[Federal Register Volume 75, Number 142 (Monday, July 26, 2010)]
[Proposed Rules]
[Pages 43467-43476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18337]
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DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 112]
RIN 1190-AA63
Nondiscrimination on the Basis of Disability; Movie Captioning
and Video Description
AGENCY: Civil Rights Division, Justice.
ACTION: Advance Notice of Proposed Rulemaking.
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SUMMARY: The Department of Justice (Department) is considering revising
its regulation implementing title III of the Americans with
Disabilities Act (ADA) in order to establish requirements for making
the goods, services, facilities, privileges, accommodations, or
advantages offered by movie theater owners or operators at movie
theaters accessible to individuals who are deaf or hard of hearing or
who are blind or have low vision by screening movies with closed
captioning or video description. The Department is issuing this Advance
Notice of Proposed Rulemaking (ANPRM) in order to solicit public
comment on various issues relating to the potential application of such
requirements and to obtain background information for the regulatory
assessment the Department may need to prepare in adopting any such
requirements.
DATES: The Department invites written comments from members of the
public. Written comments must be postmarked and electronic comments
must be submitted on or before January 24, 2011.
ADDRESSES: You may submit comments, identified by RIN 1190-AA63 (or
Docket ID No. 112), by any one of the following methods:
Federal eRulemaking Web site: www.regulations.gov. Follow
the Web site's instructions for submitting comments. The
Regulations.gov Docket ID is DOJ-CRT-0112.
Regular U.S. mail: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
Overnight, courier, or hand delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of
[[Page 43468]]
Justice, 1425 New York Avenue, N.W., Suite 4039, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Kathleen Devine, Attorney, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
You may obtain copies of this ANPRM in large print or Braille or on
audiotape or computer disk by calling the ADA Information Line at (800)
514-0301 (voice) and (800) 514-0383 (TTY). This ANPRM is also available
on the ADA Home Page at http://www.ada.gov.
SUPPLEMENTARY INFORMATION:
I. Electronic Submission of Comments and Posting of Public Comments
You may submit electronic comments to www.regulations.gov. When
submitting comments electronically, you must include DOJ-CRT 2010-0112
in the search field, and you must include your full name and address.
Electronic files should avoid the use of special characters or any form
of encryption and should be free of any defects or viruses.
Please note that all comments received are considered part of the
public record and made available for public inspection online at
www.regulations.gov. Submission postings will include any personal
identifying information (such as your name, address, etc.) included in
the text of your comment. If you include personal identifying
information (such as your name, address, etc.) in the text of your
comment but do not want it to be posted online, you must include the
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of
your comment. You must also include all the personal identifying
information you want redacted along with this phrase. Similarly, if you
submit confidential business information as part of your comment but do
not want it to be posted online, you must include the phrase
``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your
comment. You must also prominently identify confidential business
information to be redacted within the comment. If a comment has so much
confidential business information that it cannot be effectively
redacted, all or part of that comment may not be posted on
www.regulations.gov.
Comments on this ANPRM will also be made available for public
viewing by appointment at the Disability Rights Section, located at
1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during
normal business hours. To arrange an appointment to review the
comments, please contact the ADA Information Line at (800) 514-0301
(voice) or (800) 514-0383 (TTY).
The reason that the Civil Rights Division is requesting electronic
comments before Midnight Eastern Time on the day the comment period
closes is because the inter-agency Regulations.gov/Federal Docket
Management System (FDMS) which receives electronic comments terminates
the public's ability to submit comments at Midnight on the day the
comment period closes. Commenters in time zones other than Eastern may
want to take this fact into account so that their electronic comments
can be received. The constraints imposed by the Regulations.gov/FDMS
system do not apply to U.S. postal comments, which will be considered
as timely filed if they are postmarked before Midnight on the day the
comment period closes.
II. Public Hearing
The Department will hold at least one public hearing to solicit
comments on the issues presented in this notice. The Department plans
to hold the public hearing during the 180-day public comment period.
The date, time, and location of the public hearing will be announced to
the public in the Federal Register and on the Department's ADA Home
Page, http://www.ada.gov/.
III. Background
A. Statutory and Rulemaking History Up to the 2008 NPRM
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability. The ADA broadly protects the rights of individuals
with disabilities in employment, access to State and local government
services, places of public accommodation, transportation, and other
important areas of American life. The ADA also requires, in pertinent
part, newly designed and constructed or altered public accommodations,
and commercial facilities to be readily accessible to and usable by
individuals with disabilities. 42 U.S.C. 12101 et seq. Section 306(b)
of title III directs the Attorney General to promulgate regulations to
carry out the provisions of title III, other than certain provisions
dealing specifically with transportation. 42 U.S.C. 12186(b).
Title III prohibits discrimination on the basis of disability in
the activities of places of public accommodation (private entities
whose operations affect commerce and that fall into one of twelve
categories listed in the ADA, such as restaurants, movie theaters,
schools, day care facilities, recreational facilities, and doctors'
offices) and requires newly constructed or altered places of public
accommodation--as well as commercial facilities (privately owned,
nonresidential facilities such as factories, warehouses, or office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
On July 26, 1991, the Department issued its final rule implementing
title III, which is codified at 28 CFR part 36. Appendix A of the title
III regulation, at 28 CFR part 36, contains the ADA Standards for
Accessible Design. On September, 30, 2004, the Department published an
advance notice of proposed rulemaking (2004 ANPRM) to begin the process
of updating the 1991 regulation to adopt revised ADA Standards based on
the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June
17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM)
to adopt the revised ADA Standards and, in pertinent part, revise the
title III regulations. 73 FR 34466. The NPRM addressed the issues
raised in the public's comments to the ANPRM and sought additional
comment.
