accommodation, and the cases to which Defendant cites support the proposition that Netflix is covered under the ADA as an owner and operator of its website and Watch Instantly service. Each of the cases cited by Defendant involve a court trying to determine which one of multiple, intertwined entities actually operated the place of public accommodation at issue in order to determine responsibility under the ADA. See Neff. v. American Dairy Queen Corp., 58 F.3d 1063, 1066-68 (5th Cir. 1995) (affirming grant of summary judgment, ruling that Dairy Queen franchisor did not own or operate the franchisee restaurant in a suit alleging ADA architectural violations because under the franchise agreement it had almost no control over architectural issues, thereby making the franchisee the operator of the
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establishment and proper defendant); Pickern v. Pier 1 Imps. Inc., 457 F.3d 963, 965-67 (9th Cir. 2006) (affirming grant of summary judgment, ruling that Pier 1 store was not liable for installing a ramp across a City-owned grassy strip between the store and the City-owned sidewalk because it did not own, operate or control the grassy strip.); Guckenberger v. Boston Univ., 957 F.Supp. 306, 32123 (D. Mass. 1997) (on motion to dismiss, holding a former president who is the current chancellor of a university liable under title III as an operator of the university, but finding another official not to have sufficient control to be liable as an operator; the University was the primary defendant); Coddington v. Adelphi Univ., 45 F.Supp.2d 211, 217 (E.D.N.Y. 1999) (on motion to dismiss, finding no individual liability for president and other officials of a university but finding the university to be the proper defendant under title III); Cortez v. Nat’l Basketball Ass’n, 960 F. Supp. 113, 115-17 (W.D. Tex. 1997) (on motion to dismiss, ruling that the NBA does not own, operate, or lease the Alamodome so it cannot be liable under title III). There is no dispute that Netflix owns and operates its website and Watch Instantly service. Thus, there is no need to examine the issue of control for purposes of title III’s application.
Furthermore, Netflix is confusing coverage as a public accommodation under title III with liability under title III. On a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), the court must accept the non-movant’s well-pleaded facts as true and draw all reasonable inferences in its favor. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988). Judgment is warranted only if it appears beyond doubt that the non-movant can prove no set of facts in support of its claim which would entitle it to relief. Id. The facts pled plainly support a finding that Netflix is a public accommodation under the ADA. Netflix’s contentions regarding its level of control over captioning, in contrast, go to liability, and depend on facts not presented in the pleadings nor available in the
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litigation, as discovery has just begun. The court may not grant Defendant’s Motion for Judgment on the Pleadings based on unsupported factual allegations. See Mangan v. Rumo, 209 F.R.D. 29 (D. Me. 2002) (ruling that on a Motion for Judgment on the Pleadings, court may not consider unsupported factual allegations in a memorandum of law.)
Moreover, Netflix’s argument overlooks that the facts, as pled, demonstrate that there is programming in Netflix’s streaming inventory that already has been captioned by the owner and does not implicate any control issue, but for which Netflix does not show the captioning. See FAC ¶ 24, 26 (television and DVD versions of the Wizard of Oz have captions, but Netflix streamed the movie on Oct. 3, 2009 without captions). In addition, Netflix has begun creating its own programming. See “Lilyhammer” Premieres Today, Netflix US & Canada Blog (Feb. 5, 2012) http://blog.netflix.com/2012/02/lilyhammer-premieres-today.html, Ted Sarandos, Chief Content Officer, Netflix, announcing the premier on Feb. 5, 2012 of Netflix Original Series “Lilyhammer,” starring Steven Van Zandt, as “the first of many brand new, original and exclusive series to debut on Netflix.”). For Netflix’s original programming, there would be no issue of control over creating captions. In addition, Netflix clearly has control over other services offered to Netflix members such as Netflix “recommendations” and genre-sorted movie listings, to which Plaintiffs claim they are denied equal access. Thus, Netflix’s arguments that it does not exert sufficient control over its programming are irrelevant to the issue of title III coverage, unsupported by the factual record, and cannot be decided on a motion for judgment on the pleadings. C. The CVAA Does Not Preempt the ADA or Conflict With the ADA’s Application to This
Case This Court has already recognized that the CVAA did not expressly or implicitly preempt the ADA. As this Court stated at the November 8, 2011 hearing on the Defendant’s Motion to Dismiss,
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“Of course, the FCC may come out with regulations that I decide are inconsistent with the ADA. I’m not bound by what the FCC does.” Hr’g Tr. at 9:11-13 (Nov. 8, 2011). The Court’s understanding is correct, especially because the CVAA contains no language expressly preempting ADA claims. Fundamental principles of statutory construction militate against interpreting the CVAA as repealing the ADA (or sections thereof) by implication. Further, the provision giving the FCC exclusive jurisdiction over video programming accessibility complaints under 47 U.S.C. § 613, on which Netflix relies, was not enacted by the CVAA, but, rather, its predecessor amendments to the Communications Act—that is, the Telecommunications Act of 1996. See Pub. L. No. 104-104, § 305 (“713(h)”), 110 Stat. 126 (1996) (codified at 47 U.S.C. § 613(j)). The Telecommunications Act of 1996, in turn, contains the following broad savings clause:
NO IMPLIED EFFECT.—This Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or amendments. Pub. L. No. 104-104, § 601(c)(1) (reprinted in 47 U.S.C. § 152, historical and statutory notes). Because the ADA was enacted five years before the Telecommunications Act, this savings clause clearly evidences Congress’ express desire to leave ADA rights and remedies intact. Cf. Sprint Telephony PCS, L.P. v. County of San Diego, 311 F.Supp.2d 898, 915 (S.D. Cal. 2004) (finding the Telecommunications Act’s savings clause to be “broad, sweeping, and a clear indication that Congress intended to leave federal laws untouched and unaltered unless they specified otherwise explicitly…”). Nor can the CVAA be read as repealing by implication the judicial forum and remedies otherwise available under title III’s enforcement scheme. Implied repeals are highly disfavored and only permitted on rare occasions “when the earlier and later statutes are irreconcilable.” J.E.M. Ag
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Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 141-42 (2001) (internal quotation omitted); see also Morton v. Mancari, 417 U.S. 535, 551 (1974) (noting “when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective”); United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 9-10 (1st Cir. 2005) (same). Moreover, this presumption against implied repeals is even stronger where, as here, the repeal would implicate federal subject matter jurisdiction. Lahey Clinic, 399 F.3d at 9 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 808 (1976)).
There is no indication that Congress intended the CVAA and FCC to “carve captioning of streaming video programming from the ADA’s scope,” as Defendant argues. Def.’s Mem. at 15. The support Defendant relies on for this position is its mistaken claim that the CVAA applies to all streaming video programming produced at any time. Id. However, the CVAA clearly covers only programming “delivered using Internet protocol that was published or exhibited on television with captions after the effective date of such regulations.” 47 U.S.C. § 613(c)(2)(A); 49 C.F.R. § 79.4(b). Any programming shown on television before September 30, 2012 will not be required to be captioned when streamed, unless the programming is shown again on television on or after September 30, 2012. Further, content that is never shown on television (such as Netflix original content or certain films) is not covered by the CVAA. Therefore, Plaintiffs’ claims cannot be resolved by the CVAA alone.
Defendant incorrectly relies on Zulauf v. Kentucky Educational Television, 28 F.Supp.2d 1022 (E.D. Ky. 1998) to support its argument that the FCC’s administrative complaint scheme preempts the ADA’s private right of enforcement. Def.’s. Mem. at 18. In Zulauf, a plaintiff sued an educational broadcaster (KET) alleging violations of the ADA and the Rehabilitation Act due to
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failure to provide closed captioning for some television programming. Defendant KET moved to dismiss based on the FCC’s exclusive jurisdiction over issues relating to television captioning pursuant to § 613(h) of the Telecommunications Act of 1996. Zulauf, 28 F.Supp.2d at 1023. After noting that the Telecommunications Act did not preempt the ADA or Rehabilitation Act, the district court nonetheless concluded that primary jurisdiction considerations warranted dismissal so that plaintiff could exhaust his administrative remedies with the FCC before pursuing his civil rights complaint. Id. at 1023-24. The court dismissed the action based on its belief that, because resolution of plaintiff’s civil rights claims would require interpretation of the Telecommunications Act and the FCC’s implementing regulations, judicial resolution of plaintiff’s civil rights claims—at least in the first instance—would be “inefficient and a waste of judicial resources.” Id. at 1024.
Zulauf is distinguishable because in Zulauf, each ADA/Rehabilitation Act claim mirrored a potential administrative claim under the FCC’s implementing regulations. Here, by contrast, none of Plaintiffs’ ADA claims at present mirror potential CVAA-related administrative claims because the CVAA regulations do not apply to any of Netflix’s current inventory; and some of plaintiffs’ claims will never be covered by the CVAA. The CVAA will never apply to Netflix’s inventory that does not air on television (such as Netflix original content or other programming), nor to inventory that only airs on television before September 30, 2012. Moreover, also falling outside the FCC’s administrative jurisdiction are Plaintiffs’ allegations that Netflix violates title III of the ADA by failing to provide equal access to other services offered to Netflix members (such as Netflix “recommendations” and genre-sorted movie listings).
Simply put, no irreconcilable conflict exists between title III of the ADA and § 202(b) of the CVAA, codified at 47 U.S.C. § 613. Title III’s broad remedial mandate generally prohibits
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disability-based discrimination by public accommodations in a wide range of contexts and provides for enforcement in federal courts by aggrieved parties and the Attorney General. See 42 U.S.C. §§ 12182, 12188. Section 202(b) of the CVAA, on the other hand, focuses more narrowly on regulatory standards for closed captioning of certain Internet Protocol-delivered video programming (i.e., video programs previously exhibited on television after certain dates) and limits enforcement to administrative complaints. More specifically, there is no inherent tension between, on the one hand, 47 U.S.C. § 613’s grant of exclusive FCC jurisdiction over complaints “under this section” and, on the other hand, title III claims—such as those raised in the First Amended Complaint—alleging failure to provide equal access to Internet-delivered video programming due to lack of closed captioning and other related services. Necessarily, Plaintiffs’ title III claims arise “under” the ADA, not 47 U.S.C. § 613’s administrative scheme.
Thus, title III of the ADA and the CVAA can be read to coexist, especially given their differing legislative focus, requirements, forums, and remedies. Cf. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws . . . a court must give effect to both.”) (internal citation omitted); Rathbun v. Autozone, Inc., 361 F.3d 62 (1st Cir. 2004) (differential treatment under two different statutes of factually identical claims is not a proper ground for repeal by implication); Baumgardner v. County of Cook, 108 F.Supp.2d 1041, 1043-51 (N.D. Ill. 2000) (permitting disabled employee to assert title I-based ADA claim against county employer, as well as equal protection claim under § 1983 against individual supervisor, even when same facts formed basis for both claims). Under such circumstances, the CVAA cannot, as a matter of law, be deemed to impliedly repeal title III of the ADA.
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CONCLUSION For the foregoing reasons, Defendant Netflix’s Motion for Judgment on the Pleadings under Fed. R. Civ. P. 12(c) should be denied.

Dated: May 15, 2012 Counsel

Respectfully submitted:
Thomas E. Perez Assistant Attorney General Civil Rights Division
Carmen M. Ortiz United States Attorney
Eve Hill Senior Counselor to the Assistant Attorney General Civil Rights Division
Allison J. Nichol, Chief Kathleen P. Wolfe, Special Litigation Counsel Alberto Ruisanchez, Deputy Chief Disability Rights Section
/s/ Amanda Maisels Amanda Maisels
Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. 1425 NY Avenue Building Washington, D.C. 20530 (202) 305-8454 (202) 307-1198 (fax) amanda.maisels@usdoj.gov
for United States of America

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Case 3:11-cv-30168-MAP Document 45 Filed 05/15/12 Page 22 of 22
CERTIFICATE OF SERVICE
I hereby certify that, on May 15, 2012, I electronically filed the Statement of Interest of the United States of America in Opposition to Defendant’s Motion for Judgment on the Pleadings with the Clerk of the Court using the CM/ECF system which will send Notices of Electronic Filing (NEF) to all registered participants and that paper copies will be sent to those counsel listed as non-registered participants on this same date.

AMANDA Trial Disability
U.S. 950
Washington,
(202) (202) am
Counsel

/s/ Amanda Maisels
MAISELS Attorney
Rights Section Civil Rights Division
Department of Justice Pennsylvania Avenue, N.W. 1425 N.Y. Avenue Building
D.C. 20530
305-8454 307-1198 (fax) anda.maisels@usdoj.gov
for United States of America

 
 Case 3:11-cv-30168-MAP Document 46 Filed 05/15/12 Page 1 of 26

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS WESTERN DIVISON

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED AND LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC., a corporation, Defendant.

CIVIL ACTION NO. 11-30168-MAP PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR
JUDGMENT ON THE PLEADINGS
[ORAL ARGUMENT REQUESTED] Date: June 11, 2012

Court: Hon. Michael A. Ponsor U.S. District Court Third Floor 300 State Street Springfield, MA

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TABLE OF CONTENTS

Page No.

I. INTRODUCTION……………………………………………………..…………………1
II. ARGUMENT ...................................................................................................................... 4
A. Netflix is a Place of Public Accommodation Under the ADA ..................................... 4
B. The Pleadings Establish that Netflix has the ―Control‖ Necessary to Caption its Watch Instantly Content; Netflix‘s Arguments on this Issue Raise Questions of Fact. . ....................................................................................................................................... 8
1. The cases Netflix cites do not support its argument that it lacks control over its Watch Instantly programming. ............................................................................... 9
C. The CVAA Does Not Carve Out Access to Streaming Video from the ADA. .......... 10
1. The ADA prohibits an interpretation that the CVAA repealed the ADA by implication. ........................................................................................................... 12
2. The CVAA does not cover the ―whole subject‖ of the ADA nd was not intended as a substitute. ....................................................................................................... 14
3. The CVAA and the ADA are not in conflict and are easily harmonized. ............ 16
4. NAD‘s advocacy for a broader implication of CVAA in agency proceedings is immaterial. ............................................................................................................ 19
D. Plaintiffs‘ Claim is Not Moot..................................................................................... 20
III. CONCLUSION................................................................................................................. 20

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CASES

TABLE OF AUTHORITIES

Page No.

Am. Council of the Blind v. Astrue, 2008 U.S. Dist. LEXIS 86524, *24 (N.D. Cal. 2008)..... 11,12

Barton v. Clancy, 632 F.3d 9 (1st Cir. 2011).................................................................................. 7

Baumgardner v. County of Cook, 108 F. Supp. 2d 1041, 1043-51 (N.D. Ill. 2000)..................... 16

Boots v. Northwestern Mutual Life Ins., 77 F. Supp. 2d 211, 216 (D.N.H. 1999) ......................... 6

Branch v. Smith, 538 U.S. 254, 273 (2003) .................................................................................. 13

Brown v. 1995 Tenet ParaAmerica Bicycle Challenge, 959 F. Supp. 496 (N.D. Ill. 1997) ......... 10

Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12 (1st Cir. 1994) ................... passim

Coddington v. Adelphi Univ., 45 F. Supp. 2d 211 (E.D.N.Y. 1999) ............................................ 10

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) ................................................... 16

Conners v. Maine Med. Ctr., 42 F. Supp. 2d 34, 46 (D. Me. 1999) ............................................... 5

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33, 35 (2003) ........................ 16

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) ........................................... 6

Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 427 (D.N.H. 1996) ................................ 6

Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003)............................................... 1

Fiedler v. American Multi-Cinema, 871 F. Supp. 35, 37-38 (D.D.C. 1994) ................................ 12

Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 115 (D. Mass. 2005) ................................................. 5

Greenless v. Almond, 277 F.3d 601, 604-06, 609 n.8 (1st Cir. 2002) .......................................... 16

Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997).............................................. 10

InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003) .......................................................... 19

Iwata v. Intel Corp., 349 F. Supp. 2d 135 (D. Mass. 2004)............................................................ 7

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 143-44 (2001) ................... 13

Kepner v. United States, 195 U.S. 100, 125 (1904)...................................................................... 16

Lopez v. Mass., 588 F.3d 69 (1st Cir. 2009) ................................................................................... 7

Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007) .......................................................... 4

Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456, 459 (7th Cir. 2001) ... 6

