[nfbwatlk] NPRM: DOJ 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

Robert Sellers robertsellers500 at comcast.net
Tue Jul 29 01:41:39 UTC 2014


In Olympia, all movies shown at the Century and Regal theaters are
audio-described.

Bob
 

-----Original Message-----
From: nfbwatlk [mailto:nfbwatlk-bounces at nfbnet.org] On Behalf Of
Nightingale, Noel via nfbwatlk
Sent: Friday, July 25, 2014 2:18 PM
To: nfbwatlk at nfbnet.org
Subject: [nfbwatlk] NPRM: DOJ 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

Thought folks on this list might find this of interest.

Link:
http://www.ada.gov/regs2014/movie_nprm.html

Text:

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.
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 [INSERT DATE 60 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL
REGISTER]. 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 website: 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, N.W.,
Suite 4039, Washington, D.C. 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 § 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 §
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 §
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 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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn1> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn2> 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).
Table ES-1: Annualized Costs and Benefits of Proposed Rule (2015 Dollars,
15-year Time Horizon)

7% Discount Rate

3% Discount Rate


Baseline 1 Assumptions (One Screen )

Baseline 2 Assumptions (Litigation-Based)

Baseline 3 Assumptions (NATO Survey Based)

Baseline 1 Assumptions (One Screen )

Baseline 2 Assumptions (Litigation-Based)

Baseline 3 Assumptions (NATO Survey 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.

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 capital cost for analog single screen
theaters is estimated to total $8,172. The first year 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn3> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn4> 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.
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 managed approximately 53 percent of
movie theater
establishments.[5]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn5> 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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn6> 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 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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn7> 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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn8>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-at
tendance-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).
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-Statis
tics-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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn9> 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).
2. The ADA Title III
Regulation[10]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn10>
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
FacilitiesIII-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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn11> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn12> 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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn13>
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-mov
ie-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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn14> 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
athttp://www.afb.org/section.aspx?FolderID=3&SectionID=44&TopicID=252&Docume
ntID=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).
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn15> It is critical
that all of these individuals are not shut out of an emblematic part of our
culture.
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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn16> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn17>
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
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn18> 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.
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® Captioning (Rear Window® or RWC). RWC, when
combined with audio description provided by DVS-Theatrical®(DVS), is called
MoPix® systems.[19]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn19>
Unlike open captions that are burned onto the film itself, Rear Window®
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® 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn20> 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®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®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.
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® systems had been installed in more than 400
screens in the United States and
Canada.[21]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn21> Once a movie
theater is equipped with a MoPix® 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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn22> 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_Karag
osian.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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn23> For this
and other reasons, in 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_Karag
osian.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.
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® 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®'s devices are supported by several digital cinema
servers directly, although other servers may need to obtain a special
interface.[24]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn24>
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®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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn25>
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_Karag
osian.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.
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-Ma
y-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
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-fil
es-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-at
tendance-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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn26>
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn27> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn28> 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.
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-Ma
y-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. SeePress 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=1
559531&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-annou
nce-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 §
36.303(g), the Department is proposing in § 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 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, D.C. (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 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 §
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
§ 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 § 36.303(g)(2), the Department is proposing
to define the term "closed movie captioning" specifically as it applies to
movie theaters. In § 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 their seats? Is there a different term that should
be used in order to distinguish between the closed captioning referred to in
§ 36.303(b) and the captioning required for movie theaters in proposed §
36.303(g)(2)?
Individual audio description listening device. In § 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 § 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 § 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 § 36.303(g)(2)(ii), the
Department is proposing to define the term "open movie captioning"
specifically as it applies to movie theaters. In § 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, § 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn29>
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn30> 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).
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.
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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn31>
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn32> For
example: Should the Department have a different compliance schedule or
different requirements for digital or analogtheatersthat 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.
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. Seeprevious 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
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn33> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn34> In
the NPRM, § 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn35>
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn36> 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.
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 § 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."
Capacity of Seating in Movie Theater

Minimum Required Number of 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 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®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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn37> 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.
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 §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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn38> 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.
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?
Audio Description
Coverage. In § 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 § 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 §
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 § 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
§ 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 § 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 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 §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 websites, 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 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 § 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 § 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 § 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, § 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, §§ 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. SeeInitial RA section 4 for details.
* Baseline 1 (One Screen )-This baseline assumes that on average, every
movie theater with digital screens has one screen that is captioning
enabled[39]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn39> (based on an
assumption of at 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.
* 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)
Discount Rate

Under Baseline 1 Assumptions - One Screen

Under Baseline 2 Assumptions - Litigation-Based

Under Baseline 3 Assumptions - NATO 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)
Discount Rate

