Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description, 43467-43476 [2010-18337]

Agencies

• Department of Justice

[Federal Register Volume 75, Number 142 (Monday, July 26, 2010)]
[Proposed Rules]
[Pages 43467-43476]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18337]


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DEPARTMENT OF JUSTICE

28 CFR Part 36

[CRT Docket No. 112]
RIN 1190-AA63


Nondiscrimination on the Basis of Disability; Movie Captioning 
and Video Description

AGENCY: Civil Rights Division, Justice.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: The Department of Justice (Department) is considering revising 
its regulation implementing title III of the Americans with 
Disabilities Act (ADA) in order to establish requirements for making 
the goods, services, facilities, privileges, accommodations, or 
advantages offered by movie theater owners or operators at movie 
theaters accessible to individuals who are deaf or hard of hearing or 
who are blind or have low vision by screening movies with closed 
captioning or video description. The Department is issuing this Advance 
Notice of Proposed Rulemaking (ANPRM) in order to solicit public 
comment on various issues relating to the potential application of such 
requirements and to obtain background information for the regulatory 
assessment the Department may need to prepare in adopting any such 
requirements.

DATES: The Department invites written comments from members of the 
public. Written comments must be postmarked and electronic comments 
must be submitted on or before January 24, 2011.

ADDRESSES: You may submit comments, identified by RIN 1190-AA63 (or 
Docket ID No. 112), by any one of the following methods:
     Federal eRulemaking Web site: www.regulations.gov. Follow 
the Web site's instructions for submitting comments. The 
Regulations.gov Docket ID is DOJ-CRT-0112.
     Regular U.S. mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of

[[Page 43468]]

Justice, 1425 New York Avenue, N.W., Suite 4039, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Kathleen Devine, Attorney, Disability 
Rights Section, Civil Rights Division, U.S. Department of Justice, at 
(202) 307-0663 (voice or TTY). This is not a toll free number. 
Information may also be obtained from the Department's toll-free ADA 
Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
    You may obtain copies of this ANPRM in large print or Braille or on 
audiotape or computer disk by calling the ADA Information Line at (800) 
514-0301 (voice) and (800) 514-0383 (TTY). This ANPRM is also available 
on the ADA Home Page at https://www.ada.gov.

SUPPLEMENTARY INFORMATION:

I. Electronic Submission of Comments and Posting of Public Comments

    You may submit electronic comments to www.regulations.gov. When 
submitting comments electronically, you must include DOJ-CRT 2010-0112 
in the search field, and you must include your full name and address. 
Electronic files should avoid the use of special characters or any form 
of encryption and should be free of any defects or viruses.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Submission postings will include any personal 
identifying information (such as your name, address, etc.) included in 
the text of your comment. If you include personal identifying 
information (such as your name, address, etc.) in the text of your 
comment but do not want it to be posted online, you must include the 
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of 
your comment. You must also include all the personal identifying 
information you want redacted along with this phrase. Similarly, if you 
submit confidential business information as part of your comment but do 
not want it to be posted online, you must include the phrase 
``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your 
comment. You must also prominently identify confidential business 
information to be redacted within the comment. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Comments on this ANPRM will also be made available for public 
viewing by appointment at the Disability Rights Section, located at 
1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during 
normal business hours. To arrange an appointment to review the 
comments, please contact the ADA Information Line at (800) 514-0301 
(voice) or (800) 514-0383 (TTY).
    The reason that the Civil Rights Division is requesting electronic 
comments before Midnight Eastern Time on the day the comment period 
closes is because the inter-agency Regulations.gov/Federal Docket 
Management System (FDMS) which receives electronic comments terminates 
the public's ability to submit comments at Midnight on the day the 
comment period closes. Commenters in time zones other than Eastern may 
want to take this fact into account so that their electronic comments 
can be received. The constraints imposed by the Regulations.gov/FDMS 
system do not apply to U.S. postal comments, which will be considered 
as timely filed if they are postmarked before Midnight on the day the 
comment period closes.

II. Public Hearing

    The Department will hold at least one public hearing to solicit 
comments on the issues presented in this notice. The Department plans 
to hold the public hearing during the 180-day public comment period. 
The date, time, and location of the public hearing will be announced to 
the public in the Federal Register and on the Department's ADA Home 
Page, https://www.ada.gov/.

III. Background

A. Statutory and Rulemaking History Up to the 2008 NPRM

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability. The ADA broadly protects the rights of individuals 
with disabilities in employment, access to State and local government 
services, places of public accommodation, transportation, and other 
important areas of American life. The ADA also requires, in pertinent 
part, newly designed and constructed or altered public accommodations, 
and commercial facilities to be readily accessible to and usable by 
individuals with disabilities. 42 U.S.C. 12101 et seq. Section 306(b) 
of title III directs the Attorney General to promulgate regulations to 
carry out the provisions of title III, other than certain provisions 
dealing specifically with transportation. 42 U.S.C. 12186(b).
    Title III prohibits discrimination on the basis of disability in 
the activities of places of public accommodation (private entities 
whose operations affect commerce and that fall into one of twelve 
categories listed in the ADA, such as restaurants, movie theaters, 
schools, day care facilities, recreational facilities, and doctors' 
offices) and requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (privately owned, 
nonresidential facilities such as factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
    On July 26, 1991, the Department issued its final rule implementing 
title III, which is codified at 28 CFR part 36. Appendix A of the title 
III regulation, at 28 CFR part 36, contains the ADA Standards for 
Accessible Design. On September, 30, 2004, the Department published an 
advance notice of proposed rulemaking (2004 ANPRM) to begin the process 
of updating the 1991 regulation to adopt revised ADA Standards based on 
the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 
17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) 
to adopt the revised ADA Standards and, in pertinent part, revise the 
title III regulations. 73 FR 34466. The NPRM addressed the issues 
raised in the public's comments to the ANPRM and sought additional 
comment.
    In that NPRM, the Department stated that it was considering options 
under which it might require that movie theater owners or operators 
exhibit movies that are captioned for patrons who are deaf or hard of 
hearing and movies that provide video (narrative) description\1\ for 
patrons who are blind or have low vision.\2\ The Department

