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

b.  Summary of Objectives of, and Legal Basis for, the Proposed Regulation

The proposed rule for captioning and audio description rests on the existing obligation of title III-covered facilities—such as movie theaters—to ensure that persons with disabilities receive “full and equal enjoyment” of their respective goods and services, including, as needed, the provision of auxiliary aids and services for persons who are deaf or hard of hearing or blind or have low vision.  The proposed rule states that a movie theater owner or operator is required to exhibit movies with closed captioning and audio description for all screenings so long as the movie has been produced by the movie studio or distributor with captioning or audio description (unless doing so would result in an undue burden or fundamental alteration).  The proposed rule imposes no independent obligation on movie theaters to provide captions and audio description if the movie is not available with these features.

The Department expects that implementation of the proposed rule will lead to consistent levels of accessibility in movie theaters across the country, and that patrons who are deaf or hard of hearing or blind or have low vision will be able to use captioning or audio description equipment to better understand movies being exhibited in movies theaters.

The legal basis for the Department’s proposed regulation—discussed at length in other parts of this preamble (see section II.B, supra)—rests on both title III of the ADA and its existing implementing regulation.  Title III prohibits public accommodations, which, by statutory definition, include movie theaters, from discriminating against any individual on the basis of disability in the full and equal enjoyment of their goods and services.  42 U.S.C. 12182(a).  Further, of particular import to the proposed regulation, title III also requires public accommodations to take whatever affirmative steps may be necessary “to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently * * * because of the absence of auxiliary aids and services” absent a showing of fundamental alteration or undue burden by such public accommodation.  42 U.S.C. 12182(b)(2)(A)(iii).

The Department’s recently-revised title III regulation reiterates these statutory requirements—which were first incorporated into the implementing regulation in 1991—and emphasizes that the overarching obligation of a public accommodation is to ensure effective communication with individuals with disabilities through the provision of necessary auxiliary aids and services.  28 CFR 36.303(c).  While the type of auxiliary aid or service necessary to ensure effective communication depends on several factors, including the method of communication used by the individual and the communication involved, closed captioning and audio recordings are specifically referenced as aids or services contemplated by the rule.  28 CFR 36.303(b)(1), (2).  Here, in the context of movie screenings at movie theaters, captioning is the only auxiliary aid presently available that effectively communicates the dialogue and sounds in a movie to individuals who are deaf or whose hearing impairments otherwise preclude effective use of assistive listening systems.⁴⁶  Likewise, for individuals who are blind or who have low vision, the only auxiliary aid presently available that effectively communicates the visual components of a movie is audio description.

46. Proposed § 36.303(g)(2)(ii) states that “[m]ovie theaters may meet their obligation to provide captions to persons with disabilities through use of a different technology, such as open movie captioning, so long as the communication provided is as effective as that provided to movie patrons without disabilities.”  This provision will allow theaters the option to choose newer and more cost effective technologies to provide effective communication to movie patrons, if such technologies are developed in the future.