Nondiscrimination on the Basis of Disability by Public Accommodations-Movie Theaters; Movie Captioning and Audio Description, 87348-87387 [2016-28644]
Download as PDF
<![CDATA[
87348
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 126; AG Order No. 3779–
2016]
RIN 1190–AA63
Nondiscrimination on the Basis of
Disability by Public
Accommodations—Movie Theaters;
Movie Captioning and Audio
Description
Department of Justice, Civil
Rights Division.
ACTION: Final rule.
AGENCY:
This final rule amends the
Department of Justice (Department)
regulation implementing title III of the
Americans with Disabilities Act of 1990
(ADA), which prohibits discrimination
against persons with disabilities by
public accommodations and commercial
facilities, including movie theaters. The
rule adds specific requirements
addressing the obligations of public
accommodations that own, lease, or
operate movie theaters to provide
effective communication to patrons who
are deaf or hard of hearing, or blind or
have low vision. The rule requires that
movie theater auditoriums provide
closed movie captioning and audio
description when showing a digital
movie distributed with such features
unless doing so would result in an
undue burden or a fundamental
alteration. The rule requires movie
theaters to have a specified number of
captioning devices and audio
description devices based on the
number of auditoriums in the movie
theater that show digital movies. The
rule does not impose any specific
requirements for movie theater
auditoriums that exhibit analog movies
exclusively.
DATES: This rule is effective January 17,
2017. Public accommodations with
movie theater auditoriums showing
digital movies on December 2, 2016
must comply with the rule’s
requirement to provide closed movie
captioning and audio description in
such auditoriums by June 2, 2018. If a
public accommodation converts a movie
theater auditorium from an analog
projection system to a system that it
allows it show digital movies after
December 2, 2016, the public
accommodation must comply with the
rule’s requirement to provide closed
movie captioning and audio description
in such auditoriums by December 2,
2018, or within 6 months of that
auditorium’s complete installation of a
sradovich on DSK3GMQ082PROD with RULES4
SUMMARY:
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
digital projection system, whichever is
later.
FOR FURTHER INFORMATION CONTACT:
Rebecca Bond, Section Chief, Disability
Rights Section, Civil Rights Division,
U.S. Department of Justice, at (202) 307–
0663 (voice or TTY). This is not a tollfree 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 the rule in
alternative formats by calling the ADA
Information Line at (800) 514–0301
(voice) and (800) 514–0383 (TTY). This
rule is also available on the
Department’s Web site at https://
www.ada.gov.
SUPPLEMENTARY INFORMATION:
Relationship to Other Laws
Section 36.103 of the Department’s
regulation implementing title III of the
ADA states that except as otherwise
provided in part 36, that part shall not
be construed to allow 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 under that title. In
addition, the title III regulation specifies
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. Finally, part
36 does not invalidate or limit the
remedies, rights, and procedures
provided under any Federal, State, or
local law (including State common law)
that affords greater or equal protection
to individuals with disabilities or
individuals associated with them. These
provisions remain unchanged.
Compliance with the Department’s ADA
regulations does not ensure compliance
with other Federal statutes.
I. Executive Summary
A. Purpose of the Rule
The Department of Justice is issuing
this final rule in order to amend its
regulation implementing title III of the
ADA (42 U.S.C. 12181 et seq.), which
covers public accommodations and
commercial facilities—including movie
theaters. Public accommodations that
own, lease, or operate movie theaters
have an existing obligation to provide
effective communication to persons
with disabilities through the use of
auxiliary aids and services, and this rule
provides greater specificity as to what
those obligations are when showing
digital movies. The rule explicitly
requires public accommodations that
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
own, lease, or operate movie theaters to
provide closed movie captioning 1 and
audio description to patrons with
hearing and vision disabilities whenever
such entities exhibit digital movies that
are distributed with such features, as
well as to have available a specific
number of fully operational captioning
and audio description devices.
Title III of the ADA prohibits public
accommodations from discriminating
against individuals with disabilities. 42
U.S.C. 12182(a). It expressly requires
owners, operators, or lessees of 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 doing so would result in an
undue burden or a fundamental
alteration. 42 U.S.C. 12182(b)(2)(A)(iii).
The Department’s existing regulation
implementing the obligation of covered
entities to ensure effective
communication with individuals with
disabilities (28 CFR 36.303(a)–(c))
specifies that ‘‘open and closed
captioning,’’ and ‘‘audio recordings’’ are
examples of auxiliary aids and services.
28 CFR 36.303(b).
Despite the longstanding obligation to
provide effective communication,
neither closed movie captioning nor
audio description is universally
available at movie theaters across the
United States. Data provided to the
Department by the movie theater
industry in mid-2015 indicates that at
that time, approximately 70 percent of
all movie theater auditoriums were
already equipped to provide closed
movie captioning and audio description;
however, advocates and individuals
with hearing and vision disabilities
have reported that the availability of
these services continues to vary
significantly depending on a movie
theater’s location and ownership. In
addition, it is the Department’s view
that the availability of closed movie
captioning, and to a lesser extent audio
description, is largely due to successful
litigation brought by State attorneys
general or private plaintiffs representing
individuals with disabilities. As a
result, although individuals with
hearing and vision disabilities are an
ever-increasing segment of the aging
population, in many cases they continue
to be unable to enjoy movies with
family or friends, participate in
conversations about recent movie
1 In this rule, the Department uses the term
‘‘closed movie captioning’’ to refer to the provision
of captions to movie theater patrons at their seats
through the use of individual captioning devices.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
releases, or otherwise take part in any
meaningful way in this important aspect
of American culture. Because the ADA’s
effective communication requirements
apply to all public accommodations
(including movie theaters) and protect
the rights of persons with disabilities in
every jurisdiction in the United States,
all movie theaters must ensure that they
meet those requirements by providing
closed movie captioning and audio
description upon request to all patrons
who are deaf or hard of hearing, or blind
or have low vision, unless doing so
results in an undue burden or a
fundamental alteration.
The requirements of this rule are in
addition to a movie theater’s current
obligation to provide assistive listening
systems and receivers pursuant to
sections 219 and 706 of the 2010 ADA
Standards for Accessible Design (2010
Standards).2 Assistive listening
receivers are effective for persons who
are hard of hearing and who only
require sound amplification. They do
not, however, provide effective
communication for individuals who are
deaf or for individuals who are hard of
hearing and for whom sound
amplification is insufficient.
Consequently, in order to achieve the
goals and guarantees of the ADA and
provide effective communication for
such individuals, the Department is
convinced that this rule is essential.
B. Major Provisions
The major provisions of this rule can
be summarized as follows.
First, the requirements of this rule
apply only to public accommodations
that own, lease, or operate movie
theaters with auditoriums that show
movies produced in digital cinema
format (digital movies). The Department
is deferring to a later date the decision
whether to engage in rulemaking
addressing the application of the
specific requirements of this rule for
closed movie captioning and audio
description to movie theater
auditoriums that show movies
exclusively in analog film format
(analog movies).
Second, the rule requires that within
18 months of the date of publication of
the final rule in the Federal Register,
public accommodations that own, lease,
or operate movie theaters must ensure
that their movie theater auditoriums
that exhibit digital movies produced or
distributed with closed movie captions
2 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 in
subpart D of 28 CFR part 36). The 2010 Standards
are available at https://www.ada.gov/
2010ADAstandards_index.htm.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
and audio description provide such
features to patrons with hearing and
vision disabilities at all showings. The
rule does not require movie theaters to
add captions or audio description for
movies that are not produced or
distributed with these features. Nor does
the rule prohibit movie theaters from
showing digital movies that are not
produced with captioning or audio
description or from choosing to show
the analog version of a particular movie,
even if that movie is also produced in
digital format with captioning and audio
description. The rule also specifies that
movie theaters that convert from analog
projection systems to digital cinema
projection systems after the publication
date of the rule in the Federal Register
must comply with the requirements of
the rule either 6 months from the date
of conversion or 24 months from the
publication date, whichever is later.
Third, the rule requires movie
theaters to have a minimum number of
fully operational captioning devices 3
and to provide them to patrons upon
request. This requirement is based on
the number of auditoriums at each
movie theater that exhibit digital movies
and is designed to ensure the
availability of a sufficient number of
devices for use at peak attendance times
by individuals who are deaf or hard of
hearing.
Fourth, the rule requires movie
theaters to have a minimum number of
fully operational audio description
devices 4 and to provide them to patrons
upon request. The rule permits movie
theaters to use the assistive listening
receivers that they are already required
to provide to patrons pursuant to
sections 219 and 706 of the 2010
Standards in lieu of dedicated audio
description devices if those assistive
listening receivers have a second
channel available to deliver audio
description.
Fifth, the rule permits public
accommodations to meet their
obligation to provide captioning and
audio description in their movie
theaters to persons with hearing and
vision disabilities through the use of
alternative technologies, including open
movie captioning, so long as that
technology provides communication as
effective as that provided to movie
patrons without disabilities.
3 Section
36.303(g)(1)(iv) of this rule defines
‘‘captioning device’’ as ‘‘the individual device that
a patron may use at any seat to view closed movie
captioning.’’
4 Section 36.303(g)(1)(iii) of this rule defines
‘‘audio description device’’ as ‘‘the individual
device that a patron may use at any seat to hear
audio description.’’
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
87349
Sixth, the rule requires movie theaters
that exhibit digital movies to provide
the public with notice as to the
availability of captioning and audio
description. This provision is necessary
so that movie patrons who are deaf or
hard of hearing, or blind or have low
vision, can find out which movies are
accessible to them.
Finally, the rule requires movie
theaters that exhibit digital movies to
have staff available who are able to
operate and respond to problems with
all equipment necessary to deliver
captioning and audio description and to
show patrons how to use the individual
devices whenever digital movies with
such features are shown.
As with other effective
communication obligations under the
ADA, public accommodations do not
have to comply with these requirements
to the extent that they constitute an
undue burden or a fundamental
alteration.
C. Costs and Benefits
In accordance with OMB Circular A–
4, the Department has prepared a Final
Regulatory Assessment (Final RA),
which assesses the likely costs and
benefits of the rule for all movie theaters
subject to the rulemaking over the
projected life of the rule (15 years). The
Final RA captures the total costs of this
rulemaking using a baseline, which
represents the Department’s best
assessment of the current state of the
movie exhibition industry, including
the availability of closed movie
captioning and audio description, if the
rule were not implemented. The
Department’s Final RA projects that the
total costs, benefits, or transfer
payments 5 of this rule will not reach
$100 million in any single year, and
thus, the rule is not economically
significant under Executive Order
12866.
For movie theaters with auditoriums
exhibiting digital movies, total costs are
composed of the following components:
• Acquisition costs for captioning
hardware;
• Acquisition costs for audio
description hardware;
• Acquisition costs for captioning
devices;
• Acquisition costs for audio
description devices;
5 Transfer payments are the distributional effects
of a regulatory action that may arise through the
transfer of resources from one group to another but
do not impact the total value of resources available
to society. See Office of Management and Budget,
Circular No. A–4, Regulatory Analysis (Sept. 17,
2003), available at https://www.whitehouse.gov/
omb/circulars_a004_a-4/ (last visited Sept. 12,
2016).
E:\FR\FM\02DER4.SGM
02DER4
87350
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
• Installation costs for captioning and
audio description equipment;
• Replacement costs for captioning
and audio description equipment;
• Staff training costs for the provision
of captioning and audio description
equipment; and
• Maintenance and administrative
costs.
Based on the Department’s
calculations, total costs to the movie
exhibition industry to provide closed
movie captioning and audio description
in accordance with this final rule are
estimated to be $88.5 million over 15
years when discounted by 7 percent,
and $113.4 million over 15 years when
discounted by 3 percent. This total costs
estimate was calculated in the primary
analysis of the Department’s Final RA.
The primary analysis analyzes the cost
impact of the final rule by making
assumptions about the available data,
such as the current availability of closed
movie captioning and audio description
in movie theaters. The primary analysis
represents the Department’s best
estimate of the total costs that movie
theaters will incur as a result of this
rulemaking given the available data.
Unless otherwise stated, the Department
refers to cost estimates developed in the
primary analysis of the Final RA
throughout this rule. See chapters 2 and
3 of the Final RA for a more detailed
explanation of the primary analysis and
the data and assumptions relied upon to
develop the total costs estimate.
TOTAL COSTS BY COST CATEGORY IN PRIMARY ANALYSIS OVER 15 YEARS
[$ millions]
Primary analysis
7% discounted
Cost category
Primary analysis
3% discounted
Captioning Hardware Acquisition Costs ......................................................................................................
Audio Hardware Acquisition Costs ..............................................................................................................
Captioning Device Acquisition Costs ...........................................................................................................
Audio Device Acquisition Costs ...................................................................................................................
Installation Costs .........................................................................................................................................
Replacement Costs .....................................................................................................................................
Training Costs ..............................................................................................................................................
Maintenance and Administrative Costs .......................................................................................................
$14.6
0.5
15.7
2.4
1.0
36.1
9.9
8.2
$17.2
0.5
17.6
2.8
1.1
49.9
13.1
11.1
Total Costs ...........................................................................................................................................
88.5
113.4
* Totals may differ due to rounding.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
accordance with the 18-month
compliance date. The table below
presents the annual costs to the movie
exhibition industry over the 15-year
analysis, and it should be noted that
PO 00000
Frm 00004
Fmt 4701
Sfmt 4725
these annual costs are well below the
$100 million mark that signifies an
economically significant regulation
under Executive Order 12866.
E:\FR\FM\02DER4.SGM
02DER4
ER02DE16.023</GPH>
sradovich on DSK3GMQ082PROD with RULES4
The highest costs occur in the first 2
years of the analysis when movie
theaters incur upfront costs for
acquiring and installing the captioning
and audio description equipment in
87351
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
Movie theaters vary greatly by number
of auditoriums, which significantly
impacts overall costs per facility. Thus,
the analysis breaks the movie exhibition
industry into four venue types based on
size: Megaplex movie theaters (16+
auditoriums), multiplex movie theaters
(8–15 auditoriums), miniplex movie
theaters (2–7 auditoriums), and single-
auditorium movie theaters. The upfront
costs per theater are calculated for the
average movie theater within each
venue type and presented in the table
below. The largest cost per year for any
single movie theater with auditoriums
subject to the rulemaking would occur
in the second year due to the upfront
costs to acquire and install the
necessary equipment by the 18-month
compliance date. The average upfront
costs for a megaplex movie theater are
estimated to total $27,358, while the
average upfront costs for a singleauditorium movie theater are estimated
to total $3,562.
AVERAGE PER MOVIE THEATER UPFRONT COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, UNDISCOUNTED
[$]
Captioning
hardware
acquisition
Venue type
Megaplex ..................................................
Multiplex ...................................................
Miniplex ....................................................
Single-Auditorium .....................................
$16,158
10,772
4,488
1,097
Audio
description
hardware
acquisition
Captioning
device
acquisition
$205
205
205
308
$8,728
5,819
4,364
1,864
Audio
description
device
acquisition
Installation
costs
$1,470
980
490
190
$797
533
286
104
Total
upfront
costs
$27,358
18,309
9,834
3,562
* Totals may differ due to rounding.
The Final RA also estimates the
annualized costs of the rule by venue
type, as presented in the table below.
With a 7-percent discount rate, the
annualized costs of the $88.5 million in
total costs over the 15-year period of
analysis are $9.7 million. With a 3percent discount rate, the annualized
costs of the $113.4 million in total costs
are $9.5 million.
ANNUALIZED COSTS BY VENUE TYPE IN PRIMARY ANALYSIS
[$ millions]
Annualized
costs
7% discounted
Venue type
Annualized
costs
3% discounted
Megaplex (16+ auditoriums) ............................................................................................................................
Multiplex (8–15 auditoriums) ...........................................................................................................................
Miniplex (2–7 auditoriums) ..............................................................................................................................
Single-Auditorium .............................................................................................................................................
$3.2
5.0
1.0
0.6
$3.1
5.0
0.9
0.5
Total ..........................................................................................................................................................
9.7
9.5
* Totals may differ due rounding.
sradovich on DSK3GMQ082PROD with RULES4
As part of this regulatory analysis and
in accordance with the Regulatory
Flexibility Act (5 U.S.C. 604), the
Department has conducted a Final
Regulatory Flexibility Analysis (FRFA)
on the economic impact of this rule on
small entities. The FRFA has been used
by the Department to help determine
whether small entities would be
disproportionately burdened. In
addition, the Department has used the
FRFA to examine other ways, if
possible, to accomplish the
Department’s goals while imposing
fewer burdens on small entities. Based
on its analysis, the Department has
determined that this rule will have a
significant economic impact on a
substantial number of small entities in
the movie exhibition industry. However,
as described in further detail in section
VI, infra, the Department has taken
appropriate steps to reduce the
economic impact of this rule while still
meeting the Department’s rulemaking
objectives under the ADA.
The table below presents the average
upfront costs as a percentage of annual
revenue for firms categorized as small
businesses according to the Small
Business Association (SBA) size
standard for the movie exhibition
industry, which is $38.5 million in
annual revenue. For all firms with
revenue greater than $100,000,6 the
average upfront costs are less than 1.5
percent of average annual revenue. For
all firms with revenues of $2,500,000 or
greater, the average upfront costs are
less than 1 percent of annual revenues.
6 Although the FRFA calculates the upfront costs
as a percent of annual revenue for the category of
firms with less than $100,000 in annual revenue for
transparency, most of these firms likely operate
single-auditorium movie theaters that exhibit
analog movies exclusively and are therefore not
subject to the requirements of this rule. See infra
section VI.D for further detail.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
E:\FR\FM\02DER4.SGM
02DER4
87352
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
AVERAGE UPFRONT COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE CATEGORY, UNDISCOUNTED
[2015 $]
Establishments
per firm
Revenue category
Less than $100,000 .....................................................
$100,000 to $499,999 ..................................................
$500,000 to $999,999 ..................................................
$1,000,000 to $2,499,999 ............................................
$2,500,000 to $4,999,999 ............................................
$5,000,000 to $7,499,999 ............................................
$7,500,000 to $9,999,999 ............................................
$10,000,000 to $14,999,999 ........................................
$15,000,000 to $19,999,999 ........................................
$20,000,000 to $24,999,999 ........................................
$25,000,000 to $29,999,999 ........................................
$30,000,000 to $34,999,999 ........................................
$35,000,000 to $39,999,999 ........................................
Average
upfront
costs per
establishment
1.01
1.02
1.06
1.15
1.51
1.89
2.58
4.12
4.56
6.00
11.00
16.50
8.00
$3,562
3,562
9,834
14,071
20,987
20,987
20,987
20,987
20,987
20,987
20,987
20,987
20,987
Average
upfront
costs per
firm
$3,591
3,631
10,456
16,223
31,732
39,575
54,124
86,368
95,606
125,920
230,853
346,280
167,893
Average
revenue per
firm
$54,508
256,537
714,762
1,542,318
3,394,864
5,497,029
7,697,211
12,013,115
14,200,444
14,314,600
22,734,000
* n/a
27,514,000
Upfront
costs as a
percentage
of revenue
(%)
6.6
1.4
1.5
1.1
0.9
0.7
0.7
0.7
0.7
0.9
1.0
* n/a
0.6
sradovich on DSK3GMQ082PROD with RULES4
* Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
The final rule, consistent with the
ADA’s mandate, explicitly addresses
equity and fairness considerations. The
Department believes that this regulation
will benefit millions of Americans,
including those with and without
disabilities. Although these benefits are
difficult to quantify, they are
nonetheless significant. Foremost
among the expected benefits from the
regulation is the opportunity for a
greater number of individuals who are
deaf or hard of hearing, or blind or have
low vision, to better understand what is
being said and shown in digital movies
exhibited at movie theaters so that they
may fully and equally participate in the
movie-going experience to the same
extent as persons without these
disabilities. In addition to the benefits to
individuals with disabilities,
individuals without disabilities—who
will now be able to attend, enjoy, and
discuss movies with their family and
friends that have disabilities—will also
benefit from this rule. For example,
because of this rule, a parent without a
disability can now attend the movies
with a child who has a hearing or vision
disability. The parent will now be able
to share the movie-going experience
with her child and discuss the film and
experience with the child. Similarly,
individuals without disabilities who are
learning English as an additional
language or may be working to improve
their literacy skills may also benefit
from the availability of closed movie
captioning.
While many movie theaters do
provide captioning and audio
description to their patrons, many still
do not provide these auxiliary aids and
services at all or they do not provide
them regularly, creating barriers for
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
persons with disabilities to take part in
the social and cultural movie-going
experience. As a result, the Department
is confident that the qualitative benefits
of this rulemaking justify the associated
costs.
II. The Movie Industry: Digital Movies
and the Availability of Captioning and
Audio Description
A. Transformation From Analog Films
to Digital Movies
Digital technology has revolutionized
the way movies are produced, delivered,
and exhibited. For nearly 100 years,
movie studios produced films
exclusively in analog film format
(analog movies), meaning that they were
typically shot with 35 mm film, cut and
spliced for editing, shipped to
individual movie theaters on several
large, heavy reels, and exhibited with a
conventional reel-to-reel movie
projector. All that changed at the
beginning of the twenty-first century
with the development of digital cinema
technology and the commercial
production of movies in digital cinema
format (digital movies).7
Digital cinema captures images, data,
and sound as a digital cinema
‘‘package’’ (DCP) that is stored on a hard
drive or a flash drive. Digital movies are
physically delivered on high resolution
DVDs or removable or external hard
drives, or can be transmitted to movie
theaters’ servers via Internet, fiber-optic,
7 Star Wars: Episode II—Attack of the Clones,
released in 2002, was the first major motion picture
to be shot entirely on digital video. See Helen
Alexander & Rhys Blakely, The Triumph of Digital
Will Be the Death of Many Movies, New Republic
(Sept. 12, 2014), available at https://
newrepublic.com/article/119431/how-digitalcinema-took-over-35mm-film (last visited Sept. 12,
2016).
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
or satellite networks. Digital production,
distribution, and exhibition have many
advantages over analog film, including
better and longer lasting image quality,
availability of higher resolution images,
significantly lower production and
distribution costs, ease of distribution,
availability of enhanced effects such as
3D, ease of exhibition of live events or
performances, greater flexibility in
arranging or increasing show times to
accommodate unanticipated audience
demand, and remote monitoring of
projection. See Rajesh K, Digital
Cinema—Advantages and Limitations,
excITingIP.com (Oct. 2, 2009), available
at https://www.excitingip.com/611/
advantages-limitations-digital-cinema/
(last visited Sept. 12, 2016).
The shift to digital cinema has led to
a precipitous decline in the filming,
distribution, and exhibition of analog
movies, resulting in enormous
uncertainty about the future of the
analog film market. See Helen
Alexander & Rhys Blakely, The
Triumph of Digital Will Be the Death of
Many Movies, New Republic (Sep. 12,
2014), available at https://
www.newrepublic.com/article/119431/
how-digital-cinema-took-over-35mmfilm (last visited Sept. 12, 2016); see
also John Belton, If Film is Dead, What
is Cinema?, 55 Screen 460, 461–63
(2014), available at https://
english.rutgers.edu/docman/
documents/104-screen-2014-belton-46070-2/file.html (last visited Sept. 12,
2016). In 2013, Fujifilm, one of the two
major producers of movie film stock,
announced it was ceasing production of
movie film stock. In 2014, Kodak, the
other major producer of movie film
stock, after first announcing it would
cease production of film stock,
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
committed to produce only 449 million
linear feet (as compared to the 12.4
billion linear feet it produced in 2006).
See Michael Idato, Quentin Tarantino, JJ
Abrams Help Save Old-Fashioned Film
Stock, Sydney Morning Herald (July 31,
2014), available at https://
www.smh.com.au/entertainment/
movies/quentin-tarantino-jj-abramshelp-save-oldfashioned-film-stock20140731-zytlw.html (last visited Sept.
12, 2016).
Some movie studios have also begun
to release first-run movies exclusively in
digital cinema format. For example,
both Paramount Pictures and Twentieth
Century Fox have completely stopped
releasing movies in analog format. See
Richard Verrier, End of Film:
Paramount First Studio to Stop
Distributing Film Prints, L.A. Times
(Jan. 17, 2014), available at https://
articles.latimes.com/2014/jan/17/
entertainment/la-et-ct-paramountdigital-20140117 (last visited Sept. 12,
2016); Matt Alderton, Films Without
Film, Profile Magazine (2014), available
at https://profilemagazine.com/2014/
twentieth-century-fox (last visited Sept.
12, 2016). In its comment on the
Department’s 2014 Notice of Proposed
Rulemaking, the National Association of
Theater Owners (NATO) reported that
several other movie studios plan to stop
producing analog movies, and NATO
expects independent production
companies to follow suit.8
sradovich on DSK3GMQ082PROD with RULES4
B. Digital Conversion of Movie Theater
Auditoriums
To accommodate the motion picture
industry’s shift to the distribution of
movies in digital format, movie theaters
across the nation have rapidly
transformed and have now nearly
completed conversion of their
auditoriums to digital projection
systems. These systems consist
primarily of a digital server and a digital
projector and typically cost around
$60,000 to $150,000 per auditorium. See
Helen Alexander & Rhys Blakely, The
Triumph of Digital Will Be the Death of
Many Movies, New Republic (Sep. 12,
2014), available at https://www.new
8 See National Association of Theater Owners,
Statement of Position on RIN 1190–AA63, CRT
Docket No. 126, Nondiscrimination on the Basis of
Disability by Public Accommodations—Movie
Theaters; Movie Captioning and Audio Description
4, available at https://www.regulations.gov/content
Streamer?documentId=DOJ-CRT-2014-00040401&attachmentNumber=4&disposition=
attachment&contentType=pdf (last visited Sept. 12,
2016). NATO is the largest association of motion
picture theater owners in the world, and its
members include the nation’s ten largest movie
theater companies as well as hundreds of smaller
entities. Together, its member movie theaters
operate 32,000 of the 40,000 movie theater
auditoriums in the United States.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
republic.com/article/119431/howdigital-cinema-took-over-35mm-film
(last visited Sept. 12, 2016). This
transition to digital projection systems
has accelerated exponentially since
2008 when the Department first sought
public comment about whether it
should engage in rulemaking. At that
time, the information provided to the
Department through public comment
indicated that only 5,000 of the 38,794
auditoriums 9 (13 percent) had been
converted to digital. See Advance
Notice of Proposed Rulemaking,
Nondiscrimination of the Basis of
Disability; Movie Captioning and Video
Description, 75 FR 43467, 43473 (July
26, 2010). Based on data from July 2015
that NATO provided to the Department,
the Department estimates that more than
98 percent of indoor movie auditoriums
(or 38,688 auditoriums) in the United
States have been converted to digital,
leaving only approximately 650 indoor
analog projection systems.10
As digital technology has advanced,
the number of small movie theaters and
those showing analog movies has also
declined. From 2010 to 2014, singleauditorium movie theaters and those
with up to seven auditoriums declined
by approximately 25 percent while the
number of movie theaters with eight or
more auditoriums increased. See Motion
Picture Association of America (MPAA),
Theatrical Market Statistics 2014, at 25
(2014), available at https://
www.mpaa.org/wp-content/uploads/
2015/03/MPAA-Theatrical-MarketStatistics-2014.pdf (last visited Sept. 12,
2016). Moreover, the number of analog
auditoriums declined by more than 92%
during that same time period. See id.
While small, independent movie
theaters have been the slowest to
convert to digital technology, the
Department, consistent with industry
projections, anticipates that the vast
majority of the remaining analog movie
theaters will either convert to digital
projection systems, or be forced to close
because of antiquated equipment and
the decline in the availability of firstrun movies in analog format. See
Lyndsey Hewitt, Local Theaters Face
Tough Times as 35 mm Faces
Extinction, Williamsport Sun Gazette
(July 11, 2013), available at https://
www.sungazette.com/page/
9 Although the movie industry refers to
‘‘auditoriums’’ as ‘‘screens’’ throughout its
commentary, the Department believes that
‘‘auditoriums’’ is more accurate. Therefore, the
Department refers to ‘‘auditoriums’’ throughout this
rule.
10 The remaining venues showing movies using
analog projection systems are found at drive-in
movie theaters, which are not subject to the
requirements of the final rule.
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
87353
content.detail/id/594504/LocalTheaters-Face-Tough-Times-as-35-mmfaces-extinction.html?nav=5016 (last
visited Sept. 12, 2016); see also Colin
Covert, Final Reel Plays Amid Digital
Conversion, Star Tribune (Aug. 27,
2012), available at https://
www.startribune.com/final-reel-playsamid-digital-conversion/167253335/
(last visited Sept. 12, 2016); Krista
Langlois, As Analog Film Grows
Obsolete, Western Towns Struggle to
Keep Theaters Afloat, High Country
News (Jan. 10, 2014), available at https://
www.hcn.org/blogs/goat/as-film-growsobsolete-western-towns-struggle-to-keeptheir-theaters-open (last visited Sept. 12,
2016).
C. Availability of Captioning and Audio
Description
Captioning makes movies accessible
to individuals who are deaf or hard of
hearing and who are unable to benefit
from the sound amplification provided
by movie theaters’ assistive listening
receivers. Currently, captioning is
delivered to patrons in one of two
formats: ‘‘open’’ and ‘‘closed.’’ ‘‘Open’’
movie captioning shows the movie
dialogue and non-speech information in
written form on or near the screen with
the information visible to all patrons
regardless of whether they need to view
the captions. ‘‘Closed’’ movie captioning
displays the movie’s dialogue and nonspeech information in written form on
a captioning device, which is requested
by the individual patron who wishes to
view the captions.
The motion picture industry and the
courts have consistently used the term
‘‘closed captioning’’ to refer to the
provision of captions displayed on
captioning devices at the patron’s seat.
In the television context, however, the
term ‘‘closed captioning’’ has typically
referred to captions that, when
activated, are visible on the TV screen
to all viewers. In this rule, in order to
avoid confusion with the term used for
captions provided in the television
context (as well as in other contexts),
the Department has chosen to use the
terms ‘‘closed movie captioning’’ and
‘‘open movie captioning’’ to specifically
refer to the captioning provided by
movie theaters, except where quoting
the legislative history of the ADA or
specific court decisions.
Closed movie captioning first became
available for analog movies in 1997 but
was never available at many movie
theaters.11 The advent of digital cinema
11 There still is only one technology that provides
closed movie captioning for analog movies. That
technology, known as Rear Window Captioning,
E:\FR\FM\02DER4.SGM
Continued
02DER4
sradovich on DSK3GMQ082PROD with RULES4
87354
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
spurred the development of voluntary
standards to ensure that products that
provide captioning would be compatible
with the various digital cinema systems
available for purchase and used by
movie theaters. As a result, closed
movie captioning became more widely
available. See Michael Karagosian,
Update on Digital Cinema Support for
Those with Disabilities: April 2013,
available at https://www.mkpe.com/
publications/d-cinema/misc/
disabilities_update.php (last visited
Sept. 12, 2016).
There are currently two types of
individual devices that are produced to
deliver closed movie captioning for
digital movies to patrons. These devices
receive a transmission from a server via
an infrared transmitter or Wi-Fi
technology. One type of device utilizes
a small, wireless screen attached to a
flexible goose neck that can be placed in
the cup holder at any movie theater seat
and adjusted to display captions near or
in a patron’s line of vision when looking
at the movie screen. Alternatively,
special eyeglasses are available that a
patron can wear that will exhibit the
captions directly in front of the wearer’s
eyes while watching a movie.
Open movie captioning has
sometimes been referred to as ‘‘burnedin’’ or ‘‘hardcoded’’ captions because in
the early days of captioning they were
burned in or incorporated into the
analog film. Later advancements,
however, enabled studios to
superimpose the captions on the screen
without making a burned-in copy or
having to deliver a special version of the
movie. Today, open movie captioning is
available as a digital file that comes
with the DCP. No additional equipment
is required in order for a movie theater
to display the open movie captions for
a digital movie. The Department is
aware that some movie theaters
currently provide open movie
captioning at certain limited showings
but knows of no movie theater that
routinely utilizes open movie
captioning for all screenings.
Audio description, which also became
available in 1997, enables individuals
who are blind or have low vision to hear
a spoken narration of a movie’s key
visual elements, including, but not
limited to, the action, settings, facial
expressions, costumes, and scene
changes. It requires specially trained
writers to create a separate script that is
then recorded and synchronized with
the movie, included on the audio
channels in the DCP, and delivered from
a server via infrared, FM, or Wi-Fi
systems to wireless headsets that
patrons wear at their seats.
Movie studios and distributors
determine whether a motion picture is
produced and distributed with
captioning and audio description. In
1997, movie studios began to
substantially increase the number of
movies produced with captioning in
response to the Federal
Communications Commission’s
publication of regulations requiring
programming shown on television
(including movies) to be captioned. See
47 CFR 79.1. Additionally, the motion
picture industry’s transformation to
digital cinema has made the delivery of
captioning and audio description to
movie theater patrons easier and less
costly to provide. As early as 2010, the
movie industry indicated its
commitment to provide closed movie
captioning and audio description for
almost all movies released in digital
format.12 Although the Department does
not have data on the exact percentage of
digital movies currently produced with
captioning and audio description, the
Department’s research indicates that
movie studios and distributors regularly
include these accessibility features in
the DCP at no extra charge to movie
theaters. Despite this availability,
however, captioning and audio
description are still not consistently
made available at all movie theaters, or
at all showings, to patrons who are deaf
or hard of hearing, or blind or have low
vision.
does not require a separate copy of the film, and
works using a movie theater’s digital sound system.
Captions are sent to a light-emitting display at the
rear of an auditorium that then reflects and
superimposes the captions onto a panel mounted at
or near a patron’s seat so that the captions appear
close to the movie image.
12 The MPAA announced in its comment on the
2010 Advance Notice of Proposed Rulemaking that
almost all new movies released in digital format
will include closed movie captioning and audio
description. See 2014 NPRM, 79 FR 44976, 44989
(Aug. 1, 2014), for a more detailed discussion of the
MPAA’s comments on the 2010 ANPRM.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
III. Movie Theaters’ Legal Obligation To
Provide Captioning and Audio
Description
A. The ADA and Its Legislative History
The ADA, enacted in July 1990, is a
comprehensive civil rights law that
broadly prohibits discrimination on the
basis of disability and seeks to guarantee
that individuals with disabilities are
provided the same rights, privileges,
and opportunities as other members of
the public. The ADA’s mandate covers
three broad, distinct areas: Employment
(title I), public services (title II), and
places of public accommodation (title
III).
Title III prohibits discrimination on
the basis of disability in the full and
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
equal enjoyment of the goods, services,
facilities, privileges, advantages, or
accommodations of any place of public
accommodation. 42 U.S.C. 12182(a). It
specifically categorizes a movie theater
(‘‘motion picture house’’) as a place of
public accommodation. 42 U.S.C.
12181(7)(C). Under title III, public
accommodations such as movie theaters
are barred from affording an unequal or
lesser service to individuals or classes of
persons with disabilities than is offered
to other persons. 42 U.S.C.
12182(b)(1)(A)(ii). Public
accommodations must also ‘‘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 doing so ‘‘would
fundamentally alter the nature’’ of the
service, or ‘‘result in an undue burden.’’
42 U.S.C. 12182(b)(2)(A)(iii). The statute
specifies that auxiliary aids and services
include effective methods of making
aurally or visually delivered materials
available to individuals with hearing
disabilities or vision disabilities,
respectively, and expressly covers
‘‘taped texts.’’ 42 U.S.C. 12103(1)(A)–
(B).
While the ADA’s text does not refer to
movie captioning, the legislative history
does. The congressional House and
Senate committee reports accompanying
the legislation noted that ‘‘[o]pen
captioning * * * of feature films
playing in movie theaters * * * is not
required’’ by the ADA. H.R. Rep. No.
101–485, pt. 2, at 108 (1990); S. Rep. No.
101–116, at 64 (1989). At that time, the
only way to create open movie
captioning was to make a separate print
of the movie and then laser-etch, or
‘‘burn,’’ the captions onto that separate
print.13 The House and Senate
committees nonetheless endorsed open
captioning as a means to provide
individuals who are deaf or hard of
hearing equal access to the movies,
stating that ‘‘[f]ilmmakers are, however,
encouraged to produce and distribute
open-captioned versions of films and
theaters are encouraged to have at least
some preannounced screenings of a
captioned version of feature films.’’ S.
Rep. No. 101–116, at 64; see also H.R.
Rep. No. 101–485, pt. 2, at 108.
The House committee report also
emphasized that the types of
accommodations and services provided
to individuals with disabilities ‘‘should
keep pace with the rapidly changing
13 Limited copies of the open-captioned version
were made and given to only some movie theaters
and then only after the uncaptioned version had
already been distributed.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
technology of the times.’’ H.R. Rep. No.
101–485, pt. 2, at 108. It explained that
‘‘technological advances can be
expected to further enhance options for
making meaningful and effective
opportunities available to individuals
with disabilities’’ and ‘‘[s]uch advances
may require public accommodations to
provide auxiliary aids and services in
the future which today would not be
required.’’ Id.
Neither closed movie captioning nor
audio description existed when the
ADA was enacted. Both, however, fall
within the type of auxiliary aid
contemplated by the statute. Given the
current availability of digital movies
with closed movie captioning and audio
description, as well as the individual
devices to provide those accessibility
features to movie patrons who are deaf
or hard of hearing, or blind or have low
vision, the Department believes that a
rule requiring movie theaters to offer
closed movie captioning and audio
description for digital movies fits
comfortably within the meaning of the
ADA’s mandate.
B. Title III’s Implementing Regulation
Title III’s implementing regulation
reiterates the statute’s requirements and
spells out in detail a public
accommodation’s obligation to furnish
auxiliary aids and services to
individuals with disabilities. 28 CFR
36.303(c)(1). The regulation’s list of
examples of ‘‘auxiliary aids and
services’’ that public accommodations
should provide includes ‘‘open and
closed captioning’’ as examples of
effective methods of making aurally
delivered information available to
individuals with hearing disabilities
and ‘‘audio recordings’’ as an example
of an effective method of making
visually delivered materials available to
individuals with vision disabilities. 28
CFR 36.303(b)(1)–(2). The Department
updated this list 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, 56253–54 (Sept. 15, 2010).
The title III regulation states 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
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
burden. 28 CFR 36.303(a). The
overarching 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 who are
unable to effectively use the assistive
listening receivers currently provided in
movie theaters to amplify sound, the
only auxiliary aid presently available
that would effectively communicate the
dialogue and sounds in a movie is
captioning. Likewise, for individuals
who are blind or who have 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 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 determination, lists five factors
that must be considered when
determining whether an action would
result in an undue burden. 28 CFR
36.104.14 The undue burden
determination entails a fact-specific
examination of the cost of a specific
action and the specific circumstances of
14 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.
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
87355
a particular public accommodation.
This compliance limitation is intended
to ensure that the needs of small
businesses, as well as large businesses,
are addressed and protected. The
Department defines a fundamental
alteration as a ‘‘modification that is so
significant that it alters the essential
nature of the goods, services, facilities,
privileges, advantages, or
accommodations offered.’’ U.S.
Department of Justice, Americans with
Disabilities Act ADA Title III Technical
Assistance Manual Covering Public
Accommodations and Commercial
Facilities III–4.3600 (1993), available at
https://www.ada.gov/taman3.html.
The current section 36.303(g)
(renumbered as 36.303(h) in this final
rule) provides that if the provision of a
particular auxiliary aid or service by a
public accommodation would result in
an undue burden or a fundamental
alteration, the public accommodation is
not relieved of its obligation 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 a burden or alteration but
would nevertheless ensure that, to the
maximum extent possible, individuals
with disabilities receive the goods and
services offered by the public
accommodation.
It has been, and continues to be, the
Department’s position that it would not
be a fundamental alteration of the
business of showing movies in theaters
to exhibit movies already distributed
with closed movie captioning and audio
description in order to ensure effective
communication for individuals who are
deaf or hard of hearing, or blind or have
low vision. The service that movie
theaters provide is the screening or
exhibiting of movies. The use of
captioning and audio description 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 such
auxiliary aids is the means by which
these individuals gain access to movie
theaters’ services and thereby achieve
the ‘‘full and equal enjoyment,’’ 42
U.S.C. 12182(a), of the screening of
movies. See, e.g., Brief for the United
States as Amicus Curiae Supporting
Appellants and Urging Reversal at 15–
17, Arizona ex rel. Goddard v. Harkins
Amusement Enters., Inc., 603 F.3d 666
(9th Cir. 2010) (No. 08–16075); see also
2014 NPRM, 79 FR 44976, 44982–83
(Aug. 1, 2014).15
15 The Department received no public comments
challenging that position.
E:\FR\FM\02DER4.SGM
02DER4
87356
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
C. Federal Appellate Case Law
The Ninth Circuit is the only Federal
court of appeals to address the question
whether the ADA requires movie
theaters to provide captioning and audio
description to patrons who are deaf or
hard of hearing, or blind or have low
vision. See Arizona ex rel. Goddard v.
Harkins Amusement Enters., Inc., 603
F.3d 666 (9th Cir. 2010). In Harkins, the
Ninth Circuit reversed a district court
decision dismissing a complaint for
failure to state a claim and held that
‘‘closed captioning’’ and audio
description are ‘‘auxiliary aids and
services’’ that the ADA may require
movie theaters to provide. Id. at 668,
675. Evaluating the statute’s language,
implementing regulation, and case law,
the Harkins court reasoned that because
a public accommodation has a duty to
provide auxiliary aids and services,
including ‘‘closed captioning’’ and
audio description, a movie theater
unlawfully discriminates when it fails
to offer ‘‘closed captioning’’ and audio
description to persons who have
difficulty hearing or seeing, absent proof
that those features would fundamentally
alter the nature of the theater’s services
or constitute an undue burden. Id. at
675.
sradovich on DSK3GMQ082PROD with RULES4
IV. Rulemaking History Regarding
Captioning and Audio Description
A. Prior to 2010
On September 30, 2004, the
Department published an Advance
Notice of Proposed Rulemaking
announcing its intention to update the
1991 title II and title III ADA regulations
and to adopt revised ADA Accessibility
Standards. 69 FR 58768 (Sept. 30, 2004)
(2004 ANPRM). While the 2004 ANPRM
did not mention movie captioning or
audio description, several commenters
suggested that the Department issue a
rule regulating these features.
Subsequently, when the Department
issued a Notice of Proposed Rulemaking
in June 2008, 73 FR 34508 (June 17,
2008) (2008 NPRM), proposing
comprehensive updates to the title III
regulation relating to nondiscrimination
on the basis of disability by public
accommodations and commercial
facilities, the Department announced
that it was considering rulemaking that
would require movie theaters to provide
captioning and audio description for
patrons who are deaf or hard of hearing,
or who are blind or have low vision. 73
FR at 34530–31.
The 2008 NPRM did not propose any
specific regulatory language addressing
captioning and audio description.
Rather, the Department emphasized that
movie theaters should be left with the
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
discretion to select the appropriate
technology should captioning and audio
description be required for patrons with
hearing and vision disabilities.
Nonetheless, the Department inquired
whether it should require movie
theaters to exhibit all new movies with
captioning and audio description at
every showing or offer those features on
a limited basis.
Most of the commenters on the 2008
NPRM who addressed the issue of
captioning and audio description
recommended that the Department issue
regulations requiring movie theaters to
provide both features at all showings
unless doing so would result in an
undue burden or a fundamental
alteration. These commenters urged the
Department to act promptly and not
await completion of movie theaters’
ongoing conversion to digital cinema
because the technology for captioning
and audio description had been
available for approximately ten years
and few movie theaters provided either
feature to their patrons. Commenters
affiliated with the movie industry
opposed the Department requiring
movie theaters to offer captioning or
audio description and claimed that the
cost of the necessary equipment would
constitute an undue burden. They also
maintained that if the Department
decided to issue a rule, the effective
date should be delayed until movie
theaters completed their conversion to
digital cinema. See Advance Notice of
Proposed Rulemaking,
Nondiscrimination on the Basis of
Disability; Movie Captioning and Video
Description, 75 FR 43467 (July 26,
2010), for a more detailed discussion of
comments on the 2008 NPRM.
B. The 2010 Advance Notice of
Proposed Rulemaking on Captioning
and Video Description
In 2010, uncertain about the status of
digital conversion, the availability of
captioning and audio description
technology, and financial setbacks to
many public accommodations due to
the downturn in the economy over the
ensuing 2 years, the Department
published the Advance Notice of
Proposed Rulemaking,
Nondiscrimination on the Basis of
Disability; Movie Captioning and Video
Description, 75 FR 43467 (July 26, 2010)
(2010 ANPRM), specifically addressing
‘‘closed [movie] captioning’’ and ‘‘video
description.’’ 16 The Department sought
16 The 2010 ANPRM used the term ‘‘video
description’’ to refer to the provision of descriptive
information about a movie to persons who are blind
or have low vision. As discussed in this rule, the
Department is now using the term ‘‘audio
description.’’
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
comments in response to 26 questions
falling into six categories: Coverage of
any proposed rule; transition to digital
cinema; equipment and technology for
both analog and digital movies; notice;
training; and cost and benefits of
captioning and audio description. While
the Department did not propose specific
regulatory language, it noted that it was
considering a rule that would require 50
percent of movie theater screens
(auditoriums) 17 to offer captioning and
audio description over a 5-year period
and specifically sought comment on that
approach. 75 FR at 43474.
The Department received over 1150
comments on the 2010 ANPRM. Almost
all commenters favored a rule that
required movie theaters to provide
captioning and audio description, and
the vast majority recommended that
these features be required at all movie
showings. Although industry
commenters recommended that
compliance be phased in over a 5-year
schedule with 20 percent compliance
each year, most commenters
recommended that the requirement be
implemented immediately.
C. The 2014 Notice of Proposed
Rulemaking on Movie Captioning and
Audio Description
After considering all of the comments
on the 2010 ANPRM and the rapid rate
at which movie theaters were converting
from analog to digital projection
systems, the Department published a
Notice of Proposed Rulemaking on
August 1, 2014, entitled
Nondiscrimination on the Basis of
Disability by Public Accommodations—
Movie Theaters; Movie Captioning and
Audio Description, 79 FR 44976 (Aug. 1,
2014) (2014 NPRM). In the 2014 NPRM,
the Department proposed that movie
theaters be required to provide
captioning and audio description at all
scheduled showings of any movie that
is produced or otherwise distributed
with such features. 79 FR at 44977. The
Department also proposed that each
movie theater have available a certain
number of captioning devices based on
the number of seats in the movie theater
and have available a certain number of
audio description devices based on the
number of screens (auditoriums) in the
theater. 79 FR 44976. The Department
further proposed that movie theaters
17 In the 2010 ANPRM, the Department used the
term ‘‘screens’’ to describe the movie theater
facilities that needed to be capable of providing
captioning and audio description, but the
Department has replaced the term ‘‘screens’’ with
the term ‘‘auditoriums’’ in the final rule. Although
the terms are synonymous in the movie theater
context, the Department believes that
‘‘auditoriums’’ is more accurate.
E:\FR\FM\02DER4.SGM
02DER4
sradovich on DSK3GMQ082PROD with RULES4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
provide notice of the availability of
captioning and audio description as
well as ensure that knowledgeable staff
are available to operate the equipment
and assist patrons in the use of the
captioning and audio description
devices. 79 FR 44976–77. The
Department sought public comment in
response to 21 multi-part questions
addressing a variety of areas, including
the state of the movie industry; the
proposed definitions and the
nomenclature to be adopted; the
compliance date; the basis for
determining the number of devices
required at each theater; the alternatives
for analog as well as small theaters; and
the Department’s methodology for
estimating the costs and benefits of the
rule.
The Department received 436
comments from a range of stakeholders,
including individuals, both with and
without disabilities, advocacy groups
representing individuals with
disabilities, State and Federal entities,
movie industry representatives, private
companies, and other organizations. The
Department received a joint comment
submitted by the National Association
of Theater Owners in conjunction with
the Alexander Graham Bell Association
for the Deaf and Hard of Hearing, the
Association of Late Deafened Adults,
the Hearing Loss Association of
America, and the National Association
of the Deaf (Joint Comment), which
included a variety of specific
recommendations.18 In addition, the
Department participated in a roundtable
sponsored by the Office of Advocacy of
the Small Business Administration at
which organizations representing small
movie theaters as well as individual
owners expressed their views.
Overall, the commenters supported
the Department’s stated purpose for
proposing the rule. Individuals and
industry representatives alike
recognized that captioning and audio
description in movie theaters is
necessary in order to provide equal
access to individuals with hearing and
vision disabilities. Nearly all
commenters disagreed, however, with
the Department’s basis for determining
the number of devices required at each
movie theater, including the number of
captioning devices required. Most
commenters also objected to the
Department’s proposed 6-month
compliance date.
18 The specific recommendations proposed in the
Joint Comment and all other comments are
addressed in the Section-by-Section Analysis.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
D. Need for Regulatory Action
1. Movies in American Culture
Going to the movies is a
quintessential American experience.
‘‘Movie theaters continue to draw more
people than all theme parks and major
U.S. sports combined.’’ MPAA,
Theatrical Market Statistics 2014, at 10
(Mar. 2015), available at https://
www.mpaa.org/wp-content/uploads/
2015/03/MPAA-Theatrical-MarketStatistics-2014.pdf (last visited Sept. 12,
2016). In addition, going to the movies
is an important part of the American
family experience. Long holiday
weekends offer the movie industry some
of its biggest box office sales as families
gather for the holidays and attend the
movies together.
It has long been recognized that
movies are undoubtedly a part of our
shared cultural experience and the
subject of ‘‘water cooler’’ talk and
lunch-time conversations. More than
half a century ago, the Supreme Court
observed that motion pictures ‘‘are a
significant medium for the
communication of ideas,’’ and their
‘‘importance * * * 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). The
Court emphasized that motion pictures
‘‘may affect public attitudes and
behavior in a variety of ways, ranging
from direct espousal of a political or
social doctrine to the subtle shaping of
thought which characterizes all artistic
expression.’’ Id. When individuals who
are deaf or hard of hearing, or blind or
have low vision, have the opportunity to
attend and actually understand movies
with the aid of captioning or audio
description, they are exposed to new
ideas and gain knowledge that not only
contributes to their development,
communication, and literacy, but more
fundamentally, integrates them into
society.
In response to the 2014 NPRM,
commenters with hearing and vision
disabilities consistently reported that
they were unable to take part in the
movie-going experience because of the
unavailability of captioning or audio
description at their local movie theaters.
Many individuals stated that the lack of
these accessibility features 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 relating to current movie
releases.
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
87357
2. Movie Patrons With Hearing and
Vision Disabilities
Individuals with hearing and vision
disabilities represent a significant
portion of the American population.
According to the 2010 Census, 7.6
million Americans ages 15 and older
reported that they experience 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. Census data
also reflects that 8.1 million Americans
ages 15 and older reported having some
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
that 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 https://
www.census.gov/prod/2012pubs/p70131.pdf (last visited Sept. 12, 2016).
Hearing and vision loss are highly
correlated with aging. Census data
indicates that for people aged 65 or
older, 4.2 million have difficulty
hearing and 3.8 million reported having
difficulty seeing. Id. As the nation’s
population ages, the number of
individuals with hearing or vision loss
will increase significantly.19 Research
indicates that the number of Americans
with hearing loss has doubled during
the past 30 years. See American SpeechLanguage-Hearing Association, The
Prevalence and Incidence of Hearing
Loss in Adults, available at https://
www.asha.org/public/hearing/disorders/
prevalence_adults.htm (last visited
Sept. 12, 2016). Similarly, experts
predict that by 2030 rates of severe
vision loss will double in
correspondence with the country’s aging
population. See American Foundation
for the Blind, Aging and Vision Loss
Fact Sheet, available at https://
www.afb.org/section.aspx?
