Appendix F to Part 36 - Guidance and Section-by-Section Analysis
28:1.0.1.1.37.8.32.1.19 : Appendix F
Appendix F to Part 36 - Guidance and Section-by-Section Analysis
Section 36.303(g)(1) Definitions
In the Notice of Proposed Rulemaking, 79 FR 44976 (Aug. 1, 2014)
(NPRM), the Department proposed § 36.303(g)(1), which set forth
definitions for certain terms specifically referenced in paragraph
(g). The Department sought public comment on these proposed
definitions.
“Analog Movie”
Although the Department did not specifically propose a
definition of “analog movie” in the NPRM, the Department defined
the term in the preamble and solicited comment on the state of
analog movies and their availability. In the final rule, the
Department has added a definition of “analog movie” in order to
distinguish between movies shown in digital cinema format and
movies shown in analog format. “Analog movie” is defined to mean “a
movie exhibited in analog film format.”
“Audio Description”
In the NPRM, the Department used the term “audio description” to
refer to the spoken description of information describing the
visual elements of a movie to an individual who is blind or has low
vision and who is unable to see the images and action on the
screen. Proposed § 36.303(g)(1)(i) defined “audio description” as
the “provision of a spoken narration of key visual elements of a
visually delivered medium, including, but not limited to, actions,
settings, facial expressions, costumes, and scene changes.”
Although the Department believes that the term “audio description”
is most commonly used to describe this service, it sought public
comment on whether to use this or some other nomenclature.
All commenters addressing this issue agreed with the
Department's proposal and supported the use of the term and the
Department's definition. In the final rule, the Department has
retained the term “audio description,” and has slightly modified
the definition for clarity to read as follows: “Audio
description means the spoken narration of a movie's key visual
elements, such as the action, settings, facial expressions,
costumes, and scene changes. Audio description generally
requires the use of an audio description device for delivery to a
patron.”
“Audio Description Device”
In the NPRM, at proposed § 36.303(g)(1)(iii), the Department
used the term “individual audio description listening device” to
refer to the “individual device that patrons may use at their seats
to hear audio description.” The sole commenter on this definition
expressed concern that the term “individual audio description
listening device” was unnecessarily long. The Department agrees
with the commenter and has revised the name of the device
accordingly in the final rule. The final rule retains the text of
the proposed definition with minor edits.
“Captioning Device”
In the NPRM, at proposed § 36.303(g)(1)(iv), the Department used
the term “individual captioning device” to refer to the “individual
device that patrons may use at their seats to view the closed
captions.” The sole commenter on this definition recommended that
the Department shorten the nomenclature for this device to
“captioning device.” The Department agrees with the commenter and
has revised the name of the device accordingly in the final rule.
The final rule retains the text of the proposed definition with
minor edits.
“Closed Movie Captioning”
The NPRM defined “closed movie captioning” as “the written text
of the movie dialogue and other sounds or sound making (e.g.
sound effects, music, and the character who is speaking).” The NPRM
further provided that closed movie captioning be available only to
individuals who request it, and that, generally, it requires the
use of an individual captioning device to deliver the captions to
the patron.
Commenters were equally split as to whether the Department
should use “closed movie captioning” or some other language to
refer to the technology. Some commenters urged the Department to
use the term “closed captioning.” Other commenters disagreed,
however, and stated that the Department should avoid using the term
“closed captioning” to distinguish it from the “closed captioning”
that is turned on at home by a person viewing the television. In
the final rule, the Department is retaining the term “closed movie
captioning,” but the definition is modified for clarity to read:
“Closed movie captioning means the written display of a
movie's dialogue and non-speech information, such as music, the
identity of the character who is speaking, and other sounds or
sound effects. Closed movie captioning generally requires
the use of a captioning device for delivery of the captions to the
patron.”
“Digital Movie”
The Department has added a definition of “digital movie,”
meaning “a movie exhibited in digital cinema format.”
“Movie Theater”
The NPRM proposed defining “movie theater” as “a facility other
than a drive-in theater that is used primarily for the purpose of
showing movies to the public for a fee” in order to make clear
which facilities are subject to the specific captioning and audio
description requirements set forth in § 36.303(g). The Department
intended this definition to exclude drive-in movie theaters as well
as facilities that screen movies if the facility is not used
primarily for the purpose of showing movies for a fee, such as
museums, hotels, resorts, or cruise ships, even if they charge an
additional fee. The Department asked for public comment on the
proposed definition and whether it adequately described the movie
theaters that should be covered by this regulation.
Commenters generally supported the Department's proposed
definition for “movie theater,” but there were some concerns about
the proposed definition's scope. Some commenters asserted that the
definition of “movie theater” should be expanded to include the
institutions that the Department expressly excluded, such as
museums, hotels, resorts, cruise ships, amusement parks, and other
similar public accommodations that show movies as a secondary
function, whether or not they charge a fee. One commenter expressed
concern that such entities might believe that they are otherwise
exempt from any requirement to furnish auxiliary aids and services
to ensure effective communication, and another commenter urged the
Department to consider developing additional regulations that would
specifically address public accommodations that are not covered by
the proposed definition but otherwise exhibit movies or other video
content.
The Department declines to make any changes at this time to
address public accommodations that do not meet the definition of
“movie theater” and are, therefore, not subject to the requirements
of paragraph (g). The Department's title III regulation has always
made clear that all public accommodations must provide effective
communication to the public through the provision of auxiliary aids
and services, including, where appropriate, captioning and audio
description. See generally 28 CFR 36.303; 28 CFR part 36,
app. A. The requirements of this rule were not intended to supplant
the general obligation to provide effective communication through
the provision of auxiliary aids and services. They are only
intended to provide clarity about how “movie theaters” must meet
this obligation. The Department notes that many public
accommodations that screen movies as a secondary function already
provide appropriate auxiliary aids and services, and where the
Department has identified the need for enforcement action, these
types of public accommodations have been willing to comply with the
ADA and the effective communication requirement. See, e.g.,
Press Release, U.S. Department of Justice, Justice Department
Reaches Settlement with National Museum of Crime and Punishment to
Improve Access for People with Disabilities (Jan. 13, 2015),
available at
http://www.justice.gov/opa/pr/justice-department-reaches-settlement-national-museum-crime-and-punishment-improve-access
(last visited Sept. 12, 2016).
Two commenters asked the Department to revise the definition of
“movie theater” to clarify that public accommodations used as
temporary screening locations during film festivals, such as pop-up
tents, convention centers, and museums with theaters, are not
subject to the requirements of paragraph (g). According to such
commenters, most movies screened at festivals are not ready for
distribution, and typically have not yet been distributed with
captioning and audio description. To the extent a film is already
distributed with these features, the commenters argued that the
myriad of logistics entailed in coordinating a festival may
preclude a film festival from making such features available.