[[Page 43469]]

noted, for example, that technical advances since the early 1990s have 
made open and closed captioning for movies more readily available and 
effective. The Department also stated that it understood that the movie 
industry was transitioning, in whole or in part, to movies in digital 
format and that movie theater owners and operators were beginning to 
purchase digital projectors. As noted in that NPRM, movie theater 
owners and operators with digital projectors may have available to them 
different options for providing captioning and video description than 
those without digital projectors. The Department sought comments 
regarding whether and how to require captioning and video description 
while the film industry made the transition to digital. Also, the 
Department stated its concern about the potential cost to exhibit 
captioned movies, noting that cost may vary depending upon whether open 
or closed captioning is used and whether or not digital projectors are 
used, and stated that the cost of captioning must stay within the 
parameters of the undue burden requirement in 28 CFR 36.303(a). The 
Department also expressed concerns about the cost of video description 
equipment but stated that it understood that the cost for video 
description was less than that for closed captioning. The Department 
then stated that it was considering the possibility of requiring public 
accommodations to exhibit all new movies in captioned format and with 
video description at every showing. The Department indicated that at 
that time, it anticipated that it would not specify which types of 
captioning to provide, leaving that to the discretion of the movie 
theater owners and operators.
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    \1\ In the June 17, 2008 NPRM, the Department used the term 
``narrative description'' to define the process and experience 
whereby individuals who are blind or have low vision are provided 
with a spoken narrative of key visual elements of a movie, such as 
actions, settings, facial expressions, costumes, and scene changes. 
In response to comments received from this NPRM, the Department now 
refers to this process as video description.
    \2\ The Department's regulations already require that public 
accommodations provide effective communication to the public through 
the provision of auxiliary aids and services, including, where 
appropriate, captioning and audio or video description. See 
generally, 28 CFR 36.303; 28 CFR part 36, Appendix B. To that end, 
the Department has entered into settlement agreements with a major 
museum and various entertainment entities requiring such aids and 
services. See e.g., Agreement Between the United States of America 
and the International Spy Museum, (June 3, 2006), available at 
https://www.ada.gov/spymuseum.htm.; Agreement Between the United 
States of America and Walt Disney World Co. Under the Americans With 
Disabilities Act Concerning the Use of Auxiliary Aids at Walt Disney 
World (January 17, 1997), available at https://www.ada.gov/disagree.htm .
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    The Department received numerous comments urging the Department to 
issue captioning and video description regulations under the ADA. These 
comments are discussed infra. Recently, the United States Court of 
Appeals for the Ninth Circuit held that the ADA required a chain of 
movie theatres to exhibit movies with closed captioning and video 
description unless the theaters could show that to do so would amount 
to a fundamental alteration or undue burden. Arizona v. Harkins 
Amusement Enterprises, Inc.,--F.3d. --, 2010 WL 1729606 (9th Cir., 
April 30, 2010). In light of the comments received pursuant to the 
NPRM, the Ninth Circuit decision, and the additional reasons detailed 
below, the Department has decided to begin the process of soliciting 
additional comments and suggestions with respect to what an NPRM 
regarding captioning and video description should contain.

B. Legal Foundation for Captioning and Video Description

    Creating regulations that would require movie theater owners and 
operators to exhibit closed captioned and video described movies falls 
squarely within the requirements of the ADA. Title III of the ADA 
includes movie theaters within its definition of places of public 
accommodation. 42 U.S.C. 12181(7). Title III makes it unlawful for 
places of public accommodation, such as movie theaters, to discriminate 
against an individual in the full and equal enjoyment of the goods, 
services, facilities, privileges, advantages, or accommodations of any 
place of public accommodation. 42 U.S.C. 12182(a). Moreover, title III 
prohibits places of public accommodation from affording an unequal or 
lesser service to individuals or classes of individuals with 
disabilities than is offered to other individuals. 42 U.S.C. 
12182(b)(1)(A)(ii). Title III requires places of public accommodation 
to take ``such steps as may be necessary to ensure that no individual 
with a disability is excluded, denied services, segregated or otherwise 
treated differently * * * because of the absence of auxiliary aids and 
services, unless the entity can demonstrate that taking such steps 
would fundamentally alter the nature of the good, service, facility, 
privilege, advantage, or accommodation being offered or would result in 
an undue burden.'' 42 U.S.C. 12182(b)(2)(A)(iii). The statute defines 
auxiliary aids to include ``qualified interpreters or other effective 
methods of making aurally delivered materials available to individuals 
with hearing impairments'' and ``taped texts, or other effective 
methods of making visually delivered materials available to individuals 
with visual impairments.'' 42 U.S.C. 12103(1)(A)-(B). The Department's 
title III regulation specifically lists open and closed captioning and 
audio recordings and other effective methods of making visually 
delivered materials available to individuals with visual impairments as 
examples of auxiliary aids and services that should be provided by 
places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the 
public accommodation can demonstrate that providing such aids and 
services would fundamentally alter the nature of the good or service 
being offered or would result in an undue burden. 28 CFR 36.303(a). In 
addition, the Department's title III regulation mandates that if a 
provision of a particular auxiliary aid or service by a public 
accommodation would result in a fundamental alteration in the nature of 
the goods or services being offered or in an undue burden, the public 
accommodation shall provide an alternative auxiliary aid or service, if 
one exists, that would not result in an alteration or such burden but 
would nevertheless ensure that, to the maximum extent possible, 
individuals with disabilities receive the goods and services offered by 
the public accommodation. 28 CFR 36.303(f).
    While the ADA itself contains no explicit language regarding 
captioning (or video description) in movie theaters, the legislative 
history of title III states that ``[o]pen-captioning * * * of feature 
films playing in movie theaters, is not required by this legislation. 
Filmmakers, are, however, encouraged to produce and distribute open-
captioned versions of films, and theaters are encouraged to have at 
least some pre-announced screenings of a captioned version of feature 
films.'' H.R. Rep. No. 101-485 (II), at 108 (1990); S. Rep. No. 101-116 
at 64 (1989). Congress was silent on the question of closed captioning 
in movie theaters, a technology not yet developed at that time for 
first-run movies, but it acknowledged that closed captions may be an 
effective auxiliary aid and service for making aurally delivered 
information available to individuals who are deaf or hard of hearing. 
See H.R. Rep. No. 101-485 (II), at 107.\3\ In addition, the House 
Committee stated that ``technological advances can be expected to 
further enhance options for making meaningful and effective 
opportunities available to individuals with disabilities. Such advances 
may require public accommodations to provide auxiliary aids and 
services in the future which today would not be required because they 
would be held to impose undue burdens on such entities.'' Id. at 
108.\4\ Similarly, in 1991, the Department stated that ``[m]ovie 
theaters are not required * * * to present open-captioned films,'' but 
was silent as to closed captioning. 56 FR 35544,

