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A Massachusetts federal judge has rejected Netflix Inc.’s bid to dismiss a case against it brought by the National Association of the Deaf for failing to provide closed captioned text with its Web streaming service. But the judge stayed the case pending rulemaking by the Federal Communications Commission. On Nov. 10, Senior Judge Michael Ponsor of the District of Massachusetts’ Springfield division issued the order in National Association of the Deaf v. Netflix Inc. The other plaintiffs are Western Massachusetts Association of the Deaf and Hearing Impaired and Lee Nettles, the director of deaf and hard of hearing independent living services at the Stavros Center for Independent Living in Springfield, Mass. The plaintiffs sued Netflix under the Americans With Disabilities Act (ADA) in June after repeatedly asking Netflix to provide closed captioning on its Watch Instantly offerings. The plaintiffs asked the judge to declare that Netflix’s failure to provide closed captions violates the ADA. They also seek an injunction requiring Netflix to provide closed captioning on Watch Instantly content and to award costs and attorney fees. As streaming increases in popularity, “it threatens to be yet another barrier to people who are deaf and hard of hearing,” stated the complaint. “Plaintiffs and their members not only want to see the movies, but, like the rest of society, want to share the experience with their families, friends and co-workers,” stated the lawsuit. “The lack of captions intrudes on this ability in a way that increases the sense of isolation and stigma that the ADA was intended to eliminate.” Netflix’s dismissal motion offered three arguments for dismissing the Massachusetts case. First, it argued that the Twenty-First Century Communications and Video Accessibility Act of 2010 gives the Federal Communications Commission exclusive primary jurisdiction over the main issues in this matter. Second, it asserted that the plaintiffs lack standing under the ADA “because they have not suffered — and cannot have suffered — any injury resulting from the conduct alleged. Third, it noted that a virtually identical case was filed three months earlier in the Northern District of California, Cullen v. Netflix Inc. Alternatively, Netflix sought a transfer of the Massachusetts case to California. In the California case, Judge Edward J. Davila has not ruled on Netflix’s dismissal motion. Ponsor’s three-page order summed up his reasons for not dismissing the case, which he discussed more fully at a Nov. 8 hearing. Ponsor concluded that “dismissal under the ‘primary jurisdiction analysis’ would be improper.” He also rejected Netflix’s arguments that the plaintiffs lacked standing and found the first-filed rule “unpersuasive” for either dismissal or transfer of the case. Although Ponsor denied the company’s dismissal motion, he stayed the case until Feb. 6, 2012, pending FCC rulemaking. The agency’s rulemaking on closed captioning for on televised programming on the Internet under the Twenty-First Century Communications Act us due in mid-January. “The FCC’s determination “lies at the heart” of the matters at issue here, its expertise will throw light on some technical aspects of the case, and its determination will be of assistance to the court,” Ponsor wrote. The plaintiffs’ lawyers at Lewis, Feinberg, Lee, Renaker & Jackson of Oakland, Calif. did not respond to requests for comment. “The motion was about procedural issues and we want to get to the meat of the case,” said Arlene Mayerson, the directing attorney of the Disability Rights Education and Defense Fund Inc. of Berkeley, Calif., which also represented the plaintiffs. Sugarman, Rogers, Barshak & Cohen of Boston is local counsel for the plaintiffs. The plaintiffs did not immediately respond to requests for comment. Netflix spokesman Steve Swasey said the company does not comment on legal matters. Morrison & Foerster, which represented the company, did not respond to requests for comment. Sheri Qualters can be contacted at [email protected].

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