[announce] FW: ACB Comments on Audio Description ANPRM

[Eric Bridges]

Over the last few months a working group of ACB members have come together
to produce comments in response to the Department of Justice’s Advanced
Notices of Proposed Rule Making (ANPRM) in the areas of audio description,
equipment, and web accessibility. Below are our comments in response to the
audio description ANPRM. 

A great many thanks go to Kim Charlson, Paul Edwards, Pratik Patel, and Mark
Richert for their dedication and very  thoughtful construction of these
three separate responses. Thank you to Kim Charlson for her leadership
specifically in serving as chief author  of the below comments.

 

 

Eric 

 

 

Comments of the American Council of the Blind regarding the Advance Notice
of Proposed Rulemaking on Title III of the Americans with Disabilities Act,
28 C.F.R. Part 36; CRT Docket No. 112; AG Order No. RIN 1190-AA63, Movie
Captioning and Video Description 

published in the Federal Register, July 26, 2010, 75 FR 43467

 

For further information, contact

Eric Bridges

Director of Advocacy and Governmental Affairs

American Council of the Blind

2200 Wilson Boulevard, Suite 650

Arlington, VA 22201

202-467-5081

ebridges at acb.org

 

January 14, 2011

 

The American Council of the Blind (ACB) is a national membership
organization. Its members are blind, visually impaired, and fully sighted
individuals who are concerned about the dignity and well-being of blind
people throughout the nation.

 

Established in 1961, ACB is one of the largest organizations of people who
are blind in the world, with more than 70 state and special interest
affiliates and a nationwide network of chapters and members spanning the
globe.

 

In 2008, the ACB established the Audio Description Project (ADP) to boost
levels of description activity and disseminate information on audio
description work throughout the United States and worldwide. ACB is
committed to the development of audio description in a wide range of
formats, including movie theaters. 

 

The most current demographic information available reveals that more than 25
million Americans (about 1 out of every 15 people) report experiencing
significant vision loss, i.e., individuals who have trouble seeing, even
when wearing glasses or contact lenses, as well as individuals who are
blind.[1][1]

 

Of this population, at least 6.5 million individuals are more severely
visually impaired (Packer and Kirchner, 1997). Survey data of State Special
Education staff found that over 93,000 children served through special
education (ages 0 to 21) in 1998 were visually impaired or blind (American
Foundation for the Blind, 2000). Data collected by the American Printing
House for the Blind indicates there were 55,200 legally blind children in
1999. Additional data collected by the U.S. Bureau of the Census related to
visual impairments of discrete groups suggest that when compared to the
number of African Americans in the general population, African Americans are
over represented among the population of persons who have a visual
impairment. 

 

Perhaps the most important need addressed by audio description in movie
theaters is the ability to bring children and adults who are blind or have
low vision into the mainstream of society.  The inability of anyone, adult
or child, to participate fully in popular culture—which has a unique power
to bind us together—effectively alienates individuals who are blind or
visually impaired from his/her community. 

 

As such, description provides the keys to our culture—to the extent that
description helps people who are blind or visually impaired to be more
familiar with media (television and movies), museums, theater, and other
everyday events, thus allowing the description user to be more engaged and
engaging individuals. This makes it possible for the user of audio
description to be more socially integrated into society and develop stronger
employment skills.

 

The addition of description to a soundtrack is likely to increase the size
of the audience of those who are blind or who have low vision. Description
enhances the viewing experience not only for those who need the service, but
also for those who view a film with the visually impaired person. 

 

There is no legitimate reason why a person with a disability must also be
culturally disadvantaged. The creator of any work to be publicly accessible
must consider how his/her work is enhanced by universal access—the use of
captions and audio description. An architect who designs a building may not
view the installation of ramps or lifts as part of his/her vision. And yet
how inappropriate would it be for the museum housed in that building to ask
that visitors who use wheelchairs to “bring your own ramp” if you want to
venture inside! 

 

The term “video description” is not the most appropriate or preferred term
given the focus of this inquiry: the inclusion of description at movie
showings. The generic phrase referencing the use of language to provide
access to visual images is (and has been since 1981): audio description. In
whatever format (film/movies, DVDs, performing arts, museums), the
description is made available as ‘audio’. The generic logo indicating the
availability of description (as established by the National Endowment for
the Arts and the Graphic Artists Guild) is: AD))) and there is established
federal precedent in the government for the phrase “audio description.” For
years, the National Park Service has produced many documents that refer to
“audio” description and the Service regularly requisitions AUDIO description
for its videos and films. As a practical matter, newspaper and online movie
listings include information about accessibility for a particular film by
using CC for Close Captioning but the letters VD are not used because of the
negative social connotation. 

 

Audio description is no longer in its infancy – its use is growing and as a
field it is growing up. But it is still under known among its potential
users, nowhere near as ubiquitous as captions. Captions, by the way, are not
referred to as “video” captions simply because they occur on television or
with a video. ACB and its Audio Description Project is committed to
spreading the word about audio description; and we ask that the US
Department of Justice help in that effort by maintaining the use of the
phrase audio description—one phrase that can be universally applied—and
helpful to people to know this important access service by knowing what to
call it.

