28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description (NPRM)

1. Rulemaking History Prior to the 2010 ANPRM

On September 30, 2004, the Department published an Advance Notice of Proposed Rulemaking (2004 ANPRM) to begin the process of updating the 1991 title II and title III regulations to adopt revised ADA Standards based on the relevant parts of the 2004 Americans with Disabilities and Architectural Barriers Act Accessibility Guidelines (2004 ADA/ABA Guidelines).  69 FR 58768.  When the Department issued the 2004 ANPRM, it did not identify movie captioning or audio description as potential areas of regulation, but several commenters requested that the Department consider regulating in these areas.

Keeping in mind that the ADA’s legislative history made clear that the ADA ought not be interpreted so narrowly or rigidly that new technologies are excluded, as the Department became aware of innovations in the field of captioning and audio description technology, it began to contemplate how these technologies might be incorporated into its ADA rules.  The need for advancement in the area of access to movie theaters was necessary because assistive listening systems in movie theaters could not be used to effectively convey the audio content of movies for individuals who are deaf or who have severe or profound hearing loss.  Additionally, there were no auxiliary aids being provided to individuals who are deaf to access the sound content of the movie or to individuals who are blind or have low vision to access the visual content of the movie.  Accordingly, the Department decided to address the topic of requiring closed captioning and audio description (referred to as narrative description) at movie theaters in its June 17, 2008, Notice of Proposed Rulemaking (2008 NPRM).  73 FR 34508, 34530.  In the 2008 NPRM, the Department stated that it was considering options under which it might require movie theaters to exhibit movies that are captioned for patrons who are deaf or hard of hearing and provide audio description for patrons who are blind or have low vision.

The 2008 NPRM did not propose any specific regulatory language with regard to movie captioning or audio description, but asked whether, within a year of the revised regulation’s effective date, all new movies should be exhibited with captions and audio description at every showing or whether it would be more appropriate to require captions and audio description less frequently.  The preamble made clear that the Department did not intend to specify which types of captioning to provide and stated that such decisions would be left to the discretion of the movie theaters.  The Department received many comments in response to its 2008 NPRM questions from individuals with disabilities, organizations representing individuals with disabilities, nonprofit organizations, state-governmental entities, and representatives from the movie industry (movie studios and movie theaters). 

Individuals with disabilities, advocacy groups, a representative from a nonprofit organization, and representatives of state governments, including 11 State attorneys general, overwhelmingly supported issuance of a regulation requiring movie theaters to exhibit captioned and audio-described movies at all showings unless doing so would result in an undue burden or fundamental alteration.  These groups noted that although the technology to exhibit movies with captions and audio description has been in existence for about 10 years, most movie theaters still were not exhibiting movies with captioning and audio description.  As a result, these groups indicated that they believed regulatory action should not be delayed until the conversion to digital cinema had been completed. 

Representatives from the movie industry strongly urged the Department not to issue a regulation requiring captioning, or if it did so, to delay the effective date so as to coincide with the completion of conversion to digital cinema.  They also objected to any requirement regarding audio description at movie theaters.  Industry commenters also said that the cost of obtaining the equipment necessary to display closed-captioned and audio-described movies would constitute an undue burden. 

For a more detailed discussion of the comments received in response to the 2008 NPRM, see 2010 ANPRM, 75 FR 43467 (July 26, 2010).