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

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

Although the 2008 NPRM did not propose any specific regulatory language with regard to movie captioning or video description, the Department sought input from the public as to whether the Department´s regulation should require movie theater owners and operators to exhibit movies that have captioning for patrons who are deaf or hard of hearing and video description for individuals who are blind or have low vision. The Department asked whether, within a year of the revised regulation´s effective date, all new movies should be exhibited with captions and video description at every showing or whether it would be more appropriate to require captions and video description less frequently. The preamble made clear that the Department did not intend to specify which types of captioning to provide and stated that such decisions would be left to the discretion of the movie theater owners and operators.

Individuals with disabilities, advocacy groups, a representative from a non-profit organization, and representatives of state governments, including eleven State Attorneys General, overwhelmingly supported issuance of a regulation requiring movie theater owners and operators to exhibit captioned and video described movies at all showings unless doing so would result in an undue burden or fundamental alteration. These groups noted that although the technology to exhibit movies with captions and video description has been in existence for about ten years, most movie theaters still were not exhibiting movies with captioning and video description. As a result, these groups indicated that they believed regulatory action should not be delayed until the conversion to digital cinema had been completed. One commenter in this group said that because federal law requires movie studios to caption movies prior to their release to cable and television media, see, e.g., 47 CFR 79.1, it made good business sense for studios to caption movies prior to their being released to movie theater owners and operators. Several commenters requested that any regulation include factors describing what constitutes effective captioning and video description, including that captioning be within the same line of sight to the screen as the movie so that individuals who are deaf or hard of hearing can watch the movie and read the captions at the same time, that the captioning be accessible from each seat, that the captions be of sufficient size and contrast to the background so as to be easily readable, and that the recommendations from the Telecommunications and Electronics and Information Technology Advisory Committee (TEITAC) Report to the Access Board that captions be "timely, accurate, complete, and efficient" be included.[8] The Department has carefully considered these requests and believes that more information is required before making a decision as to how many movies should be screened with captioning and video description available and whether factors that describe what constitutes effective captioning and video description would be helpful to movie theater owners and operators and individuals with disabilities.

The State Attorneys General supported the Department´s statement in the 2008 NPRM that the Department did not anticipate specifying which type of captioning to provide or what type of technology to use to provide video description, but would instead leave that to the discretion of the movie theater owners and operators. These State Attorneys General said that such discretion in the selection of the type of technology was consistent with the statutory and regulatory scheme of the ADA and would permit any new regulation to keep pace with future advancements in captioning and video description technology. These same commenters stated that such discretion may result in a mixed use of both closed captioning and open captioning, affording more choices both for the movie theater owners and operators and for individuals who are deaf or hard of hearing. The Department has considered these points and has decided that this ANPRM should request additional comments regarding whether the Department should specifically require closed captioning or permit motion picture owners and operators to choose which type of captioning to provide in order to satisfy any regulatory requirements the Department might impose.

Representatives from the movie theater industry strongly urged the Department not to issue a regulation requiring captioning (but were silent as to requiring video description) at movie theaters. Some industry commenters also opposed any regulation by the Department in this area claiming that since the Access Board has not issued a regulation to require the exhibition of captioned and video described movies in public accommodations, the Department is precluded from so doing. These commenters misunderstood the allocation of regulatory authority under the ADA. The ADA authorizes the Access Board to issue design guidelines for accessible buildings and facilities and requires that the design standards for buildings and facilities included in regulations issued by the Department be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board. See 42 U.S.C. 12186(c). It is beyond the scope of the Access Board´s authority to establish regulations governing aspects of ADA implementation unrelated to design and construction issues. The Department, by contrast, has broad regulatory authority to implement additional provisions of the ADA, including those requiring covered entities to ensure effective communication with their clients and customers.

Industry commenters also said that the cost of obtaining the equipment necessary to display closed captioned and video described movies would constitute an undue burden. One industry commenter stated that the cost of equipment to display both closed captions and video description per screen can approach $11,000, plus additional installation expenses. The Department is aware that there are costs associated with providing closed captioning and video description technology and that for some movie theater owners and operators, particularly independent or very small movie theater companies, obtaining captioning and video description equipment may indeed constitute an undue burden. However, after carefully considering the concerns raised about the costs of implementing captioning and video description technology, the Department needs additional, more specific, and more recent information on the issue of undue burden.

In addition, in an effort to spread out any implementation costs so that costs could be absorbed over time and would lessen any financial impact on theater owners and operators, the Department is considering a provision that would phase in compliance requirements. It is the Department´s intention that such a provision, along with normal swings in supply and demand (e.g., commenters noted that as more theaters purchase closed captioning and video description technologies, their costs will drop), could insulate many movie theater owners and operators from an undue burden.

Some industry commenters argued also that because the industry has made progress in making cinema more accessible without mandates to caption or describe movies, the Department should wait until the movie industry has completed its conversion to digital cinema to regulate. According to a commenter representing major movie producers and distributors, the number of motion pictures produced with closed captioning by its member studios had grown to 88 percent of total releases by the end of 2007, early 2008; the number of motion pictures produced with open captioning by its member studios had grown to 78 percent of total releases by the end of 2007, early 2008; and the number of motion pictures provided with video description has consistently ranged between 50 and 60 percent of total releases. This commenter explained that movie producers and distributors, not movie theater owners and operators, determine whether to caption, what to caption and describe, the type of captioning to use, and the content of the captions and video description script. In addition, the movie studios, not the movie theater owners and operators, assume the costs of captioning and describing movies. This commenter also said that movie theater owners and operators must only purchase the equipment to display the captions and play the video description in their auditoriums. That said, several commenters stated that movie theater owners and operators rarely exhibit the movies with captions or descriptions. They estimated that less than 1 percent of all movies being exhibited in theaters are actually shown with captions.

