28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description (NPRM)
3. The Legislative History of the ADA
While the ADA itself contains no explicit language regarding captioning (or audio 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, pt. 2, at 108 (1990); S. Rep. No. 101-116, at 64 (1989).11 Congress was silent on the question of closed captions in movie theaters, a technology not yet developed for use in movie theaters, but it acknowledged that closed captions might 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, pt. 2, at 107. Importantly, 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 108.12 Similarly, in 1991, when issuing its original title III regulation, the Department stated in preamble language that “[m]ovie theaters are not required * * * to present open-captioned films,” but the Department 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 with hearing impairments. Captioning is one means to make the information accessible to individuals with disabilities.” Id.
The legislative history of the ADA and the Department’s commentary in the preamble to the 1991 regulation make clear that although Congress was not requiring open captioning of movies in 1990, it was leaving open the door for the Department to require captioning in the future as the technology developed. Congress did not specifically mention audio description in the legislative history; however, audio description clearly falls within the type of auxiliary aid contemplated by the ADA. Moreover, given the present state of technology, the Department believes that mandatory requirements for captioning and audio description in movie theaters fit comfortably within the meaning of the statutory text.
11. In 1990, the only way to include open-captions in a movie was to create a separate print of the movie and then laser-etch, or “burn,” the captions onto that separate print. Limited copies of the open-captioned print were made and these copies were distributed after the uncaptioned versions to some, but by no means all, movie theaters.
12. As the district court noted in Ball v. AMC Entertainment, Inc., 246 F. Supp. 2d 17, 22 (D.D.C. 2003), “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.”
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