Seyfarth Synopsis: New website and mobile app accessibility settlement agreement requires WCAG 2.0 AA conformance, training, and feedback mechanism.

Being named one of the most innovative companies of 2016 doesn’t make one immune from a website and mobile app accessibility lawsuit.  Capping 2016’s banner accessibility lawsuit count, including record website accessibility lawsuit numbers, on which we reported yesterday, was an end-of-the-year settlement between innovative local-sourcing salad restaurant Sweetgreen, Inc. and two blind individuals, on behalf of other similarly-situated individuals.

The settlement concluded a lawsuit filed on March 2, 2016 in the United States District Court for the Southern District of New York, which alleged that Sweetgreen discriminated against the plaintiffs due to an online ordering portal and mobile app that were not accessible in violation of Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Specifically, the plaintiffs alleged that Sweetgreen’s online and mobile app ordering systems allowed customers to “customize signature salads, filter by dietary preferences, track calories and more,” but that barriers to accessibility on the online ordering portal and mobile app prohibited them from independently placing salad orders online for pick-up.

The settlement agreement requires:

  • Improving accessibility to both the online ordering portal and mobile app (excluding third party content except as integral to an online transaction function) to conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria by March 31, 2017, and maintaining that conformance;
  • A link on Sweetgreen’s contact page that provides visitors the opportunity to provide feedback regarding accessibility;
  • Attempt to remedy accessibility issues raised through the feedback page within 30 days of receipt; and
  • For a period of two years, web accessibility training to employees who write or develop programs or code for http://order.sweetgreen.com, and its mobile applications, or who publish final content to http://order.sweetgreen.com, and its mobile applications.

These are common settlement terms; signaling they are also good proactive steps for companies to take in their own web and mobile app accessibility efforts.  And for those companies frustrated with the proliferation of ADA lawsuits and demand letters, some solace in knowing they’re not the only ones grappling with this issue.

Notably, one of the plaintiffs, Mika Pyyhkala, was a plaintiff (in addition to the National Federation of the Blind) in the landmark web accessibility H&R Block lawsuit and consent decree.  Advocacy group Washington Lawyers’ Committee For Civil Rights And Urban Affairs represented Pyyhkala in the Sweetgreen lawsuit.

Edited by Minh Vu.

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

By: ADA Title III Editorial Board

Seyfarth Synopsis: Final Rule Setting WCAG 2.0 AA as the Federal Agency Website Standard Published in Federal Register, Triggering Compliance Deadline of January 18, 2018.

Last week we reported that the Access Board announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register.  This final rule was published in the Federal Register yesterday, January 18, 2017, making the effective date of the final rule March 20, 2017; and requiring compliance with the new rule setting WCAG 2.0 AA as the standard for federal government websites by January 18, 2018.

Seyfarth Synopsis: Google Maps now provides information on accessibility, but the information may not be particularly reliable or useful to gauge accessibility.

The Google Maps app now indicates if a location is “accessible” to wheelchair users.  Here’s how it works: users can now click on various storefronts and other public places within the mobile app, and it will say whether the locations have accessible entrances. The information is listed under the “Amenities” section for each business.

This is not the first time that someone has attempted to provide information about the accessibility of businesses, as we previously reported, but the fact that this is a project powered by Google means it will likely produce information on many more businesses. It raises quite a few questions:

Is the information reliable?  It is our understanding that the information comes from “Local Guides” – users who answer questions in exchange for early access to new Google features. After collecting data over this past year, Google recently added the accessibility information to its popular Google Maps App.  We have very serious concerns about people providing “accessibility” reviews when Google has not provided any objective criteria for such people to use.  Under Title III of the ADA, there are very specific standards used to define whether a business is “accessible.”  We suspect that most of the people providing input on the accessibility of a business do not know what these standards are.  What standards are they using to judge a business’ accessibility?  We don’t know.  The designation also does not necessarily indicate which part of the business is accessible.  Is it just the front entrance?  Restrooms?  Aisles?  Dining area?  The feature does not go that far.  We also find suspicious the fact that the accessibility designation is supposed to indicate that the business is accessible for people who use wheelchairs as well as strollers and canes.  Those three different types of users have very different needs but the designation is one size fits all.

What if a customer thinks that the accessibility designation is not accurate?  The only available feature is “suggest an edit” though it is unclear where these suggestions go.