The Department does not believe that its definition of “movie
theater” encompasses the temporary facilities described by the
commenters that host film festivals. However, operators of film
festivals, just like any other public accommodation that operates a
place of entertainment, are still subject to the longstanding
general requirement under § 36.303 to provide effective
communication unless doing so would be a fundamental alteration of
the program or service or would constitute an undue burden.
Moreover, if a festival programmer schedules the screening of a
movie that is already distributed with captioning and audio
description at a movie theater that is subject to the requirements
in paragraph (g), then the effective communication obligation would
require the festival to ensure that the accessible features are
available at all scheduled screenings of a movie distributed with
such features.
The Department also received several comments regarding the
exclusion of drive-in movie theaters in the proposed definition.
Many commenters agreed that drive-in movie theaters should not be
subject to the requirements of paragraph (g) because the technology
still does not exist to exhibit movies with closed movie captioning
and audio description in this setting. A few commenters pointed out
innovative ways for drive-in movie theaters to provide captioning
and audio description and argued that such options are feasible.
For example, one commenter suggested that drive-in movie theaters
provide audio description through a second low-power FM broadcast
transmitter or on a second FM channel. However, these commenters
did not clearly identify technology that is currently available or
under development to provide closed movie captioning in this
setting. Finally, one commenter expressed concern that if audio
description was broadcast at a drive-in theater, it would likely be
heard by patrons who do not require audio description and would
result in a fundamental alteration of the movie-going experience
for such patrons.
The Department declines to change its position that drive-in
movie theaters should be excluded from the requirements of
paragraph (g). Given the diminishing number of drive-in movie
theaters, the current lack of accessible technology to provide
closed movie captioning and audio description in this setting, and
the fact that it is unlikely that such technology will be developed
in the future, the Department remains convinced that rulemaking
regarding drive-in movie theaters should be deferred until the
necessary technology becomes commercially available.
For the reasons discussed above, the Department has retained the
text of the proposed definition of “movie theater” with minor
edits. The final rule defines “movie theater” as “a facility, other
than a drive-in theater, that is owned, leased by, leased to, or
operated by a public accommodation and that contains one or more
auditoriums that are used primarily for the purpose of showing
movies to the public for a fee.”
“Open Movie Captioning”
The NPRM proposed defining “open movie captioning” as “the
provision of the written text of the movie dialogue and other
sounds or sound making in an on-screen text format that is seen by
everyone in the movie theater.”
While commenters were evenly split on whether the new regulation
should use the term “open movie captioning” or “open captioning,”
the Department chose the former to avoid confusion and emphasize
that the term refers only to captioning provided at movie theaters.
The final rule defines “open movie captioning” as “the written
on-screen display of a movie's dialogue and non-speech information,
such as music, the identity of the character who is speaking, and
other sounds and sound effects.”
Section 36.303(g)(2) General
In the NPRM, the Department proposed at § 36.303(g)(2)(i) 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 closed movie captions.” That
paragraph further provided that in all cases where the movies the
theater intends to exhibit are produced, distributed, or otherwise
made available with closed movie captions, the public accommodation
must ensure that it acquires the captioned version of those movies
and makes closed movie captions available at all scheduled
screenings of those movies. An identical provision requiring movie
theaters to exhibit movies with audio description was proposed at §
36.303(g)(3)(i). The Department proposed applying the requirements
for closed movie captioning and audio description to all movie
screens (auditoriums) in movie theaters that show digital movies
and sought public comment as to the best approach to take with
respect to movie theaters that show analog movies. The Department
sought public comment on whether it should adopt one of two options
regarding the specific obligation to provide captioning and audio
description at movie theater auditoriums that display analog
movies. Option 1 proposed covering movie theater screens
(auditoriums) that display analog movies but giving them 4 years to
come into compliance with the requirements of § 36.303(g). Option 2
proposed deferring the decision whether to apply the rule's
requirements to movie theater screens (auditoriums) showing analog
movies and considering additional rulemaking at a later date.
Many commenters generally agreed with the provisions as they
related to movie theaters displaying digital movies. These
commenters stressed, however, that movie theaters should in no way
be prohibited or limited from exhibiting a movie that is not
available with captioning or audio description, or be required to
add captioning and audio description when these features are not
available.
Commenters were split in response to the Department's question
concerning the best approach to take with respect to analog movie
theaters. A slight majority of commenters supported deferral for
movie theater auditoriums that exhibit analog movies exclusively.
In support of Option 2, these commenters pointed to the state of
the movie industry, the financial condition of many small movie
theaters, and the unintended consequences of a 4-year compliance
date. According to the comments, there are very few remaining movie
theaters that display analog movies exclusively, and despite the
industry's urging that such movie theaters must convert to digital
to remain viable, many of these movie theaters have not converted
because they cannot afford the high cost to do so. Therefore, these
commenters argued that a regulation covering analog movie theaters
will have minimal overall impact in addition to being an
unnecessary strain on small businesses, considering the high cost
of compliance for such movie theaters.
The remaining commenters responding to this question stated that
the Department should adopt Option 1's 4-year compliance date for
movie theaters displaying analog movies. These commenters reasoned
that fairness and equality concerns justified adoption of Option 1
because, in their view, Option 2 could incentivize more movie
theaters to delay their digital conversion, resulting in fewer
movie theaters being subject to the regulation, and individuals
with hearing and vision disabilities continuing to face unequal
access to movie theaters. A few disability groups argued that
because a movie theater is subject to title III of the ADA
regardless of whether it displays analog movies or digital movies,
adoption of Option 2 could be seen as carving out an exception
within the ADA where none exists otherwise.
In consideration of these comments and the Department's
independent research, the Department has decided to defer until a
later date the decision whether to engage in rulemaking with
respect to movie theater auditoriums that exhibit analog movies
exclusively. Thus, the final rule makes clear that the requirements
of paragraph (g) apply only to movie theaters with auditoriums that
show digital movies. The Department agrees with commenters that
very few analog movie theaters remain, and that the number of such
movie theaters has declined rapidly in recent years. The Department
believes that it is prudent to wait until it is clear whether there
will be any movie theaters that continue to show analog movies and
whether analog movies will continue to be produced at all, or
distributed with captioning and audio description. Although movie
theater auditoriums that exhibit analog movies exclusively are not
subject to the specific requirements of paragraph (g) at this time,
such movie theaters are nonetheless public accommodations and
subject to the effective communication requirements of title
III.
The final rule provides that “[a] public accommodation shall
ensure that its movie theater auditoriums provide closed movie
captioning and audio description whenever they exhibit a digital
movie that is distributed with such features. Application of the
requirements of paragraph (g) is deferred for any movie theater
auditorium that exhibits analog movies exclusively, but may be
addressed in a future rulemaking.”
