D. Mass. Allows ADA Title III Challenge to Inaccessibility of Netflix to Proceed
In National Association for the Deaf, Inc. v. Netflix, Inc., No. 11-CV-30168-MAP (D. Mass.), the NAD and other plaintiffs sued Netflix under Title III of the ADA. They claim that Netflix's video-streaming website is not accessible to deaf and hearing-impaired individuals, because only a small portion of the movies on the website are captioned, and Netflix's personalized recommendation service does not work with captioned films. Netflix filed a motion for judgment on the pleadings, in which it argued, among other things, that a website accessed from the customer's home is not a "place of public accommodation" covered by Title III of the ADA. In an order denying the motion, Judge Michael Ponsor of the United States District Court for the District of Massachusetts rejected that argument:
Plaintiffs convincingly argue that the Watch Instantly web site falls within at least one, if not more, of the enumerated ADA categories. The web site may qualify as: a “service establishment” in that it provides customers with the ability to stream video programming through the internet; a “place of exhibition or entertainment” in that it displays movies, television programming, and other content; and a “rental establishment” in that it engages customers to pay for the rental of video programming. 42 U.S.C. § 12181(7).
Defendant next argues that the Watch Instantly web site cannot be a place of public accommodation because it is accessed only in private residences, not in public spaces. According to Defendant, every specific example of a public accommodation in the ADA refers to a public arena that involves people outside of the home (e.g., motion picture house, bakery, laundromat, zoo, and the like). Under the doctrine of ejusdem generis -- which provides that “where general words . . . follow the enumeration of particular classes of things . . . , the general words will be construed as applying only to things of the same general class as those enumerated,” United States v. McKelvey, 203 F.3d 66, 71 (1st Cir. 2000) -- Defendant argues that all “public accommodations” must be accessed outside of a private residence.
Again, this argument is unpersuasive. The ADA covers the services “of” a public accommodation, not services “at” or “in” a public accommodation. 42 U.S.C. § 12182(a). This distinction is crucial. Accord Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (“The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.”). Consequently, while the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation.
Under Defendant’s reading of the statute, many businesses that provide services to a customer’s home -- such as plumbers, pizza delivery services, or moving companies -- would be exempt from the ADA. The First Circuit held in Carparts that such an interpretation is absurd. 37 F.3d at 19 (extending the ADA to businesses that offers services to customers in their homes through the telephone or mail). Under the Carparts decision, the Watch Instantly web site is a place of public accommodation and Defendant may not discriminate in the provision of the services of that public accommodation -- streaming video -- even if those services are accessed exclusively in the home.