Closed Captioning:

Nancy C. Rodgers, Esq.Kissinger & Fellman, P.C.Denver, Colorado303-320-6100nancy@kandf.com Twitter: @RodgDOG72

Update for Local Govt. / PEG Channels e-NATOA, July 1, 2013

The Americans with Disabilities Act

• Prohibits discrimination on the basis of disability • Title II of the Americans with Disabilities Act (ADA) applies

to programs and services of state and local governments• Local governments are required to make all programs &

services accessible to persons with disabilities.• 42 U.S.C. § 12132

• DOJ establishes regulations for state and local govt programs• Title IV - telecommunications relay services • FCC establishes regulations• Captioning is required for federally

funded public service announcements

ADA – Title II DOJ Regulations• Requires local governments to:• Make reasonable modifications to policies,

practices, and procedures whenever necessary to avoid discrimination, unless such modifications would fundamentally alter the service or program. • 28 C.F.R. § 35.130(b)(7)

• Take appropriate steps to ensure that they can communicate effectively with people with disabilities, using auxiliary aids and services where necessary. • 28 C.F.R. §§ 35.160(a) and (b)

ADA – Closed Captioning• No specific mandate for closed captioning in the ADA• Aside from federally funded public service announcements (Title

IV, 47 U.S.C. Sec. 611)

• However, DOJ’s regulations list open and closed captioning as an example of an “auxiliary aid” that promotes effective communication (28 C.F.R. § 35.104)• The DOJ Technical Assistance Manual for Title II (1993)• “Audio portions of television and video-tape programming

produced by public entities are subject to the requirement to provide equally effective communication for individuals with hearing impairments.”

• “Closed captioning of such programs is sufficient to meet this requirement.” • Tech. Asst. Man. Title II-7.1000.

Section 504* of the Rehabilitation Act• Prohibits discrimination on the basis of disability in

federal agency programs, programs receiving federal financial assistance, federal employment including employment with federal contractors. 29 U.S.C. § 794.• Accommodation not necessary when it would impose an "undue

hardship" 28 U.S.C. § 52.511

• No specific mandate for closed captioning in Section 504• However, each federal agency has its own set of Section

504 regulations. • Typical regulatory requirements include

• Program accessibility; and • Effective communication with people who

have hearing or vision disabilities.

*Section 508 of the Rehab Act applies to federal agencies

Which Law Governs? Which Agency Governs?

ADA Section 504 FCC Regs. TV FCC Regs. Website

State or Local Govt.* X

Local Govt. program that receives federal funding

X X

Local Govt. program that captions on TV

X X (federally funded program)

X

*ADA applies to “any department, agency, special purpose district, or other instrumentality of a State or local government.” Title II Tech. Asst. Manual II-1.2000.

If your operation has both public and private (e.g. non-profit) features, consider these factors:1) Are the operational funds public funds?2) Are the employees considered govt. employees? 3) Does a govt. assist with property or equipment? 4) Is it governed by elected officials or a private board?

And don’t forget state law:• State anti-discrimination statutes are typically broadly worded• Check the definitions of “person,” “entity,” and other operative

terms to see if/how the state law applies to your organization• Colorado Anti-Discrimination Act• Applies to employment and access to streets, highways, sidewalks,

walkways, public buildings, public facilities, and other public places• California's Disabled Persons and Unruh Civil Rights Acts • Netflix captioning lawsuit; at one point, the plaintiff dropped his ADA

claims and re-filed the suit under more stringent and punitive state laws

• New Jersey Law Against Disc., N.J.S.A. § 10:5-12 et seq. • Court entered summary judgment on ADA claim, but allowed state

law claim to go forward in hearing interpreter case• Hibbert v. Bellmawr Park Mut. Hous. Corp.,

2013 U.S. Dist. LEXIS 44469 (D.N.J. Mar. 28, 2013) (involved a non-profit entity)

What are the options?• Option 1: Close captioning all programs • Greatly reduces the risk of a claim asserted under the ADA or

Section 504, or even the FCC regulations• Option 3: Caption some programming on TV and on the

Internet• Caption those programs which are most popular in your

community or with individuals who regularly use captioning.• Risk of claims may be reduced and documentation supporting the

operation’s decision may help in a defense. • However, the law is unsettled, and it is difficult to say if such a

defense would be successful. • Option 2: Don’t caption at all

• Depending on your community, this may greatly increase the risk of a claim asserted under the ADA or Section 504, or even the FCC regulations

Risk-Benefit Analysis• Risks: complaints, lawsuits, public relations issues, cost• Number of local complaints against PEG? Unknown• Number of lawsuits against PEG? Low

• Benefits: promote equal access and participation in government services and programs

• Analysis:• Determine what law controls: ADA, Section 504, and/or FCC regulations• Analyze the costs of captioning for television and the Internet

(Remember: Caption on TV = Caption on the Internet)• Captioning in general creates an undue financial burden?• Document the results and keep a memorandum on file

• You can afford to caption, but only a couple of shows and only on TV• Apply for an exemption from FCC’s 2012 Regulations for the internet

programming

• Engage members of the disabled community • May help improve plan, avoid claims, and

strengthen defenses to claims

• Any analysis should be kept on file in order to defend a complaint.

Risk-Benefit Analysis Cont.

• Vet this issue with your local programming experts, as well as your own attorney• Any analysis should be kept on file in order to

defend against a claim / complaint• Prepare a “risk analysis” memo for budget

officers, elected officials, senior staff, etc.• Implementation/operational issues• Budget• Applicable law• Community needs

Doing it….wrong

• There are many ADA /disability rights cases about the effectiveness of auxiliary aids and/or modified services.• If you are going to caption, takes steps to

make it effective.• Use reliable service providers• Address reliability in the service contract• Address mistakes as soon as you can

Ineffective captioning is a concern and could expose the community to liability

Questions?