The requirements of paragraph (g) do not in any way prohibit a
movie theater from displaying a movie that has not been made
available with captioning and audio description features nor do the
requirements require a movie theater to independently add such
features to a movie that is not distributed with such features. In
addition, all movie theaters, regardless of size, status of
conversion to digital cinema, or economic viability, continue to
have available to them the individualized and fact-specific undue
burden limitation specified in § 36.303(a). This regulation does
not change the availability of this compliance limitation nor the
circumstances under which it can be asserted. See 28 CFR
36.104 (defining undue burden and listing factors to be considered
in determining whether an action would result in an undue burden).
It does, however, provide clarity about how movie theaters can meet
their longstanding effective communication obligations under the
ADA.
The Department notes that even if a movie theater cannot
initially install captioning and audio description equipment in all
of its auditoriums because it is an undue burden, the movie theater
is still obligated to comply with renumbered § 36.303(h) and
provide alternatives to full compliance by providing captioning and
audio description in some of its auditoriums up to the point where
the cost becomes an undue burden. In such a situation, the movie
theater should take steps to maximize the range of movie options
for customers who are deaf or hard of hearing, or blind or have low
vision, by dispersing the available equipment throughout their
auditoriums so that the theater is able to exhibit as many movies
as possible with captioning and audio description throughout the
day and evening on weekdays and weekends. If, for example, a
six-auditorium movie theater can only afford to install captioning
equipment in half of its auditoriums, and it has auditoriums with
different capacities, it should install captioning equipment in a
large, a medium, and a small auditorium. This distribution of
equipment would permit exhibition of different types of movies, as
blockbusters generally are shown in larger auditoriums first and
lower budget or older movies may only be shown in medium or small
auditoriums.
It has been, and continues to be, the Department's position that
it would not be a fundamental alteration of the business of showing
movies in theaters to exhibit movies already distributed with
closed movie captioning and audio description in order to ensure
effective communication for individuals who are deaf or hard of
hearing, or blind or have low vision. The service that movie
theaters provide is the screening or exhibiting of movies. The use
of captioning and audio description to make that service available
to those who are deaf or hard of hearing, or blind or have low
vision, does not change that service. Rather, the provision of such
auxiliary aids is the means by which these individuals gain access
to movie theaters' services and thereby achieve the “full and equal
enjoyment,” 42 U.S.C. 12182(a), of the screening of movies. See,
e.g., Brief for the United States as Amicus Curiae Supporting
Appellants and Urging Reversal at 15-17, Arizona ex rel.
Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666
(9th Cir. 2010) (No. 08-16075); see also NPRM, 79 FR 44976,
44982-83 (Aug. 1, 2014). The Department received no public comments
challenging that position.
Section 36.303(g)(3) Minimum Requirements for Captioning Devices
In the NPRM, the Department proposed that movie theaters be
required to have available a minimum number of captioning devices
equal to approximately half the number of assistive listening
receivers already mandated for assembly areas by sections 219 and
706 of the 2010 Standards. The calculation was based on a movie
theater's total seating capacity and 2010 Census data estimating
that 3.1 percent of the U.S. population ages 15 and older (7.6
million) has difficulty hearing. 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 Sept. 12, 2016). Thus, the proposed §
36.303(g)(2)(iii)(A) required that a movie theater maintain
captioning devices for approximately 2-4 percent of all available
seats and stated that: “a public accommodation that owns, leases,
leases to, or operates a movie theater shall provide individual
captioning devices in accordance with the following Table [below].
This requirement does not apply to movie theaters that elect to
exhibit all movies at all times at that facility with open movie
captioning.”
Capacity of seating in movie
theater
Minimum required number of
individual captioning devices
100 or less
2.
101 to 200
2 plus 1 per 50 seats over 100
seats or a fraction thereof.
201 to 500
4 plus 1 per 50 seats over 200
seats or a fraction thereof.
501 to 1000
10 plus 1 per 75 seats over
500 seats or a fraction thereof.
1001 to 2000
18 plus 1 per 100 seats over
1000 seats or a fraction thereof.
2001 and over
28 plus 1 per 200 seats over
2000 seats or a fraction thereof.
The Department received more than 70 comments on its proposed
scoping requirements for captioning devices. All commenters
disagreed with the formula in the NPRM, and with the exception of a
very few individuals and a law school clinic, commenters uniformly
maintained that the Department's proposed requirements
substantially overestimated the number of captioning devices
necessary for a variety of reasons.
Many commenters asserted that seating capacity does not equate
with the need for captioning devices because movie theaters are
rarely at 100 percent seat occupancy, and not all Americans attend
the movies simultaneously. They stressed that even at peak
attendance times (weekends), average seat occupancy rates are
substantially less than half of capacity while small movie theaters
in rural areas with one or two auditoriums report even lower
attendance rates. Other commenters noted that old historic theaters
often have large seating capacities, despite low attendance rates.
And some noted that at large, multi-auditorium complexes, not all
auditoriums are simultaneously in use at all times. Thus, these
commenters asserted that average movie attendance during weekend
hours, not the number of theater seats, most accurately predicts
anticipated demand for captioning devices.
Some commenters maintained that the Department's proposed
scoping requirements significantly overestimated the need for
captioning devices because the percentage of persons in the
population who have difficulty hearing does not reflect those who
will actually benefit from or use the devices. In their view,
captioning devices will not be used by the vast majority of
individuals who are deaf or hard of hearing because such devices
are only needed by persons who have “severe” difficulty hearing,
and assistive listening receivers, which amplify the volume of
sound, are already required and available at movie theaters. These
commenters also cited statistics showing that a significant
percentage of Americans do not attend the movies at least once a
year, and while hearing loss disproportionately affects seniors,
they represent a smaller proportion of persons who actually attend
the movies.
Commenters also stressed that in their experience, the
Department's proposed scoping requirements for captioning devices
far exceed demand in those movie theaters that currently stock and
advertise the availability of such devices. To support this
conclusion, NATO offered device usage data from five movie theater
companies (which included a small business with a total screen
(auditorium) count in the 1-75 range, three regional companies with
a total screen (auditorium) count in the 300-700 range, and a
national company with a 2000+ screen (auditorium) count) that stock
and advertise the availability of captioning devices on their Web
sites, at ticket counters, and on third-party Web sites. According
to NATO, that data showed that even though four of these five
companies stocked far fewer captioning devices than the NPRM
proposed, actual demand rarely, if ever, exceeded supply even at
peak attendance times. Other movie theaters and a trade association
also submitted tracking records to confirm the same.
Several commenters objected to the Department's proposed scoping
requirements because they provided a fixed, nonadjustable number
that was not tied to actual consumer demand and failed to account
for variations in attendance based on theater location and patron
demographics. These commenters noted that while movie theaters near
areas with a high concentration of residents or students who are
deaf or hard of hearing may experience greatest demand for devices,
a movie theater in a small rural area may have only a few requests.
