28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Captioning at movie theaters. (Section-by-Section Analysis)

The Department is considering options under which it might require that movie theater owners and operators exhibit movies that are captioned for patrons who are deaf or hard of hearing.  Both open and closed captioning are examples of auxiliary aids and services under the Department's regulation.  28 CFR 36.303(b)(1).  Open captions are similar to subtitles in that the text is visible to everyone in the theater, while closed captioning displays the written text of the audio only to those individuals who request it.  The ADA itself contains no explicit language regarding captioning in movie theaters, but the legislative history of title III states that, "[o]pen-captioning . . . of feature films playing in movie theaters, is not required by this legislation.  Film makers, are, however, encouraged to produce and distribute open-captioned versions of films and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films."  H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 389-91; S. Rep. No. 101-116 at 64 (1989). Congress was silent, however, on the question of closed captioning in movie theaters, a technology not yet developed at that time for first run movies, while acknowledging that closed captions may be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing. See H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. at 303, 391.  In addition, Congress stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities.  Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities."  Id.

Similarly, in 1991, the Department stated that "[m]ovie theaters are not required . . . to present open-captioned films," but was silent as to closed captioning.  56 FR 35544, 35567 (July 26, 1991).  The Department also noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons with hearing impairments.  Captioning is one means to make the information accessible to individuals with disabilities."  Id.  The Department cited in its regulation "open and closed captioning," as examples of auxiliary aids and services.  28 CFR 36.303(b)(1).

Captioning makes films accessible to individuals whose hearing is too limited to benefit from assistive listening devices.  Technological advances since the early 1990s have made open and closed captioning for movies more readily available and effective.  Movie theater owners generally do not pay for open movie captions; rather, the cost generally is absorbed by the movie studios.  Originally, the captions had to be burned onto select film prints, which would be distributed to theaters around the country.  These prints usually were not captioned and distributed at the same time the movie was released to the general public, but only after a film had experienced some commercial success.  This technology has evolved, however, and burning captions onto individual film prints is no longer necessary.  Due to advances in digital technology, captions can be turned on or off in digital format without having to use a separate film print with the hard captions burned on.  As a result, captions can be superimposed onto the film at theaters.  In addition, digital projection systems send all captions and audio to the theaters on a hard disk or via satellite, and a digital projector is used to display the movie.  While movie theater owners need to purchase expensive projectors in order to display digital movies, the Department understands that movie theater operators are moving to digital film and are entering into creative agreements to help finance the projectors.  Open captioning can now be done before a movie is released to the public.

Closed captioning displays the written text of the audio only to those individuals who request captioning.  With some closed captioning systems, the captions are displayed on the back wall of the theater as the movie is shown on the movie screen and reflected onto portable devices at the seats of patrons who are deaf or hard of hearing.  Another system involves captioning that the patron receives through electronic devices, such as personal digital assistants (PDAs), using mobile wireless technology.  The individual wears a pair of glasses or a head band that plugs into the PDA (i.e., a wireless transmitter sends the captions to each moviegoer using the device),  and that produces "floating" captions that appear as if they are several meters in front of the viewer's eyes. Significantly, more than half of the feature films produced by the major movie studios now provide some form of captioning. 

While the Department has not required that the movie theater industry caption its presentations, during the mid-1990s, as closed captioning became available, the Department began requiring in certain settlement agreements that presentations be closed captioned.  See Agreement Between Walt Disney World Co. and the United States (Jan. 17, 1997), available at http://www.ada.gov/disney-sa.htm (requiring captioning for film, video, and video monitors that are part of an attraction or that provide information).

The Department is aware that the courts have split on the question of whether captioning should be provided at movie theaters.  See Ball v. AMC Entm't, 246 F. Supp. 2d 17 (D.D.C. 2003) (denying defendant movie operators' motion for summary judgment and noting that a closed captioned system is an auxiliary aid or service that could be required under the ADA); Cornilles v. Regal Cinema, No. Civ. 00-173-AS, 2001 WL 34041789 (D. Or. Dec. 11, 2001) (unpub. op.) (rejecting plaintiff's request that all films at a movie theater be captioned, noting that defendants already provide some captioning); Todd v. American Multi-Cinema, Inc., No. Civ. A. H-02-1944, 2004 WL 1764686 (S.D. Tex. Aug. 5, 2004) (unpub. op.) (granting summary judgment for defendant because of plaintiffs' inability to rebut defendants' claims that providing a specific type of closed captioning constituted an undue burden).  The judge in the Ball case cited legislative history for the proposition that captioning may be required, noting that technological advances may "require public accommodations to provide auxiliary aids and services in the future which today would not be required" and that the type of accommodation and services provided . . . [under the ADA] should "keep pace with the rapidly changing technology of the times."  246 F. Supp. 2d at 22 (citing H.R. Rep. No. 101-485(II) at 108). 

Several state Attorney General Offices around the country have begun negotiating agreements and, in some instances, initiating lawsuits to ensure that movie theater owners and operators provide captioning at certain movie screenings.

Although captioning was not mentioned in the ANPRM, two commenters requested that captioning be provided and a movie theater owner urged the Department not to require movie theaters to provide captioning or narrative description services.

The Department is considering options under which it might require captioning for movies exhibited by public accommodations, while recognizing that the movie industry is in transition as more movies are made in digital format and movie theater owners and operators begin to purchase digital projectors.  Movie theater owners and operators with digital projectors have available to them different options for providing captioning than those without digital projectors.  The Department is aware of the flux in the technology used to exhibit movies and seeks comments regarding how to require captioning while the film industry transitions to a digital format.  Also, the Department is concerned about the potential cost to exhibit captioned movies, although that cost may vary depending upon whether open or closed captioning is used and whether or not digital projectors are used.  The Department is cognizant that the cost of captioning must stay within the parameters of the undue burden requirement in 28 CFR 36.303(a).

The Department is considering the possibility of requiring that, after the effective date of the revised regulation, a public accommodation will exhibit all new movies in captioned format at every showing.  The Department would not specify which types of captioning to provide, but would instead leave that to the discretion of the movie theater owners and operators.

Question 24:  Should the Department require that, one year after the effective date of this regulation, public accommodations exhibit all new movies in captioned format at every showing? Is it more appropriate to require captioning less frequently? Should the requirement for captioning be tied to the conversion of movies from film to the use of a digital format?  Please include specifics regarding how frequently captioning should be provided.