There’s A Place For Us
The National Association of the Deaf recently won the first round in a case against Netflix. The NAD contends that the Netflix video streaming Web site “Watch Instantly” violates the Americans with Disabilities Act because the service provides close captioning for only a small number of its offerings. The case presents an interesting, although seemingly simple question and that is, “what’s a place”? The ADA prohibits discrimination in “places of public accommodation.” And according to Netflix, the statute lists a number of examples, each one of which involves activity outside the home. Given that Congress enacted the ADA in 1990, it’s not too surprising that the list didn’t include Web streaming services, but the court in this case found it too limiting to conclude that Congress intended to limit the concept of “public accommodations” strictly to services provided outside the home. The court supported its conclusion by looking at the word “of” in the phrase “places of public accommodation.” According to the court, had Congress said “at” or “in” places of public accommodation, it may have reached a different conclusion. But because of that preposition, an entity that provides services in a consumer’s home may qualify as a place of public accommodation. The court decided this issue on a motion for judgment on the pleadings. This is a motion that a party files early in the proceedings to knock the case out almost before it gets started. So Netflix may still win the case, based on other defenses. But anyone who provides an online service should take note – these days “place” may not mean what you think.