Many commenters also expressed concern that because the
Department's proposed scoping requirements would result in the vast
majority of movie theaters having to purchase expensive technology
far in excess of what is needed or would be used, those movie
theaters would likely avoid investing in new, superior technology
as it becomes available.
Although commenters overwhelmingly disagreed with the
Department's proposed approach to scoping, most did not suggest a
formula for determining the number of captioning devices that
should be required. Instead, they recommended that the number of
required devices be based on one or more factors, including actual
or average weekend movie attendance, percentage of individuals who
have severe hearing difficulty and will likely use the devices,
demand for devices, number of movie theater seats, screen count,
and patron demographics. For example, a Federal agency recommended
that the Department set scoping requirements in accordance with the
optimal number of devices sufficient to provide accessibility to
the disability community (based on relevant factors such as device
usage, demand, and weekend theater attendance) while minimizing the
burden on small businesses. A few movie theaters maintained that
any minimum device requirement would be a waste of resources and
unnecessary because movie theaters seek to satisfy their patrons'
needs, and as a result, many already advertise and provide
captioning devices upon request.
NATO and four advocacy groups representing persons who are deaf
or hard of hearing 1 submitted a Joint Comment offering a
three-tiered approach to scoping that was referenced and supported
by many commenters. First, the Joint Comment recommended that movie
theaters obtain a minimum number of captioning devices based on the
number of screens (auditoriums) displaying digital movies, in
accordance with the following:
1 Those advocacy groups are the National Association of the
Deaf, the Hearing Loss Association of America, the Association of
Late Deafened Adults, and the Alexander Graham Bell Association for
the Deaf and Hard of Hearing.
Second, in order to address the limited circumstances when
demand for captioning devices exceeds minimum requirements, the
Joint Comment proposed that movie theaters record weekend demand
for captioning devices and adjust the number of devices biannually
to be equal to 150 percent of the average weekend demand during a
6-month tracking period. For example, under this formula, a movie
theater that is initially required to have 6 devices and calculates
an average actual weekend demand of 8 devices during a tracking
period must increase the number of available devices to 12 (150
percent of 8). Finally, the Joint Comment recommended that the
Department require every movie theater company to submit an annual
report of its tracking records to the Department.
After considering all comments, census data, statistics
regarding movie theater attendance, actual usage data, and its
independent research, the Department has modified its approach to
captioning device scoping and has adopted a final rule that
requires movie theaters to have on hand the minimum number of
captioning devices proposed in the Joint Comment. Thus, the final
rule at renumbered § 36.303(g)(3)(i) states that “[a] public
accommodation shall provide a minimum number of fully operational
captioning devices at its movie theaters in accordance with the
following Table:”
Number of movie theater
auditoriums exhibiting digital movies
Minimum
required
number of
captioning
devices
1
4
2-7
6
8-15
8
16+
12
The Department imposes these requirements because its own
research and analysis confirms that they will easily satisfy
maximum weekend demand for captioning devices at movie theaters
across the nation in almost every location. Thus, the Department
believes that the final rule obligates movie theaters to provide
the optimum number of captioning devices sufficient to provide
accessibility to individuals with disabilities who will need and
use them, without requiring movie theaters to purchase equipment
that may likely never be used.
Despite NATO's and a number of other comments to the contrary,
the Department has also decided not to impose specific requirements
at this time for providing additional captioning devices when
actual demand for them exceeds the rule's minimum requirements.
While the Department acknowledges that there are a few movie
theaters located in areas where there is an unusually high
concentration of individuals who are deaf or hard of hearing,
comments, usage data, and independent research all indicate that
only in those rare circumstances is there a reasonable possibility
that regular demand for devices may exceed the rule's minimum
requirements. That same information also reflects that many movie
theaters located in markets that consistently have an unusually
large number of patrons with hearing difficulties are already
making voluntary efforts to satisfy consumer demand. For example,
because open movie captioning is popular with many movie patrons
who are deaf or hard of hearing, some movie theaters near schools
that educate persons who are deaf provide open-captioned screenings
on-demand, or in accordance with a convenient, regular, and
frequent schedule. In any event, the Department currently lacks
adequate information and data to craft an appropriate standard to
address these situations.
In addition, the Department decided not to impose a
recordkeeping requirement on movie theaters at this time, even
though some commenters suggested that the Department do so in order
to require movie theaters to keep records of actual demand for
devices. The NPRM did not solicit information about existing movie
theater recordkeeping practices with respect to the provision of
assistive listening receivers or captioning and audio description
devices, and the Department lacks adequate data as to the costs and
the burdens of imposing such a requirement on all movie theaters.
Moreover, the Department has not previously imposed this type of
recordkeeping requirement on public accommodations, and it declines
to do so without more information about the need and the costs. The
Department intends, however, to reach out to stakeholders in the
future and obtain additional information about whether it should
consider engaging in supplemental rulemaking regarding a
recordkeeping requirement and imposing a standard that addresses
situations when actual demand exceeds the rule's minimum
requirements.
In the interim, for those movie theaters that are located in the
few places where there is an unusually high concentration of
individuals who are deaf or hard of hearing, the Department
strongly encourages these public accommodations to voluntarily work
with the local disability community to identify and maintain an
appropriate number of captioning devices, or to utilize other
approaches, including open movie captioning, to satisfy their
patrons' regular and actual demand.
Section 36.303(g)(4) Minimum Requirements for Audio Description
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, movie theaters must provide a reasonable number of audio
description devices. In the NPRM, the Department proposed at §
36.303(g)(3)(ii)(A) that movie theaters maintain one audio
description device per auditorium, with a minimum of two devices
per movie theater. However, the Department noted at proposed §
36.303(g)(3)(ii)(B) that “[a] movie theater may comply with this
requirement by using receivers it already has available as
assistive listening devices in accordance with the requirements in
Table 219.3 of the 2010 Standards, if those receivers have a
minimum of two channels available for sound transmission to
patrons.” The Department theorized that many movie theaters
utilized the newer, multi-channel assistive listening receivers,
and as a result, most movie theaters would not be required to
purchase additional devices in order to comply with this
requirement.
The Department received extensive comments regarding the
proposed scoping for audio description devices. Although commenters
overwhelmingly supported the proposed rule's goal of ensuring
access to audio description in movie theaters, only three
commenters agreed with the proposed scoping.
Several commenters recommended a greater number of audio
description devices than the Department proposed in the NPRM to
accommodate an increase in the number of individuals who are blind
or have low vision who will likely attend the movies if accessible
technologies are available. A few commenters recommended two audio
description devices per auditorium, citing a movie theater's usage
data to support the suggestion. One commenter, concerned that a
movie theater should be able to accommodate a larger group of blind
or visually impaired movie patrons, recommended at least eight
audio description devices per movie theater, or two devices per
auditorium, whichever is greater. Finally, one commenter proposed
requiring three audio description devices per auditorium to
accommodate a larger user pool, and to counteract a reduction in
available devices that may arise in the event of equipment failure,
or when devices are being recharged.
