[Federal Register Volume 79, Number 148 (Friday, August 1, 2014)]
[Proposed Rules]
[Pages 44976-45014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17863]
[[Page 44975]]
Vol. 79
Friday,
No. 148
August 1, 2014
Part II
Department of Justice
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28 CFR Part 36
Nondiscrimination on the Basis of Disability by Public Accommodations--
Movie Theaters; Movie Captioning and Audio Description; Proposed Rule
Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 /
Proposed Rules
[[Page 44976]]
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DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 126; AG Order No. 3449-2014]
RIN 1190-AA63
Nondiscrimination on the Basis of Disability by Public
Accommodations--Movie Theaters; Movie Captioning and Audio Description
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) is issuing this notice
of proposed rulemaking (NPRM) in order to propose amendments to its
regulation for title III of the Americans with Disabilities Act (ADA),
which covers public accommodations and commercial facilities, including
movie theaters. The Department is proposing to explicitly require movie
theaters to exhibit movies with closed captioning and audio description
at all times and for all showings whenever movies are produced,
distributed, or otherwise made available with captioning and audio
description unless to do so would result in an undue burden or
fundamental alteration. The Department is also proposing to require
movie theaters to have a certain number of individual closed captioning
and audio description devices unless to do so would result in an undue
burden or fundamental alteration. The Department is proposing a six-
month compliance date for movie theaters' digital movie screens and is
seeking public comment on whether it should adopt a four-year
compliance date for movie theaters' analog movie screens or should
defer rulemaking on analog screens until a later date.
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 September 30, 2014. Comments received by
mail will be considered timely if they are postmarked on or before that
date. The electronic Federal Docket Management System (FDMS) will
accept comments until midnight Eastern Time at the end of that day.
ADDRESSES: You may submit comments, identified by RIN 1190-AA63, by any
one of the following methods:
Federal eRulemaking Web site: http://www.regulations.gov.
Follow the Web site's instructions for submitting comments. The
Regulations.gov Docket ID is DOJ-CRT-126.
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 Justice, 1425 New
York Avenue NW., Suite 4039, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Zita Johnson-Betts, Deputy Section
Chief, 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 NPRM in alternative formats by
calling the ADA Information Line at (800) 514-0301 (voice) and (800)
514-0383 (TTY). This NPRM is also available on the Department's Web
site at http://www.ada.gov.
SUPPLEMENTARY INFORMATION:
Electronic Submission of Comments and Posting of Public Comments
You may submit electronic comments to http://www.regulations.gov.
When submitting comments electronically, you must include DOJ-CRT-126
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 http://www.regulations.gov. Submission postings will include any personal
identifying information (such as your name and address) included in the
text of your comment. If you include personal identifying information
(such as your name and address), 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 identify all the personal identifying information you want
redacted. 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 http://www.regulations.gov.
Relationship to Other Laws
The Department of Justice regulation implementing title III, 28 CFR
36.103, provides that except as otherwise provided in part 36, that
part shall not be construed to apply a lesser standard than the
standards applied under title V of the Rehabilitation Act of 1973 (29
U.S.C. 791) or the regulations issued by Federal agencies pursuant to
that title. See Sec. 36.103(a). In addition, the title III regulation
provides that part 36 does not affect the obligations of a recipient of
Federal financial assistance to comply with the requirements of section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and any
implementing regulations issued by Federal agencies. See Sec.
36.103(b). Finally, part 36 does not invalidate or limit the remedies,
rights, and procedures of any other Federal, State, or local laws
(including State common law) that provide greater or equal protection
for the rights of individuals with disabilities or individuals
associated with them. See Sec. 36.103(c).
These provisions remain unchanged. Compliance with the Department's
title II and title III regulations does not ensure compliance with
other Federal statutes.
I. Executive Summary
Purpose of Proposed Rule
The Department of Justice (Department) is issuing this notice of
proposed rulemaking (NPRM) in order to propose amendments to its
regulation implementing title III of the Americans with Disabilities
Act of 1990 (ADA), which covers public accommodations and commercial
facilities--including movie theaters--to explicitly require movie
theaters to exhibit movies with closed captioning and audio
description, as well as to provide individual captioning and audio-
description devices for patrons who are deaf or hard of hearing or
blind or have low vision. In the movie theater context, ``closed
captioning'' refers to captions that only the patron requesting the
closed captions can see because the captions are delivered to the
patron at or near the patron's seat. Audio description is a technology
that enables individuals who are blind or have low vision to enjoy
movies by providing a spoken narration of key visual elements
[[Page 44977]]
of a visually delivered medium, such as actions, settings, facial
expressions, costumes, and scene changes. Audio description can be
transmitted to a user's wireless headset through infra-red or FM
transmission.
Title III of the ADA contains broad language prohibiting public
accommodations from discriminating against individuals with
disabilities, 42 U.S.C. 12182(a), as well as more specific statutory
provisions intended to counter particular forms of disability-based
discrimination by owners, operators, or lessees of public
accommodations. Of particular relevance to this rulemaking, covered
entities must take ``such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated
or otherwise treated differently * * * because of the absence of
auxiliary aids and services'' unless they can show that doing so would
result in a fundamental alteration or undue burden. 42 U.S.C.
12182(b)(2)(A)(iii). The Department's regulation implementing title
III's auxiliary aid provision reiterates the obligation of covered
entities to ensure effective communication with individuals with
disabilities and identifies, among other things, open captioning,
closed captioning, and audio recordings, as examples of auxiliary aids
and services. 28 CFR 36.303(a)-(c).
Despite movie theaters' title III obligation to provide effective
communication to patrons who are deaf or hard of hearing or blind or
have low vision, these individuals are often shut out from the movie-
going experience; this exclusion occurs even though the vast majority
of motion pictures released by the major domestic movie studios include
closed captioning and to a lesser extent, audio description. While
there has been an increase in the number of movie theaters exhibiting
movies with closed captions and to a much lesser extent, audio
description, due in large part to successful disability rights
litigation brought by private plaintiffs during the past few years, the
availability of movies exhibited with closed captions and audio
description varies significantly across the United States depending
upon locality and movie theater ownership. As a result, persons who are
deaf or hard of hearing or blind or have low vision, who represent an
ever-increasing proportion of the population, still cannot fully take
part in movie-going outings with family or friends, join in social
conversations about recent movie releases, or otherwise participate in
a meaningful way in this important aspect of American culture.
The ADA requirements for effective communication apply to all
public accommodations (including movie theaters) in every jurisdiction
in the United States and should be consistently applied. The ADA
protects the rights of persons with disabilities throughout the United
States; the right to access movies exhibited with closed captioning and
audio description should not depend on whether the person who is deaf
or hard of hearing or is blind or has low vision resides in a
jurisdiction where movie theaters, subject to a consent decree or
settlement, exhibit movies with closed captioning or audio description.
And, even in jurisdictions where theaters exhibit movies with
captioning and audio description, many do not make captioning and audio
description available at all movie showings. Moreover, recent
technological changes in the movie theater industry--including wide-
spread conversion from analog (film) projection to digital cinema
systems--make exhibition of captioned and audio-described movies easier
and less costly. The Department is thus convinced that regulation is
warranted at this time in order to achieve the goals and promise of the
ADA.
Major Provisions
The major provisions of the proposed rule can be summarized as
follows.
First, as of the rule's effective date, which the Department is
proposing to be 6 months after the publication of a final rule in the
Federal Register, the NPRM proposes to require movie theaters with
digital screens (generally, those exhibiting movies captured on data
files stored in a hard drive or flash drive) to exhibit movies with
closed captions (although theaters may, at their own discretion,
exhibit movies with open captions instead) and audio description, for
all screenings when such movies are produced and distributed with these
features unless the public accommodation can demonstrate that taking
those steps would fundamentally alter the nature of the goods,
services, facilities, privileges, advantages, or accommodations being
offered or would result in an undue burden, i.e., significant
difficulty or expense. Such an across-the-board requirement fulfills
the effective communication objective by permitting individuals who are
deaf or hard of hearing or blind or have low vision to fully and
equally participate in one of the most quintessential forms of American
entertainment--going out to the movies along with the rest of the
movie-going public.
In no case would movie theaters be required to create their own
captioning or audio descriptions for movies. Rather, whenever the
movies that theaters choose to screen are produced and distributed with
these accessibility features, movie theaters would be required to
ensure that they obtain and then screen those versions. This rule would
not prohibit movie theaters from screening movies that are not produced
with captions or audio description.
Second, the NPRM does not propose a specific compliance date for
analog screens (generally, those exhibiting movies in the traditional
form of 35 mm film) in movie theaters. Instead, the Department seeks
public comment on two options. Option 1: Whether the rule should adopt
a delayed compliance date for analog screens four years from the
publication of a final rule in the Federal Register. The Department
believes that a delayed compliance date would allow any small theaters
that remain analog to obtain the necessary resources to purchase the
equipment to provide closed captioning and audio description. Option 2:
Because the state of analog movies is in such flux, whether the
Department should defer rulemaking with respect to analog movie screens
until a later date.
Third, the NPRM proposes to require movie theaters to have a
certain number of individual captioning devices capable of delivering
the captions at the seat of the individual and to provide them to
patrons upon request. The proposed numbers are based upon the number of
seats in the movie theater itself and can be shared among the screens
in the theater. Individual captioning devices are a necessary part of
the process of delivering closed captions, and this requirement is
designed to ensure that there will be sufficient numbers of devices
available for use when individuals who are deaf or hard of hearing
attend the movies.
Fourth, the NPRM proposes to require movie theaters to have a
certain number of devices capable of delivering audio description and
to provide them to patrons upon request. The NPRM recognizes that the
devices currently required by the ADA for assistive listening often
contain an extra channel and therefore can also be used to deliver
audio description. The NPRM proposes minimal scoping for audio
description listening devices and also permits movie theaters that have
two-channel devices for assistive listening to use those devices for
audio description in lieu of purchasing additional devices.
Fifth, the NPRM proposes to require that movie theaters ensure that
their staff has the capability to operate the
[[Page 44978]]
equipment to show captions and audio description and to show patrons
how to use individual devices.
Finally, the NPRM proposes that movie theaters provide the public
with notice about the availability of captions and audio description.
This provision is necessary because currently not all movies are
produced with captions and audio description, and moviegoers who are
deaf or hard of hearing or blind or have low vision, should have the
ability to find out which movies are accessible to them.
As with other effective communication obligations under the ADA,
covered entities do not have to comply with these requirements to the
extent that they constitute an undue burden or fundamental alteration.
Costs and Benefits
With respect to the costs and benefits of this rule, the Department
has prepared an Initial Regulatory Assessment (Initial RA). The Initial
RA assesses the likely costs and benefits of the proposed rule.
Expected benefits are discussed and likely costs are estimated for all
theaters over the projected life of the rule (15 years), as well as for
``small businesses'' in the movie exhibition industry as part of an
Initial Regulatory Flexibility Analysis (IRFA), included therein.
The Initial RA provides estimates of the total costs for two
options. Option 1 assumes a compliance date for digital theaters of six
months from the publication of the final rule and a compliance date for
analog theaters of four years from the publication date of the final
rule. Option 2 assumes that the rule will only apply to digital
theaters and that application of the rule's requirements to analog
theaters will be deferred. For Option 1, the total cost for all
theaters over the 15-year period following publication of this rule in
final form will likely range from $177.8 million to $225.9 million when
using a 7 percent discount rate, and from $219.0 million to $275.7
million when using a 3 percent discount rate, depending on which
baseline is used regarding the extent to which theaters are or will
soon be providing movie captioning and audio description as proposed in
this rule, but independently of this rulemaking.\1\ Under Option 1, the
annualized costs range from $19.5 million to $24.8 million when using a
7 percent discount rate, and from $18.3 million to $23.1 million when
using a 3 percent discount rate. For Option 2, total costs for all
theaters with digital screens over the 15-year period following
publication of this rule in final form will likely range from $138.1
million to $186.2 million when using a 7 percent discount rate, and
from $169.3 million to $226.0 million when using a 3 percent discount
rate, depending on which baseline is used regarding the extent to which
theaters are or will soon be providing movie captioning and audio
description as proposed in this rule, but independently of this
rulemaking.\2\ When annualized, these costs range from $15.2 million to
$20.4 million when using a 7 percent discount rate, and from $14.2
million to $18.9 million when using a 3 percent discount rate. In
either case, the Initial RA shows that estimated annual costs for this
proposed rule would not exceed $100 million in any year (under any of
the three baseline scenarios).
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\1\ Baseline 1 (only one screen per-theater already has the
necessary equipment); Baseline 2 (all theaters of those companies
affected by recent litigation/settlement agreements already have the
necessary equipment); Baseline 3 (all digital theaters estimated by
the National Association of Theater Owners (NATO) in 2013 as having
captioning capabilities (53 percent) have done so independently of
the proposed rule's requirements). See Initial RA for further
details on Baseline estimations.
\2\ Baseline 1 (only one screen per-theater already has the
necessary equipment); Baseline 2 (all theaters of those companies
affected by recent litigation/settlement agreements already have the
necessary equipment); Baseline 3 (all digital theaters estimated by
NATO in 2013 as having captioning capabilities (53 percent) have
done so independently of the proposed rule's requirements). See
Initial RA for further details on Baseline estimations.
Table ES-1--Annualized Costs and Benefits of Proposed Rule
[2015 Dollars, 15-year time horizon]
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7% Discount rate 3% Discount rate
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Baseline 1 Baseline 2 Baseline 1 Baseline 2
assumptions (one assumptions Baseline 3 assumptions (one assumptions Baseline 3
screen per- (litigation- assumptions (NATO screen per- (litigation- assumptions (NATO
theater) based) survey based) theater) based) survey based)
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Costs (million $)
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Option 1--Four Year Compliance for Analog Screens
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$24.8 $21.1 $19.5 $23.1 $19.7 $18.3
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Option 2--Deferred Rulemaking for Analog Screens
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$20.4 $16.7 $15.2 $18.9 $15.6 $14.2
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Benefits
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The proposed rule would address the discriminatory effects of communication barriers at movie
theaters encountered by individuals who are deaf or hard of hearing or are blind or have low
vision. By ensuring that movie theaters screen those movies that are produced and distributed
with the necessary auxiliary aids and services--captioning and audio description--and that
theaters provide the individual devices needed to deliver these services to patrons with
these particular disabilities, this rule would afford such individuals an equal opportunity
to attend movies and follow both the audio and visual aspects of movies exhibited at movie
theaters. Although the Department is unable to monetize or quantify the benefits of this
proposed rule, it would have important benefits. For example, it would provide people with
hearing and vision disabilities better access to the movie viewing experience enjoyed by
others; it would allow such persons to attend and enjoy movies with their family members and
acquaintances; it would allow people with hearing or vision disabilities to participate in
conversations about movies with family members and acquaintances; and it would promote other
hard-to-quantify benefits recognized in Executive Order 13563 such as equity, human dignity,
and fairness.
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Because movie theater complexes vary greatly by number of screens,
which significantly impacts overall costs per facility, the Initial RA
breaks the movie exhibition industry into four theater types based on
size--Megaplexes (16 or more screens), Multiplexes (8-15 screens),
Miniplexes (2-7 screens), and Single Screen Theaters--and for Option 1,
by digital or analog system. The average capital cost for digital
Megaplex theaters in the first year is estimated to total $38,547,
while the average capital cost for digital single screen theaters in
the first year is estimated to total $3,198. Should the Department
proceed under Option 1 and cover analog screens in the final rule,
though with a four-year delayed compliance date, per theater costs for
analog theaters would be higher than those for digital theaters for
each type or size. The first year per-theater capital cost for analog
single screen theaters is estimated to total $8,172. The first year
per-theater capital costs for digital single screen theaters would
average $3,198.
The individuals who will directly benefit from this rule are those
persons with hearing or vision disabilities who, as a result of this
rule, would be able for the first time to attend movies with closed
captioning or audio description in theaters across the country on a
consistent basis. Individuals who will indirectly benefit from this
rule are the family and friends of persons with hearing and vision
disabilities who would be able to share the movie-going experience more
fully with their friends or loved ones with hearing and vision
disabilities.
The benefits of this rule are difficult to quantify for multiple
reasons. The Department has not been able to locate robust data on the
rate at which persons with disabilities currently go to movies shown in
movie theaters. In addition, as a result of this rule, the following
number of persons will change by an unknown amount: (1) The number of
persons with disabilities who will newly go to movies, (2) the number
of persons with disabilities who will go to movies more often, (3) the
number of persons who will go to the movies as part of a larger group
that includes a person with a disability, and (4) the number of persons
with disabilities who would have gone to the movies anyway but under
the rule will have a fuller and more pleasant experience. In addition,
the Department does not know precisely how many movie screens currently
screen movies with closed captioning and audio description, or how many
people with hearing or vision disabilities currently have consistent
access to movie theaters that provide closed captioning and audio
description. Finally, the Department is not aware of any peer-reviewed
academic or professional studies that monetize or quantify the societal
benefit of providing closed captioning and audio description at movie
theaters.
Data on movie-going patterns of persons who are deaf or hard of
hearing or are blind or have low vision is very limited, making
estimations of demand very difficult. However, numerous public comments
suggest that many persons who are deaf or hard of hearing or are blind
or have low vision do not go to the movies at all or attend movies well
below the national average of 4.1 annual admissions per person because
of the lack of auxiliary aids and services that would allow them to
understand and enjoy the movie.
Though we cannot confidently estimate the likely number of people
who would directly benefit from this proposed rule, we have reviewed
data on the number of people with hearing or vision disabilities in the
United States. The Census Bureau estimates that 3.3 percent of the U.S.
population has difficulty seeing, which translates into a little more
than eight million individuals in 2010, and a little more than two
million of those had ``severe'' difficulty seeing.\3\ At the same time,
the Census Bureau estimates that 3.1 percent of people had difficulty
hearing, which was a little more than 7.5 million individuals in 2010,
and approximately one million of them having ``severe'' difficulty
hearing. Not all of these people would benefit from this proposed rule.
For example, some people's hearing or vision disability may not be such
that they would need closed captioning or audio description. Some
people with hearing or visions disabilities may not want to use the
equipment for a variety of reasons. Others would not attend public
screenings of movies even if theaters provided closed captioning and
audio description simply because they do not enjoy going out to the
movies--just as is the case among persons without disabilities.\4\ Some
people with hearing or vision disabilities may already have consistent
access to theaters that screen movies with closed captioning and audio
description. And some theaters may not provide closed captioning and
audio description for all their movies because it would be an undue
burden under the ADA to do so.
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\3\ The Census defines difficulty seeing as ``experiencing
blindness or having difficulty seeing words or letters in ordinary
newsprint even when normally wearing glasses or contact lenses.'' It
defines difficulty hearing as ``experiencing deafness or having
difficulty hearing a normal conversation, even when wearing a
hearing aid.'' See U.S. Census Bureau, U.S. Department of Commerce,
P70-131, Americans with Disabilities: 2010 Household Economic
Studies at 8 (2012), available at http://www.census.gov/prod/2012pubs/p70-131.pdf (last visited July 14, 2014).
\4\ In 2012, a little more than two thirds (68 percent) of the
U.S. and Canadian population over two years old went to a movie at a
movie theater at least once that year. See Motion Picture
Association of America, Theatrical Market Statistics (2012),
available from Movie Picture Association of America, http://www.mpaa.org/wp-content/uploads/2014/03/2012-Theatrical-Market-Statistics-Report.pdf (last visited July 14, 2014).
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In addition to the direct beneficiaries of the proposed rule
discussed above, others may be indirect beneficiaries of this rule.
Family and friends of persons with these disabilities who wish to go to
the movies as a shared social experience will now have greater
opportunities to do so. The Department received numerous comments from
individuals who are deaf or hard of hearing or are blind or have low
vision in response to its 2010 Advance Notice of Proposed Rulemaking on
Movie Captioning and Video Description in Movie Theaters describing how
they were unable to take part in the movie-going experience with their
friends and family because of the unavailability of captioning or audio
description. Many individuals felt that this not only affected their
ability to socialize and fully take part in family and social outings,
but also deprived them of the opportunity to meaningfully engage in the
discourse that often surrounds movie attendance. (See the Initial RA,
Section 5 (Benefits) for more details and description of the potential
benefits of this proposed rule.) Of perhaps greater significance to the
discussion of the benefits of this rule, however, are issues relating
to fairness, equity, and equal access, all of which are extremely
difficult to monetize, and the Department has not been able to
effectively quantify and place a dollar value on those benefits.
Regardless, the Department believes the non-quantifiable benefits
justify the costs of requiring captioning and audio description at
movie theaters nationwide.
In keeping with the Regulatory Flexibility Act (RFA), the Initial
RA examined the economic impact of the proposed rule on small
businesses in the movie exhibition industry. The current size standard
for a small movie theater business is $35.5 million dollars in annual
revenue. In 2007, the latest year for which detailed breakouts by
industry and annual revenue are available, approximately 98 percent of
movie theater firms met the standard for small business, and these
firms
[[Page 44980]]
managed approximately 53 percent of movie theater establishments.\5\
The IRFA estimates the average initial capital costs per-firm for firms
that display digital or analog movies under Option 1 and for firms that
display digital movies under Option 2. The average costs for small
firms (which have a proportionately higher number of Single Screens and
Miniplexes) were between approximately 0.7 percent to 2.1 percent of
their average annual receipts for firms with digital theaters, and
between approximately 2.0 percent to 5.7 percent of average annual
receipts for firms with analog theaters. The Department has determined
that this proposed rule will have a significant economic impact on a
substantial number of small businesses.
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\5\ The size standard of $35.5 million can be found in U.S.
Small Business Administration, Table of Small Business Size
Standards Matched to North American Industry Classification System
Codes, available at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf (last visited July 14, 2014).
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The Department has used the IRFA to examine other ways, if
possible, to accomplish the Department's goals with fewer burdens on
small businesses. Based on its assessment, the Department has decided
to seek public comment on two options: One that would adopt a four-year
compliance date for theaters' analog screens (Option 1), and the other
that would defer application of the rule's requirements to movie
theaters' analog screens and consider additional rulemaking at a later
date (Option 2).
II. Background
A. Movie Basics, Captioning, and Audio Description Generally
The very first movies were silent films. Talking pictures, or
``talkies,'' added sound as a separate component in the mid-to-late
1920s. Today, there are two formats for exhibiting movies in theaters:
Analog movies and digital movies. The term analog movie describes what
is generally understood as a movie exhibited in a traditional film form
(generally 35 mm film). Currently, while the cinematography portion of
analog movies is exhibited in a traditional film format, the sound
portion of analog movies is generally provided in a digital format.
Five to six reels of film are used for a typical two-hour long analog
movie. These reels must be physically delivered to each movie theater
exhibiting the movie. Digital sound accompanying analog movies is
captured on CD-ROMs or optically or digitally on the film itself.
Digital sound is synchronized to the visual images on the screen of the
analog movie by a mechanism called a reader head, which reads a time
code track printed on the film.
A digital movie (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 can be transmitted to movie theaters' servers
via Internet, fiber-optic, or satellite networks. Digital production,
distribution, and exhibition are seen as having many advantages over
analog film, including better and longer lasting image quality,
availability of higher resolution images, lower production and
distribution costs, ease of distribution, availability of enhanced
effects such as 3D, ease of exhibition of live events or performances,
and greater flexibility in arranging or increasing show times to
accommodate unanticipated audience demand.
The movie picture production industry is in the midst of a large
and transformative conversion to digital cinema. This conversion is
viewed by the industry as one of the most profound advances in motion
picture production and technology of the last 100 years. On May 14,
2013, an industry representative testified before Congress that the
industry had nearly completed its transition to digital distribution
and projection and that approximately 88 percent of all movie theater
screens (nearly 35,000 screens) had already converted to digital.
Testimony of John Fithian, President and CEO of the National
Association of Theater Owners, Before the U.S. Senate Committee on
Health, Education, Labor and Pension (May 14, 2013), available at
http://www.help.senate.gov/imo/media/doc/Fithian.pdf (last visited July
14, 2014).
Captioning makes movies accessible to individuals who are deaf or
hard of hearing and who are unable to benefit from the use of the
assistive listening systems required for movie theaters to amplify
sound. There are, at present, two types of captions available for
movies: Open captions and closed captions. The terms ``closed
captioning'' and ``open captioning'' have had special meaning in the
movie theater context and differ from the way the terms are used in
other settings (e.g., television). In the movie theater context, the
movie industry and the courts have used the term ``closed captioning''
to mean that when the closed captions are in use, only the patron
requesting the closed captions can see the captions because the
captions are delivered to the patron at or near the patron's seat. The
term ``open captioning'' has been used in the movie theater context to
refer to the circumstances when the theater exhibits the captions so
that all patrons see the captions on or near the screen. By contrast,
in the television context, the term ``closed captioning'' has been used
to refer to captions that can be seen on the screen when turned on by
the viewer. In order to avoid confusion between the specific
requirements in this proposed rule and the ways the terms open and
closed captioning have historically been used in other settings, the
Department proposes using the terms ``closed movie captioning'' and
``open movie captioning'' in the regulatory text to specifically refer
to captions that are provided in movie theaters. However, in the
preamble, when discussing the history of captioning, the state of
captioning technology, the legislative history of the ADA, and court
decisions, the Department will continue to use the terms ``closed
captioning'' and ``open captioning'' because such terms are used in the
definition of auxiliary aids at 28 CFR 36.303(b).
