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

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.