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

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, “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 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 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  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.