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, narrative description, and video interpreting services. (Section-by-Section Analysis)

The Department is proposing changes to § 36.303 in order to codify its longstanding policies in this area, and to propose amendments based on technological advances and breakthroughs in the area of auxiliary aids and services since the original regulation was published more than sixteen years ago.  The Department is proposing to add video interpreting services (VIS) to the regulatory text and is discussing in this preamble options for addressing captioning and narrative description.

Several types of auxiliary aids that have become more readily available have been added to § 36.303.  The Department has added a new technology in § 36.303(b)(1), video interpreting services (VIS), which consists of a video phone, video monitors, cameras, a high-speed Internet connection, and an interpreter.  The video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location), who can see and sign to the individual through a camera located on or near the monitor, while others can communicate by speaking.  The video monitor can display a split screen of two live images, the interpreter in one image and the individual who is deaf or hard of hearing in the other image.  VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day by allowing people in different locations to engage in live, face-to-face communications. Moreover, VIS is particularly helpful when qualified interpreters are not readily available (e.g., for quick responses to emergency hospital visits, in areas with an insufficient number of qualified interpreters to meet demand, and in rural areas where distances and an interpreter's travel time present obstacles).

For purposes of clarification, the Department proposes to add to § 36.303(b)(1) the exchange of written notes as an example of an auxiliary aid or service.  This common-sense example is a codification of the Department's longstanding policy with regard to title III entities, and was included in the preamble to the original regulation.  See 56 FR 35544, 35566 (July 26, 1991).  This additional example of an appropriate auxiliary aid or service was inserted because many entities do not realize that this easy and efficient means is available to them.  While the exchange of written notes is inappropriate for lengthy or complicated communications, it can be appropriate for situations such as routine purchases in a department store or at a sports arena, or as a means of communication while awaiting the arrival of an interpreter.

In § 36.303(b)(2), the Department proposes to insert additional examples of auxiliary aids and services for individuals who are blind or have low vision.  The preamble to the 1991 title III regulation makes clear that the original list was illustrative and that "additional examples such as signage or mapping, audio description services, secondary auditory programs (SAP), telebraillers, and reading machines . . . . may be considered appropriate auxiliary aids and services."  56 FR 35544, 35566.  Because technological advances in the seventeen years since the ADA was enacted have increased the range of auxiliary aids and services for those who are blind or have low vision, the Department has added additional examples, including brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology.

The Department proposes replacing the term "telecommunications devices for deaf persons (TDD's)" with "text telephones (TTYs)" in § 36.303(b)(1).  Although "TDD" is the term used in the ADA, "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  Second, the Department has inserted in § 36.303(d)(2) additional types of auxiliary aids and services that can effectively provide telephone communication for individuals who are deaf or hard of hearing.  Two of the auxiliary aids now included--public telephones equipped with volume control mechanisms and hearing aid-compatible telephones--are designed for individuals who are hard of hearing.  The third added auxiliary aid or service is VIS, which is an alternative designed for individuals who are deaf.  A public accommodation need not provide all of these auxiliary aids and services, but should offer those needed to provide effective communication.