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

4. Availability of Movies with Captioning and Audio Description

As stated previously, movie theaters do not provide the captioning and audio description for the movies they exhibit.  Movie studios and distributors determine whether to caption and audio describe, what to caption and audio describe, the type of captioning to use, and the content of the captions and audio-description script.  In addition, movie studios and distributors assume the costs of captioning and describing movies.  Movie studios and distributors would not be required by this proposed regulation to include captioning or audio description in their product, because the mere production and distribution of movies does not make them public accommodations under the ADA.  That said, movie studios appear committed to making their movies accessible to individuals who are deaf or hard of hearing or blind or have low vision, and the Department commends their efforts.  According to the MPAA, analog movies produced with captioning by member studios in 2010 included virtually all wide-releases.²⁶  Seventy-six percent of analog movies produced by MPAA member studios were produced with audio description.  According to another industry commenter, MPAA member studios distributed 140 films in 2010, captioning 86 percent of their film product.  The MPAA, in its comments to the 2010 ANPRM, stated that by the latter part of 2010, the major studios were making captioning and audio description available on some digital movies and had announced that in 2011 almost all theatrical releases in digital format will include closed captioning.²⁷  In addition, the MPAA stated in its comments that its members intend to significantly increase the number of digital releases with audio description in 2011.  No data are publicly available on the number of movies released with captioning and audio description since 2011, but given the current trend, the Department projects that the numbers increased in 2012.  One movie theater industry commenter pointed out that while MPAA member studios distributed 140 movies in 2010, the independent studios released 473 films, a majority of which were not captioned or audio described.  The number of independent films released can be somewhat deceptive in this context, however, because MPAA member studios distribute 82 percent of the film product in the United States.  The larger independent studios, which include Dreamworks, Lionsgate, Summit, The Weinstein Company, and MGM, distribute an additional 14 percent of the domestic product, and the other independent studios distribute the remaining 4 percent of the product domestically.  It is unclear how many movies that are captioned and audio described are currently distributed by the independent studios.²⁸  It is also unclear whether, and what percentage of, movies will be made in digital format for digital cinema by these same independent studios in the future, and what percentage will be captioned and audio described.  However, if independent producers distribute their product to television, albeit in analog or digital format, captions must be included under current FCC rules.  See 47 CFR 79.1.

Despite the array of captioned and described product that is available, there are still a significant number of movie theaters that are not equipped to show movies with closed movie captions and audio description or that only show them at selected showings of particular movies.  According to NATO, as of May 2013, at least 53 percent of digital movie screens had the capacity to show movies with closed movie captions or audio description.  See Testimony of John Fithian, President and CEO of the National Association of Theater Owners, Before the U.S. Senate Committee on Health, Education, Labor and Pension (May 14, 2013), available at http://natoonline.org/wp-content/uploads/2013/08/Harkin-Hearing-Testimony-May-2013.pdf  (last visited July 14, 2014).  Three of the four largest movie theater chains have publicly committed to installing closed captioning and audio description equipment in all of their theaters that have been converted to digital.  See Press Release, Regal Entertainment Group, Regal Entertainment Group Announces New Forms of Digital Cinema Access (May 4, 2011), available at http://investor.regmovies.com/phoenix.zhtml?c=222211&p=irol-newsArticle&ID=1559531&highlight (last visited July 14, 2014); Press Release, Cinemark Holdings, Inc., Cinemark and ALDA Announce Greater Movie Theatre Accessibility for Customers who are Deaf or Hard-of-Hearing (April 26, 2011), available at http://www.cinemark.com/pressreleasedetail.aspx?node_id=22850 (last visited July 14, 2014); Press Release, Disability Rights Advocates, AMC Theatres and ALDA Announce Greater Accessibility for Deaf or Hard-of-Hearing Guests at All Digital Movie Theatres in California, (Dec. 20, 2011), available at http://www.dralegal.org/pressroom/press-releases/amc-theatres-and-ALDA-announce-greater-accessibility-for-deaf-or-hard-of (last visited July 14, 2014).