In that NPRM, the Department stated that it was considering options
under which it might require that movie theater owners or operators
exhibit movies that are captioned for patrons who are deaf or hard of
hearing and movies that provide video (narrative) description\1\ for
patrons who are blind or have low vision.\2\ The Department
[[Page 43469]]
noted, for example, that technical advances since the early 1990s have
made open and closed captioning for movies more readily available and
effective. The Department also stated that it understood that the movie
industry was transitioning, in whole or in part, to movies in digital
format and that movie theater owners and operators were beginning to
purchase digital projectors. As noted in that NPRM, movie theater
owners and operators with digital projectors may have available to them
different options for providing captioning and video description than
those without digital projectors. The Department sought comments
regarding whether and how to require captioning and video description
while the film industry made the transition to digital. Also, the
Department stated its concern about the potential cost to exhibit
captioned movies, noting that cost may vary depending upon whether open
or closed captioning is used and whether or not digital projectors are
used, and stated that the cost of captioning must stay within the
parameters of the undue burden requirement in 28 CFR 36.303(a). The
Department also expressed concerns about the cost of video description
equipment but stated that it understood that the cost for video
description was less than that for closed captioning. The Department
then stated that it was considering the possibility of requiring public
accommodations to exhibit all new movies in captioned format and with
video description at every showing. The Department indicated that at
that time, it anticipated that it would not specify which types of
captioning to provide, leaving that to the discretion of the movie
theater owners and operators.
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\1\ In the June 17, 2008 NPRM, the Department used the term
``narrative description'' to define the process and experience
whereby individuals who are blind or have low vision are provided
with a spoken narrative of key visual elements of a movie, such as
actions, settings, facial expressions, costumes, and scene changes.
In response to comments received from this NPRM, the Department now
refers to this process as video description.
\2\ The Department's regulations already require that public
accommodations provide effective communication to the public through
the provision of auxiliary aids and services, including, where
appropriate, captioning and audio or video description. See
generally, 28 CFR 36.303; 28 CFR part 36, Appendix B. To that end,
the Department has entered into settlement agreements with a major
museum and various entertainment entities requiring such aids and
services. See e.g., Agreement Between the United States of America
and the International Spy Museum, (June 3, 2006), available at
http://www.ada.gov/spymuseum.htm.; Agreement Between the United
States of America and Walt Disney World Co. Under the Americans With
Disabilities Act Concerning the Use of Auxiliary Aids at Walt Disney
World (January 17, 1997), available at http://www.ada.gov/disagree.htm .
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The Department received numerous comments urging the Department to
issue captioning and video description regulations under the ADA. These
comments are discussed infra. Recently, the United States Court of
Appeals for the Ninth Circuit held that the ADA required a chain of
movie theatres to exhibit movies with closed captioning and video
description unless the theaters could show that to do so would amount
to a fundamental alteration or undue burden. Arizona v. Harkins
Amusement Enterprises, Inc.,--F.3d. --, 2010 WL 1729606 (9th Cir.,
April 30, 2010). In light of the comments received pursuant to the
NPRM, the Ninth Circuit decision, and the additional reasons detailed
below, the Department has decided to begin the process of soliciting
additional comments and suggestions with respect to what an NPRM
regarding captioning and video description should contain.
B. Legal Foundation for Captioning and Video Description
Creating regulations that would require movie theater owners and
operators to exhibit closed captioned and video described movies falls
squarely within the requirements of the ADA. Title III of the ADA
includes movie theaters within its definition of places of public
accommodation. 42 U.S.C. 12181(7). Title III makes it unlawful for
places of public accommodation, such as movie theaters, to discriminate
against an individual in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of any
place of public accommodation. 42 U.S.C. 12182(a). Moreover, title III
prohibits places of public accommodation from affording an unequal or
lesser service to individuals or classes of individuals with
disabilities than is offered to other individuals. 42 U.S.C.
12182(b)(1)(A)(ii). Title III requires places of public accommodation
to 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 the entity can demonstrate that taking such steps
would fundamentally alter the nature of the good, service, facility,
privilege, advantage, or accommodation being offered or would result in
an undue burden.'' 42 U.S.C. 12182(b)(2)(A)(iii). The statute defines
auxiliary aids to include ``qualified interpreters or other effective
methods of making aurally delivered materials available to individuals
with hearing impairments'' and ``taped texts, or other effective
methods of making visually delivered materials available to individuals
with visual impairments.'' 42 U.S.C. 12103(1)(A)-(B). The Department's
title III regulation specifically lists open and closed captioning and
audio recordings and other effective methods of making visually
delivered materials available to individuals with visual impairments as
examples of auxiliary aids and services that should be provided by
places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the
public accommodation can demonstrate that providing such aids and
services would fundamentally alter the nature of the good or service
being offered or would result in an undue burden. 28 CFR 36.303(a). In
addition, the Department's title III regulation mandates that if a
provision of a particular auxiliary aid or service by a public
accommodation would result in a fundamental alteration in the nature of
the goods or services being offered or in an undue burden, the public
accommodation shall provide an alternative auxiliary aid or service, if
one exists, that would not result in an alteration or such burden but
would nevertheless ensure that, to the maximum extent possible,
individuals with disabilities receive the goods and services offered by
the public accommodation. 28 CFR 36.303(f).
While the ADA itself contains no explicit language regarding
captioning (or video description) in movie theaters, the legislative
history of title III states that ``[o]pen-captioning * * * of feature
films playing in movie theaters, is not required by this legislation.
Filmmakers, are, however, encouraged to produce and distribute open-
captioned versions of films, and theaters are encouraged to have at
least some pre-announced screenings of a captioned version of feature
films.'' H.R. Rep. No. 101-485 (II), at 108 (1990); S. Rep. No. 101-116
at 64 (1989). Congress was silent on the question of closed captioning
in movie theaters, a technology not yet developed at that time for
first-run movies, but it acknowledged that closed captions may be an
effective auxiliary aid and service for making aurally delivered
information available to individuals who are deaf or hard of hearing.
See H.R. Rep. No. 101-485 (II), at 107.\3\ In addition, the House
Committee stated that ``technological advances can be expected to
further enhance options for making meaningful and effective
opportunities available to individuals with disabilities. Such advances
may require public accommodations to provide auxiliary aids and
services in the future which today would not be required because they
would be held to impose undue burdens on such entities.'' Id. at
108.\4\ Similarly, in 1991, the Department stated that ``[m]ovie
theaters are not required * * * to present open-captioned films,'' but
was silent as to closed captioning. 56 FR 35544,
[[Page 43470]]
35567 (July 26, 1991). The Department also noted, however, that ``other
public accommodations that impart verbal information through
soundtracks on films, video tapes, or slide shows are required to make
such information accessible to persons who are deaf or hard of hearing.
Captioning is one means to make the information accessible to
individuals with disabilities.'' Id.
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\3\ Congress also was silent regarding requiring video
description of movies.
