Wednesday, September 28, 2011

Small victory for Netflix in Cullen v. Netflix

BY HAYLEY KOTEEN

In August, Netflix moved to dismiss the case for a number of reasons, one being that Netflix is not covered under Title III of the ADA because it is not a physical place, thus not a “place of public accommodation” as defined by the law. Because this assertion was correct Mr. Cullen filed a second amended complaint on September 5, and removed the allegation that Netflix violated the ADA. Instead, Mr. Cullen’s claims are only related to California’s consumer protection laws. Unfortunately, Netflix was correct in its assertion that the Ninth Circuit Court of Appeals (which is where the Northern District of California is located) has previously held that virtual places are not considered places of public accommodation. Netflix will likely file a motion to dismiss in the upcoming month or so.

Here are the upcoming relevant dates:

  • Motion to Dismiss Hearing: December 2, 2011
  • Class Certification Hearing Cut-Off: June 11, 2012
  • Discovery Cut-Off: October 1, 2012
  • Summary Judgment Motions: October 29, 2012
  • Summary Judgment Hearing: December 17, 2012
  • Pretrial Conference: January 7, 2013
  • Trial: February 19, 2013
Litigation is of course an important tool in enforcing civil rights laws, but in this case the plaintiffs did not have the law on their side. Litigation is also time consuming and expensive. As you can see above, if the case goes to trial, it won’t be until 2013!

Regulatory and statutory change is needed here if the Deaf community wants equal access to programming on the Internet. Last fall, the Department of Justice promulgated an Advanced Notice of Proposed Rulemaking that would change the ADA regulations and include Internet Websites as places of public accommodations under the law. Television is moving to the Internet at a rapid pace. For example, Facebook is going to start airing televisions shows, which will be available on Facebook.com and not on cable TV. As television moves to the Internet, the DOJ must change the ADA regulations so that Websites are required to caption. If the DOJ promulgates a new rule, any previous litigation about Web access under ADA Title III will no longer be relevant and plaintiffs like Mr. Cullen can be more successful in court.


ABOUT HAYLEY KOTEEN
Hayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.

Tuesday, September 6, 2011

A Deaf Child's Bill of Rights for Virginia

BY RACHEL BAVISTER

Virginia State Capitol in Richmond

In 1995, the Virginia Department for the Deaf and Hard of Hearing submitted a report to the Governor and the General Assembly. This document, “Trends in the Education of Students who are Deaf or Hard of Hearing”, also known as House Document No.51, concludes (in 1995) that:
“There exists a range of options for the education of students who are deaf or hard of hearing yet these options are neither uniformly available in the Commonwealth nor consistently of high quality. In addition, within the educational service system which delivers these options, there is a need for consistent and appropriate academic standards which recognize the unique needs of students who are deaf or hard of hearing.”
The report then makes four specific recommendations and notes that “There was a shared and strong sentiment underlying these (recommendations) that students who are deaf and hard of hearing have often not been adequately served under existing laws and regulations. Some states have used a Deaf Child’s Bill of Rights as a legislative remedy for the ills in public education for deaf students.” The Task Force which put together this report, chose not to submit a Deaf Child’s Bill of Rights at that time, but did feel that” if such a bill was introduced to the General Assembly, it should be given careful consideration.”

The Virginia Association of the Deaf has proposed a Deaf Child’s Bill of Rights (draft below), as we want to see the education of deaf and hard of hearing children receive the supervision and delivery it deserves sanctioned by the strength of law. Our rationale for this is, despite the recommendations of House Document 51, they are still only recommendations. It is our contention that the conclusions of the Task Force in 1995 would be the same today - that there is a need for consistent, appropriate, and, may we add rigorous, standards in the education of deaf and hard of hearing children in our state.