[[Page 43470]]

35567 (July 26, 1991). The Department also noted, however, that ``other 
public accommodations that impart verbal information through 
soundtracks on films, video tapes, or slide shows are required to make 
such information accessible to persons who are deaf or hard of hearing. 
Captioning is one means to make the information accessible to 
individuals with disabilities.'' Id.
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    \3\ Congress also was silent regarding requiring video 
description of movies.
    \4\ As the district court in Ball v. AMC Entertainment, Inc., 
246 F. Supp. 2d 17, 22 (D.D.C. 2003) noted, ``Congress explicitly 
anticipated the situation presented in this case [the development of 
technology to provide closed captioning of movies]. Therefore, the 
isolated statement that open captioning of films in movie theaters 
was not required in 1990 cannot be interpreted to mean that [movie 
theaters] cannot now be expected and required to provide closed 
captioning of films in their movie theaters.'' (Emphasis in 
original).
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    It is the Department's view that the legislative history of the ADA 
and the Department's commentary in the preamble to the 1991 regulation 
make clear that Congress was not requiring open captioning of movies in 
1990, but that it was leaving open the door for the Department to 
require captioning in the future as the technology developed. It is 
also the Department's position that neither the ADA nor its legislative 
history precludes, in any way, issuing regulations regarding video 
description. To the contrary, given the present state of technology, we 
believe that requirements of captioning and video description fit 
comfortably within the statutory text.
    In April of this year, the first federal appellate court to 
squarely address the question of whether captioning and video 
description are required under the ADA determined that the ADA required 
movie theatre owner and operator Harkins Amusement Enterprises, Inc., 
and its affiliates, to screen movies with closed captioning and 
descriptive narration (video description) unless such owners and 
operators could demonstrate that to do so would amount to a fundamental 
alteration or undue burden. Arizona v. Harkins Amusement Enterprises, 
Inc.,--F.3d. --, 2010 WL 1729606 (9th Cir., April 30, 2010).\5\ The 
Ninth Circuit found that because closed captioning and video 
descriptions are correctly classified as ``auxiliary aids and 
services'' that a movie theater may be required to provide under the 
ADA, the lower court erred in finding that these services are 
foreclosed as a matter of law. Id.
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    \5\ This court was guided, in part, by the amicus brief filed by 
the United States in support of requiring closed captioning and 
video description.
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C. Movie Basics

    The very first movies were silent films. ``Talkies'' added sound as 
a separate component. Although many technological advances have been 
made since the advent of the ``talkie,'' the practice of exhibiting the 
visual portion of the movie separate from the sound is still common. 
Today, the cinematography portion of many movies is exhibited in an 
analog (i.e. film) format, and the aural portion is exhibited in a 
digital format. Five to six reels of film are used for a typical two-
hour long movie. These reels must be physically delivered to each movie 
theater exhibiting the movie. Digital sound is captured on CD-roms or 
optically or digitally on the film itself. Digital sound is 
synchronized to the visual images on the screen by a mechanism, called 
a reader head, that reads a timecode track printed on the film.
    Digital cinema, by contrast, captures images, data, and sound on 
data files as a digital ``package'' that is stored on a hard drive or a 
flash drive. Digital movies are physically delivered to movie theaters 
on high resolution DVDs or removable or external hard drives, or to 
movie theaters' servers via Internet, fiberoptic, or satellite 
networks. The movie industry recently has begun transitioning to 
digital cinema and it is the Department's understanding that, in the 
industry's view, this transition is one of the most profound advances 
in motion picture production and technology of the last 100 years and 
will provide numerous advantages both for the industry and the 
audience.

D. Captioning and Video Description Generally

    Captioning makes movies shown in theaters accessible to individuals 
whose hearing is too limited to benefit from assistive listening 
devices, as well as to individuals with other hearing disabilities. 
Open captions are similar to subtitles in that the text of the dialog 
is visible to everyone in the theater. Unlike subtitles, open captions 
also describe other sounds and sound makers (e.g., sound effects, 
music, and the character who is speaking) in an on-screen text format. 
Open movie captions are sometimes referred to as ``burned in'' or 
``hardcoded'' captions. However, new open captioning technology enables 
studios to superimpose captions without making a burned in copy or 
having to deliver a separate version of the movie. Open-captioned films 
are most often exhibited in movie theaters at certain limited showings.
    Closed captioning displays the written text of the dialog and other 
sounds or sound makers only to those individuals who request it. It is 
the Department's understanding that, at the time comments were received 
in response to the 2008 NPRM, there were various types of closed 
captioning systems either in use or in development, including the Rear 
Window system, hand-held displays similar to a PDA (personal digital 
assistant), eyeglasses fitted with a prism over one lens, and projected 
bitmap captions. It is also the Department's understanding that, at 
present, the only system that has gained a foothold in the marketplace 
is the Rear Window system. Unlike open captions that are sometimes 
burned onto the film itself, Rear Window captions are generated via a 
technology that neither is physically attached to the film nor requires 
a separate copy of the film to be made. The Rear Window system works 
through a movie theater's digital sound system. It uses a computer, a 
time code signal, and captioning software to project the captions, in 
reverse, on an LED display in the rear of the theater. A clear 
adjustable panel that is mounted on, or near an individual viewer's 
seat reflects the captions correctly and superimposes them on that 
panel so that it appears to a Rear Window user that the captions are on 
or near the movie image. Because this technology enables a movie 
theater that has been equipped with a Rear Window system to exhibit any 
movie that a movie producer has captioned, at any showing, without 
displaying captions to every movie-goer in the theater, individuals who 
are deaf or hard of hearing may enjoy movies in the same theater as 
those who do not require captioning.
    Video description is a technology that enables individuals who are 
blind or have low vision to enjoy movies by providing a spoken 
narration of key visual elements of a movie, such as actions, settings, 
facial expressions, costumes, and scene changes. Visual description 
fills in information about the visual content of a movie where there 
are no corresponding audio elements in the film. It requires the 
creation of a separate script written by specially trained writers who 
prepare a script for video description that is recorded on an audiotape 
or CD that is synchronized with the film as it is projected. The script 
is transmitted to the user through infra-red or FM transmission to 
wireless headsets.