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Morton v. Mancari, 417 U.S. 535, 551 (1974) ............................................................................. 13 Nat. Resources Def. Council, Inc. v. U.S. Envt’l. Prot. Agency, 824 F.2d 1258, 1279 (1st Cir.
1987).......................................................................................................................................... 15 Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1066, 1067–170 (5th Cir. 1995) ........... 9, 10 Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005) ...................................................... 4 Passamaquoddy Tribe v. State of Maine, 75 F.3d 784, 789-90 (1st Cir. 1996)............................ 13 PGA Tour, Inc. v. Martin, 532 U.S. 661, 676 (2001) ..................................................................... 6 Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963, 964-67(9th Cir. 2006)................................... 10 Rathbun v. Autozone, Inc., 361 F.3d 62, 68 (1st Cir. 2004)........................................ 16, 17, 18, 19 Sprietsman v. Mercury Marine, 537 U.S. 51, 67 (2002) .............................................................. 16 Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982) .................................................................. 16 Tompkins v. United Health Care of New England, 203 F.3d 90, 95 n.4 (1st Cir. 2000) ................ 5 Zulauf v. Kentucky Educational Television, 28 F. Supp. 2d 1022-23 (E.D. Ky. 1998)................ 17 STATUTES 42 U.S.C. § 12201........................................................................................................................ 1,4 42 U.S.C § 12181........................................................................................................................ 1, 5 42 U.S.C. § 12182............................................................................................................. 1, 2, 8, 15 42 U.S.C. § 12188........................................................................................................................... 1 42 U.S.C. § 12201......................................................................................................................... 12 47 U.S.C. § 152............................................................................................................................... 4 47 U.S.C. § 613............................................................................................................. 3, 11, 14, 15 Pub. L. No. 104-104, § 601(c)(1).................................................................................................... 4 Pub. L. No. 111-260 § 102, § 203…………………………………………………………….…..3 LEGISLATIVE AND REGULATORY HISTORY H.R. Rep. 101-485(II), 108 ......................................................................................................... 6, 7 House Comm. on Ed. and Labor, HR Rep No. 485, Ed. and Labor Report at 135, 136 (1990)... 13 75 Fed. Reg. 43460, 43467 (July 26, 2010).................................................................................... 6 77 Fed. Reg. 19480, 19488 (March 30, 2012) .............................................................................. 18
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Case 3:11-cv-30168-MAP Document 46 Filed 05/15/12 Page 5 of 26 REGULATIONS 28 C.F.R. § 36.103 .......................................................................................................................... 4 28 C.F.R. §36.103 ......................................................................................................................... 12 47 C.F.R. § 79.4 ..................................................................................................................... passim
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I. INTRODUCTION The Americans with Disabilities Act (―ADA‖) ―provide[s] a clear and comprehensive
national mandate for the elimination of discrimination against individuals with disabilities.‖ 42 USC § 12101(b)(1). In keeping with this purpose, Title III of the ADA requires that individuals with disabilities have ―full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.‖ 42 U.S.C. § 12182(a). Congress intended judicial review of enforcement actions by private citizens, like this action, to be a primary mechanism for implementing the anti-discrimination rights guaranteed by the ADA, along with oversight by the Department of Justice (―DOJ‖). See Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003); 42 U.S.C. § 12188.
Netflix argues that Plaintiffs are precluded from seeking redress under the ADA, despite the direct application of ADA principles and provisions to this case. Netflix‘s arguments are all fatally flawed. First, Netflix‘s argument that it is not a public accommodation under Title III is based on a faulty analysis of Title III and discredits First Circuit case law in Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12 (1st Cir. 1994), and its progeny. Contrary to Netflix‘s assertion, Plaintiffs are not arguing that the list of public accommodations needs to be expanded. Plaintiffs have alleged that Netflix is a public accommodation within the enumerated list: ―place of exhibition and entertainment,‖ ―place of recreation,‖ ―sales or rental establishment,‖ and ―service establishment[].‖ 42 U.S.C § 12181(7); (FAC ¶ 48.)1 The narrow question is whether Netflix is exempt from ADA coverage because it sells entertainment services over the internet instead of out of a physical structure. As recognized by the First Circuit, it would undermine Congressional purpose to hold that the activities listed in Title III are covered
1 ―FAC‖ refers to Plaintiffs‘ First Amended Complaint, ECF No. 19.
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only when they occur in buildings. This is especially true of businesses that sell their goods and services on the internet. All of the areas of daily community life, including entertainment, that Congress intended to be equally accessible to people with disabilities in Title III increasingly moved to the internet in the decades since the ADA was deliberated and passed. As the First Circuit stated in Carparts, 37 F.3d at 19:
It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.‖ (emphasis added).2
It would be equally ―absurd‖ and ―irrational‖ to hold that the entertainment delivered to customers by Netflix over the internet is not covered by Title III. Nowhere is the move to the internet more ubiquitous than in the category of entertainment. Netflix‘s Watch Instantly service is the ―fastest growing entertainment venue in the country,‖ with an estimated share of over 60% of the industry market, but it is not fully accessible to the over 36 million Americans who are deaf and hard of hearing. (FAC ¶¶ 1, 4, 18-20.)3
Likewise, Netflix uses an incorrect analysis in its argument that it does not control its inventory. Section 302(a) of Title III provides that:
[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). There is no question that Netflix owns and operates Watch Instantly, the public accommodation at issue. The cases that Netflix cites about ―ocntrol‖ do not address the question of whether Netflix is a public accommodation. Whether or
2 See infra at 6 n.11. 3 See also Answer of Defendant Netflix, Inc. to First Amended Complaint (ECF No. 34), at ¶ 5 (admitting that Netflix has over 20 million subscribers).
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not Netflix has the ability to make the modifications Plaintiffs seek is a question of remedy. Moreover, Netflix‘s claim that it is unable to provide closed captions is dubious on several levels. The speculative claim that the remedy Plaintiffs seek would violate copyright law is questionable legally, is undermined by Netflix‘s practices and public statements, is not raised in its Answer, and, at the very least, raises genuine issues of material fact. Without discovery into Netflix‘s various arrangements with its suppliers to provide caption files and whether permission to caption has been sought or ever denied, the factual issues it raises cannot be finally resolved.
Finally, Netflix contends, as it did in its previous Motion to Dismiss (ECF No. 22)4 that the CVAA5 nullifies Plaintiffs‘ rights to full and equal access to public accommodations under the ADA. The CVAA assigned the Federal Communications Commission (―FCC‖) a limited role to ensure that captions on televised programming continue when streamed to the internet. (See ECF No. 26, Plaintiffs Opposition to Netflix‘s Motion to Dismiss (―Pls.‘ Opp.‖) at 2.)6 The CVAA and the recently published regulations require captioning on, at most, a limited portion of Netflix‘s streaming library, as the CVAA only affects programming shown on television with captions after September 30, 2012. See 47 U.S.C. § 613(c)(2)(A). Netflix argues that Congress‘s attempt to ensure that televised programming continues to be captioned as it moves to the internet drastically ―carved out‖ the rights to effective communication under the ADA. This interpretation is untenable for several reasons, including an explicit provision in the
4 ECF No. 43, Netflix‘s Motion for Judgment on the Pleadings (―Motion‖) at 2-3, 13-18. 5 Twenty-First Century Communications and Video Accessibility Act. 47 U.S.C. § 613 et seq. 6 The CVAA covers issues that do not arise in this case and would not be covered by the ADA, including hearing aid compatibility (§102), closed captioning decoder devices (§203), and user interfaces on digital apparatuses (§205). See Pub. L. No. 111-260
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ADA which preserves ADA rights unless another law provides greater protections. 2 U.S.C. § 12201(b); 28 C.F.R. § 36.103(c). Netflix‘s position would turn the ADA‘s protective provision on its head by interpreting the less protective statute, the CVAA, to trump the ADA even though compliance with both statutes is complementary. Even without the ADA‘s explicit statutory provision, well-established statutory interpretation doctrines and case law strongly disfavor repeal by implication.7 Finally, Netflix‘s position is all the more remarkable because it would leave Plaintiffs with no remedy for the content in the Watch Instantly library that is not and may never be in the CVAA‘s scope.8
Plaintiffs have pleaded that Netflix is a public accommodation under Title III (FAC ¶ 48)), and that it does not provide equal access to its Watch Instantly streaming content or its recommendations system. These allegations suffice to state an ADA claim, and Netflix‘s Motion should be denied.9
II. ARGUMENT A. Netflix Is a Place of Public Accommodation Under the ADA. Netflix confuses ADA analysis by claiming that Plaintiffs are asking this Court to expand
the list of types of accommodations covered by Title III. To the contrary, Plaintiffs allege that 7 A savings clause in the Telecommunications Act (―TCA‖) requires an explicit statement for the Act or its amendments to in any way limit another statute. See Pub. L. No. 104-104, § 601(c)(1) (reprinted in 47 U.S.C. § 152, historical and statutory notes; see also ECF No. 24, DOJ Statement of Interest at 2, 9. 8 See infra at 11 n.21, 14. 9 The standard applied in reviewing a motion for judgment on the pleadings is the same standard that is used for reviewing a motion to dismiss. Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007). A trial court is to ―accept all of the nonmovant‘s well-pleaded factual averments as true, and draw all reasonable inferences in his favor.‖ Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005).
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Netflix operates a place of public accommodation as defined by Title III of the ADA, 42 U.S.C § 12181(7) (―place of exhibition and entertainment,‖ ―place of recreation,‖ ―sales or rental establishment,‖ and ―service establishments‖). Netflix admits that it is a business that provides a subscription service of internet-based streaming videos available for viewing its ―Watch Instantly‖ content and that it has over 20 million subscribers. (ECF No. 34, Answer, at ¶¶ 5, 13.) The only question posed to this Court is whether because Netflix conducts its large-scale streaming business with over 20 million subscribers (FAC ¶ 5; Answer ¶ 5) on the internet instead of through stores, it is shielded from the reach of the ADA provisions which provide deaf and hard of hearing customers the right to equal access.
While Netflix tries to discredit and distinguish First Circuit precedent, the reasoning of the First Circuit and its district courts in cases that have consistently held that public accommodations under Title III are not limited to physical structures, applies equally here. The seminal case on this issue, Carparts, 37 F.3d at 20, held that the health care plans of individuals living with AIDS are places of public accommodation, despite the fact that they are not physical structures. The First Circuit observed that ―[w]hether establishments of ‗public accommodation‘ are limited to actual physical structures is a question of first impression in this Circuit,‖ and found ―that they are not so limited.‖ Id. at 19. Carparts analyzed the language of Title III and broadly concluded that:
The plain meaning of the terms do not require ‘public accommodations’ to have physical structures for persons to enter. Even if the meaning of ‗public accommodation‘ is not plain, it is, at worst, ambiguous. This ambiguity, considered together with agency regulations and public policy concerns, persuades us that the phrase is not limited to actual physical structures…Congress clearly contemplated that ‗service establishments‘ include providers of services which do not require a person to physically enter an actual physical structure…one can easily imagine the existence of other service establishments conducting business by mail and phone without providing facilities for their customers to enter in order to utilize their services. It would be irrational to conclude that persons who
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enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.‖ Id. (emphasis added).10
Carparts‘ reasoning applies equally to places of public accommodation that operate on
the internet.11 In fact, the legislative history of the ADA bolsters this interpretation, as Congress
envisioned technological advances that would ―further enhance options for making meaningful
and effective opportunities available to individuals with disabilities.‖ See H.R. Rep. 101-485(II),
108. Congress intended 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 unique burdens on such entities. Indeed, the Committee intends 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. Id. Congressional intent to keep the ADA up to date with technological developments was
emphasized in the Department of Justice‘s recent rule making process.12 The DOJ stated that
[t]he internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically address access to websites. But the statute‘s broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on websites over the internet…Congress contemplated that the Department would apply the
10 Carparts has been cited approvingly many times by the First Circuit, its district courts, and in other circuits. See Tompkins v. United Health Care of New England, 203 F.3d 90, 95 n.4 (1st Cir. 2000); Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 115 (D. Mass. 2005); Conners v. Maine Med. Ctr., 42 F. Supp. 2d 34, 46 (D. Me. 1999); Boots v. Northwestern Mutual Life Ins., 77 F. Supp. 2d 211, 216 (D.N.H. 1999); Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 427 (D.N.H. 1996); see also Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456, 459 (7th Cir. 2001) (rejecting literal interpretation of public accommodation as a physical site); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (―The core meaning of [Title III]…is that the owner or operator of a store… theater, Web site, or other facility whether in physical space or in electronic space...that is open to the public cannot exclude disabled persons.‖) (emphasis added). 11 As the Supreme Court has held, the definition of public accommodation ―should be construed liberally.‖ PGA Tour, Inc. v. Martin, 532 U.S. 661, 676 (2001). 12 ―Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations,‖ 75 Fed. Reg. 43460, 43467 (July 26, 2010).
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statute in a manner that evolved over time, and it delegated authority to the Attorney General to promulgate regulations to carry out the Act‘s broad mandate. Consistent with this approach, the Department stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies…. the ADA mandate for ‗full and equal enjoyment‘ requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via websites. Id. (emphasis added) (internal citations omitted). Today mainstream America uses the internet for educational, economic, and recreational purposes; therefore, the goal of Title III of the ADA cannot be met without also construing internet businesses, such as Netflix, as places of public accommodation. Streaming video programming is increasingly how Americans seek media entertainment services, and people who are deaf and hard of hearing desire full and equal access to these services.13 Netflix‘s claim that recent decisions within the First Circuit have called Carparts into question is false. (Motion at 10.) Netflix cites Barton v. Clancy, 632 F.3d 9 (1st Cir. 2011), and Lopez v. Mass., 588 F.3d 69 (1st Cir. 2009), in which the First Circuit stated that Carparts ―involved…an unusual set of facts, and a particular procedural posture.‖ Barton, 632 F.3d at 19; Lopez, 588 F.3d at 88. Netflix fails to mention that neither case even touched on whether places of public accommodation can include non-physical structures. Rather, the First Circuit‘s statements were made in the context of entirely unrelated discussions regarding the definition of ―employer‖ under the ADA (in Barton) and Title VII of the Civil Rights Act (in Lopez). Iwata v. Intel Corp., 349 F. Supp. 2d 135 (D. Mass. 2004), is equally irrelevant. The plaintiff in Iwata did not bring an action under Title III and the definition of a place of public accommodation was not at issue. See id.
13 See, e.g., FAC ¶¶ 1, 3, 4, 15, 35.
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There is no reason for the Court to depart from the First Circuit‘s determination in
Carparts that the ADA is not limited to physical structures or to decline to hold that Netflix is a
public accommodation.
B. The Pleadings Establish that Netflix Has the “Control” Necessary to Caption its Watch Instantly Content; Netflix’s Arguments on this Issue Raise Questions of Fact.
There is no question that the actions of Netflix are attributable to Netflix under Title III.
Section 302(a) provides that:
[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). Plaintiffs have correctly alleged that Netflix owns and operates Netflix
and is, thus, subject to Title III of the ADA. (FAC at ¶¶ 13, 16-19, 26.) Netflix does not dispute
its ownership in its Answer, nor does it raise a defense as to its lack of control; indeed, Netflix makes numerous admissions that establish its ability to control captioning.14 Therefore, Netflix‘s
Motion for Judgment on the Pleadings should be denied.
Any further issues about Netflix‘s ability to provide captions involve questions of fact
which cannot be addressed on a motion for judgment on the pleadings. Netflix muddles the
ADA analysis by confusing whether Plaintiffs allege discrimination by an entity covered by Title
14 See, e.g., Netflix‘s prior admissions that it ―porvides closed captioning on its internet-based streaming video content to the extent it is economically or technologically feasible. Defendant has been working, and continues to work, to make closed captioning available on an increasing amount of its internet-based streaming video since 2008.‖ (Answer at 13-15); see also Declaration of Neil S. Hunt (ECF No. 21-2) (stating that he supervises the teams responsible for captioning, and that Netflix manages captioning of its streaming content in its Los Gatos and Beverly Hills locations); Declaration of David McDowell (ECF No. 21-1), Exhs. C, E, F. The only defenses Netflix asserted in its Answer were that technology has posed a barrier to captioning, that providing captioning would constitute a fundamental alteration of its business practices, and that providing captioning would constitute an undue burden. (Answer at 13, 15).
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III with whether Netflix may be able, at some later date, to raise a defense that it is unable to provide captions to some content because another entity will not allow it. Netflix sets forth a parade of horrors in its motion, 15 that are not only unsupported, but are in fact contradicted in Netflix‘s Answer, blog postings, current practices, and previous posture in this case, but all of these issues would require further facts to resolve.16
The pleadings in this case make clear that Netflix claims to have captioned its viewed programming, has announced that it has ―erleased the technology‖ to enable captions on its programming and that it ―will be working to fill in the [Watch Instantly] library over time.‖ (FAC at ¶ 18; see also Answer at 13-15.) Further discovery would reveal the terms of the contracts Netflix has with suppliers, whether Netflix seeks permission to caption, how much of the content Netflix receives has caption files and other facts pertinent to this defense. The specter of copyright infringement alone cannot justify judgment on the pleadings, as the pleadings directly contradict it.17
1. The cases Netflix cites do not support its argument that it lacks control over its Watch Instantly programming.
In support of its copyright defense, Netflix cites various cases from other circuits that are irrelevant to the situation here. (Motion at 6-7). Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1066, 1067–170 (5th Cir. 1995), cert. denied, 516 U.S. 1045, 1065 (1996), ―present[ed] a narrowly defined issue…: whether a franchisor with limited control over a franchisee‘s store
15 See Motion at 1 (arguing that ―issues of copyright ownership, control, practical burdens, and economic reality greatly complicate the process in ways the ADA does not and cannot address‖; id. at 18 (contending that ―whether Netflix even has the legal right to caption all the video programming Plaintiffs‘ seek, would have Netflix create infringing derivative works that conflict with the video owners‘ copyrights‖). 16 See supra 8 n.15 and accompanying text. 17 Plaintiffs have already propounded discovery on the issues of control and the contents of Netflix‘s contracts regarding captioning as of March 22, 2012.
