Final Regulatory Assessment and Final Regulatory Flexibility Analysis Final Rule - Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description

1.1. Purpose and Need for Rule and Scope of Regulatory Assessment

Title III of the Americans with Disabilities Act (ADA) contains broad language prohibiting public accommodations and commercial facilities—including movie theaters—from discriminating against individuals with disabilities.  The Department’s title III regulation implementing title III’s auxiliary aid provision reiterates the obligation of covered entities to ensure equally effective communication with individuals with disabilities and identifies, among other things, “open and closed captioning” and “audio recordings” as examples of auxiliary aids and services.  28 CFR 36.303(a)–(c).  Recent technological advancements in the movie exhibition industry—including widespread conversion from analog film projection to digital cinema systems—make exhibition of captioned and audio-described movies easier and less costly than ever before.  In addition, it is the Department’s understanding that at this time nearly all first-run motion pictures released by the major domestic movie studios include closed movie captioning (and to a lesser extent, audio description).

Going to the movies is a quintessential American experience.  “Movie theaters continue to draw more people than all theme parks and major U.S. sports combined.”²  Movies are a part of our shared cultural experience, “water cooler” talk, and the subject of lunch-time conversations.  The Supreme Court observed over 60 years ago that motion pictures “are a significant medium for the communication of ideas” and “may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to subtle shaping of thought which characterizes all artistic expression.  The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”³  When individuals who are deaf or hard of hearing, or blind or have low vision, have the opportunity to attend movies that they can actually understand because of the availability of captions or audio description, they are exposed to new ideas and gain knowledge that contributes to the development of their communication and literacy as well as their integration into society. 

Until recent technological developments, the only captioning methodologies available required that the captions be displayed directly on the film, and thus visible to all patrons in an auditorium, to which movie theaters and some patrons without disabilities objected.  Current technology allows for closed movie captioning, which consists of captions that are visible only to those who use a special device and not the rest of the theater.  This advancement in technology, coupled with the recent conversion to digital cinema, has made exhibition of captioned and audio-described movies easier and less costly. 

While there has been an increase in the number of movie theaters exhibiting movies with closed movie captioning (and, to a lesser extent, audio description) due in large part to successful disability rights litigation brought by private plaintiffs and State attorneys general during the past few years, the availability of movies exhibited with closed movie captioning and audio description varies significantly across the U.S. depending upon locality and movie theater ownership.  The ADA requirements for effective communication apply to all public accommodations (including movie theaters) in every jurisdiction in the U.S and should be consistently applied using a uniform ADA standard.  The right to access movies exhibited with closed movie captioning and audio description should not depend on whether the person with a disability resides in a jurisdiction where movie theaters, subject to a consent decree or settlement, exhibit movies with closed movie 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.  Thus, some persons who are deaf or hard of hearing, or blind or have low vision, 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 an important aspect of American culture. 

The Department received numerous comments from individuals who are deaf or hard of hearing, or blind or have low vision, in response to its 2014 Notice of Proposed Rulemaking on Movie Captioning and Audio Description in Movie Theaters (2014 NPRM), 79 FR 44976 (Aug. 1, 2014), describing how they were unable to take part in the movie-going experience with their friends and family because of the unavailability of captioning or audio description.  Many individuals felt that this not only affected their ability to socialize and fully take part in family outings, but also deprived them of the opportunity to meaningfully engage in the discourse that often surrounds movie attendance. 

The Department is convinced that regulation is warranted at this time in order to achieve the goals and promise of the ADA and is explicitly requiring movie theaters to exhibit digital movies with closed movie captioning and audio description at all times and for all showings whenever movies are produced, distributed, or otherwise made available with such features unless to do so would result in an undue burden or a fundamental alteration.