FolderID=3&SectionID=44&
TopicID=252&DocumentID=3374 (last
visited Sept. 12, 2016). These increases
19 The percentage of Americans approaching
middle age or older is increasing. The 2010 Census
reported that from 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: 2010, at 2
(2011), available at www.census.gov/prod/cen2010/
briefs/c2010br-03.pdf (last visited Sept. 12, 2016).
E:\FR\FM\02DER4.SGM
02DER4
87358
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
will likely lead to corresponding
increases in the number of people who
will need captioning or audio
description. While not all of these
individuals will necessarily take
advantage of the captioning and audio
description that will be provided under
this rule, a significant portion of the
population could directly benefit from
their availability (see infra section V.A.4
for a more detailed discussion of the
population eligible to receive benefits).
Several commenters on the 2014
NPRM objected to the Department’s
reliance on Census data and argued that
such reliance caused the Department to
overstate the number of persons with
hearing and vision disabilities who will
actually use the captioning and audio
description devices required by this
rule. Others from the deaf, hard of
hearing, blind, and low vision
communities asserted that the number
of individuals who experience hearing
and vision disabilities is actually much
higher than reported in the most current
Census.20 According to these comments,
individuals who have recently
developed hearing or vision disabilities
fail to define themselves as such for
purposes of the formal U.S. Census
process. However, none of these
commenters provided data sources
concerning the number of persons who
are deaf, hard of hearing, blind, or have
low vision, that are as comprehensive as
the Census data. Thus, the Department
continues to rely on Census data and
believes it to be the most accurate
available information regarding the
number of persons in the population
with these disabilities.
While the Department recognizes that
it is unlikely that persons with hearing
and vision disabilities attend the movies
with greater regularity than do persons
without disabilities, some individuals
with hearing and vision disabilities
undoubtedly do not go to movies
because the absence of captioning and
audio description makes it impossible
for them to understand what is
happening. The Department also notes
that many people with hearing loss are
unable to use the assistive listening
receivers that the ADA currently
20 For example, a Johns Hopkins University
epidemiological study conducted by Frank Lin,
M.D., Ph.D., which is believed to articulate the first
nationally representative estimate of hearing loss,
estimates that approximately 48 million Americans
have hearing loss in at least one ear, and
approximately 30 million Americans have hearing
loss in both ears. ‘‘Hearing loss’’ was defined as not
being able to hear sounds of 25 decibels or less in
speech frequencies. See News Release, Johns
Hopkins Medicine, One in Five Americans Has
Hearing Loss (Nov. 14, 2011), available at https://
www.hopkinsmedicine.org/news/media/releases/
one_in_five_americans_has_hearing_loss (last
visited Sept. 12, 2016).
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
requires movie theaters to provide
because these devices only provide
sound amplification, and, for such
individuals, amplification is insufficient
to effectively communicate the dialogue
and sounds taking place in the movie.21
3. Voluntary Compliance
Some movie industry commenters
asserted that because many movie
theater companies already provide
captioning and audio description, the
Department should refrain from
regulating in this area and continue to
rely on ‘‘voluntary compliance’’ by the
movie theaters. However, individuals
with hearing and vision disabilities and
other commenters noted that despite the
fact that captioning and audio
description have been available for more
than a decade and those features are
widely available to movie theaters at no
additional charge, many movie theaters
still only show movies with captioning
and audio description at intermittent
times, and some movie theaters do not
offer these services at all.
The Department recognizes that since
the publication of its 2010 ANPRM (see
supra section IV.B) the number of movie
theaters that are showing movies with
closed movie captioning and audio
description, as well as their regularity in
offering those features, has increased
significantly. This described increase is
attributable in large part 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.22 Commenters advised
21 ‘‘While we 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, the speech may be audible but may not
be understandable.’’ Self Help for Hard of Hearing
People of Oregon, Facing the Challenge: A
Survivor’s Manual for Hard of Hearing People
(revised 4th ed. Spring 2011), available at https://
www.hearinglossky.org/hlasurvival1.html (last
visited Sept. 12, 2016).
22 See, e.g., Press Release, Illinois Attorney
General, Madigan Announces Settlement with AMC
Theatres (Apr. 4, 2012), available at https://
illinoisattorneygeneral.gov/pressroom/2012_04/
20120404.html (last visited Sept. 12, 2016)
(settlement providing for captioning and audio
description technology in all AMC theaters in the
State of Illinois); Wash. State Commc’n Access
Project v. Regal Cinemas, Inc., 293 P.3d 413 (Wash.
Ct. App. 2013) (upholding trial court decision
under Washington Law Against Discrimination
requiring six movie theater chains to provide
captioning in the screening of movies in order to
accommodate persons who are deaf or hard of
hearing); Consent Decree, Arizona ex rel. v. Harkins
Amusement Enters., Inc., No. CV07–703 PHX ROS
(D. Ariz. Nov. 7, 2011); Complaint, Ass’n of Late-
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
the Department that despite the increase
in the availability of captioning and
audio description in many parts of the
country, these features are still not
consistently available at all movie
theaters.
The Department believes that access
to movie theaters for persons who are
deaf or hard of hearing, or blind or have
low vision, should not depend upon
where they live.23 The Department
believes it is in the interest of both the
movie theater industry and persons with
disabilities to have consistent
requirements for captioning and audio
description throughout the United
States and that this is best accomplished
through revising the ADA’s title III
regulation. As commenters noted, a
consistent, nationally applicable
regulation ensures that individuals with
hearing and vision disabilities can go to
the movies with confidence knowing
that their movie theater offers these
services. The Department is persuaded
that it should move forward with this
regulation so that the current and everincreasing number of individuals with
hearing and vision disabilities who are
unable to enjoy the services offered by
movie theaters are afforded equal access
to this facet of American life.
V. Regulatory Process Matters
A. Executive Orders 12866 and 13563—
Summary of Regulatory Assessment
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
Deafened Adults, Inc. v. Cinemark Holdings, Inc.,
No. 10548765 (Cal. Super. Ct. Nov. 30, 2010)
(complaint relating to later settlement requiring
Cinemark to provide closed movie captioning in all
of 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 (Apr. 26, 2011),
available at https://www.cinemark.com/
pressreleasedetail.aspx?node_id=22850 (last visited
Sept. 12, 2016).
23 It is the Department’s understanding that
persons who live in communities served only by
smaller regional movie theater chains are 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 movie 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 movie theaters offer both closed and open
movie captioning and audio description and
updates its Web site regularly. See Captionfish,
Frequently Asked Questions, https://
www.captionfish.com/faq (last visited Sept. 12,
2016). The Department also bases this belief on
information from comments that accessibility is
scarce outside of major metropolitan areas.
Advocacy groups commented that they consistently
receive complaints from individuals with hearing
and vision disabilities who are denied equal access
at movie theaters operated by companies not subject
to the various settlement agreements.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
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. The
Department has assessed the costs and
benefits of this final rule and believes
that the rule’s benefits justify its costs,
and that the regulatory approach
selected maximizes net benefits.
In keeping with Executive Order
12866, the Department has evaluated
this 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 Final RA shows that this
regulation does not represent an
economically ‘‘significant’’ regulatory
action within the meaning of Executive
Order 12866.
The Department’s full Final RA can be
found on the Department’s Web site at
https://www.ada.gov. The Department
refers to sections of the Final RA
throughout.
1. Purpose and Need for Rule and Scope
of Regulatory Assessment
As described in greater detail in
section III, supra, and section 1.1 of the
Final RA, public accommodations that
own, lease, or operate movie theaters
have an existing obligation to provide
effective communication to persons
with disabilities through the use of
auxiliary aids and services. This rule
provides greater specificity as to how
these effective communication
obligations are met when showing
digital movies that are produced,
distributed, or otherwise made available
with captioning and audio description.
While there has been an increase in
the number of movie theaters exhibiting
movies with closed movie captioning
(and, to a lesser extent, audio
description) due in large part to
successful disability rights litigation
brought by private plaintiffs and State
attorneys general during the past few
years, the availability of movies
exhibited with closed movie captioning
and audio description varies
significantly across the U.S. depending
upon locality and movie theater
ownership. The ADA requirements for
effective communication apply to all
public accommodations (including
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
movie theaters) in every jurisdiction in
the U.S. and should be consistently
applied using a uniform ADA standard.
The right to access movies exhibited
with closed movie captioning and audio
description should not depend on
whether the person with a disability
resides in a jurisdiction where movie
theaters subject to a consent decree or
settlement exhibit movies with closed
movie 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. Thus,
some persons who are deaf or hard of
hearing, or blind or have low vision,
still cannot fully take part in moviegoing outings with family or friends,
join in social conversations about recent
movie releases, or otherwise participate
in a meaningful way in an important
aspect of American culture.
The Department is convinced that
regulation is warranted at this time in
order to achieve the goals and promise
of the ADA. Through this rule, the
Department is explicitly requiring
movie theaters to exhibit digital movies
with closed movie captioning and audio
description at all times and for all
showings whenever movies are
produced, distributed, or otherwise
made available with such features
unless to do so would result in an
undue burden or a fundamental
alteration.
The purpose of the Final RA is to
capture the incremental costs of the
rulemaking. As a result, the Final RA
only includes the costs that movie
theaters will incur as a direct result of
this rulemaking. It is the Department’s
position that movie theaters that have
already acquired the necessary
equipment prior to the rulemaking have
done so consistent with their
longstanding obligation to provide
effective communication as public
accommodations, and as a result, the
costs associated with providing closed
movie captioning and audio description
in such auditoriums cannot be directly
attributed to this rulemaking. The
analysis also assumes that movie
theaters with auditoriums currently
equipped to provide closed movie
captioning and audio description would
also operate and maintain this
equipment in the absence of this rule.
Therefore, these costs are not included
in the Final RA’s total costs estimation
unless specifically noted.
PO 00000
Frm 00013
Fmt 4701
Sfmt 4700
87359
2. Public Comments on the Initial
Regulatory Assessment and Department
Responses
This section discusses comments on
the Initial Regulatory Assessment dated
July 11, 2014 (Initial RA), provided in
support of the 2014 NPRM. The
Department received 436 comments
during the 2014 NPRM comment period
from a variety of stakeholders, including
movie industry representatives,
individuals with disabilities, advocacy
groups representing individuals with
disabilities, State and Federal entities,
academic organizations, private
companies, and other private
individuals. Many of these comments
directly addressed the assumptions,
data, or methodology used in the Initial
RA.
The Guidance and Section-by-Section
Analysis, Appendix F, infra, is the
primary forum for substantive responses
to the comments addressing the
proposed regulation generally. A
summary and discussion of comments
as they relate to small entities can be
found below in section VI.B.
General Comments Regarding the Initial
RA’s Cost Estimation
The Department reviewed a number
of comments suggesting that the
Department underestimated the costs of
complying with this rule. Commenters
disagreed with a variety of cost
estimates provided in the Initial RA. As
a threshold matter, the Department
agrees that in some instances, the
estimates provided did not accurately
capture a particular cost of compliance.
For example, after reviewing the public
comments, the Department determined
that the staff training costs estimated in
the Initial RA did not adequately
capture the costs to comply with the
operational requirements of the rule,
and the equipment unit costs used in
the Initial RA did not represent the most
current market price of the available
equipment. As a result, the Department
has updated these estimates in response
to the public comments received.
However, the Department is confident
that other estimates were reasonable and
remain supported by the Department’s
independent research. In consideration
of all comments, the Department has
made adjustments where appropriate.
The comments at issue and related
comments are specifically addressed
below.
Comments Regarding the Cost of
Captioning and Audio Description
Equipment
In the Initial RA, the Department
estimated the costs of compliance with
E:\FR\FM\02DER4.SGM
02DER4
87360
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
the proposed rule by estimating the
number of hardware units and device
units the average movie theater within
each venue type 24 would need in order
to comply with the scoping
requirements, which determine the
number of captioning devices and audio
description devices a movie theater is
required to have and maintain. Because
the proposed scoping for captioning
devices was based on the number of
seats within a movie theater, the
Department estimated the average seat
count across each venue type. The
Department also estimated the average
number of auditoriums across each
venue type to estimate the number of
audio description devices and hardware
units needed. One commenter noted
that the Department’s estimates
regarding the number of seats and
auditoriums were too low, especially for
single-auditorium and miniplex movie
theaters. Because of this
underestimation, the commenter
believed that small movie theater
establishments would be required to
purchase many more captioning devices
than the Department assumed in its cost
analysis. Based on industry survey
information provided by the National
Association of Theater Owners (NATO)
in its individual comment, the
Department has updated the Final RA
cost estimation to reflect new data
regarding average auditorium counts
across venue types. Data concerning
average seat count is no longer relevant
because the final rule’s scoping for
captioning devices is based on the
number of auditoriums, rather than the
number of seats, within a movie theater.
See section 3.3 of the Final RA for a
more detailed discussion of the scoping
requirements of this rulemaking and
their impact on the Final RA.
The Department also received
multiple comments concerning the unit
costs for the hardware and individual
devices as well as the Department’s
methodology regarding these estimates.
NATO provided the most recent unit
cost data for all captioning and audio
description equipment currently
available on the market, and the
Department has updated its cost
estimates in the Final RA to reflect this
24 In the Initial RA, the Department used the term
‘‘theater type’’ to describe the movie industry’s
classification of movie theaters based on the
number of auditoriums within a movie theater
complex. In the Final RA, the Department has
replaced ‘‘theater type’’ with ‘‘venue type’’ in order
to avoid potential confusion with the classification
of movie theaters based on projection system (i.e.,
digital vs. analog) and the distinction between
indoor movie theaters and drive-in movie theaters.
The Final RA divides movie theaters into four
venue types: megaplex, multiplex, miniplex, and
single-auditorium. See section 2.1.4 of the Final RA.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
updated information. See section 3.4 of
the Final RA for a more detailed
discussion of the captioning and audio
description unit costs and their impact
on the Final RA.
In the Initial RA, the Department
estimated the upfront costs for the
captioning and audio description
equipment by averaging the hardware
and device unit costs of some
equipment available on the market. One
commenter stated that the Department’s
methodology concerning the average
hardware and device unit costs for
captioning and audio description
equipment was insufficient because it
only averaged the costs of the less
expensive equipment. According to the
commenter, many movie theaters
purchase the more expensive captioning
glasses offered by Sony to satisfy
audience demand, and as a result, the
Initial RA substantially underestimated
the cost of compliance by excluding the
cost of Sony’s equipment from the
average cost estimates. A second
commenter pointed out that the intent
of the RA is to estimate the minimum
cost of compliance, indicating that the
Department’s methodology and estimate
regarding the upfront costs were
reasonable.
Executive Order 12866 requires the
Department to estimate the costs that
movie theaters will incur as a result of
this rulemaking. Currently, there is
more than one manufacturer of the
equipment necessary to provide
captioning and audio description, and
the cost for the equipment varies among
the manufacturers. The Department has
not specified the manufacturer from
which movie theaters must purchase the
equipment, and movie theaters retain
the discretion to purchase the
equipment of their choice. As a result,
the Department has included the cost
for all available equipment, including
the Sony equipment, in its estimate of
the captioning and audio description
equipment unit costs for miniplex,
multiplex, and megaplex movie
theaters. The Department has not added
the cost of the Sony equipment to its
estimate of hardware and device unit
costs for single-auditorium movie
theaters because the Department
remains convinced that small movie
theater establishments are highly
unlikely to purchase the more expensive
equipment. As the Department’s
independent research indicates, the less
expensive cup holder captioning
devices account for the largest
percentage of the captioning device
market share, and NATO advised the
Department that few movie theaters
outside of the top movie theater chains
actually use Sony’s captioning glasses.
PO 00000
Frm 00014
Fmt 4701
Sfmt 4700
Therefore, while other large movie
theater establishments may choose to
use Sony’s technology, the Department
has excluded this equipment from its
estimate of the upfront costs for singleauditorium movie theaters. See section
3.4 of the Final RA for a more detailed
discussion of Sony equipment unit costs
and their impact on the Final RA.
Comments Regarding Other Cost
Estimates: Staff Training, Notice,
Installation, Replacement, and
Operation and Maintenance
In addition to the comments
addressing the captioning and audio
description equipment cost estimates,
the Department received a number of
comments addressing other cost
estimates provided in the Initial RA.
These comments addressed the
Department’s estimate of staff training
costs, notice costs, acquisition and
installation costs, replacement costs,
and operation and maintenance costs.
Overall, commenters indicated that the
Department either failed to include
these costs in its estimates or that the
Department’s estimate for these costs
was too low.
The Department originally included
staff training costs associated with the
rule in its estimate of the annual
operations and maintenance costs, but
the Department sought public comment
on the amount of additional time movie
theaters would spend training their
employees to operate the captioning and
audio description devices and to assist
patrons in their use. The Department
received a single comment in response
to this question. One movie theater
anticipated that movie theaters would
spend an additional 15 minutes on
employee training to ensure that their
staff was knowledgeable about the
equipment and in compliance with the
rule’s operational requirements. In
consideration of this comment, the
Department has included a separate
estimate for the staff training costs
associated with the operational
requirements of the final rule. The
information provided by the movie
theater commenter serves as the basis
for the staff training costs estimate. See
section 3.7 of the Final RA for a more
detailed discussion of the data, research,
and assumptions used to estimate staff
training costs.
The Department received only a few
comments regarding its position that
any cost associated with the notice
requirement would be de minimis. One
commenter argued that requiring notice
in all places where movie times are
listed would cost the industry millions
of dollars annually because theaters
would be required to invest in software
E:\FR\FM\02DER4.SGM
02DER4
sradovich on DSK3GMQ082PROD with RULES4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
upgrades, the purchase of new signage
on an ongoing basis, the purchase of
digital display sets, and increased
advertising space to accommodate more
text. However, this commenter did not
provide any information or data to
support this position, and the only other
commenter on this issue, a movie
theater, agreed with the Department’s
conclusion that notice costs would be
de minimis. According to this movie
theater, the notice costs associated with
the rule would be minimal for most
exhibitors considering that the industry
has largely separated itself from print
advertising in favor of online
advertising and adding icons for
captioning and audio description would
not be very difficult.
Based on the Department’s
independent research and the comments
received, the Department maintains its
position that the costs associated with
the notice requirement are de minimis.
The notice requirement does not require
a movie theater to implement a specific
form of notice. Movie theaters routinely
use ‘‘CC’’ and ‘‘AD’’ or ‘‘DV’’ to indicate
the availability of closed movie
captioning and audio description in
their communications currently,
including on their Web sites and mobile
apps, and the Department’s research
indicates that the inclusion of such
symbols does not increase the cost of
advertisements already placed or
require software upgrades as one
commenter indicated. For a more
detailed discussion of those costs
associated with this rulemaking that the
Department has determined to be de
minimis, see section 2.4.4.2 of the Final
RA.
The Department also disagrees with
commenters who criticized the
Department’s failure to include accurate
equipment unit costs and installation
costs in the Initial RA. As the
Department indicated in the Initial RA,
the unit cost estimates for the available
equipment included the cost to install
the equipment, and these unit cost
estimates were based on the most up-todate data available to the Department
during the development of the Initial
RA. See section 4.6 of the Initial RA.
The Department has updated the
equipment unit cost estimates, now
referred to as ‘‘acquisition costs’’ in the
Final RA, to reflect the most recent data
concerning the unit costs for all
available hardware and devices. The
Final RA also now calculates
installation costs as a separate cost
based on a movie theater’s upfront costs.
For a more detailed discussion of the
data, research, and assumptions used to
estimate the installation costs, see
section 3.5 of the Final RA.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
A couple of comments addressed the
replacement costs estimated in the
Initial RA, specifically the replacement
costs of the individual devices. One
commenter estimated that the useful life
of the captioning devices is about 5
years. According to NATO, industry
data indicates that between 2.5 percent
and 15 percent of individual devices
must be replaced annually. The
Department has updated the estimate of
individual device replacement costs to
reflect the industry data provided by
NATO. To incorporate the individual
devices’ estimated 4-to-7-year useful
life, the Department estimates that 20
percent of all captioning and audio
description devices purchased as a
result of this rulemaking will be
replaced annually. For a more detailed
discussion of the data, research, and
assumptions used to estimate the
replacement costs, see section 3.6 of the
Final RA.
Several commenters also argued that
the Department’s estimate regarding
operation and maintenance costs was
too low. According to these
commenters, the maintenance costs
include costs associated with
replacement batteries, periodic system
testing, and upgrading software, and
because these costs are relative to the
cost of the equipment, the Department
should consider the high cost of the
devices when estimating this cost. A
few comments seemed to express
confusion that the operations and
maintenance cost estimate in the Initial
RA encompassed the costs associated
with installation, replacement, and staff
training. The Department has
considered these comments and has
included separate cost estimates for the
costs associated with installation,
replacement, and staff training.
However, the Department’s independent
research confirms that 3 percent of total
equipment acquisition costs represents
an accurate estimate of the annual
operation and maintenance costs
associated with this rule, especially now
that installation, replacement, and staff
training costs are estimated separately.
The relevant cost category has been
renamed ‘‘maintenance and
administrative costs’’ in the Final RA.
For a more detailed discussion of the
data, research, and assumptions used to
calculate the maintenance and
administrative costs of this rule, see
section 3.8 of the Final RA.
Comments Regarding the Benefits
Estimate
The Department discussed the
qualitative benefits associated with this
rule in the Initial RA. Without reliable
information about the number of
PO 00000
Frm 00015
Fmt 4701
Sfmt 4700
87361
individuals who would go to the movies
as a result of this rule or the number of
captioned and audio-described
screenings already shown, the
Department determined that the benefits
of the rule were difficult to quantify.
Nonetheless, the Department
determined that many individuals, both
those with and without disabilities,
would benefit as a result of the rule, and
that such benefits justified any
associated costs. Furthermore, the
Department fully expected that the
guarantee of access to movies screened
at movie theaters for individuals with
hearing or vision impairments would
spur some level of new demand for
movie attendance and therefore lead to
increased box office receipts.
A majority of commenters addressing
the Department’s benefit analysis
recognized the difficulty in quantifying
the benefits of the rule but agreed with
the Department’s conclusions
concerning the direct and indirect
beneficiaries that this rule would serve.
Many comments focused on the number
of individuals with hearing and vision
disabilities, arguing that the U.S. Census
vastly underestimates the number of
individuals who are deaf or hard of
hearing, or blind or have low vision.
Commenters also stated that in addition
to helping individuals who are deaf or
hard of hearing, movie captioning has
the potential to increase the access and
enjoyment of movies for a wide variety
of people, including individuals with
cognitive-communication disorders,
language-based learning disabilities,
aphasia, central auditory processing
disorders, or individuals who are
learning English or may be working to
improve their literacy skills.
Organizations representing individuals
with hearing and vision disabilities
commented generally that captioning
and audio description provide the keys
to American culture to the extent that
these services help individuals with
hearing and vision disabilities to be
more familiar with ‘‘everyday events,’’
thus allowing them to be more socially
integrated into society.
One commenter, however, criticized
the Department’s benefit analysis. This
commenter asserted that the Department
failed to justify the rule with relevant,
evidence-based research to demonstrate
that the proposed rule would advance
the intended benefits. The commenter
further recommended that the
Department conduct an industry-wide
survey of movie theaters and
individuals with hearing and vision
disabilities to determine the number of
individuals currently seeking captioning
and audio description and their
willingness to pay for such services.
E:\FR\FM\02DER4.SGM
02DER4
87362
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
The Department maintains its
position that the non-quantifiable
benefits of this rule justify the costs of
requiring captioning and audio
description at movie theaters
nationwide. The Department received a
number of comments from individuals
with hearing and vision disabilities, as
well as advocacy groups, indicating that
individuals with disabilities are
currently seeking these accessibility
services, but that these services are
either consistently unavailable or
insufficient to meet their needs. With
the information received from such
comments and the Department’s
independent research, the Department
does not believe that conducting a
nationwide survey is necessary to
confirm that this rulemaking will
advance the intended benefits. As
section 1(c) of Executive Order 13563
highlights, agencies would be remiss to
overlook the benefits ‘‘that are difficult
or impossible to quantify, including
equity, human dignity, [and] fairness.’’
With respect to such benefits, this
rulemaking will not only ensure that
individuals who are deaf or hard of
hearing, or blind or have low vision, are
afforded equal access to movie theaters
across the country, but will also ensure
that such individuals are afforded the
opportunity to participate in the social
experiences that accompany a new
movie’s release. As a result, the
Department remains convinced that this
rulemaking will significantly advance
the achievement of the intended
benefits, and that such benefits justify
the costs associated with this
rulemaking. See section V.A.4, infra,
and chapter 5 of the Final RA for a more
detailed discussion of the benefits of
this rulemaking.
3. Costs—Summary of Likely Economic
Impact
This section presents the calculations
used to estimate the total costs resulting
from the amendments to the title III
regulation, which require movie theaters
to provide closed movie captioning and
audio description when exhibiting
digital movies equipped with such
features. As previously mentioned, total
costs to movie theaters subject to the
rulemaking include the following
components:
• Acquisition costs for captioning
hardware;
• Acquisition costs for audio
description hardware;
• Acquisition costs for captioning
devices;
• Acquisition costs for audio
description devices;
• Installation costs for captioning and
audio description equipment;
• Replacement costs for captioning
and audio description equipment;
• Staff training costs for the provision
of captioning and audio description
equipment; and
• Maintenance and administrative
costs.
Key Assumptions
Because movie theater complexes
vary greatly by the number of
auditoriums, and the overall cost of this
rule varies in direct relation to the
number of auditoriums exhibiting
digital movies within a movie theater,
the Final RA breaks the movie
exhibition industry into four venue
types based on size:
• Megaplex (16+ auditoriums);
• Multiplex (8–15 auditoriums);
• Miniplex (2–7 auditoriums); and
• Single-Auditorium movie theaters.
Additionally, uncertainty exists
regarding the extent to which movie
theaters would offer closed movie
captioning and audio description if the
Department had not undertaken this
rulemaking. Therefore, the Final RA
estimates costs against three different
baseline scenarios, which are described
in greater detail in section 3.2 of the
Final RA. The primary analysis
incorporates the Medium Accessibility
baseline, which is based on data
available in NATO’s 2015 Accessibility
Survey. As shown in Table 1, under this
baseline around 72 percent of
auditoriums operated in megaplex,
multiplex, and miniplex theaters are
assumed to be equipped to provide
closed movie captioning. Similarly,
approximately 71 percent of
auditoriums in these movie theaters are
assumed to be equipped to provide
audio description. The analysis assumes
that no single-auditorium movie theater
is already equipped to provide closed
movie captioning or audio description.
TABLE 1—MEDIUM ACCESSIBILITY BASELINE BY VENUE TYPE–CAPTIONING AND AUDIO DESCRIPTION
Captioning
Medium
Accessibility
Baseline
%
Venue type
sradovich on DSK3GMQ082PROD with RULES4
Megaplex .................................................................................................................................................................
Multiplex ...................................................................................................................................................................
Miniplex ....................................................................................................................................................................
Single-Auditorium .....................................................................................................................................................
Section 2.1.3 and section 3.2 of the
Final RA explain in detail the
methodology and data that provide the
basis for the Department’s assumptions
regarding the number of movie theater
auditoriums currently equipped to
provide closed movie captioning and
audio description.
The assumptions regarding the total
number of auditoriums and the
distribution of these auditoriums by
venue type (megaplex, multiplex,
miniplex, or single-auditorium) are
further detailed in section 3.1 of the
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
Final RA. Finally, section 3.1.3 of the
Final RA describes the assumptions
made in the analysis regarding the
growth of auditoriums and venue types,
and section 3.3 of the Final RA provides
detailed assumptions and information
regarding the scoping requirements by
venue type.
Costs Determined To Be De Minimis
The Department has determined that
there are a few cost components
associated with this rulemaking that are
de minimis and therefore have not been
PO 00000
Frm 00016
Fmt 4701
Sfmt 4700
72
72
72
0
Audio
Description
Medium
Accessibility
Baseline
%
71
71
71
0
estimated in the Final RA’s total costs
estimation. These include repair costs
and costs to comply with the final rule’s
notice requirement. Repair costs are
expected to be de minimis because
manufacturers, movie theaters, and the
Department’s independent research
indicate that repair of the captioning
and audio description equipment is
rare. If equipment breaks down, the
answer is replacement rather than
repair, and such costs are captured by
the hardware and device replacement
costs. Additionally, costs associated
E:\FR\FM\02DER4.SGM
02DER4
87363
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
with the cleaning or occasional
maintenance of the devices are captured
by the ongoing maintenance and
administrative costs. Any additional
repair costs for captioning and audio
description equipment are thus
expected to be de minimis.
The Department has further
determined that the costs associated
with the notice requirement will be de
minimis. Based on comments received
and the Department’s independent
research, the movie exhibition industry
has largely moved away from print
advertising in favor of digital
advertising, and as one commenter
indicated, digital advertising allows
movie theaters to add information
concerning the availability of captioning
and audio description without much
difficulty. Currently, movie theaters
routinely use ‘‘CC’’ and ‘‘AD’’ or ‘‘DV’’
to indicate the availability of closed
movie captioning and audio description
in their communications, and the
Department’s research indicates that the
inclusion of such abbreviations does not
increase the cost of advertisements.
Therefore, the additional time and cost
it will take a movie theater to add such
information is negligible.
Upfront Costs
The upfront costs of this rulemaking
include the costs to acquire and install
the necessary captioning and audio
description equipment. Movie theaters
incur the majority of the upfront costs
during the first 2 years of the analysis,
as movie theaters with auditoriums
currently exhibiting digital movies will
purchase and install the necessary
equipment throughout 2016 and 2017 in
accordance with the 18-month
compliance date. However, the cost
estimation also includes the costs
incurred by new auditoriums opening
after the 18-month compliance date. As
a result, equipment acquisition and
installation costs are incurred over the
entire 15-year analysis period in the
primary analysis. Table 2 shows the
total equipment acquisition and
installation costs incurred over the 15year period of analysis by venue type.
Overall, the upfront costs to movie
theaters are expected to total $34.2
million when discounted at 7 percent.
TABLE 2—TOTAL UPFRONT COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, DISCOUNTED AT 7 PERCENT
[$ Millions]
Captioning
hardware
acquisition
costs
Venue type
Audio
hardware
acquisition
costs
Captioning
device
acquisition
costs
Audio device
acquisition
costs
Total
upfront
costs
Installation
costs
Megaplex ..................................................
Multiplex ...................................................
Miniplex ....................................................
Single-Auditorium .....................................
$5.0
7.9
0.9
0.8
$0.1
0.2
0.0
0.2
$4.8
7.6
2.0
1.3
$0.8
1.3
0.2
0.1
$0.3
0.5
0.1
0.1
$11.0
17.5
3.3
2.5
Total ..................................................
14.6
0.5
15.7
2.4
1.0
34.2
* Totals may differ due to rounding.
Section 2.3 of the Final RA provides
greater detail as to the Department’s
methodology and assumptions for
estimating the upfront costs of this
rulemaking. The data and research
providing the basis for these estimates
are presented in section 3.3 through
section 3.5 of the Final RA.
Ongoing Costs
In addition to the upfront costs, movie
theaters will incur ongoing costs as a
direct result of this rulemaking. The
ongoing costs quantified in the cost
estimation include captioning and audio
description equipment replacement
costs, staff training costs, and
maintenance and administrative costs.
Table 3 shows the total ongoing costs by
venue type. Overall, the ongoing annual
costs amount to $54.3 million over the
15-year period of analysis when
discounted at 7 percent.
TABLE 3—TOTAL ONGOING COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, DISCOUNTED AT 7 PERCENT
[$ millions]
Replacement
costs
Venue type
Maintenance
and
administrative
costs
Training
costs
Total
ongoing
costs
Megaplex .........................................................................................................
Multiplex ...........................................................................................................
Miniplex ............................................................................................................
Single-Auditorium .............................................................................................
$11.6
18.4
4.0
2.2
$3.5
5.6
0.7
0.1
$2.7
4.3
0.8
0.5
$17.8
28.2
5.5
2.8
Total ..........................................................................................................
36.1
9.9
8.2
54.3
sradovich on DSK3GMQ082PROD with RULES4
* Totals may differ due to rounding.
Replacement costs are expected to be
$36.1 million over the 15-year period of
analysis when discounted at 7 percent.
Replacement costs include the costs to
replace all equipment necessary to
provide closed movie captioning and
audio description, including the
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
captioning and audio description
devices as well as the captioning and
audio description hardware. Table 4–6
of the Final RA shows the estimated
replacement costs associated with each
type of equipment. The data and
assumptions used to estimate the
PO 00000
Frm 00017
Fmt 4701
Sfmt 4700
replacement costs are discussed in
greater detail in section 2.4.1 and
section 3.6 of the Final RA.
Staff training is expected to cost
approximately $9.9 million over the 15year period of analysis when discounted
at 7 percent. The rule requires staff to
E:\FR\FM\02DER4.SGM
02DER4
87364
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
be available to provide patrons with
captioning and audio description
devices and to direct patrons on the
devices’ use. This requirement can most
easily be met by expanding the already
existing training for those employees
who will be on-site to manage or
oversee overall operations or the
exhibition of the movies. Because the
operational requirements of this
rulemaking apply to all movie theaters
subject to the rulemaking, including
those with auditoriums that currently
provide closed movie captioning and
audio description, the Department has
estimated the staff training costs for all
movie theaters exhibiting digital
movies. Section 2.4.2 and section 3.7 of
the Final RA explain the data and
assumptions used to estimate the staff
training costs.
Finally, maintenance and
administrative costs are expected to be
$8.2 million over the 15-year period of
analysis when discounted at 7 percent.
These costs include, but are not limited
to, the periodic ongoing maintenance,
system testing, and cleaning of devices
and other additional administrative
costs. The data and assumptions used to
estimate the maintenance and
administrative costs are discussed in
greater detail in section 2.4.3 and
section 3.8 of the Final RA.
Total Costs
The total costs in the primary analysis
are calculated based on the data and
assumptions presented in chapters 2
and 3 of the Final RA. As described in
section 3.2.2 of the Final RA, the
primary analysis incorporates the
Medium Accessibility baseline, which is
based on data available in NATO’s 2015
Accessibility Survey. Table 4 below
shows the total costs in the primary
analysis by cost category. The total cost
impact of the rulemaking over the 15year period of analysis is $88.5 million
when discounted at 7 percent, and
$113.4 million when discounted at 3
percent.
TABLE 4—TOTAL COSTS BY COST CATEGORY IN PRIMARY ANALYSIS OVER 15 YEARS
[$ millions]
Primary
analysis
7% discounted
Cost category
Primary
analysis
3% discounted
Captioning Hardware Acquisition Costs ..........................................................................................................
Audio Hardware Acquisition Costs ..................................................................................................................
Captioning Device Acquisition Costs ...............................................................................................................
Audio Device Acquisition Costs .......................................................................................................................
Installation Costs .............................................................................................................................................
Replacement Costs .........................................................................................................................................
Training Costs ..................................................................................................................................................
Maintenance and Administrative Costs ...........................................................................................................
$14.6
0.5
15.7
2.4
1.0
36.1
9.9
8.2
$17.2
0.5
17.6
2.8
1.1
49.9
13.1
11.1
Total Costs ...............................................................................................................................................
88.5
113.4
* Totals may differ due to rounding.
The total costs are broken down by
venue type in table 5. Auditoriums in
multiplex movie theaters account for
more than half of the total costs ($45.7
million) over the 15-year period of
analysis, which is consistent with the
fact that multiplex movie theaters
operate approximately 52 percent of all
auditoriums. The costs to singleauditorium movie theaters over the 15year period of analysis are
approximately $5.3 million when
discounted at 7 percent, and $6.3
million when discounted at 3 percent.
As detailed in section 3.2.3 of the Final
RA, the primary analysis assumes that
no single-auditorium movie theater is
already equipped to provide closed
movie captioning or audio description.
As a result, it is assumed that all singleauditorium movie theaters subject to
this rulemaking would need to purchase
the necessary captioning and audio
description equipment.
TABLE 5—TOTAL COSTS BY VENUE TYPE IN PRIMARY ANALYSIS OVER 15 YEARS
[$ millions]
Primary
analysis
7% discounted
Venue type
Primary
analysis
3% discounted
Megaplex (16+ auditoriums) ............................................................................................................................
Multiplex (8–15 auditoriums) ...........................................................................................................................
Miniplex (2–7 auditoriums) ..............................................................................................................................
Single-Auditorium .............................................................................................................................................
$28.7
45.7
8.8
5.3
$37.2
59.1
10.8
6.3
Total Costs ...............................................................................................................................................
88.5
113.4
sradovich on DSK3GMQ082PROD with RULES4
* Totals may differ due to rounding.
In table 6 below, the annualized costs
are presented by venue type using 7percent and 3-percent discount rates.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
Overall, the annualized cost to the
entire movie exhibition industry is $9.7
million when using a 7-percent discount
PO 00000
Frm 00018
Fmt 4701
Sfmt 4700
rate, and $9.5 million when using a 3percent discount rate.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
87365
TABLE 6—ANNUALIZED COSTS BY VENUE TYPE IN PRIMARY ANALYSIS
[$ millions]
Annualized
costs
7% discounted
Annualized
costs
3% discounted
Megaplex (16+ auditoriums) ....................................................................................................................................
Multiplex (8–15 auditoriums) ...................................................................................................................................
Miniplex (2–7 auditoriums) ......................................................................................................................................
Single-Auditorium .....................................................................................................................................................
$3.2
5.0
1.0
0.6
$3.1
5.0
0.9
0.5
Total ..................................................................................................................................................................
9.7
9.5
Venue type
* Totals may differ due to rounding.
Sensitivity Analyses
Sensitivity analysis is an essential
consideration for policy makers in
evaluating the rule due to the
uncertainty associated with certain key
variables used in the cost estimation.
The Department was able to find robust
data regarding the costs of purchasing
captioning and audio description
equipment, the number of auditoriums
in the country, and several other critical
variables. However, there are some
input variables that carry uncertainty.
No substantive comments with data on
these inputs were received in the public
comments on the 2014 NPRM.
The sensitivity analyses estimate the
costs of this rulemaking when using the
following inputs:
• Low Accessibility and High
Accessibility baselines;
• Alternate Medium Accessibility
baseline;
• Alternate captioning and audio
description device replacement rates;
• Increased staff training frequency;
• Single-auditorium unit cost
estimates including Sony’s technology;
• Increased maintenance and
administrative costs; and
• Zero growth after five years.
Detailed information and data
regarding these sensitivity analyses can
be found in section 4.2 of the Final RA.
sradovich on DSK3GMQ082PROD with RULES4
4. Benefits—Qualitative Discussion of
Benefits
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 to
attend movies with closed movie
captioning or audio description in
movie theaters across the country for the
first time or on a more consistent basis.
Individuals who will indirectly benefit
from this rule are the family and friends
of persons with hearing and vision
disabilities that would be able to share
the movie-going experience more fully
with their friends or loved ones with
hearing and vision disabilities.
Although the anticipated benefits of this
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
rulemaking are difficult to quantify, the
Department remains convinced that
there are significant qualitative benefits
of this rulemaking that justify this
regulation at this time.
The benefits of this rule are difficult
to quantify because the Department has
not been able to locate robust data on
the rate at which persons with
disabilities currently attend movies
shown in movie theaters. Moreover, as
a result of the increased
accommodations required by this rule, it
is reasonable to predict that some
number of persons with disabilities will
likely attend movies for the first time,
some number of persons with
disabilities will likely attend movies at
a rate that is different than they had
previously, the number of persons who
attend movies as part of a larger group
that includes a person with a disability
will likely change, and the number of
persons with disabilities who would
have attended movies anyway but under
the rule will have a fuller and more
pleasant experience will likely also
change. The Department has no feasible
way of projecting those figures. In
addition, the Department does not know
how many people with hearing or vision
disabilities currently have consistent
access to movie theaters that provide
closed movie 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 movie captioning
and audio description at movie theaters.
Though the Department cannot
confidently estimate the likely number
of people who would directly benefit
from this rule, it has 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 ages 15
and older has difficulty seeing, which
translates into a little more than 8
million individuals in 2010, and a little
more than 2 million of those had
‘‘severe’’ difficulty seeing. At the same
PO 00000
Frm 00019
Fmt 4701
Sfmt 4700
time, the Census Bureau estimates that
3.1 percent of the U.S. population ages
15 and older have difficulty hearing,
which was a little more than 7.5 million
individuals in 2010, and approximately
1 million of them had ‘‘severe’’
difficulty hearing. See U.S. Census
Bureau, U.S. Department of Commerce,
P70–131, Americans with Disabilities:
2010 Household Economic Studies at 8
(2012), available at https://
www.census.gov/prod/2012pubs/p70131.pdf (last visited Sept. 12, 2016).
While not all of these individuals would
benefit from this rule, many of them
will be direct beneficiaries, although
they are likely to benefit from this rule
in different ways and to varying extents.
The type and extent 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 rule. Some persons with vision
and hearing disabilities have effectively
been precluded from going to movies at
movie theaters because the only theaters
available to them do not offer closed
movie captioning or audio description,
offer open captioning but only at
inconvenient times (such as the middle
of the day during the week), or offer
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, which
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. A person
with a hearing or vision disability who
previously did not have access to a
movie theater that provided closed
movie captioning or audio description
will experience this benefit to an extent
that is different than the extent of the
benefit experienced by a person with a
hearing or vision disability who
previously did have access to a movie
E:\FR\FM\02DER4.SGM
02DER4
sradovich on DSK3GMQ082PROD with RULES4
87366
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
theater that consistently provided
closed movie captioning and audio
description. In addition, a person who
cannot follow a movie at all without the
assistance of closed movie captioning is
likely to experience this benefit to an
extent that is different than the extent of
the benefit experienced by a person who
can follow parts of a movie without the
assistance of closed movie captioning.
There is a social value in movie
viewing for many people, not just an
entertainment value. As noted
previously, movies are a part of our
shared cultural experience, and the
subject of ‘‘water cooler’’ talk and
lunchtime 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 the 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)
(footnote omitted). 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
captioning or audio description, they
are exposed to new ideas and gain
knowledge that contributes to the
development of their communication
and literacy as well as their integration
into society.
As previously mentioned, some
persons with vision or hearing
disabilities may already have access to
some movie theaters with captioning or
audio description capabilities, but that
access may be limited to only some
locations and times. Some of these
people may be patronizing movie
theaters now but less often than they
otherwise would, or less often than they
would like, if captioning or audio
description were available consistently
across all theaters. These people may
see more movies or save time that they
currently must spend monitoring those
few accessible movie theaters or
showings and perhaps additional time
coordinating trips to the movies with
family and friends. If all movie theaters
are accessible to those who are deaf or
hard of hearing, or blind or have low
vision, then some persons will now
have greater choice among multiple
locations and can make choices based
on other criteria such as location, times,
and other amenities, just as Americans
without these disabilities already do.
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
In addition to the direct beneficiaries
of the 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 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 movie theater
together, sharing the experience as they
may have in the past. The Department
received numerous comments from
individuals who are deaf, hard of
hearing, blind, or have low vision in
response to its 2014 NPRM 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. Parents with disabilities
also complained that they could not
answer their children’s questions about
a movie that they saw together because
the parents did not understand what
had happened in the movie.
There is also a distributional benefit
of this rule as some areas of the United
States are more likely to have movie
theaters with auditoriums that are
already equipped to provide closed
movie captioning and audio description
than others. As noted previously, the
Department understands 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 movie theaters
operated by Regal, Cinemark, or AMC.
Thus, it is possible that more urban
areas, or certain cities or States, may
have greater access than other areas,
cities, or States, creating or exacerbating
geographical differences in
opportunities that will be equalized by
this rulemaking.
Moreover, while not formally
quantified, the Department expects that
this guarantee of access for individuals
with hearing or vision impairments to
movies screened at movie theaters will
spur some level of new demand for
movie attendance and, therefore, lead to
increased box office receipts.
Unfortunately, there is little data on the
demand for movie-viewing in places of
public accommodation by persons who
are deaf or hard of hearing, or blind or
have low vision, and as such, preparing
estimates of the increase in movie
theater attendance is difficult.
Because the rule sets specific
standards for equally effective
communication at movie theaters, it
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
should also lead to a decrease or near
elimination of confusion regarding what
accommodations movie theaters must
provide. The current ADA title III
regulation does not contain explicit
requirements specifying how movie
theaters should meet their effective
communication obligations, and this is
one of the reasons behind the multiple
private lawsuits filed throughout the
country. Setting explicit requirements at
the national level will lead to
harmonization across the country.
And finally, there are additional
benefits of the rule that relate to equity
and fairness considerations generally.
See E.O. 13563 § 1(c) (underscoring the
importance of agency consideration of
benefits ‘‘that are difficult or impossible
to quantify, including equity, human
dignity, [and] fairness’’). The
Department expects that the regulation
will allow for better integration of
persons with disabilities into the
American social mainstream. Without
captioning and audio description at
movie theaters, individuals with hearing
and vision disabilities commented that
they were unable to participate in the
social experience that attending the
movies affords. Other commenters noted
that movie theaters’ common practice of
‘‘relegating’’ movie patrons with hearing
and vision disabilities to ‘‘special
showings’’ of captioned or audiodescribed movies at off-peak days and
times did not constitute the ‘‘full and
equal access’’ guaranteed by the ADA.
By requiring all movie theaters to
provide closed movie captioning and
audio description when exhibiting a
digital movie distributed with such
features, the Department believes that
the ADA’s guarantees will be more fully
met.
The Department views the most
significant benefits of the rule to be
those relating to issues of 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. Regardless, the
Department believes that the nonquantifiable benefits justify the costs of
requiring captioning and audio
description at movie theaters
nationwide.
5. Alternatives
As required by Executive Order
12866, the Department considered
various alternatives to this rule. Chapter
6 of the Final RA provides detailed
information regarding these alternatives.
Table 7 below summarizes the cost
estimates for the primary analysis and
other evaluated alternatives to the
regulation.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
87367
TABLE 7—SUMMARY OF PRIMARY ANALYSIS AND ALTERNATIVE ANALYSES OVER 15 YEARS, DISCOUNTED AT 7 PERCENT
[$ millions]
2-year
compliance
date
Primary
analysis
Cost category
6-month
compliance
date
NPRM
scoping
requirement
Analog
theaters
included
Captioning Hardware Acquisition Costs ..............................
Audio Hardware Acquisition Costs ......................................
Captioning Device Acquisition Costs ...................................
Audio Device Acquisition Costs ...........................................
Installation Costs ..................................................................
Replacement Costs ..............................................................
Training Costs ......................................................................
Maintenance and Administrative Costs ...............................
$14.6
0.5
15.7
2.4
1.0
36.1
9.9
8.2
$14.0
0.4
15.1
2.4
1.0
34.5
9.9
7.8
$15.5
0.5
16.6
2.6
1.1
39.0
9.9
8.9
$14.6
0.5
36.1
4.4
1.7
73.8
9.9
13.9
$17.3
0.6
15.7
2.5
1.1
37.0
10.0
8.8
Total Costs ....................................................................
88.5
85.2
94.1
154.8
93.1
* Totals may differ due to rounding.
B. Executive Order 13132: Federalism
Executive Order 13132, 64 FR 43255
(Aug. 4, 1999), 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, the agency
must consult with State and local
elected officials about how to minimize
or eliminate the effects. This 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 laws that specifically
address captioning and audio
description. As a result, the Department
has concluded that this rule does not
have federalism implications.
sradovich on DSK3GMQ082PROD with RULES4
C. 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 adequately
addresses legal issues to minimize
uncertainty. 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 this rule.
D. Paperwork Reduction Act
Under the Paperwork Reduction Act
(PRA), agencies are prohibited from
conducting or sponsoring a ‘‘collection
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
of information’’ as defined by the PRA
unless in advance the agency has
obtained an OMB control number. 44
U.S.C. 3507. Additionally, an agency
may not impose a penalty on persons for
violating information collection
requirements when an information
collection required to have a current
OMB control number does not have one.
See id.
This rule includes a requirement that
movie theaters provide information to
the public about which movies are
available with closed movie captioning
and audio description when publishing
the exhibition times for those movies.
See § 36.303(g)(8). The Department has
determined that this requirement
qualifies as a collection of information
subject to the PRA. Consistent with the
PRA’s requirements, the Department
published a notice in the Federal
Register on June 10, 2016, requesting
public comment on the potential costs
and burdens of this requirement. See 81
FR 37643. The comment period for this
notice closed on August 9, 2016, and the
Department published a second notice
in the Federal Register on August 30,
2016. See 81 FR 59657. The 30-day
comment period for the second notice
closed on September 29, 2016.
The information collection
requirement contained in this regulation
was approved by OMB on November 3,
2016, and has been assigned OMB
control number 1190–0019.
E. 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
PO 00000
Frm 00021
Fmt 4701
Sfmt 4700
provisions of the Unfunded Mandates
Reform Act.
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 final rule for movie
captioning and audio description.
VI. Final Regulatory Flexibility
Analysis
As directed by the Regulatory
Flexibility Act of 1980, as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA), and by Executive Order
13272, the Department is required to
consider the potential impact of the
proposed rule on small entities,
including small businesses, small
nonprofit organizations, and small
governmental jurisdictions. This process
helps agencies to determine whether a
rule is likely to impose a significant
economic impact on a substantial
number of small entities and, in turn, to
consider regulatory alternatives to
reduce that regulatory burden on those
small entities.
This final rule applies to and affects
almost all small entities categorized as
‘‘Motion Picture Theaters.’’ Small
businesses constitute the vast majority
of firms in the movie exhibition
industry. The current size standard for
a small movie theater business is $38.5
million dollars in annual revenue. See
U.S. Small Business Administration,
Table of Small Business Size Standards
Matched to North American Industry
Classification System Codes at 28 (July
14, 2014), available at https://
www.sba.gov/sites/default/files/files/
Size_Standards_Table.pdf (last visited
Sept. 12, 2016). In 2012, the latest year
for which detailed breakouts by
industry and annual revenue are
E:\FR\FM\02DER4.SGM
02DER4
87368
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
available, approximately 98 percent of
movie theater firms met the standard for
small business, and these firms
managed approximately 52 percent of
movie theater establishments. See U.S.
Census Bureau, Statistics of U.S.
Businesses, available at https://
www.census.gov/data/tables/2012/econ/
susb/2012-susb-annual.html (see Data
by Enterprise Receipt Size, U.S., 6-digit
NAICS) (last visited Sept. 12, 2016). The
Department’s analysis leads it to
conclude that a substantial number of
small movie theater firms will
experience a significant economic
impact as a result of this rule. The
Department therefore presents this Final
Regulatory Flexibility Analysis (FRFA).
The Department has used this analysis
to examine other ways, if possible, to
accomplish the Department’s goals with
fewer burdens on small businesses, and
the Department has made a number of
revisions to the final rule to reduce the
cost impact on small firms in the movie
exhibition industry.
A. Purpose and Objective of the Final
Rule Relative to Movie Theaters
Categorized as Small
As previously discussed throughout
this rule, the Department’s existing
regulation implementing the ADA’s title
III auxiliary aids provision reiterates the
obligation of covered entities to ensure
equally effective communication with
individuals with disabilities and
identifies, among other things, ‘‘open
and closed captioning,’’ and ‘‘audio
recordings’’ as examples of auxiliary
aids and services. 28 CFR 36.303(a)–(c).