In a recent meeting with two representatives from the Virginia Association of the Deaf, Delegate Richard “Dickie” Bell (Staunton) promised to give serious consideration to our proposal and help sponsor a Deaf Child’s Bill of Rights for the Commonwealth. Delegate Bell is the same legislator who sponsored Virginia’s ASL Bill (HB 1435) which recognizes American Sign Language (ASL) for foreign language credit in high school and college. HB1435 became law on July 1, 2011. A Deaf Child’s Bill of Rights cannot be put off any longer; in our state it’s urgent!

Draft proposal of A Deaf Child’s Bill of Rights for Virginia
Modeled after NAD’s model
Every deaf and hard-of-hearing child in the Commonwealth of Virginia must be afforded the opportunity to become an independent and productive citizen, which is the goal of quality education.

A quality education for deaf and hard-of-hearing children in Virginia will include:
  • Appropriate screening and assessment of hearing and vision capabilities and communication and language needs at the earliest possible age, and the continuation of screening services throughout their educational experience. Qualified and certified individuals proficient in the language(s) of the children should perform the assessments.
  • Early intervention to provide for the acquisition of a solid language base developed at the earliest possible age.
  • Their parents’ or guardians’ full and informed participation in their educational planning.
  • Adult role models who are deaf or hard of hearing.
  • Opportunities to be educated and associate with their peers.
  • Qualified teachers, interpreters, and resource personnel who communicate effectively in the children’s mode of communication.
  • Placement best suited to each child’s individual needs, including but not limited to social, emotional, and cultural needs, with consideration for the child’s age, degree of hearing loss, academic level, mode of communication, style of learning, motivational level, and amount of family support.
  • Individual considerations for a free, appropriate education across a full spectrum of educational programs.
  • Full support services provided by qualified professionals in their educational settings.
  • Full access to all programs in their educational settings.
  • A school environment which is fully informed concerning medical, cultural, and linguistic issues of deafness and hearing loss.
  • Where appropriate, deaf and hard-of-hearing adults directly involved in determining the extent, content, and purpose of all programs that affect their education.

ABOUT RACHEL BAVISTER
Rachel Bavister is a former teacher and principal at Virginia School for the Deaf and the Blind in Staunton (1973 - 2004). She currently serves on VSDB Board of Visitors (appointed by the Governor) and is a lifelong advocate for deaf children.

Friday, September 2, 2011

Updates on the Netflix cases

BY HAYLEY KOTEEN

Cullen v. Netflix

As many of you know, back in March, 2011, Don Cullen and NAD filed a lawsuit in California Federal Court arguing that Netflix’s failure to provide captioning to more of their instant streaming titles. Recently, Netflix moved to dismiss the case arguing based on a number of legal theories. First, Netflix argues that based on the passage of the Twenty-First Century Communications and Video Accessibility Act (“TCCVAA”), Congress granted the FCC with the power to determine legal issues related to captioning. Thus, according to Netflix, the claim must be dismissed because the Federal Court does not have the authority to decide the issues related to Mr. Cullen’s and the NAD’s cause of action. Next, Netflix argues that because the Ninth Circuit has previously held that the Internet is not a physical place, that Netflix.com is not considered a public accommodation under the ADA, thus they are not required by the ADA to caption all of their video. Netflix’s third argument is that the California State laws do not protect the plaintiffs in this case because they are preempted by the TCCVAA.

In other words, Netflix claims that if the court found a violation under California State law that it would directly conflict with the TCCVAA and thus the court must follow the federal law instead. Finally, Netflix argues that there are no consumer protection violations because the plaintiffs had argued that Netflix’s failure to caption violated consumer protection laws.

Netflix began its argument with a sassy remark stating: “What happens when an online merchant, with no obligation to do so, voluntarily changes its product content to address customer suggestions? A lawsuit—for not making the changes fast enough.” I found this remark to be quite insensitive toward the needs of the Deaf and hard of hearing community. This is not simply a change to address consumer needs! This is a change that would allow equal access to those that rely on captioning to enjoy Netflix programming. Netflix here is taking a “woe is me” attitude and arguing that by addressing consumer needs and creating online streaming that they are now punished with a lawsuit because they are not captioning all of their programming. Personally, I don’t feel bad for them. They are making significantly more money because they offer online streaming and that is the risk that they took by adding such a popular service to their business.

