Metropolitan News-Enterprise


Friday, October 24, 2014


Page 3


S.C. Vacates Certification Order in Suit Over Closed-Captioning


By a MetNews Staff Writer


The California Supreme Court has stepped away from a lawsuit by disability advocates who claimed that Cable News Network violated their rights by not closed-captioning news videos that appear on its website.

The justices, at their weekly conference in San Francisco Wednesday, vacated their order of several months ago agreeing to answer a certified question from the Ninth Circuit.

The Greater Los Angeles Agency on Deafness and three individuals filed a dismissal motion in the high court last month, indicating that the parties had resolved their differences. The court denied the motion, however, saying it lacked jurisdiction as long as the Ninth Circuit’s certification request was pending.

The federal panel then withdrew the request two weeks ago, leading to Wednesday’s action.

The Ninth Circuit had previously thrown out part of the lawsuit, ruling that by attacking how CNN presents its news content online, the action implicated protected activity under the anti-SLAPP statute. It also held that the plaintiffs failed to show a likelihood of prevailing on an Unruh Act claim for disability discrimination, because the lack of closed-captioning has an equal impact on all viewers.

But while the court reversed a magistrate judge’s denial of the anti-SLAPP motion with regard to the Unruh Act claim, it deferred ruling as to a claim under the California Disabled Persons Act, pending the state Supreme Court’s response to the question of whether websites are “places of public accommodation” to which the DPA guarantees “full and equal access.”

GLAD asked CNN in 2010 to closed-caption all of the video clips on its site, 100 or more of which are posted daily. The network responded that it would comply with whatever requirements the Federal Communications Commission, which was considering the issue at the time, eventually imposed.

The FCC eventually decided to require closed-captioning of “full-length video programming delivered using Internet protocol . . . if the programming is published or exhibited on television in the United States with captions,” but to exclude online video clips from the requirement.

In June 2011—six months before the FCC issued its rules on the subject—the agency filed its action in state court, before CNN removed it to the U.S. District Court for the Northern District of California, and the parties stipulated that Magistrate Judge Laura Beeler could hear the case. Beeler denied the anti-SLAPP motion on the ground the suit did not implicate protected activity, finding it unnecessary to rule on whether the plaintiff was likely to prevail under either the Unruh Act or the DPA.

Judge M. Margaret McKeown, however, in her opinion for the Ninth Circuit, said the magistrate failed to broadly construe what constitutes protected activity, as the California Legislature intended.

But the law was not clear as to whether the DPA applies to plaintiffs’ claims, so that issue should first be considered by the state high court, the judge said, rejecting CNN’s argument that the DPA claims were preempted by federal statutes or barred by the First Amendment.

The case is Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 12-15807.


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