docket no. 12-15807 daniel jacob, edward...

Docket No. 12-15807

United States Court of Appeals for the Ninth Circuit

GREATER LOS ANGELES AGENCY ON DEAFNESS, INC., DANIEL JACOB, EDWARD KELLY; JENNIFER OLSON, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellees

v.

CABLE NEWS NETWORK, INC., incorrectly sued as Time Warner Inc., Defendant-Appellant

Appeal from the United States District Court for the Northern District of California

Magistrate Judge Laurel D. Beeler Case No. 3:11-cv-03458-LB

Brief of Amici Curiae Telecommunications for the Deaf and Hard of Hearing, Inc., National Association of the Deaf, and the Hearing Loss Association of America in Support of Appellees Greater Los Angeles

Agency on Deafness, Inc., et al., Urging Affirmance

Howard A. Rosenblum Andrew S. Phillips Counsel to Amicus Curiae National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 301.587.1788

Blake E. Reid Angela J. Campbell Counsel to Amici Curiae Telecommunications for the Deaf and Hard of Hearing, Inc. and Hearing Loss Association of America Institute for Public Representation Georgetown Law 600 New Jersey Avenue NW Washington, DC 20003 202.662.9545 (phone) 202.662.9634 (fax) [email protected]

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, amici hereby certify that they have no

parent corporations and that there are no corporations that own 10% or

more of any stock in amici.

Respectfully submitted,

/s/Blake E. Reid

October 25, 2012 Blake E. Reid Angela J. Campbell Counsel to Amici Curiae Telecommunications for the Deaf and Hard of Hearing, Inc. and Hearing Loss Association of America Howard A. Rosenblum Andrew S. Phillips Counsel to Amicus Curiae National Association of the Deaf

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TABLE OF CONTENTS

Table of Authorities ..................................................................................iv Interest of Amici Curiae .............................................................................. 1 Summary of Argument .............................................................................. 4 Argument.................................................................................................... 6

I. Federal courts, Congress, the FCC, and even CNN’s parent company and trade association have repeatedly acknowledged that closed captioning requirements are consistent with the First Amendment........................................... 6 A. Gottfried v. FCC ........................................................................ 7 B. The NCCIIA and the Telecommunications Act of 1996 ....... 8 C. MPAA v. FCC......................................................................... 10 D. The Twenty-First Century Communications and Video

Accessibility Act of 2010....................................................... 11 II. Requiring CNN to caption the videos on CNN.com is

consistent with the First Amendment......................................... 13 A. Requiring CNN to caption its videos would not

constitute a prior restraint of CNN’s speech. ..................... 13 B. Requiring CNN to caption its videos would not compel

it to express any speech not of its choosing........................ 15 C. Requiring CNN to caption its videos is a content-neutral

measure that warrants no more than, and easily satisfies, intermediate scrutiny. .......................................................... 17

D. Requiring CNN to caption its videos would not burden CNN’s speech. ....................................................................... 19 i. CNN’s parent company and trade association have

consistently claimed that captioning inaccuracies are acceptable and inconsequential.............................. 19

ii. CNN’s trade association actively lobbied to ensure that the FCC’s IP captioning requirements do not apply to the videos on CNN.com. ................................ 23

III. Requiring CNN to caption its programming under California law is not precluded by federal telecommunications law......... 25

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IV. Conclusion .................................................................................... 29 Certificate of Compliance ........................................................................ 30 Certificate of Service ................................................................................ 31

iv

TABLE OF AUTHORITIES

Cases

Alexander v. United States, 509 U.S. 544 (1993).................................................. 14 Cmty. Television v. Gottfried, 459 U.S. 498 (1983) ................................................ 7 Gottfried v. FCC, 655 F.2d 297 (D.C. Cir. 1981) ....................................... 7, 12, 16 MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002) .................................. 10, 11, 12, 16 Nat’l Ass’n of the Deaf v. Netflix, Inc. No. 11-CV-30168-MAP, 2012 WL 2343666 (D. Mass. June 19, 2012) ................................................. 5, 25, 26, 27, 28 Riley v. Nat’l Fed’n of the Blind, Inc., 487 U.S. 781 (1988)............................ 15, 16 Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) .................................................. 17 United States v. O’Brien, 391 U.S. 367 (1968) ..................................................... 18 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).................................... 17 Wooley v. Maynard, 430 U.S. 705, 715 (1977) ..................................................... 16

Statutes and Legislative Materials

Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996) ..................................................................................................................... 9 Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 (Oct. 8, 2010) ............................ 11, 22 47 U.S.C § 613 (2010)........................................................................................ 9, 11 National Communications Competition and Information Infrastructure Act, H.R. 3636 § 206(b)-(c), 103rd Cong (1994). ................................................. 8 H.R. Rep. 104-458 (1996) ..................................................................................... 19 S. 1822, The Communications Act of 1994: Hearing Before the S. Comm. on Commerce, Science, and Transportation, 103rd Cong. (1994) .............................. 8 S. Rep. 111-386 (2010) .......................................................................................... 19

Regulations and Administrative Materials

47 C.F.R. § 79.1................................................................................................ 10, 16 14, 20, 28 47 C.F.R. § 79.4................................................................................................ 12, 24 License Renewal Applications of Certain Television Stations Licensed for and Serving Los Angeles, California, 69 F.C.C.2d 451 (1978), reconsideration denied, 72 F.C.C.2d 273 (1979) ..................................................... 7