It’s very unfortunate that Netflix will not just do the right thing and agree to the demands of the two lawsuits. Litigation will be time consuming and costly and Netflix could instead direct those resources to implementing full captioning of their streaming materials. Don Cullen and the NAD will have an opportunity to reply to Netflix’s motion to dismiss. Those replies are due on September 5, 2011 and I look forward to reading them.

NAD v. Netflix

In similar fashion to its lawsuit against Netflix in the Northern District of California, the National Association of the Deaf (“NAD”) along with the Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”) and plaintiff Lee Nettles filed a complaint on June 16, 2011, in Massachusetts Federal Court, alleging a violation of the Americans with Disabilities Act (“ADA”). Like in Cullen v. Netflix, the plaintiffs allege that Netflix violated Title III of the ADA for its failure to provide equal access to Netflix instant streaming. The complaint requests injunction and declaratory relief, which would require Netflix to caption its streaming content. Netflix moved to dismiss the case on July 29, 2011 based on the notion that Netflix believes the Massachusetts case is essentially identical to Cullen v. Netflix. In the alternative to dismissal, Netflix requested the court transfer venue to the Northern District of California where Cullen v. Netflix is currently being heard. Finally in the alternative to transferring venue, Netflix requests that any decision wait until after the FCC promulgates rules and regulations related to the TCCVAA. On August, 9, 2011, the plaintiffs filed an amended complaint, which addressed the procedural and jurisdictional issues. I look forward to following this case for updates at they come in.

Those are all of the updates for now on the two Netflix cases. Check back at the end of September to follow up on Cullen v. Netflix!


ABOUT HAYLEY KOTEEN
Hayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.

Thursday, September 1, 2011

What’s the deal?

BY OCTAVIAN ROBINSON

What’s the deal with the debt crisis talks? Congress cut an 11th hour deal before the August 2nd deadline.

So, everything’s kosher now, right? We got a deal done in time and the government is solvent. For now. The debt ceiling was raised and Tim Geithner was a happy clam. We went to bed thinking that everything was fine in our little kingdom.

We woke up and saw headlines tossing some noise our way about downgrading U.S. credit. All this talk is such a buzzkill, isn’t it? We’ve gone from celebrating a compromise and a narrowly averting a crisis to…what? Being in crisis mode again? Didn’t our truculent members of Congress manage to put aside their posturing and compromise on a deal that supposedly saved our nation from an economic crisis?

My opinion of Congress aside, let’s get to the crux of the issue—what’s the problem now?

First: what is the Debt Ceiling?

The Debt Ceiling is the limit that Congress allows the Treasury to owe to lenders. The U.S. borrows money from other countries, large banks, and bondholders to cover what we need to pay when the government doesn’t have enough revenue from taxes, income from participation in the markets, and fines.

The other option to borrowing money is to print more money—but that leads to inflation. The 1970s demonstrated that a stagnant economy combined with inflation only serves to further cripple the economy.

Breaking it down:

Congress decides that the United States must spend X amount of money. Some examples of spending include: defense, Social Security, Medicare, paychecks for Members of Congress, debt and interest repayments to lenders, and so on.

The United States government gets its money from taxes, bonds, income from participation in the markets, borrowing money, inflation by printing more money, and collecting fines.

But the United States Treasury doesn’t collect enough revenue to pay all the bills that Congress orders the government to pay.

When the government doesn’t have enough money to pay for everything, it borrows money via the U.S. Treasury by selling bonds or borrowing from other nations and large financial institutions.

Congress decides how much money the government can borrow through the Treasury thus establishing a debt ceiling. This is a ceiling established by Congress to ensure that the Treasury’s power is limited.

The U.S. Treasury cannot borrow money beyond the debt ceiling assigned by Congress.

