28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by Public Accommodations - Movie Theaters; Movie Captioning and Audio Description (NPRM)
C. Need for Department Action
1. Importance of Movies in American Culture
Going to the movies is a quintessential American experience. In any given month, over 56 million adults (roughly 26 percent of the adult population) make a trip to a movie theater to take in a movie. See Experian Marketing Services, 2010 American Movie-Goer Consumer Report, available at http://www.experian.com/blogs/marketing-forward/2010/02/20/2010-american-movie-goer-consumer-report/ (last visited July 14, 2014). Going to the movies is also an important social experience and pastime of teenagers and young adults. And while teenagers and young adults are more likely to go to the movies than older adults, adults over 50 outnumber young adults when it comes to raw number of moviegoers. Id. Moreover, going to the movies is also an important part of the American family experience. Long holiday weekends offer the movie industry some of the biggest box offices sales as families gather for the holidays and head out to the theaters together.
Movies are a part of our shared cultural experience, “water cooler” talk, and the subject of lunch-time conversations. The Supreme Court observed over 60 years ago that motion pictures “are a significant medium for the communication of ideas” and “may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952). When individuals who are deaf or hard of hearing or blind or have low vision have the opportunity to attend movies that they can actually understand because of the use of captions or audio description, they are exposed to new ideas and gain knowledge that contributes to the development of their communication and literacy.
The Department received numerous comments from individuals with these disabilities in response to its 2010 ANPRM describing how they were unable to take part in the movie-going experience with their friends and family because of the unavailability of captioning or audio descriptions. Many individuals felt that this not only affected their ability to socialize and fully take part in group or family outings, but also deprived them of the opportunity to meaningfully engage in the discourse that often surrounds movie attendance.
Commenters who have some functional degree of hearing, like those who use hearing aids or cochlear implants, explained that going to the movies is frustrating and unenjoyable for them. One commenter who wears a hearing aid and cannot benefit from assistive listening receivers currently provided in movie theaters said she often misses half the plot when she goes to a movie and has to rent the movie when it comes out on DVD so she can turn on the captions and learn what she has missed. Several other commenters also indicated that the assistive listening receivers available at movie theaters were only suitable for individuals with mild to moderate hearing loss.
2. Numbers of Individuals with Hearing and Vision Disabilities
According to 2010 census data, 7.6 million people reported that they experienced a hearing difficulty (defined as experiencing deafness or having difficulty hearing a normal conversation, even when wearing a hearing aid). Of those individuals, 1.1 million reported having a severe difficulty hearing. In addition, 8.1 million people reported having some degree of difficulty seeing (defined as experiencing blindness or having difficulty seeing words or letters in ordinary newsprint even when normally wearing glasses or contact lenses). Of those individuals, 2.0 million reported they were blind or unable to see. See U.S. Census Bureau, U.S. Department of Commerce, P70-131, Americans with Disabilities: 2010 Household Economic Studies at 8 (2012), available at http://www.census.gov/prod/2012pubs/p70-131.pdf (last visited July 14, 2014). For people aged 65 or older, Census data indicated that 4.2 million had difficulty hearing (as defined by the Census), and 3.8 million reported having difficulty seeing (as defined by the Census). Id. As stated above, for several reasons it is unlikely that all people who reported having a vision or hearing disability to the Census would benefit from this rule. However, hearing and vision loss are highly correlated with aging, and as the U.S. population ages,14 the number of individuals with hearing or vision loss is projected to increase significantly. Research indicates that the number of Americans with a hearing loss has doubled during the past 30 years. See American Speech-Language-Hearing Association, The Prevalence and Incidence of Hearing Loss in Adults, available at http://www.asha.org/public/hearing/disorders/prevalence_adults.htm (last visited July 14, 2014). Experts predict that by 2030, severe vision loss will double along with the country’s aging population. See American Foundation for the Blind, Aging and Vision Loss Fact Sheet, available at http://www.afb.org/section.aspx?FolderID=3&SectionID=44&TopicID=252&DocumentID=3374 (last visited July 14, 2014). This increase will likely lead to a corresponding increase in the number of people who will need captioning or audio description. Not all these individuals will necessarily take advantage of the movie captioning and audio description that would be provided under this proposed rule, but a significant portion of this population would be eligible to directly benefit from this proposed rule (see, infra, section VI.A.3 for a more detailed discussion of the population eligible to receive benefits).
The Department believes that captioning will be used by some persons with moderate hearing loss as well as persons with severe hearing loss or who are profoundly deaf. Many individuals with hearing loss have difficulty discriminating among competing sounds in the movie and understanding what they hear, even if they can hear those sounds. Sounds from other patrons can also interfere with the ability of a patron with partial hearing loss to catch all the dialogue in a movie. Other individuals have difficulty understanding what is being said if the actors speak with foreign accents or have poor enunciation, and those patrons who rely even partly on lip reading will miss some dialogue because they cannot always see the actor’s face. Individuals with hearing loss who have some level of improved hearing comprehension aided by hearing aids, middle ear implants, and cochlear implants, may also experience the same difficulty discriminating among competing sounds in the movie environment as those individuals with unaided partial hearing loss.15 It is critical that all of these individuals are not shut out of an emblematic part of our culture.
14. The percentage of Americans approaching middle age or older is increasing. The 2010 Census found that during the decade spanning 2000 to 2010, the percentage of adults aged 45 to 64 years increased by 31.5 percent while the population aged 65 and over grew at a rate of 15.1 percent. By contrast, the population of adults between 18 and 44 grew by only 0.6 percent. U.S. Census Bureau, U.S. Department of Commerce, C2010BR-03, Age and Sex Composition in the United States: 2010 Census Brief 2 (2011), available at www.census.gov/prod/cen2010/briefs/c2010br-03.pdf (last visited July 14, 2014).