Open movie captions are similar to subtitles in that the text of
the dialogue is visible to everyone in the movie theater. Unlike
subtitles, open movie captions also describe other sounds and sound
making (e.g., sound effects, music, and the character who is speaking)
in an on-screen text format. Open captions in movies were sometimes
referred to as ``burned-in'' or ``hardcoded'' captions because they
were burned in or incorporated into the film. However, new open-
captioning technology enables studios to superimpose captions without
making a burned-in copy or having to deliver a special version of the
movie. Currently, some movie theaters exhibit open-captioned films at
certain limited showings.
Closed movie captioning, as that term is used in the regulatory
text of this NPRM, refers to the display of the written text of the
dialogue and other sounds or sound making only to those individuals who
request it. When requested, the captions are delivered via individual
captioning devices used by patrons at their seats.
Audio description \6\ 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 visually delivered
[[Page 44981]]
medium, such as actions, settings, facial expressions, costumes, and
scene changes. Audio description fills in information about the visual
content of a movie where there are no corresponding audio elements in
the film. It requires the creation of a separate script that is written
by specially-trained writers and recorded on an audiotape or CD that is
synchronized with the film as it is projected. The oral delivery of the
script is transmitted to the user through infra-red or FM transmission
to wireless headsets.
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\6\ In the Department's Advance Notice of Proposed Rulemaking on
Movie Captioning and Video Description (2010 ANPRM), 75 FR 43467
(July 26, 2010), the Department used the term ``video description.''
In response to comments received from this ANPRM, the Department now
refers to this process as ``audio description.''
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Movie studios decide which movies to provide with captioning and
audio description and then arrange to have the captions and audio
description produced. Movie studios include these auxiliary aids in
movies before the movies are distributed to movie theaters and do not
charge movie theaters for this service. Movie studios are increasing
the numbers of movies produced with captioning in large part because in
1997 the Federal Communications Commission published regulations
requiring programming (including movies) shown on television to be
captioned. See 47 CFR part 79.
Movie theaters are defined in the proposed rule to include only
facilities used primarily for the purpose of showing movies to the
public for a fee. As of the end of 2011 there were nearly 39,000 indoor
movie screens in the United States and approximately 600 drive-in movie
screens. See National Association of Theater Owners, Number of U.S.
Movie Screens, available at http://natoonline.org/data/us-movie-screens/ (last visited July 14, 2014). Altogether, the four largest
movie theater chains based on screen count--Regal Entertainment Group,
AMC Entertainment, Inc., Cinemark USA, Inc., and Carmike Cinemas,
Inc.--own or operate approximately 18,000 screens. As of 2010, the top
ten domestic movie theater chains had 55 percent of the movie screens
in the United States and Canada.\7\ According to comments submitted by
the National Association of Theater Owners (NATO) in response to the
Department's Advance Notice of Proposed Rulemaking on Movie Captioning
and Video Description (2010 ANPRM), 75 FR 43467 (July 26, 2010)
(discussed below), as of 2010, there were approximately 83 movie
theater companies in the United States that own or operate 50 or more
screens and, in the aggregate, these companies operate 30,432 screens
in the United States. Of the additional 931 movie theater companies
that own or operate fewer than 50 screens, 450 operate four screens or
fewer, and 362 owners operate one site with one or two screens.
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\7\ In addition to the four movie theater chains listed above,
according to data available from the National Association of Theater
Owners, the other six movie theater chains rounding out the domestic
top ten as of July 2010, were Cineplex, Rave Cinemas, Marcus
Theaters, Hollywood Theaters, National Amusements Inc., and Harkins
Theaters.
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Moreover, the number of small movie theater facilities continues to
decline. Single screen and Miniplex (between two and seven screens)
theaters steadily declined from 2007 to 2010, while the number of
Multiplex (8-15 screens) and Megaplex (16 or more screens) theaters
increased over that same time period. See Motion Picture Association of
America (MPAA),\8\ Theatrical Market Statistics (2011), available at
http://www.bumpercarfilms.com/assets/downloads/movies.pdf (last visited
July 14, 2014). The decline in the number of small independently owned
theaters is expected to accelerate as a result of the significant
decrease anticipated in the availability of first-run films in analog
format, as the majority of these small independently owned theaters are
analog theaters. In 2011, the head of the MPAA was reported to have
predicted that analog films would disappear in less than three years.
See Tim O'Reiley, Theater Official Optimistic Despite Attendance Slump,
Las Vegas Review Journal (March 19, 2011), available at http://www.reviewjournal.com/business/theater-official-optimistic-despite-attendance-slump (last visited July 14, 2014). Similarly, at the spring
2013 CinemaCon industry convention, an industry analyst stated that by
the end of 2015, analog film will no longer exist in cinemas, and it is
likely that production of analog film in the United States will end by
the end of 2013. See Lyndsey Hewitt, Local Theaters Face Tough Times as
35 mm Faces Extinction, Sun Gazette.com (July 11, 2013), available at
http://www.sungazette.com/page/content.detail/id/594504/Local-Theaters-Face-Tough-Times-as-35-mm-faces-extinction.html?nav=5016 (last visited
July 14, 2014). Consequently, some, if not most, small independently
owned theaters will likely have to close if they cannot afford to
convert their projection systems from analog to digital. See also Colin
Covert, Final reel plays amid digital conversion, Star Tribune (Aug.
27, 2012), available at http://www.startribune.com/entertainment/movies/167253335.html?refer=y (last visited July 14, 2014).
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\8\ The Motion Picture Association of America (MPAA) is a trade
association representing the six major producers and distributors of
theatrical motion pictures, home entertainment, and television
programs, including Paramount Pictures Corporation, Sony Pictures
Entertainment Inc, Twentieth Century Fox Film Corporation, Universal
City Studios LLP, Walt Disney Studios Motion Pictures, and Warner
Bros. Entertainment Inc.
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Despite the recent economic downturn, movies continue to be a major
source of entertainment in the United States. In 2012, moviegoers in
the United States and Canada bought a record $10.8 billion in movie
tickets, with the largest number of tickets (1.36 billion) sold in
three years. Motion Picture Association of America, Theatrical Market
Statistics at 4 (2012), available at http://www.mpaa.org/wp-content/uploads/2014/03/2012-Theatrical-Market-Statistics-Report.pdf (last
visited July 14, 2014). Movie theaters continue to draw more people
than all theme parks and major U.S. sporting events combined. Id. at
10.
B. Legal Authority To Require Captioning and Audio Description
1. The ADA
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.
Title III of the ADA prohibits discrimination on the basis of
disability in the ``full and equal enjoyment'' of places of public
accommodation (privately operated 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. 12181-12189. Title III of the ADA includes movie
theaters within its definition of places of public accommodation. 42
U.S.C. 12181(7)(C). Movie studios and other entities that
[[Page 44982]]
produce movies to be shown in theaters are not public accommodations by
virtue of the making of movies, and therefore are not covered by title
III in their production of movies.
Title III makes it unlawful to discriminate against an individual
on the basis of disability 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 public accommodations such as movie theaters 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 public accommodations 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.'' \9\ 42 U.S.C. 12182(b)(2)(A)(iii). The statute
defines auxiliary aids and services 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).
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\9\ An undue burden is one that results in significant
difficulty or expense for the public accommodation. See 28 CFR
36.104.
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2. The ADA Title III Regulation \10\
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\10\ Congress gave the Attorney General the authority and
responsibility to issue regulations to carry out the provisions of
title III of the ADA. 42 U.S.C. 12186(b).
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The Department of Justice's regulation implementing title III of
the ADA provides additional examples of auxiliary aids and services
that are required by the statute. The regulation 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 public accommodations. 28 CFR 36.303(b)(1)-(2). This list
was revised in 2010 to reflect changes in technology and the auxiliary
aids and services commonly used by individuals who are deaf or hard of
hearing or blind or have low vision. 75 FR 56236, 56253-56254 (Sept.
15, 2010). The title III regulation reiterates the requirement of the
statute, stating that a public accommodation shall take those steps
that may be necessary to ensure that no individual with a disability is
excluded, denied services, segregated, or otherwise treated differently
than other individuals because of the absence of auxiliary aids and
services, unless the public accommodation can demonstrate that
providing such aids and services would fundamentally alter the nature
of the goods, services, facilities, privileges, advantages, or
accommodations being offered or would result in an undue burden. 28 CFR
36.303(a). The title III regulation reflects that the overarching
objective and obligation imposed by the auxiliary aids and services
requirement is that a public accommodation must furnish appropriate
auxiliary aids and services where necessary to ensure effective
communication with individuals with disabilities. 28 CFR 36.303(c)(1).
The type of auxiliary aid or service necessary to ensure effective
communication varies in accordance with the method of communication
used by the individual; the nature, length, and complexity of the
communication involved; and the context in which the communication is
taking place. 28 CFR 36.303(c)(1)(ii). Moreover, in order to be
effective, auxiliary aids and services must be provided in accessible
formats and in a timely manner. Id. For individuals who are deaf or
hard of hearing and are prevented from being able to effectively use
the assistive listening receivers currently provided in movie theaters
to amplify sound, the only auxiliary aids presently available that
would effectively communicate the dialogue and sounds in a movie are
captioning or sign language interpreting. Likewise, for individuals who
are blind or who have very low vision, the only auxiliary aid presently
available that would effectively communicate the visual components of a
movie is audio description.
As stated above, a public accommodation is relieved of its
obligation to provide a particular auxiliary aid (but not all auxiliary
aids), if to do so would result in an undue burden or a fundamental
alteration. To that end, the Department's title III regulation
specifically defines undue burden as ``significant difficulty or
expense'' and, emphasizing the flexible and individualized nature of
any such defense, lists five factors that must be considered when
determining whether an action would constitute an undue burden. See 28
CFR 36.104. These factors include: (1) The nature and cost of the
action; (2) the overall financial resources of the site or sites
involved in the action; the number of persons employed at the site; the
effect on expenses and resources; legitimate safety requirements that
are necessary for safe operation, including crime prevention measures;
or the impact otherwise of the action upon the operation of the site;
(3) the geographic separateness, and the administrative or fiscal
relationship of the site or sites in question, to any parent
corporation or entity; (4) if applicable, the overall financial
resources of any parent corporation or entity; the overall size of the
parent corporation or entity with respect to the number of its
employees; and the number, type, and location of its facilities; and
(5) if applicable, the type of operation or operations of any parent
corporation or entity, including the composition, structure, and
functions of the workforce of the parent corporation or entity. Id. The
undue burden defense entails a fact-specific examination of the cost of
a specific action and the specific circumstances of a particular public
accommodation. This defense also is designed to ensure that the needs
of small businesses, as well as large businesses, are addressed and
protected.
The Department defines fundamental alteration as a ``modification
that is so significant that it alters the essential nature of the
goods, services, facilities, privileges, advantages, or accommodations
offered.'' U.S. Department of Justice, Americans with Disabilities Act
ADA Title III Technical Assistance Manual Covering Public
Accommodations and Commercial Facilities III-4.3600, available at
http://www.ada.gov/taman3.html (last visited July 14, 2014).
If a provision of a particular auxiliary aid or service by a public
accommodation would result in a fundamental alteration or an undue
burden, the public accommodation is not relieved of its obligations to
provide auxiliary aids and services. The public accommodation is still
required to provide an alternative auxiliary aid or service, if one
exists, that would not result in such an alteration or 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(g). It is the Department's view that it
would not be a fundamental alteration of the business of showing movies
in theaters to exhibit movies with closed captions and audio
descriptions in order to provide effective communication to
[[Page 44983]]
individuals who are deaf or hard of hearing or blind or have low
vision.
3. The Legislative History of the ADA
While the ADA itself contains no explicit language regarding
captioning (or audio 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, pt. 2, at 108 (1990); S. Rep. No. 101-
116, at 64 (1989).\11\ Congress was silent on the question of closed
captions in movie theaters, a technology not yet developed for use in
movie theaters, but it acknowledged that closed captions might 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, pt. 2, at 107. Importantly, 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.\12\ Similarly, in 1991, when issuing its original title III
regulation, the Department stated in preamble language that ``[m]ovie
theaters are not required * * * to present open-captioned films,'' but
the Department was silent as to closed captioning. 56 FR 35544, 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 with hearing impairments.
Captioning is one means to make the information accessible to
individuals with disabilities.'' Id.
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\11\ In 1990, the only way to include open-captions in a movie
was to create a separate print of the movie and then laser-etch, or
``burn,'' the captions onto that separate print. Limited copies of
the open-captioned print were made and these copies were distributed
after the uncaptioned versions to some, but by no means all, movie
theaters.
\12\ As the district court noted in Ball v. AMC Entertainment,
Inc., 246 F. Supp. 2d 17, 22 (D.D.C. 2003), ``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.''
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The legislative history of the ADA and the Department's commentary
in the preamble to the 1991 regulation make clear that although
Congress was not requiring open captioning of movies in 1990, it was
leaving open the door for the Department to require captioning in the
future as the technology developed. Congress did not specifically
mention audio description in the legislative history; however, audio
description clearly falls within the type of auxiliary aid contemplated
by the ADA. Moreover, given the present state of technology, the
Department believes that mandatory requirements for captioning and
audio description in movie theaters fit comfortably within the meaning
of the statutory text.
4. Federal Appellate Case Law Addressing Captioning and Audio
Description
In April 2010, the first and only Federal appellate court to
squarely address the question of whether captioning and audio
description are required in movie theaters under the ADA determined
that the ADA required movie theater owner and operator Harkins
Amusement Enterprises, Inc., and its affiliates, to screen movies with
closed captioning and descriptive narration (audio 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., 603 F.3d 666, 675 (9th Cir. 2010). The
Ninth Circuit held that because closed captioning and audio
descriptions are correctly classified as ``auxiliary aids and
services,'' a movie theater may be required to provide them under the
ADA, and thus, the lower court erred in holding that these services
fell outside the scope of the ADA. Id. (citing 42 U.S.C.
12182(b)(2)(A); 28 CFR 36.303).\13\
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\13\ A consent decree was entered into on November 7, 2011, in
which Harkins agreed to provide closed captioning and audio
description at all 346 screens in its 25 movie theaters by January
15, 2013. See Consent Decree in Arizona v. Harkins Amusement
Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), ECF 131, CV07-703
PHX ROS, Approved 11/07/2011. In February 2012, Harkins announced
that it expected to have all of its theaters equipped with closed
captioning and audio description by the end of 2012. Press Release,
Arizona Commission for the Deaf and Hard of Hearing, ``Harkins
Theatres announces closed captioning and descriptive narration
devices'' (Feb. 16, 2012), available at http://www.acdhh.org/news/harkins-theatres-announces-closed-captioning-and-descriptive-narration-devices (last visited July 14, 2014).
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Representatives of the movie industry (movie studios and movie
theater owners and operators) who commented on the 2010 ANPRM contended
that exhibiting captioning is a fundamental alteration of its services.
The Department does not agree with that assertion. As the Department
asserted in its amicus brief filed in the Harkins case, exhibiting
movies with captioning and audio description does not fundamentally
alter the nature of the service provided by movie theaters. The service
movie theaters provide is screening or exhibiting movies. The use of
auxiliary aids to make that service available to those who are deaf or
hard of hearing or blind or have low vision does not change that
service. Rather, the provision of auxiliary aids such as captioning and
audio description are the means by which these individuals gain access
to the movie theaters' services and therefore achieve the ``full and
equal enjoyment,'' 42 U.S.C. 12182(a), of the screening of movies. See
Brief for the United States as Amicus Curiae Supporting Appellants and
Urging Reversal at 15-16, Harkins Amusement, supra, (9th Cir. Feb. 6,
2009) (No. 08-16075).
C. Need for Department Action
1. Importance of Movies in American Culture
Going to the movies is a quintessential American experience. In any
given month, over 56 million adults (roughly 26 percent of the adult
population) make a trip to a movie theater to take in a movie. See
Experian Marketing Services, 2010 American Movie-Goer Consumer Report,
available at http://www.experian.com/blogs/marketing-forward/2010/02/20/2010-american-movie-goer-consumer-report/ (last visited July 14,
2014). Going to the movies is also an important social experience and
pastime of teenagers and young adults. And while teenagers and young
adults are more likely to go to the movies than older adults, adults
over 50 outnumber young adults when it comes to raw number of
moviegoers. Id. Moreover, going to the movies is also an important part
of the American family experience. Long holiday weekends offer the
movie industry some of the biggest box offices sales as families gather
for the holidays and head out to the theaters together.
Movies are a part of our shared cultural experience, ``water
cooler'' talk, and the subject of lunch-time conversations. The Supreme
Court observed over 60 years ago that motion pictures ``are a
significant medium for the communication of ideas'' and ``may
[[Page 44984]]
affect public attitudes and behavior in a variety of ways, ranging from
direct espousal of a political or social doctrine to subtle shaping of
thought which characterizes all artistic expression. The importance of
motion pictures as an organ of public opinion is not lessened by the
fact that they are designed to entertain as well as to inform.'' Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). When individuals who
are deaf or hard of hearing or blind or have low vision have the
opportunity to attend movies that they can actually understand because
of the use of captions or audio description, they are exposed to new
ideas and gain knowledge that contributes to the development of their
communication and literacy.
The Department received numerous comments from individuals with
these disabilities in response to its 2010 ANPRM describing how they
were unable to take part in the movie-going experience with their
friends and family because of the unavailability of captioning or audio
descriptions. Many individuals felt that this not only affected their
ability to socialize and fully take part in group or family outings,
but also deprived them of the opportunity to meaningfully engage in the
discourse that often surrounds movie attendance.
Commenters who have some functional degree of hearing, like those
who use hearing aids or cochlear implants, explained that going to the
movies is frustrating and unenjoyable for them. One commenter who wears
a hearing aid and cannot benefit from assistive listening receivers
currently provided in movie theaters said she often misses half the
plot when she goes to a movie and has to rent the movie when it comes
out on DVD so she can turn on the captions and learn what she has
missed. Several other commenters also indicated that the assistive
listening receivers available at movie theaters were only suitable for
individuals with mild to moderate hearing loss.
2. Numbers of Individuals With Hearing and Vision Disabilities
According to 2010 census data, 7.6 million people reported that
they experienced a hearing difficulty (defined as experiencing deafness
or having difficulty hearing a normal conversation, even when wearing a
hearing aid). Of those individuals, 1.1 million reported having a
severe difficulty hearing. In addition, 8.1 million people reported
having some degree of difficulty seeing (defined as experiencing
blindness or having difficulty seeing words or letters in ordinary
newsprint even when normally wearing glasses or contact lenses). Of
those individuals, 2.0 million reported they were blind or unable to
see. See U.S. Census Bureau, U.S. Department of Commerce, P70-131,
Americans with Disabilities: 2010 Household Economic Studies at 8
(2012), available at http://www.census.gov/prod/2012pubs/p70-131.pdf
(last visited July 14, 2014). For people aged 65 or older, Census data
indicated that 4.2 million had difficulty hearing (as defined by the
Census), and 3.8 million reported having difficulty seeing (as defined
by the Census). Id. As stated above, for several reasons it is unlikely
that all people who reported having a vision or hearing disability to
the Census would benefit from this rule. However, hearing and vision
loss are highly correlated with aging, and as the U.S. population
ages,\14\ the number of individuals with hearing or vision loss is
projected to increase significantly. Research indicates that the number
of Americans with a hearing loss has doubled during the past 30 years.
See American Speech-Language-Hearing Association, The Prevalence and
Incidence of Hearing Loss in Adults, available at http://www.asha.org/public/hearing/disorders/prevalence_adults.htm (last visited July 14,
2014). Experts predict that by 2030, severe vision loss will double
along with the country's aging population. See American Foundation for
the Blind, Aging and Vision Loss Fact Sheet, available at http://www.afb.org/section.aspx?FolderID=3&SectionID=44&TopicID=252&DocumentID=3374 (last
visited July 14, 2014). This increase will likely lead to a
corresponding increase in the number of people who will need captioning
or audio description. Not all these individuals will necessarily take
advantage of the movie captioning and audio description that would be
provided under this proposed rule, but a significant portion of this
population would be eligible to directly benefit from this proposed
rule (see, infra, section VI.A.3 for a more detailed discussion of the
population eligible to receive benefits).
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\14\ The percentage of Americans approaching middle age or older
is increasing. The 2010 Census found that during the decade spanning
2000 to 2010, the percentage of adults aged 45 to 64 years increased
by 31.5 percent while the population aged 65 and over grew at a rate
of 15.1 percent. By contrast, the population of adults between 18
and 44 grew by only 0.6 percent. U.S. Census Bureau, U.S. Department
of Commerce, C2010BR-03, Age and Sex Composition in the United
States: 2010 Census Brief 2 (2011), available at www.census.gov/prod/cen2010/briefs/c2010br-03.pdf (last visited July 14, 2014).
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The Department believes that captioning will be used by some
persons with moderate hearing loss as well as persons with severe
hearing loss or who are profoundly deaf. Many individuals with hearing
loss have difficulty discriminating among competing sounds in the movie
and understanding what they hear, even if they can hear those sounds.
Sounds from other patrons can also interfere with the ability of a
patron with partial hearing loss to catch all the dialogue in a movie.
Other individuals have difficulty understanding what is being said if
the actors speak with foreign accents or have poor enunciation, and
those patrons who rely even partly on lip reading will miss some
dialogue because they cannot always see the actor's face. Individuals
with hearing loss who have some level of improved hearing comprehension
aided by hearing aids, middle ear implants, and cochlear implants, may
also experience the same difficulty discriminating among competing
sounds in the movie environment as those individuals with unaided
partial hearing loss.\15\ It is critical that all of these individuals
are not shut out of an emblematic part of our culture.
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\15\ ``While many people tend to think that the only factor in
hearing loss is loudness, there are actually two factors involved:
Loudness and clarity. Loss generally occurs first in the high pitch,
quiet range. A mild loss can cause one to miss 25-40% of speech,
depending on the noise level of the surroundings and distance from
the speaker. When there is background noise, it becomes difficult to
hear well; speech may be audible but may not be understandable.''
Hearing Loss Association of Oregon, Facing the Challenge: A
Survivor's Manual for Hard of Hearing People (revised 4th ed. Spring
2011), at 8, available at http://www.hearinglossor.org/survivor_manual.pdf (last visited July 14, 2014). The degrees of hearing loss
include: (1) Mild (25 to 40 dB): Faint or distant speech may be
difficult; lip reading can be helpful; (2) Moderate (41 to 55 dB):
Conversational speech can be understood at a distance of three to
five feet; as much as 50% of discussions may be missed if the voices
are faint or not in line of vision; (3) Moderately Severe (56 to 70
dB): Speech must be loud in order to be understood; group
discussions will be difficult to follow; (4) Severe (71 to 90 dB):
Voices may be heard from a distance of about 1 foot from the ear;
and (5) Profound (more than 91dB): Loud sounds may be heard, but
vibrations will be felt more than tones heard; vision rather than
hearing, is the primary avenue for communication. Id.
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3. Voluntary Compliance
Some movie industry commenters asserted that because Congress
suggested a voluntary approach to accessibility for exhibiting movies
in the 1989 and 1990 legislative history, when only burned-in open
captions on separate prints of film were available, the Department
should refrain from regulating in this area now and should simply
continue to rely on voluntary
[[Page 44985]]
compliance by the movie theaters. However, since that time, the
technology to display open captions has evolved significantly and
closed captioning technologies have been developed. Both of these
developments are examples of the types of ``technological advances''
that have enhanced ``options for making meaningful and effective
opportunities available to individuals with disabilities.'' H.R. Rep.
No. 101-485, pt. 2, at 107. Commenters on the 2010 ANPRM advised the
Department that despite these technological advances, even at that
time, few movie theaters showed movies with captioning and audio
description. In addition, these commenters advised the Department that
in their experience, many theaters that had the capacity to show movies
with captioning and audio description only did so for selected films
shown at intermittent times.