Recent technological changes in the
movie exhibition industry—including
widespread conversion from analog film
projection to digital cinema systems—
make exhibition of captioned and audiodescribed movies easier and less costly
than before. In addition, it is the
Department’s understanding that, at this
time, nearly all first-run motion pictures
released by the major domestic movie
studios include closed movie captioning
(and to a lesser extent, audio
description).
Despite these technological advances,
movie theaters do not consistently show
movies with captioning or audio
description, and the availability of these
features varies greatly across the
country, with small movie theaters in
rural areas being less likely to provide
them. Thus, patrons who are deaf or
hard of hearing, or blind or have low
vision, are often shut out from the
movie-going experience and cannot
fully take part in movie-going outings
with family and friends, join in social
conversations about recent movie
releases, or otherwise participate in a
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
meaningful way in an important aspect
of American culture.
The Department believes that
regulation is warranted at this time to
explicitly require all movie theaters,
including those qualifying as small
entities, to exhibit movies with closed
movie captioning and audio description
whenever these theaters exhibit digital
movies produced, distributed, or
otherwise made available with such
features unless to do so would result in
an undue burden or a fundamental
alteration. As discussed above, the
Department is deferring rulemaking on
application of these requirements to
movie theater auditoriums that exhibit
analog movies exclusively. The final
rule for movie captioning and audio
description rests on the existing
obligation of all title III-covered
facilities, such as movie theaters—
regardless of size—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 final rule
imposes no independent obligation on
movie theaters to provide captioning
and audio description if the movie is
not already available with these
features.
The Department expects that
implementation of the final 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
all movie theaters.
B. Public Comments Regarding the
Effects of the Rule on Small Movie
Theaters
The Department received 436
comments during the 2014 NPRM
comment period from movie industry
representatives, individuals with
disabilities, advocacy groups
representing individuals with
disabilities, State and Federal entities,
academic organizations, private
companies, and other private
individuals. Comments that directly
addressed the assumptions, data, or
methodology used in the Initial RA have
been previously discussed above in
section V.A.2 and in section 1.3 of the
Final RA. This section summarizes the
discussion of comments regarding the
effects of the rule on small movie
theaters.
PO 00000
Frm 00022
Fmt 4701
Sfmt 4700
Proportion of Movie Theaters Qualifying
as Small Entities
The Department received comments
indicating that the vast majority of
movie theaters qualify as small entities,
which is supported by the 2012
Statistics of U.S. Businesses (SUSB) data
and detailed below. See infra section
VI.C.
Small Movie Theater Revenues and
Available Resources To Comply
One commenter reported that at least
one segment of the movie exhibition
industry, art house cinemas, generally
receive less than 50 percent of their
revenue from ticket sales. Another
commenter asked the Department to
consider that almost half of movie
theater gross receipts are paid directly to
movie studios. Given these percentages
and the fact that the movie exhibition
industry as a whole averages a 2 percent
profit margin, with small and
independent theater owners often
operating at an even smaller or negative
profit margin, commenters asked the
Department to reconsider its
interpretation of cost values relative to
annual revenue because these figures do
not directly represent funds that are
available to comply with this rule.
The Department does not have access
to publicly available data that provides
a consistent, independent source of
movie theater profit by revenue
category. As discussed in section VI.C
below, available data includes firm
receipt size from the 2012 SUSB.25 The
Department believes that this dataset is
the most relevant publicly available data
on annual revenue figures for the movie
exhibition industry and is the best
source to assess the resources available
to movie theaters to comply with the
rule.
Alternatives To Reduce Burdens on
Small Movie Theaters
Commenters made various
suggestions concerning alternatives to
reduce the regulatory burden for small
movie theaters. These suggestions
pertained to the following areas: (1) The
scoping for devices; (2) the compliance
date; (3) the deferral of rulemaking for
movie theaters exhibiting movies in
analog format; and (4) the deferral of
rulemaking for a subset of small movie
theaters. The Department is aware of
25 U.S. Census Bureau, Statistics of U.S.
Businesses, available at https://www.census.gov/
data/tables/2012/econ/susb/2012-susb-annual.html
(see Data by Enterprise Receipt Size, U.S., 6-digit
NAICS) (last visited Sept. 12, 2016). The
information is available in an Excel file which lists
all information by NAICS Code. The relevant
NAICS Code for Motion Picture Theaters (except
Drive-Ins) is 512131.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
potential limitations to compliance for
small movie theaters and has taken
measures to lessen the impact on those
firms. As explained in sections 1.4 and
6.1 of the Final RA and in section VI.F
below, the Department has decided to
defer the decision whether to engage in
rulemaking with respect to movie
theater auditoriums that exhibit analog
movies exclusively, to reduce the
scoping requirements for both
captioning and audio description
devices, and to increase the time movie
theaters have to comply with the rule’s
captioning and audio description
scoping requirements (now 18 months).
These revisions are expected to reduce
the cost impact to small firms in the
movie exhibition industry.
Response to Comments From the Small
Business Administration Office of
Advocacy (SBA)
This section specifically addresses
comments of the SBA Office of
Advocacy in response to the proposed
rule. Most of the concerns expressed by
SBA were also expressed by other
commenters.
SBA’s comments on the 2014 NPRM
focused on the following five issues:
Lowering the scoping for captioning and
audio description devices; deferral of
coverage of analog theaters; providing a
longer compliance date for the
requirements of the rule; the breadth of
the definition of ‘‘movie theater’’; and
the application of the undue burden
defense for small business movie
theaters. After consideration of these
comments and related comments from
other commenters, the Department has
made a number of changes in the final
rule.
First, the Department has significantly
lowered the scoping requirements for
captioning and audio description
devices in response to comments from
SBA and other commenters that the
Department should not have used seat
count as a means of determining the
number of devices that would actually
be needed to meet demand from people
with hearing and vision disabilities. The
revised scoping bases the required
number of devices on the number of
auditoriums in a theater showing digital
movies rather than the number of seats.
Second, the Department has decided
to defer the decision whether to apply
the specific requirements of this rule to
movie theater auditoriums that show
analog movies exclusively. As discussed
in the section-by-section analysis, the
number of movie theaters that only
show analog movies is rapidly
declining, and it is unclear whether
these theaters will be economically
viable in the future, or whether analog
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
movies will even be available for
commercial showings.
Third, the Department has extended
the compliance date for all movie
theaters subject to this rulemaking.
Movie theaters now have 18 months to
comply with the rule’s scoping
requirements, and additional time is
afforded to movie theaters that convert
auditoriums from an analog projection
system to a digital projection system
after the compliance date of the rule.
After considering the comments on the
2014 NPRM, the Department has
concluded that 18 months allows movie
theaters sufficient time to order and
install the necessary equipment while
accounting for potential manufacturer
backlogs or the need to raise the
necessary funds to purchase the
equipment.
Fourth, SBA specifically asked
whether the definition of ‘‘movie
theater’’ was intended to encompass
small movie theaters that occasionally
show digital movies using a Blu-ray
projector, pop-ups and film festivals, or
limited arrangement showings held at
alternative venues. The Department
believes that in most instances, the
requirements of the rule will not apply
in these circumstances. As the
definition indicates, a ‘‘movie theater,’’
for purposes of this rulemaking, means
‘‘a facility * * * that contains one or
more auditoriums that are used
primarily for the purpose of showing
movies to the public for a fee.’’
§ 36.303(g)(1)(vii). Thus, an auditorium
generally used for other purposes that
temporarily shows movies during a film
festival, even if a fee is charged, would
not fall within this definition. By
contrast, a movie theater that primarily
shows digital movies to the public for a
fee remains covered by the requirements
of paragraph (g) even if it allows its
auditoriums to be used for an annual
film festival. Theaters with analog
auditoriums that are not otherwise
covered by the specific requirements of
§ 36.303(g) and temporarily bring in
portable Blu-ray or other types of digital
projectors to show digital movies are
also not likely to fall within the
requirements of paragraph (g) because
the compliance date provision assumes
conversion of the theater to a digital
projection system. In addition, it is the
Department’s understanding that Bluray projection systems are not capable of
delivering closed movie captions to
patrons at their seat; these systems only
have the capacity to show captions on
the screen, something not required by
this rule.
The Department notes that film
festivals, pop-up movie theaters, and
other alternative venues for showing
PO 00000
Frm 00023
Fmt 4701
Sfmt 4700
87369
movies still qualify as places of
entertainment and are considered public
accommodations under the ADA. Thus,
they continue to be subject to the
longstanding general ADA requirement
to provide effective communication
under § 36.303, unless doing so would
be a fundamental alteration of the
program or service or would constitute
an undue burden. In addition, if a
festival or limited showing programmer
schedules the screening of a movie that
is already distributed with closed movie
captions and audio description using a
movie theater auditorium that is subject
to the requirements in paragraph (g) as
discussed above, then the effective
communication obligation would
require the festival to ensure that the
accessible features are available at all
scheduled screenings of a movie
distributed with such features.
Finally, SBA asked that the
Department provide additional guidance
for small businesses regarding the
availability of the undue burden
limitation. Under the ADA, 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. As
stated earlier in the preamble and in
existing technical assistance materials,
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
determination, lists five factors that
must be considered when determining
whether an action would constitute an
undue burden. 28 CFR 36.104; see also
U.S. Department of Justice, ADA Title III
Technical Assistance Manual Covering
Public Accommodations and
Commercial Facilities III–4.3600 (1993),
available at https://www.ada.gov/
taman3.html. 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
E:\FR\FM\02DER4.SGM
02DER4
87370
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
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. 28 CFR 36.104. This limitation
entails a fact-specific examination of the
cost of a specific action and the specific
circumstances of a particular public
accommodation. This limitation is also
designed to ensure that the needs of
small businesses, as well as large
businesses, are addressed and protected.
The Department intends to publish
technical assistance that will address
the requirements of the final rule and
the limitations on the obligations under
paragraph (g) prior to the time the rule
takes effect. In addition, the
Department’s wide-ranging outreach,
education, and technical assistance
program continue to be available to
assist businesses to understand their
obligations under the ADA. Additional
information about the ADA’s
requirements, including the requirement
to provide effective communication and
the limitations on that obligation, is also
available on the Department’s ADA Web
site at www.ada.gov.
C. Characteristics of Impacted Small
Entities
The Regulatory Flexibility Act defines
a ‘‘small entity’’ as a small business (as
defined by the SBA Size Standards) or
a small organization such as a nonprofit
that is ‘‘independently owned and
operated’’ and is ‘‘not dominant in its
field.’’ See 5 U.S.C. 601(3), (4). For
Motion Picture Theaters (except DriveIns) (NAICS Code 512131), the SBA Size
Standards categorize any firm with less
than $38.5 million in annual revenue as
a small business.26 As a result, small
entities constitute the vast majority of
firms in the movie exhibition industry.
The latest data providing detailed
breakouts of annual revenue by industry
comes from the 2012 Statistics of U.S.
Businesses (SUSB).27 This dataset
provides information regarding the
number of firms,28 establishments,29
and estimated annual receipts 30 (annual
revenue) for each of the 17 revenue size
categories in the movie exhibition
industry. According to this data, 12 of
the 17 revenue size categories contain
firms with estimated annual receipts of
less than the $38.5 million SBA size
standard for a small business in this
industry. Because these firms are
considered small businesses by the SBA
size standards, they are also considered
small entities for purposes of this FRFA.
An additional category of firms with
annual receipts between $35 million
and $40 million contains firms that may
or may not have annual revenue below
the $38.5 million threshold. For the
purposes of this analysis, however, all
firms in this category are assumed to
have revenues lower than the $38.5
million size standard and are therefore
considered to be small entities.
The 2012 SUSB data on the movie
exhibition industry includes both digital
and analog movie theaters but excludes
drive-in movie theaters. The number
and percentage of firms and
establishments by revenue category is
presented in table 8. According to the
2012 SUSB, 1,876 movie theater firms
operated 4,540 movie theater
establishments. Approximately 1,833 of
those firms (98 percent) are categorized
as a small business according to the
SBA size standard ($38.5 million) and
therefore are small entities for purposes
of this FRFA. The 1,833 firms
categorized as small entities operated
approximately 2,381 movie theater
establishments (52 percent of the total).
TABLE 8—MOTION PICTURE THEATERS (EXCEPT DRIVE-INS) FIRMS AND ESTABLISHMENTS BY REVENUE CATEGORY, 2012
STATISTICS OF U.S. BUSINESSES
[NAICS 512131]
Number
of firms
Firms with annual revenue
sradovich on DSK3GMQ082PROD with RULES4
Less than $100,000 .................................
$100,000 to $499,999 ..............................
$500,000 to $999,999 ..............................
$1,000,000 to $2,499,999 ........................
$2,500,000 to $4,999,999 ........................
$5,000,000 to $7,499,999 ........................
$7,500,000 to $9,999,999 ........................
$10,000,000 to $14,999,999 ....................
$15,000,000 to $19,999,999 ....................
$20,000,000 to $24,999,999 ....................
244
618
332
399
125
35
19
26
9
10
26 U.S. Small Business Administration, Table of
Small Business Size Standards Matched to North
American Industry Classification System Codes at
28 (July 14, 2014), available at https://www.sba.gov/
sites/default/files/files/Size_Standards_Table.pdf
(last visited Sept. 12, 2016).
27 The SBA’s Office of Advocacy partially funds
the Census Bureau to produce data on employer
firm size including the number of firms, number of
establishments, employment, and annual payroll
and annual sales/receipts/revenue for employment
size of firm categories by location and industry as
part of the SUSB program. See U.S. Census Bureau,
Statistics of U.S. Businesses, available at https://
www.census.gov/data/tables/2012/econ/susb/2012susb-annual.html (see Data by Enterprise Receipt
Size, U.S., 6-digit NAICS) (last visited Sept. 12,
2016). The information is available in an Excel file
which lists all information by NAICS Code.
28 The U.S. Census Bureau defines a ‘‘firm’’ as a
‘‘business organization consisting of one or more
domestic establishments in the same state and
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
Percentage of
total firms
(%)
Cumulative
total
of firms
(%)
13.0
32.9
17.7
21.3
6.7
1.9
1.0
1.4
0.5
0.5
Frm 00024
Fmt 4701
Sfmt 4700
Percentage
of total
establishments
(%)
Cumulative
total of
establishments
(%)
246
630
353
460
189
66
49
107
41
60
5.4
13.9
7.8
10.1
4.2
1.5
1.1
2.4
0.9
1.3
5.4
19.3
27.1
37.2
41.4
42.8
43.9
46.3
47.2
48.5
13.0
45.9
63.6
84.9
91.6
93.4
94.5
95.8
96.3
96.9
industry that were specified under common
ownership or control. The firm and the
establishment are the same for single-establishment
firms. For each multi-establishment firm,
establishments in the same industry within a state
will be counted as one firm—the firm employment
and annual payroll are summed from the associated
establishments.’’ U.S. Census Bureau, Statistics of
U.S. Businesses: Glossary, available at https://
www.census.gov/programs-surveys/susb/about/
glossary.html (last visited Sept. 12, 2016).
29 The U.S. Census Bureau defines an
‘‘establishment’’ as ‘‘a single physical location
where business is conducted or where services or
industrial operations are performed.’’ U.S. Census
Bureau, North American Industry Classification
System: Frequently Asked Questions (FAQs),
available at https://www.census.gov/eos/www/naics/
faqs/faqs.html#q2 (last visited Sept. 12, 2016).
30 ‘‘Receipts (net of taxes collected from
customers or clients) are defined as operating
revenue for goods produced or distributed, or for
PO 00000
Number of
establishments
services provided. Receipts excludes local, state,
and federal sales and other taxes collected from
customers or clients and paid directly to a tax
agency. Receipts are acquired from economic
census data for establishments in industries that are
in-scope to the economic census; receipts are
acquired from IRS tax data for single-establishment
businesses in industries that are out-of-scope to the
economic census; and payroll-to-receipts ratios are
used to estimate receipts for multi-establishment
businesses in industries that are out-of-scope to the
economic census. Statistics of U.S. Businesses
tabulations provide summed establishment receipts
which creates some duplication of receipts for large
multi-establishment enterprises. Receipts data are
available for years ending in 2 and 7 only.’’ U.S.
Census Bureau, Statistics of U.S. Businesses:
Glossary, available at https://www.census.gov/
programs-surveys/susb/about/glossary.html (last
visited Sept. 12, 2016).
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
87371
TABLE 8—MOTION PICTURE THEATERS (EXCEPT DRIVE-INS) FIRMS AND ESTABLISHMENTS BY REVENUE CATEGORY, 2012
STATISTICS OF U.S. BUSINESSES—Continued
[NAICS 512131]
$25,000,000
$30,000,000
$35,000,000
$40,000,000
Percentage of
total firms
(%)
Number
of firms
Firms with annual revenue
Cumulative
total
of firms
(%)
Number of
establishments
Percentage
of total
establishments
(%)
Cumulative
total of
establishments
(%)
to $29,999,999 ....................
to $34,999,999 ....................
to $39,999,999 ....................
and greater * .......................
6
4
6
43
0.3
0.2
0.3
2.3
97.2
97.4
97.7
100.0
66
66
48
2,159
1.5
1.5
1.1
47.6
49.9
51.4
52.4
100.0
Total Firms (Less than $40,000,000)
1,833
98
........................
2,381
52
........................
Total Firms ........................................
1,876
........................
........................
4,540
........................
........................
* This category sums the firms and establishments included in the following categories: $40,000,000 to $49,999,999; $50,000,000 to
$74,999,999; $75,000,000 to $99,999,999; $100,000,000 and greater.
Table 9 presents the number of firms,
the number of establishments, and the
annual revenue of firms by revenue size
category. The calculated average annual
revenue per firm and the average annual
revenue per establishment are also
provided.
TABLE 9—MOTION PICTURE THEATERS (EXCEPT DRIVE-INS) FIRMS AND ESTABLISHMENTS, ANNUAL REVENUE BY
REVENUE CATEGORY, 2012 STATISTICS OF U.S. BUSINESSES
[NAICS 512131]
Number
of firms
Firms with annual revenue
Less than $100,000 .............................................................
$100,000 to $499,999 ..........................................................
$500,000 to $999,999 ..........................................................
$1,000,000 to $2,499,999 ....................................................
$2,500,000 to $4,999,999 ....................................................
$5,000,000 to $7,499,999 ....................................................
$7,500,000 to $9,999,999 ....................................................
$10,000,000 to $14,999,999 ................................................
$15,000,000 to $19,999,999 ................................................
$20,000,000 to $24,999,999 ................................................
$25,000,000 to $29,999,999 ................................................
$30,000,000 to $34,999,999 ................................................
$35,000,000 to $39,999,999 ................................................
$40,000,000 and greater .....................................................
Number of
establishments
244
618
332
399
125
35
19
26
9
10
6
4
6
43
246
630
353
460
189
66
49
107
41
60
66
66
48
2,159
Annual
revenue for
all firms
($ millions)
$13.3
158.5
237.3
615.4
424.4
192.4
146.2
312.3
127.8
143.1
136.4
** n/a
165.1
10,520
Annual
revenue
per firm *
$54,508
256,537
714,762
1,542,318
3,394,864
5,497,029
7,697,211
12,013,115
14,200,444
14,314,600
22,734,000
** n/a
27,514,000
244,639,651
Annual
revenue per
establishment *
$54,065
251,651
672,241
1,337,793
2,245,280
2,915,091
2,984,633
2,919,075
3,117,171
2,385,767
2,066,727
** n/a
3,439,250
4,872,397
sradovich on DSK3GMQ082PROD with RULES4
* Calculated.
** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
D. Costs to Impacted Small Entities
Annual revenue data from the SUSB
program is used, together with
information regarding likely per-theater
upfront and ongoing annual costs
(section 4.1.4 of the Final RA), to
estimate the impact of this rulemaking
on small entities relative to their
resources. As described in section 2.1.4
of the Final RA, movie theater
complexes vary greatly by the number of
auditoriums that they contain, and the
per-theater cost varies according to the
number of auditoriums within a theater
exhibiting digital movies. Therefore, the
Final RA breaks the movie exhibition
industry into four venue types based on
size:
• Megaplex (16+ auditoriums);
• Multiplex (8–15 auditoriums);
• Miniplex (2–7 auditoriums); and
• Single-Auditorium movie theaters.
The FRFA uses the estimated number
of movie theaters by venue type to
determine the cost impact per firm.
Table 10 presents estimates of the
percentage of movie theaters by venue
type, calculated from the 2015
distribution of auditoriums by venue
type (table 3–3 of the Final RA) and the
average number of auditoriums per
venue type.31 The table indicates that
approximately 40 percent of movie
theater establishments are multiplex
theaters, and 43 percent are either
miniplex (22 percent) or singleauditorium theaters (21 percent), with
the remaining 17 percent being
megaplex theaters.
31 See NATO, Statement of Position on RIN 1190–
AA63, CRT Docket No. 126, Nondiscrimination on
the Basis of Disability by Public Accommodations—
Movie Theaters; Movie Captioning and Audio
Description 22, available at https://
www.regulations.gov/contentStreamer?document
Id=DOJ-CRT-2014-0004-0401&attachmentNumber=
4&disposition=attachment&contentType=pdf (last
visited Sept. 12, 2016).
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
PO 00000
Frm 00025
Fmt 4701
Sfmt 4700
E:\FR\FM\02DER4.SGM
02DER4
87372
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
TABLE 10—ESTIMATED NUMBER OF MOVIE THEATERS BY VENUE TYPE
[2015]
Number of
auditoriums
exhibiting
digital movies
(2015)
Venue type
Average
number of
auditoriums
by venue
type
÷
=
Estimated
number of
movie
theaters
by venue
type
(2015)
Percentage
of movie
theaters by
venue type
(2015)
Megaplex ..........................................................................................
Multiplex ...........................................................................................
Miniplex ............................................................................................
Single-Auditorium .............................................................................
12,812
20,322
4,666
889
÷
÷
÷
÷
18
12
5
1
=
=
=
=
712
1,693
933
889
17
40
22
21
Total ..........................................................................................
38,688
÷
........................
=
4,227
100
As previously discussed, movie
theaters, including small movie theaters,
will incur upfront costs as well as
ongoing costs to comply with the
requirements of this rulemaking. Table
11 below presents the undiscounted
upfront costs incurred by the average
movie theater within each venue type.
TABLE 11—AVERAGE PER MOVIE THEATER UPFRONT COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, UNDISCOUNTED
[$]
Captioning
hardware
acquisition
Venue type
Megaplex ..................................................
Multiplex ...................................................
Miniplex ....................................................
Single-Auditorium .....................................
$16,158
10,772
4,488
1,097
Audio
description
hardware
acquisition
Captioning
device
acquisition
$205
205
205
308
$8,728
5,819
4,364
1,864
Audio
description
device
acquisition
Installation
costs
$1,470
980
490
190
$797
533
286
104
Total upfront
costs
$27,358
18,309
9,834
3,562
* Totals may differ due to rounding.
Because movie theaters will incur the
highest costs to acquire the necessary
equipment, tables 12 through 19 provide
the data used to estimate these costs.
Table 12 presents the average number of
auditoriums by venue type and
estimates the relevant number of
captioning hardware units required by
the scoping requirements using the oneunit-per-auditorium assumption
discussed in section 3.3.1 of the Final
RA. The average number of auditoriums
across each venue type was provided by
NATO in its public comment on the
2014 NPRM.
TABLE 12—CAPTIONING HARDWARE SCOPING REQUIREMENT PER VENUE TYPE
Average
number
of auditoriums
Venue type
Captioning
hardware units
required per
venue type
18
12
5
1
18
12
5
1
Megaplex (16+ auditoriums) ....................................................................................................................................
Multiplex (8–15 auditoriums) ...................................................................................................................................
Miniplex (2–7 auditoriums) ......................................................................................................................................
Single-Auditorium .....................................................................................................................................................
Similarly, table 13 presents the
average number of auditoriums by
venue type and estimates the relevant
number of audio description hardware
units required by the scoping
requirements using the one-unit-permovie-theater assumption discussed in
section 3.3.2 of the Final RA. The
average number of auditoriums across
each venue type was provided by NATO
in its public comment on the 2014
NPRM.
sradovich on DSK3GMQ082PROD with RULES4
TABLE 13—AUDIO DESCRIPTION HARDWARE SCOPING REQUIREMENTS PER VENUE TYPE
Average
number
of auditoriums
Venue type
Megaplex (16+ auditoriums) ....................................................................................................................................
Multiplex (8–15 auditoriums) ...................................................................................................................................
Miniplex (2–7 auditoriums) ......................................................................................................................................
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
PO 00000
Frm 00026
Fmt 4701
Sfmt 4700
E:\FR\FM\02DER4.SGM
02DER4
Audio
description
hardware units
required per
venue type
18
12
5
1
1
1
87373
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
TABLE 13—AUDIO DESCRIPTION HARDWARE SCOPING REQUIREMENTS PER VENUE TYPE—Continued
Average
number
of auditoriums
Venue type
Audio
description
hardware units
required per
venue type
1
1
Single-Auditorium .....................................................................................................................................................
Tables 14 and 15 below estimate the
minimum number of captioning devices
required per venue type. The
Department emphasizes that these
figures are merely estimates based on
the average number of auditoriums
across each venue type. The exact
number of captioning and audio
description devices required at a
particular movie theater establishment
depends on the number of auditoriums
showing digital movies.
TABLE 14—CAPTIONING DEVICE SCOPING REQUIREMENTS PER VENUE TYPE
[Estimated]
Minimum
number of
captioning
devices
required
per venue
type
Venue type
Megaplex (16+ auditoriums) ................................................................................................................................................................
Multiplex (8–15 auditoriums) ...............................................................................................................................................................
Miniplex (2–7 auditoriums) ..................................................................................................................................................................
Single-Auditorium .................................................................................................................................................................................
12
8
6
4
TABLE 15—AUDIO DESCRIPTION DEVICE SCOPING REQUIREMENTS PER VENUE TYPE
[Estimated]
Average
number
of auditoriums
Venue type
Megaplex (16+ auditoriums) ....................................................................................................................................
Multiplex (8–15 auditoriums) ...................................................................................................................................
Miniplex (2–7 auditoriums) ......................................................................................................................................
Single-Auditorium .....................................................................................................................................................
Finally, the unit costs for the
necessary equipment are presented in
table 16, Table 17, Table 18, and Table
19 below. This information was
provided in NATO’s public comment on
the 2014 NPRM. For further detail
regarding the unit costs used to develop
the total equipment acquisition costs
Minimum
number
of audio
description
devices
required
per venue
type
18
12
5
1
9
6
3
2
estimate, please see section 3.4 of the
Final RA.
TABLE 16—CAPTIONING HARDWARE UNIT COSTS
Cost per
captioning
hardware
unit
sradovich on DSK3GMQ082PROD with RULES4
Technology
Doremi Captiview .................................................................................................................................................................................
USL ......................................................................................................................................................................................................
Sony .....................................................................................................................................................................................................
Average (Excluding Sony) ...................................................................................................................................................................
Average (All Technologies) .................................................................................................................................................................
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
PO 00000
Frm 00027
Fmt 4701
Sfmt 4700
E:\FR\FM\02DER4.SGM
02DER4
$864
1,371
500
1,118
912
87374
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
TABLE 17—ADDITIONAL COST FOR AUDIO DESCRIPTION HARDWARE
Cost per
theater
for audio
description
hardware
Technology
Doremi Captiview .................................................................................................................................................................................
USL ......................................................................................................................................................................................................
Sony .....................................................................................................................................................................................................
Average (Excluding Sony) ...................................................................................................................................................................
Average (All Technologies) .................................................................................................................................................................
$615
0
0
308
205
TABLE 18—CAPTIONING DEVICE UNIT COSTS
Cost per
captioning
device
Technology
Doremi Captiview .................................................................................................................................................................................
USL ......................................................................................................................................................................................................
Sony .....................................................................................................................................................................................................
Average (Excluding Sony) ...................................................................................................................................................................
Average (All Technologies) .................................................................................................................................................................
$453
479
1,250
466
727
TABLE 19—AUDIO DESCRIPTION DEVICE UNIT COSTS
Cost per
audio
description
device
Technology
Doremi Captiview .................................................................................................................................................................................
USL ......................................................................................................................................................................................................
Sony .....................................................................................................................................................................................................
Average (Excluding Sony) ...................................................................................................................................................................
Average (All Technologies) .................................................................................................................................................................
In addition to incurring upfront costs,
movie theaters will also incur ongoing
costs to comply with the final rule.
Table 20 below presents the estimated
total ongoing costs and the annual
ongoing costs that the average movie
theater within each venue type will
incur over the 15-year period of
analysis. More detailed information
about how these costs were calculated
$121
69
300
95
163
can be found in section 3.6 (replacement
costs), section 3.7 (training costs), and
section 3.8 (maintenance and
administrative costs) of the Final RA.
TABLE 20—AVERAGE PER MOVIE THEATER ONGOING COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, UNDISCOUNTED
[$]
Total
replacement
costs
Venue type
Megaplex ..............................................................................
Multiplex ...............................................................................
Miniplex ................................................................................
Single-Auditorium .................................................................
Total staff
training costs
$46,957
31,373
19,255
7,566
$7,058
4,705
1,961
392
Total
maintenance
and administrative costs
$11,952
7,999
4,296
1,556
Total ongoing
costs
$65,968
44,077
25,512
9,514
Ongoing costs
per year
$4,398
2,938
1,701
634
sradovich on DSK3GMQ082PROD with RULES4
* Totals may differ due to rounding.
Table 21 summarizes the estimated
per movie theater costs by venue type,
as explained above and in further detail
in section 4.1.4 of the Final RA. The
first column in table 21 presents the
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
average upfront costs (acquisition,
installation) by venue type while the
second column shows the average
ongoing annual costs (replacement,
training, and maintenance and
PO 00000
Frm 00028
Fmt 4701
Sfmt 4700
administrative costs) by venue type. The
rightmost column shows the total
undiscounted cost to an average theater
by venue type over the 15-year period
of analysis.
E:\FR\FM\02DER4.SGM
02DER4
87375
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
TABLE 21—AVERAGE PER MOVIE THEATER COSTS, UNDISCOUNTED
[$]
Average per theater
upfront costs
(acquisition,
installation)
Venue type
Average annual per
theater ongoing
costs
(replacement, training, maintenance
and administrative)
Total per theater
costs over period of
analysis
$27,358
18,309
9,834
3,562
$4,398
2,938
1,701
634
$93,325
62,386
35,346
13,076
Megaplex .............................................................................................................
Multiplex ...............................................................................................................
Miniplex ................................................................................................................
Single-Auditorium .................................................................................................
The FRFA quantifies the impact on
small entities by calculating the average
upfront costs and the ongoing costs as
a percentage of average annual revenue.
As presented in the table above, the per
movie theater costs are calculated by
venue type. However, the SUSB
program provides no information
regarding the venue types operated by
firms in each revenue category. As a
result, the analysis uses the following
information to estimate the venue types
operated by firms in each revenue
category:
• The average annual revenue per
auditorium is approximately $200,000
to $250,000.32
• Industry research indicates that the
firms with the largest annual revenue
operate most megaplex and multiplex
movie theaters, whereas the firms with
smaller annual revenues operate most
miniplex and single-auditorium movie
theaters.
Based on this information, the FRFA
makes the following assumptions
regarding the venue types operated by
firms in each revenue category:
• Firms with less than $499,999 in
annual revenue operate singleauditorium movie theaters.33 As
presented in table 9, firms with less
than $100,000 in annual revenue have
an average annual revenue of $54,065
per theater; firms with $100,000 to
$499,999 in annual revenue have an
average annual revenue of $251,651 per
theater. These average revenue figures
are close to or below NATO’s estimated
annual revenue per auditorium.
• Firms with annual revenues from
$500,000 to $999,999 operate miniplex
movie theaters (2–7 auditoriums). The
average annual revenue in this category
is $714,762, which is equivalent to the
revenue generated by approximately
three auditoriums according to NATO’s
estimated annual revenue per
auditorium.
• Firms with annual revenues
between $1 million and $2.5 million
operate miniplex and multiplex movie
theaters. Costs to firms with annual
revenues between $1 million and $2.5
million are an average of the costs to
miniplex and multiplex movie theaters.
• Firms with annual revenues
between $2.5 million and $40 million
operate multiplex and megaplex movie
theaters. Costs to firms with revenues
between $2.5 million and $40 million
are estimated using a weighted
average 34 of the costs to multiplex and
megaplex movie theaters based on the
number of movie theaters presented in
table 10.
Using the above assumptions, table 22
presents the estimated upfront and
ongoing annual costs for small entity
movie theater firms, grouped into four
revenue categories.
TABLE 22—VENUE TYPE, UPFRONT COSTS, AND ONGOING COSTS BY REVENUE CATEGORY IN FRFA
Estimated
upfront costs
to average
movie theater
stablishment
Firms with annual revenue of
Venue type used to estimate costs to firms
Less than $499,999 ......................................................
$500,000 to $999,999 ..................................................
$1,000,000 to $2,499,999 ............................................
$2,500,000 to $39,999,999 ..........................................
Single-Screen ...............................................................
Miniplex .........................................................................
Miniplex/Multiplex .........................................................
Multiplex/Megaplex .......................................................
$3,562
9,834
* 14,071
** 20,987
Estimated
annual
ongoing
costs to
average movie
theater
establishment
$634
1,701
* 2,320
** 3,370
* Average of Miniplex/Multiplex costs.
** Weighted Average of Multiplex and Megaplex costs based on number of theaters (table 10).
sradovich on DSK3GMQ082PROD with RULES4
Table 23 below shows the upfront
costs as a percentage of annual revenue
for firms by revenue category. The
average costs per firm are derived from
the average number of establishments
per firm (first column) and the average
upfront costs per theater for each
revenue category (second column). As
the table shows, the upfront costs make
32 NATO, Attachment A, Spring 2014
Accessibility Survey Results, submitted in RIN
1190–AA63, CRT Docket No. 126,
Nondiscrimination on the Basis of Disability by
Public Accommodations—Movie Theaters; Movie
Captioning and Audio Description, available at
https://www.regulations.gov/contentStreamer
?documentId=DOJ-CRT-2014-0004-0401&
attachmentNumber=3&disposition=attachment&
contentType=pdf (last visited Sept. 12, 2016).
33 According to the 2012 SUSB, firms with less
than $499,999 in annual revenue operated 19.3
percent of all establishments in 2012. See U.S.
Census Bureau, Statistics of U.S. Businesses,
available at https://www.census.gov/econ/susb/ (see
Data by Enterprise Receipt Size, U.S., 6-digit
NAICS) (last visited Sept. 12, 2016). The
information is available in an Excel file which lists
all information by NAICS Code. The relevant
NAICS Code for Motion Picture Theaters (except
Drive-Ins) is 512131. This figure is slightly less than
the estimate in table 10, which finds that 21 percent
of all movie theaters are single-auditorium.
34 According to table 10, there are approximately
2,405 megaplex and multiplex theaters, of which
712 are megaplexes and 1,693 are multiplexes. The
weighted average assumes that 30 percent of the
movie theaters in this revenue category are
megaplex movie theaters (712/2,405) and 70 percent
are multiplex movie theaters (1,693/2,405).
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
PO 00000
Frm 00029
Fmt 4701
Sfmt 4700
E:\FR\FM\02DER4.SGM
02DER4
87376
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
up less than 1.5 percent of annual
revenue for all firms except those with
revenues of less than $100,000. For all
firms with revenues of $2,500,000 or
greater, the upfront cost was less than 1
percent of annual revenues.
As discussed previously, the data
from the 2012 SUSB that is provided in
this section also includes data from
movie theaters operating auditoriums
that exhibit analog movies exclusively,
which are not subject to the
requirements of this rulemaking. Based
on its own independent research and
analysis, the Department believes that
most firms with annual revenue less
than $100,000 are not subject to the
requirements of this rule. Although the
FRFA calculates the costs as a percent
of annual revenue for this category of
firms, the information available to the
Department supports its view that most
of these firms are likely operating single
auditoriums that exhibit analog movies
exclusively and are therefore not subject
to the requirements of this rule. First,
according to industry experts, the
average annual revenue per auditorium
is approximately $200,000 to $250,000,
thus making it reasonable to assume that
firms with annual revenue less than
$100,000 operate single-auditorium
movie theaters. Second, the Department
received information from industry
experts that the majority of singleauditorium movie theaters still use
analog projection systems. Third,
commenters indicated that the
remaining movie theaters with analog
projection systems have not converted
to digital projection systems because
they cannot afford the high cost to do so
($60,000 to $150,000 per auditorium 35).
Therefore, it is reasonable to assume
that most of the movie theater firms
with less than $100,000 in annual
revenue operate movie theaters with
analog auditoriums that are not subject
to this rulemaking. In addition, all
movie theaters with auditoriums
exhibiting digital movies—including
any firms with less than $100,000 in
annual revenue—continue to have
available to them the individualized and
fact-specific undue burden limitation
specified in § 36.303(a).
TABLE 23—AVERAGE UPFRONT COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE CATEGORY,
UNDISCOUNTED
[2015 $]
Average upfront
costs per
establishment
Establishments
per firm
Revenue category
Less than $100,000 * ...................................................
$100,000 to $499,999 ..................................................
$500,000 to $999,999 ..................................................
$1,000,000 to $2,499,999 ............................................
$2,500,000 to $4,999,999 ............................................
$5,000,000 to $7,499,999 ............................................
$7,500,000 to $9,999,999 ............................................
$10,000,000 to $14,999,999 ........................................
$15,000,000 to $19,999,999 ........................................
$20,000,000 to $24,999,999 ........................................
$25,000,000 to $29,999,999 ........................................
$30,000,000 to $34,999,999 ........................................
$35,000,000 to $39,999,999 ........................................
1.01
1.02
1.06
1.15
1.51
1.89
2.58
4.12
4.56
6.00
11.00
16.50
8.00
$3,562
3,562
9,834
14,071
20,987
20,987
20,987
20,987
20,987
20,987
20,987
20,987
20,987
Average
upfront costs
per firm
$3,591
3,631
10,456
16,223
31,732
39,575
54,124
86,368
95,606
125,920
230,853
346,280
167,893
Average
revenue
per firm
$54,508
256,537
714,762
1,542,318
3,394,864
5,497,029
7,697,211
12,013,115
14,200,444
14,314,600
22,734,000
** n/a
27,514,000
Upfront costs
as a
percentage
of revenue
6.6
1.4
1.5
1.1
0.9
0.7
0.7
0.7
0.7
0.9
1.0
** n/a
0.6
* Likely firms operating single-auditorium movie theaters that exhibit analog movies exclusively, and therefore not subject to this rulemaking.
** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
Table 24 presents the average annual
ongoing cost as a percentage of average
annual revenue for firms in each
revenue category. For all firms, except
those with annual revenues of $100,000
or less, annual ongoing costs make up
less than 0.3 percent of annual revenue.
TABLE 24—AVERAGE ANNUAL ONGOING COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE
CATEGORY, UNDISCOUNTED
[2015 $]
Establishment/
firm
sradovich on DSK3GMQ082PROD with RULES4
Revenue category
Average
ongoing costs
per
establishment
1.01
1.02
1.06
1.15
1.51
1.89
2.58
4.12
4.56
$634
634
1,701
2,320
3,370
3,370
3,370
3,370
3,370
Less than $100,000 * ...........................................................
$100,000 to $499,999 ..........................................................
$500,000 to $999,999 ..........................................................
$1,000,000 to $2,499,999 ....................................................
$2,500,000 to $4,999,999 ....................................................
$5,000,000 to $7,499,999 ....................................................
$7,500,000 to $9,999,999 ....................................................
$10,000,000 to $14,999,999 ................................................
$15,000,000 to $19,999,999 ................................................
35 See Helen Alexander & Rhys Blakely, The
Triumph of Digital Will Be the Death of Many
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
Movies, New Republic (Sep. 12, 2014), available at
https://www.newrepublic.com/article/119431/how-
PO 00000
Frm 00030
Fmt 4701
Sfmt 4700
Average
annual
ongoing
cost per firm
$639
647
1,808
2,674
5,096
6,356
8,692
13,870
15,354
Average
revenue per
firm
Annual
ongoing cost
as a
percentage
of revenue
$54,508
256,537
714,762
1,542,318
3,394,864
5,497,029
7,697,211
12,013,115
14,200,444
digital-cinema-took-over-35mm-film (last visited
Sept. 12, 2016).
E:\FR\FM\02DER4.SGM
02DER4
1.2
0.3
0.3
0.2
0.2
0.1
0.1
0.1
0.1
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
87377
TABLE 24—AVERAGE ANNUAL ONGOING COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE
CATEGORY, UNDISCOUNTED—Continued
[2015 $]
Establishment/
firm
Revenue category
$20,000,000
$25,000,000
$30,000,000
$35,000,000
to
to
to
to
$24,999,999
$29,999,999
$34,999,999
$39,999,999
Average
ongoing costs
per
establishment
6.00
11.00
16.50
8.00
3,370
3,370
3,370
3,370
................................................
................................................
................................................
................................................
Average
annual
ongoing
cost per firm
20,222
37,074
55,611
26,963
Average
revenue per
firm
14,314,600
22,734,000
** n/a
27,514,000
Annual
ongoing cost
as a
percentage
of revenue
0.1
0.2
** n/a
0.1
sradovich on DSK3GMQ082PROD with RULES4
* Likely firms operating single-auditorium movie theaters that exhibit analog movies exclusively, and therefore not subject to this rulemaking.
** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
E. Reporting, Recordkeeping, and Other
Compliance Requirements
The final rule imposes no new
recordkeeping or reporting
requirements. However, the final rule
does require that movie theaters
disclose to the public information
concerning the availability of captioning
and audio description for movies shown
in their auditoriums. Specifically,
§ 36.303(g)(8) of the final rule requires
movie theaters to inform the public of
the availability of captioning and audio
description on all notices of movie
showings and times at the box office
and other ticketing locations, on Web
sites and mobile apps, in newspapers,
and over the telephone. This
requirement applies to any movie
theater showing digital movies with
captioning and audio description on or
after January 17, 2017. Notices of movie
showings and times posted by third
parties not subject to or under the
control of a covered movie theater are
not subject to this requirement.
As discussed throughout the Final
RA, movie theaters, including small
entities, may incur costs as a result of
complying with the final rule. These
costs are detailed in section 7.4 of the
Final RA and section VI.D above but do
not include the costs associated with the
notice requirement. As discussed in
section V.A.3 above, the Department
expects that the additional cost and
burden of noting which screenings will
be captioned or audio-described is de
minimis when a movie theater is
already preparing a communication
listing movie titles and screening times.
Therefore, the Department anticipates
that the costs and burdens associated
with this requirement will also be de
minimis for small entities.
Additionally, the Department does
not expect that movie theater personnel
will need to acquire additional
professional skills to comply with this
requirement. A specific form of notice is
not required. Movie theaters routinely
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
use ‘‘CC’’ and ‘‘AD’’ or ‘‘DV’’ to indicate
the availability of closed movie
captioning and audio description in
their communications, and the
Department’s research indicates that the
inclusion of such abbreviations does not
require additional technical knowledge.
Moreover, the movie exhibition industry
has largely moved away from print
advertising in favor of digital
advertising. As one commenter
indicated, digital advertising allows
movie theaters to add information
concerning the availability of captioning
and audio description without much
difficulty or cost.
More detailed information on the
estimated burden and costs associated
with the final rule’s notice requirement
is provided in the Department’s 60-day
Paperwork Reduction Act Notice
published in the Federal Register on
June 10, 2016. 81 FR 37643. The
Department published a second notice
in the Federal Register on August 30,
2016. 81 FR 59657. The 30-day
comment period for the second notice
closed on September 29, 2016.
F. Measures Taken To Limit Impact on
Small Entities
The Department is aware of potential
limitations to compliance for small
entities—specifically, small movie
theater firms with less than $38.5
million in annual revenue—and has
taken measures to lessen the impact on
those entities. In addition to soliciting
comments regarding methods to reduce
the regulatory impact on small movie
theaters, the Department also
participated in a roundtable sponsored
by the Office of Advocacy of the SBA at
which organizations representing small
movie theaters as well as individual
owners expressed their views. As a
result of the information provided, the
Department considered a variety of
alternatives in the final rule. The
different alternatives considered and
their relevance to small movie theaters
are summarized below. See chapter 6 of
PO 00000
Frm 00031
Fmt 4701
Sfmt 4700
the Final RA for further information and
detail regarding the alternatives that the
Department considered.
Changes to the Compliance Date
In the final rule, movie theaters have
18 months to acquire and install the
necessary equipment to provide closed
movie captioning and audio description
in their auditoriums exhibiting digital
movies. The Department also
considered other compliance windows,
including a 6-month and a 2-year
compliance window. Some commenters
suggested that the Department defer the
requirements of this rule for small
movie theaters with annual revenue less
than $500,000 because these movie
theaters might have financial difficulty
complying with the requirements.
The Department ultimately decided
that an 18-month compliance date was
the most appropriate choice for all
movie theaters exhibiting digital movies
and is only deferring application of the
rule’s requirements for movie theater
auditoriums that exhibit analog movies
exclusively. The Department’s decision
regarding the 18-month compliance date
in the final rule is based on the
Department’s independent research and
the information provided in comments
during the 2014 NPRM comment period.
Based on this information, the
Department determined that 6 months
may be an insufficient amount of time
for movie theaters to comply with the
requirements of this rulemaking,
especially small movie theaters.
However, the Department believes that
an 18-month compliance date gives
small movie theaters, especially those
struggling financially as a result of the
unrelated costs of digital conversion, a
sufficient amount of time to plan and
budget accordingly. Although some
commenters suggested a deferral for a
category of smaller movie theaters, the
Department found that to be
unnecessary because movie theaters do
not have to comply with requirements
of the final rule to the extent that
E:\FR\FM\02DER4.SGM
02DER4
87378
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
complying would constitute an undue
burden or a fundamental alteration.
sradovich on DSK3GMQ082PROD with RULES4
Changes to the Scoping Requirements
In the 2014 NPRM, the Department
proposed scoping requirements for
captioning devices based on the number
of seats in a movie theater, which were
equivalent to approximately 2 percent of
seats. The Department further proposed
that movie theaters maintain one audio
description device per auditorium, with
a minimum of two devices per movie
theater. However, in light of the public
comments received and proposals made
by the movie exhibition industry and
multiple disability advocacy groups,
those scoping requirements have been
reduced in the final rule. Because movie
theaters are rarely at 100 percent
occupancy, the Department determined
that the number of seats within a movie
theater is an inappropriate proxy for
determining the number of captioning
devices required. One commenter noted
that the scoping requirements based on
seat count could disproportionately
impact small movie theaters because
many single-auditorium movie theaters
are historic establishments with many
seats but low occupancy rates.
Additionally, usage data indicates that
audio description devices are used less
frequently than the proposed scoping
required. As a result, the Department
adopted lower scoping requirements for
both captioning and audio description
devices based on the number of
auditoriums showing digital movies
within a movie theater. The reduced
scoping in the final rule substantially
lowers costs per movie theater and thus
reduces burdens on small movie
theaters.
Auditoriums Exhibiting Analog Movies
Exclusively
The Department considered giving
movie theaters with auditoriums
equipped to exhibit analog movies
exclusively 4 years to comply with the
rule’s requirements, as opposed to
deferring the decision whether to engage
in rulemaking with respect to such
auditoriums (see section 1.4.1 and
section 6.3 of the Final RA). Based on
public comments and analysis of the
most current data, the Department
ultimately decided to defer analog
auditoriums from coverage of this rule.
As previously discussed, the movie
industry continues to undergo
significant changes in the production
and distribution of movies, resulting in
the near elimination of first-run movies
in analog film format. Most movie
theaters have converted to digital
projection systems to the extent that
they are financially able to do so, and
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
as a result, small theaters that still have
analog projection systems tend to have
fewer financial resources than other
movie theaters. The Department rejected
the alternative 4-year compliance date
for analog movie theaters and is
deferring until a later date the decision
whether to apply the rule’s
requirements to movie theater
auditoriums exhibiting analog movies
exclusively. Because the remaining
analog movie theaters likely qualify as
small entities, the deferral of rulemaking
with respect to analog auditoriums will
reduce the burdens on small movie
theaters.
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
42 U.S.C. 12186 and 12205a, 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 amended
as follows:
PART 36—NONDISCRIMINATION ON
THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN
COMMERCIAL FACILITIES
1. The authority citation for part 36 is
revised to read as follows:
■
Authority: 5 U.S.C. 301; 28 U.S.C. 509,
510; 42 U.S.C. 12186(b), 12205a.
Subpart A—General
2. In § 36.303:
a. Redesignate paragraph (g) as
paragraph (h); and
■ b. Add new paragraph (g) to read as
follows:
■
■
§ 36.303
Number of movie theater
auditoriums exhibiting
digital movies
Auxiliary aids and services.
*
*
*
*
*
(g) Movie theater captioning and
audio description—(1) Definitions. For
the purposes of this paragraph (g)—
(i) Analog movie means a movie
exhibited in analog film format.
(ii) Audio description means the
spoken narration of a movie’s key visual
elements, such as the action, settings,
facial expressions, costumes, and scene
changes. Audio description generally
requires the use of an audio description
device for delivery to a patron.
(iii) Audio description device means
the individual device that a patron may
use at any seat to hear audio
description.
PO 00000
(iv) Captioning device means the
individual device that a patron may use
at any seat to view closed movie
captioning.
(v) Closed movie captioning means
the written display of a movie’s
dialogue and non-speech information,
such as music, the identity of the
character who is speaking, and other
sounds or sound effects. Closed movie
captioning generally requires the use of
a captioning device for delivery of the
captions to the patron.
(vi) Digital movie means a movie
exhibited in digital cinema format.
(vii) Movie theater means a facility,
other than a drive-in theater, that is
owned, leased by, leased to, or operated
by a public accommodation and that
contains one or more auditoriums that
are used primarily for the purpose of
showing movies to the public for a fee.
(viii) Open movie captioning means
the written on-screen display of a
movie’s dialogue and non-speech
information, such as music, the identity
of the character who is speaking, and
other sounds and sound effects.
(2) General. A public accommodation
shall ensure that its movie theater
auditoriums provide closed movie
captioning and audio description
whenever they exhibit a digital movie
that is distributed with such features.
Application of the requirements of
paragraph (g) of this section is deferred
for any movie theater auditorium that
exhibits analog movies exclusively, but
may be addressed in a future
rulemaking.
(3) Minimum requirements for
captioning devices. A public
accommodation shall provide a
minimum number of fully operational
captioning devices at its movie theaters
in accordance with the following Table:
Frm 00032
Fmt 4701
Sfmt 4700
1 ............................................
2–7 ........................................
8–15 ......................................
16 + ......................................
Minimum
required
number of
captioning
devices
4
6
8
12
(4) Minimum requirements for audio
description devices. (i) A public
accommodation shall provide at its
movie theaters a minimum of one fully
operational audio description device for
every two movie theater auditoriums
exhibiting digital movies and no less
than two devices per movie theater.
When calculation of the required
number of devices results in a fraction,
the next greater whole number of
devices shall be provided.
E:\FR\FM\02DER4.SGM
02DER4
sradovich on DSK3GMQ082PROD with RULES4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
(ii) A public accommodation may
comply with the requirements in
paragraph (g)(4)(i) of this section by
using the existing assistive listening
receivers that the public
accommodation is already required to
provide at its movie theaters in
accordance with Table 219.3 of the 2010
Standards, if those receivers have a
minimum of two channels available for
sound transmission to patrons.