E. Increasing Numbers of Individuals With Hearing and Vision 
Impairments

    The percentage of Americans approaching middle age and older is 
increasing. According to 2000 Census figures, Baby Boomers (i.e., 
individuals born between 1946 and 1964 or who were between the ages of 
36 and 54 in 2000), comprised nearly a third of all Americans. Just 
over a fifth of the American populous was age 55 or older. From 1990 to 
2000, the two fastest growing age groups were those 45 to 49 and 50 to 
54. The younger of the two groups increased by nearly 45 percent, and 
the older increased by more than half (54.9 percent). Together these

[[Page 43471]]

groups comprised nearly 38 million people (37,677,952). When joined 
with other ``seniors,'' the 2000 Census figure for the over 45 age 
group increased to nearly 97 million people (96,944,389). Assuming the 
population has remained fairly constant, when the 2010 Census is 
completed and the results are released, Baby Boomers, who will then 
fall between the ages of 46 and 64, will make older Americans the 
largest segment of the U.S. population.
    The aging of the population is significant because of the 
correlation between aging and hearing and vision impairment or loss. An 
October 21, 2008 Department of Health and Human Services' Progress 
Review on Vision and Hearing in the United States noted that Richard 
Klein, Chief of the NCHS Health Promotion Statistics Branch, found that 
there are about 21 million adults in the United States that are 
visually impaired, and about 36 million (17 percent) have some degree 
of hearing loss.\6\ The Progress Review also noted that ``[a]s with 
vision problems, the number of U.S. adults with hearing loss is 
expected to increase significantly as the population ages, because 
hearing loss and aging are related to a high degree. Hearing loss is 
one of the three most prevalent chronic conditions in older Americans, 
ranking just after hypertension and arthritis.'' Progress Review: 
Vision and Hearing, https://www.healthypeople.gov/data/2010prog/focus28/. Moreover, at least one hearing loss Web site reports that 
``[a]s baby boomers reach retirement age starting in 2010, th[e] number 
of [Americans with hearing loss] is expected to rapidly climb and 
nearly double by the year 2030.'' Hearing Loss Association of America, 
Facts on Hearing Loss, https://www.hearingloss.org/learn/factsheets.asp.
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    \6\ According to the National Institute on Deafness and Other 
Communication Disorders of the National Institutes of Health, in 
2004 there were 28 million Americans who had some type of hearing 
loss, and 500,000 to 750,000 Americans who had severe to profound 
hearing loss or deafness. Healthy Hearing 2010: Where Are We Now?, 
https://www.nidcd.nih.gov/health/inside/spr05/pg1.asp. The National 
Eye Institute of the National Institutes of Health reported in 2004, 
``With the aging of the population, the number of Americans with 
major eye diseases is increasing, and vision loss is becoming a 
major health problem. By the year 2020, the number of people who are 
blind or have low vision is projected to increase substantially. * * 
* Blindness or low vision affects 3.3 million Americans age 40 or 
over, or one in 28, * * *. This figure is projected to reach 5.5 
million by 2020. * * * [L]ow vision and blindness increase 
significantly with age, particularly in people over age 65.'' See 
https://www.nei.nih.gov/news/pressreleases/041204.asp.
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F. The Department's Rulemaking History Regarding Captioning and Video 
Description

    When the Department issued its September 30, 2004 advance notice of 
proposed rulemaking (ANPRM), it did not raise movie captioning or video 
description as potential areas of regulation. Despite that fact, 
several ANPRM commenters requested that the Department consider 
regulating in these areas. The Department has determined that since the 
publication of the 1991 regulation, new ``closed'' technologies for 
movie captioning and video description have been developed. By 1997, 
these technologies were released into the marketplace.\7\
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    \7\ The first feature film with closed captions and video 
description, The Jackal, was exhibited at a California movie theater 
in 1997. The Jackal's release was followed by the release of 
Titanic--the first major studio direct-release of a movie with 
closed captioning and video description capabilities.
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    Given the availability of this new technology, mindful that the 
ADA's legislative history made clear that the ADA ought not be 
interpreted so narrowly or rigidly that new technologies are excluded, 
and aware that assistive listening devices and systems in movie 
theaters cannot be used to effectively convey the audio content of 
films for individuals who are deaf or who have severe or profound 
hearing loss, the Department decided to broach the topic of requiring 
closed captioning and video description at movie theaters in the 2008 
NPRM. The NPRM asked exploratory questions about, but proposed no 
regulatory text for, movie captioning and video descriptions. The 
Department received many comments from individuals with disabilities, 
organizations representing individuals with disabilities, non-profit 
organizations, state governmental entities, and representatives from 
movie studios and movie theater owners and operators on these two 
issues.
    Rather than using these comments to formulate a final rule, 
however, the Department is issuing this supplemental ANPRM for three 
main reasons. First, the Department wishes to obtain more information 
regarding several issues raised by commenters that were not 
contemplated at the time the 2008 NPRM was published. Second, the 
Department seeks public comment on several technical questions that 
arose from the research the Department undertook to address some of the 
issues raised by commenters to the original NPRM. Finally, in the two 
years that have passed since issuance of the 2008 NPRM, the Department 
is aware that movie theater owners and operators, particularly major 
movie theater owners and operators, either have entered into, or had 
plans to enter into, agreements to convert to digital cinema. However, 
during this same time period, the United States' economy, and the 
profitability of many public accommodations, experienced significant 
setbacks. The Department wishes to learn more about the status of 
digital conversion, concrete projections regarding if and when movie 
theater owners and operators, both large and small, expect to exhibit 
movies using digital cinema, when such movie theater owners and 
operators expect to implement digital cinema, by percentages, in their 
theaters, and any relevant protocols, standards, and equipment that 
have been developed regarding captioning and video description for 
digital cinema. In addition, the Department would like to learn if, in 
the last two years, other technologies or areas of interest (e.g., 3D) 
have developed or are in the process of development that either would 
replace or augment digital cinema or make any regulatory requirements 
for captioning and video description more difficult or expensive to 
implement.

