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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION * * Plaintiffs, * * v. * Civil Action No. AW-06-2266 * PRO FOOTBALL, INC., et al., * * Defendants. * * ****************************************************************************** MEMORANDUM OPINION Plaintiffs bring this action against Defendants for violations of Title III of the Americans with Disabilities Act ("ADA"). Currently pending before the Court are Defendants' Motion for Summary Judgment; Plaintiffs' Cross Motion for Summary Judgment; and Plaintiffs' Motion for Leave to File Surreply. The Court has reviewed the entire record, as well as the pleadings and exhibits, with respect to the instant motions. On September 29, 2008, the Court conducted a hearing on the pending motions. See Local Rule 105.6 (D. Md. 2008). For the reasons stated more fully below, the Court will DENY Defendants' Motion for Summary Judgment; GRANT-IN-PART and DENY-IN-PART Plaintiffs' Cross Motion for Summary Judgment; and DENY Plaintiffs' Motion for Leave to File Surreply. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs are deaf and hard of hearing individuals who are fans of the Washington Redskins football team and have attended a varying number of Redskins home games since the team began playing at FedExField. Plaintiffs plan to attend future Redskins home games. SHANE FELDMAN, et al.,

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Defendant Pro Football, Inc. ("PFI") is a Maryland Corporation that owns and operates the Redskins. Defendant WFI Stadium, Inc. ("WFI") is a Delaware Corporation that owns and operates FedExField. WFI leases FedExField to PFI for the playing of Redskins home games. Since September 1997, the Redskins have played their home games at FedExField, which seats approximately 91,000 people and is located in Landover, Maryland. On August 31, 2006, Plaintiffs filed this suit against Defendants alleging violations of Title III of the Americans with Disabilities Act ("ADA"). Plaintiffs argue that Defendants do not provide deaf and hard of hearing fans equal access to the information and announcements broadcast over FedExField's public address system. In particular, Plaintiffs assert that Defendants have refused to provide auxiliary aids and services (specifically captioning) to ensure that announcements made over the public address system are effectively communicated to deaf and hard of hearing fans. Plaintiffs' claim that auxiliary aids and services should be available in two areas of FedExField: the stadium bowl and the stadium concourse levels. Prior to the 2006 football season, with limited exception, FedExField did not caption any announcements made over the stadium's public address system. The Redskins have always offered assisted listening devices to hard of hearing fans who request one. However, Plaintiffs do not benefit from assistive listening devices. In 2002, Plaintiff Paul Singleton ("Singleton") requested that the Redskins move his seats closer to the scoreboard. The Redskins complied with Singleton's request. On June 18, 2003, Plaintiff Shane Feldman ("Feldman") sent an email to Todd Boyan of the Redskins requesting that the Redskins caption the stadium's public address system announcements on the Sony JumboTrons1

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A JumboTron is a large-screen television used to display video in sports venues.

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("JumboTron") located in each end zone at FedExField. Feldman explained that captioning would help him understand referee calls, plays during the game, and emergency announcements, such as the announcements made at FedExField during a pepper spray incident in the 2002 football season. Feldman exchanged further emails with Redskins personnel during 2003 and 2004. In those emails, Feldman and the Redskins discussed captioning on the JumboTrons and a handheld captioning system known as Colorado Captioning. On February 22, 2006, the National Association of the Deaf sent a letter to Daniel Snyder, the Redskins' owner, requesting that "all of the announcements made over the public address system at FedExField be made accessible by captioning in compliance with Title III" of the ADA. Emails and documents reflect that, from 2003 until the filing of the present action, the Redskins contemplated several solutions to accommodate deaf and hard of hearing fans. Plaintiffs filed the present suit on August 31, 2006 and served Defendants on September 6, 2006. The Redskins first home game of that season was on September 11, 2006. At that time, other than open captioning2 of an emergency evacuation video on the JumboTrons, Defendants still did not caption any of the material requested by the Plaintiffs. On October 15, 2006, FedExField began captioning certain aural content. Defendants have provided the majority of the below listed captioning at every home game since October 15, 2006. Defendants state that they intend to continue providing these captioning services indefinitely. Plaintiffs contest this intention and argue that these captioning services can be shut off with the "flip of a switch." Stadium Bowl FedExField uses a public address system to make announcements in the stadium bowl before, during, and after each home game.

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Open captioning appears on the video itself and cannot be turned off.

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FedExField has a JumboTron in each end zone. Several other scoreboards are located next to each JumboTron. During games, the JumboTrons display live action video, replays,

advertisements, public service announcements, an emergency evacuation video, and emergency text messages. Cameras in the stadium capture the live action video and replays displayed on the JumboTrons (hereinafter, "JumboTron video feed"). As discussed in more detail below, half of the televisions on the concourse levels of the stadium display the JumboTron video feed. FedExField also has two light-emitting diode ribbon boards ("LED ribbon boards") located midway between the upper and lower seating decks on each side of the stadium at the 50 yard line. Most public address system announcements are now closed captioned on the LED ribbon boards.3 A stenographer captions the material that appears on the LED ribbon boards.4 The LED ribbon boards can be seen from almost every seat in the stadium.5 Aural Content that is Currently Captioned in the Stadium Bowl

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