Vol. 79 Friday, 

No. 148 August 1, 2014 

Part II 

Department of Justice 

28 CFR Part 36 

Nondiscrimination on the Basis of Disability by Public Accommodations— 

Movie Theaters; Movie Captioning and Audio Description; Proposed Rule 


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44976 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

DEPARTMENT OF JUSTICE 

28 CFR Part 36 

[CRT Docket No. 126; AG Order No. 3449– 

2014] 

RIN 1190–AA63 

Nondiscrimination on the Basis of 

Disability by Public 

Accommodations—Movie Theaters; 

Movie Captioning and Audio 

Description 

AGENCY: Department of Justice, Civil 

Rights Division. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice 

(Department) is issuing this notice of 

proposed rulemaking (NPRM) in order 

to propose amendments to its regulation 

for title III of the Americans with 

Disabilities Act (ADA), which covers 

public accommodations and commercial 

facilities, including movie theaters. The 

Department is proposing to explicitly 

require movie theaters to exhibit movies 

with closed captioning and audio 

description at all times and for all 

showings whenever movies are 

produced, distributed, or otherwise 

made available with captioning and 

audio description unless to do so would 

result in an undue burden or 

fundamental alteration. The Department 

is also proposing to require movie 

theaters to have a certain number of 

individual closed captioning and audio 

description devices unless to do so 

would result in an undue burden or 

fundamental alteration. The Department 

is proposing a six-month compliance 

date for movie theaters’ digital movie 

screens and is seeking public comment 

on whether it should adopt a four-year 

compliance date for movie theaters’ 

analog movie screens or should defer 

rulemaking on analog screens until a 

later date. 

DATES: The Department invites written 

comments from members of the public. 

Written comments must be postmarked 

and electronic comments must be 

submitted on or before September 30, 

2014. Comments received by mail will 

be considered timely if they are 

postmarked on or before that date. The 

electronic Federal Docket Management 

System (FDMS) will accept comments 

until midnight Eastern Time at the end 

of that day. 

ADDRESSES: You may submit comments, 

identified by RIN 1190–AA63, by any 

one of the following methods: 

• Federal eRulemaking Web site: 

http://www.regulations.gov. Follow the 

Web site’s instructions for submitting 

comments. The Regulations.gov Docket 

ID is DOJ–CRT–126. 

• Regular U.S. mail: Disability Rights 

Section, Civil Rights Division, U.S. 

Department of Justice, P.O. Box 2885, 

Fairfax, VA 22031–0885. 

• Overnight, courier, or hand 

delivery: Disability Rights Section, Civil 

Rights Division, U.S. Department of 

Justice, 1425 New York Avenue NW., 

Suite 4039, Washington, DC 20005. 

FOR FURTHER INFORMATION CONTACT: Zita 

Johnson-Betts, Deputy Section Chief, 

Disability Rights Section, Civil Rights 

Division, U.S. Department of Justice, at 

(202) 307–0663 (voice or TTY). This is 

not a toll-free number. Information may 

also be obtained from the Department’s 

toll-free ADA Information Line at (800) 

514–0301 (voice) or (800) 514–0383 

(TTY). 

You may obtain copies of this NPRM 

in alternative formats by calling the 

ADA Information Line at (800) 514– 

0301 (voice) and (800) 514–0383 (TTY). 

This NPRM is also available on the 

Department’s Web site at http://

www.ada.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Submission of Comments 

and Posting of Public Comments 

You may submit electronic comments 

to http://www.regulations.gov. When 

submitting comments electronically, 

you must include DOJ–CRT–126 in the 

search field, and you must include your 

full name and address. Electronic files 

should avoid the use of special 

characters or any form of encryption 

and should be free of any defects or 

viruses. 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at http://

www.regulations.gov. Submission 

postings will include any personal 

identifying information (such as your 

name and address) included in the text 

of your comment. If you include 

personal identifying information (such 

as your name and address), in the text 

of your comment but do not want it to 

be posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

identify all the personal identifying 

information you want redacted. 

Similarly, if you submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on http://

www.regulations.gov. 

Relationship to Other Laws 

The Department of Justice regulation 

implementing title III, 28 CFR 36.103, 

provides that except as otherwise 

provided in part 36, that part shall not 

be construed to apply a lesser standard 

than the standards applied under title V 

of the Rehabilitation Act of 1973 (29 

U.S.C. 791) or the regulations issued by 

Federal agencies pursuant to that title. 

See § 36.103(a). In addition, the title III 

regulation provides that part 36 does not 

affect the obligations of a recipient of 

Federal financial assistance to comply 

with the requirements of section 504 of 

the Rehabilitation Act of 1973 (29 U.S.C. 

794) and any implementing regulations 

issued by Federal agencies. See 

§ 36.103(b). Finally, part 36 does not 

invalidate or limit the remedies, rights, 

and procedures of any other Federal, 

State, or local laws (including State 

common law) that provide greater or 

equal protection for the rights of 

individuals with disabilities or 

individuals associated with them. See 

§ 36.103(c). 

These provisions remain unchanged. 

Compliance with the Department’s title 

II and title III regulations does not 

ensure compliance with other Federal 

statutes. 

I. Executive Summary 

Purpose of Proposed Rule 

The Department of Justice 

(Department) is issuing this notice of 

proposed rulemaking (NPRM) in order 

to propose amendments to its regulation 

implementing title III of the Americans 

with Disabilities Act of 1990 (ADA), 

which covers public accommodations 

and commercial facilities—including 

movie theaters—to explicitly require 

movie theaters to exhibit movies with 

closed captioning and audio 

description, as well as to provide 

individual captioning and audiodescription devices for patrons who are 

deaf or hard of hearing or blind or have 

low vision. In the movie theater context, 

‘‘closed captioning’’ refers to captions 

that only the patron requesting the 

closed captions can see because the 

captions are delivered to the patron at 

or near the patron’s seat. Audio 

description is a technology that enables 

individuals who are blind or have low 

vision to enjoy movies by providing a 

spoken narration of key visual elements 


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of a visually delivered medium, such as 

actions, settings, facial expressions, 

costumes, and scene changes. Audio 

description can be transmitted to a 

user’s wireless headset through infra-red 

or FM transmission. 

Title III of the ADA contains broad 

language prohibiting public 

accommodations from discriminating 

against individuals with disabilities, 42 

U.S.C. 12182(a), as well as more specific 

statutory provisions intended to counter 

particular forms of disability-based 

discrimination by owners, operators, or 

lessees of public accommodations. Of 

particular relevance to this rulemaking, 

covered entities must take ‘‘such steps 

as may be necessary to ensure that no 

individual with a disability is excluded, 

denied services, segregated or otherwise 

treated differently * * * because of the 

absence of auxiliary aids and services’’ 

unless they can show that doing so 

would result in a fundamental alteration 

or undue burden. 42 U.S.C. 

12182(b)(2)(A)(iii). The Department’s 

regulation implementing title III’s 

auxiliary aid provision reiterates the 

obligation of covered entities to ensure 

effective communication with 

individuals with disabilities and 

identifies, among other things, open 

captioning, closed captioning, and 

audio recordings, as examples of 

auxiliary aids and services. 28 CFR 

36.303(a)–(c). 

Despite movie theaters’ title III 

obligation to provide effective 

communication to patrons who are deaf 

or hard of hearing or blind or have low 

vision, these individuals are often shut 

out from the movie-going experience; 

this exclusion occurs even though the 

vast majority of motion pictures 

released by the major domestic movie 

studios include closed captioning and to 

a lesser extent, audio description. While 

there has been an increase in the 

number of movie theaters exhibiting 

movies with closed captions and to a 

much lesser extent, audio description, 

due in large part to successful disability 

rights litigation brought by private 

plaintiffs during the past few years, the 

availability of movies exhibited with 

closed captions and audio description 

varies significantly across the United 

States depending upon locality and 

movie theater ownership. As a result, 

persons who are deaf or hard of hearing 

or blind or have low vision, who 

represent an ever-increasing proportion 

of the population, still cannot fully take 

part in movie-going outings with family 

or friends, join in social conversations 

about recent movie releases, or 

otherwise participate in a meaningful 

way in this important aspect of 

American culture. 

The ADA requirements for effective 

communication apply to all public 

accommodations (including movie 

theaters) in every jurisdiction in the 

United States and should be 

consistently applied. The ADA protects 

the rights of persons with disabilities 

throughout the United States; the right 

to access movies exhibited with closed 

captioning and audio description 

should not depend on whether the 

person who is deaf or hard of hearing or 

is blind or has low vision resides in a 

jurisdiction where movie theaters, 

subject to a consent decree or 

settlement, exhibit movies with closed 

captioning or audio description. And, 

even in jurisdictions where theaters 

exhibit movies with captioning and 

audio description, many do not make 

captioning and audio description 

available at all movie showings. 

Moreover, recent technological changes 

in the movie theater industry— 

including wide-spread conversion from 

analog (film) projection to digital 

cinema systems—make exhibition of 

captioned and audio-described movies 

easier and less costly. The Department 

is thus convinced that regulation is 

warranted at this time in order to 

achieve the goals and promise of the 

ADA. 

Major Provisions 

The major provisions of the proposed 

rule can be summarized as follows. 

First, as of the rule’s effective date, 

which the Department is proposing to 

be 6 months after the publication of a 

final rule in the Federal Register, the 

NPRM proposes to require movie 

theaters with digital screens (generally, 

those exhibiting movies captured on 

data files stored in a hard drive or flash 

drive) to exhibit movies with closed 

captions (although theaters may, at their 

own discretion, exhibit movies with 

open captions instead) and audio 

description, for all screenings when 

such movies are produced and 

distributed with these features unless 

the public accommodation can 

demonstrate that taking those steps 

would fundamentally alter the nature of 

the goods, services, facilities, privileges, 

advantages, or accommodations being 

offered or would result in an undue 

burden, i.e., significant difficulty or 

expense. Such an across-the-board 

requirement fulfills the effective 

communication objective by permitting 

individuals who are deaf or hard of 

hearing or blind or have low vision to 

fully and equally participate in one of 

the most quintessential forms of 

American entertainment—going out to 

the movies along with the rest of the 

movie-going public. 

In no case would movie theaters be 

required to create their own captioning 

or audio descriptions for movies. 

Rather, whenever the movies that 

theaters choose to screen are produced 

and distributed with these accessibility 

features, movie theaters would be 

required to ensure that they obtain and 

then screen those versions. This rule 

would not prohibit movie theaters from 

screening movies that are not produced 

with captions or audio description. 

Second, the NPRM does not propose 

a specific compliance date for analog 

screens (generally, those exhibiting 

movies in the traditional form of 35 mm 

film) in movie theaters. Instead, the 

Department seeks public comment on 

two options. Option 1: Whether the rule 

should adopt a delayed compliance date 

for analog screens four years from the 

publication of a final rule in the Federal 

Register. The Department believes that 

a delayed compliance date would allow 

any small theaters that remain analog to 

obtain the necessary resources to 

purchase the equipment to provide 

closed captioning and audio 

description. Option 2: Because the state 

of analog movies is in such flux, 

whether the Department should defer 

rulemaking with respect to analog 

movie screens until a later date. 

Third, the NPRM proposes to require 

movie theaters to have a certain number 

of individual captioning devices capable 

of delivering the captions at the seat of 

the individual and to provide them to 

patrons upon request. The proposed 

numbers are based upon the number of 

seats in the movie theater itself and can 

be shared among the screens in the 

theater. Individual captioning devices 

are a necessary part of the process of 

delivering closed captions, and this 

requirement is designed to ensure that 

there will be sufficient numbers of 

devices available for use when 

individuals who are deaf or hard of 

hearing attend the movies. 

Fourth, the NPRM proposes to require 

movie theaters to have a certain number 

of devices capable of delivering audio 

description and to provide them to 

patrons upon request. The NPRM 

recognizes that the devices currently 

required by the ADA for assistive 

listening often contain an extra channel 

and therefore can also be used to deliver 

audio description. The NPRM proposes 

minimal scoping for audio description 

listening devices and also permits 

movie theaters that have two-channel 

devices for assistive listening to use 

those devices for audio description in 

lieu of purchasing additional devices. 

Fifth, the NPRM proposes to require 

that movie theaters ensure that their 

staff has the capability to operate the 


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1Baseline 1 (only one screen per-theater already 

has the necessary equipment); Baseline 2 (all 

theaters of those companies affected by recent 

litigation/settlement agreements already have the 

necessary equipment); Baseline 3 (all digital 

theaters estimated by the National Association of 

Theater Owners (NATO) in 2013 as having 

captioning capabilities (53 percent) have done so 

independently of the proposed rule’s requirements). 

See Initial RA for further details on Baseline 

estimations. 

2Baseline 1 (only one screen per-theater already 

has the necessary equipment); Baseline 2 (all 

theaters of those companies affected by recent 

litigation/settlement agreements already have the 

necessary equipment); Baseline 3 (all digital 

theaters estimated by NATO in 2013 as having 

captioning capabilities (53 percent) have done so 

independently of the proposed rule’s requirements). 

See Initial RA for further details on Baseline 

estimations. 

equipment to show captions and audio 

description and to show patrons how to 

use individual devices. 

Finally, the NPRM proposes that 

movie theaters provide the public with 

notice about the availability of captions 

and audio description. This provision is 

necessary because currently not all 

movies are produced with captions and 

audio description, and moviegoers who 

are deaf or hard of hearing or blind or 

have low vision, should have the ability 

to find out which movies are accessible 

to them. 

As with other effective 

communication obligations under the 

ADA, covered entities do not have to 

comply with these requirements to the 

extent that they constitute an undue 

burden or fundamental alteration. 

Costs and Benefits 

With respect to the costs and benefits 

of this rule, the Department has 

prepared an Initial Regulatory 

Assessment (Initial RA). The Initial RA 

assesses the likely costs and benefits of 

the proposed rule. Expected benefits are 

discussed and likely costs are estimated 

for all theaters over the projected life of 

the rule (15 years), as well as for ‘‘small 

businesses’’ in the movie exhibition 

industry as part of an Initial Regulatory 

Flexibility Analysis (IRFA), included 

therein. 

The Initial RA provides estimates of 

the total costs for two options. Option 

1 assumes a compliance date for digital 

theaters of six months from the 

publication of the final rule and a 

compliance date for analog theaters of 

four years from the publication date of 

the final rule. Option 2 assumes that the 

rule will only apply to digital theaters 

and that application of the rule’s 

requirements to analog theaters will be 

deferred. For Option 1, the total cost for 

all theaters over the 15-year period 

following publication of this rule in 

final form will likely range from $177.8 

million to $225.9 million when using a 

7 percent discount rate, and from $219.0 

million to $275.7 million when using a 

3 percent discount rate, depending on 

which baseline is used regarding the 

extent to which theaters are or will soon 

be providing movie captioning and 

audio description as proposed in this 

rule, but independently of this 

rulemaking.1 Under Option 1, the 

annualized costs range from $19.5 

million to $24.8 million when using a 

7 percent discount rate, and from $18.3 

million to $23.1 million when using a 

3 percent discount rate. For Option 2, 

total costs for all theaters with digital 

screens over the 15-year period 

following publication of this rule in 

final form will likely range from $138.1 

million to $186.2 million when using a 

7 percent discount rate, and from $169.3 

million to $226.0 million when using a 

3 percent discount rate, depending on 

which baseline is used regarding the 

extent to which theaters are or will soon 

be providing movie captioning and 

audio description as proposed in this 

rule, but independently of this 

rulemaking.2 When annualized, these 

costs range from $15.2 million to $20.4 

million when using a 7 percent discount 

rate, and from $14.2 million to $18.9 

million when using a 3 percent discount 

rate. In either case, the Initial RA shows 

that estimated annual costs for this 

proposed rule would not exceed $100 

million in any year (under any of the 

three baseline scenarios). 

TABLE ES–1—ANNUALIZED COSTS AND BENEFITS OF PROPOSED RULE

[2015 Dollars, 15-year time horizon] 

7% Discount rate 3% Discount rate 

Baseline 1 

assumptions 

(one screen per-theater) 

Baseline 2 

assumptions 

(litigation-based) 

Baseline 3 

assumptions 

(NATO survey based) 

Baseline 1 

assumptions 

(one screen per-theater) 

Baseline 2 

assumptions 

(litigation-based) 

Baseline 3 

assumptions 

(NATO survey based) 

Costs (million $) 

Option 1—Four Year Compliance for Analog Screens 

$24.8 $21.1 $19.5 $23.1 $19.7 $18.3 

Option 2—Deferred Rulemaking for Analog Screens 

$20.4 $16.7 $15.2 $18.9 $15.6 $14.2 

Benefits 

The proposed rule would address the discriminatory effects of communication barriers at movie theaters encountered by 

individuals who are deaf or hard of hearing or are blind or have low vision. By ensuring that movie theaters screen those 

movies that are produced and distributed with the necessary auxiliary aids and services—captioning and audio 

description—and that theaters provide the individual devices needed to deliver these services to patrons with these 

particular disabilities, this rule would afford such individuals an equal opportunity to attend movies and follow both the 

audio and visual aspects of movies exhibited at movie theaters. Although the Department is unable to monetize or 

quantify the benefits of this proposed rule, it would have important benefits. For example, it would provide people with 

hearing and vision disabilities better access to the movie viewing experience enjoyed by others; it would allow such 

persons to attend and enjoy movies with their family members and acquaintances; it would allow people with hearing or 

vision disabilities to participate in conversations about movies with family members and acquaintances; and it would 

promote other hard-to-quantify benefits recognized in Executive Order 13563 such as equity, human dignity, and 

fairness. 


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3The Census defines difficulty seeing as 

‘‘experiencing blindness or having difficulty seeing 

words or letters in ordinary newsprint even when 

normally wearing glasses or contact lenses.’’ It 

defines difficulty hearing as ‘‘experiencing deafness 

or having difficulty hearing a normal conversation, 

even when wearing a hearing aid.’’ See U.S. Census 

Bureau, U.S. Department of Commerce, P70–131, 

Americans with Disabilities: 2010 Household 

Economic Studies at 8 (2012), available at http://

www.census.gov/prod/2012pubs/p70-131.pdf (last 

visited July 14, 2014). 

4 In 2012, a little more than two thirds (68 

percent) of the U.S. and Canadian population over 

two years old went to a movie at a movie theater 

at least once that year. See Motion Picture 

Association of America, Theatrical Market Statistics 

(2012), available from Movie Picture Association of 

America, http://www.mpaa.org/wp-content/

uploads/2014/03/2012-Theatrical-Market-StatisticsReport.pdf (last visited July 14, 2014). 

Because movie theater complexes 

vary greatly by number of screens, 

which significantly impacts overall 

costs per facility, the Initial RA breaks 

the movie exhibition industry into four 

theater types based on size—Megaplexes 

(16 or more screens), Multiplexes (8–15 

screens), Miniplexes (2–7 screens), and 

Single Screen Theaters—and for Option 

1, by digital or analog system. The 

average capital cost for digital Megaplex 

theaters in the first year is estimated to 

total $38,547, while the average capital 

cost for digital single screen theaters in 

the first year is estimated to total $3,198. 

Should the Department proceed under 

Option 1 and cover analog screens in 

the final rule, though with a four-year 

delayed compliance date, per theater 

costs for analog theaters would be 

higher than those for digital theaters for 

each type or size. The first year pertheater capital cost for analog single 

screen theaters is estimated to total 

$8,172. The first year per-theater capital 

costs for digital single screen theaters 

would average $3,198. 

The individuals who will directly 

benefit from this rule are those persons 

with hearing or vision disabilities who, 

as a result of this rule, would be able for 

the first time to attend movies with 

closed captioning or audio description 

in theaters across the country on a 

consistent basis. Individuals who will 

indirectly benefit from this rule are the 

family and friends of persons with 

hearing and vision disabilities who 

would be able to share the movie-going 

experience more fully with their friends 

or loved ones with hearing and vision 

disabilities. 

The benefits of this rule are difficult 

to quantify for multiple reasons. The 

Department has not been able to locate 

robust data on the rate at which persons 

with disabilities currently go to movies 

shown in movie theaters. In addition, as 

a result of this rule, the following 

number of persons will change by an 

unknown amount: (1) The number of 

persons with disabilities who will 

newly go to movies, (2) the number of 

persons with disabilities who will go to 

movies more often, (3) the number of 

persons who will go to the movies as 

part of a larger group that includes a 

person with a disability, and (4) the 

number of persons with disabilities who 

would have gone to the movies anyway 

but under the rule will have a fuller and 

more pleasant experience. In addition, 

the Department does not know precisely 

how many movie screens currently 

screen movies with closed captioning 

and audio description, or how many 

people with hearing or vision 

disabilities currently have consistent 

access to movie theaters that provide 

closed captioning and audio 

description. Finally, the Department is 

not aware of any peer-reviewed 

academic or professional studies that 

monetize or quantify the societal benefit 

of providing closed captioning and 

audio description at movie theaters. 