 

It is important to recognize that there are a wide range of Audio
description issues that have not so far received the attention they require
in the request for information issued by the Department of Justice. ACB
believes that it is neither appropriate nor desirable to regard the three
ANPRMs as separate issues. Audio description provides an opportunity to
demonstrate just what we mean by this overlap. Movie theaters are rapidly
implementing digital delivery systems which are likely to begin to allow
direct downloading of content from the internet that will then be displayed
in theaters. This digital delivery will also allow for the synchronization
of audio description and other movie content in a manner that is both more
accurate and easier than the current method that employs a separate DVD.

 

Clearly, then, the internet, equipment and audio description must operate
hand-in-hand if the objective of effective communication is to take place.
If such effective communication is to be available, devices must be provided
which function to make that effective communication accessible. ACB is
convinced that the Department must recognize that at the heart of the
implementation of the ADA, there must be a clear recognition that effective
communication whether provided by equipment, the internet or audio
description, and/or a combination of all three areas is the seminal issue.

 

Currently, there is no standard that will enable audio description to be
delivered consistently and accessibly on DVD players, and at home on
televisions. Thus, it is important to recognize the convergence of Section
508 of the Rehabilitation Act, Section 255 of the Telecommunications Act,
and the recently passed and signed into law 21st Century Communications and
Video Accessibility Act and other applicable federal statutes. Without
taking these other laws into consideration, the Department will be
developing standards that will be irrelevant because effective communication
will be unable to take place.

 

DVD’s currently do not offer a standard method for ensuring that audio
description is applied in a consistent and usable manner. Equally important,
movies are beginning to be available on the internet, and it is crucial that
the department incorporate consideration of how audio description will be
made available to movies deployed on the internet and to content developed
specifically for internet dissemination. It is also important for the
Department to recognize that a range of devices including cell phones, Apple
TV, gaming devices, and other nontraditional output devices are being
utilized to display and deliver content. Clearly, it will be important for
the Department to include consideration of such devices in developing and
implementing standards that will apply to audio description. 

 

In summary, ACB believes it is essential that the Department categorically
adopt audio description as the only appropriate term to describe this method
of effective communication. It is not appropriate to regard audio
description as a separate and distinct category. Instead, the Department
must recognize that there is a convergence of all three areas in this
ANPRM’s process. In addition, we believe that the Department must recognize
the need to build and develop regulations that recognize and value effective
communication as the overarching principle which must inform any regulations
developed for Title II and III of the ADA. 

 

Comments on Questions 1 through 6:

 

Question 1. The Department is considering proposing a regulation that
contains a sliding compliance schedule whereby the percentage of movie
screens offering closed captioning and video description increases on a
yearly basis, beginning with 10 percent in the first year any such rule
becomes effective, until the 50 percent mark is reached in the fifth year.
Please indicate whether this approach achieves the proper balance between
providing accessibility for individuals with sensory disabilities and giving
movie theaters and owners sufficient time to acquire the technology and
equipment necessary to exhibit movies with closed captioning and video
descriptions. Also, if you believe that a different compliance schedule
should be implemented, please provide a detailed response explaining how
this should be accomplished and the reasons in support. Should a different
compliance schedule be implemented for small businesses? If so, why? What
should that schedule require?

 

ACB commends the Department of Justice for acknowledging the importance of
audio description for the millions of Americans who are blind or visually
impaired, and we applaud the Department’s decision to create regulations
requiring movie theaters to provide audio description. However, we strongly
object to a rule requiring movie theaters to make only 50% of their screens
accessible to people who are blind or have visual impairments. We also
strongly object to giving theater owners five years to comply with
requirements to make their movie screenings accessible to people with visual
impairments. 

 

As discussed more fully below, we urge the Department instead to adopt audio
description regulations that require that 100% of a Title III entity’s movie
auditoriums be equipped with audio description equipment pursuant to
designated time frames unless, in certain specified and limited
circumstances, the theater owner can prove that doing so would constitute an
undue burden. We recommend this approach as this is consistent with the
existing ADA obligation to afford all individuals their rights to effective
communication. Since the promulgation of regulations implementing the ADA,
effective communication has been a given requirement. In the most recent
amendments to the ADA regulations, the right to effective communication was
strengthened and enhanced with provisions for private and independent
access. Given this direction, it is inappropriate to propose regulations
that would serve to limit access to effective communication to a population
based solely on economic considerations. Or even something as arbitrary as
the number of screens in a complex. Perhaps more significantly, the ACB and
other organizations have been negotiating with producers of motion pictures
since the mid 1980’s to develop a cooperative approach to making movie going
fully accessible to people who are blind or have low vision. It is therefore
not realistic for theater owners or movie producers to argue that the
obligation imposed by these regulations is either unexpected or new.

 

Question 2. The Department is considering proposing regulatory language
requiring movie theater owners and operators to exhibit movies with closed
captions and movies with audio description so that, after any sliding
compliance scale has been achieved by the final year (e.g., at year 5), all
showings of at least one-half of the movie screens at the theater will offer
captioning and video description. We seek comment on the most appropriate
basis for calculating the number of movies that will be captioned and video
described: should this be the number of screens located in a particular
theater facility, the number of screens owned by a particular movie theater
company, the number of different movies being screened in a particular
theater facility, or some combination thereof? Should a different basis be
used for small business owners? If so, why? What basis should be used?
Please include an explanation of the advantages and disadvantages of each
option and the reasons a particular option is preferred over another.

