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

2. The 2010 Advance Notice of Proposed Rulemaking

The Department was not persuaded that strides made in making captioning and audio description technology available to moviegoers with disabilities were sufficient to make regulatory action in this area unnecessary.  However, rather than issue a final rule, the Department issued a supplemental Advance Notice of Proposed Rulemaking (2010 ANPRM) on July 26, 2010, 75 FR 43467, for three reasons.  First, the Department wished to obtain more information regarding several issues raised by commenters that were not addressed in the 2008 NPRM.  Second, the Department sought public comment on several technical questions that arose out of comments on the 2008 NPRM.  Finally, in the years since issuance of the 2008 NPRM, the Department became aware that movie theaters, particularly major movie theater chains, either had entered into, or had plans to enter into agreements with the movie studios to underwrite the conversion to digital cinema.  During that same time period, however, the United States’ economy and the profitability of many public accommodations experienced significant setbacks.  The Department, among other things, wished to gather more information about the status of digital conversion, including projections about when movie theaters, both large and small, expected to exhibit movies using digital cinema, the percentage of movie screens expected to be converted to digital cinema by year, and any relevant protocols, standards, and equipment that had been developed for captioning and audio description for digital cinema.  In addition, the Department wanted to learn whether other technologies (e.g., 3D) had developed or were in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and audio description more difficult or expensive to implement.

In the 2010 ANPRM, the Department explained that it was considering phasing in a requirement that 50 percent of movie screens offer captioning and audio description over a five-year period.  The Department did not propose any regulatory language in the ANPRM.

In order to gather the necessary information and to determine how best to frame the regulation, the Department posed 26 questions in its 2010 ANPRM.  These questions were divided into six general categories: coverage of any proposed rule; transition to digital cinema; equipment and technology for both analog and digital cinema movies; notice; training; and cost and benefits of captioning and audio description.

The Department conducted three public hearings to receive testimony on the 2010 ANPRM: the first in Chicago, Illinois, on November 18, 2010; the second in Washington, DC, on December 16, 2010; and the final hearing in San Francisco, California, on January 10, 2011.  Each hearing included a full schedule of presenters, and many individuals came to listen to the various presentations.¹⁸  These public hearings were rebroadcast on-demand through the end of the comment period (January 24, 2011) and were streamed live on the Web to viewers across the country.

The number of comments submitted by the public in response to this ANPRM was extraordinary—the Department received over 1150 comments.  Commenters included hundreds of individuals, both with and without disabilities, advocacy groups representing individuals with disabilities, 13 State attorneys general, movie industry representatives, and other organizations.  Industry commenters asked that the Department not regulate at that time or, in the alternative, require that only 25 percent of movie screens that have converted to digital have equipment to display captioning or audio description.  However, almost all other commenters supported a regulation requiring exhibition of movies with captioning and audio description.  Significantly, even though the Department did not propose that captioning and audio description be provided at all showings, the vast majority of commenters who discussed this subject advocated that the Department do just that.  In addition, most of these commenters stated that such a requirement should be implemented immediately rather than phased in over a five-year period.  Industry commenters pointed out that rolling out captioning and audio description at 20 percent per year over a five-year period would be difficult to implement and that they supported a five-year compliance schedule.