Data on movie-going patterns of 

persons who are deaf or hard of hearing 

or are blind or have low vision is very 

limited, making estimations of demand 

very difficult. However, numerous 

public comments suggest that many 

persons who are deaf or hard of hearing 

or are blind or have low vision do not 

go to the movies at all or attend movies 

well below the national average of 4.1 

annual admissions per person because 

of the lack of auxiliary aids and services 

that would allow them to understand 

and enjoy the movie. 

Though we cannot confidently 

estimate the likely number of people 

who would directly benefit from this 

proposed rule, we have reviewed data 

on the number of people with hearing 

or vision disabilities in the United 

States. The Census Bureau estimates 

that 3.3 percent of the U.S. population 

has difficulty seeing, which translates 

into a little more than eight million 

individuals in 2010, and a little more 

than two million of those had ‘‘severe’’ 

difficulty seeing.3 At the same time, the 

Census Bureau estimates that 3.1 

percent of people had difficulty hearing, 

which was a little more than 7.5 million 

individuals in 2010, and approximately 

one million of them having ‘‘severe’’ 

difficulty hearing. Not all of these 

people would benefit from this 

proposed rule. For example, some 

people’s hearing or vision disability 

may not be such that they would need 

closed captioning or audio description. 

Some people with hearing or visions 

disabilities may not want to use the 

equipment for a variety of reasons. 

Others would not attend public 

screenings of movies even if theaters 

provided closed captioning and audio 

description simply because they do not 

enjoy going out to the movies—just as 

is the case among persons without 

disabilities.4 Some people with hearing 

or vision disabilities may already have 

consistent access to theaters that screen 

movies with closed captioning and 

audio description. And some theaters 

may not provide closed captioning and 

audio description for all their movies 

because it would be an undue burden 

under the ADA to do so. 

In addition to the direct beneficiaries 

of the proposed rule discussed above, 

others may be indirect beneficiaries of 

this rule. Family and friends of persons 

with these disabilities who wish to go 

to the movies as a shared social 

experience will now have greater 

opportunities to do so. The Department 

received numerous comments from 

individuals who are deaf or hard of 

hearing or are blind or have low vision 

in response to its 2010 Advance Notice 

of Proposed Rulemaking on Movie 

Captioning and Video Description in 

Movie Theaters describing how they 

were unable to take part in the moviegoing experience with their friends and 

family because of the unavailability of 

captioning or audio description. Many 

individuals felt that this not only 

affected their ability to socialize and 

fully take part in family and social 

outings, but also deprived them of the 

opportunity to meaningfully engage in 

the discourse that often surrounds 

movie attendance. (See the Initial RA, 

Section 5 (Benefits) for more details and 

description of the potential benefits of 

this proposed rule.) Of perhaps greater 

significance to the discussion of the 

benefits of this rule, however, are issues 

relating to fairness, equity, and equal 

access, all of which are extremely 

difficult to monetize, and the 

Department has not been able to 

effectively quantify and place a dollar 

value on those benefits. Regardless, the 

Department believes the nonquantifiable benefits justify the costs of 

requiring captioning and audio 

description at movie theaters 

nationwide. 

In keeping with the Regulatory 

Flexibility Act (RFA), the Initial RA 

examined the economic impact of the 

proposed rule on small businesses in 

the movie exhibition industry. The 

current size standard for a small movie 

theater business is $35.5 million dollars 

in annual revenue. In 2007, the latest 

year for which detailed breakouts by 

industry and annual revenue are 

available, approximately 98 percent of 

movie theater firms met the standard for 

small business, and these firms 


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5The size standard of $35.5 million can be found 

in U.S. Small Business Administration, Table of 

Small Business Size Standards Matched to North 

American Industry Classification System Codes, 

available at http://www.sba.gov/sites/default/files/

files/Size_Standards_Table.pdf (last visited July 14, 

2014). 

6 In the Department’s Advance Notice of Proposed 

Rulemaking on Movie Captioning and Video 

Description (2010 ANPRM), 75 FR 43467 (July 26, 

2010), the Department used the term ‘‘video 

description.’’ In response to comments received 

from this ANPRM, the Department now refers to 

this process as ‘‘audio description.’’ 

managed approximately 53 percent of 

movie theater establishments.5 The 

IRFA estimates the average initial 

capital costs per-firm for firms that 

display digital or analog movies under 

Option 1 and for firms that display 

digital movies under Option 2. The 

average costs for small firms (which 

have a proportionately higher number of 

Single Screens and Miniplexes) were 

between approximately 0.7 percent to 

2.1 percent of their average annual 

receipts for firms with digital theaters, 

and between approximately 2.0 percent 

to 5.7 percent of average annual receipts 

for firms with analog theaters. The 

Department has determined that this 

proposed rule will have a significant 

economic impact on a substantial 

number of small businesses. 

The Department has used the IRFA to 

examine other ways, if possible, to 

accomplish the Department’s goals with 

fewer burdens on small businesses. 

Based on its assessment, the Department 

has decided to seek public comment on 

two options: One that would adopt a 

four-year compliance date for theaters’ 

analog screens (Option 1), and the other 

that would defer application of the 

rule’s requirements to movie theaters’ 

analog screens and consider additional 

rulemaking at a later date (Option 2). 

II. Background 

A. Movie Basics, Captioning, and Audio 

Description Generally 

The very first movies were silent 

films. Talking pictures, or ‘‘talkies,’’ 

added sound as a separate component in 

the mid-to-late 1920s. Today, there are 

two formats for exhibiting movies in 

theaters: Analog movies and digital 

movies. The term analog movie 

describes what is generally understood 

as a movie exhibited in a traditional 

film form (generally 35 mm film). 

Currently, while the cinematography 

portion of analog movies is exhibited in 

a traditional film format, the sound 

portion of analog movies is generally 

provided in a digital format. Five to six 

reels of film are used for a typical twohour long analog movie. These reels 

must be physically delivered to each 

movie theater exhibiting the movie. 

Digital sound accompanying analog 

movies is captured on CD–ROMs or 

optically or digitally on the film itself. 

Digital sound is synchronized to the 

visual images on the screen of the 

analog movie by a mechanism called a 

reader head, which reads a time code 

track printed on the film. 

A digital movie (digital cinema), by 

contrast, captures images, data, and 

sound on data files as a digital 

‘‘package’’ that is stored on a hard drive 

or a flash drive. Digital movies are 

physically delivered to movie theaters 

on high resolution DVDs or removable 

or external hard drives, or can be 

transmitted to movie theaters’ servers 

via Internet, fiber-optic, or satellite 

networks. Digital production, 

distribution, and exhibition are seen as 

having many advantages over analog 

film, including better and longer lasting 

image quality, availability of higher 

resolution images, lower production and 

distribution costs, ease of distribution, 

availability of enhanced effects such as 

3D, ease of exhibition of live events or 

performances, and greater flexibility in 

arranging or increasing show times to 

accommodate unanticipated audience 

demand. 

The movie picture production 

industry is in the midst of a large and 

transformative conversion to digital 

cinema. This conversion is viewed by 

the industry as one of the most 

profound advances in motion picture 

production and technology of the last 

100 years. On May 14, 2013, an industry 

representative testified before Congress 

that the industry had nearly completed 

its transition to digital distribution and 

projection and that approximately 88 

percent of all movie theater screens 

(nearly 35,000 screens) had already 

converted to digital. Testimony of John 

Fithian, President and CEO of the 

National Association of Theater Owners, 

Before the U.S. Senate Committee on 

Health, Education, Labor and Pension 

(May 14, 2013), available at http://

www.help.senate.gov/imo/media/doc/

Fithian.pdf (last visited July 14, 2014). 

Captioning makes movies accessible 

to individuals who are deaf or hard of 

hearing and who are unable to benefit 

from the use of the assistive listening 

systems required for movie theaters to 

amplify sound. There are, at present, 

two types of captions available for 

movies: Open captions and closed 

captions. The terms ‘‘closed captioning’’ 

and ‘‘open captioning’’ have had special 

meaning in the movie theater context 

and differ from the way the terms are 

used in other settings (e.g., television). 

In the movie theater context, the movie 

industry and the courts have used the 

term ‘‘closed captioning’’ to mean that 

when the closed captions are in use, 

only the patron requesting the closed 

captions can see the captions because 

the captions are delivered to the patron 

at or near the patron’s seat. The term 

‘‘open captioning’’ has been used in the 

movie theater context to refer to the 

circumstances when the theater exhibits 

the captions so that all patrons see the 

captions on or near the screen. By 

contrast, in the television context, the 

term ‘‘closed captioning’’ has been used 

to refer to captions that can be seen on 

the screen when turned on by the 

viewer. In order to avoid confusion 

between the specific requirements in 

this proposed rule and the ways the 

terms open and closed captioning have 

historically been used in other settings, 

the Department proposes using the 

terms ‘‘closed movie captioning’’ and 

‘‘open movie captioning’’ in the 

regulatory text to specifically refer to 

captions that are provided in movie 

theaters. However, in the preamble, 

when discussing the history of 

captioning, the state of captioning 

technology, the legislative history of the 

ADA, and court decisions, the 

Department will continue to use the 

terms ‘‘closed captioning’’ and ‘‘open 

captioning’’ because such terms are 

used in the definition of auxiliary aids 

at 28 CFR 36.303(b). 

Open movie captions are similar to 

subtitles in that the text of the dialogue 

is visible to everyone in the movie 

theater. Unlike subtitles, open movie 

captions also describe other sounds and 

sound making (e.g., sound effects, 

music, and the character who is 

speaking) in an on-screen text format. 

Open captions in movies were 

sometimes referred to as ‘‘burned-in’’ or 

‘‘hardcoded’’ captions because they 

were burned in or incorporated into the 

film. However, new open-captioning 

technology enables studios to 

superimpose captions without making a 

burned-in copy or having to deliver a 

special version of the movie. Currently, 

some movie theaters exhibit opencaptioned films at certain limited 

showings. 

Closed movie captioning, as that term 

is used in the regulatory text of this 

NPRM, refers to the display of the 

written text of the dialogue and other 

sounds or sound making only to those 

individuals who request it. When 

requested, the captions are delivered via 

individual captioning devices used by 

patrons at their seats. 

Audio description 6 is a technology 

that enables individuals who are blind 

or have low vision to enjoy movies by 

providing a spoken narration of key 

visual elements of a visually delivered 


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7 In addition to the four movie theater chains 

listed above, according to data available from the 

National Association of Theater Owners, the other 

six movie theater chains rounding out the domestic 

top ten as of July 2010, were Cineplex, Rave 

Cinemas, Marcus Theaters, Hollywood Theaters, 

National Amusements Inc., and Harkins Theaters. 

8The Motion Picture Association of America 

(MPAA) is a trade association representing the six 

major producers and distributors of theatrical 

motion pictures, home entertainment, and 

television programs, including Paramount Pictures 

Corporation, Sony Pictures Entertainment Inc, 

Twentieth Century Fox Film Corporation, Universal 

City Studios LLP, Walt Disney Studios Motion 

Pictures, and Warner Bros. Entertainment Inc. 

medium, such as actions, settings, facial 

expressions, costumes, and scene 

changes. Audio description fills in 

information about the visual content of 

a movie where there are no 

corresponding audio elements in the 

film. It requires the creation of a 

separate script that is written by 

specially-trained writers and recorded 

on an audiotape or CD that is 

synchronized with the film as it is 

projected. The oral delivery of the script 

is transmitted to the user through infrared or FM transmission to wireless 

headsets. 

Movie studios decide which movies 

to provide with captioning and audio 

description and then arrange to have the 

captions and audio description 

produced. Movie studios include these 

auxiliary aids in movies before the 

movies are distributed to movie theaters 

and do not charge movie theaters for 

this service. Movie studios are 

increasing the numbers of movies 

produced with captioning in large part 

because in 1997 the Federal 

Communications Commission 

published regulations requiring 

programming (including movies) shown 

on television to be captioned. See 47 

CFR part 79. 

Movie theaters are defined in the 

proposed rule to include only facilities 

used primarily for the purpose of 

showing movies to the public for a fee. 

As of the end of 2011 there were nearly 

39,000 indoor movie screens in the 

United States and approximately 600 

drive-in movie screens. See National 

Association of Theater Owners, Number 

of U.S. Movie Screens, available at 

http://natoonline.org/data/us-moviescreens/ (last visited July 14, 2014). 

Altogether, the four largest movie 

theater chains based on screen count— 

Regal Entertainment Group, AMC 

Entertainment, Inc., Cinemark USA, 

Inc., and Carmike Cinemas, Inc.—own 

or operate approximately 18,000 

screens. As of 2010, the top ten 

domestic movie theater chains had 55 

percent of the movie screens in the 

United States and Canada.7 According 

to comments submitted by the National 

Association of Theater Owners (NATO) 

in response to the Department’s 

Advance Notice of Proposed 

Rulemaking on Movie Captioning and 

Video Description (2010 ANPRM), 75 

FR 43467 (July 26, 2010) (discussed 

below), as of 2010, there were 

approximately 83 movie theater 

companies in the United States that own 

or operate 50 or more screens and, in 

the aggregate, these companies operate 

30,432 screens in the United States. Of 

the additional 931 movie theater 

companies that own or operate fewer 

than 50 screens, 450 operate four 

screens or fewer, and 362 owners 

operate one site with one or two 

screens. 

Moreover, the number of small movie 

theater facilities continues to decline. 

Single screen and Miniplex (between 

two and seven screens) theaters steadily 

declined from 2007 to 2010, while the 

number of Multiplex (8–15 screens) and 

Megaplex (16 or more screens) theaters 

increased over that same time period. 

See Motion Picture Association of 

America (MPAA),8 Theatrical Market 

Statistics (2011), available at http://

www.bumpercarfilms.com/assets/

downloads/movies.pdf (last visited July 

14, 2014). The decline in the number of 

small independently owned theaters is 

expected to accelerate as a result of the 

significant decrease anticipated in the 

availability of first-run films in analog 

format, as the majority of these small 

independently owned theaters are 

analog theaters. In 2011, the head of the 

MPAA was reported to have predicted 

that analog films would disappear in 

less than three years. See Tim O’Reiley, 

Theater Official Optimistic Despite 

Attendance Slump, Las Vegas Review 

Journal (March 19, 2011), available at 

http://www.reviewjournal.com/

business/theater-official-optimisticdespite-attendance-slump (last visited 

July 14, 2014). Similarly, at the spring 

2013 CinemaCon industry convention, 

an industry analyst stated that by the 

end of 2015, analog film will no longer 

exist in cinemas, and it is likely that 

production of analog film in the United 

States will end by the end of 2013. See 

Lyndsey Hewitt, Local Theaters Face 

Tough Times as 35 mm Faces 

Extinction, Sun Gazette.com (July 11, 

2013), available at http://

www.sungazette.com/page/

content.detail/id/594504/LocalTheaters-Face-Tough-Times-as-35-mmfaces-extinction.html?nav=5016 (last 

visited July 14, 2014). Consequently, 

some, if not most, small independently 

owned theaters will likely have to close 

if they cannot afford to convert their 

projection systems from analog to 

digital. See also Colin Covert, Final reel 

plays amid digital conversion, Star 

Tribune (Aug. 27, 2012), available at 

http://www.startribune.com/

entertainment/movies/

167253335.html?refer=y (last visited 

July 14, 2014). 

Despite the recent economic 

downturn, movies continue to be a 

major source of entertainment in the 

United States. In 2012, moviegoers in 

the United States and Canada bought a 

record $10.8 billion in movie tickets, 

with the largest number of tickets (1.36 

billion) sold in three years. Motion 

Picture Association of America, 

Theatrical Market Statistics at 4 (2012), 

available at http://www.mpaa.org/wpcontent/uploads/2014/03/2012- 

Theatrical-Market-Statistics-Report.pdf 

(last visited July 14, 2014). Movie 

theaters continue to draw more people 

than all theme parks and major U.S. 

sporting events combined. Id. at 10. 

B. Legal Authority To Require 

Captioning and Audio Description 

1. The ADA 

On July 26, 1990, President George 

H.W. Bush signed into law the ADA, a 

comprehensive civil rights law 

prohibiting discrimination on the basis 

of disability. The ADA broadly protects 

the rights of individuals with 

disabilities in employment, access to 

State and local government services, 

places of public accommodation, 

transportation, and other important 

areas of American life. The ADA also 

requires, in pertinent part, newly 

designed and constructed or altered 

public accommodations and commercial 

facilities to be readily accessible to and 

usable by individuals with disabilities. 

42 U.S.C. 12101 et seq. 

Title III of the ADA prohibits 

discrimination on the basis of disability 

in the ‘‘full and equal enjoyment’’ of 

places of public accommodation 

(privately operated entities whose 

operations affect commerce and that fall 

into one of twelve categories listed in 

the ADA, such as restaurants, movie 

theaters, schools, day care facilities, 

recreational facilities, and doctors’ 

offices) and requires newly constructed 

or altered places of public 

accommodation––as well as commercial 

facilities (privately owned, 

nonresidential facilities such as 

factories, warehouses, or office 

buildings)––to comply with the ADA 

Standards. 42 U.S.C. 12181–12189. Title 

III of the ADA includes movie theaters 

within its definition of places of public 

accommodation. 42 U.S.C. 12181(7)(C). 

Movie studios and other entities that 


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9An undue burden is one that results in 

significant difficulty or expense for the public 

accommodation. See 28 CFR 36.104. 

10Congress gave the Attorney General the 

authority and responsibility to issue regulations to 

carry out the provisions of title III of the ADA. 42 

U.S.C. 12186(b). 

produce movies to be shown in theaters 

are not public accommodations by 

virtue of the making of movies, and 

therefore are not covered by title III in 

their production of movies. 

Title III makes it unlawful to 

discriminate against an individual 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). 

Moreover, title III prohibits public 

accommodations such as movie theaters 

from affording an unequal or lesser 

service to individuals or classes of 

individuals with disabilities than is 

offered to other individuals. 42 U.S.C. 

12182(b)(1)(A)(ii). Title III requires 

public accommodations to take ‘‘such 

steps as may be necessary to ensure that 

no individual with a disability is 

excluded, denied services, segregated or 

otherwise treated differently . . . 

because of the absence of auxiliary aids 

and services, unless the entity can 

demonstrate that taking such steps 

would fundamentally alter the nature of 

the good, service, facility, privilege, 

advantage, or accommodation being 

offered or would result in an undue 

burden.’’ 9 42 U.S.C. 12182(b)(2)(A)(iii). 

The statute defines auxiliary aids and 

services to include ‘‘qualified 

interpreters or other effective methods 

of making aurally delivered materials 

available to individuals with hearing 

impairments’’ and ‘‘taped texts, or other 

effective methods of making visually 

delivered materials available to 

individuals with visual impairments.’’ 

42 U.S.C. 12103(1)(A)–(B). 

2. The ADA Title III Regulation 10

The Department of Justice’s regulation 

implementing title III of the ADA 

provides additional examples of 

auxiliary aids and services that are 

required by the statute. The regulation 

lists open and closed captioning and 

audio recordings and other effective 

methods of making visually-delivered 

materials available to individuals with 

visual impairments as examples of 

auxiliary aids and services that should 

be provided by public accommodations. 

28 CFR 36.303(b)(1)–(2). This list was 

revised in 2010 to reflect changes in 

technology and the auxiliary aids and 

services commonly used by individuals 

who are deaf or hard of hearing or blind 

or have low vision. 75 FR 56236, 56253– 

56254 (Sept. 15, 2010). The title III 

regulation reiterates the requirement of 

the statute, stating that a public 

accommodation shall take those steps 

that may be necessary to ensure that no 

individual with a disability is excluded, 

denied services, segregated, or 

otherwise treated differently than other 

individuals because of the absence of 

auxiliary aids and services, unless the 

public accommodation can demonstrate 

that providing such aids and services 

would fundamentally alter the nature of 

the goods, services, facilities, privileges, 

advantages, or accommodations being 

offered or would result in an undue 

burden. 28 CFR 36.303(a). The title III 

regulation reflects that the overarching 

objective and obligation imposed by the 

auxiliary aids and services requirement 

is that a public accommodation must 

furnish appropriate auxiliary aids and 

services where necessary to ensure 

effective communication with 

individuals with disabilities. 28 CFR 

36.303(c)(1). The type of auxiliary aid or 

service necessary to ensure effective 

communication varies in accordance 

with the method of communication 

used by the individual; the nature, 

length, and complexity of the 

communication involved; and the 

context in which the communication is 

taking place. 28 CFR 36.303(c)(1)(ii). 

