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

Individual Captioning Devices (Section-by-Section Analysis)

A commenter from a disability advocacy organization encouraged the Department to specify the number of individual captioning devices that must be made available at each movie theater, pointing out that groups of persons who are deaf or hard of hearing should be able to attend movies at the same time and have sufficient individual captioning devices available to enable them to enjoy the movie at the time of their choice.  A commenter from the movie theater industry recommended that the Department require only one individual captioning device per movie screen equipped to display digital cinema.  The Department already has a requirement for a specific number of assistive listening receivers that must be made available at each movie theater for persons who need amplification of sound during a movie.  See table 219.3 in the 2010 ADA Standards for Accessible Design (2010 Standards).³⁶ Adding a requirement for a particular number of individual captioning devices would be consistent with that approach and is necessary to ensure that patrons who are deaf and hard of hearing are provided with effective communication. 

In the NPRM, the Department is proposing scoping for the required number of individual captioning devices in numbers that approximate about half the number of assistive listening receivers already required for assembly areas by the 2010 Standards.  Proposed § 36.303(g)(2)(iii)(A) states, “[a] public accommodation that owns, leases, or leases to, or operates a movie theater shall provide individual captioning devices in accordance with the following Table.  This requirement does not apply to movie theaters that elect to exhibit all movies at all times at that facility with open movie captioning.” 

This table’s proposed requirements are based on the total number of seats for all screens in the movie theater.  If a movie theater has more than one screen, the number of seats are combined together to determine the required number of individual captioning devices.

The Department believes that its proposed numbers are sufficient because not every individual with hearing loss requires the use of captioning in order to enjoy movies.  There are many individuals with mild to moderate hearing loss who can use the amplification provided by assistive listening receivers, although there are some individuals with moderate hearing loss for whom the assistive listening receivers are not effective.  See discussion supra.  The Department does not agree with the movie theater industry’s recommendation that it should require each movie theater to have only one individual captioning device available for each auditorium that has captioning equipment installed because it does not believe that this would be a sufficient number given the number of persons with moderate and severe hearing loss or who are profoundly deaf who would benefit from closed captioning.  Moreover, the Department believes that it is more appropriate to base the scoping for individual captioning devices on the number of seats at the movie theater, rather than the number of movie screens, because the number of devices should be proportionate to the number of individuals who can attend the movie.  Under the Department’s formula, a movie theater that had five screens in auditoriums that could accommodate a total of 3000 people would need to have more devices available than a movie theater that also had five screens but in auditoriums that could only accommodate a total of 1000 people.  This approach is consistent with the way assistive listening receivers are scoped in the current regulation. 

Industry commenters asserted that even in those auditoriums that have installed Rear Window® Captioning systems, industry data indicates that there are few requests to use them.  Based on the comments received in response to its 2010 ANPRM and its independent research, the Department has concluded that the availability of captioning in the United States is limited, and it is therefore not appropriate to base conclusions about potential use of individual captioning devices on current usage data at those few auditoriums that offer closed captioning on a limited basis.³⁷  The Department believes that the demand for individual captioning devices will be much greater than one device per auditorium once movies are regularly and uniformly exhibited with captioning and the availability of captioning becomes widely known.  This is especially true given the anticipated increase in the number of deaf and hard of hearing individuals in the United States that will come with the aging of the U.S. population.

The Department received numerous comments from advocacy organizations and deaf and hard of hearing individuals indicating that they were unable to attend the few movies currently offered with closed captioning because they were not publicized, were usually scheduled a few times a week at off hours (often in the middle of the weekday), or were only scheduled for one movie at a time, despite the variety of movies that are shown at any one time at a movie theater.  These commenters stated that if captioned movies were available to them for all movies at all times, they would then become regular moviegoers in the same manner as persons who are not deaf or hard of hearing.  These commenters included deaf and hard of hearing parents of children who wished to attend movies, teenagers who wished to attend movies with their friends on the weekends at peak times, and people who work during the day who wished to attend movies during evening hours and on weekends.  Many of the deaf and hard of hearing individuals who testified at the Department’s three public hearings or who submitted comments stressed that they have not been to a movie for many years either because of the lack of availability of captioning or because when they tried to see films advertised as having captioning they arrived at the movie theater only to find that the staff did not know where the individual captioning devices were or how to turn on the captioning, or the individual devices themselves malfunctioned.

Question 10: The Department seeks public comment on its proposed scoping for individual captioning devices.  If the scoping is not correct, what are the minimum number of individual captioning devices that should be available at a movie theater?  Please provide the basis for alternative suggestions.  If the required number of individual captioning devices is linked to the number of seats in the movie theater facility, should the percentage decrease for very large facilities with multiple screens?  What should the threshold(s) be for this calculation?  Should the Department consider different scoping approaches for small theaters?  How so and why?  Are there alternative scoping approaches that the Department should consider to address variability in demand for the devices across theaters?  If so, please describe such alternatives in as much detail as possible.