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Netflix Inc. asked a federal judge in Massachusetts for permission to appeal his ruling that the Americans with Disabilities Act of 1990 requires the company to provide closed-captioning text for its web-only streaming video. Netflix filed a motion on July 27 asking U.S. District Judge Michael Ponsor to amend his June 19 order denying Netflix’s motion for judgment on the pleadings and to certify an appeal to the U.S. Court of Appeals for the First Circuit. Ponsor, a senior judge in Springfield, Mass., issued the order in National Association of the Deaf v. Netflix Inc. The organization, along with a number of additional advocacy groups, sued Netflix in June 2011 over its lack of closed-captioned text. In its motion, Netflix called Ponsor’s order “the broadest-ever extension of the ADA’s scope, thereby opening the door to amorphous and seemingly limitless regulation of the Internet in a way Congress did not envision and no other court has accepted.” The company added that Ponsor’s ruling, the first applying the ADA to streaming technology, conflicted with the Twenty-First Century Communications and Video Accessibility Act of 2010. That law established a regulatory scheme for closed-captioning on streaming video content. Ponsor’s order “upends settled expectations in the streaming video programming industry,” the motion argued. “In addition to these troubling consequences for Internet providers, this ruling now opens this case to broad-ranging litigation into every detail of, in particular, Netflix’s streaming video business — from the technology it invents to make streaming possible, to its relationships with third parties in the complex supply-chain ranging from upstream video content owners to downstream manufacturers of end-user devices,” Netflix’s argued. “Interlocutory review, to allow either confirmation or reversal of the Court’s decision by the First Circuit, would help settle many of the questions raised by this case — not to mention reduce the spiraling costs of this case, which, as Plaintiffs’ recent filings make clear, seeks to open Netflix’s entire streaming business to scrutiny and litigation,” the company said. Among the legal questions of first impressions the ruling raises, Netflix argued, was whether ADA regulations governing places of “public” accommodation cover the use of goods and services in private residences. Others include whether the ADA should apply to the Internet or to conduct governed by the Video Accessibility Act, and whether the scope of that law applies to all video programming or only to types formerly shown on television. The plaintiffs will oppose the motion, said Catha Worthman, a partner at Lewis Feinberg Lee Renaker & Jackson in Oakland, Calif. “We do not believe that there are grounds for interlocutory appeal because as the judge decided the issues, he did so in accord with clear First Circuit law.” The plaintiffs “want to see this case resolved as quickly as possible, and we believe that an appeal would cause unnecessary delay,” she said. Ponsor’s order was a “very, very important decision that brings the ADA into the 21st Century,” said Arlene Mayerson, directing attorney of the Disability Rights Education and Defense Fund Inc. in Berkeley, Calif., which also represented the plaintiffs. “As Main Street moves to the Internet, it’s imperative that the ADA be available for people with disabilities when they face discrimination,” she said. Sugarman, Rogers, Barshak & Cohen in Boston also represented the plaintiffs, who include the Western Massachusetts Association of the Deaf and Hearing Impaired and Lee Nettles, director of the Stavros Center for Independent Living in Springfield. Netflix’s lawyers at Morrison & Foerster did not respond to requests for comment. Netflix spokesman Jonathan Friedland said the motion was self-explanatory and declined to comment further. Sheri Qualters can be contacted at [email protected].

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