In the three years since the Department last received public
comment on these issues after the publication of its 2010 ANPRM (see
discussion below), the number of movie theaters that are showing movies
with closed captioning and audio description has increased as well as
the times those captioned and audio described movies are shown each
week. This described increase is attributable in some ways to
settlements of Federal or State disability rights lawsuits brought by
private plaintiffs or State attorneys general against individual movie
theater companies in particular jurisdictions within the United
States.\16\ Despite the success of private litigation in some areas of
the country, closed captions and audio description are still not
available for movies produced and distributed with these features at
all theaters across the United States. The Department believes that
access to movies for persons who are deaf or hard of hearing or are
blind or have low vision should not depend upon where they live.\17\
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\16\ See, e.g., Press Release, Illinois Attorney General,
``Madigan Announces Settlement with AMC Theatres'' (Apr. 4, 2012)
available at http://illinoisattorneygeneral.gov/pressroom/2012_04/20120404.html (last visited July 14, 2014) (settlement providing for
provision of captioning and audio technology in all AMC theaters in
the state of Illinois); Wash. State Commc'n Access Project v. Regal
Cinemas, Inc., 290 P.3d 331 (Wash. Ct. App. 2012) (upholding trial
court decision under Washington Law Against Discrimination requiring
six theater chains to provide captions in the screening of movies in
order to accommodate persons who are deaf or hard of hearing.);
Arizona v. Harkins Amusement Enters., Inc., 603 F.3d 666, 675 (9th
Cir. 2010) (settlement agreement filed 11/07/2011 CV07-703 PHX ROS);
Complaint, Ass'n of Late-Deafened Adults v. Cinemark Holdings, Inc.,
No. 10548765 (Cal. App. Dep't Super. Ct. filed Nov. 30, 2010)
(complaint relating to settlement requiring Cinemark to provide
closed captions in all its California theaters); Press Release,
Cinemark Holdings, Inc., Cinemark and ALDA Announce Greater Movie
Theatre Accessibility for Customers who are Deaf or Hard-of-Hearing
(April 26, 2011), available at http://www.cinemark.com/pressreleasedetail.aspx?node_id=22850 (last visited July 14, 2014).
\17\ For example, it is the Department's understanding that
persons who live in communities served only by smaller regional
movie theater chains are far less likely to have access to captioned
and audio-described movies than individuals with disabilities who
live in California, Arizona, or any of the major cities with
theaters operated by Regal, Cinemark, or AMC. The Department bases
this belief on its review of the information provided by
Captionfish, which is a nationwide search engine that monitors which
theaters offer both closed and open captions and audio description,
and updates its Web site regularly. See Frequently Asked Questions,
http://www.captionfish.com/faq (last visited July 14, 2014).
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Consequently, the Department believes it is in the interest of both
the movie theater industry and persons with disabilities to have
consistent ADA requirements for movie captioning and audio description
throughout the United States and that this is best accomplished through
revising the ADA title III regulation as proposed in this NPRM. The
Department is persuaded that it should move forward with a regulation
requiring captioning and audio descriptions so that the current and
ever increasing numbers of individuals who are deaf or hard of hearing
or blind or have low vision and who are unable to enjoy the goods and
services offered by movie theaters can participate in this facet of
American life.
D. The Department's Rulemaking History Regarding Captioning and Audio
Description
1. Rulemaking History Prior to the 2010 ANPRM
On September 30, 2004, the Department published an Advance Notice
of Proposed Rulemaking (2004 ANPRM) to begin the process of updating
the 1991 title II and title III regulations to adopt revised ADA
Standards based on the relevant parts of the 2004 Americans with
Disabilities and Architectural Barriers Act Accessibility Guidelines
(2004 ADA/ABA Guidelines). 69 FR 58768. When the Department issued the
2004 ANPRM, it did not identify movie captioning or audio description
as potential areas of regulation, but several commenters requested that
the Department consider regulating in these areas.
Keeping in mind that the ADA's legislative history made clear that
the ADA ought not be interpreted so narrowly or rigidly that new
technologies are excluded, as the Department became aware of
innovations in the field of captioning and audio description
technology, it began to contemplate how these technologies might be
incorporated into its ADA rules. The need for advancement in the area
of access to movie theaters was necessary because assistive listening
systems in movie theaters could not be used to effectively convey the
audio content of movies for individuals who are deaf or who have severe
or profound hearing loss. Additionally, there were no auxiliary aids
being provided to individuals who are deaf to access the sound content
of the movie or to individuals who are blind or have low vision to
access the visual content of the movie. Accordingly, the Department
decided to address the topic of requiring closed captioning and audio
description (referred to as narrative description) at movie theaters in
its June 17, 2008, Notice of Proposed Rulemaking (2008 NPRM). 73 FR
34508, 34530. In the 2008 NPRM, the Department stated that it was
considering options under which it might require movie theaters to
exhibit movies that are captioned for patrons who are deaf or hard of
hearing and provide audio description for patrons who are blind or have
low vision.
The 2008 NPRM did not propose any specific regulatory language with
regard to movie captioning or audio description, but asked whether,
within a year of the revised regulation's effective date, all new
movies should be exhibited with captions and audio description at every
showing or whether it would be more appropriate to require captions and
audio 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 theaters. The Department received many comments in
response to its 2008 NPRM questions from individuals with disabilities,
organizations representing individuals with disabilities, nonprofit
organizations, state-governmental entities, and representatives from
the movie industry (movie studios and movie theaters).
Individuals with disabilities, advocacy groups, a representative
from a nonprofit organization, and representatives of state
governments, including 11 State attorneys general, overwhelmingly
supported issuance of a regulation requiring movie theaters to exhibit
captioned and audio-described movies at all showings unless doing so
would result in an undue burden or
[[Page 44986]]
fundamental alteration. These groups noted that although the technology
to exhibit movies with captions and audio description has been in
existence for about 10 years, most movie theaters still were not
exhibiting movies with captioning and audio 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.
Representatives from the movie industry strongly urged the
Department not to issue a regulation requiring captioning, or if it did
so, to delay the effective date so as to coincide with the completion
of conversion to digital cinema. They also objected to any requirement
regarding audio description at movie theaters. Industry commenters also
said that the cost of obtaining the equipment necessary to display
closed-captioned and audio-described movies would constitute an undue
burden.
For a more detailed discussion of the comments received in response
to the 2008 NPRM, see 2010 ANPRM, 75 FR 43467 (July 26, 2010).
2. The 2010 Advance Notice of Proposed Rulemaking
The Department was not persuaded that strides made in making
captioning and audio description technology available to moviegoers
with disabilities were sufficient to make regulatory action in this
area unnecessary. However, rather than issue a final rule, the
Department issued a supplemental Advance Notice of Proposed Rulemaking
(2010 ANPRM) on July 26, 2010, 75 FR 43467, for three reasons. First,
the Department wished to obtain more information regarding several
issues raised by commenters that were not addressed in the 2008 NPRM.
Second, the Department sought public comment on several technical
questions that arose out of comments on the 2008 NPRM. Finally, in the
years since issuance of the 2008 NPRM, the Department became aware that
movie theaters, particularly major movie theater chains, either had
entered into, or had plans to enter into agreements with the movie
studios to underwrite the conversion to digital cinema. During that
same time period, however, the United States' economy and the
profitability of many public accommodations experienced significant
setbacks. The Department, among other things, wished to gather more
information about the status of digital conversion, including
projections about when movie theaters, both large and small, expected
to exhibit movies using digital cinema, the percentage of movie screens
expected to be converted to digital cinema by year, and any relevant
protocols, standards, and equipment that had been developed for
captioning and audio description for digital cinema. In addition, the
Department wanted to learn whether other technologies (e.g., 3D) had
developed or were in the process of development that either would
replace or augment digital cinema or make any regulatory requirements
for captioning and audio description more difficult or expensive to
implement.
In the 2010 ANPRM, the Department explained that it was considering
phasing in a requirement that 50 percent of movie screens offer
captioning and audio description over a five-year period. The
Department did not propose any regulatory language in the ANPRM.
In order to gather the necessary information and to determine how
best to frame the regulation, the Department posed 26 questions in its
2010 ANPRM. These questions were divided into six general categories:
Coverage of any proposed rule; transition to digital cinema; equipment
and technology for both analog and digital cinema movies; notice;
training; and cost and benefits of captioning and audio description.
The Department conducted three public hearings to receive testimony
on the 2010 ANPRM: The first in Chicago, Illinois, on November 18,
2010; the second in Washington, DC, on December 16, 2010; and the final
hearing in San Francisco, California, on January 10, 2011. Each hearing
included a full schedule of presenters, and many individuals came to
listen to the various presentations.\18\ These public hearings were
rebroadcast on-demand through the end of the comment period (January
24, 2011) and were streamed live on the Web to viewers across the
country.
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\18\ The Department issued four ANPRMs on July 26, 2010, and
invited testimony on all four ANPRMs at each public hearing. See 75
FR 66054 (Oct. 27, 2010).
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The number of comments submitted by the public in response to this
ANPRM was extraordinary--the Department received over 1150 comments.
Commenters included hundreds of individuals, both with and without
disabilities, advocacy groups representing individuals with
disabilities, 13 State attorneys general, movie industry
representatives, and other organizations. Industry commenters asked
that the Department not regulate at that time or, in the alternative,
require that only 25 percent of movie screens that have converted to
digital have equipment to display captioning or audio description.
However, almost all other commenters supported a regulation requiring
exhibition of movies with captioning and audio description.
Significantly, even though the Department did not propose that
captioning and audio description be provided at all showings, the vast
majority of commenters who discussed this subject advocated that the
Department do just that. In addition, most of these commenters stated
that such a requirement should be implemented immediately rather than
phased in over a five-year period. Industry commenters pointed out that
rolling out captioning and audio description at 20 percent per year
over a five-year period would be difficult to implement and that they
supported a five-year compliance schedule.
III. General Issues
A. Current State of the Technology for Exhibiting Movies With
Captioning and Audio Description and Availability of Product
1. Captioning and Audio Description for Analog Movies
It is the Department's understanding, based upon independent
research and the comments received in response to the 2010 ANPRM, that
because of the major movie theater companies' commitment to the
transition to digital cinema, research and investment into ways to
deliver closed captioning has shifted away from analog movies to
digital cinema. As such, there is only one product currently available
on the market for providing closed captions for analog movies: Rear
Window[supreg] Captioning (Rear Window[supreg] or RWC). RWC, when
combined with audio description provided by DVS-Theatrical[supreg]
(DVS), is called MoPix[supreg] systems.\19\
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\19\ The Department is not endorsing any product or company
named in this NPRM. The Department is identifying particular
companies and products to enable it to provide an understandable and
comprehensive discussion of the issues, products, and available
technology for captioning and audio description of movies.
---------------------------------------------------------------------------
Unlike open captions that are burned onto the film itself, Rear
Window[supreg] captions (and audio description) are generated via a
technology that is not physically attached to the film and does not
require that a separate copy of the film be made. The Rear
Window[supreg] and audio-description systems work through a movie
theater's digital sound system using Datasat Digital Entertainment's
media player with captioning subtitling system (formerly DTS Digital
Cinema).\20\
[[Page 44987]]
The Datasat\TM\ player sends the captions to a light-emitting diode
(LED) display in the rear of the movie theater. A clear adjustable
panel 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[supreg] user that the captions are on or near
the movie image. This technology enables a movie theater that has been
equipped with a Rear Window[supreg] Captioning system to exhibit any
movie that is produced with captions at any showing, without displaying
captions to every moviegoer in the theater. Thus, individuals who are
deaf or hard of hearing may enjoy movies in a movie theater equipped
with such a system alongside those who do not require captioning and
who would not see the captions being displayed. Movie theaters can also
exhibit movies with open captions for analog movies by using the same
Datasat\TM\ system, with a second projector to superimpose the
captioned text directly onto the movie screen.
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\20\ Digital sound systems operate independently from analog
projectors, which deliver the visual portion of a movie. To exhibit
closed captioning and audio description with analog movies, a movie
theater needs a digital sound system. Many movie theaters that
exhibit analog movies have these systems. Digital sound systems are
different from digital cinema, i.e., a movie theater does not need
digital cinema to use digital sound.
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Audio description makes movies more accessible to individuals who
are blind or have low vision by providing narrated information about
key visual elements of the movie, such as actions, settings, and scene
changes. The audio description is sent by the Datasat\TM\ media player
to infra-red or FM listening systems, then on to movie patrons wearing
headsets.
According to comments from the WGBH National Center for Accessible
Media (NCAM), as of mid-2010, MoPix[supreg] systems had been installed
in more than 400 screens in the United States and Canada.\21\ Once a
movie theater is equipped with a MoPix[supreg] system, captioning and
description data are supplied on data disks, which arrive in advance of
the film's debut. According to NCAM, virtually every major Hollywood
studio participates in captioning and description of their A-title
feature analog movies in one form or another, and many of the major
exhibition chains, as well as many smaller chains, provide captions and
descriptions regularly in some of their theaters.
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\21\ The WGBH National Center for Accessible Media is a
nonprofit that developed MoPix[supreg] systems funded in part by a
grant from the U.S. Department of Education.
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The Department understands that while the industry is rapidly
moving to digital cinema, some theaters, particularly very small
independent movie theaters, may continue to exhibit analog movies as
long as such a product remains available. The Department also
understands that with the transition to digital cinema, a secondary
market for closed-captioning equipment for analog movies may develop
because some movie theaters may choose not to retain this equipment,
thereby making the analog equipment cheaper to acquire.
Question 1a: Availability of Analog Film Prints
The Department is interested in any recent data available about the
likelihood that analog film prints will be available after 2015 either
from the major studios, from smaller independent studios, or from small
independent filmmakers. What is the likelihood that analog film prints
will be available in five years? Will analog versions of older movies
continue to be available for second or third run showings? How many
movies will continue to be produced in both analog and digital formats?
Question 1b: Availability of Movies With Captions and Audio Description
What percentage of currently available analog films has been
produced with captions or audio description? How many movies will be
produced with captions and audio description in both analog and digital
formats? What is the likelihood that existing analog movies that
currently do not have captions or audio description will be converted
to digital formats and then only the digital format would have those
accessibility features? Will those older analog movies that are
currently available with captions continue to be available with
captions?
Question 1c: Economic Viability of Analog Theaters
How many analog theatres currently show first-run movies? If first-
run analog movies are no longer produced, will analog theaters be
economically viable and what types of movies would these theaters rely
on to generate revenue? How many analog theaters are likely to close as
the result of these changes in the market? Will this rule affect the
pace by which analog theaters convert to digital cinema? If so, how?
Will analog theatres converting to digital cinema convert all screens
at the same time?
2. Captioning and Description for Digital Cinema
Since publication of the 2008 NPRM, a significant change has
occurred in the industry, both in terms of the technology available for
digital cinema and the speed at which movie theaters are converting to
digital cinema. With the move to convert to digital cinema systems, the
technology and equipment available for these systems has expanded
accordingly. Digital cinema, which began to be developed in 2000,
consists primarily of a digital server and a digital projector. The
content of the digital movie can be distributed digitally, often using
a hard drive, optical disks, or satellite.\22\ See, e.g., Michael
Karagosian, Accessibility in the Cinema (June 3, 2010), available at
http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf (last visited July 14, 2014). Unlike analog
movies, digital cinema does not need splicing after delivery to the
movie theater, thereby eliminating the risk of nicks to the film, and
does not degrade over time or with repeated use. It also is
``unlocked,'' which means there are no technology-based royalties to be
paid for distributing the content. Id. According to comments from NCAM,
captions and audio description are included in the digital cinema
package (DCP). The DCP contains the entire movie in electronic form
(images, soundtrack, anti-piracy data, and if provided by the studios,
captioning and description). When ordering a DCP, movie theaters have
the option to request either an open-captioned or a closed-captioned
version of the movie. If an open-captioned version is requested, no
other equipment (such as an interface or personal user devices) is
necessary in order to display a movie with the captions exhibited.
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\22\ Because digital movies can be provided to movie theaters
easily and inexpensively compared to the costs inherent in mailing
several large reels of film per analog movie, the cost to distribute
digital movies is significantly less for movie studios.
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As digital cinema technology has advanced, the options and methods
available for exhibiting movies with captioning and audio description
have also expanded. Members of the industry, manufacturers, and other
interested parties worked together to ensure interoperability of
digital cinema components through standards adopted by the Society of
Motion Picture and Television Engineers (SMPTE), so that products that
provide captioning and audio description would be compatible with the
various digital cinema systems available for purchase and use by movie
theaters.\23\ For this and other reasons, in
[[Page 44988]]
digital cinema systems it is much easier and far less costly to exhibit
movies with captioning and audio description. For example, unlike
analog movies, digital cinema has many sound channels, making it much
easier to include audio description. See Michael Karagosian,
Accessibility in the Cinema (June 3, 2010), available at http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf (last visited July 14, 2014). In addition, digital
cinema can easily support closed captions, including up to six closed-
captioned languages at a time. Id. And for closed captions, a
standardized output is available that permits the closed captioned
product to plug in to any compliant digital system. Id.
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\23\ ``Closed caption technology for digital cinema has rapidly
moved forward with the successful standardization of SMPTE 430-10
and 430-11 for the SMPTE CSP/RPL closed caption protocol, an
Ethernet-based protocol designed for connecting closed caption
systems with digital cinema servers. The SMPTE CSP/RPL communication
protocol is license-free. The wide-spread use of this protocol has
allowed multiple closed caption systems to proliferate.'' Michael
Karagosian, Update on Digital Cinema Support for Those With
Disabilities: April 2013, available at http://www.mkpe.com/publications/d-cinema/misc/disabilities_update.php (last visited
July 14, 2014).
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In terms of equipment needed, it is easier to exhibit movies in
digital cinema using open captions because all that is required is that
the captions be turned on. No additional equipment (e.g., individual
captioning devices) is needed to display open captioned movies. Open
captions, like closed captions, are included in the DCP and the movie
theater simply requests a DCP with either open or closed captions.
Based upon the Department's research, conversations with
manufacturers, and comments received by the Department, several options
appear to be available for delivering closed captions in digital films
to the movie patron. For example, two manufacturers produce and sell
wireless closed-captioned displays that are mounted on a device that
the movie patron places in the seat's cup holder. See Michael
Karagosian, Update on Digital Cinema Support for Those With
Disabilities: April 2013, available at http://www.mkpe.com/publications/d-cinema/misc/disabilities_update.php (last visited July
14, 2014). One system uses a single infra-red transmitter for delivery
of both closed captions and audio description. Id. A second system uses
Wi-Fi technology to transmit closed captions directly from the server
to a cup holder display unit. This system does not appear at this time
to support audio description. However, according to its manufacturer,
audio description can be provided through a third-party vendor system.
The Department understands that cup holder displays are already in use
in theaters in Canada as well as some theaters in the United States.
Eyeglasses that display the text in front of the wearer's eye while
watching a movie are also on the market. As of September 2012, Regal
Cinema theaters had captioning glasses in use in 200 theaters and
announced that it plans to use them in all of its theaters by April
2013. Other companies are also reported to be developing eyeglasses
that can display captions. In addition, the Department understands that
MoPix's[supreg] Rear Window closed-captioned devices work in digital
cinema as well as analog. Movie theaters that have installed a
captioning system for their analog product can still use that product
with digital cinema. MoPix[supreg]'s devices are supported by several
digital cinema servers directly, although other servers may need to
obtain a special interface.\24\
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\24\ As with all closed-captioning systems available with
today's technology, MoPix[supreg] also requires use of an individual
captioning device by the patron seated in the theater auditorium.
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In specialty movie theaters, such as IMAX or other big-screen
format presentations, closed-captioning systems for digital cinema also
work well, and the captioned data can be fed to the LED panel by a
computer that is running special software that synchronizes the caption
files to the film.
It is unclear from the comments received by the Department the
extent to which 3D movies are currently being provided by studios or
distributors with open or closed captioning. Commenters representing
both movie theaters and movie studios stated that MPAA member companies
are hopeful that technological developments will soon allow closed
captioning for 3D version releases. A commenter involved in the
development of the Rear Window[supreg] captioning system for analog
movies stated that it has been tested in feature-length 3D
presentations with positive viewer response. The Department's research
indicates that both the captioning eyeglasses as well as the cup holder
displays can show captions for 3D movies if the movies are provided
with captioning. By contrast, the Department understands that the same
technology provides audio description for both 2D and 3D movies. One
commenter representing the movie theater industry stated that whenever
audio description is available for digital 3D movies, it should be
treated the same as audio description for film and video displays in
other settings.
As with analog movies, the audio description in digital cinema is
delivered using a wireless headset or ear phones. Digital cinema audio
supports up to 16 channels of audio \25\ and the cinema audio formats
have two channels reserved for both hearing impaired audio and audio
description. See Michael Karagosian, Accessibility in the Cinema (June
3, 2010), available at http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf (last visited July 14,
2014). Moreover, both the infra-red and FM-audio single-channel systems
presently used for assisted listening can be replaced by multi-channel
systems that support both assisted listening and audio description.
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\25\ Analog movies support between two and eight channels,
depending upon the audio sound format being used by the movie
theater. See Michael Karagosian, Accessibility in the Cinema, (June
3, 2010), available at http://www.mkpe.com/publications/d-cinema/presentations/2010-June_CHHA_Karagosian.pdf (last visited July 14,
2014).
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3. Conversion to Digital Cinema
Despite the economic downturn over the last few years, the movie
theater industry is rapidly increasing the number of screens that have
converted to digital cinema since publication of the 2008 NPRM. In May
2013, an industry representative testified to Congress that as of that
date, 88 percent of indoor movie screens in the United States had
converted to digital cinema. See Testimony of John Fithian, President
and CEO of the National Association of Theater Owners, Before the U.S.
Senate Committee on Health, Education, Labor and Pension (May 14,
2013), available at http://natoonline.org/wp-content/uploads/2013/08/Harkin-Hearing-Testimony-May-2013.pdf (last visited July 14, 2014).
Starting in the late 2000's, a number of major movie studios
entered into agreements to help defray the cost of conversion by paying
a consortium of movie theater chains a ``virtual print fee'' of $800 to
$1000 per film, per screen until the digital equipment is paid off. See
Dawn C. Chmielewski, Major Studios Agree to Back Switch to Digital
Projection, Los Angeles Times (Oct. 2, 2008), available at http://articles.latimes.com/2008/oct/02/business/fi-studios2 (last visited
July 14, 2014). The Department understands that nearly all of these
programs have stopped enrolling new members, although the deals
continue to be active for those who have already signed up. According
to an industry commenter, these digital cinema systems are SMPTE-
compliant, which means that all of the captioning and audio-description
products on the market--and in development--will be compatible with,
and easily integrated into, whatever
[[Page 44989]]
digital cinema systems are in use by the various movie theaters. In
addition, it has recently been reported that between the conversion to
digital and the projected loss of the two major suppliers of film print
stock, it is unlikely that any first run films will be available in
analog within the next few years, thus furthering the pressure on
smaller theaters to convert to digital. See e.g., Gendy Alimurung,
Movie Studios Are Forcing Hollywood to Abandon 35mm Film. But the
Consequences of Going Digital Are Vast, and Troubling, LA Weekly (Apr.
12, 2012), available at http://www.laweekly.com/2012-04-12/film-tv/35-mm-film-digital-Hollywood (last visited July 14, 2014); Dawn McCarty &
Beth Jinks, Kodak Files for Bankruptcy as Digital Era Spells End to
Film, Bloomberg (Jan. 19, 2012), available at http://www.bloomberg.com/news/print/2012-01-19/kodak-photography-pioneer-files-for-bankruptcy-protection-1-.html (last visited July 14, 2014); see also Tim O'Reiley,
Theater Official Optimistic Despite Attendance Slump, Las Vegas Review-
Journal (March 29, 2011) (quoting new MPAA head, former Sen.
Christopher Dodd, as predicting that ``films on film will disappear in
less than three years''), available at http://www.reviewjournal.com/business/theater-official-optimistic-despite-attendance-slump (last
visited July 14, 2014).