The majority of commenters, however, stated that the recommended
scoping was excessive and too inflexible. These commenters reasoned
that the proposed scoping failed to consider attendance variability
or demographics, and inhibited movie theaters from moving devices
between locations to effectively meet demographic needs. Commenters
recommended basing the number of required audio description devices
on factors such as weekend attendance, annual attendance, tracked
usage rates, and market demand. The Department received a large
number of comments from movie theaters stating that current
requests by patrons for audio description devices are extremely
low. Additionally, a trade association submitted comments stating
that member companies reported signing out a maximum of 1-4 audio
description devices at any time, and that these companies never had
more requests for devices than the number of devices available.
Based on this information, the trade association recommended that
the Department require one audio description device for every two
auditoriums, with a minimum of two devices per movie theater.
In addition to comments criticizing the proposed scoping,
commenters also addressed the Department's belief that most movie
theaters utilize multi-channel headsets to meet their assistive
listening device obligations. A couple of movie theaters indicated
that they have the dual-channel receivers. However, a trade
association commented that many movie theaters still rely on
single-channel headsets to meet their assistive listening device
obligations and that the Department erred in assuming that most
movie theaters would not need to buy additional devices in order to
comply with these scoping requirements.
In consideration of the comments received and the Department's
independent research, the Department has adjusted the required
number of audio description devices to one device for every two
auditoriums. The Department believes that the available data
supports its view that the revised scoping ensures that movie
theaters will have available an adequate number of devices without
requiring movie theaters to purchase more equipment than is likely
necessary. The final rule at renumbered § 36.303(g)(4)(i) reads as
follows: “A public accommodation shall provide at its movie
theaters a minimum of one fully operational audio description
device for every two movie theater auditoriums exhibiting digital
movies and no less than two devices per movie theater. When
calculation of the required number of devices results in a
fraction, the next greater whole number of devices shall be
provided.” The Department has retained the provision in proposed §
36.303(g)(3)(ii)(B) regarding the use of multi-channel assistive
listening receivers to meet this requirement. The Department notes
that if movie theaters are purchasing new receivers to replace
existing single-channel receivers, they may choose to purchase
two-channel receivers and then use them to meet both their
requirements to provide assistive listening receivers and audio
description devices if use of the two-channel receivers is
compatible with their audio description and assistive listening
systems. The Department does not, however, intend this provision to
discourage movie theaters from using induction loop systems for
sound amplification while using a different system for transmission
of audio description. Renumbered § 36.303(g)(4)(ii) states that
“[a] public accommodation may comply with the requirements in
paragraph (g)(4)(i) by using the existing assistive listening
receivers that the public accommodation is already required to
provide at its movie theaters in accordance with Table 219.3 of the
2010 Standards, if those receivers have a minimum of two channels
available for sound transmission to patrons.”
Section 36.303(g)(5) Performance Requirements for Captioning
Devices and Audio Description Devices
In the NPRM, the Department proposed performance requirements
for the individual devices used by movie patrons at their
individual seats. Proposed § 36.303(g)(2)(iii)(B) stated that the
individual devices needed to be adjustable; be available to patrons
in a timely manner; provide clear, sharp images; be properly
maintained; and be easily usable by the patron in order to ensure
effective communication.
While the comments were generally supportive of the existence of
performance requirements, there were differences of opinion
expressed about the specifics of this provision. Some commenters
supported the Department's language, but others expressed concern
that the requirements as written were vague and subjective. For
example, a few commenters proposed that the Department define
specific quantifiable and technical standards, and several
commenters suggested that the Department develop a program to
encourage the development of better accessibility technology due to
their concerns associated with the design and quality of current
technology.
The Department also received conflicting comments with respect
to adding requirements beyond those proposed in the NPRM. Several
commenters suggested that the Department require captioning devices
to have an adjustable font size while many disagreed, stating that
an adjustable font size requirement would be problematic. Other
commenters believed that the Department should require that all
devices be clean, in addition to being available and functional.
Commenters also suggested requiring quality assurance procedures,
frequent testing, and regular maintenance schedules to ensure that
the devices are functional and deliver complete and accurate
captions and audio description. One commenter encouraged the
Department to require that movie theaters maintain the most recent
technology in a range of device styles and consult with customers
and consumer groups to decide which devices to purchase. Although
the NPRM language focused on captioning devices, many of the
comments urged the Department to ensure that both captioning and
audio description devices are maintained and readily available.
After considering all comments, the Department has decided to
retain the performance requirements as proposed in the NPRM with
minor structural edits and to make clear that the requirements for
maintenance and timely availability apply to both types of devices.
The Department declines to impose any additional requirements
related to ensuring the functionality of the captioning and audio
description devices provided by movie theaters. The rule imposes
the responsibility on movie theaters to ensure that the equipment
is fully operational (meets all of the performance requirements in
the regulation) and available. The Department believes that movie
theaters are able to determine the best approach for ensuring
compliance with the regulatory requirements and notes that §
36.211(b) (Maintenance of accessible features) “does not prohibit
isolated or temporary interruptions in service or access due to
maintenance or repairs.”
The Department also declines to include specific technical
specifications regarding the captioning and audio description
devices. The Department notes that its approach to performance
requirements for captioning and audio description devices is
similar to the approach the Department took with respect to
performance standards for video remote interpreting services.
See § 36.303(f).
The Department also declines to impose an obligation that movie
theaters must upgrade to the most recent technology. While the
Department is in favor of technological development, such a
requirement is beyond the scope of this regulation. Additionally,
the Department believes that many of the concerns about current
devices raised by commenters (e.g., poor power connection or
poor signal) are adequately addressed by the requirements in
paragraphs (g)(3) through (5) - that devices be fully operational
and maintained.
Renumbered § 36.303(g)(5) of the final rule retains the
performance requirements proposed in the NPRM, but it has been
restructured for clarity.
Section 36.303(g)(6) Alternative Technologies
Although commenters on the 2010 Advance Notice of Proposed
Rulemaking, 75 FR 43467 (July 26, 2010) (ANPRM), encouraged the
Department to require open movie captioning at movie theaters, the
Department declined to make such a proposal in the NPRM, noting
that in the debate leading up to passage of the ADA, the House
Committee on Education and Labor explicitly stated that
“[o]pen-captioning, for example, of feature films playing in movie
theaters, is not required by this legislation.” H.R. Rep. No.
101-485, pt. 2, at 108 (1990). The Senate Committee on Labor and
Human Resources included a statement in its report on the ADA to
the same effect. S. Rep. No. 101-116, at 64 (1989). As the House
Committee also recognized, however, “technological 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.” H.R.
