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

III. General Issues

A. Current State of the Technology for Exhibiting Movies with Captioning and Audio Description and Availability of Product

1. Captioning and Audio Description for Analog Movies

It is the Department’s understanding, based upon independent research and the comments received in response to the 2010 ANPRM, that because of the major movie theater companies’ commitment to the transition to digital cinema, research and investment into ways to deliver closed captioning has shifted away from analog movies to digital cinema.  As such, there is only one product currently available on the market for providing closed captions for analog movies: Rear Window® Captioning (Rear Window® or RWC).  RWC, when combined with audio description provided by DVS-Theatrical® (DVS), is called MoPix® systems.¹⁹

Unlike open captions that are burned onto the film itself, Rear Window® captions (and audio description) are generated via a technology that is not physically attached to the film and does not require that a separate copy of the film be made.  The Rear Window® and audio-description systems work through a movie theater’s digital sound system using Datasat Digital Entertainment’s media player with captioning subtitling system (formerly DTS Digital Cinema).²⁰  The Datasat™ player sends the captions to a light-emitting diode (LED) display in the rear of the movie theater.  A clear adjustable panel mounted on or near an individual viewer’s seat reflects the captions correctly and superimposes them on that panel so that it appears to a Rear Window® user that the captions are on or near the movie image.  This technology enables a movie theater that has been equipped with a Rear Window® Captioning system to exhibit any movie that is produced with captions at any showing, without displaying captions to every moviegoer in the theater.  Thus, individuals who are deaf or hard of hearing may enjoy movies in a movie theater equipped with such a system alongside those who do not require captioning and who would not see the captions being displayed.  Movie theaters can also exhibit movies with open captions for analog movies by using the same Datasat™ system, with a second projector to superimpose the captioned text directly onto the movie screen. 

Audio description makes movies more accessible to individuals who are blind or have low vision by providing narrated information about key visual elements of the movie, such as actions, settings, and scene changes.  The audio description is sent by the Datasat™ media player to infra-red or FM listening systems, then on to movie patrons wearing headsets.

According to comments from the WGBH National Center for Accessible Media (NCAM), as of mid-2010, MoPix® systems had been installed in more than 400 screens in the United States and Canada.²¹  Once a movie theater is equipped with a MoPix® system, captioning and description data are supplied on data disks, which arrive in advance of the film’s debut.  According to NCAM, virtually every major Hollywood studio participates in captioning and description of their A-title feature analog movies in one form or another, and many of the major exhibition chains, as well as many smaller chains, provide captions and descriptions regularly in some of their theaters. 

The Department understands that while the industry is rapidly moving to digital cinema, some theaters, particularly very small independent movie theaters, may continue to exhibit analog movies as long as such a product remains available.  The Department also understands that with the transition to digital cinema, a secondary market for closed-captioning equipment for analog movies may develop because some movie theaters may choose not to retain this equipment, thereby making the analog equipment cheaper to acquire.

Question 1a: Availability of Analog Film Prints

The Department is interested in any recent data available about the likelihood that analog film prints will be available after 2015 either from the major studios, from smaller independent studios, or from small independent filmmakers.  What is the likelihood that analog film prints will be available in five years?  Will analog versions of older movies continue to be available for second or third run showings?  How many movies will continue to be produced in both analog and digital formats?

Question 1b: Availability of Movies with Captions and Audio Description 

What percentage of currently available analog films has been produced with captions or audio description?  How many movies will be produced with captions and audio description in both analog and digital formats?  What is the likelihood that existing analog movies that currently do not have captions or audio description will be converted to digital formats and then only the digital format would have those accessibility features?  Will those older analog movies that are currently available with captions continue to be available with captions?

Question 1c: Economic Viability of Analog Theaters

How many analog theatres currently show first-run movies?  If first-run analog movies are no longer produced, will analog theaters be economically viable and what types of movies would these theaters rely on to generate revenue?  How many analog theaters are likely to close as the result of these changes in the market?  Will this rule affect the pace by which analog theaters convert to digital cinema?  If so, how?  Will analog theatres converting to digital cinema convert all screens at the same time?