G. Response to 2008 NPRM Comments Concerning Movie Captioning and Video 
Description, Analysis and Discussion of Proposed Regulatory Approach

    Although the 2008 NPRM did not propose any specific regulatory 
language with regard to movie captioning or video description, the 
Department sought input from the public as to whether the Department's 
regulation should require movie theater owners and operators to exhibit 
movies that have captioning for patrons who are deaf or hard of hearing 
and video description for individuals who are blind or have low vision. 
The Department asked whether, within a year of the revised regulation's 
effective date, all new movies should be exhibited with captions and 
video description at every showing or whether it would be more 
appropriate to require captions and video description less frequently. 
The preamble made clear that the Department did not intend to specify 
which types of captioning to provide and stated that such decisions 
would be left to the discretion of the movie theater owners and 
operators.
    Individuals with disabilities, advocacy groups, a representative 
from a non-profit organization, and representatives of state 
governments, including eleven State Attorneys General, overwhelmingly 
supported issuance of a regulation requiring movie

[[Page 43472]]

theater owners and operators to exhibit captioned and video described 
movies at all showings unless doing so would result in an undue burden 
or fundamental alteration. These groups noted that although the 
technology to exhibit movies with captions and video description has 
been in existence for about ten years, most movie theaters still were 
not exhibiting movies with captioning and video description. As a 
result, these groups indicated that they believed regulatory action 
should not be delayed until the conversion to digital cinema had been 
completed. One commenter in this group said that because federal law 
requires movie studios to caption movies prior to their release to 
cable and television media, see, e.g., 47 CFR 79.1, it made good 
business sense for studios to caption movies prior to their being 
released to movie theater owners and operators. Several commenters 
requested that any regulation include factors describing what 
constitutes effective captioning and video description, including that 
captioning be within the same line of sight to the screen as the movie 
so that individuals who are deaf or hard of hearing can watch the movie 
and read the captions at the same time, that the captioning be 
accessible from each seat, that the captions be of sufficient size and 
contrast to the background so as to be easily readable, and that the 
recommendations from the Telecommunications and Electronics and 
Information Technology Advisory Committee (TEITAC) Report to the Access 
Board that captions be ``timely, accurate, complete, and efficient'' be 
included.\8\ The Department has carefully considered these requests and 
believes that more information is required before making a decision as 
to how many movies should be screened with captioning and video 
description available and whether factors that describe what 
constitutes effective captioning and video description would be helpful 
to movie theater owners and operators and individuals with 
disabilities.
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    \8\ See Report to the Access Board: Refreshed Accessibility 
Standards and Guidelines in Telecommunications and Electronic and 
Information Technology (April 2008), https://www.access-board.gov/sec508/refresh/report/.
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    The State Attorneys General supported the Department's statement in 
the 2008 NPRM that the Department did not anticipate specifying which 
type of captioning to provide or what type of technology to use to 
provide video description, but would instead leave that to the 
discretion of the movie theater owners and operators. These State 
Attorneys General said that such discretion in the selection of the 
type of technology was consistent with the statutory and regulatory 
scheme of the ADA and would permit any new regulation to keep pace with 
future advancements in captioning and video description technology. 
These same commenters stated that such discretion may result in a mixed 
use of both closed captioning and open captioning, affording more 
choices both for the movie theater owners and operators and for 
individuals who are deaf or hard of hearing. The Department has 
considered these points and has decided that this ANPRM should request 
additional comments regarding whether the Department should 
specifically require closed captioning or permit motion picture owners 
and operators to choose which type of captioning to provide in order to 
satisfy any regulatory requirements the Department might impose.
    Representatives from the movie theater industry strongly urged the 
Department not to issue a regulation requiring captioning (but were 
silent as to requiring video description) at movie theaters. Some 
industry commenters also opposed any regulation by the Department in 
this area claiming that since the Access Board has not issued a 
regulation to require the exhibition of captioned and video described 
movies in public accommodations, the Department is precluded from so 
doing. These commenters misunderstood the allocation of regulatory 
authority under the ADA. The ADA authorizes the Access Board to issue 
design guidelines for accessible buildings and facilities and requires 
that the design standards for buildings and facilities included in 
regulations issued by the Department be consistent with the minimum 
guidelines and requirements issued by the Architectural and 
Transportation Barriers Compliance Board. See 42 U.S.C. 12186(c). It is 
beyond the scope of the Access Board's authority to establish 
regulations governing aspects of ADA implementation unrelated to design 
and construction issues. The Department, by contrast, has broad 
regulatory authority to implement additional provisions of the ADA, 
including those requiring covered entities to ensure effective 
communication with their clients and customers.
    Industry commenters also said that the cost of obtaining the 
equipment necessary to display closed captioned and video described 
movies would constitute an undue burden. One industry commenter stated 
that the cost of equipment to display both closed captions and video 
description per screen can approach $11,000, plus additional 
installation expenses. The Department is aware that there are costs 
associated with providing closed captioning and video description 
technology and that for some movie theater owners and operators, 
particularly independent or very small movie theater companies, 
obtaining captioning and video description equipment may indeed 
constitute an undue burden. However, after carefully considering the 
concerns raised about the costs of implementing captioning and video 
description technology, the Department needs additional, more specific, 
and more recent information on the issue of undue burden.
    In addition, in an effort to spread out any implementation costs so 
that costs could be absorbed over time and would lessen any financial 
impact on theater owners and operators, the Department is considering a 
provision that would phase in compliance requirements. It is the 
Department's intention that such a provision, along with normal swings 
in supply and demand (e.g., commenters noted that as more theaters 
purchase closed captioning and video description technologies, their 
costs will drop), could insulate many movie theater owners and 
operators from an undue burden.
    Some industry commenters argued also that because the industry has 
made progress in making cinema more accessible without mandates to 
caption or describe movies, the Department should wait until the movie 
industry has completed its conversion to digital cinema to regulate. 
According to a commenter representing major movie producers and 
distributors, the number of motion pictures produced with closed 
captioning by its member studios had grown to 88 percent of total 
releases by the end of 2007, early 2008; the number of motion pictures 
produced with open captioning by its member studios had grown to 78 
percent of total releases by the end of 2007, early 2008; and the 
number of motion pictures provided with video description has 
consistently ranged between 50 and 60 percent of total releases. This 
commenter explained that movie producers and distributors, not movie 
theater owners and operators, determine whether to caption, what to 
caption and describe, the type of captioning to use, and the content of 
the captions and video description script. In addition, the movie 
studios, not the movie theater owners and operators, assume the costs 
of captioning and describing movies. This commenter also said that 
movie theater owners and operators must only