Moreover, in order to be effective, 

auxiliary aids and services must be 

provided in accessible formats and in a 

timely manner. Id. For individuals who 

are deaf or hard of hearing and are 

prevented from being able to effectively 

use the assistive listening receivers 

currently provided in movie theaters to 

amplify sound, the only auxiliary aids 

presently available that would 

effectively communicate the dialogue 

and sounds in a movie are captioning or 

sign language interpreting. Likewise, for 

individuals who are blind or who have 

very low vision, the only auxiliary aid 

presently available that would 

effectively communicate the visual 

components of a movie is audio 

description. 

As stated above, a public 

accommodation is relieved of its 

obligation to provide a particular 

auxiliary aid (but not all auxiliary aids), 

if to do so would result in an undue 

burden or a fundamental alteration. To 

that end, the Department’s title III 

regulation specifically defines undue 

burden as ‘‘significant difficulty or 

expense’’ and, emphasizing the flexible 

and individualized nature of any such 

defense, lists five factors that must be 

considered when determining whether 

an action would constitute an undue 

burden. See 28 CFR 36.104. These 

factors include: (1) The nature and cost 

of the action; (2) the overall financial 

resources of the site or sites involved in 

the action; the number of persons 

employed at the site; the effect on 

expenses and resources; legitimate 

safety requirements that are necessary 

for safe operation, including crime 

prevention measures; or the impact 

otherwise of the action upon the 

operation of the site; (3) the geographic 

separateness, and the administrative or 

fiscal relationship of the site or sites in 

question, to any parent corporation or 

entity; (4) if applicable, the overall 

financial resources of any parent 

corporation or entity; the overall size of 

the parent corporation or entity with 

respect to the number of its employees; 

and the number, type, and location of its 

facilities; and (5) if applicable, 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 

or entity. Id. The undue burden defense 

entails a fact-specific examination of the 

cost of a specific action and the specific 

circumstances of a particular public 

accommodation. This defense also is 

designed to ensure that the needs of 

small businesses, as well as large 

businesses, are addressed and protected. 

The Department defines fundamental 

alteration as a ‘‘modification that is so 

significant that it alters the essential 

nature of the goods, services, facilities, 

privileges, advantages, or 

accommodations offered.’’ U.S. 

Department of Justice, Americans with 

Disabilities Act ADA Title III Technical 

Assistance Manual Covering Public 

Accommodations and Commercial 

Facilities III–4.3600, available at http:// 

www.ada.gov/taman3.html (last visited 

July 14, 2014). 

If a provision of a particular auxiliary 

aid or service by a public 

accommodation would result in a 

fundamental alteration or an undue 

burden, the public accommodation is 

not relieved of its obligations to provide 

auxiliary aids and services. The public 

accommodation is still required to 

provide an alternative auxiliary aid or 

service, if one exists, that would not 

result in such an alteration or burden 

but would nevertheless ensure that, to 

the maximum extent possible, 

individuals with disabilities receive the 

goods and services offered by the public 

accommodation. 28 CFR 36.303(g). It is 

the Department’s view that it would not 

be a fundamental alteration of the 

business of showing movies in theaters 

to exhibit movies with closed captions 

and audio descriptions in order to 

provide effective communication to 


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11 In 1990, the only way to include open-captions 

in a movie was to create a separate print of the 

movie and then laser-etch, or ‘‘burn,’’ the captions 

onto that separate print. Limited copies of the opencaptioned print were made and these copies were 

distributed after the uncaptioned versions to some, 

but by no means all, movie theaters. 

12As the district court noted in Ball v. AMC 

Entertainment, Inc., 246 F. Supp. 2d 17, 22 (D.D.C. 

2003), ‘‘Congress explicitly anticipated the situation 

presented in this case [the development of 

technology to provide closed captioning of movies]. 

Therefore, the isolated statement that open 

captioning of films in movie theaters was not 

required in 1990 cannot be interpreted to mean that 

[movie theaters] cannot now be expected and 

required to provide closed captioning of films in 

their movie theaters.’’ 

13A consent decree was entered into on 

November 7, 2011, in which Harkins agreed to 

provide closed captioning and audio description at 

all 346 screens in its 25 movie theaters by January 

15, 2013. See Consent Decree in Arizona v. Harkins 

Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 

2010), ECF 131, CV07–703 PHX ROS, Approved 

11/07/2011. In February 2012, Harkins announced 

that it expected to have all of its theaters equipped 

with closed captioning and audio description by the 

end of 2012. Press Release, Arizona Commission for 

the Deaf and Hard of Hearing, ‘‘Harkins Theatres 

announces closed captioning and descriptive 

narration devices’’ (Feb. 16, 2012), available at 

http://www.acdhh.org/news/harkins-theatresannounces-closed-captioning-and-descriptivenarration-devices (last visited July 14, 2014). 

individuals who are deaf or hard of 

hearing or blind or have low vision. 

3. The Legislative History of the ADA 

While the ADA itself contains no 

explicit language regarding captioning 

(or audio description) in movie theaters, 

the legislative history of title III states 

that ‘‘[o]pen captioning * * * of feature 

films playing in movie theaters, is not 

required by this legislation. Filmmakers 

are, however, encouraged to produce 

and distribute open-captioned versions 

of films, and theaters are encouraged to 

have at least some pre-announced 

screenings of a captioned version of 

feature films.’’ H.R. Rep. No. 101–485, 

pt. 2, at 108 (1990); S. Rep. No. 101–116, 

at 64 (1989).11 Congress was silent on 

the question of closed captions in movie 

theaters, a technology not yet developed 

for use in movie theaters, but it 

acknowledged that closed captions 

might be an effective auxiliary aid and 

service for making aurally delivered 

information available to individuals 

who are deaf or hard of hearing. See 

H.R. Rep. No. 101–485, pt. 2, at 107. 

Importantly, the House Committee 

stated that ‘‘technological advances can 

be expected to further enhance options 

for making meaningful and effective 

opportunities available to individuals 

with disabilities. Such advances may 

require public accommodations to 

provide auxiliary aids and services in 

the future which today would not be 

required because they would be held to 

impose undue burdens on such 

entities.’’ Id. at 108.12 Similarly, in 

1991, when issuing its original title III 

regulation, the Department stated in 

preamble language that ‘‘[m]ovie 

theaters are not required * * * to 

present open-captioned films,’’ but the 

Department was silent as to closed 

captioning. 56 FR 35544, 35567 (July 26, 

1991). The Department also noted, 

however, that ‘‘other public 

accommodations that impart verbal 

information through soundtracks on 

films, video tapes, or slide shows are 

required to make such information 

accessible to persons with hearing 

impairments. Captioning is one means 

to make the information accessible to 

individuals with disabilities.’’ Id. 

The legislative history of the ADA and 

the Department’s commentary in the 

preamble to the 1991 regulation make 

clear that although Congress was not 

requiring open captioning of movies in 

1990, it was leaving open the door for 

the Department to require captioning in 

the future as the technology developed. 

Congress did not specifically mention 

audio description in the legislative 

history; however, audio description 

clearly falls within the type of auxiliary 

aid contemplated by the ADA. 

Moreover, given the present state of 

technology, the Department believes 

that mandatory requirements for 

captioning and audio description in 

movie theaters fit comfortably within 

the meaning of the statutory text. 

4. Federal Appellate Case Law 

Addressing Captioning and Audio 

Description 

In April 2010, the first and only 

Federal appellate court to squarely 

address the question of whether 

captioning and audio description are 

required in movie theaters under the 

ADA determined that the ADA required 

movie theater owner and operator 

Harkins Amusement Enterprises, Inc., 

and its affiliates, to screen movies with 

closed captioning and descriptive 

narration (audio description) unless 

such owners and operators could 

demonstrate that to do so would amount 

to a fundamental alteration or undue 

burden. Arizona v. Harkins Amusement 

Enterprises, Inc., 603 F.3d 666, 675 (9th 

Cir. 2010). The Ninth Circuit held that 

because closed captioning and audio 

descriptions are correctly classified as 

‘‘auxiliary aids and services,’’ a movie 

theater may be required to provide them 

under the ADA, and thus, the lower 

court erred in holding that these 

services fell outside the scope of the 

ADA. Id. (citing 42 U.S.C. 

12182(b)(2)(A); 28 CFR 36.303).13

Representatives of the movie industry 

(movie studios and movie theater 

owners and operators) who commented 

on the 2010 ANPRM contended that 

exhibiting captioning is a fundamental 

alteration of its services. The 

Department does not agree with that 

assertion. As the Department asserted in 

its amicus brief filed in the Harkins 

case, exhibiting movies with captioning 

and audio description does not 

fundamentally alter the nature of the 

service provided by movie theaters. The 

service movie theaters provide is 

screening or exhibiting movies. The use 

of auxiliary aids to make that service 

available to those who are deaf or hard 

of hearing or blind or have low vision 

does not change that service. Rather, the 

provision of auxiliary aids such as 

captioning and audio description are the 

means by which these individuals gain 

access to the movie theaters’ services 

and therefore achieve the ‘‘full and 

equal enjoyment,’’ 42 U.S.C. 12182(a), of 

the screening of movies. See Brief for 

the United States as Amicus Curiae 

Supporting Appellants and Urging 

Reversal at 15–16, Harkins Amusement, 

supra, (9th Cir. Feb. 6, 2009) (No. 08– 

16075). 

C. Need for Department Action 

1. Importance of Movies in American 

Culture 

Going to the movies is a 

quintessential American experience. In 

any given month, over 56 million adults 

(roughly 26 percent of the adult 

population) make a trip to a movie 

theater to take in a movie. See Experian 

Marketing Services, 2010 American 

Movie-Goer Consumer Report, available 

at http://www.experian.com/blogs/

marketing-forward/2010/02/20/2010- 

american-movie-goer-consumer-report/ 

(last visited July 14, 2014). Going to the 

movies is also an important social 

experience and pastime of teenagers and 

young adults. And while teenagers and 

young adults are more likely to go to the 

movies than older adults, adults over 50 

outnumber young adults when it comes 

to raw number of moviegoers. Id. 

Moreover, going to the movies is also an 

important part of the American family 

experience. Long holiday weekends 

offer the movie industry some of the 

biggest box offices sales as families 

gather for the holidays and head out to 

the theaters together. 

Movies are a part of our shared 

cultural experience, ‘‘water cooler’’ talk, 

and the subject of lunch-time 

conversations. The Supreme Court 

observed over 60 years ago that motion 

pictures ‘‘are a significant medium for 

the communication of ideas’’ and ‘‘may 


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14The percentage of Americans approaching 

middle age or older is increasing. The 2010 Census 

found that during the decade spanning 2000 to 

2010, the percentage of adults aged 45 to 64 years 

increased by 31.5 percent while the population 

aged 65 and over grew at a rate of 15.1 percent. By 

contrast, the population of adults between 18 and 

44 grew by only 0.6 percent. U.S. Census Bureau, 

U.S. Department of Commerce, C2010BR–03, Age 

and Sex Composition in the United States: 2010 

Census Brief 2 (2011), available at www.census.gov/ 

prod/cen2010/briefs/c2010br-03.pdf (last visited 

July 14, 2014). 

15 ‘‘While many people tend to think that the only 

factor in hearing loss is loudness, there are actually 

two factors involved: Loudness and clarity. Loss 

generally occurs first in the high pitch, quiet range. 

A mild loss can cause one to miss 25–40% of 

speech, depending on the noise level of the 

surroundings and distance from the speaker. When 

there is background noise, it becomes difficult to 

hear well; speech may be audible but may not be 

understandable.’’ Hearing Loss Association of 

Oregon, Facing the Challenge: A Survivor’s Manual 

for Hard of Hearing People (revised 4th ed. Spring 

2011), at 8, available at http:// 

www.hearinglossor.org/survivor_manual.pdf (last 

visited July 14, 2014). The degrees of hearing loss 

include: (1) Mild (25 to 40 dB): Faint or distant 

speech may be difficult; lip reading can be helpful; 

(2) Moderate (41 to 55 dB): Conversational speech 

can be understood at a distance of three to five feet; 

as much as 50% of discussions may be missed if 

the voices are faint or not in line of vision; (3) 

Moderately Severe (56 to 70 dB): Speech must be 

loud in order to be understood; group discussions 

will be difficult to follow; (4) Severe (71 to 90 dB): 

Voices may be heard from a distance of about 1 foot 

from the ear; and (5) Profound (more than 91dB): 

Loud sounds may be heard, but vibrations will be 

felt more than tones heard; vision rather than 

hearing, is the primary avenue for communication. 

Id. 

affect public attitudes and behavior in a 

variety of ways, ranging from direct 

espousal of a political or social doctrine 

to subtle shaping of thought which 

characterizes all artistic expression. The 

importance of motion pictures as an 

organ of public opinion is not lessened 

by the fact that they are designed to 

entertain as well as to inform.’’ Joseph 

Burstyn, Inc. v. Wilson, 343 U.S. 495, 

501 (1952). When individuals who are 

deaf or hard of hearing or blind or have 

low vision have the opportunity to 

attend movies that they can actually 

understand because of the use of 

captions or audio description, they are 

exposed to new ideas and gain 

knowledge that contributes to the 

development of their communication 

and literacy. 

The Department received numerous 

comments from individuals with these 

disabilities in response to its 2010 

ANPRM describing how they were 

unable to take part in the movie-going 

experience with their friends and family 

because of the unavailability of 

captioning or audio descriptions. Many 

individuals felt that this not only 

affected their ability to socialize and 

fully take part in group or family 

outings, but also deprived them of the 

opportunity to meaningfully engage in 

the discourse that often surrounds 

movie attendance. 

Commenters who have some 

functional degree of hearing, like those 

who use hearing aids or cochlear 

implants, explained that going to the 

movies is frustrating and unenjoyable 

for them. One commenter who wears a 

hearing aid and cannot benefit from 

assistive listening receivers currently 

provided in movie theaters said she 

often misses half the plot when she goes 

to a movie and has to rent the movie 

when it comes out on DVD so she can 

turn on the captions and learn what she 

has missed. Several other commenters 

also indicated that the assistive listening 

receivers available at movie theaters 

were only suitable for individuals with 

mild to moderate hearing loss. 

2. Numbers of Individuals With Hearing 

and Vision Disabilities 

According to 2010 census data, 7.6 

million people reported that they 

experienced a hearing difficulty 

(defined as experiencing deafness or 

having difficulty hearing a normal 

conversation, even when wearing a 

hearing aid). Of those individuals, 1.1 

million reported having a severe 

difficulty hearing. In addition, 8.1 

million people reported having some 

degree of difficulty seeing (defined as 

experiencing blindness or having 

difficulty seeing words or letters in 

ordinary newsprint even when normally 

wearing glasses or contact lenses). Of 

those individuals, 2.0 million reported 

they were blind or unable to see. See 

U.S. Census Bureau, U.S. Department of 

Commerce, P70–131, Americans with 

Disabilities: 2010 Household Economic 

Studies at 8 (2012), available at http:// 

www.census.gov/prod/2012pubs/p70–

131.pdf (last visited July 14, 2014). For 

people aged 65 or older, Census data 

indicated that 4.2 million had difficulty 

hearing (as defined by the Census), and 

3.8 million reported having difficulty 

seeing (as defined by the Census). Id. As 

stated above, for several reasons it is 

unlikely that all people who reported 

having a vision or hearing disability to 

the Census would benefit from this rule. 

However, hearing and vision loss are 

highly correlated with aging, and as the 

U.S. population ages,14 the number of 

individuals with hearing or vision loss 

is projected to increase significantly. 

Research indicates that the number of 

Americans with a hearing loss has 

doubled during the past 30 years. See 

American Speech-Language-Hearing 

Association, The Prevalence and 

Incidence of Hearing Loss in Adults, 

available at http://www.asha.org/public/ 

hearing/disorders/prevalence_

adults.htm (last visited July 14, 2014). 

Experts predict that by 2030, severe 

vision loss will double along with the 

country’s aging population. See 

American Foundation for the Blind, 

Aging and Vision Loss Fact Sheet, 

available at http://www.afb.org/

section.aspx?FolderID=3&

SectionID=44&TopicID=

252&DocumentID=3374 (last visited 

July 14, 2014). This increase will likely 

lead to a corresponding increase in the 

number of people who will need 

captioning or audio description. Not all 

these individuals will necessarily take 

advantage of the movie captioning and 

audio description that would be 

provided under this proposed rule, but 

a significant portion of this population 

would be eligible to directly benefit 

from this proposed rule (see, infra, 

section VI.A.3 for a more detailed 

discussion of the population eligible to 

receive benefits). 

The Department believes that 

captioning will be used by some persons 

with moderate hearing loss as well as 

persons with severe hearing loss or who 

are profoundly deaf. Many individuals 

with hearing loss have difficulty 

discriminating among competing 

sounds in the movie and understanding 

what they hear, even if they can hear 

those sounds. Sounds from other 

patrons can also interfere with the 

ability of a patron with partial hearing 

loss to catch all the dialogue in a movie. 

Other individuals have difficulty 

understanding what is being said if the 

actors speak with foreign accents or 

have poor enunciation, and those 

patrons who rely even partly on lip 

reading will miss some dialogue 

because they cannot always see the 

actor’s face. Individuals with hearing 

loss who have some level of improved 

hearing comprehension aided by 

hearing aids, middle ear implants, and 

cochlear implants, may also experience 

the same difficulty discriminating 

among competing sounds in the movie 

environment as those individuals with 

unaided partial hearing loss.15 It is 

critical that all of these individuals are 

not shut out of an emblematic part of 

our culture. 

3. Voluntary Compliance 

Some movie industry commenters 

asserted that because Congress 

suggested a voluntary approach to 

accessibility for exhibiting movies in the 

1989 and 1990 legislative history, when 

only burned-in open captions on 

separate prints of film were available, 

the Department should refrain from 

regulating in this area now and should 

simply continue to rely on voluntary 


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16See, e.g., Press Release, Illinois Attorney 

General, ‘‘Madigan Announces Settlement with 

AMC Theatres’’ (Apr. 4, 2012) available at http:// 

illinoisattorneygeneral.gov/pressroom/2012_04/

20120404.html (last visited July 14, 2014) 

(settlement providing for provision of captioning 

and audio technology in all AMC theaters in the 

state of Illinois); Wash. State Commc’n Access 

Project v. Regal Cinemas, Inc., 290 P.3d 331 (Wash. 

Ct. App. 2012) (upholding trial court decision 

under Washington Law Against Discrimination 

requiring six theater chains to provide captions in 

the screening of movies in order to accommodate 

persons who are deaf or hard of hearing.); Arizona 

v. Harkins Amusement Enters., Inc., 603 F.3d 666, 

675 (9th Cir. 2010) (settlement agreement filed 11/ 

07/2011 CV07–703 PHX ROS); Complaint, Ass’n of 

Late-Deafened Adults v. Cinemark Holdings, Inc., 

No. 10548765 (Cal. App. Dep’t Super. Ct. filed Nov. 

30, 2010) (complaint relating to settlement requiring 

Cinemark to provide closed captions in all its 

California theaters); Press Release, Cinemark 

Holdings, Inc., Cinemark and ALDA Announce 

Greater Movie Theatre Accessibility for Customers 

who are Deaf or Hard-of-Hearing (April 26, 2011), 

available at http://www.cinemark.com/pressrelease

detail.aspx?node_id=22850 (last visited July 14, 

2014). 

17For example, it is the Department’s 

understanding that persons who live in 

communities served only by smaller regional movie 

theater chains are far less likely to have access to 

captioned and audio-described movies than 

individuals with disabilities who live in California, 

Arizona, or any of the major cities with theaters 

operated by Regal, Cinemark, or AMC. The 

Department bases this belief on its review of the 

information provided by Captionfish, which is a 

nationwide search engine that monitors which 

theaters offer both closed and open captions and 

audio description, and updates its Web site 

regularly. See Frequently Asked Questions, http:// 

www.captionfish.com/faq (last visited July 14, 

2014). 

compliance by the movie theaters. 

However, since that time, the 

technology to display open captions has 

evolved significantly and closed 

captioning technologies have been 

developed. Both of these developments 

are examples of the types of 

‘‘technological advances’’ that have 

enhanced ‘‘options for making 

meaningful and effective opportunities 

available to individuals with 

disabilities.’’ H.R. Rep. No. 101–485, pt. 