Will this new feature will be used by serial plaintiffs who are looking for businesses to sue even if they have  no genuine desire to patronize them.  “Google lawsuits” already exist whereby individuals look at aerial screenshots via Google maps to determine whether a business contains certain amenities, like a pool lift for an outdoor pool.  The accessibility designation, or lack thereof, may provide an easier way for serial plaintiffs and their lawyers to conduct an initial screening of their potential targets from the comfort of their homes and offices.

One thing is for certain:  Technological advances have dramatically changed the ADA in many ways: improving the lives of many people with disabilities, creating new challenges for them and businesses, as well as facilitating lawsuits.

Edited by Kristina Launey and Minh Vu.

 

Seyfarth Synopsis: The federal government has adopted the Web Content Accessibility Guidelines 2.0 Levels A and AA as its accessibility standard for federal agency websites, making it very likely that the Department of Justice will also adopt this standard for public accommodations websites in its forthcoming regulations.

ADA BLOGBusinesses working on making their websites accessible to individuals with disabilities often ask us what technical standard they should be using since the ADA Title III regulations do not yet specify a standard.  We believe the Department of Justice (“DOJ”) will likely adopt the Web Content Accessibility Guidelines 2.0 Levels A and AA (“WCAG 2.0 AA”)  as the standard for public accommodations websites for a number of reasons, including the fact that WCAG 2.0 AA is the access standard used in all DOJ settlement agreements and consent decrees about websites and mobile apps.

Yesterday, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register (most likely in the next few weeks).  The federal government’s adoption of WCAG 2.0 AA for its own websites makes it even more likely that the DOJ will adopt the same standard for the websites of public accommodations and state and local governments under Titles II and III of the ADA–someday.

As we have previously reported, the DOJ most recently stated that its proposed rule for public accommodations websites will be published in 2018.  However, we have little confidence in that date given the number of delays thus far and the impending administration change.  That said, this final rule applicable to federal agency websites should provide businesses with confidence that WCAG 2.0 AA is the standard to use if they are working on making their websites accessible.

Edited by Kristina M. Launey

Seyfarth Synopsis: Many years in the making, today the Access Board issued design criteria and other standards for medical diagnostic equipment.

Today, the U.S. Access Board issued new accessibility standards for medical diagnostic equipment (MDE). The final rule will be effective February 8 – 30 days from today’s publication of the final rule containing the standards in the Federal Register.

The standards provide design criteria and other requirements for the accessibility of examination tables and chairs, weight scales, radiological and mammography equipment, and other diagnostic equipment. They are divided into separate technical criteria based on how the diagnostic equipment is used by the patient: (1) supine, prone, or side lying position (M301); (2) seated position (M302); (3) while seated in a wheelchair (M303); and (4) standing position (M304); and include technical criteria for supports (M305), for instructions or other information communicated to patients through the equipment (M306), and for operable parts used by patients (M307).

The Access Board is an independent federal agency established by the Rehabilitation Act of 1973, responsible for developing accessibility guidelines and standards under various laws to ensure that individuals with disabilities have access to and use of buildings and facilities, transportation vehicles, and information and communication technology.  Section 510 of the Rehabilitation Act (as amended by the Affordable Care Act in 2010) instructs the Access Board to promulgate, in consultation with the Food and Drug Administration, technical standards regarding accessibility of medical diagnostic equipment; but it does not give the Access Board authority to enforce these standards. In other words, these standards do not have the force of law and are technically not binding on health care providers and equipment manufacturers unless and until a federal agency such as the Department of Justice of the Department of Health and Human Services adopts them as part of their own regulations.   That said, now that there are standards from the Access Board as to what constitutes an accessible piece of medical diagnostic equipment, plaintiffs and possibly the DOJ will argue that acquiring such equipment is required under the existing requirement to make reasonable modifications to policies, practices and procedures.  Thus, manufacturers and purchasers of new medical diagnostic equipmement should take these standards into account in making future acquisitions.

The publication of this final rule completes a process the Access Board began in 2012 – as we have previously reported – with issuance of a proposed rule; public comment; review and preparation of a report based on the public comments by an MDE Advisory Committee of 24 stakeholders comprised of representatives from disability groups, equipment manufacturers, health care providers, and standard-setting organizations; and, finally, and the Access Board’s review of the report, revision, then adoption of the final standards.