[[Page 43473]]

purchase the equipment to display the captions and play the video 
description in their auditoriums. That said, several commenters stated 
that movie theater owners and operators rarely exhibit the movies with 
captions or descriptions. They estimated that less than 1 percent of 
all movies being exhibited in theaters are actually shown with 
captions.
    The Department has carefully considered this information and 
acknowledges that significant strides have been made by movie producers 
in terms of furnishing movies that have the potential to make movies 
more accessible for individuals with disabilities. Despite these 
strides, however, the percentage of captioned and video described 
movies actually exhibited or made available in movie theaters appears 
to be disproportionately low by comparison. The Department is concerned 
about what appears to be a significant disconnect between the 
production of movies that have captioning and video description 
capabilities and the actual exhibition or availability of such movies 
to individuals with sensory disabilities. The Department also is 
concerned that even when captioned and video described movies are 
exhibited, their showings appear to be relegated to the middle of the 
week or midday showings. Commenters lamented that individuals with 
disabilities generally do not have the option of attending movies on 
days and times (e.g., weekends or evenings) when most other moviegoers 
see movies because movie theaters usually only show captioned or video 
described movies during the week at off-peak hours. The Department has 
not been persuaded that movie theaters have made such significant 
strides in making the current captioning and video description 
technology available to moviegoers with disabilities that regulatory 
action in this area would be unnecessary.
    Industry commenters have requested that any regulation regarding 
captioning and video description be timed to occur after the conversion 
to digital cinema is complete. The Department is aware that in 2005, 
the movie industry began transitioning away from the exclusive use of 
analog films to exhibit movies to a digital mode of movie delivery. 
However, the completion date of that conversion has remained elusive. 
One industry commenter said while there has been progress in making the 
conversion, only approximately 5,000 screens, out of 38,794, have been 
converted, and the cost to make the remaining conversions involves an 
investment of several billion dollars. Some commenters have suggested 
that completion of digital conversion may be 10 or more years in the 
future. The Department also is concerned that because of the high cost 
of converting to digital cinema (an industry commenter estimated that 
the conversion to digital costs between $70,000 and $100,000 per screen 
and that maintenance costs for digital projectors are estimated to run 
between $5,000 and $10,000 a year, approximately five times as 
expensive as the maintenance costs for film projectors) and current 
economic conditions, a complete conversion to digital cinema may be 
postponed or may not happen at all. For example, National Public Radio 
reported that ``[f]or more than seven years, film studios and theaters 
have been hyping digital projectors and the crisp, clear picture 
quality they'll bring to movie screens. But the vast majority of the 
nation's cinemas are still using old analog projectors. * * * Despite 
the clear economic advantages of digital projection of the nation's 
more than 38,000 movie screens, only 2,200 have digital projectors.'' 
All Things Considered, Digital Projection in Theaters Slowed Down by 
Dispute (Mar. 21, 2007), available at https://news.wvpubcast.org/templates/transcript/transcript.php?storyId=9047637.
    Whether a complete conversion to digital cinema will occur in a 
time certain, or not at all, is unknown. Even if the conversion of 
digital proceeds, until there is a complete digital conversion, at 
least some theaters will employ analog cinematography (i.e., 35 mm 
film) to exhibit movies. It is the Department's understanding that 
currently the vast majority of movie theaters in the United States 
exhibit film-based movies. Many, however, use a digital sound system 
(e.g., Digital Theater Systems, Dolby Digital, Sony Dynamic Digital 
Sound, etc.). Digital sound systems operate independently from analog 
projectors that deliver the visual portion of a movie. It is also the 
Department's understanding that the closed captioning and video 
description technology that is currently available requires a movie 
theater to have a digital sound system but that digital cinema is not 
necessary for the captioning and video description technology. Thus, 
because the Department has not been presented with any substantive 
information indicating that a complete conversion to digital cinema is 
necessary to provide individuals with disabilities the opportunity to 
attend a closed captioned or video described movie, and the date for 
any complete conversion to digital cinema is unclear, at best, the 
Department believes that it may be unnecessary and inappropriate to 
wait to establish rules pertaining to closed captioning and video 
description for movies.
    It appears that existing captioning and video description equipment 
can be used with digital cinema. Commenters appeared to agree that when 
theaters move to digital technology, both the caption data and video 
descriptions can be embedded into the digital signal that is projected. 
A few commenters said that the systems currently used to provide 
captioning and video description will not become obsolete once a 
theater has converted to digital cinema because their major components 
are compatible with, and can be used by, digital cinema systems. These 
commenters said that the only difference for a movie theater owner or 
operator using digital cinema is the way the data are delivered to the 
captioning and video description equipment in place in an auditorium. 
In other words, because closed captioning and video description 
equipment operates through the digital sound systems most theaters 
have, the fact that those sound systems may be integrated with the 
digital cinema system will not necessitate changing the captioning and 
description equipment, only the manner in which the data they project 
are delivered to the digital cinema system. The Department seeks 
additional and updated information on this point.
    Finally, the Department is considering proposing that 50% of movie 
screens would offer captioning and video description 5 years after the 
effective date of the regulation. The Department originally requested 
guidance on any such figure in its 2008 NPRM. Individuals with 
disabilities, advocacy groups who represented individuals with 
disabilities, and eleven State Attorneys General advocated that the 
Department should require captioning and video description 100% of the 
time. Representatives from the movie industry did not want any 
regulation regarding captioning or video description. A representative 
of a non-profit organization recommended that the Department adopt a 
requirement that 50% of movies being exhibited be available with 
captioning and video description. The Department seeks further comment 
on this issue and is asking several questions regarding how such a 
requirement should be framed.

