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

IV. Section-by-Section Analysis

Section 36.303(g) Movie Captioning and Audio Description—Definitions (Section-by-Section Analysis)

Movie Theater (Section-by-Section Analysis)

In order to make it clear which facilities are subject to the specific captioning and audio-description requirements set forth in § 36.303(g), the Department is proposing in § 36.303(g)(1)(v), to define the term “movie theater” as “a facility other than a drive-in theater that is used primarily for the purpose of showing movies to the public for a fee.”  Movie theaters include all movie theaters that exhibit movies for a fee, except drive-in movie theaters.  The term includes movie theaters that exhibit second- and third-run movies as well first-run releases.  The term is not a synonym for movie screen.  A movie theater can have one or more screens available to show movies in several auditoriums.  The term “movie theater” does not include facilities that screen movies, such as museums, hotels and resorts, or cruise ships, even if they charge an additional fee, if the facility is not used primarily for the purpose of showing movies for a fee. 

Paragraph 36.303(g) is a specific application of the auxiliary aid and service requirement for movie theaters.  Such a provision is necessary because of the technological advances in auxiliary aids and services that enable movie theaters to screen movies in a manner that provides effective communication to individuals who are deaf or hard of hearing or blind or have low vision.  The Department’s title III regulation makes clear that public accommodations that exhibit movies but are not movie theaters, such as museums and amusement parks, must provide effective communication to the public through the provision of auxiliary aids and services, including, where appropriate, captioning and audio description.  See generally 28 CFR 36.303; 28 CFR part 36, app. B.  Many such public accommodations have been providing appropriate auxiliary aids, either through open captions, closed captions, or a mix of the two, and audio description.  Even in situations in which the Department identified a need for enforcement action, these public accommodations were willing to comply with the ADA and provide such auxiliary aids and services.  See, e.g., Press Release, U.S. Department of Justice, Settlement Agreement Will Ensure Accessibility at the International Spy Museum in Washington, D.C. (June 3, 2006), available at http://www.justice.gov/opa/pr/2008/June/08-crt-489.html (last visited July 14, 2014); Press Release, U.S. Department of Justice, Walt Disney World Co. Agrees to Provide Services to Deaf and Hard-of-Hearing Guests (Jan. 17, 1997), available at http://www.justice.gov/opa/pr/1997/January97/021cr.htm (last visited July 14, 2014).

Commenters on the 2010 ANPRM advised the Department that the technology does not yet exist to exhibit movies with closed captions or audio description at drive-in movie theaters that have an outdoor patron field that is typically spread across more than eight acres.  In addition, these comments indicated that given that there are fewer than 400 drive-in theaters in the United States, it is unlikely that such technology will be developed in the near future.  Thus, the Department is proposing to exclude drive-in movie theaters from the definition of movie theater in this rule and defer rulemaking regarding drive-in theaters until such time that the necessary technology for closed captions and audio description for drive-in theaters becomes commercially available.

Question 2: Does the definition of “movie theater” adequately describe the movie theaters that should be covered by this regulation?  Are there any non-profit movie theaters that would be covered by this definition?  How many non-profit movie theaters are there?  Should drive-in movie theaters be excluded from the definition of movie theaters at this time?  Is there technology under development that might make it possible for drive-in movie theaters to provide closed captions or audio description in the future?

Audio description (Section-by-Section Analysis)

For the purposes of this subsection, the Department is proposing to add a definition for “audio description.”  In proposed § 36.303(g)(1)(i), “audio description” is defined as the “provision of a spoken narration of key visual elements of a visually delivered medium, including, but not limited to, actions, settings, facial expressions, costumes, and scene changes.”

In the Department’s July 26, 2010, ANPRM, the Department used the term “video description” to define the process and experience whereby individuals who are blind or have low vision are provided with a spoken narrative of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes.  The Department received several comments addressing whether it should continue to use the term “video description” or other terms, including “audio description.”  The majority of commenters addressing this issue supported the use of the term “audio description,” stating that audio description has been used since 1981 as the term of art to describe using language to provide access to visual images, and pointing out that the National Endowment for the Arts and the Graphic Artists Guild both use the logo “AD” to indicate the availability of audio description.  In addition, audio description more appropriately describes the type of auxiliary aid involved, because the process involves providing information that is experienced aurally.  In response to these comments, the Department has been persuaded to change the nomenclature for this process to “audio description.” 

Question 3: Should “audio description” be the nomenclature adopted in the final rule?