Significant changes that were made from the notice of proposed rulemaking to this final rule in response to the comments received, recommendations from the MDE Advisory Committee, and other information that came to the Access Board’s attention during the rulemaking process; and there will still be more changes to come.  For example, citing substantial disagreement amongst stakeholders regarding appropriate transfer height standards, the Access Board decided to establish in the final rule, for five years only, a range for the minimum low height requirement of 17 inches to 19 inches. It has commissioned a study to quantify the portion of the population that would benefit from a low transfer height below 19 inches, and intends to amend this portion of the final rule with a subsequent rulemaking to establish a minimum low transfer surface height once the study has been completed and before the five-year sunset provision takes effect.

In its press release announcing the new standards, Regina Blye, Vice Chair of the Access Board, stated: “The new standards will be instrumental in ensuring access to health care services…The Board is pleased to fill this gap in accessibility because diagnostic equipment has remained problematic for many people with disabilities due largely to the lack of design specifications for making such equipment accessible.”

 

Edited by Minh Vu

Seyfarth Synopsis: A disability advocacy group behind approximately 1,700 Arizona access lawsuits breaks new ground by filing suit against the Arizona Attorney General, in an unusual counter-attack to the AG’s motion to dismiss those cases for lack of standing. 

As we previously reported here, the Arizona Attorney General (“AG”) responded to a surge of access suits filed in that state’s courts by moving to consolidate and to intervene in all actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler.  The state court granted the AG’s motions on September 23.  Soon thereafter the AG filed a Motion to Dismiss and For Judgment on the Pleadings.

In a further twist on this story, AIDF and Ritzenthaler have now sued AG Mark Brnovich in his official capacity for mandamus relief against the AG and for attorneys’ fees and costs.  Specifically, the Plaintiffs seek an order that the AG must initiate an investigation into the violations that have been alleged in approximately 9,000 complaints allegedly filed with the AG’s office.  Plaintiffs argue that the AG is required to investigate such complaints under state law, and has failed to do so. Plaintiff further alleges that non-compliance with the state’s accessibility statute is widespread, apparently citing an AIDF press release.

Whether or not this tactic is an effective litigation strategy remains to be seen.  The AG’s pending Motion to Dismiss challenges both the individual’s (Ritzenthaler’s) and the organizations’ standing to bring their claims under Arizona law.  According to the AG, Arizona has a “rigorous” standing requirement, which the plaintiffs in the consolidated matters fail to meet for several reasons.  First, they fail to allege that they patronized or attempted to patronize the defendants’ businesses.  Second, the AG argues that the plaintiffs fail to allege an actual barrier to their access.  The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’”  The AG then states that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.”  Third, the AG asserts that plaintiffs fail to sufficiently allege standing because they did not allege denial of access based upon an identified disability.  In other words, the plaintiffs do not link an identified instance of non-compliance to their particular disability.  Fourth, the AG argues that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint.  Finally, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief, i.e., that the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

The AG argues that the various Plaintiffs in these consolidated actions should not be given leave to amend such deficiencies in the pleadings, due to a “documented history of bad faith, abusive tactics, and dilatory motives.”   To support this assertion, the AG notes that plaintiffs have filed over 1,700 deficient complaints in 2016, and have “extracted” about $1.2 million from those lawsuits.  The AG also contends that the plaintiffs’ proposed “Universal Amended Complaint” still fails to adequately plead standing, further demonstrating undue delay.  It also, perhaps, demonstrates futility of amendment under these circumstances.

These, first-of-their-kind, cross actions between an enforcement agency and a serial plaintiff may continue to provide additional data and insight into assertions of lawsuit abuse in the disability access context.   We will continue to monitor these actions and keep posting on developments.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis: Fighting a web accessibility lawsuit could invite DOJ’s intervention, as did a Florida retailer’s recent Motion for Judgment on the Pleadings.

Fighting a website accessibility lawsuit is very tempting to many frustrated businesses, but can be a risky decision. One such risk – Department of Justice intervention in the lawsuit – came to fruition for one such business on Monday in Gil v. Winn Dixie, when the DOJ filed a Statement of Interest in the case pending in the Southern District of Florida.

In the lawsuit, Gil alleged that he attempted to access the goods and services available on the Winn-Dixie website, but was unable to do so using his screen reader technology or any other technology provided on the Winn-Dixie website. Accordingly, he claimed the website is inaccessible in violation of Title III of the Americans with Disabilities Act.

