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

F. The Department's Rulemaking History Regarding Captioning and Video Description

When the Department issued its September 30, 2004 advance notice of proposed rulemaking (ANPRM), it did not raise movie captioning or video description as potential areas of regulation. Despite that fact, several ANPRM commenters requested that the Department consider regulating in these areas. The Department has determined that since the publication of the 1991 regulation, new "closed" technologies for movie captioning and video description have been developed. By 1997, these technologies were released into the marketplace.[7]

Given the availability of this new technology, mindful that the ADA´s legislative history made clear that the ADA ought not be interpreted so narrowly or rigidly that new technologies are excluded, and aware that assistive listening devices and systems in movie theaters cannot be used to effectively convey the audio content of films for individuals who are deaf or who have severe or profound hearing loss, the Department decided to broach the topic of requiring closed captioning and video description at movie theaters in the 2008 NPRM. The NPRM asked exploratory questions about, but proposed no regulatory text for, movie captioning and video descriptions. The Department received many comments from individuals with disabilities, organizations representing individuals with disabilities, non-profit organizations, state governmental entities, and representatives from movie studios and movie theater owners and operators on these two issues.

Rather than using these comments to formulate a final rule, however, the Department is issuing this supplemental ANPRM for three main reasons. First, the Department wishes to obtain more information regarding several issues raised by commenters that were not contemplated at the time the 2008 NPRM was published. Second, the Department seeks public comment on several technical questions that arose from the research the Department undertook to address some of the issues raised by commenters to the original NPRM. Finally, in the two years that have passed since issuance of the 2008 NPRM, the Department is aware that movie theater owners and operators, particularly major movie theater owners and operators, either have entered into, or had plans to enter into, agreements to convert to digital cinema. However, during this same time period, the United States´ economy, and the profitability of many public accommodations, experienced significant setbacks. The Department wishes to learn more about the status of digital conversion, concrete projections regarding if and when movie theater owners and operators, both large and small, expect to exhibit movies using digital cinema, when such movie theater owners and operators expect to implement digital cinema, by percentages, in their theaters, and any relevant protocols, standards, and equipment that have been developed regarding captioning and video description for digital cinema. In addition, the Department would like to learn if, in the last two years, other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement.

[7] The first feature film with closed captions and video description, The Jackal, was exhibited at a California movie theater in 1997. The Jackal´s release was followed by the release of Titanic – the first major studio direct-release of a movie with closed captioning and video description capabilities.