Closed movie captioning (Section-by-Section Analysis)

The Department notes that the term “closed captioning” is referenced in the examples of auxiliary aids and services in § 36.303(b).  That section refers to “closed captioning” in the much broader context of auxiliary aids and services that must be provided by a wide range of public accommodations subject to title III.  In order to distinguish between the general auxiliary aid and service requirement and the “closed captioning” that is required by § 36.303(g)(2), the Department is proposing to define the term “closed movie captioning” specifically as it applies to movie theaters.  In § 36.303(g)(1)(ii), the Department proposes to define “closed movie captioning” as “the written text of the movie dialogue and other sounds or sound making (e.g., sound effects, music, and the character who is speaking). Closed movie captioning is available only to individuals who request it.  Generally, it requires the use of an individual captioning device to deliver the captions to the patron.”

The Department received one comment encouraging it to use the term “individual captioning” instead of “closed captioning” to refer to the circumstances where captions are received through the use of individual devices.  This commenter distinguished between three types of captioning: open captioning, where the captions are displayed on the screen and cannot be turned off; closed captioning as the term is used in the context of television and video where the captions can be turned on or off, but when they are displayed everyone in the room sees them; and individual captioning systems, where only the individual viewer sees the captions, but they are not displayed to the entire audience.  As stated earlier, the Department wishes to avoid confusion between the “closed captioning” provided on television and in other venues, and those provided in movie theaters.  However, it believes its proposed term “closed movie captioning” will address that concern without introducing a term that is wholly different from that currently used by the movie industry and the courts.

Question 4: Should the Department use the term “closed movie captioning” to refer to the type of captioning provided by movie theaters to individuals who view the captions at their seats?  Is there a different term that should be used in order to distinguish between the closed captioning referred to in § 36.303(b) and the captioning required for movie theaters in proposed § 36.303(g)(2)?

Individual audio description listening device (Section-by-Section Analysis)

In § 36.303(g)(1)(iii), the Department is proposing to define “individual audio description listening device” as the individual device that patrons may use at their seats to hear audio description.

Individual captioning device (Section-by-Section Analysis)

In § 36.303(g)(1)(iv), the Department is proposing to define “individual captioning device” as “the individual device that patrons may use at their seats to view the closed captions.”

Open movie captioning (Section-by-Section Analysis)

The Department notes that the term “open captioning” is already referenced in the examples of auxiliary aids and services provided in § 36.303(b).  That section refers to “open movie captioning” in the much broader context of auxiliary aids and services that must be provided by the wide range of public accommodations subject to title III.  In order to distinguish between the general auxiliary aid requirement and the “open captioning” that is referenced in § 36.303(g)(2)(ii), the Department is proposing to define the term “open movie captioning” specifically as it applies to movie theaters.  In § 36.303(g)(1)(vi), the Department proposes to define “open movie captioning” as “the provision of the written text of the movie dialogue and other sounds or sound making in an on-screen text format that is seen by everyone in the theater.”

Question 5: Should the Department use the term “open movie captioning” to refer to the type of captioning that is viewed on or near the movie screen by everyone in the movie theater audience?  Is there a different term that should be used? 

Movie Captioning Coverage (Section-by-Section Analysis)

The Department asked nine questions in its 2010 ANPRM on the scope of coverage and how best to frame any regulation requiring exhibiting movies with closed captions and audio description. In that ANPRM, the Department stated it was considering proposing a regulation that would require that 50 percent of movie screens exhibit movies with captioning and audio description and that any such requirement would be phased in over a five-year period.  However, after review and analysis of the statutory structure of the ADA, its regulatory requirements and legislative history, and the technological advances since enactment of the ADA, the Department is convinced that any regulation regarding captioning and audio description should be written broadly, like the ADA itself. 

In the NPRM, § 36.303(g)(2)(i), the Department proposes to require that “[a] public accommodation that owns, leases, leases to, or operates a movie theater shall ensure that its auditoriums have the capability to exhibit movies with closed movie captions.  In all cases where the movies it intends to exhibit are produced, distributed, or otherwise made available with closed movie captions, the public accommodation shall ensure that it acquires the captioned version of that movie.  Movie theaters must then exhibit such movies with closed movie captions available at all scheduled screenings of those movies.”  As discussed below, the Department is proposing to apply this requirement to all digital movie screens in movie theaters and is seeking public comment as to the best approach (i.e., delayed compliance date or deferral) to take with respect to analog movie screens.²⁹

The Department is proposing that all movies available with captioning be exhibited with captioning at all times unless doing so would be an undue burden.³⁰  The primary goals of the ADA are to assure equality of opportunity and full access and participation in our society for individuals with disabilities.  42 U.S.C. 12101.  To that end, and as stated previously, the ADA prohibits public accommodations such as movie theaters from affording individuals with disabilities an unequal or lesser service than that offered to other individuals.  42 U.S.C. 12182(b)(1)(A)(ii).  The ADA 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 public accommodation can demonstrate that taking such steps would result in a fundamental alteration or undue burden.  42 U.S.C. 12182(b)(2)(A)(iii).