\4\ As the district court in Ball v. AMC Entertainment, Inc.,
246 F. Supp. 2d 17, 22 (D.D.C. 2003) noted, ``Congress explicitly
anticipated the situation presented in this case [the development of
technology to provide closed captioning of movies]. Therefore, the
isolated statement that open captioning of films in movie theaters
was not required in 1990 cannot be interpreted to mean that [movie
theaters] cannot now be expected and required to provide closed
captioning of films in their movie theaters.'' (Emphasis in
original).
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It is the Department's view that the legislative history of the ADA
and the Department's commentary in the preamble to the 1991 regulation
make clear that Congress was not requiring open captioning of movies in
1990, but that it was leaving open the door for the Department to
require captioning in the future as the technology developed. It is
also the Department's position that neither the ADA nor its legislative
history precludes, in any way, issuing regulations regarding video
description. To the contrary, given the present state of technology, we
believe that requirements of captioning and video description fit
comfortably within the statutory text.
In April of this year, the first federal appellate court to
squarely address the question of whether captioning and video
description are required under the ADA determined that the ADA required
movie theatre owner and operator Harkins Amusement Enterprises, Inc.,
and its affiliates, to screen movies with closed captioning and
descriptive narration (video description) unless such owners and
operators could demonstrate that to do so would amount to a fundamental
alteration or undue burden. Arizona v. Harkins Amusement Enterprises,
Inc.,--F.3d. --, 2010 WL 1729606 (9th Cir., April 30, 2010).\5\ The
Ninth Circuit found that because closed captioning and video
descriptions are correctly classified as ``auxiliary aids and
services'' that a movie theater may be required to provide under the
ADA, the lower court erred in finding that these services are
foreclosed as a matter of law. Id.
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\5\ This court was guided, in part, by the amicus brief filed by
the United States in support of requiring closed captioning and
video description.
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C. Movie Basics
The very first movies were silent films. ``Talkies'' added sound as
a separate component. Although many technological advances have been
made since the advent of the ``talkie,'' the practice of exhibiting the
visual portion of the movie separate from the sound is still common.
Today, the cinematography portion of many movies is exhibited in an
analog (i.e. film) format, and the aural portion is exhibited in a
digital format. Five to six reels of film are used for a typical two-
hour long movie. These reels must be physically delivered to each movie
theater exhibiting the movie. Digital sound is captured on CD-roms or
optically or digitally on the film itself. Digital sound is
synchronized to the visual images on the screen by a mechanism, called
a reader head, that reads a timecode track printed on the film.
Digital cinema, by contrast, captures images, data, and sound on
data files as a digital ``package'' that is stored on a hard drive or a
flash drive. Digital movies are physically delivered to movie theaters
on high resolution DVDs or removable or external hard drives, or to
movie theaters' servers via Internet, fiberoptic, or satellite
networks. The movie industry recently has begun transitioning to
digital cinema and it is the Department's understanding that, in the
industry's view, this transition is one of the most profound advances
in motion picture production and technology of the last 100 years and
will provide numerous advantages both for the industry and the
audience.
D. Captioning and Video Description Generally
Captioning makes movies shown in theaters accessible to individuals
whose hearing is too limited to benefit from assistive listening
devices, as well as to individuals with other hearing disabilities.
Open captions are similar to subtitles in that the text of the dialog
is visible to everyone in the theater. Unlike subtitles, open captions
also describe other sounds and sound makers (e.g., sound effects,
music, and the character who is speaking) in an on-screen text format.
Open movie captions are sometimes referred to as ``burned in'' or
``hardcoded'' captions. However, new open captioning technology enables
studios to superimpose captions without making a burned in copy or
having to deliver a separate version of the movie. Open-captioned films
are most often exhibited in movie theaters at certain limited showings.
Closed captioning displays the written text of the dialog and other
sounds or sound makers only to those individuals who request it. It is
the Department's understanding that, at the time comments were received
in response to the 2008 NPRM, there were various types of closed
captioning systems either in use or in development, including the Rear
Window system, hand-held displays similar to a PDA (personal digital
assistant), eyeglasses fitted with a prism over one lens, and projected
bitmap captions. It is also the Department's understanding that, at
present, the only system that has gained a foothold in the marketplace
is the Rear Window system. Unlike open captions that are sometimes
burned onto the film itself, Rear Window captions are generated via a
technology that neither is physically attached to the film nor requires
a separate copy of the film to be made. The Rear Window system works
through a movie theater's digital sound system. It uses a computer, a
time code signal, and captioning software to project the captions, in
reverse, on an LED display in the rear of the theater. A clear
adjustable panel that is mounted on, or near an individual viewer's
seat reflects the captions correctly and superimposes them on that
panel so that it appears to a Rear Window user that the captions are on
or near the movie image. Because this technology enables a movie
theater that has been equipped with a Rear Window system to exhibit any
movie that a movie producer has captioned, at any showing, without
displaying captions to every movie-goer in the theater, individuals who
are deaf or hard of hearing may enjoy movies in the same theater as
those who do not require captioning.
Video 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. Visual description
fills in information about the visual content of a movie where there
are no corresponding audio elements in the film. It requires the
creation of a separate script written by specially trained writers who
prepare a script for video description that is recorded on an audiotape
or CD that is synchronized with the film as it is projected. The script
is transmitted to the user through infra-red or FM transmission to
wireless headsets.
E. Increasing Numbers of Individuals With Hearing and Vision
Impairments
The percentage of Americans approaching middle age and older is
increasing. According to 2000 Census figures, Baby Boomers (i.e.,
individuals born between 1946 and 1964 or who were between the ages of
36 and 54 in 2000), comprised nearly a third of all Americans. Just
over a fifth of the American populous was age 55 or older. From 1990 to
2000, the two fastest growing age groups were those 45 to 49 and 50 to
54. The younger of the two groups increased by nearly 45 percent, and
the older increased by more than half (54.9 percent). Together these
[[Page 43471]]
groups comprised nearly 38 million people (37,677,952). When joined
with other ``seniors,'' the 2000 Census figure for the over 45 age
group increased to nearly 97 million people (96,944,389). Assuming the
population has remained fairly constant, when the 2010 Census is
completed and the results are released, Baby Boomers, who will then
fall between the ages of 46 and 64, will make older Americans the
largest segment of the U.S. population.