Under Baseline 1 Assumptions - One Screen

Under Baseline 2 Assumptions - Litigation-Based

Under Baseline 3 Assumptions - NATO 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn40>
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:
Annual Costs of Rule Under Option 1, Discounted at 7 Percent
[cid:image005.png at 01CFA80B.B11231E0]
Annual Costs of Rule Under Option 2, Discounted at 7 Percent
[cid:image006.png at 01CFA80B.B11231E0]
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn41>
Per Digital Theater Initial Capital Costs for Captioning and Audio
Description (Equipment (hardware, software and devices), 2015 Dollars*
Digital Theater Type/Size

Initial Capital Costs
(Using Doremi Technology for Movies in Digital Format)

Initial Capital Costs
Technology for Movies in Digital Format)

Average Initial Capital Costs for Digital Theater
(Average of 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn42> The first
year 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.
Per Analog Theater Initial Capital Costs of Captioning and Audio Description
Equipment (hardware, software and devices), 2015 Dollars*
Analog Theater Type/Size

Per Theater Initial Capital Costs
(Rear 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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn43> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn44>
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 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 Assumptions (One Screen )

Baseline 2 Assumptions (Litigation-Based)

Baseline 3 Assumptions (NATO Survey Based)

Baseline 1 Assumptions (One Screen )

Baseline 2 Assumptions (Litigation-Based)

Baseline 3 Assumptions (NATO Survey 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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn45> 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.
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 (seesection 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn46> Likewise, 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.
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn47> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn48> These
1,965 firms operated 2,566 establishments.
Distribution of Movie Theater Firms, by Revenue, 2007

Number of firms

Number of establish-ments

Firms as % of TOTAL

Cumulative total

Establish-ments % of TOTAL

Cumulative total

Total Firms

2,004

4,801

100%

--

100%

--

Firms with sales/receipts/revenue less than $100,000

333

333

16.6%

16.6%

6.9%

6.9%

Firms with sales/receipts/revenue of $100,000 to $499,999

703

712

35.1%

51.7%

14.8%

21.8%

Firms with sales/receipts/revenue of $500,000 to $999,999

318

339

15.9%

67.6%

7.1%

28.8%

Firms with sales/receipts/revenue of $1,000,000 to $2,499,999

386

472

19.3%

86.8%

9.8%

38.7%

Firms with sales/receipts/revenue of $2,500,000 to $4,999,999

109

197

5.4%

92.3%

4.1%

42.8%

Firms with sales/receipts/revenue of $5,000,000 to $7,499,999

40

99

2.0%

94.3%

2.1%

44.8%

Firms with sales/receipts/revenue of $7,500,000-$9,999,999

24

60

1.2%

95.5%

1.2%

46.1%

Firms with sales/receipts/revenue of $10,000,000 to $14,999,999

23

106

1.1%

96.6%

2.2%

48.3%

Firms with sales/receipts/revenue of $15,000,000 to $19,999,999

13

105

0.6%

97.3%

2.2%

50.5%

Firms with sales/receipts/revenue of $20,000,000 to $24,999,999

6

50

0.3%

97.6%

1.0%

51.5%

Firms with sales/receipts/revenue of $25,000,000 to $29,999,999

8

79

0.4%

98.0%

1.6%

53.2%

Firms with sales/receipts/revenue of $30,000,000 to $34,999,999

2

14

0.1%

98.1%

0.3%

53.4%

Firms with sales/receipts/revenue of $35,000,000+*

39

2,235

1.9%

100.0%

46.6%

100.0%

* 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.
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
Theater Type

Projected Number of Theaters in 2015

Annual Growth Rate

Likelihood of Small Businesses

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
athttp://www.mpaa.org/wp-content/uploads/2014/03/2012-Theatrical-Market-Stat
istics-Report.pdf(last visited July 14, 2014).
Estimates of Digital and Analog Theaters and Screens in 2015

Number of Digital Theaters

Number of Digital Screens

Number of Analog Theaters

Number of 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn49> the cost model
underlying the Initial RA's small business assessment uses SBA-defined small
business size
standards.[50]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn50> 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.
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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn51>
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)
Theater Size Type

Number of 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.
Distribution of Theater Size Type for Consolidated Revenue Groups
Consolidated Revenue
Group[52]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn52>

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
Equipment

Megaplex
Avg: 18 Screens

Multiplex
Avg: 11 Screens

Miniplex
Avg: 4 Screens

Single 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
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
Cost

Firms $499,999 and under

Firms $500,000 to $4,999,999

Firms $5,000,000 to $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

Size of firms ($)

Average receipts per firm

Average cost per theater

Average cost per firm

Ratio of average cost/ receipts

Average receipts per firm

Average cost per theater

Average cost per firm

Ratio of average cost/ receipts

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
Technology

Digital Captioning Hardware Cost
(one needed per screen)

Digital Captioning Individual Device Costs
(multiple per screen/theater may be needed)

Digital Audio Description Hardware Cost
(one needed per screen)

Digital Audio Description Individual Device Costs
(multiple per screen/theater may be needed)

Doremi's CaptiView

$690

$430

$625

$125

USL

$1,057

$479

$0

$69

Analog Captioning Equipment Unit Costs
Technology

Analog Captioning Hardware Cost
(one per screen needed)