Rep. No. 101-485, pt. 2, at 108.
The Department included a provision in the NPRM giving movie
theater owners and operators the choice to use other technologies
to comply with the captioning and audio description requirements of
this rule. Proposed § 36.303(g)(2)(ii) provided that “[m]ovie
theaters may meet their obligation to provide captions to persons
with disabilities through use of a different technology, such as
open movie captioning, so long as the communication provided is as
effective as that provided to movie patrons without disabilities.
Open movie captioning at some or all showings of movies is never
required as a means of compliance with this section, even if it is
an undue burden for a theater to exhibit movies with closed movie
captioning in an auditorium.”
Commenters disagreed on whether this provision struck an
appropriate balance between the cost to movie theaters, the benefit
to individuals with hearing and vision disabilities, and the impact
on the movie-going experience for individuals without disabilities.
The majority of comments on this provision concerned open movie
captioning. Although some commenters expressed concern that an
open-movie-captioning requirement would have an impact on the
cinematic experience of hearing patrons, most commenters argued
that the Department should require open movie captioning. Several
open-movie-captioning requirements were proposed by commenters,
including: Requiring open movie captioning at 100 percent of
showings; requiring one open-captioned movie per day; requiring
dedicated open-captioned auditoriums; or requiring open movie
captioning if closed movie captioning is unavailable for any
reason. One commenter who supported an open-movie-captioning
requirement asserted that 95 percent of the deaf and hard of
hearing community prefers open movie captioning to the use of
captioning devices.
The commenters proposing an open-movie-captioning requirement
ultimately disagreed with the Department's interpretation of the
legislative history as indicating congressional intent that the ADA
did not require the provision of open movie captions at movie
theaters. One commenter reasoned that because modern open movie
captioning is significantly different from the open movie
captioning available in 1990, the legislative history on this point
represents a latent ambiguity. Therefore, in this commenter's view,
the Department is not bound by the legislative history concerning
open movie captioning and is free to require it. Other commenters,
however, agreed with the Department's statement in the NPRM and
argued that because the legislative history states that open movie
captioning is not required as a means of compliance with the ADA,
the rule should not mandate any conditions concerning
open-captioned showings.
In response to the Department's questions concerning the
parameters of the option to provide open movie captioning rather
than closed movie captioning, several commenters suggested that the
Department define what constitutes a “timely request” when a movie
patron requests open movie captioning. These commenters provided a
variety of suggestions, which ranged from the specific
(e.g., 1 hour or 1 day before the showing) to the ambiguous
(e.g., it should be reasonably easy).
Other comments also addressed whether the Department adequately
addressed new technology. One commenter agreed that the “different
technology” language encompassed any future technology, but further
suggested that the effectiveness of new technologies should be
judged from the baseline of “as effective as captioning and/or
audio description devices.” Other commenters disagreed and
criticized the rule for not addressing other currently available
technologies, such as hearing loop systems, InvisivisionTM glasses,
or smart phone applications.
After considering all of the comments, the Department has
decided to retain the option to comply with the captioning and
audio description requirements of this rule through the use of any
other technology that is or becomes available to provide effective
communication to patrons with hearing and vision disabilities,
including open movie captioning. The Department has clarified,
however, that in those circumstances where a public accommodation
chooses to use open movie captioning at all showings of all movies
available with captioning or at all times it receives a request to
turn on open movie captions prior to the start of the movie, it is
not also required to comply with the specific requirement to obtain
captioning devices. However, if a public accommodation only makes
open movie captioning available to patrons who are deaf or hard of
hearing at some showings of movies available with captioning, it
will still have to comply with the requirements to provide
captioning devices because it must provide effective communication
at all showings of all movies available with captioning.
The Department has made other changes to the structure and
language of this provision in response to comments and to better
preserve the intent and longevity of this paragraph. The final rule
now reads “through any technology,” instead of “through use of
different technology.” Although the Department declines to endorse
specific technologies, the Department believes that the revised
language better articulates the purpose of this paragraph to
encompass current and future technologies that may serve
individuals with hearing and vision disabilities. The requirement
that public accommodations provide auxiliary aids and services to
ensure communication as effective as that provided to movie patrons
without disabilities remains unchanged as that is the standard for
effective communication required by § 36.303(c). See 28 CFR
part 36, app. C (explaining that public accommodations must provide
appropriate auxiliary aids and services “to ensure that
communication with persons with disabilities is as effective as
communication with others”).
The Department maintains its view that Congress did not intend
the ADA to require movie theaters to provide open movie captioning.
Although the technology to provide open movie captioning has
changed and enables movie theaters to provide the service more
easily, open movie captioning as it exists today remains visible to
all movie patrons and has not changed in this respect. As a result,
the Department's position remains consistent with the legislative
history on this point, and the final rule retains the language
(with some minor edits) in proposed § 36.303(g)(2)(ii), which
provided that “[o]pen movie captioning at some or all showings of
movies is never required as a means of compliance with this
section, even if it is an undue burden for a theater to exhibit
movies with closed movie captioning in an auditorium.” In the final
rule, however, the Department has moved this language to new §
36.303(g)(10).
The revised provision addressing other technologies, renumbered
in the final rule as § 36.303(g)(6), enables a public accommodation
to meet its obligation to provide captioning and audio description
through alternative technologies that provide effective
communication for movie patrons with hearing and vision
disabilities. Section 36.303(g)(6) further provides that a public
accommodation may use open movie captioning as an alternative to
complying with the captioning device scoping requirements of this
rule by providing open movie captioning at all showings, or
whenever requested by or for an individual who is deaf or hard of
hearing.
Section 36.303(g)(7) Compliance Date for Providing Captioning and
Audio Description
In the NPRM, the Department proposed at § 36.303(g)(4)(i) that
all movie theaters with auditoriums displaying digital movies must
comply with the requirements of the rule within 6 months of the
publication date of the final rule. The Department also proposed to
give movie theaters that converted their auditoriums with analog
projection systems to digital projection systems after the
publication date of the rule an additional 6 months from the date
of conversion to comply with the rule's requirements. Although the
Department expressed the belief that 6 months was sufficient time
for movie theaters to order and install the necessary equipment,
train employees on how to use the equipment and assist patrons in
using it, and notify patrons of the availability of these services,
the Department requested public comment on the reasonableness of a
6-month compliance date.
The Department received many comments both against and in favor
of the proposed 6-month compliance date. A minority of comments
from a few disability advocacy groups and a few private citizens
supported the proposed 6-month compliance date. These commenters
asserted that because most movie theaters had already committed to
providing captioning and audio description to their patrons by the
end of 2014, the 6-month compliance date was, in their view,
reasonable.