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Closed Captioning and Video Description of Video Programming, Report and Order, 13 FCC Rcd. 3272 (1997) ................................................ 9, 20 Closed Captioning of Video Programming, 20 FCC Rcd. 13,211 (2005). ..... 21 Notices of Proposed Rulemaking Regarding Closed Captioning Rules, 25 FCC Rcd. 15,056 (2010) ................................................................................... 21 Closed Captioning of Internet Protocol-Delivered Video Programming, Notice of Proposed Rulemaking, 26 FCC Rcd. 13,734 (2011) ........................ 11 Closed Captioning of Internet Protocol-Delivered Video Programming, Report and Order, 27 FCC Rcd. 787 (2012) ................................................ 12, 28 Comments of NCTA, FCC Docket No. 95-176 (Feb. 28, 1997)....................... 20 Comments of Outdoor Life Network, et al., FCC Docket No. 95-176 (Feb. 28, 1997) ......................................................................................................... 9 Petition for Rulemaking of TDI, et al., FCC Docket RM-11065 (July 23, 2004) ...................................................................................................................... 21 Opposition of NCTA, FCC Docket No. RM-11065 (Oct. 4, 2004).................. 21 Comments of NCTA, FCC Docket No. 05-231 (Nov. 10, 2005) ..................... 21 Comments of NCTA, FCC Docket No. 05-231 (Nov. 24, 2010) ..................... 22 Reply Comments of Time Warner, FCC Docket No. 05-231 (Dec. 9, 2010) . 22 Comments of NCTA, FCC Docket No. 11-154 (Oct. 18, 2011)........... 22, 23, 24 Reply Comments of NCTA, FCC Docket No. 11-154 (Nov. 1, 2011)...... 23, 24 Reply Comments of Time Warner, FCC Docket No. 11-154 (Nov. 1, 2011) ........................................................................................................... 10, 11, 12 NCTA Ex Parte Notice, FCC Docket No. 11-154 (Nov. 3, 2011) .................... 24 NCTA Ex Parte Notice, FCC Docket No. 11-154 (Nov. 4, 2011) .................... 24 NCTA Ex Parte Notice, FCC Docket No. 11-154 (Nov. 22, 2011) .................. 24 NCTA Ex Parte Notice, FCC Docket No. 11-154 (Dec. 16, 2011) ................... 24 Opposition of NCTA, FCC Docket No. 11-154 (June 7, 2012) ....................... 25

Other

Brief of NCTA, et al., MPAA v. FCC, 2002 WL 34503023 (May 28, 2002)..... 10 First Report of the VPAAC (July 13, 2011) ....................................................... 22 FCC Encyclopedia, Litigation Division, Office of General Counsel............. 26 FCC Encyclopedia: VPAAC Members.............................................................. 22

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Karen Peltz Strauss, A New Civil Right: Telecommunications Equality for Deaf and Hard of Hearing Americans (2006) .................................. 6, 7, 8, 9 NAD, Netflix and the National Association of the Deaf Reach Historic Agreement to Provide 100% Closed Captions in On-Demand Streaming Content Within Two Years (Oct. 9, 2012)............................................................... 3 NCTA Member Companies.................................................................................. 7 Statement of Interest of the United States, Nat’l Ass’n of the Deaf v. Netflix, Inc., 2012 WL 1834803 (May 15, 2012).................................................. 26 Time Warner 2011 Annual Report to Stockholders, Time Warner Inc. ..... 6, 7

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INTEREST OF AMICI CURIAE1

Amici are national organizations concerned with equal access for the

more than 48 million Americans who are deaf, hard of hearing, late-

deafened, or deaf-blind. Amici include:

• Telecommunications for the Deaf and Hard of Hearing, Inc. (“TDI”),

a non-profit organization focusing on equal, barrier-free access to

telecommunications, media, and information technology for people

who are deaf or hard of hearing;

• The National Association of the Deaf (“NAD”), the nation's premier

civil rights organization of, by, and for Americans who are deaf and

hard of hearing; and

• The Hearing Loss Association of America (“HLAA”), the nation’s

leading organization representing people with hearing loss.2

1 All parties to this case have consented to the filing of amicus curiae briefs in this case. No counsel for a party authored this brief in whole or in part, nor did a party, a party’s counsel, or any person other than amici curiae contribute money that was intended to fund preparing or submitting this brief. Counsel thank Georgetown Law student clinicians Victoria Ajayi and Hillary Hodsdon and NAD Fellow Caroline Jackson for their assistance in preparing this brief. 2 Contrary to the assertion of defendant-appellant Cable News Network, Inc., plaintiff-appellee GLAD does not participate in matters at the Federal Communications Commission “through” NAD. See CNN Br. at 44. GLAD’s affiliation with NAD is limited to voting on board representation, amendments to NAD’s bylaws, and the top five priorities of the NAD.

2

Amici advocate before Congress, the Federal Communications

Commission (“FCC”), federal courts, and other policymakers to ensure that

people who are deaf or hard of hearing can access the cultural,

participatory, and economic opportunities afforded by video

programming. In particular, amici have participated in FCC rulemakings

over the past two decades in an effort to establish baseline federal closed

captioning requirements for video programming delivered via broadcast,

cable, and satellite television and Internet Protocol (“IP”).

Appellant-defendant Cable News Network, Inc. (“CNN”) contends

that implementing the modest request of plaintiff-appellees Greater Los

Angeles Agency on Deafness (“GLAD”) for CNN to caption the

programming on CNN.com would violate the First Amendment. CNN Br.

at 33-36, 48-52. But a holding by this Court that a video programmer has a

First Amendment interest in not captioning its programming could open

the door for video programmers to collaterally attack the FCC’s critical

television and IP captioning requirements on constitutional grounds. Amici

have a strong interest in ensuring that the progress of Congress and the

FCC toward establishing the civil right of Americans who are deaf or hard

of hearing to access video programming on equal terms through the

provision of closed captions is not jeopardized by CNN’s unwarranted

First Amendment arguments.

Amicus NAD has also pursued legal action against video programmers

who fail to caption their programming in violation of the Americans with

3

Disabilities Act (“ADA”). Most recently, NAD reached a landmark

agreement requiring Netflix, Inc., a leading online video streaming service,

to caption all of its IP-delivered video programming, settling charges that

Netflix violated the ADA by failing to provide captions.3

CNN contends that requiring it to caption the programming on

CNN.com under California accessibility law is barred by the alleged

supremacy of the FCC’s baseline closed captioning requirements. CNN Br.

at 39-48, 52-54. If this Court were to agree with CNN that the FCC has

exclusive jurisdiction over closed captioning, it could impede remedying

violations of not only California accessibility law, but also the ADA. As

representatives of the deaf and hard of hearing community, amici have a

strong interest in ensuring that federal accessibility laws can be enforced.

3 NAD, Netflix and the National Association of the Deaf Reach Historic Agreement to Provide 100% Closed Captions in On-Demand Streaming Content Within Two Years (Oct. 9, 2012), http://www.nad.org/news/ 2012/10/netflix-and-national-association-deaf-reach-historic-agreement-provide-100-closed-capti.