2, at 107. Commenters on the 2010 

ANPRM advised the Department that 

despite these technological advances, 

even at that time, few movie theaters 

showed movies with captioning and 

audio description. In addition, these 

commenters advised the Department 

that in their experience, many theaters 

that had the capacity to show movies 

with captioning and audio description 

only did so for selected films shown at 

intermittent times. 

In the three years since the 

Department last received public 

comment on these issues after the 

publication of its 2010 ANPRM (see 

discussion below), the number of movie 

theaters that are showing movies with 

closed captioning and audio description 

has increased as well as the times those 

captioned and audio described movies 

are shown each week. This described 

increase is attributable in some ways to 

settlements of Federal or State disability 

rights lawsuits brought by private 

plaintiffs or State attorneys general 

against individual movie theater 

companies in particular jurisdictions 

within the United States.16 Despite the 

success of private litigation in some 

areas of the country, closed captions 

and audio description are still not 

available for movies produced and 

distributed with these features at all 

theaters across the United States. The 

Department believes that access to 

movies for persons who are deaf or hard 

of hearing or are blind or have low 

vision should not depend upon where 

they live.17

Consequently, the Department 

believes it is in the interest of both the 

movie theater industry and persons with 

disabilities to have consistent ADA 

requirements for movie captioning and 

audio description throughout the United 

States and that this is best accomplished 

through revising the ADA title III 

regulation as proposed in this NPRM. 

The Department is persuaded that it 

should move forward with a regulation 

requiring captioning and audio 

descriptions so that the current and ever 

increasing numbers of individuals who 

are deaf or hard of hearing or blind or 

have low vision and who are unable to 

enjoy the goods and services offered by 

movie theaters can participate in this 

facet of American life. 

D. The Department’s Rulemaking 

History Regarding Captioning and 

Audio Description 

1. Rulemaking History Prior to the 2010 

ANPRM 

On September 30, 2004, the 

Department published an Advance 

Notice of Proposed Rulemaking (2004 

ANPRM) to begin the process of 

updating the 1991 title II and title III 

regulations to adopt revised ADA 

Standards based on the relevant parts of 

the 2004 Americans with Disabilities 

and Architectural Barriers Act 

Accessibility Guidelines (2004 ADA/

ABA Guidelines). 69 FR 58768. When 

the Department issued the 2004 

ANPRM, it did not identify movie 

captioning or audio description as 

potential areas of regulation, but several 

commenters requested that the 

Department consider regulating in these 

areas. 

Keeping in mind that the ADA’s 

legislative history made clear that the 

ADA ought not be interpreted so 

narrowly or rigidly that new 

technologies are excluded, as the 

Department became aware of 

innovations in the field of captioning 

and audio description technology, it 

began to contemplate how these 

technologies might be incorporated into 

its ADA rules. The need for 

advancement in the area of access to 

movie theaters was necessary because 

assistive listening systems in movie 

theaters could not be used to effectively 

convey the audio content of movies for 

individuals who are deaf or who have 

severe or profound hearing loss. 

Additionally, there were no auxiliary 

aids being provided to individuals who 

are deaf to access the sound content of 

the movie or to individuals who are 

blind or have low vision to access the 

visual content of the movie. 

Accordingly, the Department decided to 

address the topic of requiring closed 

captioning and audio description 

(referred to as narrative description) at 

movie theaters in its June 17, 2008, 

Notice of Proposed Rulemaking (2008 

NPRM). 73 FR 34508, 34530. In the 2008 

NPRM, the Department stated that it 

was considering options under which it 

might require movie theaters to exhibit 

movies that are captioned for patrons 

who are deaf or hard of hearing and 

provide audio description for patrons 

who are blind or have low vision. 

The 2008 NPRM did not propose any 

specific regulatory language with regard 

to movie captioning or audio 

description, but asked whether, within 

a year of the revised regulation’s 

effective date, all new movies should be 

exhibited with captions and audio 

description at every showing or whether 

it would be more appropriate to require 

captions and audio description less 

frequently. The preamble made clear 

that the Department did not intend to 

specify which types of captioning to 

provide and stated that such decisions 

would be left to the discretion of the 

movie theaters. The Department 

received many comments in response to 

its 2008 NPRM questions from 

individuals with disabilities, 

organizations representing individuals 

with disabilities, nonprofit 

organizations, state-governmental 

entities, and representatives from the 

movie industry (movie studios and 

movie theaters). 

Individuals with disabilities, 

advocacy groups, a representative from 

a nonprofit organization, and 

representatives of state governments, 

including 11 State attorneys general, 

overwhelmingly supported issuance of a 

regulation requiring movie theaters to 

exhibit captioned and audio-described 

movies at all showings unless doing so 

would result in an undue burden or 


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18The Department issued four ANPRMs on July 

26, 2010, and invited testimony on all four 

ANPRMs at each public hearing. See 75 FR 66054 

(Oct. 27, 2010). 

19The Department is not endorsing any product 

or company named in this NPRM. The Department 

is identifying particular companies and products to 

enable it to provide an understandable and 

comprehensive discussion of the issues, products, 

and available technology for captioning and audio 

description of movies. 

20 Digital sound systems operate independently 

from analog projectors, which deliver the visual 

portion of a movie. To exhibit closed captioning 

and audio description with analog movies, a movie 

theater needs a digital sound system. Many movie 

fundamental alteration. These groups 

noted that although the technology to 

exhibit movies with captions and audio 

description has been in existence for 

about 10 years, most movie theaters still 

were not exhibiting movies with 

captioning and audio description. As a 

result, these groups indicated that they 

believed regulatory action should not be 

delayed until the conversion to digital 

cinema had been completed. 

Representatives from the movie 

industry strongly urged the Department 

not to issue a regulation requiring 

captioning, or if it did so, to delay the 

effective date so as to coincide with the 

completion of conversion to digital 

cinema. They also objected to any 

requirement regarding audio description 

at movie theaters. Industry commenters 

also said that the cost of obtaining the 

equipment necessary to display closedcaptioned and audio-described movies 

would constitute an undue burden. 

For a more detailed discussion of the 

comments received in response to the 

2008 NPRM, see 2010 ANPRM, 75 FR 

43467 (July 26, 2010). 

2. The 2010 Advance Notice of 

Proposed Rulemaking 

The Department was not persuaded 

that strides made in making captioning 

and audio description technology 

available to moviegoers with disabilities 

were sufficient to make regulatory 

action in this area unnecessary. 

However, rather than issue a final rule, 

the Department issued a supplemental 

Advance Notice of Proposed 

Rulemaking (2010 ANPRM) on July 26, 

2010, 75 FR 43467, for three reasons. 

First, the Department wished to obtain 

more information regarding several 

issues raised by commenters that were 

not addressed in the 2008 NPRM. 

Second, the Department sought public 

comment on several technical questions 

that arose out of comments on the 2008 

NPRM. Finally, in the years since 

issuance of the 2008 NPRM, the 

Department became aware that movie 

theaters, particularly major movie 

theater chains, either had entered into, 

or had plans to enter into agreements 

with the movie studios to underwrite 

the conversion to digital cinema. During 

that same time period, however, the 

United States’ economy and the 

profitability of many public 

accommodations experienced 

significant setbacks. The Department, 

among other things, wished to gather 

more information about the status of 

digital conversion, including projections 

about when movie theaters, both large 

and small, expected to exhibit movies 

using digital cinema, the percentage of 

movie screens expected to be converted 

to digital cinema by year, and any 

relevant protocols, standards, and 

equipment that had been developed for 

captioning and audio description for 

digital cinema. In addition, the 

Department wanted to learn whether 

other technologies (e.g., 3D) had 

developed or were in the process of 

development that either would replace 

or augment digital cinema or make any 

regulatory requirements for captioning 

and audio description more difficult or 

expensive to implement. 

In the 2010 ANPRM, the Department 

explained that it was considering 

phasing in a requirement that 50 percent 

of movie screens offer captioning and 

audio description over a five-year 

period. The Department did not propose 

any regulatory language in the ANPRM. 

In order to gather the necessary 

information and to determine how best 

to frame the regulation, the Department 

posed 26 questions in its 2010 ANPRM. 

These questions were divided into six 

general categories: Coverage of any 

proposed rule; transition to digital 

cinema; equipment and technology for 

both analog and digital cinema movies; 

notice; training; and cost and benefits of 

captioning and audio description. 

The Department conducted three 

public hearings to receive testimony on 

the 2010 ANPRM: The first in Chicago, 

Illinois, on November 18, 2010; the 

second in Washington, DC, on 

December 16, 2010; and the final 

hearing in San Francisco, California, on 

January 10, 2011. Each hearing included 

a full schedule of presenters, and many 

individuals came to listen to the various 

presentations.18 These public hearings 

were rebroadcast on-demand through 

the end of the comment period (January 

24, 2011) and were streamed live on the 

Web to viewers across the country. 

The number of comments submitted 

by the public in response to this 

ANPRM was extraordinary—the 

Department received over 1150 

comments. Commenters included 

hundreds of individuals, both with and 

without disabilities, advocacy groups 

representing individuals with 

disabilities, 13 State attorneys general, 

movie industry representatives, and 

other organizations. Industry 

commenters asked that the Department 

not regulate at that time or, in the 

alternative, require that only 25 percent 

of movie screens that have converted to 

digital have equipment to display 

captioning or audio description. 

However, almost all other commenters 

supported a regulation requiring 

exhibition of movies with captioning 

and audio description. Significantly, 

even though the Department did not 

propose that captioning and audio 

description be provided at all showings, 

the vast majority of commenters who 

discussed this subject advocated that 

the Department do just that. In addition, 

most of these commenters stated that 

such a requirement should be 

implemented immediately rather than 

phased in over a five-year period. 

Industry commenters pointed out that 

rolling out captioning and audio 

description at 20 percent per year over 

a five-year period would be difficult to 

implement and that they supported a 

five-year compliance schedule. 

III. General Issues 

A. Current State of the Technology for 

Exhibiting Movies With Captioning and 

Audio Description and Availability of 

Product 

1. Captioning and Audio Description for 

Analog Movies 

It is the Department’s understanding, 

based upon independent research and 

the comments received in response to 

the 2010 ANPRM, that because of the 

major movie theater companies’ 

commitment to the transition to digital 

cinema, research and investment into 

ways to deliver closed captioning has 

shifted away from analog movies to 

digital cinema. As such, there is only 

one product currently available on the 

market for providing closed captions for 

analog movies: Rear Window®

Captioning (Rear Window® or RWC). 

RWC, when combined with audio 

description provided by DVSTheatrical® (DVS), is called MoPix®

systems.19

Unlike open captions that are burned 

onto the film itself, Rear Window®

captions (and audio description) are 

generated via a technology that is not 

physically attached to the film and does 

not require that a separate copy of the 

film be made. The Rear Window® and 

audio-description systems work through 

a movie theater’s digital sound system 

using Datasat Digital Entertainment’s 

media player with captioning subtitling 

system (formerly DTS Digital Cinema).20


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theaters that exhibit analog movies have these 

systems. Digital sound systems are different from 

digital cinema, i.e., a movie theater does not need 

digital cinema to use digital sound. 

21The WGBH National Center for Accessible 

Media is a nonprofit that developed MoPix®

systems funded in part by a grant from the U.S. 

Department of Education. 

22Because digital movies can be provided to 

movie theaters easily and inexpensively compared 

to the costs inherent in mailing several large reels 

of film per analog movie, the cost to distribute 

digital movies is significantly less for movie 

studios. 

23 ‘‘Closed caption technology for digital cinema 

has rapidly moved forward with the successful 

standardization of SMPTE 430–10 and 430–11 for 

the SMPTE CSP/RPL closed caption protocol, an 

Ethernet-based protocol designed for connecting 

closed caption systems with digital cinema servers. 

Continued 

The DatasatTM player sends the captions 

to a light-emitting diode (LED) display 

in the rear of the movie theater. A clear 

adjustable panel mounted on or near an 

individual viewer’s seat reflects the 

captions correctly and superimposes 

them on that panel so that it appears to 

a Rear Window® user that the captions 

are on or near the movie image. This 

technology enables a movie theater that 

has been equipped with a Rear 

Window® Captioning system to exhibit 

any movie that is produced with 

captions at any showing, without 

displaying captions to every moviegoer 

in the theater. Thus, individuals who 

are deaf or hard of hearing may enjoy 

movies in a movie theater equipped 

with such a system alongside those who 

do not require captioning and who 

would not see the captions being 

displayed. Movie theaters can also 

exhibit movies with open captions for 

analog movies by using the same 

DatasatTM system, with a second 

projector to superimpose the captioned 

text directly onto the movie screen. 

Audio description makes movies 

more accessible to individuals who are 

blind or have low vision by providing 

narrated information about key visual 

elements of the movie, such as actions, 

settings, and scene changes. The audio 

description is sent by the DatasatTM

media player to infra-red or FM 

listening systems, then on to movie 

patrons wearing headsets. 

According to comments from the 

WGBH National Center for Accessible 

Media (NCAM), as of mid-2010, MoPix®

systems had been installed in more than 

400 screens in the United States and 

Canada.21 Once a movie theater is 

equipped with a MoPix® system, 

captioning and description data are 

supplied on data disks, which arrive in 

advance of the film’s debut. According 

to NCAM, virtually every major 

Hollywood studio participates in 

captioning and description of their Atitle feature analog movies in one form 

or another, and many of the major 

exhibition chains, as well as many 

smaller chains, provide captions and 

descriptions regularly in some of their 

theaters. 

The Department understands that 

while the industry is rapidly moving to 

digital cinema, some theaters, 

particularly very small independent 

movie theaters, may continue to exhibit 

analog movies as long as such a product 

remains available. The Department also 

understands that with the transition to 

digital cinema, a secondary market for 

closed-captioning equipment for analog 

movies may develop because some 

movie theaters may choose not to retain 

this equipment, thereby making the 

analog equipment cheaper to acquire. 

Question 1a: Availability of Analog Film 

Prints 

The Department is interested in any 

recent data available about the 

likelihood that analog film prints will be 

available after 2015 either from the 

major studios, from smaller 

independent studios, or from small 

independent filmmakers. What is the 

likelihood that analog film prints will be 

available in five years? Will analog 

versions of older movies continue to be 

available for second or third run 

showings? How many movies will 

continue to be produced in both analog 

and digital formats? 

Question 1b: Availability of Movies 

With Captions and Audio Description 

What percentage of currently 

available analog films has been 

produced with captions or audio 

description? How many movies will be 

produced with captions and audio 

description in both analog and digital 

formats? What is the likelihood that 

existing analog movies that currently do 

not have captions or audio description 

will be converted to digital formats and 

then only the digital format would have 

those accessibility features? Will those 

older analog movies that are currently 

available with captions continue to be 

available with captions? 

Question 1c: Economic Viability of 

Analog Theaters 

How many analog theatres currently 

show first-run movies? If first-run 

analog movies are no longer produced, 

will analog theaters be economically 

viable and what types of movies would 

these theaters rely on to generate 

revenue? How many analog theaters are 

likely to close as the result of these 

changes in the market? Will this rule 

affect the pace by which analog theaters 

convert to digital cinema? If so, how? 

Will analog theatres converting to 

digital cinema convert all screens at the 

same time? 

2. Captioning and Description for Digital 

Cinema 

Since publication of the 2008 NPRM, 

a significant change has occurred in the 

industry, both in terms of the 

technology available for digital cinema 

and the speed at which movie theaters 

are converting to digital cinema. With 

the move to convert to digital cinema 

systems, the technology and equipment 

available for these systems has 

expanded accordingly. Digital cinema, 

which began to be developed in 2000, 

consists primarily of a digital server and 

a digital projector. The content of the 

digital movie can be distributed 

digitally, often using a hard drive, 

optical disks, or satellite.22 See, e.g., 

Michael Karagosian, Accessibility in the 

Cinema (June 3, 2010), available at 

http://www.mkpe.com/publications/dcinema/presentations/2010-June_

CHHA_Karagosian.pdf (last visited July 

14, 2014). Unlike analog movies, digital 

cinema does not need splicing after 

delivery to the movie theater, thereby 

eliminating the risk of nicks to the film, 

and does not degrade over time or with 

repeated use. It also is ‘‘unlocked,’’ 

which means there are no technologybased royalties to be paid for 

distributing the content. Id. According 

to comments from NCAM, captions and 

audio description are included in the 

digital cinema package (DCP). The DCP 

contains the entire movie in electronic 

form (images, soundtrack, anti-piracy 

data, and if provided by the studios, 

captioning and description). When 

ordering a DCP, movie theaters have the 

option to request either an opencaptioned or a closed-captioned version 

of the movie. If an open-captioned 

version is requested, no other 

equipment (such as an interface or 

personal user devices) is necessary in 

order to display a movie with the 

captions exhibited. 

As digital cinema technology has 

advanced, the options and methods 

available for exhibiting movies with 

captioning and audio description have 

also expanded. Members of the 

industry, manufacturers, and other 

interested parties worked together to 

ensure interoperability of digital cinema 

components through standards adopted 

by the Society of Motion Picture and 

Television Engineers (SMPTE), so that 

products that provide captioning and 

audio description would be compatible 

with the various digital cinema systems 

available for purchase and use by movie 

theaters.23 For this and other reasons, in 


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The SMPTE CSP/RPL communication protocol is 

license-free. The wide-spread use of this protocol 

has allowed multiple closed caption systems to 

proliferate.’’ Michael Karagosian, Update on Digital 

Cinema Support for Those With Disabilities: April 

2013, available at http://www.mkpe.com/

publications/d-cinema/misc/disabilities_

update.php (last visited July 14, 2014). 

24As with all closed-captioning systems available 

with today’s technology, MoPix® also requires use 

of an individual captioning device by the patron 

seated in the theater auditorium. 

25Analog movies support between two and eight 

channels, depending upon the audio sound format 

being used by the movie theater. See Michael 

Karagosian, Accessibility in the Cinema, (June 3, 

2010), available at http://www.mkpe.com/

publications/d-cinema/presentations/2010-June_

CHHA_Karagosian.pdf (last visited July 14, 2014). 

digital cinema systems it is much easier 

and far less costly to exhibit movies 

with captioning and audio description. 

For example, unlike analog movies, 

digital cinema has many sound 

channels, making it much easier to 

include audio description. See Michael 

Karagosian, Accessibility in the Cinema 

(June 3, 2010), available at http://

www.mkpe.com/publications/d-cinema/

presentations/2010-June_CHHA_

Karagosian.pdf (last visited July 14, 

2014). In addition, digital cinema can 

easily support closed captions, 

including up to six closed-captioned 

languages at a time. Id. And for closed 

captions, a standardized output is 

available that permits the closed 

captioned product to plug in to any 

compliant digital system. Id. 

In terms of equipment needed, it is 

easier to exhibit movies in digital 

cinema using open captions because all 

that is required is that the captions be 

turned on. No additional equipment 

(e.g., individual captioning devices) is 

needed to display open captioned 

movies. Open captions, like closed 

captions, are included in the DCP and 

the movie theater simply requests a DCP 

with either open or closed captions. 

Based upon the Department’s 

research, conversations with 

manufacturers, and comments received 

by the Department, several options 

appear to be available for delivering 

closed captions in digital films to the 

movie patron. For example, two 

manufacturers produce and sell wireless 

closed-captioned displays that are 

mounted on a device that the movie 

patron places in the seat’s cup holder. 

See Michael Karagosian, Update on 

Digital Cinema Support for Those With 

Disabilities: April 2013, available at 

http://www.mkpe.com/publications/dcinema/misc/disabilities_update.php 

(last visited July 14, 2014). One system 

uses a single infra-red transmitter for 

delivery of both closed captions and 

audio description. Id. A second system 

uses Wi-Fi technology to transmit 

closed captions directly from the server 

to a cup holder display unit. This 

system does not appear at this time to 

support audio description. However, 

according to its manufacturer, audio 

description can be provided through a 

third-party vendor system. The 

Department understands that cup holder 

displays are already in use in theaters in 

Canada as well as some theaters in the 

United States. Eyeglasses that display 

the text in front of the wearer’s eye 

while watching a movie are also on the 

market. As of September 2012, Regal 

Cinema theaters had captioning glasses 

in use in 200 theaters and announced 

that it plans to use them in all of its 

theaters by April 2013. Other companies 

are also reported to be developing 

eyeglasses that can display captions. In 

addition, the Department understands 

that MoPix’s® Rear Window closedcaptioned devices work in digital 

cinema as well as analog. Movie theaters 

that have installed a captioning system 

for their analog product can still use 

that product with digital cinema. 