The ADA envisions that effective communication through the provision of appropriate auxiliary aids and services be provided for all of a public accommodation’s services and that individuals who are deaf, hard of hearing, blind, or have low vision have access to all of a public accommodation’s services, absent a legitimate defense.  As such, it is not enough to offer captioned movies (or movies with audio description) for limited movies at limited times, absent a legitimate defense.  Rather, such individuals should be able, along with the rest of the population, to attend a movie at any date and time.  Based on the information it currently has, the Department does not believe it would be appropriate to propose an across-the-board phase-in of this requirement over five years.  Information available to the Department since the publication of the ANPRM makes it clear that the pace of conversion to digital cinema has accelerated rapidly and there are a number of different options available for providing closed movie captions and audio description.  Therefore, at this time, the Department does not believe that it is necessary to delay the implementation of the final rule for digital movie screens.

The Department’s proposed provision would impose a three-fold requirement upon movie theaters.  First, as of the compliance date of this rule, movie theaters must have the capacity to exhibit movies with captions.  Second, if a movie is available with captions because it has been produced, distributed, or otherwise made available with captioning, then movie theaters are required to obtain that particular movie in a version with captions, and not in a version without captions.  Third, those movie theaters are required to display that movie with the captions to patrons upon request. 

The first proposed requirement mandates that movie theaters acquire whatever equipment they need to have the capability to exhibit movies with closed captions.  The second proposed requirement mandates that movie theaters select the captioned version of a movie if captions are available for that particular movie.  It does not limit the selection or mix of movies that a movie theater may choose.  In other words, if a particular movie is not available with captioning (because it has not been produced, distributed, or otherwise made available to the movie theater with captions), then the movie theater is in no way limited or prohibited from acquiring or exhibiting that particular movie.  In addition, if a movie is available in both analog and digital formats, but only available with captions in the digital format, then a theater with both digital and analog screens is not required to obtain the captioned digital version if it had intended to show that particular movie on its analog screens.  In addition, this proposed rule does not require theaters to add captions to movies that are only available from studios/distributors without captions.  Finally, the third proposed requirement only relates to the exhibition of movies obtained with captioning available.  The Department understands that decisions about which movies to release with captions or audio description and whether open or closed captions or audio description are provided for a particular movie are decisions made by movie studios and distributors, not movie theaters.  The Department notes that obtaining a captioned version of a movie does not require a theater to search for accessible versions of movies because it is the Department’s understanding that each movie (either with or without captions) is only available through a single distributor.  We have no information that suggests that, in the future, particular movies will be available through multiple distributors and that some distributors may have versions with closed captioning and audio description features and others may not.   

Even if that particular movie may be the only movie that a movie theater chooses to exhibit at that time throughout all its auditoriums, there is no obligation under this proposed regulation to exhibit the movie with captioning or audio description if it is not made available with these features.  If a movie is available with captioning but not with audio description, than the movie must be exhibited with the captions whenever a request for the captions is made, but the requirement for audio description would not apply to the showing of that movie.  This proposed rule would ensure that movie theaters have the capability to exhibit movies that are produced or distributed with captioning and audio description available and that they exhibit such movies with captioning and audio description whenever a request is made for these auxiliary aids.

Comments from NATO on the ANPRM suggested that if the Department issues a regulation requiring captioning then it should not phase-in compliance over five years, but instead should give large, digital theaters five years until they have to comply.  NATO also recommended that the Department reduce the required number of screens that need to be accessible to 25 percent and only apply that requirement to movie theaters undergoing digital conversion.  NATO also objected to a captioning and audio-description requirement for movie theaters that do not convert to digital, citing uncertainty as to whether many first-run analog movies will be produced in the future, or whether any of them will be distributed with captions and audio description. 