Triggering the DOJ’s somewhat unexpected involvement in this prolific plaintiff’s (by our count, as of October 20, 2016, Gil’s attorney had filed 43% of the 244 federal website accessibility cases filed this year) lawsuit was Winn-Dixie filing a Motion for Judgment on the Pleadings.  The DOJ states that Winn-Dixie admitted in the Motion that, through its website, patrons can order prescription refills to be picked up at the store pharmacy; search for nearby stores; and gather information on store hours, products, and services. Winn-Dixie argued that it has “no obligation under the ADA to ensure that Mr. Gil and other blind patrons can access these and other services and advantages offered through its website” because under the Eleventh Circuit law, only physical locations are subject to Title III of the ADA. The DOJ could not stand by and let this position go unchallenged:

“Because Winn-Dixie Stores’ argument cannot be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue, the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.”

DOJ’s authority is the ADA’s requirement that public accommodations provide auxiliary aids and services – including accessible electronic information technology – at no extra charge to ensure effective communication with individuals with disabilities, unless it would result in a fundamental alteration or undue burden.

In response to Winn-Dixie’s position that Title III applies only to its physical location. DOJ cited the language of the ADA which says that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been explicitly rejected by the Ninth Circuit.

Coming on the heels of the DOJ’s intervention in the MIT and Harvard cases, and one retailer’s loss on summary judgment when fighting a web accessibility lawsuit in Colorado Bags N’ Baggage, this case demonstrates that litigating a website accessibility case has broader implications than just winning or losing on the merits.  Few businesses want the DOJ inquiring into their ADA Title III compliance practices, of which websites are only a part.

Edited by Minh Vu.

Photograph of a stopwatch, isolated on white.

By: Seyfarth ADA Title III News & Insights Editors

Seyfarth Synopsis: Here’s our take on Sunday’s 60 Minutes episode on “drive-by” abusive ADA Title III lawsuits and the legislative efforts to address them.

60 Minutes aired a segment about ADA Title III “drive-by” lawsuits on Sunday, December 4, which focused on a few of the ways in which the law has been misused by some plaintiffs and their attorneys to make money.  Some disability rights advocates have called the piece a “hit job” on the ADA and “propaganda” for the future Trump Administration’s  perceived anti-civil rights agenda.  Others say that by highlighting only the “bad apples,” the story “mischaracterized the ADA as an instrument of opportunism” instead of the force that has opened doors for millions of Americans.  These are all fair points, but the 60 Minutes piece does highlight the need for targeted changes which would mitigate the abusive litigation and restore confidence in a very important law.

When Anderson Cooper interviewed our ADA Title III Team Leader, Minh Vu, for the story, it seemed that the piece would seek to uncover the reasons behind the huge year-over-year increase in ADA Title III lawsuits (which we have reported on this blog); whether the cases are legitimate; and whether reform to the law might stop its abuse by a small cadre of plaintiffs’ lawyers and their serial plaintiffs.  The final story was much narrower and focused on a small hotel owner who was sued for not having a pool lift by a plaintiff who had never been to his hotel; a California attorney who made millions filing over 2000 lawsuits under the ADA and state law; and two disabled plaintiffs who claim they were recruited by and then deceived by their attorneys who filed and settled lawsuits on their behalf without their knowledge.  The segment also highlighted the fact that the ADA regulations contain “thousands” of detailed requirements for public accommodations facilities that small businesses are not likely to know.

Interestingly, the story did not highlight the most notable “serial plaintiff” stories of the year –  there was no mention of the Arizona lawyer who filed thousands of lawsuits this year alone, prompting that state’s Attorney General to intervene and file a motion to dismiss over 1,000 of those cases; nor the Florida serial plaintiff who was exposed as not being disabled; nor the hundreds of demand letters and lawsuits that have been sent and filed by various law firms this year alleging violations of the ADA due to inaccessible websites.

The subject of these so-called “drive-by” lawsuits elicits strong reactions from businesses, especially small ones, because they are brought by people whose stated interest in patronizing the defendant businesses are highly suspect.  Businesses that are sued could try to get the case dismissed on the theory that the plaintiff has no genuine interest in returning to the business in the future, but filing a motion to dismiss can cost tens of thousands of dollars.  For this reason, most businesses choose to settle the lawsuits for a lesser amount.  Small business owners that do not have the resources to fight the suits are the most vulnerable targets.

