(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses?

The panel first considered the plaintiffs’ argument that it should defer to statements made by DOJ outside of its regulations that Title III applies to non-physical places, such as websites.  DOJ had taken this position in its Advanced Notice of Proposed Rulemaking (ANPRM) for accessible websites, issued in September 2010, as well as in a statement of interest it had filed in NAD v. Netflix The Court asked for specific examples of the DOJ interpreting an actual, existing statute – rather than just arguing what the DOJ thinks the law should be.

The panel also questioned whether the DOJ’s statements actually clarified the issue of whether Title III applies to websites of web-only businesses. In other words, even if the Court were to defer to the DOJ’s statements, had the DOJ really answered the question of the ADA’s applicability when it comes to websites of web-only businesses versus websites of businesses with brick and mortar locales? The Court asked eBay and Netflix why it should not find the Massachusetts District Court’s analysis in NAD v. Netflix persuasive. eBay responded that the NAD v. Netflix court relied on the First Circuit precedent Carparts, which held that Title III applies to non-physical places. There, the First Circuit had found that the inclusion of “travel services” in the list of covered places of public accommodation showed that Title III was intended to apply to more than just physical places because a “service” is not limited to a “physical” place. eBay argued that the Carparts Court’s interpretation was overly broad and that Title III’s definitions section overwhelmingly provides examples of physical places; thus, the plain language should govern the analysis.

Isn’t the day going to come when this issue is presented squarely before a court and there is going to be a determination of whether a website qualifies under Title III, the Court asked?

eBay responded that this case provides the court with that very opportunity, though noting the panel should apply prior Ninth Circuit precedent. eBay also acknowledged that Congress’s relatively recent passage of the Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA) demonstrates Congress’s awareness of the fact that certain statutes have required updating to address accessibility issues attendant to new technologies. The panel noted that DOJ is monitoring the digital accessibility situation as well. eBay responded that there is no current rulemaking activity that would answer this specific question of whether web-only businesses are public accommodations under Title III of the ADA. The DOJ’s pending Advanced Notice of Proposed Rulemaking applies to websites of public accommodations; it does not change or interpret the definition of “public accommodation,” i.e., the DOJ is not stating that a website is a place of public accommodation.

Will the Ninth Circuit affirm the district courts’ opinions that Title III only applies to websites of businesses that have a brick-and-mortar physical presence? Or, will the Court defer to the DOJ’s position on this issue? Stay tuned.