2. Captioning and Description for Digital Cinema

Since publication of the 2008 NPRM, a significant change has occurred in the industry, both in terms of the technology available for digital cinema and the speed at which movie theaters are converting to digital cinema.  With the move to convert to digital cinema systems, the technology and equipment available for these systems has expanded accordingly.  Digital cinema, which began to be developed in 2000, consists primarily of a digital server and a digital projector.  The content of the digital movie can be distributed digitally, often using a hard drive, optical disks, or satellite.²²  See, e.g., Michael Karagosian, Accessibility in the Cinema (June 3, 2010), available at http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf  (last visited July 14, 2014).  Unlike analog movies, digital cinema does not need splicing after delivery to the movie theater, thereby eliminating the risk of nicks to the film, and does not degrade over time or with repeated use.  It also is “unlocked,” which means there are no technology-based royalties to be paid for distributing the content.  Id.  According to comments from NCAM, captions and audio description are included in the digital cinema package (DCP).  The DCP contains the entire movie in electronic form (images, soundtrack, anti-piracy data, and if provided by the studios, captioning and description).  When ordering a DCP, movie theaters have the option to request either an open-captioned or a closed-captioned version of the movie.  If an open-captioned version is requested, no other equipment (such as an interface or personal user devices) is necessary in order to display a movie with the captions exhibited.

As digital cinema technology has advanced, the options and methods available for exhibiting movies with captioning and audio description have also expanded.  Members of the industry, manufacturers, and other interested parties worked together to ensure interoperability of digital cinema components through standards adopted by the Society of Motion Picture and Television Engineers (SMPTE), so that products that provide captioning and audio description would be compatible with the various digital cinema systems available for purchase and use by movie theaters.²³  For this and other reasons, in digital cinema systems it is much easier and far less costly to exhibit movies with captioning and audio description.  For example, unlike analog movies, digital cinema has many sound channels, making it much easier to include audio description.  See Michael Karagosian, Accessibility in the Cinema (June 3, 2010), available at http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf (last visited July 14, 2014).  In addition, digital cinema can easily support closed captions, including up to six closed-captioned languages at a time.  Id.  And for closed captions, a standardized output is available that permits the closed captioned product to plug in to any compliant digital system.  Id.

In terms of equipment needed, it is easier to exhibit movies in digital cinema using open captions because all that is required is that the captions be turned on.  No additional equipment (e.g., individual captioning devices) is needed to display open captioned movies.  Open captions, like closed captions, are included in the DCP and the movie theater simply requests a DCP with either open or closed captions.

Based upon the Department’s research, conversations with manufacturers, and comments received by the Department, several options appear to be available for delivering closed captions in digital films to the movie patron.  For example, two manufacturers produce and sell wireless closed-captioned displays that are mounted on a device that the movie patron places in the seat’s cup holder.  See Michael Karagosian, Update on Digital Cinema Support for Those with Disabilities: April 2013, available at http://www.mkpe.com/publications/d-cinema/misc/disabilities_update.php (last visited July 14, 2014).  One system uses a single infra-red transmitter for delivery of both closed captions and audio description.  Id.  A second system uses Wi-Fi technology to transmit closed captions directly from the server to a cup holder display unit.  This system does not appear at this time to support audio description.  However, according to its manufacturer, audio description can be provided through a third-party vendor system.  The Department understands that cup holder displays are already in use in theaters in Canada as well as some theaters in the United States.  Eyeglasses that display the text in front of the wearer’s eye while watching a movie are also on the market.  As of September 2012, Regal Cinema theaters had captioning glasses in use in 200 theaters and announced that it plans to use them in all of its theaters by April 2013.  Other companies are also reported to be developing eyeglasses that can display captions.  In addition, the Department understands that MoPix’s® Rear Window closed-captioned devices work in digital cinema as well as analog.  Movie theaters that have installed a captioning system for their analog product can still use that product with digital cinema.  MoPix®’s devices are supported by several digital cinema servers directly, although other servers may need to obtain a special interface.²⁴

In specialty movie theaters, such as IMAX or other big-screen format presentations, closed-captioning systems for digital cinema also work well, and the captioned data can be fed to the LED panel by a computer that is running special software that synchronizes the caption files to the film.