(5) Performance requirements for
captioning devices and audio
description devices. Each captioning
device and each audio description
device must be properly maintained by
the movie theater to ensure that each
device is fully operational, available to
patrons in a timely manner, and easily
usable by patrons. Captioning devices
must be adjustable so that the captions
can be viewed as if they are on or near
the movie screen, and must provide
clear, sharp images in order to ensure
readability of captions.
(6) Alternative technologies. (i) A
public accommodation may meet its
obligation to provide captioning and
audio description in its movie theaters
to persons with disabilities through any
technology so long as that technology
provides communication as effective as
that provided to movie patrons without
disabilities.
(ii) A public accommodation may use
open movie captioning as an alternative
to complying with the requirements
specified in paragraph (g)(3) of this
section, either by providing open movie
captioning at all showings of all movies
available with captioning, or whenever
requested by or for an individual who
is deaf or hard of hearing prior to the
start of the movie.
(7) Compliance date for providing
captioning and audio description. (i) A
public accommodation must comply
with the requirements in paragraphs
(g)(2)–(6) of this section in its movie
theaters that exhibit digital movies by
June 2, 2018.
(ii) If a public accommodation
converts a movie theater auditorium
from an analog projection system to a
system that allows it to exhibit digital
movies after December 2, 2016, then
that auditorium must comply with the
requirements in paragraph (g) of this
section by December 2, 2018, or within
6 months of that auditorium’s complete
installation of a digital projection
system, whichever is later.
(8) Notice. On or after January 17,
2017, whenever a public
accommodation provides captioning
and audio description in a movie theater
auditorium exhibiting digital movies, it
shall ensure that all notices of movie
showings and times at the box office
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
and other ticketing locations, on Web
sites and mobile apps, in newspapers,
and over the telephone, inform potential
patrons of the movies or showings that
are available with captioning and audio
description. This paragraph does not
impose any obligation on third parties
that provide information about movie
theater showings and times, so long as
the third party is not part of or subject
to the control of the public
accommodation.
(9) Operational requirements. On or
after January 17, 2017, whenever a
public accommodation provides
captioning and audio description in a
movie theater auditorium exhibiting
digital movies, it shall ensure that at
least one employee is available at the
movie theater to assist patrons seeking
or using captioning or audio description
whenever a digital movie is exhibited
with these features. Such assistance
includes the ability to—
(i) Locate all necessary equipment
that is stored and quickly activate the
equipment and any other ancillary
systems required for the use of the
captioning devices and audio
description devices;
(ii) Operate and address problems
with all captioning and audio
description equipment prior to and
during the movie;
(iii) Turn on open movie captions if
the movie theater is relying on open
movie captioning to meet the
requirements of paragraph (g)(3) of this
section; and
(iv) Communicate effectively with
individuals with disabilities, including
those who are deaf or hard of hearing or
who are blind or have low vision, about
how to use, operate, and resolve
problems with captioning devices and
audio description devices.
(10) This section does not require the
use of open movie captioning as a
means of compliance with paragraph (g)
of this section, even if providing closed
movie captioning for digital movies
would be an undue burden.
■ 3. Appendix F to part 36 is added to
read as follows:
Appendix F to Part 36—Guidance and
Section-by-Section Analysis
Section 36.303(g)(1) Definitions
In the Notice of Proposed Rulemaking, 79
FR 44976 (Aug. 1, 2014) (NPRM), the
Department proposed § 36.303(g)(1), which
set forth definitions for certain terms
specifically referenced in paragraph (g). The
Department sought public comment on these
proposed definitions.
‘‘Analog Movie’’
Although the Department did not
specifically propose a definition of ‘‘analog
PO 00000
Frm 00033
Fmt 4701
Sfmt 4700
87379
movie’’ in the NPRM, the Department
defined the term in the preamble and
solicited comment on the state of analog
movies and their availability. In the final
rule, the Department has added a definition
of ‘‘analog movie’’ in order to distinguish
between movies shown in digital cinema
format and movies shown in analog format.
‘‘Analog movie’’ is defined to mean ‘‘a movie
exhibited in analog film format.’’
‘‘Audio Description’’
In the NPRM, the Department used the
term ‘‘audio description’’ to refer to the
spoken description of information describing
the visual elements of a movie to an
individual who is blind or has low vision
and who is unable to see the images and
action on the screen. Proposed
§ 36.303(g)(1)(i) defined ‘‘audio description’’
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.’’ Although the
Department believes that the term ‘‘audio
description’’ is most commonly used to
describe this service, it sought public
comment on whether to use this or some
other nomenclature.
All commenters addressing this issue
agreed with the Department’s proposal and
supported the use of the term and the
Department’s definition. In the final rule, the
Department has retained the term ‘‘audio
description,’’ and has slightly modified the
definition for clarity to read as follows:
‘‘Audio description means the spoken
narration of a movie’s key visual elements,
such as the action, settings, facial
expressions, costumes, and scene changes.
Audio description generally requires the use
of an audio description device for delivery to
a patron.’’
‘‘Audio Description Device’’
In the NPRM, at proposed
§ 36.303(g)(1)(iii), the Department used the
term ‘‘individual audio description listening
device’’ to refer to the ‘‘individual device that
patrons may use at their seats to hear audio
description.’’ The sole commenter on this
definition expressed concern that the term
‘‘individual audio description listening
device’’ was unnecessarily long. The
Department agrees with the commenter and
has revised the name of the device
accordingly in the final rule. The final rule
retains the text of the proposed definition
with minor edits.
‘‘Captioning Device’’
In the NPRM, at proposed
§ 36.303(g)(1)(iv), the Department used the
term ‘‘individual captioning device’’ to refer
to the ‘‘individual device that patrons may
use at their seats to view the closed
captions.’’ The sole commenter on this
definition recommended that the Department
shorten the nomenclature for this device to
‘‘captioning device.’’ The Department agrees
with the commenter and has revised the
name of the device accordingly in the final
rule. The final rule retains the text of the
proposed definition with minor edits.
E:\FR\FM\02DER4.SGM
02DER4
87380
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
‘‘Closed Movie Captioning’’
The NPRM defined ‘‘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).’’ The NPRM further
provided that closed movie captioning be
available only to individuals who request it,
and that, generally, it requires the use of an
individual captioning device to deliver the
captions to the patron.
Commenters were equally split as to
whether the Department should use ‘‘closed
movie captioning’’ or some other language to
refer to the technology. Some commenters
urged the Department to use the term ‘‘closed
captioning.’’ Other commenters disagreed,
however, and stated that the Department
should avoid using the term ‘‘closed
captioning’’ to distinguish it from the ‘‘closed
captioning’’ that is turned on at home by a
person viewing the television. In the final
rule, the Department is retaining the term
‘‘closed movie captioning,’’ but the definition
is modified for clarity to read: ‘‘Closed movie
captioning means the written display of a
movie’s dialogue and non-speech
information, such as music, the identity of
the character who is speaking, and other
sounds or sound effects. Closed movie
captioning generally requires the use of a
captioning device for delivery of the captions
to the patron.’’
sradovich on DSK3GMQ082PROD with RULES4
‘‘Digital Movie’’
The Department has added a definition of
‘‘digital movie,’’ meaning ‘‘a movie exhibited
in digital cinema format.’’
‘‘Movie Theater’’
The NPRM proposed defining ‘‘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’’ in
order to make clear which facilities are
subject to the specific captioning and audio
description requirements set forth in
§ 36.303(g). The Department intended this
definition to exclude drive-in movie theaters
as well as facilities that screen movies if the
facility is not used primarily for the purpose
of showing movies for a fee, such as
museums, hotels, resorts, or cruise ships,
even if they charge an additional fee. The
Department asked for public comment on the
proposed definition and whether it
adequately described the movie theaters that
should be covered by this regulation.
Commenters generally supported the
Department’s proposed definition for ‘‘movie
theater,’’ but there were some concerns about
the proposed definition’s scope. Some
commenters asserted that the definition of
‘‘movie theater’’ should be expanded to
include the institutions that the Department
expressly excluded, such as museums,
hotels, resorts, cruise ships, amusement
parks, and other similar public
accommodations that show movies as a
secondary function, whether or not they
charge a fee. One commenter expressed
concern that such entities might believe that
they are otherwise exempt from any
requirement to furnish auxiliary aids and
services to ensure effective communication,
and another commenter urged the
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
Department to consider developing
additional regulations that would specifically
address public accommodations that are not
covered by the proposed definition but
otherwise exhibit movies or other video
content.
The Department declines to make any
changes at this time to address public
accommodations that do not meet the
definition of ‘‘movie theater’’ and are,
therefore, not subject to the requirements of
paragraph (g). The Department’s title III
regulation has always made clear that all
public accommodations 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. A. The requirements of this rule were
not intended to supplant the general
obligation to provide effective
communication through the provision of
auxiliary aids and services. They are only
intended to provide clarity about how
‘‘movie theaters’’ must meet this obligation.
The Department notes that many public
accommodations that screen movies as a
secondary function already provide
appropriate auxiliary aids and services, and
where the Department has identified the
need for enforcement action, these types of
public accommodations have been willing to
comply with the ADA and the effective
communication requirement. See, e.g., Press
Release, U.S. Department of Justice, Justice
Department Reaches Settlement with
National Museum of Crime and Punishment
to Improve Access for People with Disabilities
(Jan. 13, 2015), available at https://
www.justice.gov/opa/pr/justice-departmentreaches-settlement-national-museum-crimeand-punishment-improve-access (last visited
Sept. 12, 2016).
Two commenters asked the Department to
revise the definition of ‘‘movie theater’’ to
clarify that public accommodations used as
temporary screening locations during film
festivals, such as pop-up tents, convention
centers, and museums with theaters, are not
subject to the requirements of paragraph (g).
According to such commenters, most movies
screened at festivals are not ready for
distribution, and typically have not yet been
distributed with captioning and audio
description. To the extent a film is already
distributed with these features, the
commenters argued that the myriad of
logistics entailed in coordinating a festival
may preclude a film festival from making
such features available.
The Department does not believe that its
definition of ‘‘movie theater’’ encompasses
the temporary facilities described by the
commenters that host film festivals.
However, operators of film festivals, just like
any other public accommodation that
operates a place of entertainment, are still
subject to the longstanding general
requirement under § 36.303 to provide
effective communication unless doing so
would be a fundamental alteration of the
program or service or would constitute an
undue burden. Moreover, if a festival
programmer schedules the screening of a
movie that is already distributed with
PO 00000
Frm 00034
Fmt 4701
Sfmt 4700
captioning and audio description at a movie
theater that is subject to the requirements in
paragraph (g), then the effective
communication obligation would require the
festival to ensure that the accessible features
are available at all scheduled screenings of a
movie distributed with such features.
The Department also received several
comments regarding the exclusion of drivein movie theaters in the proposed definition.
Many commenters agreed that drive-in movie
theaters should not be subject to the
requirements of paragraph (g) because the
technology still does not exist to exhibit
movies with closed movie captioning and
audio description in this setting. A few
commenters pointed out innovative ways for
drive-in movie theaters to provide captioning
and audio description and argued that such
options are feasible. For example, one
commenter suggested that drive-in movie
theaters provide audio description through a
second low-power FM broadcast transmitter
or on a second FM channel. However, these
commenters did not clearly identify
technology that is currently available or
under development to provide closed movie
captioning in this setting. Finally, one
commenter expressed concern that if audio
description was broadcast at a drive-in
theater, it would likely be heard by patrons
who do not require audio description and
would result in a fundamental alteration of
the movie-going experience for such patrons.
The Department declines to change its
position that drive-in movie theaters should
be excluded from the requirements of
paragraph (g). Given the diminishing number
of drive-in movie theaters, the current lack of
accessible technology to provide closed
movie captioning and audio description in
this setting, and the fact that it is unlikely
that such technology will be developed in the
future, the Department remains convinced
that rulemaking regarding drive-in movie
theaters should be deferred until the
necessary technology becomes commercially
available.
For the reasons discussed above, the
Department has retained the text of the
proposed definition of ‘‘movie theater’’ with
minor edits. The final rule defines ‘‘movie
theater’’ as ‘‘a facility, other than a drive-in
theater, that is owned, leased by, leased to,
or operated by a public accommodation and
that contains one or more auditoriums that
are used primarily for the purpose of
showing movies to the public for a fee.’’
‘‘Open Movie Captioning’’
The NPRM proposed defining ‘‘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 movie
theater.’’
While commenters were evenly split on
whether the new regulation should use the
term ‘‘open movie captioning’’ or ‘‘open
captioning,’’ the Department chose the
former to avoid confusion and emphasize
that the term refers only to captioning
provided at movie theaters. The final rule
defines ‘‘open movie captioning’’ as ‘‘the
written on-screen display of a movie’s
dialogue and non-speech information, such
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
as music, the identity of the character who
is speaking, and other sounds and sound
effects.’’
Section 36.303(g)(2) General
In the NPRM, the Department proposed at
§ 36.303(g)(2)(i) 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.’’ That
paragraph further provided that in all cases
where the movies the theater intends to
exhibit are produced, distributed, or
otherwise made available with closed movie
captions, the public accommodation must
ensure that it acquires the captioned version
of those movies and makes closed movie
captions available at all scheduled screenings
of those movies. An identical provision
requiring movie theaters to exhibit movies
with audio description was proposed at
§ 36.303(g)(3)(i). The Department proposed
applying the requirements for closed movie
captioning and audio description to all movie
screens (auditoriums) in movie theaters that
show digital movies and sought public
comment as to the best approach to take with
respect to movie theaters that show analog
movies. The Department sought public
comment on whether it should adopt one of
two options regarding the specific obligation
to provide captioning and audio description
at movie theater auditoriums that display
analog movies. Option 1 proposed covering
movie theater screens (auditoriums) that
display analog movies but giving them 4
years to come into compliance with the
requirements of § 36.303(g). Option 2
proposed deferring the decision whether to
apply the rule’s requirements to movie
theater screens (auditoriums) showing analog
movies and considering additional
rulemaking at a later date.
Many commenters generally agreed with
the provisions as they related to movie
theaters displaying digital movies. These
commenters stressed, however, that movie
theaters should in no way be prohibited or
limited from exhibiting a movie that is not
available with captioning or audio
description, or be required to add captioning
and audio description when these features
are not available.
Commenters were split in response to the
Department’s question concerning the best
approach to take with respect to analog
movie theaters. A slight majority of
commenters supported deferral for movie
theater auditoriums that exhibit analog
movies exclusively. In support of Option 2,
these commenters pointed to the state of the
movie industry, the financial condition of
many small movie theaters, and the
unintended consequences of a 4-year
compliance date. According to the
comments, there are very few remaining
movie theaters that display analog movies
exclusively, and despite the industry’s urging
that such movie theaters must convert to
digital to remain viable, many of these movie
theaters have not converted because they
cannot afford the high cost to do so.
Therefore, these commenters argued that a
regulation covering analog movie theaters
will have minimal overall impact in addition
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
to being an unnecessary strain on small
businesses, considering the high cost of
compliance for such movie theaters.
The remaining commenters responding to
this question stated that the Department
should adopt Option 1’s 4-year compliance
date for movie theaters displaying analog
movies. These commenters reasoned that
fairness and equality concerns justified
adoption of Option 1 because, in their view,
Option 2 could incentivize more movie
theaters to delay their digital conversion,
resulting in fewer movie theaters being
subject to the regulation, and individuals
with hearing and vision disabilities
continuing to face unequal access to movie
theaters. A few disability groups argued that
because a movie theater is subject to title III
of the ADA regardless of whether it displays
analog movies or digital movies, adoption of
Option 2 could be seen as carving out an
exception within the ADA where none exists
otherwise.
In consideration of these comments and
the Department’s independent research, the
Department has decided to defer until a later
date the decision whether to engage in
rulemaking with respect to movie theater
auditoriums that exhibit analog movies
exclusively. Thus, the final rule makes clear
that the requirements of paragraph (g) apply
only to movie theaters with auditoriums that
show digital movies. The Department agrees
with commenters that very few analog movie
theaters remain, and that the number of such
movie theaters has declined rapidly in recent
years. The Department believes that it is
prudent to wait until it is clear whether there
will be any movie theaters that continue to
show analog movies and whether analog
movies will continue to be produced at all,
or distributed with captioning and audio
description. Although movie theater
auditoriums that exhibit analog movies
exclusively are not subject to the specific
requirements of paragraph (g) at this time,
such movie theaters are nonetheless public
accommodations and subject to the effective
communication requirements of title III.
The final rule provides that ‘‘[a] public
accommodation shall ensure that its movie
theater auditoriums provide closed movie
captioning and audio description whenever
they exhibit a digital movie that is
distributed with such features. Application of
the requirements of paragraph (g) is deferred
for any movie theater auditorium that
exhibits analog movies exclusively, but may
be addressed in a future rulemaking.’’
The requirements of paragraph (g) do not
in any way prohibit a movie theater from
displaying a movie that has not been made
available with captioning and audio
description features nor do the requirements
require a movie theater to independently add
such features to a movie that is not
distributed with such features. In addition,
all movie theaters, regardless of size, status
of conversion to digital cinema, or economic
viability, continue to have available to them
the individualized and fact-specific undue
burden limitation specified in § 36.303(a).
This regulation does not change the
availability of this compliance limitation nor
the circumstances under which it can be
asserted. See 28 CFR 36.104 (defining undue
PO 00000
Frm 00035
Fmt 4701
Sfmt 4700
87381
burden and listing factors to be considered in
determining whether an action would result
in an undue burden). 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 initially install captioning and
audio description equipment in all of its
auditoriums because it is an undue burden,
the movie theater is still obligated to comply
with renumbered § 36.303(h) and provide
alternatives to full compliance by providing
captioning and audio description in some of
its auditoriums up to the point where the
cost becomes an undue burden. In such a
situation, the movie theater should take steps
to maximize the range of movie options for
customers who are deaf or hard of hearing,
or blind or have low vision, by dispersing the
available equipment throughout their
auditoriums so that the theater is able to
exhibit as many movies as possible with
captioning and audio description throughout
the day and evening on weekdays and
weekends. If, for example, a six-auditorium
movie theater can only afford to install
captioning equipment in half of its
auditoriums, and it has auditoriums with
different capacities, it should install
captioning equipment in a large, a medium,
and a small auditorium. This distribution of
equipment would permit exhibition of
different types of movies, as blockbusters
generally are shown in larger auditoriums
first and lower budget or older movies may
only be shown in medium or small
auditoriums.
It has been, and continues to be, the
Department’s position that it would not be a
fundamental alteration of the business of
showing movies in theaters to exhibit movies
already distributed with closed movie
captioning and audio description in order to
ensure effective communication for
individuals who are deaf or hard of hearing,
or blind or have low vision. The service that
movie theaters provide is the screening or
exhibiting of movies. The use of captioning
and audio description 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
such auxiliary aids is the means by which
these individuals gain access to movie
theaters’ services and thereby achieve the
‘‘full and equal enjoyment,’’ 42 U.S.C.
12182(a), of the screening of movies. See,
e.g., Brief for the United States as Amicus
Curiae Supporting Appellants and Urging
Reversal at 15–17, Arizona ex rel. Goddard
v. Harkins Amusement Enters., Inc., 603 F.3d
666 (9th Cir. 2010) (No. 08–16075); see also
NPRM, 79 FR 44976, 44982–83 (Aug. 1,
2014). The Department received no public
comments challenging that position.
Section 36.303(g)(3) Minimum
Requirements for Captioning Devices
In the NPRM, the Department proposed
that movie theaters be required to have
available a minimum number of captioning
devices equal to approximately half the
number of assistive listening receivers
already mandated for assembly areas by
sections 219 and 706 of the 2010 Standards.
E:\FR\FM\02DER4.SGM
02DER4
87382
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
The calculation was based on a movie
theater’s total seating capacity and 2010
Census data estimating that 3.1 percent of the
U.S. population ages 15 and older (7.6
million) has difficulty hearing. See U.S.
Census Bureau, U.S. Department of
Commerce, P70–131, Americans with
Disabilities: 2010 Household Economic
Studies at 8 (2012), available at https://
www.census.gov/prod/2012pubs/p70-131.pdf
(last visited Sept. 12, 2016). Thus, the
proposed § 36.303(g)(2)(iii)(A) required that a
movie theater maintain captioning devices
for approximately 2–4 percent of all available
seats and stated that: ‘‘a public
accommodation that owns, leases, leases to,
Capacity of seating in movie theater
Minimum required number of individual captioning devices
sradovich on DSK3GMQ082PROD with RULES4
100 or less ................................................................................................
101 to 200 ................................................................................................
201 to 500 ................................................................................................
501 to 1000 ..............................................................................................
1001 to 2000 ............................................................................................
2001 and over ..........................................................................................
The Department received more than 70
comments on its proposed scoping
requirements for captioning devices. All
commenters disagreed with the formula in
the NPRM, and with the exception of a very
few individuals and a law school clinic,
commenters uniformly maintained that the
Department’s proposed requirements
substantially overestimated the number of
captioning devices necessary for a variety of
reasons.
Many commenters asserted that seating
capacity does not equate with the need for
captioning devices because movie theaters
are rarely at 100 percent seat occupancy, and
not all Americans attend the movies
simultaneously. They stressed that even at
peak attendance times (weekends), average
seat occupancy rates are substantially less
than half of capacity while small movie
theaters in rural areas with one or two
auditoriums report even lower attendance
rates. Other commenters noted that old
historic theaters often have large seating
capacities, despite low attendance rates. And
some noted that at large, multi-auditorium
complexes, not all auditoriums are
simultaneously in use at all times. Thus,
these commenters asserted that average
movie attendance during weekend hours, not
the number of theater seats, most accurately
predicts anticipated demand for captioning
devices.
Some commenters maintained that the
Department’s proposed scoping requirements
significantly overestimated the need for
captioning devices because the percentage of
persons in the population who have
difficulty hearing does not reflect those who
will actually benefit from or use the devices.
In their view, captioning devices will not be
used by the vast majority of individuals who
are deaf or hard of hearing because such
devices are only needed by persons who have
‘‘severe’’ difficulty hearing, and assistive
listening receivers, which amplify the
volume of sound, are already required and
available at movie theaters. These
commenters also cited statistics showing that
a significant percentage of Americans do not
attend the movies at least once a year, and
while hearing loss disproportionately affects
seniors, they represent a smaller proportion
of persons who actually attend the movies.
Commenters also stressed that in their
experience, the Department’s proposed
scoping requirements for captioning devices
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
2.
2 plus 1 per 50 seats over 100 seats or a fraction thereof.
4 plus 1 per 50 seats over 200 seats or a fraction thereof.
10 plus 1 per 75 seats over 500 seats or a fraction thereof.
18 plus 1 per 100 seats over 1000 seats or a fraction thereof.
28 plus 1 per 200 seats over 2000 seats or a fraction thereof.
far exceed demand in those movie theaters
that currently stock and advertise the
availability of such devices. To support this
conclusion, NATO offered device usage data
from five movie theater companies (which
included a small business with a total screen
(auditorium) count in the 1–75 range, three
regional companies with a total screen
(auditorium) count in the 300–700 range, and
a national company with a 2000+ screen
(auditorium) count) that stock and advertise
the availability of captioning devices on their
Web sites, at ticket counters, and on thirdparty Web sites. According to NATO, that
data showed that even though four of these
five companies stocked far fewer captioning
devices than the NPRM proposed, actual
demand rarely, if ever, exceeded supply even
at peak attendance times. Other movie
theaters and a trade association also
submitted tracking records to confirm the
same.
Several commenters objected to the
Department’s proposed scoping requirements
because they provided a fixed, nonadjustable
number that was not tied to actual consumer
demand and failed to account for variations
in attendance based on theater location and
patron demographics. These commenters
noted that while movie theaters near areas
with a high concentration of residents or
students who are deaf or hard of hearing may
experience greatest demand for devices, a
movie theater in a small rural area may have
only a few requests. Many commenters also
expressed concern that because the
Department’s proposed scoping requirements
would result in the vast majority of movie
theaters having to purchase expensive
technology far in excess of what is needed or
would be used, those movie theaters would
likely avoid investing in new, superior
technology as it becomes available.
Although commenters overwhelmingly
disagreed with the Department’s proposed
approach to scoping, most did not suggest a
formula for determining the number of
captioning devices that should be required.
Instead, they recommended that the number
of required devices be based on one or more
factors, including actual or average weekend
movie attendance, percentage of individuals
who have severe hearing difficulty and will
likely use the devices, demand for devices,
number of movie theater seats, screen count,
and patron demographics. For example, a
Federal agency recommended that the
PO 00000
or operates a movie theater shall provide
individual captioning devices in accordance
with the following Table [below]. This
requirement does not apply to movie theaters
that elect to exhibit all movies at all times at
that facility with open movie captioning.’’
Frm 00036
Fmt 4701
Sfmt 4700
Department set scoping requirements in
accordance with the optimal number of
devices sufficient to provide accessibility to
the disability community (based on relevant
factors such as device usage, demand, and
weekend theater attendance) while
minimizing the burden on small businesses.
A few movie theaters maintained that any
minimum device requirement would be a
waste of resources and unnecessary because
movie theaters seek to satisfy their patrons’
needs, and as a result, many already
advertise and provide captioning devices
upon request.
NATO and four advocacy groups
representing persons who are deaf or hard of
hearing 1 submitted a Joint Comment offering
a three-tiered approach to scoping that was
referenced and supported by many
commenters. First, the Joint Comment
recommended that movie theaters obtain a
minimum number of captioning devices
based on the number of screens (auditoriums)
displaying digital movies, in accordance with
the following:
Single Screen: 4 devices
Miniplex (2–7 screens): 6 devices
Multiplex (8–15 screens): 8 devices
Megaplex (16+ screens): 12 devices
Second, in order to address the limited
circumstances when demand for captioning
devices exceeds minimum requirements, the
Joint Comment proposed that movie theaters
record weekend demand for captioning
devices and adjust the number of devices
biannually to be equal to 150 percent of the
average weekend demand during a 6-month
tracking period. For example, under this
formula, a movie theater that is initially
required to have 6 devices and calculates an
average actual weekend demand of 8 devices
during a tracking period must increase the
number of available devices to 12 (150
percent of 8). Finally, the Joint Comment
recommended that the Department require
every movie theater company to submit an
annual report of its tracking records to the
Department.
After considering all comments, census
data, statistics regarding movie theater
attendance, actual usage data, and its
1 Those advocacy groups are the National
Association of the Deaf, the Hearing Loss
Association of America, the Association of Late
Deafened Adults, and the Alexander Graham Bell
Association for the Deaf and Hard of Hearing.
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
independent research, the Department has
modified its approach to captioning device
scoping and has adopted a final rule that
requires movie theaters to have on hand the
minimum number of captioning devices
proposed in the Joint Comment. Thus, the
final rule at renumbered § 36.303(g)(3)(i)
states that ‘‘[a] public accommodation shall
provide a minimum number of fully
operational captioning devices at its movie
theaters in accordance with the following
Table:’’
Number of movie theater
auditoriums exhibiting digital
movies
Minimum
required
number of
captioning
devices
sradovich on DSK3GMQ082PROD with RULES4
1 ............................................
2–7 ........................................
8–15 ......................................
16+ ........................................
4
6
8
12
The Department imposes these
requirements because its own research and
analysis confirms that they will easily satisfy
maximum weekend demand for captioning
devices at movie theaters across the nation in
almost every location. Thus, the Department
believes that the final rule obligates movie
theaters to provide the optimum number of
captioning devices sufficient to provide
accessibility to individuals with disabilities
who will need and use them, without
requiring movie theaters to purchase
equipment that may likely never be used.
Despite NATO’s and a number of other
comments to the contrary, the Department
has also decided not to impose specific
requirements at this time for providing
additional captioning devices when actual
demand for them exceeds the rule’s
minimum requirements. While the
Department acknowledges that there are a
few movie theaters located in areas where
there is an unusually high concentration of
individuals who are deaf or hard of hearing,
comments, usage data, and independent
research all indicate that only in those rare
circumstances is there a reasonable
possibility that regular demand for devices
may exceed the rule’s minimum
requirements. That same information also
reflects that many movie theaters located in
markets that consistently have an unusually
large number of patrons with hearing
difficulties are already making voluntary
efforts to satisfy consumer demand. For
example, because open movie captioning is
popular with many movie patrons who are
deaf or hard of hearing, some movie theaters
near schools that educate persons who are
deaf provide open-captioned screenings ondemand, or in accordance with a convenient,
regular, and frequent schedule. In any event,
the Department currently lacks adequate
information and data to craft an appropriate
standard to address these situations.
In addition, the Department decided not to
impose a recordkeeping requirement on
movie theaters at this time, even though
some commenters suggested that the
Department do so in order to require movie
theaters to keep records of actual demand for
devices. The NPRM did not solicit
information about existing movie theater
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
recordkeeping practices with respect to the
provision of assistive listening receivers or
captioning and audio description devices,
and the Department lacks adequate data as to
the costs and the burdens of imposing such
a requirement on all movie theaters.
Moreover, the Department has not previously
imposed this type of recordkeeping
requirement on public accommodations, and
it declines to do so without more information
about the need and the costs. The
Department intends, however, to reach out to
stakeholders in the future and obtain
additional information about whether it
should consider engaging in supplemental
rulemaking regarding a recordkeeping
requirement and imposing a standard that
addresses situations when actual demand
exceeds the rule’s minimum requirements.
In the interim, for those movie theaters that
are located in the few places where there is
an unusually high concentration of
individuals who are deaf or hard of hearing,
the Department strongly encourages these
public accommodations to voluntarily work
with the local disability community to
identify and maintain an appropriate number
of captioning devices, or to utilize other
approaches, including open movie
captioning, to satisfy their patrons’ regular
and actual demand.
Section 36.303(g)(4) Minimum
Requirements for Audio Description 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, movie theaters must provide a
reasonable number of audio description
devices. In the NPRM, the Department
proposed at § 36.303(g)(3)(ii)(A) that movie
theaters maintain one audio description
device per auditorium, with a minimum of
two devices per movie theater. However, the
Department noted at proposed
§ 36.303(g)(3)(ii)(B) that ‘‘[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.’’ The Department
theorized that many movie theaters utilized
the newer, multi-channel assistive listening
receivers, and as a result, most movie
theaters would not be required to purchase
additional devices in order to comply with
this requirement.
The Department received extensive
comments regarding the proposed scoping for
audio description devices. Although
commenters overwhelmingly supported the
proposed rule’s goal of ensuring access to
audio description in movie theaters, only
three commenters agreed with the proposed
scoping.
Several commenters recommended a
greater number of audio description devices
than the Department proposed in the NPRM
to accommodate an increase in the number
of individuals who are blind or have low
vision who will likely attend the movies if
accessible technologies are available. A few
commenters recommended two audio
description devices per auditorium, citing a
PO 00000
Frm 00037
Fmt 4701
Sfmt 4700
87383
movie theater’s usage data to support the
suggestion. One commenter, concerned that a
movie theater should be able to accommodate
a larger group of blind or visually impaired
movie patrons, recommended at least eight
audio description devices per movie theater,
or two devices per auditorium, whichever is
greater. Finally, one commenter proposed
requiring three audio description devices per
auditorium to accommodate a larger user
pool, and to counteract a reduction in
available devices that may arise in the event
of equipment failure, or when devices are
being recharged.
The majority of commenters, however,
stated that the recommended scoping was
excessive and too inflexible. These
commenters reasoned that the proposed
scoping failed to consider attendance
variability or demographics, and inhibited
movie theaters from moving devices between
locations to effectively meet demographic
needs. Commenters recommended basing the
number of required audio description devices
on factors such as weekend attendance,
annual attendance, tracked usage rates, and
market demand. The Department received a
large number of comments from movie
theaters stating that current requests by
patrons for audio description devices are
extremely low. Additionally, a trade
association submitted comments stating that
member companies reported signing out a
maximum of 1–4 audio description devices at
any time, and that these companies never
had more requests for devices than the
number of devices available. Based on this
information, the trade association
recommended that the Department require
one audio description device for every two
auditoriums, with a minimum of two devices
per movie theater.
In addition to comments criticizing the
proposed scoping, commenters also
addressed the Department’s belief that most
movie theaters utilize multi-channel headsets
to meet their assistive listening device
obligations. A couple of movie theaters
indicated that they have the dual-channel
receivers. However, a trade association
commented that many movie theaters still
rely on single-channel headsets to meet their
assistive listening device obligations and that
the Department erred in assuming that most
movie theaters would not need to buy
additional devices in order to comply with
these scoping requirements.
In consideration of the comments received
and the Department’s independent research,
the Department has adjusted the required
number of audio description devices to one
device for every two auditoriums. The
Department believes that the available data
supports its view that the revised scoping
ensures that movie theaters will have
available an adequate number of devices
without requiring movie theaters to purchase
more equipment than is likely necessary. The
final rule at renumbered § 36.303(g)(4)(i)
reads as follows: ‘‘A public accommodation
shall provide at its movie theaters a
minimum of one fully operational audio
description device for every two movie
theater auditoriums exhibiting digital movies
and no less than two devices per movie
theater. When calculation of the required
E:\FR\FM\02DER4.SGM
02DER4
87384
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
number of devices results in a fraction, the
next greater whole number of devices shall
be provided.’’ The Department has retained
the provision in proposed § 36.303(g)(3)(ii)(B)
regarding the use of multi-channel assistive
listening receivers to meet this requirement.
The Department notes that if movie theaters
are purchasing new receivers to replace
existing single-channel receivers, they may
choose to purchase two-channel receivers
and then use them to meet both their
requirements to provide assistive listening
receivers and audio description devices if use
of the two-channel receivers is compatible
with their audio description and assistive
listening systems. The Department does not,
however, intend this provision to discourage
movie theaters from using induction loop
systems for sound amplification while using
a different system for transmission of audio
description. Renumbered § 36.303(g)(4)(ii)
states that ‘‘[a] public accommodation may
comply with the requirements in paragraph
(g)(4)(i) by using the existing assistive
listening receivers that the public
accommodation is already required to
provide at its movie theaters in accordance
with Table 219.3 of the 2010 Standards, if
those receivers have a minimum of two
channels available for sound transmission to
patrons.’’
Section 36.303(g)(5) Performance
Requirements for Captioning Devices and
Audio Description Devices
In the NPRM, the Department proposed
performance requirements for the individual
devices used by movie patrons at their
individual seats. Proposed
§ 36.303(g)(2)(iii)(B) stated that the
individual devices needed to be adjustable;
be available to patrons in a timely manner;
provide clear, sharp images; be properly
maintained; and be easily usable by the
patron in order to ensure effective
communication.
While the comments were generally
supportive of the existence of performance
requirements, there were differences of
opinion expressed about the specifics of this
provision. Some commenters supported the
Department’s language, but others expressed
concern that the requirements as written
were vague and subjective. For example, a
few commenters proposed that the
Department define specific quantifiable and
technical standards, and several commenters
suggested that the Department develop a
program to encourage the development of
better accessibility technology due to their
concerns associated with the design and
quality of current technology.
The Department also received conflicting
comments with respect to adding
requirements beyond those proposed in the
NPRM. Several commenters suggested that
the Department require captioning devices to
have an adjustable font size while many
disagreed, stating that an adjustable font size
requirement would be problematic. Other
commenters believed that the Department
should require that all devices be clean, in
addition to being available and functional.
Commenters also suggested requiring quality
assurance procedures, frequent testing, and
regular maintenance schedules to ensure that
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
the devices are functional and deliver
complete and accurate captions and audio
description. One commenter encouraged the
Department to require that movie theaters
maintain the most recent technology in a
range of device styles and consult with
customers and consumer groups to decide
which devices to purchase. Although the
NPRM language focused on captioning
devices, many of the comments urged the
Department to ensure that both captioning
and audio description devices are maintained
and readily available.
After considering all comments, the
Department has decided to retain the
performance requirements as proposed in the
NPRM with minor structural edits and to
make clear that the requirements for
maintenance and timely availability apply to
both types of devices. The Department
declines to impose any additional
requirements related to ensuring the
functionality of the captioning and audio
description devices provided by movie
theaters. The rule imposes the responsibility
on movie theaters to ensure that the
equipment is fully operational (meets all of
the performance requirements in the
regulation) and available. The Department
believes that movie theaters are able to
determine the best approach for ensuring
compliance with the regulatory requirements
and notes that § 36.211(b) (Maintenance of
accessible features) ‘‘does not prohibit
isolated or temporary interruptions in service
or access due to maintenance or repairs.’’
The Department also declines to include
specific technical specifications regarding the
captioning and audio description devices.
The Department notes that its approach to
performance requirements for captioning and
audio description devices is similar to the
approach the Department took with respect
to performance standards for video remote
interpreting services. See § 36.303(f).
The Department also declines to impose an
obligation that movie theaters must upgrade
to the most recent technology. While the
Department is in favor of technological
development, such a requirement is beyond
the scope of this regulation. Additionally, the
Department believes that many of the
concerns about current devices raised by
commenters (e.g., poor power connection or
poor signal) are adequately addressed by the
requirements in paragraphs (g)(3) through
(5)—that devices be fully operational and
maintained.
Renumbered § 36.303(g)(5) of the final rule
retains the performance requirements
proposed in the NPRM, but it has been
restructured for clarity.
Section 36.303(g)(6) Alternative
Technologies
Although commenters on the 2010
Advance Notice of Proposed Rulemaking, 75
FR 43467 (July 26, 2010) (ANPRM),
encouraged the Department to require open
movie captioning at movie theaters, the
Department declined to make such a
proposal in the NPRM, noting that in the
debate leading up to passage of the ADA, the
House Committee on Education and Labor
explicitly stated that ‘‘[o]pen-captioning, for
example, of feature films playing in movie
PO 00000
Frm 00038
Fmt 4701
Sfmt 4700
theaters, is not required by this legislation.’’
H.R. Rep. No. 101–485, pt. 2, at 108 (1990).
The Senate Committee on Labor and Human
Resources included a statement in its report
on the ADA to the same effect. S. Rep. No.
101–116, at 64 (1989). As the House
Committee also recognized, however,
‘‘technological 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.’’ H.R. Rep. No. 101–485, pt. 2, at
108.
The Department included a provision in
the NPRM giving movie theater owners and
operators the choice to use other technologies
to comply with the captioning and audio
description requirements of this rule.
Proposed § 36.303(g)(2)(ii) provided 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 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.’’
Commenters disagreed on whether this
provision struck an appropriate balance
between the cost to movie theaters, the
benefit to individuals with hearing and
vision disabilities, and the impact on the
movie-going experience for individuals
without disabilities. The majority of
comments on this provision concerned open
movie captioning. Although some
commenters expressed concern that an openmovie-captioning requirement would have an
impact on the cinematic experience of
hearing patrons, most commenters argued
that the Department should require open
movie captioning. Several open-moviecaptioning requirements were proposed by
commenters, including: Requiring open
movie captioning at 100 percent of showings;
requiring one open-captioned movie per day;
requiring dedicated open-captioned
auditoriums; or requiring open movie
captioning if closed movie captioning is
unavailable for any reason. One commenter
who supported an open-movie-captioning
requirement asserted that 95 percent of the
deaf and hard of hearing community prefers
open movie captioning to the use of
captioning devices.
The commenters proposing an open-moviecaptioning requirement ultimately disagreed
with the Department’s interpretation of the
legislative history as indicating congressional
intent that the ADA did not require the
provision of open movie captions at movie
theaters. One commenter reasoned that
because modern open movie captioning is
significantly different from the open movie
captioning available in 1990, the legislative
history on this point represents a latent
ambiguity. Therefore, in this commenter’s
view, the Department is not bound by the
legislative history concerning open movie
captioning and is free to require it. Other
commenters, however, agreed with the
E:\FR\FM\02DER4.SGM
02DER4
sradovich on DSK3GMQ082PROD with RULES4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
Department’s statement in the NPRM and
argued that because the legislative history
states that open movie captioning is not
required as a means of compliance with the
ADA, the rule should not mandate any
conditions concerning open-captioned
showings.
In response to the Department’s questions
concerning the parameters of the option to
provide open movie captioning rather than
closed movie captioning, several commenters
suggested that the Department define what
constitutes a ‘‘timely request’’ when a movie
patron requests open movie captioning.
These commenters provided a variety of
suggestions, which ranged from the specific
(e.g., 1 hour or 1 day before the showing) to
the ambiguous (e.g., it should be reasonably
easy).
Other comments also addressed whether
the Department adequately addressed new
technology. One commenter agreed that the
‘‘different technology’’ language
encompassed any future technology, but
further suggested that the effectiveness of
new technologies should be judged from the
baseline of ‘‘as effective as captioning and/or
audio description devices.’’ Other
commenters disagreed and criticized the rule
for not addressing other currently available
technologies, such as hearing loop systems,
InvisivisionTM glasses, or smart phone
applications.
After considering all of the comments, the
Department has decided to retain the option
to comply with the captioning and audio
description requirements of this rule through
the use of any other technology that is or
becomes available to provide effective
communication to patrons with hearing and
vision disabilities, including open movie
captioning. The Department has clarified,
however, that in those circumstances where
a public accommodation chooses to use open
movie captioning at all showings of all
movies available with captioning or at all
times it receives a request to turn on open
movie captions prior to the start of the movie,
it is not also required to comply with the
specific requirement to obtain captioning
devices. However, if a public accommodation
only makes open movie captioning available
to patrons who are deaf or hard of hearing
at some showings of movies available with
captioning, it will still have to comply with
the requirements to provide captioning
devices because it must provide effective
communication at all showings of all movies
available with captioning.
The Department has made other changes to
the structure and language of this provision
in response to comments and to better
preserve the intent and longevity of this
paragraph. The final rule now reads ‘‘through
any technology,’’ instead of ‘‘through use of
different technology.’’ Although the
Department declines to endorse specific
technologies, the Department believes that
the revised language better articulates the
purpose of this paragraph to encompass
current and future technologies that may
serve individuals with hearing and vision
disabilities. The requirement that public
accommodations provide auxiliary aids and
services to ensure communication as
effective as that provided to movie patrons
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
without disabilities remains unchanged as
that is the standard for effective
communication required by § 36.303(c). See
28 CFR part 36, app. C (explaining that
public accommodations must provide
appropriate auxiliary aids and services ‘‘to
ensure that communication with persons
with disabilities is as effective as
communication with others’’).
The Department maintains its view that
Congress did not intend the ADA to require
movie theaters to provide open movie
captioning. Although the technology to
provide open movie captioning has changed
and enables movie theaters to provide the
service more easily, open movie captioning
as it exists today remains visible to all movie
patrons and has not changed in this respect.
As a result, the Department’s position
remains consistent with the legislative
history on this point, and the final rule
retains the language (with some minor edits)
in proposed § 36.303(g)(2)(ii), which
provided that ‘‘[o]pen 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.’’ In the final
rule, however, the Department has moved
this language to new § 36.303(g)(10).
The revised provision addressing other
technologies, renumbered in the final rule as
§ 36.303(g)(6), enables a public
accommodation to meet its obligation to
provide captioning and audio description
through alternative technologies that provide
effective communication for movie patrons
with hearing and vision disabilities. Section
36.303(g)(6) further provides that a public
accommodation may use open movie
captioning as an alternative to complying
with the captioning device scoping
requirements of this rule by providing open
movie captioning at all showings, or
whenever requested by or for an individual
who is deaf or hard of hearing.
Section 36.303(g)(7) Compliance Date for
Providing Captioning and Audio Description
In the NPRM, the Department proposed at
§ 36.303(g)(4)(i) that all movie theaters with
auditoriums displaying digital movies must
comply with the requirements of the rule
within 6 months of the publication date of
the final rule. The Department also proposed
to give movie theaters that converted their
auditoriums with analog projection systems
to digital projection systems after the
publication date of the rule an additional 6
months from the date of conversion to
comply with the rule’s requirements.
Although the Department expressed the
belief that 6 months was sufficient time for
movie theaters to order and install the
necessary equipment, train employees on
how to use the equipment and assist patrons
in using it, and notify patrons of the
availability of these services, the Department
requested public comment on the
reasonableness of a 6-month compliance
date.
The Department received many comments
both against and in favor of the proposed 6month compliance date. A minority of
comments from a few disability advocacy
PO 00000
Frm 00039
Fmt 4701
Sfmt 4700
87385
groups and a few private citizens supported
the proposed 6-month compliance date.
These commenters asserted that because
most movie theaters had already committed
to providing captioning and audio
description to their patrons by the end of
2014, the 6-month compliance date was, in
their view, reasonable.
The vast majority of commenters, however,
asserted that 6 months was not enough time
for the remaining movie theaters to comply
with the requirements of this rule. These
comments raised concerns about
manufacturers’ ability to sustain the sudden,
increased demand that the scoping
requirements would likely create for
captioning and audio description devices.
Industry commenters stated that movie
theaters already experience considerable
delays between order date and delivery date
and that, with increased demand and a
limited supply, the prices of these devices
would likely increase, especially for lower
volume purchasers. Industry commenters
further advised the Department that a trained
technician must install the captioning and
audio description equipment and that their
experience indicates that there is a waiting
period for such services. Commenters also
expressed concern that the compliance date
proposed in the NPRM was drastically
different from the phased compliance date
proposed in the ANPRM and that the
Department’s rationale for the change was
insufficient.
Finally, some commenters expressed
concern that small movie theaters in
particular would have difficulty complying
with the requirements of the rule within the
proposed 6-month compliance date.
Commenters advised that small movie
theaters would need additional time to raise
the necessary funds or adjust their budgets in
order to purchase the equipment.
Based on these concerns, commenters
offered a variety of alternative compliance
dates. The Joint Comment suggested that the
Department require movie theaters to issue
purchase orders for the equipment within 6
months of the final rule’s publication, but
require fully functional and operational
devices and trained staff either within 2 years
of the final rule’s publication or 6 months of
system delivery, whichever came first. Other
commenters suggested compliance dates
ranging from 1 year to 4 years. One major
movie theater chain in particular
recommended an 18-month compliance date,
stating that this is the amount of time that it
currently takes to order and install the
necessary equipment. Some commenters
suggested a sliding compliance schedule
based on a movie theater’s gross revenue or
a movie theater’s size, and others suggested
a phased compliance date similar to the
schedule articulated in the ANPRM.
In consideration of these comments and
the Department’s independent research, the
Department agrees that 6 months may be an
insufficient amount of time for movie
theaters to comply with the requirements of
paragraph (g) of this section, and the
Department instead will require compliance
beginning 18 months from the date of
publication of the final rule. The Department
believes that an 18-month compliance period
E:\FR\FM\02DER4.SGM
02DER4
87386
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
sufficiently accounts for potential delays that
may result from manufacturer backlogs,
installation waitlists, and other
circumstances outside a movie theater’s
control. This date also gives small movie
theaters that are financially impacted as a
result of the unrelated costs of digital
conversion a sufficient amount of time to
plan and budget accordingly. The
Department declines to include a
requirement that movie theaters issue
purchase orders for the equipment within 6
months of the final rule’s publication because
such a requirement is unenforceable without
imposing recordkeeping and reporting
requirements.
The final rule continues to provide
additional time for movie theaters converting
their auditoriums from analog projection
systems to digital projection systems after the
publication date of the final rule. Once the
installation of a digital projection system is
complete, meaning that the auditorium has
installed the equipment needed to exhibit a
digital movie, the movie theater has at least
an additional 6 months to ensure compliance
with the requirements of the rule and provide
closed movie captioning and audio
description when showing digital movies in
that auditorium. Renumbered
§ 36.303(g)(7)(ii) states that ‘‘[i]f a public
accommodation converts a movie theater
auditorium from an analog projection system
to a system that allows it to exhibit digital
movies after December 2, 2016, then that
auditorium must comply with the
requirements in paragraph (g) of this section
by December 2, 2018, or within 6 months of
that auditorium’s complete installation of a
digital projection system, whichever is later.’’
The Department believes that this approach
will provide movie theaters in the process of
converting to digital projection after the
publication date of the rule a sufficient
amount of time to acquire the necessary
equipment to provide captioning and audio
description.
Section 36.303(g)(8) Notice
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 NPRM, the
Department proposed at § 36.303(g)(5) that
movie theaters provide information regarding
the availability of captioning and audio
description for each movie in
communications and advertisements
intended to inform potential patrons of
movie showings and times and provided by
the theaters through Web sites, posters,
marquees, newspapers, telephone, and other
forms of communication.
Commenters on the NPRM unanimously
supported the inclusion of some form of a
notice requirement in the final rule but
differed on the scope of that requirement.
Some commenters supported requiring notice
in all places where a captioned or audiodescribed movie is advertised, and another
commenter asked the Department to include
as many forms of communication as possible
in the language of the final rule, including
mobile phone applications. These
commenters reasoned that individuals who
are deaf or hard of hearing, or blind or have
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
low vision, should be able to find this
information easily. Several other
commenters, however, asked the Department
to limit the notice requirement to the box
office, ticketing locations, and the movie
theater’s Web site. Although such
commenters raised concerns about the high
cost associated with a requirement that
covers all communications and
advertisements, they offered no other
rationale for why they were proposing a
limited requirement.
In addition to the scope of the requirement,
commenters also addressed the form of the
notice required. One commenter requested
that the Department require a uniform notice
by all movie theaters, and another
commenter suggested that the Department
require movie theaters to include within the
notice the universal symbols for captioning
and audio description as well as the type of
device available.
Other commenters pointed to industry
realities in order to highlight their concerns
with the proposed provision. Some
commenters expressed concern that movie
theaters would be liable for a third party’s
failure to include information about
captioning and audio description availability
in their communications although movie
theaters lack control over these
communications. Commenters also advised
the Department that there may be
circumstances where compliance with the
notice requirement would be difficult for
some types of media. These commenters
contend, for example, that movie theaters
often book a film without knowing whether
it is captioned or audio-described and that
print deadlines may materialize before that
information is available.
After considering these comments and the
information available to the Department, the
Department has revised its proposed notice
language. The Department agrees that notice
may not be necessary on all forms of
communications and advertisements but
disagrees that the notice obligation should be
limited only to the box office, ticketing
locations, and the movie theater’s Web site.
For example, telephone recordings serve an
especially important medium of
communication for individuals who are blind
or have low vision and who may not utilize
Web-based or print media to access
information concerning movie showings.
Similarly, newspapers serve an especially
important medium of communication for
individuals who may not use Web-based
media generally. Moreover, according to the
Department’s research, movie theaters utilize
proprietary mobile phone applications to
inform potential patrons of movie showings
and times, and some already advertise the
availability of captioning and audio
description devices on these applications.2
2 The Department’s research indicates that the
following movie theater companies operate mobile
phone applications and advertise the availability of
captioning and audio description on these
platforms: Regal Entertainment Group, AMC
Theatres, Cineplex Entertainment, and Harkins
Theatres. See, e.g., American Multi-Cinema, Inc.,
AMC Theatres (Version 5.2.2, 2016) (mobile
application software), available at https://
itunes.apple.com/us/app/amc-theatres/
PO 00000
Frm 00040
Fmt 4701
Sfmt 4700
Therefore, the Department has decided to
require movie theaters to provide notice on
communications and advertisements
provided at or on any of the following: The
box office and other ticketing locations, Web
sites, mobile apps, newspapers, and the
telephone.
The Department declines to require a
specific form of notice to describe the
availability of captioning or audio
description. The Department notes that
movie theaters already appear to be using a
relatively uniform method of advising the
public about the availability of captioning
and audio description. A review of Web sites
and newspaper advertising indicates that
movie theaters routinely use ‘‘CC’’ and ‘‘OC’’
to indicate the availability of closed and open
movie captioning and ‘‘AD’’ or ‘‘DV’’ to
indicate the availability of audio description.