 

The American Council of the Blind recommends the following implementation
strategy:

 

The Department of Justice should mandate implementation of audio description
equipment according to the following time frames:

 

(a)                Any auditorium that is newly constructed, or altered,
including being converted to digital cinema projection (hereinafter
“upgraded”), on or after the effective date of the new regulations shall be
equipped with audio description equipment as of the date the newly
constructed or upgraded auditorium is open to the public;

(b)               Any auditorium equipped with digital cinema projection
equipment prior to the effective date of the regulations should be equipped
with audio description equipment as of the effective date of the
regulations; and

(c)                Any auditorium that is not newly constructed or upgraded
within one year of the effective date of the regulations (including all
auditoriums that have existing analog projection equipment), shall be
equipped with audio description equipment within one year of the effective
date of the regulations unless the theater owner can prove that doing so
would constitute an undue burden, as set forth in comments below. If the
auditorium is subsequently upgraded, it must be equipped with audio
description equipment as of the date that the upgraded auditorium is
available to the public. 

 

ACB also wants to go on record as objecting to the fact that for every ten
movies released by the motion picture industry with close captioning, only
one movie on average is released with audio description. This does a
disservice to people who are blind or visually impaired. 

 

Question 3. If the number of screens located in a particular theater
facility is the preferred option, please explain whether the fact that some
theaters show the same movie on multiple screens poses any concerns with
regard to the number of movies being screened with captions and video
descriptions, and if so, what they are and whether there are any ways to
address those concerns. Does this option pose particular concerns to small
businesses? If so, what are they? Please indicate whether the Department
should include specific language in the regulation that states that the
basis for calculating the number or percentage is the number of captioned
and video described movies the theater receives from the movie producers in
order to make clear that the owner has no independent obligation to caption
or describe movies.

 

The American Council of the Blind believes that the provision of audio
description equipment: 

 

(a)                is not an undue burden in any new or upgraded auditorium;
and

(b)               does not fundamentally alter the service of screening
movies.

 

ACB agrees that movie theater owners should have no independent obligation
to caption or describe movie content — but we maintain if they are required
to provide captions and description at every screening of every film, there
should be a requirement of film producers and studios to provide the
captions and description. Any assistance the Department of Justice can lend
in recommending that the movie industry, including producers and studios,
provide captioning and description for newly released movies in theaters
would be appreciated. People who are deaf or blind deserve no less than
total access, i.e., all screens should be made totally accessible within the
timeline of one year from the issuance of a regulation.

 

ACB also believes that the owners of theaters have an affirmative obligation
to insure effective communication which requires them to do two additional
things: first, they must assure that sufficient training is made available
for staff of theaters so that patrons wishing to access captioning or audio
description can be certain to be provided with the equipment they need and
instruction in how to operate it appropriately. Second, we are concerned
because we have received numerous reports that suggest that the systems
currently deployed in theaters do not always operate effectively and
therefore do not afford access to audio description. It would be helpful if
the Department would incorporate into its regulations specific provisions
that would require theater owners to certify that training has taken place
and that audio description equipment functions appropriately.

 

Question 4. If the number of screens owned by a particular movie theater
company is the preferred option, please explain whether there are any
concerns about the geographic distribution of movies being screened with
captions and video descriptions, and if so, what they are and whether there
are any ways to address those concerns. Does this option pose particular
concerns to small businesses? If so, what are they? 

 

Despite the increasing availability of films distributed with audio
description tracks as well as the availability of audio description
equipment on the market, the overwhelming majority of movie showings are
inaccessible for individuals who are blind or have visual impairments.
Although some movie theaters provide audio description equipment, the
equipment at those theaters often is available only for a single movie
screen, greatly limiting the variety of films that can be shown with audio
description as well as available screening times. As a result, many
individuals who are blind or have visual impairments continue to be denied
the opportunity to enjoy a described film or must travel long distances to
find a theater displaying a described film. This situation has forced many
would-be moviegoers to skip the theaters altogether, missing out on classic
entertainment and social interaction with friends and family.

 

The following comment from an ACB member in Missouri is reflective of what
most blind and visually impaired people experience in this country when
trying to access movie theaters:

 

>From Matthew E. of Springfield, MO:

 

“Hi, I live in Springfield mo. the closest theaters to me with description
are in Kansas City and St. Louis. This means that I have to get someone to
take me 3 to 4 hours away from here to see one described. I'm lucky that I
do have an aunt in the Kansas City area, so trips there are a bit easier.
Having them closer to me would be wonderful! I hope this rule making will
help to make this possible.” 

 

Even in large urban areas where there are multiple theaters, there is
typically only one described movie available in that entire urban area. The
ACB is particularly concerned therefore, that the Department recognize that
people who are blind or have low vision are denied access to many movies for
which audio description is available because such movies are not shown with
audio description. Nor are DVD’s issued which include the audio description
track. It is extremely frustrating that probably no more than 10% of movies
produced with audio description are viewed by people who are blind or have
low vision for all of the reasons cited above. 

 

Question 5. If the number of movies being screened in a particular movie
theater facility is the preferred option, please indicate whether the
Department should include specific language in the regulation that states
that the basis for calculating the number or percentage of movies is the
number of captioned and video described movies the theater receives from the
movie producers in order to make clear that the owner has no independent
obligation to caption or describe movies. Does this option pose particular
concerns to small businesses? If so, what are they?