The aging of the population is significant because of the
correlation between aging and hearing and vision impairment or loss. An
October 21, 2008 Department of Health and Human Services' Progress
Review on Vision and Hearing in the United States noted that Richard
Klein, Chief of the NCHS Health Promotion Statistics Branch, found that
there are about 21 million adults in the United States that are
visually impaired, and about 36 million (17 percent) have some degree
of hearing loss.\6\ The Progress Review also noted that ``[a]s with
vision problems, the number of U.S. adults with hearing loss is
expected to increase significantly as the population ages, because
hearing loss and aging are related to a high degree. Hearing loss is
one of the three most prevalent chronic conditions in older Americans,
ranking just after hypertension and arthritis.'' Progress Review:
Vision and Hearing, http://www.healthypeople.gov/data/2010prog/focus28/. Moreover, at least one hearing loss Web site reports that
``[a]s baby boomers reach retirement age starting in 2010, th[e] number
of [Americans with hearing loss] is expected to rapidly climb and
nearly double by the year 2030.'' Hearing Loss Association of America,
Facts on Hearing Loss, http://www.hearingloss.org/learn/factsheets.asp.
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\6\ According to the National Institute on Deafness and Other
Communication Disorders of the National Institutes of Health, in
2004 there were 28 million Americans who had some type of hearing
loss, and 500,000 to 750,000 Americans who had severe to profound
hearing loss or deafness. Healthy Hearing 2010: Where Are We Now?,
http://www.nidcd.nih.gov/health/inside/spr05/pg1.asp. The National
Eye Institute of the National Institutes of Health reported in 2004,
``With the aging of the population, the number of Americans with
major eye diseases is increasing, and vision loss is becoming a
major health problem. By the year 2020, the number of people who are
blind or have low vision is projected to increase substantially. * *
* Blindness or low vision affects 3.3 million Americans age 40 or
over, or one in 28, * * *. This figure is projected to reach 5.5
million by 2020. * * * [L]ow vision and blindness increase
significantly with age, particularly in people over age 65.'' See
http://www.nei.nih.gov/news/pressreleases/041204.asp.
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F. The Department's Rulemaking History Regarding Captioning and Video
Description
When the Department issued its September 30, 2004 advance notice of
proposed rulemaking (ANPRM), it did not raise movie captioning or video
description as potential areas of regulation. Despite that fact,
several ANPRM commenters requested that the Department consider
regulating in these areas. The Department has determined that since the
publication of the 1991 regulation, new ``closed'' technologies for
movie captioning and video description have been developed. By 1997,
these technologies were released into the marketplace.\7\
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\7\ The first feature film with closed captions and video
description, The Jackal, was exhibited at a California movie theater
in 1997. The Jackal's release was followed by the release of
Titanic--the first major studio direct-release of a movie with
closed captioning and video description capabilities.
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Given the availability of this new technology, mindful that the
ADA's legislative history made clear that the ADA ought not be
interpreted so narrowly or rigidly that new technologies are excluded,
and aware that assistive listening devices and systems in movie
theaters cannot be used to effectively convey the audio content of
films for individuals who are deaf or who have severe or profound
hearing loss, the Department decided to broach the topic of requiring
closed captioning and video description at movie theaters in the 2008
NPRM. The NPRM asked exploratory questions about, but proposed no
regulatory text for, movie captioning and video descriptions. The
Department received many comments from individuals with disabilities,
organizations representing individuals with disabilities, non-profit
organizations, state governmental entities, and representatives from
movie studios and movie theater owners and operators on these two
issues.
Rather than using these comments to formulate a final rule,
however, the Department is issuing this supplemental ANPRM for three
main reasons. First, the Department wishes to obtain more information
regarding several issues raised by commenters that were not
contemplated at the time the 2008 NPRM was published. Second, the
Department seeks public comment on several technical questions that
arose from the research the Department undertook to address some of the
issues raised by commenters to the original NPRM. Finally, in the two
years that have passed since issuance of the 2008 NPRM, the Department
is aware that movie theater owners and operators, particularly major
movie theater owners and operators, either have entered into, or had
plans to enter into, agreements to convert to digital cinema. However,
during this same time period, the United States' economy, and the
profitability of many public accommodations, experienced significant
setbacks. The Department wishes to learn more about the status of
digital conversion, concrete projections regarding if and when movie
theater owners and operators, both large and small, expect to exhibit
movies using digital cinema, when such movie theater owners and
operators expect to implement digital cinema, by percentages, in their
theaters, and any relevant protocols, standards, and equipment that
have been developed regarding captioning and video description for
digital cinema. In addition, the Department would like to learn if, in
the last two years, other technologies or areas of interest (e.g., 3D)
have developed or are in the process of development that either would
replace or augment digital cinema or make any regulatory requirements
for captioning and video description more difficult or expensive to
implement.
G. Response to 2008 NPRM Comments Concerning Movie Captioning and Video
Description, Analysis and Discussion of Proposed Regulatory Approach
Although the 2008 NPRM did not propose any specific regulatory
language with regard to movie captioning or video description, the
Department sought input from the public as to whether the Department's
regulation should require movie theater owners and operators to exhibit
movies that have captioning for patrons who are deaf or hard of hearing
and video description for individuals who are blind or have low vision.
The Department asked whether, within a year of the revised regulation's
effective date, all new movies should be exhibited with captions and
video description at every showing or whether it would be more
appropriate to require captions and video description less frequently.
The preamble made clear that the Department did not intend to specify
which types of captioning to provide and stated that such decisions
would be left to the discretion of the movie theater owners and
operators.
