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

II. Background

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.

B. Legal Authority to Require Captioning and Audio Description

1. The ADA

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.  The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life.  The ADA also requires, in pertinent part, newly designed and constructed or altered public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities.  42 U.S.C. 12101 et seq.

Title III of the ADA prohibits discrimination on the basis of disability in the “full and equal enjoyment” of places of public accommodation (privately operated entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation––as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)––to comply with the ADA Standards.  42 U.S.C. 12181-12189.  Title III of the ADA includes movie theaters within its definition of places of public accommodation.  42 U.S.C. 12181(7)(C).  Movie studios and other entities that produce movies to be shown in theaters are not public accommodations by virtue of the making of movies, and therefore are not covered by title III in their production of movies. 

Title III makes it unlawful to discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.  42 U.S.C. 12182(a).  Moreover, title III prohibits public accommodations such as movie theaters from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals.  42 U.S.C. 12182(b)(1)(A)(ii).  Title III requires public accommodations to take “such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently * * * because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden."⁹  42 U.S.C. 12182(b)(2)(A)(iii).  The statute defines auxiliary aids and services to include “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments” and “taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments.”  42 U.S.C. 12103(1)(A)-(B).

2.  The ADA Title III Regulation¹⁰

The Department of Justice’s regulation implementing title III of the ADA provides additional examples of auxiliary aids and services that are required by the statute.  The regulation lists open and closed captioning and audio recordings and other effective methods of making visually-delivered materials available to individuals with visual impairments as examples of auxiliary aids and services that should be provided by public accommodations.  28 CFR 36.303(b)(1)-(2).  This list was revised in 2010 to reflect changes in technology and the auxiliary aids and services commonly used by individuals who are deaf or hard of hearing or blind or have low vision.  75 FR 56236, 56253-56254 (Sept. 15, 2010).  The title III regulation reiterates the requirement of the statute, stating that a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden.  28 CFR 36.303(a).  The title III regulation reflects that the overarching objective and obligation imposed by the auxiliary aids and services requirement is that a public accommodation must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.  28 CFR 36.303(c)(1).  The type of auxiliary aid or service necessary to ensure effective communication varies in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.  28 CFR 36.303(c)(1)(ii).  Moreover, in order to be effective, auxiliary aids and services must be provided in accessible formats and in a timely manner.  Id.  For individuals who are deaf or hard of hearing and are prevented from being able to effectively use the assistive listening receivers currently provided in movie theaters to amplify sound, the only auxiliary aids presently available that would effectively communicate the dialogue and sounds in a movie are captioning or sign language interpreting.  Likewise, for individuals who are blind or who have very low vision, the only auxiliary aid presently available that would effectively communicate the visual components of a movie is audio description.

As stated above, a public accommodation is relieved of its obligation to provide a particular auxiliary aid (but not all auxiliary aids), if to do so would result in an undue burden or a fundamental alteration.  To that end, the Department’s title III regulation specifically defines undue burden as “significant difficulty or expense” and, emphasizing the flexible and individualized nature of any such defense, lists five factors that must be considered when determining whether an action would constitute an undue burden.  See 28 CFR 36.104.  These factors include: (1) the nature and cost of the action; (2) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; (3) the geographic separateness, and the administrative or fiscal relationship of the site or sites in question, to any parent corporation or entity; (4) if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; and the number, type, and location of its facilities; and (5) if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.  Id.  The undue burden defense entails a fact-specific examination of the cost of a specific action and the specific circumstances of a particular public accommodation.  This defense also is designed to ensure that the needs of small businesses, as well as large businesses, are addressed and protected.

The Department defines fundamental alteration as a “modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.”  U.S. Department of Justice, Americans with Disabilities Act ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities III-4.3600, available at http://www.ada.gov/taman3.html (last visited July 14, 2014). 

If a provision of a particular auxiliary aid or service by a public accommodation would result in a fundamental alteration or an undue burden, the public accommodation is not relieved of its obligations to provide auxiliary aids and services.  The public accommodation is still required to provide an alternative auxiliary aid or service, if one exists, that would not result in such an alteration or burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods and services offered by the public accommodation.  28 CFR 36.303(g).  It is the Department’s view that it would not be a fundamental alteration of the business of showing movies in theaters to exhibit movies with closed captions and audio descriptions in order to provide effective communication to individuals who are deaf or hard of hearing or blind or have low vision.