 

It is clear that theater owners do not have a separate obligation to provide
audio description for a movie that comes from the studio without audio
description. However, the equal obligation must be imposed on the studios,
producers and the motion picture industry to ensure that audio description
is included on the films received by theater owners for viewing by the
public. In addition, ACB would also urge the industry to include the audio
description track on the DVD releases of films that have appeared in the
theaters with audio description as a service and an accommodation to
continue to make the film accessible for personal viewing. 

 

ACB believes that it is important to recognize that the existing undue
burden defense, as defined in the current Title III regulations, may be
claimed as a defense only to the installation of audio description equipment
in auditoriums that have not been upgraded. When the owner of a non-upgraded
theater claims that installing video description equipment would be an undue
burden, that claim should be evaluated on a case-by-case basis.

 

The ACB also believes that theater owners have, in many cases, already
recognized that upgrading to digital Cinema projection equipment must be
incorporated virtually immediately into their business model. The obligation
to provide audio description and close captioning has existed long enough
that there is no excuse for theater owners not to have included the cost of
the equipment required for audio description and close captioning into the
economic models for their upgrades.  

 

Question 6. If some combination of these three methods is the preferred
option, please explain that option and how it would be implemented. Should a
different combination or percentage be used for small business owners? If
so, why? What combination or percentage should be used for small business
owners? Please indicate whether the Department should include specific
language in the regulation that states that the basis for calculating the
number or percentage is the number of captioned and video described movies
the theater receives from the movie producers in order to make clear that
the owner has no independent obligation to caption or describe movies.

 

The American Council of the Blind wants to spotlight a current situation
that we believe is negatively impacting the availability of audio described
movies in theaters and the ability of theaters with existing audio
description equipment to transmit description  for movies. We would urge the
Department to monitor and encourage completion of the standards development
process outlined below.

 

Currently, the standards group for the motion picture industry, the Society
of Motion Picture and Television Engineers, is working on standards for
technologies. The standards for captioning technologies for the integration
and play out of captions and subtitles in digital cinema packages.
Captioning was addressed first and took several years to complete. Now work
is progressing on the ancillary audio standard( which includes description).
The caption standard was completed last spring, and ACB hopes the
description standard is still on track to be completed in April 2011.
However, the problem many theaters are experiencing if they had already
switched to digital cinema projection systems is that they can play out
captioning but have lost the ability to offer description. Theaters that
were regularly providing description are now not able to screen movies that
are arriving with description because of the lack of description
availability and compatibility with the new equipment.

 

The Department should actively follow the activities of the Federal
Communications Commission regarding the implementation of the 21st Century
Communications and Video Accessibility act in the areas of description
pass-through, standards development for the equipment and the media, and
emergency information and onscreen menu interfaces.  Many theaters are now
not able to offer captioning either as they wait for the adaptive equipment
to enable even captioning. The equipment is available, but theater chains
are choosing in some cases to wait until the equipment is on site at all
their accessible locations, and then upgrade all the locations at one time.
The decision of some studios to include description in the digital cinema
package has taken theater chains by surprise, as there isn't an industry
standard for play out of description. An industry standard would mean that
all equipment at the theater (regardless of the manufacture) would "read"
and distribute the description data in the same way. Because there is not a
standard yet, equipment at the theater level needs to be reset or patched,
for films that have description. This situation necessitates extra time by
theater staff that isn't likely welcome at the local level.

 

While few theaters are able to play out digital Cinema yet, it is important
in our view (and it would seem in the studios' view as well) that the
description get into the marketplace, to create the demand which will in
turn generate efforts at the corporate and local level to play out the
description. It is hoped that this situation will compel equipment
manufacturers and the standards group to expedite the finalization of a
standard. Description continues to be available without interruption in
those theaters projecting 35mm film, but the completion of the digital
cinema standard is critical to the continuing availability of audio
description in movie theaters.

 

The ADA already requires movie theaters to prevent discrimination by
providing auxiliary aids and services that permit individuals who are blind
or have visual impairments to participate equally in the social experience
of going to the movies. Audio description readily meets this need, allowing
theater operators to display movies with an accompanying audio description
track, since audio description equipment has been on the market for years.

 

Again, as offered in the response to Question #1, people who are deaf or
blind deserve no less than total access, i.e., all screens should be made
totally accessible within one year of the issuance of a regulation.

 

In the current rule-making process, the Department has an opportunity to
advance the rights of customers with visual impairments by further
clarifying that audio description is an auxiliary aid and service which
assures effective communication. The power of the federal government should
not be used to roll back the protections of the ADA by limiting its
application to only 50% of movie theater auditoriums over five years. The
Department should clarify that audio description Is an auxiliary aid and
service.

 

The American Council of the Blind is pleased that DOJ has decided to address
the lack of accessible movie showings by considering regulations that will
specifically require audio description. In preparing the regulations, we
urge the Department to consider the existing regulatory framework, which
already requires movie theaters to do more than what the ANPRM proposes.