4. Availability of Movies With Captioning and Audio Description
As stated previously, movie theaters do not provide the captioning
and audio description for the movies they exhibit. Movie studios and
distributors determine whether to caption and audio describe, what to
caption and audio describe, the type of captioning to use, and the
content of the captions and audio-description script. In addition,
movie studios and distributors assume the costs of captioning and
describing movies. Movie studios and distributors would not be required
by this proposed regulation to include captioning or audio description
in their product, because the mere production and distribution of
movies does not make them public accommodations under the ADA. That
said, movie studios appear committed to making their movies accessible
to individuals who are deaf or hard of hearing or blind or have low
vision, and the Department commends their efforts. According to the
MPAA, analog movies produced with captioning by member studios in 2010
included virtually all wide-releases.\26\ Seventy-six percent of analog
movies produced by MPAA member studios were produced with audio
description. According to another industry commenter, MPAA member
studios distributed 140 films in 2010, captioning 86 percent of their
film product. The MPAA, in its comments to the 2010 ANPRM, stated that
by the latter part of 2010, the major studios were making captioning
and audio description available on some digital movies and had
announced that in 2011 almost all theatrical releases in digital format
will include closed captioning.\27\ In addition, the MPAA stated in its
comments that its members intend to significantly increase the number
of digital releases with audio description in 2011. No data are
publicly available on the number of movies released with captioning and
audio description since 2011, but given the current trend, the
Department projects that the numbers increased in 2012. One movie
theater industry commenter pointed out that while MPAA member studios
distributed 140 movies in 2010, the independent studios released 473
films, a majority of which were not captioned or audio described. The
number of independent films released can be somewhat deceptive in this
context, however, because MPAA member studios distribute 82 percent of
the film product in the United States. The larger independent studios,
which include Dreamworks, Lionsgate, Summit, The Weinstein Company, and
MGM, distribute an additional 14 percent of the domestic product, and
the other independent studios distribute the remaining 4 percent of the
product domestically. It is unclear how many movies that are captioned
and audio described are currently distributed by the independent
studios.\28\ It is also unclear whether, and what percentage of, movies
will be made in digital format for digital cinema by these same
independent studios in the future, and what percentage will be
captioned and audio described. However, if independent producers
distribute their product to television, albeit in analog or digital
format, captions must be included under current FCC rules. See 47 CFR
79.1.
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\26\ Wide-releases include all films except for those with
limited release, documentaries, and similar titles.
\27\ This commitment was possible because the interested parties
reached agreement upon, and published standards for, SMPTE digital
cinema packages.
\28\ Representatives from the Independent Film & Television
Alliance and from independent studios did not submit comments in
response to the 2010 ANPRM.
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Despite the array of captioned and described product that is
available, there are still a significant number of movie theaters that
are not equipped to show movies with closed movie captions and audio
description or that only show them at selected showings of particular
movies. According to NATO, as of May 2013, at least 53 percent of
digital movie screens had the capacity to show movies with closed movie
captions or audio description. See Testimony of John Fithian, President
and CEO of the National Association of Theater Owners, Before the U.S.
Senate Committee on Health, Education, Labor and Pension (May 14,
2013), available at http://natoonline.org/wp-content/uploads/2013/08/Harkin-Hearing-Testimony-May-2013.pdf (last visited July 14, 2014).
Three of the four largest movie theater chains have publicly committed
to installing closed captioning and audio description equipment in all
of their theaters that have been converted to digital. See Press
Release, Regal Entertainment Group, Regal Entertainment Group Announces
New Forms of Digital Cinema Access (May 4, 2011), available at http://investor.regmovies.com/phoenix.zhtml?c=222211&p=irol-newsArticle&ID=1559531&highlight (last visited July 14, 2014); Press
Release, Cinemark Holdings, Inc., Cinemark and ALDA Announce Greater
Movie Theatre Accessibility for Customers who are Deaf or Hard-of-
Hearing (April 26, 2011), available at http://www.cinemark.com/pressreleasedetail.aspx?node_id=22850 (last visited July 14, 2014);
Press Release, Disability Rights Advocates, AMC Theatres and ALDA
Announce Greater Accessibility for Deaf or Hard-of-Hearing Guests at
All Digital Movie Theatres in California, (Dec. 20, 2011), available at
http://www.dralegal.org/pressroom/press-releases/amc-theatres-and-ALDA-announce-greater-accessibility-for-deaf-or-hard-of (last visited July
14, 2014).
IV. Section-by-Section Analysis
Section 36.303(g) Movie Captioning and Audio Description--Definitions
Movie Theater. In order to make it clear which facilities are
subject to the specific captioning and audio-description requirements
set forth in Sec. 36.303(g), the Department is proposing in Sec.
36.303(g)(1)(v), to define the term ``movie theater'' as ``a facility
other than a drive-in theater that is used primarily for the purpose of
showing movies to the public for a fee.'' Movie theaters
[[Page 44990]]
include all movie theaters that exhibit movies for a fee, except drive-
in movie theaters. The term includes movie theaters that exhibit
second- and third-run movies as well first-run releases. The term is
not a synonym for movie screen. A movie theater can have one or more
screens available to show movies in several auditoriums. The term
``movie theater'' does not include facilities that screen movies, such
as museums, hotels and resorts, or cruise ships, even if they charge an
additional fee, if the facility is not used primarily for the purpose
of showing movies for a fee.
Paragraph 36.303(g) is a specific application of the auxiliary aid
and service requirement for movie theaters. Such a provision is
necessary because of the technological advances in auxiliary aids and
services that enable movie theaters to screen movies in a manner that
provides effective communication to individuals who are deaf or hard of
hearing or blind or have low vision. The Department's title III
regulation makes clear that public accommodations that exhibit movies
but are not movie theaters, such as museums and amusement parks, must
provide effective communication to the public through the provision of
auxiliary aids and services, including, where appropriate, captioning
and audio description. See generally 28 CFR 36.303; 28 CFR part 36,
app. B. Many such public accommodations have been providing appropriate
auxiliary aids, either through open captions, closed captions, or a mix
of the two, and audio description. Even in situations in which the
Department identified a need for enforcement action, these public
accommodations were willing to comply with the ADA and provide such
auxiliary aids and services. See, e.g., Press Release, U.S. Department
of Justice, Settlement Agreement Will Ensure Accessibility at the
International Spy Museum in Washington, DC (June 3, 2006), available at
http://www.justice.gov/opa/pr/2008/June/08-crt-489.html (last visited
July 14, 2014); Press Release, U.S. Department of Justice, Walt Disney
World Co. Agrees to Provide Services to Deaf and Hard-of-Hearing Guests
(Jan. 17, 1997), available at http://www.justice.gov/opa/pr/1997/January97/021cr.htm (last visited July 14, 2014).
Commenters on the 2010 ANPRM advised the Department that the
technology does not yet exist to exhibit movies with closed captions or
audio description at drive-in movie theaters that have an outdoor
patron field that is typically spread across more than eight acres. In
addition, these comments indicated that given that there are fewer than
400 drive-in theaters in the United States, it is unlikely that such
technology will be developed in the near future. Thus, the Department
is proposing to exclude drive-in movie theaters from the definition of
movie theater in this rule and defer rulemaking regarding drive-in
theaters until such time that the necessary technology for closed
captions and audio description for drive-in theaters becomes
commercially available.
Question 2: Does the proposed definition of ``movie theater''
adequately describe the movie theaters that should be covered by this
regulation? Are there any non-profit movie theaters that would be
covered by this definition? How many non-profit movie theaters are
there? Should drive-in movie theaters be excluded from the definition
of movie theaters at this time? Is there technology under development
that might make it possible for drive-in movie theaters to provide
closed captions or audio description in the future?
Audio description. For the purposes of this subsection, the
Department is proposing to add a definition for ``audio description.''
In proposed Sec. 36.303(g)(1)(i), ``audio description'' is defined as
the ``provision of a spoken narration of key visual elements of a
visually delivered medium, including, but not limited to, actions,
settings, facial expressions, costumes, and scene changes.''
In the Department's July 26, 2010, ANPRM, the Department used the
term ``video 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. The Department
received several comments addressing whether it should continue to use
the term ``video description'' or other terms, including ``audio
description.'' The majority of commenters addressing this issue
supported the use of the term ``audio description,'' stating that audio
description has been used since 1981 as the term of art to describe
using language to provide access to visual images, and pointing out
that the National Endowment for the Arts and the Graphic Artists Guild
both use the logo ``AD'' to indicate the availability of audio
description. In addition, audio description more appropriately
describes the type of auxiliary aid involved, because the process
involves providing information that is experienced aurally. In response
to these comments, the Department has been persuaded to change the
nomenclature for this process to ``audio description.''
Question 3: Should ``audio description'' be the nomenclature
adopted in the final rule?
Closed movie captioning. The Department notes that the term
``closed captioning'' is referenced in the examples of auxiliary aids
and services in Sec. 36.303(b). That section refers to ``closed
captioning'' in the much broader context of auxiliary aids and services
that must be provided by a wide range of public accommodations subject
to title III. In order to distinguish between the general auxiliary aid
and service requirement and the ``closed captioning'' that is required
by Sec. 36.303(g)(2), the Department is proposing to define the term
``closed movie captioning'' specifically as it applies to movie
theaters. In Sec. 36.303(g)(1)(ii), the Department proposes to define
``closed movie captioning'' as ``the written text of the movie dialogue
and other sounds or sound making (e.g., sound effects, music, and the
character who is speaking). Closed movie captioning is available only
to individuals who request it. Generally, it requires the use of an
individual captioning device to deliver the captions to the patron.''
The Department received one comment encouraging it to use the term
``individual captioning'' instead of ``closed captioning'' to refer to
the circumstances where captions are received through the use of
individual devices. This commenter distinguished between three types of
captioning: Open captioning, where the captions are displayed on the
screen and cannot be turned off; closed captioning as the term is used
in the context of television and video where the captions can be turned
on or off, but when they are displayed everyone in the room sees them;
and individual captioning systems, where only the individual viewer
sees the captions, but they are not displayed to the entire audience.
As stated earlier, the Department wishes to avoid confusion between the
``closed captioning'' provided on television and in other venues, and
those provided in movie theaters. However, it believes its proposed
term ``closed movie captioning'' will address that concern without
introducing a term that is wholly different from that currently used by
the movie industry and the courts.
Question 4: Should the Department use the term ``closed movie
captioning'' to refer to the type of captioning provided by movie
theaters to individuals who view the captions at
[[Page 44991]]
their seats? Is there a different term that should be used in order to
distinguish between the closed captioning referred to in Sec.
36.303(b) and the captioning required for movie theaters in proposed
Sec. 36.303(g)(2)?
Individual audio description listening device. In Sec.
36.303(g)(1)(iii), the Department is proposing to define ``individual
audio description listening device'' as the individual device that
patrons may use at their seats to hear audio description.
Individual captioning device. In Sec. 36.303(g)(1)(iv), the
Department is proposing to define ``individual captioning device'' as
``the individual device that patrons may use at their seats to view the
closed captions.''
Open movie captioning. The Department notes that the term ``open
captioning'' is already referenced in the examples of auxiliary aids
and services provided in Sec. 36.303(b). That section refers to ``open
movie captioning'' in the much broader context of auxiliary aids and
services that must be provided by the wide range of public
accommodations subject to title III. In order to distinguish between
the general auxiliary aid requirement and the ``open captioning'' that
is referenced in Sec. 36.303(g)(2)(ii), the Department is proposing to
define the term ``open movie captioning'' specifically as it applies to
movie theaters. In Sec. 36.303(g)(1)(vi), the Department proposes to
define ``open movie captioning'' as ``the provision of the written text
of the movie dialogue and other sounds or sound making in an on-screen
text format that is seen by everyone in the theater.''
Question 5: Should the Department use the term ``open movie
captioning'' to refer to the type of captioning that is viewed on or
near the movie screen by everyone in the movie theater audience? Is
there a different term that should be used?
Movie Captioning Coverage
The Department asked nine questions in its 2010 ANPRM on the scope
of coverage and how best to frame any regulation requiring exhibiting
movies with closed captions and audio description. In that ANPRM, the
Department stated it was considering proposing a regulation that would
require that 50 percent of movie screens exhibit movies with captioning
and audio description and that any such requirement would be phased in
over a five-year period. However, after review and analysis of the
statutory structure of the ADA, its regulatory requirements and
legislative history, and the technological advances since enactment of
the ADA, the Department is convinced that any regulation regarding
captioning and audio description should be written broadly, like the
ADA itself.
In the NPRM, Sec. 36.303(g)(2)(i), the Department proposes to
require that ``[a] public accommodation that owns, leases, leases to,
or operates a movie theater shall ensure that its auditoriums have the
capability to exhibit movies with closed movie captions. In all cases
where the movies it intends to exhibit are produced, distributed, or
otherwise made available with closed movie captions, the public
accommodation shall ensure that it acquires the captioned version of
that movie. Movie theaters must then exhibit such movies with closed
movie captions available at all scheduled screenings of those movies.''
As discussed below, the Department is proposing to apply this
requirement to all digital movie screens in movie theaters and is
seeking public comment as to the best approach (i.e., delayed
compliance date or deferral) to take with respect to analog movie
screens.\29\
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\29\ Some commenters to the 2010 ANPRM recommended that the
Department delay proposing any new rule for at least 24 months as
the digital transition continues to progress and new technologies
become more widespread. It is already more than 3 years since the
ANPRM was published, and the Department declines to delay this
rulemaking any further.
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The Department is proposing that all movies available with
captioning be exhibited with captioning at all times unless doing so
would be an undue burden.\30\ The primary goals of the ADA are to
assure equality of opportunity and full access and participation in our
society for individuals with disabilities. 42 U.S.C. 12101. To that
end, and as stated previously, the ADA prohibits public accommodations
such as movie theaters from affording individuals with disabilities an
unequal or lesser service than that offered to other individuals. 42
U.S.C. 12182(b)(1)(A)(ii). The ADA requires public accommodations ``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 public accommodation can demonstrate that taking
such steps would result in a fundamental alteration or undue burden. 42
U.S.C. 12182(b)(2)(A)(iii).
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\30\ A requirement that all movies available with closed
captioning be exhibited with closed captioning at all times
eliminates other problems inherent in any partial requirement (be it
50 percent of screens in a facility, 50 percent of screens owned by
a particular movie theater, number of movies being screened in a
particular theater facility, etc.) because of issues involving
availability of products with captioning and audio description and
how movie theaters use auditoriums. Movie theaters negotiate with
film distributors regarding which auditoriums in a multiplex theater
will show which films. Generally, if a film is expected to be very
popular, it will open in the largest auditorium or in several
auditoriums within the same complex. As the popularity decreases,
the film will be moved from larger auditoriums to smaller
auditoriums and from multiple auditoriums to single auditoriums. The
timing of such moves will vary from theater to theater and from film
to film. Movies also can be rotated between screens throughout the
day and evening. The Department's proposal to require 100 percent of
screens to meet the requirement ensures that if movies are available
with closed captioning, they will be exhibited with closed
captioning, thereby maximizing options and choices for patrons with
disabilities for all movies, at all times, throughout the country,
and eliminates the confusion and lack of access that a partial
requirement would create.
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The ADA envisions that effective communication through the
provision of appropriate auxiliary aids and services be provided for
all of a public accommodation's services and that individuals who are
deaf, hard of hearing, blind, or have low vision have access to all of
a public accommodation's services, absent a legitimate defense. As
such, it is not enough to offer captioned movies (or movies with audio
description) for limited movies at limited times, absent a legitimate
defense. Rather, such individuals should be able, along with the rest
of the population, to attend a movie at any date and time. Based on the
information it currently has, the Department does not believe it would
be appropriate to propose an across-the-board phase-in of this
requirement over five years. Information available to the Department
since the publication of the ANPRM makes it clear that the pace of
conversion to digital cinema has accelerated rapidly and there are a
number of different options available for providing closed movie
captions and audio description. Therefore, at this time, the Department
does not believe that it is necessary to delay the implementation of
the final rule for digital movie screens.
The Department's proposed provision would impose a three-fold
requirement upon movie theaters. First, as of the compliance date of
this rule, movie theaters must have the capacity to exhibit movies with
captions. Second, if a movie is available with captions because it has
been produced, distributed, or otherwise made available with
captioning, then movie theaters are required to obtain that particular
movie in a version with captions, and not in a version without
captions. Third, those movie theaters are required to display that
movie with the captions to patrons upon request.
[[Page 44992]]
The first proposed requirement mandates that movie theaters acquire
whatever equipment they need to have the capability to exhibit movies
with closed captions. The second proposed requirement mandates that
movie theaters select the captioned version of a movie if captions are
available for that particular movie. It does not limit the selection or
mix of movies that a movie theater may choose. In other words, if a
particular movie is not available with captioning (because it has not
been produced, distributed, or otherwise made available to the movie
theater with captions), then the movie theater is in no way limited or
prohibited from acquiring or exhibiting that particular movie. In
addition, if a movie is available in both analog and digital formats,
but only available with captions in the digital format, then a theater
with both digital and analog screens is not required to obtain the
captioned digital version if it had intended to show that particular
movie on its analog screens. In addition, this proposed rule does not
require theaters to add captions to movies that are only available from
studios/distributors without captions. Finally, the third proposed
requirement only relates to the exhibition of movies obtained with
captioning available. The Department understands that decisions about
which movies to release with captions or audio description and whether
open or closed captions or audio description are provided for a
particular movie are decisions made by movie studios and distributors,
not movie theaters. The Department notes that obtaining a captioned
version of a movie does not require a theater to search for accessible
versions of movies because it is the Department's understanding that
each movie (either with or without captions) is only available through
a single distributor. We have no information that suggests that, in the
future, particular movies will be available through multiple
distributors and that some distributors may have versions with closed
captioning and audio description features and others may not.
Even if that particular movie may be the only movie that a movie
theater chooses to exhibit at that time throughout all its auditoriums,
there is no obligation under this proposed regulation to exhibit the
movie with captioning or audio description if it is not made available
with these features. If a movie is available with captioning but not
with audio description, than the movie must be exhibited with the
captions whenever a request for the captions is made, but the
requirement for audio description would not apply to the showing of
that movie. This proposed rule would ensure that movie theaters have
the capability to exhibit movies that are produced or distributed with
captioning and audio description available and that they exhibit such
movies with captioning and audio description whenever a request is made
for these auxiliary aids.
Comments from NATO on the ANPRM suggested that if the Department
issues a regulation requiring captioning then it should not phase-in
compliance over five years, but instead should give large, digital
theaters five years until they have to comply. NATO also recommended
that the Department reduce the required number of screens that need to
be accessible to 25 percent and only apply that requirement to movie
theaters undergoing digital conversion. NATO also objected to a
captioning and audio-description requirement for movie theaters that do
not convert to digital, citing uncertainty as to whether many first-run
analog movies will be produced in the future, or whether any of them
will be distributed with captions and audio description.
As stated earlier, the Department does not believe it appropriate
to propose that captioning or audio description be available in less
than 100 percent of the movie theaters that exhibit movies that are
produced, distributed, or otherwise made available with captioning or
audio description. Moreover, there are two reasons that Department does
not believe a phased-in compliance schedule is appropriate. First, as
discussed in the section on the legal basis for the rule, and as
recognized by the Ninth Circuit in the Harkins case, movie theaters
already have an obligation to provide effective communication to
persons with disabilities 100 percent of the time. Second, as the
industry acknowledged in its comments on the 2010 ANPRM, a rolling
compliance period is difficult to implement given the way the market
works--i.e., it is not easy to purchase and install equipment on a set
rolling schedule. In addition, as discussed earlier, the Department
understands that at least 53 percent of movie screens already have the
necessary equipment to show captions and provide audio description and
three of the four largest movie theater companies have already
committed to make captioning and audio description available at 100
percent of their theaters, as have several smaller movie theater
companies.
The Department is proposing that the rule take effect for movie
screens that have already converted to digital six months from the
publication date of the final rule in the Federal Register. The
Department believes six months is sufficient time for theaters that
have already converted to digital to order and install the necessary
equipment to provide captions and audio description, train employees on
how to use the equipment and assist patrons in using it and develop and
implement processes to ensure that all communications and
advertisements intended to inform potential patrons of movie showings
provide information regarding the availability of captioning and audio
description for each movie.
The rule does not propose a compliance date for analog movie
screens. As discussed below, because of the uncertainty about the
future of analog theaters, and the future availability of analog film,
the Department is seeking public comment on whether it should adopt a
four-year delayed compliance date for analog movie screens, or whether
it should defer coverage of analog screens and consider additional
rulemaking at a later date.
The six-month compliance date applies to digital screens in all
movie theaters, including a theater that has both analog and digital
screens. For example, if a movie theater has 20 screens and 18 of them
are digital and two are analog, the 18 digital screens are all subject
to the six-month compliance date. In addition, the NPRM proposes that
if an analog screen is converted to digital after the rule's six-month
compliance date for digital screens, the newly converted digital screen
will then be subject to the rule's requirements within six months from
the date the screen is converted to digital.
In addition, from the law's inception in 1990, the statutory
language of the ADA has provided flexibility based on cost in specific
circumstances. All movie theaters, regardless of size, status of
conversion to digital cinema, or economic viability, have available to
them the same defense as do all other public accommodations--the
individualized and fact-specific undue burden defense. The undue burden
defense tailors the analysis to factor in the needs and resources of
small businesses and the economic viability of those businesses.
Throughout the last two decades movie theaters have been able to assert
this defense when facing litigation alleging a failure to provide
effective communication to patrons with disabilities. This regulation
does not change the availability of this defense or the circumstances
under which it can be asserted. It does, however, provide clarity about
how movie theaters can
[[Page 44993]]
meet their longstanding effective communication obligations under the
ADA.
The Department notes that even if a movie theater cannot install
the equipment in all of its auditoriums due to an undue financial
burden, the movie theater is still obligated to take steps to maximize
the movie choices for customers who are deaf or hard of hearing or
blind or have low vision. Maximizing the movie choices means that movie
theaters should, to the extent possible based on the movie theaters'
resources, be able to exhibit as many movies as possible with
captioning and audio description in their auditoriums, throughout the
day and evening, and on both weekdays and weekends. If, for example, a
six-screen movie theater can only afford to install captioning
equipment in half of its auditoriums, and it has auditoriums with
different capacity, it should install captioning equipment in large,
medium, and small auditoriums. This distribution of equipment would
permit exhibition of different types of movies, as blockbusters
generally are shown in larger auditoriums first and smaller budget
movies or older movies may be shown only in medium or small
auditoriums.\31\
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\31\ Existing [ballot] 36.303(g) states that ``[i]f provision of
a particular auxiliary aid or service by a public accommodation
would result * * * in an undue burden * * * the public accommodation
shall provide an alternative auxiliary aid or service, if one
exists, that would not result in * * * such a burden but would
nevertheless ensure that, to the maximum extent possible,
individuals with disabilities receive the goods, services,
facilities, privileges, advantages, or accommodations offered by the
public accommodation.''
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Question 6: Consistent with President Obama's Memorandum issued on
January 18, 2011, on regulatory flexibility, small business, and job
creation, the Department invites comment on ways to tailor this
regulation to reduce unnecessary regulatory burdens on small
businesses.\32\ For example: Should the Department have a different
compliance schedule or different requirements for digital or analog
theaters that have annual receipts below a certain threshold? If so,
what should the schedule, requirements, or financial threshold be? Or,
should the final rule have a different compliance schedule or
requirements for single-screen or miniplex analog or digital theaters?
Will all mega and multiplex theaters have converted to digital by the
time the final rule goes into effect? Is a four-year compliance date
reasonable for those screens that will remain analog? Please provide
information to support your answer. Should the Department adopt a
different compliance schedule or different requirements for nonprofit
movie theaters? The Department invites comment on these alternatives
and any other ways in which the final rule could be tailored to
appropriately minimize costs on small theaters.
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\32\ Memorandum for the Heads of Executive Departments and
Agencies, Regulatory Flexibility, Small Business, and Job Creation,
76 FR 3827 (Jan. 18, 2011).
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Question 7: Is the proposed six-month compliance date for digital
screens a reasonable timeframe to comply with the rule? Is six months
enough time to order, install, and gain familiarity using the necessary
equipment; train staff so that they can meaningfully assist patrons;
and meet the notice requirement of the proposed rule? Will
manufacturers have the capacity to provide the necessary equipment for
captioning and audio description as of the six-month proposed
compliance date of this rule for digital movie screens? If the proposed
six-month date is not reasonable, what should the compliance date be
and why? Please provide specific examples, data, or explanation in
support of your responses.
Analog Movie Screens
Based on information currently available, it appears likely that
few, if any, analog movies will continue to be made by the major movie
studios and possibly by the independent studios as well. See previous
discussion. It is unclear to the Department, however, whether those
analog movies that continue to be made will be produced with captions
and audio description. Thus, it could be that even if analog theaters
were to have the capability of showing movies with captions and audio
description, there may not be any movies for them to show with those
accessibility features. It is also unclear how many, if any, analog
theaters will continue to be viable within the next few years. The
Department has asked for public comment on the future of analog
theaters, analog movie production in general, and analog movies with
accessible features. Based on the information available to the
Department at the time it drafts the final rule, the Department will
decide whether it is appropriate to just delay compliance for analog
screens in movie theater auditoriums in order to allow sufficient time
to comply with the specific requirements of the rule or defer applying
these specific requirements altogether until such time that the
Department, in light of available information, deems it appropriate to
engage in further rulemaking on this subject. The Department is
interested in public comment on whether there is a reasonable basis for
deferring the application of this rule to movie theater auditoriums
with analog screens or whether it should include an extended compliance
date.
