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

Major Provisions

The major provisions of the proposed rule can be summarized as follows. 

First, as of the rule’s effective date, which the Department is proposing to be 6 months after the publication of a final rule in the Federal Register, the NPRM proposes to require movie theaters with digital screens (generally, those exhibiting movies captured on data files stored in a hard drive or flash drive) to exhibit movies with closed captions (although theaters may, at their own discretion, exhibit movies with open captions instead) and audio description, for all screenings when such movies are produced and distributed with these features unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.  Such an across-the-board requirement fulfills the effective communication objective by permitting individuals who are deaf or hard of hearing or blind or have low vision to fully and equally participate in one of the most quintessential forms of American entertainment—going out to the movies along with the rest of the movie-going public. 

In no case would movie theaters be required to create their own captioning or audio descriptions for movies.  Rather, whenever the movies that theaters choose to screen are produced and distributed with these accessibility features, movie theaters would be required to ensure that they obtain and then screen those versions.  This rule would not prohibit movie theaters from screening movies that are not produced with captions or audio description. 

Second, the NPRM does not propose a specific compliance date for analog screens (generally, those exhibiting movies in the traditional form of 35 mm film) in movie theaters.  Instead, the Department seeks public comment on two options.  Option 1: whether the rule should adopt a delayed compliance date for analog screens four years from the publication of a final rule in the Federal Register.  The Department believes that a delayed compliance date would allow any small theaters that remain analog to obtain the necessary resources to purchase the equipment to provide closed captioning and audio description.  Option 2: because the state of analog movies is in such flux, whether the Department should defer rulemaking with respect to analog movie screens until a later date.    

Third, the NPRM proposes to require movie theaters to have a certain number of individual captioning devices capable of delivering the captions at the seat of the individual and to provide them to patrons upon request.  The proposed numbers are based upon the number of seats in the movie theater itself and can be shared among the screens in the theater.  Individual captioning devices are a necessary part of the process of delivering closed captions, and this requirement is designed to ensure that there will be sufficient numbers of devices available for use when individuals who are deaf or hard of hearing attend the movies. 

Fourth, the NPRM proposes to require movie theaters to have a certain number of devices capable of delivering audio description and to provide them to patrons upon request.  The NPRM recognizes that the devices currently required by the ADA for assistive listening often contain an extra channel and therefore can also be used to deliver audio description. The NPRM proposes minimal scoping for audio description listening devices and also permits movie theaters that have two-channel devices for assistive listening to use those devices for audio description in lieu of purchasing additional devices. 

Fifth, the NPRM proposes to require that movie theaters ensure that their staff has the capability to operate the equipment to show captions and audio description and to show patrons how to use individual devices.

Finally, the NPRM proposes that movie theaters provide the public with notice about the availability of captions and audio description.  This provision is necessary because currently not all movies are produced with captions and audio description, and moviegoers who are deaf or hard of hearing or blind or have low vision, should have the ability to find out which movies are accessible to them.

As with other effective communication obligations under the ADA, covered entities do not have to comply with these requirements to the extent that they constitute an undue burden or fundamental alteration.