As stated earlier, the Department does not believe it appropriate to propose that captioning or audio description be available in less than 100 percent of the movie theaters that exhibit movies that are produced, distributed, or otherwise made available with captioning or audio description.  Moreover, there are two reasons that Department does not believe a phased-in compliance schedule is appropriate.  First, as discussed in the section on the legal basis for the rule, and as recognized by the Ninth Circuit in the Harkins case, movie theaters already have an obligation to provide effective communication to persons with disabilities 100 percent of the time.  Second, as the industry acknowledged in its comments on the 2010 ANPRM, a rolling compliance period is difficult to implement given the way the market works—i.e., it is not easy to purchase and install equipment on a set rolling schedule.  In addition, as discussed earlier, the Department understands that at least 53 percent of movie screens already have the necessary equipment to show captions and provide audio description and three of the four largest movie theater companies have already committed to make captioning and audio description available at 100 percent of their theaters, as have several smaller movie theater companies. 

The Department is proposing that the rule take effect for movie screens that have already converted to digital six months from the publication date of the final rule in the Federal Register.  The Department believes six months is sufficient time for theaters that have already converted to digital to order and install the necessary equipment to provide captions and audio description, train employees on how to use the equipment and assist patrons in using it and develop and implement processes to ensure that all communications and advertisements intended to inform potential patrons of movie showings provide information regarding the availability of captioning and audio description for each movie. 

The rule does not propose a compliance date for analog movie screens.  As discussed below, because of the uncertainty about the future of analog theaters, and the future availability of analog film, the Department is seeking public comment on whether it should adopt a four-year delayed compliance date for analog movie screens, or whether it should defer coverage of analog screens and consider additional rulemaking at a later date.  

The six-month compliance date applies to digital screens in all movie theaters, including a theater that has both analog and digital screens.  For example, if a movie theater has 20 screens and 18 of them are digital and two are analog, the 18 digital screens are all subject to the six-month compliance date.  In addition, the NPRM proposes that if an analog screen is converted to digital after the rule’s six-month compliance date for digital screens, the newly converted digital screen will then be subject to the rule’s requirements within six months from the date the screen is converted to digital.

In addition, from the law’s inception in 1990, the statutory language of the ADA has provided flexibility based on cost in specific circumstances.  All movie theaters, regardless of size, status of conversion to digital cinema, or economic viability, have available to them the same defense as do all other public accommodations—the individualized and fact-specific undue burden defense.  The undue burden defense tailors the analysis to factor in the needs and resources of small businesses and the economic viability of those businesses.  Throughout the last two decades movie theaters have been able to assert this defense when facing litigation alleging a failure to provide effective communication to patrons with disabilities.  This regulation does not change the availability of this defense or the circumstances under which it can be asserted.  It does, however, provide clarity about how movie theaters can meet their longstanding effective communication obligations under the ADA.

The Department notes that even if a movie theater cannot install the equipment in all of its auditoriums due to an undue financial burden, the movie theater is still obligated to take steps to maximize the movie choices for customers who are deaf or hard of hearing or blind or have low vision.  Maximizing the movie choices means that movie theaters should, to the extent possible based on the movie theaters’ resources, be able to exhibit as many movies as possible with captioning and audio description in their auditoriums, throughout the day and evening, and on both weekdays and weekends.  If, for example, a six-screen movie theater can only afford to install captioning equipment in half of its auditoriums, and it has auditoriums with different capacity, it should install captioning equipment in large, medium, and small auditoriums.  This distribution of equipment would permit exhibition of different types of movies, as blockbusters generally are shown in larger auditoriums first and smaller budget movies or older movies may be shown only in medium or small auditoriums.³¹

Question 6: Consistent with President Obama’s Memorandum issued on January 18, 2011, on regulatory flexibility, small business, and job creation, the Department invites comment on ways to tailor this regulation to reduce unnecessary regulatory burdens on small businesses.³²  For example: Should the Department have a different compliance schedule or different requirements for digital or analog theaters that have annual receipts below a certain threshold? If so, what should the schedule, requirements, or financial threshold be?  Or, should the final rule have a different compliance schedule or requirements for single-screen or miniplex analog or digital theaters?  Will all mega and multiplex theaters have converted to digital by the time the final rule goes into effect?  Is a four-year compliance date reasonable for those screens that will remain analog?  Please provide information to support your answer.  Should the Department adopt a different compliance schedule or different requirements for nonprofit movie theaters?  The Department invites comment on these alternatives and any other ways in which the final rule could be tailored to appropriately minimize costs on small theaters.