Question 8: Should the Department adopt a four-year compliance date
for analog movie screens (Option 1) or should it defer application of
the rule's requirements to analog screens for now and consider
additional rulemaking with respect to analog screens at a later date
(Option 2)? Commenters are encouraged to provide information to support
their recommendation. Open Captioning (or Other Technologies) as an
Option for Compliance
[[Page 44994]]
In Question 9 of the 2010 ANPRM, the Department asked whether it
should give movie theaters the discretion to exhibit movies with open
captions should they so desire, as an alternate method of achieving
compliance with a captioning regulation. Many of the commenters who
addressed this issue, including those from the industry, supported this
option.\33\ The Department decided to include this option in the
proposed regulation as an example of an alternative means of meeting
the movie theaters' obligation to provide effective communication to
patrons who are deaf or hard of hearing but in keeping with the ADA's
legislative history, we are making it clear that the ADA does not
require movie theaters to use open captions as a means of providing
effective communication.\34\ In the NPRM, Sec. 36.303(g)(2)(ii) states
that ``[m]ovie theaters may meet their obligation to provide captions
to persons with disabilities through use of a different technology,
such as open movie captioning, so long as the communication provided is
as effective as that provided to movie patrons without disabilities.
Open movie captioning at some or all showings of a movie is never
required as a means of compliance with this section, even if it is an
undue burden for a theater to exhibit movies with closed movie
captioning in an auditorium.'' \35\
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\33\ A number of commenters advocated for the Department to
require open captioning exclusively, arguing that it is much more
effective and cheaper than closed captioning.
\34\ ``Open 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, pt. 2, at 108 (1990); S. Rep. No. 101-116, at
64 (1989).
\35\ With open movie captioning, there is no need for additional
equipment to display the captions and, therefore, there is no
additional cost to the theaters. For digital cinema, the movie
theater simply selects the open caption option from its digital menu
and the open captions appear on the movie screen for that showing
only. For analog films, the movie theater would order the version
with open movie captions, if available, and just display the movie
without need for any additional equipment.
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The Department is aware, both from comments received from the
industry and from some individuals, that open captions may reduce the
amount of enjoyment experienced by people who do not need captioning.
For those movie theaters that elect to meet these requirements through
the exhibition of movies with open captioning, in whole or in part, the
movie theaters may elect to turn on the open captions only after a
timely request has been made for captions. For this approach to be
effective, movie theaters should clearly and conspicuously advertise at
the ticket offices and at the doors to each auditorium the process,
procedures, and time periods for making captioning requests.
Question 9: Do the alternative provisions regarding when and how to
employ open movie captions strike an appropriate balance? Should the
Department define what a timely request is in this context? Has the
Department adequately addressed the possibility that new technology may
develop that can be used to provide effective communication at movie
theaters?
Individual Captioning Devices
A commenter from a disability advocacy organization encouraged the
Department to specify the number of individual captioning devices that
must be made available at each movie theater, pointing out that groups
of persons who are deaf or hard of hearing should be able to attend
movies at the same time and have sufficient individual captioning
devices available to enable them to enjoy the movie at the time of
their choice. A commenter from the movie theater industry recommended
that the Department require only one individual captioning device per
movie screen equipped to display digital cinema. The Department already
has a requirement for a specific number of assistive listening
receivers that must be made available at each movie theater for persons
who need amplification of sound during a movie. See table 219.3 in the
2010 ADA Standards for Accessible Design (2010 Standards).\36\ Adding a
requirement for a particular number of individual captioning devices
would be consistent with that approach and is necessary to ensure that
patrons who are deaf and hard of hearing are provided with effective
communication.
---------------------------------------------------------------------------
\36\ 28 CFR 36.104 (title III) (defining the ``2010 Standards''
as the requirements set forth in appendices B and D to 36 CFR part
1191 and the requirements contained in subpart D of 28 CFR part 36).
The 2010 Standards can be found at http://www.ada.gov/2010ADAstandards_index.htm (last visited July 14, 2014).
---------------------------------------------------------------------------
In the NPRM, the Department is proposing scoping for the required
number of individual captioning devices in numbers that approximate
about half the number of assistive listening receivers already required
for assembly areas by the 2010 Standards. Proposed Sec.
36.303(g)(2)(iii)(A) states, ``[a] public accommodation that owns,
leases, or leases to, or operates a movie theater shall provide
individual captioning devices in accordance with the following Table.
This requirement does not apply to movie theaters that elect to exhibit
all movies at all times at that facility with open movie captioning.''
------------------------------------------------------------------------
Minimum required number of
Capacity of seating in movie theater individual captioning devices
------------------------------------------------------------------------
100 or less............................ 2.
101 to 200............................. 2 plus 1 per 50 seats over 100
seats or a fraction thereof.
201 to 500............................. 4 plus 1 per 50 seats over 200
seats or a fraction thereof.
501 to 1000............................ 10 plus 1 per 75 seats over 500
seats or a fraction thereof.
1001 to 2000........................... 18 plus 1 per 100 seats over
1000 seats or a fraction
thereof.
2001 and over.......................... 28 plus 1 per 200 seats over
2000 seats or a fraction
thereof.
------------------------------------------------------------------------
This table's proposed requirements are based on the total number of
seats for all screens in the movie theater. If a movie theater has more
than one screen, the number of seats are combined together to determine
the required number of individual captioning devices.
The Department believes that its proposed numbers are sufficient
because not every individual with hearing loss requires the use of
captioning in order to enjoy movies. There are many individuals with
mild to moderate hearing loss who can use the amplification provided by
assistive listening receivers, although there are some individuals with
moderate hearing loss for whom the assistive listening receivers are
not effective. See discussion supra. The Department does not agree with
the movie theater industry's recommendation that it should require each
movie theater to have only one individual captioning device available
for each auditorium
[[Page 44995]]
that has captioning equipment installed because it does not believe
that this would be a sufficient number given the number of persons with
moderate and severe hearing loss or who are profoundly deaf who would
benefit from closed captioning. Moreover, the Department believes that
it is more appropriate to base the scoping for individual captioning
devices on the number of seats at the movie theater, rather than the
number of movie screens, because the number of devices should be
proportionate to the number of individuals who can attend the movie.
Under the Department's formula, a movie theater that had five screens
in auditoriums that could accommodate a total of 3000 people would need
to have more devices available than a movie theater that also had five
screens but in auditoriums that could only accommodate a total of 1000
people. This approach is consistent with the way assistive listening
receivers are scoped in the current regulation.
Industry commenters asserted that even in those auditoriums that
have installed Rear Window[supreg] Captioning systems, industry data
indicates that there are few requests to use them. Based on the
comments received in response to its 2010 ANPRM and its independent
research, the Department has concluded that the availability of
captioning in the United States is limited, and it is therefore not
appropriate to base conclusions about potential use of individual
captioning devices on current usage data at those few auditoriums that
offer closed captioning on a limited basis.\37\ The Department believes
that the demand for individual captioning devices will be much greater
than one device per auditorium once movies are regularly and uniformly
exhibited with captioning and the availability of captioning becomes
widely known. This is especially true given the anticipated increase in
the number of deaf and hard of hearing individuals in the United States
that will come with the aging of the U.S. population.
---------------------------------------------------------------------------
\37\ When the Department adopted standards for physical
accessibility in public accommodations, the Department similarly did
not base its scoping on how many persons with disabilities accessed
inaccessible facilities.
---------------------------------------------------------------------------
The Department received numerous comments from advocacy
organizations and deaf and hard of hearing individuals indicating that
they were unable to attend the few movies currently offered with closed
captioning because they were not publicized, were usually scheduled a
few times a week at off hours (often in the middle of the weekday), or
were only scheduled for one movie at a time, despite the variety of
movies that are shown at any one time at a movie theater. These
commenters stated that if captioned movies were available to them for
all movies at all times, they would then become regular moviegoers in
the same manner as persons who are not deaf or hard of hearing. These
commenters included deaf and hard of hearing parents of children who
wished to attend movies, teenagers who wished to attend movies with
their friends on the weekends at peak times, and people who work during
the day who wished to attend movies during evening hours and on
weekends. Many of the deaf and hard of hearing individuals who
testified at the Department's three public hearings or who submitted
comments stressed that they have not been to a movie for many years
either because of the lack of availability of captioning or because
when they tried to see films advertised as having captioning they
arrived at the movie theater only to find that the staff did not know
where the individual captioning devices were or how to turn on the
captioning, or the individual devices themselves malfunctioned.
Question 10: The Department seeks public comment on its proposed
scoping for individual captioning devices. If the scoping is not
correct, what are the minimum number of individual captioning devices
that should be available at a movie theater? Please provide the basis
for alternative suggestions. If the required number of individual
captioning devices is linked to the number of seats in the movie
theater facility, should the percentage decrease for very large
facilities with multiple screens? What should the threshold(s) be for
this calculation? Should the Department consider different scoping
approaches for small theaters? How so and why? Are there alternative
scoping approaches that the Department should consider to address
variability in demand for the devices across theaters? If so, please
describe such alternatives in as much detail as possible.
Standards for Individual Captioning Devices
The Department received a number of comments for specific
performance standards for individual captioning devices. These
commenters wanted the Department to ensure that the text that is
exhibited on these devices is readable with good contrast and good text
size, that it be available at a reasonable height in relation to the
movie screen, that the devices be easily used by patrons who are deaf
or hard of hearing, and that they be properly maintained. The
Department has considered these comments and is proposing in the NPRM,
at Sec. 36.303(g)(2)(ii)(B), that ``[i]n order to provide effective
communication, individual captioning devices must: (1) Be adjustable so
that the captions can be viewed as if they are on or near the movie
screen; (2) be available to patrons in a timely manner; (3) provide
clear, sharp images in order to ensure readability; and (4) be properly
maintained and be easily usable by the patron.''
The Department received a number of comments expressing concern
that seat location can have an impact on the ability to read closed
captions. Those commenters recommended that the Department require
movie theaters to reserve seats in the center of the auditorium to
persons using individual captioning devices. In contrast, an industry
commenter stated that the ability to read the captions provided by the
new closed-caption systems for digital cinema has been reported to be
equally good throughout the movie theater auditorium and that the
system currently in use for analog has reportedly been improved for use
with digital cinema.
The Department has decided not to propose any kind of reserved
seating provision in the regulation at this point because it believes
that its proposed performance standards will ensure the usability of
individual captioning devices. In addition, seating at movie theaters
generally is on a first-come, first-served basis, and patrons know to
come early if they want to sit in the ``sweet spot'' or other desirable
seats in the auditorium.\38\ While movie theaters may select whatever
captioning equipment they want to deliver closed captions to their
patrons, they must provide effective communication to individuals with
disabilities who are deaf, hard of hearing, blind, or have low vision.
The proposed performance standards should assist movie theaters in
meeting that requirement.
---------------------------------------------------------------------------
\38\ If a movie theater adopts an all-reserved seating policy,
it would be advisable to hold back certain seats for individuals who
need captioning (or audio description) if the captioning (or audio
description) does not work well throughout the auditorium or works
better in specific areas of the auditorium.
---------------------------------------------------------------------------
Question 11: Has the Department adequately described performance
standards for individual captioning devices that deliver closed
captions to patrons? How should the standards address text size that is
displayed on the devices?
[[Page 44996]]
Audio Description
Coverage. In Sec. 36.303(g)(3)(ii) of the NPRM, the Department is
proposing that a public accommodation that owns, leases, leases to, or
operates a movie theater shall ensure that its auditoriums have the
capability to exhibit movies with audio description and in all cases
where the movies it intends to exhibit are produced, distributed, or
otherwise made available with audio description, the public
accommodation shall ensure that it exhibits such movies with audio
description at all scheduled screenings of those movies. This
requirement is comparable to the requirement for exhibition of movies
with closed captioning at proposed Sec. 36.303(g)(2). In addition,
with respect to digital screens, the Department is proposing the same
six-month compliance date for the provision of audio description at
Sec. 36.303(g)(3)(i) as it is for movie captioning. With respect to
analog screens, the Department is seeking public comment on whether to
adopt a four-year delayed compliance date for the provision of audio
description or defer new requirements for analog screens to provide
audio description for now and consider additional rulemaking at a later
date.
The Department received virtually no comments objecting to a
requirement for the exhibition of movies with audio description when
such movies are available to movie theaters with audio description. The
overwhelming number of commenters addressing audio description
indicated that they believed it should be available at all movies at
all times. However, while industry commenters agreed that audio
description should be available, they suggested limiting any
requirement for exhibiting movies with audio description to 25 percent
of those auditoriums that have converted to digital cinema. A 25
percent requirement would significantly limit the availability of
movies with audio description across the country.
As discussed with respect to proposed Sec. 36.303(g)(2) (movie
captioning), the Department believes that given the availability of
audio-description technology, and in light of the purpose and goals of
the ADA and its statutory and regulatory framework, the ADA requires
nothing less than full access to audio-described movies at all times
such movies are exhibited, whenever such movies are produced,
distributed, or otherwise made available to movie theaters. The primary
goals of the ADA are to assure equality of opportunity and full access
and participation in our society for individuals with disabilities. 42
U.S.C. 12101. The ADA requires public accommodations 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 public
accommodation can demonstrate that taking such steps would result in a
fundamental alteration or undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).
Individual audio-description listening devices. In order to ensure
that individuals who are blind or have low vision have access to audio-
described movies when such movies are available in a movie theater, the
theater needs to provide a reasonable number of audio-description
listening devices for individual use. The comments received and the
Department's research indicate that many of the assistive listening
receivers currently in use in the United States have two channels, one
of which is needed for amplified sound, and the other that could be
used for audio description. The NPRM proposes at Sec.
36.303(g)(3)(ii)(B) that a theater may meet its obligation to provide
individual captioning devices if the receivers it uses to meet its
obligations to provide assistive listening systems in accordance with
the requirements in table 219.3 of the 2010 Standards have at least two
channels, one of which can be available for transmission of audio
description. For those theaters that do not have two-channel assistive
listening receivers, the Department is proposing in Sec.
36.303(g)(3)(ii)(A) to require minimal scoping of one individual audio-
description listening device per auditorium, with a minimum of two
devices per theater. This proposal is relatively consistent with the
recommendations of at least one industry commenter on the 2010 ANPRM,
who asserted that the Department should limit any requirement for
individual audio-description listening devices to one receiver per
auditorium. In any event, the Department believes that because many
movie theaters already have two channel assistive listening receivers
that they use to meet their existing requirements under the 2010
Standards, the proposed scoping will not require many movie theaters to
buy additional equipment.
The Department received comments and heard testimony from
individuals and organizations representing individuals who are blind
and have low vision stating that they do not attend movies because of
the lack of audio description, but would begin going to movies once
audio description is readily available.
Question 12: How many devices capable of transmitting audio
description to individuals should each movie theater have on hand for
use by patrons who are blind or have low vision? Should the number of
individual audio-description listening devices be tied to the number of
seats in each auditorium or other location with a movie screen? Should
the number of individual audio-description listening devices be tied to
the number of seats in the theater facility as a whole? Please provide
the basis for your comment. How many movie theaters have two-channel
receivers that can be used to provide audio description? How many movie
theaters will need to buy additional individual audio description
listening devices? How much do audio description listening devices that
meet the requirements of this proposed rule cost?
For some small movie theaters, it may be an undue burden to
purchase the equipment needed to exhibit movies with closed captioning
and audio description and meet the other requirements of the rule.
Determining whether compliance with the requirements of this rule will
result in an undue burden, however, requires the individualized, fact-
specific inquiry and analysis discussed previously. In some
circumstances, movie theaters may incur a cost to determine whether and
to what extent compliance with the rule would result in an undue
burden. Such costs may include the time to determine how to comply with
the rule's requirements; the time to gather, compile, and review
financial records; and the time to obtain estimates of the cost of
compliance. The Department lacks information necessary for estimating
the time and other costs a theater would incur to determine whether
compliance would result in an undue burden and the extent to which this
rule would increase movie theaters' legitimate use of the undue burden
analysis compared to the status quo. This information, however, would
be important for analyzing at the final rule stage the incremental
effect of the rule and for analyzing regulatory alternatives,
particularly for small theaters.
The Department notes that many small businesses will be able to
defray the costs of compliance with this rule if they qualify for a
special IRS tax credit that is intended to defray the costs of
providing access to persons with disabilities in accordance with the
requirements of the ADA. Section 44 of the Internal Revenue Code of
1986
[[Page 44997]]
allows eligible businesses a tax credit of 50 percent of the cost of
``eligible access expenditures,'' defined as amounts paid or incurred
``(A) for the purpose of removing architectural, communication,
physical, or transportation barriers which prevent a business from
being accessible to, or usable by, individuals with disabilities, * * *
(D) to acquire or modify equipment or devices for individuals with
disabilities, or (E) to provide other similar services, modifications,
materials, or equipment.'' 26 U.S.C. 44(c)(2). This tax credit is
available to businesses with gross receipts of less than one million
dollars each year or that have 30 or fewer full-time employees. See 26
U.S.C. 44(b). The Department believes that providing captioning and
audio description to meet the longstanding obligation to provide
effective communication under the ADA falls within this tax code
provision.
Question 13: The Department invites comments on the additional time
it will take and other possible costs movie theaters would incur to
determine whether compliance with the rule would constitute an undue
burden. What kinds of costs are involved? How much time would a theater
spend determining how to comply with the rule; gathering, compiling,
and reviewing financial records; and estimating the cost of compliance?
Would small theaters have professionals such as accountants or lawyers
review their financial records? What information should the Department
use to estimate the per hour cost of the time movie theaters spend
undertaking these activities? How might the Department develop an
estimate of the average time and cost required to determine whether
full compliance would constitute an undue burden? To what extent would
this rule increase movie theaters' reliance on the undue burden
analysis compared to the status quo? What characteristics of small
theaters would make it more likely that it would be an undue burden to
comply with the rule? Are there empirical studies or other credible
information available for estimating the time and cost for a theater to
make a legitimate determination that compliance would constitute an
undue burden? The Department is interested in comments in response to
these questions from the public in general, but particularly from small
movie theater owners and operators and from other small businesses
covered by title III of the ADA with experience in determining whether
it is an undue burden to meet their effective communication obligation.
Notice Requirement
The Department believes that it is essential that movie theaters
provide adequate notice to patrons of the availability of captioned and
audio-described movies. In the 2010 ANPRM, in Question 18, the
Department requested public comment relating to the necessity of a
requirement for providing notice about the availability of captioned
and audio-described movies and the scope of such a requirement. The
Department received numerous comments in response to this question. The
vast majority of commenters supported a notice requirement that
included provisions for notice in the range of communications and media
utilized by movie theaters to advertise their films. Several commenters
recommended that the Department require a uniform system of labeling
movies as having open captioning (OC), closed captioning (CC), or audio
description (AD). Other commenters stated that they believed the form
of notice should be left to the discretion of movie theaters. Many
commenters encouraged the Department to ensure that movie listings
provided over the phone include this information, so that patrons who
are blind and have low vision and who do not utilize Web-based or print
media can find out which movies carry audio description. Industry
commenters noted that while the industry agrees that providing notice
of captioning and audio description is important, movie theaters do not
have control over the information provided on third-party Web sites
that provide show time information and that sell tickets. These same
commenters indicated that they have been working with these Web sites
to voluntarily provide accurate information about current screenings of
captioned and audio-described movies. Many commenters noted that if the
Department adopted a requirement that all movies be shown with
captioning and audio description, the need for notice would disappear,
since patrons could assume that all movies would be accessible to them.
After considering these comments, the Department has decided to
propose a requirement for provision of notice to patrons that covers
all types of communications and advertisements provided by movie
theaters, but does not require a specific form of notification.
Proposed Sec. 36.303(g)(5) states the following: ``movie theaters
shall ensure that communications and advertisements intended to inform
potential patrons of movie showings and times, that are provided by the
theaters through Web sites, posters, marquees, newspapers, telephone,
and other forms of communication, shall provide information regarding
the availability of captioning and audio description for each movie.''
Even though the Department has proposed a 100 percent requirement, it
will still be necessary to provide notice regarding which movies have
captions and audio description because not all movies will be available
to movie theaters with captions or audio description. The Department
notes that third parties are not liable under the ADA when they publish
information about movies if they fail to include information about the
availability of captioning and audio description at movie theaters.
Question 14: It is the Department's view that the cost of the
proposed requirement for theaters to provide notice indicating which
screenings will be captioned or audio-described is de minimus. The
Department requests comments on this view. Specifically, how much will
it cost theaters to provide information regarding the availability of
captioning and audio description for each movie and to specify whether
open movie captions or closed movie captions will be provided for each
particular showing and time? The Department understands that this cost
may vary depending on the type of communication or advertisement, and
so we request that commenters specify the type of communication or
advertisement along with their cost estimate. In addition, how many
times in a given year do theaters provide communications and
advertisements that would trigger this proposed requirement? The
Department understands that this will likely vary depending on how many
screens a theater has, and so we request theater commenters to specify
how many screens they operate in their response to this question.
Because the rule would require 100 percent of movies available with
captions and audio description to be shown with these accessibility
features, should the Department permit theaters to indicate those
movies that do not have these features rather than indicating those
that have these features? Would this approach have an effect on the
cost of providing notice? If so, how would it affect the cost?
Capability to Operate Captioning and Audio Description Equipment
The Department received a significant number of comments from
individuals with disabilities and groups representing persons who are
deaf or hard of hearing and who are blind or have low vision strongly
encouraging
[[Page 44998]]
the Department to include a requirement that staff at movie theaters
know how to operate captioning and audio description equipment and be
able to communicate about the use of individual devices with patrons.
These commenters stated that on numerous occasions when they attempted
to go to a movie advertised as having captioning or audio description,
there was no staff available who knew where the individual captioning
devices were kept or how to turn on the captioning or audio description
for the movie. Many of these individuals indicated they were unable to
experience the movie fully because of the lack of trained personnel,
even if the auditorium was properly equipped and the movie was actually
available with captioning or audio description. Industry commenters
agreed that staff should be knowledgeable in the use of equipment but
asserted that training in the use of all equipment in a movie theater
was standard practice, and therefore, such a requirement was not
necessary.
Having considered these comments, the Department has decided to
include in the NPRM proposed Sec. 36.303(g)(6), which states, ``movie
theaters must ensure that there be at least one individual on location
at each facility available to assist patrons seeking these services at
all times when a captioned or audio-described movie is shown. Such
assistance includes the ability to:
(i) Operate all captioning and audio-description equipment;
(ii) Locate all necessary equipment that is stored and quickly
activate the equipment and any other ancillary equipment or systems
required for the use of the devices; and
(iii) Communicate effectively with individuals who are deaf or hard
of hearing and blind or have low vision regarding the uses of, and
potential problems with, the equipment for such captioning or audio
description.''
The Department believes that the requirement in Sec.
36.303(g)(6)(iii) is necessary to ensure effective communication for
persons who are deaf or hard of hearing and blind or have low vision so
that they can have equal access to movie theaters. The Department
notes, however, that providing effective communication about the
availability of captioning would not require that the theater hire a
sign language interpreter. Communication with a person who is deaf or
hard of hearing about the availability of captioning or how to use the
equipment involves a short and relatively simple conversation, and
therefore, can easily be provided through signage, instruction guides,
and exchange of written notes.
Question 15: How much additional time beyond the normal time movie
theaters spend training staff would be needed to incorporate
instruction in the operation and maintenance of the equipment for
captioning or audio description? How much additional time do theaters
anticipate spending on assisting patrons in using the captioning and
audio description devices? How should the Department estimate the value
of the additional time theater personnel would spend on assisting
patrons in using the captioning and audio description devices? Would
that additional cost be borne by the theaters, and if so, how?
V. Other Issues
Several commenters asked the Department to include a requirement
that movie theaters maintain all equipment needed to provide captioning
and audio description. The Department notes that Sec. 36.211 of the
title III regulation already requires that public accommodations
``maintain in operable working condition those features of facilities
and equipment that are required to be readily accessible to and usable
by persons with disabilities by the Act or this part.'' The Department
does not believe a separate requirement is necessary for equipment
needed to provide captioning and audio description.
VI. Regulatory Process Matters
A. Executive Orders 13563 and 12866--Summary of Initial Regulatory
Assessment
1. Background
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
In keeping with Executive Order 12866 the Department has evaluated
this proposed rule to assess whether it would likely ``[h]ave an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.'' E.O. 12866, Sec.
3(f)(1). The Department's Initial RA shows that this proposed
regulation does not represent an economically ``significant''
regulatory action within the meaning of Executive Order 12866. See E.O.
12866, Sec. Sec. 3(f)(1), 6(a)(3)(C). The Department's full Initial RA
can be found in the docket for this proposed rule at http://
www.Regulations.gov.
