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

A large number of Americans have vision or hearing disabilities, to varying degrees.  The Department believes that this rule will benefit persons who are deaf or hard of hearing, or blind or have low vision, as well as those with moderate hearing loss who do not currently have consistent access to movie theaters that exhibit movies with closed movie captioning and audio description.  Many individuals with hearing loss have difficulty discriminating among competing sounds in movies and understanding what it is that they hear, even if they can hear those sounds.  Sounds from other patrons can also interfere with the ability of a patron with partial hearing loss to understand all the dialogue in a movie.  Other individuals have difficulty understanding what is being said if the actors speak with accents or have poor enunciation, and those patrons who rely even partly on lip reading will miss some dialogue because they cannot always see the actor’s face.  Individuals with hearing loss who have some level of improved hearing comprehension aided by hearing aids, middle ear implants, and cochlear implants may also experience the same difficulty discriminating among competing sounds in the movie environment.²⁸ 

The individuals who will directly benefit from this rule are those persons with hearing or vision disabilities who, as a result of this rule, would be able to attend movies with closed movie captioning or audio description in movie theaters across the country for the first time or on a more consistent basis.  Individuals who will indirectly benefit from this rule are the family and friends of persons with hearing and vision disabilities that would be able to share the movie-going experience more fully with their friends or loved ones with hearing and vision disabilities.

The benefits of this rule are difficult to quantify for multiple reasons because the Department has not been able to locate robust data on the rate at which persons with disabilities currently attend movies shown in movie theaters.  Moreover, as a result of the increased accommodations required by this rule, it is reasonable to predict that some number of persons with disabilities will likely attend movies for the first time, some number of persons with disabilities will likely attend movies at a rate that is different than they have previously, the number of persons who attend movies as part of a larger group that includes a person with a disability will likely change, and the number of persons with disabilities who would have attended movies anyway but under the rule will have a fuller and more pleasant experience will likely also change.  The Department has no feasible way of projecting those figures.  In addition, the Department does not know how many people with hearing or vision disabilities currently have consistent access to movie theaters that provide closed movie captioning and audio description.  Finally, the Department is not aware of any peer-reviewed academic or professional studies that monetize or quantify the societal benefit of providing closed movie captioning and audio description at movie theaters.

Though we cannot confidently estimate the likely number of people who would directly benefit from this rule, we have reviewed data on the number of people with hearing or vision disabilities in the United States.  The Census Bureau estimates that 3.3 percent of the U.S. population ages 15 and older has difficulty seeing, which translates into a little more than eight million individuals in 2010, and a little more than two million of those had “severe” difficulty seeing.²⁹  At the same time, the Census Bureau estimates that 3.1 percent of the U.S. population ages 15 and older have difficulty hearing, which was a little more than 7.5 million individuals in 2010, and approximately one million of them had “severe” difficulty hearing.  Not all of these people would benefit from this rule.  For example, some people’s hearing or vision disability may not be such that they would need closed movie captioning or audio description.  Some people with hearing or vision disabilities may not use the equipment for a variety of reasons, including finding the equipment uncomfortable to use.  Some people with hearing or vision disabilities may already have consistent access to movie theaters that screen all their movies with closed movie captioning and audio description.  And some movie theaters may not provide closed movie captioning and audio description for all their movies because it would be an undue burden under the ADA to do so.  Meanwhile, some people with hearing or vision disabilities may not attend public screenings of movies even if movie theaters provided closed movie captioning and audio description simply because they do not enjoy going to the movies—just as is the case among persons without disabilities.³⁰

In recent years, a large number of movie theaters have already invested in equipment to provide closed movie captioning and audio description.  As noted earlier in this Final RA, NATO estimates that approximately 70 percent of movie theater auditoriums are already equipped to provide closed movie captioning and audio description.  Therefore, a large number of persons with hearing or vision disabilities may already have access to movies screened with captioning and audio description.  The Department considered using the data on the number of movie theater auditoriums already equipped to provide these features to estimate benefits, but notes that this figure would not necessarily translate into an estimate that about 70 percent of persons who are deaf or hard of hearing, or blind or have low vision, are already benefiting from captioning or audio description.  There are multiple reasons why, even if we accept this estimate of the current availability of captioning and audio description, it does not translate into direct benefits for all those who could benefit.  These reasons include the following: (1) only some auditoriums at some movie theaters may be equipped to provide closed movie captioning and audio description, and those auditoriums may not be showing the movie that the person wants to see; (2) the movie theater may not be showing the desired movie with captions and audio description on a convenient day and time; (3) the movie theater may be located much farther away from where the person with a disability resides than other, less accessible theaters, which may result in a decision not to go to a movie theater at all; or (4) a person may live in a community that has movie theaters with auditoriums equipped to provide closed movie captioning and audio description, but may travel (for vacation, to visit relatives, for work, or other reasons) to a community that does not have theaters with auditoriums equipped to provide such features.