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SUMMARY OF ARGUMENT

Amici urge this Court to affirm the district court’s order denying

CNN’s motion to strike GLAD’s claims under the California anti-SLAPP

statute. Amici agree with GLAD that CNN’s decision not to caption the

videos on CNN.com prior to the effective date of the FCC’s IP captioning

requirements was not an act in furtherance of constitutionally protected

speech. GLAD Br. at 9-28. CNN’s arguments cast unwarranted doubt on

the constitutionality of baseline federal closed captioning requirements,

which have been consistently affirmed by other federal courts, Congress,

the FCC, and even CNN’s parent company and trade association.

Requiring CNN to caption the videos on CNN.com is consistent with

the First Amendment. Contrary to CNN’s arguments, a captioning

requirement would neither restrain CNN’s speech prior to its delivery nor

compel CNN to express any speech not of its choosing. The captioning

requirement sought by GLAD would merely require CNN to include

verbatim transcriptions of its own speech in the form of closed captions

whenever it chooses to distribute its videos to the public. Such a

requirement is a content-neutral measure, subject to intermediate First

Amendment scrutiny at most. It would easily satisfy intermediate scrutiny

because it is narrowly tailored to further the government’s important

interest in facilitating equal access to video programming for people who

are deaf or hard of hearing.

5

Amici also agree with GLAD that requiring CNN to caption the videos

on CNN.com is not foreclosed by the FCC’s captioning requirements under

the Telecommunications Act of 1996 and the Twenty-First Century

Communications and Video Accessibility Act of 2010. GLAD Br. at 39-53.

The United States Department of Justice, representing the FCC, has rejected

the argument that the FCC has exclusive jurisdiction over closed

captioning, a position recently affirmed by another federal court in Nat’l

Ass’n of the Deaf v. Netflix, Inc., No. 11-CV-30168-MAP, 2012 WL 2343666 (D.

Mass. June 19, 2012).

In addressing the other issues presented by this case, this Court should

avoid unnecessarily jeopardizing closed captioning requirements under

federal telecommunications and accessibility law. Because CNN’s decision

not to caption its programming was not an act in furtherance of

constitutionally protected speech, and because GLAD’s claims are not

foreclosed by federal law, amici urge this Court to affirm the district court’s

order denying CNN’s motion to strike GLAD’s claims.

6

ARGUMENT

I. Federal courts, Congress, the FCC, and even CNN’s parent company and trade association have repeatedly acknowledged that closed captioning requirements are consistent with the First Amendment.

Making video programming accessible has been among the highest

priorities for the deaf and hard of hearing community since Emerson

Romero, the deaf brother of Hollywood actor Cesar Romero, first spliced

subtitles in between the frames of new films in an effort to make them

accessible more than half a century ago.4 But the prospect of equal access to

video programming for Americans who are deaf or hard of hearing has

only come within reach as Congress and the FCC have enacted baseline

closed captioning requirements.

Video programmers have often challenged these captioning

requirements on First Amendment grounds. But Congress, the FCC, other

federal courts, and even CNN’s own parent company, Time Warner, Inc.,

and trade association, the National Cable & Telecommunications

Association (“NCTA”), have repeatedly agreed that captioning

requirements are consistent with the First Amendment because they

implicate video programmers’ speech interests only incidentally, if at all.5

4 Karen Peltz Strauss, A New Civil Right: Telecommunications Equality for Deaf and Hard of Hearing Americans 205 (2006). 5 Turner Broadcasting System, Inc. (“Turner”) is CNN’s parent company. CNN’s Excerpts of Record (“E.R.”) 274. Turner is a subsidiary of Time Warner. Id. All of the networks owned by Turner, including CNN, are collectively referred to as the “Turner Networks.” Time Warner 2011 Annual Report to Stockholders, Time Warner Inc., at 3, available at

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A. Gottfried v. FCC

Video programmers first raised a First Amendment challenge to a

closed captioning requirement when they opposed the petition by Los

Angeles resident Sue Gottfried and GLAD for the FCC to deny the

broadcast license renewal applications of television stations that had failed

to caption their programming. License Renewal Applications of Certain

Television Stations Licensed for and Serving Los Angeles, California, 69

F.C.C.2d 451, 451-52, ¶¶ 1-2 (1978), reconsideration denied, 72 F.C.C.2d 273

(1979), aff’d in part and rev’d in part, Gottfried v. FCC, 655 F.2d 297 (D.C. Cir.

1981), reversed, Cmty. Television v. Gottfried, 459 U.S. 498 (1983). The

broadcasters argued before the D.C. Circuit that requiring captioning

would violate their First Amendment rights by impermissibly regulating

the content of their programming. Gottfried, 655 F.2d at 312, n.54.

The D.C. Circuit dismissed the broadcasters’ argument as “without

merit,” noting that “[a] captioning requirement would not significantly

interfere with program content.” Id. The court noted that the First

Amendment might even “entitl[e] the hearing impaired to have access to

some minimum of programming.” See id. (citations omitted).6

http://ir.timewarner.com/phoenix.zhtml?c=70972&p=irol-reportsannual. Turner Cable Networks are members of the NCTA. NCTA Member Companies, http://www.ncta.com/About/About/ NCTAMemberCompanies.aspx (last visited Oct. 24, 2012). 6 The D.C. Circuit’s decision in Gottfried was reversed by the Supreme Court on unrelated grounds. See generally Cmty. Television, 459 U.S. 498; Strauss, supra note 4, at 212-16.