Question 7: Is the proposed six-month compliance date for digital screens a reasonable timeframe to comply with the rule?  Is six months enough time to order, install, and gain familiarity using the necessary equipment; train staff so that they can meaningfully assist patrons; and meet the notice requirement of the proposed rule?  Will manufacturers have the capacity to provide the necessary equipment for captioning and audio description as of the six-month proposed compliance date of this rule for digital movie screens?  If the proposed six-month date is not reasonable, what should the compliance date be and why?  Please provide specific examples, data, or explanation in support of your responses.

Analog Movie Screens (Section-by-Section Analysis)

Based on information currently available, it appears likely that few, if any, analog movies will continue to be made by the major movie studios and possibly by the independent studios as well.  See previous discussion.  It is unclear to the Department, however, whether those analog movies that continue to be made will be produced with captions and audio description.  Thus, it could be that even if analog theaters were to have the capability of showing movies with captions and audio description, there may not be any movies for them to show with those accessibility features.  It is also unclear how many, if any, analog theaters will continue to be viable within the next few years.  The Department has asked for public comment on the future of analog theaters, analog movie production in general, and analog movies with accessible features.  Based on the information available to the Department at the time it drafts the final rule, the Department will decide whether it is appropriate to just delay compliance for analog screens in movie theater auditoriums in order to allow sufficient time to comply with the specific requirements of the rule or defer applying these specific requirements altogether until such time that the Department, in light of available information, deems it appropriate to engage in further rulemaking on this subject.  The Department is interested in public comment on whether there is a reasonable basis for deferring the application of this rule to movie theater auditoriums with analog screens or whether it should include an extended compliance date.

Question 8: Should the Department adopt a four-year compliance date for analog movie screens (Option 1) or should it defer application of the rule’s requirements to analog screens for now and consider additional rulemaking with respect to analog screens at a later date (Option 2)?  Commenters are encouraged to provide information to support their recommendation.

Open Captioning (or Other Technologies) as an Option for Compliance (Section-by-Section Analysis)

In Question 9 of the 2010 ANPRM, the Department asked whether it should give movie theaters the discretion to exhibit movies with open captions should they so desire, as an alternate method of achieving compliance with a captioning regulation.  Many of the commenters who addressed this issue, including those from the industry, supported this option.³³  The Department decided to include this option in the proposed regulation as an example of an alternative means of meeting the movie theaters’ obligation to provide effective communication to patrons who are deaf or hard of hearing but in keeping with the ADA’s legislative history, we are making it clear that the ADA does not require movie theaters to use open captions as a means of providing effective communication.³⁴  In the NPRM, § 36.303(g)(2)(ii) states that “[m]ovie theaters may meet their obligation to provide captions to persons with disabilities through use of a different technology, such as open movie captioning, so long as the communication provided is as effective as that provided to movie patrons without disabilities.  Open movie captioning at some or all showings of a movie is never required as a means of compliance with this section, even if it is an undue burden for a theater to exhibit movies with closed movie captioning in an auditorium."³⁵

The Department is aware, both from comments received from the industry and from some individuals, that open captions may reduce the amount of enjoyment experienced by people who do not need captioning.  For those movie theaters that elect to meet these requirements through the exhibition of movies with open captioning, in whole or in part, the movie theaters may elect to turn on the open captions only after a timely request has been made for captions.  For this approach to be effective, movie theaters should clearly and conspicuously advertise at the ticket offices and at the doors to each auditorium the process, procedures, and time periods for making captioning requests. 

Question 9: Do the alternative provisions regarding when and how to employ open movie captions strike an appropriate balance?  Should the Department define what a timely request is in this context?  Has the Department adequately addressed the possibility that new technology may develop that can be used to provide effective communication at movie theaters?

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.

Standards for Individual Captioning Devices (Section-by-Section Analysis)

The Department received a number of comments for specific performance standards for individual captioning devices.  These commenters wanted the Department to ensure that the text that is exhibited on these devices is readable with good contrast and good text size, that it be available at a reasonable height in relation to the movie screen, that the devices be easily used by patrons who are deaf or hard of hearing, and that they be properly maintained.  The Department has considered these comments and is proposing in the NPRM, at §36.303(g)(2)(ii)(B), that “[i]n order to provide effective communication, individual captioning devices must: (1) be adjustable so that the captions can be viewed as if they are on or near the movie screen; (2) be available to patrons in a timely manner; (3) provide clear, sharp images in order to ensure readability; and (4) be properly maintained and be easily usable by the patron.”

