The Department is proposing to amend the regulation that implements the requirements of title III of the Americans with Disabilities Act (ADA) to require movie theaters to have the capability to exhibit movies with closed movie captioning and audio description, to require theaters to provide notice to the public about the availability of these services, and to ensure that theaters have staff available who can provide information to patrons about the use of these services.
Title III of the ADA requires movie theaters and other public accommodations to provide effective communication through the use of auxiliary aids and services. This rulemaking specifies requirements that movie theaters will need to meet in order to satisfy their effective communication obligations to persons with hearing and vision disabilities.
Closed movie captioning and audio description enable persons with hearing and vision disabilities to have access to movies.
Closed movie captioning is the display of the written text of the dialogue of the movie and other sounds or sound makers only to those individuals who request it. When requested, the captions are delivered via individual captioning devices used by patrons at their seats. It does not result in captions being shown to all patrons by being displayed on the screen itself.
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 movie, such as actions, settings, facial expressions, costumes, and scene changes. Audio description fills in information about the visual content of a movie where there are no corresponding audio elements in the film. It involves a separate script that is recorded on an audiotape or CD that is synchronized with the film as it is projected. The oral delivery of the script is transmitted to the user through infra-red or FM transmission to wireless headsets.
Individuals who are deaf or hard of hearing or are blind or have low vision represent an ever-increasing proportion of the U.S. population. The vast majority of movies released by U.S. movie studios are now produced with movie captioning and 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—and several courts have found that the ADA requires theaters to offer movie captioning, the number of movie theaters with closed captioning and audio description devices varies significantly across the U.S. depending upon where you live and who owns the movie theater.
As a result, despite the availability of captioned and audio described movies, many individuals with hearing and vision disabilities 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 proposed rule does not interfere with a theater owner's choices as to which movies to exhibit. Whenever a theater intends to exhibit a movie that is available with captions and audio description, then the proposed rule would require the theater to acquire and then exhibit that movie with captions and audio description at all scheduled screenings, unless doing so would result in an undue burden or fundamental alteration. If a particular movie is not produced with captions or audio description, then the proposed rule would still allow a theater to exhibit that movie. The rule does not require movie theaters to add captions or audio description to movies that are not otherwise produced or distributed with these features.
For both closed captions and audio description, movie theaters would have to obtain and install equipment to transmit closed captions and audio description. For closed captions, the proposed rule would also require movie theaters to have available specified numbers of individual captioning devices that can be used to deliver closed movie captions to patrons at their seats. The number of required devices is based on the number of seats (or potential patrons served) in the theater, rather than on a screen-by-screen basis. This approach is similar to the approach used in the 2010 ADA Standards for Accessible Design for determining the number of assistive listening receivers in theaters; however, the proposed rule requires fewer captioning devices than the 2010 ADA Standards require for assistive listening receivers.
For audio description, the proposed rule would also require movie theaters to provide at least one individual audio-description listening device per screen, except that no theater shall provide fewer than two devices total. The Department asks questions for public comment in the proposed rule about whether the assistive listening receivers currently used by theaters already have two channels and will, therefore, be usable for audio description. If so, no new devices will have to be purchased.
The proposed rule would require movie theaters to provide notice to patrons about the availability of closed-captioned and audio-described movies in the same advertisements they provide that inform patrons of movie showings and times.
Yes. The proposed rule sets forth requirements that at all times when captioned and audio-described movies are shown at a theater, the facility must have staff available who can locate and operate the equipment and communicate with patrons about the use of the equipment.
The proposed rule applies to movie theaters, which are defined as "facilities, other than drive-in theaters, used primarily for the purpose of showing movies to the public for a fee." Drive-in theaters were not included in the definition of movie theater because the technology for exhibiting closed captioning and audio description for drive-in theaters does not yet exist.
The rule permits movie theaters to use open captions (captions shown on the screen to all patrons) instead of providing closed captions delivered to individual patrons as a means of meeting their obligation to provide effective communication. However, the rule does not require the use of open captions under any circumstances.
Title III of the ADA requires that public accommodations, including movie theaters, ensure that persons with disabilities have equal access to their programs and services in a manner that is as effective as that provided to people without disabilities. In the case of movie theaters, providing equal access for persons with hearing and vision disabilities means communicating what is happening in a movie to these individuals through auxiliary aids and services, such as closed movie captions and audio description. The ADA is a national law and the obligation to provide effective communication is the same throughout the United States. Movie theaters across the country have been inconsistent in providing captioning and audio description, leaving many people without access to the movies. The proposed requirements related to closed movie captions and audio description will provide a consistent standard of access across the United States. Moreover, technological changes in the movie theater industry, such as the development of digital cinema systems, digital captioning systems, and new types of devices for delivery of captions, have made exhibiting captioned and audio-described movies easier and less costly than ever before.