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B. The NCCIIA and the Telecommunications Act of 1996

An early attempt by Congress to require captions also met—and easily

survived—a First Amendment challenge from video programmers. In 1994,

Congress proposed captioning standards as a part of the National

Communications Competition and Information Infrastructure Act

(“NCCIIA”). H.R. 3636 § 206(b)-(c), 103rd Cong.7 The Media Institute, a

think tank allied with video programmers, lobbied congressional

representatives to strike the NCCIIA’s captioning requirements on First

Amendment grounds.8 But at a Congressional committee hearing on closed

captioning, ranking members dismissed the concerns, introducing a letter

by constitutional scholars concluding that First Amendment concerns

about captioning requirements were unfounded.9 Even the American Civil

Liberties Union, which had opposed other aspects of the NCCIIA on First

Amendment grounds, conceded that closed captioning “does not require a

[programmer] to alter the content or the words used to convey [its]

message in any way.”10

7 See generally Strauss, supra note 4, at 248 & n.9. 8 See S. 1822, The Communications Act of 1994: Hearing Before the S. Comm. on Commerce, Science, and Transportation, 103rd Cong. 790, 794 (1994) (Letters from Patrick D. Maines to Representative Bill Richardson (Mar 11, 1994) and Representative Carlos Moorhead (May 20, 1994)) [hereinafter NCCIIA Hearing]; see also Strauss, supra note 4, at 251 & n.15. 9 NCCIIA Hearing, supra note 8, at 651 (Letter from Angela J. Campbell and Steven H. Shiffrin to Senator Fritz Hollings). 10 Id. at 623.

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The NCCIIA passed the House by a near-unanimous vote of 423-4.11

Although the NCCIIA stalled in the Senate, Congress included nearly

identical captioning provisions in the Telecommunications Act of 1996

(“1996 Act”). Pub. L. No. 104-104, 110 Stat. 56 § 305 (Feb. 8, 1996) (codified

as amended at 47 U.S.C. § 613(b) (2010)). The 1996 Act required the FCC to

promulgate new captioning requirements for video programmers.

47 U.S.C. § 613(a)-(b).

During the FCC’s rulemaking implementing Section 305, a coalition of

cable networks complained that captioning requirements would “have

serious First Amendment . . . implications.” Comments of Outdoor Life

Network, et al., FCC Docket No. 95-176, at 43-44 (Feb. 28, 1997).12 The

networks contended that requiring broadcasters and cable and satellite

companies to caption their programming would provide an unfair

advantage to video programmers who distributed their programming via

the Internet or other delivery mechanisms. Id. at 44.

Over the networks’ objections, the FCC unanimously adopted baseline

captioning requirements for broadcasters, cable and satellite companies,

and other video distributors. See generally Closed Captioning and Video

Description of Video Programming, Report and Order, 13 FCC Rcd. 3272

(1997) [hereinafter TV Captioning Order]. The cable networks that had

11 Strauss, supra note 4, at 255. 12 http://apps.fcc.gov/ecfs/comment/view?id=178615.

10

initially asserted First Amendment concerns never pursued them further,

and the FCC’s requirements remain in effect. 47 C.F.R. § 79.1.13

C. MPAA v. FCC

In 2002, a consortium of video programmer trade associations,

including the NCTA, sued the FCC for adopting new rules requiring them

to make video programming accessible to blind and vision-impaired

viewers, arguing that the rules violated the First Amendment. MPAA v.

FCC, 309 F.3d 796 (D.C. Cir. 2002); NCTA, et al., Br. 2002 WL 34503023, at

*39-*43 (May 28, 2002). But in their brief to the D.C. Circuit, the trade

associations distinguished that requirement from closed captioning,

effectively admitting that closed captioning requirements do not implicate

the First Amendment because they merely involve a “verbatim

transcription that converts spoken words to text.” NCTA Br., 2002 WL

34503023, at *6.

The D.C. Circuit agreed that closed captions raised no First

Amendment concerns. The court noted that closed captioning merely

“displays the audio portion of television signals as words displayed on the

screen and can be activated at a viewer's discretion,” and concluding that

captions merely “present a verbatim translation of [a] program’s spoken

words.” See MPAA, 309 F.3d at 798. The court recognized that closed

13 CNN’s parent company, Time Warner, noted in 2011 that the FCC’s television captioning requirements had “served well for more than a decade.” Reply Comments of Time Warner, FCC Docket No. 11-154, at 3 (Nov. 1, 2011), http://apps.fcc.gov/ecfs/document/view?id=7021744367.

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captioning requirements raise no First Amendment concerns because video

programmers need not “change program content” to provide captions. See

id. at 798, 805.

D. The Twenty-First Century Communications and Video Accessibility Act of 2010

Congress’s most recent effort to extend baseline captioning

requirements to IP-delivered video also met with First Amendment

opposition from video programmers. In 2010, Congress enacted the

Twenty-First Century Communications and Video Accessibility Act

(“CVAA”), requiring the FCC to promulgate closed captioning

requirements for IP-delivered video programming also published or

exhibited on television with captions. Pub. L. No. 111-260, 124 Stat. 2751 §

202(b) (Oct. 8, 2010) (codified as amended at 47 U.S.C. 613(c) (2010)).

The FCC proposed IP captioning requirements pursuant to the CVAA,

suggesting that video programming owners should be responsible for

captioning their own content. Closed Captioning of Internet Protocol-

Delivered Video Programming, Notice of Proposed Rulemaking, 26 FCC

Rcd. 13,734, 13,736, ¶ 4 (2011). CNN’s parent company, Time Warner,

protested the proposed rules, insisting that “direct regulation of copyright

owners or content providers . . . is likely to raise serious First Amendment

questions.” Reply Comments of Time Warner, FCC Docket No. 11-154, at 4

(Nov. 1, 2011).14 But Time Warner later conceded that there would be no

14 http://apps.fcc.gov/ecfs/document/view?id=7021744367.

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constitutional concerns raised by requiring captioning where a

programming owner also “act[s] as a distributor with a direct-to-consumer

relationship,” see id. at 4 & n.16—just as CNN does when it distributes

programming via CNN.com.

Recognizing the inconsistency in Time Warner’s claims, the FCC

“reject[ed] [Time Warner’s] arguments that imposing closed captioning

obligations on content owners would raise First Amendment concerns”

and unanimously voted to require video owners to caption their

programming. See Closed Captioning of Internet Protocol-Delivered Video

Programming, Report and Order, 27 FCC Rcd. 787, 803-04, ¶ 25 & n.117

(2012) [hereinafter IP Captioning Order]; 47 C.F.R. § 79.4(c)(1). The FCC

noted that “closed captioning requirements implicate the First Amendment

only marginally at best” and that “because closed captioning involves a

‘precise repetition of the spoken words’ communicated by the [video

programmer], any First Amendment burden is only incidental.” IP

Captioning Order, 27 FCC Rcd. at 804, ¶ 25 & n.120 (quoting MPAA, 309

F.3d at 803; citing Gottfried, 655 F.2d at 311 & n.54). Commissioner Mignon

Clyburn noted that the “true aim” of the FCC’s rules was “equal access for

all Americans to the video programming that forms the lifeblood of our

civil discourse and the marketplace of ideas embodied in the First Amendment.”