MoPix®’s devices are supported by 

several digital cinema servers directly, 

although other servers may need to 

obtain a special interface.24

In specialty movie theaters, such as 

IMAX or other big-screen format 

presentations, closed-captioning 

systems for digital cinema also work 

well, and the captioned data can be fed 

to the LED panel by a computer that is 

running special software that 

synchronizes the caption files to the 

film. 

It is unclear from the comments 

received by the Department the extent to 

which 3D movies are currently being 

provided by studios or distributors with 

open or closed captioning. Commenters 

representing both movie theaters and 

movie studios stated that MPAA 

member companies are hopeful that 

technological developments will soon 

allow closed captioning for 3D version 

releases. A commenter involved in the 

development of the Rear Window®

captioning system for analog movies 

stated that it has been tested in featurelength 3D presentations with positive 

viewer response. The Department’s 

research indicates that both the 

captioning eyeglasses as well as the cup 

holder displays can show captions for 

3D movies if the movies are provided 

with captioning. By contrast, the 

Department understands that the same 

technology provides audio description 

for both 2D and 3D movies. One 

commenter representing the movie 

theater industry stated that whenever 

audio description is available for digital 

3D movies, it should be treated the same 

as audio description for film and video 

displays in other settings. 

As with analog movies, the audio 

description in digital cinema is 

delivered using a wireless headset or ear 

phones. Digital cinema audio supports 

up to 16 channels of audio 25 and the 

cinema audio formats have two 

channels reserved for both hearing 

impaired audio and audio description. 

See Michael Karagosian, Accessibility in 

the Cinema (June 3, 2010), available at 

http://www.mkpe.com/publications/dcinema/presentations/2010-June_

CHHA_Karagosian.pdf (last visited July 

14, 2014). Moreover, both the infra-red 

and FM-audio single-channel systems 

presently used for assisted listening can 

be replaced by multi-channel systems 

that support both assisted listening and 

audio description. 

3. Conversion to Digital Cinema 

Despite the economic downturn over 

the last few years, the movie theater 

industry is rapidly increasing the 

number of screens that have converted 

to digital cinema since publication of 

the 2008 NPRM. In May 2013, an 

industry representative testified to 

Congress that as of that date, 88 percent 

of indoor movie screens in the United 

States had converted to digital cinema. 

See Testimony of John Fithian, 

President and CEO of the National 

Association of Theater Owners, Before 

the U.S. Senate Committee on Health, 

Education, Labor and Pension (May 14, 

2013), available at http://natoonline.org/ 

wp-content/uploads/2013/08/HarkinHearing-Testimony-May-2013.pdf (last 

visited July 14, 2014). 

Starting in the late 2000’s, a number 

of major movie studios entered into 

agreements to help defray the cost of 

conversion by paying a consortium of 

movie theater chains a ‘‘virtual print 

fee’’ of $800 to $1000 per film, per 

screen until the digital equipment is 

paid off. See Dawn C. Chmielewski, 

Major Studios Agree to Back Switch to 

Digital Projection, Los Angeles Times 

(Oct. 2, 2008), available at http://

articles.latimes.com/2008/oct/02/

business/fi-studios2 (last visited July 14, 

2014). The Department understands that 

nearly all of these programs have 

stopped enrolling new members, 

although the deals continue to be active 

for those who have already signed up. 

According to an industry commenter, 

these digital cinema systems are 

SMPTE-compliant, which means that all 

of the captioning and audio-description 

products on the market—and in 

development—will be compatible with, 

and easily integrated into, whatever 


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26Wide-releases include all films except for those 

with limited release, documentaries, and similar 

titles. 

27This commitment was possible because the 

interested parties reached agreement upon, and 

published standards for, SMPTE digital cinema 

packages. 

28Representatives from the Independent Film & 

Television Alliance and from independent studios 

did not submit comments in response to the 2010 

ANPRM. 

digital cinema systems are in use by the 

various movie theaters. In addition, it 

has recently been reported that between 

the conversion to digital and the 

projected loss of the two major suppliers 

of film print stock, it is unlikely that any 

first run films will be available in analog 

within the next few years, thus 

furthering the pressure on smaller 

theaters to convert to digital. See e.g., 

Gendy Alimurung, Movie Studios Are 

Forcing Hollywood to Abandon 35mm 

Film. But the Consequences of Going 

Digital Are Vast, and Troubling, LA 

Weekly (Apr. 12, 2012), available at 

http://www.laweekly.com/2012-04-12/

film-tv/35-mm-film-digital-Hollywood 

(last visited July 14, 2014); Dawn 

McCarty & Beth Jinks, Kodak Files for 

Bankruptcy as Digital Era Spells End to 

Film, Bloomberg (Jan. 19, 2012), 

available at http://www.bloomberg.com/ 

news/print/2012-01-19/kodakphotography-pioneer-files-forbankruptcy-protection-1-.html (last 

visited July 14, 2014); see also Tim 

O’Reiley, Theater Official Optimistic 

Despite Attendance Slump, Las Vegas 

Review-Journal (March 29, 2011) 

(quoting new MPAA head, former Sen. 

Christopher Dodd, as predicting that 

‘‘films on film will disappear in less 

than three years’’), available at http://

www.reviewjournal.com/business/

theater-official-optimistic-despiteattendance-slump (last visited July 14, 

2014). 

4. Availability of Movies With 

Captioning and Audio Description 

As stated previously, movie theaters 

do not provide the captioning and audio 

description for the movies they exhibit. 

Movie studios and distributors 

determine whether to caption and audio 

describe, what to caption and audio 

describe, the type of captioning to use, 

and the content of the captions and 

audio-description script. In addition, 

movie studios and distributors assume 

the costs of captioning and describing 

movies. Movie studios and distributors 

would not be required by this proposed 

regulation to include captioning or 

audio description in their product, 

because the mere production and 

distribution of movies does not make 

them public accommodations under the 

ADA. That said, movie studios appear 

committed to making their movies 

accessible to individuals who are deaf 

or hard of hearing or blind or have low 

vision, and the Department commends 

their efforts. According to the MPAA, 

analog movies produced with 

captioning by member studios in 2010 

included virtually all wide-releases.26

Seventy-six percent of analog movies 

produced by MPAA member studios 

were produced with audio description. 

According to another industry 

commenter, MPAA member studios 

distributed 140 films in 2010, 

captioning 86 percent of their film 

product. The MPAA, in its comments to 

the 2010 ANPRM, stated that by the 

latter part of 2010, the major studios 

were making captioning and audio 

description available on some digital 

movies and had announced that in 2011 

almost all theatrical releases in digital 

format will include closed captioning.27

In addition, the MPAA stated in its 

comments that its members intend to 

significantly increase the number of 

digital releases with audio description 

in 2011. No data are publicly available 

on the number of movies released with 

captioning and audio description since 

2011, but given the current trend, the 

Department projects that the numbers 

increased in 2012. One movie theater 

industry commenter pointed out that 

while MPAA member studios 

distributed 140 movies in 2010, the 

independent studios released 473 films, 

a majority of which were not captioned 

or audio described. The number of 

independent films released can be 

somewhat deceptive in this context, 

however, because MPAA member 

studios distribute 82 percent of the film 

product in the United States. The larger 

independent studios, which include 

Dreamworks, Lionsgate, Summit, The 

Weinstein Company, and MGM, 

distribute an additional 14 percent of 

the domestic product, and the other 

independent studios distribute the 

remaining 4 percent of the product 

domestically. It is unclear how many 

movies that are captioned and audio 

described are currently distributed by 

the independent studios.28 It is also 

unclear whether, and what percentage 

of, movies will be made in digital format 

for digital cinema by these same 

independent studios in the future, and 

what percentage will be captioned and 

audio described. However, if 

independent producers distribute their 

product to television, albeit in analog or 

digital format, captions must be 

included under current FCC rules. See 

47 CFR 79.1. 

Despite the array of captioned and 

described product that is available, 

there are still a significant number of 

movie theaters that are not equipped to 

show movies with closed movie 

captions and audio description or that 

only show them at selected showings of 

particular movies. According to NATO, 

as of May 2013, at least 53 percent of 

digital movie screens had the capacity 

to show movies with closed movie 

captions or audio description. See 

Testimony of John Fithian, President 

and CEO of the National Association of 

Theater Owners, Before the U.S. Senate 

Committee on Health, Education, Labor 

and Pension (May 14, 2013), available at 

http://natoonline.org/wp-content/

uploads/2013/08/Harkin-HearingTestimony-May-2013.pdf (last visited 

July 14, 2014). Three of the four largest 

movie theater chains have publicly 

committed to installing closed 

captioning and audio description 

equipment in all of their theaters that 

have been converted to digital. See Press 

Release, Regal Entertainment Group, 

Regal Entertainment Group Announces 

New Forms of Digital Cinema Access 

(May 4, 2011), available at http://

investor.regmovies.com/

phoenix.zhtml?c=222211&p=irolnewsArticle&ID=1559531&highlight 

(last visited July 14, 2014); Press 

Release, Cinemark Holdings, Inc., 

Cinemark and ALDA Announce Greater 

Movie Theatre Accessibility for 

Customers who are Deaf or Hard-ofHearing (April 26, 2011), available at 

http://www.cinemark.com/

pressreleasedetail.aspx?node_id=22850 

(last visited July 14, 2014); Press 

Release, Disability Rights Advocates, 

AMC Theatres and ALDA Announce 

Greater Accessibility for Deaf or Hardof-Hearing Guests at All Digital Movie 

Theatres in California, (Dec. 20, 2011), 

available at http://www.dralegal.org/

pressroom/press-releases/amc-theatresand-ALDA-announce-greateraccessibility-for-deaf-or-hard-of (last 

visited July 14, 2014). 

IV. Section-by-Section Analysis 

Section 36.303(g) Movie Captioning and 

Audio Description—Definitions 

Movie Theater. In order to make it 

clear which facilities are subject to the 

specific captioning and audiodescription requirements set forth in 

§ 36.303(g), the Department is proposing 

in § 36.303(g)(1)(v), to define the term 

‘‘movie theater’’ as ‘‘a facility other than 

a drive-in theater that is used primarily 

for the purpose of showing movies to 

the public for a fee.’’ Movie theaters 


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44990 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

include all movie theaters that exhibit 

movies for a fee, except drive-in movie 

theaters. The term includes movie 

theaters that exhibit second- and thirdrun movies as well first-run releases. 

The term is not a synonym for movie 

screen. A movie theater can have one or 

more screens available to show movies 

in several auditoriums. The term 

‘‘movie theater’’ does not include 

facilities that screen movies, such as 

museums, hotels and resorts, or cruise 

ships, even if they charge an additional 

fee, if the facility is not used primarily 

for the purpose of showing movies for 

a fee. 

Paragraph 36.303(g) is a specific 

application of the auxiliary aid and 

service requirement for movie theaters. 

Such a provision is necessary because of 

the technological advances in auxiliary 

aids and services that enable movie 

theaters to screen movies in a manner 

that provides effective communication 

to individuals who are deaf or hard of 

hearing or blind or have low vision. The 

Department’s title III regulation makes 

clear that public accommodations that 

exhibit movies but are not movie 

theaters, such as museums and 

amusement parks, must provide 

effective communication to the public 

through the provision of auxiliary aids 

and services, including, where 

appropriate, captioning and audio 

description. See generally 28 CFR 

36.303; 28 CFR part 36, app. B. Many 

such public accommodations have been 

providing appropriate auxiliary aids, 

either through open captions, closed 

captions, or a mix of the two, and audio 

description. Even in situations in which 

the Department identified a need for 

enforcement action, these public 

accommodations were willing to 

comply with the ADA and provide such 

auxiliary aids and services. See, e.g., 

Press Release, U.S. Department of 

Justice, Settlement Agreement Will 

Ensure Accessibility at the International 

Spy Museum in Washington, DC (June 3, 

2006), available at http://

www.justice.gov/opa/pr/2008/June/08- 

crt-489.html (last visited July 14, 2014); 

Press Release, U.S. Department of 

Justice, Walt Disney World Co. Agrees 

to Provide Services to Deaf and Hard-ofHearing Guests (Jan. 17, 1997), available 

at http://www.justice.gov/opa/pr/1997/

January97/021cr.htm (last visited July 

14, 2014). 

Commenters on the 2010 ANPRM 

advised the Department that the 

technology does not yet exist to exhibit 

movies with closed captions or audio 

description at drive-in movie theaters 

that have an outdoor patron field that is 

typically spread across more than eight 

acres. In addition, these comments 

indicated that given that there are fewer 

than 400 drive-in theaters in the United 

States, it is unlikely that such 

technology will be developed in the 

near future. Thus, the Department is 

proposing to exclude drive-in movie 

theaters from the definition of movie 

theater in this rule and defer rulemaking 

regarding drive-in theaters until such 

time that the necessary technology for 

closed captions and audio description 

for drive-in theaters becomes 

commercially available. 

Question 2: Does the proposed 

definition of ‘‘movie theater’’ adequately 

describe the movie theaters that should 

be covered by this regulation? Are there 

any non-profit movie theaters that 

would be covered by this definition? 

How many non-profit movie theaters are 

there? Should drive-in movie theaters be 

excluded from the definition of movie 

theaters at this time? Is there technology 

under development that might make it 

possible for drive-in movie theaters to 

provide closed captions or audio 

description in the future? 

Audio description. For the purposes 

of this subsection, the Department is 

proposing to add a definition for ‘‘audio 

description.’’ In proposed 

§ 36.303(g)(1)(i), ‘‘audio description’’ is 

defined as the ‘‘provision of a spoken 

narration of key visual elements of a 

visually delivered medium, including, 

but not limited to, actions, settings, 

facial expressions, costumes, and scene 

changes.’’ 

In the Department’s July 26, 2010, 

ANPRM, the Department used the term 

‘‘video description’’ to define the 

process and experience whereby 

individuals who are blind or have low 

vision are provided with a spoken 

narrative of key visual elements of a 

movie, such as actions, settings, facial 

expressions, costumes, and scene 

changes. The Department received 

several comments addressing whether it 

should continue to use the term ‘‘video 

description’’ or other terms, including 

‘‘audio description.’’ The majority of 

commenters addressing this issue 

supported the use of the term ‘‘audio 

description,’’ stating that audio 

description has been used since 1981 as 

the term of art to describe using 

language to provide access to visual 

images, and pointing out that the 

National Endowment for the Arts and 

the Graphic Artists Guild both use the 

logo ‘‘AD’’ to indicate the availability of 

audio description. In addition, audio 

description more appropriately 

describes the type of auxiliary aid 

involved, because the process involves 

providing information that is 

experienced aurally. In response to 

these comments, the Department has 

been persuaded to change the 

nomenclature for this process to ‘‘audio 

description.’’ 

Question 3: Should ‘‘audio 

description’’ be the nomenclature 

adopted in the final rule? 

Closed movie captioning. The 

Department notes that the term ‘‘closed 

captioning’’ is referenced in the 

examples of auxiliary aids and services 

in § 36.303(b). That section refers to 

‘‘closed captioning’’ in the much 

broader context of auxiliary aids and 

services that must be provided by a 

wide range of public accommodations 

subject to title III. In order to distinguish 

between the general auxiliary aid and 

service requirement and the ‘‘closed 

captioning’’ that is required by 

§ 36.303(g)(2), the Department is 

proposing to define the term ‘‘closed 

movie captioning’’ specifically as it 

applies to movie theaters. In 

§ 36.303(g)(1)(ii), the Department 

proposes to define ‘‘closed movie 

captioning’’ as ‘‘the written text of the 

movie dialogue and other sounds or 

sound making (e.g., sound effects, 

music, and the character who is 

speaking). Closed movie captioning is 

available only to individuals who 

request it. Generally, it requires the use 

of an individual captioning device to 

deliver the captions to the patron.’’ 

The Department received one 

comment encouraging it to use the term 

‘‘individual captioning’’ instead of 

‘‘closed captioning’’ to refer to the 

circumstances where captions are 

received through the use of individual 

devices. This commenter distinguished 

between three types of captioning: Open 

captioning, where the captions are 

displayed on the screen and cannot be 

turned off; closed captioning as the term 

is used in the context of television and 

video where the captions can be turned 

on or off, but when they are displayed 

everyone in the room sees them; and 

individual captioning systems, where 

only the individual viewer sees the 

captions, but they are not displayed to 

the entire audience. As stated earlier, 

the Department wishes to avoid 

confusion between the ‘‘closed 

captioning’’ provided on television and 

in other venues, and those provided in 

movie theaters. However, it believes its 

proposed term ‘‘closed movie 

captioning’’ will address that concern 

without introducing a term that is 

wholly different from that currently 

used by the movie industry and the 

courts. 

Question 4: Should the Department 

use the term ‘‘closed movie captioning’’ 

to refer to the type of captioning 

provided by movie theaters to 

individuals who view the captions at 


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Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 44991 

29Some commenters to the 2010 ANPRM 

recommended that the Department delay proposing 

any new rule for at least 24 months as the digital 

transition continues to progress and new 

technologies become more widespread. It is already 

more than 3 years since the ANPRM was published, 

and the Department declines to delay this 

rulemaking any further. 

30A requirement that all movies available with 

closed captioning be exhibited with closed 

captioning at all times eliminates other problems 

inherent in any partial requirement (be it 50 percent 

of screens in a facility, 50 percent of screens owned 

by a particular movie theater, number of movies 

being screened in a particular theater facility, etc.) 

because of issues involving availability of products 

with captioning and audio description and how 

movie theaters use auditoriums. Movie theaters 

negotiate with film distributors regarding which 

auditoriums in a multiplex theater will show which 

films. Generally, if a film is expected to be very 

popular, it will open in the largest auditorium or 

in several auditoriums within the same complex. As 

the popularity decreases, the film will be moved 

from larger auditoriums to smaller auditoriums and 

from multiple auditoriums to single auditoriums. 

The timing of such moves will vary from theater to 

theater and from film to film. Movies also can be 

rotated between screens throughout the day and 

evening. The Department’s proposal to require 100 

percent of screens to meet the requirement ensures 

that if movies are available with closed captioning, 

they will be exhibited with closed captioning, 

thereby maximizing options and choices for patrons 

with disabilities for all movies, at all times, 

throughout the country, and eliminates the 

confusion and lack of access that a partial 

requirement would create. 

their seats? Is there a different term that 

should be used in order to distinguish 

between the closed captioning referred 

to in § 36.303(b) and the captioning 

required for movie theaters in proposed 

§ 36.303(g)(2)? 

Individual audio description listening 

device. In § 36.303(g)(1)(iii), the 

Department is proposing to define 

‘‘individual audio description listening 

device’’ as the individual device that 

patrons may use at their seats to hear 

audio description. 

Individual captioning device. In 

§ 36.303(g)(1)(iv), the Department is 

proposing to define ‘‘individual 

captioning device’’ as ‘‘the individual 

device that patrons may use at their 

seats to view the closed captions.’’ 

Open movie captioning. The 

Department notes that the term ‘‘open 

captioning’’ is already referenced in the 

examples of auxiliary aids and services 

provided in § 36.303(b). That section 

refers to ‘‘open movie captioning’’ in the 

much broader context of auxiliary aids 

and services that must be provided by 

the wide range of public 

accommodations subject to title III. In 

order to distinguish between the general 

auxiliary aid requirement and the ‘‘open 

captioning’’ that is referenced in 

§ 36.303(g)(2)(ii), the Department is 

proposing to define the term ‘‘open 

movie captioning’’ specifically as it 

applies to movie theaters. In 

§ 36.303(g)(1)(vi), the Department 

proposes to define ‘‘open movie 

captioning’’ as ‘‘the provision of the 

written text of the movie dialogue and 

other sounds or sound making in an onscreen text format that is seen by 

everyone in the theater.’’ 

Question 5: Should the Department 

use the term ‘‘open movie captioning’’ 

to refer to the type of captioning that is 

viewed on or near the movie screen by 

everyone in the movie theater audience? 

Is there a different term that should be 

used? 

Movie Captioning Coverage 

The Department asked nine questions 

in its 2010 ANPRM on the scope of 

coverage and how best to frame any 

regulation requiring exhibiting movies 

with closed captions and audio 

description. In that ANPRM, the 

Department stated it was considering 

proposing a regulation that would 

require that 50 percent of movie screens 

exhibit movies with captioning and 

audio description and that any such 

requirement would be phased in over a 

five-year period. However, after review 

and analysis of the statutory structure of 

the ADA, its regulatory requirements 

and legislative history, and the 

technological advances since enactment 

of the ADA, the Department is 

convinced that any regulation regarding 

captioning and audio description 

should be written broadly, like the ADA 

itself. 

