By John W. Egan
On Friday of last week—the day before the ADA’s twenty-fourth anniversary—the Department of Justice (DOJ) announced a proposed rule that would require movie theaters with digital screens (and possibly those with only analog screens) to show movies with closed captioning and audio descriptions (if available), and to purchase equipment that would allow the transmission of such information to moviegoers with hearing or sight disabilities. The regulations would also require theaters to inform the public about the availability of such captioning and audio descriptions in its advertisements and other communications about the movies they show.
The regulations implementing Title III of the Americans with Disabilities Act (ADA) already require that public accommodations, including movie theaters, provide auxiliary aids and services to ensure effective communication with persons with visual and auditory impairments. The proposed rule would require that movie theaters provide specific equipment and accommodations to patrons who are blind or have low vision, as well as patrons with auditory impairments. DOJ estimates that complying with these proposed requirements would cost the industry between $138.1 and $275.7 million and that a substantial number of small businesses will experience “a significant economic impact.”
The major provisions are discussed below.
1. Regulations Apply to All Theaters Except Drive-Ins
The proposed rule applies to all movie theaters and other facilities that are used primarily to show movies to the public for a fee, except for drive-in theaters. The rule applies, for example, to a multiplex theater with 15 auditoriums, as well as community theater with only two or three auditoriums.
The DOJ ’s commentary states that compliance would not be required to the extent it imposes an undue burden on the public accommodation or constitutes a fundamental alteration of its goods or services. As we have noted in prior blogs, the undue burden and fundamental alteration defenses are highly fact-specific and can be difficult to establish.
2. Theaters Must Have Equipment to Show Closed Captioning
Closed captioning refers to the written text of movie dialogue and sounds (e.g. music, sound effects, identification of which character is speaking) that is displayed on a device to an individual patron at his or her seat. Open captioning, in contrast, appears on the screen and can be viewed by everyone in the auditorium.
Under the proposed rule, theaters must have “individual captioning devices” that can display closed captions. The total seating capacity of an establishment determines how many devices it must maintain. For example, a small movie theater with only 100 total seats or less must have at least two captioning devices. A larger facility with 1,001-2,000 seats must have at least 18 devices or more (depending on the specific number of seats).
The rule also requires that the captioning devices be adjustable so that they can be viewed on or near the screen, and that they provide “clear, sharp images in order to ensure readability,” which appears to be a highly subjective requirement.
3. Theaters Must Have Audio Description Listening Devices
In addition to captioning for persons with auditory impairments, the proposed rule also requires that movie theaters provide “individual audio description listening devices” for customers with visual impairments. These devices provide a spoken narrative of key visual elements of a movie, including actions, settings, facial expressions, costumes and scene changes.
Theaters must have at least one audio description listening device for each screen, but theaters with only one screen must have at least two devices under the rule. This requirement may be satisfied with existing assistive listening devices (which amplify sound rather than narrate events that occur on-screen) if these devices have a minimum of two channels available for sound transmission.
4. Theaters Must Acquire Movies with Closed Captions and Audio Descriptions if Available
If a theater exhibits a movie for which closed captioning and/or audio descriptions are available, the theater must acquire the captioned/audio description version of that movie under the proposed rule. In addition, the captioned/audio description version of the movie must be shown at all scheduled showtimes.
DOJ stressed in its various explanatory documents that theaters have no obligation to create closed captioning or audio descriptions for movies that do not already have them. DOJ also stated that theaters could exhibit movies without captions or audio description, but only if these features are not available from the studio or distributor for any particular movie.
5. Theaters Must Have Staff Who Can Operate Assistive Equipment and Communicate Effectively with Patrons with Disabilities
At least one person (presumably an employee) who can locate and operate all captioning and audio description listening devices, as well as any ancillary equipment, must be at the theater at all times. This employee must be able to communicate effectively with customers with disabilities regarding the operation of this equipment and to address potential equipment malfunctions. DOJ stated in the commentary that this provision does not require a theater to hire a sign language interpreter to communicate with a deaf patron. Instead, effective communication regarding the use and operation of this equipment may be provided through “signage, instruction guides, and exchange of written notes.”
6. Other Technologies May be an Acceptable Substitute for Closed Captioning
Movie theaters may use technologies other than closed captioning (such as open captioning), as long as the technology used provides communication that is as effective as that provided to patrons without disabilities.
7. Theaters’ Communications and Advertisements Showing Movie Times Must Indicate Whether Captioning and Audio Description Listening Devices are Available
The proposed 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. This requirement extends to “websites, posters, marquees, newspapers, telephone, and other forms of communication.” The DOJ’s commentary states that this requirement applies to “all types of communications and advertisements provided by movie theaters,” but does not apply to third party websites.
8. Digital Movie Screens will have Six Months to Comply; DOJ Undecided about Compliance for Analog Movie Screens
Movie screens using digital media (as opposed to 35 mm film) must comply with the proposed rule within six months after the final rule is published in the Federal Register. If an analog (film) screen is converted to digital, then it must comply within six months after the conversion.
The proposed rule presents two “options” for public comment regarding compliance of analog movie screens. Under the first option, theaters with analog screens must comply with the proposed rule within four years after the final rule is published. Under the second option, DOJ would address the obligation of theaters with analog screens in a future rulemaking. The DOJ will consider the public’s comments in determining which option to adopt in the final rule.
The compliance schedule in the proposed rule departs from the approach DOJ described in 2010 when it issued the Advanced Notice of Proposed Rulemaking (ANPRM). At that time, DOJ said it was considering a phased approach that would require a theater to offer captioning and audio description on 50 percent of its movie screens by the end of a five year period. The proposed rule, in contrast, requires that all digital movie screens provide captioning and audio description within six months of publication of the final rule.
As with all proposed regulations, the implications for movie theaters and movie goers will become more apparent over time. However, there is no question that this rule, when final, will impose a substantial cost on the industry, provide benefits for individuals with sight and hearing disabilities, and provide yet more litigation fodder for opportunistic plaintiffs and their lawyers.
Stay tuned for further analysis and updates on these emerging developments.