The vast majority of commenters, however, asserted that 6 months
was not enough time for the remaining movie theaters to comply with
the requirements of this rule. These comments raised concerns about
manufacturers' ability to sustain the sudden, increased demand that
the scoping requirements would likely create for captioning and
audio description devices. Industry commenters stated that movie
theaters already experience considerable delays between order date
and delivery date and that, with increased demand and a limited
supply, the prices of these devices would likely increase,
especially for lower volume purchasers. Industry commenters further
advised the Department that a trained technician must install the
captioning and audio description equipment and that their
experience indicates that there is a waiting period for such
services. Commenters also expressed concern that the compliance
date proposed in the NPRM was drastically different from the phased
compliance date proposed in the ANPRM and that the Department's
rationale for the change was insufficient.
Finally, some commenters expressed concern that small movie
theaters in particular would have difficulty complying with the
requirements of the rule within the proposed 6-month compliance
date. Commenters advised that small movie theaters would need
additional time to raise the necessary funds or adjust their
budgets in order to purchase the equipment.
Based on these concerns, commenters offered a variety of
alternative compliance dates. The Joint Comment suggested that the
Department require movie theaters to issue purchase orders for the
equipment within 6 months of the final rule's publication, but
require fully functional and operational devices and trained staff
either within 2 years of the final rule's publication or 6 months
of system delivery, whichever came first. Other commenters
suggested compliance dates ranging from 1 year to 4 years. One
major movie theater chain in particular recommended an 18-month
compliance date, stating that this is the amount of time that it
currently takes to order and install the necessary equipment. Some
commenters suggested a sliding compliance schedule based on a movie
theater's gross revenue or a movie theater's size, and others
suggested a phased compliance date similar to the schedule
articulated in the ANPRM.
In consideration of these comments and the Department's
independent research, the Department agrees that 6 months may be an
insufficient amount of time for movie theaters to comply with the
requirements of paragraph (g) of this section, and the Department
instead will require compliance beginning 18 months from the date
of publication of the final rule. The Department believes that an
18-month compliance period sufficiently accounts for potential
delays that may result from manufacturer backlogs, installation
waitlists, and other circumstances outside a movie theater's
control. This date also gives small movie theaters that are
financially impacted as a result of the unrelated costs of digital
conversion a sufficient amount of time to plan and budget
accordingly. The Department declines to include a requirement that
movie theaters issue purchase orders for the equipment within 6
months of the final rule's publication because such a requirement
is unenforceable without imposing recordkeeping and reporting
requirements.
The final rule continues to provide additional time for movie
theaters converting their auditoriums from analog projection
systems to digital projection systems after the publication date of
the final rule. Once the installation of a digital projection
system is complete, meaning that the auditorium has installed the
equipment needed to exhibit a digital movie, the movie theater has
at least an additional 6 months to ensure compliance with the
requirements of the rule and provide closed movie captioning and
audio description when showing digital movies in that auditorium.
Renumbered § 36.303(g)(7)(ii) states that “[i]f a public
accommodation converts a movie theater auditorium from an analog
projection system to a system that allows it to exhibit digital
movies after December 2, 2016, then that auditorium must comply
with the requirements in paragraph (g) of this section by December
2, 2018, or within 6 months of that auditorium's complete
installation of a digital projection system, whichever is later.”
The Department believes that this approach will provide movie
theaters in the process of converting to digital projection after
the publication date of the rule a sufficient amount of time to
acquire the necessary equipment to provide captioning and audio
description.
Section 36.303(g)(8) Notice
The Department believes that it is essential that movie theaters
provide adequate notice to patrons of the availability of captioned
and audio-described movies. In the NPRM, the Department proposed at
§ 36.303(g)(5) that movie theaters provide information regarding
the availability of captioning and audio description for each movie
in communications and advertisements intended to inform potential
patrons of movie showings and times and provided by the theaters
through Web sites, posters, marquees, newspapers, telephone, and
other forms of communication.
Commenters on the NPRM unanimously supported the inclusion of
some form of a notice requirement in the final rule but differed on
the scope of that requirement. Some commenters supported requiring
notice in all places where a captioned or audio-described movie is
advertised, and another commenter asked the Department to include
as many forms of communication as possible in the language of the
final rule, including mobile phone applications. These commenters
reasoned that individuals who are deaf or hard of hearing, or blind
or have low vision, should be able to find this information easily.
Several other commenters, however, asked the Department to limit
the notice requirement to the box office, ticketing locations, and
the movie theater's Web site. Although such commenters raised
concerns about the high cost associated with a requirement that
covers all communications and advertisements, they offered no other
rationale for why they were proposing a limited requirement.
In addition to the scope of the requirement, commenters also
addressed the form of the notice required. One commenter requested
that the Department require a uniform notice by all movie theaters,
and another commenter suggested that the Department require movie
theaters to include within the notice the universal symbols for
captioning and audio description as well as the type of device
available.
Other commenters pointed to industry realities in order to
highlight their concerns with the proposed provision. Some
commenters expressed concern that movie theaters would be liable
for a third party's failure to include information about captioning
and audio description availability in their communications although
movie theaters lack control over these communications. Commenters
also advised the Department that there may be circumstances where
compliance with the notice requirement would be difficult for some
types of media. These commenters contend, for example, that movie
theaters often book a film without knowing whether it is captioned
or audio-described and that print deadlines may materialize before
that information is available.
After considering these comments and the information available
to the Department, the Department has revised its proposed notice
language. The Department agrees that notice may not be necessary on
all forms of communications and advertisements but disagrees that
the notice obligation should be limited only to the box office,
ticketing locations, and the movie theater's Web site. For example,
telephone recordings serve an especially important medium of
communication for individuals who are blind or have low vision and
who may not utilize Web-based or print media to access information
concerning movie showings. Similarly, newspapers serve an
especially important medium of communication for individuals who
may not use Web-based media generally. Moreover, according to the
Department's research, movie theaters utilize proprietary mobile
phone applications to inform potential patrons of movie showings
and times, and some already advertise the availability of
captioning and audio description devices on these applications. 2
Therefore, the Department has decided to require movie theaters to
provide notice on communications and advertisements provided at or
on any of the following: The box office and other ticketing
locations, Web sites, mobile apps, newspapers, and the
telephone.
2 The Department's research indicates that the following movie
theater companies operate mobile phone applications and advertise
the availability of captioning and audio description on these
platforms: Regal Entertainment Group, AMC Theatres, Cineplex
Entertainment, and Harkins Theatres. See, e.g., American
Multi-Cinema, Inc., AMC Theatres (Version 5.2.2, 2016) (mobile
application software), available at
https://itunes.apple.com/us/app/amc-theatres/id509199715?ls=1&mt=8
(last visited Sept. 12, 2016); Regal Cinemas, Inc., Regal - Movie
Tickets and Showtimes for Regal Cinemas, United Artists and Edwards
Theatres (Version 3.4.2, 2016) (mobile application software),
available at
https://itunes.apple.com/us/app/regal-cinemas/id502912815?mt=8
(last visited Sept. 12, 2016).