 

As Title III entities, movie theaters have long been responsible for
ensuring that individuals who are blind or have visual impairments enjoy
full and equal access to the movies. Specifically, under Title III, “no
individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation . . . .”
42 U.S.C. § 12182(a). The ADA explicitly defines movie theaters as places of
public accommodation. 42 U.S.C. § 12181(7)(C). Movie theaters provide the
service of screening movies. Arizona ex rel. Goddard v. Harkins Amusement
Enterprises, 603 F.3d 666, 674 (9th Cir. 2010); Fortune v. American
Multi-Cinema, Inc., 364 F.3d 1075, 1084 (9th Cir. 2004).

 

The ADA’s definition of discrimination includes the failure to provide
auxiliary aids and services necessary to ensure that no person with a
disability is denied the services of the public accommodation, unless the
entity can demonstrate that taking such steps would amount to a fundamental
alteration or would be unduly burdensome. 42 U.S.C. § 12182(b)(2)(A)(iii).

 

Accordingly, the law already requires theater operators to provide auxiliary
aids and services that are necessary to ensure that customers with visual
impairments have equal enjoyment of the movies being screened in those movie
theaters. Moreover, existing regulations already contain a broad definition
of “auxiliary aid and service” – a definition that must be interpreted to
already include audio description. Audio description is both an “audio
recording” and an “effective method[] of making visually delivered materials
available to individuals with visual impairments” under 28 C.F.R. §
36.303(b)(2) and the “acquisition or modification of equipment or devices”
under 28 C.F.R. § 36.303(b)(3). As held by the U.S. Court of Appeals for the
Ninth Circuit, “[m]ovie captioning and audio descriptions clearly are
auxiliary aids and services.” Harkins Amusement Enterprises, 603 F.3d at
670.

 

In order to ensure consistency across the United States, we urge the
Department to expressly add audio description into the Title III definition
of auxiliary aids and services. See H.R. Rep. 101-485(II) at 107 (noting
that the definition of auxiliary aids and services “includes illustrations
of aids and services that may be provided. The list is not meant to be
exhaustive; rather, it is intended to provide general guidance about the
nature of the obligation.”). This simple clarification by the Department of
Justice will assist movie theaters and the courts in recognizing that audio
description must be provided under existing regulations because it is
“necessary to ensure effective communication.” 28 C.F.R. § 36.303(c).|

 

The Department should clarify the application of the undue burden and
fundamental alteration defenses to audio description. The Department of
Justice should not allow 50% of movie theater auditoriums in this country to
remain inaccessible to people who are blind or visually impaired. Such a
rule would conflict with existing regulations and the ADA. Significantly,
the ADA does not state that auxiliary aids and services must be provided
only for some services, facilities, or accommodations, as the Department’s
suggested 50% rule would imply. Instead, the ADA mandates that a person with
a disability cannot be “segregated” or “treated differently” and must have
an “opportunity to participate” that is “equal to that afforded to other
individuals.” 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. §36.202(b). By its
plain language, full and equal enjoyment requires that audio description be
made available for all movie screens and for all show times. Because sighted
patrons have full access to all movies and are not limited to certain movie
screens or show times, patrons who are blind or visually impaired would be
segregated, treated differently, and denied an equal opportunity to
participate if they were restricted to 50% of movie screens with the
resulting reduced movie schedules.

 

As demonstrated above, existing regulations already require movie theaters
to make all screens and auditoriums accessible unless the theater can prove
an undue burden. In the current rule making process, the Department should
clarify the availability of affirmative defenses to Title III entities
showing movies. Specifically, as described below, the Department should
issue regulations providing that (i) the existing undue burden defense is
available to theater owners displaying analog film in auditoriums built
before the regulations were adopted; (ii) the undue burden defense is not
available to theater owners displaying digital movies, or analog film in new
or renovated auditoriums; and (iii) that the fundamental alteration defense
is not available on the issue of audio description.

 

In existing auditoriums with analog film projection, the undue burden
standard, not an arbitrary benchmark, should determine the number of screens
for which audio description equipment should be installed.

 

Pursuant to Title III. Movie theaters must provide audio description
equipment (an auxiliary aid and service) unless doing so would be an undue
burden. Existing Title III regulations already provide detailed factors that
demonstrate whether providing an auxiliary aid or service would result in an
undue burden for any movie theater owner:

 

1.	the “nature and cost” of the auxiliary aid or service; 
2.	the “overall financial resources” of the movie theater “site or
sites,” the “number of persons employed” at that theater site, the effect of
the aid or service “on expenses and resources,” and “the impact . . . upon
the operation of the site”; 
3.	the “geographic separateness, and the administrative or fiscal
relationship” of that theater site to “any parent corporation or entity”; 
4.	the “overall financial resources of any parent corporation or
entity,” if applicable, the overall number of people employed by the parent
corporation, and “the number, type, and location” of its movie theaters; and

5.	the “type of operation or operations of any parent corporation or
entity, including the composition, structure, and functions of the workforce
of the parent corporation,” if applicable.