In the NPRM, § 36.303(g)(2)(i), the 

Department proposes to require that ‘‘[a] 

public accommodation that owns, 

leases, leases to, or operates a movie 

theater shall ensure that its auditoriums 

have the capability to exhibit movies 

with closed movie captions. In all cases 

where the movies it intends to exhibit 

are produced, distributed, or otherwise 

made available with closed movie 

captions, the public accommodation 

shall ensure that it acquires the 

captioned version of that movie. Movie 

theaters must then exhibit such movies 

with closed movie captions available at 

all scheduled screenings of those 

movies.’’ As discussed below, the 

Department is proposing to apply this 

requirement to all digital movie screens 

in movie theaters and is seeking public 

comment as to the best approach (i.e., 

delayed compliance date or deferral) to 

take with respect to analog movie 

screens.29

The Department is proposing that all 

movies available with captioning be 

exhibited with captioning at all times 

unless doing so would be an undue 

burden.30 The primary goals of the ADA 

are to assure equality of opportunity and 

full access and participation in our 

society for individuals with disabilities. 

42 U.S.C. 12101. To that end, and as 

stated previously, the ADA prohibits 

public accommodations such as movie 

theaters from affording individuals with 

disabilities an unequal or lesser service 

than that offered to other individuals. 42 

U.S.C. 12182(b)(1)(A)(ii). The ADA 

requires public accommodations ‘‘to 

take such steps as may be necessary to 

ensure that no individual with a 

disability is excluded, denied services, 

segregated, or otherwise treated 

differently * * * because of the absence 

of auxiliary aids and services,’’ unless 

the public accommodation can 

demonstrate that taking such steps 

would result in a fundamental alteration 

or undue burden. 42 U.S.C. 

12182(b)(2)(A)(iii). 

The ADA envisions that effective 

communication through the provision of 

appropriate auxiliary aids and services 

be provided for all of a public 

accommodation’s services and that 

individuals who are deaf, hard of 

hearing, blind, or have low vision have 

access to all of a public 

accommodation’s services, absent a 

legitimate defense. As such, it is not 

enough to offer captioned movies (or 

movies with audio description) for 

limited movies at limited times, absent 

a legitimate defense. Rather, such 

individuals should be able, along with 

the rest of the population, to attend a 

movie at any date and time. Based on 

the information it currently has, the 

Department does not believe it would be 

appropriate to propose an across-theboard phase-in of this requirement over 

five years. Information available to the 

Department since the publication of the 

ANPRM makes it clear that the pace of 

conversion to digital cinema has 

accelerated rapidly and there are a 

number of different options available for 

providing closed movie captions and 

audio description. Therefore, at this 

time, the Department does not believe 

that it is necessary to delay the 

implementation of the final rule for 

digital movie screens. 

The Department’s proposed provision 

would impose a three-fold requirement 

upon movie theaters. First, as of the 

compliance date of this rule, movie 

theaters must have the capacity to 

exhibit movies with captions. Second, if 

a movie is available with captions 

because it has been produced, 

distributed, or otherwise made available 

with captioning, then movie theaters are 

required to obtain that particular movie 

in a version with captions, and not in 

a version without captions. Third, those 

movie theaters are required to display 

that movie with the captions to patrons 

upon request. 


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44992 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

The first proposed requirement 

mandates that movie theaters acquire 

whatever equipment they need to have 

the capability to exhibit movies with 

closed captions. The second proposed 

requirement mandates that movie 

theaters select the captioned version of 

a movie if captions are available for that 

particular movie. It does not limit the 

selection or mix of movies that a movie 

theater may choose. In other words, if a 

particular movie is not available with 

captioning (because it has not been 

produced, distributed, or otherwise 

made available to the movie theater 

with captions), then the movie theater is 

in no way limited or prohibited from 

acquiring or exhibiting that particular 

movie. In addition, if a movie is 

available in both analog and digital 

formats, but only available with 

captions in the digital format, then a 

theater with both digital and analog 

screens is not required to obtain the 

captioned digital version if it had 

intended to show that particular movie 

on its analog screens. In addition, this 

proposed rule does not require theaters 

to add captions to movies that are only 

available from studios/distributors 

without captions. Finally, the third 

proposed requirement only relates to the 

exhibition of movies obtained with 

captioning available. The Department 

understands that decisions about which 

movies to release with captions or audio 

description and whether open or closed 

captions or audio description are 

provided for a particular movie are 

decisions made by movie studios and 

distributors, not movie theaters. The 

Department notes that obtaining a 

captioned version of a movie does not 

require a theater to search for accessible 

versions of movies because it is the 

Department’s understanding that each 

movie (either with or without captions) 

is only available through a single 

distributor. We have no information that 

suggests that, in the future, particular 

movies will be available through 

multiple distributors and that some 

distributors may have versions with 

closed captioning and audio description 

features and others may not. 

Even if that particular movie may be 

the only movie that a movie theater 

chooses to exhibit at that time 

throughout all its auditoriums, there is 

no obligation under this proposed 

regulation to exhibit the movie with 

captioning or audio description if it is 

not made available with these features. 

If a movie is available with captioning 

but not with audio description, than the 

movie must be exhibited with the 

captions whenever a request for the 

captions is made, but the requirement 

for audio description would not apply 

to the showing of that movie. This 

proposed rule would ensure that movie 

theaters have the capability to exhibit 

movies that are produced or distributed 

with captioning and audio description 

available and that they exhibit such 

movies with captioning and audio 

description whenever a request is made 

for these auxiliary aids. 

Comments from NATO on the 

ANPRM suggested that if the 

Department issues a regulation requiring 

captioning then it should not phase-in 

compliance over five years, but instead 

should give large, digital theaters five 

years until they have to comply. NATO 

also recommended that the Department 

reduce the required number of screens 

that need to be accessible to 25 percent 

and only apply that requirement to 

movie theaters undergoing digital 

conversion. NATO also objected to a 

captioning and audio-description 

requirement for movie theaters that do 

not convert to digital, citing uncertainty 

as to whether many first-run analog 

movies will be produced in the future, 

or whether any of them will be 

distributed with captions and audio 

description. 

As stated earlier, the Department does 

not believe it appropriate to propose 

that captioning or audio description be 

available in less than 100 percent of the 

movie theaters that exhibit movies that 

are produced, distributed, or otherwise 

made available with captioning or audio 

description. Moreover, there are two 

reasons that Department does not 

believe a phased-in compliance 

schedule is appropriate. First, as 

discussed in the section on the legal 

basis for the rule, and as recognized by 

the Ninth Circuit in the Harkins case, 

movie theaters already have an 

obligation to provide effective 

communication to persons with 

disabilities 100 percent of the time. 

Second, as the industry acknowledged 

in its comments on the 2010 ANPRM, a 

rolling compliance period is difficult to 

implement given the way the market 

works—i.e., it is not easy to purchase 

and install equipment on a set rolling 

schedule. In addition, as discussed 

earlier, the Department understands that 

at least 53 percent of movie screens 

already have the necessary equipment to 

show captions and provide audio 

description and three of the four largest 

movie theater companies have already 

committed to make captioning and 

audio description available at 100 

percent of their theaters, as have several 

smaller movie theater companies. 

The Department is proposing that the 

rule take effect for movie screens that 

have already converted to digital six 

months from the publication date of the 

final rule in the Federal Register. The 

Department believes six months is 

sufficient time for theaters that have 

already converted to digital to order and 

install the necessary equipment to 

provide captions and audio description, 

train employees on how to use the 

equipment and assist patrons in using it 

and develop and implement processes 

to ensure that all communications and 

advertisements intended to inform 

potential patrons of movie showings 

provide information regarding the 

availability of captioning and audio 

description for each movie. 

The rule does not propose a 

compliance date for analog movie 

screens. As discussed below, because of 

the uncertainty about the future of 

analog theaters, and the future 

availability of analog film, the 

Department is seeking public comment 

on whether it should adopt a four-year 

delayed compliance date for analog 

movie screens, or whether it should 

defer coverage of analog screens and 

consider additional rulemaking at a later 

date. 

The six-month compliance date 

applies to digital screens in all movie 

theaters, including a theater that has 

both analog and digital screens. For 

example, if a movie theater has 20 

screens and 18 of them are digital and 

two are analog, the 18 digital screens are 

all subject to the six-month compliance 

date. In addition, the NPRM proposes 

that if an analog screen is converted to 

digital after the rule’s six-month 

compliance date for digital screens, the 

newly converted digital screen will then 

be subject to the rule’s requirements 

within six months from the date the 

screen is converted to digital. 

In addition, from the law’s inception 

in 1990, the statutory language of the 

ADA has provided flexibility based on 

cost in specific circumstances. All 

movie theaters, regardless of size, status 

of conversion to digital cinema, or 

economic viability, have available to 

them the same defense as do all other 

public accommodations—the 

individualized and fact-specific undue 

burden defense. The undue burden 

defense tailors the analysis to factor in 

the needs and resources of small 

businesses and the economic viability of 

those businesses. Throughout the last 

two decades movie theaters have been 

able to assert this defense when facing 

litigation alleging a failure to provide 

effective communication to patrons with 

disabilities. This regulation does not 

change the availability of this defense or 

the circumstances under which it can be 

asserted. It does, however, provide 

clarity about how movie theaters can 


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31Existing b 36.303(g) states that ‘‘[i]f provision 

of a particular auxiliary aid or service by a public 

accommodation would result * * * in an undue 

burden * * * the public accommodation shall 

provide an alternative auxiliary aid or service, if 

one exists, that would not result in * * * such a 

burden but would nevertheless ensure that, to the 

maximum extent possible, individuals with 

disabilities receive the goods, services, facilities, 

privileges, advantages, or accommodations offered 

by the public accommodation.’’ 

32Memorandum for the Heads of Executive 

Departments and Agencies, Regulatory Flexibility, 

Small Business, and Job Creation, 76 FR 3827 (Jan. 

18, 2011). 

meet their longstanding effective 

communication obligations under the 

ADA. 

The Department notes that even if a 

movie theater cannot install the 

equipment in all of its auditoriums due 

to an undue financial burden, the movie 

theater is still obligated to take steps to 

maximize the movie choices for 

customers who are deaf or hard of 

hearing or blind or have low vision. 

Maximizing the movie choices means 

that movie theaters should, to the extent 

possible based on the movie theaters’ 

resources, be able to exhibit as many 

movies as possible with captioning and 

audio description in their auditoriums, 

throughout the day and evening, and on 

both weekdays and weekends. If, for 

example, a six-screen movie theater can 

only afford to install captioning 

equipment in half of its auditoriums, 

and it has auditoriums with different 

capacity, it should install captioning 

equipment in large, medium, and small 

auditoriums. This distribution of 

equipment would permit exhibition of 

different types of movies, as 

blockbusters generally are shown in 

larger auditoriums first and smaller 

budget movies or older movies may be 

shown only in medium or small 

auditoriums.31

Question 6: Consistent with President 

Obama’s Memorandum issued on 

January 18, 2011, on regulatory 

flexibility, small business, and job 

creation, the Department invites 

comment on ways to tailor this 

regulation to reduce unnecessary 

regulatory burdens on small 

businesses.32 For example: Should the 

Department have a different compliance 

schedule or different requirements for 

digital or analog theaters that have 

annual receipts below a certain 

threshold? If so, what should the 

schedule, requirements, or financial 

threshold be? Or, should the final rule 

have a different compliance schedule or 

requirements for single-screen or 

miniplex analog or digital theaters? Will 

all mega and multiplex theaters have 

converted to digital by the time the final 

rule goes into effect? Is a four-year 

compliance date reasonable for those 

screens that will remain analog? Please 

provide information to support your 

answer. Should the Department adopt a 

different compliance schedule or 

different requirements for nonprofit 

movie theaters? The Department invites 

comment on these alternatives and any 

other ways in which the final rule could 

be tailored to appropriately minimize 

costs on small theaters. 

Question 7: Is the proposed six-month 

compliance date for digital screens a 

reasonable timeframe to comply with 

the rule? Is six months enough time to 

order, install, and gain familiarity using 

the necessary equipment; train staff so 

that they can meaningfully assist 

patrons; and meet the notice 

requirement of the proposed rule? Will 

manufacturers have the capacity to 

provide the necessary equipment for 

captioning and audio description as of 

the six-month proposed compliance 

date of this rule for digital movie 

screens? If the proposed six-month date 

is not reasonable, what should the 

compliance date be and why? Please 

provide specific examples, data, or 

explanation in support of your 

responses. 

Analog Movie Screens 

Based on information currently 

available, it appears likely that few, if 

any, analog movies will continue to be 

made by the major movie studios and 

possibly by the independent studios as 

well. See previous discussion. It is 

unclear to the Department, however, 

whether those analog movies that 

continue to be made will be produced 

with captions and audio description. 

Thus, it could be that even if analog 

theaters were to have the capability of 

showing movies with captions and 

audio description, there may not be any 

movies for them to show with those 

accessibility features. It is also unclear 

how many, if any, analog theaters will 

continue to be viable within the next 

few years. The Department has asked for 

public comment on the future of analog 

theaters, analog movie production in 

general, and analog movies with 

accessible features. Based on the 

information available to the Department 

at the time it drafts the final rule, the 

Department will decide whether it is 

appropriate to just delay compliance for 

analog screens in movie theater 

auditoriums in order to allow sufficient 

time to comply with the specific 

requirements of the rule or defer 

applying these specific requirements 

altogether until such time that the 

Department, in light of available 

information, deems it appropriate to 

engage in further rulemaking on this 

subject. The Department is interested in 

public comment on whether there is a 

reasonable basis for deferring the 

application of this rule to movie theater 

auditoriums with analog screens or 

whether it should include an extended 

compliance date. 

Question 8: Should the Department 

adopt a four-year compliance date for 

analog movie screens (Option 1) or 

should it defer application of the rule’s 

requirements to analog screens for now 

and consider additional rulemaking 

with respect to analog screens at a later 

date (Option 2)? Commenters are 

encouraged to provide information to 

support their recommendation. Open 

Captioning (or Other Technologies) as 

an Option for Compliance 


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33A number of commenters advocated for the 

Department to require open captioning exclusively, 

arguing that it is much more effective and cheaper 

than closed captioning. 

34 ‘‘Open captioning * * * of feature films 

playing in movie theaters, is not required by this 

legislation. Filmmakers are, however, encouraged to 

produce and distribute open-captioned versions of 

films, and theaters are encouraged to have at least 

some pre-announced screenings of a captioned 

version of feature films.’’ H.R. Rep. No. 101–485, pt. 

2, at 108 (1990); S. Rep. No. 101–116, at 64 (1989). 

35With open movie captioning, there is no need 

for additional equipment to display the captions 

and, therefore, there is no additional cost to the 

theaters. For digital cinema, the movie theater 

simply selects the open caption option from its 

digital menu and the open captions appear on the 

movie screen for that showing only. For analog 

films, the movie theater would order the version 

with open movie captions, if available, and just 

display the movie without need for any additional 

equipment. 

36 28 CFR 36.104 (title III) (defining the ‘‘2010 

Standards’’ as the requirements set forth in 

appendices B and D to 36 CFR part 1191 and the 

requirements contained in subpart D of 28 CFR part 

36). The 2010 Standards can be found at http://

www.ada.gov/2010ADAstandards_index.htm (last 

visited July 14, 2014). 

In Question 9 of the 2010 ANPRM, the 

Department asked whether it should 

give movie theaters the discretion to 

exhibit movies with open captions 

should they so desire, as an alternate 

method of achieving compliance with a 

captioning regulation. Many of the 

commenters who addressed this issue, 

including those from the industry, 

supported this option.33 The 

Department decided to include this 

option in the proposed regulation as an 

example of an alternative means of 

meeting the movie theaters’ obligation 

to provide effective communication to 

patrons who are deaf or hard of hearing 

but in keeping with the ADA’s 

legislative history, we are making it 

clear that the ADA does not require 

movie theaters to use open captions as 

a means of providing effective 

communication.34 In the NPRM, 

§ 36.303(g)(2)(ii) states that ‘‘[m]ovie 

theaters may meet their obligation to 

provide captions to persons with 

disabilities through use of a different 

technology, such as open movie 

captioning, so long as the 

communication provided is as effective 

as that provided to movie patrons 

without disabilities. Open movie 

captioning at some or all showings of a 

movie is never required as a means of 

compliance with this section, even if it 

is an undue burden for a theater to 

exhibit movies with closed movie 

captioning in an auditorium.’’ 35

The Department is aware, both from 

comments received from the industry 

and from some individuals, that open 

captions may reduce the amount of 

enjoyment experienced by people who 

do not need captioning. For those movie 

theaters that elect to meet these 

requirements through the exhibition of 

movies with open captioning, in whole 

or in part, the movie theaters may elect 

to turn on the open captions only after 

a timely request has been made for 

captions. For this approach to be 

effective, movie theaters should clearly 

and conspicuously advertise at the 

ticket offices and at the doors to each 

auditorium the process, procedures, and 

time periods for making captioning 

requests. 

Question 9: Do the alternative 

provisions regarding when and how to 

employ open movie captions strike an 

appropriate balance? Should the 

Department define what a timely 

request is in this context? Has the 

Department adequately addressed the 

possibility that new technology may 

develop that can be used to provide 

effective communication at movie 

theaters? 

Individual Captioning Devices 

A commenter from a disability 

advocacy organization encouraged the 

Department to specify the number of 

individual captioning devices that must 

be made available at each movie theater, 

pointing out that groups of persons who 

are deaf or hard of hearing should be 

able to attend movies at the same time 

and have sufficient individual 

captioning devices available to enable 

them to enjoy the movie at the time of 

their choice. A commenter from the 

movie theater industry recommended 

that the Department require only one 

individual captioning device per movie 

screen equipped to display digital 

cinema. The Department already has a 

requirement for a specific number of 

assistive listening receivers that must be 

made available at each movie theater for 

persons who need amplification of 

sound during a movie. See table 219.3 

in the 2010 ADA Standards for 

Accessible Design (2010 Standards).36

Adding a requirement for a particular 

number of individual captioning 

devices would be consistent with that 

approach and is necessary to ensure that 

patrons who are deaf and hard of 

hearing are provided with effective 

communication. 

In the NPRM, the Department is 

proposing scoping for the required 

number of individual captioning 

devices in numbers that approximate 

about half the number of assistive 

listening receivers already required for 

assembly areas by the 2010 Standards. 

Proposed § 36.303(g)(2)(iii)(A) states, 

‘‘[a] public accommodation that owns, 

leases, or leases to, or operates a movie 

theater shall provide individual 

captioning devices in accordance with 

the following Table. This requirement 

does not apply to movie theaters that 

elect to exhibit all movies at all times at 

that facility with open movie 

captioning.’’ 

Capacity of seating in movie theater Minimum required number of individual captioning devices 

100 or less ............................................................................................................. 2. 

101 to 200 .............................................................................................................. 2 plus 1 per 50 seats over 100 seats or a fraction thereof. 

201 to 500 .............................................................................................................. 4 plus 1 per 50 seats over 200 seats or a fraction thereof. 

501 to 1000 ............................................................................................................ 10 plus 1 per 75 seats over 500 seats or a fraction thereof. 

1001 to 2000 .......................................................................................................... 18 plus 1 per 100 seats over 1000 seats or a fraction thereof. 

2001 and over ........................................................................................................ 28 plus 1 per 200 seats over 2000 seats or a fraction thereof. 

This table’s proposed requirements 

are based on the total number of seats 

for all screens in the movie theater. If a 

movie theater has more than one screen, 

the number of seats are combined 

together to determine the required 

number of individual captioning 

devices. 

The Department believes that its 

proposed numbers are sufficient 

because not every individual with 

hearing loss requires the use of 

captioning in order to enjoy movies. 

There are many individuals with mild 

to moderate hearing loss who can use 

the amplification provided by assistive 

listening receivers, although there are 

some individuals with moderate hearing 

loss for whom the assistive listening 

receivers are not effective. See 

discussion supra. The Department does 

not agree with the movie theater 

industry’s recommendation that it 

should require each movie theater to 

have only one individual captioning 

device available for each auditorium 


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37When the Department adopted standards for 

physical accessibility in public accommodations, 

the Department similarly did not base its scoping 

on how many persons with disabilities accessed 

inaccessible facilities. 