3. The Legislative History of the ADA

While the ADA itself contains no explicit language regarding captioning (or audio description) in movie theaters, the legislative history of title III states that “[o]pen captioning * * * of feature films playing in movie theaters, is not required by this legislation.  Filmmakers are, however, encouraged to produce and distribute open-captioned versions of films, and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films.”  H.R. Rep. No. 101-485, pt. 2, at 108 (1990); S. Rep. No. 101-116, at 64 (1989).¹¹  Congress was silent on the question of closed captions in movie theaters, a technology not yet developed for use in movie theaters, but it acknowledged that closed captions might be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing.  See H.R. Rep. No. 101-485, pt. 2, at 107.  Importantly, the House Committee stated that “technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities.  Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities.”  Id. at 108.¹²  Similarly, in 1991, when issuing its original title III regulation, the Department stated in preamble language that “[m]ovie theaters are not required * * * to present open-captioned films,” but the Department was silent as to closed captioning.  56 FR 35544, 35567 (July 26, 1991).  The Department also noted, however, that “other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons with hearing impairments.  Captioning is one means to make the information accessible to individuals with disabilities.”  Id.

The legislative history of the ADA and the Department’s commentary in the preamble to the 1991 regulation make clear that although Congress was not requiring open captioning of movies in 1990, it was leaving open the door for the Department to require captioning in the future as the technology developed.  Congress did not specifically mention audio description in the legislative history; however, audio description clearly falls within the type of auxiliary aid contemplated by the ADA.  Moreover, given the present state of technology, the Department believes that mandatory requirements for captioning and audio description in movie theaters fit comfortably within the meaning of the statutory text.

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).

C. Need for Department Action

1. Importance of Movies in American Culture

Going to the movies is a quintessential American experience.  In any given month, over 56 million adults (roughly 26 percent of the adult population) make a trip to a movie theater to take in a movie.  See Experian Marketing Services, 2010 American Movie-Goer Consumer Report, available at http://www.experian.com/blogs/marketing-forward/2010/02/20/2010-american-movie-goer-consumer-report/ (last visited July 14, 2014).  Going to the movies is also an important social experience and pastime of teenagers and young adults.  And while teenagers and young adults are more likely to go to the movies than older adults, adults over 50 outnumber young adults when it comes to raw number of moviegoers.  Id.  Moreover, going to the movies is also an important part of the American family experience.  Long holiday weekends offer the movie industry some of the biggest box offices sales as families gather for the holidays and head out to the theaters together. 

Movies are a part of our shared cultural experience, “water cooler” talk, and the subject of lunch-time conversations.  The Supreme Court observed over 60 years ago that motion pictures “are a significant medium for the communication of ideas” and “may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to subtle shaping of thought which characterizes all artistic expression.  The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”  Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952).  When individuals who are deaf or hard of hearing or blind or have low vision have the opportunity to attend movies that they can actually understand because of the use of captions or audio description, they are exposed to new ideas and gain knowledge that contributes to the development of their communication and literacy. 

The Department received numerous comments from individuals with these disabilities in response to its 2010 ANPRM describing how they were unable to take part in the movie-going experience with their friends and family because of the unavailability of captioning or audio descriptions.  Many individuals felt that this not only affected their ability to socialize and fully take part in group or family outings, but also deprived them of the opportunity to meaningfully engage in the discourse that often surrounds movie attendance. 

Commenters who have some functional degree of hearing, like those who use hearing aids or cochlear implants, explained that going to the movies is frustrating and unenjoyable for them.  One commenter who wears a hearing aid and cannot benefit from assistive listening receivers currently provided in movie theaters said she often misses half the plot when she goes to a movie and has to rent the movie when it comes out on DVD so she can turn on the captions and learn what she has missed.  Several other commenters also indicated that the assistive listening receivers available at movie theaters were only suitable for individuals with mild to moderate hearing loss.

