Seyfarth Synopsis: DOJ published regulations today requiring that movie theaters throughout the United States provide closed captioning and audio description to patrons with disabilities for digital movies distributed with these features.
Today, the Department of Justice (DOJ) published its final rule requiring theaters throughout the United States to provide closed captioning and audio description (if available) for movies exhibited in digital format. The new regulations will take effect on January 17, 2017.
As we covered here, DOJ issued a Notice of Proposed Rulemaking (NPRM) in August of 2014, which proposed rules requiring that theaters purchase and deploy specific equipment to provide closed captions for individuals who are deaf or hard of hearing, and audio description for patrons with visual impairments. The proposed regulations also included requirements to advertise the availability of these technologies, and have a staff member on-site to locate, operate, and troubleshoot this equipment.
The final rule adopts many of these proposals, although several were scaled back, presumably in response to public comments submitted by theater representatives, advocates and owners. DOJ estimates that complying with these regulations will nonetheless cost the industry between $88.5 and $113.4 million over the next 15 years.
We outline the key provisions below.
1. Applies to All Digital (Not Analog) Movie Theaters
The new regulations apply to movies shown in digital format (i.e. images and sound captured on computer disk rather than film) and not analog format (i.e. 35 mm). Although DOJ solicited comments on whether to extend the regulations to analog movies, it deferred that issue for future rulemaking. The final rule cites statistics submitted by the National Association of Theater Owners (NATO) that 98 percent of indoor auditoriums in the U.S. have already been converted from analog to digital.
The final rule applies to theaters and other facilities that are used primarily to show movies for a fee. Thus, museums, hotels, cruise ships and other public accommodations that show movies to patrons, but not as a primary means of their business, are excluded.
The new regulations apply to all covered theaters, regardless of seating capacity or the number of screens. Thus, a small community theater with one or two screens will be subject to the same regulations as a megaplex with over 16 screens. The final rule does not apply to drive-ins.
2. Theaters Must Have a Minimum Number of Closed Captioning Devices Based on the Number of Screens
Closed captioning devices provide written text of movie dialogue and sounds (e.g. music, sound effects, identification of which character is speaking) to an individual patron at his or her seat. Theaters must have a sufficient number of devices on hand based on the number of screens exhibiting digital movies, as opposed to total theater seating capacity as suggested in the NPRM. The requirements are as follows:
Number of Theater Auditoriums Exhibiting Digital Movies Minimum Required Number of Captioning Devices 1 4 2-7 6 8-15 8 16+ 12
The DOJ commentary cites comments and research that the scoping proposed in the NPRM would have substantially exceeded actual demand for this equipment.
In addition, the final rule provides that theaters can utilize open captioning (where captioning can be viewed by everyone in the auditorium) as an alternative means of complying, but are not required to do so. To satisfy the requirements with open captioning, the theater must either display open captions at all showings, or activate open captions whenever they are requested by an individual who is deaf or hard of hearing before the movie starts.
3. Theaters Must Have One Audio Description Device for Every Two Screens
In addition to captioning, the final rule also requires that theaters are equipped with audio description devices that provide spoken narration of key visual elements of a movie, such as the actions, settings, facial expressions, costumes and scene changes.
Theaters must have at least one audio description device for every two screens, but theaters with only one screen must have at least two devices. DOJ reduced the scoping requirement proposed in the NPRM of one audio description device per screen.
This requirement may be satisfied with existing assistive listening receivers (which amplify sound rather than narrate events that occur on-screen) that theaters are already required to provide, but only if these devices have a minimum of two channels available for sound transmission.
4. Theaters Must Show Movies with Captioning and Audio Description if Available
If a theater exhibits a movie that is distributed with closed captioning and/or audio description features, then the theater must exhibit that version of the movie at all scheduled showtimes. DOJ’s commentary provides that this requirement neither prohibits theaters from exhibiting a movie not distributed with captioning or audio description, nor requires that they independently add such features.
5. Closed Captioning Devices Must Satisfy Performance Criteria
The final rule adopted the performance standards for closed captioning devices proposed in the NPRM, which many industry commenters criticized as vague and subjective.
The new regulations will require that closed captioning devices must:
- Be properly maintained;
- Be easily usable by patrons;
- Be adjustable so that the captions can be viewed as if they are on or near the movie screen; and
- Provide clear, sharp images in order to ensure the readability of captions.
It is not clear what constitutes an “easily usable” device, for example, or the font size or resolution that provides sufficiently “clear, sharp images” to satisfy these requirements. These uncertainties may lead to future litigation. In its commentary, DOJ did note that performance standards for captioning devices are subject to existing regulations that permit, with respect to the maintenance of accessible features, “isolated or temporary interruptions in service or access due to maintenance or repairs.” 28 C.F.R. § 36.211.
6. Other Technologies May be an Acceptable Substitute for Closed Captioning
Theaters may use technologies other than closed captioning, as long as the technology used provides communication that is as effective as that provided to patrons without disabilities.
7. Digital Theaters Must Comply with Captioning and Audio Description Requirements by June 2, 2018
Theaters showing digital movies on December 2, 2016 must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by June 2, 2018. If a theater converts an auditorium from an analog projection system to a system that it allows it show digital movies after December 2, 2016, then it must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by December 2, 2018, or within 6 months of that auditorium’s complete installation of a digital projection system, whichever is later. DOJ ultimately rejected the aggressive, 6 month timeframe for compliance proposed in the NPRM.
8. Theaters Must Have Staff On-Site Who Can Locate, Operate, and Troubleshoot Existing Assistive Equipment by January 17, 2017
At least one person (presumably an employee) who can locate, operate, and address problems with all captioning and audio description equipment must be at the theater at all times. This employee must also be able to communicate effectively with customers with disabilities regarding the uses of, and potential problems with, captioning and audio description devices. The final rule also requires that theater staff “quickly activate the equipment and any other ancillary systems,” although neither the regulation nor the commentary address what “quickly” means in this context.
DOJ rejected the suggestion from some industry commenters that the regulations should expressly provide that theaters should not be required to hire sign language interpreters to communicate with deaf or hard of hearing patrons regarding this equipment. The agency did, however, note in its commentary that effective communication concerning these devices would not require a sign language interpreter, but instead “can easily be provided through signage, instructional guides, or written notes.”
In adopting these personnel requirements, DOJ also apparently relied on comments from individuals with disabilities and advocacy groups who reported that theater staff are generally not properly trained in the use, operation and maintenance of existing assistive equipment. DOJ declined to impose an explicit employee training requirement in the final rule.
Significantly, theaters that already exhibit digital movies must comply with these requirements by the effective date of January 17, 2017.
9. Theaters Must Comply with New Advertising Requirements by January 17, 2017
As with the proposed rule in the NPRM, the final rule requires that a theater’s communications and advertisements intended inform potential patrons of movie showings and times must indicate whether each movie is available with captioning and/or audio description. Although the proposed rule would have imposed this requirement on practically all forms of advertisements, the final rule applies to the box office and other ticketing locations, websites and mobile apps, newspapers and over the telephone. It does not apply to third party ticket providers or websites if they are not part of, or subject to, the control of the public accommodation.
Theaters that already provide captioning and audio description services must comply with these advertising requirements by the effective date of the regulations.
We are continuing to evaluate the final rule and its potential impact on public accommodations. It is apparent, however, that the regulations, set to take effect three days before the President-elect’s inauguration, will enhance the accessibility of moviegoing in the United States, while also imposing additional costs on the industry in the form of new equipment, employee training, advertising and future litigation.
Stay tuned for further analysis and updates on these new regulations.