38 If a movie theater adopts an all-reserved seating 

policy, it would be advisable to hold back certain 

seats for individuals who need captioning (or audio 

description) if the captioning (or audio description) 

does not work well throughout the auditorium or 

works better in specific areas of the auditorium. 

that has captioning equipment installed 

because it does not believe that this 

would be a sufficient number given the 

number of persons with moderate and 

severe hearing loss or who are 

profoundly deaf who would benefit 

from closed captioning. Moreover, the 

Department believes that it is more 

appropriate to base the scoping for 

individual captioning devices on the 

number of seats at the movie theater, 

rather than the number of movie 

screens, because the number of devices 

should be proportionate to the number 

of individuals who can attend the 

movie. Under the Department’s formula, 

a movie theater that had five screens in 

auditoriums that could accommodate a 

total of 3000 people would need to have 

more devices available than a movie 

theater that also had five screens but in 

auditoriums that could only 

accommodate a total of 1000 people. 

This approach is consistent with the 

way assistive listening receivers are 

scoped in the current regulation. 

Industry commenters asserted that 

even in those auditoriums that have 

installed Rear Window® Captioning 

systems, industry data indicates that 

there are few requests to use them. 

Based on the comments received in 

response to its 2010 ANPRM and its 

independent research, the Department 

has concluded that the availability of 

captioning in the United States is 

limited, and it is therefore not 

appropriate to base conclusions about 

potential use of individual captioning 

devices on current usage data at those 

few auditoriums that offer closed 

captioning on a limited basis.37 The 

Department believes that the demand 

for individual captioning devices will 

be much greater than one device per 

auditorium once movies are regularly 

and uniformly exhibited with 

captioning and the availability of 

captioning becomes widely known. This 

is especially true given the anticipated 

increase in the number of deaf and hard 

of hearing individuals in the United 

States that will come with the aging of 

the U.S. population. 

The Department received numerous 

comments from advocacy organizations 

and deaf and hard of hearing 

individuals indicating that they were 

unable to attend the few movies 

currently offered with closed captioning 

because they were not publicized, were 

usually scheduled a few times a week at 

off hours (often in the middle of the 

weekday), or were only scheduled for 

one movie at a time, despite the variety 

of movies that are shown at any one 

time at a movie theater. These 

commenters stated that if captioned 

movies were available to them for all 

movies at all times, they would then 

become regular moviegoers in the same 

manner as persons who are not deaf or 

hard of hearing. These commenters 

included deaf and hard of hearing 

parents of children who wished to 

attend movies, teenagers who wished to 

attend movies with their friends on the 

weekends at peak times, and people 

who work during the day who wished 

to attend movies during evening hours 

and on weekends. Many of the deaf and 

hard of hearing individuals who 

testified at the Department’s three 

public hearings or who submitted 

comments stressed that they have not 

been to a movie for many years either 

because of the lack of availability of 

captioning or because when they tried 

to see films advertised as having 

captioning they arrived at the movie 

theater only to find that the staff did not 

know where the individual captioning 

devices were or how to turn on the 

captioning, or the individual devices 

themselves malfunctioned. 

Question 10: The Department seeks 

public comment on its proposed scoping 

for individual captioning devices. If the 

scoping is not correct, what are the 

minimum number of individual 

captioning devices that should be 

available at a movie theater? Please 

provide the basis for alternative 

suggestions. If the required number of 

individual captioning devices is linked 

to the number of seats in the movie 

theater facility, should the percentage 

decrease for very large facilities with 

multiple screens? What should the 

threshold(s) be for this calculation? 

Should the Department consider 

different scoping approaches for small 

theaters? How so and why? Are there 

alternative scoping approaches that the 

Department should consider to address 

variability in demand for the devices 

across theaters? If so, please describe 

such alternatives in as much detail as 

possible. 

Standards for Individual Captioning 

Devices 

The Department received a number of 

comments for specific performance 

standards for individual captioning 

devices. These commenters wanted the 

Department to ensure that the text that 

is exhibited on these devices is readable 

with good contrast and good text size, 

that it be available at a reasonable height 

in relation to the movie screen, that the 

devices be easily used by patrons who 

are deaf or hard of hearing, and that 

they be properly maintained. The 

Department has considered these 

comments and is proposing in the 

NPRM, at § 36.303(g)(2)(ii)(B), that ‘‘[i]n 

order to provide effective 

communication, individual captioning 

devices must: (1) Be adjustable so that 

the captions can be viewed as if they are 

on or near the movie screen; (2) be 

available to patrons in a timely manner; 

(3) provide clear, sharp images in order 

to ensure readability; and (4) be 

properly maintained and be easily 

usable by the patron.’’ 

The Department received a number of 

comments expressing concern that seat 

location can have an impact on the 

ability to read closed captions. Those 

commenters recommended that the 

Department require movie theaters to 

reserve seats in the center of the 

auditorium to persons using individual 

captioning devices. In contrast, an 

industry commenter stated that the 

ability to read the captions provided by 

the new closed-caption systems for 

digital cinema has been reported to be 

equally good throughout the movie 

theater auditorium and that the system 

currently in use for analog has 

reportedly been improved for use with 

digital cinema. 

The Department has decided not to 

propose any kind of reserved seating 

provision in the regulation at this point 

because it believes that its proposed 

performance standards will ensure the 

usability of individual captioning 

devices. In addition, seating at movie 

theaters generally is on a first-come, 

first-served basis, and patrons know to 

come early if they want to sit in the 

‘‘sweet spot’’ or other desirable seats in 

the auditorium.38 While movie theaters 

may select whatever captioning 

equipment they want to deliver closed 

captions to their patrons, they must 

provide effective communication to 

individuals with disabilities who are 

deaf, hard of hearing, blind, or have low 

vision. The proposed performance 

standards should assist movie theaters 

in meeting that requirement. 

Question 11: Has the Department 

adequately described performance 

standards for individual captioning 

devices that deliver closed captions to 

patrons? How should the standards 

address text size that is displayed on the 

devices? 


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44996 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

Audio Description 

Coverage. In § 36.303(g)(3)(ii) of the 

NPRM, the Department is proposing that 

a public accommodation that owns, 

leases, leases to, or operates a movie 

theater shall ensure that its auditoriums 

have the capability to exhibit movies 

with audio description and in all cases 

where the movies it intends to exhibit 

are produced, distributed, or otherwise 

made available with audio description, 

the public accommodation shall ensure 

that it exhibits such movies with audio 

description at all scheduled screenings 

of those movies. This requirement is 

comparable to the requirement for 

exhibition of movies with closed 

captioning at proposed § 36.303(g)(2). In 

addition, with respect to digital screens, 

the Department is proposing the same 

six-month compliance date for the 

provision of audio description at 

§ 36.303(g)(3)(i) as it is for movie 

captioning. With respect to analog 

screens, the Department is seeking 

public comment on whether to adopt a 

four-year delayed compliance date for 

the provision of audio description or 

defer new requirements for analog 

screens to provide audio description for 

now and consider additional 

rulemaking at a later date. 

The Department received virtually no 

comments objecting to a requirement for 

the exhibition of movies with audio 

description when such movies are 

available to movie theaters with audio 

description. The overwhelming number 

of commenters addressing audio 

description indicated that they believed 

it should be available at all movies at all 

times. However, while industry 

commenters agreed that audio 

description should be available, they 

suggested limiting any requirement for 

exhibiting movies with audio 

description to 25 percent of those 

auditoriums that have converted to 

digital cinema. A 25 percent 

requirement would significantly limit 

the availability of movies with audio 

description across the country. 

As discussed with respect to proposed 

§ 36.303(g)(2) (movie captioning), the 

Department believes that given the 

availability of audio-description 

technology, and in light of the purpose 

and goals of the ADA and its statutory 

and regulatory framework, the ADA 

requires nothing less than full access to 

audio-described movies at all times 

such movies are exhibited, whenever 

such movies are produced, distributed, 

or otherwise made available to movie 

theaters. The primary goals of the ADA 

are to assure equality of opportunity and 

full access and participation in our 

society for individuals with disabilities. 

42 U.S.C. 12101. The ADA requires 

public accommodations to take such 

steps as may be necessary to ensure that 

no individual with a disability is 

excluded, denied services, segregated, 

or otherwise treated differently because 

of the absence of auxiliary aids and 

services unless the public 

accommodation can demonstrate that 

taking such steps would result in a 

fundamental alteration or undue 

burden. 42 U.S.C. 12182(b)(2)(A)(iii). 

Individual audio-description listening 

devices. In order to ensure that 

individuals who are blind or have low 

vision have access to audio-described 

movies when such movies are available 

in a movie theater, the theater needs to 

provide a reasonable number of audiodescription listening devices for 

individual use. The comments received 

and the Department’s research indicate 

that many of the assistive listening 

receivers currently in use in the United 

States have two channels, one of which 

is needed for amplified sound, and the 

other that could be used for audio 

description. The NPRM proposes at 

§ 36.303(g)(3)(ii)(B) that a theater may 

meet its obligation to provide individual 

captioning devices if the receivers it 

uses to meet its obligations to provide 

assistive listening systems in 

accordance with the requirements in 

table 219.3 of the 2010 Standards have 

at least two channels, one of which can 

be available for transmission of audio 

description. For those theaters that do 

not have two-channel assistive listening 

receivers, the Department is proposing 

in § 36.303(g)(3)(ii)(A) to require 

minimal scoping of one individual 

audio-description listening device per 

auditorium, with a minimum of two 

devices per theater. This proposal is 

relatively consistent with the 

recommendations of at least one 

industry commenter on the 2010 

ANPRM, who asserted that the 

Department should limit any 

requirement for individual audiodescription listening devices to one 

receiver per auditorium. In any event, 

the Department believes that because 

many movie theaters already have two 

channel assistive listening receivers that 

they use to meet their existing 

requirements under the 2010 Standards, 

the proposed scoping will not require 

many movie theaters to buy additional 

equipment. 

The Department received comments 

and heard testimony from individuals 

and organizations representing 

individuals who are blind and have low 

vision stating that they do not attend 

movies because of the lack of audio 

description, but would begin going to 

movies once audio description is readily 

available. 

Question 12: How many devices 

capable of transmitting audio 

description to individuals should each 

movie theater have on hand for use by 

patrons who are blind or have low 

vision? Should the number of individual 

audio-description listening devices be 

tied to the number of seats in each 

auditorium or other location with a 

movie screen? Should the number of 

individual audio-description listening 

devices be tied to the number of seats 

in the theater facility as a whole? Please 

provide the basis for your comment. 

How many movie theaters have twochannel receivers that can be used to 

provide audio description? How many 

movie theaters will need to buy 

additional individual audio description 

listening devices? How much do audio 

description listening devices that meet 

the requirements of this proposed rule 

cost? 

For some small movie theaters, it may 

be an undue burden to purchase the 

equipment needed to exhibit movies 

with closed captioning and audio 

description and meet the other 

requirements of the rule. Determining 

whether compliance with the 

requirements of this rule will result in 

an undue burden, however, requires the 

individualized, fact-specific inquiry and 

analysis discussed previously. In some 

circumstances, movie theaters may 

incur a cost to determine whether and 

to what extent compliance with the rule 

would result in an undue burden. Such 

costs may include the time to determine 

how to comply with the rule’s 

requirements; the time to gather, 

compile, and review financial records; 

and the time to obtain estimates of the 

cost of compliance. The Department 

lacks information necessary for 

estimating the time and other costs a 

theater would incur to determine 

whether compliance would result in an 

undue burden and the extent to which 

this rule would increase movie theaters’ 

legitimate use of the undue burden 

analysis compared to the status quo. 

This information, however, would be 

important for analyzing at the final rule 

stage the incremental effect of the rule 

and for analyzing regulatory 

alternatives, particularly for small 

theaters. 

The Department notes that many 

small businesses will be able to defray 

the costs of compliance with this rule if 

they qualify for a special IRS tax credit 

that is intended to defray the costs of 

providing access to persons with 

disabilities in accordance with the 

requirements of the ADA. Section 44 of 

the Internal Revenue Code of 1986 


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allows eligible businesses a tax credit of 

50 percent of the cost of ‘‘eligible access 

expenditures,’’ defined as amounts paid 

or incurred ‘‘(A) for the purpose of 

removing architectural, communication, 

physical, or transportation barriers 

which prevent a business from being 

accessible to, or usable by, individuals 

with disabilities, * * * (D) to acquire 

or modify equipment or devices for 

individuals with disabilities, or (E) to 

provide other similar services, 

modifications, materials, or equipment.’’ 

26 U.S.C. 44(c)(2). This tax credit is 

available to businesses with gross 

receipts of less than one million dollars 

each year or that have 30 or fewer fulltime employees. See 26 U.S.C. 44(b). 

The Department believes that providing 

captioning and audio description to 

meet the longstanding obligation to 

provide effective communication under 

the ADA falls within this tax code 

provision. 

Question 13: The Department invites 

comments on the additional time it will 

take and other possible costs movie 

theaters would incur to determine 

whether compliance with the rule would 

constitute an undue burden. What kinds 

of costs are involved? How much time 

would a theater spend determining how 

to comply with the rule; gathering, 

compiling, and reviewing financial 

records; and estimating the cost of 

compliance? Would small theaters have 

professionals such as accountants or 

lawyers review their financial records? 

What information should the 

Department use to estimate the per hour 

cost of the time movie theaters spend 

undertaking these activities? How might 

the Department develop an estimate of 

the average time and cost required to 

determine whether full compliance 

would constitute an undue burden? To 

what extent would this rule increase 

movie theaters’ reliance on the undue 

burden analysis compared to the status 

quo? What characteristics of small 

theaters would make it more likely that 

it would be an undue burden to comply 

with the rule? Are there empirical 

studies or other credible information 

available for estimating the time and 

cost for a theater to make a legitimate 

determination that compliance would 

constitute an undue burden? The 

Department is interested in comments 

in response to these questions from the 

public in general, but particularly from 

small movie theater owners and 

operators and from other small 

businesses covered by title III of the 

ADA with experience in determining 

whether it is an undue burden to meet 

their effective communication 

obligation. 

Notice Requirement 

The Department believes that it is 

essential that movie theaters provide 

adequate notice to patrons of the 

availability of captioned and audiodescribed movies. In the 2010 ANPRM, 

in Question 18, the Department 

requested public comment relating to 

the necessity of a requirement for 

providing notice about the availability 

of captioned and audio-described 

movies and the scope of such a 

requirement. The Department received 

numerous comments in response to this 

question. The vast majority of 

commenters supported a notice 

requirement that included provisions 

for notice in the range of 

communications and media utilized by 

movie theaters to advertise their films. 

Several commenters recommended that 

the Department require a uniform 

system of labeling movies as having 

open captioning (OC), closed captioning 

(CC), or audio description (AD). Other 

commenters stated that they believed 

the form of notice should be left to the 

discretion of movie theaters. Many 

commenters encouraged the Department 

to ensure that movie listings provided 

over the phone include this information, 

so that patrons who are blind and have 

low vision and who do not utilize Webbased or print media can find out which 

movies carry audio description. 

Industry commenters noted that while 

the industry agrees that providing notice 

of captioning and audio description is 

important, movie theaters do not have 

control over the information provided 

on third-party Web sites that provide 

show time information and that sell 

tickets. These same commenters 

indicated that they have been working 

with these Web sites to voluntarily 

provide accurate information about 

current screenings of captioned and 

audio-described movies. Many 

commenters noted that if the 

Department adopted a requirement that 

all movies be shown with captioning 

and audio description, the need for 

notice would disappear, since patrons 

could assume that all movies would be 

accessible to them. 

After considering these comments, the 

Department has decided to propose a 

requirement for provision of notice to 

patrons that covers all types of 

communications and advertisements 

provided by movie theaters, but does 

not require a specific form of 

notification. Proposed § 36.303(g)(5) 

states the following: ‘‘movie theaters 

shall ensure that communications and 

advertisements intended to inform 

potential patrons of movie showings 

and times, that are provided by the 

theaters through Web sites, posters, 

marquees, newspapers, telephone, and 

other forms of communication, shall 

provide information regarding the 

availability of captioning and audio 

description for each movie.’’ Even 

though the Department has proposed a 

100 percent requirement, it will still be 

necessary to provide notice regarding 

which movies have captions and audio 

description because not all movies will 

be available to movie theaters with 

captions or audio description. The 

Department notes that third parties are 

not liable under the ADA when they 

publish information about movies if 

they fail to include information about 

the availability of captioning and audio 

description at movie theaters. 

Question 14: It is the Department’s 

view that the cost of the proposed 

requirement for theaters to provide 

notice indicating which screenings will 

be captioned or audio-described is de 

minimus. The Department requests 

comments on this view. Specifically, 

how much will it cost theaters to 

provide information regarding the 

availability of captioning and audio 

description for each movie and to 

specify whether open movie captions or 

closed movie captions will be provided 

for each particular showing and time? 

The Department understands that this 

cost may vary depending on the type of 

communication or advertisement, and 

so we request that commenters specify 

the type of communication or 

advertisement along with their cost 

estimate. In addition, how many times 

in a given year do theaters provide 

communications and advertisements 

that would trigger this proposed 

requirement? The Department 

understands that this will likely vary 

depending on how many screens a 

theater has, and so we request theater 

commenters to specify how many 

screens they operate in their response to 

this question. Because the rule would 

require 100 percent of movies available 

with captions and audio description to 

be shown with these accessibility 

features, should the Department permit 

theaters to indicate those movies that do 

not have these features rather than 

indicating those that have these 

features? Would this approach have an 

effect on the cost of providing notice? If 

so, how would it affect the cost? 

Capability to Operate Captioning and 

Audio Description Equipment 

The Department received a significant 

number of comments from individuals 

with disabilities and groups 

representing persons who are deaf or 

hard of hearing and who are blind or 

have low vision strongly encouraging 


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39The three baselines described in this section 

use the term ‘‘captioning enabled.’’ This term refers 

to the extent to which movie theaters and movie 

screens currently have the hardware and captioning 

devices needed to comply with this NPRM. Each 

baseline includes assumptions for what this term 

means, and those assumptions can be found in the 

initial regulatory impact analysis that accompanies 

this NPRM. 

the Department to include a 

requirement that staff at movie theaters 

know how to operate captioning and 

audio description equipment and be 

able to communicate about the use of 

individual devices with patrons. These 

commenters stated that on numerous 

occasions when they attempted to go to 

a movie advertised as having captioning 

or audio description, there was no staff 

available who knew where the 

individual captioning devices were kept 

or how to turn on the captioning or 

audio description for the movie. Many 

of these individuals indicated they were 

unable to experience the movie fully 

because of the lack of trained personnel, 

even if the auditorium was properly 

equipped and the movie was actually 

available with captioning or audio 

description. Industry commenters 

agreed that staff should be 

knowledgeable in the use of equipment 

but asserted that training in the use of 

all equipment in a movie theater was 

standard practice, and therefore, such a 

requirement was not necessary. 

Having considered these comments, 

the Department has decided to include 

in the NPRM proposed § 36.303(g)(6), 

which states, ‘‘movie theaters must 

ensure that there be at least one 

individual on location at each facility 

available to assist patrons seeking these 

services at all times when a captioned 

or audio-described movie is shown. 

Such assistance includes the ability to: 

(i) Operate all captioning and audiodescription equipment; 

(ii) Locate all necessary equipment 

that is stored and quickly activate the 

equipment and any other ancillary 

equipment or systems required for the 

use of the devices; and 

(iii) Communicate effectively with 

individuals who are deaf or hard of 

hearing and blind or have low vision 

regarding the uses of, and potential 

problems with, the equipment for such 

captioning or audio description.’’ 

The Department believes that the 

requirement in § 36.303(g)(6)(iii) is 

necessary to ensure effective 

communication for persons who are 

deaf or hard of hearing and blind or 

have low vision so that they can have 

equal access to movie theaters. The 

Department notes, however, that 

providing effective communication 

about the availability of captioning 

would not require that the theater hire 

a sign language interpreter. 

Communication with a person who is 

deaf or hard of hearing about the 

availability of captioning or how to use 

the equipment involves a short and 

relatively simple conversation, and 

therefore, can easily be provided 

through signage, instruction guides, and 

exchange of written notes. 

Question 15: How much additional 

time beyond the normal time movie 

theaters spend training staff would be 

needed to incorporate instruction in the 

operation and maintenance of the 

equipment for captioning or audio 

description? How much additional time 

do theaters anticipate spending on 

assisting patrons in using the captioning 

and audio description devices? How 

should the Department estimate the 

value of the additional time theater 

personnel would spend on assisting 

patrons in using the captioning and 

audio description devices? Would that 

additional cost be borne by the theaters, 

and if so, how? 