Individuals with disabilities, advocacy groups, a representative
from a non-profit organization, and representatives of state
governments, including eleven State Attorneys General, overwhelmingly
supported issuance of a regulation requiring movie
[[Page 43472]]
theater owners and operators to exhibit captioned and video described
movies at all showings unless doing so would result in an undue burden
or fundamental alteration. These groups noted that although the
technology to exhibit movies with captions and video description has
been in existence for about ten years, most movie theaters still were
not exhibiting movies with captioning and video description. As a
result, these groups indicated that they believed regulatory action
should not be delayed until the conversion to digital cinema had been
completed. One commenter in this group said that because federal law
requires movie studios to caption movies prior to their release to
cable and television media, see, e.g., 47 CFR 79.1, it made good
business sense for studios to caption movies prior to their being
released to movie theater owners and operators. Several commenters
requested that any regulation include factors describing what
constitutes effective captioning and video description, including that
captioning be within the same line of sight to the screen as the movie
so that individuals who are deaf or hard of hearing can watch the movie
and read the captions at the same time, that the captioning be
accessible from each seat, that the captions be of sufficient size and
contrast to the background so as to be easily readable, and that the
recommendations from the Telecommunications and Electronics and
Information Technology Advisory Committee (TEITAC) Report to the Access
Board that captions be ``timely, accurate, complete, and efficient'' be
included.\8\ The Department has carefully considered these requests and
believes that more information is required before making a decision as
to how many movies should be screened with captioning and video
description available and whether factors that describe what
constitutes effective captioning and video description would be helpful
to movie theater owners and operators and individuals with
disabilities.
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\8\ See Report to the Access Board: Refreshed Accessibility
Standards and Guidelines in Telecommunications and Electronic and
Information Technology (April 2008), http://www.access-board.gov/sec508/refresh/report/.
---------------------------------------------------------------------------
The State Attorneys General supported the Department's statement in
the 2008 NPRM that the Department did not anticipate specifying which
type of captioning to provide or what type of technology to use to
provide video description, but would instead leave that to the
discretion of the movie theater owners and operators. These State
Attorneys General said that such discretion in the selection of the
type of technology was consistent with the statutory and regulatory
scheme of the ADA and would permit any new regulation to keep pace with
future advancements in captioning and video description technology.
These same commenters stated that such discretion may result in a mixed
use of both closed captioning and open captioning, affording more
choices both for the movie theater owners and operators and for
individuals who are deaf or hard of hearing. The Department has
considered these points and has decided that this ANPRM should request
additional comments regarding whether the Department should
specifically require closed captioning or permit motion picture owners
and operators to choose which type of captioning to provide in order to
satisfy any regulatory requirements the Department might impose.
Representatives from the movie theater industry strongly urged the
Department not to issue a regulation requiring captioning (but were
silent as to requiring video description) at movie theaters. Some
industry commenters also opposed any regulation by the Department in
this area claiming that since the Access Board has not issued a
regulation to require the exhibition of captioned and video described
movies in public accommodations, the Department is precluded from so
doing. These commenters misunderstood the allocation of regulatory
authority under the ADA. The ADA authorizes the Access Board to issue
design guidelines for accessible buildings and facilities and requires
that the design standards for buildings and facilities included in
regulations issued by the Department be consistent with the minimum
guidelines and requirements issued by the Architectural and
Transportation Barriers Compliance Board. See 42 U.S.C. 12186(c). It is
beyond the scope of the Access Board's authority to establish
regulations governing aspects of ADA implementation unrelated to design
and construction issues. The Department, by contrast, has broad
regulatory authority to implement additional provisions of the ADA,
including those requiring covered entities to ensure effective
communication with their clients and customers.
Industry commenters also said that the cost of obtaining the
equipment necessary to display closed captioned and video described
movies would constitute an undue burden. One industry commenter stated
that the cost of equipment to display both closed captions and video
description per screen can approach $11,000, plus additional
installation expenses. The Department is aware that there are costs
associated with providing closed captioning and video description
technology and that for some movie theater owners and operators,
particularly independent or very small movie theater companies,
obtaining captioning and video description equipment may indeed
constitute an undue burden. However, after carefully considering the
concerns raised about the costs of implementing captioning and video
description technology, the Department needs additional, more specific,
and more recent information on the issue of undue burden.
In addition, in an effort to spread out any implementation costs so
that costs could be absorbed over time and would lessen any financial
impact on theater owners and operators, the Department is considering a
provision that would phase in compliance requirements. It is the
Department's intention that such a provision, along with normal swings
in supply and demand (e.g., commenters noted that as more theaters
purchase closed captioning and video description technologies, their
costs will drop), could insulate many movie theater owners and
operators from an undue burden.
Some industry commenters argued also that because the industry has
made progress in making cinema more accessible without mandates to
caption or describe movies, the Department should wait until the movie
industry has completed its conversion to digital cinema to regulate.
According to a commenter representing major movie producers and
distributors, the number of motion pictures produced with closed
captioning by its member studios had grown to 88 percent of total
releases by the end of 2007, early 2008; the number of motion pictures
produced with open captioning by its member studios had grown to 78
percent of total releases by the end of 2007, early 2008; and the
number of motion pictures provided with video description has
consistently ranged between 50 and 60 percent of total releases. This
commenter explained that movie producers and distributors, not movie
theater owners and operators, determine whether to caption, what to
caption and describe, the type of captioning to use, and the content of
the captions and video description script. In addition, the movie
studios, not the movie theater owners and operators, assume the costs
of captioning and describing movies. This commenter also said that
movie theater owners and operators must only
[[Page 43473]]
purchase the equipment to display the captions and play the video
description in their auditoriums. That said, several commenters stated
that movie theater owners and operators rarely exhibit the movies with
captions or descriptions. They estimated that less than 1 percent of
all movies being exhibited in theaters are actually shown with
captions.
The Department has carefully considered this information and
acknowledges that significant strides have been made by movie producers
in terms of furnishing movies that have the potential to make movies
more accessible for individuals with disabilities. Despite these
strides, however, the percentage of captioned and video described
movies actually exhibited or made available in movie theaters appears
to be disproportionately low by comparison. The Department is concerned
about what appears to be a significant disconnect between the
production of movies that have captioning and video description
capabilities and the actual exhibition or availability of such movies
to individuals with sensory disabilities. The Department also is
concerned that even when captioned and video described movies are
exhibited, their showings appear to be relegated to the middle of the
week or midday showings. Commenters lamented that individuals with
disabilities generally do not have the option of attending movies on
days and times (e.g., weekends or evenings) when most other moviegoers
see movies because movie theaters usually only show captioned or video
described movies during the week at off-peak hours. The Department has
not been persuaded that movie theaters have made such significant
strides in making the current captioning and video description
technology available to moviegoers with disabilities that regulatory
action in this area would be unnecessary.
Industry commenters have requested that any regulation regarding
captioning and video description be timed to occur after the conversion
to digital cinema is complete. The Department is aware that in 2005,
the movie industry began transitioning away from the exclusive use of
analog films to exhibit movies to a digital mode of movie delivery.
