cannot reasonably be classified as a place of public exhibition or
entertainment. Thus, neither the digital cable system nor its on-screen
channel menu can be considered a place of public accommodation within the
meaning of the ADA.
The plaintiff also cites the Code of Federal Regulations to support his
conclusion that the defendants' digital cable system can be classified as
a place of public accommodation. The applicable ADA regulation,
28 C.F.R. § 36.104, defines a place of public accommodation as, "a
facility, operated by a private entity, whose operations affect
commerce," and which falls within at least one of a series of categories
similar to the section 12181(7). 28 C.F.R. § 36.104.
The regulation further defines a facility as, "all or any portion of
buildings, structures, sites, complexes, equipment, rolling stock or
other conveyances, roads, walks, passageways, parking lots, or other real
or personal property, including the site where the building, property,
structure, or equipment is located." Id. The plaintiff argues that the
defendants' digital cable system is a place of public accommodation
within the meaning of the Code of Federal Regulations because the
system's equipment is a facility. The plaintiff points to no case law to
support that argument. The defendants' digital cable system cannot be
considered a facility, because in no way does viewing the system's images
require the plaintiff to gain access to any actual physical public
place. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16
(9th Cir. 2000) (holding that the term "place of public accommodation"
suggests that "some connection between the good or service complained of
and an actual physical place is required"). The defendants' digital cable
system is installed in the plaintiff's home. The plaintiff does not have
to travel to some physical place, open to the public, in order to
experience the benefits of the defendants' digital cable system. He
simply turns on his television set and has automatic access to the sounds
and images provided by the defendants' service.
The plaintiff does not even allege that he was denied access to a
physical place. He simply alleges that the defendants' cable services are
not as valuable to him as they would be if he were not a visually
impaired subscriber. That is not an ADA violation. The ADA only requires
that the defendants not discriminate against the visually impaired in
accessing their digital cable services. If the visually impaired have
already gained access to the defendants' services, there can be no ADA
Thus, since the defendants' digital cable system cannot be considered a
"place of public accommodation" within the meaning of the ADA, the
plaintiff's complaint must be dismissed pursuant to Rule 12(b)(6).
III. THE PLAINTIFF'S STATE LAW CLAIMS
Since the plaintiff has failed to state, a federal claim, he also has
failed to state a claim under state law, as both parties readily admit.
Because the Court finds that there is no violation of the ADA, it also
finds that there is no violation of California Civil Code §§ 54(c)
For the foregoing reasons, the defendants' motion to dismiss is GRANTED
since the plaintiff has failed to state a claim upon which relief can be
granted. Because the plaintiff cannot state a claim as a matter of law,
his complaint is dismissed with prejudice.
IT IS SO ORDERED.
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