As the Department specifically noted in the
NPRM and makes clear in the final rule, the
rule does not impose obligations on
independent third parties that publish
information about movies, and these third
parties will not face liability under the ADA
if they fail to include information about the
availability of captioning and audio
description at movie theaters.
Renumbered § 36.303(g)(8) of the final rule
requires that whenever a public
accommodation provides captioning and
audio description in a movie theater
auditorium exhibiting digital movies on or
after January 17, 2017, its notices of movie
showings and times, provided at the box
office and other ticketing locations, on Web
sites and mobile apps, in newspapers, and
over the telephone, must inform potential
patrons of the movies that are being shown
with captioning and audio description. The
final rule further provides that this obligation
does not extend to third parties that provide
information about movie theater showings
and times, as long as the third party is not
under the control of the public
accommodation.
This provision applies to movie theaters
once they provide captioning and audio
description for digital movies on or after the
effective date of the rule, January 17, 2017.
Thus, movie theaters that already show
digital movies with closed movie captions
and audio description must comply with this
provision as soon as the rule takes effect.
Section 36.303(g)(9) Operational
Requirements
In response to the ANPRM, 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 movie theater staff
know how to operate captioning and audio
description equipment and be able to
communicate with patrons about the use of
individual devices. Having considered those
id509199715?ls=1&mt=8 (last visited Sept. 12,
2016); Regal Cinemas, Inc., Regal—Movie Tickets
and Showtimes for Regal Cinemas, United Artists
and Edwards Theatres (Version 3.4.2, 2016) (mobile
application software), available at https://
itunes.apple.com/us/app/regal-cinemas/
id502912815?mt=8 (last visited Sept. 12, 2016).
E:\FR\FM\02DER4.SGM
02DER4
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES4
comments, the Department included in the
NPRM proposed § 36.303(g)(6), which
required movie theaters to ensure that at least
one individual was on location at each
facility and available to assist patrons
whenever showing a captioned or audiodescribed movie. The proposed § 36.303(g)(6)
further required that such individual be able
to operate and locate all of the necessary
equipment and be able to communicate
effectively with individuals with hearing and
vision disabilities about the uses of, and
potential problems with, the equipment.
All of the comments on the NPRM that
addressed this proposed language
acknowledged that staff training regarding
the operation of equipment is vital to the
proper functioning of the rule. A number of
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 captioning
devices were kept or how to turn on the
captioning or audio description for the
movie. Many of these commenters indicated
that 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.
A handful of commenters requested that
the Department expand its proposed
operational requirement, emphasizing
concerns about movie theater staff’s current
knowledge concerning the operation of
available equipment. One commenter
encouraged the Department to specifically
require all movie theater personnel to be
properly and uniformly trained in providing
such services, and other commenters
suggested that all movie theater personnel be
trained as to the availability of these services.
Other comments encouraged the Department
to enumerate specific requirements to ensure
that movie theater staff is capable of
operating the captioning and audio
description equipment, including a
requirement that management document
employee training and a requirement that
employees receive periodic refresher courses.
A few commenters questioned the need for
the proposed language in § 36.303(g)(6)(iii),
which required movie theaters to
‘‘[c]ommunicate effectively with individuals
VerDate Sep<11>2014
20:11 Dec 01, 2016
Jkt 214001
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.’’ One
commenter asserted that an ‘‘effective
communication’’ requirement in the
proposed paragraph (g)(6)(iii) was
superfluous given the overarching
requirements in § 36.303(c). Other
commenters supported the proposed
language, stating that movie theater staff,
including managers, often are not
knowledgeable on how to properly
communicate with individuals who are deaf,
hard of hearing, blind, or have low vision. A
State government also pointed out that in
Camarillo v. Carrols Corp., 518 F.3d 153, 157
(2d Cir. 2008) (per curiam), the Second
Circuit held that a public accommodation’s
failure to provide employee training on
effective communication with individuals
with disabilities can constitute a violation of
title III, specifically 42 U.S.C.
12182(b)(2)(A)(iii).
The final rule retains the operational
requirements proposed in the NPRM in
renumbered § 36.303(g)(9) and adds the
requirement that if a movie theater is relying
on open movie captioning to meet the
requirements of paragraph (g)(3), it must also
ensure that there is an employee available at
the theater who knows how to turn on the
captions. The Department declines to add a
specific requirement that all personnel be
trained, as it believes that it is sufficient if
a movie theater has at least one
knowledgeable employee on location at all
times to ensure that the service is available
and provided without interruption. While the
Department agrees that it would be a good
idea for movie theaters to implement
reasonable staff training programs and
periodic refresher courses, the Department
declines to take these recommendations and
has not included in the final rule specific
logistical requirements concerning movie
theater staff training.
The Department has decided to retain in
the final rule the language in proposed
§ 36.303(g)(6)(iii) requiring movie theater
staff to effectively communicate with
individuals who are deaf or hard of hearing,
or blind or have low vision, regarding the
uses of, and potential problems with, the
captioning and audio description devices.
The Department notes, however, that
PO 00000
Frm 00041
Fmt 4701
Sfmt 9990
87387
communicating effectively with patrons
about the availability of captioning at a
movie theater would not require a movie
theater to hire a sign language interpreter.
Communication with a person who is deaf or
hard of hearing about the availability of these
services or how to use the equipment
involves a short and relatively simple
exchange and therefore can easily be
provided through signage, instructional
guides, or written notes.
Final § 36.303(g)(9) requires that whenever
a public accommodation provides captioning
and audio description in a movie theater
auditorium exhibiting digital movies on or
after January 17, 2017, at least one theater
employee must be available to assist patrons
seeking or using the captioning or audio
description equipment. The employee must
be able to quickly locate and activate the
necessary equipment; operate and address
problems with the equipment prior to and
during the movie; turn on the open movie
captions if the movie theater is relying on
open movie captions to meet its effective
communication requirements; and
communicate effectively with individuals
with disabilities about how to use, operate,
and resolve problems with the equipment.
This provision applies to movie theaters
once they provide captioning and audio
description for digital movies on or after the
effective date of the rule, January 17, 2017.
Thus, movie theaters that already show
digital movies with closed movie captions
and audio description must comply with this
provision as soon as the rule takes effect.
Section 36.303(g)(10)
Section 36.303(g)(10) in the final rule
provides that ‘‘[t]his section does not require
the use of open movie captioning as a means
of compliance with paragraph (g), even if
providing closed movie captioning for digital
movies would be an undue burden.’’ The
NPRM proposed similar language at
§ 36.303(g)(2)(ii). See discussion of comments
on final § 36.303(g)(6), supra.
Dated: November 21, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016–28644 Filed 12–1–16; 8:45 am]
BILLING CODE 4410–13–P
E:\FR\FM\02DER4.SGM
02DER4
]]>Agencies
[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)]
[Rules and Regulations]
[Pages 87348-87387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28644]
[[Page 87347]]
Vol. 81
Friday,
No. 232
December 2, 2016
Part V
Department of Justice
-----------------------------------------------------------------------
28 CFR Part 36
Nondiscrimination on the Basis of Disability by Public Accommodations--
Movie Theaters; Movie Captioning and Audio Description; Final Rule
Federal Register / Vol. 81 , No. 232 / Friday, December 2, 2016 /
Rules and Regulations
[[Page 87348]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 126; AG Order No. 3779-2016]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Department of Justice (Department)
regulation implementing title III of the Americans with Disabilities
Act of 1990 (ADA), which prohibits discrimination against persons with
disabilities by public accommodations and commercial facilities,
including movie theaters. The rule adds specific requirements
addressing the obligations of public accommodations that own, lease, or
operate movie theaters to provide effective communication to patrons
who are deaf or hard of hearing, or blind or have low vision. The rule
requires that movie theater auditoriums provide closed movie captioning
and audio description when showing a digital movie distributed with
such features unless doing so would result in an undue burden or a
fundamental alteration. The rule requires movie theaters to have a
specified number of captioning devices and audio description devices
based on the number of auditoriums in the movie theater that show
digital movies. The rule does not impose any specific requirements for
movie theater auditoriums that exhibit analog movies exclusively.
DATES: This rule is effective January 17, 2017. Public accommodations
with movie theater auditoriums showing digital movies on December 2,
2016 must comply with the rule's requirement to provide closed movie
captioning and audio description in such auditoriums by June 2, 2018.
If a public accommodation converts a movie theater auditorium from an
analog projection system to a system that it allows it show digital
movies after December 2, 2016, the public accommodation must comply
with the rule's requirement to provide closed movie captioning and
audio description in such auditoriums by December 2, 2018, or within 6
months of that auditorium's complete installation of a digital
projection system, whichever is later.
FOR FURTHER INFORMATION CONTACT: Rebecca Bond, 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 the rule in alternative formats by calling
the ADA Information Line at (800) 514-0301 (voice) and (800) 514-0383
(TTY). This rule is also available on the Department's Web site at
https://www.ada.gov.
SUPPLEMENTARY INFORMATION:
Relationship to Other Laws
Section 36.103 of the Department's regulation implementing title
III of the ADA states that except as otherwise provided in part 36,
that part shall not be construed to allow 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 under that
title. In addition, the title III regulation specifies 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. Finally, part 36 does not
invalidate or limit the remedies, rights, and procedures provided under
any Federal, State, or local law (including State common law) that
affords greater or equal protection to individuals with disabilities or
individuals associated with them. These provisions remain unchanged.
Compliance with the Department's ADA regulations does not ensure
compliance with other Federal statutes.
I. Executive Summary
A. Purpose of the Rule
The Department of Justice is issuing this final rule in order to
amend its regulation implementing title III of the ADA (42 U.S.C. 12181
et seq.), which covers public accommodations and commercial
facilities--including movie theaters. Public accommodations that own,
lease, or operate movie theaters have an existing obligation to provide
effective communication to persons with disabilities through the use of
auxiliary aids and services, and this rule provides greater specificity
as to what those obligations are when showing digital movies. The rule
explicitly requires public accommodations that own, lease, or operate
movie theaters to provide closed movie captioning \1\ and audio
description to patrons with hearing and vision disabilities whenever
such entities exhibit digital movies that are distributed with such
features, as well as to have available a specific number of fully
operational captioning and audio description devices.
---------------------------------------------------------------------------
\1\ In this rule, the Department uses the term ``closed movie
captioning'' to refer to the provision of captions to movie theater
patrons at their seats through the use of individual captioning
devices.
---------------------------------------------------------------------------
Title III of the ADA prohibits public accommodations from
discriminating against individuals with disabilities. 42 U.S.C.
12182(a). It expressly requires owners, operators, or lessees of 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 doing so would result
in an undue burden or a fundamental alteration. 42 U.S.C.
12182(b)(2)(A)(iii). The Department's existing regulation implementing
the obligation of covered entities to ensure effective communication
with individuals with disabilities (28 CFR 36.303(a)-(c)) specifies
that ``open and closed captioning,'' and ``audio recordings'' are
examples of auxiliary aids and services. 28 CFR 36.303(b).
Despite the longstanding obligation to provide effective
communication, neither closed movie captioning nor audio description is
universally available at movie theaters across the United States. Data
provided to the Department by the movie theater industry in mid-2015
indicates that at that time, approximately 70 percent of all movie
theater auditoriums were already equipped to provide closed movie
captioning and audio description; however, advocates and individuals
with hearing and vision disabilities have reported that the
availability of these services continues to vary significantly
depending on a movie theater's location and ownership. In addition, it
is the Department's view that the availability of closed movie
captioning, and to a lesser extent audio description, is largely due to
successful litigation brought by State attorneys general or private
plaintiffs representing individuals with disabilities. As a result,
although individuals with hearing and vision disabilities are an ever-
increasing segment of the aging population, in many cases they continue
to be unable to enjoy movies with family or friends, participate in
conversations about recent movie
[[Page 87349]]
releases, or otherwise take part in any meaningful way in this
important aspect of American culture. Because the ADA's effective
communication requirements apply to all public accommodations
(including movie theaters) and protect the rights of persons with
disabilities in every jurisdiction in the United States, all movie
theaters must ensure that they meet those requirements by providing
closed movie captioning and audio description upon request to all
patrons who are deaf or hard of hearing, or blind or have low vision,
unless doing so results in an undue burden or a fundamental alteration.
The requirements of this rule are in addition to a movie theater's
current obligation to provide assistive listening systems and receivers
pursuant to sections 219 and 706 of the 2010 ADA Standards for
Accessible Design (2010 Standards).\2\ Assistive listening receivers
are effective for persons who are hard of hearing and who only require
sound amplification. They do not, however, provide effective
communication for individuals who are deaf or for individuals who are
hard of hearing and for whom sound amplification is insufficient.
Consequently, in order to achieve the goals and guarantees of the ADA
and provide effective communication for such individuals, the
Department is convinced that this rule is essential.
---------------------------------------------------------------------------
\2\ 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 in subpart D of 28 CFR part 36). The 2010 Standards are
available at https://www.ada.gov/2010ADAstandards_index.htm.
---------------------------------------------------------------------------
B. Major Provisions
The major provisions of this rule can be summarized as follows.
First, the requirements of this rule apply only to public
accommodations that own, lease, or operate movie theaters with
auditoriums that show movies produced in digital cinema format (digital
movies). The Department is deferring to a later date the decision
whether to engage in rulemaking addressing the application of the
specific requirements of this rule for closed movie captioning and
audio description to movie theater auditoriums that show movies
exclusively in analog film format (analog movies).
Second, the rule requires that within 18 months of the date of
publication of the final rule in the Federal Register, public
accommodations that own, lease, or operate movie theaters must ensure
that their movie theater auditoriums that exhibit digital movies
produced or distributed with closed movie captions and audio
description provide such features to patrons with hearing and vision
disabilities at all showings. The rule does not require movie theaters
to add captions or audio description for movies that are not produced
or distributed with these features. Nor does the rule prohibit movie
theaters from showing digital movies that are not produced with
captioning or audio description or from choosing to show the analog
version of a particular movie, even if that movie is also produced in
digital format with captioning and audio description. The rule also
specifies that movie theaters that convert from analog projection
systems to digital cinema projection systems after the publication date
of the rule in the Federal Register must comply with the requirements
of the rule either 6 months from the date of conversion or 24 months
from the publication date, whichever is later.
Third, the rule requires movie theaters to have a minimum number of
fully operational captioning devices \3\ and to provide them to patrons
upon request. This requirement is based on the number of auditoriums at
each movie theater that exhibit digital movies and is designed to
ensure the availability of a sufficient number of devices for use at
peak attendance times by individuals who are deaf or hard of hearing.
---------------------------------------------------------------------------
\3\ Section 36.303(g)(1)(iv) of this rule defines ``captioning
device'' as ``the individual device that a patron may use at any
seat to view closed movie captioning.''
---------------------------------------------------------------------------
Fourth, the rule requires movie theaters to have a minimum number
of fully operational audio description devices \4\ and to provide them
to patrons upon request. The rule permits movie theaters to use the
assistive listening receivers that they are already required to provide
to patrons pursuant to sections 219 and 706 of the 2010 Standards in
lieu of dedicated audio description devices if those assistive
listening receivers have a second channel available to deliver audio
description.
---------------------------------------------------------------------------
\4\ Section 36.303(g)(1)(iii) of this rule defines ``audio
description device'' as ``the individual device that a patron may
use at any seat to hear audio description.''
---------------------------------------------------------------------------
Fifth, the rule permits public accommodations to meet their
obligation to provide captioning and audio description in their movie
theaters to persons with hearing and vision disabilities through the
use of alternative technologies, including open movie captioning, so
long as that technology provides communication as effective as that
provided to movie patrons without disabilities.
Sixth, the rule requires movie theaters that exhibit digital movies
to provide the public with notice as to the availability of captioning
and audio description. This provision is necessary so that movie
patrons who are deaf or hard of hearing, or blind or have low vision,
can find out which movies are accessible to them.
Finally, the rule requires movie theaters that exhibit digital
movies to have staff available who are able to operate and respond to
problems with all equipment necessary to deliver captioning and audio
description and to show patrons how to use the individual devices
whenever digital movies with such features are shown.
As with other effective communication obligations under the ADA,
public accommodations do not have to comply with these requirements to
the extent that they constitute an undue burden or a fundamental
alteration.
C. Costs and Benefits
In accordance with OMB Circular A-4, the Department has prepared a
Final Regulatory Assessment (Final RA), which assesses the likely costs
and benefits of the rule for all movie theaters subject to the
rulemaking over the projected life of the rule (15 years). The Final RA
captures the total costs of this rulemaking using a baseline, which
represents the Department's best assessment of the current state of the
movie exhibition industry, including the availability of closed movie
captioning and audio description, if the rule were not implemented. The
Department's Final RA projects that the total costs, benefits, or
transfer payments \5\ of this rule will not reach $100 million in any
single year, and thus, the rule is not economically significant under
Executive Order 12866.
---------------------------------------------------------------------------
\5\ Transfer payments are the distributional effects of a
regulatory action that may arise through the transfer of resources
from one group to another but do not impact the total value of
resources available to society. See Office of Management and Budget,
Circular No. A-4, Regulatory Analysis (Sept. 17, 2003), available at
https://www.whitehouse.gov/omb/circulars_a004_a-4/ (last visited
Sept. 12, 2016).
---------------------------------------------------------------------------
For movie theaters with auditoriums exhibiting digital movies,
total costs are composed of the following components:
Acquisition costs for captioning hardware;
Acquisition costs for audio description hardware;
Acquisition costs for captioning devices;
Acquisition costs for audio description devices;
[[Page 87350]]
Installation costs for captioning and audio description
equipment;
Replacement costs for captioning and audio description
equipment;
Staff training costs for the provision of captioning and
audio description equipment; and
Maintenance and administrative costs.
Based on the Department's calculations, total costs to the movie
exhibition industry to provide closed movie captioning and audio
description in accordance with this final rule are estimated to be
$88.5 million over 15 years when discounted by 7 percent, and $113.4
million over 15 years when discounted by 3 percent. This total costs
estimate was calculated in the primary analysis of the Department's
Final RA. The primary analysis analyzes the cost impact of the final
rule by making assumptions about the available data, such as the
current availability of closed movie captioning and audio description
in movie theaters. The primary analysis represents the Department's
best estimate of the total costs that movie theaters will incur as a
result of this rulemaking given the available data. Unless otherwise
stated, the Department refers to cost estimates developed in the
primary analysis of the Final RA throughout this rule. See chapters 2
and 3 of the Final RA for a more detailed explanation of the primary
analysis and the data and assumptions relied upon to develop the total
costs estimate.
Total Costs by Cost Category in Primary Analysis Over 15 Years
[$ millions]
------------------------------------------------------------------------
Primary analysis Primary analysis
Cost category 7% discounted 3% discounted
------------------------------------------------------------------------
Captioning Hardware Acquisition $14.6 $17.2
Costs............................
Audio Hardware Acquisition Costs.. 0.5 0.5
Captioning Device Acquisition 15.7 17.6
Costs............................
Audio Device Acquisition Costs.... 2.4 2.8
Installation Costs................ 1.0 1.1
Replacement Costs................. 36.1 49.9
Training Costs.................... 9.9 13.1
Maintenance and Administrative 8.2 11.1
Costs............................
-------------------------------------
Total Costs................... 88.5 113.4
------------------------------------------------------------------------
* Totals may differ due to rounding.
The highest costs occur in the first 2 years of the analysis when
movie theaters incur upfront costs for acquiring and installing the
captioning and audio description equipment in accordance with the 18-
month compliance date. The table below presents the annual costs to the
movie exhibition industry over the 15-year analysis, and it should be
noted that these annual costs are well below the $100 million mark that
signifies an economically significant regulation under Executive Order
12866.
[GRAPHIC] [TIFF OMITTED] TR02DE16.023
[[Page 87351]]
Movie theaters vary greatly by number of auditoriums, which
significantly impacts overall costs per facility. Thus, the analysis
breaks the movie exhibition industry into four venue types based on
size: Megaplex movie theaters (16+ auditoriums), multiplex movie
theaters (8-15 auditoriums), miniplex movie theaters (2-7 auditoriums),
and single-auditorium movie theaters. The upfront costs per theater are
calculated for the average movie theater within each venue type and
presented in the table below. The largest cost per year for any single
movie theater with auditoriums subject to the rulemaking would occur in
the second year due to the upfront costs to acquire and install the
necessary equipment by the 18-month compliance date. The average
upfront costs for a megaplex movie theater are estimated to total
$27,358, while the average upfront costs for a single-auditorium movie
theater are estimated to total $3,562.
Average per Movie Theater Upfront Costs by Venue Type in Primary Analysis, Undiscounted
[$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Audio Audio
Captioning description Captioning description Installation Total upfront
Venue type hardware hardware device device costs costs
acquisition acquisition acquisition acquisition
--------------------------------------------------------------------------------------------------------------------------------------------------------
Megaplex................................................ $16,158 $205 $8,728 $1,470 $797 $27,358
Multiplex............................................... 10,772 205 5,819 980 533 18,309
Miniplex................................................ 4,488 205 4,364 490 286 9,834
Single-Auditorium....................................... 1,097 308 1,864 190 104 3,562
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may differ due to rounding.
The Final RA also estimates the annualized costs of the rule by
venue type, as presented in the table below. With a 7-percent discount
rate, the annualized costs of the $88.5 million in total costs over the
15-year period of analysis are $9.7 million. With a 3-percent discount
rate, the annualized costs of the $113.4 million in total costs are
$9.5 million.
Annualized Costs by Venue Type in Primary Analysis
[$ millions]
------------------------------------------------------------------------
Annualized costs Annualized costs
Venue type 7% discounted 3% discounted
------------------------------------------------------------------------
Megaplex (16+ auditoriums).......... $3.2 $3.1
Multiplex (8-15 auditoriums)........ 5.0 5.0
Miniplex (2-7 auditoriums).......... 1.0 0.9
Single-Auditorium................... 0.6 0.5
-----------------------------------
Total........................... 9.7 9.5
------------------------------------------------------------------------
* Totals may differ due rounding.
As part of this regulatory analysis and in accordance with the
Regulatory Flexibility Act (5 U.S.C. 604), the Department has conducted
a Final Regulatory Flexibility Analysis (FRFA) on the economic impact
of this rule on small entities. The FRFA has been used by the
Department to help determine whether small entities would be
disproportionately burdened. In addition, the Department has used the
FRFA to examine other ways, if possible, to accomplish the Department's
goals while imposing fewer burdens on small entities. Based on its
analysis, the Department has determined that this rule will have a
significant economic impact on a substantial number of small entities
in the movie exhibition industry. However, as described in further
detail in section VI, infra, the Department has taken appropriate steps
to reduce the economic impact of this rule while still meeting the
Department's rulemaking objectives under the ADA.
The table below presents the average upfront costs as a percentage
of annual revenue for firms categorized as small businesses according
to the Small Business Association (SBA) size standard for the movie
exhibition industry, which is $38.5 million in annual revenue. For all
firms with revenue greater than $100,000,\6\ the average upfront costs
are less than 1.5 percent of average annual revenue. For all firms with
revenues of $2,500,000 or greater, the average upfront costs are less
than 1 percent of annual revenues.
---------------------------------------------------------------------------
\6\ Although the FRFA calculates the upfront costs as a percent
of annual revenue for the category of firms with less than $100,000
in annual revenue for transparency, most of these firms likely
operate single-auditorium movie theaters that exhibit analog movies
exclusively and are therefore not subject to the requirements of
this rule. See infra section VI.D for further detail.
[[Page 87352]]
Average Upfront Costs as a Percentage of Annual Revenue per Firm, by Revenue Category, Undiscounted
[2015 $]
----------------------------------------------------------------------------------------------------------------
Upfront costs
Establishments Average upfront Average Average as a
Revenue category per firm costs per upfront costs revenue per percentage of
establishment per firm firm revenue (%)
----------------------------------------------------------------------------------------------------------------
Less than $100,000.......... 1.01 $3,562 $3,591 $54,508 6.6
$100,000 to $499,999........ 1.02 3,562 3,631 256,537 1.4
$500,000 to $999,999........ 1.06 9,834 10,456 714,762 1.5
$1,000,000 to $2,499,999.... 1.15 14,071 16,223 1,542,318 1.1
$2,500,000 to $4,999,999.... 1.51 20,987 31,732 3,394,864 0.9
$5,000,000 to $7,499,999.... 1.89 20,987 39,575 5,497,029 0.7
$7,500,000 to $9,999,999.... 2.58 20,987 54,124 7,697,211 0.7
$10,000,000 to $14,999,999.. 4.12 20,987 86,368 12,013,115 0.7
$15,000,000 to $19,999,999.. 4.56 20,987 95,606 14,200,444 0.7
$20,000,000 to $24,999,999.. 6.00 20,987 125,920 14,314,600 0.9
$25,000,000 to $29,999,999.. 11.00 20,987 230,853 22,734,000 1.0
$30,000,000 to $34,999,999.. 16.50 20,987 346,280 * n/a * n/a
$35,000,000 to $39,999,999.. 8.00 20,987 167,893 27,514,000 0.6
----------------------------------------------------------------------------------------------------------------
* Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
The final rule, consistent with the ADA's mandate, explicitly
addresses equity and fairness considerations. The Department believes
that this regulation will benefit millions of Americans, including
those with and without disabilities. Although these benefits are
difficult to quantify, they are nonetheless significant. Foremost among
the expected benefits from the regulation is the opportunity for a
greater number of individuals who are deaf or hard of hearing, or blind
or have low vision, to better understand what is being said and shown
in digital movies exhibited at movie theaters so that they may fully
and equally participate in the movie-going experience to the same
extent as persons without these disabilities. In addition to the
benefits to individuals with disabilities, individuals without
disabilities--who will now be able to attend, enjoy, and discuss movies
with their family and friends that have disabilities--will also benefit
from this rule. For example, because of this rule, a parent without a
disability can now attend the movies with a child who has a hearing or
vision disability. The parent will now be able to share the movie-going
experience with her child and discuss the film and experience with the
child. Similarly, individuals without disabilities who are learning
English as an additional language or may be working to improve their
literacy skills may also benefit from the availability of closed movie
captioning.
While many movie theaters do provide captioning and audio
description to their patrons, many still do not provide these auxiliary
aids and services at all or they do not provide them regularly,
creating barriers for persons with disabilities to take part in the
social and cultural movie-going experience. As a result, the Department
is confident that the qualitative benefits of this rulemaking justify
the associated costs.
II. The Movie Industry: Digital Movies and the Availability of
Captioning and Audio Description
A. Transformation From Analog Films to Digital Movies
Digital technology has revolutionized the way movies are produced,
delivered, and exhibited. For nearly 100 years, movie studios produced
films exclusively in analog film format (analog movies), meaning that
they were typically shot with 35 mm film, cut and spliced for editing,
shipped to individual movie theaters on several large, heavy reels, and
exhibited with a conventional reel-to-reel movie projector. All that
changed at the beginning of the twenty-first century with the
development of digital cinema technology and the commercial production
of movies in digital cinema format (digital movies).\7\
---------------------------------------------------------------------------
\7\ Star Wars: Episode II--Attack of the Clones, released in
2002, was the first major motion picture to be shot entirely on
digital video. See Helen Alexander & Rhys Blakely, The Triumph of
Digital Will Be the Death of Many Movies, New Republic (Sept. 12,
2014), available at https://newrepublic.com/article/119431/how-digital-cinema-took-over-35mm-film (last visited Sept. 12, 2016).
---------------------------------------------------------------------------
Digital cinema captures images, data, and sound as a digital cinema
``package'' (DCP) that is stored on a hard drive or a flash drive.
Digital movies are physically delivered 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 have many advantages
over analog film, including better and longer lasting image quality,
availability of higher resolution images, significantly lower
production and distribution costs, ease of distribution, availability
of enhanced effects such as 3D, ease of exhibition of live events or
performances, greater flexibility in arranging or increasing show times
to accommodate unanticipated audience demand, and remote monitoring of
projection. See Rajesh K, Digital Cinema--Advantages and Limitations,
excITingIP.com (Oct. 2, 2009), available at https://www.excitingip.com/611/advantages-limitations-digital-cinema/ (last visited Sept. 12,
2016).
The shift to digital cinema has led to a precipitous decline in the
filming, distribution, and exhibition of analog movies, resulting in
enormous uncertainty about the future of the analog film market. See
Helen Alexander & Rhys Blakely, The Triumph of Digital Will Be the
Death of Many Movies, New Republic (Sep. 12, 2014), available at https://www.newrepublic.com/article/119431/how-digital-cinema-took-over-35mm-film (last visited Sept. 12, 2016); see also John Belton, If Film is
Dead, What is Cinema?, 55 Screen 460, 461-63 (2014), available at
https://english.rutgers.edu/docman/documents/104-screen-2014-belton-460-70-2/file.html (last visited Sept. 12, 2016). In 2013, Fujifilm, one of
the two major producers of movie film stock, announced it was ceasing
production of movie film stock. In 2014, Kodak, the other major
producer of movie film stock, after first announcing it would cease
production of film stock,
[[Page 87353]]
committed to produce only 449 million linear feet (as compared to the
12.4 billion linear feet it produced in 2006). See Michael Idato,
Quentin Tarantino, JJ Abrams Help Save Old-Fashioned Film Stock, Sydney
Morning Herald (July 31, 2014), available at https://www.smh.com.au/entertainment/movies/quentin-tarantino-jj-abrams-help-save-oldfashioned-film-stock-20140731-zytlw.html (last visited Sept. 12,
2016).
Some movie studios have also begun to release first-run movies
exclusively in digital cinema format. For example, both Paramount
Pictures and Twentieth Century Fox have completely stopped releasing
movies in analog format. See Richard Verrier, End of Film: Paramount
First Studio to Stop Distributing Film Prints, L.A. Times (Jan. 17,
2014), available at https://articles.latimes.com/2014/jan/17/entertainment/la-et-ct-paramount-digital-20140117 (last visited Sept.
12, 2016); Matt Alderton, Films Without Film, Profile Magazine (2014),
available at https://profilemagazine.com/2014/twentieth-century-fox
(last visited Sept. 12, 2016). In its comment on the Department's 2014
Notice of Proposed Rulemaking, the National Association of Theater
Owners (NATO) reported that several other movie studios plan to stop
producing analog movies, and NATO expects independent production
companies to follow suit.\8\
---------------------------------------------------------------------------
\8\ See National Association of Theater Owners, Statement of
Position on RIN 1190-AA63, CRT Docket No. 126, Nondiscrimination on
the Basis of Disability by Public Accommodations--Movie Theaters;
Movie Captioning and Audio Description 4, available at https://www.regulations.gov/contentStreamer?documentId=DOJ-CRT-2014-0004-0401&attachmentNumber=4&disposition=attachment&contentType=pdf (last
visited Sept. 12, 2016). NATO is the largest association of motion
picture theater owners in the world, and its members include the
nation's ten largest movie theater companies as well as hundreds of
smaller entities. Together, its member movie theaters operate 32,000
of the 40,000 movie theater auditoriums in the United States.
---------------------------------------------------------------------------
B. Digital Conversion of Movie Theater Auditoriums
To accommodate the motion picture industry's shift to the
distribution of movies in digital format, movie theaters across the
nation have rapidly transformed and have now nearly completed
conversion of their auditoriums to digital projection systems. These
systems consist primarily of a digital server and a digital projector
and typically cost around $60,000 to $150,000 per auditorium. See Helen
Alexander & Rhys Blakely, The Triumph of Digital Will Be the Death of
Many Movies, New Republic (Sep. 12, 2014), available at https://www.newrepublic.com/article/119431/how-digital-cinema-took-over-35mm-film (last visited Sept. 12, 2016). This transition to digital
projection systems has accelerated exponentially since 2008 when the
Department first sought public comment about whether it should engage
in rulemaking. At that time, the information provided to the Department
through public comment indicated that only 5,000 of the 38,794
auditoriums \9\ (13 percent) had been converted to digital. See Advance
Notice of Proposed Rulemaking, Nondiscrimination of the Basis of
Disability; Movie Captioning and Video Description, 75 FR 43467, 43473
(July 26, 2010). Based on data from July 2015 that NATO provided to the
Department, the Department estimates that more than 98 percent of
indoor movie auditoriums (or 38,688 auditoriums) in the United States
have been converted to digital, leaving only approximately 650 indoor
analog projection systems.\10\
---------------------------------------------------------------------------
\9\ Although the movie industry refers to ``auditoriums'' as
``screens'' throughout its commentary, the Department believes that
``auditoriums'' is more accurate. Therefore, the Department refers
to ``auditoriums'' throughout this rule.
\10\ The remaining venues showing movies using analog projection
systems are found at drive-in movie theaters, which are not subject
to the requirements of the final rule.
---------------------------------------------------------------------------
As digital technology has advanced, the number of small movie
theaters and those showing analog movies has also declined. From 2010
to 2014, single-auditorium movie theaters and those with up to seven
auditoriums declined by approximately 25 percent while the number of
movie theaters with eight or more auditoriums increased. See Motion
Picture Association of America (MPAA), Theatrical Market Statistics
2014, at 25 (2014), available at https://www.mpaa.org/wp-content/uploads/2015/03/MPAA-Theatrical-Market-Statistics-2014.pdf (last
visited Sept. 12, 2016). Moreover, the number of analog auditoriums
declined by more than 92% during that same time period. See id. While
small, independent movie theaters have been the slowest to convert to
digital technology, the Department, consistent with industry
projections, anticipates that the vast majority of the remaining analog
movie theaters will either convert to digital projection systems, or be
forced to close because of antiquated equipment and the decline in the
availability of first-run movies in analog format. See Lyndsey Hewitt,
Local Theaters Face Tough Times as 35 mm Faces Extinction, Williamsport
Sun Gazette (July 11, 2013), available at https://www.sungazette.com/page/content.detail/id/594504/Local-Theaters-Face-Tough-Times-as-35-mm-faces-extinction.html?nav=5016 (last visited Sept. 12, 2016); see also
Colin Covert, Final Reel Plays Amid Digital Conversion, Star Tribune
(Aug. 27, 2012), available at https://www.startribune.com/final-reel-plays-amid-digital-conversion/167253335/ (last visited Sept. 12, 2016);
Krista Langlois, As Analog Film Grows Obsolete, Western Towns Struggle
to Keep Theaters Afloat, High Country News (Jan. 10, 2014), available
at https://www.hcn.org/blogs/goat/as-film-grows-obsolete-western-towns-struggle-to-keep-their-theaters-open (last visited Sept. 12, 2016).
C. Availability of Captioning and Audio Description
Captioning makes movies accessible to individuals who are deaf or
hard of hearing and who are unable to benefit from the sound
amplification provided by movie theaters' assistive listening
receivers. Currently, captioning is delivered to patrons in one of two
formats: ``open'' and ``closed.'' ``Open'' movie captioning shows the
movie dialogue and non-speech information in written form on or near
the screen with the information visible to all patrons regardless of
whether they need to view the captions. ``Closed'' movie captioning
displays the movie's dialogue and non-speech information in written
form on a captioning device, which is requested by the individual
patron who wishes to view the captions.
The motion picture industry and the courts have consistently used
the term ``closed captioning'' to refer to the provision of captions
displayed on captioning devices at the patron's seat. In the television
context, however, the term ``closed captioning'' has typically referred
to captions that, when activated, are visible on the TV screen to all
viewers. In this rule, in order to avoid confusion with the term used
for captions provided in the television context (as well as in other
contexts), the Department has chosen to use the terms ``closed movie
captioning'' and ``open movie captioning'' to specifically refer to the
captioning provided by movie theaters, except where quoting the
legislative history of the ADA or specific court decisions.
Closed movie captioning first became available for analog movies in
1997 but was never available at many movie theaters.\11\ The advent of
digital cinema
[[Page 87354]]
spurred the development of voluntary standards to ensure that products
that provide captioning would be compatible with the various digital
cinema systems available for purchase and used by movie theaters. As a
result, closed movie captioning became more widely available. See
Michael Karagosian, Update on Digital Cinema Support for Those with
Disabilities: April 2013, available at https://www.mkpe.com/publications/d-cinema/misc/disabilities_update.php (last visited Sept.
12, 2016).
---------------------------------------------------------------------------
\11\ There still is only one technology that provides closed
movie captioning for analog movies. That technology, known as Rear
Window Captioning, does not require a separate copy of the film, and
works using a movie theater's digital sound system. Captions are
sent to a light-emitting display at the rear of an auditorium that
then reflects and superimposes the captions onto a panel mounted at
or near a patron's seat so that the captions appear close to the
movie image.
---------------------------------------------------------------------------
There are currently two types of individual devices that are
produced to deliver closed movie captioning for digital movies to
patrons. These devices receive a transmission from a server via an
infrared transmitter or Wi-Fi technology. One type of device utilizes a
small, wireless screen attached to a flexible goose neck that can be
placed in the cup holder at any movie theater seat and adjusted to
display captions near or in a patron's line of vision when looking at
the movie screen. Alternatively, special eyeglasses are available that
a patron can wear that will exhibit the captions directly in front of
the wearer's eyes while watching a movie.
Open movie captioning has sometimes been referred to as ``burned-
in'' or ``hardcoded'' captions because in the early days of captioning
they were burned in or incorporated into the analog film. Later
advancements, however, enabled studios to superimpose the captions on
the screen without making a burned-in copy or having to deliver a
special version of the movie. Today, open movie captioning is available
as a digital file that comes with the DCP. No additional equipment is
required in order for a movie theater to display the open movie
captions for a digital movie. The Department is aware that some movie
theaters currently provide open movie captioning at certain limited
showings but knows of no movie theater that routinely utilizes open
movie captioning for all screenings.
Audio description, which also became available in 1997, enables
individuals who are blind or have low vision to hear a spoken narration
of a movie's key visual elements, including, but not limited to, the
action, settings, facial expressions, costumes, and scene changes. It
requires specially trained writers to create a separate script that is
then recorded and synchronized with the movie, included on the audio
channels in the DCP, and delivered from a server via infrared, FM, or
Wi-Fi systems to wireless headsets that patrons wear at their seats.
Movie studios and distributors determine whether a motion picture
is produced and distributed with captioning and audio description. In
1997, movie studios began to substantially increase the number of
movies produced with captioning in response to the Federal
Communications Commission's publication of regulations requiring
programming shown on television (including movies) to be captioned. See
47 CFR 79.1. Additionally, the motion picture industry's transformation
to digital cinema has made the delivery of captioning and audio
description to movie theater patrons easier and less costly to provide.
As early as 2010, the movie industry indicated its commitment to
provide closed movie captioning and audio description for almost all
movies released in digital format.\12\ Although the Department does not
have data on the exact percentage of digital movies currently produced
with captioning and audio description, the Department's research
indicates that movie studios and distributors regularly include these
accessibility features in the DCP at no extra charge to movie theaters.
Despite this availability, however, captioning and audio description
are still not consistently made available at all movie theaters, or at
all showings, to patrons who are deaf or hard of hearing, or blind or
have low vision.
---------------------------------------------------------------------------
\12\ The MPAA announced in its comment on the 2010 Advance
Notice of Proposed Rulemaking that almost all new movies released in
digital format will include closed movie captioning and audio
description. See 2014 NPRM, 79 FR 44976, 44989 (Aug. 1, 2014), for a
more detailed discussion of the MPAA's comments on the 2010 ANPRM.
---------------------------------------------------------------------------
III. Movie Theaters' Legal Obligation To Provide Captioning and Audio
Description
A. The ADA and Its Legislative History
The ADA, enacted in July 1990, is a comprehensive civil rights law
that broadly prohibits discrimination on the basis of disability and
seeks to guarantee that individuals with disabilities are provided the
same rights, privileges, and opportunities as other members of the
public. The ADA's mandate covers three broad, distinct areas:
Employment (title I), public services (title II), and places of public
accommodation (title III).
Title III prohibits discrimination 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). It specifically categorizes a movie
theater (``motion picture house'') as a place of public accommodation.
42 U.S.C. 12181(7)(C). Under title III, public accommodations such as
movie theaters are barred from affording an unequal or lesser service
to individuals or classes of persons with disabilities than is offered
to other persons. 42 U.S.C. 12182(b)(1)(A)(ii). Public accommodations
must also ``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 doing so ``would fundamentally
alter the nature'' of the service, or ``result in an undue burden.'' 42
U.S.C. 12182(b)(2)(A)(iii). The statute specifies that auxiliary aids
and services include effective methods of making aurally or visually
delivered materials available to individuals with hearing disabilities
or vision disabilities, respectively, and expressly covers ``taped
texts.'' 42 U.S.C. 12103(1)(A)-(B).
While the ADA's text does not refer to movie captioning, the
legislative history does. The congressional House and Senate committee
reports accompanying the legislation noted that ``[o]pen captioning * *
* of feature films playing in movie theaters * * * is not required'' by
the ADA. H.R. Rep. No. 101-485, pt. 2, at 108 (1990); S. Rep. No. 101-
116, at 64 (1989). At that time, the only way to create open movie
captioning was to make a separate print of the movie and then laser-
etch, or ``burn,'' the captions onto that separate print.\13\ The House
and Senate committees nonetheless endorsed open captioning as a means
to provide individuals who are deaf or hard of hearing equal access to
the movies, stating that ``[f]ilmmakers are, however, encouraged to
produce and distribute open-captioned versions of films and theaters
are encouraged to have at least some preannounced screenings of a
captioned version of feature films.'' S. Rep. No. 101-116, at 64; see
also H.R. Rep. No. 101-485, pt. 2, at 108.
---------------------------------------------------------------------------
\13\ Limited copies of the open-captioned version were made and
given to only some movie theaters and then only after the
uncaptioned version had already been distributed.
---------------------------------------------------------------------------
The House committee report also emphasized that the types of
accommodations and services provided to individuals with disabilities
``should keep pace with the rapidly changing
[[Page 87355]]
technology of the times.'' H.R. Rep. No. 101-485, pt. 2, at 108. It
explained that ``technological advances can be expected to further
enhance options for making meaningful and effective opportunities
available to individuals with disabilities'' and ``[s]uch advances may
require public accommodations to provide auxiliary aids and services in
the future which today would not be required.'' Id.
Neither closed movie captioning nor audio description existed when
the ADA was enacted. Both, however, fall within the type of auxiliary
aid contemplated by the statute. Given the current availability of
digital movies with closed movie captioning and audio description, as
well as the individual devices to provide those accessibility features
to movie patrons who are deaf or hard of hearing, or blind or have low
vision, the Department believes that a rule requiring movie theaters to
offer closed movie captioning and audio description for digital movies
fits comfortably within the meaning of the ADA's mandate.
B. Title III's Implementing Regulation
Title III's implementing regulation reiterates the statute's
requirements and spells out in detail a public accommodation's
obligation to furnish auxiliary aids and services to individuals with
disabilities. 28 CFR 36.303(c)(1). The regulation's list of examples of
``auxiliary aids and services'' that public accommodations should
provide includes ``open and closed captioning'' as examples of
effective methods of making aurally delivered information available to
individuals with hearing disabilities and ``audio recordings'' as an
example of an effective method of making visually delivered materials
available to individuals with vision disabilities. 28 CFR 36.303(b)(1)-
(2). The Department updated this list 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, 56253-54 (Sept. 15, 2010).
The title III regulation states 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 overarching 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 who are unable to effectively use the
assistive listening receivers currently provided in movie theaters to
amplify sound, the only auxiliary aid presently available that would
effectively communicate the dialogue and sounds in a movie is
captioning. Likewise, for individuals who are blind or who have 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 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 determination, lists five factors
that must be considered when determining whether an action would result
in an undue burden. 28 CFR 36.104.\14\ The undue burden determination
entails a fact-specific examination of the cost of a specific action
and the specific circumstances of a particular public accommodation.
This compliance limitation is intended to ensure that the needs of
small businesses, as well as large businesses, are addressed and
protected. The Department defines a fundamental alteration as a
``modification that is so significant that it alters the essential
nature of the goods, services, facilities, privileges, advantages, or
accommodations offered.'' U.S. Department of Justice, Americans with
Disabilities Act ADA Title III Technical Assistance Manual Covering
Public Accommodations and Commercial Facilities III-4.3600 (1993),
available at https://www.ada.gov/taman3.html.
---------------------------------------------------------------------------
\14\ 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.
---------------------------------------------------------------------------
The current section 36.303(g) (renumbered as 36.303(h) in this
final rule) provides that if the provision of a particular auxiliary
aid or service by a public accommodation would result in an undue
burden or a fundamental alteration, the public accommodation is not
relieved of its obligation 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
a burden or alteration but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities receive the
goods and services offered by the public accommodation.
It has been, and continues to be, the Department's position that it
would not be a fundamental alteration of the business of showing movies
in theaters to exhibit movies already distributed with closed movie
captioning and audio description in order to ensure effective
communication for individuals who are deaf or hard of hearing, or blind
or have low vision. The service that movie theaters provide is the
screening or exhibiting of movies. The use of captioning and audio
description 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 such auxiliary aids is the means by
which these individuals gain access to movie theaters' services and
thereby achieve the ``full and equal enjoyment,'' 42 U.S.C. 12182(a),
of the screening of movies. See, e.g., Brief for the United States as
Amicus Curiae Supporting Appellants and Urging Reversal at 15-17,
Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d
666 (9th Cir. 2010) (No. 08-16075); see also 2014 NPRM, 79 FR 44976,
44982-83 (Aug. 1, 2014).\15\
---------------------------------------------------------------------------
\15\ The Department received no public comments challenging that
position.
---------------------------------------------------------------------------
[[Page 87356]]
C. Federal Appellate Case Law
The Ninth Circuit is the only Federal court of appeals to address
the question whether the ADA requires movie theaters to provide
captioning and audio description to patrons who are deaf or hard of
hearing, or blind or have low vision. See Arizona ex rel. Goddard v.
Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010). In
Harkins, the Ninth Circuit reversed a district court decision
dismissing a complaint for failure to state a claim and held that
``closed captioning'' and audio description are ``auxiliary aids and
services'' that the ADA may require movie theaters to provide. Id. at
668, 675. Evaluating the statute's language, implementing regulation,
and case law, the Harkins court reasoned that because a public
accommodation has a duty to provide auxiliary aids and services,
including ``closed captioning'' and audio description, a movie theater
unlawfully discriminates when it fails to offer ``closed captioning''
and audio description to persons who have difficulty hearing or seeing,
absent proof that those features would fundamentally alter the nature
of the theater's services or constitute an undue burden. Id. at 675.
IV. Rulemaking History Regarding Captioning and Audio Description
A. Prior to 2010
On September 30, 2004, the Department published an Advance Notice
of Proposed Rulemaking announcing its intention to update the 1991
title II and title III ADA regulations and to adopt revised ADA
Accessibility Standards. 69 FR 58768 (Sept. 30, 2004) (2004 ANPRM).
While the 2004 ANPRM did not mention movie captioning or audio
description, several commenters suggested that the Department issue a
rule regulating these features. Subsequently, when the Department
issued a Notice of Proposed Rulemaking in June 2008, 73 FR 34508 (June
17, 2008) (2008 NPRM), proposing comprehensive updates to the title III
regulation relating to nondiscrimination on the basis of disability by
public accommodations and commercial facilities, the Department
announced that it was considering rulemaking that would require movie
theaters to provide captioning and audio description for patrons who
are deaf or hard of hearing, or who are blind or have low vision. 73 FR
at 34530-31.
The 2008 NPRM did not propose any specific regulatory language
addressing captioning and audio description. Rather, the Department
emphasized that movie theaters should be left with the discretion to
select the appropriate technology should captioning and audio
description be required for patrons with hearing and vision
disabilities. Nonetheless, the Department inquired whether it should
require movie theaters to exhibit all new movies with captioning and
audio description at every showing or offer those features on a limited
basis.
Most of the commenters on the 2008 NPRM who addressed the issue of
captioning and audio description recommended that the Department issue
regulations requiring movie theaters to provide both features at all
showings unless doing so would result in an undue burden or a
fundamental alteration. These commenters urged the Department to act
promptly and not await completion of movie theaters' ongoing conversion
to digital cinema because the technology for captioning and audio
description had been available for approximately ten years and few
movie theaters provided either feature to their patrons. Commenters
affiliated with the movie industry opposed the Department requiring
movie theaters to offer captioning or audio description and claimed
that the cost of the necessary equipment would constitute an undue
burden. They also maintained that if the Department decided to issue a
rule, the effective date should be delayed until movie theaters
completed their conversion to digital cinema. See Advance Notice of
Proposed Rulemaking, Nondiscrimination on the Basis of Disability;
Movie Captioning and Video Description, 75 FR 43467 (July 26, 2010),
for a more detailed discussion of comments on the 2008 NPRM.
B. The 2010 Advance Notice of Proposed Rulemaking on Captioning and
Video Description
In 2010, uncertain about the status of digital conversion, the
availability of captioning and audio description technology, and
financial setbacks to many public accommodations due to the downturn in
the economy over the ensuing 2 years, the Department published the
Advance Notice of Proposed Rulemaking, Nondiscrimination on the Basis
of Disability; Movie Captioning and Video Description, 75 FR 43467
(July 26, 2010) (2010 ANPRM), specifically addressing ``closed [movie]
captioning'' and ``video description.'' \16\ The Department sought
comments in response to 26 questions falling into six categories:
Coverage of any proposed rule; transition to digital cinema; equipment
and technology for both analog and digital movies; notice; training;
and cost and benefits of captioning and audio description. While the
Department did not propose specific regulatory language, it noted that
it was considering a rule that would require 50 percent of movie
theater screens (auditoriums) \17\ to offer captioning and audio
description over a 5-year period and specifically sought comment on
that approach. 75 FR at 43474.
---------------------------------------------------------------------------
\16\ The 2010 ANPRM used the term ``video description'' to refer
to the provision of descriptive information about a movie to persons
who are blind or have low vision. As discussed in this rule, the
Department is now using the term ``audio description.''
\17\ In the 2010 ANPRM, the Department used the term ``screens''
to describe the movie theater facilities that needed to be capable
of providing captioning and audio description, but the Department
has replaced the term ``screens'' with the term ``auditoriums'' in
the final rule. Although the terms are synonymous in the movie
theater context, the Department believes that ``auditoriums'' is
more accurate.
---------------------------------------------------------------------------
The Department received over 1150 comments on the 2010 ANPRM.
Almost all commenters favored a rule that required movie theaters to
provide captioning and audio description, and the vast majority
recommended that these features be required at all movie showings.
Although industry commenters recommended that compliance be phased in
over a 5-year schedule with 20 percent compliance each year, most
commenters recommended that the requirement be implemented immediately.
C. The 2014 Notice of Proposed Rulemaking on Movie Captioning and Audio
Description
After considering all of the comments on the 2010 ANPRM and the
rapid rate at which movie theaters were converting from analog to
digital projection systems, the Department published a Notice of
Proposed Rulemaking on August 1, 2014, entitled Nondiscrimination on
the Basis of Disability by Public Accommodations--Movie Theaters; Movie
Captioning and Audio Description, 79 FR 44976 (Aug. 1, 2014) (2014
NPRM). In the 2014 NPRM, the Department proposed that movie theaters be
required to provide captioning and audio description at all scheduled
showings of any movie that is produced or otherwise distributed with
such features. 79 FR at 44977. The Department also proposed that each
movie theater have available a certain number of captioning devices
based on the number of seats in the movie theater and have available a
certain number of audio description devices based on the number of
screens (auditoriums) in the theater. 79 FR 44976. The Department
further proposed that movie theaters
[[Page 87357]]
provide notice of the availability of captioning and audio description
as well as ensure that knowledgeable staff are available to operate the
equipment and assist patrons in the use of the captioning and audio
description devices. 79 FR 44976-77. The Department sought public
comment in response to 21 multi-part questions addressing a variety of
areas, including the state of the movie industry; the proposed
definitions and the nomenclature to be adopted; the compliance date;
the basis for determining the number of devices required at each
theater; the alternatives for analog as well as small theaters; and the
Department's methodology for estimating the costs and benefits of the
rule.
