FCC Accessible Communications Regulations – Legal Update Webinar Q & A

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In Tuesday’s webinar, Maria Browne from Davis Wright Tremaine outlined the requirements of the 21st Century Communications & Video Accessibility Act (CVAA), the Communications Act, and their impact on accessibility. This post contains Maria’s responses to audience questions posed during and after the presentation.

Webinar Q & A

Q: Does the Netflix lawsuit apply only to Netflix-created content or to all content Netflix hosts/shows?

//MB: Plaintiffs alleged that Netflix violated Title III of the ADA by failing to provide equal access to its on-demand video streaming website, “Watch Instantly.”  Plaintiffs alleged that Netflix provided closed captioning for only a small percentage of the titles available on its website, and that other features of the website were not accessible to deaf and hearing impaired individuals, such as personalized film recommendations, since captioned films were not categorized in the same manner as other films.

Netflix filed a motion for judgment on the pleadings, arguing, among other points, that Plaintiffs failed to allege the existence of a “place of public accommodation” as required to state a claim under the ADA and that their ADA claim was precluded by the Twenty-First  Century Communications and Video Accessibility Act of 2010 (“CVAA”).

Relying on Carparts, the U.S. District Court for the District of Massachusetts rejected Netflix’s argument that Plaintiffs failed to allege the existence of a “place of public accommodation.”  The District Court reiterated the First Circuit’s determination that “places of public accommodation” are not limited to physical structures,” and stated that the First Circuit’s reasoning in Carparts “applies with equal force to services purchased over the Internet, such as video programming offered through the Watch Instantly web site.”

The District Court also rejected Netflix’s argument that Plaintiffs’ ADA claim was precluded by the CVAA.  Netflix argued Plaintiffs’ ADA claim was precluded by the more recent CVAA, enacted in 2010, and the Federal Communications Commission’s (“FCC”) implementing regulations.  Specifically, Netflix asserted that an irreconcilable conflict existed between the two statutes (and the FCC regulations) regarding the captioning of streaming video, and thus, “the court should read the CVAA as removing the captioning of video programming from the scope of the ADA.” The District Court disagreed, stating that ADA compliance is not necessarily inconsistent with compliance with the CVAA, even though, as Netflix argued, the FCC’s regulations impose responsibility for captioning on content owners, not distributors like Netflix, and establish compliance deadlines largely in the future, as opposed to requiring immediate captioning, as Plaintiffs’ suit sought. The District Court also rejected Netflix’s arguments that the ADA and CVAA/FCC regulations conflict because the CVAA prohibits private rights of action and provides allowances for economically burdensome captioning and de minimis failures to caption, which ADA injunctive relief might not necessarily provide.

Q: Can you address – if an institution has an exemption – does it also apply when they live stream?  Who is responsible for the IP stream, an institution or the manufacturer?

//MB: The exemptions apply in the television context. If the programming is delivered on television with captions, even if the captions were not required because the entity was exempt, the programming must be delivered over IP with captions. The IP captioning obligations fall on the program owner and the distributor – not the equipment manufacturer.

Q: Does the FCC have enforcement authority over Section 508 Refresh? Or, must they first adopt the new rules before they can begin enforcing them?

//MB: The FCC has enforcement over Section 255 of the Communications Act, which was addressed by the Access Board’s refresh order. It does not have enforcement over Section 508 of the Rehabilitation Act.

Q: Are Section 255 rules applicable only to manufacturers or service providers of telecom, Internet Access (IA) and equipment? Same question for Title I and II, CVAA? Response: Yes. Is an institution does have an exemption does it also apply when they live stream? Response. Yes; see above. Follow-up: who is responsible for the accessibility of the live stream – the institution (e.g., could be university, etc.) OR the manufacturer, service provider or content author?

//MB: See above. (1) Program owners – i.e., any person or entity that either licensee the video programming to a video distributor or acts as the video programming distro and has the right to license the programming to a distributor, and (2) Distributors – i.e., any person or entity that makes available directly to the end user video programming through a distribution method that used Internet Protocol.

Q: Does the FCC now have enforcement authority over Section 508 Refresh requirements, or do they first have to adopt the new requirements through the CFR R&O process before they can legally enforcement enforce them?

//MB: FCC only has authority over those aspects of the order relating to Section 255 and it would likely need to take some action to adopt the Access Board’s findings.

Missed the webinar? No problem! You can access the webinar recording, slides, and CART transcript at http://info.ssbbartgroup.com/FCC-Legal-Update-Webinar_Resources.html.

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