28 CFR Part 36 Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description ANPRM

A. Statutory and Rulemaking History Up to the 2008 NPRM

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires, in pertinent part, newly designed and constructed or altered public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 306(b) of title III directs the Attorney General to promulgate regulations to carry out the provisions of title III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12186(b).

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation––as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)––to comply with the ADA Standards. 42 U.S.C. 12181–89.

On July 26, 1991, the Department issued its final rule implementing title III, which is codified at 28 CFR part 36. Appendix A of the title III regulation, at 28 CFR part 36, contains the ADA Standards for Accessible Design. On September, 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulation to adopt revised ADA Standards based on the relevant parts of the 2004 ADA/ABA Guidelines. 69 FR 58768. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) to adopt the revised ADA Standards and, in pertinent part, revise the title III regulations. 73 FR 34466. The NPRM addressed the issues raised in the public's comments to the ANPRM and sought additional comment.

In that NPRM, the Department stated that it was considering options under which it might require that movie theater owners or operators exhibit movies that are captioned for patrons who are deaf or hard of hearing and movies that provide video (narrative) description[1] for patrons who are blind or have low vision.[2] The Department noted, for example, that technical advances since the early 1990s have made open and closed captioning for movies more readily available and effective. The Department also stated that it understood that the movie industry was transitioning, in whole or in part, to movies in digital format and that movie theater owners and operators were beginning to purchase digital projectors. As noted in that NPRM, movie theater owners and operators with digital projectors may have available to them different options for providing captioning and video description than those without digital projectors. The Department sought comments regarding whether and how to require captioning and video description while the film industry made the transition to digital. Also, the Department stated its concern about the potential cost to exhibit captioned movies, noting that cost may vary depending upon whether open or closed captioning is used and whether or not digital projectors are used, and stated that the cost of captioning must stay within the parameters of the undue burden requirement in 28 CFR 36.303(a). The Department also expressed concerns about the cost of video description equipment but stated that it understood that the cost for video description was less than that for closed captioning. The Department then stated that it was considering the possibility of requiring public accommodations to exhibit all new movies in captioned format and with video description at every showing. The Department indicated that at that time, it anticipated that it would not specify which types of captioning to provide, leaving that to the discretion of the movie theater owners and operators.

The Department received numerous comments urging the Department to issue captioning and video description regulations under the ADA. These comments are discussed infra. Recently, the United States Court of Appeals for the Ninth Circuit held that the ADA required a chain of movie theatres to exhibit movies with closed captioning and video description unless the theaters could show that to do so would amount to a fundamental alteration or undue burden. Arizona v. Harkins Amusement Enterprises, Inc., -- F.3d. --, 2010 WL 1729606 (9th Cir., April 30, 2010). In light of the comments received pursuant to the NPRM, the Ninth Circuit decision, and the additional reasons detailed below, the Department has decided to begin the process of soliciting additional comments and suggestions with respect to what an NPRM regarding captioning and video description should contain.

[1] In the June 17, 2008 NPRM, the Department used the term "narrative description" to define the process and experience whereby individuals who are blind or have low vision are provided with a spoken narrative of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes. In response to comments received from this NPRM, the Department now refers to this process as video description.