1. Closed Captioning: Update for Local Govt. / PEG Channels e-NATOA, July 1, 2013 Nancy C. Rodgers, Esq. Kissinger & Fellman, P.C. Denver, Colorado 303-320-6100 nancy@kandf.com Twitter: @RodgDOG72

2. 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. § 12132 • 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

3. 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. § 35.130(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. §§ 35.160(a) and (b)

4. 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, DOJ’s regulations list open and closed captioning as an example of an “auxiliary aid” that promotes effective communication (28 C.F.R. § 35.104) • 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-7.1000.

5. 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. § 52.511 • 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

6. Which Law Governs? Which Agency Governs? *ADA applies to “any department, agency, special purpose district, or other instrumentality of a State or local government.” Title II Tech. Asst. Manual II-1.2000. If your operation has both public and private (e.g. non-profit) features, consider these factors: Are the operational funds public funds? Are the employees considered govt. employees? Does a govt. assist with property or equipment? Is it governed by elected officials or a private board?

7. And don’t 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 • Hibbertv. Bellmawr Park Mut. Hous. Corp., 2013 U.S. Dist. LEXIS 44469 (D.N.J. Mar. 28, 2013) (involved a non-profit entity)

8. 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 operation’s 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: Don’t 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

9. 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 FCC’s 2012 Regulationsfor 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.

10. 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

11. 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

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

13. Questions?