(28 C.F.R. § 36.104. )

 

These factors appropriately consider the individual circumstances of the
particular theater “site” as well as the parent movie theater company. The
legislative and regulatory histories of Title III make clear these factors
are to be applied to the financial situation of the particular place of
public accommodation and its parent company. Congress explained that “[t]he
determination of whether the provision of an auxiliary aid or service
imposes an undue burden on a business will be made on a case-by-case basis,
taking into account the same factors used for purposes of determining ‘undue
hardship.’” H.R. Rep. 101-485(II) at 106-07, 1990 U.S.C.C.A.N. 303, 389-91
(1990) (emphasis added). Similarly, the Department of Justice stated in
Appendix B of the implementing regulations that the undue burden “definition
lists factors considered in determining whether provision of an auxiliary
aid or service in any particular circumstance would result in an undue
burden.” 28 C.F.R. Pt. 36, App. B.

 

(“A public accommodation is not required to provide any particular aid or
service that would result in . . . an undue burden. Both of these statutory
limitations are derived from case law under section 504 [of the
Rehabilitation Act of 1973] and are to be applied on a case-by-case basis .
. . .’”) (quoting 28 C.F.R. § 36.104, App. B, 576, 595) (alterations in
original).

 

Federal courts have likewise adopted the case-by-case approach to
determining whether the provision of an auxiliary aid or service would
constitute an undue burden to a particular entity. For example, in Roberts
v. KinderCare, 86 F.3d 844, 846-47 (8th Cir. 1996), the Eighth Circuit
applied the undue burden factors found in 28 C.F.R. § 36.104 to the
particular circumstances of the day care center defendant. The court
determined that assisting a child with disabilities would have placed an
undue burden on that particular day care center due to its labor costs,
operating income, and financial independence from its parent corporation.
Id. Notably, the court did not examine the day care industry on the whole to
determine what level of specialized assistance would create an undue burden
for the industry. See also Lindgren v. Camphill Village Minnesota, Inc.,
2002 WL 1332796, *7 (D. Minn. June 13, 2002) (examining financial impacts on
the particular defendant). As demonstrated in these cases, the federal
courts are capable of conducting a case-by-case analysis utilizing the
existing regulations.

 

We therefore urge the Department of Justice to reject the suggestion
contained in the ANPRM requiring that only 50% of movie screens include
audio description. A specified percentage of screens short of 100% is
inappropriate and unnecessary for a regulation regarding audio description –
a technology which falls squarely within existing auxiliary aids and
services requirements and which has been commercially available for
years[2][2]. The Department’s proposed 50% rule is unfair to patrons with
visual impairments who have been waiting for described movies to be
displayed at their neighborhood theaters. The existing regulations and undue
burden factors provide sufficient guidance to both movie theaters and the
courts as to how many screens at a particular theater complex built prior to
the regulations that has not yet been renovated or converted to digital
display, must be made accessible to customers who are blind or visually
impaired.

 

The Department should specify that installing audio description does not
create an undue burden in any auditorium undertaking the costly conversion
to digital or in new or altered auditoriums.

 

The 50% standard proposed in the ANPRM is the wrong approach to audio
description in existing analog theaters, as described above. It is also
inappropriate in theaters that are part of the conversion to digital cinema
currently underway or planned at many movie theaters across the country.
Because the undue burden factors focus on the cost of the auxiliary aid or
service and the resources of the public accommodation, the costly conversion
to digital projectors demonstrates that the much smaller additional cost of
providing audio description will never be an undue burden for a movie
theater that has converted or is converting to digital. Therefore, the
Department’s regulations should specifically state that providing audio
description is not an undue burden in any auditorium that has digital
projection.

 

In addition, the Department should make clear that movie theaters must
include audio description equipment when constructing new auditoriums or
altering existing ones because the cost of construction and renovations
dwarfs the cost of audio description equipment. As for existing movie
theaters that continue using analog projectors, the Department should
clarify, as explained above, that description is required at every screen
unless the particular circumstances of the theater demonstrate that
providing audio description for all screens would be an undue burden. In
such circumstances, description equipment would be required at all screens
up to the point that making an additional screen accessible would constitute
and undue burden. If the theater is subsequently upgraded, all of its
upgraded auditoriums must be equipped with audio description equipment as of
the date that the upgraded auditoriums are available to the public.

 

The Department of Justice can help ensure compliance with the ADA and reduce
litigation by including language in the new regulations affirming that audio
description does not fundamentally alter the nature of the service of
screening movies. 28 C.F.R. § 36.303(a). Audio description does not alter
the content of films or require theater owners to fundamentally change their
movie screenings. It only requires them to provide the equipment to allow
patrons with visual impairments to hear the audio descriptions that
accompany movies. As a result, audio description is not a fundamental
alteration. See Kline v. Regal Cinemas, No. 00-436-JE, Slip. Op. at 6 (D.
Or. July 3, 2002) (“Patrons without vision impairments would likely be
unaware that the [descriptive listening] technology even existed. The movie
itself would not be altered.”). 