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‗operates a place of public accommodation.‖ Id. at 1066. There is no question that Netflix ―operates‖ and ―owns‖ the Watch Instantly streaming site accessed through www.netflix.com.
In Pickern v. Pier 1 Imps. (U.S.), Inc., 457 F.3d 963, 964-67(9th Cir. 2006), a wheelchair user sued Pier 1 Imports because the entry to the store was obstructed by a grassy area on the sidewalk which was not owned or operated by Pier 1. By contrast, here there is no question that Netflix operates the Watch Instantly site. The extent of control and the ease or difficulty of obtaining captions is wholly different than the issue in Pickern which involved an entity with which the defendant had no relationship.18 It is quite a stretch for Netflix to claim that its relationship to its Watch Instantly video content is similar to the distant relationship between a franchisor and a franchisee described in Neff and Cortez, or the complete lack of ownership or operative control discussed in Pickern. Netflix‘s admissions in its Answer establish that it has various means of providing captions, and Plaintiffs will explore this issue further in discovery if necessary.19
C. The CVAA Does Not Carve Out Access to Streaming Video from the ADA. While Netflix makes much of the process involved in enacting the CVAA and in the implementing regulations, it fails to cite any language in the statute, FCC regulations, or the legislative history that support its contention that Congress intended the CVAA to partially repeal the ADA. As previously discussed by Plaintiffs in their Opposition to Netflix‘s Motion to
18 The other cases cited by Netflix are completely off point, having to do with whether there is personal liability under the ADA (Coddington v. Adelphi Univ., 45 F. Supp. 2d 211 (E.D.N.Y. 1999), Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997)), or whether a booking agent is liable for the actions of all of the tours it books (Brown v. 1995 Tenet ParaAmerica Bicycle Challenge, 959 F. Supp. 496 (N.D. Ill. 1997)). 19 See, e.g., Netflix‘s Answer, stating that it ―provides closed captioning on its internet-based streaming video content to the extent it is economically or technologically feasible. Netflix has been working, and continues to work, to make closed captioning available on an increasing amount of its internet-based streaming video since 2008.‖ (Answer at pp. 13, 14, 15).
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Dismiss (ECF No. 26, ―Pls.‘ Opp.‖), however, and consistent with the position taken by the Department of Justice (―DOJ‖) in its Statement of Interest (ECF No. 24), Plaintiffs‘ claim under the ADA remains largely unaffected by the FCC‘s interpretation of the CVAA because: (1) the FCC regulations implement the CVAA, not the ADA (see Pls.‘ Opp. at 5); and (2) CVAA (and thus, necessarily, the FCC regulations) ensure captioning for programming shown only on television after September 30, 2012, not all video content shown over the internet and will thus only affect a portion of Netflix‘s library (see 47 U.S.C. § 613(c)(2)(A); 47 C.F.R. § 79.4; Pls.‘ Opp. at 7.) As Plaintiffs expect to show through discovery, the amount of material which would not be covered by the CVAA is increasing as Netflix pushes to make contracts directly with the studios to stream movies before they appear on TV and to create Netflix original programming to be shown first on its streaming site.20
Ironically, Netflix argues that Congressional intent behind the CVAA to ―insure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming‖ justifies stripping individuals who are deaf and hard of hearing of their ADA rights, leaving them with no redress for inferior service by a public accommodation. (Motion at 15) (citations omitted). By enacting the CVAA, Congress intended to improve access to video programming, not limit access or relief under the separate ADA.21 It
20 See Brooks Barnes and Brian Stelter,“Netflix Secures Streaming Deal with DreamWorks,‖ N.Y. Times, September 25, 2011 (available at: http://www.nytimes.com/2011/09/26/business/media/netflix-secures-streaming-deal-withdreamworks.html?pagewanted=all) Recently, Netflix‘s Chief Content Officer, Ted Sarandos, announced plans to develop original programming in addition to its current show, ―Lilyhammer‖ (See http://gigaom.com/video/netflix-original-programming/). 21 As the court stated in response to a similar argument by The Social Security Administration (SSA) that the ―Special Notice Provision‖ in the Social Security Act superseded rights under Section 504, ―[t]hat Congress somehow intended to relieve the agency of its obligations to them under the Rehabilitation Act is far-fetched. Congress intended to improve the notice provided to blind recipients when it passed the special notice provision, not to limit such notice.‖ See Am.
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would be extraordinary to interpret the CVAA as silently repealing a key part of the ADA, requiring full and equal access by public accommodations. As set forth below, there is no indication that Congress intended to limit the reach of the ADA with the CVAA.
1. The ADA prohibits an interpretation that the CVAA repealed the ADA by implication.
The argument that the CVAA, which provides plaintiffs less protection than the ADA in this case, would trump the full and equal access provisions of the ADA is particularly untenable given Congress‘s intent to set the ADA as a floor which could only be trumped by statutes which provide greater protection. As the ADA provides:
Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law…that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.
42 U.S.C. §12201(b); 28 C.F.R. §36.103(c). The inevitable logical conclusion of this language is that the ADA will not be invalidated by a statute that provides lesser protection. In a situation similar to the one here, Fiedler v. American Multi-Cinema, 871 F. Supp. 35, 37-38 (D.D.C. 1994), the court stated:
the ADA itself expressly contemplates that entities to which it applies might be subject to two or more separate sets of obligations with respect to their treatment of handicapped patrons. See 42 U.S.C. § 12201(b)… AMC maintains that the provisions of the ABA and the ADA may potentially conflict with one another, but it has made no showing here that its compliance with the ADA in this case would be inconsistent with any obligation it may also have inherited under the ABA as the lessee of a federal landlord.
Id. Likewise, Netflix has made no showing that complying with the ADA would in any way violate CVAA.
Council of the Blind v. Astrue, 2008 U.S. Dist. LEXIS 86524, *24 (N.D. Cal. 2008); see also Pls.‘ Opp. at 7, n.4.
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Moreover, there is no reason to invalidate either the ADA or CVAA as they are easily harmonized. The ADA‘s legislative history makes it clear that that Congress intended conflicts to be harmonized whenever possible; as it states that:
to the extent that this legislation could be construed to be in conflict with other laws…the Committee expects the Attorney General to exercise coordinating authority to avoid and eliminate such conflict. 22 Plaintiffs‘ argument that the ADA and the CVAA can and should be reconciled reflects Congress‘ intention to preserve the ADA, particularly where it affords greater protection, as it does in this case.23 Netflix‘s attempt to invoke the CVAA to repeal portions of the ADA contravenes the fundamental principles of statutory interpretation requiring that ―when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.‖ J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 143-44 (2001) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). Moreover, ―absent a clearly expressed congressional intention, repeals by implication are not favored. An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.‖ Branch v. Smith, 538 U.S. 254, 273 (2003) (plurality op.) (internal quotation marks and citations omitted); see also Morton, 417 U.S. at 550 (―[T]he only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.‖)
22 House Comm. on Ed. and Labor, HR Rep No. 485, Ed. and Labor Report at 135, 136 (1990). 23 The First Circuit has upheld savings clauses in previously enacted federal statutes, when newly enacted statutes failed to explicitly limit prior acts. See Passamaquoddy Tribe v. State of Maine, 75 F.3d 784, 789-90 (1st Cir. 1996).
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2. The CVAA does not cover the “whole subject” of the ADA and was not intended as a substitute.
Netflix ignores allegations in Plaintiffs‘ complaint about Watch Instantly programming and equal access to its website services that are not addressed in the CVAA, could not be the subject of a CVAA complaint, and for which the ADA is the only remedy. By their express terms, the CVAA and the FCC regulations apply only to programming appearing with captions on television beginning on September 30, 2012. See 47 U.S.C. § 613(c)(2)(A); 47 C.F.R. § 79.4; (Pls.‘ Opp. at 5-6.)24 Because the content covered by the CVAA and the ―Watch Instantly‖ programming are not co-extensive, Netflix is arguing that Plaintiffs have no remedy under either the CVAA or the ADA for Watch Instantly programming that is outside the scope of the CVAA.
The Watch Instantly programming that is beyond the scope of the CVAA includes content that Netflix contracted with studios to bypass distribution on television, and Netflix‘s growing original programming which will show first (and exclusively) on Netflix and may never appear on television, and foreign programming such as ―Lilyhammer,‖ shown exclusively on Netflix in the U.S. See supra n.21. Moreover, Plaintiffs allege that the much touted Netflix recommendation system does not afford equal access to for the deaf and hard of hearing, as it does not equally index captioned content. (FAC ¶19.) These allegations are outside the scope of the CVAA complaint procedures prescribed by the FCC regulations.
Netflix attempts to paint the CVAA as having a much wider scope than it actually has, and thereby demonstrates its substantial misunderstanding of the CVAA. Netflix falsely asserts 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 (April 30, 2012).‖ (Motion at 16.) (emphasis added.) It cannot be contested that the CVAA applies 24 See infra at 14-16.
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only to: ―full length video programming…with closed captions if the programming is published or exhibited on television in the United States with captions on or after‖ dates beginning on September 30, 2012. 47 CFR § 79.4(b) (emphasis added); 47 U.S.C. § 613(c)(2)(A); (Pls.‘ Opp. at 5-6). Netflix rewrites the CVAA when it states that content ―prior to‖ the effective date is subject to the law and wrongly attributes a section of the 1996 Video Accessibility Act to CVAA.25 Netflix is further overbroad in asserting that ―all streaming video programming produced at any time,‖ is subject to the CVAA. (ECF No. 43, Motion at 16, emphasis added.) Netflix misunderstands that the relevant standard for content coverage under the CVAA is not when the content is ―produced,‖ but rather when it is published or exhibited on television. (Motion at 16 contrast with 47 U.S.C. § 613(c)(2)(A) and 47 CFR § 79.4(b).) Equally confounding is Netflix‘s assertion that the ―CVAA also covers programming not necessarily displayed on television—e.g., live programming (RJN Ex. B, Regulations ¶¶ 55–56); near-live programming (id. ¶¶ 57–58); video clips (id. ¶¶ 44–47); foreign programming (id. ¶ 50) and home video programming (id. ¶¶ 42, 60).‖ (ECF No. 43, Motion at 16.) (emphasis added.) This content, like all content within the scope of the CVAA, is covered by the CVAA only after it has been shown on television with captions after the effective date of the regulations.
It is indisputable that the CVAA uses captioned content shown on television as the metric to determine coverage. The ADA requires ―full and equal access‖ to the services and goods of a public accommodation. 42 U.S.C. § 12182(a). This basic distinction in focus and the fact that CVAA does not cover all of the Watch Instantly programming, precludes an argument that the CVAA was meant as a substitute for the ADA.
25 Netflix mistakenly relies on a subpart of a section of the Communications Act that applies to the 1996 amendments requiring captions on television. See 47 U.S.C. 613 (a)–(b).
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The cases cited by Netflix involving statutory repeal are therefore entirely distinguishable because they involve statutes that are directly in conflict. See, Nat. Resources Def. Council, Inc. v. U.S. Envt’l. Prot. Agency, 824 F.2d 1258, 1279 (1st Cir. 1987) (one statute allowed placement of highly dangerous wastes underground and the other required that water contained in the same formations be clean); see also Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33, 35 (2003) (holding that to apply a trademark law without an expiration would fundamentally conflict with the more applicable and specific copyright law, ―which is precisely directed to that subject [and] grants the public the right to copy without attribution once a copyright has expired‖); Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982)(holding that an exception to the ADEA was necessary to fulfill Congress‘s clear intent to employ maximum entry ages as a means towards securing a ―young and vigorous‖ workforce of law enforcement officers.)26
3. The CVAA and the ADA are not in conflict and are easily harmonized.
Demonstrating no attempt to harmonize the statutes, Netflix points to no direct conflict or inconsistency between the CVAA and the ADA. The fact that there is some overlap in the subject matter does not diminish rights under either statute. See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992); Rathbun v. Autozone, Inc., 361 F.3d 62, 68 (1st Cir. 2004) (holding that in the absence of a literal inconsistency, differential treatment of factually identical claims is not a proper ground for invoking the doctrine of repeal by implication); Baumgardner v. County of Cook, 108 F. Supp. 2d 1041, 1043-51 (N.D. Ill. 2000) (permitting disabled employee to assert title I-based ADA claim against county employer, as well as equal protection
26See also Greenless v. Almond, 277 F.3d 601, 604-06, 609 n.8 (1st Cir. 2002) (rejecting plaintiff‘s claim for money from a tobacco settlement based on one provision of the Medicaid Act because it could not reconciled with a later amendment to the Act); Kepner v. United States, 195 U.S. 100, 125 (1904) (interpreting which section of the same act was controlling); Sprietsman v. Mercury Marine, 537 U.S. 51, 67 (2002)(not foreclosing separate causes of actions that overlapped with an area subject to agency regulation).
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claim under § 1983 against individual supervisor, even when same facts formed basis for both claims).
Netflix asserts that there is a conflict because CVAA places primary responsibility on video owners, not distributors, like Netflix, to provide caption files. (Motion at 17.) This does not present a conflict with the ADA, as the availability of captions through the CVAA complements and is not inconsistent with Netflix‘s obligations under the ADA. In fact, the duty put on Video Programming Owners (―VPO‖) by CVAA will only help Netflix comply with its ADA obligations, by changing industry practice and requiring that content televised with captions be submitted with captions to distributors and providers. 47 C.F.R. §79.4.27
Second, Netflix argues that the fact that the CVAA does not have a private right of action strips Plaintiffs of the right to bring suit in federal court under the ADA.28 This argument was thoroughly addressed by both Plaintiffs and DOJ in response to Netflix‘s Motion to Dismiss. (Pls.‘ Opp. at 5-7; DOJ Statement of Interest at 8-11.) Netflix‘s argument fails, not least because, as stated above, the Watch Instantly content to which Plaintiffs seek full and equal access is only partially covered by the CVAA. Additionally, that the ADA and CVAA exist as distinct ―statutory vehicles‖ for some of the same claims, does not render the statutes irreconcilable, but rather evidences the Congressional intent to provide ―separate administrative and judicial paths through which to rectify the same wrongs.‖ Rathbun, 361 F.3d at 68. Even in Zulauf v. Kentucky Educational Television, 28 F. Supp. 2d 1022-23 (E.D. Ky. 1998), cited by Netflix, the court found that a party that files an FCC complaint is not foreclosed from pursuing
27 Netflix also contends, erroneously, that the issue of copyright somehow creates a conflict between its responsibilities under the CVAA and Plaintiffs‘ claim under the ADA. As discussed supra at 9-10, this contention has no merit. 28 Finally, CVAA‘s prohibition on private rights of action is expressly limited to CVAA, and does not apply to the ADA: ―[n]othing in this section shall be construed to authorize any private right of action to enforce any requirement of this section.‖ 47 C.F.R. §79.4(f)(emphasis added).
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relief in federal courts under the ADA. See id. (explaining that ―after reviewing the statues at issue, the Court finds that the VPAA can co-exist with § 504 and the ADA‖). This case is stronger than Zulauf for preserving a private right of action under the ADA, because the CVAA would not address all of the content Plaintiffs seek to access as the VPAA did in Zulauf.
Third, Netflix cites the CVAA ―grace periods‖ and timelines as presenting an irreconcilable conflict with the ADA. These do not present any conflict, however, because in establishing the CVAA timelines, the FCC sought to establish minimum compliance standards for a diverse industry, not to establish the responsibilities of one particular video provider under the ADA.29 Rathbun, 361 F.3d at 68. Moreover, as the DOJ explained, the CVAA timelines would only become relevant at the remedy stage. (DOJ Statement of Interest at 14, n.5.) For example, the timelines may arise in determining whether Netflix is subject to an undue burden to meet more accelerated captioning timelines than those required by the CVAA. The extent to which CVAA timelines may be relevant, however, is unclear at this stage without further discovery. It is not yet known, for example, how much of Netflix‘s content will be subject to the CVAA (and how much excluded, as discussed supra at 11 n.21, 14), or whether the concerns behind the grace periods and timelines established by the FCC would apply to Netflix given the amount of captioning already available or readily available for the movies and television shows now in the Watch Instantly library, or to be acquired or created in the future.
29 The FCC provided a grace period for a limited amount of existing content, because ―no process or method presently exists to enable VPOs to accurately identify such content, and that the task of developing one is likely to be complex.‖ 77 Fed. Reg. 19480, 19488 (March 30, 2012). This broad finding may be less applicable to Netflix, which lauds its captioning efforts. Moreover, the FCC was clear to state ―we note that nothing in the statute precludes the VPO, during this period [before the deadlines], from providing captions to the VPD for the archival content posted in the VPD's library.‖ Id. at 19489.
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Fourth, Netflix states that the exemptions in the CVAA are irreconcilable with the ADA. However, the FCC‘s regulations provide exemptions for content unlikely to apply to Netflix,30 and economic hardship is similarly recognized in both statutes.31
For all of the aforementioned reasons, the CVAA is neither irreconcilable with the ADA nor does it impliedly repeal the ADA because there is no conflict presented by the different statutory vehicles that the legislature decided to provide claimants to ―rectify [some of the] same wrongs‖ Rathbun, 361 F.3d at 68.
4. NAD’s advocacy for a broader interpretation of CVAA in agency proceedings is immaterial.
Advocacy by Plaintiff NAD before the FCC has no bearing on these proceedings. Netflix‘s argument for judicial estoppel ignores the difference between advocating for the broadest possible interpretation of what the scope of a regulation should be during the comment period, and the plain language of the regulation that results. Civil rights membership advocacy organizations like NAD frequently advocate on behalf of their members by providing comments during rulemaking proceedings that interpret the law to provide the broadest access possible. Netflix asks the Court to hold ―Palintiffs to their previous position, put a stop to their ‗intentional self-contradiction,‘ and prevent them from ‗obtaining unfair advantage‘ of the parallel forums.‖32
30 The only specific exemptions in the FCC regulations were for ―video clips‖ and ―outtakes,‖ which were explicitly removed from the definition of ―full length video programming.‖ 47 C.F.R. § 79.4 (a)(2). The FCC declined to apply the categorical exemptions to the CVAA which applied to the Telecommunications Act because ―[p]rogramming that is exempt from the television closed captioning requirements and that never appears on television with captions is not subject to the IP closed captioning requirements, which by definition do not apply to programming that appears on television only without captions.‖ See 77 Fed. Reg. 19480, 19496 (March 30, 2012). 31 CVAA‘s prohibition on private rights of action is expressly limited to claims brought under CVAA, and does not apply to the ADA. 47 C.F.R. §79.4(f). 32 Netflix asserts that NAD is ―plyaing fast and loose with the courts,‖ but provides no support for applying judicial estoppel here. InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003).
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Id. Astoundingly, Netflix seems to ask the Court to hold NAD to the scope of a regulation different than the regulation issued by the FCC.
D. Plaintiffs’ Claim Is Not Moot Finally, for the same reasons articulated above—including that Plaintiffs claim is under the ADA, and is not displaced by the CVAA—this case is not moot merely because the FCC has issued regulations implementing the CVAA. III. CONCLUSION
For all the reasons stated above, Netflix‘s Motion should be denied.

