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

B. Legal foundation for captioning and video description

Creating regulations that would require movie theater owners and operators to exhibit closed captioned and video described movies falls squarely within the requirements of the ADA. Title III of the ADA includes movie theaters within its definition of places of public accommodation. 42 U.S.C. 12181(7). Title III makes it unlawful for places of public accommodation, such as movie theaters, to discriminate against an individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. 12182(a). Moreover, title III prohibits places of public accommodation from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals. 42 U.S.C. 12182(b)(1)(A)(ii). Title III requires places of public accommodation to take "such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently * * * because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden." 42 U.S.C. 12182(b)(2)(A)(iii). The statute defines auxiliary aids to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments" and "taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments." 42 U.S.C. 12103(1)(A)-(B). The Department's title III regulation specifically lists open and closed captioning and audio recordings and other effective methods of making visually delivered materials available to individuals with visual impairments as examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the good or service being offered or would result in an undue burden. 28 CFR 36.303(a). In addition, the Department's title III regulation mandates that if a provision of a particular auxiliary aid or service by a public accommodation would result in a fundamental alteration in the nature of the goods or services being offered or in an undue burden, the public accommodation shall provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods and services offered by the public accommodation. 28 CFR 36.303(f).

While the ADA itself contains no explicit language regarding captioning (or video description) in movie theaters, the legislative history of title III states that "[o]pen-captioning * * * of feature films playing in movie theaters, is not required by this legislation. Filmmakers, are, however, encouraged to produce and distribute open-captioned versions of films, and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films." H.R. Rep. No. 101-485 (II), at 108 (1990); S. Rep. No. 101-116 at 64 (1989). Congress was silent on the question of closed captioning in movie theaters, a technology not yet developed at that time for first-run movies, but it acknowledged that closed captions may be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing. See H.R. Rep. No. 101-485 (II), at 107.[3] In addition, the House Committee stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities." Id. at 108.[4] Similarly, in 1991, the Department stated that "[m]ovie theaters are not required * * * to present open-captioned films," but was silent as to closed captioning. 56 FR 35544, 35567 (July 26, 1991). The Department also noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons who are deaf or hard of hearing. Captioning is one means to make the information accessible to individuals with disabilities." Id.

It is the Department's view that the legislative history of the ADA and the Department's commentary in the preamble to the 1991 regulation make clear that Congress was not requiring open captioning of movies in 1990, but that it was leaving open the door for the Department to require captioning in the future as the technology developed. It is also the Department´s position that neither the ADA nor its legislative history precludes, in any way, issuing regulations regarding video description. To the contrary, given the present state of technology, we believe that requirements of captioning and video description fit comfortably within the statutory text.

In April of this year, the first federal appellate court to squarely address the question of whether captioning and video description are required under the ADA determined that the ADA required movie theatre owner and operator Harkins Amusement Enterprises, Inc., and its affiliates, to screen movies with closed captioning and descriptive narration (video description) unless such owners and operators could demonstrate that to do so would amount to a fundamental alteration or undue burden. Arizona v. Harkins Amusement Enterprises, Inc., -- F.3d. --, 2010 WL 1729606 (9th Cir., April 30, 2010).[5] The Ninth Circuit found that because closed captioning and video descriptions are correctly classified as "auxiliary aids and services" that a movie theater may be required to provide under the ADA, the lower court erred in finding that these services are foreclosed as a matter of law. Id.

 

[3] Congress also was silent regarding requiring video description of movies.

[4] As the district court in Ball v. AMC Entertainment, Inc., 246 F. Supp. 2d 17, 22 (D.D.C. 2003) noted, "Congress explicitly anticipated the situation presented in this case [the development of technology to provide closed captioning of movies]. Therefore, the isolated statement that open captioning of films in movie theaters was not required in 1990 cannot be interpreted to mean that [movie theaters] cannot now be expected and required to provide closed captioning of films in their movie theaters." (Emphasis in original).

[5] This court was guided, in part, by the amicus brief filed by the United States in support of requiring closed captioning and video description.

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