 

The ADA and existing regulations do not support a five-year implementation
schedule. The ANPRM suggests a five-year period for installation of audio
description capabilities. This schedule is contrary to the ADA and existing
regulations. Technology has existed for many years to enable theaters to
provide audio description to meet existing statutory and regulatory
requirements. The current “switch to digital” may make it easier to provide
audio description, but audio description equipment is also currently
commercially available in the analog film environment. As discussed above,
audio description is an auxiliary aid and service under existing
regulations. Harkins Amusement Enterprises, 603 F.3d at 670. In light of the
current state of both the law and technology, movie theaters in the United
States should already be providing audio description, and in fact, some
already do. As such, implementation should be required as follows:

 

1.	Any auditorium that is newly constructed, or altered, including
converted to digital projection (hereinafter “upgraded”) on or after the
effective date of the new regulations shall be equipped with audio
description equipment as of the date the newly constructed or upgraded
auditorium is open to the public; 
2.	Any auditorium equipped with digital projection equipment prior to
the effective date of the regulations should be equipped with audio
description equipment as of the effective date of the regulations; and 
3.	Any auditorium that is not newly constructed or upgraded within one
year of the effective date of the regulations (including all auditoriums
that have existing analog projection equipment) shall be equipped with audio
description equipment within one year of the effective date, unless the
theater owner can prove that doing so would constitute an undue burden. If
the auditorium is subsequently upgraded, it must be equipped with audio
description equipment as of the date that the upgraded auditorium is
available to the public.

Comments on Questions 7, 8, 18, 19, 25 & 26

 

Question 7. Should any such regulation require that the same number or
percentage of movies with video description be exhibited as required for
movies with captioning or should a different number or percentage be
imposed? If the latter, what would be the justification for distinguishing
between these forms of access? Should small businesses use a different ratio
or percentage of video described movies or should they also be required to
exhibit the same number or percentage of video described and captioned
movies as other entities? 

 

Regarding the number of movie screens with audio description versus the
number of screens with captioning, there is no reason to set a different
accessibility standard for captioned films than for audio described films.
We urge the Department of Justice to require theater owners of all sizes to
provide audio description accessibility for all movie screens as discussed
above. A different ratio is not required for small businesses.

 

Question 8. Should the Department adopt a requirement that movie theater
owners and operators exhibit captioned and video described movies beginning
on the day of their release? If not, why not (e.g., could such a requirement
impose additional burdens and if so, what are they)? Should a different
requirement be imposed on small business owners? If so, why? What should
that requirement be? 

 

Regarding whether films should be accessible beginning the day of their
release, we ask the Department to require movie theaters to make audio
description available on the same day a film opens to the public. This will
enable patrons who are blind or visually impaired to have the same access to
newly released films as do sighted patrons. Movie theaters should have no
difficulty providing audio description on the day a film is released because
the audio description is available at the same time the film is received.
Permitting movie theaters to delay the showing of accessible films deprives
customers who are blind of full and equal enjoyment.

 

Question 18. Should the Department include a requirement that movie theater
owners and operators establish a system for notifying individuals with
disabilities in advance of movie screenings as to which movies and shows at
its theaters provide captioning and video description? If so, how should
such a requirement be structured? For example, should the Department require
movie theater owners and operators to include, in their usual movie postings
in the newspaper, on telephone recordings, and on the Internet, a notation
or some other information that a movie is captioned, the type of captioning
provided, or that the movie has video description? Should the Department
require movie theater owners and operators to establish a procedure or
method for directing individuals with sensory disabilities to where in each
movie theater they should go to obtain any necessary captioning and video
description equipment? Should movie theater owners and operators have the
discretion to determine what notification procedure or method is most
appropriate or should the Department specify how and where individuals with
disabilities can obtain such equipment at each theater? What are the costs
for these types of notifications? Are there any alternative types of
notifications possible? Are these costs different for small businesses? If
so, why? What are they?

 

Regarding the establishment of a system for notifying individuals with
disabilities in advance of movie screenings for which audio description or
captioning will be provided, we believe that DOJ should require movie
theater owners to include in a theater’s usual movie listings a clear
statement that audio description will be provided. This rule should apply to
all types of movie listings stating the time and location that a movie is
being shown, whether promulgated by a movie theater or printed or published
by a third party, including newspaper listings, Internet listings or other
web-based movie schedules, and telephone recordings.

 

Question 19. Should the Department consider including a training requirement
for movie theater personnel? Should the Department require that movie
theater owners and operators ensure that at least one individual working any
shift at which a captioned or video described movie is being screened be
trained on how any captioning and video description equipment operates and
how to convey that information quickly and effectively to an individual with
a disability who seeks help in using that equipment? What are the costs and
burdens to implementing such a training requirement? Are these costs
different for small businesses? If so, why? What are they? Would written and
recorded explanations of how the equipment works be a better alternative?

 

Regarding whether movie theater personnel should be trained, many patrons
who are blind or visually impaired will initially benefit from short, simple
instruction on how to use audio description equipment. The regulations
therefore should include a training component. DOJ should require movie
theaters to train movie theater personnel so that they know how to operate
and set up the audio description equipment for a customer when such
equipment requires set-up:

 

1.	know where the equipment and headsets are stored in the movie
theater and, if not compatible in all auditoriums, the locations where it is
compatible; 
2.	can quickly and easily determine which movies and which screening
times are capable of being accessed via audio description if all screens at
the location do not yet have description equipment installed; 
3.	know the difference between audio description technology and
technology for patrons who are hard of hearing; and 
4.	know how to instruct patrons with visual impairments about how to
use the headsets, including the volume control feature.

A sufficient number of staff members must be trained to ensure that there is
always staff on duty that can provide this information to movie patrons with
visual impairments.

