28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description (NPRM)

Audio Description (Section-by-Section Analysis)

Coverage.  In § 36.303(g)(3)(ii) of the NPRM, the Department is proposing that a public accommodation that owns, leases, leases to, or operates a movie theater shall ensure that its auditoriums have the capability to exhibit movies with audio description and in all cases where the movies it intends to exhibit are produced, distributed, or otherwise made available with audio description, the public accommodation shall ensure that it exhibits such movies with audio description at all scheduled screenings of those movies.  This requirement is comparable to the requirement for exhibition of movies with closed captioning at proposed § 36.303(g)(2).  In addition, with respect to digital screens, the Department is proposing the same six-month compliance date for the provision of audio description at § 36.303(g)(3)(i) as it is for movie captioning.  With respect to analog screens, the Department is seeking public comment on whether to adopt a four-year delayed compliance date for the provision of audio description or defer new requirements for analog screens to provide audio description for now and consider additional rulemaking at a later date.

The Department received virtually no comments objecting to a requirement for the exhibition of movies with audio description when such movies are available to movie theaters with audio description.  The overwhelming number of commenters addressing audio description indicated that they believed it should be available at all movies at all times.  However, while industry commenters agreed that audio description should be available, they suggested limiting any requirement for exhibiting movies with audio description to 25 percent of those auditoriums that have converted to digital cinema.  A 25 percent requirement would significantly limit the availability of movies with audio description across the country.

As discussed with respect to proposed § 36.303(g)(2) (movie captioning), the Department believes that given the availability of audio-description technology, and in light of the purpose and goals of the ADA and its statutory and regulatory framework, the ADA requires nothing less than full access to audio-described movies at all times such movies are exhibited, whenever such movies are produced, distributed, or otherwise made available to movie theaters.  The primary goals of the ADA are to assure equality of opportunity and full access and participation in our society for individuals with disabilities.  42 U.S.C. 12101.  The ADA requires public accommodations 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 public accommodation can demonstrate that taking such steps would result in a fundamental alteration or undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).

Individual audio-description listening devices.  In order to ensure that individuals who are blind or have low vision have access to audio-described movies when such movies are available in a movie theater, the theater needs to provide a reasonable number of audio-description listening devices for individual use.  The comments received and the Department’s research indicate that many of the assistive listening receivers currently in use in the United States have two channels, one of which is needed for amplified sound, and the other that could be used for audio description.  The NPRM proposes at § 36.303(g)(3)(ii)(B) that a theater may meet its obligation to provide individual captioning devices if the receivers it uses to meet its obligations to provide assistive listening systems in accordance with the requirements in table 219.3 of the 2010 Standards have at least two channels, one of which can be available for transmission of audio description.  For those theaters that do not have two-channel assistive listening receivers, the Department is proposing in § 36.303(g)(3)(ii)(A) to require minimal scoping of one individual audio-description listening device per auditorium, with a minimum of two devices per theater.  This proposal is relatively consistent with the recommendations of at least one industry commenter on the 2010 ANPRM, who asserted that the Department should limit any requirement for individual audio-description listening devices to one receiver per auditorium.  In any event, the Department believes that because many movie theaters already have two channel assistive listening receivers that they use to meet their existing requirements under the 2010 Standards, the proposed scoping will not require many movie theaters to buy additional equipment.

The Department received comments and heard testimony from individuals and organizations representing individuals who are blind and have low vision stating that they do not attend movies because of the lack of audio description, but would begin going to movies once audio description is readily available.

Question 12:  How many devices capable of transmitting audio description to individuals should each movie theater have on hand for use by patrons who are blind or have low vision?  Should the number of individual audio-description listening devices be tied to the number of seats in each auditorium or other location with a movie screen?  Should the number of individual audio-description listening devices be tied to the number of seats in the theater facility as a whole?  Please provide the basis for your comment.  How many movie theaters have two-channel receivers that can be used to provide audio description?  How many movie theaters will need to buy additional individual audio description listening devices?  How much do audio description listening devices that meet the requirements of this proposed rule cost?

For some small movie theaters, it may be an undue burden to purchase the equipment needed to exhibit movies with closed captioning and audio description and meet the other requirements of the rule.  Determining whether compliance with the requirements of this rule will result in an undue burden, however, requires the individualized, fact-specific inquiry and analysis discussed previously.  In some circumstances, movie theaters may incur a cost to determine whether and to what extent compliance with the rule would result in an undue burden.  Such costs may include the time to determine how to comply with the rule’s requirements; the time to gather, compile, and review financial records; and the time to obtain estimates of the cost of compliance.  The Department lacks information necessary for estimating the time and other costs a theater would incur to determine whether compliance would result in an undue burden and the extent to which this rule would increase movie theaters’ legitimate use of the undue burden analysis compared to the status quo.  This information, however, would be important for analyzing at the final rule stage the incremental effect of the rule and for analyzing regulatory alternatives, particularly for small theaters.

The Department notes that many small businesses will be able to defray the costs of compliance with this rule if they qualify for a special IRS tax credit that is intended to defray the costs of providing access to persons with disabilities in accordance with the requirements of the ADA.  Section 44 of the Internal Revenue Code of 1986 allows eligible businesses a tax credit of 50 percent of the cost of “eligible access expenditures,” defined as amounts paid or incurred  “(A) for the purpose of removing architectural, communication, physical, or transportation barriers which prevent a business from being accessible to, or usable by, individuals with disabilities, * * * (D) to acquire or modify equipment or devices for individuals with disabilities, or  (E) to provide other similar services, modifications, materials, or equipment.”  26 U.S.C. 44(c)(2).  This tax credit is available to businesses with gross receipts of less than one million dollars each year or that have 30 or fewer full-time employees.  See 26 U.S.C. 44(b).  The Department believes that providing captioning and audio description to meet the longstanding obligation to provide effective communication under the ADA falls within this tax code provision.

Question 13: The Department invites comments on the additional time it will take and other possible costs movie theaters would incur to determine whether compliance with the rule would constitute an undue burden.  What kinds of costs are involved?  How much time would a theater spend determining how to comply with the rule; gathering, compiling, and reviewing financial records; and estimating the cost of compliance?  Would small theaters have professionals such as accountants or lawyers review their financial records?  What information should the Department use to estimate the per hour cost of the time movie theaters spend undertaking these activities?  How might the Department develop an estimate of the average time and cost required to determine whether full compliance would constitute an undue burden?  To what extent would this rule increase movie theaters’ reliance on the undue burden analysis compared to the status quo?  What characteristics of small theaters would make it more likely that it would be an undue burden to comply with the rule?  Are there empirical studies or other credible information available for estimating the time and cost for a theater to make a legitimate determination that compliance would constitute an undue burden?  The Department is interested in comments in response to these questions from the public in general, but particularly from small movie theater owners and operators and from other small businesses covered by title III of the ADA with experience in determining whether it is an undue burden to meet their effective communication obligation.