2. Costs--Summary of Likely Economic Impact
The Initial RA provides estimates of the total cost of the rule
under Option 1 (a six-month compliance date for digital screens and a
four-year compliance date for analog screens) and Option 2 (a six-month
compliance date for digital screens and a deferral of new regulatory
requirements on analog screens) over a 15-year time horizon. For Option
1, we estimate that the cost of the rule will range from $177.8 million
to $225.9 million when using a 7 percent discount rate, and from $219.0
million to $275.7 million when using a 3 percent discount rate. For
Option 2, we estimate that the cost of the rule will range from $138.1
million to $186.2 million when using a 7 percent discount rate, and
from $169.3 million to $226.0 million when using a 3 percent discount
rate.
The range of cost estimates for both options depends on the
assumptions used regarding the extent to which theaters are or soon
will be providing closed movie captioning and audio description as
proposed in this rule, but independently of this rulemaking. This
Initial RA estimates costs using three different baselines due to a
lack of information regarding the extent to which theaters are already
providing captioning and audio description as proposed in this rule.
Under Option 1, each baseline assumes that 2 percent of analog theaters
currently meet the requirements of this proposed rule. Under Option 2,
the baselines do not make assumptions about analog screens because the
rule would defer requirements on such screens to future rulemaking. See
Initial RA section 4 for details.
Baseline 1 (One Screen Per-Theater)--This baseline assumes
that on average, every movie theater with digital screens has one
screen that is captioning enabled \39\ (based on an assumption of at
[[Page 44999]]
least some compliance with the existing ADA requirements that public
accommodations provide effective communication to persons with hearing
and vision disabilities). This assumption leads to an estimate of about
13 percent of all digital screens having captioning capabilities. For
Option 1, this baseline also assumes that 2 percent of analog screens
are captioning enabled.
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\39\ The three baselines described in this section use the term
``captioning enabled.'' This term refers to the extent to which
movie theaters and movie screens currently have the hardware and
captioning devices needed to comply with this NPRM. Each baseline
includes assumptions for what this term means, and those assumptions
can be found in the initial regulatory impact analysis that
accompanies this NPRM.
---------------------------------------------------------------------------
Baseline 2 (Litigation-Based)--This baseline is derived
using available data regarding movie theater companies that are now
providing captioning and that have been involved in recent litigation
challenging their failure to comply with existing ADA effective
communication requirements. This baseline assumes that 42 percent of
digital screens are captioning enabled. For Option 1, this baseline
also assumes that 2 percent of analog screens are captioning enabled.
Baseline 3 (2013 NATO Survey-Based)--This baseline uses
data provided in testimony by officials from the NATO before Congress
in May 2013, in which 53 percent of digital screens were described as
already captioning enabled. For Option 1, this baseline also assumes
that 2 percent of analog screens are captioning enabled.
Costs are estimated over a 15-year period, beginning with the year
in which the rule becomes effective (assumed to be 2015). For both
options, costs are estimated for theaters with digital screens
beginning in the first year after publication of the final rule (2015).
For Option 1, costs are estimated for theaters with analog screens
beginning in the fourth year after publication of the final rule
(2018).
The estimated costs primarily consist of the following: (1) The
purchase of hardware and software to send the captions to users'
individual devices; (2) the purchase of individual devices as per the
scoping requirements specified in the rule; (3) periodic costs to
replace hardware, software, and devices; (4) annual operations and
maintenance costs to cover storage, management, staff training, and
other recurring costs; (5) any additional hardware costs to transmit
audio description to individual devices; and (6) any additional costs
associated with the purchase of additional of individual audio-
description listening devices. The costs do not include the costs to
theaters to convert their screens from analog to digital, because this
rule does not require any movie theater to convert to digital cinema,
and doing so is not necessary to comply with the proposed requirements.
Estimated Costs Under Option 1
[2015 Dollars, 15-year time horizon]
----------------------------------------------------------------------------------------------------------------
Under baseline 1 Under baseline 2 Under baseline 3
Discount rate assumptions-- one assumptions-- assumptions-- NATO
screen per-theater litigation-based survey based
(%) (millions $) (millions $) (millions $)
----------------------------------------------------------------------------------------------------------------
7.................................... $225.9 $191.9 $177.8
3.................................... 275.7 235.6 219.0
----------------------------------------------------------------------------------------------------------------
Estimated Costs Under Option 2
[2015 Dollars, 15-year time horizon]
----------------------------------------------------------------------------------------------------------------
Under baseline 1 Under baseline 2 Under baseline 3
Discount rate assumptions-- one assumptions-- assumptions-- NATO
screen per-theater litigation-based survey based
(%) (millions $) (millions $) (millions $)
----------------------------------------------------------------------------------------------------------------
7.................................... $186.2 $152.2 $138.1
3.................................... 226.0 186.0 169.3
----------------------------------------------------------------------------------------------------------------
Under Option 1, the estimated annualized costs of the proposed
regulation under each of the three baseline scenarios range from $19.5
million to $24.8 million when using a 7 percent discount rate, and from
$18.3 million to $23.1 million when using a 3 percent discount rate.
Under Option 2, the estimated annualized costs of the proposed
regulation under each of the three baseline scenarios range from $15.2
million to $20.4 million when using a 7 percent discount rate, and from
$14.2 million to $18.9 million when using a 3 percent discount
rate.\40\
---------------------------------------------------------------------------
\40\ Annualized costs were calculated in a Microsoft Excel model
using the PMT function (-PMT (discount rate, years of analysis,
present value of total costs)).
---------------------------------------------------------------------------
The Initial RA shows that estimated annual costs for this proposed
rule will not exceed $100 million in any year under any of three
baseline scenarios, irrespective of which option the Department selects
for analog screens. Annual costs for each year during the 15-year
expected term of the proposed regulation are depicted in the following
figures:
[[Page 45000]]
[GRAPHIC] [TIFF OMITTED] TP01AU14.005
[GRAPHIC] [TIFF OMITTED] TP01AU14.006
Because movie theater complexes vary greatly by number of screens,
which significantly impacts overall costs per facility, the analysis
breaks the movie exhibition industry into four theater types based on
size--Megaplexes (16 or more screens), Multiplexes (8-15 screens),
Miniplexes (2-7 screens), and Single Screen Theaters--and by digital or
analog system. Per-facility costs were then calculated for each theater
type. The largest costs per year for any single movie theater would
occur in the first year due to the purchase of necessary equipment. The
first year's costs for digital Megaplex theaters are estimated to total
$38,547, while comparable costs for digital single screen theaters
would total $3,198.\41\
---------------------------------------------------------------------------
\41\ Unless a dollar figure in the text or the tables
specifically identifies a particular baseline, the default baseline
for general dollar figures uses Baseline 1.
[[Page 45001]]
Per Digital Theater Initial Capital Costs for Captioning and Audio Description Equipment
[Hardware, software and devices, 2015 dollars *]
----------------------------------------------------------------------------------------------------------------
Per-theater initial Per-theater initial
capital costs (using capital costs (using Average initial capital
Digital theater type/size Doremi technology for USL technology for costs for digital
movies in digital movies in digital theater (average of
format) format) different technology)
----------------------------------------------------------------------------------------------------------------
Megaplex............................. $40,540 $36,554 $38,547
Multiplex............................ 27,880 25,798 26,839
Miniplex............................. 10,920 10,252 10,586
Single Screen........................ 3,285 3,111 3,198
----------------------------------------------------------------------------------------------------------------
Note: These initial capital costs include the costs to purchase and install: (1) Captioning hardware and
software (one per screen); (2) individual devices for captioning (ranging from 4 for Single Screens to 34 for
Megaplexes); (3) additional hardware, if needed, to transmit audio description (from none to one device per
screen); and (4) additional devices for audio description (ranging from 2 for Single Screens to 18 for
Megaplexes).
* Because unit costs for captioning and audio description equipment have either remained steady or declined
between 2010 and 2013, they are assumed to remain constant from 2013 (when last researched) to 2015, when the
final rule is expected to be published.
Should the Department proceed under Option 1 and cover analog
screens, per theater costs for analog theaters would be higher than
those for digital theaters for each type/size.\42\ The first year per-
theater costs for analog single screen theaters, which are measured in
year four, would total $8,172. The first year costs for digital single
screen theaters, which are measured in year one, would average $3,198.
---------------------------------------------------------------------------
\42\ The Department's analysis assumes that at the time this
rule takes effect, theaters will either be exclusively digital or
exclusively analog (that is, all of the screens in a theater will be
either digital or analog).
Per Analog Theater Initial Capital Costs of Captioning and Audio
Description Equipment
[Hardware, software and devices, 2015 dollars *]
------------------------------------------------------------------------
Per theater initial
capital costs (rear
Analog theater type/size window technology for
analog films)
------------------------------------------------------------------------
Megaplex **.................................... NA
Multiplex **................................... NA
Miniplex....................................... $31,884
Single Screen.................................. 8,172
------------------------------------------------------------------------
Note: These first year costs include (1) the costs to purchase and
install: Captioning hardware and software (one per screen); (2)
individual devices for captioning (ranging from 4 for Single Screens
to 34 for Megaplexes); (3) additional hardware, if needed, to transmit
audio description (from none to one device per screen); and (4)
additional individual audio description listening devices (ranging
from 2 for Single Screens to 18 for Megaplexes).
* Since unit costs for captioning and audio description equipment have
either remained steady or declined between 2010 and 2013, they are
assumed to remain constant from 2013 (when last researched) to 2015,
when the final rule is expected to be published.
** Note that the Initial RA assumes that all Megaplexes and Multiplexes
have transitioned to digital projection systems by the time this rule
goes into effect.
In addition, the Initial RA uses a value equivalent to 3 percent of
all the captioning and audio-descriptive equipment owned by the theater
to capture any operations and maintenance costs including the
incremental increase to staff time, the costs of adding information
that captioning or audio description is available when preparing
communications regarding movie offerings, and other potential increases
in administrative costs. These costs are annual. This 3 percent is a
factor commonly used in construction and equipment maintenance. See
Regulatory Impact Analysis for the Final Revised Regulations
Implementing Titles II and III of the ADA, app. 3.I (Sept. 15, 2010),
available at http://www.ada.gov/regs2010/RIA_2010regs/ria_appendix03.htm#ai (last visited July 14, 2014).
In dollar terms, operations, maintenance, and training costs for
analog theaters are estimated on an annual basis to average from a low
of $245 for Single Screens to a high of $957 for Miniplexes; for
digital theaters' operations, maintenance and training costs are
estimated to average from a low of $96 for Single Screens to a high of
$1,156 for Megaplexes.
Question 16: The Department invites comment on the Initial RA's
methodology, cost assumptions, and cost estimates, including the
specific costs of purchasing, installing and replacing captioning and
audio description equipment, and the costs of complying with the
training and notice requirements of the rule. The Department is
particularly interested in receiving comments about the frequency with
which captioning and audio description devices need to be replaced. The
Department is also interested in estimates of how much time it would
take for theaters to acquire the equipment needed to comply with this
rule.
3. Benefits--Qualitative Discussion of Benefits
The benefits of this rule are difficult to quantify for multiple
reasons. The Department has not been able to locate robust data on the
rate at which persons with disabilities currently go to movies shown in
movie theaters. In addition, as a result of this rule, the following
number of persons will change by an unknown amount: (1) The number of
persons with disabilities who will newly go to movies, (2) the number
of persons with disabilities who will go to movies more often, (3) the
number of persons who will go to the movies as part of a larger group
that includes a
[[Page 45002]]
person with a disability, and (4) the number of persons with
disabilities who would have gone to the movies anyway but under the
rule will have a fuller and more pleasant experience. In addition, the
Department does not know precisely how many movie theaters currently
screen movies with closed captioning and audio description, or how many
people with hearing or vision disabilities currently have consistent
access to movie theaters that provide closed captioning and audio
description. Finally, the Department is not aware of any peer reviewed
academic or professional studies that monetize or quantify the societal
benefit of providing closed captioning and audio description at movie
theaters.
The individuals who will directly benefit from this rule are those
persons with hearing or vision disabilities who, as a result of this
rule, would be able for the first time to attend movies with closed
captioning or audio description in theaters across the country on a
consistent basis. Individuals who will indirectly benefit from this
rule are the family and friends of persons with hearing and vision
disabilities who would be able to share the movie-going experience more
fully with their friends or loved ones with hearing and vision
disabilities.
Data on movie-going patterns of persons who are deaf or hard of
hearing or are blind or have low vision is very limited, making
estimations of demand very difficult. However, numerous public comments
suggest that many persons who are deaf or hard of hearing or are blind
or have low vision do not go to the movies at all, or attend movies
well below the national average of 4.1 annual admissions per person,
because of the lack of auxiliary aids and services that would allow
them to understand and enjoy the movie.
Though we cannot confidently estimate the likely number of people
who would directly benefit from this proposed rule, we have reviewed
data on the number of people in the United States with hearing and
vision disabilities. The Census Bureau estimates that 3.3 percent of
the U.S. population has difficulty seeing, which translates into a
little more than eight million individuals in 2010, and a little more
than two million of those had ``severe'' difficulty seeing.\43\ At the
same time, the Census Bureau estimates that 3.1 percent of people had
difficulty hearing, which was a little more than 7.5 million
individuals in 2010, and approximately one million of them had
``severe'' difficulty hearing. Not all of these people would benefit
from this proposed rule. For example, some people's hearing or vision
disability may not be such that they would need closed captioning or
audio description. Some people with hearing or vision disabilities may
not use the equipment for a variety of reasons, including finding the
equipment uncomfortable to use. Some people with hearing or vision
disabilities may already have consistent access to theaters that screen
all their movies with closed captioning and audio description. And some
theaters may not provide closed captioning and audio description for
all their movies because it would be an undue burden under the ADA to
do so. Meanwhile, some people with hearing or vision disabilities would
not attend public screenings of movies even if theaters provided closed
captioning and audio description simple because they do not enjoy going
out to the movies--just as is the case among persons without
disabilities.\44\
---------------------------------------------------------------------------
\43\ The Census defines ``[d]ifficulty seeing'' as
``experiencing blindness or having difficulty seeing words and
letters in ordinary newsprint, even when wearing glasses or contact
lenses (if normally worn).'' U.S. Census Bureau, U.S. Department of
Commerce, P70-131, Americans with Disabilities: 2010 Household
Economic Studies at 8 (2012), available at http://www.census.gov/prod/2012pubs/p70-131.pdf (last visited July 14, 2014). It defines
``[d]ifficulty hearing'' as ``experiencing deafness or having
difficulty hearing a normal conversation, even when wearing a
hearing aid.'' Id.
\44\ In 2012, a little more than two thirds (68 percent) of the
U.S. and Canadian population over two years old went to a movie at a
movie theater at least once that year. See Motion Picture
Association of America, Theatrical Market Statistics at 11 (2012),
available at http://www.mpaa.org/wp-content/uploads/2014/03/2012-Theatrical-Market-Statistics-Report.pdf (last visited July 14,
2014).
---------------------------------------------------------------------------
In recent years, a large number of movie theaters have already
invested in equipment to provide closed captioning and audio
description. As noted earlier in this NPRM, NATO estimates that 53
percent of digital screens are already captioning and audio description
enabled. However, this does not translate into an estimate that about
half (or 53 percent) of persons who are deaf or hard of hearing or are
blind or have low vision are now benefiting from captioning or audio
description. There are multiple reasons why, even if we accept this
estimate of the current availability of captioning and audio
description, that it does not translate into direct benefits for all
those who could benefit. Such reasons include the following: (1) Only
some screens at some theaters may have closed captioning and audio
description capabilities and those may not be showing the movie the
person wants to see, (2) the theater may not be showing the desired
movie with closed captions and audio description on a convenient day or
at a convenient time, (3) the theater may be located much farther away
from where the person with a disability resides than other, less
accessible theaters, which may result in a decision not to go to a
movie theater at all, or (4) a person may live in a community that has
theaters with closed captioning and audio description capability but
may travel (for vacation, to visit relatives, for work, or other
reasons) to a community that does not have theaters that are captioning
and audio description enabled.
Not only is the estimate of the number of who might directly
benefit from the proposed rule uncertain, but the individual benefits
are not uniform because persons who are deaf or hard of hearing or are
blind or have low vision are likely to benefit from this proposed rule
in different ways and realize benefits in different amounts. The type
and amount of benefits can depend on personal circumstances and
preferences, as well as proximity to movie theaters that otherwise
would not offer captioning or audio description but for this proposed
rule. Some persons with vision and hearing disabilities have
effectively been precluded from going to movies at theaters because the
only theaters available to them did not offer closed captioning or
audio description, offered open captioning but only at inconvenient
times (such as the middle of the day during the week), or offered
captioning or audio description for only a few films and not for every
screening of those films. For these persons, the primary benefit will
be the ability to see movies when released in movie theaters along with
other movie patrons that they otherwise would not have had the
opportunity to do. They will have the value of that movie-going
experience, as well as the opportunity to discuss the film socially at
the same time as the rest of the movie-viewing public. The amount of
benefit experienced by a person with a vision or hearing disability who
previously had no access to a theater that provided closed captioning
or audio description at all its screenings will be different than the
amount experienced by a person with a hearing or vision disability who
previously had access to a theater that did consistently provide closed
captioning and audio description at its screenings. In addition, the
amount of benefit from this rule experienced by a person who cannot
follow a movie at all without the assistance of closed captioning is
likely to be greater than the amount of benefit experienced by a person
who can follow parts of a movie
[[Page 45003]]
without the assistance of closed captioning.
In addition to the direct beneficiaries of the proposed rule
discussed above, others may be indirect beneficiaries of this rule.
Family and friends of persons with these disabilities who wish to go to
the movies all together as a shared social experience will now have
greater opportunities to do so. More adults who visit elderly parents
with hearing or sight limitations would presumably be able to take
their parents on outings and enjoy a movie at a theater together,
sharing the experience as they may have in the past.
The Department received numerous comments from individuals who are
deaf or hard of hearing or blind or have low vision in response to its
2010 Advance Notice of Proposed Rulemaking on Movie Captioning and
Video Description in Movie Theaters describing how they were unable to
take part in the movie-going experience with their friends and family
because of the unavailability of captioning or audio description. Many
individuals felt that this not only affected their ability to socialize
and fully take part in family outings, but also deprived them of the
opportunity to meaningfully engage in the discourse that often
surrounds movie attendance. Parents with disabilities also complained
that they could not answer their children's questions about a movie
they saw together because the parents did not understand what had
happened in the movie.
Of perhaps greater significance to the discussion of the benefits
of this rule, however, are issues relating to fairness, equity, and
equal access, all of which are extremely difficult to monetize, and the
Department has not been able to robustly quantify and place a dollar
value on those benefits. Regardless, the Department believes the non-
quantifiable benefits justify the costs of requiring captioning and
audio description at movie theaters nationwide.
Annualized Costs and Benefits of Proposed Rule
[2015 Dollars, 15-year time horizon]
----------------------------------------------------------------------------------------------------------------
7% Discount Rate 3% Discount Rate
----------------------------------------------------------------------------------------------------------------
Baseline 1 Baseline 2 Baseline 3 Baseline 1 Baseline 2 Baseline 3
assumptions (one assumptions assumptions assumptions (one assumptions assumptions
screen per- (litigation- (NATO survey screen per- (litigation- (NATO survey
theater) based) based) theater) based) based)
----------------------------------------------------------------------------------------------------------------
Costs (million $)
----------------------------------------------------------------------------------------------------------------
Option 1--Four Year Compliance for Analog Screens
----------------------------------------------------------------------------------------------------------------
$24.8 $21.1 $19.5 $23.1 $19.7 $18.3
----------------------------------------------------------------------------------------------------------------
Option 2--Deferred Rulemaking for Analog Screens
----------------------------------------------------------------------------------------------------------------
$20.4 $16.7 $15.2 $18.9 $15.6 $14.2
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
The proposed rule would address the discriminatory effects of communication barriers at movie
theaters encountered by individuals who are deaf or hard of hearing or are blind or have low
vision. By ensuring that movie theaters screen those movies that are produced and distributed
with the necessary auxiliary aids and services--captioning and audio description--and that
theaters provide the individual devices needed to deliver these services to patrons with
these particular disabilities, this rule would afford such individuals an equal opportunity
to attend movies and follow both the audio and visual aspects of movies exhibited at movie
theaters. Although the Department is unable to monetize or quantify the benefits of this
proposed rule, it would have important benefits. For example, it would provide people with
hearing and vision disabilities better access to the movie viewing experience enjoyed by
others; it would allow such persons to attend and enjoy movies with their family members and
acquaintances; it would allow people with hearing or vision disabilities to participate in
conversations about movies with family members and acquaintances; and it would promote other
hard-to-quantify benefits recognized in Executive Order 13563 such as equity, human dignity,
and fairness.
----------------------------------------------------------------------------------------------------------------
Question 17: The Department invites comment on methods and data for
monetizing or quantifying the societal benefits of the proposed
regulation, including benefits to persons who are deaf or hard of
hearing or blind or have low vision, as well as to other members of the
movie-going public or other entities. For example, the Department
invites comments on methods and data for estimating the number of
people with vision or hearing disabilities who would benefit from this
rule, and addressing the challenges noted above in developing such an
estimate, as well as comments on methods and data that could be used to
estimate the value of the different types of benefits noted above. The
Department also invites comments on its qualitative discussion of the
benefits of this rule, which include equity, human dignity, and
fairness.
B. Regulatory Flexibility Act--Impact on Small Businesses
1. Small Business Threshold Assessment--Methodology and Summary of
Results
Consistent with the provisions of the Regulatory Flexibility Act,
the Department has also carefully considered the likely impact of the
proposed regulation on small businesses in the movie exhibition
industry. See 5 U.S.C. 605(b); Memorandum for the Heads of Executive
Departments and Agencies, Regulatory Flexibility, Small Business, and
Job Creation, 76 FR 3827 (Jan. 18, 2011). The Department has determined
that this proposed rule will have a significant economic impact on a
substantial number of small businesses.
For motion picture theaters, small businesses constitute the vast
majority of firms in the industry. The current size standard for a
small movie theater business is $35.5 million dollars in annual
revenue. In 2007, the latest year
[[Page 45004]]
for which detailed breakouts by industry and annual revenue are
available, approximately 98 percent of movie theater firms met the
standard for small business, and these firms managed approximately 53
percent of movie theater establishments.\45\ As noted earlier, the
Department is considering two options for analog screens. Option 1
would delay the compliance date for analog screens for four years after
publication of the final rule. Option 2 would defer rulemaking
altogether for analog screens until a later date. The IRFA estimates
for Option 1 the average initial capital costs per firm for firms that
display digital or analog movies. The average costs for small firms are
estimated to be between 0.7 percent to 2.1 percent of their average
annual receipts for firms with digital theaters, and between 2.0
percent to 5.7 percent of average annual receipts for firms with analog
theaters. The Department has used the IRFA to examine other ways, if
possible, to accomplish the Department's goals with fewer burdens on
small businesses. The vast majority of theaters with analog screens are
small businesses and the Department believes that both of the options
for analog screens under consideration in the proposed rule will result
in fewer burdens on small movie theater businesses with analog screens.
---------------------------------------------------------------------------
\45\ The size standard of $35.5 million can be found in U.S.
Small Business Administration, Table of Small Business Size
Standards Matched to North American Industry Classification System
Codes at 28, available at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf (last visited July 14, 2014).
---------------------------------------------------------------------------
2. Initial Regulatory Flexibility Analysis
a. Summary of Reasons for Proposed Regulation
Because the Department's rationale for proposing these requirements
for movie captioning and audio description have already been discussed
in full throughout this preamble (see, e.g., section II.C, supra), such
reasoning is merely summarized here. There are, in sum, four primary
reasons why the Department is proposing regulatory action at this time.
First, for persons who are deaf or hard of hearing or blind or have low
vision, the unavailability of captioned or audio-described movies
inhibits their ability to socialize and fully take part in social and
family outings and deprives them of the opportunity to meaningfully
participate in an important aspect of American culture. Second, a
significant--and increasing--proportion of Americans have hearing or
vision limitations that prevent them from fully and effectively
understanding movies without auxiliary aids such as captioning and
audio description. Third, technological advancements mean not only that
an ever-increasing number of movie theaters have been converted to
digital cinema systems, but also that such theaters can exhibit movies
with closed captions using commercially-available equipment at
relatively low cost. And, lastly, despite the availability of these
auxiliary aids and the general ADA obligation to provide effective
communication to patrons with disabilities, individuals with
disabilities in many parts of the United States continue to lack access
to movies with captioning and audio description. Movie theaters'
collective compliance efforts to date simply have not resulted in equal
access to movies exhibited at theaters nationwide for individuals who
are deaf or hard of hearing or blind or have low vision. The Department
is thus convinced that regulation is warranted at this time to
explicitly require movie theaters to exhibit movies with closed
captioning and audio description at all times and for all showings
whenever movies are produced, distributed, or otherwise made available
with captioning and audio description, unless to do so would result in
an undue burden or fundamental alteration. This proposed regulation is
necessary in order to achieve the goals and promise of the ADA.
b. Summary of Objectives of, and Legal Basis for, the Proposed
Regulation
The proposed rule for captioning and audio description rests on the
existing obligation of title III-covered facilities--such as movie
theaters--to ensure that persons with disabilities receive ``full and
equal enjoyment'' of their respective goods and services, including, as
needed, the provision of auxiliary aids and services for persons who
are deaf or hard of hearing or blind or have low vision. The proposed
rule states that a movie theater owner or operator is required to
exhibit movies with closed captioning and audio description for all
screenings so long as the movie has been produced by the movie studio
or distributor with captioning or audio description (unless doing so
would result in an undue burden or fundamental alteration). The
proposed rule imposes no independent obligation on movie theaters to
provide captions and audio description if the movie is not available
with these features.
