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

A. Movie Basics, Captioning, and Audio Description Generally

The very first movies were silent films.  Talking pictures, or “talkies,” added sound as a separate component in the mid-to-late 1920s.  Today, there are two formats for exhibiting movies in theaters: analog movies and digital movies.  The term analog movie describes what is generally understood as a movie exhibited in a traditional film form (generally 35 mm film). Currently, while the cinematography portion of analog movies is exhibited in a traditional film format, the sound portion of analog movies is generally provided in a digital format.  Five to six reels of film are used for a typical two-hour long analog movie.  These reels must be physically delivered to each movie theater exhibiting the movie.  Digital sound accompanying analog movies is captured on CD-ROMs or optically or digitally on the film itself.  Digital sound is synchronized to the visual images on the screen of the analog movie by a mechanism called a reader head, which reads a time code track printed on the film.

A digital movie (digital cinema), by contrast, captures images, data, and sound on data files as a digital “package” that is stored on a hard drive or a flash drive.  Digital movies are physically delivered to movie theaters on high resolution DVDs or removable or external hard drives, or can be transmitted to movie theaters’ servers via Internet, fiber-optic, or satellite networks.  Digital production, distribution, and exhibition are seen as having many advantages over analog film, including better and longer lasting image quality, availability of higher resolution images, lower production and distribution costs, ease of distribution, availability of enhanced effects such as 3D, ease of exhibition of live events or performances, and greater flexibility in arranging or increasing show times to accommodate unanticipated audience demand.

The movie picture production industry is in the midst of a large and transformative conversion to digital cinema.  This conversion is viewed by the industry as one of the most profound advances in motion picture production and technology of the last 100 years.  On May 14, 2013, an industry representative testified before Congress that the industry had nearly completed its transition to digital distribution and projection and that approximately 88 percent of all movie theater screens (nearly 35,000 screens) had already converted to digital.  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://www.help.senate.gov/imo/media/doc/Fithian.pdf  (last visited July 14, 2014).   

Captioning makes movies accessible to individuals who are deaf or hard of hearing and who are unable to benefit from the use of the assistive listening systems required for movie theaters to amplify sound.  There are, at present, two types of captions available for movies: open captions and closed captions.  The terms “closed captioning” and “open captioning” have had special meaning in the movie theater context and differ from the way the terms are used in other settings (e.g., television).  In the movie theater context, the movie industry and the courts have used the term “closed captioning” to mean that when the closed captions are in use, only the patron requesting the closed captions can see the captions because the captions are delivered to the patron at or near the patron’s seat.  The term “open captioning” has been used in the movie theater context to refer to the circumstances when the theater exhibits the captions so that all patrons see the captions on or near the screen.  By contrast, in the television context, the term “closed captioning” has been used to refer to captions that can be seen on the screen when turned on by the viewer.  In order to avoid confusion between the specific requirements in this proposed rule and the ways the terms open and closed captioning have historically been used in other settings, the Department proposes using the terms “closed movie captioning” and “open movie captioning” in the regulatory text to specifically refer to captions that are provided in movie theaters.  However, in the preamble, when discussing the history of captioning, the state of captioning technology, the legislative history of the ADA, and court decisions, the Department will continue to use the terms “closed captioning” and “open captioning” because such terms are used in the definition of auxiliary aids at 28 CFR 36.303(b).

Open movie captions are similar to subtitles in that the text of the dialogue is visible to everyone in the movie theater.  Unlike subtitles, open movie captions also describe other sounds and sound making (e.g., sound effects, music, and the character who is speaking) in an on-screen text format.  Open captions in movies were sometimes referred to as “burned-in” or “hardcoded” captions because they were burned in or incorporated into the film.  However, new open-captioning technology enables studios to superimpose captions without making a burned-in copy or having to deliver a special version of the movie.  Currently, some movie theaters exhibit open-captioned films at certain limited showings.

Closed movie captioning, as that term is used in the regulatory text of this NPRM, refers to the display of the written text of the dialogue and other sounds or sound making only to those individuals who request it.  When requested, the captions are delivered via individual captioning devices used by patrons at their seats. 

Audio description⁶ is a technology that enables individuals who are blind or have low vision to enjoy movies by providing a spoken narration of key visual elements of a visually delivered medium, such as actions, settings, facial expressions, costumes, and scene changes.  Audio description fills in information about the visual content of a movie where there are no corresponding audio elements in the film.  It requires the creation of a separate script that is written by specially-trained writers and recorded on an audiotape or CD that is synchronized with the film as it is projected.  The oral delivery of the script is transmitted to the user through infra-red or FM transmission to wireless headsets.

