Recently, Netflix settled a lawsuit brought by the National Association for the Deaf (NAD) that alleged that its online closed captioning practices violated the American with Disabilities Act (ADA).  As a part of the settlement, Netflix agreed to caption all of its “Watch Instantly” programming by September 30, 2014.  Until then, Netflix will provide a mechanism on its site for deaf and hard of hearing users to search for programming with captions. 

Netflix previously had filed a motion to dismiss the case, which was brought in federal court in Massachusetts.  Netflix argued, among other things, that the ADA does not apply to an online presence and that the law is preempted in the area of closed captioning by the 21st Century Communications and Video Accessibility Act of 2010, pursuant to which the Federal Communications Commission (FCC) has established new rules for closed captioning of IP-delivered programming.  However, the court ruled against the motion to dismiss. 

Under the consent decree settling the case, Netflix is not liable for devices on which its apps appear but that do not support the captioning standards contained in the consent decree.  However, Netflix must use good faith, diligent efforts to ensure that its current software and all future software updates for its apps support captioning.

As a reminder, the first compliance deadline under the FCC’s IP closed captioning rules came into effect on September 30, 2012.