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Judge says captioning suit can proceed

A Federal District judge in Massachusetts has tossed out a request by Netflix to dismiss a lawsuit brought by the National Association of the Deaf alleging the OTT entertainment provider discriminates against the deaf and hard of hearing by not including closed captions on streamed content.

U.S. District Court Judge Michael A. Ponsor denied the motion to dismiss June 19, finding that it was not rational to conclude, as Netflix argued, that the Americans with Disabilities Act (ADA) does not apply to Web-only businesses but rather only to physical structures.

The lawsuit filed last year alleges Netflix violates the ADA by not providing closed captioning on most programming streamed over the Internet as part of its "Watch Instantly" service, and thus denies equal access to the deaf and hard of hearing.

"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 …" the ruling said.

The judge also did not accept the Netflix argument that it doesn't own the copyrights to the programming it streams and thus can't be forced to provide closed captions, nor did he accept the argument that the 21st Century Communications and Video Accessibility Act "carves out" Internet-streamed video programming from the ADA.

"By recognizing that websites 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," said Arlene Mayerson, the Disability Rights Education and Defense Fund's directing attorney. "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."

Netflix is quoted in the Los Angeles Times as saying it has always been committed to providing content that is accessible to the deaf and hard of hearing and that more than 80 percent of the hours streamed are movies and TV shows with closed captions.

The company also called FCC regulations the "most comprehensive and appropriate guidance to businesses on captioning."