The Department received 436 comments from a range of stakeholders,
including individuals, both with and without disabilities, advocacy
groups representing individuals with disabilities, State and Federal
entities, movie industry representatives, private companies, and other
organizations. The Department received a joint comment submitted by the
National Association of Theater Owners in conjunction with the
Alexander Graham Bell Association for the Deaf and Hard of Hearing, the
Association of Late Deafened Adults, the Hearing Loss Association of
America, and the National Association of the Deaf (Joint Comment),
which included a variety of specific recommendations.\18\ In addition,
the Department participated in a roundtable sponsored by the Office of
Advocacy of the Small Business Administration at which organizations
representing small movie theaters as well as individual owners
expressed their views.
---------------------------------------------------------------------------
\18\ The specific recommendations proposed in the Joint Comment
and all other comments are addressed in the Section-by-Section
Analysis.
---------------------------------------------------------------------------
Overall, the commenters supported the Department's stated purpose
for proposing the rule. Individuals and industry representatives alike
recognized that captioning and audio description in movie theaters is
necessary in order to provide equal access to individuals with hearing
and vision disabilities. Nearly all commenters disagreed, however, with
the Department's basis for determining the number of devices required
at each movie theater, including the number of captioning devices
required. Most commenters also objected to the Department's proposed 6-
month compliance date.
D. Need for Regulatory Action
1. Movies in American Culture
Going to the movies is a quintessential American experience.
``Movie theaters continue to draw more people than all theme parks and
major U.S. sports combined.'' MPAA, Theatrical Market Statistics 2014,
at 10 (Mar. 2015), available at https://www.mpaa.org/wp-content/uploads/2015/03/MPAA-Theatrical-Market-Statistics-2014.pdf (last visited Sept.
12, 2016). In addition, going to the movies is an important part of the
American family experience. Long holiday weekends offer the movie
industry some of its biggest box office sales as families gather for
the holidays and attend the movies together.
It has long been recognized that movies are undoubtedly a part of
our shared cultural experience and the subject of ``water cooler'' talk
and lunch-time conversations. More than half a century ago, the Supreme
Court observed that motion pictures ``are a significant medium for the
communication of ideas,'' and their ``importance * * * 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). The Court emphasized that motion pictures ``may
affect public attitudes and behavior in a variety of ways, ranging from
direct espousal of a political or social doctrine to the subtle shaping
of thought which characterizes all artistic expression.'' Id. When
individuals who are deaf or hard of hearing, or blind or have low
vision, have the opportunity to attend and actually understand movies
with the aid of captioning or audio description, they are exposed to
new ideas and gain knowledge that not only contributes to their
development, communication, and literacy, but more fundamentally,
integrates them into society.
In response to the 2014 NPRM, commenters with hearing and vision
disabilities consistently reported that they were unable to take part
in the movie-going experience because of the unavailability of
captioning or audio description at their local movie theaters. Many
individuals stated that the lack of these accessibility features 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 relating to current movie
releases.
2. Movie Patrons With Hearing and Vision Disabilities
Individuals with hearing and vision disabilities represent a
significant portion of the American population. According to the 2010
Census, 7.6 million Americans ages 15 and older reported that they
experience 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. Census data also reflects that 8.1 million
Americans ages 15 and older reported having some 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 that 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 https://www.census.gov/prod/2012pubs/p70-131.pdf (last visited Sept. 12, 2016).
Hearing and vision loss are highly correlated with aging. Census
data indicates that for people aged 65 or older, 4.2 million have
difficulty hearing and 3.8 million reported having difficulty seeing.
Id. As the nation's population ages, the number of individuals with
hearing or vision loss will increase significantly.\19\ Research
indicates that the number of Americans with 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 https://www.asha.org/public/hearing/disorders/prevalence_adults.htm (last visited Sept. 12, 2016). Similarly, experts
predict that by 2030 rates of severe vision loss will double in
correspondence with the country's aging population. See American
Foundation for the Blind, Aging and Vision Loss Fact Sheet, available
at https://www.afb.org/section.aspx?FolderID=3&SectionID=44&TopicID=252&DocumentID=3374 (last
visited Sept. 12, 2016). These increases
[[Page 87358]]
will likely lead to corresponding increases in the number of people who
will need captioning or audio description. While not all of these
individuals will necessarily take advantage of the captioning and audio
description that will be provided under this rule, a significant
portion of the population could directly benefit from their
availability (see infra section V.A.4 for a more detailed discussion of
the population eligible to receive benefits).
---------------------------------------------------------------------------
\19\ The percentage of Americans approaching middle age or older
is increasing. The 2010 Census reported that from 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: 2010, at 2 (2011),
available at www.census.gov/prod/cen2010/briefs/c2010br-03.pdf (last
visited Sept. 12, 2016).
---------------------------------------------------------------------------
Several commenters on the 2014 NPRM objected to the Department's
reliance on Census data and argued that such reliance caused the
Department to overstate the number of persons with hearing and vision
disabilities who will actually use the captioning and audio description
devices required by this rule. Others from the deaf, hard of hearing,
blind, and low vision communities asserted that the number of
individuals who experience hearing and vision disabilities is actually
much higher than reported in the most current Census.\20\ According to
these comments, individuals who have recently developed hearing or
vision disabilities fail to define themselves as such for purposes of
the formal U.S. Census process. However, none of these commenters
provided data sources concerning the number of persons who are deaf,
hard of hearing, blind, or have low vision, that are as comprehensive
as the Census data. Thus, the Department continues to rely on Census
data and believes it to be the most accurate available information
regarding the number of persons in the population with these
disabilities.
---------------------------------------------------------------------------
\20\ For example, a Johns Hopkins University epidemiological
study conducted by Frank Lin, M.D., Ph.D., which is believed to
articulate the first nationally representative estimate of hearing
loss, estimates that approximately 48 million Americans have hearing
loss in at least one ear, and approximately 30 million Americans
have hearing loss in both ears. ``Hearing loss'' was defined as not
being able to hear sounds of 25 decibels or less in speech
frequencies. See News Release, Johns Hopkins Medicine, One in Five
Americans Has Hearing Loss (Nov. 14, 2011), available at https://www.hopkinsmedicine.org/news/media/releases/one_in_five_americans_has_hearing_loss (last visited Sept. 12,
2016).
---------------------------------------------------------------------------
While the Department recognizes that it is unlikely that persons
with hearing and vision disabilities attend the movies with greater
regularity than do persons without disabilities, some individuals with
hearing and vision disabilities undoubtedly do not go to movies because
the absence of captioning and audio description makes it impossible for
them to understand what is happening. The Department also notes that
many people with hearing loss are unable to use the assistive listening
receivers that the ADA currently requires movie theaters to provide
because these devices only provide sound amplification, and, for such
individuals, amplification is insufficient to effectively communicate
the dialogue and sounds taking place in the movie.\21\
---------------------------------------------------------------------------
\21\ ``While we 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, the speech may be audible but may not be understandable.''
Self Help for Hard of Hearing People of Oregon, Facing the
Challenge: A Survivor's Manual for Hard of Hearing People (revised
4th ed. Spring 2011), available at https://www.hearinglossky.org/hlasurvival1.html (last visited Sept. 12, 2016).
---------------------------------------------------------------------------
3. Voluntary Compliance
Some movie industry commenters asserted that because many movie
theater companies already provide captioning and audio description, the
Department should refrain from regulating in this area and continue to
rely on ``voluntary compliance'' by the movie theaters. However,
individuals with hearing and vision disabilities and other commenters
noted that despite the fact that captioning and audio description have
been available for more than a decade and those features are widely
available to movie theaters at no additional charge, many movie
theaters still only show movies with captioning and audio description
at intermittent times, and some movie theaters do not offer these
services at all.
The Department recognizes that since the publication of its 2010
ANPRM (see supra section IV.B) the number of movie theaters that are
showing movies with closed movie captioning and audio description, as
well as their regularity in offering those features, has increased
significantly. This described increase is attributable in large part 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.\22\ Commenters advised the Department that despite the increase
in the availability of captioning and audio description in many parts
of the country, these features are still not consistently available at
all movie theaters.
---------------------------------------------------------------------------
\22\ See, e.g., Press Release, Illinois Attorney General,
Madigan Announces Settlement with AMC Theatres (Apr. 4, 2012),
available at https://illinoisattorneygeneral.gov/pressroom/2012_04/20120404.html (last visited Sept. 12, 2016) (settlement providing
for captioning and audio description technology in all AMC theaters
in the State of Illinois); Wash. State Commc'n Access Project v.
Regal Cinemas, Inc., 293 P.3d 413 (Wash. Ct. App. 2013) (upholding
trial court decision under Washington Law Against Discrimination
requiring six movie theater chains to provide captioning in the
screening of movies in order to accommodate persons who are deaf or
hard of hearing); Consent Decree, Arizona ex rel. v. Harkins
Amusement Enters., Inc., No. CV07-703 PHX ROS (D. Ariz. Nov. 7,
2011); Complaint, Ass'n of Late-Deafened Adults, Inc. v. Cinemark
Holdings, Inc., No. 10548765 (Cal. Super. Ct. Nov. 30, 2010)
(complaint relating to later settlement requiring Cinemark to
provide closed movie captioning in all of 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 (Apr. 26, 2011), available at https://www.cinemark.com/pressreleasedetail.aspx?node_id=22850 (last visited
Sept. 12, 2016).
---------------------------------------------------------------------------
The Department believes that access to movie theaters for persons
who are deaf or hard of hearing, or blind or have low vision, should
not depend upon where they live.\23\ The Department believes it is in
the interest of both the movie theater industry and persons with
disabilities to have consistent requirements for captioning and audio
description throughout the United States and that this is best
accomplished through revising the ADA's title III regulation. As
commenters noted, a consistent, nationally applicable regulation
ensures that individuals with hearing and vision disabilities can go to
the movies with confidence knowing that their movie theater offers
these services. The Department is persuaded that it should move forward
with this regulation so that the current and ever-increasing number of
individuals with hearing and vision disabilities who are unable to
enjoy the services offered by movie theaters are afforded equal access
to this facet of American life.
---------------------------------------------------------------------------
\23\ It is the Department's understanding that persons who live
in communities served only by smaller regional movie theater chains
are 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 movie 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 movie theaters offer
both closed and open movie captioning and audio description and
updates its Web site regularly. See Captionfish, Frequently Asked
Questions, https://www.captionfish.com/faq (last visited Sept. 12,
2016). The Department also bases this belief on information from
comments that accessibility is scarce outside of major metropolitan
areas. Advocacy groups commented that they consistently receive
complaints from individuals with hearing and vision disabilities who
are denied equal access at movie theaters operated by companies not
subject to the various settlement agreements.
---------------------------------------------------------------------------
V. Regulatory Process Matters
A. Executive Orders 12866 and 13563--Summary of Regulatory Assessment
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is
[[Page 87359]]
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. The
Department has assessed the costs and benefits of this final rule and
believes that the rule's benefits justify its costs, and that the
regulatory approach selected maximizes net benefits.
In keeping with Executive Order 12866, the Department has evaluated
this rule to assess whether it would likely ``[h]ave an annual effect
on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.'' E.O. 12866, Sec.
3(f)(1). The Department's Final RA shows that this regulation does not
represent an economically ``significant'' regulatory action within the
meaning of Executive Order 12866.
The Department's full Final RA can be found on the Department's Web
site at https://www.ada.gov. The Department refers to sections of the
Final RA throughout.
1. Purpose and Need for Rule and Scope of Regulatory Assessment
As described in greater detail in section III, supra, and section
1.1 of the Final RA, public accommodations that own, lease, or operate
movie theaters have an existing obligation to provide effective
communication to persons with disabilities through the use of auxiliary
aids and services. This rule provides greater specificity as to how
these effective communication obligations are met when showing digital
movies that are produced, distributed, or otherwise made available with
captioning and audio description.
While there has been an increase in the number of movie theaters
exhibiting movies with closed movie captioning (and, to a lesser
extent, audio description) due in large part to successful disability
rights litigation brought by private plaintiffs and State attorneys
general during the past few years, the availability of movies exhibited
with closed movie captioning and audio description varies significantly
across the U.S. depending upon locality and movie theater ownership.
The ADA requirements for effective communication apply to all public
accommodations (including movie theaters) in every jurisdiction in the
U.S. and should be consistently applied using a uniform ADA standard.
The right to access movies exhibited with closed movie captioning and
audio description should not depend on whether the person with a
disability resides in a jurisdiction where movie theaters subject to a
consent decree or settlement exhibit movies with closed movie
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. Thus, some persons who are deaf or hard of hearing, or blind
or have low vision, 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 an important
aspect of American culture.
The Department is convinced that regulation is warranted at this
time in order to achieve the goals and promise of the ADA. Through this
rule, the Department is explicitly requiring movie theaters to exhibit
digital movies with closed movie captioning and audio description at
all times and for all showings whenever movies are produced,
distributed, or otherwise made available with such features unless to
do so would result in an undue burden or a fundamental alteration.
The purpose of the Final RA is to capture the incremental costs of
the rulemaking. As a result, the Final RA only includes the costs that
movie theaters will incur as a direct result of this rulemaking. It is
the Department's position that movie theaters that have already
acquired the necessary equipment prior to the rulemaking have done so
consistent with their longstanding obligation to provide effective
communication as public accommodations, and as a result, the costs
associated with providing closed movie captioning and audio description
in such auditoriums cannot be directly attributed to this rulemaking.
The analysis also assumes that movie theaters with auditoriums
currently equipped to provide closed movie captioning and audio
description would also operate and maintain this equipment in the
absence of this rule. Therefore, these costs are not included in the
Final RA's total costs estimation unless specifically noted.
2. Public Comments on the Initial Regulatory Assessment and Department
Responses
This section discusses comments on the Initial Regulatory
Assessment dated July 11, 2014 (Initial RA), provided in support of the
2014 NPRM. The Department received 436 comments during the 2014 NPRM
comment period from a variety of stakeholders, including movie industry
representatives, individuals with disabilities, advocacy groups
representing individuals with disabilities, State and Federal entities,
academic organizations, private companies, and other private
individuals. Many of these comments directly addressed the assumptions,
data, or methodology used in the Initial RA.
The Guidance and Section-by-Section Analysis, Appendix F, infra, is
the primary forum for substantive responses to the comments addressing
the proposed regulation generally. A summary and discussion of comments
as they relate to small entities can be found below in section VI.B.
General Comments Regarding the Initial RA's Cost Estimation
The Department reviewed a number of comments suggesting that the
Department underestimated the costs of complying with this rule.
Commenters disagreed with a variety of cost estimates provided in the
Initial RA. As a threshold matter, the Department agrees that in some
instances, the estimates provided did not accurately capture a
particular cost of compliance. For example, after reviewing the public
comments, the Department determined that the staff training costs
estimated in the Initial RA did not adequately capture the costs to
comply with the operational requirements of the rule, and the equipment
unit costs used in the Initial RA did not represent the most current
market price of the available equipment. As a result, the Department
has updated these estimates in response to the public comments
received. However, the Department is confident that other estimates
were reasonable and remain supported by the Department's independent
research. In consideration of all comments, the Department has made
adjustments where appropriate. The comments at issue and related
comments are specifically addressed below.
Comments Regarding the Cost of Captioning and Audio Description
Equipment
In the Initial RA, the Department estimated the costs of compliance
with
[[Page 87360]]
the proposed rule by estimating the number of hardware units and device
units the average movie theater within each venue type \24\ would need
in order to comply with the scoping requirements, which determine the
number of captioning devices and audio description devices a movie
theater is required to have and maintain. Because the proposed scoping
for captioning devices was based on the number of seats within a movie
theater, the Department estimated the average seat count across each
venue type. The Department also estimated the average number of
auditoriums across each venue type to estimate the number of audio
description devices and hardware units needed. One commenter noted that
the Department's estimates regarding the number of seats and
auditoriums were too low, especially for single-auditorium and miniplex
movie theaters. Because of this underestimation, the commenter believed
that small movie theater establishments would be required to purchase
many more captioning devices than the Department assumed in its cost
analysis. Based on industry survey information provided by the National
Association of Theater Owners (NATO) in its individual comment, the
Department has updated the Final RA cost estimation to reflect new data
regarding average auditorium counts across venue types. Data concerning
average seat count is no longer relevant because the final rule's
scoping for captioning devices is based on the number of auditoriums,
rather than the number of seats, within a movie theater. See section
3.3 of the Final RA for a more detailed discussion of the scoping
requirements of this rulemaking and their impact on the Final RA.
---------------------------------------------------------------------------
\24\ In the Initial RA, the Department used the term ``theater
type'' to describe the movie industry's classification of movie
theaters based on the number of auditoriums within a movie theater
complex. In the Final RA, the Department has replaced ``theater
type'' with ``venue type'' in order to avoid potential confusion
with the classification of movie theaters based on projection system
(i.e., digital vs. analog) and the distinction between indoor movie
theaters and drive-in movie theaters. The Final RA divides movie
theaters into four venue types: megaplex, multiplex, miniplex, and
single-auditorium. See section 2.1.4 of the Final RA.
---------------------------------------------------------------------------
The Department also received multiple comments concerning the unit
costs for the hardware and individual devices as well as the
Department's methodology regarding these estimates. NATO provided the
most recent unit cost data for all captioning and audio description
equipment currently available on the market, and the Department has
updated its cost estimates in the Final RA to reflect this updated
information. See section 3.4 of the Final RA for a more detailed
discussion of the captioning and audio description unit costs and their
impact on the Final RA.
In the Initial RA, the Department estimated the upfront costs for
the captioning and audio description equipment by averaging the
hardware and device unit costs of some equipment available on the
market. One commenter stated that the Department's methodology
concerning the average hardware and device unit costs for captioning
and audio description equipment was insufficient because it only
averaged the costs of the less expensive equipment. According to the
commenter, many movie theaters purchase the more expensive captioning
glasses offered by Sony to satisfy audience demand, and as a result,
the Initial RA substantially underestimated the cost of compliance by
excluding the cost of Sony's equipment from the average cost estimates.
A second commenter pointed out that the intent of the RA is to estimate
the minimum cost of compliance, indicating that the Department's
methodology and estimate regarding the upfront costs were reasonable.
Executive Order 12866 requires the Department to estimate the costs
that movie theaters will incur as a result of this rulemaking.
Currently, there is more than one manufacturer of the equipment
necessary to provide captioning and audio description, and the cost for
the equipment varies among the manufacturers. The Department has not
specified the manufacturer from which movie theaters must purchase the
equipment, and movie theaters retain the discretion to purchase the
equipment of their choice. As a result, the Department has included the
cost for all available equipment, including the Sony equipment, in its
estimate of the captioning and audio description equipment unit costs
for miniplex, multiplex, and megaplex movie theaters. The Department
has not added the cost of the Sony equipment to its estimate of
hardware and device unit costs for single-auditorium movie theaters
because the Department remains convinced that small movie theater
establishments are highly unlikely to purchase the more expensive
equipment. As the Department's independent research indicates, the less
expensive cup holder captioning devices account for the largest
percentage of the captioning device market share, and NATO advised the
Department that few movie theaters outside of the top movie theater
chains actually use Sony's captioning glasses. Therefore, while other
large movie theater establishments may choose to use Sony's technology,
the Department has excluded this equipment from its estimate of the
upfront costs for single-auditorium movie theaters. See section 3.4 of
the Final RA for a more detailed discussion of Sony equipment unit
costs and their impact on the Final RA.
Comments Regarding Other Cost Estimates: Staff Training, Notice,
Installation, Replacement, and Operation and Maintenance
In addition to the comments addressing the captioning and audio
description equipment cost estimates, the Department received a number
of comments addressing other cost estimates provided in the Initial RA.
These comments addressed the Department's estimate of staff training
costs, notice costs, acquisition and installation costs, replacement
costs, and operation and maintenance costs. Overall, commenters
indicated that the Department either failed to include these costs in
its estimates or that the Department's estimate for these costs was too
low.
The Department originally included staff training costs associated
with the rule in its estimate of the annual operations and maintenance
costs, but the Department sought public comment on the amount of
additional time movie theaters would spend training their employees to
operate the captioning and audio description devices and to assist
patrons in their use. The Department received a single comment in
response to this question. One movie theater anticipated that movie
theaters would spend an additional 15 minutes on employee training to
ensure that their staff was knowledgeable about the equipment and in
compliance with the rule's operational requirements. In consideration
of this comment, the Department has included a separate estimate for
the staff training costs associated with the operational requirements
of the final rule. The information provided by the movie theater
commenter serves as the basis for the staff training costs estimate.
See section 3.7 of the Final RA for a more detailed discussion of the
data, research, and assumptions used to estimate staff training costs.
The Department received only a few comments regarding its position
that any cost associated with the notice requirement would be de
minimis. One commenter argued that requiring notice in all places where
movie times are listed would cost the industry millions of dollars
annually because theaters would be required to invest in software
[[Page 87361]]
upgrades, the purchase of new signage on an ongoing basis, the purchase
of digital display sets, and increased advertising space to accommodate
more text. However, this commenter did not provide any information or
data to support this position, and the only other commenter on this
issue, a movie theater, agreed with the Department's conclusion that
notice costs would be de minimis. According to this movie theater, the
notice costs associated with the rule would be minimal for most
exhibitors considering that the industry has largely separated itself
from print advertising in favor of online advertising and adding icons
for captioning and audio description would not be very difficult.
Based on the Department's independent research and the comments
received, the Department maintains its position that the costs
associated with the notice requirement are de minimis. The notice
requirement does not require a movie theater to implement a specific
form of notice. Movie theaters routinely use ``CC'' and ``AD'' or
``DV'' to indicate the availability of closed movie captioning and
audio description in their communications currently, including on their
Web sites and mobile apps, and the Department's research indicates that
the inclusion of such symbols does not increase the cost of
advertisements already placed or require software upgrades as one
commenter indicated. For a more detailed discussion of those costs
associated with this rulemaking that the Department has determined to
be de minimis, see section 2.4.4.2 of the Final RA.
The Department also disagrees with commenters who criticized the
Department's failure to include accurate equipment unit costs and
installation costs in the Initial RA. As the Department indicated in
the Initial RA, the unit cost estimates for the available equipment
included the cost to install the equipment, and these unit cost
estimates were based on the most up-to-date data available to the
Department during the development of the Initial RA. See section 4.6 of
the Initial RA. The Department has updated the equipment unit cost
estimates, now referred to as ``acquisition costs'' in the Final RA, to
reflect the most recent data concerning the unit costs for all
available hardware and devices. The Final RA also now calculates
installation costs as a separate cost based on a movie theater's
upfront costs. For a more detailed discussion of the data, research,
and assumptions used to estimate the installation costs, see section
3.5 of the Final RA.
A couple of comments addressed the replacement costs estimated in
the Initial RA, specifically the replacement costs of the individual
devices. One commenter estimated that the useful life of the captioning
devices is about 5 years. According to NATO, industry data indicates
that between 2.5 percent and 15 percent of individual devices must be
replaced annually. The Department has updated the estimate of
individual device replacement costs to reflect the industry data
provided by NATO. To incorporate the individual devices' estimated 4-
to-7-year useful life, the Department estimates that 20 percent of all
captioning and audio description devices purchased as a result of this
rulemaking will be replaced annually. For a more detailed discussion of
the data, research, and assumptions used to estimate the replacement
costs, see section 3.6 of the Final RA.
Several commenters also argued that the Department's estimate
regarding operation and maintenance costs was too low. According to
these commenters, the maintenance costs include costs associated with
replacement batteries, periodic system testing, and upgrading software,
and because these costs are relative to the cost of the equipment, the
Department should consider the high cost of the devices when estimating
this cost. A few comments seemed to express confusion that the
operations and maintenance cost estimate in the Initial RA encompassed
the costs associated with installation, replacement, and staff
training. The Department has considered these comments and has included
separate cost estimates for the costs associated with installation,
replacement, and staff training. However, the Department's independent
research confirms that 3 percent of total equipment acquisition costs
represents an accurate estimate of the annual operation and maintenance
costs associated with this rule, especially now that installation,
replacement, and staff training costs are estimated separately. The
relevant cost category has been renamed ``maintenance and
administrative costs'' in the Final RA. For a more detailed discussion
of the data, research, and assumptions used to calculate the
maintenance and administrative costs of this rule, see section 3.8 of
the Final RA.
Comments Regarding the Benefits Estimate
The Department discussed the qualitative benefits associated with
this rule in the Initial RA. Without reliable information about the
number of individuals who would go to the movies as a result of this
rule or the number of captioned and audio-described screenings already
shown, the Department determined that the benefits of the rule were
difficult to quantify. Nonetheless, the Department determined that many
individuals, both those with and without disabilities, would benefit as
a result of the rule, and that such benefits justified any associated
costs. Furthermore, the Department fully expected that the guarantee of
access to movies screened at movie theaters for individuals with
hearing or vision impairments would spur some level of new demand for
movie attendance and therefore lead to increased box office receipts.
A majority of commenters addressing the Department's benefit
analysis recognized the difficulty in quantifying the benefits of the
rule but agreed with the Department's conclusions concerning the direct
and indirect beneficiaries that this rule would serve. Many comments
focused on the number of individuals with hearing and vision
disabilities, arguing that the U.S. Census vastly underestimates the
number of individuals who are deaf or hard of hearing, or blind or have
low vision. Commenters also stated that in addition to helping
individuals who are deaf or hard of hearing, movie captioning has the
potential to increase the access and enjoyment of movies for a wide
variety of people, including individuals with cognitive-communication
disorders, language-based learning disabilities, aphasia, central
auditory processing disorders, or individuals who are learning English
or may be working to improve their literacy skills. Organizations
representing individuals with hearing and vision disabilities commented
generally that captioning and audio description provide the keys to
American culture to the extent that these services help individuals
with hearing and vision disabilities to be more familiar with
``everyday events,'' thus allowing them to be more socially integrated
into society.
One commenter, however, criticized the Department's benefit
analysis. This commenter asserted that the Department failed to justify
the rule with relevant, evidence-based research to demonstrate that the
proposed rule would advance the intended benefits. The commenter
further recommended that the Department conduct an industry-wide survey
of movie theaters and individuals with hearing and vision disabilities
to determine the number of individuals currently seeking captioning and
audio description and their willingness to pay for such services.
[[Page 87362]]
The Department maintains its position that the non-quantifiable
benefits of this rule justify the costs of requiring captioning and
audio description at movie theaters nationwide. The Department received
a number of comments from individuals with hearing and vision
disabilities, as well as advocacy groups, indicating that individuals
with disabilities are currently seeking these accessibility services,
but that these services are either consistently unavailable or
insufficient to meet their needs. With the information received from
such comments and the Department's independent research, the Department
does not believe that conducting a nationwide survey is necessary to
confirm that this rulemaking will advance the intended benefits. As
section 1(c) of Executive Order 13563 highlights, agencies would be
remiss to overlook the benefits ``that are difficult or impossible to
quantify, including equity, human dignity, [and] fairness.'' With
respect to such benefits, this rulemaking will not only ensure that
individuals who are deaf or hard of hearing, or blind or have low
vision, are afforded equal access to movie theaters across the country,
but will also ensure that such individuals are afforded the opportunity
to participate in the social experiences that accompany a new movie's
release. As a result, the Department remains convinced that this
rulemaking will significantly advance the achievement of the intended
benefits, and that such benefits justify the costs associated with this
rulemaking. See section V.A.4, infra, and chapter 5 of the Final RA for
a more detailed discussion of the benefits of this rulemaking.
3. Costs--Summary of Likely Economic Impact
This section presents the calculations used to estimate the total
costs resulting from the amendments to the title III regulation, which
require movie theaters to provide closed movie captioning and audio
description when exhibiting digital movies equipped with such features.
As previously mentioned, total costs to movie theaters subject to the
rulemaking include the following components:
Acquisition costs for captioning hardware;
Acquisition costs for audio description hardware;
Acquisition costs for captioning devices;
Acquisition costs for audio description devices;
Installation costs for captioning and audio description
equipment;
Replacement costs for captioning and audio description
equipment;
Staff training costs for the provision of captioning and
audio description equipment; and
Maintenance and administrative costs.
Key Assumptions
Because movie theater complexes vary greatly by the number of
auditoriums, and the overall cost of this rule varies in direct
relation to the number of auditoriums exhibiting digital movies within
a movie theater, the Final RA breaks the movie exhibition industry into
four venue types based on size:
Megaplex (16+ auditoriums);
Multiplex (8-15 auditoriums);
Miniplex (2-7 auditoriums); and
Single-Auditorium movie theaters.
Additionally, uncertainty exists regarding the extent to which
movie theaters would offer closed movie captioning and audio
description if the Department had not undertaken this rulemaking.
Therefore, the Final RA estimates costs against three different
baseline scenarios, which are described in greater detail in section
3.2 of the Final RA. The primary analysis incorporates the Medium
Accessibility baseline, which is based on data available in NATO's 2015
Accessibility Survey. As shown in Table 1, under this baseline around
72 percent of auditoriums operated in megaplex, multiplex, and miniplex
theaters are assumed to be equipped to provide closed movie captioning.
Similarly, approximately 71 percent of auditoriums in these movie
theaters are assumed to be equipped to provide audio description. The
analysis assumes that no single-auditorium movie theater is already
equipped to provide closed movie captioning or audio description.
Table 1--Medium Accessibility Baseline by Venue Type-Captioning and
Audio Description
------------------------------------------------------------------------
Audio
Captioning Description
Venue type Medium Medium
Accessibility Accessibility
Baseline % Baseline %
------------------------------------------------------------------------
Megaplex................................ 72 71
Multiplex............................... 72 71
Miniplex................................ 72 71
Single-Auditorium....................... 0 0
------------------------------------------------------------------------
Section 2.1.3 and section 3.2 of the Final RA explain in detail the
methodology and data that provide the basis for the Department's
assumptions regarding the number of movie theater auditoriums currently
equipped to provide closed movie captioning and audio description.
The assumptions regarding the total number of auditoriums and the
distribution of these auditoriums by venue type (megaplex, multiplex,
miniplex, or single-auditorium) are further detailed in section 3.1 of
the Final RA. Finally, section 3.1.3 of the Final RA describes the
assumptions made in the analysis regarding the growth of auditoriums
and venue types, and section 3.3 of the Final RA provides detailed
assumptions and information regarding the scoping requirements by venue
type.
Costs Determined To Be De Minimis
The Department has determined that there are a few cost components
associated with this rulemaking that are de minimis and therefore have
not been estimated in the Final RA's total costs estimation. These
include repair costs and costs to comply with the final rule's notice
requirement. Repair costs are expected to be de minimis because
manufacturers, movie theaters, and the Department's independent
research indicate that repair of the captioning and audio description
equipment is rare. If equipment breaks down, the answer is replacement
rather than repair, and such costs are captured by the hardware and
device replacement costs. Additionally, costs associated
[[Page 87363]]
with the cleaning or occasional maintenance of the devices are captured
by the ongoing maintenance and administrative costs. Any additional
repair costs for captioning and audio description equipment are thus
expected to be de minimis.
The Department has further determined that the costs associated
with the notice requirement will be de minimis. Based on comments
received and the Department's independent research, the movie
exhibition industry has largely moved away from print advertising in
favor of digital advertising, and as one commenter indicated, digital
advertising allows movie theaters to add information concerning the
availability of captioning and audio description without much
difficulty. Currently, movie theaters routinely use ``CC'' and ``AD''
or ``DV'' to indicate the availability of closed movie captioning and
audio description in their communications, and the Department's
research indicates that the inclusion of such abbreviations does not
increase the cost of advertisements. Therefore, the additional time and
cost it will take a movie theater to add such information is
negligible.
Upfront Costs
The upfront costs of this rulemaking include the costs to acquire
and install the necessary captioning and audio description equipment.
Movie theaters incur the majority of the upfront costs during the first
2 years of the analysis, as movie theaters with auditoriums currently
exhibiting digital movies will purchase and install the necessary
equipment throughout 2016 and 2017 in accordance with the 18-month
compliance date. However, the cost estimation also includes the costs
incurred by new auditoriums opening after the 18-month compliance date.
As a result, equipment acquisition and installation costs are incurred
over the entire 15-year analysis period in the primary analysis. Table
2 shows the total equipment acquisition and installation costs incurred
over the 15-year period of analysis by venue type. Overall, the upfront
costs to movie theaters are expected to total $34.2 million when
discounted at 7 percent.
Table 2--Total Upfront Costs by Venue Type in Primary Analysis, Discounted at 7 Percent
[$ Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Captioning Audio Captioning
hardware hardware device Audio device Installation Total upfront
Venue type acquisition acquisition acquisition acquisition costs costs
costs costs costs costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Megaplex................................................ $5.0 $0.1 $4.8 $0.8 $0.3 $11.0
Multiplex............................................... 7.9 0.2 7.6 1.3 0.5 17.5
Miniplex................................................ 0.9 0.0 2.0 0.2 0.1 3.3
Single-Auditorium....................................... 0.8 0.2 1.3 0.1 0.1 2.5
-----------------------------------------------------------------------------------------------
Total............................................... 14.6 0.5 15.7 2.4 1.0 34.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may differ due to rounding.
Section 2.3 of the Final RA provides greater detail as to the
Department's methodology and assumptions for estimating the upfront
costs of this rulemaking. The data and research providing the basis for
these estimates are presented in section 3.3 through section 3.5 of the
Final RA.
Ongoing Costs
In addition to the upfront costs, movie theaters will incur ongoing
costs as a direct result of this rulemaking. The ongoing costs
quantified in the cost estimation include captioning and audio
description equipment replacement costs, staff training costs, and
maintenance and administrative costs. Table 3 shows the total ongoing
costs by venue type. Overall, the ongoing annual costs amount to $54.3
million over the 15-year period of analysis when discounted at 7
percent.
Table 3--Total Ongoing Costs by Venue Type in Primary Analysis, Discounted at 7 Percent
[$ millions]
----------------------------------------------------------------------------------------------------------------
Maintenance
Replacement Training and Total ongoing
Venue type costs costs administrative costs
costs
----------------------------------------------------------------------------------------------------------------
Megaplex........................................ $11.6 $3.5 $2.7 $17.8
Multiplex....................................... 18.4 5.6 4.3 28.2
Miniplex........................................ 4.0 0.7 0.8 5.5
Single-Auditorium............................... 2.2 0.1 0.5 2.8
---------------------------------------------------------------
Total....................................... 36.1 9.9 8.2 54.3
----------------------------------------------------------------------------------------------------------------
* Totals may differ due to rounding.
Replacement costs are expected to be $36.1 million over the 15-year
period of analysis when discounted at 7 percent. Replacement costs
include the costs to replace all equipment necessary to provide closed
movie captioning and audio description, including the captioning and
audio description devices as well as the captioning and audio
description hardware. Table 4-6 of the Final RA shows the estimated
replacement costs associated with each type of equipment. The data and
assumptions used to estimate the replacement costs are discussed in
greater detail in section 2.4.1 and section 3.6 of the Final RA.
Staff training is expected to cost approximately $9.9 million over
the 15-year period of analysis when discounted at 7 percent. The rule
requires staff to
[[Page 87364]]
be available to provide patrons with captioning and audio description
devices and to direct patrons on the devices' use. This requirement can
most easily be met by expanding the already existing training for those
employees who will be on-site to manage or oversee overall operations
or the exhibition of the movies. Because the operational requirements
of this rulemaking apply to all movie theaters subject to the
rulemaking, including those with auditoriums that currently provide
closed movie captioning and audio description, the Department has
estimated the staff training costs for all movie theaters exhibiting
digital movies. Section 2.4.2 and section 3.7 of the Final RA explain
the data and assumptions used to estimate the staff training costs.
Finally, maintenance and administrative costs are expected to be
$8.2 million over the 15-year period of analysis when discounted at 7
percent. These costs include, but are not limited to, the periodic
ongoing maintenance, system testing, and cleaning of devices and other
additional administrative costs. The data and assumptions used to
estimate the maintenance and administrative costs are discussed in
greater detail in section 2.4.3 and section 3.8 of the Final RA.
Total Costs
The total costs in the primary analysis are calculated based on the
data and assumptions presented in chapters 2 and 3 of the Final RA. As
described in section 3.2.2 of the Final RA, the primary analysis
incorporates the Medium Accessibility baseline, which is based on data
available in NATO's 2015 Accessibility Survey. Table 4 below shows the
total costs in the primary analysis by cost category. The total cost
impact of the rulemaking over the 15-year period of analysis is $88.5
million when discounted at 7 percent, and $113.4 million when
discounted at 3 percent.
Table 4--Total Costs by Cost Category in Primary Analysis Over 15 Years
[$ millions]
------------------------------------------------------------------------
Primary Primary
Cost category analysis 7% analysis 3%
discounted discounted
------------------------------------------------------------------------
Captioning Hardware Acquisition $14.6 $17.2
Costs..............................
Audio Hardware Acquisition Costs.... 0.5 0.5
Captioning Device Acquisition Costs. 15.7 17.6
Audio Device Acquisition Costs...... 2.4 2.8
Installation Costs.................. 1.0 1.1
Replacement Costs................... 36.1 49.9
Training Costs...................... 9.9 13.1
Maintenance and Administrative Costs 8.2 11.1
-----------------------------------
Total Costs..................... 88.5 113.4
------------------------------------------------------------------------
* Totals may differ due to rounding.
The total costs are broken down by venue type in table 5.
Auditoriums in multiplex movie theaters account for more than half of
the total costs ($45.7 million) over the 15-year period of analysis,
which is consistent with the fact that multiplex movie theaters operate
approximately 52 percent of all auditoriums. The costs to single-
auditorium movie theaters over the 15-year period of analysis are
approximately $5.3 million when discounted at 7 percent, and $6.3
million when discounted at 3 percent. As detailed in section 3.2.3 of
the Final RA, the primary analysis assumes that no single-auditorium
movie theater is already equipped to provide closed movie captioning or
audio description. As a result, it is assumed that all single-
auditorium movie theaters subject to this rulemaking would need to
purchase the necessary captioning and audio description equipment.
Table 5--Total Costs by Venue Type in Primary Analysis Over 15 Years
[$ millions]
------------------------------------------------------------------------
Primary Primary
Venue type analysis 7% analysis 3%
discounted discounted
------------------------------------------------------------------------
Megaplex (16+ auditoriums).......... $28.7 $37.2
Multiplex (8-15 auditoriums)........ 45.7 59.1
Miniplex (2-7 auditoriums).......... 8.8 10.8
Single-Auditorium................... 5.3 6.3
-----------------------------------
Total Costs..................... 88.5 113.4
------------------------------------------------------------------------
* Totals may differ due to rounding.
In table 6 below, the annualized costs are presented by venue type
using 7-percent and 3-percent discount rates. Overall, the annualized
cost to the entire movie exhibition industry is $9.7 million when using
a 7-percent discount rate, and $9.5 million when using a 3-percent
discount rate.
[[Page 87365]]
Table 6--Annualized Costs by Venue Type in Primary Analysis
[$ millions]
------------------------------------------------------------------------
Annualized Annualized
Venue type costs 7% costs 3%
discounted discounted
------------------------------------------------------------------------
Megaplex (16+ auditoriums).............. $3.2 $3.1
Multiplex (8-15 auditoriums)............ 5.0 5.0
Miniplex (2-7 auditoriums).............. 1.0 0.9
Single-Auditorium....................... 0.6 0.5
-------------------------------
Total............................... 9.7 9.5
------------------------------------------------------------------------
* Totals may differ due to rounding.
Sensitivity Analyses
Sensitivity analysis is an essential consideration for policy
makers in evaluating the rule due to the uncertainty associated with
certain key variables used in the cost estimation. The Department was
able to find robust data regarding the costs of purchasing captioning
and audio description equipment, the number of auditoriums in the
country, and several other critical variables. However, there are some
input variables that carry uncertainty. No substantive comments with
data on these inputs were received in the public comments on the 2014
NPRM.
The sensitivity analyses estimate the costs of this rulemaking when
using the following inputs:
Low Accessibility and High Accessibility baselines;
Alternate Medium Accessibility baseline;
Alternate captioning and audio description device
replacement rates;
Increased staff training frequency;
Single-auditorium unit cost estimates including Sony's
technology;
Increased maintenance and administrative costs; and
Zero growth after five years.
Detailed information and data regarding these sensitivity analyses
can be found in section 4.2 of the Final RA.
4. Benefits--Qualitative Discussion of Benefits
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 to attend movies with closed movie captioning or
audio description in movie theaters across the country for the first
time or on a more consistent basis. Individuals who will indirectly
benefit from this rule are the family and friends of persons with
hearing and vision disabilities that would be able to share the movie-
going experience more fully with their friends or loved ones with
hearing and vision disabilities. Although the anticipated benefits of
this rulemaking are difficult to quantify, the Department remains
convinced that there are significant qualitative benefits of this
rulemaking that justify this regulation at this time.
The benefits of this rule are difficult to quantify because the
Department has not been able to locate robust data on the rate at which
persons with disabilities currently attend movies shown in movie
theaters. Moreover, as a result of the increased accommodations
required by this rule, it is reasonable to predict that some number of
persons with disabilities will likely attend movies for the first time,
some number of persons with disabilities will likely attend movies at a
rate that is different than they had previously, the number of persons
who attend movies as part of a larger group that includes a person with
a disability will likely change, and the number of persons with
disabilities who would have attended movies anyway but under the rule
will have a fuller and more pleasant experience will likely also
change. The Department has no feasible way of projecting those figures.
In addition, the Department does not know how many people with hearing
or vision disabilities currently have consistent access to movie
theaters that provide closed movie 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 movie captioning and audio description at movie
theaters.
Though the Department cannot confidently estimate the likely number
of people who would directly benefit from this rule, it has 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 ages 15 and older has difficulty seeing, which translates
into a little more than 8 million individuals in 2010, and a little
more than 2 million of those had ``severe'' difficulty seeing. At the
same time, the Census Bureau estimates that 3.1 percent of the U.S.
population ages 15 and older have difficulty hearing, which was a
little more than 7.5 million individuals in 2010, and approximately 1
million of them had ``severe'' difficulty hearing. See U.S. Census
Bureau, U.S. Department of Commerce, P70-131, Americans with
Disabilities: 2010 Household Economic Studies at 8 (2012), available at
https://www.census.gov/prod/2012pubs/p70-131.pdf (last visited Sept. 12,
2016). While not all of these individuals would benefit from this rule,
many of them will be direct beneficiaries, although they are likely to
benefit from this rule in different ways and to varying extents. The
type and extent 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 rule. Some
persons with vision and hearing disabilities have effectively been
precluded from going to movies at movie theaters because the only
theaters available to them do not offer closed movie captioning or
audio description, offer open captioning but only at inconvenient times
(such as the middle of the day during the week), or offer 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, which 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. A person with a hearing or vision
disability who previously did not have access to a movie theater that
provided closed movie captioning or audio description will experience
this benefit to an extent that is different than the extent of the
benefit experienced by a person with a hearing or vision disability who
previously did have access to a movie
[[Page 87366]]
theater that consistently provided closed movie captioning and audio
description. In addition, a person who cannot follow a movie at all
without the assistance of closed movie captioning is likely to
experience this benefit to an extent that is different than the extent
of the benefit experienced by a person who can follow parts of a movie
without the assistance of closed movie captioning.
There is a social value in movie viewing for many people, not just
an entertainment value. As noted previously, movies are a part of our
shared cultural experience, and the subject of ``water cooler'' talk
and lunchtime 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 the 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) (footnote omitted). 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
captioning or audio description, they are exposed to new ideas and gain
knowledge that contributes to the development of their communication
and literacy as well as their integration into society.
As previously mentioned, some persons with vision or hearing
disabilities may already have access to some movie theaters with
captioning or audio description capabilities, but that access may be
limited to only some locations and times. Some of these people may be
patronizing movie theaters now but less often than they otherwise
would, or less often than they would like, if captioning or audio
description were available consistently across all theaters. These
people may see more movies or save time that they currently must spend
monitoring those few accessible movie theaters or showings and perhaps
additional time coordinating trips to the movies with family and
friends. If all movie theaters are accessible to those who are deaf or
hard of hearing, or blind or have low vision, then some persons will
now have greater choice among multiple locations and can make choices
based on other criteria such as location, times, and other amenities,
just as Americans without these disabilities already do.
In addition to the direct beneficiaries of the 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
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 movie theater together,
sharing the experience as they may have in the past. The Department
received numerous comments from individuals who are deaf, hard of
hearing, blind, or have low vision in response to its 2014 NPRM
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. Parents with disabilities also
complained that they could not answer their children's questions about
a movie that they saw together because the parents did not understand
what had happened in the movie.
There is also a distributional benefit of this rule as some areas
of the United States are more likely to have movie theaters with
auditoriums that are already equipped to provide closed movie
captioning and audio description than others. As noted previously, the
Department understands 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 movie theaters operated by Regal, Cinemark, or AMC. Thus,
it is possible that more urban areas, or certain cities or States, may
have greater access than other areas, cities, or States, creating or
exacerbating geographical differences in opportunities that will be
equalized by this rulemaking.
Moreover, while not formally quantified, the Department expects
that this guarantee of access for individuals with hearing or vision
impairments to movies screened at movie theaters will spur some level
of new demand for movie attendance and, therefore, lead to increased
box office receipts. Unfortunately, there is little data on the demand
for movie-viewing in places of public accommodation by persons who are
deaf or hard of hearing, or blind or have low vision, and as such,
preparing estimates of the increase in movie theater attendance is
difficult.
Because the rule sets specific standards for equally effective
communication at movie theaters, it should also lead to a decrease or
near elimination of confusion regarding what accommodations movie
theaters must provide. The current ADA title III regulation does not
contain explicit requirements specifying how movie theaters should meet
their effective communication obligations, and this is one of the
reasons behind the multiple private lawsuits filed throughout the
country. Setting explicit requirements at the national level will lead
to harmonization across the country.
And finally, there are additional benefits of the rule that relate
to equity and fairness considerations generally. See E.O. 13563 Sec.
1(c) (underscoring the importance of agency consideration of benefits
``that are difficult or impossible to quantify, including equity, human
dignity, [and] fairness''). The Department expects that the regulation
will allow for better integration of persons with disabilities into the
American social mainstream. Without captioning and audio description at
movie theaters, individuals with hearing and vision disabilities
commented that they were unable to participate in the social experience
that attending the movies affords. Other commenters noted that movie
theaters' common practice of ``relegating'' movie patrons with hearing
and vision disabilities to ``special showings'' of captioned or audio-
described movies at off-peak days and times did not constitute the
``full and equal access'' guaranteed by the ADA. By requiring all movie
theaters to provide closed movie captioning and audio description when
exhibiting a digital movie distributed with such features, the
Department believes that the ADA's guarantees will be more fully met.
The Department views the most significant benefits of the rule to
be those relating to issues of 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.
Regardless, the Department believes that the non-quantifiable benefits
justify the costs of requiring captioning and audio description at
movie theaters nationwide.
5. Alternatives
As required by Executive Order 12866, the Department considered
various alternatives to this rule. Chapter 6 of the Final RA provides
detailed information regarding these alternatives. Table 7 below
summarizes the cost estimates for the primary analysis and other
evaluated alternatives to the regulation.
[[Page 87367]]
Table 7--Summary of Primary Analysis and Alternative Analyses Over 15 Years, Discounted at 7 Percent
[$ millions]
----------------------------------------------------------------------------------------------------------------
2-year 6-month Analog
Cost category Primary compliance compliance NPRM scoping theaters
analysis date date requirement included
----------------------------------------------------------------------------------------------------------------
Captioning Hardware Acquisition $14.6 $14.0 $15.5 $14.6 $17.3
Costs..........................
Audio Hardware Acquisition Costs 0.5 0.4 0.5 0.5 0.6
Captioning Device Acquisition 15.7 15.1 16.6 36.1 15.7
Costs..........................
Audio Device Acquisition Costs.. 2.4 2.4 2.6 4.4 2.5
Installation Costs.............. 1.0 1.0 1.1 1.7 1.1
Replacement Costs............... 36.1 34.5 39.0 73.8 37.0
Training Costs.................. 9.9 9.9 9.9 9.9 10.0
Maintenance and Administrative 8.2 7.8 8.9 13.9 8.8
Costs..........................
-------------------------------------------------------------------------------
Total Costs................. 88.5 85.2 94.1 154.8 93.1
----------------------------------------------------------------------------------------------------------------
* Totals may differ due to rounding.
B. Executive Order 13132: Federalism
Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), 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, the
agency must consult with State and local elected officials about how to
minimize or eliminate the effects. This 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 laws that specifically address captioning and audio description.
As a result, the Department has concluded that this rule does not have
federalism implications.
C. 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 adequately addresses legal issues to minimize
uncertainty. 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 this rule.
D. 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. Additionally, an agency may not impose
a penalty on persons for violating information collection requirements
when an information collection required to have a current OMB control
number does not have one. See id.
This rule includes a requirement that movie theaters provide
information to the public about which movies are available with closed
movie captioning and audio description when publishing the exhibition
times for those movies. See Sec. 36.303(g)(8). The Department has
determined that this requirement qualifies as a collection of
information subject to the PRA. Consistent with the PRA's requirements,
the Department published a notice in the Federal Register on June 10,
2016, requesting public comment on the potential costs and burdens of
this requirement. See 81 FR 37643. The comment period for this notice
closed on August 9, 2016, and the Department published a second notice
in the Federal Register on August 30, 2016. See 81 FR 59657. The 30-day
comment period for the second notice closed on September 29, 2016.
The information collection requirement contained in this regulation
was approved by OMB on November 3, 2016, and has been assigned OMB
control number 1190-0019.
E. 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.
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 final rule for movie captioning and
audio description.
VI. Final Regulatory Flexibility Analysis
As directed by the Regulatory Flexibility Act of 1980, as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), and by Executive Order 13272, the Department is required to
consider the potential impact of the proposed rule on small entities,
including small businesses, small nonprofit organizations, and small
governmental jurisdictions. This process helps agencies to determine
whether a rule is likely to impose a significant economic impact on a
substantial number of small entities and, in turn, to consider
regulatory alternatives to reduce that regulatory burden on those small
entities.
This final rule applies to and affects almost all small entities
categorized as ``Motion Picture Theaters.'' Small businesses constitute
the vast majority of firms in the movie exhibition industry. The
current size standard for a small movie theater business is $38.5
million dollars in annual revenue. See U.S. Small Business
Administration, Table of Small Business Size Standards Matched to North
American Industry Classification System Codes at 28 (July 14, 2014),
available at https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf (last visited Sept. 12, 2016). In 2012, the
latest year for which detailed breakouts by industry and annual revenue
are
[[Page 87368]]
available, approximately 98 percent of movie theater firms met the
standard for small business, and these firms managed approximately 52
percent of movie theater establishments. See U.S. Census Bureau,
Statistics of U.S. Businesses, available at https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html (see Data by
Enterprise Receipt Size, U.S., 6-digit NAICS) (last visited Sept. 12,
2016). The Department's analysis leads it to conclude that a
substantial number of small movie theater firms will experience a
significant economic impact as a result of this rule. The Department
therefore presents this Final Regulatory Flexibility Analysis (FRFA).
