Yes, Netflix, the ADA does apply to you

Never has a legal decision involving broadband affected me more than this one, provoking me to, for the first time, make this a personal blog. Yesterday, a federal judge in Massachusetts ruled that the Americans with Disabilities Act applies to website-only businesses – a ruling aimed squarely at Netflix and its competitors – and denied Netflix’s request for summary judgment.

Because of hearing loss, I've only been able to watch about 20 percent of Netflix streaming video. That's because they've either refused or dragged feet on closed captioning, taking refuge in the fact that the ADA doesn't specify the Internet.

I pay the same monthly fees as everyone else who chooses the same Netflix plan, for DVDs and an roughly equivalent amount for unlimited streaming. Yet, while most DVDs include subtitling (for movies) or closed captioning for (broadcast or cable TV shows), little of that makes it onto the streamed video.

Although transferring subtitling and streaming does involve additional work, a friend of mine who works in this field assured me that it would cost Netflix, with its 20 million subscribers, far less than one percent of their revenues – and would ensure a greater rate of renewal. As well, of course, as being the right thing to do.

But, what has Netflix done since getting into the streaming business? Fought attempts by disability rights groups and the government to impose the same standards that apply to TV and DVDs. Netflix contended that the ADA only applied physical places, a disputation that only an overpaid lawyer could devise. In this case, the Netflix attorneys were seeking dismissal of a case brought The Disability Rights Education and Defense Fund and the Western Massachusetts Association of the Deaf and Hearing-Impaired to require closed captioning.

Fortunately, Judge Michael Ponsor of federal district court was having none of it. First, he wrote quite reasonably that Netflix’s assertion was contrary to the spirit of the ADA. He said that because the ADA doesn’t mention the Internet “does not include web-based services as a specific example of a public accommodation is irrelevant” since, of course, there was no Internet in 1990. And, he said, “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.”

The advocates for the deaf and hard of hearing that have dogged Netflix today won a solid victory. The fund’s attorney, Arlene Mayerson, stated:

“By recognizing that web-sites are covered by the ADA, the court has ensured that the ADA stays relevant as much of our society moves from Main Street to the Internet.  Netflix's argument that the neighborhood video store is covered by the ADA, but it, with its over 20 million subscribers, is not, was soundly rejected by the Court.”

I’m sure Netflix will continue to oppose the lawsuit, and might seek relief from an increasingly reactionary Congress. But the funny thing about the ADA was that it was signed by Republican George H.W. Bush and has generally been supported by every Congress. Maybe that’s because federal legislators are, not to put too fine a point on it, old, and many of them have as much trouble hearing Netflix as I do.

So, maybe soon we’ll all be able to get subtitling and closed captioning on demand. That’s not too much to ask from one of America’s most successful companies, is it?

Landmark Precedent in NAD vs. Netflix (NAD news release, Jun. 19, 2012)