The Department received a number of comments expressing concern that seat location can have an impact on the ability to read closed captions.  Those commenters recommended that the Department require movie theaters to reserve seats in the center of the auditorium to persons using individual captioning devices.  In contrast, an industry commenter stated that the ability to read the captions provided by the new closed-caption systems for digital cinema has been reported to be equally good throughout the movie theater auditorium and that the system currently in use for analog has reportedly been improved for use with digital cinema.

The Department has decided not to propose any kind of reserved seating provision in the regulation at this point because it believes that its proposed performance standards will ensure the usability of individual captioning devices.  In addition, seating at movie theaters generally is on a first-come, first-served basis, and patrons know to come early if they want to sit in the “sweet spot” or other desirable seats in the auditorium.³⁸  While movie theaters may select whatever captioning equipment they want to deliver closed captions to their patrons, they must provide effective communication to individuals with disabilities who are deaf, hard of hearing, blind, or have low vision.  The proposed performance standards should assist movie theaters in meeting that requirement.

Question 11: Has the Department adequately described performance standards for individual captioning devices that deliver closed captions to patrons?  How should the standards address text size that is displayed on the devices?

Audio Description (Section-by-Section Analysis)

Coverage.  In § 36.303(g)(3)(ii) of the NPRM, the Department is proposing that a public accommodation that owns, leases, leases to, or operates a movie theater shall ensure that its auditoriums have the capability to exhibit movies with audio description and in all cases where the movies it intends to exhibit are produced, distributed, or otherwise made available with audio description, the public accommodation shall ensure that it exhibits such movies with audio description at all scheduled screenings of those movies.  This requirement is comparable to the requirement for exhibition of movies with closed captioning at proposed § 36.303(g)(2).  In addition, with respect to digital screens, the Department is proposing the same six-month compliance date for the provision of audio description at § 36.303(g)(3)(i) as it is for movie captioning.  With respect to analog screens, the Department is seeking public comment on whether to adopt a four-year delayed compliance date for the provision of audio description or defer new requirements for analog screens to provide audio description for now and consider additional rulemaking at a later date.

The Department received virtually no comments objecting to a requirement for the exhibition of movies with audio description when such movies are available to movie theaters with audio description.  The overwhelming number of commenters addressing audio description indicated that they believed it should be available at all movies at all times.  However, while industry commenters agreed that audio description should be available, they suggested limiting any requirement for exhibiting movies with audio description to 25 percent of those auditoriums that have converted to digital cinema.  A 25 percent requirement would significantly limit the availability of movies with audio description across the country.

As discussed with respect to proposed § 36.303(g)(2) (movie captioning), the Department believes that given the availability of audio-description technology, and in light of the purpose and goals of the ADA and its statutory and regulatory framework, the ADA requires nothing less than full access to audio-described movies at all times such movies are exhibited, whenever such movies are produced, distributed, or otherwise made available to movie theaters.  The primary goals of the ADA are to assure equality of opportunity and full access and participation in our society for individuals with disabilities.  42 U.S.C. 12101.  The ADA 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 public accommodation can demonstrate that taking such steps would result in a fundamental alteration or undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).

Individual audio-description listening devices.  In order to ensure that individuals who are blind or have low vision have access to audio-described movies when such movies are available in a movie theater, the theater needs to provide a reasonable number of audio-description listening devices for individual use.  The comments received and the Department’s research indicate that many of the assistive listening receivers currently in use in the United States have two channels, one of which is needed for amplified sound, and the other that could be used for audio description.  The NPRM proposes at § 36.303(g)(3)(ii)(B) that a theater may meet its obligation to provide individual captioning devices if the receivers it uses to meet its obligations to provide assistive listening systems in accordance with the requirements in table 219.3 of the 2010 Standards have at least two channels, one of which can be available for transmission of audio description.  For those theaters that do not have two-channel assistive listening receivers, the Department is proposing in § 36.303(g)(3)(ii)(A) to require minimal scoping of one individual audio-description listening device per auditorium, with a minimum of two devices per theater.  This proposal is relatively consistent with the recommendations of at least one industry commenter on the 2010 ANPRM, who asserted that the Department should limit any requirement for individual audio-description listening devices to one receiver per auditorium.  In any event, the Department believes that because many movie theaters already have two channel assistive listening receivers that they use to meet their existing requirements under the 2010 Standards, the proposed scoping will not require many movie theaters to buy additional equipment.

The Department received comments and heard testimony from individuals and organizations representing individuals who are blind and have low vision stating that they do not attend movies because of the lack of audio description, but would begin going to movies once audio description is readily available.