The Department expects that implementation of the proposed rule
will lead to consistent levels of accessibility in movie theaters
across the country, and that patrons who are deaf or hard of hearing or
blind or have low vision will be able to use captioning or audio
description equipment to better understand movies being exhibited in
movies theaters.
The legal basis for the Department's proposed regulation--discussed
at length in other parts of this preamble (see section II.B, supra)--
rests on both title III of the ADA and its existing implementing
regulation. Title III prohibits public accommodations, which, by
statutory definition, include movie theaters, from discriminating
against any individual on the basis of disability in the full and equal
enjoyment of their goods and services. 42 U.S.C. 12182(a). Further, of
particular import to the proposed regulation, title III also requires
public accommodations to take whatever affirmative steps 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'' absent a
showing of fundamental alteration or undue burden by such public
accommodation. 42 U.S.C. 12182(b)(2)(A)(iii).
The Department's recently-revised title III regulation reiterates
these statutory requirements--which were first incorporated into the
implementing regulation in 1991--and emphasizes that the overarching
obligation of a public accommodation is to ensure effective
communication with individuals with disabilities through the provision
of necessary auxiliary aids and services. 28 CFR 36.303(c). While the
type of auxiliary aid or service necessary to ensure effective
communication depends on several factors, including the method of
communication used by the individual and the communication involved,
closed captioning and audio recordings are specifically referenced as
aids or services contemplated by the rule. 28 CFR 36.303(b)(1), (2).
Here, in the context of movie screenings at movie theaters, captioning
is the only auxiliary aid presently available that effectively
communicates the dialogue and sounds in a movie to individuals who are
deaf or whose hearing impairments otherwise preclude effective use of
assistive listening systems.\46\ Likewise,
[[Page 45005]]
for individuals who are blind or who have low vision, the only
auxiliary aid presently available that effectively communicates the
visual components of a movie is audio description.
---------------------------------------------------------------------------
\46\ Proposed Sec. 36.303(g)(2)(ii) states that ``[m]ovie
theaters may meet their obligation to provide captions to persons
with disabilities through use of a different technology, such as
open movie captioning, so long as the communication provided is as
effective as that provided to movie patrons without disabilities.''
This provision will allow theaters the option to choose newer and
more cost effective technologies to provide effective communication
to movie patrons, if such technologies are developed in the future.
---------------------------------------------------------------------------
c. Estimated Number and Type of Small Entities in the Movie Exhibition
Industry
The Regulatory Flexibility Act defines a ``small entity'' as a
small business (as defined by the Small Business Administration Size
Standards) or a small organization such as a nonprofit that is
``independently owned and operated'' and is ``not dominant in its
field.'' 5 U.S.C. 601(6); see id. 601(3) and (4); 15 U.S.C. 632. For
motion picture theaters (North American Industry Classification System
Code 512131), small businesses constitute the vast majority of firms in
the industry. The current size standard for a small movie theater
business is $35.5 million dollars in annual revenue.\47\ In 2007, the
latest year for which detailed breakouts by industry and annual revenue
are available, approximately 98 percent of movie theater firms met the
standard for small business, and these firms managed approximately 53
percent of movie theater establishments. Data from the 2007 Economic
Census, prepared for the Small Business Administration (SBA) and
downloaded from its Web site, report that 2,004 movie theater firms
operated 4,801 establishments that year; of those 2,004 movie theater
firms, approximately 1,965 would meet the current SBA standard for a
small business.\48\ These 1,965 firms operated 2,566 establishments.
---------------------------------------------------------------------------
\47\ The size standard of $35.5 million can be found in U.S.
Small Business Administration, Table of Small Business Size
Standards Matched to North American Industry Classification System
Codes at 28, available at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf (last visited July 14, 2014).
\48\ Data taken from Excel file ``static--us'' downloaded from
SBA Web site for ``Firm Size Data,'' available at http://www.sba.gov/advocacy/849/12162 (last visited July 14, 2014).
Calculations were also performed using a dataset from the Census
Bureau's American FactFinder. See http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml (last visited July 14, 2014). Both
datasets are derived from the 2007 Economic Census, but differ
slightly.
Distribution of Movie Theater Firms, by Revenue, 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Firms as % of Cumulative total Establishments % Cumulative total
Number of firms establishments total (%) of total (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Firms................................. 2,004 4,801 100 ................ 100 ................
Firms with sales/receipts/revenue less than 333 333 16.6 16.6 6.9 6.9
$100,000...................................
Firms with sales/receipts/revenue of 703 712 35.1 51.7 14.8 21.8
$100,000 to $499,999.......................
Firms with sales/receipts/revenue of 318 339 15.9 67.6 7.1 28.8
$500,000 to $999,999.......................
Firms with sales/receipts/revenue of 386 472 19.3 86.8 9.8 38.7
$1,000,000 to $2,499,999...................
Firms with sales/receipts/revenue of 109 197 5.4 92.3 4.1 42.8
$2,500,000 to $4,999,999...................
Firms with sales/receipts/revenue of 40 99 2.0 94.3 2.1 44.8
$5,000,000 to $7,499,999...................
Firms with sales/receipts/revenue of 24 60 1.2 95.5 1.2 46.1
$7,500,000 to $9,999,999...................
Firms with sales/receipts/revenue of 23 106 1.1 96.6 2.2 48.3
$10,000,000 to $14,999,999.................
Firms with sales/receipts/revenue of 13 105 0.6 97.3 2.2 50.5
$15,000,000 to $19,999,999.................
Firms with sales/receipts/revenue of 6 50 0.3 97.6 1.0 51.5
$20,000,000 to $24,999,999.................
Firms with sales/receipts/revenue of 8 79 0.4 98.0 1.6 53.2
$25,000,000 to $29,999,999.................
Firms with sales/receipts/revenue of 2 14 0.1 98.1 0.3 53.4
$30,000,000 to $34,999,999.................
Firms with sales/receipts/revenue of 39 2,235 1.9 100.0 46.6 100.0
$35,000,000+*..............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Firms with sale/receipts/revenue of higher than $35,500,000 are not considered small businesses under SBA size standards. The SBA database presents
data for these firms in six categories, which have been consolidated into one for this table.
Source: Number of firms and number of establishments from Small Business Administration, Statistics of U.S. Businesses, Business Dynamics Statistics,
Business Employment Dynamics, and Nonemployer Statistics. http://www.sba.gov/advocacy/849/12162 (last visited July 14, 2014). Downloaded from SBA Web
site December 2013.
[[Page 45006]]
As part of a larger movement within the film producing industry,
nearly all (if not all) film production is moving to digital, and the
vast majority of, if not nearly all, movie theaters likely will convert
to the digital format. Because of the cost of transitioning to digital,
large firms are more likely to have already converted to digital, or
plan to do so soon. For these same reasons, analog theaters are more
likely to be small businesses. At the same time, per screen costs of
captioning equipment are significantly higher for analog theaters than
for digital theaters.
While the first movie theaters were facilities with a single screen
and auditorium, in recent years larger facilities are being built, some
with a dozen or more auditoriums and screens each capable of showing
movies at the same time. Yet, at this time, many single screen theaters
remain open. The Initial RA prepared detailed costs estimates, over
time, using four theater size categories based on data presented by the
MPAA. To estimate the costs to small businesses, this IRFA examined the
percentages of small businesses and the distribution of theaters and
screens by theater size type, and made estimations regarding the likely
prevalence of small businesses among each size type (see the table
below). No Megaplexes are expected to be small businesses.
Theaters by Type and Estimated Prevalence of Small Businesses
----------------------------------------------------------------------------------------------------------------
Projected
number of Annual growth
Theater type theaters in rate (percent) Likelihood of small businesses
2015
----------------------------------------------------------------------------------------------------------------
Megaplex--16+ screens.............. 718 2.0 No small businesses.
Multiplex--8-15 screens............ 1,893 2.0 Some small businesses.
Miniplex--2-7 screens.............. 1,500 -4.2 Many small businesses.
Single Screen--1 screen............ 996 -4.2 Nearly all small businesses.
----------------------------------------------------------------------------
Total.......................... 5,107
----------------------------------------------------------------------------------------------------------------
Source: Estimated using data for 2008-2012 as in MPAA, Theatrical Market Statistics (2012), available at http://www.mpaa.org/wp-content/uploads/2014/03/2012-Theatrical-Market-Statistics-Report.pdf (last visited July 14,
2014).
Estimates of Digital and Analog Theaters and Screens in 2015
----------------------------------------------------------------------------------------------------------------
Number of Number of Number of
digital digital analog Number of
theaters screens theaters analog screens
----------------------------------------------------------------------------------------------------------------
Megaplex--16+ screens........................... 718 12,924 0 0
Multiplex--8-15 screens......................... 1,893 20,823 0 0
Miniplex--2-7 screens........................... 452 1,807 1,048 4,192
Single Screen--1 screen......................... 300 300 696 696
---------------------------------------------------------------
Total....................................... 3,363 35,854 1,744 4,888
----------------------------------------------------------------------------------------------------------------
The proposed rule does not apply different requirements to firms by
size. It does, however, seek public comment on two options for theaters
with analog screens. Option 1 would delay the compliance date for
analog screens for four years after publication of the final rule.
Option 2 would defer rulemaking altogether for analog screens until a
later date. As stated previously, the vast majority of theaters with
analog screens are small businesses, and the Department believes that
both of the options for analog screens under consideration in the
proposed rule will result in fewer burdens on small movie theater
businesses with analog screens. While this small business assessment
necessarily draws on the Initial RA's ``main'' cost model, it also
incorporates data specific to small businesses. As required by the
Regulatory Flexibility Act,\49\ the cost model underlying the Initial
RA's small business assessment uses SBA-defined small business size
standards.\50\ A dataset downloaded from SBA's Web site presents data
for 18 different revenue size categories (12 of those categories for
firms with estimated annual receipts of less than the $35.5 million
size standard for a small firm in this industry). These 18 revenue size
categories were consolidated into four categories, with the following
three meeting the SBA size standard for a small business: Firms with
sales/receipts/revenue of (a) $499,999 and under; (b) $500,000-
$4,999,999; and (c) $5,000,000-$35,500,000. One of the 18 revenue
categories in the SBA dataset (firms with sales/receipts/revenue of
$30,000,000-$34,999,999) had only two firms included. To prevent the
release of proprietary financial information, the SBA dataset only
includes the number of firms and their establishments in this category;
it does not include any information on sales, receipts or revenues.
Therefore, while the estimate of the total number of small businesses
that could be impacted by the proposed rule includes these two firms,
the calculations for costs of compliance by revenue category do not.
---------------------------------------------------------------------------
\49\ See 5 U.S.C. 601 et seq.
\50\ The Small Business Size Regulations can be found at 13 CFR
part 121.
---------------------------------------------------------------------------
Question 18a: Numbers of Small Businesses
The Department is interested in receiving comments and data on all
of the assumptions regarding the numbers of small entities impacted by
this regulation, particularly on the numbers of small entities that
have digital or analog screens (or both), the number of screens in each
theater, the type of movies shown at these theatres (first-run
commercial films, independent films, etc.), and the type of captioning
equipment and devices these theatres already have. The Department is
particularly interested in data regarding small analog theatres, such
as the availability of analog film prints, the availability of movies
with captions and audio description (in both analog and digital
formats), the rate at which small theatres are converting to digital
cinema, and the economic viability of
[[Page 45007]]
both small analog and small digital theatres. The Department would also
be interested in data on the number of analog and digital theaters by
theater type and annual receipts. Finally, the Department is interested
in whether and to what extent small analog and small digital theaters
are participating in certain cost-sharing programs to help convert
theaters to digital technology, such as a virtual print fee (VPF)
program. If they are not participating in such cost-sharing programs,
why not? (See Question 1 for additional questions about analog
theatres).
Question 18b: Numbers of Small Nonprofit Entities
The Department seeks comment and data on small nonprofits that
operate theatres that would be covered by this proposed rule,
particularly on the number of small entities in this category, and the
potential costs and economic impacts of the proposed rule. Should the
Department adopt a different compliance schedule for these theaters?
d. Estimated Cost of Compliance for Small Entities \51\
---------------------------------------------------------------------------
\51\ This estimate of costs for small businesses assumes that
the Department would proceed under Option 1 (four-year compliance
date for analog screens). If the Department decides to adopt Option
2 for the final rule and defer application of the requirements of
the rule for analog screens, the costs for small businesses will be
significantly less because the rule will only apply to small
business digital theaters.
---------------------------------------------------------------------------
The SBA/U.S. Economic Census data was incorporated into the Initial
RA's estimation for impacts on small businesses. First, receipt data
was used to develop assumptions regarding the distribution of ``small
businesses'' among the four theater size types. The assignment of
theater size type is critical to the estimation because it determines
the number of screens and, therefore, total costs per establishment.
Using the Initial RA cost model estimation of the number of
theaters by size type in 2015, the IRFA distributed the number of
establishments of small business movie theater firms beginning with all
Single Screen establishments and then applied the remaining portion to
Miniplex and Multiplex establishments.
2015 Distribution of Theaters
[Model projection]
------------------------------------------------------------------------
Number of
Theater size type theaters Percentage
------------------------------------------------------------------------
Megaplex................................ 718 14.1
Multiplex............................... 1,893 37.1
Miniplex................................ 1,500 29.4
Single Screen........................... 996 19.5
-------------------------------
Total............................... 5,107 100
------------------------------------------------------------------------
For this distribution, Single Screen theaters made up 89.6 percent
of establishments in the smallest revenue category. The remaining
establishments in this category were assumed to be Miniplexes. All of
the establishments with receipts between $500,000 and $4,999,999 were
assumed to be Miniplex theaters. After allocating those theaters, the
remaining Miniplex theaters estimated for 2015 were distributed to the
largest revenue category. Because there were more theaters in the
largest revenue category than the remaining estimated Miniplex
theaters, the other theaters in this revenue category were assumed to
be all Multiplexes (approximately 41 percent). These distributions are
summarized below. These distributions were then used to estimate the
average cost per firm in each of the three consolidated small business
revenue categories.
---------------------------------------------------------------------------
\52\ The distribution is slightly different using the dataset
from American FactFinder: For firms with revenue $499,999 and under,
100 percent were assumed to be Single Screen; for those with revenue
$500,000-$4,999,999, 7 percent were Single Screens and 93 percent
Miniplexes; for those with revenue $25,000,000 to $35,500,000, 79
percent were Miniplexes and 21 percent Multiplexes.
Distribution of Theater Size Type for Consolidated Revenue Groups
------------------------------------------------------------------------
Consolidated revenue group \52\ Theater size type
------------------------------------------------------------------------
$499,999 and under........................ 89.6% Single Screen, 10.4%
Miniplexes.
$500,000-$4,999,999....................... 100% Miniplexes.
$5,000,000 to $35,500,000................. 58.8% Miniplexes; 41.2%
Multiplexes.
------------------------------------------------------------------------
Theater Equipment Requirements Based on Scoping and Theater Size
----------------------------------------------------------------------------------------------------------------
Megaplex Multiplex Miniplex
Equipment Avg: 18 Avg: 11 Avg: 4 Single
screens screens screens screen
----------------------------------------------------------------------------------------------------------------
Captioning Hardware and Devices:
Captioning Hardware Needed.............................. 18 11 4 1
Captioning Devices Needed............................... 34 28 12 4
Descriptive Listening Hardware and Devices:
Audio Hardware Needed................................... 18 11 4 1
Audio Devices Needed.................................... 18 11 4 2
----------------------------------------------------------------------------------------------------------------
Using the average costs per theater developed in the Initial RA, we
were able to calculate the average costs per theater and per firm for
the three consolidated revenue groups ($499,999 and under; $500,000-
$4,999,999; and $5,000,000-$35,500,000). Costs were first calculated on
a per-establishment basis, and then using the average number of
establishments per firm for each of the three consolidated revenue
groups, translated into an average per
[[Page 45008]]
firm cost. This cost was then compared to the average receipts per firm
for that consolidated revenue group.
The resulting ratio of average costs to average receipts ranges
from a low of 0.7 percent (for digital firms with revenues of
$5,000,000 to $35,500,000) to a high of 5.7 percent (for analog firms
with revenues of $499,999 or less). The impact on firms with digital
projection is comparatively smaller than the impact on firms
maintaining analog projection. The ratio of average costs/receipts is
estimated to range from 0.7 percent to 2.1 percent for all movie
theater companies using digital systems. In contrast, the same ratio
ranges from 2.0 percent to 5.7 percent for all firms using analog
projection.
Estimation of Costs for Small Movie Theaters, by Firm Size, Based on 2015 Size/Revenue Distribution
--------------------------------------------------------------------------------------------------------------------------------------------------------
Firms $499,999 and Firms $5,000,000 to
Cost under Firms $500,000 to $4,999,999 $35,500,000 **
--------------------------------------------------------------------------------------------------------------------------------------------------------
Digital
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average receipts per firm *.................................... $188,384 to $201,973 $1,471,549 to $1,484,995 $9,705,377 to $12,437,259
Average cost per theater *..................................... $3,198 to $3,966 $10,063 to $10,586 $13,984 to $17,281
Average cost per firm *........................................ $3,233 to $3,992 $12, 539 to $14,454 $81,176 to $103,309
Ratio of average cost/receipts *............................... 1.6% to 2.1% 0.8% to 1.0% 0.7% to 1.1%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Analog
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average receipts per firm *.................................... $188,384 to $201,973 $1,471,549 to $1,484,995 $9,705,377 to $12,437,259
Average cost per theater *..................................... $8,172 to $10,638 $30,204 to $31,884 $43,449 to $54,673
Average cost per firm *........................................ $8,263 to $10,706 $37,638 to $43,534 $252,224 to $326,844
Ratio of average cost/receipts *............................... 4.1% to 5.7% 2.5% to 3.0% 2.0% to 3.4%
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The ranges represent the figures calculated using the two datasets created from data from the 2007 Economic Census, which breaks out data by revenue
category (downloaded from SBA's Web site (http://www.sba.gov) and the Census Bureau's American FactFinder Web site (http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml), respectively), but which differ slightly. Note that the composition of theater size types also varies per revenue
group depending on the dataset used, and therefore the average cost per theater varies as well.
** Note that the calculations for this category using the dataset downloaded from the SBA Web site do not include any data for the two firms in the
revenue category for firms with sales/receipts/revenue of $30,000,000-$34,999,999 because no data on annual receipts for those two firms was included.
The dataset downloaded from American FactFinder had different revenue categories from those downloaded from SBA's Web site. To estimate those firms
meeting the SBA size standards using the dataset downloaded from the American FactFinder Web site, all the firms with revenues less than $25 million,
and half of those with revenues from $25,000,000 to $49,999,999 were counted as a way of estimating the number of entities that fall under $35.5
million within that revenue category.
Average capital costs per theater type were estimated by
multiplying the number of screens by the required analog or digital
equipment and the scoped number of devices. These average costs are
presented below.
Estimated Average Receipts and Costs per Firm, Digital and Analog
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Digital Analog
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Ratio of Ratio of
Average Average cost Average cost average cost/ Average Average cost Average cost average cost/
Size of firms ($) receipts per per theater per firm receipts receipts per per theater per firm receipts
firm (percent) firm (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Less than $100,000.............................................. $52,264 $3,198 $3,198 6.1 $52,264 $8,172 $8,172 15.6
$100,000-499,000................................................ 252,862 4,326 4,381 1.7 252,862 11,791 11,942 4.7
$500,000-999,000................................................ 711,456 10,586 11,285 1.6 711,456 31,884 33,990 4.8
$1,000,000-2,499,000............................................ 1,581,824 10,586 12,945 0.8 1,581,824 31,884 38,988 2.5
$2,500,000-4,999,000............................................ 3,298,550 10,586 19,132 0.6 3,298,550 31,884 57,625 1.7
$5,000,000-7,499,000............................................ 5,888,575 10,586 26,200 0.4 5,888,575 31,884 78,913 1.3
$7,500,000-9,999,000............................................ 7,954,042 10,586 26,465 0.3 7,954,042 31,884 79,710 1.0
$10,000,000-14,999,000.......................................... 9,927,478 10,586 48,788 0.5 9,927,478 31,884 146,944 1.5
$15,000,000-19,999,000.......................................... 14,045,000 22,436 181,213 1.3 14,045,000 72,219 583,306 4.2
$20,000,000-24,999,000.......................................... 16,288,167 26,839 223,658 1.4 16,288,167 87,206 726,717 4.5
$25,000,000-29,999,000.......................................... 21,415,875 26,839 265,035 1.2 21,415,875 87,206 861,159 4.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Based on data from Small Business Administration, Statistics of U.S. Businesses, Business Dynamics Statistics, Business Employment Dynamics, and Nonemployer Statistics, available at http://www.sba.gov/advocacy/849/12162 (data downloaded Dec. 2013). See Table 38 in the Initial Regulatory Assessment and Initial Regulatory Flexibility Analysis (available at http://www.ada.gov)
for more information on how the figures in this table were calculated.
Digital Captioning Equipment Unit Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Digital audio
Digital captioning Digital captioning Digital audio description individual
Technology hardware cost (one individual device costs description hardware device costs (multiple
needed per screen) (multiple per screen/ cost (one needed per per screen/ theater may
theater may be needed) screen) be needed)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Doremi's CaptiView.................................. $690 $430 $625 $125
USL................................................. 1,057 479 0 69
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 45009]]
Analog Captioning Equipment Unit Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Analog captioning device Analog audio description
Analog captioning costs (multiple per Analog audio description device costs (multiple
Technology hardware cost (one per screen/ theater may be hardware cost (one per per screen/ theater may
screen needed) needed) screen needed) be needed)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rear Window \53\................................ $7,113 $95 $467 $106
--------------------------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\53\ The hardware required for Rear Window technology includes a
LED display necessary to show captions in each analog projection
auditorium, a Datasat/DTS XD20 interface, and individual Reflectors
that are used by patrons. The cost for the LED display ranges from
$2,850 to $3,975, depending on whether it is a 2- or 3-line display
(a 2-line display is recommended); the LED display cost used in
Regulatory Analysis is an average of the cost of the two sizes of
display. The Datasat/DTS XD20 interface, which is an interface
connecting the Rear Window LED display to the theater system, costs
about $4,200 per auditorium. The only device for individual use is
the Rear Window Reflector, which fits into cup holders and costs $95
each. (Note: all these prices are taken from the ``Rear
Window[supreg] Captioning (RWC) Components Cost Overview'' released
by Median Access Group at WGBH August 2010, and adjusted for the
fact that licensing fees are no longer required.) For audio
description, the Williams Sound Audio System is compatible with
analog captioning systems and was used to estimate video description
equipment costs for analog systems. The Williams Sound Audio System
requires an audio transmitter for each auditorium, which costs $467.
Patrons may use a receiver and a headset, which cost $88 and $18,
respectively.
Average per Establishment Costs of Purchasing Digital Closed Captioning and Audio Description Equipment
----------------------------------------------------------------------------------------------------------------
Average
Cost per digital theater Doremi USL digital cost
----------------------------------------------------------------------------------------------------------------
Megaplex *...................................................... $40,540 $36,554 $38,547
Multiplex....................................................... 27,880 25,798 26,839
Miniplex........................................................ 10,920 10,252 10,586
Single Screen................................................... 3,285 3,111 3,198
----------------------------------------------------------------------------------------------------------------
* Note that the Initial RA assumes that no small business firm has Megaplexes; this data is presented for
informational purposes only, to help illustrate the differences in average costs per digital theaters by type.
Average per Establishment Costs of Purchasing Analog Closed Captioning
and Audio Description Equipment
------------------------------------------------------------------------
Cost per analog theater \54\ Rear window
------------------------------------------------------------------------
Megaplex................................................ **
Multiplex............................................... **
Miniplex................................................ $31,884
Single Screen........................................... $8,172
------------------------------------------------------------------------
** Note that the Initial RA assumes that all Megaplexes and Multiplexes
have transitioned to digital projection systems by the time this rule
goes into effect.