The Department has carefully considered this information and acknowledges that significant strides have been made by movie producers in terms of furnishing movies that have the potential to make movies more accessible for individuals with disabilities. Despite these strides, however, the percentage of captioned and video described movies actually exhibited or made available in movie theaters appears to be disproportionately low by comparison. The Department is concerned about what appears to be a significant disconnect between the production of movies that have captioning and video description capabilities and the actual exhibition or availability of such movies to individuals with sensory disabilities. The Department also is concerned that even when captioned and video described movies are exhibited, their showings appear to be relegated to the middle of the week or midday showings. Commenters lamented that individuals with disabilities generally do not have the option of attending movies on days and times (e.g., weekends or evenings) when most other moviegoers see movies because movie theaters usually only show captioned or video described movies during the week at off-peak hours. The Department has not been persuaded that movie theaters have made such significant strides in making the current captioning and video description technology available to moviegoers with disabilities that regulatory action in this area would be unnecessary.

Industry commenters have requested that any regulation regarding captioning and video description be timed to occur after the conversion to digital cinema is complete. The Department is aware that in 2005, the movie industry began transitioning away from the exclusive use of analog films to exhibit movies to a digital mode of movie delivery. However, the completion date of that conversion has remained elusive. One industry commenter said while there has been progress in making the conversion, only approximately 5,000 screens, out of 38,794, have been converted, and the cost to make the remaining conversions involves an investment of several billion dollars. Some commenters have suggested that completion of digital conversion may be 10 or more years in the future. The Department also is concerned that because of the high cost of converting to digital cinema (an industry commenter estimated that the conversion to digital costs between $70,000 and $100,000 per screen and that maintenance costs for digital projectors are estimated to run between $5,000 and $10,000 a year, approximately five times as expensive as the maintenance costs for film projectors) and current economic conditions, a complete conversion to digital cinema may be postponed or may not happen at all. For example, National Public Radio reported that "[f]or more than seven years, film studios and theaters have been hyping digital projectors and the crisp, clear picture quality they´ll bring to movie screens. But the vast majority of the nation´s cinemas are still using old analog projectors. * * * * Despite the clear economic advantages of digital projection of the nation´s more than 38,000 movie screens, only 2,200 have digital projectors." All Things Considered, Digital Projection in Theaters Slowed Down by Dispute (Mar. 21, 2007), available at http://news.wvpubcast.org/templates/transcript/transcript.php?storyId=9047637.

Whether a complete conversion to digital cinema will occur in a time certain, or not at all, is unknown. Even if the conversion of digital proceeds, until there is a complete digital conversion, at least some theaters will employ analog cinematography (i.e., 35 mm film) to exhibit movies. It is the Department´s understanding that currently the vast majority of movie theaters in the United States exhibit film-based movies. Many, however, use a digital sound system (e.g., Digital Theater Systems, Dolby Digital, Sony Dynamic Digital Sound, etc.). Digital sound systems operate independently from analog projectors that deliver the visual portion of a movie. It is also the Department´s understanding that the closed captioning and video description technology that is currently available requires a movie theater to have a digital sound system but that digital cinema is not necessary for the captioning and video description technology. Thus, because the Department has not been presented with any substantive information indicating that a complete conversion to digital cinema is necessary to provide individuals with disabilities the opportunity to attend a closed captioned or video described movie, and the date for any complete conversion to digital cinema is unclear, at best, the Department believes that it may be unnecessary and inappropriate to wait to establish rules pertaining to closed captioning and video description for movies.

It appears that existing captioning and video description equipment can be used with digital cinema. Commenters appeared to agree that when theaters move to digital technology, both the caption data and video descriptions can be embedded into the digital signal that is projected. A few commenters said that the systems currently used to provide captioning and video description will not become obsolete once a theater has converted to digital cinema because their major components are compatible with, and can be used by, digital cinema systems. These commenters said that the only difference for a movie theater owner or operator using digital cinema is the way the data are delivered to the captioning and video description equipment in place in an auditorium. In other words, because closed captioning and video description equipment operates through the digital sound systems most theaters have, the fact that those sound systems may be integrated with the digital cinema system will not necessitate changing the captioning and description equipment, only the manner in which the data they project are delivered to the digital cinema system. The Department seeks additional and updated information on this point.

Finally, the Department is considering proposing that 50% of movie screens would offer captioning and video description 5 years after the effective date of the regulation. The Department originally requested guidance on any such figure in its 2008 NPRM. Individuals with disabilities, advocacy groups who represented individuals with disabilities, and eleven State Attorneys General advocated that the Department should require captioning and video description 100% of the time. Representatives from the movie industry did not want any regulation regarding captioning or video description. A representative of a non-profit organization recommended that the Department adopt a requirement that 50% of movies being exhibited be available with captioning and video description. The Department seeks further comment on this issue and is asking several questions regarding how such a requirement should be framed.

[8] See Report to the Access Board: Refreshed Accessibility Standards and Guidelines in Telecommunications and Electronic and Information Technology (April 2008), http://www.access-board.gov/sec508/refresh/report/.