2. Numbers of Individuals with Hearing and Vision Disabilities

According to 2010 census data, 7.6 million people reported that they experienced a hearing difficulty (defined as experiencing deafness or having difficulty hearing a normal conversation, even when wearing a hearing aid).  Of those individuals, 1.1 million reported having a severe difficulty hearing.  In addition, 8.1 million people reported having some degree of difficulty seeing (defined as experiencing blindness or having difficulty seeing words or letters in ordinary newsprint even when normally wearing glasses or contact lenses).  Of those individuals, 2.0 million reported they were blind or unable to see.  See U.S. Census Bureau, U.S. Department of Commerce, P70-131, Americans with Disabilities: 2010 Household Economic Studies at 8 (2012), available at http://www.census.gov/prod/2012pubs/p70-131.pdf  (last visited July 14, 2014).  For people aged 65 or older, Census data indicated that 4.2 million had difficulty hearing (as defined by the Census), and 3.8 million reported having difficulty seeing (as defined by the Census).  Id.  As stated above, for several reasons it is unlikely that all people who reported having a vision or hearing disability to the Census would benefit from this rule.  However, hearing and vision loss are highly correlated with aging, and as the U.S. population ages,¹⁴ the number of individuals with hearing or vision loss is projected to increase significantly.  Research indicates that the number of Americans with a hearing loss has doubled during the past 30 years.  See American Speech-Language-Hearing Association, The Prevalence and Incidence of Hearing Loss in Adults, available at http://www.asha.org/public/hearing/disorders/prevalence_adults.htm (last visited July 14, 2014).  Experts predict that by 2030, severe vision loss will double along with the country’s aging population.  See American Foundation for the Blind, Aging and Vision Loss Fact Sheet, available at http://www.afb.org/section.aspx?FolderID=3&SectionID=44&TopicID=252&DocumentID=3374 (last visited July 14, 2014).  This increase will likely lead to a corresponding increase in the number of people who will need captioning or audio description.  Not all these individuals will necessarily take advantage of the movie captioning and audio description that would be provided under this proposed rule, but a significant portion of this population would be eligible to directly benefit from this proposed rule (see, infra, section VI.A.3 for a more detailed discussion of the population eligible to receive benefits).

The Department believes that captioning will be used by some persons with moderate hearing loss as well as persons with severe hearing loss or who are profoundly deaf.  Many individuals with hearing loss have difficulty discriminating among competing sounds in the movie and understanding what they hear, even if they can hear those sounds.  Sounds from other patrons can also interfere with the ability of a patron with partial hearing loss to catch all the dialogue in a movie.  Other individuals have difficulty understanding what is being said if the actors speak with foreign accents or have poor enunciation, and those patrons who rely even partly on lip reading will miss some dialogue because they cannot always see the actor’s face.  Individuals with hearing loss who have some level of improved hearing comprehension aided by hearing aids, middle ear implants, and cochlear implants, may also experience the same difficulty discriminating among competing sounds in the movie environment as those individuals with unaided partial hearing loss.¹⁵  It is critical that all of these individuals are not shut out of an emblematic part of our culture.

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.

D. The Department’s Rulemaking History Regarding Captioning and Audio Description

1. Rulemaking History Prior to the 2010 ANPRM

On September 30, 2004, the Department published an Advance Notice of Proposed Rulemaking (2004 ANPRM) to begin the process of updating the 1991 title II and title III regulations to adopt revised ADA Standards based on the relevant parts of the 2004 Americans with Disabilities and Architectural Barriers Act Accessibility Guidelines (2004 ADA/ABA Guidelines).  69 FR 58768.  When the Department issued the 2004 ANPRM, it did not identify movie captioning or audio description as potential areas of regulation, but several commenters requested that the Department consider regulating in these areas.

Keeping in mind that the ADA’s legislative history made clear that the ADA ought not be interpreted so narrowly or rigidly that new technologies are excluded, as the Department became aware of innovations in the field of captioning and audio description technology, it began to contemplate how these technologies might be incorporated into its ADA rules.  The need for advancement in the area of access to movie theaters was necessary because assistive listening systems in movie theaters could not be used to effectively convey the audio content of movies for individuals who are deaf or who have severe or profound hearing loss.  Additionally, there were no auxiliary aids being provided to individuals who are deaf to access the sound content of the movie or to individuals who are blind or have low vision to access the visual content of the movie.  Accordingly, the Department decided to address the topic of requiring closed captioning and audio description (referred to as narrative description) at movie theaters in its June 17, 2008, Notice of Proposed Rulemaking (2008 NPRM).  73 FR 34508, 34530.  In the 2008 NPRM, the Department stated that it was considering options under which it might require movie theaters to exhibit movies that are captioned for patrons who are deaf or hard of hearing and provide audio description for patrons who are blind or have low vision.

The 2008 NPRM did not propose any specific regulatory language with regard to movie captioning or audio description, but asked whether, within a year of the revised regulation’s effective date, all new movies should be exhibited with captions and audio description at every showing or whether it would be more appropriate to require captions and audio description less frequently.  The preamble made clear that the Department did not intend to specify which types of captioning to provide and stated that such decisions would be left to the discretion of the movie theaters.  The Department received many comments in response to its 2008 NPRM questions from individuals with disabilities, organizations representing individuals with disabilities, nonprofit organizations, state-governmental entities, and representatives from the movie industry (movie studios and movie theaters). 