May 15, 2012 By:

Respectfully Submitted,
NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED, AND LEE NETTLES,
______/s/ Arlene Mayerson___ Arlene Mayerson Charlotte Lanvers Shira Wakschlag DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 3075 Adeline Street, Suite 210 Berkeley, CA 94703 Telephone: (510) 644-2555 amayerson@dredf.org clanvers@dredf.org swakschlag@dredf.org
Bill Lann Lee Catha Worthman Joshua Davidson LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607-4048 Telephone: (510) 839-6824 bseligman@lewisfeinberg.com blee@lewisfeinberg.com

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Case 3:11-cv-30168-MAP Document 46 Filed 05/15/12 Page 26 of 26 cworthman@lewisfeinberg.com jdavidson@lewisfeinberg.com Christine M. Netski, BBO #546936 SUGARMAN, ROGERS, BARSHAK & COHEN, P.C. 101 Merrimac Street Boston, MA 02114-4737 Telephone: (617) 227-3030 netski@srbc.com
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WESTERN DIVISION

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED AND LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC., a corporation,
Defendant.

CIVIL ACTION NO. 11-30168-MAP CONSENT DECREE OCTOBER 9, 2012

This action arose out of a complaint filed by plaintiffs National Association of the Deaf, Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles alleging that defendant Netflix, Inc. (“Netflix”) violated Title III of the Americans with Disabilities Act (“ADA”) by failing to provide adequate closed captioning on “Watch Instantly” streaming video programming.
Netflix denies these allegations.
The parties have determined that there is no further need to litigate this action. With the mutual intent of increasing access to Netflix for the deaf and hard of hearing, the parties have jointly agreed to the final disposition of this action in its entirety by Consent Decree, the terms of which are as follows:
1. Jurisdiction and Venue
This Court has jurisdiction over the above-captioned action pursuant to 28 U.S.C. § 1331. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391 because Netflix operates its nationwide streaming business on the Internet in this District and has sufficient contacts to be subject to personal jurisdiction in this district.
2. Defined Terms
The following definitions apply to this Consent Decree:

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a. “Applicable Devices” include devices that Netflix advertises as enabling Ondemand Streaming Content for Netflix streaming subscribers.

b. “Closed Captions” refers to viewer activated equivalent text that is provided as an auxiliary aid for individuals who are deaf or hard of hearing to access the audio component of the programming.
c. “Conforming Captions” means, for English language-based video programming, the visual display of the audio portion of video programming that is (i) consistent with the DCMP-certified captioning house industry standards for completeness, accuracy, timing; (ii) complies with any finalized and applicable closed captioning regulations upon their effective date; and (iii) describe the audio content of programming such as, for example, speaker identification, sound effects, and music description.
d. Subtitles, means for non-English language-based video programming, English subtitles that are consistent with captioning house industry standards.
e. “Pre-existing Captioned Programming” means programming (i) with acceptable Conforming Captions that are available to Netflix by Video Programming Owners or other providers or (ii) for which Netflix is the Video Programming Owner or (iii) that could be available to Netflix through the use of good faith, diligent efforts to acquire such captions from Video Programming Owners or other providers.
f. “Consent Decree” means the terms set forth in this document, and ordered and decreed by the Court in this action.
g. “On-demand Streaming Content” means the streaming Internet protocol-based video programming available through Netflix subscriptions in the United States.
h. The “Parties” refers to the following:
i. Plaintiffs herein, comprising National Association of the Deaf (“NAD”), Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”), and individual Lee Nettles; and
ii. Defendant herein, Netflix, Inc., a corporation.
i. “Video Programming Owner” means any person or entity that either (i) licenses the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol; or (ii) acts as the

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video programming distributor or provider, and also possesses the right to license the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol.
3. Modifications to Netflix’s On-demand Streaming Content
a. Recommendations Interface: Netflix will maintain on its website (www.netflix.com) a list or similar identification of On-demand Streaming Content with Conforming Captions and Subtitles. Netflix will provide an option to either sort or filter the list by title, year, maturity rating, and genre. Netflix’s obligation to maintain this list will expire on October 1, 2014, by which point Conforming Captions or Subtitles will be available on 100% of On-demand Streaming Content, as provided in paragraph 3.b.i.3), below.)
b. Provision of Closed Captions on On-demand Streaming Content: Netflix will provide Conforming Captions on On-demand Streaming Content under the following procedures and timelines:
i. All Programming in Netflix’s Library:
1) Netflix avers that, as of the entry of this Consent Decree, 82% of hours streamed in the U.S. is On-demand Streaming Content with Conforming Captions or Subtitles available.
2) By September 30, 2013, Netflix will ensure that Conforming Captions or English subtitles are available on at least 90% of hours streamed in the U.S. of On-demand Streaming Content.
3) By September 30, 2014, Netflix will ensure that Conforming Captions or Subtitles are available on 100% of its On-demand Streaming Content in the U.S. on that date, as measured by total titles as of that date.
ii. Pre-Existing Captioned Programming. Beginning no later than September 30, 2012, and continuing from that date, all On-demand Streaming Content that is Pre-existing Captioned Programming will be launched with Conforming Captions for On-demand Streaming Content customers.
iii. Other Programming. In order to maintain 100% Conforming Captions or Subtitles, after September 30, 2014, for all On-demand Streaming Content that is not Pre-Existing Captioned Programming, Netflix will provide Conforming Captions for On-demand Streaming Content on Applicable Devices as follows:

CONSENT DECREE IN NAD, ET AL., V. NETFLIX

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1) From September 30, 2014, to September 30, 2015, Netflix will ensure that Conforming Captions are available within an average of 30 days after such content’s On-demand launch.
2) By September 30, 2015, Netflix will ensure that Conforming Captions are available within an average of 15 days after such content’s On-demand launch.
3) By September 30, 2016 and thereafter, Netflix will ensure that Conforming Captions are available no later than 7 days after the launch without captions, and shall strive to reach a point at which Conforming Captions are provided simultaneously with launch at all times.
iv. General Duties with Respect to Timelines and Procedures
1) In meeting all of the above timelines, Netflix shall prioritize provision of Conforming Captions on the most highly-viewed programming (as measured by viewable hours).
2) Netflix will exercise good faith, diligent efforts in meeting all of the above timelines.
c. Subscriber Notification of Problems
i. Subscribers to Netflix On-demand Streaming Content may notify Netflix of problems with Closed Captions, including but not limited to Closed Captions that are missing, incomprehensible, inaccurately synced, or substantively inaccurate. Subscribers may provide such notification through any available customer service methods.
4. Reporting
Beginning 180 days after the entry of this Consent Decree, Netflix shall submit a confidential written report to Plaintiffs’ counsel undersigned herein and the Court (under seal) concerning the implementation of this Consent Decree as follows:
a. No more than quarterly upon Plaintiffs’ written request, Netflix shall describe steps taken to comply with the Consent Decree, including the following:
i. Compliance with the provision of Closed Captions in On-Demand Streaming Content pursuant to the terms of this Decree, particularly under the timelines in paragraph 3.
ii. Factual reporting on any adjustments to the searchability for On-demand Streaming Content containing Conforming Captions.

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b. No more than semi-annually upon Plaintiffs’ written request, Netflix shall provide a summary of any and all problems encountered during attempts to implement the Decree, including:
i. Any failures to provide Closed Captions or Conforming Captions according to the timelines and the reason for such delays or failures.
ii. Redacted copies of complaints, or summaries where copies are not available, about Closed Captions on streaming videos from subscribers and family members, and records of responses to specific complaints maintained by customer service at Netflix.
c. If Netflix fails to meet the percentages set forth in paragraph 3 above, Netflix shall provide on a quarterly basis reports of:
i. Percent of On-demand streaming content measured by viewable hours in 2013 and by titles in 2014 available with Conforming Captions;
ii. Description of issues that prevented Netflix from meeting the percentages set forth in paragraph 3, above.
5. Release and Dismissal
The Parties agree that this Consent Decree applies to all unknown and unanticipated claims, damages, and expenses as of the date of execution of this Agreement, and they waive any rights that they might have under Section 1542 of the California Civil Code or under any similar statute or legal theory.
Upon entry of this Consent Decree, Plaintiffs (as specifically defined herein) hereby release and forever discharge Netflix, and each of its respective past, present, and future employees; its parent, subsidiary, predecessor, and affiliate corporations or other business entities; and its past, present and future shareholders, officers, directors, employees, agents, heirs, personal representatives, attorneys, and assigns from any and all claims, counterclaims, remedies, liabilities, debts, demands, costs, expenses, attorneys’ fees, set-offs, and third-party actions of any kind or nature whatsoever, whether known or unknown, matured or unmatured, foreseen or unforeseen, suspected or unsuspected, accrued or unaccrued which they ever had, now have, or claim to have had, occurring up until the effective date of this Consent Decree against any entities or persons identified in this paragraph.
Plaintiffs acknowledge having been informed by an attorney of the provisions of Section 1542 of the Civil Code of the State of California, and hereby expressly waive and relinquish all rights and benefits that they may have under that Section or similar laws from other states, including Delaware or Massachusetts, which reads:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
In that connection, Plaintiffs realize and acknowledge that they may have sustained injury or losses within the scope of the releases, set forth above, that (or the severity and amount of which) are not now anticipated. Nevertheless, Plaintiffs acknowledge that this Consent Decree has been negotiated and agreed upon in light of this realization and, being fully aware of this situation, they nevertheless intend to release, acquit, and forever discharge the parties released from any and all such unknown claims, including damages which are unknown or unanticipated, relating to the released claims, occurring up until the effective date of this Consent Decree.
6. Training
Effective within 180 days of the entry of this Consent Decree, Netflix will provide customer service representatives with materials, including knowledge base content or similar documentation, regarding handling questions about captioning issues. Netflix agrees to consider Plaintiffs’ proposals with respect to this issue.
7. Attorneys’ Fees and Costs
Netflix will pay $ 755,000 for attorneys’ fees and costs, including fees for administrative monitoring of the decree, within 15 days of entry of judgment.
8. Miscellaneous
a. Enforcement
This Consent Decree shall be in effect for four (4) years from entry by the Court, during which time the Court shall retain jurisdiction over this action for the purpose of ensuring compliance and enforcing the provisions of this Consent Decree.
Netflix will pay NAD $40,000 to assist in monitoring the decree within 15 days of entry of judgment.
The Court may grant declaratory and all other relief necessary to enforce this Consent Decree pursuant to 28 U.S.C. §§ 2201 and 2202.
Failure by any party to seek enforcement of this Consent Decree pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.

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The Parties to this action and no one else shall have standing to seek enforcement of this Consent Decree.

Plaintiffs may seek reasonable attorney fees for any judicial action to enforce this decree.

b. Dispute Resolution; Changing Circumstances

The Parties shall meet and confer in good faith to resolve any dispute relating to the interpretation or implementation of this Consent Decree before bringing the matter to the Court’s attention.

The Parties understand and acknowledge that during the four years during which this Consent Decree will be in effect, changes in circumstances may affect compliance with this Consent Decree, such as, for example and without limitation, an increased or decreased availability of captioned content or developments in technology to assist or improve communications with persons who are deaf. The intent of this Agreement is to ensure equal access to Netflix for the deaf and hard of hearing, and the words of this Agreement shall be construed to fulfill that intent.

If Netflix or Plaintiffs determine that technological changes create opportunities for meeting the needs of deaf persons more efficiently or effectively than is provided for under this Decree, either Party may propose changes to this Decree by presenting written notice to the other. Absent consent of the Parties, no proposed changes will be accepted by the Court unless warranted by the evidence and principles of equity. Both Parties are required to meet and confer in good faith pursuant prior to proposing any changes to the Court.

c. Binding Effect

This Consent Decree is final and binding on the Parties, including their principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, and assigns.

d. No Warranty for Devices That Do Not Support Conforming Captions

The Parties understand that certain devices—aside from Applicable Devices—may not support Conforming Captions. Such players’ inability to support captioning standards provided herein will not be the basis for a claim for breach of this Consent Decree, however, Netflix will use good faith, diligent efforts to ensure that current software and all future software updates for Applicable Devices support caption functionality.

Netflix will maintain a list on its website indicating the Applicable Devices that support Conforming Captions.

e. Integration

This Consent Decree embodies in full the terms of the agreement and understanding between the parties related to the subject matter of this action or this Consent Decree.

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SO ORDERED and DECREED.

ATTORNEYS FOR PLAINTIFFS
By: _________/s/___________________________
Arlene Mayerson, pro hac vice Charlotte Lanvers, pro hac vice Shira Wakschlag, pro hac vice DISABILITY RIGHTS EDUCATION AND DEFENSE FUND 3075 Adeline Street Suite 210 Berkeley, CA 94703 Telephone: (510) 644-2555 amayerson@dredf.org clanvers@dredf.org swakschlag@dredf.org
Bill Lann Lee, pro hac vice Brad Seligman, pro hac vice Catha Worthman, pro hac vice Joshua Davidson, pro hac vice LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607-4048 Telephone: (510) 839-6824 blee@lewisfeinberg.com bseligman@lewisfeinberg.com cworthman@lewisfeinberg.com jdavidson@lewisfeinberg.com
Christine M. Netski SUGARMAN, ROGERS, BARSHAK & COHEN, P.C. 101 Merrimac Street Boston, MA 02114 (617) 227-3030 netski@srbc.com

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la-1187680

NETFLIX, INC., by its counsel,

By:

/s/

MORRISON & FOERSTER LLP David F. McDowell, pro hac vice Jacob M. Harper, pro hac vice 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454
dmcdowell@mofo.com; jacobharper@mofo.com

_________________________ Hon. Michael A. Ponsor United States District Court Judge

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 Case 3:11-cv-30168-MAP Document 88 Filed 10/11/12 Page 1 of 9 Case 3:11-cv-3016.8-MAP Document 85-1 Filed 10/10/12 Page 2 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WESTERN DIVISION

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMP AlRED AND LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC., a corporation,
Defendant.

CIVIL ACTION NO. 11-30168-MAP CONSENT DECREE OCTOBER 9, 2012

This action arose out of a complaint filed by plaintiffs National Association ofthe Deaf, Western Massachusetts Association of the Deaf and Hearing Irt;lpaired, and Lee Nettles alleging that defendant Netflix, Inc. ("Netfiix") violated Title III of the Americans with Disabilities Act ("ADA") by failing to provide adequate closed captioning on "Watch Instantly" streaming video progra:rnming.
Netflix denies these allegations.
The parties have determined that there is no further need to litigate this action. With the mutual intent of increasing access to Netfiix for the deaf and hard of hearing, the parties have jointly agreed to the final disposition of this action in its entirety by Consent Decree, the terms of which are as follows:
I. Jurisdiction and Venue
This Court has jurisdiction over the above-captioned action pursuant to 28 U.S.C. § 1331. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391 because Netflix operates its nationwide streaming business on the Internet in this District and has sufficient contacts to be subject to personal jurisdiction in this district.
2. Dermed Terms
The following definitions apply to this Consent Decree:

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a. "Applicable Devices" include devices that Netflix advertises as enabling Ondemand Streaming Content for Netflix streaming subscribers.

b. "Closed Captions" refers to viewer activated equivalent text that is provided as an auxiliary aid for individuals who are deaf or hard of hearing to access the audio component of the programming.
c. "Conforming Captions" means, for English language-based video programming, the visual display of the audio portion of video programming that is (i) consistent with the DCMP-certified captioning house industry standards for completeness, accuracy, timing; (ii) complies with any finalized and applicable closed captioning regulations upon their effective date; and (iii) describe the audio content of programming such as, for example, speaker identification, sound effects, and music description.
d. Subtitles, means for non-English language-based video programming, English subtitles that are consistent with captioning house industry standards.
e. "Pre-existing Captioned Programming" means programming (i) with acceptable Conforming Captions that are available to Netflix by Video Programming Owners or other providers or (ii) for which Netflix is the Video Programming Owner or (iii) that could be available to Netflix through the use of good faith, diligent efforts to acquire such captions from Video Programming Owners or other providers.
f. "Consent Decree" means the terms set forth in this document, and ordered and decreed by the Court in this action.
g. "On-demand Streaming Content" means the streaming Internet protocol-based video programming available through Netflix subscriptions in the United States.
h. The "Parties" refers to the following:
i. Plaintiffs herein, comprising National Association of the Deaf (HNAD"), Western Massachusetts Association of the Deaf and Hearing Impaired ("WMADfHI"), and individual Lee Nettles; and
ii. Defendant herein, Netflix, Inc., a corporation.
i. "Video Programming Owner" means any person or entity that either (i) licenses the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol; or (ii) acts as the

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video programming distributor or provider, and also possesses the right to license the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol.
3. Modifications to Netflix's On-demand Streaming Content
a. Recommendations Interface: Netflix will maintain on its website (www.nettlix.com) a list or similar identification of On-demand Streaming Content with Conforming Captions and Subtitles. Nettlix will provide an option to either sort or filter the list by title, year, maturity rating, and genre. Nettlix's obligation to maintain this list will expire on October 1,2014, by which point Conforming Captions or Subtitles will be available on 100% of On-demand Streaming Content, as provided in paragraph 3.b.i.3), below.)
b. Provision ofClosed Captions on On-demand Streaming Content: Netflix will provide Conforming Captions on On-demand Streaming Content under the following procedures and timelines:
L All Progr~ming in Netflix's Library:
1) Netflix avers that, as of the entry of this Consent Decree, 82% of hours streamed in the U.S. is On-demand Streaming Content with Conforming Captions or Subtitles available.
2) By September 30, 20l3, Netflix will ensure that Conforming Captions or English subtitles are available on at least 90% of hours streamed in the U.S. of On-demand Streaming Content.
3) By September 30, 2014, Netflix will ensure that Conforming Captions or Subtitles are available on 100% of its On-demand Streaming Content in the U.S. on that date, as measured by total titles as of that date.
ii. Pre-Existing Captioned Programming. Beginning no later than September 30,2012, and continuing from that date, all On-demand Streaming Content that is Pre-existing Captioned Programming will be launched with Conforming Captions for On-dema.'Ild Streaming Content customers.
lll. Other Programming. In order to maintain 100% Conforming Captions or Subtitles, after September 30,2014, for allan-demand Streaming Content that is not Pre-Existing Captioned Programming, Netflix ,\'ill provide Conforming Captions for On-demand Streaming Content on Applicable Devices as follows:-

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1) From September 30,2014, to September 30, 2015, Netflix will ensure that Conforming Captions are available within an average of30 days after such content's On-demand launch.