The Department declines to require a specific form of notice to
describe the availability of captioning or audio description. The
Department notes that movie theaters already appear to be using a
relatively uniform method of advising the public about the
availability of captioning and audio description. A review of Web
sites and newspaper advertising indicates that movie theaters
routinely use “CC” and “OC” to indicate the availability of closed
and open movie captioning and “AD” or “DV” to indicate the
availability of audio description.
As the Department specifically noted in the NPRM and makes clear
in the final rule, the rule does not impose obligations on
independent third parties that publish information about movies,
and these third parties will not face liability under the ADA if
they fail to include information about the availability of
captioning and audio description at movie theaters.
Renumbered § 36.303(g)(8) of the final rule requires that
whenever a public accommodation provides captioning and audio
description in a movie theater auditorium exhibiting digital movies
on or after January 17, 2017, its notices of movie showings and
times, provided at the box office and other ticketing locations, on
Web sites and mobile apps, in newspapers, and over the telephone,
must inform potential patrons of the movies that are being shown
with captioning and audio description. The final rule further
provides that this obligation does not extend to third parties that
provide information about movie theater showings and times, as long
as the third party is not under the control of the public
accommodation.
This provision applies to movie theaters once they provide
captioning and audio description for digital movies on or after the
effective date of the rule, January 17, 2017. Thus, movie theaters
that already show digital movies with closed movie captions and
audio description must comply with this provision as soon as the
rule takes effect.
Section 36.303(g)(9) Operational Requirements
In response to the ANPRM, the Department received a significant
number of comments from individuals with disabilities and groups
representing persons who are deaf or hard of hearing and who are
blind or have low vision strongly encouraging the Department to
include a requirement that movie theater staff know how to operate
captioning and audio description equipment and be able to
communicate with patrons about the use of individual devices.
Having considered those comments, the Department included in the
NPRM proposed § 36.303(g)(6), which required movie theaters to
ensure that at least one individual was on location at each
facility and available to assist patrons whenever showing a
captioned or audio-described movie. The proposed § 36.303(g)(6)
further required that such individual be able to operate and locate
all of the necessary equipment and be able to communicate
effectively with individuals with hearing and vision disabilities
about the uses of, and potential problems with, the equipment.
All of the comments on the NPRM that addressed this proposed
language acknowledged that staff training regarding the operation
of equipment is vital to the proper functioning of the rule. A
number of commenters stated that on numerous occasions when they
attempted to go to a movie advertised as having captioning or audio
description, there was no staff available who knew where the
captioning devices were kept or how to turn on the captioning or
audio description for the movie. Many of these commenters indicated
that they were unable to experience the movie fully because of the
lack of trained personnel, even if the auditorium was properly
equipped and the movie was actually available with captioning or
audio description.
A handful of commenters requested that the Department expand its
proposed operational requirement, emphasizing concerns about movie
theater staff's current knowledge concerning the operation of
available equipment. One commenter encouraged the Department to
specifically require all movie theater personnel to be properly and
uniformly trained in providing such services, and other commenters
suggested that all movie theater personnel be trained as to the
availability of these services. Other comments encouraged the
Department to enumerate specific requirements to ensure that movie
theater staff is capable of operating the captioning and audio
description equipment, including a requirement that management
document employee training and a requirement that employees receive
periodic refresher courses.
A few commenters questioned the need for the proposed language
in § 36.303(g)(6)(iii), which required movie theaters to
“[c]ommunicate effectively with individuals who are deaf or hard of
hearing and blind or have low vision regarding the uses of, and
potential problems with, the equipment for such captioning or audio
description.” One commenter asserted that an “effective
communication” requirement in the proposed paragraph (g)(6)(iii)
was superfluous given the overarching requirements in § 36.303(c).
Other commenters supported the proposed language, stating that
movie theater staff, including managers, often are not
knowledgeable on how to properly communicate with individuals who
are deaf, hard of hearing, blind, or have low vision. A State
government also pointed out that in Camarillo v. Carrols
Corp., 518 F.3d 153, 157 (2d Cir. 2008) (per curiam), the
Second Circuit held that a public accommodation's failure to
provide employee training on effective communication with
individuals with disabilities can constitute a violation of title
III, specifically 42 U.S.C. 12182(b)(2)(A)(iii).
The final rule retains the operational requirements proposed in
the NPRM in renumbered § 36.303(g)(9) and adds the requirement that
if a movie theater is relying on open movie captioning to meet the
requirements of paragraph (g)(3), it must also ensure that there is
an employee available at the theater who knows how to turn on the
captions. The Department declines to add a specific requirement
that all personnel be trained, as it believes that it is sufficient
if a movie theater has at least one knowledgeable employee on
location at all times to ensure that the service is available and
provided without interruption. While the Department agrees that it
would be a good idea for movie theaters to implement reasonable
staff training programs and periodic refresher courses, the
Department declines to take these recommendations and has not
included in the final rule specific logistical requirements
concerning movie theater staff training.
The Department has decided to retain in the final rule the
language in proposed § 36.303(g)(6)(iii) requiring movie theater
staff to effectively communicate with individuals who are deaf or
hard of hearing, or blind or have low vision, regarding the uses
of, and potential problems with, the captioning and audio
description devices. The Department notes, however, that
communicating effectively with patrons about the availability of
captioning at a movie theater would not require a movie theater to
hire a sign language interpreter. Communication with a person who
is deaf or hard of hearing about the availability of these services
or how to use the equipment involves a short and relatively simple
exchange and therefore can easily be provided through signage,
instructional guides, or written notes.
Final § 36.303(g)(9) requires that whenever a public
accommodation provides captioning and audio description in a movie
theater auditorium exhibiting digital movies on or after January
17, 2017, at least one theater employee must be available to assist
patrons seeking or using the captioning or audio description
equipment. The employee must be able to quickly locate and activate
the necessary equipment; operate and address problems with the
equipment prior to and during the movie; turn on the open movie
captions if the movie theater is relying on open movie captions to
meet its effective communication requirements; and communicate
effectively with individuals with disabilities about how to use,
operate, and resolve problems with the equipment.
This provision applies to movie theaters once they provide
captioning and audio description for digital movies on or after the
effective date of the rule, January 17, 2017. Thus, movie theaters
that already show digital movies with closed movie captions and
audio description must comply with this provision as soon as the
rule takes effect.
Section 36.303(g)(10)
Section 36.303(g)(10) in the final rule provides that “[t]his
section does not require the use of open movie captioning as a
means of compliance with paragraph (g), even if providing closed
movie captioning for digital movies would be an undue burden.” The
NPRM proposed similar language at § 36.303(g)(2)(ii). See
discussion of comments on final § 36.303(g)(6), supra.