I bet you didn’t know that in some circumstances title II and §504 may contain an exhaustion requirement. The reason I’m guessing you didn’t know is that until I saw this case, Sierra v. School Board of Broward County, 2017 U.S. Dist. LEXIS 62498 (S.D. Fla. April 20, 2017), it hadn’t occurred to me either. This week’s blog entry discusses this question in the entry is divided into the following categories: facts; court’s reasoning; City of Rancho Palos Verdes v. Abrams; application of City of Rancho Palos Verdes v. Abrams; and takeaways. The reader is free to focus on any or all of the categories.
Plaintiff alleged that the school board denied him, a deaf individual, access to their archived video for streaming on demand and live streaming of their school board meetings on the basis of his disability. Plaintiff, like myself, neither understands nor uses sign language. Therefore, he requires the use of auxiliary aids and services, such as closed captioning, in order to participate in and receive the benefit of the school board’s online videos. The school board provides a video streaming service through its online portal so that any person can watch its meetings in real time and listen to and participate in those legislative decision-making activities. However, as a result of plaintiff’s disability, he can’t observe and participate in those meetings because the streaming services do not provide any auxiliary aids or services for people with hearing disabilities who do not use sign language. In particular, the streaming service does not offer closed captioning. Plaintiff had the same problem with the school board’s social networking sites on Facebook and on Twitter. The meetings plaintiff wanted to participate in are also aired later via web streaming and on the district’s internal broadcast system. That same day, the meetings are also broadcast on a tape delay on WBEC-TV at 4 PM. The following morning, the televised broadcast is then archived online and made available for viewing on the school board’s website. The defendant defended on the grounds that the Telecommunications Act mandates that a plaintiff alleging disability discrimination in this situation must first go through the Federal Communications Commission (FCC), before being able to file a claim of disability discrimination under title II of the ADA or under §504 the Rehabilitation Act.
In holding that exhausting internal remedies with the FCC was required before filing suit under title II of the ADA or §504 of the Rehabilitation Act, the court reasoned as follows:
- In 1996, Congress passed the Telecommunications Act in an effort to secure better access the video programming for the hearing impaired (it bears noting that in the disability rights community, the more sensitive term would be hard of hearing and not hearing impaired). That legislation directed the FCC to require closed captioning for video programming broadcast on television.
- In 2010, Congress enacted the CVAA (21st Century Communications and Video Accessibility Act of 2010), which amended the Telecommunications Act and directed the FCC to modify it regulations so as to impose closed captioning requirement for certain video programming available over the Internet.
- Effective April 30, 2012, the FCC implemented new regulations imposing closed captioning requirements on all nonexempt full-length video programming delivered using Internet protocol if the programming is published or exhibited on television in the United States with captions. Further, those regulations set forth provisions talking about how any complaints regarding same need to be filed with the Federal Communications Commission, what needs to be in that complaint, the process that occurs once that complaint is filed, and a statement that the FCC is vested with the exclusive jurisdiction with respect to any such complaints. 47 C.F.R. §79.4.
- The CVAA is Congress’s most recent and specific pronouncement regarding the duties of broadcasters to caption their programming.
- Mandating that a plaintiff first file his claim with the FCC accomplishes Congress’s goal of allowing the FCC, which has expertise in this area, the opportunity to address the extent to which a broadcaster must provide close captioning.
- By enacting the legislation, Congress called upon the FCC’s expertise and vested the FCC with exclusive jurisdiction to address any complaints involving a video programmer’s compliance with the CVAA’s administrative remedy for pursuing any claim under the ADA or §505 (§504 remedies provision), of the Rehabilitation Act.
- The existence of an administrative complaint procedure under the CVAA is entirely consistent with a private right of action under the ADA for the same wrong.
- All the court is doing is delaying plaintiff’s prosecution of the claims until such time as the plaintiff has exhausted his administrative remedies under the CVAA thereby providing the FTC an opportunity to address those complaints. Once that process is completed, plaintiff is free to refile claims as necessary. In this way, the CVAA’s intended purpose is accomplished while preserving plaintiff’s rights under the ADA and §505 the Rehabilitation Act.
Whether Sierra holds up is going to come down to how the courts interpret United States Supreme Court case of City of Rancho Palos Verdes v. Abrams. In that case, a person decided to erect all kinds of communication towers on his land and drew considerable grief from the city for doing so. In fact, things got so bad that he filed a §1983 cause of action against the City. It went all the way to the United States Supreme Court. That decision is critical to understanding whether the case we are discussing today will hold up. In particular, the United States Supreme Court said the following in holding that a §1983 action would not fly.