Question 12:  How many devices capable of transmitting audio description to individuals should each movie theater have on hand for use by patrons who are blind or have low vision?  Should the number of individual audio-description listening devices be tied to the number of seats in each auditorium or other location with a movie screen?  Should the number of individual audio-description listening devices be tied to the number of seats in the theater facility as a whole?  Please provide the basis for your comment.  How many movie theaters have two-channel receivers that can be used to provide audio description?  How many movie theaters will need to buy additional individual audio description listening devices?  How much do audio description listening devices that meet the requirements of this proposed rule cost?

For some small movie theaters, it may be an undue burden to purchase the equipment needed to exhibit movies with closed captioning and audio description and meet the other requirements of the rule.  Determining whether compliance with the requirements of this rule will result in an undue burden, however, requires the individualized, fact-specific inquiry and analysis discussed previously.  In some circumstances, movie theaters may incur a cost to determine whether and to what extent compliance with the rule would result in an undue burden.  Such costs may include the time to determine how to comply with the rule’s requirements; the time to gather, compile, and review financial records; and the time to obtain estimates of the cost of compliance.  The Department lacks information necessary for estimating the time and other costs a theater would incur to determine whether compliance would result in an undue burden and the extent to which this rule would increase movie theaters’ legitimate use of the undue burden analysis compared to the status quo.  This information, however, would be important for analyzing at the final rule stage the incremental effect of the rule and for analyzing regulatory alternatives, particularly for small theaters.

The Department notes that many small businesses will be able to defray the costs of compliance with this rule if they qualify for a special IRS tax credit that is intended to defray the costs of providing access to persons with disabilities in accordance with the requirements of the ADA.  Section 44 of the Internal Revenue Code of 1986 allows eligible businesses a tax credit of 50 percent of the cost of “eligible access expenditures,” defined as amounts paid or incurred  “(A) for the purpose of removing architectural, communication, physical, or transportation barriers which prevent a business from being accessible to, or usable by, individuals with disabilities, * * * (D) to acquire or modify equipment or devices for individuals with disabilities, or  (E) to provide other similar services, modifications, materials, or equipment.”  26 U.S.C. 44(c)(2).  This tax credit is available to businesses with gross receipts of less than one million dollars each year or that have 30 or fewer full-time employees.  See 26 U.S.C. 44(b).  The Department believes that providing captioning and audio description to meet the longstanding obligation to provide effective communication under the ADA falls within this tax code provision.

Question 13: The Department invites comments on the additional time it will take and other possible costs movie theaters would incur to determine whether compliance with the rule would constitute an undue burden.  What kinds of costs are involved?  How much time would a theater spend determining how to comply with the rule; gathering, compiling, and reviewing financial records; and estimating the cost of compliance?  Would small theaters have professionals such as accountants or lawyers review their financial records?  What information should the Department use to estimate the per hour cost of the time movie theaters spend undertaking these activities?  How might the Department develop an estimate of the average time and cost required to determine whether full compliance would constitute an undue burden?  To what extent would this rule increase movie theaters’ reliance on the undue burden analysis compared to the status quo?  What characteristics of small theaters would make it more likely that it would be an undue burden to comply with the rule?  Are there empirical studies or other credible information available for estimating the time and cost for a theater to make a legitimate determination that compliance would constitute an undue burden?  The Department is interested in comments in response to these questions from the public in general, but particularly from small movie theater owners and operators and from other small businesses covered by title III of the ADA with experience in determining whether it is an undue burden to meet their effective communication obligation.

Notice Requirement (Section-by-Section Analysis)

The Department believes that it is essential that movie theaters provide adequate notice to patrons of the availability of captioned and audio-described movies.  In the 2010 ANPRM, in Question 18, the Department requested public comment relating to the necessity of a requirement for providing notice about the availability of captioned and audio-described movies and the scope of such a requirement.  The Department received numerous comments in response to this question.  The vast majority of commenters supported a notice requirement that included provisions for notice in the range of communications and media utilized by movie theaters to advertise their films.  Several commenters recommended that the Department require a uniform system of labeling movies as having open captioning (OC), closed captioning (CC), or audio description (AD).  Other commenters stated that they believed the form of notice should be left to the discretion of movie theaters.  Many commenters encouraged the Department to ensure that movie listings provided over the phone include this information, so that patrons who are blind and have low vision and who do not utilize Web-based or print media can find out which movies carry audio description.  Industry commenters noted that while the industry agrees that providing notice of captioning and audio description is important, movie theaters do not have control over the information provided on third-party Web sites that provide show time information and that sell tickets.  These same commenters indicated that they have been working with these Web sites to voluntarily provide accurate information about current screenings of captioned and audio-described movies.  Many commenters noted that if the Department adopted a requirement that all movies be shown with captioning and audio description, the need for notice would disappear, since patrons could assume that all movies would be accessible to them.