Id. at 897 (emphasis added).

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II. Requiring CNN to caption the videos on CNN.com is consistent with the First Amendment.

Despite the fact that federal courts, Congress, and the FCC have

consistently recognized that closed captioning requirements implicate the

First Amendment interests of video programmers only incidentally, if at

all, CNN invites this Court to reach the unprecedented conclusion that

requiring CNN to caption the videos on CNN.com would violate the First

Amendment. More specifically, CNN argues that a captioning requirement

would both constitute an unconstitutional prior restraint of its speech and

unconstitutionally compel it to speak in a way that it otherwise would not,

warranting the application of strict scrutiny. CNN Br. at 48-52.

Amici urge this Court to reject CNN’s arguments. The content-neutral

captioning requirement sought by GLAD would neither restrain CNN’s

speech in advance of delivery nor compel CNN to express any speech not

of its own choosing, and thereby warrants at most intermediate First

Amendment scrutiny. The requirement would easily satisfy intermediate

scrutiny because the requirement is narrowly tailored to further the

government’s important interest in ensuring that people who are deaf or

hard of hearing have equal access to video programming.

A. Requiring CNN to caption its videos would not constitute a prior restraint of CNN’s speech.

CNN argues that GLAD’s request to require it to caption the videos on

CNN.com is an unconstitutional prior restraint. CNN Br. at 48-49. This

14

argument, however, misstates both the prior restraint doctrine and the

actual relief sought by GLAD in this case.

To be considered a “prior restraint,” a court order must actually

“forbid [a defendant] from engaging in a[n] expressive activity in the

future” or “require him to obtain prior approval for any expressive

activity.” See Alexander v. United States, 509 U.S. 544, 550-51 (1993). If a court

order permits a defendant to “engage in any expressive activity he

chooses,” it is, by definition, not a prior restraint. See id. at 551.

In this case, GLAD seeks an injunction “requiring [CNN] to take steps

necessary to ensure that the benefits and advantages offered by CNN.com

are fully and equally enjoyable to persons who are deaf or have hearing

loss in California.” E.R. 362. GLAD’s requested relief would neither forbid

an expressive activity or require advance approval. It plainly contemplates

nothing more than a requirement that CNN distribute the videos on

CNN.com with closed captions. That CNN could theoretically comply with

the requirement by not delivering any videos does not mean that the

requirement in any way restrains CNN from freely delivering any videos

of its choosing or that CNN must seek prior judicial approval to do so.

This Court should also reject CNN’s argument that GLAD’s requested

relief would “uniquely prohibit CNN from disseminating videos” without

closed captions, thereby “freez[ing], not just chill[ing], CNN’s exercise of

its First Amendment rights.” CNN Br. at 48. This argument could only

succeed if CNN’s decision not to include captions was an expressive choice.

15

CNN does not claim that its failure to caption is expressive. In fact,

CNN expressly states that it does not “wan[t] to shut out deaf people from

its website,” and lauds its own “history of involvement in industry-wide

efforts to make content accessible to everyone”—including airing its

television programming with closed captions. CNN Br. at 35, n.10 (citing

E.R. 510-12). Because CNN admits that it has no expressive interest in

omitting closed captions, a captioning requirement could not possibly

restrain CNN from speaking in any way it desires or require it to seek

advance approval to do so. Thus, requiring CNN to caption the videos on

CNN.com could not constitute an unconstitutional prior restraint.

B. Requiring CNN to caption its videos would not compel it to express any speech not of its choosing.

CNN abandons any pretense that a captioning requirement would

restrain its speech by insisting that a captioning requirement would instead

compel it to speak in some way it otherwise would not. See CNN Br. at 49-

50. But CNN’s compelled speech argument ignores that requiring it to

caption the videos on CNN.com would not require it to express any

message not of its own choosing.

The Supreme Court has consistently recognized that a regulation

requiring the expression of speech is constitutionally objectionable only

where it “[m]andate[s] speech that a speaker would not otherwise make,”

thereby “alter[ing] the content of the speaker’s speech” and substituting

some message or expressive content of the government’s choosing. See, e.g.,

16

Riley v. Nat’l Fed’n of the Blind, Inc., 487 U.S. 781, 795 (1988) (emphasis

added); see also Wooley v. Maynard, 430 U.S. 705, 715 (1977) (“The First

Amendment protects the right of individuals . . . to refuse to foster . . . an

idea they find morally objectionable.” (emphasis added))

In contrast, requiring CNN to caption the videos on CNN.com would

not require CNN to express any speech not of its own choosing or interfere

with the content of its speech in any way. As the D.C. Circuit has

consistently recognized, captioning requirements merely require video

programmers to include a verbatim transcription of whatever speech they

choose to include in their own programming when they voluntarily

distribute it to the public. See MPAA, 309 F.3d at 798; Gottfried, 655 F.2d at

311, n.54. GLAD’s request plainly would not require CNN to express some

message of GLAD’s, the government’s, or anyone else’s choosing; it would

merely require CNN to express the very same speech it voluntarily expresses

to its hearing viewers via the audio component of its videos to its deaf and

hard of hearing viewers via closed captions.

Finally, CNN disclaims any possible interest in intentionally not

captioning the videos on CNN.com by admitting that nearly all of the

videos on CNN.com are culled from CNN’s television programming, E.R.

521, ¶ 8, which must already be captioned to comply with the FCC’s television

captioning requirements, see 47 C.F.R. § 79.1(b); E.R. 512, ¶ 13. CNN also

notes that “[a]lmost every news video [on CNN.com] is accompanied by a

written news story that parallels the content of the video.” CNN Br. at 35,

17

n.10 (citing E.R. 366, 525). CNN cannot reasonably insist that requiring it to

caption videos that it has already captioned and supplemented with

written news stories would compel it to speak in some way it otherwise

would not.

C. Requiring CNN to caption its videos is a content-neutral measure that warrants no more than, and easily satisfies, intermediate scrutiny.

