everyone morning we're delighted to be sitting here in seattle the cases will be called in the order listed on the docket the st case on calendar for argument is johnston versus regal intertainment group counsel appellant before we begin your honors when i can read your lips and i'm close enough to do that i should be able to understand everybody just fine but i'm not always able to know when somebody is talking to me if there's background noise going on even when the background noise of the sound my own voice so if i'm not immediately responded to a question if you just gesture me and let me know that you're trying to ask a question i will are you asking us politely not to interrupt you a tension arguable tension between two sources of law on the one hand we've got the federal americans with disabilities act which as this court has unambiguously requires businesses like the movie theaters to offer effective communication to people with hearing loss on the other hand we've got regulations really commentary to regulations that suggest that maybe there are some exceptions to that rule so who wins if you've got a statute on the one hand and you've got commentary to regulations on the other hand it would seem pretty obvious to us that the statute walked whim but that's not the answer we got at the district court the district court basically said the  does not require people to provide different services different products citing an insurance policy case that dealt with the content of an insurance policy well the coin a phrase that seems apt for this case we've seen this movie before back in two thousand and ten the court in the case of arizona vs hearkens basically confronted precisely the same question the district court there like the district court here had granted to twelve b six motion to the effect that the movie theaters did not have to provide any captioning at all for any movies because they didn't have to offer different services the th circuit said you've got that backwards the agent services requirement in the americans with disabilities act that modifies the notion that you don't have to offer different services or products not the other way around so plainly they did have to offer that for the movies which they do this case of course we're asking to extend that to the alternative content that they show under the umbrella of fathom event so counsel is it fair to say that the statute does not expressly address the circumstance where close captioning is not part of the content that's provided to the theater it's quite true that the statute does not explicitly address that issue your honor but i think the statute does explicitly give us rules by which the answer to that question can easily be deduced i mean the statute says that st of all movie theaters are explicitly places a public accommodation nd places a public accommodation have to offer auxiliary adan services like captioning or some other effective method of making orally delivered information available to people with hearing loss the counsel in the case that you previously referred us to doesn't that mean that the statute is ambiguous such that it needs interpretation at some point well perhaps except in a way the court this court dealt with that earlier this year in the robes versus domino's pizza case where it said explicitly and i'm quoting i'm only reading from the slip opinion on the court website because for some reason west hasn't put this up yet page seventeen of the slip opinion it says the statutory provisions at issue here requiring auxiliary agents are voces and full and equal enjoyment are flexible but not ambiguous and have been interpreted many times by federal courts and in a footnote it cited a bunch of the cases that we've cited in our about one very common situation namely one movies are distributed with captions that have been provided by the studios what do the theaters have to do believe it or not that was an issue that required several years of litigation notic comment rule making ultimately goshi between the parties to even get that far we have not actually addressed in any of those cases the question of what theaters might have to do under the statute other now the commentary to the regulation does indeed say on a number of occasions that this rule does not require theaters to add captions i get that our argument is not that the rule requires it argument is that the statute requires it and we have to reconcile the apparent mandate from the statute with what the d o j might have said in those regulations counsel may i ask you are you aware of a case showing and oh absolutely not your honor not not in movie theater live theaters do it all the time i mean they frequently have a caption is there captioning the performance actually w court held back in the deval vs kitsap county case that state courts have to provide captioning i mean the notion that places a public accommodation have to create actually pay somebody else to create the captions and display them this actually is very commonplace in with every place a public accommodation except the movie theaters so in a way we're breaking new ground but in a way we're not in a way it's a very well trodden path and the question is why don't the theaters have to do the same thing everybody else does well they say it because of this regulation i don't know that the regulation has to be interpreted that way i think a lot of these qualifying statements in the commentary basically say this is what the regulation does it doesn't require this other stuff we get that the regulation doesn't require it we think the statute and that question has never been decided it was never brought up in any of the federal cases any of the state cases and it was certainly not part of the notice and comment rule making that came up i mean theoretically yes the department of justice could have teed up a notice and comment and said we want to consider whether requiring the theaters to add captions to movies is an undue burden or a fundamental alteration then we could have actually sat down and had a conversation about the cost versus the benefits and so forth now the difficulty is is captioning easy to do or hard to do we don't really know we don't know why the captioning doesn't seem to work with the system by which fathom distributes material to the theaters i mean to enable the movie studios to provide captions that could be worked on a number of different viewing devices everybody kind of got together and came up with sort of an open source format where captioning could be added by essentially anybody to the movies and could be viewed on virtually any kind of device we don't know why that can't be done for the fathom content if that's not possible what about a phone up what about just basically transcribing the script of the fathom content upload it to a website let us use our phones in the theater to view it there are lots of ways this can be done again as domino says we shouldn't worry too much right now about how we're going to do things because the real issue here is liability there seems to be no question in anybody's mind that as presently configured the fathom content is not accessible to hearing loss we think that can be done and should be done briefly on the state case your honor the statute and regulations say that places of public accommodation like movie theaters have to do what is reasonably possible in the circumstances the district court said well you haven't shown us what reasonably possible she's right i haven't because i don't know what reasonably possible that's why we need to do discovery it's a fact question let's find out what can be done and let's do it if we can but we need to remand it and develop a full factual record i will save whatever time i have a rebuttal in this or any other questions thank you cancel morning may please the court my name is albert plan i represent the movie theater operators my friend plaintiff counsel he referred a lot to the harkins case the harkins case actually we think is virtually indistinguishable from this case and if i may i'll explain why in hearkens this court consider the requirement of open captioning whether or not movie theaters had to provide open captioning and it concluded that the eighty eight so in a movie situation the open captioning would appear on the screen of the movie theater whereas closed captioning closed movie captioning is something that is accessible by a device that is