28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description (NPRM)
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?
33. A number of commenters advocated for the Department to require open captioning exclusively, arguing that it is much more effective and cheaper than closed captioning.
34. “Open captioning * * * of feature films playing in movie theaters, is not required by this legislation. Filmmakers are, however, encouraged to produce and distribute open-captioned versions of films, and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films.” H.R. Rep. No. 101-485, pt. 2, at 108 (1990); S. Rep. No. 101-116, at 64 (1989).
35. With open movie captioning, there is no need for additional equipment to display the captions and, therefore, there is no additional cost to the theaters. For digital cinema, the movie theater simply selects the open caption option from its digital menu and the open captions appear on the movie screen for that showing only. For analog films, the movie theater would order the version with open movie captions, if available, and just display the movie without need for any additional equipment.
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