2) By September 30,2015, Netflix will ensure that Conforming Captions are available within an average of 15 days after such content's On-demand launch.

3) By September 30, 2016 and thereafter, Netflix will ensure that Conforming Captions are available no later than 7 days after the launch without captions, and shall strive to reach a point at which Conforming Captions are provided simultaneously with launch at all times.
iv. General Duties with Respect to Timelines and Procedures
I) In meeting all of the above timelines, Netflix shall prioritize provision of Conforming Captions on the most highly.viewed programming (as measured by viewable hours).
2) Netflix will exercise good faith, diligent efforts in meeting all of the above timelines.
c. Subscriber Notification ofProblems
i. Subscribers to Netflix On-demand Streaming Content may notify Netflix of problems with Closed Captions, including but not limited to Closed Captions that are missing, incomprehensible, inaccurately synced, or substantively inaccurate. Subscribers may provide such notification through any available customer service methods.

4. Reporting
Beginning 180 days after the entry of this Consent Decree, Netflix shall submit a confidential '.vritten report to Plaintiffs' counsel undersigned herein and the Court (under seal) concerning the implementation of this Consent Decree as follows:
a. No more than quarterly upon Plaintiffs' written request, Netflix shall describe steps taken to comply with the Consent Decree, including the following;
1. Compliance with the provision of Closed Captions in On-Demand Streaming Content pursuant to the terms of this Decree, particularly under the timelines in paragraph 3.
ii. Factual reporting on any adjustments to the searchability for On·demand Streaming Content containing Conforming Captions.

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b. No more than semi-annually upon Plaintiffs' written request, Netflix shall provide a summary of any and all problems encountered during attempts to implement the Decree, including:
i. Any failures to provide Closed Captions or Conforming Captions according to the timelines and the reason for such delays or failures.
ii. Redacted copies of complaints, or summaries where copies are not available, about Closed Captions on streaming videos from subscribers and family members, and records of responses to specific complaints maintained by customer service at Netflix.
c. IfNetflix fails to meet the percentages set forth in paragraph 3 above, Netflix shall provide on a quarterly basis reports of:
i. Percent of On-demand streaming content measured by viewable hours in 2013 and by titles in 2014 available with Conforming Captions;
ii. Description of issues that prevented Netflix from meeting the percentages
set forth in paragraph 3, above.
5. Release and Dismissal
The Parties agree that this Consent Decree applies to all unknown and unanticipated claims, damages, and expenses as of the date of execution of this Agreement, and they waive any rights that they might have under Section 1542 of the California Civil Code or under any similar statute or legal theory.
Upon entry of this Consent Decree, Plaintiffs (as specifically defined herein) hereby release and forever discharge Netflix, and each of its respective past, present, and future employees; its parent, subsidiary, predecessor, and affiliate corporations or other business entities; and its past, present and future shareholders, officers, directors, employees, agents, heirs, personal representatives, attorneys, and assigns from any and all claims, counterclaims, remedies, liabilities, debts, demands, costs, expenses, attorneys' fees, set-offs, and third-party actions of any kind or nature whatsoever, whether known or unknown, matured or unmatured, foreseen or unforeseen, suspected or unsuspected, accrued or unaccrued which they ever had, now have, or claim to have had, occurring up until the effective date of this Consent Decree against any entities or persons identified in this paragraph.
Plaintiffs acknowledge having been informed by an attorney of the provisions of Section 1542 of the Civil Code ofthe State of California, and hereby expressly waive and relinquish all rights and benefits that they may have under that Section or similar laws from other states, including Delaware or Massachusetts, which reads:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERlALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
In that connection, Plaintiffs realize and acknowledge that they may have sustained injury or losses within the scope of the releases, set forth above, that (or the severity and amount of which) are not now anticipated. Nevertheless, Plaintiffs acknowledge that this Consent Decree has been negotiated and agreed upon in light of this realization and, being fully aware of this situation, they nevertheless intend to release, acquit, and forever discharge the parties released from any and all such unknown claims, including damages which are unknown or unanticipated, relating to the released claims, occurring up until the effective date of this Consent Decree.
6. Training
Effective within 180 days of the entry of this Consent Decree, Netflix will provide customer service representatives with materials, including knowledge base content or similar documentation, regarding handling questions about captioning issues. Netflix agrees to consider Plaintiffs' proposals with respect to this issue.
7. Attorneys' Fees and Costs
Netflix will pay $ 755;000 for attorneys' fees and costs, including fees for administrative monitoring of the decree, within 15 days of entry ofjudgment.
8. Miscellaneous
a. Enforcement
This Consent Decree shall be in effect for four (4) years from entry by the Court, during which time the Court shall retain jurisdiction over this action for the purpose of ensuring compliance and enforcing the provisions of this Consent Decree.
Netflix will pay NAD $40,000 to assist in monitoring the decree within 15 days of entry ofjudgment.
The Court may grant declaratory and all other relief necessary to enforce this Consent Decree pursuant to 28 U.S.C. §§ 2201 and 2202.
Failure by any party to seek enforcement of this Consent Decree pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.

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The Parties to this action and no one else shall have standing to seek enforcement of this Consent Decree.

Plaintiffs may seek reasonable attorney fees for any judicial action to enforce this decree.

b. Dispute Resolution; Changing Circumstances

The Parties shall meet and confer in good faith to resolve any dispute relating to the interpretation or implementation of this Consent Decree before bringing the matter to the Court's attention.

The Parties understand and acknowledge that during the four years during which this Consent Decree will be in effect, changes in circumstances may affect compliance with this Consent Decree, such as, for example and without limitation, an increased or decreased availability of captioned content or developments in technology to assist or improve communications with persons who are deaf. The intent of this Agreement is to ensure equal access to Netflix for the deaf and hard of hearing, and the words of this Agreement shall be construed to fulfill that intent.

IfNetflix or Plaintiffs determine that technological changes create opportunities for meeting the needs of deaf persons more efficiently or effectively than is provided for under this Decree, either Party may propose changes to this Decree by presenting written notice to the other. Absent consent of the Parties, no proposed changes will be accepted by the Court unless warranted by the evidence and principles of equity. Both Parties are required to meet and confer in good faith pursuant prior to proposing any changes to the Court.

c. Binding Effect

This Consent Decree is final and binding on the Parties, including their principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, and assigns.

d. No Warranty for Devices That Do Not Support Conforming Captions

The Parties understand that certain devices--aside from Applicable Devices-may not support Conforming Captions. Such players' inability to support captioning standards provided herein will not be the basis for a claim for breach ofthis Consent Decree, however, Nctflix will use good faith, diligent efforts to ensure that current software and all future software updates for Applicable Devices support caption functionality.

Netflix will maintain a list on its website indicating the Applicable Devices that support Conforming Captions.

e. Integration

This Consent Decree embodies in full the terms of the agreement and understanding between the parties related to the subject matter of this action or this Consent Decree.

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SO ORDERED and DECREED.

ATTORNEYS FOR PLAINTIFFS
~ /3, /J?~-A..
By:
Arlene Mayerson, pro hac vice Charlotte Lanvers, pro hac vice Shira Wakschlag,pro hac vice DISABILITY RIGHTS EDUCATION AND DEFENSE FUND 3075 Adeline Street Suite 210 Berkeley. CA 94703 Telephone: (510) 644-2555 arnayerson@dredf.org clanvers@dredf.org swakschlag@dredf.org
Bill Lann Lee, pro hac vice Brad Seligman, pro hac vice Catha Worthman,pro hac vice Joshua Davidson, pro hac vice LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607·4048 Telephone: (510) 839·6824 blee@lewisfeinberg.com bseligman@lewisfeinberg.com cworthman@lewisfeinberg.com jdavidson@lewisfeinberg.com
Christine M. Netski SUGARMAN, ROGERS, BARSHAK & COHEN,P.C. 101 Merrimac Street Boston, MA 02114 (617) 227-3030 netski@srbc.com

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la-1187680

MORRISON & FOERSTER LLP David F. McDowell, pro hac vice Jacob M. Harper,pro hac vice 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: 213-892-5200 Facsimile: 213-892-5454
dmcdoweU@mofo.com;
/y~;~ fail/l2Hon. Michael A. Ponsor
United States District Court Judge

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 Case 3:11-cv-30168-MAP Document 1 Filed 06/16/11 Page 1 of 19
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WESTERN DIVISION

NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED AND LEE NETTLES,
Plaintiffs,
v.
NETFLIX, INC., a corporation, Defendant.

CIVIL ACTION NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. The National Association of the Deaf (“NAD”), the Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”), and Lee Nettles bring this action against Defendant Netflix, Inc. (“Netflix”) for its failure to provide equal access to the fastest growing entertainment venue in the country, the Internet. With over 60% of the industry market share, Netflix is the leading provider of streamed television and movies on the Internet through its on-demand service, known as “Watch Instantly.” Plaintiffs allege that Netflix has failed to provide equal access to its Watch Instantly service by refusing to make available closed captioned text for the deaf and hard of hearing—a feature that is necessary for such individuals to understand the audio portion of the streamed video. 2. Netflix’s Watch Instantly streaming titles are available with the click of a mouse or remote control and are played through the Internet on one’s computer or on television through a Netflix-ready device, including game consoles (e.g., the PlayStation®3 System, Wii Console,