available at the seat so it's visible only to the person  utilize open captioning as a matter of law and it reached that conclusion by looking specifically to a statement in the preamble of the then controlling version of the very same regulation we're talking about here which is twenty eight  o three and what it looked to is eleven statement and harkins this court said the commentary plainly states that quote movie theaters are not required by thirty six dot three o three the rule by statute says the commentary plainly states that movie theaters are not required by the rule to present open caption films that's what d j s previous commentary said that's what this court looked to and hearkens and then it said entities such as harken should be able to rely on d o j as commentary and this court said because the commentary to the rule states that open captions are not required by the rule we conclude that open captioning is not mandated by the use your honor we haven't and this is kind of the issue with harkin's as well you know with respect the panel that did that i don't think they showed their work so to speak right answer terms of going through the chevron steps and saying this is ambiguous step one and then step two but this court has said in multiple cases that this regulation three hundred and sixty three o three is entitle to deference because it fills a gap and the robles case that my friend examples but then it says in similar services it doesn't it's not exclusive your point is that using justice stevens language the precise question is not and the before we have to go to the expertise of the that is correct your honor under controlling supreme court president of chevron is controlling we have to follow that's correct your honor as long as chevron is controlling more reluctant  than others yes and of course we know that the you know the correctness of chevron has been hotly debated but it is still controlling supreme court president and this court and the supreme court in a case called bragdon versus abbott has provisions of title three so i think if you were to conclude your honor to accept my my friend's argument that the statute is clear that the auxilary aids and service for services provision can be applied that there is no gap left to fill that would require not only striking down thirty six dollars through a three g which is the provision we're talking about here but the entirety of thirty six dollars not three o three explain something to me think there's a couple answers to that one of them is a practical question but but if i may turn to the legal question i think there is a legal difference between a live theater that is in the business of not just presenting theater presenting the show but also in creating that content whereas movie theaters is this court said in the forty's fortune case for our t y u and e the business of movie theaters is the screening of movies and i think if you look at harkens and footnote to it hearkens and judge by how this gets to your question about chevron step two and the reasonableness of the regulation in footnote two of hearkens this court looked at the statement in the preamble about how the rule does not require opening captioning and it said we believe that the department of justice could reasonably have concluded that open captioning would be a fundamental alteration of the business of showing movies and i think the same conclusion can be reached here and as as your honour's know the nd step of chevron is just a question about reasonable miss it's not a question about what one particular judge might think is the correct interpretation and one what one  particular judge might think is the correct balancing between what's necessary and what might be a fundamental alteration the question is whether the department of justice this conclusion is reasonable and i think just as it was reasonable and hearkens it is also reasonable here and if it is reasonable hear the statement in the preamble and there's a multiple statements that say the rule does not require movie theaters to add captioning where the digital movies not provided with cap think that's controlling here and i think if this court were to go in a different direction it would require distinguishing harkins which i just don't think can be done on its face if i may turn briefly to the oh i did have one other point on the federal point my friend mentioned sort of both for his argument that this this wasn't raised in the notice and comment rule making this issue about adding captions what they're not provided and with respect here d o j said specifically quote in no case would movie theaters be required to create their own captioning or audio descriptions for movies this rule would not prohibit movie theaters from screening movies that are not produced with captions or audio description were there any public responses to that yes your honor if you look in the preamble page of the record are you that that is it's regulation but if you also yarn to answer your specific question if you look in the preamble that we've been discussing at page eighty seven thousand three hundred and eighty one of the federal register the department of justice notes quote 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 or audio description when these features are not available and the department of justice as we've discussed in this my friend does not contest responded specifically to those comments repeatedly by providing the assurance that this rule does not require movie theaters to add captioning or captioning has not been provided  on the state law question as i see my time as it is running out we just have two points the st is we think actually the easier route to affirm in the district court is to affirm her decision that the plaintiffs did not satisfy the requirements of twamley there is only one paragraph in the complaint paragraph twenty eight that addresses the question of reasonable possibility under the w l eighty and the allegation is simply that it is technically feasible to make captions available where captions have not been included and we don't think that meets the plausibility standard required under tom lee there's actually a regulation under state law the washington administrative code one  think is following this court's decision in wire and not the part that my friend has referred to that hearkens distinguished but in wire this court said where there is not a lot of state authority but there is a lot of federal authority washington courts have looked to federal courts and regulations interpret in the eighty's to set forth what is required under state law i think this is exactly that kind of situation we recognize as says there's a spectrum in some cases federal law shouldn't be controlling the state law can provide more protection in some cases federal law should give you sort of defining guidance as to what the law requires we think we're on this end of the spectrum because there is no state law specifically addressing this particular issue but on the federal side we have a regulation that went through six years of notice and comment and it's very detailed  thank you very quickly getting back to the harken case saying that open captaining is not required is a completely different thing from saying nothing is required the court made that very point and hearkens it said not every auxiliary agent service needs to be provided it said but closed captioning with one that could be provided i mean it's different to say you don't have to do it this way that's far different from saying you don't have to do it at all if there is some way to do it and we think that's the case here the hunsaker case versus contra costa county said here's what regulations can do they can add to they can amplify they can particular requirements of the statute but they now may not eliminate the requirement three hundred and sixty three o three did indeed particular eyes the requirements it added performance criteria it added number of devices it talked about the need for notice it specified how the theaters deal with that it did not say and hunsaker doesn't permit it to say you can simply say under certain circumstances the theaters don't have to do anything they have not cited i have not found a single case ever in which a court has said a place of a public accommodation does not have to provide auxiliary aid and services in any circumstance thank you thank you cal thank you to both coun