Because requiring CNN to caption the videos on CNN.com would

neither restrain CNN’s speech in advance of delivery nor compel CNN to

express any speech not of its own choosing, the requirement would only be

subject to strict scrutiny if it were content-based. As a general rule, only

laws “that by their terms distinguish favored speech from disfavored

speech on the basis of the ideas or views expressed are content based.” See

Turner Broad. Sys. v. FCC, 512 U.S. 622, 643 (1994). On the other hand, a

“regulation that serves purposes unrelated to the content of expression is

deemed [content-]neutral, even if it has an incidental effect on some

speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989).

CNN fails to explain, even in general terms, how requiring it to

provide verbatim closed captions of the very same speech it freely chooses

to express in the videos it delivers could in any way restrict its speech on

the basis of content. As federal courts and the FCC have repeatedly

recognized, captioning requirements do not implicate the content of video

18

programmers’ speech in any way because they are inherently verbatim

transcripts of the programmers’ own speech—nothing more and nothing

less. See discussion, supra, at Part I.

Requiring CNN to caption the videos on CNN.com is undoubtedly a

content-neutral measure. Under United States v. O’Brien, a content-neutral

government regulation of speech does not offend the First Amendment so

long as it “furthers an important or substantial governmental interest . . .

unrelated to the suppression of free expression” and any “incidental

restriction on alleged First Amendment freedoms is no greater than is

essential to the furtherance of that interest.” 391 U.S. 367, 377 (1968).

CNN correctly concedes that “there is no dispute that helping ensure

[people who are] deaf [or hard of hearing] fully and equally enjoy

audiovisual content online” is a “worthy objective” and “arguably

important.” CNN Br. at 50. CNN also makes no serious contention that

captioning regulations are intended to suppress its expression.15

Notwithstanding CNN’s cursory and unsupported argument that

requiring it to caption the videos on CNN.com would not “substantially

advance” the critically important interest of ensuring equal access to video

programming, CNN Br. at 50-51, Congress and the FCC have repeatedly

recognized that closed captioning requirements are the most effective

means of ensuring that people who are deaf or hard of hearing can access

15 See discussion, supra, at Part II.A.

19

video programming on equal terms.16 Requiring CNN to caption the videos

on CNN.com, then, satisfies intermediate scrutiny unless it imposes

burdens on CNN’s speech interests that are greater than necessary to serve

the government’s interest in ensuring equal access to video programming.

D. Requiring CNN to caption its videos would not burden CNN’s speech.

CNN argues that a captioning requirement would burden its speech

by requiring the adoption of closed captioning technology that would

introduce inaccuracies and impose burdens inconsistent with FCC

regulations. CNN Br. at 33-35. Amici agree with GLAD that requiring CNN

to caption the videos on CNN.com would not burden CNN’s speech in any

way. GLAD Br. at 61-67. Moreover, CNN’s arguments are wholly

inconsistent with positions adopted by CNN’s parent company, Time

Warner, and its trade association, the NCTA, at the FCC over the past two

decades.

i. CNN’s parent company and trade association have consistently claimed that captioning inaccuracies are acceptable and inconsequential.

CNN contends that “the sub-par closed-captioning technology that

[GLAD] sought to judicially impose on CNN can result in inaccuracies,

16 For example, Congress noted in enacting the 1996 Act that requiring closed captioning would “ensure that all Americans ultimately have access to video services and programs.” H.R. Rep. 104-458, 183-84. In enacting the CVAA, Congress concluded that captioning requirements were necessary to “help ensure that individuals with . . . auditory disabilities are able to . . . better access video programming.” S. Rep. 111-386 at 2 (2010).

20

‘including truncated sentences, and lost words (or characters) in some

cases.’” CNN Br. at 35 (citing E.R. 277). This argument absurdly implies

that the goal of GLAD’s request is for CNN to inaccurately caption its

programming—an implication plainly dispelled by GLAD’s observation that

CNN can—and should—caption its videos accurately. GLAD Br. at 18-19.

Amici agree that CNN should accurately caption its programming.

But even if captioning its videos resulted in inaccuracies, CNN ’s

purported interest in avoiding inaccuracies is inconsistent with the lengthy

history of strident opposition to captioning accuracy standards at the FCC

by CNN’s trade association and parent company on the grounds that

inaccuracies are acceptable and inconsequential.

Deaf and hard of hearing advocates urged the FCC to adopt accuracy

standards as part of its television captioning rules under the 1996 Act. TV

Captioning Order, 13 FCC Rcd. at 3372, ¶ 217. Video programmers,

however, strongly opposed the standards. Id. at 3370-71, ¶¶ 215-216. In

particular, the NCTA argued that “regulations governing . . . accuracy of

transcription . . . should not be adopted.” Comments of NCTA, FCC Docket

No. 95-176, at 32 (Feb. 28, 1997).17 The FCC chose to “leav[e] the

development of quality standards to the marketplace, . . . allowing video

programm[ers] to establish [their own] quality standards and quality

controls.” TV Captioning Order, 13 FCC Rcd. at 3274, ¶ 222.

17 http://apps.fcc.gov/ecfs/comment/view?id=178904.

21

Deaf and hard of hearing advocates, including amici TDI and NAD,

again urged the FCC to adopt accuracy and quality standards in a 2004

rulemaking petition. Petition for Rulemaking of TDI, et al., FCC Docket

RM-11065 (July 23, 2004).18 The advocates argued that video programmers

had failed to address problems with inaccuracies absent standards

requiring them to do so. Id. at 35-39.

The NCTA opposed the petition, contending that captioning standards

were unnecessary. Opposition of NCTA, FCC Docket No. RM-11065 (Oct.

4, 2004).19 The NCTA argued that captioning could not be “mistake-free”

and that “technical glitches and mistakes in captioning can and do occur,”

but that quality standards were unnecessary. Id. at 2.

The FCC nevertheless issued a notice of proposed rulemaking,

soliciting comments about quality and accuracy standards. Closed

Captioning of Video Programming, 20 FCC Rcd. 13,211, 13,212, ¶ 1 (2005).