Case 3:11-cv-30168-MAP Document 1 Filed 06/16/11 Page 2 of 19
and Xbox 360), Blu-Ray players, and the TiVo Digital Video Recorder (“DVR”). Unlimited access to Netflix’s Watch Instantly service is available to the general public for just $7.99 per month.
3. Netflix’s Watch Instantly site was recently named the “biggest source of Internet traffic in the US” according to the 2011 Sandvine Global Internet Phenomena Report. Sandvine also reports that streaming of video and audio now accounts for nearly 50 percent of peak time traffic in the U.S., with Netflix alone accounting for nearly 30 percent of peak time traffic.
4. Approximately 36 million Americans are deaf or hard of hearing. Many of these individuals require captioning to meaningfully access the audio component of television and video content. Just as buildings without ramps bar people who use wheelchairs, video content without captions excludes deaf and hard of hearing individuals. Closed captioning is a viewer activated system that displays text on, for instance, television programming, or DVD movies. (This is different from open captioning, which is automatically displayed for everyone, such as subtitles in foreign language movies.) With closed captioning, deaf and hard of hearing individuals have the opportunity to enjoy movies and television shows by reading the captioned text. With closed captioning, these individuals can also watch videos together with family and friends, whether or not deaf or hard of hearing.
5. Despite repeated requests by the National Association of the Deaf and members of the deaf and hard of hearing community to Netflix to provide closed captioning on its Watch Instantly content, Netflix has provided captions on only a small portion of the overall titles available on the Watch Instantly service. The advent of streaming offers an opportunity for people to have access to thousands of movies and television shows at any time in their homes. That is why Netflix has over 20 million subscribers with the number growing every day. By not
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providing captioning, Netflix is closing deaf and hard of hearing individuals out of this opportunity, increasing the sense of isolation and stigma that the Americans with Disabilities Act (“ADA”) was meant to redress for individuals with disabilities.
6. The failure of Netflix to provide equal access to millions of deaf and hard of hearing individuals violates the mandate of the ADA to provide “full and equal enjoyment” of a public accommodation’s goods, services, facilities, and privileges, including “place[s] of exhibition and entertainment,” “place[s] of recreation,” “sales or rental establishment[s],” and “service establishments.” 28 C.F.R. § 36.201(a); 42 U.S.C. §12181(7). Because the Internet is a “place of public accommodation,” denial of equal access to the Internet violates the ADA. Remedying that violation is critical to the ADA’s goal of providing people with disabilities the same access that others take for granted. Accordingly, Plaintiffs seek injunctive and declaratory relief to ensure that deaf and hard of hearing individuals have equal access to Netflix’s Watch Instantly subscription packages.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.
8. Venue is proper in this District, pursuant to 28 U.S.C. § 1391, because Defendant operates its nationwide streaming business on the Internet in this District, and has sufficient contacts to be subject to personal jurisdiction in this District. A substantial part of the acts or omissions giving rise to Plaintiffs’ claims has occurred in this District.
9. Assignment to the Western Division is appropriate pursuant to Rule 40.1(D)(1)(c) of the Local Rules of the United States District Court for the District of Massachusetts because the only parties residing in this District reside in the Western Division.
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PARTIES
10. Plaintiff National Association of the Deaf (“NAD”) is the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals. NAD is organized as a non-profit corporation under the laws of the State of Maryland and has its national headquarters in Silver Spring, Maryland. NAD membership includes individuals and associations from all fifty states and Washington, D.C., including its affiliate, the Massachusetts State Association of the Deaf. NAD is also the United States member of the World Federation of the Deaf, which has over 120 national associations of deaf people as members.
11. Plaintiff Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”) is organized as a non-profit organization under the laws of the Commonwealth of Massachusetts and is headquartered in Springfield, Massachusetts. Its mission is to advocate for the rights of and to serve the needs of deaf and hard of hearing individuals in Western Massachusetts, including advocating for increased access to community life through the provision of sign language interpreters and captioning. WMAD/HI provides lists of interpreters to community agencies, has filed complaints about the relay services in Massachusetts, and has advocated for real time captioning on local news.
12. Plaintiff Lee Nettles is a deaf individual and a member of WMAD/HI and NAD. Mr. Nettles is the Director of Deaf and Hard of Hearing Independent Living Services at the Stavros Center for Independent Living in Springfield, Massachusetts. He resides in Westfield, Massachusetts with his wife, Diane. He has never subscribed to Netflix because of its failure to provide full and equal access through closed captioning. Without access to Netflix, Mr. Nettles must resort to purchasing on-demand movies from other services that are more expensive and are available only on a cost per movie basis, rather than paying $7.99 per month for unlimited
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viewing through Watch Instantly. If Netflix provided equal access to its Watch Instantly streaming titles, Mr. Nettles would subscribe to Netflix.
13. Defendant Netflix is a corporation incorporated in Delaware, with its principal place of business in California. As also described above, Netflix operates a nationwide streaming business that offers its subscribers in this District and elsewhere a number of subscription packages, including Watch Instantly, which provides on-demand streaming titles on the Internet. Netflix also operates a DVD rental business that sends rented DVDs of television programming and movies through postal mail.
NETFLIX FAILS TO PROVIDE MEANINGFUL ACCESS TO ITS WATCH INSTANTLY STREAMING TITLES FOR INDIVIDUALS
WHO ARE DEAF AND HARD OF HEARING.
14. Netflix was recently described in a New York Times article as the “only major player in the online-only video subscription business.” According to a recent survey conducted by a leading market research company, as of March 2011, Netflix had 61% of the market share of digital video services.
15. Although it started out as a physical DVD rental company and continues to offer DVDs for rent, Netflix has shifted its focus to online streamed video content through its Watch Instantly service. As Netflix’s CEO, Reed Hastings, was recently quoted in a New York Times blog: “We are now primarily a streaming video company delivering a wide selection of TV shows and films over the Internet.” (Emphasis added.)
16. Netflix offers a subscription plan that allows members to access unlimited Watch Instantly Internet streaming titles for $7.99 per month. The overwhelming majority of the content on Watch Instantly streaming titles is not captioned and is therefore inaccessible to Plaintiffs NAD and WMAD/HI and their members, including Mr. Nettles.
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17. Netflix began offering streamed content on or about January 2008. In June 2009, Neil Hunt, the Chief Product Officer at Netflix, published an entry on the Netflix blog stating that there were technological challenges to providing captions, but that he “expect[ed] to deliver subtitles or captions to Silverlight clients sometime in 2010.”
18. In April 2010, Mr. Hunt reported that Netflix had enabled closed captioning for a limited library of about 100 streaming titles and acknowledged that there were no longer any technological challenges to providing closed captioning on titles it streams.
19. On February 24, 2011, Mr. Hunt announced that Netflix had expanded its Watch Instantly inventory to include 3,500 television and movie titles “representing about 30% of viewing” and that Netflix expected to provide captions for 80% of “viewing coverage” by the end of 2011. In addition, Mr. Hunt provided a link to a log-in page for members providing a list of Netflix’s streaming titles inventory with captions. As of June 14, 2011, this website listed just 1,684 streaming titles available with captions on Watch Instantly. Consumers cannot determine the exact percentage of captioned content based on Netflix’s website. Moreover, those titles that are captioned are hard to locate because captioned films are not identified in the same manner as non-captioned films. One must open each movie icon or comb through Netflix’s list of captioned titles on its “Subtitles/Captions” page to determine if captions are available. Since captions are generally not available, this exercise is time consuming and ineffective.
20. Third-party databases also estimate that Netflix provides captions on just a small portion of its streaming titles. According to the third-party database Instant Watcher, as of June 14, 2011, Netflix’s Watch Instantly offered 509 streaming titles with captions out of a total 12,588 streaming titles, representing less than 5% of its total viewing content. As of June 14, 2011, the Phlixie website estimated that Watch Instantly offers 13,811 captioned individual titles
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(counted as non-foreign movies and episodes of television) out of 45,432 total individual titles, or 30% of its content, not including foreign movies. While Instant Watcher and Phlixie define an individual “title” differently (for example, with Instant Watcher defining a title as an entire television season and Phlixie typically defining a title as a television episode), both databases reflect that Netflix has failed to offer closed captioning on the majority of its streaming content.
21. The deaf and hard of hearing community has expressed its concern about Netflix’s failure to provide closed captioning in a number of forums. A petition on the activist website, Change.org, entitled “Netflix: Make Films Accessible for the Deaf & Hard of Hearing,” demands closed captioning on Netflix’s Watch Instantly service. As of June 14, 2011, this petition had 1,054 signatures. Further, there are various Facebook groups dedicated to this topic, including: “Netflix Watch-Instantly Needs Closed Captions!” (2,708 members as of June 14, 2011) and “Netflix MUST HAVE subtitles on streamed movies” (478 members as of June 14, 2011). The Facebook page “Must Caption Netflix” received 1,334 “likes” (a showing of support) as of June 14, 2011.
22. Several web-logs (“blogs”) have expressed dissatisfaction with Netflix’s failure to provide closed captioning. The “Collaborative for Communication Access via Captioning” stated in April 2011 that “barriers to entertainment [are] not right” and that Netflix’s progress has been “too slow.” On “Deaf World as Eye See It,” Amy Cohen Efron highlighted the absurdity of Netflix’s failure to caption “Through Deaf Eyes,” a PBS documentary that explores 200 years of deaf life in America. On the “Deaf Politics” blog, Allison Polk encouraged other deaf subscribers to abandon Netflix, stating that “We love the entertainment Netflix provides, but not at the expense of our consumer rights.”
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23. NAD has made numerous requests to Netflix that it provide closed captioning on Watch Instantly streamed content.
24. On September 9, 2009, NAD’s former Director of Law and Policy, Rosaline Crawford, requested that Netflix provide a captioned version of the streaming title, The Wizard of Oz, which Netflix intended to make available for free to the general public in commemoration of the 70th anniversary of the movie’s premier. The streaming title aired on October 3, 2009, and Netflix neither responded nor provided captions in time for the free screening.
25. On October 4, 2009, Catherine Fisher, Director of Communications at Netflix responded to NAD by stating: “Netflix frequently communicates its commitment to provide closed captioning for the TV episodes and movies you can watch instantly,” but that “[i]t was not simple for Netflix to instantly stream the Wizard of Oz this past weekend, otherwise we would have done it. Netflix developers continue to work on closed captioning and we will keep the deaf and hard of hearing community apprised of the progress.” Three days later, Ms. Fisher declined NAD’s request to meet.
26. On October 5, 2009, NAD posted a response on its website stating that the process of captioning was both “technically possible and relatively simple to achieve. The television version and the DVD version of the film [the Wizard of Oz] have already been captioned. Captions can be programmed into the Microsoft Silverlight application that Netflix uses for its Watch Instantly feature. Captions have been included in videos, programming, and movies made available for viewing online.”
27. On February 9, 2011, Plaintiffs’ counsel also requested that Netflix provide closed captioning on streaming titles on an equal basis for deaf and hard of hearing individuals, but the demand was ultimately rejected.
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INDIVIDUAL AND ASSOCIATIONAL PLAINTIFFS’ STANDING
28. Paragraphs 1-27 are each re-alleged and incorporated as if fully set forth herein. 29. NAD: NAD has standing to sue as an association on behalf of its deaf and hard of hearing members, as Defendant’s unlawful conduct interferes with NAD members’ rights to have full and equal access to society, a core goal of NAD. First, as described further below, NAD members Alan Gifford, Kelby Brick, and James Johnson would have standing to sue as individuals because they are injured by Netflix’s failure to provide captions on Watch Instantly and would subscribe to Netflix if Watch Instantly provided closed captions. Second, advocating on behalf of its members on this issue is germane to NAD’s mission of advocating for its members’ rights to full and equal access to society. Finally, none of NAD’s members will be required to participate in this action because it is for declaratory and injunctive relief, and does not seek individualized remedies. 30. Alan Gifford is one example of a NAD member who is deaf and is injured by Netflix’s failure to provide captions on Watch Instantly. Mr. Gifford is also president of NAD’s Massachusetts affiliate, MSAD. Mr. Gifford and his wife, who is also deaf, are parents to two hearing children who live at home. Mr. and Ms. Gifford’s two hearing teenage sons asked their parents to subscribe to Netflix Watch Instantly and stated that their friends at school have it. Mr. Gifford and his wife refused to subscribe to Netflix because it does not provide full access. They believe that as parents it is their responsibility to monitor what their hearing children watch on television. Without captions, they lack that ability. Moreover, without captions they cannot watch programming as a family. Netflix’s failure to provide Mr. Gifford with equal access to its Watch Instantly service has caused him harm on the basis of his disability. Mr. Gifford, like many other NAD members, would subscribe to Netflix if Watch Instantly was fully accessible.
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31. Kelby Brick, a deaf individual and a resident of Maryland, is another example of a NAD member who is injured by Netflix’s failure to provide captions on Watch Instantly. Mr. Brick works as Vice President of Regulatory & Strategic Policy at Purple Communications—the nation’s premier communication service tailored to people who are deaf or hard of hearing—and is also a board member of the American Association of People with Disabilities. He has repeatedly criticized Netflix on his Twitter account for its failure to provide closed captioning.
32. After learning from his father, friends, and colleagues that Netflix fails to provide captions on the vast majority of their streaming content, Mr. Brick opted not to subscribe to Netflix. Netflix’s failure to provide equal access to its Watch Instantly service has caused him harm on the basis of his disability. Because he is unable to access Netflix, he has invested in buying a DVR for his home and purchased Slingbox hardware and software which has allowed him to watch movies and shows on television, save them on the DVR, and then stream them to his computer or mobile phone when he is away from home—a time at which he prefers to watch such content. Were Netflix’s Watch Instantly service fully accessible to him, he would not have had to make these investments and would be able to access Netflix’s full Watch Instantly library as hearing subscribers are able to do. In Mr. Brick’s own words: “It is frustrating to be unable to access a popular service in society. Netflix's denial of accessible services for me isolates me from family, friends, and colleagues on conversations regarding the latest social trends and issues. This isolation stigmatizes me and causes me unnecessary frustration. As a result, I am forced to spend additional funds elsewhere just to be able to participate in society as an equal member.” However, if Netflix decided to provide equal access to its Watch Instantly content, Mr. Brick would subscribe.
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33. James Johnson, who currently lives in Maryland, and is deaf, is another example of an NAD member harmed by Netflix’s failure to provide closed captioning on its streaming titles. Mr. Johnson’s wife and child are also deaf. Mr. Johnson and his family have joined Netflix twice based on representations that closed captioning would be made available, but have cancelled their subscriptions both times due to Netflix’s failure to deliver on its promises of closed captioning. The last time Mr. Johnson had a subscription to Netflix was in December 2010. Mr. Johnson would like fully equal access to Netflix’s Watch Instantly titles—a privilege that hearing subscribers take for granted. Mr. Johnson loves watching movies with his family and Netflix’s failure to provide him with equal access to its Watch Instantly service has caused him harm on the basis of his disability. If Netflix were to provide equal access to its Watch Instantly content, Mr. Johnson and many other NAD members would subscribe.
34. Expanding access to Netflix for deaf and hard of hearing individuals is not only germane, but is central, to NAD’s purpose. NAD has strongly advocated for access through captioning of audio and audiovisual material in all distribution methods, including Internet streaming. NAD provides guidance about effective captioning on its website and administers the Described and Captioned Media Program (DCMP) through a cooperative agreement with the U.S. Department of Education. The DCMP promotes equal access to communication and learning through described and captioned educational media. The DCMP provides services designed to support and improve the academic achievement of students who are blind, visually impaired, deaf, hard of hearing, or deaf-blind. The DCMP has a library of over 4,000 titles of described and captioned educational media available for loan to teachers, parents, and students who are deaf, blind, hard of hearing, visually impaired, or deaf-blind. The DCMP also offers a
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clearinghouse of information related to education and accessibility, including captioning, description, laws pertaining to accessibility, and assistive technology.
35. NAD has received many complaints about Netflix directly from deaf and hard of hearing individuals, including from its members, from all over the country. Examples of these comments include:
“I am frustrated with Netflix for not having captioning. I have a hearing grandson who wants to watch these streamed programs, but it means my deaf daughter and deaf husband are discriminated against…not allowed to view the same program, given the lack of captions. . .I hope this is rectified quickly.” “I’m a Netflix subscriber and am VERY disappointed in the selection of closed captioned movies I can download instantly. . .I feel like I have a very small selection as opposed to what they really have in their movie library. I’d like to see more movies closed captioned.” “I support the enforcement of closed captioned films provided by Netflix…It is a multimillion dollar corporation and they should be held to the same standards along with the broadcast television companies. The lack of the closed captions films provided by Netflix is a slap in the deaf communities’ face.” “I am unable to watch Netflix movies, unlike my hearing husband and children who can watch any movies. I cannot watch movies with my children and cannot know what they are listening to or the contents of the movies. . . .” “. . . I’m very upset that Netflix has not provided captions for their ‘watch instantly movies’ that stream online. I would support any legal actions against Netflix.”
These comments are only a few of the many inquiries that NAD received from consumers across the country who have contacted NAD expressing their frustrations that Netflix does not provide access to its Watch Instantly programming. For these individuals, this Netflix feature is more aptly described as: “Watch Later (or Never) When/If Netflix Decides to Caption.”
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36. Defendant’s unlawful conduct interferes with NAD’s members’ rights to “full and equal enjoyment” of the goods, services, facilities, and privileges it provides others. NAD’s members have been injured by Netflix’s failure to provide closed captioning.
37. WMAD/HI: WMAD/HI has standing to sue as an association on behalf of its deaf and hard of hearing members, as its members would have standing to sue as individuals, advocating on this issue is germane to its purpose, and none of its members will be required to participate in this action.
38. WMAD/HI President and member, Diane Nettles, is a deaf individual who has been harmed by Netflix’s failure to provide closed captioning on its streaming titles. Also a member of NAD, Ms. Nettles resides in Westfield, Massachusetts. She is a Data Supervisor at the Connecticut Department of Public Health and is Adjunct Faculty at Elms College, and at Holyoke Community College, where she teaches about deaf culture. Ms. Nettles regularly visits homes in Western Massachusetts in order to teach basic American Sign Language skills to families with young children who are deaf or hard of hearing. She has been harmed by her exclusion from Netflix, as she feels that it is unfair that she has inadequate access to Watch Instantly, which she believes to be the most competitively priced unlimited viewing option for streaming movies and TV programming. Ms. Nettles has never subscribed to Netflix because of its failure to provide closed captioning, but would subscribe if Netflix provided equal access to its Watch Instantly content. If Netflix provided equal access to Watch Instantly, she and many members of WMAD/HI would subscribe.
39. This lawsuit is germane to WMAD/HI’s organizational purpose. One of its purposes is to reduce communication barriers and to ensure that members have equal access to civic and social life. At a recent member meeting, WMAD/HI’s members expressed frustration
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about the inaccessibility of the majority of Watch Instantly streaming titles. Like Lee and Diane Nettles, many of WMAD/HI’s members enjoy watching movies at home and would love to be able to access the convenience and spontaneity that Watch Instantly provides. WMAD/HI’s members would like to be able to watch on-demand streaming titles through Watch Instantly and to have full and equal access to those titles. Like NAD, WMAD/HI has also worked generally to reduce the communication barriers faced by its members. A recent concern has been emergency warnings on TV about the tornado crisis. WMAD/HI has been advocating with local news stations to use real time captioning. WMAD/HI also advocates with health care and other community services to use interpreters and provides lists of interpreters to further this mission.
40. Finally, no WMAD/HI members would be required to participate in this action, which is for declaratory and injunctive relief and will not include individualized remedies.
41. Mr. Nettles: Plaintiff Lee Nettles has standing because he has suffered an injury that this lawsuit will redress. Mr. Nettles has not subscribed to Netflix because Netflix has failed to provide closed captioning on its streaming library. Mr. Nettles must pay more to watch movies and television shows at home with his wife, Diane, and does not have access to the unparalleled large selection of Watch Instantly titles that Netflix provides to hearing individuals. If Netflix were to provide closed captioning on its streaming library, Plaintiff’s injury would be cured and he would subscribe to Netflix.
42. Summary: In sum, there are several ways in which the inaccessibility of Watch Instantly harms deaf and hard of hearing individuals, including the members of NAD and WMAD/HI, and Mr. Nettles. First, members of NAD and WMAD/HI, and Mr. Nettles, are denied full and equal access to the ever-growing Watch Instantly library. While hearing subscribers are able to access the full content of this library, the members of NAD and
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WMAD/HI, and Mr. Nettles, would be unable to do so if they subscribed since most of the titles lack captions.
43. Second, members of NAD and WMAD/HI, and Mr. Nettles, are harmed in being denied full access to the least expensive “Unlimited” subscription packages offered by Netflix, the Watch Instantly-only subscription that is available for $7.99 per month. Since most DVDs are captioned, while most of the Watch Instantly content is not, the members of NAD and WMAD/HI, and Mr. Nettles, who seek unlimited access to Netflix content would essentially be charged a “deaf tax” since they would have to subscribe to the more expensive unlimited plans that include DVD rentals in order to ensure that the content is accessible to them.
44. Third, members of NAD and WMAD/HI, and Mr. Nettles, are harmed in being denied the convenience of Watch Instantly that hearing Netflix subscribers take for granted. Hearing Netflix subscribers with unlimited subscription packages can access Watch Instantly content anytime and anywhere. The Watch Instantly service can be accessed immediately at the user’s whim, whereas physical DVD rentals take several days to arrive by mail. Further, it is possible to view Watch Instantly content “on the go,” using one’s laptop or smart-phone, whereas physical DVDs may be viewed only in places where there is a physical DVD player. As video content increasingly shifts from physical DVDs to online streaming, this on-demand culture is becoming the norm.
45. Last, and most importantly, the ADA was intended to remove barriers and bring people with disabilities into the mainstream. While streaming provides more access to entertainment to the general public, it threatens to be yet another barrier to people who are deaf and hard of hearing. Watching, sharing and talking about movies is a great American pastime. Plaintiffs and their members not only want to see the movies, but, like the rest of society, want to
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share the experience with their families, friends and co-workers. The lack of captions intrudes on this ability in a way that increases the sense of isolation and stigma that the ADA was intended to eliminate.
46. Under the ADA, Plaintiffs do not have to engage in the “futile gesture” of purchasing a subscription when they have actual knowledge that they will have inferior, ineffective access to the services and privileges that Netflix provides subscribers. 42 USC § 12188(a).
COUNT I (VIOLATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT)
47. Paragraphs 1-46 are each re-alleged and incorporated as if fully set forth herein. 48. Plaintiffs Lee Nettles and members of NAD and WMAD/HI are deaf and/or hard of hearing individuals who require captioning to have full and equal access to audio and audiovisual content and are, therefore, “individual[s] with a disability” as defined in 42 U.S.C. § 12102(1)-(2) because each has a hearing impairment that substantially limits one or more of their major life activities, including the major life activity of hearing. 49. Defendant Netflix operates a place of public accommodation as defined by Title III of the ADA, 42 U.S.C § 12181(7) (“place of exhibition and entertainment,” “place of recreation,” “sales or rental establishment,” and “service establishments” ). Netflix, in violation of 42 U.S.C. § 12182(a), has failed to make its Watch Instantly streaming service accessible to individuals who are deaf or hard of hearing by failing to provide closed captioning on the vast majority of its ever-growing Watch Instantly library. 50. Title III of the ADA provides that “places of public accommodation” may not discriminate against people with disabilities. Specifically, it directs that “[n]o individual shall be
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discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns…or operates a place of public accommodation.”
51. Discrimination under Title III includes the denial of an opportunity for the person who is deaf or hard of hearing to participate in programs or services, or providing a service that is not as effective as what is provided to others. 42 U.S.C. § 12182(b)(1)(A)(i-iii).
52. Because Netflix provides captions to only a limited number of its Watch Instantly titles, deaf and hard of hearing individuals do not have “unlimited” access to on-demand entertainment as promised by Netflix. Watch Instantly is a service of Netflix which takes place on the Internet, a place of public accommodation, and violates the ADA Title III mandate to provide “full and equal enjoyment.”
53. Netflix, in violation of the auxiliary aids and services provision of the ADA pursuant to 42 U.S.C. §12182(b)(2)(A)(iii), has failed to make its Watch Instantly streaming service accessible to deaf and hard of hearing individuals.
54. Modifying its policies and providing closed captions as auxiliary aids and services to make Watch Instantly content accessible to deaf and hard of hearing individuals would not fundamentally alter the nature of Netflix’s home entertainment business, nor would it pose an undue burden to this flourishing company.
55. Netflix’s conduct constitutes an ongoing and continuous violation of the law. Netflix has failed to take any prompt and equitable steps to remedy its discriminatory conduct. Unless restrained from doing so, Netflix will continue to so violate the law. Netflix’s conduct has caused and will continue to cause Plaintiffs injury. Plaintiffs have no adequate remedy at
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law for the injuries they suffer and will continue to suffer. Thus, Plaintiffs are entitled to
injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court:
1. Declare that Defendant’s failure to provide closed captions to its Watch Instantly
content violates Title III of the Americans with Disabilities Act;
2. Issue an injunction requiring Netflix to provide closed captions on all Watch
Instantly content, to provide easy identification of captioned content and to affirmatively market
the availability of closed captioning to deaf and hard of hearing individuals;
3. Award costs and reasonable attorneys’ fees; and
4. Award such other and further relief as the Court deems just and proper.
Respectfully submitted, NATIONAL ASSOCIATION OF THE DEAF, WESTERN MASSACHUSETTS ASSOCIATION OF THE DEAF AND HEARING IMPAIRED, AND LEE NETTLES,
By their Attorneys, /s/ Arlene Mayerson ______________________________ Arlene Mayerson, pro hac vice pending Charlotte Lanvers, pro hac vice pending Shira Wakschlag, pro hac vice pending DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. 3075 Adeline Street, Suite 210 Berkeley, CA 94703 Telephone: (510) 644-2555 amayerson@dredf.org clanvers@dredf.org swakschlag@dredf.org
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Dated: June 16, 2011

