Media Law Updates: ADA Suit Against S.C. Newspaper; FCC Net Neutrality Repeal Upheld, While Repeal of Cross-Ownership Ban Vacated

My October column for the South Carolina Press Association updates two prior columns with new developments:


ADA Lawsuit Over South Carolina Newspaper’s Web Site: In August I wrote about the question of whether the requirements that businesses accommodate disabilities apply to websites, including the sites of newspapers and other news organizations. At the time, we knew that such a lawsuit had been filed against a chain of weekly newspapers in Oregon.

Now, a similar lawsuit has been threatened against a small daily newspaper here in South Carolina. In a letter to the newspaper, a California attorney claims that his client, who is blind, attempted to access the newspaper’s website but was unable to do so because the site does not meet accessibility standards for the blind.

An obvious question is whether a California court would have jurisdiction over such a case. It’s not clear, since the plaintiff will usually have to show that the party being sued intentionally targeted users in California, or that the party could have reasonably foreseen that it would have impact in that state. What is clear is why such a lawsuit would be filed in California: while the federal Americans with Disabilities Act (ADA) only allows winning plaintiffs to receive an injunction forcing compliance and to recover attorney fees, California state law allows for damages.

Accordingly, the letter to the newspaper suggests that litigation can be avoided by the newspaper agreeing to a negotiated settlement.

Despite this threat, it is not clear that the ADA and similar state laws even apply to websites, particularly when a site is not affiliated with an actual, physical place open to the public, such as a store, hotel or restaurant.

As I noted in August, the federal appeals courts have split on the question. Four of the twelve appellate courts have held that lawsuits may be brought over business’s websites only when the sites reinforce a limitation also imposed at the business’s physical locations, while two appeals courts, plus lower courts within a third, have held that ADA lawsuits can be sustained over a website itself, regardless of accessibility of a company’s physical facilities.

This latter rationale could allow lawsuits against newspapers and other news organizations whose websites do not meet accessibility standards.

The Fourth Circuit Court of Appeal, which includes South Carolina, has not ruled on this question. But in January it did affirm the dismissal of a lawsuit over accessibility of a credit union’s website when the plaintiff did not meet the criteria for membership in the credit union.

In another new development, in early October the U.S. Supreme Court declined to review a case that could have resolved this question. In that case, the Domino’s pizza chain had asked the U.S. Supreme Court to review a ruling allowing a similar lawsuit over its website alone.

The result of the Supreme Court’s (in)action, one law firm has written, will be to  continue the “wild west” situation regarding ADA lawsuits against websites. Unfortunately newspapers in Oregon and now here in South Carolina appear to be the first targets.

FCC Net Neutrality Repeal Upheld, But Broadcast-Newspaper Cross-Ownership Repeal Reversed: Back in Dec. 2017, I wrote about two decisions by the Federal Communications Commission that could affect newspapers: the repeal of net neutrality rules, and the repeal of rules barring cross-ownership of a newspaper and television station in the same market.

The net neutrality rules, adopted by the Commission during the Obama administration, would have barred internet service providers from either favoring or disfavoring certain online content over other content by providing faster, prioritized access to the favored content. Then, after President Trump’s election, the FCC under new leadership voted to repeal the rule.

That repeal was upheld by a federal appeals court in an Oct. 1 decision. But the court vacated the FCC’s declaration that states could not adopt their own net neutrality rules.

Many of the concerns of net neutrality advocates are so far primarily theoretical. But without net neutrality rules in place, the accessibility of individual newspapers’ websites and cellphone apps could depend on the specific circumstances in their markets, and their relationships with local internet access providers. Chain-owned newspapers may, for example, be able to afford prioritization from ISPs. And dominant newspapers may have enough customer support to avoid being deprioritized, so that customers will object if an ISP blocked or limited access, while smaller and independent newspapers may not.

Regarding ownership, in Nov. 2017 the FCC voted to rescind rules that barred common ownership of a full-power broadcast radio or television station and daily newspaper in the same market. The goal of these rules, which were first adopted in 1975, was to promote diversity in media ownership, and to prevent a single entity from monopolizing the media in a particular area.

But on Sept. 23 a federal appeals court vacated the repeal, with the majority holding that the change, in addition to other changes in broadcast ownership rules adopted at the same time, was not based on enough evidence that the pre-existing rules limited diversity of ownership, and that the new rules would promote such diversity.

FCC Chair Ajit Pai said that the commission would ask the U.S. Supreme Court to review the ownership ruling.