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

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?