IV. Requests for Comments

    While the Department has been persuaded by comments from 
individuals, advocacy groups, governmental entities, and at least some

[[Page 43474]]

representatives of the movie industry that the time may be right to 
issue regulations on captioning and video description at movie 
theaters, the Department has a series of questions concerning the 
details of how best to frame and implement any such requirements. The 
Department believes that input from interested parties and the public 
would prove to be very useful. Specifically, the Department is seeking 
additional comment in response to the following questions:

A. Coverage Issues

    Question 1. The Department is considering proposing a regulation 
that contains a sliding compliance schedule whereby the percentage of 
movie screens offering closed captioning and video description 
increases on a yearly basis, beginning with 10 percent in the first 
year any such rule becomes effective, until the 50 percent mark is 
reached in the fifth year. Please indicate whether this approach 
achieves the proper balance between providing accessibility for 
individuals with sensory disabilities and giving movie theaters and 
owners sufficient time to acquire the technology and equipment 
necessary to exhibit movies with closed captioning and video 
descriptions. Also, if you believe that a different compliance schedule 
should be implemented, please provide a detailed response explaining 
how this should be accomplished and the reasons in support. Should a 
different compliance schedule be implemented for small businesses? If 
so, why? What should that schedule require?
    Question 2. The Department is considering proposing regulatory 
language requiring movie theater owners and operators to exhibit movies 
with closed captions and movies with video description so that, after 
any sliding compliance scale has been achieved by the final year (e.g., 
at year 5), all showings of at least one-half of the movie screens at 
the theater will offer captioning and video description. We seek 
comment on the most appropriate basis for calculating the number of 
movies that will be captioned and video described: Should this be the 
number of screens located in a particular theater facility, the number 
of screens owned by a particular movie theater company, the number of 
different movies being screened in a particular theater facility, or 
some combination thereof? Should a different basis be used for small 
business owners? If so, why? What basis should be used? Please include 
an explanation of the advantages and disadvantages of each option and 
the reasons a particular option is preferred over another.
    Question 3. If the number of screens located in a particular 
theater facility is the preferred option, please explain whether the 
fact that some theaters show the same movie on multiple screens poses 
any concerns with regard to the number of movies being screened with 
captions and video descriptions, and if so, what they are and whether 
there are any ways to address those concerns. Does this option pose 
particular concerns to small businesses? If so, what are they? Please 
indicate whether the Department should include specific language in the 
regulation that states that the basis for calculating the number or 
percentage is the number of captioned and video described movies the 
theater receives from the movie producers in order to make clear that 
the owner has no independent obligation to caption or describe movies.
    Question 4. If the number of screens owned by a particular movie 
theater company is the preferred option, please explain whether there 
are any concerns about the geographic distribution of movies being 
screened with captions and video descriptions, and if so, what they are 
and whether there are any ways to address those concerns. Does this 
option pose particular concerns to small businesses? If so, what are 
they? Please indicate whether the Department should include specific 
language in the regulation that states that the basis for calculating 
the number or percentage of movies is the number of captioned and video 
described movies the theater receives from the movie producers in order 
to make clear that the owner has no independent obligation to caption 
or describe movies.
    Question 5. If the number of movies being screened in a particular 
movie theater facility is the preferred option, please indicate whether 
the Department should include specific language in the regulation that 
states that the basis for calculating the number or percentage of 
movies is the number of captioned and video described movies the 
theater receives from the movie producers in order to make clear that 
the owner has no independent obligation to caption or describe movies. 
Does this option pose particular concerns to small businesses? If so, 
what are they?
    Question 6. If some combination of these three methods is the 
preferred option, please explain that option and how it would be 
implemented. Should a different combination or percentage be used for 
small business owners? If so, why? What combination or percentage 
should be used for small business owners? Please indicate whether the 
Department should include specific language in the regulation that 
states that the basis for calculating the number or percentage is the 
number of captioned and video described movies the theater receives 
from the movie producers in order to make clear that the owner has no 
independent obligation to caption or describe movies.
    Question 7. Should any such regulation require that the same number 
or percentage of movies with video description be exhibited as required 
for movies with captioning or should a different number or percentage 
be imposed? If the latter, what would be the justification for 
distinguishing between these forms of access? Should small businesses 
use a different ratio or percentage of video described movies or should 
they also be required to exhibit the same number or percentage of video 
described and captioned movies as other entities?
    Question 8. Should the Department adopt a requirement that movie 
theater owners and operators exhibit captioned and video described 
movies beginning on the day of their release? If not, why not (e.g., 
could such a requirement impose additional burdens and if so, what are 
they)? Should a different requirement be imposed on small business 
owners? If so, why? What should that requirement be?
    Question 9. While the Department is not considering requiring the 
use of open captioning, should movie theater owners and operators be 
given the discretion to exhibit movies with open captioning, should 
they so desire, as an alternate method of achieving compliance with the 
captioning requirements of any Department regulation? If theaters opt 
to use open captioning, should they be required to exhibit movies with 
such captioning at peak times so that people with disabilities can have 
the option of going to the movies on days and times when other 
moviegoers see movies?