The Department is proposing two different approaches for compliance for digital screens and analog screens:
The movie exhibition industry is currently in the latter stages of a wide-spread conversion from analog (35 mm film) cinema systems to digital cinema systems. As of May 2013, representatives of the movie theater industry testified before Congress that 88 percent of all movie screens had been converted to digital and the Department understands that the percentage of digitally-converted screens is now closer to 94 percent. These digital cinema systems can exhibit movies with closed captions and audio description using commercially-available equipment at relatively low cost. Thus, the Department believes that a six- month compliance date for digital movie screens is appropriate. Based on information currently available, it appears likely that few analog movies will continue to be made by the major movie studios and possibly by the independent studios as well. It is unclear to the Department, however, whether those analog movies that continue to be made will be produced with captions and audio description. Thus, it could be that even if analog theaters were to have the capability of showing movies with captions and audio description, there may not be any movies for them to show with those accessibility features. It is also unclear how many, if any, analog theaters will continue to be viable within the next few years. The Department has asked for public comment on the future of analog theaters, analog movie production in general, and analog movies with accessible features. Based on the information available to the Department at the time it drafts the final rule, the Department will decide whether it is appropriate to just delay compliance for analog screens in movie theater auditoriums in order to allow sufficient time to comply with the specific requirements of the rule or defer applying these specific requirements altogether until such time as the Department, in light of available information, deems it appropriate to engage in further rulemaking on this subject.
Title III of the ADA limits the obligation of public accommodations, including movie theaters, to comply with the ADA's effective communication requirements. Any movie theater, including small business movie theaters, that can demonstrate in a particular year that full compliance with the regulation will result in an undue burden will not have to meet the requirements of the rule at that time.
No. Although independent market forces have caused the majority of theaters to convert their screens to digital cinema projection systems, this proposed rule imposes no obligation on any theater owner to use digital technology.
Title III of the ADA provides that 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 existing 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).
As described in the Department's Initial Regulatory Assessment, the proposed rule addresses the discriminatory effects of communication barriers at movie theaters on individuals who are deaf or hard of hearing or are blind or have low vision. By ensuring that movie theaters exhibit available captioned and audio described movies and that theaters provide the individual devices needed to deliver the captioning and audio description to patrons with disabilities, this rule would afford such individuals an equal opportunity to attend movies and follow both the audio and visual aspects of the movies. Therefore, persons with hearing or vision disabilities are direct beneficiaries of the rule.
In addition, this rule would allow persons with hearing or vision disabilities to attend and enjoy movies with their family members and acquaintances; participate in conversations about movies with family members and friends; and would promote other benefits such as equity, human dignity, and fairness. The family and friends of persons with hearing or vision disabilities will benefit indirectly from the rule by being able to share the movie-going experience more fully with their friends or loved ones with hearing and vision disabilities.
The Department conducted an Initial Regulatory Assessment for this proposed rule and estimates the total costs of the rule based on two options.
1. Option 1 assumes a compliance date for digital theaters of six months from the publication of the final rule and a compliance date for analog theaters of four years from the publication date of the final rule.
2. Option 2 assumes that the rule will only apply to digital theaters and that application of the rule's requirements to analog theaters will be deferred.
For Option 1, the total cost for all theaters over 15 years will likely range from $177.8 million to $225.9 million when using a 7 percent discount rate, and from $219.0 million to $275.7 million when using a 3 percent discount rate. Under Option 1, the annualized costs range from $19.5 million to $24.8 million when using a 7 percent discount rate, and from $18.3 million to $23.1 million when using a 3 percent discount rate.
For Option 2, total costs for all theaters with digital screens over 15 years will likely range from $138.1 million to $186.2 million when using a 7 percent discount rate, and from $169.3 million to $226.0 million when using a 3 percent discount rate. When annualized, these costs range from $15.2 million to $20.4 million when using a 7 percent discount rate, and from $14.2 million to 18.9 million when using a 3 percent discount rate.
Under either option, the Initial Regulatory Assessment shows that estimated annual costs for this proposed rule would not exceed $100 million in any year.
The Department estimates that the average first-year capital cost for a digital single screen theater will total approximately $3,198. Under Option 1 (which would delay compliance with the requirements for analog theaters for four years), the Department estimates that the average first-year capital cost for an analog single screen theater will total approximately $8,172.
Consistent with the requirements of the Regulatory Flexibility Act, the Department conducted an Initial Regulatory Flexibility Analysis (IRFA) that examined the economic impact of the proposed rule on small businesses in the movie exhibition industry. The current size standard for a small movie theater business is $35.5 million dollars in annual revenue. In 2007, the latest year for which detailed breakouts by industry and annual revenue are available, approximately 98 percent of movie theater firms met the standard for small business, and these firms managed approximately 53 percent of movie theater establishments. The IRFA estimates the average initial capital costs per-firm for firms that display digital or analog movies under Option 1 and for firms that display digital movies under Option 2. The average costs for small firms (which have a proportionately higher number of movie theaters with 1 to 7 screens) were between approximately 0.7 percent to 2.1 percent of their average annual receipts for firms with digital theaters, and between approximately 2.0 percent to 5.7 percent of their average annual receipts for firms with analog theaters.
The comment period for this NPRM closed on September 30, 2014. The Department has extended the comment period for an additional sixty days and it now closes on December 1, 2014.
The Department is very interested in the public's views on this NPRM, including the answers to the many questions that are posed throughout the document. You may submit comments, identified by RIN 1190-AA63 (or Docket ID No. 126), by any of the following methods:
A copy of the Initial Regulatory Assessment is on the Department's website at www.ada.gov. A copy is also available online at http://www.regulations.gov/#!docketDetail;D=DOJ-CRT-2014-0004, or it may be requested by mail at the above addresses.