Movie studios decide which movies to provide with captioning and audio description and then arrange to have the captions and audio description produced.  Movie studios include these auxiliary aids in movies before the movies are distributed to movie theaters and do not charge movie theaters for this service.  Movie studios are increasing the numbers of movies produced with captioning in large part because in 1997 the Federal Communications Commission published regulations requiring programming (including movies) shown on television to be captioned. See 47 CFR part 79.

Movie theaters are defined in the proposed rule to include only facilities used primarily for the purpose of showing movies to the public for a fee.  As of the end of 2011 there were nearly 39,000 indoor movie screens in the United States and approximately 600 drive-in movie screens.  See National Association of Theater Owners, Number of U.S. Movie Screens, available at http://natoonline.org/data/us-movie-screens/ (last visited July 14, 2014).  Altogether, the four largest movie theater chains based on screen count—Regal Entertainment Group, AMC Entertainment, Inc., Cinemark USA, Inc., and Carmike Cinemas, Inc.—own or operate approximately 18,000 screens.  As of 2010, the top ten domestic movie theater chains had 55 percent of the movie screens in the United States and Canada.⁷  According to comments submitted by the National Association of Theater Owners (NATO) in response to the Department’s Advance Notice of Proposed Rulemaking on Movie Captioning and Video Description (2010 ANPRM), 75 FR 43467 (July 26, 2010) (discussed below), as of 2010, there were approximately 83 movie theater companies in the United States that own or operate 50 or more screens and, in the aggregate, these companies operate 30,432 screens in the United States.  Of the additional 931 movie theater companies that own or operate fewer than 50 screens, 450 operate four screens or fewer, and 362 owners operate one site with one or two screens.

Moreover, the number of small movie theater facilities continues to decline. Single screen and Miniplex (between two and seven screens) theaters steadily declined from 2007 to 2010, while the number of Multiplex (8-15 screens) and Megaplex (16 or more screens) theaters increased over that same time period.  See Motion Picture Association of America (MPAA),⁸ Theatrical Market Statistics (2011), available at http://www.bumpercarfilms.com/assets/downloads/movies.pdf (last visited July 14, 2014).  The decline in the number of small independently owned theaters is expected to accelerate as a result of the significant decrease anticipated in the availability of first-run films in analog format, as the majority of these small independently owned theaters are analog theaters.  In 2011, the head of the MPAA was reported to have predicted that analog films would disappear in less than three years.  See Tim O’Reiley, Theater Official Optimistic Despite Attendance Slump, Las Vegas Review Journal (March 19, 2011), available at http://www.reviewjournal.com/business/theater-official-optimistic-despite-attendance-slump (last visited July 14, 2014).  Similarly, at the spring 2013 CinemaCon industry convention, an industry analyst stated that by the end of 2015, analog film will no longer exist in cinemas, and it is likely that production of analog film in the United States will end by the end of 2013.  See Lyndsey Hewitt, Local Theaters Face Tough Times as 35 mm Faces Extinction, Sun Gazette.com (July 11, 2013), available at http://www.sungazette.com/page/content.detail/id/594504/Local-Theaters-Face-Tough-Times-as-35-mm-faces-extinction.html?nav=5016 (last visited July 14, 2014).  Consequently, some, if not most, small independently owned theaters will likely have to close if they cannot afford to convert their projection systems from analog to digital.  See also Colin Covert, Final reel plays amid digital conversion, Star Tribune (Aug. 27, 2012), available at http://www.startribune.com/entertainment/movies/167253335.html?refer=y (last visited July 14, 2014).

Despite the recent economic downturn, movies continue to be a major source of entertainment in the United States.  In 2012, moviegoers in the United States and Canada bought a record $10.8 billion in movie tickets, with the largest number of tickets (1.36 billion) sold in three years.  Motion Picture Association of America, Theatrical Market Statistics at 4 (2012), available at http://www.mpaa.org/wp-content/uploads/2014/03/2012-Theatrical-Market-Statistics-Report.pdf (last visited July 14, 2014).  Movie theaters continue to draw more people than all theme parks and major U.S. sporting events combined.  Id. at 10.