Question 19: Small Business Compliance Costs
The Department seeks comment and data on the small business
compliance cost estimates, including the costs associated with
procuring and maintaining digital and analog equipment, the
availability of this equipment, estimates of the average cost of this
proposed rule by establishment and firm, and the ratio of average costs
of this proposed rule to firm receipts. The Department is interested in
comment on whether small theaters will incur higher prices in the
purchase and installation of this equipment due to the lower volume
needed. The Department also seeks public comment on its proposed
scoping for individual captioning devices. Should the Department
consider approaching scoping differently for small theatres? How so and
why? (Please see Question 10 for additional questions about scoping for
captioning devices). How many devices capable of transmitting audio
description to individuals should each movie theater have on hand for
use by patrons who are blind or have low vision? (Please see Question
12 for additional questions about scoping for audio description). Do
small theaters face any additional costs not already included in these
cost estimates? The Department seeks comment and data on what, if any,
particular requirement of this rule would cause a small business to
claim that it is an undue burden to comply with the requirements of
this proposed rule.
---------------------------------------------------------------------------
\54\ Note that in the main Initial RA, all of the Megaplexes and
Multiplexes are assumed to have converted to digital projection.
This assumption was made because NATO had estimated at a
Congressional hearing in May 2013 that 88 percent of screens in the
nation now have digital projection, making it very unlikely that any
large theater complex remains analog. If any Megaplexes and/or
Multiplexes stayed with analog projection, their average costs for
purchasing analog closed captioning and audio description equipment
would be $141,578 and $87,206, respectively.
---------------------------------------------------------------------------
e. Projected Reporting, Record-Keeping Requirements and Other
Compliance Requirements of the Rule
As noted below in section VI.F, discussing the Paperwork Reduction
Act, the proposed regulation imposes no reporting or record-keeping
requirements on any movie theaters regardless of size. The Department
acknowledges that there may be other compliance-related administrative
costs incurred by all movie theaters--including small entities--as a
result of the proposed regulation, including such tasks as having
theater staff keep track of individual captioning devices or audio
description headsets. However, such compliance costs are expected to be
neither disproportionately borne by small entities nor significant. The
proposed scoping requirements for individual captioning devices are
directly proportional to total seat count or screen. The proposed
scoping for individual audio-description devices is minimal and only
applies to those theaters that do not currently have assistive
listening receivers with at least two channels. Thus, smaller movie
theaters (such as Miniplexes and Single Screen Theaters) necessarily
would have relatively few pieces of required captioning and audio
description equipment to inventory and maintain. Moreover, any costs
related to such administrative tasks are expected to be minimal. The
Department has also asked whether it should take a different approach
to scoping for individual captioning devices for small theaters.
The rule will require that at least one person at the theater be
able to provide
[[Page 45010]]
patrons with captioning and audio description and direct patrons on the
equipment's use. This requirement can most easily be met by expanding
the training for those persons who will already be required to be on-
site to manage or oversee overall operations and the start of the
exhibition of the movies. In addition, theaters already provide staff
to distribute assistive listening devices when requested by patrons and
to direct patrons on how to use those devices. It is reasonable to
assume that the same staff member would provide assistance with
captioning and audio description devices as well. A separate staff with
ADA expertise is not required. The costs of this part of the rule will
include any additional training time and any time spent providing and
collecting devices and demonstrating their use, if needed.
The Initial RA uses a value equivalent to 3 percent of all the
captioning and audio description equipment owned by the theater to
capture the afore-discussed minimal operations and maintenance cost and
incremental increase to staff time; costs of adding information that
captioning or audio description is available when preparing
communications regarding movie offerings, and other potential increases
in administrative costs. This 3 percent is a factor commonly used in
construction and equipment maintenance. See, e.g., Final Regulatory
Impact Analysis of the Proposed Revised Regulations Implementing Titles
II and III of the ADA, Including Revised ADA Standards for Accessible
Design: Supplemental Results (Sept. 15, 2010), available at http://www.ada.gov/regs2010/RIA_2010regs/ria_supp.htm (last visited July 14,
2014).\55\ The Department expects that annual operations, maintenance,
and training costs for analog theaters are estimated to average from a
low of $245 for Single Screens to a high of $957 for Miniplexes; for
digital theaters' operations, maintenance and training costs are
estimated to average from a low of $96 for Single Screens to a high of
$1,156 for Megaplexes.\56\
---------------------------------------------------------------------------
\55\ See id. app. I: Operations and Maintenance, for more
information on standard operations and maintenance costs, and the
sources from which those were derived.
\56\ See the Initial RA, Section 7 for the Sensitivity Analysis
with two alternative rates--5 percent and 8 percent--for calculating
operations and maintenance costs.
---------------------------------------------------------------------------
Question 20: Other Costs for Small Businesses
The Department invites comment on the estimation of operation and
maintenance costs for this proposed rule, which include administrative
costs to keep track of equipment, staff training and availability (see
Question 15 for additional questions related to staff training),
maintenance and replacement of captioning and audio description
hardware and individual devices, and the notice requirement (see
Questions 14 and 16 for additional questions about the notice
requirement). The Department is particularly interested in receiving
comments about the costs and frequency of replacing captioning and
audio description equipment. Are there other compliance costs, such as
regulatory familiarization, that should be included in this small
business analysis?
f. Duplicative or Overlapping Federal Rules
The Department is not aware of any existing federal regulations
that impose duplicative, overlapping, or conflicting requirements
relative to the requirements in the proposed movie captioning and audio
description regulation.
g. Discussion of Significant Regulatory Alternatives That Minimize
Impact on Small Entities
In crafting this proposed regulation for movie captioning and audio
description, the Department has taken care to propose requirements that
temper effectiveness with cost considerations. That is, while the
Department believes this regulatory action is required to support and
enforce the ADA's effective communication mandate, the proposed
requirements also are intended to regulate in a manner that is cost-
efficient, easily understood by the movie exhibition industry, and--to
the greatest extent possible--minimizes the economic impact on small
entities.
As detailed earlier in this preamble (see section IV, Section-by-
Section Analysis, ``Movie Captioning--Coverage, supra), the Department
is proposing that all movie theaters covered by the rule, regardless of
size, location, or type of movies exhibited, must exhibit captioned or
audio-described movies (when available) for all screenings absent a
showing of undue burden. Only such an across-the-board requirement
fulfills the effective communication objective by permitting
individuals who are deaf or hard of hearing or blind or have low vision
disabilities to fully and equally participate in one of the most
quintessential forms of American entertainment--going out to the
movies--in the same manner as the rest of the movie going public.
Yet, while the proposed regulation imposes captioning and audio
description requirements on all movie theaters irrespective of size,
there are nonetheless several provisions that serve to ameliorate their
relative economic impact on small entities. For example, the
Department's regulatory proposal:
Proposes two alternatives for theaters with analog
screens: A four-year delayed compliance date (Option 1), or deferral of
the requirements of this proposed rule for analog screens (Option 2);
Establishes performance (rather than design) standards
that enable small entities (as well as other movie theaters) to meet
their captioning requirements in a flexible and cost-effective manner
(Sec. 36.303(g)(2)(i));
Specifies scoping requirements for individual captioning
devices that are proportional to a theater's total seat count (i.e.,
fewer seats means fewer devices are required), thereby ensuring that
small theaters have reduced device costs (Sec. 36.303(g)(2)(iii)(A),
(g)(3)(ii));
Specifies a minimal number of individual audio-description
listening devices that must be provided by a theater and permits
``overlap'' of scoping for audio-description listening devices and
assistive listening headsets so long as such headsets are capable of
receiving both types of audio signals (Sec. 36.303(g)(3)(ii)).
Moreover, while not expressly referenced in the text of proposed
Sec. 36.303(g), the Department has reiterated--at several points in
this preamble--that those movie theaters that find that it is a
significant difficulty or expense to comply with the requirements of
this regulation will be able to assert the ``undue burden defense''
(see section II.B.2 supra, for an explanation of the factors that
should be considered in asserting the defense). Throughout the last two
decades, even without this regulation, movie theaters have been able to
assert this defense when facing litigation alleging failure to provide
effective communication to patrons with disabilities. Thus, while a
large movie theater trade association suggested that many--if not
most--small theaters would be forced out of business unless exempted
entirely from any captioning requirements, the Department believes that
such dire predictions are misplaced.\57\ The
[[Page 45011]]
``undue burden'' defense serves as a limit should there be regulatory
compliance costs that under particular circumstances would impose
significant difficulty or expense. Where the costs of screening closed-
captioned or audio-described movies in compliance with the proposed
regulation are sufficiently burdensome as to place a small theater at
financial risk, then such costs would--by definition--pose an ``undue
burden.'' Such a movie theater would then be entitled to provide
alternate compliance measures for auxiliary aids or services (if any)
that were affordable in light of its particular circumstances.
---------------------------------------------------------------------------
\57\ While the number of public comments received in response to
the 2010 ANPRM was extraordinary, there were relatively few comments
that specifically addressed the impact of captioning requirements on
small theaters. No comments were received from representatives of
independent movie theaters or from individual small (indoor) movie
theater operators other than representatives of drive-in theaters
(which are not covered by this rule). The referenced comment from
the movie theater trade association is the only comment by
representatives of the theatrical or movie exhibition industry to
address the potential impact of the captioning regulation on small
theaters affected by this rule.
---------------------------------------------------------------------------
Taken together, the foregoing considerations demonstrate the
Department's sensitivity to the potential economic (cost) impact of the
proposed regulation on small theaters (such as Miniplexes and Single
Screen Theaters) and--to the extent consistent with the ADA--mitigate
potential compliance costs.
In addition, the Department considered multiple alternatives for
this rulemaking with a focus on choosing the alternative that best
balances the requirements of the ADA with the potential costs to small
business movie theaters. Among those alternatives weighed most heavily
for the proposed rule are the two discussed below.
Requiring only 50 percent of screens to have closed captioning and
audio description. The Department considered a proposal limiting the
requirement for closed captioning and audio description to only 50
percent of movie screens. This alternative was discussed in the July
26, 2010, ANPRM. The ADA requires places of public accommodation ``to
ensure that no individual with a disability is excluded, denied
services, segregated or otherwise treated differently than other
individuals 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). After considering
public comment and additional research, the Department has determined
that it is not possible for movie theaters to meet their ADA obligation
to provide equally effective communication to patrons with hearing and
vision disabilities unless they have the capacity to show the movies
that are available with captions and audio description at all showings
when those same movies are available to patrons without disabilities;
to only require access to 50 percent of movies being shown would be
inappropriate. Unless a movie theater showed every movie on two screens
in comparable auditoriums at all times--one screen showing the
captioned and audio-described version and the other showing the same
movie without captions and audio description--the Department is
concerned that a 50 percent requirement would regularly lead to the
circumstance where a movie theater would have a captioned or audio
described movie, but would have no screen available on which to show it
because all the appropriately equipped auditoriums were otherwise in
use.
The Department considered whether it would be possible for movie
theaters to meet their effective communication obligations by switching
movies into auditoriums equipped to show movies with closed captions
and audio description when a patron with a hearing or vision disability
needed those accessibility features. But, the Department's research
indicated that the business agreements regarding movie exhibitions
limit this type of flexibility. Movie theaters regularly negotiate with
film distributors regarding which auditoriums in a theater with more
than one screen will show which films. Generally, if a film is expected
to be very popular, it will open in the largest auditorium or in
several auditoriums within the same complex. As the popularity
decreases, the film will be moved from larger auditoriums to smaller
auditoriums and from multiple auditoriums to a single auditorium. The
timing of such moves will vary from theater to theater and from film to
film.
Those theaters that do have the flexibility to switch auditoriums
upon request to provide closed captioning or audio description would
have other added costs associated with changing the auditoriums for
showings. Costs could include the additional employee time and
resources needed to physically switch the movie from one auditorium to
another, as well as potential lost ticket sales if a more popular movie
is displaced into a much smaller theater that sells out faster.
Additionally, switching auditoriums to allow use of captioning or audio
description equipment may result in auditorium changes for other
patrons after they had purchased tickets and are possibly already
seated. This would result in an inconvenience to many patrons,
including the possibility that the switch would result in a different
viewing experience than expected when purchasing a ticket due to
differing auditorium sizes and comfort levels.
The Department also believes that this alternative would carry a
much higher litigation risk. Patrons with disabilities would not have
any way of assessing whether the failure to show a particular movie
with closed captions and audio description was because the theater was
failing to comply with its obligations under the regulation to provide
these auxiliary aids and services or because that particular movie was
not available with closed captions or audio description. Whether a
theater had the capacity to move a film to accommodate a patron with a
disability and should have done so upon request, or whether the theater
did everything to meet its obligations under the regulation, would
become murky and create confusion that could result in an increased
risk of litigation.
Finally, this alternative favors larger movie theaters and
disadvantages single screen theaters, which are more likely to be small
businesses. Under a 50 percent requirement, at least one auditorium at
every theater must have closed captioning and audio description
capabilities. Thus, single screen theaters would see no reduction in
costs under this alternative.
As such, the Department has rejected this alternative due to
concerns that requiring only 50 percent of screens to have closed
captioning and audio description capabilities would not comply with the
ADA itself, that this approach would require substantial changes to the
movie theater business model, that the initial perceptions that this
approach would have substantially lower total costs are actually
misleading, and that this approach would not address in any meaningful
way the concerns for small business single screen theaters.
Compliance by analog theaters required in two years. The Department
considered providing theaters with analog screens two years after the
rule's publication date to become compliant, as opposed to the six-
month compliance date provided for digital screens. This delay was
considered for analog movie screens because such a large number of
theaters are in the midst of transitioning to digital cinema, that
additional time might be necessary. In addition, the delayed compliance
date would have allowed small theaters that remain analog more time to
obtain the necessary resources to purchase the equipment to provide
closed captioning and audio description. The 15-year,
[[Page 45012]]
discounted costs for this alternative range from $189.4 million to
$237.5 million under a 7 percent discount rate, which are higher than
the total costs for the proposed rule.
Upon review of the higher cost burden for firms still using analog
projection, and with consultation from the Small Business
Administration's Office of Advocacy, and as previously discussed, the
Department is considering two alternative options for theaters with
analog screens: (1) A four-year compliance date for theaters with
analog screens (Option 1); or (2) deferring application of the
requirements to analog screens until a later date (Option 2). In making
the decision, the Department also took into consideration the fact that
those movie theaters that have not yet made the transition to digital
systems are more likely to be small businesses than those movie
theaters that are already exhibiting in digital format. The Department
also considered publicly available information that movie studios are
in the process of phasing out analog film, and it is anticipated that
by 2015, studios will not be producing analog prints of first run
films. On the basis of this information, it appears likely that movie
theaters that rely on first-run films for revenue will either convert
to digital or go out of business before the four-year compliance date
(sometime in 2018 or 2019), and thus there will actually be many fewer
analog theaters that will need to comply with the rule if the
Department proceeds under Option 1. If the Department proceeds under
Option 2, there will be fewer small business theaters affected by the
rule, because it will only apply to small business digital theaters.
Question 21a: Significant Alternatives for Small Analog Theaters Under
the RFA
Is the four-year compliance date in Option 1 reasonable for those
screens that will remain analog? If not, why not? Should the Department
adopt Option 2 and defer requiring theaters with analog screens to
comply with the specific requirements of this rule? (See Questions 6
and 8).
Question 21b: Significant Alternatives for Small Digital Theaters Under
the RFA
Is the proposed six-month compliance date for digital screens a
reasonable timeframe to comply with the rule? Is six months enough time
to order, install, and gain familiarity with the necessary equipment;
train staff so that they can meaningfully assist patrons; and meet the
notice requirement of the proposed rule? If the proposed six-month date
is not reasonable, what should the compliance date be and why? (See
Question 7).
Question 21c: Other Significant Alternatives for Small Theaters Under
the RFA
The Department invites comment on ways to tailor this regulation to
reduce unnecessary regulatory burdens on small businesses.\58\ For
example: Should the Department have a different compliance schedule for
digital or analog theaters that have annual receipts below a certain
threshold? If so, what should the financial threshold be? (See Question
6). The Department is also interested in receiving comment and data on
the use of the undue burden defense by small businesses.
---------------------------------------------------------------------------
\58\ See Memorandum for the Heads of Executive Departments and
Agencies, Regulatory Flexibility, Small Business, and Job Creation,
76 FR 3827 (Jan. 18, 2011).
---------------------------------------------------------------------------
C. Executive Order 13132: Federalism
Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), 3 CFR, 2000
comp. at 206, requires executive branch agencies to consider whether a
rule will have federalism implications. That is, the rulemaking agency
must determine whether the rule is likely to have substantial direct
effects on State and local governments, a substantial direct effect on
the relationship between the Federal government and the States and
localities, or a substantial direct effect on the distribution of power
and responsibilities among the different levels of government. If an
agency believes that a rule is likely to have federalism implications,
it must consult with State and local elected officials about how to
minimize or eliminate the effects. This proposed rule applies to public
accommodations that exhibit movies for a fee that are covered by title
III of the ADA. To the Department's knowledge there are no State or
local codes that specifically address captioning and audio description.
As a result, the Department has concluded that this proposed rule does
not have federalism implications.
D. Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is
welcome to call to obtain assistance in understanding anything in this
proposed rule. If any commenter has suggestions for how the regulation
could be written more clearly, please submit those suggestions by any
one of the following methods, making sure to identify this rulemaking
by RIN 1190-AA63:
Federal eRulemaking Web site: http://www.regulations.gov.
Follow the Web site's instructions for submitting comments. The
Regulations.gov Docket ID is DOJ-CRT-126.
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 Justice, 1425 New
York Avenue NW., Suite 4039, Washington, DC 20005.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act (PRA), agencies are prohibited
from conducting or sponsoring a ``collection of information'' as
defined by the PRA unless in advance the agency has obtained an OMB
control number. 44 U.S.C. 3507 et seq. This proposed rule does not
propose any new or revisions to existing collections of information
covered by the PRA.
F. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
List of Subjects for 28 CFR Part 36
Administrative practice and procedure, Buildings and facilities,
Business and industry, Civil rights, Individuals with disabilities,
Penalties, Reporting and recordkeeping requirements.
By the authority vested in me as Attorney General by law, including
28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans
with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. 12186),
and for the reasons set forth in the preamble, chapter I of title 28 of
the Code of Federal Regulations is proposed to be amended as follows:
[[Page 45013]]
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
Subpart A--General
0
1. The authority citation for 28 CFR part 36 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
0
2. In Sec. 36.303,
0
a. Redesignate paragraph (g) as paragraph (h); and
0
b. Add paragraph (g) to read as follows:
Sec. 36.303 Auxiliary aids and services.
* * * * *
(g) Movie Captioning and Audio Description.
(1) Definitions. For the purposes of this paragraph--
(i) Audio description means provision of a spoken narration of key
visual elements of a visually delivered medium, including, but not
limited to, actions, settings, facial expressions, costumes, and scene
changes.
(ii) Closed movie captioning means the written text of the movie
dialogue and other sounds or sound making (e.g. sound effects, music,
and the character who is speaking). Closed movie captioning is
available only to individuals who request it. Generally, it requires
the use of an individual captioning device to deliver the captions to
the patron.
(iii) Individual audio description listening device means the
individual device that patrons may use at their seats to hear audio
description.
(iv) Individual captioning device means the individual device that
patrons may use at their seats to view the closed captions.
(v) Movie theater means a facility other than a drive-in theater
that is used primarily for the purpose of showing movies to the public
for a fee.
(vi) Open movie captioning means the provision of the written text
of the movie dialogue and other sounds or sound making in an on-screen
text format that is seen by everyone in the movie theater.
(2) Movie captioning. (i) A public accommodation that owns, leases,
leases to, or operates a movie theater shall ensure that its
auditoriums have the capability to exhibit movies with closed movie
captions. In all cases where the movies it intends to exhibit are
produced, distributed, or otherwise made available with closed movie
captions, the public accommodation shall ensure that it acquires the
captioned version of that movie. Movie theaters must then exhibit such
movies with closed movie captions available at all scheduled screenings
of those movies.
(ii) Other technologies. Movie theaters may meet their obligation
to provide captions to persons with disabilities through use of a
different technology, such as open movie captioning, so long as the
communication provided is as effective as that provided to movie
patrons without disabilities. Open movie captioning at some or all
showings of movies is never required as a means of compliance with this
section, even if it is an undue burden for a theater to exhibit movies
with closed movie captioning in an auditorium.
(iii) Provision of individual captioning devices. (A) Subject to
the compliance dates in paragraph (g)(4) of this section, a public
accommodation that owns, leases, leases to, or operates a movie theater
shall provide individual captioning devices in accordance with the
following Table. This requirement does not apply to movie theaters that
elect to exhibit all movies at all times at that facility with open
movie captioning.
------------------------------------------------------------------------
Minimum required number of
Capacity of seating in movie theater individual captioning devices
------------------------------------------------------------------------
100 or less............................ 2.
101 to 200............................. 2 plus 1 per 50 seats over 100
seats or a fraction thereof.
201 to 500............................. 4 plus 1 per 50 seats over 200
seats or a fraction thereof.
501 to 1000............................ 10 plus 1 per 75 seats over 500
seats or a fraction thereof.
1001 to 2000........................... 18 plus 1 per 100 seats over
1000 seats or a fraction
thereof.
2001 and over.......................... 28 plus 1 per 200 seats over
2000 seats or a fraction
thereof.
------------------------------------------------------------------------
(B) In order to provide effective communication, individual
captioning devices must:
(1) Be adjustable so that the captions can be viewed as if they are
on or near the movie screen;
(2) Be available to patrons in a timely manner;
(3) Provide clear, sharp images in order to ensure readability; and
(4) Be properly maintained and be easily usable by the patron.
(3) Audio description. (i) A public accommodation that owns,
leases, leases to, or operates a movie theater shall ensure that its
auditoriums have the capability to exhibit movies with audio
description. In all cases where the movies it intends to exhibit are
produced, distributed, or otherwise made available with audio
description, the public accommodation shall ensure that it acquires the
version with audio description. Movie theaters must then exhibit such
movies with audio description available at all scheduled screenings.
(ii) Provision of individual audio-description listening devices.
Subject to the compliance dates in paragraph (g)(4) of this section, a
public accommodation that owns, leases, leases to, or operates a movie
theater shall provide devices capable of transmitting audio description
in accordance with one of the following:
(A) A movie theater shall provide at least one individual audio-
description listening device per screen, except that no theater shall
provide less than two devices.
(B) A movie theater may comply with this requirement by using
receivers it already has available as assistive listening devices in
accordance with the requirements in Table 219.3 of the 2010 Standards,
if those receivers have a minimum of two channels available for sound
transmission to patrons.
(4) Compliance date. (i) Digital movie screens. If a movie theater
(as defined in this paragraph) has auditoriums with digital movie
screens, those auditoriums must comply with the requirements in
paragraph (g) of this section six months from the publication date of
this rule in final form in the Federal Register. Once an analog movie
screen has converted to digital cinema, it must comply with paragraph
(g) within 6 months.
Option 1 for paragraph (g)(4)(ii):
(ii) Analog movie screens. If a movie theater (as defined in this
paragraph) has auditoriums with analog movie screens, those auditoriums
must comply with the requirements in paragraph (g) of this section four
years from the publication date of this rule in final form in the
Federal Register.
Option 2 for paragraph (g)(4)(ii):
(ii) Analog movie screens. Application of the requirements of
paragraph (g) is deferred for analog movie screens but may be addressed
in future rulemaking.
[[Page 45014]]
(5) Notice. Subject to the compliance dates in paragraph (g)(4) of
this section, movie theaters shall ensure that communications and
advertisements intended to inform potential patrons of movie showings
and times, that are provided by the theater through Web sites, posters,
marquees, newspapers, telephone, and other forms of communications,
shall provide information regarding the availability of captioning and
audio description for each movie.
(6) Subject to the compliance dates in paragraph (g)(4) of this
section, movie theaters must ensure that there is at least one
individual on location at each facility available to assist patrons
seeking these services at all times when a captioned or audio-described
movie is shown. Such assistance includes the ability to:
(i) Operate all captioning and audio description equipment;
(ii) Locate all necessary equipment that is stored and quickly
activate the equipment and any other ancillary equipment or systems
required for the use of the devices; and
(iii) Communicate effectively with individuals who are deaf or hard
of hearing and blind or have low vision regarding the uses of, and
potential problems with, the equipment for such captioning or audio
description.
* * *
Dated: July 23, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-17863 Filed 7-31-14; 8:45 am]
BILLING CODE 4410-13-P