The NCTA again opposed accuracy standards on the grounds that they

were unnecessary. Comments of NCTA, FCC Docket No. 05-231, at 2-7

(Nov. 10, 2005).20

In 2010, the FCC sought to refresh the record on the need for accuracy

standards for television captioning. Notices of Proposed Rulemaking

Regarding Closed Captioning Rules, 25 FCC Rcd. 15,056, 15,057. The

18 http://apps.fcc.gov/ecfs/comment/view?id=5511440137. 19 http://apps.fcc.gov/ecfs/document/view?id=6516491658. 20 http://apps.fcc.gov/ecfs/document/view?id=6518179149.

22

NCTA again opposed quality and accuracy standards on the same grounds

as before. Comments of NCTA, FCC Docket No. 05-231, at 2-7 (Nov. 24,

2010).21 Time Warner separately opposed accuracy and quality standards,

characterizing captioning errors as “minor” and lauding the “continuously

improving” quality of captioning. Reply Comments of Time Warner, FCC

Docket No. 05-231 (Dec. 9, 2010).22

Captioning accuracy standards again arose in the context of the FCC’s

implementation of IP captioning rules under the CVAA. The CVAA

established the Video Programming Accessibility Advisory Committee

(“VPAAC”), which included both Time Warner and NCTA as members,

and required it to issue a report on closed captioning for IP-delivered

video. CVAA, Pub. L. No. 111-260, 124 Stat. 2751 § 201.23 The VPAAC

concluded that the accuracy of IP-delivered captions “must be equal to or

greater than the accuracy of captions shown on television.” First Report of

the VPAAC (July 13, 2011) at 13-14.24

Despite its participation in the VPAAC, the NCTA again fought

against accuracy and quality standards for IP captioning, noting that there

was “no basis to believe that the process of providing captioned television

programming online will lead to a reduction in quality from that enjoyed 21 http://apps.fcc.gov/ecfs/document/view?id=7020921514. 22 http://apps.fcc.gov/ecfs/document/view?id=7020922802. 23 See also FCC Encyclopedia: VPAAC Members, http://www.fcc.gov/ encyclopedia/vpaac-members (last visited Oct. 24, 2012). 24 http://transition.fcc.gov/cgb/dro/VPAAC/ First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf

23

on television.” Comments of NCTA, FCC Docket No. 11-154, at 15 (Oct. 18,

2011).25 Time Warner also opposed accuracy and quality standards, noting

that they were unnecessary. Reply Comments of Time Warner, FCC Docket

No. 11-154, at 4-5 (Nov. 1, 2011).26

In sum, CNN’s parent company and trade association have engaged in

an undeniable pattern of opposing captioning accuracy standards on the

ground that inaccuracies are inconsequential. CNN’s sudden insistence

that its “editorial practices” demand the delivery of either perfectly

accurate captions or none at all stands in stark contrast to the consistent

message of Time Warner and the NCTA that inaccurate captions are

acceptable.

ii. CNN’s trade association actively lobbied to ensure that the FCC’s IP captioning requirements do not apply to the videos on CNN.com.

CNN insinuates that captioning its content pursuant to GLAD’s

request would hinder CNN’s efforts to abide by the FCC’s IP captioning

requirements. CNN Br. at 33-36. But CNN fails to acknowledge that, by

virtue of the NCTA’s lobbying efforts, the vast majority of videos on

CNN.com are not subject to the FCC’s requirements.

As of September 30, 2012, all pre-recorded, non-exempt, unedited full-

length programming published or exhibited on television with captions

must be provided with closed captions when delivered using IP to comply

25 http://apps.fcc.gov/ecfs/document/view?id=7021715163. 26 http://apps.fcc.gov/ecfs/document/view?id=7021744367.

24

with the FCC’s requirements. 47 C.F.R. § 79.4(b)(1). The FCC’s

requirements, however, exclude “video clips,” or excerpts of full-length

programming. See 47 C.F.R. 79.4(a)(2), (a)(12), (b). As CNN concedes, the

vast majority of the video programming on CNN.com consists of video

clips, largely excerpted from CNN’s full-length cable programming, E.R.

521; GLAD Br. at 5-6.

While CNN insinuates that it was simply waiting for the FCC to adopt

a technical standard before it moved forward with captioning the videos on

CNN.com, see CNN Br. at 10, CNN’s trade association was diligently

working to ensure that the FCC’s requirements would never apply to

CNN.com. The NCTA specifically advocated for the “video clips” loophole

in its comments and reply comments during the FCC’s IP captioning

rulemaking, and held numerous meetings with FCC staff urging the FCC

to include the loophole in its final rules.27 After the FCC did so, the NCTA

even opposed a pending petition for reconsideration by deaf and hard of

27 Comments of NCTA, FCC Docket No. 11-154, at 20 (Oct. 18, 2011), http://apps.fcc.gov/ecfs/document/view?id=7021715163; Reply Comments of NCTA, FCC Docket No. 11-154, at 4-5 (Nov. 1, 2011), http://apps.fcc.gov/ecfs/document/view?id=7021744372; NCTA Ex Parte Notice, FCC Docket No. 11-154, at 1 (Nov. 3, 2011), http://apps.fcc.gov/ ecfs/document/view?id=7021745134; NCTA Ex Parte Notice, FCC Docket No. 11-154, at 1 (Nov. 4, 2011), http://apps.fcc.gov/ecfs/document/ view?id=7021745325; NCTA Ex Parte Notice, FCC Docket No. 11-154, at 2 (Nov. 22, 2011), http://apps.fcc.gov/ecfs/document/view?id=7021748125; NCTA Ex Parte Notice, FCC Docket No. 11-154, at 1 (Dec. 16, 2011), http://apps.fcc.gov/ecfs/document/view?id=7021750972.

25

hearing advocates, including amici, seeking to close the loophole.

Opposition of NCTA, FCC Docket No. 11-154, at 2-6 (June 7, 2012).28

Because of NCTA’s lobbying, the vast majority of the content on

CNN.com is not subject to the FCC’s rules. Thus, CNN cannot reasonably

contend that requiring it to caption its videos under California law would

impose any standard inconsistent with or duplicative of the FCC’s rules.

III. Requiring CNN to caption its programming under California law is not precluded by federal telecommunications law.

In addition to its unwarranted First Amendment challenges, CNN

argues that Congress intended to establish the FCC as the exclusive arbiter

of closed captioning requirements, thereby precluding GLAD’s claim

under California state law under a variety of theories, including field and

conflict preemption, exclusive jurisdiction, and the Dormant Commerce

Clause. CNN Br. at 39-48, 52-54. Amici agree with GLAD that these

arguments are unavailing. GLAD Br. at 39-61. Indeed, federal

telecommunications law makes clear that the FCC’s baseline closed

captioning requirements under the CVAA and the 1996 Act are intended

merely as a floor for captioning, and not a ceiling that precludes captioning

measures under other accessibility laws.

