Hope everyone had a great Thanksgiving! Before moving onto the blog of the week, a housekeeping matter is in order. For the third year in a row, Understanding the ADA has been selected as one of the top 100 legal blogs by the American Bar Association. No way could I have done that without the loyal readers here. Thank you to all my readers and to those who nominated me. I so much appreciate your readership; it makes it all worthwhile.

The blog of the week is all about movies. Before moving on to highlighting the final rule from the Department of Justice on movie captioning and audio description, I do want to say that if there are any proposed rules out there in any legal discipline that have gone beyond the commenting period, it wouldn’t surprise me in the least if you see a mad rush to final rule status before our next president is sworn in, since rules completing the rulemaking process are very difficult to overturn.

So, turning to the final rule on movie captioning and audio description, here are some of the highlights:

  1. The rule is effective 45 days after publication in the Federal Register (I don’t have the precise date, but about a month and ½ from now).
  2. Places of public accommodations with movie theater auditoriums showing digital movies as of the date of publication in the Federal Register must comply with the requirements to provide close movie captioning and audio description in such auditoriums by 18 months after publication of the final rule. If the place of public accommodation converts it movie auditorium from an analog projection system to a digital production system, then it must comply with the rule’s requirements by 24 months after publication in the Federal Register or within six months of that auditorium’s complete installation of a digital projection system, whichever is later.
  3. The rule does not apply to drive-in movies because the Department of Justice, based upon the comments it received, believes that the technology does not exist for drive-in movies. That said, I wouldn’t be so sure of that. The department also notes that drive-in theaters are declining in a big way.
  4. The rule only applies to public accommodations that own, lease, or operate movie theaters with auditoriums showing movies produced in digital cinema format.
  5. Within 18 months of the date of publication of the final rule in the Federal Register, public accommodations owning, leasing, or operating movie theaters have to ensure that their movie theater auditoriums exhibiting digital movies produced or distributed with closed movie captions and audio description provide such features to patrons with hearing and vision disabilities at all showings.
  6. Requires movie theaters to have a minimum number of fully operational audio description devices and to be able to provide them to patrons upon request. With respect to audio description devices, a public accommodation must have 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. If that calculation winds up being a fraction, the next greater whole number of devices is what is needed to be provided. With respect to the audio description devices, a movie theater complies with the rule if it uses existing assistive listening receivers that it is already required to provide, assuming those receivers have a minimum of two channels available for sound transmission to patrons.
  7. Movie theaters must have staff available who are able to operate and respond to problems with all equipment necessary to deliver captioning and audio description and to show patrons how to use the individual devices whenever digital movies with such features are shown.
  8. The Department of Justice felt the rule was necessary because captioning makes movies accessible to individuals who are deaf or hard of hearing but are unable to benefit from the sound amplification provided by movie theaters assistive listening receivers (I am in that category).
  9. For that matter, the blind are also at a disadvantage in movie theaters unless they have audio description. Audio description enables the blind or people with low vision to hear spoken narration of a movie’s key visual elements, such as the action, setting, facial expression, costume, and scene changes by utilizing a separate script that is then recorded and synchronized with the movie. It is then put on the audio channels and delivered from the server via infrared, FM, or Wi-Fi system to wireless headsets worn by the patrons.
  10. The Department of Justice believes that requiring movie captioning is consistent with the legislative history of the ADA.
  11. The Department of Justice also believes that it is not a fundamental alteration of the business of showing movies in theaters exhibiting movies already distributed with close captioning and audio description in order to ensure effective communication for the deaf, hard of hearing, blind, or those with low vision.
  12. A final rule should lead to a decrease or near elimination of confusion regarding what accommodation movie theaters must provide. The current ADA title III regulation does not contain explicit requirements specifying how movie theaters must meet their effective communication obligations and that is one of the reasons behind multiple private lawsuits filed throughout the country. Explicit requirements at the national level will lead to standardization across the country.
  13. The number of devices a movie theater must have available depends upon the number of auditoriums in a theater and not the number of seats. In particular the minimum required number of captioning devices goes like this: four captioning devices for one auditorium; six captioning devices for 2-7 auditoriums; eight captioning devices for 8-15 auditoriums; and 12 captioning devices for 16 or more auditoriums.
  14. Lots of places show movies, sometime for a fee, but the definition of a movie theater in the final rule is narrow. That is, it has to be a facility containing one or more auditoriums used primarily for the purpose of showing movies to the public for a fee. That said, if the facility does not meet this definition, that facility still has title III effective communication obligations to deal with.
  15. The final rule contains no new record-keeping reporting requirements. However, movie theaters are required to inform the public of the availability of captioning and audio description on all notices of movie showings and times at the box office and other ticketing locations, on website and mobile apps, in newspapers, and over the telephone (I am already seeing that in the Atlanta Journal-Constitution, and I find it very helpful).
  16. There is always new technology coming along, as alluded to above, and so the rule specifically allows new technology to be used provided the technology provides communication as effective as that provided to movie patrons without disabilities.
  17. Open captioning (where everyone can see the captioning), is a suitable substitute for captioning devices.
  18. At least one employee must be available at the movie theater to assist patrons seeking or using captioning or audio description whenever a digital movie is exhibited. Such assistance includes the ability to: locate all necessary equipment that is stored and to be able to quickly activate the equipment and any other ancillary systems required for the use of the captioning devices and audio description devices; operate and address problems with all captioning and audio description equipment prior to and during the movie; turn on open movie captions if the movie theaters is relying on open movie captioning to meet the requirements of the rule; communicate effectively with individuals with disabilities, including those who are deaf or hard of hearing or who are blind or have low vision, about how to use, operate, and resolve problems with captioning devices and audio description devices.
  19. We have previously talked about the effective communication regulations in many places in our now thrice ABA award winning blog, such as here. What is interesting is that in the guidance to these regulations, the Department of Justice does not go as far as it has previously gone before. In particular, the Department of Justice says in its guidance that communicating effectively with patrons about the availability of captioning at a movie theater does not require movie theaters to hire a sign language interpreter. It believes that communication with the person who is deaf or hard of hearing about the availability of the services or how to use the equipment involves a short and relatively simple exchange, and therefore, is easily provided through signage, instructional guides, or written notes. All I can say to that is hmmmmmmmmm. I see the point, but I am not so sure about the “short and relatively simple exchange,” statement…