Seyfarth Synopsis:  A Missouri federal judge orders a theatre to provide, upon request, captioning services for the deaf for all theatrical performances.

A federal judge in Missouri recently ordered a 4500-seat indoor theatre to provide open or closed captioning for all theatrical performances upon request with two weeks’ notice, in a lawsuit brought by deaf patrons and advocacy organizations.

The Fabulous Fox Theatre in St. Louis, Missouri initially offered no captioning services of any kind for its theatre productions. After the plaintiffs filed their lawsuit, the theater agreed to provide captioning on a handheld device for one prescheduled Broadway-style performance per production (usually on a Saturday matinee), if it receives a request for captioning two weeks before the show. The theatre provided stands for the devices only at designated accessible seats because the fire marshal considered them to be a fire hazard. The plaintiffs maintained that captioning should be available for all shows, and that the theatre should provide stands for the handheld devices at all seats, not just accessible seats. They also sought an injunction requiring the theatre to (a) publicize the availability of captioning; (b) provide a means to request captioning; and (c) provide a method for people to purchase tickets by non-telephonic means, including e-mail.

The judge agreed with the plaintiffs on every issue but one. The judge held that providing captioning for only one show per Broadway-style production denied plaintiffs the equal opportunity to participate in the theatre’s performances because it limited their ability to choose from a number of different performances that were available to non-disabled patrons. The court also found that the theatre had failed to meet its obligation to provide auxiliary aids and services to ensure effective communication with the plaintiff. The theatre did not attempt to argue that providing captioning for all performances upon request would be an undue burden or fundamental alteration of its performances. Accordingly, the court ordered the theatre to provide captioning for all theatrical performances upon request with two weeks’ notice. The court also – with no discussion – ordered the theatre to publicize the availability of captioning, provide a means to request captioning, and provide a method of buying tickets through non-telephonic means, including e-mail. The court did not require the theatre to provide stands for the captioning devices at non-accessible seats, due to fire safety concerns.

The decision serves as a reminder that Title III of the ADA requires public accommodations to provide auxiliary aids and services to individuals with disabilities to ensure effective communication with them, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services provided. Organizers of events that are open to the public should keep this in mind and have a plan for ensuring effective communication for participants and spectators with different types of disabilities, as there have been a number of lawsuits filed in the past several years over the lack of captioning for live events.

Edited by Kristina Launey.

Seyfarth Synopsis: Fewer online videos from UC Berkeley will be available to the public as a result of a DOJ demand that the videos have closed captioning.

Starting March 15, 2017, more than 20,000 videos of classroom lectures and podcasts on UC Berkeley’s YouTube and iTunes channels will no longer be available for public viewing, according to a recent statement by the university.  The statement explains that the decision will “partially address recent findings by the Department of Justice which suggests that the YouTube and iTunesU content meet higher accessibility standards as a condition of remaining publicly available,” and “better protect instructor intellectual property from “pirates” who have reused content for personal profit without consent.”  UC Berkeley stated that it would focus its resources on creating new accessible online content and continue to offer free courses in accessible formats to the public through massive online open course provider, edX.

On August 30, 2016, the Department of Justice (DOJ) issued the findings UC Berkeley referenced in its recent statement, after conducting an investigation into the university’s compliance with Title II of the ADA.  DOJ concluded in the findings that that a covered entity subject to Title II has a duty to ensure content that it makes available to the public free of charge is accessible.

Similar to Title III of the ADA which applies to public accommodations (i.e., twelve categories of privately-owned entities that do business with the public), Title II of the ADA requires public universities and other covered entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of their services programs, or activities.  It also requires covered entities to furnish appropriate auxiliary aids and services where necessary to achieve effective communication.  A covered entity is not, however, required to take any action that would result in a fundamental alteration in the nature of its service, program or activity or in undue financial and administrative burdens.

As set forth in its findings letter, the DOJ opened its investigation after receiving complaints from the National Association of the Deaf (NAD) on behalf of two of its members that some of UC Berkeley’s online videos did not have closed captioning.  Significantly, these complainants were members of the public seeking access to free information, not students, prospective students, or faculty.  The DOJ concluded that many of UC Berkeley’s online videos did not have proper closed captions, and has threatened to file an enforcement lawsuit against the school unless it agrees to enter into a consent decree, caption all of its online content, and pay damages to individuals with disabilities who had been injured by UC Berkeley’s failure to provide accessible online videos.  This DOJ matter is still pending as no resolution or enforcement suit has been announced.