Individuals with disabilities, advocacy groups, a representative from a nonprofit organization, and representatives of state governments, including 11 State attorneys general, overwhelmingly supported issuance of a regulation requiring movie theaters to exhibit captioned and audio-described movies at all showings unless doing so would result in an undue burden or fundamental alteration.  These groups noted that although the technology to exhibit movies with captions and audio description has been in existence for about 10 years, most movie theaters still were not exhibiting movies with captioning and audio description.  As a result, these groups indicated that they believed regulatory action should not be delayed until the conversion to digital cinema had been completed. 

Representatives from the movie industry strongly urged the Department not to issue a regulation requiring captioning, or if it did so, to delay the effective date so as to coincide with the completion of conversion to digital cinema.  They also objected to any requirement regarding audio description at movie theaters.  Industry commenters also said that the cost of obtaining the equipment necessary to display closed-captioned and audio-described movies would constitute an undue burden. 

For a more detailed discussion of the comments received in response to the 2008 NPRM, see 2010 ANPRM, 75 FR 43467 (July 26, 2010).

2. The 2010 Advance Notice of Proposed Rulemaking

The Department was not persuaded that strides made in making captioning and audio description technology available to moviegoers with disabilities were sufficient to make regulatory action in this area unnecessary.  However, rather than issue a final rule, the Department issued a supplemental Advance Notice of Proposed Rulemaking (2010 ANPRM) on July 26, 2010, 75 FR 43467, for three reasons.  First, the Department wished to obtain more information regarding several issues raised by commenters that were not addressed in the 2008 NPRM.  Second, the Department sought public comment on several technical questions that arose out of comments on the 2008 NPRM.  Finally, in the years since issuance of the 2008 NPRM, the Department became aware that movie theaters, particularly major movie theater chains, either had entered into, or had plans to enter into agreements with the movie studios to underwrite the conversion to digital cinema.  During that same time period, however, the United States’ economy and the profitability of many public accommodations experienced significant setbacks.  The Department, among other things, wished to gather more information about the status of digital conversion, including projections about when movie theaters, both large and small, expected to exhibit movies using digital cinema, the percentage of movie screens expected to be converted to digital cinema by year, and any relevant protocols, standards, and equipment that had been developed for captioning and audio description for digital cinema.  In addition, the Department wanted to learn whether other technologies (e.g., 3D) had developed or were in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and audio description more difficult or expensive to implement.

In the 2010 ANPRM, the Department explained that it was considering phasing in a requirement that 50 percent of movie screens offer captioning and audio description over a five-year period.  The Department did not propose any regulatory language in the ANPRM.

In order to gather the necessary information and to determine how best to frame the regulation, the Department posed 26 questions in its 2010 ANPRM.  These questions were divided into six general categories: coverage of any proposed rule; transition to digital cinema; equipment and technology for both analog and digital cinema movies; notice; training; and cost and benefits of captioning and audio description.

The Department conducted three public hearings to receive testimony on the 2010 ANPRM: the first in Chicago, Illinois, on November 18, 2010; the second in Washington, DC, on December 16, 2010; and the final hearing in San Francisco, California, on January 10, 2011.  Each hearing included a full schedule of presenters, and many individuals came to listen to the various presentations.¹⁸  These public hearings were rebroadcast on-demand through the end of the comment period (January 24, 2011) and were streamed live on the Web to viewers across the country.

The number of comments submitted by the public in response to this ANPRM was extraordinary—the Department received over 1150 comments.  Commenters included hundreds of individuals, both with and without disabilities, advocacy groups representing individuals with disabilities, 13 State attorneys general, movie industry representatives, and other organizations.  Industry commenters asked that the Department not regulate at that time or, in the alternative, require that only 25 percent of movie screens that have converted to digital have equipment to display captioning or audio description.  However, almost all other commenters supported a regulation requiring exhibition of movies with captioning and audio description.  Significantly, even though the Department did not propose that captioning and audio description be provided at all showings, the vast majority of commenters who discussed this subject advocated that the Department do just that.  In addition, most of these commenters stated that such a requirement should be implemented immediately rather than phased in over a five-year period.  Industry commenters pointed out that rolling out captioning and audio description at 20 percent per year over a five-year period would be difficult to implement and that they supported a five-year compliance schedule.