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

Section 36.303(g) Movie Captioning and Audio Description—Definitions (Section-by-Section Analysis)

Movie Theater (Section-by-Section Analysis)

In order to make it clear which facilities are subject to the specific captioning and audio-description requirements set forth in § 36.303(g), the Department is proposing in § 36.303(g)(1)(v), to define the term “movie theater” as “a facility other than a drive-in theater that is used primarily for the purpose of showing movies to the public for a fee.”  Movie theaters include all movie theaters that exhibit movies for a fee, except drive-in movie theaters.  The term includes movie theaters that exhibit second- and third-run movies as well first-run releases.  The term is not a synonym for movie screen.  A movie theater can have one or more screens available to show movies in several auditoriums.  The term “movie theater” does not include facilities that screen movies, such as museums, hotels and resorts, or cruise ships, even if they charge an additional fee, if the facility is not used primarily for the purpose of showing movies for a fee. 

Paragraph 36.303(g) is a specific application of the auxiliary aid and service requirement for movie theaters.  Such a provision is necessary because of the technological advances in auxiliary aids and services that enable movie theaters to screen movies in a manner that provides effective communication to individuals who are deaf or hard of hearing or blind or have low vision.  The Department’s title III regulation makes clear that public accommodations that exhibit movies but are not movie theaters, such as museums and amusement parks, must provide effective communication to the public through the provision of auxiliary aids and services, including, where appropriate, captioning and audio description.  See generally 28 CFR 36.303; 28 CFR part 36, app. B.  Many such public accommodations have been providing appropriate auxiliary aids, either through open captions, closed captions, or a mix of the two, and audio description.  Even in situations in which the Department identified a need for enforcement action, these public accommodations were willing to comply with the ADA and provide such auxiliary aids and services.  See, e.g., Press Release, U.S. Department of Justice, Settlement Agreement Will Ensure Accessibility at the International Spy Museum in Washington, D.C. (June 3, 2006), available at http://www.justice.gov/opa/pr/2008/June/08-crt-489.html (last visited July 14, 2014); Press Release, U.S. Department of Justice, Walt Disney World Co. Agrees to Provide Services to Deaf and Hard-of-Hearing Guests (Jan. 17, 1997), available at http://www.justice.gov/opa/pr/1997/January97/021cr.htm (last visited July 14, 2014).

Commenters on the 2010 ANPRM advised the Department that the technology does not yet exist to exhibit movies with closed captions or audio description at drive-in movie theaters that have an outdoor patron field that is typically spread across more than eight acres.  In addition, these comments indicated that given that there are fewer than 400 drive-in theaters in the United States, it is unlikely that such technology will be developed in the near future.  Thus, the Department is proposing to exclude drive-in movie theaters from the definition of movie theater in this rule and defer rulemaking regarding drive-in theaters until such time that the necessary technology for closed captions and audio description for drive-in theaters becomes commercially available.

Question 2: Does the definition of “movie theater” adequately describe the movie theaters that should be covered by this regulation?  Are there any non-profit movie theaters that would be covered by this definition?  How many non-profit movie theaters are there?  Should drive-in movie theaters be excluded from the definition of movie theaters at this time?  Is there technology under development that might make it possible for drive-in movie theaters to provide closed captions or audio description in the future?

Audio description (Section-by-Section Analysis)

For the purposes of this subsection, the Department is proposing to add a definition for “audio description.”  In proposed § 36.303(g)(1)(i), “audio description” is defined as the “provision of a spoken narration of key visual elements of a visually delivered medium, including, but not limited to, actions, settings, facial expressions, costumes, and scene changes.”

In the Department’s July 26, 2010, ANPRM, the Department used the term “video description” to define the process and experience whereby individuals who are blind or have low vision are provided with a spoken narrative of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes.  The Department received several comments addressing whether it should continue to use the term “video description” or other terms, including “audio description.”  The majority of commenters addressing this issue supported the use of the term “audio description,” stating that audio description has been used since 1981 as the term of art to describe using language to provide access to visual images, and pointing out that the National Endowment for the Arts and the Graphic Artists Guild both use the logo “AD” to indicate the availability of audio description.  In addition, audio description more appropriately describes the type of auxiliary aid involved, because the process involves providing information that is experienced aurally.  In response to these comments, the Department has been persuaded to change the nomenclature for this process to “audio description.” 

Question 3: Should “audio description” be the nomenclature adopted in the final rule?

Closed movie captioning (Section-by-Section Analysis)

The Department notes that the term “closed captioning” is referenced in the examples of auxiliary aids and services in § 36.303(b).  That section refers to “closed captioning” in the much broader context of auxiliary aids and services that must be provided by a wide range of public accommodations subject to title III.  In order to distinguish between the general auxiliary aid and service requirement and the “closed captioning” that is required by § 36.303(g)(2), the Department is proposing to define the term “closed movie captioning” specifically as it applies to movie theaters.  In § 36.303(g)(1)(ii), the Department proposes to define “closed movie captioning” as “the written text of the movie dialogue and other sounds or sound making (e.g., sound effects, music, and the character who is speaking). Closed movie captioning is available only to individuals who request it.  Generally, it requires the use of an individual captioning device to deliver the captions to the patron.”

The Department received one comment encouraging it to use the term “individual captioning” instead of “closed captioning” to refer to the circumstances where captions are received through the use of individual devices.  This commenter distinguished between three types of captioning: open captioning, where the captions are displayed on the screen and cannot be turned off; closed captioning as the term is used in the context of television and video where the captions can be turned on or off, but when they are displayed everyone in the room sees them; and individual captioning systems, where only the individual viewer sees the captions, but they are not displayed to the entire audience.  As stated earlier, the Department wishes to avoid confusion between the “closed captioning” provided on television and in other venues, and those provided in movie theaters.  However, it believes its proposed term “closed movie captioning” will address that concern without introducing a term that is wholly different from that currently used by the movie industry and the courts.

Question 4: Should the Department use the term “closed movie captioning” to refer to the type of captioning provided by movie theaters to individuals who view the captions at their seats?  Is there a different term that should be used in order to distinguish between the closed captioning referred to in § 36.303(b) and the captioning required for movie theaters in proposed § 36.303(g)(2)?

Individual audio description listening device (Section-by-Section Analysis)

In § 36.303(g)(1)(iii), the Department is proposing to define “individual audio description listening device” as the individual device that patrons may use at their seats to hear audio description.

Individual captioning device (Section-by-Section Analysis)

In § 36.303(g)(1)(iv), the Department is proposing to define “individual captioning device” as “the individual device that patrons may use at their seats to view the closed captions.”

Open movie captioning (Section-by-Section Analysis)

The Department notes that the term “open captioning” is already referenced in the examples of auxiliary aids and services provided in § 36.303(b).  That section refers to “open movie captioning” in the much broader context of auxiliary aids and services that must be provided by the wide range of public accommodations subject to title III.  In order to distinguish between the general auxiliary aid requirement and the “open captioning” that is referenced in § 36.303(g)(2)(ii), the Department is proposing to define the term “open movie captioning” specifically as it applies to movie theaters.  In § 36.303(g)(1)(vi), the Department proposes to define “open movie captioning” as “the provision of the written text of the movie dialogue and other sounds or sound making in an on-screen text format that is seen by everyone in the theater.”

Question 5: Should the Department use the term “open movie captioning” to refer to the type of captioning that is viewed on or near the movie screen by everyone in the movie theater audience?  Is there a different term that should be used?