B. Digital Cinema

    Question 10. How many movie theater owners or operators have 
converted, in whole or in part, to digital cinema? How many have 
concrete plans to convert 25 percent of their theaters in the next five 
years? Next ten years? How many have concrete plans to convert 50 
percent of their theaters in the next five years? Next ten years? How 
many have concrete plans to convert 75 percent of their theaters in the 
next five years? Next ten years? What are the estimates for the cost 
for a movie theater to convert a movie auditorium to digital cinema? 
Are these costs different for small businesses? Have small businesses

[[Page 43475]]

entered into any cost-sharing agreements or other financing 
arrangements to assist in such a conversion?
    Question 11. Have specific protocols or standards been developed 
for captioning and video description for digital cinema and, if so, 
what are they?

C. Equipment and Technology Questions

    Question 12. Do the closed captioning and video description 
technologies currently available require the use of a digital sound 
system or digital cinema? Have technologies been developed that do not 
require the use of either a digital sound system or digital cinema in 
order to display open or closed captions and offer video description? 
If any new technologies have been developed, please explain how they 
work and what, if any, additional costs are associated with the 
purchase or use of such technologies? Are there technologies in 
development that will not require the use of a digital sound system or 
digital cinema in order to display captions or video description? If 
so, what are they and when are they expected to be available for use by 
movie theater owners and operators? Please explain what, if any, 
additional costs are associated with the purchase or use of such 
technologies.
    Question 13. Is the existing closed captioning and video 
description equipment in use for digital sound systems compatible, or 
able to be integrated, with digital cinema systems? If not, why not? 
Are there additional costs associated with using this equipment with 
digital cinema systems? If so, please provide details. Are the costs 
different for small businesses? If so, why? What are they?
    Question 14. With regard to closed captioning systems, is the 
ability to read the captions equally good throughout the movie theater 
or are there certain seats in the theater that provide an enhanced 
level of readability or line of sight both to the screen and the 
adjustable panel affixed at or near the patron's seat? If certain seats 
enable individuals who are deaf or hard of hearing to view movies more 
effectively, which seats are they and why are they better (e.g., the 
image is better, there are fewer obstructions, there is less need to 
continually adjust the panel, etc.)? Should movie theater owners and 
operators be required to hold such seats for individuals with 
disabilities who wish to use the theater's closed captioning system? 
Since movie theater seating is usually first-come, first-serve, is 
there an effective system that movie theaters would be able to 
implement to hold back releasing such seats? Should movie theater 
owners and operators be allowed to release such seats if they are not 
requested within a certain amount of time before the start of the 
movie? Should movie theater owners and operators be allowed to release 
such seats to the general movie going audience once all of the other 
seats in the theater have been sold out? Are there alternatives for 
seating that minimize the cost but still provide patrons who are deaf 
or hard of hearing with effective and efficient readability of the 
captions and lines of sight to the screen?
    Question 15. Are there other factors that the Department should 
include with regard to the display of captions or the use of video 
description? What is the cost of purchasing/incorporating video 
description equipment per screen/theater? Are the costs different for 
small businesses? If so, why? What are they?
    Question 16. Has any specific equipment been developed or is there 
equipment in development for use with digital cinema that would be 
necessary to exhibit closed captioned movies or movies with video 
description? If so, is that equipment included in the general cost of 
the conversion to digital cinema or is an additional fee imposed? If an 
additional fee is imposed, please provide details. Are the costs 
different for small businesses? If so, why? What are they?
    Question 17. Are there any other technical requirements that the 
Department should consider for inclusion in any regulation? If so, 
please provide details.

D. Notice Requirements

    Question 18. Should the Department include a requirement that movie 
theater owners and operators establish a system for notifying 
individuals with disabilities in advance of movie screenings as to 
which movies and shows at its theaters provide captioning and video 
description? If so, how should such a requirement be structured? For 
example, should the Department require movie theater owners and 
operators to include, in their usual movie postings in the newspaper, 
on telephone recordings, and on the Internet, a notation or some other 
information that a movie is captioned, the type of captioning provided, 
or that the movie has video description? Should the Department require 
movie theater owners and operators to establish a procedure or method 
for directing individuals with sensory disabilities to where in each 
movie theater they should go to obtain any necessary captioning and 
video description equipment? Should movie theater owners and operators 
have the discretion to determine what notification procedure or method 
is most appropriate or should the Department specify how and where 
individuals with disabilities can obtain such equipment at each 
theater? What are the costs for these types of notifications? Are there 
any alternative types of notifications possible? Are these costs 
different for small businesses? If so, why? What are they?

E. Training

    Question 19. Should the Department consider including a training 
requirement for movie theater personnel? Should the Department require 
that movie theater owners and operators ensure that at least one 
individual working any shift at which a captioned or video described 
movie is being screened be trained on how any captioning and video 
description equipment operates and how to convey that information 
quickly and effectively to an individual with a disability who seeks 
help in using that equipment? What are the costs and burdens to 
implementing such a training requirement? Are these costs different for 
small businesses? If so, why? What are they? Would written and recorded 
explanations of how the equipment works be a better alternative?

F. Cost and Benefits of Movie Captioning and Video Description 
Regulations

    Because this is an ANPRM, the Department is not required, at this 
time, to conduct certain economic analyses or written assessments that 
otherwise may be required for other more formal types of agency 
regulatory actions (e.g., notices of proposed rulemaking or final 
rules) that, for example, are deemed to be economically significant 
regulatory actions with an annual economic impact exceeding $100 
million annually or that are expected to have a significant economic 
effect on a substantial number of small entities or non-federal 
governmental jurisdictions (such as State, local, or tribal 
governments). See, e.g., Regulatory Flexibility Act of 1980, 5 U.S.C. 
603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 12866, 58 
FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 Fed. Reg. 6113 
(Jan. 30, 2009); OMB Budget Circular A-4, https://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 5, 2010).
    Nonetheless, one of the purposes of this ANPRM is to seek public 
comment