Federal and state lawmakers have often pursued reform legislation.  For example, in May and September 2016, California’s Governor signed into law two such bills.  On the federal level, in 2015, companion bills called the ADA Education and Reform Act were introduced in the House and Senate. The bills require plaintiffs who want to bring lawsuits about architectural barriers to first provide 60-days’ notice to the business owner about the specific barriers that they allege violate the ADA.  No lawsuit can be brought if the business takes action to address the barriers.  The bill also directs the Judicial Conference of the United States to develop a model program to promote alternative dispute resolution mechanisms to resolve such claims.  While opponents of the bill may say that these businesses have had notice of their obligations for over 25 years and should not be getting more notice, the reality is that most business owners are not aware of the very detailed requirements of the ADA Standards for Accessible Design.  A 60-day notice provision would address easily fixed issues such as sink pipes that are not protected, incorrect door hardware, and bathroom dispensers and mirrors that are off by a few inches.  The notice requirement would not prevent lawsuits about more serious barriers which could not be addressed in that period of time.

The ADA Reform Act may well get a boost of momentum from the 60 Minutes story, particularly in a Trump administration.

Seyfarth Synopsis: DOJ published regulations today requiring that movie theaters throughout the United States provide closed captioning and audio description to patrons with disabilities for digital movies distributed with these features.

Today, the Department of Justice (DOJ) published its final rule requiring theaters throughout the United States to provide closed captioning and audio description (if available) for movies exhibited in digital format.  The new regulations will take effect on January 17, 2017.

As we covered here, DOJ issued a Notice of Proposed Rulemaking (NPRM) in August of 2014, which proposed rules requiring that theaters purchase and deploy specific equipment to provide closed captions for individuals who are deaf or hard of hearing, and audio description for patrons with visual impairments.  The proposed regulations also included requirements to advertise the availability of these technologies, and have a staff member on-site to locate, operate, and troubleshoot this equipment.

The final rule adopts many of these proposals, although several were scaled back, presumably in response to public comments submitted by theater representatives, advocates and owners.  DOJ estimates that complying with these regulations will nonetheless cost the industry between $88.5 and $113.4 million over the next 15 years.

We outline the key provisions below.

  1. Applies to All Digital (Not Analog) Movie Theaters

The new regulations apply to movies shown in digital format (i.e. images and sound captured on computer disk rather than film) and not analog format (i.e. 35 mm).  Although DOJ solicited comments on whether to extend the regulations to analog movies, it deferred that issue for future rulemaking.  The final rule cites statistics submitted by the National Association of Theater Owners (NATO) that 98 percent of indoor auditoriums in the U.S. have already been converted from analog to digital.

The final rule applies to theaters and other facilities that are used primarily to show movies for a fee.  Thus, museums, hotels, cruise ships and other public accommodations that show movies to patrons, but not as a primary means of their business, are excluded.

The new regulations apply to all covered theaters, regardless of seating capacity or the number of screens.  Thus, a small community theater with one or two screens will be subject to the same regulations as a megaplex with over 16 screens.  The final rule does not apply to drive-ins.

  1. Theaters Must Have a Minimum Number of Closed Captioning Devices Based on the Number of Screens

Closed captioning devices provide written text of movie dialogue and sounds (e.g. music, sound effects, identification of which character is speaking) to an individual patron at his or her seat.  Theaters must have a sufficient number of devices on hand based on the number of screens exhibiting digital movies, as opposed to total theater seating capacity as suggested in the NPRM.  The requirements are as follows:

Number of Theater Auditoriums Exhibiting Digital Movies Minimum Required Number of Captioning Devices
1 4
2-7 6
8-15 8
16+ 12

The DOJ commentary cites comments and research that the scoping proposed in the NPRM would have substantially exceeded actual demand for this equipment.

In addition, the final rule provides that theaters can utilize open captioning (where captioning can be viewed by everyone in the auditorium) as an alternative means of complying, but are not required to do so.  To satisfy the requirements with open captioning, the theater must either display open captions at all showings, or activate open captions whenever they are requested by an individual who is deaf or hard of hearing before the movie starts.

  1. Theaters Must Have One Audio Description Device for Every Two Screens

In addition to captioning, the final rule also requires that theaters are equipped with audio description devices that provide spoken narration of key visual elements of a movie, such as the actions, settings, facial expressions, costumes and scene changes.

Theaters must have at least one audio description device for every two screens, but theaters with only one screen must have at least two devices.  DOJ reduced the scoping requirement proposed in the NPRM of one audio description device per screen.