It is unclear from the comments received by the Department the extent to which 3D movies are currently being provided by studios or distributors with open or closed captioning.  Commenters representing both movie theaters and movie studios stated that MPAA member companies are hopeful that technological developments will soon allow closed captioning for 3D version releases.  A commenter involved in the development of the Rear Window® captioning system for analog movies stated that it has been tested in feature-length 3D presentations with positive viewer response.  The Department’s research indicates that both the captioning eyeglasses as well as the cup holder displays can show captions for 3D movies if the movies are provided with captioning.  By contrast, the Department understands that the same technology provides audio description for both 2D and 3D movies.  One commenter representing the movie theater industry stated that whenever audio description is available for digital 3D movies, it should be treated the same as audio description for film and video displays in other settings.

As with analog movies, the audio description in digital cinema is delivered using a wireless headset or ear phones.  Digital cinema audio supports up to 16 channels of audio²⁵ and the cinema audio formats have two channels reserved for both hearing impaired audio and audio description.  See Michael Karagosian, Accessibility in the Cinema (June 3, 2010), available at http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf (last visited July 14, 2014).  Moreover, both the infra-red and FM-audio single-channel systems presently used for assisted listening can be replaced by multi-channel systems that support both assisted listening and audio description.

3. Conversion to Digital Cinema

Despite the economic downturn over the last few years, the movie theater industry is rapidly increasing the number of screens that have converted to digital cinema since publication of the 2008 NPRM.  In May 2013, an industry representative testified to Congress that as of that date, 88 percent of indoor movie screens in the United States had converted to digital cinema.  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).

Starting in the late 2000’s, a number of major movie studios entered into agreements to help defray the cost of conversion by paying a consortium of movie theater chains a “virtual print fee” of $800 to $1000 per film, per screen until the digital equipment is paid off.  See Dawn C. Chmielewski, Major Studios Agree to Back Switch to Digital Projection, Los Angeles Times (Oct. 2, 2008), available at http://articles.latimes.com/2008/oct/02/business/fi-studios2 (last visited July 14, 2014).  The Department understands that nearly all of these programs have stopped enrolling new members, although the deals continue to be active for those who have already signed up.  According to an industry commenter, these digital cinema systems are SMPTE-compliant, which means that all of the captioning and audio-description products on the market—and in development—will be compatible with, and easily integrated into, whatever digital cinema systems are in use by the various movie theaters.  In addition, it has recently been reported that between the conversion to digital and the projected loss of the two major suppliers of film print stock, it is unlikely that any first run films will be available in analog within the next few years, thus furthering the pressure on smaller theaters to convert to digital.  See e.g., Gendy Alimurung, Movie Studios Are Forcing Hollywood to Abandon 35mm Film. But the Consequences of Going Digital Are Vast, and Troubling, LA Weekly (Apr. 12, 2012), available at http://www.laweekly.com/2012-04-12/film-tv/35-mm-film-digital-Hollywood (last visited July 14, 2014); Dawn McCarty & Beth Jinks, Kodak Files for Bankruptcy as Digital Era Spells End to Film, Bloomberg (Jan. 19, 2012), available at http://www.bloomberg.com/news/print/2012-01-19/kodak-photography-pioneer-files-for-bankruptcy-protection-1-.html (last visited July 14, 2014);  see also Tim O’Reiley, Theater Official Optimistic Despite Attendance Slump, Las Vegas Review-Journal (March 29, 2011) (quoting new MPAA head, former Sen. Christopher Dodd, as predicting that “films on film will disappear in less than three years”), available at http://www.reviewjournal.com/business/theater-official-optimistic-despite-attendance-slump (last visited July 14, 2014).

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).