Closed Captioning: Nancy C. Rodgers, Esq. Kissinger & Fellman, P.C. Denver, Colorado Twitter: Update for Local Govt. / PEG Channels e-NATOA, July 1, 2013

The Americans with Disabilities Act Prohibits discrimination on the basis of disability Title II of the Americans with Disabilities Act (ADA) applies to programs and services of state and local governments Local governments are required to make all programs & services accessible to persons with disabilities. 42 U.S.C. § DOJ establishes regulations for state and local govt programs Title IV - telecommunications relay services FCC establishes regulations Captioning is required for federally funded public service announcements

ADA – Title II DOJ Regulations Requires local governments to: Make reasonable modifications to policies, practices, and procedures whenever necessary to avoid discrimination, unless such modifications would fundamentally alter the service or program. 28 C.F.R. § (b)(7) Take appropriate steps to ensure that they can communicate effectively with people with disabilities, using auxiliary aids and services where necessary. 28 C.F.R. §§ (a) and (b)

ADA – Closed Captioning No specific mandate for closed captioning in the ADA Aside from federally funded public service announcements (Title IV, 47 U.S.C. Sec. 611) However, DOJs regulations list open and closed captioning as an example of an auxiliary aid that promotes effective communication (28 C.F.R. § ) The DOJ Technical Assistance Manual for Title II (1993) Audio portions of television and video-tape programming produced by public entities are subject to the requirement to provide equally effective communication for individuals with hearing impairments. Closed captioning of such programs is sufficient to meet this requirement. Tech. Asst. Man. Title II

Section 504* of the Rehabilitation Act Prohibits discrimination on the basis of disability in federal agency programs, programs receiving federal financial assistance, federal employment including employment with federal contractors. 29 U.S.C. § 794. Accommodation not necessary when it would impose an "undue hardship" 28 U.S.C. § No specific mandate for closed captioning in Section 504 However, each federal agency has its own set of Section 504 regulations. Typical regulatory requirements include Program accessibility; and Effective communication with people who have hearing or vision disabilities. *Section 508 of the Rehab Act applies to federal agencies

Which Law Governs? Which Agency Governs? ADASection 504FCC Regs. TVFCC Regs. Website State or Local Govt.*X Local Govt. program that receives federal funding XX Local Govt. program that captions on TV XX (federally funded program) X *ADA applies to any department, agency, special purpose district, or other instrumentality of a State or local government. Title II Tech. Asst. Manual II If your operation has both public and private (e.g. non-profit) features, consider these factors: 1)Are the operational funds public funds? 2)Are the employees considered govt. employees? 3)Does a govt. assist with property or equipment? 4)Is it governed by elected officials or a private board?

And dont forget state law: State anti-discrimination statutes are typically broadly worded Check the definitions of person, entity, and other operative terms to see if/how the state law applies to your organization Colorado Anti-Discrimination Act Applies to employment and access to streets, highways, sidewalks, walkways, public buildings, public facilities, and other public places California's Disabled Persons and Unruh Civil Rights Acts Netflix captioning lawsuit; at one point, the plaintiff dropped his ADA claims and re-filed the suit under more stringent and punitive state laws New Jersey Law Against Disc., N.J.S.A. § 10:5-12 et seq. Court entered summary judgment on ADA claim, but allowed state law claim to go forward in hearing interpreter case Hibbert v. Bellmawr Park Mut. Hous. Corp., 2013 U.S. Dist. LEXIS (D.N.J. Mar. 28, 2013) (involved a non-profit entity)

What are the options? Option 1: Close captioning all programs Greatly reduces the risk of a claim asserted under the ADA or Section 504, or even the FCC regulations Option 3: Caption some programming on TV and on the Internet Caption those programs which are most popular in your community or with individuals who regularly use captioning. Risk of claims may be reduced and documentation supporting the operations decision may help in a defense. However, the law is unsettled, and it is difficult to say if such a defense would be successful. Option 2: Dont caption at all Depending on your community, this may greatly increase the risk of a claim asserted under the ADA or Section 504, or even the FCC regulations

Risk-Benefit Analysis Risks: complaints, lawsuits, public relations issues, cost Number of local complaints against PEG? Unknown Number of lawsuits against PEG? Low Benefits: promote equal access and participation in government services and programs Analysis: Determine what law controls: ADA, Section 504, and/or FCC regulations Analyze the costs of captioning for television and the Internet (Remember: Caption on TV = Caption on the Internet) Captioning in general creates an undue financial burden? Document the results and keep a memorandum on file You can afford to caption, but only a couple of shows and only on TV Apply for an exemption from FCCs 2012 Regulations for the internet programming Engage members of the disabled community May help improve plan, avoid claims, and strengthen defenses to claims Any analysis should be kept on file in order to defend a complaint.

Risk-Benefit Analysis Cont. Vet this issue with your local programming experts, as well as your own attorney Any analysis should be kept on file in order to defend against a claim / complaint Prepare a risk analysis memo for budget officers, elected officials, senior staff, etc. Implementation/operational issues Budget Applicable law Community needs

Doing it….wrong There are many ADA /disability rights cases about the effectiveness of auxiliary aids and/or modified services. If you are going to caption, takes steps to make it effective. Use reliable service providers Address reliability in the service contract Address mistakes as soon as you can

Ineffective captioning is a concern and could expose the community to liability

Questions?