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| DOJ/CRT | RIN: 1190-AA63 | Publication ID: Spring 2011 |
| Title: Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description | |
| Abstract: On July 26, 1991, the Department of Justice published a final rule implementing title III of the Americans with Disabilities Act of 1990 (ADA). Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation-as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)-to comply with the ADA Standards (42 U.S.C. 1218189). Title III makes it unlawful for places of public accommodation, such as movie theaters, to discriminate against an individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation (42 U.S.C. 12182[a]). Moreover, title III prohibits places of public accommodation from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals (42 U.S.C. 12182(b)(1)(A)(ii)). Title III requires places of public accommodation 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 entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden," (42 U.S.C. 12182(b)(2)(A)(iii)). The statute defines auxiliary aids to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments" and "taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments," (42 U.S.C. 12103(1)(A)-(B)). The Department's title III regulation specifically lists open and closed captioning and audio recordings and other effective methods of making aurally and visually delivered materials available to individuals with hearing and visual impairments as examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the good or service being offered or would result in an undue burden (28 CFR 36.303(a)). Because, in pertinent part, the legislative history of title III stated that "[o]pen-captioning of feature films playing in movie theaters, is not required by this legislation," H.R. Rep. No. 101-485 (II), at 108 (1990), S. Rep. No. 101-116 at 64 (1989), the Department stated in its 1991 rule that "[m]ovie theaters are not required to present open-captioned films," 56 FR 35544, 35567 (July 26, 1991). The Department was silent regarding closed captioning and video description in movie theaters. The Department noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons who are deaf or hard of hearing. Captioning is one means to make the information accessible to individuals with disabilities." Since 1991, there have been many technological advances in the area of closed captioning and video description for first-run movies. In the legislative history of the ADA, the House Committee stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities" and that "[s]uch 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 (II), at 108. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) to adopt the revised ADA Standards and, in pertinent part, revise the title III regulation. 73 FR 34508. In that NPRM, the Department stated that it was considering options under which it might require that movie theater owners or operators exhibit movies that are captioned for patrons who are deaf or hard of hearing and movies that provide video (narrative) description for patrons who are blind or have low vision. The Department received numerous comments urging the Department to issue captioning and video description regulations under the ADA. Rather than using these comments to formulate a final rule, however, the Department decided to issue a supplemental ANPRM for three main reasons. First, the Department wished to obtain more information regarding several issues raised by commenters that were not contemplated at the time the 2008 NPRM was published. Second, the Department sought public comment on several technical questions that arose from the research the Department undertook to address some of the issues raised by commenters to the original NPRM. Finally, in the two years that have passed since issuance of the 2008 NPRM, the Department was aware that movie theater owners and operators, particularly major movie theater owners and operators, either have entered into, or had plans to enter into, agreements to convert to digital cinema. However, during this same time period, the United States' economy, and the profitability of many public accommodations, experienced significant setbacks. The Department wished to learn more about the status of digital conversion, concrete projections regarding if and when movie theater owners and operators, both large and small, expected to exhibit movies using digital cinema, when such movie theater owners and operators expected to implement digital cinema, by percentages, in their theaters, and any relevant protocols, standards, and equipment that have been developed regarding captioning and video description for digital cinema. In addition, the Department sought information regarding whether, in the last two years, other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement. | |
| Agency: Department of Justice(DOJ) | Priority: Other Significant |
| RIN Status: Previously published in the Unified Agenda | Agenda Stage of Rulemaking: Proposed Rule Stage |
| Major: No | Unfunded Mandates: No |
| CFR Citation: 28 CFR 36 | |
| Legal Authority: 42 USC 12101, et seq | |
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Legal Deadline:
None |
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Timetable:
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| Regulatory Flexibility Analysis Required: Undetermined | Government Levels Affected: None |
| Small Entities Affected: Businesses | Federalism: No |
| Included in the Regulatory Plan: No | |
| RIN Data Printed in the FR: No | |
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Agency Contact: John L. Wodatch Chief, Disability Rights Section Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW, Washington, DC 20030 Phone:800 514-0301 TDD Phone:800 514-0383 Fax:202 307-1198 |
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