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

4. Federal Appellate Case Law Addressing Captioning and Audio Description

In April 2010, the first and only Federal appellate court to squarely address the question of whether captioning and audio description are required in movie theaters under the ADA determined that the ADA required movie theater owner and operator Harkins Amusement Enterprises, Inc., and its affiliates, to screen movies with closed captioning and descriptive narration (audio description) unless such owners and operators could demonstrate that to do so would amount to a fundamental alteration or undue burden.  Arizona v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 675 (9th Cir. 2010).  The Ninth Circuit held that because closed captioning and audio descriptions are correctly classified as “auxiliary aids and services,” a movie theater may be required to provide them under the ADA, and thus, the lower court erred in holding that these services fell outside the scope of the ADA.  Id. (citing 42 U.S.C. 12182(b)(2)(A); 28 CFR 36.303).¹³

Representatives of the movie industry (movie studios and movie theater owners and operators) who commented on the 2010 ANPRM contended that exhibiting captioning is a fundamental alteration of its services.  The Department does not agree with that assertion.  As the Department asserted in its amicus brief filed in the Harkins case, exhibiting movies with captioning and audio description does not fundamentally alter the nature of the service provided by movie theaters.  The service movie theaters provide is screening or exhibiting movies.  The use of auxiliary aids to make that service available to those who are deaf or hard of hearing or blind or have low vision does not change that service.  Rather, the provision of auxiliary aids such as captioning and audio description are the means by which these individuals gain access to the movie theaters’ services and therefore achieve the “full and equal enjoyment,” 42 U.S.C. 12182(a), of the screening of movies.  See Brief for the United States as Amicus Curiae Supporting Appellants and Urging Reversal at 15-16, Harkins Amusement, supra, (9th Cir. Feb. 6, 2009) (No. 08-16075).

13. A consent decree was entered into on November 7, 2011, in which Harkins agreed to provide closed captioning and audio description at all 346 screens in its 25 movie theaters by January 15, 2013.  See Consent Decree in Arizona v. Harkins Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), ECF 131, CV07-703 PHX ROS, Approved 11/07/2011.  In February 2012, Harkins announced that it expected to have all of its theaters equipped with closed captioning and audio description by the end of 2012.  Press Release, Arizona Commission for the Deaf and Hard of Hearing, “Harkins Theatres announces closed captioning and descriptive narration devices” (Feb. 16, 2012), available at http://www.acdhh.org/news/harkins-theatres-announces-closed-captioning-and-descriptive-narration-devices (last visited July 14, 2014).