Analog Captioning Device Costs
(multiple per screen/theater may be needed)

Analog Audio Description Hardware Cost
(one per screen needed)

Analog Audio Description Device Costs
(multiple per screen/theater may be needed)

Rear Window[53]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn53>

$7,113

$95

$467

$106

Average per Establishment Costs of Purchasing Digital Closed Captioning and
Audio Description Equipment
Cost Per Digital Theater

Doremi

USL

Average 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn54>

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.
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 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn55> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn56>
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 (§ 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 (§ 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
(§ 36.303(g)(3)(ii)).
Moreover, while not expressly referenced in the text of proposed §
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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn57> The
"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.
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,
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 Option1 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftn58> 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.
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 website: 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, N.W.,
Suite 4039, Washington, D.C. 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 Appendix A to 28 CFR part 36, chapter I of title 28 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 36-NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
Subpart A-General
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).
2. In § 36.303,
a. Redesignate paragraph (g) as paragraph (h); and
b. Add paragraph (g) to read as follows:
§ 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 theatermeans 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), 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.
Capacity of Seating in Movie Theater

Minimum Required Number of 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.
(ii) Analog movie screens.
Option 1: 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) four years from the publication date of this
rule in final form in the Federal Register.
Option 2: Application of the requirements of paragraph (g) is deferred for
analog movie screens but may be addressed in future rulemaking.
(5) Notice. Subject to the compliance dates in paragraph (g)(4), 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 websites, 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 in paragraph (g)(4), 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.
* * *
______________________ __________________________
Date Eric H. Holder, Jr.
Attorney General

________________________________
[1]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref1> Baseline 1 (only
one screen 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref2> Baseline 1 (only
one screen 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). SeeInitial RA for
further details on Baseline estimations.
[3]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref3> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref4> 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-Statis
tics-Report.pdf(last visited July 14, 2014).
[5]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref5> 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) .
[6]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref6> 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."
[7]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref7> 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.
[8]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref8> 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.
[9]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref9> An undue burden is
one that results in significant difficulty or expense for the public
accommodation. See 28 CFR 36.104.
[10]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref10>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).
[11]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref11> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref12> 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."
[13]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref13> 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-d
escriptive-narration-devices(last visited July 14, 2014).
[14]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref14> 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).
[15]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref15> "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.
[16]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref16> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref17> 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.
SeeFrequently Asked Questions, http://www.captionfish.com/faq (last visited
July 14, 2014).
[18]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref18> 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).
[19]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref19> 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.
[20]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref20> 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.
[21]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref21> The WGBH
National Center for Accessible Media is a nonprofit that developed
MoPix®systems funded in part by a grant from the U.S. Department of
Education.
[22]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref22> 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.
[23]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref23> "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).
[24]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref24> As with all
closed-captioning systems available with today's technology, MoPix® also
requires use of an individual captioning device by the patron seated in the
theater auditorium.
[25]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref25> 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_Karag
osian.pdf(last visited July 14, 2014).
[26]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref26>Wide-releases
include all films except for those with limited release, documentaries, and
similar titles.
[27]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref27> This commitment
was possible because the interested parties reached agreement upon, and
published standards for, SMPTE digital cinema packages.
[28]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref28>Representatives
from the Independent Film & Television Alliance and from independent studios
did not submit comments in response to the 2010 ANPRM.
[29]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref29> 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.
[30]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref30> 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.
[31]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref31>Existing §
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."
[32]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref32> Memorandum for
the Heads of Executive Departments and Agencies, Regulatory Flexibility,
Small Business, and Job Creation, 76 FR 3827 (Jan. 18, 2011).
[33]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref33> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref34> "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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref35> 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.
[36]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref36> 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).
[37]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref37> 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.
[38]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref38> 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.
[39]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref39> 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.
[40]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref40>Annualized costs
were calculated in a Microsoft Excel model using the PMT function
(-PMT(discount rate, years of analysis, present value of total costs)).
[41]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref41> 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.
[42]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref42> 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).
[43]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref43> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref44> 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-Statis
tics-Report.pdf(last visited July 14, 2014).
[45]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref45> 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).
[46]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref46> Proposed §
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.
[47]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref47> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref48> 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.
[49]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref49> See 5 U.S.C. 601
et seq.
[50]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref50> The Small
Business Size Regulations can be found at 13 CFR part 121.
[51]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref51> 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.
[52]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref52> 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
$35,5000,000, 79 percent were Miniplexes and 21 percent Multiplexes.
[53]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref53> 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® 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.
[54]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref54> 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.
[55]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref55> 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]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref56> 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.
[57]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref57> 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.
[58]<http://www.ada.gov/regs2014/movie_nprm.html#_ftnref58> SeeMemorandum
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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