We would have reached the debt ceiling on August 2, 2011 if Congress did not raise the debt ceiling.

Thus making the government unable to pay all the bills we have to pay and not being able to pay our creditors.

We raised the debt ceiling so why was our credit downgraded?


Congress cut back on spending- but not enough. The United States owes a lot of money and spends a lot of money—but due to projected increases in spending: especially on Social Security and Medicare with an aging population and earning less revenue due to tax cuts and a sluggish economy, creditors think the U.S. isn’t as good a credit risk it used to be. The United States is going to max out our debt ceiling again—and far too soon—because the government just doesn’t make enough money to cover all of our bills and debts. Until our economy improves and we increase revenue, creditors think we’re a good but not an excellent credit risk.

What would fix this?

Spend Less. This means cutting programs like Social Security, Medicare, Pell Grants, which Democrats don’t want to do. Spending less on defense and homeland security, which Republicans don’t want to do. Refusal to significantly reduce spending tells creditors that the U.S. isn’t serious about managing its debt or maintaining a healthy financial outlook.

Earn More. This means eliminating certain tax cuts- especially the Bush tax cuts and increasing taxes overall, which Republicans don’t want to do. The refusal to increase tax revenues also tells creditors that the U.S. isn’t serious about paying off its debts and bills.

Standard & Poor's, credit agency that downgraded the US credit rating from AAA to AA+

What does the U.S. credit downgrade mean for the average consumer?


How does the U.S. credit rating affect the individual consumer—the average Joes and Janes like you? This has never happened before and it’s hard to predict what will actually happen but here is an outline of what might come as a consequence of this downgrade.

Interest rates could be increased for loans such as car loans, mortgages, credit cards, and student loans.

If you were shopping for a new car or a new house, interest rates might be higher.

In the long run, anything you buy—a new car, a new house, whatnot—is going to cost you more.

That means people are going to decide that maybe they can just live with their old car just a while longer, or keep renting, or what not. Fewer people buying new cars, new homes, new toys/gadgets, etc means less consumption (buying) which then hurts our economy.

Less consumption means less tax revenue to the government via sales tax, corporate/business taxes, and so on. This further limits the government’s revenue.

Less consumption also means companies will have to downsize because they just don’t need as many workers- since nobody’s buying the things they’re making. Which leads to less revenue for the government via its participation in the market and less revenue from taxes. Fewer jobs mean higher unemployment rates.

Higher interest rates also means companies that owe money or need to borrow money to expand or stay in business won’t have the money to do so and won’t hire more workers—or keep the workers they do have.

The more we spend on interest, the less consumption there is. The less spending there is means less money going into the economy—to fund jobs and allow businesses to expand.

Which is bad news for people looking for jobs.

This holds potential for layoffs and erasing any economic recovery we’ve experienced since the original recession began in 2008. Even if our economy recovers, we just aren’t growing as fast as we used to and we simply don’t produce as much money.

We also face a possibility of higher tax rates. Spending more on taxes means less consumption as well.

There’s a possibility of inflation too, which means that if you’ve been saving for retirement- you’re going to have to start saving more than you did before.

Due to inflation, if it happens, the cost of living is going to get even higher while our paychecks stay flat due to a stagnant economy.

Some estimate that just a half a percent increase in our interest rate could result in the loss of hundreds of thousands of jobs in this economy.

Not all doom and gloom

The picture painted here is pretty dark and gloomy but it could be worse.

Only one rating agency, Standard & Poor, has cut our rating. The other two major rating agencies: Moody’s and Fitch haven’t downgraded our AAA rating although they’ve assigned a negative outlook. They think the outlook isn’t great—we’re spending more than we earn and the outlook for our earnings isn’t bright but they think we can still fix things before the situation goes really south.

