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

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 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

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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