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

Purpose of Proposed Rule

The Department of Justice (Department) is issuing this notice of proposed rulemaking (NPRM) in order to propose amendments to its regulation implementing title III of the Americans with Disabilities Act of 1990 (ADA), which covers public accommodations and commercial facilities—including movie theaters—to explicitly require movie theaters to exhibit movies with closed captioning and audio description, as well as to provide individual captioning and audio-description devices for patrons who are deaf or hard of hearing or blind or have low vision.  In the movie theater context, “closed captioning” refers to captions that only the patron requesting the closed captions can see because the captions are delivered to the patron at or near the patron’s seat.  Audio description is a technology that enables individuals who are blind or have low vision to enjoy movies by providing a spoken narration of key visual elements of a visually delivered medium, such as actions, settings, facial expressions, costumes, and scene changes.  Audio description can be transmitted to a user’s wireless headset through infra-red or FM transmission. 

Title III of the ADA contains broad language prohibiting public accommodations from discriminating against individuals with disabilities, 42 U.S.C. 12182(a), as well as more specific statutory provisions intended to counter particular forms of disability-based discrimination by owners, operators, or lessees of public accommodations.  Of particular relevance to this rulemaking, covered entities must 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 they can show that doing so would result in a fundamental alteration or undue burden.  42 U.S.C. 12182(b)(2)(A)(iii).  The Department’s regulation implementing title III’s auxiliary aid provision reiterates the obligation of covered entities to ensure effective communication with individuals with disabilities and identifies, among other things, open captioning, closed captioning, and audio recordings, as examples of auxiliary aids and services.  28 CFR 36.303(a)-(c).

Despite movie theaters’ title III obligation to provide effective communication to patrons who are deaf or hard of hearing or blind or have low vision, these individuals are often shut out from the movie-going experience; this exclusion occurs even though the vast majority of motion pictures released by the major domestic movie studios include closed captioning and to a lesser extent, audio description.  While there has been an increase in the number of movie theaters exhibiting movies with closed captions and to a much lesser extent, audio description, due in large part to successful disability rights litigation brought by private plaintiffs during the past few years, the availability of movies exhibited with closed captions and audio description varies significantly across the United States depending upon locality and movie theater ownership.  As a result, persons who are deaf or hard of hearing or blind or have low vision, who represent an ever-increasing proportion of the population, still cannot fully take part in movie-going outings with family or friends, join in social conversations about recent movie releases, or otherwise participate in a meaningful way in this important aspect of American culture. 

The ADA requirements for effective communication apply to all public accommodations (including movie theaters) in every jurisdiction in the United States and should be consistently applied.  The ADA protects the rights of persons with disabilities throughout the United States; the right to access movies exhibited with closed captioning and audio description should not depend on whether the person who is deaf or hard of hearing or is blind or has low vision resides in a jurisdiction where movie theaters, subject to a consent decree or settlement, exhibit movies with closed captioning or audio description.  And, even in jurisdictions where theaters exhibit movies with captioning and audio description, many do not make captioning and audio description available at all movie showings.  Moreover, recent technological changes in the movie theater industry—including wide-spread conversion from analog (film) projection to digital cinema systems—make exhibition of captioned and audio-described movies easier and less costly.  The Department is thus convinced that regulation is warranted at this time in order to achieve the goals and promise of the ADA.