However, the completion date of that conversion has remained elusive.
One industry commenter said while there has been progress in making the
conversion, only approximately 5,000 screens, out of 38,794, have been
converted, and the cost to make the remaining conversions involves an
investment of several billion dollars. Some commenters have suggested
that completion of digital conversion may be 10 or more years in the
future. The Department also is concerned that because of the high cost
of converting to digital cinema (an industry commenter estimated that
the conversion to digital costs between $70,000 and $100,000 per screen
and that maintenance costs for digital projectors are estimated to run
between $5,000 and $10,000 a year, approximately five times as
expensive as the maintenance costs for film projectors) and current
economic conditions, a complete conversion to digital cinema may be
postponed or may not happen at all. For example, National Public Radio
reported that ``[f]or more than seven years, film studios and theaters
have been hyping digital projectors and the crisp, clear picture
quality they'll bring to movie screens. But the vast majority of the
nation's cinemas are still using old analog projectors. * * * Despite
the clear economic advantages of digital projection of the nation's
more than 38,000 movie screens, only 2,200 have digital projectors.''
All Things Considered, Digital Projection in Theaters Slowed Down by
Dispute (Mar. 21, 2007), available at http://news.wvpubcast.org/templates/transcript/transcript.php?storyId=9047637.
Whether a complete conversion to digital cinema will occur in a
time certain, or not at all, is unknown. Even if the conversion of
digital proceeds, until there is a complete digital conversion, at
least some theaters will employ analog cinematography (i.e., 35 mm
film) to exhibit movies. It is the Department's understanding that
currently the vast majority of movie theaters in the United States
exhibit film-based movies. Many, however, use a digital sound system
(e.g., Digital Theater Systems, Dolby Digital, Sony Dynamic Digital
Sound, etc.). Digital sound systems operate independently from analog
projectors that deliver the visual portion of a movie. It is also the
Department's understanding that the closed captioning and video
description technology that is currently available requires a movie
theater to have a digital sound system but that digital cinema is not
necessary for the captioning and video description technology. Thus,
because the Department has not been presented with any substantive
information indicating that a complete conversion to digital cinema is
necessary to provide individuals with disabilities the opportunity to
attend a closed captioned or video described movie, and the date for
any complete conversion to digital cinema is unclear, at best, the
Department believes that it may be unnecessary and inappropriate to
wait to establish rules pertaining to closed captioning and video
description for movies.
It appears that existing captioning and video description equipment
can be used with digital cinema. Commenters appeared to agree that when
theaters move to digital technology, both the caption data and video
descriptions can be embedded into the digital signal that is projected.
A few commenters said that the systems currently used to provide
captioning and video description will not become obsolete once a
theater has converted to digital cinema because their major components
are compatible with, and can be used by, digital cinema systems. These
commenters said that the only difference for a movie theater owner or
operator using digital cinema is the way the data are delivered to the
captioning and video description equipment in place in an auditorium.
In other words, because closed captioning and video description
equipment operates through the digital sound systems most theaters
have, the fact that those sound systems may be integrated with the
digital cinema system will not necessitate changing the captioning and
description equipment, only the manner in which the data they project
are delivered to the digital cinema system. The Department seeks
additional and updated information on this point.
Finally, the Department is considering proposing that 50% of movie
screens would offer captioning and video description 5 years after the
effective date of the regulation. The Department originally requested
guidance on any such figure in its 2008 NPRM. Individuals with
disabilities, advocacy groups who represented individuals with
disabilities, and eleven State Attorneys General advocated that the
Department should require captioning and video description 100% of the
time. Representatives from the movie industry did not want any
regulation regarding captioning or video description. A representative
of a non-profit organization recommended that the Department adopt a
requirement that 50% of movies being exhibited be available with
captioning and video description. The Department seeks further comment
on this issue and is asking several questions regarding how such a
requirement should be framed.
IV. Requests for Comments
While the Department has been persuaded by comments from
individuals, advocacy groups, governmental entities, and at least some
[[Page 43474]]
representatives of the movie industry that the time may be right to
issue regulations on captioning and video description at movie
theaters, the Department has a series of questions concerning the
details of how best to frame and implement any such requirements. The
Department believes that input from interested parties and the public
would prove to be very useful. Specifically, the Department is seeking
additional comment in response to the following questions:
A. Coverage Issues
Question 1. The Department is considering proposing a regulation
that contains a sliding compliance schedule whereby the percentage of
movie screens offering closed captioning and video description
increases on a yearly basis, beginning with 10 percent in the first
year any such rule becomes effective, until the 50 percent mark is
reached in the fifth year. Please indicate whether this approach
achieves the proper balance between providing accessibility for
individuals with sensory disabilities and giving movie theaters and
owners sufficient time to acquire the technology and equipment
necessary to exhibit movies with closed captioning and video
descriptions. Also, if you believe that a different compliance schedule
should be implemented, please provide a detailed response explaining
how this should be accomplished and the reasons in support. Should a
different compliance schedule be implemented for small businesses? If
so, why? What should that schedule require?
Question 2. The Department is considering proposing regulatory
language requiring movie theater owners and operators to exhibit movies
with closed captions and movies with video description so that, after
any sliding compliance scale has been achieved by the final year (e.g.,
at year 5), all showings of at least one-half of the movie screens at
the theater will offer captioning and video description. We seek
comment on the most appropriate basis for calculating the number of
movies that will be captioned and video described: Should this be the
number of screens located in a particular theater facility, the number
of screens owned by a particular movie theater company, the number of
different movies being screened in a particular theater facility, or
some combination thereof? Should a different basis be used for small
business owners? If so, why? What basis should be used? Please include
an explanation of the advantages and disadvantages of each option and
the reasons a particular option is preferred over another.
Question 3. If the number of screens located in a particular
theater facility is the preferred option, please explain whether the
fact that some theaters show the same movie on multiple screens poses
any concerns with regard to the number of movies being screened with
captions and video descriptions, and if so, what they are and whether
there are any ways to address those concerns. Does this option pose
particular concerns to small businesses? If so, what are they? Please
indicate whether the Department should include specific language in the
regulation that states that the basis for calculating the number or
percentage is the number of captioned and video described movies the
theater receives from the movie producers in order to make clear that
the owner has no independent obligation to caption or describe movies.