 

The regulations should also remind Title III entities displaying movies that
audio description equipment, including headsets, falls within existing
obligations to “maintain accessible features” as set forth in the Title III
regulations at 28 C.F.R. § 36.211. This means that the Title III entity must
(i) regularly inspect and test the audio description equipment to ensure
that it is in working order and can be quickly made available to a patron
who wishes to use it; and (ii) make staff aware of the protocol to be
followed if the audio description technology is not working or a particular
piece of equipment is broken.

 

Question 25. Should any category or type of movie theater be exempted from
any regulation requiring captioning or video description? For example, the
Department now considers it likely that drive-in theaters will not be
subject to this rule because the Department is not aware of any currently
available technology that would enable closed captioning or video
description of movies shown in drive-in theaters. Are there other types of
movie facilities that should be exempted and why? 

 

Question 26. If an exemption is provided, how should such an exemption be
structured? Should it be based on the size of the company? To determine
size, should the Department consider (a) using the Small Business Size
Standard of $7 million dollars in annual gross revenue so that movie theater
owners who fall within those parameters should be exempt?; (b) using factors
such as whether the movie theater owner is an independent movie house (not
owned, leased, or operated by, a movie theater chain), or small art film
house in order to be exempt?; or (c) using some other formula or factors to
determine if a movie theater owner should be exempt? Should the Department
consider the establishment of different compliance requirements or
timetables for compliance for small entities, independent movie houses, or
small art film houses to take into account the resources available to small
entities? What are other alternatives for small businesses, independent move
houses, or small art film houses that would minimize the cost of future
regulations?

 

Response to Questions 25 and 26: The Department has suggested that drive-in
movies be exempted from audio description requirements because technology
does not exist to provide description in a drive-in setting. It is currently
possible to provide description in a drive-in setting. Moreover, if there
are particular settings where such technology is not compatible today,
technology may exist in the future enabling access in such settings. The
Department should not exempt any setting where movies are shown. If the
Department does create any narrow exemption based on unrefuted evidence
received during the regulatory period about the absence of available
technology, it must clearly state that the exemption only exists while there
is no commercially available technology to provide the auxiliary aid or
service. All new regulations must be flexible and robust enough to retain
relevance in the world of constantly changing technology.

 

As for the suggestion in Question 26 that exemption might be appropriate
based on the “size” of a movie house, or whether it is an “art house” or
“independent,” we urge the Department to reject such exemptions. As
discussed above, the undue burden provisions of the current Title III
regulations amply protect smaller movie houses that are still displaying
analog films in existing theaters if the requirements create an undue burden
under their particular circumstances. Movie patrons with visual impairments,
like their sighted companions, want to experience movies in small art houses
and large chains, at independent entities and at those owned by large
conglomerates. The ADA and the Department’s regulations are currently
flexible enough to provide accommodations in all such settings. The
Department must avoid starting down a slippery slope of making special
exemptions for certain kinds of places of public accommodation. 

 

Summary and Conclusion

 

We congratulate the Department of Justice for acknowledging the importance
of audio description for the millions of Americans who are blind or visually
impaired; and we applaud the DOJ’s decision to create regulations requiring
movie theaters to provide audio description. At the same time, we strongly
object to a rule requiring movie theaters to make only 50% of their screens
accessible to people who are blind or visually impaired and giving theater
owners five years to meet regulations on this issue.

 

Audio description is an auxiliary aid and service. Therefore, movie theaters
have long been required to provide audio description on all movie screens to
ensure “full and equal enjoyment.” Because Title III of the ADA, by its
plain language, already requires movie theaters to provide more access than
the access proposed by the Department, we respectfully ask that the
Department reject its suggestion that 50% of theaters be made accessible
over a five-year period. Instead, the Department should affirm that audio
description is an auxiliary aid and service that does not fundamentally
alter the service of screening movies. For any auditorium built or upgraded
on or after the effective date of the regulations, and for any auditorium
using a digital projector as of the date the regulations go into effect, the
Department should specify that installing audio description is mandatory
immediately and is not an undue burden. For any theater using an analog
projector in an existing theater as of the effective date of the
regulations, the Department should remind theater owners that audio
description equipment must be installed for all screens unless the theater
owner can demonstrate, under existing law, that it would be an undue burden
to do so.

 

The ACB also wishes to make clear that we believe that, by making all of its
questions relate to movie theaters the Department fails to recognize that
there is no fundamental difference between movies distributed via theaters
and those distributed by the same or similar place of accommodation on the
internet. We also believe that it is important that the Department
explicitly describe and enumerate the obligations existing for title II
entities which show movies or documentaries. In particular, schools and post
secondary institutions, libraries, local recreation and community centers
have an affirmative obligation to assure that audio description is an
inherent part of the effective communication offered through the provision
of auxiliary aids or services. We are concerned that by its narrow
questioning process, the Department may not effectively convey the
applicability of whatever regulations are adopted to activities conducted
under Title II.




  _____  

 


  _____  

[1][1] American Foundation for the Blind, 2008:
http://.afb.org/Section.asp?SectionID=15

[2][2] In at least one other context, the Department has recognized that
specific numerical guidance for compliance does not serve the goals of the
ADA. Pinnock, 844 F. Supp. at 583 (quoting 28 C.F.R. § 36.104, App. B, 577)
(explaining that DOJ declined to devise a numerical formula for readily
achievable compliance and instead adopted the “flexible case-by-case
approach chosen by Congress”).

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