My personal $0.02:

All right, people- so the above was just an aggregate of various news pieces and talking heads on TV—but as an historian, here’s one thing to consider: clearly we have neglected the lessons of history.
  1. Our Economy, as almighty as it is, cannot fund foreign conflict and expand social programs or cut tax revenue at the same time. This lesson was a painful lesson we learned during the Vietnam War- we spent billions waging war in Southeast Asia while spending billions on the Great Society (Head Start, Medicare, VISTA, etc). What happened was that our economy got clobbered. Our economy didn’t grow but we were hit with skyrocketing inflation and got buried in a major recession in the 1970s that took a long time to recover from. The Great Society didn’t achieve as much as legislators had hoped and our mission in Vietnam was essentially a failure while we wasted billions and crippled our economy. When 2003 rolled around, we thought it was a brilliant idea to fund two expensive wars in Afghanistan and Iraq AND issue the Bush tax cuts. Brilliant move, Congress. Brilliant.
  2. Yes, I know some defend Congress saying we didn’t think this war was going to take this long or be this expensive. They [Afganistan and Iraq] are technologically backward—just two middling little backwater desert countries. We didn’t think we’d be there more than, what, a few months? Here’s a little reminder. We said the same thing about Vietnam. A little backwater Asian country—technologically backward, not too many people. How hard could it be to win this war? Well, we were there from 1954 until 1973 and we left with our tails tucked in between our legs—and we didn’t achieve our objective. Instead, we were saddled with a crippled economy, the Great Society didn’t accomplish what it set out to achieve, and an embarrassing blow to the perception of our military might. Congress—next time we decide to wage war—let’s not assume how much it’s going to cost or how long it’s going to take—and hold off on tax cuts and increasing spending on social programs. Another option? Skip the war altogether.
  3. For those who suggest we eliminate Social Security and Unemployment Insurance, here’s a little tidbit about Social Security and Unemployment and the role they play in our economy. They aren’t just handouts.
Social Security and Unemployment Insurance were not designed as a feel good, let’s take care of our old and disabled and unemployed people move. Altruistic as they may sound—the stark reality is that the government—inspired by Keynesian economics in middle of the Great Depression—decided to put a bottom line on consumption in our country and establish programs to smooth consumption in order to guarantee that there would be a constant flow of money going into the economy regardless of the economic outlook. So the government pays Social Security benefits and Unemployment Insurance with the intent that people will spend that money—and that money goes back into the economy—keeping a minimum of consumption and providing a safety net of sorts for our economy.

Social Security and Unemployment Insurance serve an important role in maintaining a minimum of economic activity. When the cost of living increased and we experienced inflation, the smart thing to do would have been to continue cost of living adjustments for Social Security, extend unemployment benefits, and maintain a ‘baseline’ of consumption on pace with the needs of our economy.

Social Security and Unemployment Insurance play an important role in our economy and we shouldn’t be hasty about eliminating or limiting those programs.


ABOUT OCTAVIAN ROBINSON
Octavian Robinson graduated from Gallaudet University and is currently a Ph.D candidate at Ohio State University. He lives in California with his Weimaraner.

Wednesday, August 31, 2011

Keith Nolan: The fight to fight

BY JOSEPH SANTINI



Keith Nolan, 29, of California, is angling to join the Army. He fought through the ROTC and impressed his instructors so much they gave him a uniform. So why isn't he being ushered in by the nearest recruiter? They say: because he's Deaf. I say: That's not a good answer anymore.

I'm going to fight my instincts on this one. I'm ready to fight the logic I'm being presented with. I'm ready to say, He's not asking for active duty! He just wants a desk job! He's from an active family background of independent Deaf folk who pull themselves up by their own bootstraps!

But this is a defensive stance for a writer, and part of me rebels at taking such a stance, because he SHOULD have the right to join the army in whatever capacity; we have the technology to make that possible, and he certainly has the ability and intelligence. And even without the technology, I honestly believe ability is enough; we can make up for our lack of hearing, and our abilities in other areas—especially visual, but also technological—makes us a potential benefit that shouldn't be overlooked, if one is smart enough to be able to deal with a diverse group of people.



