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Court of Appeals Rules Plaintiff Not Required to Exhaust Remedies under CVAA Before Bringing ADA Suit

C.P. Hoffman 10/12/18

A recent decision by the Eleventh Circuit Court of Appeals in Atlanta could mean trouble for organizations and governmental bodies that stream video on their websites without providing closed captioning.

The case, Sierra v. City of Hallandale Beach, Florida, was brought by Eddie Sierra, who is deaf. Sierra alleged that Hallandale Beach failed to provide closed captioning for videos hosted on its websites and Facebook page, in violation of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

Key Takeaways

  • The Eleventh Circuit Court of Appeals ruled that plaintiffs may file an ADA or Rehabilitation Act suit alleging lack of closed captioning on streaming video without first filing a CVAA complaint with the FCC.
  • The decision is in line with a 2014 decision by the Ninth Circuit Court of Appeals, which reached the same conclusion.
  • The decision reversed the dismissal of a lawsuit against the City of Hallandale Beach, Florida, and the case may now proceed.
  • Local governments, educational institutions, streaming video providers, and other organizations that have video content on their website need to make sure it is accessible to individuals who are deaf or hard of hearing.
  • This is the third pro-plaintiff decision in a web accessibility case from the Eleventh Circuit since June.

IScales of Justicen January 2018, however, Sierra’s case was dismissed by federal judge Federico A. Moreno of the United States District Court for the Southern District of Florida. In his decision, Judge Moreno held that Sierra must first file a complaint with the Federal Communications Commission (FCC) in order to “exhaust his administrative remedies” under the Twenty-First Century Communications and Video Accessibility Act (CVAA). Only after the completion of the FCC’s review would Sierra be able to file suit under the ADA or Rehabilitation Act.

Under the CVAA, video programming that appears on television must maintain closed captioning when distributed over the internet, and videos initially distributed online must have closed captioning added if they are later shown on television. Judge Moreno determined that the videos on the City of Hallandale Beach’s website were, in fact, aired on television, bringing them into the FCC’s jurisdiction.

Sierra appealed the decision to the Eleventh Circuit Court of Appeals, which in late September reversed Judge Moreno’s decision, allowing the case to proceed. While the Eleventh Circuit panel agreed that the CVAA applied to the videos shown on the Hallandale Beach website, the panel disagreed that exhaustion of CVAA remedies was required before ADA or Rehabilitation Act claims could be pursued.

In making this determination, the Eleventh Circuit panel pointed to a clause in the Communications Act of 1934, which the CVAA amended, preserving pre-existing rights of action. The Eleventh Circuit thus found that while the FCC had exclusive jurisdiction for complaints under the CVAA itself, the law did not have bar plaintiffs from raising similar issues in federal court under other statutes. In reaching its decision, the panel cited the Ninth Circuit Court of Appeal’s 2014 decision in Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc., which reached the same conclusion.

The Eleventh Circuit also declined to dismiss Sierra’s case on the basis of the primary-jurisdiction doctrine, which “applies when a court maintains over jurisdiction over a matter but nonetheless abstains for prudential reasons,” such as when an agency has special expertise on a legal issue or there is a need for uniform interpretation of a law. But, the panel found this not to be the case, as the complaint was not brought under the CVAA, the area of the FCC’s expertise: “Though the FCC undoubtedly has expertise on closed-captioning requirements, its charge under the CVAA bears not one iota on what constitutes a violation under the Rehabilitation Act or ADA.”Justice system icon

The panel also emphasized that the FCC had previously emphasized that petitioners maintained the ability to file suit in federal court, including in a case brought by Sierra himself. The panel took this as evidence that the FCC did not itself believe deference was warranted.

The case now returns to the District Court for further proceedings before Judge Moreno.

The decision has major implications for any organization that hosts video content on its website, whether they be government agencies, educational institutions, streaming video services, or even retailers. The existence of the FCC’s CVAA complaint procedure does not bar plaintiffs who are deaf or hard of hearing from bringing suit under the ADA, Rehabilitation Act, or other accessibility laws.

Sierra v. City of Hallandale Beach, Florida is the third pro-plaintiff decision from the Eleventh Circuit in a web accessibility case since June, following earlier decisions in Haynes v. Dunkin’ Donuts LLC and Haynes v. Hooters of America, LLC, reversing lower court dismissals of web accessibility complaints.

This trio of decisions could add to the wave of web accessibility litigation that has hit Florida for the past year. Between June and August alone, at least 189 web accessibility suits under the ADA were filed in federal courts in Florida, 13 of which were against municipal and county governments. With three pro-plaintiff decisions by the Court of Appeals, the amount of litigation is likely to continue to increase in the future.

This blog post is for informational purposes only and does not constitute legal advice.

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