15. “While many people tend to think that the only factor in hearing loss is loudness, there are actually two factors involved: loudness and clarity. Loss generally occurs first in the high pitch, quiet range. A mild loss can cause one to miss 25-40% of speech, depending on the noise level of the surroundings and distance from the speaker. When there is background noise, it becomes difficult to hear well; speech may be audible but may not be understandable.” Hearing Loss Association of Oregon, Facing the Challenge: A Survivor’s Manual for Hard of Hearing People (revised 4th ed. Spring 2011), at 8, available at http://www.hearinglossor.org/survivor-manual-2015.pdf (last visited July 14, 2014). The degrees of hearing loss include: 1) Mild (25 to 40 dB): Faint or distant speech may be difficult; lip reading can be helpful; 2) Moderate (41 to 55 dB): Conversational speech can be understood at a distance of three to five feet; as much as 50% of discussions may be missed if the voices are faint or not in line of vision; 3) Moderately Severe (56 to 70 dB): Speech must be loud in order to be understood; group discussions will be difficult to follow; 4) Severe (71 to 90 dB): Voices may be heard from a distance of about 1 foot from the ear; and 5) Profound (more than 91dB): Loud sounds may be heard, but vibrations will be felt more than tones heard; vision rather than hearing, is the primary avenue for communication. Id.
3. Voluntary Compliance
Some movie industry commenters asserted that because Congress suggested a voluntary approach to accessibility for exhibiting movies in the 1989 and 1990 legislative history, when only burned-in open captions on separate prints of film were available, the Department should refrain from regulating in this area now and should simply continue to rely on voluntary compliance by the movie theaters. However, since that time, the technology to display open captions has evolved significantly and closed captioning technologies have been developed. Both of these developments are examples of the types of “technological advances” that have enhanced “options for making meaningful and effective opportunities available to individuals with disabilities.” H.R. Rep. No. 101-485, pt. 2, at 107. Commenters on the 2010 ANPRM advised the Department that despite these technological advances, even at that time, few movie theaters showed movies with captioning and audio description. In addition, these commenters advised the Department that in their experience, many theaters that had the capacity to show movies with captioning and audio description only did so for selected films shown at intermittent times.
In the three years since the Department last received public comment on these issues after the publication of its 2010 ANPRM (see discussion below), the number of movie theaters that are showing movies with closed captioning and audio description has increased as well as the times those captioned and audio described movies are shown each week. This described increase is attributable in some ways to settlements of Federal or State disability rights lawsuits brought by private plaintiffs or State attorneys general against individual movie theater companies in particular jurisdictions within the United States.16 Despite the success of private litigation in some areas of the country, closed captions and audio description are still not available for movies produced and distributed with these features at all theaters across the United States. The Department believes that access to movies for persons who are deaf or hard of hearing or are blind or have low vision should not depend upon where they live.17
Consequently, the Department believes it is in the interest of both the movie theater industry and persons with disabilities to have consistent ADA requirements for movie captioning and audio description throughout the United States and that this is best accomplished through revising the ADA title III regulation as proposed in this NPRM. The Department is persuaded that it should move forward with a regulation requiring captioning and audio descriptions so that the current and ever increasing numbers of individuals who are deaf or hard of hearing or blind or have low vision and who are unable to enjoy the goods and services offered by movie theaters can participate in this facet of American life.
16. See, e.g., Press Release, Illinois Attorney General, “Madigan Announces Settlement with AMC Theatres” (Apr. 4, 2012) available at http://illinoisattorneygeneral.gov/pressroom/2012_04/20120404.html (last visited July 14, 2014) (settlement providing for provision of captioning and audio technology in all AMC theaters in the state of Illinois); Wash. State Commc’n Access Project v. Regal Cinemas, Inc., 290 P.3d 331 (Wash. Ct. App. 2012) (upholding trial court decision under Washington Law Against Discrimination requiring six theater chains to provide captions in the screening of movies in order to accommodate persons who are deaf or hard of hearing.); Arizona v. Harkins Amusement Enters., Inc., 603 F.3d 666, 675 (9th Cir. 2010) (settlement agreement filed 11/07/2011 CV07-703 PHX ROS); Complaint, Ass’n of Late-Deafened Adults v. Cinemark Holdings, Inc., No. 10548765 (Cal. App. Dep’t Super. Ct. filed Nov. 30, 2010) (complaint relating to settlement requiring Cinemark to provide closed captions in all its California theaters); Press Release, Cinemark Holdings, Inc., Cinemark and ALDA Announce Greater Movie Theatre Accessibility for Customers who are Deaf or Hard-of-Hearing (April 26, 2011), available at http://www.cinemark.com/pressreleasedetail.aspx?node_id=22850 (last visited July 14, 2014).
17. For example, it is the Department’s understanding that persons who live in communities served only by smaller regional movie theater chains are far less likely to have access to captioned and audio-described movies than individuals with disabilities who live in California, Arizona, or any of the major cities with theaters operated by Regal, Cinemark, or AMC. The Department bases this belief on its review of the information provided by Captionfish, which is a nationwide search engine that monitors which theaters offer both closed and open captions and audio description, and updates its Web site regularly. See Frequently Asked Questions, http://www.captionfish.com/faq (last visited July 14, 2014).
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