The DOJ’s position in its findings letter to UC Berkeley — that a covered entity has a duty to ensure that content that it makes available to the public free of charge is accessible — certainly pushes the boundaries of the ADA and has not been tested in the courts.  If covered entities must in fact ensure that all of the information that they put out for the world to use for free (no matter how remotely related to their central mission) or face lawsuits and DOJ investigations, there may well be a significant reduction in the amount of information provided on the web for public consumption.

A court may at some point rule on this precise question in the pending lawsuits brought by members of the NAD against Harvard University and the Massachusetts Institute of Technology (MIT) in Massachusetts federal court.  The plaintiffs there are members of the public who are asking the court to order the universities to provide captioning for tens of thousands of videos on their websites.  As we reported, the court rebuffed the universities’ efforts to dismiss the case early and President Obama’s DOJ filed briefs supporting the NAD. As the case continues, the universities will likely focus their efforts on proving that providing captioning for tens of thousands of videos is an undue burden or would fundamentally alter the nature of the videos they are providing.  We would not be surprised if these lawsuits result in these universities deciding to follow UC Berkeley’s lead and limit the amount of public access to their online videos.

Edited by Kristina Launey.

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.

***

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.

Seyfarth Synopsis:  In what has been deemed the first of its kind, Netflix has entered into an agreement with the American Council of the Blind, the Massachusetts-based Bay State Council of the Blind, and a blind individual, to add “audio descriptions” to many of the programs offered on its video streaming and DVD rental service.

“Audio description”  is narration added to the soundtrack of a video that describes important visual details that cannot be understood by viewers who are blind from the main soundtrack alone.  Under the agreement, by December 31, 2016, Netflix will provide audio description for many popular titles in its streaming and disc rental libraries, as well as “Netflix Original” shows such as Orange is the New Black and House of Cards.  If Netflix does not control the audio description rights to a title, it will “make commercially reasonable efforts to secure and offer audio description.”  Adding audio descriptions to soundtracks describing what is happening visually on the screen can be more challenging that adding closed captioning for the deaf.  Closed captioning translates the words and sounds on soundtrack into captions and requires little to no interpretation.  Audio descriptions, on the other hand, require a description of what is going on visually and can be a much more subjective exercise.

Netflix will also make its website and mobile application accessible to individuals who are blind and use screen-reading software to access its site and app.  Like most settlement agreements and consent decrees concerning website accessibility, this agreement  adopts the Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) as the accessibility standard.  However, the agreement does not use WCAG 2.0 AA as the accessibility standard for mobile applications.  Instead, the agreement adopts the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (“BBC Standard”) as the accessible standard for the mobile application.  The use of the BBC Standard is unusual and departs from the Department of Justice’s practice of using the WCAG 2.0 AA as the accessibility standard for mobile applications.

Responding to the concerns of disability rights advocates is not new for Netflix.  As we reported previously, back in 2012 Netflix entered into a consent decree with the National Association of the Deaf which brought suit under Title III of the ADA because Netflix allegedly did not providing adequate closed captioning on its video streaming service.  As a result of that  decree, 100% of Netflix’s US-based On-demand Streaming Content is now captioned or subtitled.  It appears that when approached by disability rights advocates this time around, Netflix decided to work with them rather than litigate. The agreement is part of a continuing trend in which businesses are voluntarily taking action to make their websites and mobile applications more accessible.

Edited by Kristina Launey.

As we reported in July of 2014, the DOJ is working on final regulations that would require movie theatres with digital screens to show movies with closed captioning and audio description.

At a cost to the industry that DOJ estimated will be between $138.1 and $275.7 million, the proposed regulations would require that all movie theatres with digital screens (other than drive-ins) provide a minimum number of devices for visually and hearing impaired moviegoers based on seating capacity, acquire movies with these features where available, ensure that there is at least one person on-site to locate and operate this equipment, and inform customers of the availability of these features in movie times shown in wide variety of advertising materials.

We just learned that a draft Final Rule has gone to the Office of Management and Budget (OMB) for review, which is the final stage of the rulemaking process.  The projected Final Rule publication date is May of this year.  That said, these projected dates have often been moved before (especially when it comes to website regulations), so we are not holding our breath.

Stay tuned to the blog for more updates.

Edited by Kristina Launey and Minh Vu.

There is more bad news for businesses that thought that they could wait for the Department of Justice (DOJ) to issue specific regulations before making their websites accessible to individuals with disabilities.  Federal Magistrate Judge Robertson in the District of Massachusetts recently denied motions by Harvard and MIT to dismiss or stay website accessibility class action lawsuits, and recommended that the lawsuits move forward to discovery.  The judge found that the existing law and regulations provide a basis for the deaf advocates’ claim that the universities violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on their websites. The judge rejected the universities’ arguments that the court dismiss or stay the case while DOJ works on its proposed rules for website accessibility, finding that the court did not need the agency’s expertise to adjudicate the cases.  The judge did, however, give weight to the DOJ’s interpretation of the ADA expressed in its Statement of Interest filed in the Harvard and MIT lawsuits.