The United States District Court for the District of Massachusetts

recently confronted and rejected arguments nearly identical to CNN’s in

Nat’l Ass’n of the Deaf v. Netflix, Inc., No. 11-CV-30168-MAP, 2012 WL

28 http://apps.fcc.gov/ecfs/document/view?id=7021922032.

26

2343666 (D. Mass. June 19, 2012). Just as CNN argues here that requiring it

to caption its programming pursuant to California law is precluded by the

CVAA and the 1996 Act, Netflix argued that requiring it to caption its IP-

delivered video programming under the Americans with Disabilities Act

was precluded by the CVAA and the 1996 Act. See Netflix, 2012 WL

2343666, at *5.

If the FCC believed that it had exclusive jurisdiction over all closed

captioning matters, it no doubt would have intervened to say so. But the

U.S. Department of Justice (“DOJ”), representing the FCC, filed an

opposition to Netflix’s arguments, specifically arguing that the FCC does not

have exclusive jurisdiction over closed captioning matters. Statement of

Interest of the United States, 2012 WL 1834803 (May 15, 2012).29 The court

largely agreed with the DOJ, concluding that “the CVAA was clearly

intended to complement, not supplant,” the requirements of general

accessibility laws such as the ADA. See Netflix, 2012 WL 2343666, at *5.

Just as CNN insists that Congress intended the 1996 Act and the

CVAA to “occupy the entire field” and “g[i]ve the FCC exclusive

jurisdiction” over closed captioning for video programming, CNN Br. at

40, 45, Netflix insisted that the CVAA and the 1996 Act effectively vested

the FCC with the exclusive authority to promulgate captioning

29 See also FCC Encyclopedia, Litigation Division, Office of General Counsel, http://www.fcc.gov/encyclopedia/litigation-division-office-general-counsel (last visited Oct. 24, 2012) (noting that the DOJ represents the FCC in federal district court).

27

requirements, thereby “removing the captioning of video programming

from the scope of the ADA,” Netflix, 2012 WL 2343666, at *5. But the Netflix

court rejected this line of argument, holding that the plain language of the

CVAA, the FCC’s well-reasoned interpretation of the statute, and the

statute’s legislative history made clear that Congress did not intend for the

baseline captioning requirements of the CVAA to “carv[e] out” captioning

requirements from the scope of other accessibility laws. Id. at *9-*10.

Netflix also argued that requiring it to caption its content under a

more aggressive timeline than set forth by the FCC would “irreconcilabl[y]

conflict” with the CVAA. Id. at *5. CNN similarly argues that requiring it to

“immediate[ly]” caption the videos under California accessibility law

would “direct[ly] conflict” with the FCC’s “phased implementation

schedule.” CNN Br. at 43. But again, the Netflix court explicitly rejected this

line of reasoning, noting that requiring a video programmer to caption its

content under a “different time line than that set by the CVAA does not

create an irreconcilable conflict” because complying with the shorter

timeline will still result in compliance with the FCC’s requirements under

the CVAA. Netflix, 2012 WL 2343666, at *6. The court noted that the FCC’s

timeline “reflects only minimum compliance standards.” Id.

Indeed, there is nothing in the FCC’s requirements that would

preclude a video programmer from providing captioning before the

effective date of the FCC’s deadlines. In fact, the FCC even “encourage[d]

28

the industry to make captions available” for programming not covered by

the FCC’s requirements. See IP Captioning Order, 27 FCC Rcd. at 818, ¶ 48.

Netflix nevertheless argued that the prohibition on “private rights of

action” for violations of the FCC’s rules under the CVAA and the 1996 Act

precluded requiring captioning pursuant to accessibility laws like the

ADA. Netflix, 2012 WL 2343666, at *7 (citing 47 U.S.C. § 613(j)). CNN

similarly argues here that the prohibition on private rights of action “gives

exclusive jurisdiction to the FCC – including over IP video.” CNN Br. at 40.

But again, the Netflix court explicitly rejected this line of argument, noting

that “the existence of an administrative complaint procedure under the

CVAA is entirely consistent with a private right of action” under general

accessibility laws like the ADA. See Netflix, 2012 WL 2343666, at *7.

The Netflix court further noted that a petitioner alleging that

programming lacks captioning may immediately proceed to litigating its

claims under accessibility law in court without first seeking relief from the

FCC, so long as at least some of the programming is not subject to the

FCC’s requirements—a result necessary to “promot[e] efficiency and

avoi[d] undue delay.” Id. at *7 & n.2. Here, CNN effectively concedes that

the primary subject of GLAD’s litigation is videos not subject to the FCC’s

requirements. See CNN Br. at 47. Indeed, nearly all the videos that GLAD

seeks to require CNN to caption on CNN.com are video clips not subject to

the FCC’s rules. See discussion, supra, at Part II.D.ii; GLAD Br. at 40-41.

Under Netflix’s clear and well-reasoned precedent, CNN’s failure to

29

caption video clips in violation of California law should be adjudicated in

court precisely because the clips are not subject to the FCC’s rules and no

administrative remedy exists.

IV. Conclusion

CNN decision not to caption its programming was not an act in

furtherance of constitutionally protected speech, and GLAD’s claims are

not foreclosed by federal telecommunications law or the FCC’s closed

captioning requirements. Accordingly, we urge this Court to affirm the

district court’s order denying CNN’s motion to strike GLAD’s claims.


/s/Blake E. Reid


30

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

29(d) and 32(a)(7)(B) because it contains 6519 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief also

complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6) because it has been

prepared in a proportionally spaced typeface, 14-point Book Antiqua,

using Microsoft Word 2008.


/s/Blake E. Reid


31

CERTIFICATE OF SERVICE

I hereby certify that on October 25, 2012, a copy of the foregoing was

filed electronically with the Clerk of the Court for the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I

certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.


/s/Blake E. Reid


docket no. 12-15807 daniel jacob, edward...

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