Jeremy Horelick of ADA Site Compliance called my attention to a recently filed lawsuit making a novel ADA claim. In Panarra v. HTC Corporation and HTC America, Inc., Case No. 6:20-cv-06991 (W.D.N.Y.) the plaintiff claims that because he is deaf he is denied equal access to the virtual reality games and experiences offered by defendants’ website, https://www.viveport.com/infinity. This, he claims, violates the Americans with Disabilities Act and New York law.² The lawsuit can be seen as just the latest in a line of cases stretching back at least to Arizona ex rel. Goddard v. Harkins Amuse. Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), a case arguing that a chain of movie theaters was obliged to provide closed captioning for the movies it showed and even to Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580, 582 (6th Cir. 1995), a case claiming that the NFL’s “blackout rule” discriminated against the deaf in violation of the ADA because it meant that for many games the only broadcast available was a radio broadcast. That chain of cases certainly includes Natl. Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) since at the center of Panarra’s argument is the fact that since Netflix provides captions for its content it must be possible for HTC to do so as well. More
My colleague William Goren recently shared with me some correspondence with an internet service for attorneys that was offering a free webinar. Bill is deaf and was inquiring about captioning for the webinar. The response was that the service through which the webinar was offered didn’t offer captioning. I had looked at the same issue myself a few years ago in an effort to make my own webinars more accessible. What I found was that to add captions to a prerecorded webinar is relatively easy and inexpensive, but that live captioning was both technically difficult and expensive. Bill’s inquiry made me spend some additional time looking at whether captioning is something the ADA should require (assuming, of course, that the ADA even applies to websites and services provided on the internet).
The first place to look for web accessibility standards is, of course, the Web Content Accessibility Guidelines. They have no legal standing, but they have been used as the de facto standard by the Department of Justice and at least one district court. They are also incorporated into the regulations for Section 508 of the Rehabilitation Act, which requires accessibility for federal government electronic communications, including websites.
WCAG 2.0 success criterion 1.2.4 requires captioning for live audio content in synchronized media – meaning live video presentations in which someone talks. This is a success level AA criterion, so it falls within the requirements imposed by Section 508 and the many settlements negotiated by DOJ and others. However, WCAG success criteria seem to be based more on the availability of technology than the cost of the service. The underlying principle seems to be if you can do it you should do it even though the cost may be prohibitive.
This is where reasonableness and undue burden come into play. Remember that unlike other anti-discrimination statutes the ADA requires affirmative action to make public accommodations and their services accessible.* For the disabled, equal treatment isn’t enough because their disabilities make it difficult or impossible to take advantage of facilities and services as they exist. Without the requirement of affirmative action any public accommodation could claim it was not discriminating as long as it provided the same physical space and services to everyone. Sections 12182(b)(2) and 12183 contain the affirmative action requirements at the heart of Title III of the ADA. Section 12183 concerning new construction doesn’t apply to websites at all, so disabled website accessibility advocates must find relief in something under Section 12182(b)(2)(A). Of these only (ii) and (iii) plausibly apply to an inaccessible website, and these are both qualified. Section 12182(b)(2)(A)(ii) requires “reasonable” modifications in policies, procedures etc while Section 12182(b)(2)(A)(iii) requires the provision of auxiliary aids and services only if they do not impose an “undue burden.”
Thus, under any theory of website accessibility the changes needed to make a website accessible must either be reasonable or not impose an undue burden. WCAG 2.0 suggests that captioning is not so technically difficult providing it would be unreasonable or burdensome, but WCAG 2.0 doesn’t look at cost, and for captioning cost is as much an issue as technical ability. So, where can we find information about what cost is reasonable for captioning?
Fortunately there is a law and set of regulations that looked very specifically at the cost of captioning technology. The Telecommunications Act of 1996 was passed in part as a reaction to the holding in Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580 (6th Cir. 1995), a case that refused to apply the ADA to football broadcasts. It did not directly address captioning, but the effect was to exempt broadcasters from any ADA accessibility requirement. The Telecommunications Act remedied this by providing for a phased in requirement that TV broadcasts be captioned. It gave the FCC authority to implement the captioning requirement and in particular to determine by rule when it would be too costly.
The FCC regulations took cost into account when creating a series of “self-executing” exemptions to the captioning requirement. Two of those exemptions are relevant to the reasonableness and undue burden problem under the ADA. The FCC exempts from captioning any broadcaster with less than three million dollars in annual revenue or for whom captioning would cost in excess of 2% of gross revenues. This is pretty clearly a regulatory finding that these costs are excessive in relation to the benefit of captioning live video.
Television broadcasts and webcasts are not perfectly comparable, of course, but it seems unlikely the cost of captioning a live webcast is any less than the cost of captioning a live television broadcast despite possible differences in technology. The biggest difference is likely to be that the capital and licensing costs associated with television broadcasting mean most broadcasters will not meet this economic exemption. The ease and low cost of internet webcasting, on the other hand, make it very likely that a large majority of webcasters would be exempt under these standards. In any case, for this slice of the accessibility pie we do have a reasonably authoritative determination as to when the cost of accessibility imposes an undue burden on the owner or operator of a webcast. If the webcaster has revenues of less than three million dollars or the cost of captioning would exceed 2% of its revenues then notwithstanding the WCAG success criteria captioning of live webcasts should be regarded as an undue burden.
* See the discussion in Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 951 (N.D. Cal. 2006).