The Magistrate Judge’s recommendation will not be a final order of the court until U.S. District Court Judge Mastroianni adopts it.  Even after adoption, the decision will not be a finding that the universities have violated the law or that they must caption all videos on their websites.  The ruling would simply allow the cases to move forward to discovery.  As Judge Robertson noted, the schools will have an opportunity to assert various defenses later in the case.  For example, Harvard and MIT might show that they provide access to their videos in some alternative, equivalent matter.  They might also seek to establish that providing closed captioning for some or all videos on their websites would constitute an undue burden or fundamentally alter the nature of the goods and services that they offer.

There are many takeaways from Judge Robertson’s 45-page opinion, but we see two very basic, practical points:

  • Judges, at least thus far, have not been receptive to the argument that there is no obligation to make websites accessible until DOJ issues regulations on the subject. In 2015, a federal judge in Pittsburgh also denied a defendant bank’s motion to dismiss or for a stay of a website accessibility case, without any discussion or explanation.
  • Courts seem reluctant to dismiss website accessibility lawsuits at the beginning of the case. This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevails on the merits.

The Harvard and MIT decisions will undoubtedly fuel the continuing explosion of website accessibility cases.  We are working to determine how many such suits have been filed and will report it to you as soon as we have it.

Edited by Kristina M. Launey.

Over the past few weeks, our Title III Specialty Team contributed to the following pieces:

The site LXBN.com interviewed Seyfarth’s ADA Title III Team leader Minh Vu for an article about a pending lawsuit brought by an advocacy organization for the deaf against seven Hollywood movie studios for failing to provide closed captioning for lyrics of songs in motion pictures. The suit highlights the uncertain legal landscape on the digital frontier.

Lodging industry publication Hotel News Now featured Minh Vu’s practical advice on some thorny service animal questions that hotels often face. Service animal issues are not new, but businesses continue to grapple with them every day.

Last, but not least, a Cato Institute blog post recently referenced our post “Justice Department Delays Web Accessibility Regulations For At Least Three More Years, Leaving Businesses in Turmoil.”

We appreciate being your resource for ADA Title III disability access developments, and will continue to keep you updated.

By Erin McPhail Wetty

Last month, a California district court reaffirmed that Title III of the Americans with Disabilities Act (“Title III”) does not require a public accommodation to offer accessible goods (i.e. videos with captioning) as part of its inventory.  In Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014), a deaf individual claimed that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks, despite his requests.  The plaintiff also argued that Redbox Digital failed to closed-caption all of its online videos that were available for streaming, in violation of Title III.  The defendants filed a motion to dismiss both claims.

The Court held that Title III does not regulate the content or characteristic of goods that places of public accommodation provide—“the goods in a retailer’s industry”—such as the DVDs Redbox offered at its rental kiosks.  In so holding, the Court relied on regulations, which explicitly state that a public accommodation is not required to “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”  The plaintiff argued that DVDs should not be considered special goods because of recent technological advances that make captioning DVDs easier.  In rejecting this argument, the Court reasoned that the ease of captioning does not affect whether or not captioned DVDs should be viewed as accessible goods.  Rather, the Court concluded that the plaintiff’s request was essentially a request for Redbox to change its DVD inventory at its kiosks, which Title III does not require.  This ruling is not a positive development for advocates of the deaf and hard of hearing who are pushing for more captioning of video content.  It is also significant in driving home the point that Title III regulates the entity’s provision of a good, not the content or creation of that good.

The Court also found that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.  This outcome is not surprising because courts in the Ninth Circuit have taken the position that only websites that have a nexus to a brick and mortar public accommodations location are covered by Title III of the ADA.  The outcome on this point would likely have been different had the case been brought in the First Circuit—where the Massachusetts District Court held that Netflix’s online video-streaming website was covered by Title III, even though Netflix had no brick and mortar place of business, as we previously reported.

This case is significant as one of the few, yet increasing, cases addressing the applicability of Title III to emerging technologies, such as the internet and captioning, that were not contemplated in 1992 when the ADA was enacted.  Even more so, because in the absence of regulations setting requirements for web accessibility, some may point to this case as evidence websites are not subject to Title III, while others point to the Massachusetts Netflix case to argue the contrary.  In view of the recent wave of lawsuits and enforcement actions surrounding accessibility of business’ websites, this area of law is evolving very quickly.

Edited by Minh Vu and Kristina Launey