This requirement may be satisfied with existing assistive listening receivers (which amplify sound rather than narrate events that occur on-screen) that theaters are already required to provide, but only if these devices have a minimum of two channels available for sound transmission.

  1. Theaters Must Show Movies with Captioning and Audio Description if Available

If a theater exhibits a movie that is distributed with closed captioning and/or audio description features, then the theater must exhibit that version of the movie at all scheduled showtimes.  DOJ’s commentary provides that this requirement neither prohibits theaters from exhibiting a movie not distributed with captioning or audio description, nor requires that they independently add such features.

  1. Closed Captioning Devices Must Satisfy Performance Criteria

The final rule adopted the performance standards for closed captioning devices proposed in the NPRM, which many industry commenters criticized as vague and subjective.

The new regulations will require that closed captioning devices must:

  • Be properly maintained;
  • Be easily usable by patrons;
  • Be adjustable so that the captions can be viewed as if they are on or near the movie screen; and
  • Provide clear, sharp images in order to ensure the readability of captions.

It is not clear what constitutes an “easily usable” device, for example, or the font size or resolution that provides sufficiently “clear, sharp images” to satisfy these requirements.  These uncertainties may lead to future litigation.  In its commentary, DOJ did note that performance standards for captioning devices are subject to existing regulations that permit, with respect to the maintenance of accessible features, “isolated or temporary interruptions in service or access due to maintenance or repairs.”  28 C.F.R. §  36.211.

  1. Other Technologies May be an Acceptable Substitute for Closed Captioning

Theaters may use technologies other than closed captioning, as long as the technology used provides communication that is as effective as that provided to patrons without disabilities.

  1. Digital Theaters Must Comply with Captioning and Audio Description Requirements by June 2, 2018

Theaters showing digital movies on December 2, 2016 must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by June 2, 2018.  If a theater converts an auditorium from an analog projection system to a system that it allows it show digital movies after December 2, 2016, then it must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by December 2, 2018, or within 6 months of that auditorium’s complete installation of a digital projection system, whichever is later.  DOJ ultimately rejected the aggressive, 6 month timeframe for compliance proposed in the NPRM.

  1. Theaters Must Have Staff On-Site Who Can Locate, Operate, and Troubleshoot Existing Assistive Equipment by January 17, 2017

At least one person (presumably an employee) who can locate, operate, and address problems with all captioning and audio description equipment must be at the theater at all times.  This employee must also be able to communicate effectively with customers with disabilities regarding the uses of, and potential problems with, captioning and audio description devices.  The final rule also requires that theater staff “quickly activate the equipment and any other ancillary systems,” although neither the regulation nor the commentary address what “quickly” means in this context.

DOJ rejected the suggestion from some industry commenters that the regulations should expressly provide that theaters should not be required to hire sign language interpreters to communicate with deaf or hard of hearing patrons regarding this equipment.  The agency did, however, note in its commentary that effective communication concerning these devices would not require a sign language interpreter, but instead “can easily be provided through signage, instructional guides, or written notes.”

In adopting these personnel requirements, DOJ also apparently relied on comments from individuals with disabilities and advocacy groups who reported that theater staff are generally not properly trained in the use, operation and maintenance of existing assistive equipment.  DOJ declined to impose an explicit employee training requirement in the final rule.

Significantly, theaters that already exhibit digital movies must comply with these requirements by the effective date of January 17, 2017.

  1. Theaters Must Comply with New Advertising Requirements by January 17, 2017

As with the proposed rule in the NPRM, the final rule requires that a theater’s communications and advertisements intended inform potential patrons of movie showings and times must indicate whether each movie is available with captioning and/or audio description.  Although the proposed rule would have imposed this requirement on practically all forms of advertisements, the final rule applies to the box office and other ticketing locations, websites and mobile apps, newspapers and over the telephone.  It does not apply to third party ticket providers or websites if they are not part of, or subject to, the control of the public accommodation.

Theaters that already provide captioning and audio description services must comply with these advertising requirements by the effective date of the regulations.

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We are continuing to evaluate the final rule and its potential impact on public accommodations.  It is apparent, however, that the regulations, set to take effect three days before the President-elect’s inauguration, will enhance the accessibility of moviegoing in the United States, while also imposing additional costs on the industry in the form of new equipment, employee training, advertising and future litigation.

Stay tuned for further analysis and updates on these new regulations.

Edited by Minh Vu.