Meanwhile, not only is the estimate of the number of people who might directly benefit from the rule uncertain, but the individual benefits are not uniform because persons who are deaf or hard of hearing, or blind or have low vision, are likely to benefit from this rule in different ways and to varying extents.  The type and extent of benefits can depend on personal circumstances and preferences, as well as proximity to movie theaters that otherwise would not offer captioning or audio description but for this rule.  Some persons with vision and hearing disabilities have effectively been precluded from going to movies at movie theaters because the only theaters available to them do not offer closed movie captioning or audio description, offer open captioning but only at inconvenient times (such as the middle of the day during the week), or offer captioning or audio description for only a few films and not for every screening of those films.  For these persons, the primary benefit will be the ability to see movies when released in movie theaters along with other movie patrons, which they otherwise would not have had the opportunity to do.  They will have the value of that movie-going experience, as well as the opportunity to discuss the film socially at the same time as the rest of the movie-viewing public.  A person with a hearing or vision disability who previously did not have access to a movie theater that provided closed movie captioning or audio description will experience this benefit to an extent that is different than the extent of the benefit experienced by a person with a hearing or vision disability who previously did have access to a movie theater that consistently provided closed movie captioning and audio description.  In addition, a person who cannot follow a movie at all without the assistance of closed movie captioning is likely to experience this benefit to an extent that is different than the extent of the benefit experienced by a person who can follow parts of a movie without the assistance of closed movie captioning.

There is a social value in movie viewing for many people, not just an entertainment value.  As noted above in Section 1.1, movies are a part of our shared cultural experience, and the subject of “water cooler” talk and 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.”³¹  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 captioning 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.

As previously mentioned, some persons with vision or hearing disabilities may already have access to some movie theaters with captioning or audio description capabilities, but that access may be limited to only some locations, movie theaters, and times.  Some of these people may be patronizing movie theaters now but less often than they otherwise would, and less often than they would like, if captioning or audio description were available consistently across all theaters.  These people may see more movies or save time that they currently must spend monitoring those few accessible movie theaters or showings and perhaps additional time coordinating trips to the movies with family and friends.  If all movie theaters are accessible to those who are deaf or hard of hearing, or blind or have low vision, then some persons will now have greater choice among multiple locations and can make choices based on other criteria such as location, times, and other amenities, just as Americans without these disabilities already do.

In addition to the direct beneficiaries of the rule discussed above, others may be indirect beneficiaries of this rule.  Family and friends of persons with these disabilities who wish to go to the movies together as a shared social experience will now have greater opportunities to do so.  More adults who visit elderly parents with hearing or sight limitations would presumably be able to take their parents on outings and enjoy a movie at a movie theater together, sharing the experience as they may have in the past.  The Department received numerous comments from individuals who are deaf, hard of hearing, blind, or have low vision in response to its 2014 Notice of Proposed Rulemaking on Movie Captioning and Audio Description in Movie Theaters, 79 FR 44976 (Aug. 1, 2014) (2014 NPRM), 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.  Parents with disabilities also complained that they could not answer their children’s questions about a movie that they saw together because the parents did not understand what had happened in the movie.

There is also a distributional benefit of this rule as some areas are more likely to have movie theaters with auditoriums equipped to provide closed movie captioning and audio description than others.  As noted in the preamble to this rule, it is the Department’s understanding that persons who live in communities served only by smaller, regional movie theater chains are less likely to have access to captioned and audio-described movies than individuals with disabilities who live in California, Arizona, or any of the major cities with movie theaters operated by Regal, Cinemark, or AMC.³²  Thus, it is possible that more urban areas, or certain cities or States, may have greater accessibility than other areas, cities, or States, creating or exacerbating geographical differences in opportunities.

Moreover, while not formally quantified, the Department expects that this guarantee of access for individuals with hearing or vision impairments to movies screened at movie theaters will spur some level of new demand for movie attendance and, therefore, lead to increased box office receipts.  Unfortunately, there is little data on the demand for movie-viewing in places of public accommodation by persons who are deaf or hard of hearing, or blind or have low vision, and as such, preparing estimates of the increase in movie theater attendance is difficult. 

Because the rule sets specific standards for equally effective communication at movie theaters, it should also lead to a decrease or near elimination of confusion regarding what accommodations movie theaters must provide.  The current ADA title III regulation does not contain explicit requirements specifying how movie theaters should meet their effective communication obligations, and this is one of the reasons behind the multiple private lawsuits filed throughout the country.  Setting explicit requirements at the national level will lead to harmonization across the country.

And finally, there are additional benefits of the rule that relate to equity and fairness considerations generally.  See E.O. 13563 § 1(c) (underscoring the importance of agency consideration of benefits “that are difficult or impossible to quantify, including equity, human dignity, [and] fairness”).  The Department expects that the regulation will allow for better integration of persons with disabilities into the American social mainstream.  Indeed, some individuals with disabilities who commented on the 2014 NPRM noted that they had not attended a movie theater in decades—or, for some, during their entire lifetimes—because the lack of auxiliary aids and services makes the movie unintelligible.  Without captioning and audio description at movie theaters, individuals with hearing and vision disabilities commented that they were unable to participate in social outings with family and friends or go on dates at the movies.  Additionally, their inability to attend the movies due to the lack of these auxiliary aids prevented them from meaningfully engaging in the discourse that often surrounds new movie releases.  Other commenters noted that movie theaters’ common practice of “relegating” movie patrons with hearing and vision disabilities to “special showings” of captioned or audio-described movies at off-peak days and times did not constitute the “full and equal access” guaranteed by the ADA.

The Department views the most significant benefits of the rule to be those relating to issues of fairness, equity, and equal access, all of which are extremely difficult to monetize, and the Department has not been able to robustly quantify and place a dollar value on those.  Regardless, the Department believes the non-quantifiable benefits justify the costs of requiring captioning and audio description at movie theaters nationwide.