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Countering Defenses to Website Accessibility Motion to Dismiss

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I know I promised that I would not have a blog this week. However, with the bat mitzvah a week from today, I am going out of my mind. Believe it or not, blogging relaxes me. Also, my wife and daughter are out shopping for the bat mitzvah leaving me alone with my miniature poodle. So, why not. But before moving on to the blog entry, it is that time of the year again to request your vote for the ABA Top 100. I have been fortunate to be an ABA top 100 legal blawg for the last three years and would love to be part of it again. This year your vote is even more important because what the ABA has done is extend the top 100 to law firm sites, podcasts, etc. as well as blogs. That means there may be a lot less blogs in the top 100 than there used to be. So, if you are inclined and enjoy this blog, please fill out the form and vote here.

Today’s case, a link to that case can be found courtesy of Epstein Becker Green’s Lexology entry here, came to my attention from Seyfarth Shaw’s blog, one of the blogs in my blogroll, and represents a contrary view to the cases that I discussed in this blog entry. As is usual, the blog entry is divided into categories and they are: facts; court’s reasoning due process; court’s reasoning primary jurisdiction; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The facts are pretty straightforward. A legally blind individual Jaws user could not fully access the Hobby lobby website. As a result; he could not use the find a store location feature, and the gift card page, in addition to being confusing, did not allow him to purchase products from the website as the checkout feature did not work properly. Hobby Lobby moved to dismiss on due process grounds and on the primary jurisdiction doctrine. The court did not buy Hobby Lobby’s arguments and reasoned as follows:

II

Court’s Reasoning Due Process

  1. Hobby Lobby’s physical stores are a place of public accommodation.
  2. The parties agreed that for purposes of the motion to dismiss that the website was a service, privilege, or advantage of the physical stores and therefore subject to the ADA.
  3. In a footnote, the court notes that Hobby Lobby at summary judgment intends to argue that the website operates independently from its stores and so therefore, is not subject to the ADA.
  4. The lack of specific regulation does not eliminate Hobby Lobby’s obligation to comply with the ADA. While regulations amplify and augment statutory requirements, they do not displace statutory mandates.
  5. DOJ has consistently over the years, including as far back as 1996, has affirmed that title III applies to websites meeting the definition of a public accommodation.
  6. DOJ has also filed numerous amicus briefs and statements of interest in many lawsuits reiterating its position that the ADA applies to websites meeting the definition of a public accommodation and has initiated enforcement action to force compliance.
  7. Back in 2010, DOJ issued an advanced notice of proposed rulemaking on website accessibility and noted in that document it was of the view the ADA’s broad and expansive nondiscrimination mandate extended to goods and services provided by covered entities on websites over the Internet.
  8. The notice of proposed rulemaking specifically mentioned web content accessibility guidelines.
  9. Title III’s prohibition on discrimination on the basis of disability and its requirement to provide appropriate auxiliary aids and services, including where necessary to ensure effective communication, imposes an affirmative obligation on places meeting the definition of a public accommodation to ensure individuals with disabilities have as full and equal enjoyment of their websites as individuals without disabilities.
  10. The prohibition against discrimination in the enjoyment of goods, services, facilities or privileges means that whatever goods or services a place of public accommodation provides, it cannot discriminate on the basis of disability in providing enjoyment of the goods and services.
  11. Due process argument doesn’t work because it has been clear for some time that a place of public accommodation must have its website accessible to persons with disabilities and persons with disabilities must have equal enjoyment of the website as individuals without disabilities.
  12. Hobby Lobby is free to decide how to comply with the ADA since the DOJ has not imposed any specific compliance means. Just because there is flexibility in figuring out how to comply with the statute, that is an entirely different question from whether compliance is mandated in the first place. Accordingly, for due process purposes, the notice is whether Hobby Lobby knew it had to comply with the ADA and not whether it knows how it must comply with the ADA.
  13. Hobby Lobby arguments in some ways are premature as they go to the crafting of a remedy. When it come to the remedies point in time, the court will consider carefully what level of accessibility applies to the website.

IIB

Primary Jurisdiction

  1. Plaintiff is not asking the court to fashion a remedy adopting a specific technical rule, but rather is asking the court to require Hobby Lobby to comply with DOJ’s directive that individuals with disabilities have equal enjoyment of its website as individuals without disabilities.
  2. Neither of the requirements for the primary jurisdiction doctrine are present in this case (the promotion of uniformity in determining administrative questions, and the need for highly specialized expertise).
  3. The potential for delay while the federal administrative rulemaking process proceeds is great. That is, since the DOJ issued the notice of proposed rulemaking in 2010, it hasn’t taken any further action towards promulgating specific accessibility requirements and no reason exists to believe DOJ will issue rules anytime in the near future.