- The critical question is whether Congress intended for the remedies in the Telecommunications Act of 1996 to coexist with an alternative remedy in a §1983 action.
- Decisions saying that §1983 action are unavailable to remedy violations of federal statutory rights focus on the existence of a more restrictive remedy provided in the violated statute itself (emphasis added).
- In all of the cases where the United States Supreme Court has held that §1983 is available for a violation of federal statute, it has emphasized that the statute (emphasis added), at issue did not provide a private judicial remedy or even, in many cases, a private administrative remedy for the rights violated.
- Where §1983 remedies were held not to be available, the statute at issue themselves (emphasis added), provided for private judicial remedies thereby evidencing congressional intent to supplant §1983.
- The ordinary inference that the remedy provided in the statute is exclusive can be overcome by express or implicit textual indication that the remedy complements rather than supplants §1983.
- In a concurrence by Justice Breyer and Justice Stevens, they noted the following:
- The statute’s text, structure, and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 with respect to the facts before it, operates as a comprehensive and exclusive remedial scheme. The statute’s structure appears fundamentally incompatible with the private remedy offered by §1983.
- Since 1871, §1983 has stood as an independent safeguard against the deprivations of federal constitutional and statutory rights.
- Only in an exceptional case, involving unusually comprehensive and exclusive statutory scheme, will the Supreme Court be likely to conclude that a given statute impliedly forecloses a §1983 remedy.
- While the heavy burden was met in Sierra, there will be many instances where §1983 will be available even though Congress had not explicitly so provided in the text of the statute in question.
- The majority opinion incorrectly assumes that legislative history of the statute is totally irrelevant. That assumption is contrary to nearly every case the Supreme Court had decided in this area of the law, all of which surveyed or at least acknowledged, the available legislative history or lack thereof.
Application of City of Rancho Palos Verdes v. Abrams
A strong argument can be created that applying City of Rancho Palos Verdes v. Abrams majority and concurring opinions leads to the conclusion that the CVAA does not set up a situation whereby exhaustion of FCC proceedings is required. The reasoning goes as follows:
- 47 U.S.C. §151, which establishes the Federal Communications Commission, doesn’t even have within it coverage of persons with disabilities. On the other hand, as we know, the ADA and the Rehabilitation Act are comprehensive schemes designed to redress disability discrimination throughout society and allow for integration of persons with disabilities into all aspects of society.
- 47 U.S.C. §152 says that the Act applies to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio originating or being received within the United States. This statute was last amended in 1993 just when the Internet was beginning to take off and certainly could not be intended to apply to the Sierra situation.
- 47 U.S.C. §613 mandates that the Federal Communications Commission come up with regulations dealing with close captioning and goes into elaborate detail as to the scope of those regulations. 47 U.S.C. §618 is the enforcement provisions. However, nothing in either statute talks about how the FCC has exclusive jurisdiction on such matters. The exclusive jurisdiction language, as far as I can tell after going through the Act, comes from the regulations at 47 C.F.R. §79.4(f) and not from the statute itself.
- Since the exclusive jurisdiction language does not come from the statute itself, Chevron deference is not in order.
- Since the exclusive jurisdiction language does not come from the statute itself, the CVAA per City of Rancho Palos Verdes does not require that claims under the ADA and §505 be exhausted through the FCC first.
- I definitely look for Sierra, or cases decided like it, to go all the way to the United States Supreme Court. The next stop is the 11th Circuit, assuming an appeal. It will be interesting to see if a Circuit Court split develops. Cases like this have not reached the Circuit Court level yet.
- A key person on this question, whenever it gets to the United States Supreme Court is going to be Justice Gorsuch. He is on record, as discussed here, as not being a fan of Chevron Also, as discussed in that blog entry, he is extremely literal about statutes. So, if the current makeup of the court stays the same on this particular issue, you may very well get a decision looking like 5-4 or considering the vibe from Fry and Endrew, 6-3 or even 7-2. Of course, this case is a long way from the United States Supreme Court and the makeup of the court may change before then. Keep in mind, plaintiffs with disabilities have fared very well at the United States Supreme Court in nonemployment matters, including prevailing three times this term.
- For public entities not desirous of having their meetings streamed with close captioned, if they can get their meetings onto TV and get a court to buy off on Sierra, they can force a plaintiff to go through the FCC administrative process thereby delaying any ADA or Rehabilitation Act enforcement. Of course, that is a separate question from why a public entity would want to take this approach as dealing with the FCC would have to be a very expensive proposition.