/s/ Bill Lann Lee ____________________________ Bill Lann Lee, pro hac vice pending Catha Worthman, pro hac vice pending Joshua Davidson, pro hac vice pending LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607-4048 Telephone: (510) 839-6824 blee@lewisfeinberg.com cworthman@lewisfeinberg.com jdavidson@lewisfeinberg.com
/s/ Christine M. Netski _________________________ Christine M. Netski, BBO #546936 SUGARMAN, ROGERS, BARSHAK & COHEN, P.C. 101 Merrimac Street Boston, MA 02114-4737 Telephone: (617) 227-3030 netski@srbc.com

434942
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 Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 1 of 12
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:11−cv−30168−MAP

CLOSED

National Association of the Deaf et al v. Netflix, Inc. Assigned to: Judge Michael A. Ponsor Cause: 42:1218(2) Americans with Disabilities Act
Intervenor Plaintiff

Date Filed: 06/16/2011 Date Terminated: 10/11/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Louis C. Sheptin TERMINATED: 10/03/2011

represented by Louis C. Sheptin 72 17th Street Apt. 417 San Diego, CA 92101 PRO SE

Plaintiff National Association of the Deaf

represented by Arlene B. Mayerson Disability Rights Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703−2578 510−644−2555 Fax: 510−841−8645 Email: amayerson@dredf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee Civil Rights Education and Enforcement Center 2120 University Ave. Berkeley, CA 94704 510−431−8484 Email: blee@creeclaw.org ATTORNEY TO BE NOTICED

Brad Seligman Lewis, Feinberg, Lee, Renaker & Jackson, P.C 476 9th Street Oakland, CA 94607−4048 510−839−6824 Email: bseligman@lewisfeinberg.com ATTORNEY TO BE NOTICED

Catha Worthman Feinberg Jackson Worthman and Wason LLP 2030 Addison Street, Suite 500 Berkeley, CA 94704 510−269−7998 Fax: 510−269−7994 Email: cworthman@lewisfeinberg.com ATTORNEY TO BE NOTICED

Charlotte L. Lanvers U.S. Department of Justice 950 Pennsylvania Ave (NYA)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 2 of 12

Washington, DC 20005 202−305−0706 Email: charlotte.lanvers@usdoj.gov ATTORNEY TO BE NOTICED

Christine M. Netski Sugarman, Rogers, Barshak & Cohen 9th Floor 101 Merrimac Street Boston, MA 02114 617−227−3030 Fax: 617−523−4001 Email: netski@srbc.com ATTORNEY TO BE NOTICED

Joshua Davidson Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, CA 94607−4048 510−839−6824 Fax: 510−839−7839 Email: jdavidson@lewisfeinberg.com ATTORNEY TO BE NOTICED

Shira T. Wakschlag Disability RIghts Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703−2578 510−644−2555 Fax: 510−841−8645 Email: swakschlag@dredf.org ATTORNEY TO BE NOTICED

Plaintiff
Western Massachusetts Association of the Deaf

represented by Arlene B. Mayerson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Brad Seligman (See above for address) ATTORNEY TO BE NOTICED

Catha Worthman (See above for address) ATTORNEY TO BE NOTICED

Charlotte L. Lanvers (See above for address) ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) ATTORNEY TO BE NOTICED

Joshua Davidson (See above for address)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 3 of 12

ATTORNEY TO BE NOTICED

Shira T. Wakschlag (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lee Nettles

represented by Arlene B. Mayerson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED

Brad Seligman (See above for address) ATTORNEY TO BE NOTICED

Catha Worthman (See above for address) ATTORNEY TO BE NOTICED

Charlotte L. Lanvers (See above for address) ATTORNEY TO BE NOTICED

Christine M. Netski (See above for address) ATTORNEY TO BE NOTICED

Joshua Davidson (See above for address) ATTORNEY TO BE NOTICED

Shira T. Wakschlag (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Netflix, Inc.

represented by David McDowell Morrison & Foerster LLP 707 Wilshire Boulevard Suite 6000 Los Angeles, CA 90017 213−892−5200 Email: dmcdowell@mofo.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jacob M. Harper TroyGould PC 1801 Century Park East Suite 1600 Los Angeles, CA 90067 310−553−4441 Email: jharper@troygould.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 4 of 12

Julie G. O'Neill Morrison & Foerster, LLP 2000 Pennsylvania Avenue, N.W. Suite 5500 Washington, DC 20006 202−887−8764 Email: joneill@mofo.com ATTORNEY TO BE NOTICED

Amicus United States Department of Justice

represented by Amanda L. Maisels U.S. Department of Justice 950 Pennsylvania Avneue, NW NYA Washington, DC 30530 202−305−8454 Email: amanda.maisels@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mediator
Kenneth P. Neiman TERMINATED: 10/10/2012

Date Filed 06/16/2011 06/16/2011
06/16/2011
06/16/2011
06/17/2011
06/23/2011 07/07/2011 07/07/2011

# Docket Text
1 COMPLAINT against Netflix, Inc. Filing fee: $ 350, receipt number 0101−3457668 (Fee Status: Filing Fee paid), filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Civil Cover Sheet)(Netski, Christine) (Entered: 06/16/2011)
2 MOTION for Leave to Appear Pro Hac Vice for admission of Arlene B. Mayerson, Charlotte L. Lanvers, Shira T. Wakschlag Filing fee: $ 150, receipt number 0101−3457681 by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Netski, Christine) (Entered: 06/16/2011)
3 MOTION for Leave to Appear Pro Hac Vice for admission of Bill Lann Lee, Catha Worthman, Joshua Davidson Filing fee: $ 150, receipt number 0101−3457695 by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Netski, Christine) (Entered: 06/16/2011)
4 NOTICE of Case Assignment. Magistrate Judge Kenneth P. Neiman assigned to case. Plaintiff's counsel, or defendant's counsel if this case was initiated by the filing of a Notice of Removal, are directed to the attached General Order and Notice regarding Consent to Proceed before the Magistrate Judge. These documents will be mailed to counsel not receiving notice electronically. (Costello2, Helen) (Main Document 4 replaced on 6/17/2011) (Lindsay, Maurice). (Entered: 06/16/2011)
5 Summons Issued as to Netflix, Inc.. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Lindsay, Maurice) (Entered: 06/17/2011)
6 SUMMONS Returned Executed Netflix, Inc. served on 6/17/2011, answer due 7/8/2011. (Netski, Christine) (Entered: 06/23/2011)
8 NOTICE of Appearance by Julie G. O'Neill on behalf of Netflix, Inc. (O'Neill, Julie) (Entered: 07/07/2011)
9 STIPULATION re 1 Complaint, to Extend Time to Respond and Time to Amend by Netflix, Inc.. (O'Neill, Julie) Modified on 7/11/2011 (Lindsay, Maurice). (Entered: 07/07/2011)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 5 of 12

07/07/2011 07/08/2011 07/08/2011 07/11/2011
07/11/2011 07/13/2011
07/21/2011
07/21/2011
07/21/2011 07/21/2011 07/27/2011 07/29/2011 07/29/2011

10 CORPORATE DISCLOSURE STATEMENT by Netflix, Inc.. (O'Neill, Julie) (Entered: 07/07/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered approving 9 Stipulation, as follows: Defendant's time to serve and file its motion to dismiss the complaint shall be extended to and including July 29, 2011; Plaintiffs shall have to and including August 19, 2011, to amend the complaint. So ordered. (Neiman, Kenneth) (Entered: 07/08/2011)
11 Not all parties consented to assignment of case to Magistrate Judge Neiman. Case to be reassigned to Judge Michael A. Ponsor. (Lindsay, Maurice) (Entered: 07/08/2011)
Notice of correction to docket made by Court staff. The stipulation Dkt. No. 9 was modified because the wrong event was used, documents seeking relief should be filed as a motion, the stipulation event does not appear on the courts pending motions report. The correct event should have been motion for extension of time. The entry has been modified and is now a visible pending motion. (Lindsay, Maurice) (Entered: 07/11/2011)
ELECTRONIC NOTICE of Reassignment. Judge Michael A. Ponsor added. Magistrate Judge Kenneth P. Neiman no longer assigned to case. (Rynne, Michelle) (Entered: 07/11/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Kenneth P. Neiman Referred for: Events Only (e). Motions referred: 3 MOTION for Leave to Appear Pro Hac Vice for admission of Bill Lann Lee, Catha Worthman, Joshua Davidson Filing fee: $ 150, receipt number 0101−3457695, 2 MOTION for Leave to Appear Pro Hac Vice for admission of Arlene B. Mayerson, Charlotte L. Lanvers, Shira T. Wakschlag Filing fee: $ 150, receipt number 0101−3457681. (Lindsay, Maurice) Motions referred to Kenneth P. Neiman. (Entered: 07/13/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 2 Motion for Leave to Appear Pro Hac Vice, cc:cl. Added Attorneys Arlene B. Mayerson, Charlotte L. Lanvers, and Shira T. Wakschlag. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Healy, Bethaney) (Entered: 07/21/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 3 Motion for Leave to Appear Pro Hac Vice cc:cl. Added Attorneys Bill Lann Lee, Catha Worthman, and Joshua Davidson. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Healy, Bethaney) (Entered: 07/21/2011)
12 MOTION to Intervene as Plaintiff by Louis C. Sheptin, FILED.(Boyce, Kathy) (Entered: 07/22/2011)
13 MOTION for Leave to Proceed in forma pauperis by Louis C. Sheptin, FILED.(Boyce, Kathy) (Entered: 07/22/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Kenneth P. Neiman Referred for: Events Only (e). Motions referred: 13 MOTION for Leave to Proceed in forma pauperis, 12 MOTION to Intervene. (Stuckenbruck, John) Motions referred to Kenneth P. Neiman. (Entered: 07/27/2011)
14 MOTION to Dismiss or, in the Alternative, Transfer, or in the Alternative, Stay; Memorandum of Points and Authorities by Netflix, Inc.. (Attachments: # 1 Affidavit Declaration of David F. McDowell, # 2 Affidavit Declaration of Neil Hunt)(O'Neill, Julie) (Entered: 07/29/2011)
15 MOTION for Leave to Appear Pro Hac Vice for admission of David F. McDowell and Jacob M. Harper Filing fee: $ 100, receipt number 0101−3521435 by Netflix, Inc.. (Attachments: # 1 Affidavit Declaration of David F. MDowell, # 2 Affidavit Declaration of Jacob M. Harper)(O'Neill, Julie) (Entered: 07/29/2011)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 6 of 12

08/01/2011 08/01/2011 08/05/2011 08/05/2011 08/09/2011 08/11/2011 08/15/2011
08/15/2011
08/25/2011
09/08/2011 09/08/2011
09/12/2011 09/12/2011 09/16/2011

16 Opposition re 13 MOTION for Leave to Proceed in forma pauperis, 12 MOTION to Intervene filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Wakschlag, Shira) (Entered: 08/01/2011)
17 MOTION for Leave to Appear Pro Hac Vice for admission of Brad Seligman Filing fee: $ 50, receipt number 0101−3523609 by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf.(Davidson, Joshua) (Entered: 08/01/2011)
18 MOTION for Leave to Appear Pro Hac Vice for admission of Brad Seligman Filing fee: $ 50, receipt number 0101−3530340 by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Exhibit Amended Certificate of Brad Seligman)(Netski, Christine) (Entered: 08/05/2011)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund re 17 MOTION for Leave to Appear Pro Hac Vice for admission of Brad Seligman Filing fee: $ 50, receipt number 0101−3523609, for $50.00 paid on 08/01/2011, receipt number 0101−3523609. (Adam, Lucien) (Entered: 08/05/2011)
19 AMENDED COMPLAINT For Declaratory and Injunctive Relief against Netflix, Inc., filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf.(Netski, Christine) (Entered: 08/09/2011)
DOCKET SHEET sent to Louis Sheptin (PSSA, 3) (Entered: 08/11/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 15 Motion for Leave to Appear Pro Hac Vice Added David F. McDowell and Jacob M. Harper. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 08/15/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 18 Motion for Leave to Appear Pro Hac Vice Added Brad Seligman. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lindsay, Maurice) (Entered: 08/15/2011)
20 Joint MOTION for Extension of Time to September 12, 2011 to Respond to First Amended Complaint , to Set Briefing Schedule, and to Set Case Management Schedule and Conference (all Stipulated) by Lee Nettles, National Association of the Deaf, Netflix, Inc., Western Massachusetts Association of the Deaf.(O'Neill, Julie) (Entered: 08/25/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 13 Motion for Leave to Proceed in forma pauperis. So ordered. (Neiman, Kenneth) (Entered: 09/08/2011)
21 Magistrate Judge Kenneth P. Neiman: REPORT AND RECOMMENDATIONS re 12 MOTION to Intervene filed by Louis C. Sheptin ISSUED, cc:cl. Recommendation: "For the reasons stated, the court recommends that Sheptin's motion to intervene be DENIED." Objections to R&R due by 9/22/2011(Healy, Bethaney) (Entered: 09/08/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 20 Joint Motion for Extension of Time to September 12, 2011, So ordered. (Neiman, Kenneth) (Entered: 09/12/2011)
22 MOTION to Dismiss First Amended Complaint by Netflix, Inc.. (Attachments: # 1 Affidavit Declaration of David McDowell, # 2 Affidavit Declaration of Neil Hunt)(McDowell, David) (Entered: 09/12/2011)
Magistrate Judge Kenneth P. Neiman: FURTHER ELECTRONIC ORDER entered with regard to 20 Joint Motion for Extension of Time, as follows. Plaintiffs' opposition to 22 Defendant's Motion to Dismiss shall be filed by October 3, 2011, to which Defendant may reply by October 11, 2011. The hearing on the motion, together with a hearing on 14 Motion to Dismiss or, in the alternative, Transfer or, in the alternative,

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 7 of 12

10/03/2011 10/03/2011
10/03/2011 10/05/2011 10/05/2011 10/07/2011 10/11/2011 10/12/2011
10/12/2011 10/12/2011 10/27/2011 11/01/2011 11/08/2011
11/10/2011

Stay, shall be held on November 8, 2011, at 3:00 p.m. in Hampden Courtroom before Senior Judge Michael A. Ponsor. So ordered. (Neiman, Kenneth) (Entered: 09/16/2011)
31 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Upon de novo review the 21 Report and Recommendation is hereby adopted, without opposition, and the 12 motion to intervene is DENIED. (Lindsay, Maurice) (Lindsay, Maurice). (Entered: 10/03/2011)
23 Opposition re 22 MOTION to Dismiss First Amended Complaint filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Affidavit ISO Opposition to Netflix MTD, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E)(Worthman, Catha) (Entered: 10/03/2011)
24 Opposition re 22 MOTION to Dismiss First Amended Complaint − Statement of Interest filed by United States Department of Justice. (Jacobs, Gretchen) (Entered: 10/03/2011)
25 Notice of Errata by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf to 23 Opposition to Motion, to Dismiss or Transfer. (Worthman, Catha) (Entered: 10/05/2011)
26 Opposition re 22 MOTION to Dismiss First Amended Complaint (CORRECTED) filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Worthman, Catha) (Entered: 10/05/2011)
27 JOINT SUBMISSION pursuant to Local Rule 16.1 and Fed. R. Civ. P. 26(f) by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf.(Worthman, Catha) (Entered: 10/07/2011)
28 REPLY to Response to 22 MOTION to Dismiss First Amended Complaint filed by Netflix, Inc.. (McDowell, David) (Entered: 10/11/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 22 MOTION to Dismiss First Amended Complaint, 14 MOTION to Dismiss or, in the Alternative, Transfer, or in the Alternative, Stay; Memorandum of Points and Authorities : Motion Hearing set for 11/8/2011 03:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 10/12/2011)
29 Notice of Errata by Netflix, Inc. to 28 Reply to Response to Motion to Dismiss First Amended Complaint. (McDowell, David) (Entered: 10/12/2011)
30 REPLY to Response to 22 MOTION to Dismiss First Amended Complaint First Amended Complaint (CORRECTED) filed by Netflix, Inc.. (McDowell, David) (Entered: 10/12/2011)
Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 10/27/2011)
Notice of correction to docket made by Court staff. The endorsement entered on 10/3/11 has been modified to add the courts memorandum and order which is now (Dkt. No. 31) (Lindsay, Maurice) (Entered: 11/01/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 11/8/2011 re 14 MOTION to Dismiss or, in the Alternative, Transfer, or in the Alternative, Stay; Memorandum of Points and Authorities filed by Netflix, Inc., 22 MOTION to Dismiss First Amended Complaint filed by Netflix, Inc. Interpreter sworn. Court grants stay in case until 2/6/12 but denies motion to dismiss. Order to issue. Answer to be filed in 30 days. Status report due on 2/6/12 re:FCC and proposal for schedule of case. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Mayerson, Netski, Jacobs, Worthman, McDowell) (Pelegano, Theresa) (Entered: 11/08/2011)
32 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Defendants Motion to Dismiss (Dkt. No. 22 ) is hereby DENIED, except to the extent that this matter is stayed until February 6, 2012. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 11/10/2011)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 8 of 12

11/10/2011 11/14/2011
11/14/2011
12/08/2011 02/06/2012 02/07/2012 03/07/2012 03/08/2012 03/15/2012 03/16/2012 04/03/2012 04/18/2012 04/19/2012 04/25/2012
04/26/2012