The Department has used this analysis to examine other ways, if
possible, to accomplish the Department's goals with fewer burdens on
small businesses, and the Department has made a number of revisions to
the final rule to reduce the cost impact on small firms in the movie
exhibition industry.
A. Purpose and Objective of the Final Rule Relative to Movie Theaters
Categorized as Small
As previously discussed throughout this rule, the Department's
existing regulation implementing the ADA's title III auxiliary aids
provision reiterates the obligation of covered entities to ensure
equally effective communication with individuals with disabilities and
identifies, among other things, ``open and closed captioning,'' and
``audio recordings'' as examples of auxiliary aids and services. 28 CFR
36.303(a)-(c). Recent technological changes in the movie exhibition
industry--including widespread conversion from analog film projection
to digital cinema systems--make exhibition of captioned and audio-
described movies easier and less costly than before. In addition, it is
the Department's understanding that, at this time, nearly all first-run
motion pictures released by the major domestic movie studios include
closed movie captioning (and to a lesser extent, audio description).
Despite these technological advances, movie theaters do not
consistently show movies with captioning or audio description, and the
availability of these features varies greatly across the country, with
small movie theaters in rural areas being less likely to provide them.
Thus, patrons who are deaf or hard of hearing, or blind or have low
vision, are often shut out from the movie-going experience and cannot
fully take part in movie-going outings with family and friends, join in
social conversations about recent movie releases, or otherwise
participate in a meaningful way in an important aspect of American
culture.
The Department believes that regulation is warranted at this time
to explicitly require all movie theaters, including those qualifying as
small entities, to exhibit movies with closed movie captioning and
audio description whenever these theaters exhibit digital movies
produced, distributed, or otherwise made available with such features
unless to do so would result in an undue burden or a fundamental
alteration. As discussed above, the Department is deferring rulemaking
on application of these requirements to movie theater auditoriums that
exhibit analog movies exclusively. The final rule for movie captioning
and audio description rests on the existing obligation of all title
III-covered facilities, such as movie theaters--regardless of size--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 final
rule imposes no independent obligation on movie theaters to provide
captioning and audio description if the movie is not already available
with these features.
The Department expects that implementation of the final 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 all movie
theaters.
B. Public Comments Regarding the Effects of the Rule on Small Movie
Theaters
The Department received 436 comments during the 2014 NPRM comment
period from movie industry representatives, individuals with
disabilities, advocacy groups representing individuals with
disabilities, State and Federal entities, academic organizations,
private companies, and other private individuals. Comments that
directly addressed the assumptions, data, or methodology used in the
Initial RA have been previously discussed above in section V.A.2 and in
section 1.3 of the Final RA. This section summarizes the discussion of
comments regarding the effects of the rule on small movie theaters.
Proportion of Movie Theaters Qualifying as Small Entities
The Department received comments indicating that the vast majority
of movie theaters qualify as small entities, which is supported by the
2012 Statistics of U.S. Businesses (SUSB) data and detailed below. See
infra section VI.C.
Small Movie Theater Revenues and Available Resources To Comply
One commenter reported that at least one segment of the movie
exhibition industry, art house cinemas, generally receive less than 50
percent of their revenue from ticket sales. Another commenter asked the
Department to consider that almost half of movie theater gross receipts
are paid directly to movie studios. Given these percentages and the
fact that the movie exhibition industry as a whole averages a 2 percent
profit margin, with small and independent theater owners often
operating at an even smaller or negative profit margin, commenters
asked the Department to reconsider its interpretation of cost values
relative to annual revenue because these figures do not directly
represent funds that are available to comply with this rule.
The Department does not have access to publicly available data that
provides a consistent, independent source of movie theater profit by
revenue category. As discussed in section VI.C below, available data
includes firm receipt size from the 2012 SUSB.\25\ The Department
believes that this dataset is the most relevant publicly available data
on annual revenue figures for the movie exhibition industry and is the
best source to assess the resources available to movie theaters to
comply with the rule.
---------------------------------------------------------------------------
\25\ U.S. Census Bureau, Statistics of U.S. Businesses,
available at https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html (see Data by Enterprise Receipt Size, U.S., 6-digit
NAICS) (last visited Sept. 12, 2016). The information is available
in an Excel file which lists all information by NAICS Code. The
relevant NAICS Code for Motion Picture Theaters (except Drive-Ins)
is 512131.
---------------------------------------------------------------------------
Alternatives To Reduce Burdens on Small Movie Theaters
Commenters made various suggestions concerning alternatives to
reduce the regulatory burden for small movie theaters. These
suggestions pertained to the following areas: (1) The scoping for
devices; (2) the compliance date; (3) the deferral of rulemaking for
movie theaters exhibiting movies in analog format; and (4) the deferral
of rulemaking for a subset of small movie theaters. The Department is
aware of
[[Page 87369]]
potential limitations to compliance for small movie theaters and has
taken measures to lessen the impact on those firms. As explained in
sections 1.4 and 6.1 of the Final RA and in section VI.F below, the
Department has decided to defer the decision whether to engage in
rulemaking with respect to movie theater auditoriums that exhibit
analog movies exclusively, to reduce the scoping requirements for both
captioning and audio description devices, and to increase the time
movie theaters have to comply with the rule's captioning and audio
description scoping requirements (now 18 months). These revisions are
expected to reduce the cost impact to small firms in the movie
exhibition industry.
Response to Comments From the Small Business Administration Office of
Advocacy (SBA)
This section specifically addresses comments of the SBA Office of
Advocacy in response to the proposed rule. Most of the concerns
expressed by SBA were also expressed by other commenters.
SBA's comments on the 2014 NPRM focused on the following five
issues: Lowering the scoping for captioning and audio description
devices; deferral of coverage of analog theaters; providing a longer
compliance date for the requirements of the rule; the breadth of the
definition of ``movie theater''; and the application of the undue
burden defense for small business movie theaters. After consideration
of these comments and related comments from other commenters, the
Department has made a number of changes in the final rule.
First, the Department has significantly lowered the scoping
requirements for captioning and audio description devices in response
to comments from SBA and other commenters that the Department should
not have used seat count as a means of determining the number of
devices that would actually be needed to meet demand from people with
hearing and vision disabilities. The revised scoping bases the required
number of devices on the number of auditoriums in a theater showing
digital movies rather than the number of seats.
Second, the Department has decided to defer the decision whether to
apply the specific requirements of this rule to movie theater
auditoriums that show analog movies exclusively. As discussed in the
section-by-section analysis, the number of movie theaters that only
show analog movies is rapidly declining, and it is unclear whether
these theaters will be economically viable in the future, or whether
analog movies will even be available for commercial showings.
Third, the Department has extended the compliance date for all
movie theaters subject to this rulemaking. Movie theaters now have 18
months to comply with the rule's scoping requirements, and additional
time is afforded to movie theaters that convert auditoriums from an
analog projection system to a digital projection system after the
compliance date of the rule. After considering the comments on the 2014
NPRM, the Department has concluded that 18 months allows movie theaters
sufficient time to order and install the necessary equipment while
accounting for potential manufacturer backlogs or the need to raise the
necessary funds to purchase the equipment.
Fourth, SBA specifically asked whether the definition of ``movie
theater'' was intended to encompass small movie theaters that
occasionally show digital movies using a Blu-ray projector, pop-ups and
film festivals, or limited arrangement showings held at alternative
venues. The Department believes that in most instances, the
requirements of the rule will not apply in these circumstances. As the
definition indicates, a ``movie theater,'' for purposes of this
rulemaking, means ``a facility * * * that contains one or more
auditoriums that are used primarily for the purpose of showing movies
to the public for a fee.'' Sec. 36.303(g)(1)(vii). Thus, an auditorium
generally used for other purposes that temporarily shows movies during
a film festival, even if a fee is charged, would not fall within this
definition. By contrast, a movie theater that primarily shows digital
movies to the public for a fee remains covered by the requirements of
paragraph (g) even if it allows its auditoriums to be used for an
annual film festival. Theaters with analog auditoriums that are not
otherwise covered by the specific requirements of Sec. 36.303(g) and
temporarily bring in portable Blu-ray or other types of digital
projectors to show digital movies are also not likely to fall within
the requirements of paragraph (g) because the compliance date provision
assumes conversion of the theater to a digital projection system. In
addition, it is the Department's understanding that Blu-ray projection
systems are not capable of delivering closed movie captions to patrons
at their seat; these systems only have the capacity to show captions on
the screen, something not required by this rule.
The Department notes that film festivals, pop-up movie theaters,
and other alternative venues for showing movies still qualify as places
of entertainment and are considered public accommodations under the
ADA. Thus, they continue to be subject to the longstanding general ADA
requirement to provide effective communication under Sec. 36.303,
unless doing so would be a fundamental alteration of the program or
service or would constitute an undue burden. In addition, if a festival
or limited showing programmer schedules the screening of a movie that
is already distributed with closed movie captions and audio description
using a movie theater auditorium that is subject to the requirements in
paragraph (g) as discussed above, then the effective communication
obligation would require the festival to ensure that the accessible
features are available at all scheduled screenings of a movie
distributed with such features.
Finally, SBA asked that the Department provide additional guidance
for small businesses regarding the availability of the undue burden
limitation. Under the ADA, 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. As stated earlier in the preamble and in existing technical
assistance materials, 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 determination, lists five factors that must be considered when
determining whether an action would constitute an undue burden. 28 CFR
36.104; see also U.S. Department of Justice, ADA Title III Technical
Assistance Manual Covering Public Accommodations and Commercial
Facilities III-4.3600 (1993), available at https://www.ada.gov/taman3.html. 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
[[Page 87370]]
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. 28 CFR 36.104. This limitation entails a fact-specific
examination of the cost of a specific action and the specific
circumstances of a particular public accommodation. This limitation is
also designed to ensure that the needs of small businesses, as well as
large businesses, are addressed and protected.
The Department intends to publish technical assistance that will
address the requirements of the final rule and the limitations on the
obligations under paragraph (g) prior to the time the rule takes
effect. In addition, the Department's wide-ranging outreach, education,
and technical assistance program continue to be available to assist
businesses to understand their obligations under the ADA. Additional
information about the ADA's requirements, including the requirement to
provide effective communication and the limitations on that obligation,
is also available on the Department's ADA Web site at www.ada.gov.
C. Characteristics of Impacted Small Entities
The Regulatory Flexibility Act defines a ``small entity'' as a
small business (as defined by the SBA Size Standards) or a small
organization such as a nonprofit that is ``independently owned and
operated'' and is ``not dominant in its field.'' See 5 U.S.C. 601(3),
(4). For Motion Picture Theaters (except Drive-Ins) (NAICS Code
512131), the SBA Size Standards categorize any firm with less than
$38.5 million in annual revenue as a small business.\26\ As a result,
small entities constitute the vast majority of firms in the movie
exhibition industry. The latest data providing detailed breakouts of
annual revenue by industry comes from the 2012 Statistics of U.S.
Businesses (SUSB).\27\ This dataset provides information regarding the
number of firms,\28\ establishments,\29\ and estimated annual receipts
\30\ (annual revenue) for each of the 17 revenue size categories in the
movie exhibition industry. According to this data, 12 of the 17 revenue
size categories contain firms with estimated annual receipts of less
than the $38.5 million SBA size standard for a small business in this
industry. Because these firms are considered small businesses by the
SBA size standards, they are also considered small entities for
purposes of this FRFA. An additional category of firms with annual
receipts between $35 million and $40 million contains firms that may or
may not have annual revenue below the $38.5 million threshold. For the
purposes of this analysis, however, all firms in this category are
assumed to have revenues lower than the $38.5 million size standard and
are therefore considered to be small entities.
---------------------------------------------------------------------------
\26\ U.S. Small Business Administration, Table of Small Business
Size Standards Matched to North American Industry Classification
System Codes at 28 (July 14, 2014), available at https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf (last
visited Sept. 12, 2016).
\27\ The SBA's Office of Advocacy partially funds the Census
Bureau to produce data on employer firm size including the number of
firms, number of establishments, employment, and annual payroll and
annual sales/receipts/revenue for employment size of firm categories
by location and industry as part of the SUSB program. See U.S.
Census Bureau, Statistics of U.S. Businesses, available at https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html (see
Data by Enterprise Receipt Size, U.S., 6-digit NAICS) (last visited
Sept. 12, 2016). The information is available in an Excel file which
lists all information by NAICS Code.
\28\ The U.S. Census Bureau defines a ``firm'' as a ``business
organization consisting of one or more domestic establishments in
the same state and industry that were specified under common
ownership or control. The firm and the establishment are the same
for single-establishment firms. For each multi-establishment firm,
establishments in the same industry within a state will be counted
as one firm--the firm employment and annual payroll are summed from
the associated establishments.'' U.S. Census Bureau, Statistics of
U.S. Businesses: Glossary, available at https://www.census.gov/programs-surveys/susb/about/glossary.html (last visited Sept. 12,
2016).
\29\ The U.S. Census Bureau defines an ``establishment'' as ``a
single physical location where business is conducted or where
services or industrial operations are performed.'' U.S. Census
Bureau, North American Industry Classification System: Frequently
Asked Questions (FAQs), available at https://www.census.gov/eos/www/naics/faqs/faqs.html#q2 (last visited Sept. 12, 2016).
\30\ ``Receipts (net of taxes collected from customers or
clients) are defined as operating revenue for goods produced or
distributed, or for services provided. Receipts excludes local,
state, and federal sales and other taxes collected from customers or
clients and paid directly to a tax agency. Receipts are acquired
from economic census data for establishments in industries that are
in-scope to the economic census; receipts are acquired from IRS tax
data for single-establishment businesses in industries that are out-
of-scope to the economic census; and payroll-to-receipts ratios are
used to estimate receipts for multi-establishment businesses in
industries that are out-of-scope to the economic census. Statistics
of U.S. Businesses tabulations provide summed establishment receipts
which creates some duplication of receipts for large multi-
establishment enterprises. Receipts data are available for years
ending in 2 and 7 only.'' U.S. Census Bureau, Statistics of U.S.
Businesses: Glossary, available at https://www.census.gov/programs-surveys/susb/about/glossary.html (last visited Sept. 12, 2016).
---------------------------------------------------------------------------
The 2012 SUSB data on the movie exhibition industry includes both
digital and analog movie theaters but excludes drive-in movie theaters.
The number and percentage of firms and establishments by revenue
category is presented in table 8. According to the 2012 SUSB, 1,876
movie theater firms operated 4,540 movie theater establishments.
Approximately 1,833 of those firms (98 percent) are categorized as a
small business according to the SBA size standard ($38.5 million) and
therefore are small entities for purposes of this FRFA. The 1,833 firms
categorized as small entities operated approximately 2,381 movie
theater establishments (52 percent of the total).
Table 8--Motion Picture Theaters (Except Drive-Ins) Firms and Establishments by Revenue Category, 2012 Statistics of U.S. Businesses
[NAICS 512131]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentage of Cumulative
Number of Percentage of Cumulative Number of total total of
Firms with annual revenue firms total firms total of firms establishments establishments establishments
(%) (%) (%) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than $100,000...................................... 244 13.0 13.0 246 5.4 5.4
$100,000 to $499,999.................................... 618 32.9 45.9 630 13.9 19.3
$500,000 to $999,999.................................... 332 17.7 63.6 353 7.8 27.1
$1,000,000 to $2,499,999................................ 399 21.3 84.9 460 10.1 37.2
$2,500,000 to $4,999,999................................ 125 6.7 91.6 189 4.2 41.4
$5,000,000 to $7,499,999................................ 35 1.9 93.4 66 1.5 42.8
$7,500,000 to $9,999,999................................ 19 1.0 94.5 49 1.1 43.9
$10,000,000 to $14,999,999.............................. 26 1.4 95.8 107 2.4 46.3
$15,000,000 to $19,999,999.............................. 9 0.5 96.3 41 0.9 47.2
$20,000,000 to $24,999,999.............................. 10 0.5 96.9 60 1.3 48.5
[[Page 87371]]
$25,000,000 to $29,999,999.............................. 6 0.3 97.2 66 1.5 49.9
$30,000,000 to $34,999,999.............................. 4 0.2 97.4 66 1.5 51.4
$35,000,000 to $39,999,999.............................. 6 0.3 97.7 48 1.1 52.4
$40,000,000 and greater *............................... 43 2.3 100.0 2,159 47.6 100.0
-----------------------------------------------------------------------------------------------
Total Firms (Less than $40,000,000)................. 1,833 98 .............. 2,381 52 ..............
-----------------------------------------------------------------------------------------------
Total Firms......................................... 1,876 .............. .............. 4,540 .............. ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
* This category sums the firms and establishments included in the following categories: $40,000,000 to $49,999,999; $50,000,000 to $74,999,999;
$75,000,000 to $99,999,999; $100,000,000 and greater.
Table 9 presents the number of firms, the number of establishments,
and the annual revenue of firms by revenue size category. The
calculated average annual revenue per firm and the average annual
revenue per establishment are also provided.
Table 9--Motion Picture Theaters (Except Drive-Ins) Firms and Establishments, Annual Revenue by Revenue
Category, 2012 Statistics of U.S. Businesses
[NAICS 512131]
----------------------------------------------------------------------------------------------------------------
Annual revenue
Number of Number of Annual revenue Annual revenue per
Firms with annual revenue firms establishments for all firms per firm * establishment
($ millions) *
----------------------------------------------------------------------------------------------------------------
Less than $100,000.............. 244 246 $13.3 $54,508 $54,065
$100,000 to $499,999............ 618 630 158.5 256,537 251,651
$500,000 to $999,999............ 332 353 237.3 714,762 672,241
$1,000,000 to $2,499,999........ 399 460 615.4 1,542,318 1,337,793
$2,500,000 to $4,999,999........ 125 189 424.4 3,394,864 2,245,280
$5,000,000 to $7,499,999........ 35 66 192.4 5,497,029 2,915,091
$7,500,000 to $9,999,999........ 19 49 146.2 7,697,211 2,984,633
$10,000,000 to $14,999,999...... 26 107 312.3 12,013,115 2,919,075
$15,000,000 to $19,999,999...... 9 41 127.8 14,200,444 3,117,171
$20,000,000 to $24,999,999...... 10 60 143.1 14,314,600 2,385,767
$25,000,000 to $29,999,999...... 6 66 136.4 22,734,000 2,066,727
$30,000,000 to $34,999,999...... 4 66 ** n/a ** n/a ** n/a
$35,000,000 to $39,999,999...... 6 48 165.1 27,514,000 3,439,250
$40,000,000 and greater......... 43 2,159 10,520 244,639,651 4,872,397
----------------------------------------------------------------------------------------------------------------
* Calculated.
** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
D. Costs to Impacted Small Entities
Annual revenue data from the SUSB program is used, together with
information regarding likely per-theater upfront and ongoing annual
costs (section 4.1.4 of the Final RA), to estimate the impact of this
rulemaking on small entities relative to their resources. As described
in section 2.1.4 of the Final RA, movie theater complexes vary greatly
by the number of auditoriums that they contain, and the per-theater
cost varies according to the number of auditoriums within a theater
exhibiting digital movies. Therefore, the Final RA breaks the movie
exhibition industry into four venue types based on size:
Megaplex (16+ auditoriums);
Multiplex (8-15 auditoriums);
Miniplex (2-7 auditoriums); and
Single-Auditorium movie theaters.
The FRFA uses the estimated number of movie theaters by venue type
to determine the cost impact per firm. Table 10 presents estimates of
the percentage of movie theaters by venue type, calculated from the
2015 distribution of auditoriums by venue type (table 3-3 of the Final
RA) and the average number of auditoriums per venue type.\31\ The table
indicates that approximately 40 percent of movie theater establishments
are multiplex theaters, and 43 percent are either miniplex (22 percent)
or single-auditorium theaters (21 percent), with the remaining 17
percent being megaplex theaters.
---------------------------------------------------------------------------
\31\ See NATO, Statement of Position on RIN 1190-AA63, CRT
Docket No. 126, Nondiscrimination on the Basis of Disability by
Public Accommodations--Movie Theaters; Movie Captioning and Audio
Description 22, available at https://www.regulations.gov/contentStreamer?documentId=DOJ-CRT-2014-0004-0401&attachmentNumber=4&disposition=attachment&contentType=pdf (last
visited Sept. 12, 2016).
[[Page 87372]]
Table 10--Estimated Number of Movie Theaters by Venue Type
[2015]
----------------------------------------------------------------------------------------------------------------
Number of Estimated
auditoriums Average number number of Percentage of
Venue type exhibiting / of auditoriums = movie theaters movie theaters
digital movies by venue type by venue type by venue type
(2015) (2015) (2015)
----------------------------------------------------------------------------------------------------------------
Megaplex.............................. 12,812 / 18 = 712 17
Multiplex............................. 20,322 / 12 = 1,693 40
Miniplex.............................. 4,666 / 5 = 933 22
Single-Auditorium..................... 889 / 1 = 889 21
-------------------------------------------------------------------------
Total............................. 38,688 / .............. = 4,227 100
----------------------------------------------------------------------------------------------------------------
As previously discussed, movie theaters, including small movie
theaters, will incur upfront costs as well as ongoing costs to comply
with the requirements of this rulemaking. Table 11 below presents the
undiscounted upfront costs incurred by the average movie theater within
each venue type.
Table 11--Average per Movie Theater Upfront Costs by Venue Type in Primary Analysis, Undiscounted
[$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Audio Audio
Captioning description Captioning description Installation Total upfront
Venue type hardware hardware device device costs costs
acquisition acquisition acquisition acquisition
--------------------------------------------------------------------------------------------------------------------------------------------------------
Megaplex................................................ $16,158 $205 $8,728 $1,470 $797 $27,358
Multiplex............................................... 10,772 205 5,819 980 533 18,309
Miniplex................................................ 4,488 205 4,364 490 286 9,834
Single-Auditorium....................................... 1,097 308 1,864 190 104 3,562
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may differ due to rounding.
Because movie theaters will incur the highest costs to acquire the
necessary equipment, tables 12 through 19 provide the data used to
estimate these costs. Table 12 presents the average number of
auditoriums by venue type and estimates the relevant number of
captioning hardware units required by the scoping requirements using
the one-unit-per-auditorium assumption discussed in section 3.3.1 of
the Final RA. The average number of auditoriums across each venue type
was provided by NATO in its public comment on the 2014 NPRM.
Table 12--Captioning Hardware Scoping Requirement per Venue Type
------------------------------------------------------------------------
Captioning
Average hardware units
Venue type number of required per
auditoriums venue type
------------------------------------------------------------------------
Megaplex (16+ auditoriums).............. 18 18
Multiplex (8-15 auditoriums)............ 12 12
Miniplex (2-7 auditoriums).............. 5 5
Single-Auditorium....................... 1 1
------------------------------------------------------------------------
Similarly, table 13 presents the average number of auditoriums by
venue type and estimates the relevant number of audio description
hardware units required by the scoping requirements using the one-unit-
per-movie-theater assumption discussed in section 3.3.2 of the Final
RA. The average number of auditoriums across each venue type was
provided by NATO in its public comment on the 2014 NPRM.
Table 13--Audio Description Hardware Scoping Requirements per Venue Type
------------------------------------------------------------------------
Audio
description
Venue type Average number hardware units
of auditoriums required per
venue type
------------------------------------------------------------------------
Megaplex (16+ auditoriums).............. 18 1
Multiplex (8-15 auditoriums)............ 12 1
Miniplex (2-7 auditoriums).............. 5 1
[[Page 87373]]
Single-Auditorium....................... 1 1
------------------------------------------------------------------------
Tables 14 and 15 below estimate the minimum number of captioning
devices required per venue type. The Department emphasizes that these
figures are merely estimates based on the average number of auditoriums
across each venue type. The exact number of captioning and audio
description devices required at a particular movie theater
establishment depends on the number of auditoriums showing digital
movies.
Table 14--Captioning Device Scoping Requirements per Venue Type
[Estimated]
------------------------------------------------------------------------
Minimum number
of captioning
Venue type devices
required per
venue type
------------------------------------------------------------------------
Megaplex (16+ auditoriums).............................. 12
Multiplex (8-15 auditoriums)............................ 8
Miniplex (2-7 auditoriums).............................. 6
Single-Auditorium....................................... 4
------------------------------------------------------------------------
Table 15--Audio Description Device Scoping Requirements per Venue Type
[Estimated]
------------------------------------------------------------------------
Minimum
number of
audio
Venue type Average number description
of auditoriums devices
required per
venue type
------------------------------------------------------------------------
Megaplex (16+ auditoriums).............. 18 9
Multiplex (8-15 auditoriums)............ 12 6
Miniplex (2-7 auditoriums).............. 5 3
Single-Auditorium....................... 1 2
------------------------------------------------------------------------
Finally, the unit costs for the necessary equipment are presented
in table 16, Table 17, Table 18, and Table 19 below. This information
was provided in NATO's public comment on the 2014 NPRM. For further
detail regarding the unit costs used to develop the total equipment
acquisition costs estimate, please see section 3.4 of the Final RA.
Table 16--Captioning Hardware Unit Costs
------------------------------------------------------------------------
Cost per
Technology captioning
hardware unit
------------------------------------------------------------------------
Doremi Captiview........................................ $864
USL..................................................... 1,371
Sony.................................................... 500
Average (Excluding Sony)................................ 1,118
Average (All Technologies).............................. 912
------------------------------------------------------------------------
[[Page 87374]]
Table 17--Additional Cost for Audio Description Hardware
------------------------------------------------------------------------
Cost per
theater for
Technology audio
description
hardware
------------------------------------------------------------------------
Doremi Captiview........................................ $615
USL..................................................... 0
Sony.................................................... 0
Average (Excluding Sony)................................ 308
Average (All Technologies).............................. 205
------------------------------------------------------------------------
Table 18--Captioning Device Unit Costs
------------------------------------------------------------------------
Cost per
Technology captioning
device
------------------------------------------------------------------------
Doremi Captiview........................................ $453
USL..................................................... 479
Sony.................................................... 1,250
Average (Excluding Sony)................................ 466
Average (All Technologies).............................. 727
------------------------------------------------------------------------
Table 19--Audio Description Device Unit Costs
------------------------------------------------------------------------
Cost per audio
Technology description
device
------------------------------------------------------------------------
Doremi Captiview........................................ $121
USL..................................................... 69
Sony.................................................... 300
Average (Excluding Sony)................................ 95
Average (All Technologies).............................. 163
------------------------------------------------------------------------
In addition to incurring upfront costs, movie theaters will also
incur ongoing costs to comply with the final rule. Table 20 below
presents the estimated total ongoing costs and the annual ongoing costs
that the average movie theater within each venue type will incur over
the 15-year period of analysis. More detailed information about how
these costs were calculated can be found in section 3.6 (replacement
costs), section 3.7 (training costs), and section 3.8 (maintenance and
administrative costs) of the Final RA.
Table 20--Average per Movie Theater Ongoing Costs by Venue Type in Primary Analysis, Undiscounted
[$]
----------------------------------------------------------------------------------------------------------------
Total
Total maintenance
Venue type replacement Total staff and Total ongoing Ongoing costs
costs training costs administrative costs per year
costs
----------------------------------------------------------------------------------------------------------------
Megaplex........................ $46,957 $7,058 $11,952 $65,968 $4,398
Multiplex....................... 31,373 4,705 7,999 44,077 2,938
Miniplex........................ 19,255 1,961 4,296 25,512 1,701
Single-Auditorium............... 7,566 392 1,556 9,514 634
----------------------------------------------------------------------------------------------------------------
* Totals may differ due to rounding.
Table 21 summarizes the estimated per movie theater costs by venue
type, as explained above and in further detail in section 4.1.4 of the
Final RA. The first column in table 21 presents the average upfront
costs (acquisition, installation) by venue type while the second column
shows the average ongoing annual costs (replacement, training, and
maintenance and administrative costs) by venue type. The rightmost
column shows the total undiscounted cost to an average theater by venue
type over the 15-year period of analysis.
[[Page 87375]]
Table 21--Average per Movie Theater Costs, Undiscounted
[$]
----------------------------------------------------------------------------------------------------------------
Average annual per
Average per theater ongoing
theater upfront costs Total per theater
Venue type costs (replacement, costs over period
(acquisition, training, of analysis
installation) maintenance and
administrative)
----------------------------------------------------------------------------------------------------------------
Megaplex............................................ $27,358 $4,398 $93,325
Multiplex........................................... 18,309 2,938 62,386
Miniplex............................................ 9,834 1,701 35,346
Single-Auditorium................................... 3,562 634 13,076
----------------------------------------------------------------------------------------------------------------
The FRFA quantifies the impact on small entities by calculating the
average upfront costs and the ongoing costs as a percentage of average
annual revenue. As presented in the table above, the per movie theater
costs are calculated by venue type. However, the SUSB program provides
no information regarding the venue types operated by firms in each
revenue category. As a result, the analysis uses the following
information to estimate the venue types operated by firms in each
revenue category:
The average annual revenue per auditorium is approximately
$200,000 to $250,000.\32\
---------------------------------------------------------------------------
\32\ NATO, Attachment A, Spring 2014 Accessibility Survey
Results, submitted in RIN 1190-AA63, CRT Docket No. 126,
Nondiscrimination on the Basis of Disability by Public
Accommodations--Movie Theaters; Movie Captioning and Audio
Description, available at https://www.regulations.gov/contentStreamer?documentId=DOJ-CRT-2014-0004-0401&attachmentNumber=3&disposition=attachment&contentType=pdf (last
visited Sept. 12, 2016).
---------------------------------------------------------------------------
Industry research indicates that the firms with the
largest annual revenue operate most megaplex and multiplex movie
theaters, whereas the firms with smaller annual revenues operate most
miniplex and single-auditorium movie theaters.
Based on this information, the FRFA makes the following assumptions
regarding the venue types operated by firms in each revenue category:
Firms with less than $499,999 in annual revenue operate
single-auditorium movie theaters.\33\ As presented in table 9, firms
with less than $100,000 in annual revenue have an average annual
revenue of $54,065 per theater; firms with $100,000 to $499,999 in
annual revenue have an average annual revenue of $251,651 per theater.
These average revenue figures are close to or below NATO's estimated
annual revenue per auditorium.
---------------------------------------------------------------------------
\33\ According to the 2012 SUSB, firms with less than $499,999
in annual revenue operated 19.3 percent of all establishments in
2012. See U.S. Census Bureau, Statistics of U.S. Businesses,
available at https://www.census.gov/econ/susb/ (see Data by
Enterprise Receipt Size, U.S., 6-digit NAICS) (last visited Sept.
12, 2016). The information is available in an Excel file which lists
all information by NAICS Code. The relevant NAICS Code for Motion
Picture Theaters (except Drive-Ins) is 512131. This figure is
slightly less than the estimate in table 10, which finds that 21
percent of all movie theaters are single-auditorium.
---------------------------------------------------------------------------
Firms with annual revenues from $500,000 to $999,999
operate miniplex movie theaters (2-7 auditoriums). The average annual
revenue in this category is $714,762, which is equivalent to the
revenue generated by approximately three auditoriums according to
NATO's estimated annual revenue per auditorium.
Firms with annual revenues between $1 million and $2.5
million operate miniplex and multiplex movie theaters. Costs to firms
with annual revenues between $1 million and $2.5 million are an average
of the costs to miniplex and multiplex movie theaters.
Firms with annual revenues between $2.5 million and $40
million operate multiplex and megaplex movie theaters. Costs to firms
with revenues between $2.5 million and $40 million are estimated using
a weighted average \34\ of the costs to multiplex and megaplex movie
theaters based on the number of movie theaters presented in table 10.
---------------------------------------------------------------------------
\34\ According to table 10, there are approximately 2,405
megaplex and multiplex theaters, of which 712 are megaplexes and
1,693 are multiplexes. The weighted average assumes that 30 percent
of the movie theaters in this revenue category are megaplex movie
theaters (712/2,405) and 70 percent are multiplex movie theaters
(1,693/2,405).
---------------------------------------------------------------------------
Using the above assumptions, table 22 presents the estimated
upfront and ongoing annual costs for small entity movie theater firms,
grouped into four revenue categories.
Table 22--Venue Type, Upfront Costs, and Ongoing Costs by Revenue Category in FRFA
----------------------------------------------------------------------------------------------------------------
Estimated
Estimated annual
Venue type used to estimate upfront costs ongoing costs
Firms with annual revenue of costs to firms to average to average
movie theater movie theater
establishment establishment
----------------------------------------------------------------------------------------------------------------
Less than $499,999............................ Single-Screen................... $3,562 $634
$500,000 to $999,999.......................... Miniplex........................ 9,834 1,701
$1,000,000 to $2,499,999...................... Miniplex/Multiplex.............. * 14,071 * 2,320
$2,500,000 to $39,999,999..................... Multiplex/Megaplex.............. ** 20,987 ** 3,370
----------------------------------------------------------------------------------------------------------------
* Average of Miniplex/Multiplex costs.
** Weighted Average of Multiplex and Megaplex costs based on number of theaters (table 10).
Table 23 below shows the upfront costs as a percentage of annual
revenue for firms by revenue category. The average costs per firm are
derived from the average number of establishments per firm (first
column) and the average upfront costs per theater for each revenue
category (second column). As the table shows, the upfront costs make
[[Page 87376]]
up less than 1.5 percent of annual revenue for all firms except those
with revenues of less than $100,000. For all firms with revenues of
$2,500,000 or greater, the upfront cost was less than 1 percent of
annual revenues.
As discussed previously, the data from the 2012 SUSB that is
provided in this section also includes data from movie theaters
operating auditoriums that exhibit analog movies exclusively, which are
not subject to the requirements of this rulemaking. Based on its own
independent research and analysis, the Department believes that most
firms with annual revenue less than $100,000 are not subject to the
requirements of this rule. Although the FRFA calculates the costs as a
percent of annual revenue for this category of firms, the information
available to the Department supports its view that most of these firms
are likely operating single auditoriums that exhibit analog movies
exclusively and are therefore not subject to the requirements of this
rule. First, according to industry experts, the average annual revenue
per auditorium is approximately $200,000 to $250,000, thus making it
reasonable to assume that firms with annual revenue less than $100,000
operate single-auditorium movie theaters. Second, the Department
received information from industry experts that the majority of single-
auditorium movie theaters still use analog projection systems. Third,
commenters indicated that the remaining movie theaters with analog
projection systems have not converted to digital projection systems
because they cannot afford the high cost to do so ($60,000 to $150,000
per auditorium \35\). Therefore, it is reasonable to assume that most
of the movie theater firms with less than $100,000 in annual revenue
operate movie theaters with analog auditoriums that are not subject to
this rulemaking. In addition, all movie theaters with auditoriums
exhibiting digital movies--including any firms with less than $100,000
in annual revenue--continue to have available to them the
individualized and fact-specific undue burden limitation specified in
Sec. 36.303(a).
---------------------------------------------------------------------------
\35\ See Helen Alexander & Rhys Blakely, The Triumph of Digital
Will Be the Death of Many Movies, New Republic (Sep. 12, 2014),
available at https://www.newrepublic.com/article/119431/how-digital-cinema-took-over-35mm-film (last visited Sept. 12, 2016).
Table 23--Average Upfront Costs as a Percentage of Annual Revenue per Firm, by Revenue Category, Undiscounted
[2015 $]
----------------------------------------------------------------------------------------------------------------
Upfront costs
Establishments Average upfront Average Average as a
Revenue category per firm costs per upfront costs revenue per percentage of
establishment per firm firm revenue
----------------------------------------------------------------------------------------------------------------
Less than $100,000 *........ 1.01 $3,562 $3,591 $54,508 6.6
$100,000 to $499,999........ 1.02 3,562 3,631 256,537 1.4
$500,000 to $999,999........ 1.06 9,834 10,456 714,762 1.5
$1,000,000 to $2,499,999.... 1.15 14,071 16,223 1,542,318 1.1
$2,500,000 to $4,999,999.... 1.51 20,987 31,732 3,394,864 0.9
$5,000,000 to $7,499,999.... 1.89 20,987 39,575 5,497,029 0.7
$7,500,000 to $9,999,999.... 2.58 20,987 54,124 7,697,211 0.7
$10,000,000 to $14,999,999.. 4.12 20,987 86,368 12,013,115 0.7
$15,000,000 to $19,999,999.. 4.56 20,987 95,606 14,200,444 0.7
$20,000,000 to $24,999,999.. 6.00 20,987 125,920 14,314,600 0.9
$25,000,000 to $29,999,999.. 11.00 20,987 230,853 22,734,000 1.0
$30,000,000 to $34,999,999.. 16.50 20,987 346,280 ** n/a ** n/a
$35,000,000 to $39,999,999.. 8.00 20,987 167,893 27,514,000 0.6
----------------------------------------------------------------------------------------------------------------
* Likely firms operating single-auditorium movie theaters that exhibit analog movies exclusively, and therefore
not subject to this rulemaking.
** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
Table 24 presents the average annual ongoing cost as a percentage
of average annual revenue for firms in each revenue category. For all
firms, except those with annual revenues of $100,000 or less, annual
ongoing costs make up less than 0.3 percent of annual revenue.
Table 24--Average Annual Ongoing Costs as a Percentage of Annual Revenue per Firm, by Revenue Category,
Undiscounted
[2015 $]
----------------------------------------------------------------------------------------------------------------
Average Annual ongoing
Establishment/ ongoing costs Average annual Average cost as a
Revenue category firm per ongoing cost revenue per percentage of
establishment per firm firm revenue
----------------------------------------------------------------------------------------------------------------
Less than $100,000 *............ 1.01 $634 $639 $54,508 1.2
$100,000 to $499,999............ 1.02 634 647 256,537 0.3
$500,000 to $999,999............ 1.06 1,701 1,808 714,762 0.3
$1,000,000 to $2,499,999........ 1.15 2,320 2,674 1,542,318 0.2
$2,500,000 to $4,999,999........ 1.51 3,370 5,096 3,394,864 0.2
$5,000,000 to $7,499,999........ 1.89 3,370 6,356 5,497,029 0.1
$7,500,000 to $9,999,999........ 2.58 3,370 8,692 7,697,211 0.1
$10,000,000 to $14,999,999...... 4.12 3,370 13,870 12,013,115 0.1
$15,000,000 to $19,999,999...... 4.56 3,370 15,354 14,200,444 0.1
[[Page 87377]]
$20,000,000 to $24,999,999...... 6.00 3,370 20,222 14,314,600 0.1
$25,000,000 to $29,999,999...... 11.00 3,370 37,074 22,734,000 0.2
$30,000,000 to $34,999,999...... 16.50 3,370 55,611 ** n/a ** n/a
$35,000,000 to $39,999,999...... 8.00 3,370 26,963 27,514,000 0.1
----------------------------------------------------------------------------------------------------------------
* Likely firms operating single-auditorium movie theaters that exhibit analog movies exclusively, and therefore
not subject to this rulemaking.
** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.
E. Reporting, Recordkeeping, and Other Compliance Requirements
The final rule imposes no new recordkeeping or reporting
requirements. However, the final rule does require that movie theaters
disclose to the public information concerning the availability of
captioning and audio description for movies shown in their auditoriums.
Specifically, Sec. 36.303(g)(8) of the final rule requires movie
theaters to inform the public of the availability of captioning and
audio description on all notices of movie showings and times at the box
office and other ticketing locations, on Web sites and mobile apps, in
newspapers, and over the telephone. This requirement applies to any
movie theater showing digital movies with captioning and audio
description on or after January 17, 2017. Notices of movie showings and
times posted by third parties not subject to or under the control of a
covered movie theater are not subject to this requirement.
As discussed throughout the Final RA, movie theaters, including
small entities, may incur costs as a result of complying with the final
rule. These costs are detailed in section 7.4 of the Final RA and
section VI.D above but do not include the costs associated with the
notice requirement. As discussed in section V.A.3 above, the Department
expects that the additional cost and burden of noting which screenings
will be captioned or audio-described is de minimis when a movie theater
is already preparing a communication listing movie titles and screening
times. Therefore, the Department anticipates that the costs and burdens
associated with this requirement will also be de minimis for small
entities.
Additionally, the Department does not expect that movie theater
personnel will need to acquire additional professional skills to comply
with this requirement. A specific form of notice is not required. Movie
theaters routinely use ``CC'' and ``AD'' or ``DV'' to indicate the
availability of closed movie captioning and audio description in their
communications, and the Department's research indicates that the
inclusion of such abbreviations does not require additional technical
knowledge. Moreover, the movie exhibition industry has largely moved
away from print advertising in favor of digital advertising. As one
commenter indicated, digital advertising allows movie theaters to add
information concerning the availability of captioning and audio
description without much difficulty or cost.
More detailed information on the estimated burden and costs
associated with the final rule's notice requirement is provided in the
Department's 60-day Paperwork Reduction Act Notice published in the
Federal Register on June 10, 2016. 81 FR 37643. The Department
published a second notice in the Federal Register on August 30, 2016.
81 FR 59657. The 30-day comment period for the second notice closed on
September 29, 2016.
F. Measures Taken To Limit Impact on Small Entities
The Department is aware of potential limitations to compliance for
small entities--specifically, small movie theater firms with less than
$38.5 million in annual revenue--and has taken measures to lessen the
impact on those entities. In addition to soliciting comments regarding
methods to reduce the regulatory impact on small movie theaters, the
Department also participated in a roundtable sponsored by the Office of
Advocacy of the SBA at which organizations representing small movie
theaters as well as individual owners expressed their views. As a
result of the information provided, the Department considered a variety
of alternatives in the final rule. The different alternatives
considered and their relevance to small movie theaters are summarized
below. See chapter 6 of the Final RA for further information and detail
regarding the alternatives that the Department considered.
Changes to the Compliance Date
In the final rule, movie theaters have 18 months to acquire and
install the necessary equipment to provide closed movie captioning and
audio description in their auditoriums exhibiting digital movies. The
Department also considered other compliance windows, including a 6-
month and a 2-year compliance window. Some commenters suggested that
the Department defer the requirements of this rule for small movie
theaters with annual revenue less than $500,000 because these movie
theaters might have financial difficulty complying with the
requirements.
The Department ultimately decided that an 18-month compliance date
was the most appropriate choice for all movie theaters exhibiting
digital movies and is only deferring application of the rule's
requirements for movie theater auditoriums that exhibit analog movies
exclusively. The Department's decision regarding the 18-month
compliance date in the final rule is based on the Department's
independent research and the information provided in comments during
the 2014 NPRM comment period. Based on this information, the Department
determined that 6 months may be an insufficient amount of time for
movie theaters to comply with the requirements of this rulemaking,
especially small movie theaters. However, the Department believes that
an 18-month compliance date gives small movie theaters, especially
those struggling financially as a result of the unrelated costs of
digital conversion, a sufficient amount of time to plan and budget
accordingly. Although some commenters suggested a deferral for a
category of smaller movie theaters, the Department found that to be
unnecessary because movie theaters do not have to comply with
requirements of the final rule to the extent that
[[Page 87378]]
complying would constitute an undue burden or a fundamental alteration.
Changes to the Scoping Requirements
In the 2014 NPRM, the Department proposed scoping requirements for
captioning devices based on the number of seats in a movie theater,
which were equivalent to approximately 2 percent of seats. The
Department further proposed that movie theaters maintain one audio
description device per auditorium, with a minimum of two devices per
movie theater. However, in light of the public comments received and
proposals made by the movie exhibition industry and multiple disability
advocacy groups, those scoping requirements have been reduced in the
final rule. Because movie theaters are rarely at 100 percent occupancy,
the Department determined that the number of seats within a movie
theater is an inappropriate proxy for determining the number of
captioning devices required. One commenter noted that the scoping
requirements based on seat count could disproportionately impact small
movie theaters because many single-auditorium movie theaters are
historic establishments with many seats but low occupancy rates.
Additionally, usage data indicates that audio description devices are
used less frequently than the proposed scoping required. As a result,
the Department adopted lower scoping requirements for both captioning
and audio description devices based on the number of auditoriums
showing digital movies within a movie theater. The reduced scoping in
the final rule substantially lowers costs per movie theater and thus
reduces burdens on small movie theaters.
Auditoriums Exhibiting Analog Movies Exclusively
The Department considered giving movie theaters with auditoriums
equipped to exhibit analog movies exclusively 4 years to comply with
the rule's requirements, as opposed to deferring the decision whether
to engage in rulemaking with respect to such auditoriums (see section
1.4.1 and section 6.3 of the Final RA). Based on public comments and
analysis of the most current data, the Department ultimately decided to
defer analog auditoriums from coverage of this rule. As previously
discussed, the movie industry continues to undergo significant changes
in the production and distribution of movies, resulting in the near
elimination of first-run movies in analog film format. Most movie
theaters have converted to digital projection systems to the extent
that they are financially able to do so, and as a result, small
theaters that still have analog projection systems tend to have fewer
financial resources than other movie theaters. The Department rejected
the alternative 4-year compliance date for analog movie theaters and is
deferring until a later date the decision whether to apply the rule's
requirements to movie theater auditoriums exhibiting analog movies
exclusively. Because the remaining analog movie theaters likely qualify
as small entities, the deferral of rulemaking with respect to analog
auditoriums will reduce the burdens on small movie theaters.
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 42 U.S.C. 12186 and 12205a,
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 amended as follows:
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
0
1. The authority citation for part 36 is revised to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b),
12205a.
Subpart A--General
0
2. In Sec. 36.303:
0
a. Redesignate paragraph (g) as paragraph (h); and
0
b. Add new paragraph (g) to read as follows:
Sec. 36.303 Auxiliary aids and services.
* * * * *
(g) Movie theater captioning and audio description--(1)
Definitions. For the purposes of this paragraph (g)--
(i) Analog movie means a movie exhibited in analog film format.
(ii) Audio description means the spoken narration of a movie's key
visual elements, such as the action, settings, facial expressions,
costumes, and scene changes. Audio description generally requires the
use of an audio description device for delivery to a patron.
(iii) Audio description device means the individual device that a
patron may use at any seat to hear audio description.
(iv) Captioning device means the individual device that a patron
may use at any seat to view closed movie captioning.
(v) Closed movie captioning means the written display of a movie's
dialogue and non-speech information, such as music, the identity of the
character who is speaking, and other sounds or sound effects. Closed
movie captioning generally requires the use of a captioning device for
delivery of the captions to the patron.
(vi) Digital movie means a movie exhibited in digital cinema
format.
(vii) Movie theater means a facility, other than a drive-in
theater, that is owned, leased by, leased to, or operated by a public
accommodation and that contains one or more auditoriums that are used
primarily for the purpose of showing movies to the public for a fee.
(viii) Open movie captioning means the written on-screen display of
a movie's dialogue and non-speech information, such as music, the
identity of the character who is speaking, and other sounds and sound
effects.
(2) General. A public accommodation shall ensure that its movie
theater auditoriums provide closed movie captioning and audio
description whenever they exhibit a digital movie that is distributed
with such features. Application of the requirements of paragraph (g) of
this section is deferred for any movie theater auditorium that exhibits
analog movies exclusively, but may be addressed in a future rulemaking.
(3) Minimum requirements for captioning devices. A public
accommodation shall provide a minimum number of fully operational
captioning devices at its movie theaters in accordance with the
following Table:
------------------------------------------------------------------------
Minimum
required
Number of movie theater auditoriums exhibiting digital number of
movies captioning
devices
------------------------------------------------------------------------
1....................................................... 4
2-7..................................................... 6
8-15.................................................... 8
16 +.................................................... 12
------------------------------------------------------------------------
(4) Minimum requirements for audio description devices. (i) A
public accommodation shall provide at its movie theaters a minimum of
one fully operational audio description device for every two movie
theater auditoriums exhibiting digital movies and no less than two
devices per movie theater. When calculation of the required number of
devices results in a fraction, the next greater whole number of devices
shall be provided.
[[Page 87379]]
(ii) A public accommodation may comply with the requirements in
paragraph (g)(4)(i) of this section by using the existing assistive
listening receivers that the public accommodation is already required
to provide at its movie theaters in accordance with Table 219.3 of the
2010 Standards, if those receivers have a minimum of two channels
available for sound transmission to patrons.
(5) Performance requirements for captioning devices and audio
description devices. Each captioning device and each audio description
device must be properly maintained by the movie theater to ensure that
each device is fully operational, available to patrons in a timely
manner, and easily usable by patrons. Captioning devices must be
adjustable so that the captions can be viewed as if they are on or near
the movie screen, and must provide clear, sharp images in order to
ensure readability of captions.
(6) Alternative technologies. (i) A public accommodation may meet
its obligation to provide captioning and audio description in its movie
theaters to persons with disabilities through any technology so long as
that technology provides communication as effective as that provided to
movie patrons without disabilities.
(ii) A public accommodation may use open movie captioning as an
alternative to complying with the requirements specified in paragraph
(g)(3) of this section, either by providing open movie captioning at
all showings of all movies available with captioning, or whenever
requested by or for an individual who is deaf or hard of hearing prior
to the start of the movie.
(7) Compliance date for providing captioning and audio description.
(i) A public accommodation must comply with the requirements in
paragraphs (g)(2)-(6) of this section in its movie theaters that
exhibit digital movies by June 2, 2018.
(ii) If a public accommodation converts a movie theater auditorium
from an analog projection system to a system that allows it to exhibit
digital movies after December 2, 2016, then that auditorium must comply
with the requirements in paragraph (g) of this section by December 2,
2018, or within 6 months of that auditorium's complete installation of
a digital projection system, whichever is later.
(8) Notice. On or after January 17, 2017, whenever a public
accommodation provides captioning and audio description in a movie
theater auditorium exhibiting digital movies, it shall ensure that all
notices of movie showings and times at the box office and other
ticketing locations, on Web sites and mobile apps, in newspapers, and
over the telephone, inform potential patrons of the movies or showings
that are available with captioning and audio description. This
paragraph does not impose any obligation on third parties that provide
information about movie theater showings and times, so long as the
third party is not part of or subject to the control of the public
accommodation.
(9) Operational requirements. On or after January 17, 2017,
whenever a public accommodation provides captioning and audio
description in a movie theater auditorium exhibiting digital movies, it
shall ensure that at least one employee is available at the movie
theater to assist patrons seeking or using captioning or audio
description whenever a digital movie is exhibited with these features.
Such assistance includes the ability to--
(i) Locate all necessary equipment that is stored and quickly
activate the equipment and any other ancillary systems required for the
use of the captioning devices and audio description devices;
(ii) Operate and address problems with all captioning and audio
description equipment prior to and during the movie;
(iii) Turn on open movie captions if the movie theater is relying
on open movie captioning to meet the requirements of paragraph (g)(3)
of this section; and
(iv) Communicate effectively with individuals with disabilities,
including those who are deaf or hard of hearing or who are blind or
have low vision, about how to use, operate, and resolve problems with
captioning devices and audio description devices.
(10) This section does not require the use of open movie captioning
as a means of compliance with paragraph (g) of this section, even if
providing closed movie captioning for digital movies would be an undue
burden.
0
3. Appendix F to part 36 is added to read as follows:
Appendix F to Part 36--Guidance and Section-by-Section Analysis
Section 36.303(g)(1) Definitions
In the Notice of Proposed Rulemaking, 79 FR 44976 (Aug. 1, 2014)
(NPRM), the Department proposed Sec. 36.303(g)(1), which set forth
definitions for certain terms specifically referenced in paragraph
(g). The Department sought public comment on these proposed
definitions.