After considering these comments, the Department has decided to propose a requirement for provision of notice to patrons that covers all types of communications and advertisements provided by movie theaters, but does not require a specific form of notification.  Proposed §36.303(g)(5) states the following: “movie theaters shall ensure that communications and advertisements intended to inform potential patrons of movie showings and times, that are provided by the theaters through websites, posters, marquees, newspapers, telephone, and other forms of communication, shall provide information regarding the availability of captioning and audio description for each movie.”  Even though the Department has proposed a 100 percent requirement, it will still be necessary to provide notice regarding which movies have captions and audio description because not all movies will be available to movie theaters with captions or audio description.  The Department notes that third parties are not liable under the ADA when they publish information about movies if they fail to include information about the availability of captioning and audio description at movie theaters.

Question 14: It is the Department’s view that the cost of the proposed requirement for theaters to provide notice indicating which screenings will be captioned or audio-described is de minimus.  The Department requests comments on this view.  Specifically, how much will it cost theaters to provide information regarding the availability of captioning and audio description for each movie and to specify whether open movie captions or closed movie captions will be provided for each particular showing and time?  The Department understands that this cost may vary depending on the type of communication or advertisement, and so we request that commenters specify the type of communication or advertisement along with their cost estimate.  In addition, how many times in a given year do theaters provide communications and advertisements that would trigger this proposed requirement?  The Department understands that this will likely vary depending on how many screens a theater has, and so we request theater commenters to specify how many screens they operate in their response to this question.  Because the rule would require 100 percent of movies available with captions and audio description to be shown with these accessibility features, should the Department permit theaters to indicate those movies that do not have these features rather than indicating those that have these features?  Would this approach have an effect on the cost of providing notice?  If so, how would it affect the cost?

Capability to Operate Captioning and Audio Description Equipment (Section-by-Section Analysis)

The Department received a significant number of comments from individuals with disabilities and groups representing persons who are deaf or hard of hearing and who are blind or have low vision strongly encouraging the Department to include a requirement that staff at movie theaters know how to operate captioning and audio description equipment and be able to communicate about the use of individual devices with patrons.  These commenters stated that on numerous occasions when they attempted to go to a movie advertised as having captioning or audio description, there was no staff available who knew where the individual captioning devices were kept or how to turn on the captioning or audio description for the movie.  Many of these individuals indicated they were unable to experience the movie fully because of the lack of trained personnel, even if the auditorium was properly equipped and the movie was actually available with captioning or audio description.  Industry commenters agreed that staff should be knowledgeable in the use of equipment but asserted that training in the use of all equipment in a movie theater was standard practice, and therefore, such a requirement was not necessary. 

Having considered these comments, the Department has decided to include in the NPRM proposed § 36.303(g)(6), which states, “movie theaters must ensure that there be at least one individual on location at each facility available to assist patrons seeking these services at all times when a captioned or audio-described movie is shown.  Such assistance includes the ability to: 

(i) Operate all captioning and audio-description equipment;

(ii) Locate all necessary equipment that is stored and quickly activate the equipment and any other ancillary equipment or systems required for the use of the devices; and

(iii) Communicate effectively with individuals who are deaf or hard of hearing and blind or have low vision regarding the uses of, and potential problems with, the equipment for such captioning or audio description.”

The Department believes that the requirement in § 36.303(g)(6)(iii) is necessary to ensure effective communication for persons who are deaf or hard of hearing and blind or have low vision so that they can have equal access to movie theaters.  The Department notes, however, that providing effective communication about the availability of captioning would not require that the theater hire a sign language interpreter.  Communication with a person who is deaf or hard of hearing about the availability of captioning or how to use the equipment involves a short and relatively simple conversation, and therefore, can easily be provided through signage, instruction guides, and exchange of written notes.

Question 15:  How much additional time beyond the normal time movie theaters spend training staff would be needed to incorporate instruction in the operation and maintenance of the equipment for captioning or audio description?  How much additional time do theaters anticipate spending on assisting patrons in using the captioning and audio description devices?  How should the Department estimate the value of the additional time theater personnel would spend on assisting patrons in using the captioning and audio description devices?  Would that additional cost be borne by the theaters, and if so, how?