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

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?