Question 4. If the number of screens owned by a particular movie
theater company is the preferred option, please explain whether there
are any concerns about the geographic distribution of movies being
screened with captions and video descriptions, and if so, what they are
and whether there are any ways to address those concerns. Does this
option pose particular concerns to small businesses? If so, what are
they? Please indicate whether the Department should include specific
language in the regulation that states that the basis for calculating
the number or percentage of movies is the number of captioned and video
described movies the theater receives from the movie producers in order
to make clear that the owner has no independent obligation to caption
or describe movies.
Question 5. If the number of movies being screened in a particular
movie theater facility is the preferred option, please indicate whether
the Department should include specific language in the regulation that
states that the basis for calculating the number or percentage of
movies is the number of captioned and video described movies the
theater receives from the movie producers in order to make clear that
the owner has no independent obligation to caption or describe movies.
Does this option pose particular concerns to small businesses? If so,
what are they?
Question 6. If some combination of these three methods is the
preferred option, please explain that option and how it would be
implemented. Should a different combination or percentage be used for
small business owners? If so, why? What combination or percentage
should be used for small business owners? Please indicate whether the
Department should include specific language in the regulation that
states that the basis for calculating the number or percentage is the
number of captioned and video described movies the theater receives
from the movie producers in order to make clear that the owner has no
independent obligation to caption or describe movies.
Question 7. Should any such regulation require that the same number
or percentage of movies with video description be exhibited as required
for movies with captioning or should a different number or percentage
be imposed? If the latter, what would be the justification for
distinguishing between these forms of access? Should small businesses
use a different ratio or percentage of video described movies or should
they also be required to exhibit the same number or percentage of video
described and captioned movies as other entities?
Question 8. Should the Department adopt a requirement that movie
theater owners and operators exhibit captioned and video described
movies beginning on the day of their release? If not, why not (e.g.,
could such a requirement impose additional burdens and if so, what are
they)? Should a different requirement be imposed on small business
owners? If so, why? What should that requirement be?
Question 9. While the Department is not considering requiring the
use of open captioning, should movie theater owners and operators be
given the discretion to exhibit movies with open captioning, should
they so desire, as an alternate method of achieving compliance with the
captioning requirements of any Department regulation? If theaters opt
to use open captioning, should they be required to exhibit movies with
such captioning at peak times so that people with disabilities can have
the option of going to the movies on days and times when other
moviegoers see movies?
B. Digital Cinema
Question 10. How many movie theater owners or operators have
converted, in whole or in part, to digital cinema? How many have
concrete plans to convert 25 percent of their theaters in the next five
years? Next ten years? How many have concrete plans to convert 50
percent of their theaters in the next five years? Next ten years? How
many have concrete plans to convert 75 percent of their theaters in the
next five years? Next ten years? What are the estimates for the cost
for a movie theater to convert a movie auditorium to digital cinema?
Are these costs different for small businesses? Have small businesses
[[Page 43475]]
entered into any cost-sharing agreements or other financing
arrangements to assist in such a conversion?
Question 11. Have specific protocols or standards been developed
for captioning and video description for digital cinema and, if so,
what are they?
C. Equipment and Technology Questions
Question 12. Do the closed captioning and video description
technologies currently available require the use of a digital sound
system or digital cinema? Have technologies been developed that do not
require the use of either a digital sound system or digital cinema in
order to display open or closed captions and offer video description?
If any new technologies have been developed, please explain how they
work and what, if any, additional costs are associated with the
purchase or use of such technologies? Are there technologies in
development that will not require the use of a digital sound system or
digital cinema in order to display captions or video description? If
so, what are they and when are they expected to be available for use by
movie theater owners and operators? Please explain what, if any,
additional costs are associated with the purchase or use of such
technologies.
Question 13. Is the existing closed captioning and video
description equipment in use for digital sound systems compatible, or
able to be integrated, with digital cinema systems? If not, why not?
Are there additional costs associated with using this equipment with
digital cinema systems? If so, please provide details. Are the costs
different for small businesses? If so, why? What are they?
Question 14. With regard to closed captioning systems, is the
ability to read the captions equally good throughout the movie theater
or are there certain seats in the theater that provide an enhanced
level of readability or line of sight both to the screen and the
adjustable panel affixed at or near the patron's seat? If certain seats
enable individuals who are deaf or hard of hearing to view movies more
effectively, which seats are they and why are they better (e.g., the
image is better, there are fewer obstructions, there is less need to
continually adjust the panel, etc.)? Should movie theater owners and
operators be required to hold such seats for individuals with
disabilities who wish to use the theater's closed captioning system?
Since movie theater seating is usually first-come, first-serve, is
there an effective system that movie theaters would be able to
implement to hold back releasing such seats? Should movie theater
owners and operators be allowed to release such seats if they are not
requested within a certain amount of time before the start of the
movie? Should movie theater owners and operators be allowed to release
such seats to the general movie going audience once all of the other
seats in the theater have been sold out? Are there alternatives for
seating that minimize the cost but still provide patrons who are deaf
or hard of hearing with effective and efficient readability of the
captions and lines of sight to the screen?
Question 15. Are there other factors that the Department should
include with regard to the display of captions or the use of video
description? What is the cost of purchasing/incorporating video
description equipment per screen/theater? Are the costs different for
small businesses? If so, why? What are they?
Question 16. Has any specific equipment been developed or is there
equipment in development for use with digital cinema that would be
necessary to exhibit closed captioned movies or movies with video
description? If so, is that equipment included in the general cost of
the conversion to digital cinema or is an additional fee imposed? If an
additional fee is imposed, please provide details. Are the costs
different for small businesses? If so, why? What are they?
Question 17. Are there any other technical requirements that the
Department should consider for inclusion in any regulation? If so,
please provide details.
D. Notice Requirements
Question 18. Should the Department include a requirement that movie
theater owners and operators establish a system for notifying
individuals with disabilities in advance of movie screenings as to
which movies and shows at its theaters provide captioning and video
description? If so, how should such a requirement be structured? For
example, should the Department require movie theater owners and
operators to include, in their usual movie postings in the newspaper,
on telephone recordings, and on the Internet, a notation or some other
information that a movie is captioned, the type of captioning provided,
or that the movie has video description? Should the Department require
movie theater owners and operators to establish a procedure or method
for directing individuals with sensory disabilities to where in each
movie theater they should go to obtain any necessary captioning and
video description equipment? Should movie theater owners and operators
have the discretion to determine what notification procedure or method
is most appropriate or should the Department specify how and where
individuals with disabilities can obtain such equipment at each
theater? What are the costs for these types of notifications? Are there
any alternative types of notifications possible? Are these costs
different for small businesses? If so, why? What are they?