IV

Takeaways:

  1. Within the same District of California, you have cases going both ways.
  2. On the plaintiff’s side, this case makes an important distinction that due process notice is not the how to comply but whether to comply at all. Clearly, there was plenty of notice that compliance was required.
  3. The case references Target and so presumably falls within the gateway theory of when a website must be accessible to persons with disabilities. Gorecki, the case that is the subject of this blog entry, doesn’t explicitly say how it goes about deciding whether the website is a place of public accommodation. The gateway theory does mean that even if the website is independent of its stores, it still may nevertheless be acting as a gateway to the stores. It will be interesting to see what the court does with this on summary judgment.
  4. The court was simply not willing to give a get out of jail free card to the defendant just because DOJ has not issued any regulations on the subject and is not likely to issue any regulations soon.
  5. 42 U.S.C. §12182(b)(1)(A)(ii) states, “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” The effect of this clause is to bring into question the general requirements that title II and title III require meaningful access. Meaningful access might mean something less than being equal to what is afforded to individuals without disabilities. This court is essentially saying that this provision of the ADA and the proposed regulations implementing this statutory provision trumps meaningful access.
  6. On the defense side, if you get hit with a website accessibility lawsuit, your approach would be: 1) argue that the website is not a place of public accommodation; 2) argue due process; and 3) argue primary jurisdiction doctrine. On the plaintiff’s side you want to use this case to argue that due process and the primary jurisdiction doctrine are not applicable.
  7. With respect to whether the website is a place of public accommodation, that, as we have discussed in numerous blog entries, will depend upon the jurisdiction you are in. As mentioned in those entries, such as here, the trend is very much the gateway theory.
  8. If you are on the defense side, don’t go assuming that the Supreme Court is going to take a narrow reading and necessarily find in your favor. The Supreme Court frequently decides for persons with disabilities, especially outside of the employment context. In fact, in the last term, the Supreme Court came down with three decisions favoring the person with a disability, all of them we discussed in this blog.
  9. One of the things about people with disabilities, is that we silo. That is, for example, a deaf person is frequently most comfortable associating with other deaf/Deaf individuals and the same goes for other disabilities. As a result, a person of one kind of disability doesn’t always think about the other kinds of disabilities. So, when I read effective communication in this case, I was a bit startled because I don’t instinctively think of communication that way. That said, certainly a blind person using Jaws is trying to communicate with a place of business when doing so. Arguably, that is something that would fall within the effective communication rule, which we have discussed numerous times in this blog, such as here.
  10. Justice Gorsuch is very skeptical of the power of the administrative state and would be very unlikely to be receptive to the primary jurisdiction doctrine. He might be more receptive to due process claims, but the key there will be seeing whether he buys off on the distinction that notice pertains to compliance at all and not the how of compliance. I know he has been off to a very conservative start, but a reading of his jurisprudence over time suggests that he will not always be that way depending upon the nature of the case before him.

Have a great Fourth of July everyone and don’t forget to vote for this blog for the ABA 100.

Did You Know that an Exhaustion Requirement for Title II and §504 Exists? Me Neither…

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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.

I

Facts

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.

II

Court’s Reasoning

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:

  1. 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.
  2. 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.
  3. 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.
  4. The CVAA is Congress’s most recent and specific pronouncement regarding the duties of broadcasters to caption their programming.
  5. 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.
  6. 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.
  7. 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.
  8. 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.

III

City of Rancho Palos Verdes v. Abrams

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.

  1. 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.
  2. 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).
  3. 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.
  4. 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.
  5. 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.

 

  1. In a concurrence by Justice Breyer and Justice Stevens, they noted the following:

 

  1. 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.
  2. Since 1871, §1983 has stood as an independent safeguard against the deprivations of federal constitutional and statutory rights.
  3. 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.
  4. 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.
  5. 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.

 

IV

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:

  1. 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.
  2. 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.
  3. 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.
  4. Since the exclusive jurisdiction language does not come from the statute itself, Chevron deference is not in order.
  5. 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.

V

Takeaways:

  1. 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.
  2. 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.
  3. 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.