Is your website ADA Compliant? You could be the next test case!

Broadcasters of all shapes and sizes have come to realize they are now engaged in a multi-platform enterprise. Television broadcasters are adopting streaming options and radio stations have developed mobile “apps” for smart speakers to promote listening over Alexa, Google Assistant, Cortana and Siri. In addition, broadcasters are trying to drive views and listeners to their websites. However, many are yet to reconcile with new issues wrought by the use of such technology, in particular the obligation to make your website material equally available to all who would try to reach it.

Good corporate citizenship and risk mitigation should lead management to invest in making station websites accessible for people with disabilities. Already trending, the COVID-19 pandemic has hastened the proliferation of business to online format and advances in adaptive technology have made the internet an even more important source for many people with disabilities. As a result, it’s good business for broadcasters to make their websites accessible for people with disabilities to foster broader access, diversity, and inclusion. Another incentive: lawsuits alleging that business websites fail to comply with the Americans with Disabilities Act (“ADA”) have become ubiquitous. In recent years, more than 4,000 such suits were filed in federal courts and countless more were filed in state court systems around the country.

The case law on whether broadcasters are subject to the ADA, at all, is mixed. However, it is safe to assume, at a minimum, that when a broadcaster opens its facilities to the public, the facilities are “places of public accommodation” subject to the ADA. If a website relates to a place of public accommodation, it too is covered by the ADA.

Unfortunately, determining what is required to make a website “ADA compliant” is not entirely straight-forward. The Department of Justice (“DOJ”), the agency responsible for implementing regulations for the ADA’s general non-discrimination mandate, has yet to establish standards for private business websites. In this vacuum, many have turned to the Web Content Accessibility Guidelines, non-binding standards promulgated by an unincorporated organization called the World Wide Web Consortium (“W3C”). Though not a perfect solution, complying with these guidelines is likely the safest approach for a broadcaster seeking to make its website accessible.

I. Application of the ADA to Broadcasters.

The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ... operates a place of public accommodation.” 42 U.S.C. § 12182(a) (emphasis added). Thus, a threshold question in assessing ADA liability is whether a broadcaster is a “place of public accommodation.” That term is defined to include twelve categories of establishments, including a place of exhibition or entertainment, a place of public gathering, a service establishment, a place of public display, a place of recreation and other categories that could be stretched to include broadcasters.

There are several federal court decisions that support a position that a broadcaster’s services are non-public spaces do not fall within any of these categories. For example, in a 1995 case ruling on the NFL’s “blackout rule,” in a claim that it prevented people with hearing impairments from following the games (which were only available via radio when the blackout rule applied), the Sixth Circuit U.S. Court of Appeals found that the NFL and television broadcasters were not places of public accommodation and, thus, not subject to the ADA. In

2001, a California District Court found that, under the ADA’s plain text, neither a digital cable system nor the on-screen menus used to operate that system were places of public accommodation. Other courts have held that broadcasting studios that were not wheelchair accessible were not places of public accommodation.

However, a few notable court decisions have reached the opposite conclusion. In Rendon v. Valleycrest Prods., the Eleventh Circuit held that the telephone system used to screen potential contestants for the popular game show “Who Wants to Be a Millionaire?” discriminated against people with hearing impairments (they could not hear the questions asked on the system) and motor impairments (they could not operate the telephone keypad fast enough to record their answers) since the game show took place at a broadcasting studio, which falls within one of the enumerated categories of places of public accommodation.

In the 2012 decision Nat'l Ass'n of the Deaf v. Netflix, Inc., the court found that the website for a paid streaming service potentially fell within several of the categories of public accommodation enumerated by the ADA, holding that the web site may qualify as: a “service establishment” that provides customers with the ability to stream video programming through the internet; a “place of exhibition or entertainment” that displays movies, television programming, and other content; and a “rental establishment” in that it engages customers to pay for the rental of video programming.

While the Netflix reasoning seems to be directly at odds with earlier views expressed by the courts in Stoutenborough (NFL black out rule) and Torres (on-screen digital cable menus), it reflects some courts’ tendency to broaden the ADA by equating a virtual space, like a website, with the physical spaces listed in the ADA’s definition of “place of public accommodation.” Thus, it is quite conceivable that a court could extend similar reasoning to a broadcaster’s website, particularly as the services offered by traditional television and radio providers and pure streaming services become more similar.

In sum, there are solid arguments that a broadcaster’s non-public facilities and, by extension, websites are not places of public accommodation subject to the ADA. But, to the extent a website is used to invite public participation or to deliver content to the public the argument is weaker. For that reason, designing broadcasters’ websites to be accessible is a prudent risk mitigation measure.

II. The Lack of Government Regulations Leads to Significant Litigation Risk.

The DOJ is empowered to establish regulations to implement the ADA. In the construction space, for example, the DOJ has detailed regulations that cover everything from elevator buttons to counter height. Thus, for most ADA issues, one needs only to obtain a copy of the applicable regulations and a tape measure to determine compliance. In contrast, there are no regulations that apply to websites operated by places of public accommodations. Nor can most businesses undertake an accessibility analysis without retaining outside help. These factors have created a ripe environment for website accessibility litigation.

Using the ADA’s non-discrimination mandate plaintiffs’ attorneys in numerous states have issued thousands of demand letters and filed lawsuits contending that the plaintiff, usually a blind person, was unable to access the defendant’s website and the defendant has violated the ADA and local civil rights laws.

Resolving these suits is tricky and the DOJ has shown it is willing to intervene to protect its view of the ADA, despite failing to create any standards to assist businesses in complying with the act. For example, in Gil v. Winn Dixie Stores, Inc., the DOJ filed a statement of interest arguing that the ADA covered Winn-Dixie’s website and that the ADA would still apply even if Winn-Dixie had no physical stores; the court agreed and the plaintiff’s prolific web access lawyers were subsequently awarded $100,000 in fees. So, it seems the best defense to a website accessibility suit is maintaining an accessible site to avoid being targeted in the first place.

III. The Web Content Accessibility Guidelines Provide a Common Approach to Maintaining an Accessible Website.

The vacuum created by the lack of government-issued website accessibility regulations is frequently filled by nonbinding standards, such as the Web Content Accessibility Guidelines (“WCAG”) promulgated by the W3C, an unincorporated organization that issues protocols and standards for various aspects of web development. The W3C’s standards have been gaining prominence as a best practice in web design. They require that websites are perceivable, operable, understandable, and robust to people with disabilities, including visual, hearing, cognitive, and physical impairments. From the litigation perspective, the WCAG are commonly treated as a de facto standard by plaintiffs’ lawyers. You can find W3C’s standards here: w3.org/WAI/standards-guidelines/wcag

As a result of the focus by some public interest groups that advocate for the disabled and others, several services have evolved to help. Easily found on the web, these services claim to use automated intelligence and other techniques to scan your website for web accessibility compliance and quality assurance. Automated tests help to discover, prioritize, and fix website problems and improve the website interface and design to make it accessible and compliant with legal requirements.

Conclusion

It is important to implement internal and external website development policies that address accessibility. Incorporating accessibility into website design is becoming the new normal for most businesses. Whether or not broadcasters’ websites are subject to the ADA, being mindful about accessibility now will both enhance broadcasters’ sites for individuals with disabilities and help prevent the industry from being targeted in the next wave of website accessibility litigation.

Note: This article draws from materials first produced in conjunction with Jamie Dean, Esq. at Womble Bond Dickinson, LLP.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.