...I honestly believe ability is enough; we can make up for our lack of hearing, and our abilities in other areas—especially visual, but also technological—makes us a potential benefit that shouldn't be overlooked, if one is smart enough to be able to deal with a diverse group of people.


Now, if I make that statement in conversation—that Deaf people should have the right to join the army—I'm always given stories. People give me hypothetical situations where a Deaf soldier misses a whistle or something and as a result everybody dies. Hearing people can't imagine being Deaf—just like men couldn't imagine being women in the army, for example. Problem with this is I can hurl hypotheticals right back - what if you need a wider field of vision - better pattern recognition - what if there's so much gunfire your entire troop is deafened or concussed - who would you want at your side - a Deaf soldier used to fighting for himself, from a tradition of making things happen, or some hearing guy whose previous loudness levels haven't exceeded Lil Wayne mp3s and who runs about clutching his ears! How about guys in camoflage—pretty sure we'd have a better chance identifying them and willing to test that in the field! What about intelligence? Deaf folk can and do exist in other countries—and we can go places, begging and signing, where no other group of people can go. We aren't just a group of disabled people whining for coins in exchange for alphabet cards on the street anymore. We are now a sophisticated culture with threads and chains around the world. (And don't get me started on our skill with technology; if you can chat, use video, or download on it, Deaf people probably know how to use it. We're the communication harbingers of the world. They should keep us on staff just so they know what to buy next.)

Clearly, sometimes it takes Deaf people to see the potential of Deaf people. All of these hypothetical arguments are based on what hearing people would do if they magically became Deaf. They're not based on the experiences of people who've lived Deaf lives, whether we have CIs, hearing aids, or use ASL. All kinds of Deaf people learn our limits and often teach ourselves how to compensate for them. Just as any other group does. This is common sense—and we shouldn't be holding ourselves hostage to the expectations of others. We'd come up with ways to locate that whistle or the people who made it—and, as it has in sports and computing, our inventions would probably revolutionize the world. (The football huddle, anyone?)

Our army's administration continually stalls at diversification. The "other races" got in. The women. Gays and lesbians don't have to keep it secret any longer. Even people with flat feet made a comeback. Now DEAF people want in? But this hysteria is counterproductive. Every time we've changed and grown the population of our army, it's become stronger, not weaker. People find their own roles. Women might be physically weaker than men... but they find ways to work out and overcome that weakness, or use tools, as we apes are wont to do. If I were a commander, I'd want a trained, seasoned group... of diverse people with diverse abilities, talents and skills. That would guarantee our ability to evolve and meet any situation.



Every time we've changed and grown the population of the army, it's become stronger, not weaker.


Online, some have responded that there's plenty of "exceptions" to joining military service—and this is true. But the military evaluates and re-evaluates these exceptions all the time, as my list of diversification showed. There are Deaf people I'd rather have at my side in a difficult situation than many hearing people I know. Maybe, if Deaf people are struggling to even get a desk job, it's time to make the case and re-evaluate this one.

In Keith Nolan's case, he's looking for a position in military intelligence. He's not looking to be on the front lines—though from his face, he looks like the kind of guy I'd rather have on my side. This means there's even more places he can be used—and none of those front-line hypotheticals even apply (although, as I've pointed out, maybe they shouldn't, anyway.) I hope that military leaders see his potential benefit and stop seeing his difference as a barrier; it's a potential asset. Keith Nolan stands as a shining example of going against the odds.



ABOUT JOSEPH SANTINI
Joseph Santini is a writer, artist, teacher and activist in the New York City area. A graduate of Bristol University, he has studied under Dr. Paddy Ladd and written, filmed and drawn on Deaf issues, education and social issues for many years. His work has been published in the New York Times, been seen on several blogs, and he was named Best Emerging Artist at the Superfest Film Festival for the short film "...let us spell it out for you" encouraging support for Deaf arts. Follow his news tweets @jrscoyote.