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

3. Voluntary Compliance

Some movie industry commenters asserted that because Congress suggested a voluntary approach to accessibility for exhibiting movies in the 1989 and 1990 legislative history, when only burned-in open captions on separate prints of film were available, the Department should refrain from regulating in this area now and should simply continue to rely on voluntary compliance by the movie theaters.  However, since that time, the technology to display open captions has evolved significantly and closed captioning technologies have been developed.  Both of these developments are examples of the types of “technological advances” that have enhanced “options for making meaningful and effective opportunities available to individuals with disabilities.”  H.R. Rep. No. 101-485, pt. 2, at 107.  Commenters on the 2010 ANPRM advised the Department that despite these technological advances, even at that time, few movie theaters showed movies with captioning and audio description.  In addition, these commenters advised the Department that in their experience, many theaters that had the capacity to show movies with captioning and audio description only did so for selected films shown at intermittent times.  

In the three years since the Department last received public comment on these issues after the publication of its 2010 ANPRM (see discussion below), the number of movie theaters that are showing movies with closed captioning and audio description has increased as well as the times those captioned and audio described movies are shown each week.  This described increase is attributable in some ways to settlements of Federal or State disability rights lawsuits brought by private plaintiffs or State attorneys general against individual movie theater companies in particular jurisdictions within the United States.¹⁶  Despite the success of private litigation in some areas of the country, closed captions and audio description are still not available for movies produced and distributed with these features at all theaters across the United States.  The Department believes that access to movies for persons who are deaf or hard of hearing or are blind or have low vision should not depend upon where they live.¹⁷ 

Consequently, the Department believes it is in the interest of both the movie theater industry and persons with disabilities to have consistent ADA requirements for movie captioning and audio description throughout the United States and that this is best accomplished through revising the ADA title III regulation as proposed in this NPRM.  The Department is persuaded that it should move forward with a regulation requiring captioning and audio descriptions so that the current and ever increasing numbers of individuals who are deaf or hard of hearing or blind or have low vision and who are unable to enjoy the goods and services offered by movie theaters can participate in this facet of American life.