Judge Michael A. Ponsor: ENDORSED ORDER entered denying 14 Motion to Dismiss or, in the Alternative, Transfer, or in the Alternative, Stay; Memorandum of Points and Authorities. DENIED as moot. (Lindsay, Maurice) (Entered: 11/10/2011)
33 Transcript of Motion Hearing held on November 8, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 12/5/2011. Redacted Transcript Deadline set for 12/15/2011. Release of Transcript Restriction set for 2/13/2012. (Scalfani, Deborah) (Entered: 11/14/2011)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 11/14/2011)
34 ANSWER to 19 Amended Complaint by Netflix, Inc..(McDowell, David) (Entered: 12/08/2011)
35 Joint MOTION to Stay (to Extend Stay); Proposed Order Thereon by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Exhibit A (FCC Rule & Order))(Worthman, Catha) (Entered: 02/06/2012)
Judge Michael A. Ponsor: ENDORSED ORDER entered granting 35 Motion to Extend Stay pending settlement discussions. ALLOWED to March 7, 2012. (Lindsay, Maurice) (Entered: 02/07/2012)
36 Joint MOTION for Extension of Time to 03/14/2012 to keep stay in place by Netflix, Inc..(Harper, Jacob) (Entered: 03/07/2012)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 36 Motion for Extension of Time on Stay of Case through 3/14/12. (Pelegano, Theresa) (Entered: 03/08/2012)
37 STATUS REPORT (Joint) by Netflix, Inc.. (Attachments: # 1 Exhibit A: FCC Final Report and Order re Captioning Regulations)(McDowell, David) (Entered: 03/15/2012)
38 NOTICE by Netflix, Inc. re 37 Status Report Attaching Exhibit B to Joint Status Report −− 11/8/11 Transcript (Attachments: # 1 Exhibit B to Joint Status Report −− 11/8/11 Transcript)(Harper, Jacob) (Entered: 03/16/2012)
39 NOTICE of Scheduling Conference Scheduling Conference set for 4/25/2012 12:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 04/03/2012)
40 JOINT STATEMENT re scheduling conference . (Attachments: # 1 Exhibit A: Non−substantive Erratum to Captioning Regulations, # 2 Exhibit B: Fed. Reg. CVAA Captioning Regulations, # 3 Exhibit C: Public Notice re Effective Date of CVAA Captioning Regulations)(McDowell, David) (Entered: 04/18/2012)
41 First CERTIFICATION pursuant to Local Rule 16.1 (D)(3) CERTIFICATE OF PLAINTIFFS. (Lanvers, Charlotte) (Entered: 04/19/2012)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Scheduling Conference held on 4/25/2012. Colloquy re; statas of case. Parties may request mediation. Court sets schedule. Motion hearing set for 6/11/12. PTC scheduled for 2/14/13. Trial scheduled for 4/1/13. Order to issue. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Netski, Worthman, McDowell) (Pelegano, Theresa) (Entered: 04/25/2012)
42 Judge Michael A. Ponsor: ORDER entered. SCHEDULING ORDER: As follows; Dfts motion for judgment on the pleadings due 5/1/12, Counsel will appear before this court on 6/11/12 at 10:00 a.m. In addition to argument on any pending motions, the court will hear the parties report regarding mediation, Expert depositions will be completed by 11/16/12, Counsel will appear again for argument on any motion for summary judgment on 2/14/13 at 2:00 p.m., Trial will commence on 4/1/2013 at 10:00 AM in

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 9 of 12

05/01/2012 05/01/2012
05/15/2012 05/15/2012 05/17/2012 05/29/2012 06/05/2012 06/08/2012
06/08/2012 06/08/2012 06/11/2012
06/19/2012 06/19/2012 06/20/2012

Hampden Courtroom before Judge Michael A. Ponsor. See the attached scheduling order for complete details. (Lindsay, Maurice) (Entered: 04/26/2012)
43 MOTION for Judgment on the Pleadings by Netflix, Inc..(McDowell, David) (Entered: 05/01/2012)
44 Request for Judicial Notice in Support of Motion for Judgment on the Pleadings by Netflix, Inc.. (Attachments: # 1 Exhibit A: CVAA Text, # 2 Exhibit B: FCC Final Report and Order re Captioning Regulations, # 3 Exhibit C: Senate Report re CVAA, # 4 Exhibit D: House Report re CVAA, # 5 Exhibit E: Advisory Committee Roster, # 6 Exhibit F: FCC NPRM re Captioning Regulations, # 7 Exhibit G: NAD Public Comments re Captioning Regulations, # 8 Exhibit H: NAD Public Reply Comments re Captioning Regulations, # 9 Exhibit I: Google Public Comments re Captioning Regulations, # 10 Exhibit J: FCC Notice re 4/30/12 Effective Date of Captioning Regulations)(McDowell, David) (Entered: 05/01/2012)
45 MEMORANDUM in Opposition re 43 MOTION for Judgment on the Pleadings Statement of Interest filed by United States Department of Justice. (Maisels, Amanda) (Entered: 05/15/2012)
46 Opposition re 43 MOTION for Judgment on the Pleadings filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Mayerson, Arlene) (Entered: 05/15/2012)
ELECTRONIC NOTICE Setting Hearing on Motion 43 MOTION for Judgment on the Pleadings : Motion Hearing set for 6/11/2012 10:00 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 05/17/2012)
47 REPLY to Response to 43 MOTION for Judgment on the Pleadings filed by Netflix, Inc.. (McDowell, David) (Entered: 05/29/2012)
48 SUR−REPLY to Motion re 43 MOTION for Judgment on the Pleadings filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Mayerson, Arlene) (Entered: 06/05/2012)
49 MOTION to Compel Production of Documents by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Affidavit Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(Davidson, Joshua) (Entered: 06/08/2012)
50 MOTION for Leave to File Excess Pages by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf.(Davidson, Joshua) (Entered: 06/08/2012)
51 MEMORANDUM in Support re 49 MOTION to Compel Production of Documents filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Davidson, Joshua) (Entered: 06/08/2012)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 6/11/2012 re 43 MOTION for Judgment on the Pleadings filed by Netflix, Inc. Argument completed. Order to issue. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Newhouse, Pumphrey) (Pelegano, Theresa) (Entered: 06/11/2012)
52 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: for the reasons stated in the memo and order. Defendants Motion for Judgment on the Pleadings (Dkt. No. 43 ) is hereby DENIED. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 06/19/2012)
53 Judge Michael A. Ponsor: ORDER entered. REFERRING CASE to Alternative Dispute Resolution.(Lindsay, Maurice) (Entered: 06/19/2012)
ELECTRONIC NOTICE of assignment to ADR Provider. Magistrate Judge Kenneth P. Neiman appointed. The Court will contact counsel with regard to scheduling. (Franklin, Yvonne) (Entered: 06/20/2012)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 10 of 12

06/21/2012 06/25/2012 06/25/2012
06/28/2012
06/28/2012
07/03/2012 07/03/2012 07/03/2012 07/03/2012 07/10/2012
07/16/2012
07/24/2012
07/27/2012 07/27/2012 07/27/2012 07/30/2012 08/02/2012

54 TRANSCRIPT ORDER FORM by Netflix, Inc. for proceedings held on June 11, 2012 Judge Judge Michael A. Ponsor.. (McDowell, David) (Entered: 06/21/2012)
55 Letter/e−mail from Jennifer Woodside re; case. (Pelegano, Theresa) (Entered: 06/25/2012)
56 TRANSCRIPT ORDER FORM and Certificate of Service by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf for proceedings held on 6/11/2011 Judge Judge Michael A. Ponsor.. (Lanvers, Charlotte) (Entered: 06/25/2012)
57 Transcript of Motion Hearing held on June 11, 2012, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 7/19/2012. Redacted Transcript Deadline set for 7/30/2012. Release of Transcript Restriction set for 9/26/2012. (Scalfani, Deborah) (Entered: 06/28/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/28/2012)
58 Opposition re 49 MOTION to Compel Production of Documents filed by Netflix, Inc.. (Harper, Jacob) (Entered: 07/03/2012)
59 DECLARATION re 58 Opposition to Motion to Compel AND in Support of Netflix's Motion for Protective Order by Netflix, Inc.. (Harper, Jacob) (Entered: 07/03/2012)
60 DECLARATION re 58 Opposition to Motion to Compel AND in Support of Motion for Protective Order (Kevin McEntee) by Netflix, Inc.. (Harper, Jacob) (Entered: 07/03/2012)
61 MOTION for Leave to File Excess Pages in Support of Netflix's Opposition to Motion to Compel by Netflix, Inc..(Harper, Jacob) (Entered: 07/03/2012)
62 MOTION for Protective Order by Netflix, Inc.. (Attachments: # 1 Affidavit McEntee Declaration, # 2 Affidavit Harper Declaration, # 3 Affidavit Harper Supplemental Declaration, # 4 Text of Proposed Order Proposed Protective Order)(Harper, Jacob) (Entered: 07/10/2012)
63 Magistrate Judge Kenneth P. Neiman. ORDER with respect to Mediation ENTERED, cc:cl. Mediation set for 8/3/2012 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman; confidential mediation memoranda shall be submitted by no later than 7/31/12. See Order for details.(Healy, Bethaney) (Main Document 63 replaced on 7/17/2012) (Healy, Bethaney). (Entered: 07/16/2012)
64 MEMORANDUM in Opposition re 62 MOTION for Protective Order filed by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Affidavit of Catha Worthman ISO of Opposition to Motion for Protective Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Worthman, Catha) (Entered: 07/24/2012)
Remark − Courtesy copies of document #'s 58, 59, 60, 61 & 62 received and placed in the file. (Finn, Mary) (Entered: 07/27/2012)
65 MOTION to Amend 52 Order on Motion for Judgment on the Pleadings, to Certify for Interlocutory Review by Netflix, Inc..(Harper, Jacob) (Entered: 07/27/2012)
66 Request for Judicial Notice in Support of Motion to Amend June 19 Order re MJOP to Certify for Interlocutory Review by Netflix, Inc.. (Harper, Jacob) (Entered: 07/27/2012)
Remark − Courtesy copies of documents 65 and 66 received and placed in the file. (Finn, Mary) (Entered: 07/30/2012)
67 Opposition re 65 MOTION to Amend 52 Order on Motion for Judgment on the Pleadings, to Certify for Interlocutory Review filed by Lee Nettles, National

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 11 of 12

08/03/2012
08/06/2012
08/09/2012 08/24/2012
09/07/2012
09/11/2012
09/12/2012 09/13/2012
10/01/2012 10/02/2012 10/04/2012 10/04/2012 10/10/2012 10/10/2012 10/11/2012

Association of the Deaf, Western Massachusetts Association of the Deaf. (Worthman, Catha) (Entered: 08/02/2012)
69 ELECTRONIC NOTICE of ADR Conference ISSUED. Follow−up Telephone Conference set for 8/24/2012 at 1:00 PM before Magistrate Judge Kenneth P. Neiman. The clerk will contact counsel with call in instructions. (Healy, Bethaney) (Entered: 08/03/2012)
70 Judge Michael A. Ponsor: ENDORSED ORDER entered denying 65 Motion to Amend 52 Order on Motion for Judgment on the Pleadings, to Certify for Interlocutory Review. DENIED. The case does not present the exceptional circumstances justifying an interlocutory appeal. (Lindsay, Maurice) (Entered: 08/06/2012)
71 STIPULATION Between Plaintiffs and Netflix to Stay Discovery Pending Settlement Negotiations by Netflix, Inc.. (Harper, Jacob) (Entered: 08/09/2012)
73 ELECTRONIC NOTICE of ADR Conference ISSUED. Telephone Conference set for 9/5/2012 at 1:00 PM (EST) in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. The clerk will contact counsel with call in instrictuions. In the meantime, the parties have agreed that the court ought not take any action on the outstanding motions. (Healy, Bethaney) (Entered: 08/24/2012)
75 ELECTRONIC NOTICE of ADR Conference ISSUED. Telephone Conference set for 9/7/2012 at 1:00 PM before Magistrate Judge Kenneth P. Neiman. The parties shall follow call−in instructions previously provided by the clerk's office. (Healy, Bethaney) (Entered: 09/07/2012)
77 ELECTRONIC NOTICE of ADR Conference ISSUED, cc:cl. Telephone Conference set for 9/14/2012 01:00 PM before Magistrate Judge Kenneth P. Neiman. (Counsel shall use the same call in instructions previously provided by the court.) Follow up (in person) Mediation set for 10/1/2012 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 09/11/2012)
78 Joint MOTION to Stay , to Extend Discovery Deadlines, and to Vacate Summary Judgment and Trial Dates by Netflix, Inc..(Harper, Jacob) (Entered: 09/12/2012)
79 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 78 Joint Motion to Stay. ALLOWED. The case is stayed until Oct. 2, 2012. Counsel will submit and report and, if appropriate, a proposed schedule by Oct. 2, 2012. So ordered. (Lindsay, Maurice) (Entered: 09/13/2012)
81 ELECTRONIC NOTICE of ADR Conference: Telephone Conference set for 10/9/2012 at 1:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman.(Healy, Bethaney) (Entered: 10/01/2012)
82 Joint MOTION to Stay re 79 Order on Motion to Stay, by Netflix, Inc..(Harper, Jacob) (Entered: 10/02/2012)
83 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 82 Motion to Stay. ALLOWED. See Order. (Lindsay, Maurice) (Entered: 10/04/2012)
84 Judge Michael A. Ponsor: ORDER entered. Discovery is stayed an additional week, until and including 10/10/12. See the attached order for details. (Lindsay, Maurice) (Entered: 10/04/2012)
85 Joint MOTION to Approve Consent Judgment by Lee Nettles, National Association of the Deaf, Western Massachusetts Association of the Deaf. (Attachments: # 1 Exhibit A)(Netski, Christine) (Entered: 10/10/2012)
86 REPORT of Alternative Dispute Resolution Provider (Healy, Bethaney) (Entered: 10/10/2012)
87 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 85 Motion to Approve Consent Judgment. ALLOWED. The court has this day approved the consent Decree attached as Exhibit A. The clerk will now docket the Decree separately. This case may be administratively closed, with the court retaining jurisdiction for four years. So ordered. (Lindsay, Maurice) (Entered: 10/11/2012)

Case: 3:11-cv-30168 As of: 02/19/2019 05:57 PM EST 12 of 12

10/11/2012 04/19/2013

88 Judge Michael A. Ponsor: ORDER entered. CONSENT DECREE., See the attached Decree for details. (Lindsay, Maurice) (Entered: 10/11/2012)
89 NOTICE of Change of Address or Firm Name by Jacob M. Harper (Harper, Jacob) (Entered: 04/19/2013)

 
 FOR IMMEDIATE RELEASE
October 10, 2012
Contacts:
Shane Feldman netflixlawsuit@nad.org
Arlene Mayerson, Directing Attorney, Disability Rights Education & Defense Fund 510-644-2555 amayerson@dredf.org
Jonathan Friedland, Netflix Inc. 310-734-2958 jofriedland@netflix.com
Netflix and National Association of the Deaf (NAD) Reach Historic Agreement to Provide 100% Closed Captions in On-Demand Streaming
Content Within Two Years
(October 10, 2012) Netflix Inc. and the National Association of the Deaf (NAD), a nonprofit organization, have submitted a joint Consent Decree to a federal court in Springfield, Mass., ensuring closed captions in 100% of Netflix streaming content within two years.
NAD, along with the Western Massachusetts Association of the Deaf and HearingImpaired (WMAD/HI) and Lee Nettles, a deaf Massachusetts resident, brought suit against Netflix seeking that commitment in 2010.
The agreement indicates the parties’ mutual intent to increase access for people who are deaf and hard of hearing to movies and television streamed on the Internet. Netflix began its closed-captioning program in 2010. Netflix has increased captioning for 90% of the hours viewed but is now committed to focusing on covering all titles by captioning 100% of all content by 2014. Captions can be displayed on a majority of the more than 1,000 devices on which the service is available.
Howard A. Rosenblum, CEO of NAD, the lead plaintiff in this case, said, “The National Association of the Deaf congratulates Netflix for committing to 100% captioning, and is thrilled to announce that 48 million deaf and hard of hearing people will be able to fully access Netflix’s Watch Instantly services.”
“We have worked consistently to make the broadest possible selection of titles available to Netflix members who are deaf or hard of hearing and are far and away the industry leader in doing so,” said Neil Hunt, Netflix Chief Product Officer. “We are pleased to

have reached this agreement and hope it serves as a benchmark for other providers of streaming video entertainment.”
Netflix will also improve its interface so that subscribers will be better able to identify content that has been captioned in the period until 100% captioning is achieved. The parties have asked the court to maintain jurisdiction of the case for four years to assure compliance with the terms of the Decree, and plaintiffs will monitor Netflix’s progress.
“We’re so pleased that Netflix worked jointly with plaintiffs to devise a reasonable and workable way to achieve 100% captioning. The Decree is a model for the streaming entertainment industry,” said Arlene Mayerson, Disability Rights Education & Defense Fund's Directing Attorney. “DREDF hopes that this is the beginning of opening the Internet for deaf and hard of hearing individuals in streamed entertainment, education, government benefits, and more.”
The Consent Decree is available here: http://dredf.org/captioning/netflix-consentdecree-10-10-12.pdf regarding National Association of the Deaf, et al. v. Netflix, Case No. 3:11-cv-30168.
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.
Netflix is represented by David F. McDowell and Jacob M. Harper of Morrison & Foerster LLP.
# # #
National Association of the Deaf (NAD)
The National Association of the Deaf (NAD) is the nation's premier civil rights organization of, by and for deaf and hard of hearing individuals in the United States of America. NAD represents the estimated 48 million Americans who are deaf or hard of hearing and is based in Silver Spring, MD. www.nad.org
Western Massachusetts Association of the Deaf and Hearing Impaired (WMAD).
WMAD is an advocacy membership organization of individuals who are deaf and hearing impaired in western Massachusetts.
Disability Rights Education & Defense Fund (DREDF)
Founded in 1979 by people with disabilities and parents of children with disabilities, the Disability Rights Education & Defense Fund (DREDF) is a national law and policy center based in Berkeley, CA and is dedicated to protecting and advancing the civil rights of people with disabilities. www.dredf.org.

Lewis, Feinberg, Lee, Renaker & Jackson P.C.
Lewis, Feinberg, Lee, Renaker & Jackson P.C. is a national law firm based in Oakland, CA that represents plaintiffs in civil rights, employment discrimination, ERISA employee benefit and pension litigation, and wage and hour Overtime litigation. www.lewisfeinberg.com
Sugarman, Rogers, Barshak & Cohen, P.C.
SRBC is a Boston-based civil litigation firm with 26 lawyers and more than 80 years of success in managing complex cases for local, regional and national clients. www.srbc.com
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