E. Training
Question 19. Should the Department consider including a training
requirement for movie theater personnel? Should the Department require
that movie theater owners and operators ensure that at least one
individual working any shift at which a captioned or video described
movie is being screened be trained on how any captioning and video
description equipment operates and how to convey that information
quickly and effectively to an individual with a disability who seeks
help in using that equipment? What are the costs and burdens to
implementing such a training requirement? Are these costs different for
small businesses? If so, why? What are they? Would written and recorded
explanations of how the equipment works be a better alternative?
F. Cost and Benefits of Movie Captioning and Video Description
Regulations
Because this is an ANPRM, the Department is not required, at this
time, to conduct certain economic analyses or written assessments that
otherwise may be required for other more formal types of agency
regulatory actions (e.g., notices of proposed rulemaking or final
rules) that, for example, are deemed to be economically significant
regulatory actions with an annual economic impact exceeding $100
million annually or that are expected to have a significant economic
effect on a substantial number of small entities or non-federal
governmental jurisdictions (such as State, local, or tribal
governments). See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C.
603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 12866, 58
FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 Fed. Reg. 6113
(Jan. 30, 2009); OMB Budget Circular A-4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 5, 2010).
Nonetheless, one of the purposes of this ANPRM is to seek public
comment on various topics relating to captioning and video description,
including
[[Page 43476]]
perspectives from stakeholders concerning the benefits and costs of
revising the Department's title III regulation to ensure the
accessibility of movies (from both a quantitative and qualitative
perspective), particularly from members of the disability community,
industry, and governmental entities. The Department thus asks for
information so that the Department can determine whether such a
proposed rule (1) should be deemed an economically ``significant
regulatory action'' as defined in section 3(f) of E.O. 12866; or (2)
would have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act
and, if so, consider suggested alternative regulatory approaches to
minimize any such impact.
Consistent with the Regulatory Flexibility Act of 1980 and
Executive Order 13272, the Department must consider the impacts of any
proposed rule on small entities, including, in pertinent part, small
businesses and small nonprofit organizations. See 5 U.S.C. 603-04
(2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The Department will
make an initial determination as to whether any rule it proposes is
likely to have a significant economic impact on a substantial number of
small entities, and if so, the Department will prepare an initial
regulatory flexibility analysis analyzing the economic impacts on small
entities and regulatory alternatives that reduce the regulatory burden
on small entities while achieving the goals of the regulation. In
response to this ANPRM, the Department encourages small entities to
provide cost data on the numbers of small entities that may be impacted
by this rule, the potential economic impact of adopting a specific
requirement for captioning and video description and recommendations on
less burdensome alternatives, with cost information.
Question 20. The Small Business Administration size standard for
small movie theatres is $7 million dollars in annual gross revenues.
Does the public have estimates of the numbers of small entities that
may be impacted by future regulation governed by this ANPRM? How many
small entities presently provide movie captioning or video description?
How many small entities already have, or have plans to convert to,
digital cinema? How many small entities presently have, or plan to
convert to, digital sound systems? How much would it cost each small
entity to provide movie captioning and video description technology
using digital sound? How much would it cost each small entity to
provide movie captioning or video description if the entity converted
to digital cinema?
Question 21. Currently, what are the general costs per movie
theater owner or operator to display movies with closed captioning? How
many small entities offer this feature? What are the general costs to
small entities to display movies with open or closed captioning? For
all entities, is that figure per auditorium, per facility, or per
company? Do these costs change for showing IMAX or 3D films with
captions? Are there any cost-sharing or cost-allocation agreements that
help mitigate these costs for movie theater owners or operators? Is
most or all of this expense a one-time fee? If not, please explain.
Question 22. Currently, what are the general costs per movie
theater owner or operator to display movies with video description? How
many small entities offer this feature? What are the general costs to
small entities to display movies with video description? For all
entities, is that figure per auditorium, per facility, or per company?
Are there any cost-sharing or cost-allocation agreements that help
mitigate these costs for movie theater owners or operators? Is most or
all of this expense a one-time fee? If not, please explain.
Question 23. Currently, what are the general costs to convert to
digital cinema? Are the costs different for small entities? If so, why?
What are the costs for small entities? Is that figure per auditorium,
per facility, or per company? Are there cost-sharing or cost-allocation
agreements that help mitigate these costs for movie theater owners or
operators?
Question 24. What impact will the measures being contemplated by
the Department requiring captioning and video description of movies
have on small entities? Please provide information on: (a) Capital
costs for equipment needed to meet the regulatory requirements; (b)
costs of modifying existing processes and procedures; (c) any effects
to sales and profits, including increases in business due to tapping
markets not previously reached; and (d) changes to market competition
as a result of the proposed rule.
Question 25. Should any category or type of movie theater be
exempted from any regulation requiring captioning or video description?
For example, the Department now considers it likely that drive-in
theaters will not be subject to this rule because the Department is not
aware of any currently available technology that would enable closed
captioning or video description of movies shown in drive-in theaters.
Are there other types of movie facilities that should be exempted and
why?
Question 26. If an exemption is provided, how should such an
exemption be structured? Should it be based on the size of the company?
To determine size, should the Department consider (a) using the Small
Business Size Standard of $7 million dollars in annual gross revenue so
that movie theater owners who fall within those parameters should be
exempt?; (b) using factors such as whether the movie theater owner is
an independent movie house (not owned, leased, or operated by, a movie
theater chain), or small art film house in order to be exempt?; or (c)
using some other formula or factors to determine if a movie theater
owner should be exempt? Should the Department consider the
establishment of different compliance requirements or timetables for
compliance for small entities, independent movie houses, or small art
film houses to take into account the resources available to small
entities? What are other alternatives for small businesses, independent
move houses, or small art film houses that would minimize the cost of
future regulations?
Dated: July 21, 2010.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2010-18337 Filed 7-22-10; 4:15 pm]
BILLING CODE 4410-13-P