``Analog Movie''
Although the Department did not specifically propose a
definition of ``analog movie'' in the NPRM, the Department defined
the term in the preamble and solicited comment on the state of
analog movies and their availability. In the final rule, the
Department has added a definition of ``analog movie'' in order to
distinguish between movies shown in digital cinema format and movies
shown in analog format. ``Analog movie'' is defined to mean ``a
movie exhibited in analog film format.''
``Audio Description''
In the NPRM, the Department used the term ``audio description''
to refer to the spoken description of information describing the
visual elements of a movie to an individual who is blind or has low
vision and who is unable to see the images and action on the screen.
Proposed Sec. 36.303(g)(1)(i) defined ``audio description'' 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.''
Although the Department believes that the term ``audio description''
is most commonly used to describe this service, it sought public
comment on whether to use this or some other nomenclature.
All commenters addressing this issue agreed with the
Department's proposal and supported the use of the term and the
Department's definition. In the final rule, the Department has
retained the term ``audio description,'' and has slightly modified
the definition for clarity to read as follows: ``Audio description
means the spoken narration of a movie's key visual elements, such as
the action, settings, facial expressions, costumes, and scene
changes. Audio description generally requires the use of an audio
description device for delivery to a patron.''
``Audio Description Device''
In the NPRM, at proposed Sec. 36.303(g)(1)(iii), the Department
used the term ``individual audio description listening device'' to
refer to the ``individual device that patrons may use at their seats
to hear audio description.'' The sole commenter on this definition
expressed concern that the term ``individual audio description
listening device'' was unnecessarily long. The Department agrees
with the commenter and has revised the name of the device
accordingly in the final rule. The final rule retains the text of
the proposed definition with minor edits.
``Captioning Device''
In the NPRM, at proposed Sec. 36.303(g)(1)(iv), the Department
used the term ``individual captioning device'' to refer to the
``individual device that patrons may use at their seats to view the
closed captions.'' The sole commenter on this definition recommended
that the Department shorten the nomenclature for this device to
``captioning device.'' The Department agrees with the commenter and
has revised the name of the device accordingly in the final rule.
The final rule retains the text of the proposed definition with
minor edits.
[[Page 87380]]
``Closed Movie Captioning''
The NPRM defined ``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).'' The NPRM
further provided that closed movie captioning be available only to
individuals who request it, and that, generally, it requires the use
of an individual captioning device to deliver the captions to the
patron.
Commenters were equally split as to whether the Department
should use ``closed movie captioning'' or some other language to
refer to the technology. Some commenters urged the Department to use
the term ``closed captioning.'' Other commenters disagreed, however,
and stated that the Department should avoid using the term ``closed
captioning'' to distinguish it from the ``closed captioning'' that
is turned on at home by a person viewing the television. In the
final rule, the Department is retaining the term ``closed movie
captioning,'' but the definition is modified for clarity to read:
``Closed movie captioning means the written display of a movie's
dialogue and non-speech information, such as music, the identity of
the character who is speaking, and other sounds or sound effects.
Closed movie captioning generally requires the use of a captioning
device for delivery of the captions to the patron.''
``Digital Movie''
The Department has added a definition of ``digital movie,''
meaning ``a movie exhibited in digital cinema format.''
``Movie Theater''
The NPRM proposed defining ``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'' in order to make clear
which facilities are subject to the specific captioning and audio
description requirements set forth in Sec. 36.303(g). The
Department intended this definition to exclude drive-in movie
theaters as well as facilities that screen movies if the facility is
not used primarily for the purpose of showing movies for a fee, such
as museums, hotels, resorts, or cruise ships, even if they charge an
additional fee. The Department asked for public comment on the
proposed definition and whether it adequately described the movie
theaters that should be covered by this regulation.
Commenters generally supported the Department's proposed
definition for ``movie theater,'' but there were some concerns about
the proposed definition's scope. Some commenters asserted that the
definition of ``movie theater'' should be expanded to include the
institutions that the Department expressly excluded, such as
museums, hotels, resorts, cruise ships, amusement parks, and other
similar public accommodations that show movies as a secondary
function, whether or not they charge a fee. One commenter expressed
concern that such entities might believe that they are otherwise
exempt from any requirement to furnish auxiliary aids and services
to ensure effective communication, and another commenter urged the
Department to consider developing additional regulations that would
specifically address public accommodations that are not covered by
the proposed definition but otherwise exhibit movies or other video
content.
The Department declines to make any changes at this time to
address public accommodations that do not meet the definition of
``movie theater'' and are, therefore, not subject to the
requirements of paragraph (g). The Department's title III regulation
has always made clear that all public accommodations 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. A. The requirements of this rule were not intended
to supplant the general obligation to provide effective
communication through the provision of auxiliary aids and services.
They are only intended to provide clarity about how ``movie
theaters'' must meet this obligation. The Department notes that many
public accommodations that screen movies as a secondary function
already provide appropriate auxiliary aids and services, and where
the Department has identified the need for enforcement action, these
types of public accommodations have been willing to comply with the
ADA and the effective communication requirement. See, e.g., Press
Release, U.S. Department of Justice, Justice Department Reaches
Settlement with National Museum of Crime and Punishment to Improve
Access for People with Disabilities (Jan. 13, 2015), available at
https://www.justice.gov/opa/pr/justice-department-reaches-settlement-national-museum-crime-and-punishment-improve-access (last visited
Sept. 12, 2016).
Two commenters asked the Department to revise the definition of
``movie theater'' to clarify that public accommodations used as
temporary screening locations during film festivals, such as pop-up
tents, convention centers, and museums with theaters, are not
subject to the requirements of paragraph (g). According to such
commenters, most movies screened at festivals are not ready for
distribution, and typically have not yet been distributed with
captioning and audio description. To the extent a film is already
distributed with these features, the commenters argued that the
myriad of logistics entailed in coordinating a festival may preclude
a film festival from making such features available.
The Department does not believe that its definition of ``movie
theater'' encompasses the temporary facilities described by the
commenters that host film festivals. However, operators of film
festivals, just like any other public accommodation that operates a
place of entertainment, are still subject to the longstanding
general requirement under Sec. 36.303 to provide effective
communication unless doing so would be a fundamental alteration of
the program or service or would constitute an undue burden.
Moreover, if a festival programmer schedules the screening of a
movie that is already distributed with captioning and audio
description at a movie theater that is subject to the requirements
in paragraph (g), then the effective communication obligation would
require the festival to ensure that the accessible features are
available at all scheduled screenings of a movie distributed with
such features.
The Department also received several comments regarding the
exclusion of drive-in movie theaters in the proposed definition.
Many commenters agreed that drive-in movie theaters should not be
subject to the requirements of paragraph (g) because the technology
still does not exist to exhibit movies with closed movie captioning
and audio description in this setting. A few commenters pointed out
innovative ways for drive-in movie theaters to provide captioning
and audio description and argued that such options are feasible. For
example, one commenter suggested that drive-in movie theaters
provide audio description through a second low-power FM broadcast
transmitter or on a second FM channel. However, these commenters did
not clearly identify technology that is currently available or under
development to provide closed movie captioning in this setting.
Finally, one commenter expressed concern that if audio description
was broadcast at a drive-in theater, it would likely be heard by
patrons who do not require audio description and would result in a
fundamental alteration of the movie-going experience for such
patrons.
The Department declines to change its position that drive-in
movie theaters should be excluded from the requirements of paragraph
(g). Given the diminishing number of drive-in movie theaters, the
current lack of accessible technology to provide closed movie
captioning and audio description in this setting, and the fact that
it is unlikely that such technology will be developed in the future,
the Department remains convinced that rulemaking regarding drive-in
movie theaters should be deferred until the necessary technology
becomes commercially available.
For the reasons discussed above, the Department has retained the
text of the proposed definition of ``movie theater'' with minor
edits. The final rule defines ``movie theater'' as ``a facility,
other than a drive-in theater, that is owned, leased by, leased to,
or operated by a public accommodation and that contains one or more
auditoriums that are used primarily for the purpose of showing
movies to the public for a fee.''
``Open Movie Captioning''
The NPRM proposed defining ``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 movie theater.''
While commenters were evenly split on whether the new regulation
should use the term ``open movie captioning'' or ``open
captioning,'' the Department chose the former to avoid confusion and
emphasize that the term refers only to captioning provided at movie
theaters. The final rule defines ``open movie captioning'' as ``the
written on-screen display of a movie's dialogue and non-speech
information, such
[[Page 87381]]
as music, the identity of the character who is speaking, and other
sounds and sound effects.''
Section 36.303(g)(2) General
In the NPRM, the Department proposed at Sec. 36.303(g)(2)(i)
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.'' That
paragraph further provided that in all cases where the movies the
theater intends to exhibit are produced, distributed, or otherwise
made available with closed movie captions, the public accommodation
must ensure that it acquires the captioned version of those movies
and makes closed movie captions available at all scheduled
screenings of those movies. An identical provision requiring movie
theaters to exhibit movies with audio description was proposed at
Sec. 36.303(g)(3)(i). The Department proposed applying the
requirements for closed movie captioning and audio description to
all movie screens (auditoriums) in movie theaters that show digital
movies and sought public comment as to the best approach to take
with respect to movie theaters that show analog movies. The
Department sought public comment on whether it should adopt one of
two options regarding the specific obligation to provide captioning
and audio description at movie theater auditoriums that display
analog movies. Option 1 proposed covering movie theater screens
(auditoriums) that display analog movies but giving them 4 years to
come into compliance with the requirements of Sec. 36.303(g).
Option 2 proposed deferring the decision whether to apply the rule's
requirements to movie theater screens (auditoriums) showing analog
movies and considering additional rulemaking at a later date.
Many commenters generally agreed with the provisions as they
related to movie theaters displaying digital movies. These
commenters stressed, however, that movie theaters should in no way
be prohibited or limited from exhibiting a movie that is not
available with captioning or audio description, or be required to
add captioning and audio description when these features are not
available.
Commenters were split in response to the Department's question
concerning the best approach to take with respect to analog movie
theaters. A slight majority of commenters supported deferral for
movie theater auditoriums that exhibit analog movies exclusively. In
support of Option 2, these commenters pointed to the state of the
movie industry, the financial condition of many small movie
theaters, and the unintended consequences of a 4-year compliance
date. According to the comments, there are very few remaining movie
theaters that display analog movies exclusively, and despite the
industry's urging that such movie theaters must convert to digital
to remain viable, many of these movie theaters have not converted
because they cannot afford the high cost to do so. Therefore, these
commenters argued that a regulation covering analog movie theaters
will have minimal overall impact in addition to being an unnecessary
strain on small businesses, considering the high cost of compliance
for such movie theaters.
The remaining commenters responding to this question stated that
the Department should adopt Option 1's 4-year compliance date for
movie theaters displaying analog movies. These commenters reasoned
that fairness and equality concerns justified adoption of Option 1
because, in their view, Option 2 could incentivize more movie
theaters to delay their digital conversion, resulting in fewer movie
theaters being subject to the regulation, and individuals with
hearing and vision disabilities continuing to face unequal access to
movie theaters. A few disability groups argued that because a movie
theater is subject to title III of the ADA regardless of whether it
displays analog movies or digital movies, adoption of Option 2 could
be seen as carving out an exception within the ADA where none exists
otherwise.
In consideration of these comments and the Department's
independent research, the Department has decided to defer until a
later date the decision whether to engage in rulemaking with respect
to movie theater auditoriums that exhibit analog movies exclusively.
Thus, the final rule makes clear that the requirements of paragraph
(g) apply only to movie theaters with auditoriums that show digital
movies. The Department agrees with commenters that very few analog
movie theaters remain, and that the number of such movie theaters
has declined rapidly in recent years. The Department believes that
it is prudent to wait until it is clear whether there will be any
movie theaters that continue to show analog movies and whether
analog movies will continue to be produced at all, or distributed
with captioning and audio description. Although movie theater
auditoriums that exhibit analog movies exclusively are not subject
to the specific requirements of paragraph (g) at this time, such
movie theaters are nonetheless public accommodations and subject to
the effective communication requirements of title III.
The final rule provides that ``[a] public accommodation shall
ensure that its movie theater auditoriums provide closed movie
captioning and audio description whenever they exhibit a digital
movie that is distributed with such features. Application of the
requirements of paragraph (g) is deferred for any movie theater
auditorium that exhibits analog movies exclusively, but may be
addressed in a future rulemaking.''
The requirements of paragraph (g) do not in any way prohibit a
movie theater from displaying a movie that has not been made
available with captioning and audio description features nor do the
requirements require a movie theater to independently add such
features to a movie that is not distributed with such features. In
addition, all movie theaters, regardless of size, status of
conversion to digital cinema, or economic viability, continue to
have available to them the individualized and fact-specific undue
burden limitation specified in Sec. 36.303(a). This regulation does
not change the availability of this compliance limitation nor the
circumstances under which it can be asserted. See 28 CFR 36.104
(defining undue burden and listing factors to be considered in
determining whether an action would result in an undue burden). 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
initially install captioning and audio description equipment in all
of its auditoriums because it is an undue burden, the movie theater
is still obligated to comply with renumbered Sec. 36.303(h) and
provide alternatives to full compliance by providing captioning and
audio description in some of its auditoriums up to the point where
the cost becomes an undue burden. In such a situation, the movie
theater should take steps to maximize the range of movie options for
customers who are deaf or hard of hearing, or blind or have low
vision, by dispersing the available equipment throughout their
auditoriums so that the theater is able to exhibit as many movies as
possible with captioning and audio description throughout the day
and evening on weekdays and weekends. If, for example, a six-
auditorium movie theater can only afford to install captioning
equipment in half of its auditoriums, and it has auditoriums with
different capacities, it should install captioning equipment in a
large, a medium, and a small auditorium. This distribution of
equipment would permit exhibition of different types of movies, as
blockbusters generally are shown in larger auditoriums first and
lower budget or older movies may only be shown in medium or small
auditoriums.
It has been, and continues to be, the Department's position that
it would not be a fundamental alteration of the business of showing
movies in theaters to exhibit movies already distributed with closed
movie captioning and audio description in order to ensure effective
communication for individuals who are deaf or hard of hearing, or
blind or have low vision. The service that movie theaters provide is
the screening or exhibiting of movies. The use of captioning and
audio description 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 such auxiliary aids is
the means by which these individuals gain access to movie theaters'
services and thereby achieve the ``full and equal enjoyment,'' 42
U.S.C. 12182(a), of the screening of movies. See, e.g., Brief for
the United States as Amicus Curiae Supporting Appellants and Urging
Reversal at 15-17, Arizona ex rel. Goddard v. Harkins Amusement
Enters., Inc., 603 F.3d 666 (9th Cir. 2010) (No. 08-16075); see also
NPRM, 79 FR 44976, 44982-83 (Aug. 1, 2014). The Department received
no public comments challenging that position.
Section 36.303(g)(3) Minimum Requirements for Captioning Devices
In the NPRM, the Department proposed that movie theaters be
required to have available a minimum number of captioning devices
equal to approximately half the number of assistive listening
receivers already mandated for assembly areas by sections 219 and
706 of the 2010 Standards.
[[Page 87382]]
The calculation was based on a movie theater's total seating
capacity and 2010 Census data estimating that 3.1 percent of the
U.S. population ages 15 and older (7.6 million) has difficulty
hearing. See U.S. Census Bureau, U.S. Department of Commerce, P70-
131, Americans with Disabilities: 2010 Household Economic Studies at
8 (2012), available at https://www.census.gov/prod/2012pubs/p70-131.pdf (last visited Sept. 12, 2016). Thus, the proposed Sec.
36.303(g)(2)(iii)(A) required that a movie theater maintain
captioning devices for approximately 2-4 percent of all available
seats and stated that: ``a public accommodation that owns, leases,
leases to, or operates a movie theater shall provide individual
captioning devices in accordance with the following Table [below].
This requirement does not apply to movie theaters that elect to
exhibit all movies at all times at that facility with open movie
captioning.''
------------------------------------------------------------------------
Minimum required number of
Capacity of seating in movie theater individual captioning devices
------------------------------------------------------------------------
100 or less............................ 2.
101 to 200............................. 2 plus 1 per 50 seats over 100
seats or a fraction thereof.
201 to 500............................. 4 plus 1 per 50 seats over 200
seats or a fraction thereof.
501 to 1000............................ 10 plus 1 per 75 seats over 500
seats or a fraction thereof.
1001 to 2000........................... 18 plus 1 per 100 seats over
1000 seats or a fraction
thereof.
2001 and over.......................... 28 plus 1 per 200 seats over
2000 seats or a fraction
thereof.
------------------------------------------------------------------------
The Department received more than 70 comments on its proposed
scoping requirements for captioning devices. All commenters
disagreed with the formula in the NPRM, and with the exception of a
very few individuals and a law school clinic, commenters uniformly
maintained that the Department's proposed requirements substantially
overestimated the number of captioning devices necessary for a
variety of reasons.
Many commenters asserted that seating capacity does not equate
with the need for captioning devices because movie theaters are
rarely at 100 percent seat occupancy, and not all Americans attend
the movies simultaneously. They stressed that even at peak
attendance times (weekends), average seat occupancy rates are
substantially less than half of capacity while small movie theaters
in rural areas with one or two auditoriums report even lower
attendance rates. Other commenters noted that old historic theaters
often have large seating capacities, despite low attendance rates.
And some noted that at large, multi-auditorium complexes, not all
auditoriums are simultaneously in use at all times. Thus, these
commenters asserted that average movie attendance during weekend
hours, not the number of theater seats, most accurately predicts
anticipated demand for captioning devices.
Some commenters maintained that the Department's proposed
scoping requirements significantly overestimated the need for
captioning devices because the percentage of persons in the
population who have difficulty hearing does not reflect those who
will actually benefit from or use the devices. In their view,
captioning devices will not be used by the vast majority of
individuals who are deaf or hard of hearing because such devices are
only needed by persons who have ``severe'' difficulty hearing, and
assistive listening receivers, which amplify the volume of sound,
are already required and available at movie theaters. These
commenters also cited statistics showing that a significant
percentage of Americans do not attend the movies at least once a
year, and while hearing loss disproportionately affects seniors,
they represent a smaller proportion of persons who actually attend
the movies.
Commenters also stressed that in their experience, the
Department's proposed scoping requirements for captioning devices
far exceed demand in those movie theaters that currently stock and
advertise the availability of such devices. To support this
conclusion, NATO offered device usage data from five movie theater
companies (which included a small business with a total screen
(auditorium) count in the 1-75 range, three regional companies with
a total screen (auditorium) count in the 300-700 range, and a
national company with a 2000+ screen (auditorium) count) that stock
and advertise the availability of captioning devices on their Web
sites, at ticket counters, and on third-party Web sites. According
to NATO, that data showed that even though four of these five
companies stocked far fewer captioning devices than the NPRM
proposed, actual demand rarely, if ever, exceeded supply even at
peak attendance times. Other movie theaters and a trade association
also submitted tracking records to confirm the same.
Several commenters objected to the Department's proposed scoping
requirements because they provided a fixed, nonadjustable number
that was not tied to actual consumer demand and failed to account
for variations in attendance based on theater location and patron
demographics. These commenters noted that while movie theaters near
areas with a high concentration of residents or students who are
deaf or hard of hearing may experience greatest demand for devices,
a movie theater in a small rural area may have only a few requests.
Many commenters also expressed concern that because the Department's
proposed scoping requirements would result in the vast majority of
movie theaters having to purchase expensive technology far in excess
of what is needed or would be used, those movie theaters would
likely avoid investing in new, superior technology as it becomes
available.
Although commenters overwhelmingly disagreed with the
Department's proposed approach to scoping, most did not suggest a
formula for determining the number of captioning devices that should
be required. Instead, they recommended that the number of required
devices be based on one or more factors, including actual or average
weekend movie attendance, percentage of individuals who have severe
hearing difficulty and will likely use the devices, demand for
devices, number of movie theater seats, screen count, and patron
demographics. For example, a Federal agency recommended that the
Department set scoping requirements in accordance with the optimal
number of devices sufficient to provide accessibility to the
disability community (based on relevant factors such as device
usage, demand, and weekend theater attendance) while minimizing the
burden on small businesses. A few movie theaters maintained that any
minimum device requirement would be a waste of resources and
unnecessary because movie theaters seek to satisfy their patrons'
needs, and as a result, many already advertise and provide
captioning devices upon request.
NATO and four advocacy groups representing persons who are deaf
or hard of hearing \1\ submitted a Joint Comment offering a three-
tiered approach to scoping that was referenced and supported by many
commenters. First, the Joint Comment recommended that movie theaters
obtain a minimum number of captioning devices based on the number of
screens (auditoriums) displaying digital movies, in accordance with
the following:
\1\ Those advocacy groups are the National Association of the
Deaf, the Hearing Loss Association of America, the Association of
Late Deafened Adults, and the Alexander Graham Bell Association for
the Deaf and Hard of Hearing.
---------------------------------------------------------------------------
Single Screen: 4 devices
Miniplex (2-7 screens): 6 devices
Multiplex (8-15 screens): 8 devices
Megaplex (16+ screens): 12 devices
Second, in order to address the limited circumstances when
demand for captioning devices exceeds minimum requirements, the
Joint Comment proposed that movie theaters record weekend demand for
captioning devices and adjust the number of devices biannually to be
equal to 150 percent of the average weekend demand during a 6-month
tracking period. For example, under this formula, a movie theater
that is initially required to have 6 devices and calculates an
average actual weekend demand of 8 devices during a tracking period
must increase the number of available devices to 12 (150 percent of
8). Finally, the Joint Comment recommended that the Department
require every movie theater company to submit an annual report of
its tracking records to the Department.
After considering all comments, census data, statistics
regarding movie theater attendance, actual usage data, and its
[[Page 87383]]
independent research, the Department has modified its approach to
captioning device scoping and has adopted a final rule that requires
movie theaters to have on hand the minimum number of captioning
devices proposed in the Joint Comment. Thus, the final rule at
renumbered Sec. 36.303(g)(3)(i) states that ``[a] public
accommodation shall provide a minimum number of fully operational
captioning devices at its movie theaters in accordance with the
following Table:''
------------------------------------------------------------------------
Minimum
required
Number of movie theater auditoriums exhibiting digital number of
movies captioning
devices
------------------------------------------------------------------------
1....................................................... 4
2-7..................................................... 6
8-15.................................................... 8
16+..................................................... 12
------------------------------------------------------------------------
The Department imposes these requirements because its own
research and analysis confirms that they will easily satisfy maximum
weekend demand for captioning devices at movie theaters across the
nation in almost every location. Thus, the Department believes that
the final rule obligates movie theaters to provide the optimum
number of captioning devices sufficient to provide accessibility to
individuals with disabilities who will need and use them, without
requiring movie theaters to purchase equipment that may likely never
be used.
Despite NATO's and a number of other comments to the contrary,
the Department has also decided not to impose specific requirements
at this time for providing additional captioning devices when actual
demand for them exceeds the rule's minimum requirements. While the
Department acknowledges that there are a few movie theaters located
in areas where there is an unusually high concentration of
individuals who are deaf or hard of hearing, comments, usage data,
and independent research all indicate that only in those rare
circumstances is there a reasonable possibility that regular demand
for devices may exceed the rule's minimum requirements. That same
information also reflects that many movie theaters located in
markets that consistently have an unusually large number of patrons
with hearing difficulties are already making voluntary efforts to
satisfy consumer demand. For example, because open movie captioning
is popular with many movie patrons who are deaf or hard of hearing,
some movie theaters near schools that educate persons who are deaf
provide open-captioned screenings on-demand, or in accordance with a
convenient, regular, and frequent schedule. In any event, the
Department currently lacks adequate information and data to craft an
appropriate standard to address these situations.
In addition, the Department decided not to impose a
recordkeeping requirement on movie theaters at this time, even
though some commenters suggested that the Department do so in order
to require movie theaters to keep records of actual demand for
devices. The NPRM did not solicit information about existing movie
theater recordkeeping practices with respect to the provision of
assistive listening receivers or captioning and audio description
devices, and the Department lacks adequate data as to the costs and
the burdens of imposing such a requirement on all movie theaters.
Moreover, the Department has not previously imposed this type of
recordkeeping requirement on public accommodations, and it declines
to do so without more information about the need and the costs. The
Department intends, however, to reach out to stakeholders in the
future and obtain additional information about whether it should
consider engaging in supplemental rulemaking regarding a
recordkeeping requirement and imposing a standard that addresses
situations when actual demand exceeds the rule's minimum
requirements.
In the interim, for those movie theaters that are located in the
few places where there is an unusually high concentration of
individuals who are deaf or hard of hearing, the Department strongly
encourages these public accommodations to voluntarily work with the
local disability community to identify and maintain an appropriate
number of captioning devices, or to utilize other approaches,
including open movie captioning, to satisfy their patrons' regular
and actual demand.
Section 36.303(g)(4) Minimum Requirements for Audio Description 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, movie theaters must provide a reasonable number of audio
description devices. In the NPRM, the Department proposed at Sec.
36.303(g)(3)(ii)(A) that movie theaters maintain one audio
description device per auditorium, with a minimum of two devices per
movie theater. However, the Department noted at proposed Sec.
36.303(g)(3)(ii)(B) that ``[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.'' The
Department theorized that many movie theaters utilized the newer,
multi-channel assistive listening receivers, and as a result, most
movie theaters would not be required to purchase additional devices
in order to comply with this requirement.
The Department received extensive comments regarding the
proposed scoping for audio description devices. Although commenters
overwhelmingly supported the proposed rule's goal of ensuring access
to audio description in movie theaters, only three commenters agreed
with the proposed scoping.
Several commenters recommended a greater number of audio
description devices than the Department proposed in the NPRM to
accommodate an increase in the number of individuals who are blind
or have low vision who will likely attend the movies if accessible
technologies are available. A few commenters recommended two audio
description devices per auditorium, citing a movie theater's usage
data to support the suggestion. One commenter, concerned that a
movie theater should be able to accommodate a larger group of blind
or visually impaired movie patrons, recommended at least eight audio
description devices per movie theater, or two devices per
auditorium, whichever is greater. Finally, one commenter proposed
requiring three audio description devices per auditorium to
accommodate a larger user pool, and to counteract a reduction in
available devices that may arise in the event of equipment failure,
or when devices are being recharged.
The majority of commenters, however, stated that the recommended
scoping was excessive and too inflexible. These commenters reasoned
that the proposed scoping failed to consider attendance variability
or demographics, and inhibited movie theaters from moving devices
between locations to effectively meet demographic needs. Commenters
recommended basing the number of required audio description devices
on factors such as weekend attendance, annual attendance, tracked
usage rates, and market demand. The Department received a large
number of comments from movie theaters stating that current requests
by patrons for audio description devices are extremely low.
Additionally, a trade association submitted comments stating that
member companies reported signing out a maximum of 1-4 audio
description devices at any time, and that these companies never had
more requests for devices than the number of devices available.
Based on this information, the trade association recommended that
the Department require one audio description device for every two
auditoriums, with a minimum of two devices per movie theater.
In addition to comments criticizing the proposed scoping,
commenters also addressed the Department's belief that most movie
theaters utilize multi-channel headsets to meet their assistive
listening device obligations. A couple of movie theaters indicated
that they have the dual-channel receivers. However, a trade
association commented that many movie theaters still rely on single-
channel headsets to meet their assistive listening device
obligations and that the Department erred in assuming that most
movie theaters would not need to buy additional devices in order to
comply with these scoping requirements.
In consideration of the comments received and the Department's
independent research, the Department has adjusted the required
number of audio description devices to one device for every two
auditoriums. The Department believes that the available data
supports its view that the revised scoping ensures that movie
theaters will have available an adequate number of devices without
requiring movie theaters to purchase more equipment than is likely
necessary. The final rule at renumbered Sec. 36.303(g)(4)(i) reads
as follows: ``A public accommodation shall provide at its movie
theaters a minimum of one fully operational audio description device
for every two movie theater auditoriums exhibiting digital movies
and no less than two devices per movie theater. When calculation of
the required
[[Page 87384]]
number of devices results in a fraction, the next greater whole
number of devices shall be provided.'' The Department has retained
the provision in proposed Sec. 36.303(g)(3)(ii)(B) regarding the
use of multi-channel assistive listening receivers to meet this
requirement. The Department notes that if movie theaters are
purchasing new receivers to replace existing single-channel
receivers, they may choose to purchase two-channel receivers and
then use them to meet both their requirements to provide assistive
listening receivers and audio description devices if use of the two-
channel receivers is compatible with their audio description and
assistive listening systems. The Department does not, however,
intend this provision to discourage movie theaters from using
induction loop systems for sound amplification while using a
different system for transmission of audio description. Renumbered
Sec. 36.303(g)(4)(ii) states that ``[a] public accommodation may
comply with the requirements in paragraph (g)(4)(i) by using the
existing assistive listening receivers that the public accommodation
is already required to provide at its movie theaters in accordance
with Table 219.3 of the 2010 Standards, if those receivers have a
minimum of two channels available for sound transmission to
patrons.''
Section 36.303(g)(5) Performance Requirements for Captioning Devices
and Audio Description Devices
In the NPRM, the Department proposed performance requirements
for the individual devices used by movie patrons at their individual
seats. Proposed Sec. 36.303(g)(2)(iii)(B) stated that the
individual devices needed to be adjustable; be available to patrons
in a timely manner; provide clear, sharp images; be properly
maintained; and be easily usable by the patron in order to ensure
effective communication.
While the comments were generally supportive of the existence of
performance requirements, there were differences of opinion
expressed about the specifics of this provision. Some commenters
supported the Department's language, but others expressed concern
that the requirements as written were vague and subjective. For
example, a few commenters proposed that the Department define
specific quantifiable and technical standards, and several
commenters suggested that the Department develop a program to
encourage the development of better accessibility technology due to
their concerns associated with the design and quality of current
technology.
The Department also received conflicting comments with respect
to adding requirements beyond those proposed in the NPRM. Several
commenters suggested that the Department require captioning devices
to have an adjustable font size while many disagreed, stating that
an adjustable font size requirement would be problematic. Other
commenters believed that the Department should require that all
devices be clean, in addition to being available and functional.
Commenters also suggested requiring quality assurance procedures,
frequent testing, and regular maintenance schedules to ensure that
the devices are functional and deliver complete and accurate
captions and audio description. One commenter encouraged the
Department to require that movie theaters maintain the most recent
technology in a range of device styles and consult with customers
and consumer groups to decide which devices to purchase. Although
the NPRM language focused on captioning devices, many of the
comments urged the Department to ensure that both captioning and
audio description devices are maintained and readily available.
After considering all comments, the Department has decided to
retain the performance requirements as proposed in the NPRM with
minor structural edits and to make clear that the requirements for
maintenance and timely availability apply to both types of devices.
The Department declines to impose any additional requirements
related to ensuring the functionality of the captioning and audio
description devices provided by movie theaters. The rule imposes the
responsibility on movie theaters to ensure that the equipment is
fully operational (meets all of the performance requirements in the
regulation) and available. The Department believes that movie
theaters are able to determine the best approach for ensuring
compliance with the regulatory requirements and notes that Sec.
36.211(b) (Maintenance of accessible features) ``does not prohibit
isolated or temporary interruptions in service or access due to
maintenance or repairs.''
The Department also declines to include specific technical
specifications regarding the captioning and audio description
devices. The Department notes that its approach to performance
requirements for captioning and audio description devices is similar
to the approach the Department took with respect to performance
standards for video remote interpreting services. See Sec.
36.303(f).
The Department also declines to impose an obligation that movie
theaters must upgrade to the most recent technology. While the
Department is in favor of technological development, such a
requirement is beyond the scope of this regulation. Additionally,
the Department believes that many of the concerns about current
devices raised by commenters (e.g., poor power connection or poor
signal) are adequately addressed by the requirements in paragraphs
(g)(3) through (5)--that devices be fully operational and
maintained.
Renumbered Sec. 36.303(g)(5) of the final rule retains the
performance requirements proposed in the NPRM, but it has been
restructured for clarity.
Section 36.303(g)(6) Alternative Technologies
Although commenters on the 2010 Advance Notice of Proposed
Rulemaking, 75 FR 43467 (July 26, 2010) (ANPRM), encouraged the
Department to require open movie captioning at movie theaters, the
Department declined to make such a proposal in the NPRM, noting that
in the debate leading up to passage of the ADA, the House Committee
on Education and Labor explicitly stated that ``[o]pen-captioning,
for example, of feature films playing in movie theaters, is not
required by this legislation.'' H.R. Rep. No. 101-485, pt. 2, at 108
(1990). The Senate Committee on Labor and Human Resources included a
statement in its report on the ADA to the same effect. S. Rep. No.
101-116, at 64 (1989). As the House Committee also recognized,
however, ``technological 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.'' H.R. Rep. No. 101-485, pt.
2, at 108.
The Department included a provision in the NPRM giving movie
theater owners and operators the choice to use other technologies to
comply with the captioning and audio description requirements of
this rule. Proposed Sec. 36.303(g)(2)(ii) provided 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 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.''
Commenters disagreed on whether this provision struck an
appropriate balance between the cost to movie theaters, the benefit
to individuals with hearing and vision disabilities, and the impact
on the movie-going experience for individuals without disabilities.
The majority of comments on this provision concerned open movie
captioning. Although some commenters expressed concern that an open-
movie-captioning requirement would have an impact on the cinematic
experience of hearing patrons, most commenters argued that the
Department should require open movie captioning. Several open-movie-
captioning requirements were proposed by commenters, including:
Requiring open movie captioning at 100 percent of showings;
requiring one open-captioned movie per day; requiring dedicated
open-captioned auditoriums; or requiring open movie captioning if
closed movie captioning is unavailable for any reason. One commenter
who supported an open-movie-captioning requirement asserted that 95
percent of the deaf and hard of hearing community prefers open movie
captioning to the use of captioning devices.
The commenters proposing an open-movie-captioning requirement
ultimately disagreed with the Department's interpretation of the
legislative history as indicating congressional intent that the ADA
did not require the provision of open movie captions at movie
theaters. One commenter reasoned that because modern open movie
captioning is significantly different from the open movie captioning
available in 1990, the legislative history on this point represents
a latent ambiguity. Therefore, in this commenter's view, the
Department is not bound by the legislative history concerning open
movie captioning and is free to require it. Other commenters,
however, agreed with the
[[Page 87385]]
Department's statement in the NPRM and argued that because the
legislative history states that open movie captioning is not
required as a means of compliance with the ADA, the rule should not
mandate any conditions concerning open-captioned showings.
In response to the Department's questions concerning the
parameters of the option to provide open movie captioning rather
than closed movie captioning, several commenters suggested that the
Department define what constitutes a ``timely request'' when a movie
patron requests open movie captioning. These commenters provided a
variety of suggestions, which ranged from the specific (e.g., 1 hour
or 1 day before the showing) to the ambiguous (e.g., it should be
reasonably easy).
Other comments also addressed whether the Department adequately
addressed new technology. One commenter agreed that the ``different
technology'' language encompassed any future technology, but further
suggested that the effectiveness of new technologies should be
judged from the baseline of ``as effective as captioning and/or
audio description devices.'' Other commenters disagreed and
criticized the rule for not addressing other currently available
technologies, such as hearing loop systems,
InvisivisionTM glasses, or smart phone applications.
After considering all of the comments, the Department has
decided to retain the option to comply with the captioning and audio
description requirements of this rule through the use of any other
technology that is or becomes available to provide effective
communication to patrons with hearing and vision disabilities,
including open movie captioning. The Department has clarified,
however, that in those circumstances where a public accommodation
chooses to use open movie captioning at all showings of all movies
available with captioning or at all times it receives a request to
turn on open movie captions prior to the start of the movie, it is
not also required to comply with the specific requirement to obtain
captioning devices. However, if a public accommodation only makes
open movie captioning available to patrons who are deaf or hard of
hearing at some showings of movies available with captioning, it
will still have to comply with the requirements to provide
captioning devices because it must provide effective communication
at all showings of all movies available with captioning.
The Department has made other changes to the structure and
language of this provision in response to comments and to better
preserve the intent and longevity of this paragraph. The final rule
now reads ``through any technology,'' instead of ``through use of
different technology.'' Although the Department declines to endorse
specific technologies, the Department believes that the revised
language better articulates the purpose of this paragraph to
encompass current and future technologies that may serve individuals
with hearing and vision disabilities. The requirement that public
accommodations provide auxiliary aids and services to ensure
communication as effective as that provided to movie patrons without
disabilities remains unchanged as that is the standard for effective
communication required by Sec. 36.303(c). See 28 CFR part 36, app.
C (explaining that public accommodations must provide appropriate
auxiliary aids and services ``to ensure that communication with
persons with disabilities is as effective as communication with
others'').
The Department maintains its view that Congress did not intend
the ADA to require movie theaters to provide open movie captioning.
Although the technology to provide open movie captioning has changed
and enables movie theaters to provide the service more easily, open
movie captioning as it exists today remains visible to all movie
patrons and has not changed in this respect. As a result, the
Department's position remains consistent with the legislative
history on this point, and the final rule retains the language (with
some minor edits) in proposed Sec. 36.303(g)(2)(ii), which provided
that ``[o]pen 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.'' In the final rule, however, the
Department has moved this language to new Sec. 36.303(g)(10).
The revised provision addressing other technologies, renumbered
in the final rule as Sec. 36.303(g)(6), enables a public
accommodation to meet its obligation to provide captioning and audio
description through alternative technologies that provide effective
communication for movie patrons with hearing and vision
disabilities. Section 36.303(g)(6) further provides that a public
accommodation may use open movie captioning as an alternative to
complying with the captioning device scoping requirements of this
rule by providing open movie captioning at all showings, or whenever
requested by or for an individual who is deaf or hard of hearing.
Section 36.303(g)(7) Compliance Date for Providing Captioning and Audio
Description
In the NPRM, the Department proposed at Sec. 36.303(g)(4)(i)
that all movie theaters with auditoriums displaying digital movies
must comply with the requirements of the rule within 6 months of the
publication date of the final rule. The Department also proposed to
give movie theaters that converted their auditoriums with analog
projection systems to digital projection systems after the
publication date of the rule an additional 6 months from the date of
conversion to comply with the rule's requirements. Although the
Department expressed the belief that 6 months was sufficient time
for movie theaters to order and install the necessary equipment,
train employees on how to use the equipment and assist patrons in
using it, and notify patrons of the availability of these services,
the Department requested public comment on the reasonableness of a
6-month compliance date.
The Department received many comments both against and in favor
of the proposed 6-month compliance date. A minority of comments from
a few disability advocacy groups and a few private citizens
supported the proposed 6-month compliance date. These commenters
asserted that because most movie theaters had already committed to
providing captioning and audio description to their patrons by the
end of 2014, the 6-month compliance date was, in their view,
reasonable.
The vast majority of commenters, however, asserted that 6 months
was not enough time for the remaining movie theaters to comply with
the requirements of this rule. These comments raised concerns about
manufacturers' ability to sustain the sudden, increased demand that
the scoping requirements would likely create for captioning and
audio description devices. Industry commenters stated that movie
theaters already experience considerable delays between order date
and delivery date and that, with increased demand and a limited
supply, the prices of these devices would likely increase,
especially for lower volume purchasers. Industry commenters further
advised the Department that a trained technician must install the
captioning and audio description equipment and that their experience
indicates that there is a waiting period for such services.
Commenters also expressed concern that the compliance date proposed
in the NPRM was drastically different from the phased compliance
date proposed in the ANPRM and that the Department's rationale for
the change was insufficient.
Finally, some commenters expressed concern that small movie
theaters in particular would have difficulty complying with the
requirements of the rule within the proposed 6-month compliance
date. Commenters advised that small movie theaters would need
additional time to raise the necessary funds or adjust their budgets
in order to purchase the equipment.
Based on these concerns, commenters offered a variety of
alternative compliance dates. The Joint Comment suggested that the
Department require movie theaters to issue purchase orders for the
equipment within 6 months of the final rule's publication, but
require fully functional and operational devices and trained staff
either within 2 years of the final rule's publication or 6 months of
system delivery, whichever came first. Other commenters suggested
compliance dates ranging from 1 year to 4 years. One major movie
theater chain in particular recommended an 18-month compliance date,
stating that this is the amount of time that it currently takes to
order and install the necessary equipment. Some commenters suggested
a sliding compliance schedule based on a movie theater's gross
revenue or a movie theater's size, and others suggested a phased
compliance date similar to the schedule articulated in the ANPRM.
In consideration of these comments and the Department's
independent research, the Department agrees that 6 months may be an
insufficient amount of time for movie theaters to comply with the
requirements of paragraph (g) of this section, and the Department
instead will require compliance beginning 18 months from the date of
publication of the final rule. The Department believes that an 18-
month compliance period
[[Page 87386]]
sufficiently accounts for potential delays that may result from
manufacturer backlogs, installation waitlists, and other
circumstances outside a movie theater's control. This date also
gives small movie theaters that are financially impacted as a result
of the unrelated costs of digital conversion a sufficient amount of
time to plan and budget accordingly. The Department declines to
include a requirement that movie theaters issue purchase orders for
the equipment within 6 months of the final rule's publication
because such a requirement is unenforceable without imposing
recordkeeping and reporting requirements.
The final rule continues to provide additional time for movie
theaters converting their auditoriums from analog projection systems
to digital projection systems after the publication date of the
final rule. Once the installation of a digital projection system is
complete, meaning that the auditorium has installed the equipment
needed to exhibit a digital movie, the movie theater has at least an
additional 6 months to ensure compliance with the requirements of
the rule and provide closed movie captioning and audio description
when showing digital movies in that auditorium. Renumbered Sec.
36.303(g)(7)(ii) states that ``[i]f a public accommodation converts
a movie theater auditorium from an analog projection system to a
system that allows it to exhibit digital movies after December 2,
2016, then that auditorium must comply with the requirements in
paragraph (g) of this section by December 2, 2018, or within 6
months of that auditorium's complete installation of a digital
projection system, whichever is later.'' The Department believes
that this approach will provide movie theaters in the process of
converting to digital projection after the publication date of the
rule a sufficient amount of time to acquire the necessary equipment
to provide captioning and audio description.
Section 36.303(g)(8) Notice
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 NPRM, the Department proposed at
Sec. 36.303(g)(5) that movie theaters provide information regarding
the availability of captioning and audio description for each movie
in communications and advertisements intended to inform potential
patrons of movie showings and times and provided by the theaters
through Web sites, posters, marquees, newspapers, telephone, and
other forms of communication.
Commenters on the NPRM unanimously supported the inclusion of
some form of a notice requirement in the final rule but differed on
the scope of that requirement. Some commenters supported requiring
notice in all places where a captioned or audio-described movie is
advertised, and another commenter asked the Department to include as
many forms of communication as possible in the language of the final
rule, including mobile phone applications. These commenters reasoned
that individuals who are deaf or hard of hearing, or blind or have
low vision, should be able to find this information easily. Several
other commenters, however, asked the Department to limit the notice
requirement to the box office, ticketing locations, and the movie
theater's Web site. Although such commenters raised concerns about
the high cost associated with a requirement that covers all
communications and advertisements, they offered no other rationale
for why they were proposing a limited requirement.
In addition to the scope of the requirement, commenters also
addressed the form of the notice required. One commenter requested
that the Department require a uniform notice by all movie theaters,
and another commenter suggested that the Department require movie
theaters to include within the notice the universal symbols for
captioning and audio description as well as the type of device
available.
Other commenters pointed to industry realities in order to
highlight their concerns with the proposed provision. Some
commenters expressed concern that movie theaters would be liable for
a third party's failure to include information about captioning and
audio description availability in their communications although
movie theaters lack control over these communications. Commenters
also advised the Department that there may be circumstances where
compliance with the notice requirement would be difficult for some
types of media. These commenters contend, for example, that movie
theaters often book a film without knowing whether it is captioned
or audio-described and that print deadlines may materialize before
that information is available.
After considering these comments and the information available
to the Department, the Department has revised its proposed notice
language. The Department agrees that notice may not be necessary on
all forms of communications and advertisements but disagrees that
the notice obligation should be limited only to the box office,
ticketing locations, and the movie theater's Web site. For example,
telephone recordings serve an especially important medium of
communication for individuals who are blind or have low vision and
who may not utilize Web-based or print media to access information
concerning movie showings. Similarly, newspapers serve an especially
important medium of communication for individuals who may not use
Web-based media generally. Moreover, according to the Department's
research, movie theaters utilize proprietary mobile phone
applications to inform potential patrons of movie showings and
times, and some already advertise the availability of captioning and
audio description devices on these applications.\2\ Therefore, the
Department has decided to require movie theaters to provide notice
on communications and advertisements provided at or on any of the
following: The box office and other ticketing locations, Web sites,
mobile apps, newspapers, and the telephone.
---------------------------------------------------------------------------
\2\ The Department's research indicates that the following movie
theater companies operate mobile phone applications and advertise
the availability of captioning and audio description on these
platforms: Regal Entertainment Group, AMC Theatres, Cineplex
Entertainment, and Harkins Theatres. See, e.g., American Multi-
Cinema, Inc., AMC Theatres (Version 5.2.2, 2016) (mobile application
software), available at https://itunes.apple.com/us/app/amc-theatres/id509199715?ls=1&mt=8 (last visited Sept. 12, 2016); Regal
Cinemas, Inc., Regal--Movie Tickets and Showtimes for Regal Cinemas,
United Artists and Edwards Theatres (Version 3.4.2, 2016) (mobile
application software), available at https://itunes.apple.com/us/app/regal-cinemas/id502912815?mt=8 (last visited Sept. 12, 2016).
---------------------------------------------------------------------------
The Department declines to require a specific form of notice to
describe the availability of captioning or audio description. The
Department notes that movie theaters already appear to be using a
relatively uniform method of advising the public about the
availability of captioning and audio description. A review of Web
sites and newspaper advertising indicates that movie theaters
routinely use ``CC'' and ``OC'' to indicate the availability of
closed and open movie captioning and ``AD'' or ``DV'' to indicate
the availability of audio description.
As the Department specifically noted in the NPRM and makes clear
in the final rule, the rule does not impose obligations on
independent third parties that publish information about movies, and
these third parties will not face liability under the ADA if they
fail to include information about the availability of captioning and
audio description at movie theaters.
Renumbered Sec. 36.303(g)(8) of the final rule requires that
whenever a public accommodation provides captioning and audio
description in a movie theater auditorium exhibiting digital movies
on or after January 17, 2017, its notices of movie showings and
times, provided at the box office and other ticketing locations, on
Web sites and mobile apps, in newspapers, and over the telephone,
must inform potential patrons of the movies that are being shown
with captioning and audio description. The final rule further
provides that this obligation does not extend to third parties that
provide information about movie theater showings and times, as long
as the third party is not under the control of the public
accommodation.
This provision applies to movie theaters once they provide
captioning and audio description for digital movies on or after the
effective date of the rule, January 17, 2017. Thus, movie theaters
that already show digital movies with closed movie captions and
audio description must comply with this provision as soon as the
rule takes effect.
Section 36.303(g)(9) Operational Requirements
In response to the ANPRM, 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 movie theater staff know how to operate
captioning and audio description equipment and be able to
communicate with patrons about the use of individual devices. Having
considered those
[[Page 87387]]
comments, the Department included in the NPRM proposed Sec.
36.303(g)(6), which required movie theaters to ensure that at least
one individual was on location at each facility and available to
assist patrons whenever showing a captioned or audio-described
movie. The proposed Sec. 36.303(g)(6) further required that such
individual be able to operate and locate all of the necessary
equipment and be able to communicate effectively with individuals
with hearing and vision disabilities about the uses of, and
potential problems with, the equipment.
All of the comments on the NPRM that addressed this proposed
language acknowledged that staff training regarding the operation of
equipment is vital to the proper functioning of the rule. A number
of 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
captioning devices were kept or how to turn on the captioning or
audio description for the movie. Many of these commenters indicated
that 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.
A handful of commenters requested that the Department expand its
proposed operational requirement, emphasizing concerns about movie
theater staff's current knowledge concerning the operation of
available equipment. One commenter encouraged the Department to
specifically require all movie theater personnel to be properly and
uniformly trained in providing such services, and other commenters
suggested that all movie theater personnel be trained as to the
availability of these services. Other comments encouraged the
Department to enumerate specific requirements to ensure that movie
theater staff is capable of operating the captioning and audio
description equipment, including a requirement that management
document employee training and a requirement that employees receive
periodic refresher courses.
A few commenters questioned the need for the proposed language
in Sec. 36.303(g)(6)(iii), which required movie theaters to
``[c]ommunicate 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.'' One commenter asserted that an ``effective
communication'' requirement in the proposed paragraph (g)(6)(iii)
was superfluous given the overarching requirements in Sec.
36.303(c). Other commenters supported the proposed language, stating
that movie theater staff, including managers, often are not
knowledgeable on how to properly communicate with individuals who
are deaf, hard of hearing, blind, or have low vision. A State
government also pointed out that in Camarillo v. Carrols Corp., 518
F.3d 153, 157 (2d Cir. 2008) (per curiam), the Second Circuit held
that a public accommodation's failure to provide employee training
on effective communication with individuals with disabilities can
constitute a violation of title III, specifically 42 U.S.C.
12182(b)(2)(A)(iii).
The final rule retains the operational requirements proposed in
the NPRM in renumbered Sec. 36.303(g)(9) and adds the requirement
that if a movie theater is relying on open movie captioning to meet
the requirements of paragraph (g)(3), it must also ensure that there
is an employee available at the theater who knows how to turn on the
captions. The Department declines to add a specific requirement that
all personnel be trained, as it believes that it is sufficient if a
movie theater has at least one knowledgeable employee on location at
all times to ensure that the service is available and provided
without interruption. While the Department agrees that it would be a
good idea for movie theaters to implement reasonable staff training
programs and periodic refresher courses, the Department declines to
take these recommendations and has not included in the final rule
specific logistical requirements concerning movie theater staff
training.
The Department has decided to retain in the final rule the
language in proposed Sec. 36.303(g)(6)(iii) requiring movie theater
staff to effectively communicate with individuals who are deaf or
hard of hearing, or blind or have low vision, regarding the uses of,
and potential problems with, the captioning and audio description
devices. The Department notes, however, that communicating
effectively with patrons about the availability of captioning at a
movie theater would not require a movie theater to hire a sign
language interpreter. Communication with a person who is deaf or
hard of hearing about the availability of these services or how to
use the equipment involves a short and relatively simple exchange
and therefore can easily be provided through signage, instructional
guides, or written notes.
Final Sec. 36.303(g)(9) requires that whenever a public
accommodation provides captioning and audio description in a movie
theater auditorium exhibiting digital movies on or after January 17,
2017, at least one theater employee must be available to assist
patrons seeking or using the captioning or audio description
equipment. The employee must be able to quickly locate and activate
the necessary equipment; operate and address problems with the
equipment prior to and during the movie; turn on the open movie
captions if the movie theater is relying on open movie captions to
meet its effective communication requirements; and communicate
effectively with individuals with disabilities about how to use,
operate, and resolve problems with the equipment.
This provision applies to movie theaters once they provide
captioning and audio description for digital movies on or after the
effective date of the rule, January 17, 2017. Thus, movie theaters
that already show digital movies with closed movie captions and
audio description must comply with this provision as soon as the
rule takes effect.
Section 36.303(g)(10)
Section 36.303(g)(10) in the final rule provides that ``[t]his
section does not require the use of open movie captioning as a means
of compliance with paragraph (g), even if providing closed movie
captioning for digital movies would be an undue burden.'' The NPRM
proposed similar language at Sec. 36.303(g)(2)(ii). See discussion
of comments on final Sec. 36.303(g)(6), supra.
Dated: November 21, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-28644 Filed 12-1-16; 8:45 am]
BILLING CODE 4410-13-P