V. Other Issues 

Several commenters asked the 

Department to include a requirement 

that movie theaters maintain all 

equipment needed to provide 

captioning and audio description. The 

Department notes that § 36.211 of the 

title III regulation already requires that 

public accommodations ‘‘maintain in 

operable working condition those 

features of facilities and equipment that 

are required to be readily accessible to 

and usable by persons with disabilities 

by the Act or this part.’’ The Department 

does not believe a separate requirement 

is necessary for equipment needed to 

provide captioning and audio 

description. 

VI. Regulatory Process Matters 

A. Executive Orders 13563 and 12866— 

Summary of Initial Regulatory 

Assessment 

1. Background 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

In keeping with Executive Order 

12866 the Department has evaluated 

this proposed rule to assess whether it 

would likely ‘‘[h]ave an annual effect on 

the economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities.’’ E.O. 12866, § 3(f)(1). The 

Department’s Initial RA shows that this 

proposed regulation does not represent 

an economically ‘‘significant’’ 

regulatory action within the meaning of 

Executive Order 12866. See E.O. 12866, 

§§ 3(f)(1), 6(a)(3)(C). The Department’s 

full Initial RA can be found in the 

docket for this proposed rule at http:// 

www.Regulations.gov. 

2. Costs—Summary of Likely Economic 

Impact 

The Initial RA provides estimates of 

the total cost of the rule under Option 

1 (a six-month compliance date for 

digital screens and a four-year 

compliance date for analog screens) and 

Option 2 (a six-month compliance date 

for digital screens and a deferral of new 

regulatory requirements on analog 

screens) over a 15-year time horizon. 

For Option 1, we estimate that the cost 

of the rule will range from $177.8 

million to $225.9 million when using a 

7 percent discount rate, and from $219.0 

million to $275.7 million when using a 

3 percent discount rate. For Option 2, 

we estimate that the cost of the rule will 

range from $138.1 million to $186.2 

million when using a 7 percent discount 

rate, and from $169.3 million to $226.0 

million when using a 3 percent discount 

rate. 

The range of cost estimates for both 

options depends on the assumptions 

used regarding the extent to which 

theaters are or soon will be providing 

closed movie captioning and audio 

description as proposed in this rule, but 

independently of this rulemaking. This 

Initial RA estimates costs using three 

different baselines due to a lack of 

information regarding the extent to 

which theaters are already providing 

captioning and audio description as 

proposed in this rule. Under Option 1, 

each baseline assumes that 2 percent of 

analog theaters currently meet the 

requirements of this proposed rule. 

Under Option 2, the baselines do not 

make assumptions about analog screens 

because the rule would defer 

requirements on such screens to future 

rulemaking. See Initial RA section 4 for 

details. 

• Baseline 1 (One Screen PerTheater)—This baseline assumes that on 

average, every movie theater with digital 

screens has one screen that is captioning 

enabled 39 (based on an assumption of at 


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40Annualized costs were calculated in a 

Microsoft Excel model using the PMT function 

(¥PMT (discount rate, years of analysis, present 

value of total costs)). 

least some compliance with the existing 

ADA requirements that public 

accommodations provide effective 

communication to persons with hearing 

and vision disabilities). This 

assumption leads to an estimate of about 

13 percent of all digital screens having 

captioning capabilities. For Option 1, 

this baseline also assumes that 2 percent 

of analog screens are captioning 

enabled. 

• Baseline 2 (Litigation-Based)—This 

baseline is derived using available data 

regarding movie theater companies that 

are now providing captioning and that 

have been involved in recent litigation 

challenging their failure to comply with 

existing ADA effective communication 

requirements. This baseline assumes 

that 42 percent of digital screens are 

captioning enabled. For Option 1, this 

baseline also assumes that 2 percent of 

analog screens are captioning enabled. 

• Baseline 3 (2013 NATO SurveyBased)—This baseline uses data 

provided in testimony by officials from 

the NATO before Congress in May 2013, 

in which 53 percent of digital screens 

were described as already captioning 

enabled. For Option 1, this baseline also 

assumes that 2 percent of analog screens 

are captioning enabled. 

Costs are estimated over a 15-year 

period, beginning with the year in 

which the rule becomes effective 

(assumed to be 2015). For both options, 

costs are estimated for theaters with 

digital screens beginning in the first 

year after publication of the final rule 

(2015). For Option 1, costs are estimated 

for theaters with analog screens 

beginning in the fourth year after 

publication of the final rule (2018). 

The estimated costs primarily consist 

of the following: (1) The purchase of 

hardware and software to send the 

captions to users’ individual devices; (2) 

the purchase of individual devices as 

per the scoping requirements specified 

in the rule; (3) periodic costs to replace 

hardware, software, and devices; (4) 

annual operations and maintenance 

costs to cover storage, management, staff 

training, and other recurring costs; (5) 

any additional hardware costs to 

transmit audio description to individual 

devices; and (6) any additional costs 

associated with the purchase of 

additional of individual audiodescription listening devices. The costs 

do not include the costs to theaters to 

convert their screens from analog to 

digital, because this rule does not 

require any movie theater to convert to 

digital cinema, and doing so is not 

necessary to comply with the proposed 

requirements. 

ESTIMATED COSTS UNDER OPTION 1 

[2015 Dollars, 15-year time horizon] 

Discount rate 

Under baseline 1 

assumptions— 

one screen per-theater 

Under baseline 2 

assumptions— 

litigation-based 

Under baseline 3 

assumptions— 

NATO survey based 

(%) (millions $) (millions $) (millions $) 

7 ................................................................................................... $225.9 $191.9 $177.8 

3 ................................................................................................... 275.7 235.6 219.0 

ESTIMATED COSTS UNDER OPTION 2 

[2015 Dollars, 15-year time horizon] 

Discount rate 

Under baseline 1 

assumptions— 

one screen per-theater 

Under baseline 2 

assumptions— 

litigation-based 

Under baseline 3 

assumptions— 

NATO survey based 

(%) (millions $) (millions $) (millions $) 

7 ................................................................................................... $186.2 $152.2 $138.1 

3 ................................................................................................... 226.0 186.0 169.3 

Under Option 1, the estimated 

annualized costs of the proposed 

regulation under each of the three 

baseline scenarios range from $19.5 

million to $24.8 million when using a 

7 percent discount rate, and from $18.3 

million to $23.1 million when using a 

3 percent discount rate. Under Option 2, 

the estimated annualized costs of the 

proposed regulation under each of the 

three baseline scenarios range from 

$15.2 million to $20.4 million when 

using a 7 percent discount rate, and 

from $14.2 million to $18.9 million 

when using a 3 percent discount rate.40

The Initial RA shows that estimated 

annual costs for this proposed rule will 

not exceed $100 million in any year 

under any of three baseline scenarios, 

irrespective of which option the 

Department selects for analog screens. 

Annual costs for each year during the 

15-year expected term of the proposed 

regulation are depicted in the following 

figures: 


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45000 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

41Unless a dollar figure in the text or the tables 

specifically identifies a particular baseline, the 

default baseline for general dollar figures uses 

Baseline 1. 

Because movie theater complexes 

vary greatly by number of screens, 

which significantly impacts overall 

costs per facility, the analysis breaks the 

movie exhibition industry into four 

theater types based on size—Megaplexes 

(16 or more screens), Multiplexes (8–15 

screens), Miniplexes (2–7 screens), and 

Single Screen Theaters—and by digital 

or analog system. Per-facility costs were 

then calculated for each theater type. 

The largest costs per year for any single 

movie theater would occur in the first 

year due to the purchase of necessary 

equipment. The first year’s costs for 

digital Megaplex theaters are estimated 

to total $38,547, while comparable costs 

for digital single screen theaters would 

total $3,198.41


emcdonald on DSK67QTVN1PROD with PROPOSALS2EP01AU14.005</GPH> EP01AU14.006</GPH>

Annual Costs of Rule Under Option 1, Discounted at 7 Percent 

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201S 2016 2017 2018 2019 2020 2021 2022 2023 2024 202S 2026 2027 2028 2029 

Annual Costs of Rule Under Option 2, Discounted at 7 Percent 

"' $90 <:: 

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2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 
Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 45001 

42The Department’s analysis assumes that at the 

time this rule takes effect, theaters will either be 

exclusively digital or exclusively analog (that is, all of the screens in a theater will be either digital or 

analog). 

PER DIGITAL THEATER INITIAL CAPITAL COSTS FOR CAPTIONING AND AUDIO DESCRIPTION EQUIPMENT

[Hardware, software and devices, 2015 dollars *] 

Digital theater type/size 

Per-theater initial 

capital costs 

(using Doremi 

technology for movies 

in digital format) 

Per-theater initial 

capital costs 

(using USL technology 

for movies in digital 

format) 

Average initial capital 

costs for digital theater 

(average of different 

technology) 

Megaplex ..................................................................................... $40,540 $36,554 $38,547 

Multiplex ....................................................................................... 27,880 25,798 26,839 

Miniplex ........................................................................................ 10,920 10,252 10,586 

Single Screen .............................................................................. 3,285 3,111 3,198 

Note: These initial capital costs include the costs to purchase and install: (1) Captioning hardware and software (one per screen); (2) individual 

devices for captioning (ranging from 4 for Single Screens to 34 for Megaplexes); (3) additional hardware, if needed, to transmit audio description 

(from none to one device per screen); and (4) additional devices for audio description (ranging from 2 for Single Screens to 18 for Megaplexes). 

* Because unit costs for captioning and audio description equipment have either remained steady or declined between 2010 and 2013, they 

are assumed to remain constant from 2013 (when last researched) to 2015, when the final rule is expected to be published. 

Should the Department proceed under 

Option 1 and cover analog screens, per 

theater costs for analog theaters would 

be higher than those for digital theaters 

for each type/size.42 The first year pertheater costs for analog single screen 

theaters, which are measured in year 

four, would total $8,172. The first year 

costs for digital single screen theaters, 

which are measured in year one, would 

average $3,198. 

PER ANALOG THEATER INITIAL CAPITAL COSTS OF CAPTIONING AND AUDIO DESCRIPTION EQUIPMENT

[Hardware, software and devices, 2015 dollars *] 

Analog theater type/size 

Per theater initial 

capital costs 

(rear window technology 

for analog films) 

Megaplex ** .......................................................................................................................................................................... NA 

Multiplex ** ........................................................................................................................................................................... NA 

Miniplex ................................................................................................................................................................................ $31,884 

Single Screen ...................................................................................................................................................................... 8,172 

Note: These first year costs include (1) the costs to purchase and install: Captioning hardware and software (one per screen); (2) individual 

devices for captioning (ranging from 4 for Single Screens to 34 for Megaplexes); (3) additional hardware, if needed, to transmit audio description 

(from none to one device per screen); and (4) additional individual audio description listening devices (ranging from 2 for Single Screens to 18 

for Megaplexes). 

* Since unit costs for captioning and audio description equipment have either remained steady or declined between 2010 and 2013, they are 

assumed to remain constant from 2013 (when last researched) to 2015, when the final rule is expected to be published. 

** Note that the Initial RA assumes that all Megaplexes and Multiplexes have transitioned to digital projection systems by the time this rule 

goes into effect. 

In addition, the Initial RA uses a 

value equivalent to 3 percent of all the 

captioning and audio-descriptive 

equipment owned by the theater to 

capture any operations and maintenance 

costs including the incremental increase 

to staff time, the costs of adding 

information that captioning or audio 

description is available when preparing 

communications regarding movie 

offerings, and other potential increases 

in administrative costs. These costs are 

annual. This 3 percent is a factor 

commonly used in construction and 

equipment maintenance. See Regulatory 

Impact Analysis for the Final Revised 

Regulations Implementing Titles II and 

III of the ADA, app. 3.I (Sept. 15, 2010), 

available at http://www.ada.gov/

regs2010/RIA_2010regs/ria_

appendix03.htm#ai (last visited July 14, 

2014). 

In dollar terms, operations, 

maintenance, and training costs for 

analog theaters are estimated on an 

annual basis to average from a low of 

$245 for Single Screens to a high of 

$957 for Miniplexes; for digital theaters’ 

operations, maintenance and training 

costs are estimated to average from a 

low of $96 for Single Screens to a high 

of $1,156 for Megaplexes. 

Question 16: The Department invites 

comment on the Initial RA’s 

methodology, cost assumptions, and 

cost estimates, including the specific 

costs of purchasing, installing and 

replacing captioning and audio 

description equipment, and the costs of 

complying with the training and notice 

requirements of the rule. The 

Department is particularly interested in 

receiving comments about the frequency 

with which captioning and audio 

description devices need to be replaced. 

The Department is also interested in 

estimates of how much time it would 

take for theaters to acquire the 

equipment needed to comply with this 

rule. 

3. Benefits—Qualitative Discussion of 

Benefits 

The benefits of this rule are difficult 

to quantify for multiple reasons. The 

Department has not been able to locate 

robust data on the rate at which persons 

with disabilities currently go to movies 

shown in movie theaters. In addition, as 

a result of this rule, the following 

number of persons will change by an 

unknown amount: (1) The number of 

persons with disabilities who will 

newly go to movies, (2) the number of 

persons with disabilities who will go to 

movies more often, (3) the number of 

persons who will go to the movies as 

part of a larger group that includes a 


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45002 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

43The Census defines ‘‘[d]ifficulty seeing’’ as 

‘‘experiencing blindness or having difficulty seeing 

words and letters in ordinary newsprint, even when 

wearing glasses or contact lenses (if normally 

worn).’’ U.S. Census Bureau, U.S. Department of 

Commerce, P70-131, Americans with Disabilities: 

2010 Household Economic Studies at 8 (2012), 

available at http://www.census.gov/prod/2012pubs/ 

p70-131.pdf (last visited July 14, 2014). It defines 

‘‘[d]ifficulty hearing’’ as ‘‘experiencing deafness or 

having difficulty hearing a normal conversation, 

even when wearing a hearing aid.’’ Id. 

44 In 2012, a little more than two thirds (68 

percent) of the U.S. and Canadian population over 

two years old went to a movie at a movie theater 

at least once that year. See Motion Picture 

Association of America, Theatrical Market Statistics 

at 11 (2012), available at http://www.mpaa.org/wpcontent/uploads/2014/03/2012-Theatrical-MarketStatistics-Report.pdf (last visited July 14, 2014). 

person with a disability, and (4) the 

number of persons with disabilities who 

would have gone to the movies anyway 

but under the rule will have a fuller and 

more pleasant experience. In addition, 

the Department does not know precisely 

how many movie theaters currently 

screen movies with closed captioning 

and audio description, or how many 

people with hearing or vision 

disabilities currently have consistent 

access to movie theaters that provide 

closed captioning and audio 

description. Finally, the Department is 

not aware of any peer reviewed 

academic or professional studies that 

monetize or quantify the societal benefit 

of providing closed captioning and 

audio description at movie theaters. 

The individuals who will directly 

benefit from this rule are those persons 

with hearing or vision disabilities who, 

as a result of this rule, would be able for 

the first time to attend movies with 

closed captioning or audio description 

in theaters across the country on a 

consistent basis. Individuals who will 

indirectly benefit from this rule are the 

family and friends of persons with 

hearing and vision disabilities who 

would be able to share the movie-going 

experience more fully with their friends 

or loved ones with hearing and vision 

disabilities. 

Data on movie-going patterns of 

persons who are deaf or hard of hearing 

or are blind or have low vision is very 

limited, making estimations of demand 

very difficult. However, numerous 

public comments suggest that many 

persons who are deaf or hard of hearing 

or are blind or have low vision do not 

go to the movies at all, or attend movies 

well below the national average of 4.1 

annual admissions per person, because 

of the lack of auxiliary aids and services 

that would allow them to understand 

and enjoy the movie. 

Though we cannot confidently 

estimate the likely number of people 

who would directly benefit from this 

proposed rule, we have reviewed data 

on the number of people in the United 

States with hearing and vision 

disabilities. The Census Bureau 

estimates that 3.3 percent of the U.S. 

population has difficulty seeing, which 

translates into a little more than eight 

million individuals in 2010, and a little 

more than two million of those had 

‘‘severe’’ difficulty seeing.43 At the same 

time, the Census Bureau estimates that 

3.1 percent of people had difficulty 

hearing, which was a little more than 

7.5 million individuals in 2010, and 

approximately one million of them had 

‘‘severe’’ difficulty hearing. Not all of 

these people would benefit from this 

proposed rule. For example, some 

people’s hearing or vision disability 

may not be such that they would need 

closed captioning or audio description. 

Some people with hearing or vision 

disabilities may not use the equipment 

for a variety of reasons, including 

finding the equipment uncomfortable to 

use. Some people with hearing or vision 

disabilities may already have consistent 

access to theaters that screen all their 

movies with closed captioning and 

audio description. And some theaters 

may not provide closed captioning and 

audio description for all their movies 

because it would be an undue burden 

under the ADA to do so. Meanwhile, 

some people with hearing or vision 

disabilities would not attend public 

screenings of movies even if theaters 

provided closed captioning and audio 

description simple because they do not 

enjoy going out to the movies—just as 

is the case among persons without 

disabilities.44

In recent years, a large number of 

movie theaters have already invested in 

equipment to provide closed captioning 

and audio description. As noted earlier 

in this NPRM, NATO estimates that 53 

percent of digital screens are already 

captioning and audio description 

enabled. However, this does not 

translate into an estimate that about half 

(or 53 percent) of persons who are deaf 

or hard of hearing or are blind or have 

low vision are now benefiting from 

captioning or audio description. There 

are multiple reasons why, even if we 

accept this estimate of the current 

availability of captioning and audio 

description, that it does not translate 

into direct benefits for all those who 

could benefit. Such reasons include the 

following: (1) Only some screens at 

some theaters may have closed 

captioning and audio description 

capabilities and those may not be 

showing the movie the person wants to 

see, (2) the theater may not be showing 

the desired movie with closed captions 

and audio description on a convenient 

day or at a convenient time, (3) the 

theater may be located much farther 

away from where the person with a 

disability resides than other, less 

accessible theaters, which may result in 

a decision not to go to a movie theater 

at all, or (4) a person may live in a 

community that has theaters with closed 

captioning and audio description 

capability but may travel (for vacation, 

to visit relatives, for work, or other 

reasons) to a community that does not 

have theaters that are captioning and 

audio description enabled. 

Not only is the estimate of the number 

of who might directly benefit from the 

proposed rule uncertain, but the 

individual benefits are not uniform 

because persons who are deaf or hard of 

hearing or are blind or have low vision 

are likely to benefit from this proposed 

rule in different ways and realize 

benefits in different amounts. The type 

and amount of benefits can depend on 

personal circumstances and preferences, 

as well as proximity to movie theaters 

that otherwise would not offer 

captioning or audio description but for 

this proposed rule. Some persons with 

vision and hearing disabilities have 

effectively been precluded from going to 

movies at theaters because the only 

theaters available to them did not offer 

closed captioning or audio description, 

offered open captioning but only at 

inconvenient times (such as the middle 

of the day during the week), or offered 

captioning or audio description for only 

a few films and not for every screening 

of those films. For these persons, the 

primary benefit will be the ability to see 

movies when released in movie theaters 

along with other movie patrons that 

they otherwise would not have had the 

opportunity to do. They will have the 

value of that movie-going experience, as 

well as the opportunity to discuss the 

film socially at the same time as the rest 

of the movie-viewing public. The 

amount of benefit experienced by a 

person with a vision or hearing 

disability who previously had no access 

to a theater that provided closed 

captioning or audio description at all its 

screenings will be different than the 

amount experienced by a person with a 

hearing or vision disability who 

previously had access to a theater that 

did consistently provide closed 

captioning and audio description at its 

screenings. In addition, the amount of 

benefit from this rule experienced by a 

person who cannot follow a movie at all 

without the assistance of closed 

captioning is likely to be greater than 

the amount of benefit experienced by a 

person who can follow parts of a movie 


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without the assistance of closed 

captioning. 

In addition to the direct beneficiaries 

of the proposed rule discussed above, 

others may be indirect beneficiaries of 

this rule. Family and friends of persons 

with these disabilities who wish to go 

to the movies all together as a shared 

social experience will now have greater 

opportunities to do so. More adults who 

visit elderly parents with hearing or 

sight limitations would presumably be 

able to take their parents on outings and 

enjoy a movie at a theater together, 

sharing the experience as they may have 

in the past. 

The Department received numerous 

comments from individuals who are 

deaf or hard of hearing or blind or have 

low vision in response to its 2010 

Advance Notice of Proposed 

Rulemaking on Movie Captioning and 

Video Description in Movie Theaters 

describing how they were unable to take 

part in the movie-going experience with 

their friends and family because of the 

unavailability of captioning or audio 

description. Many individuals felt that 

this not only affected their ability to 

socialize and fully take part in family 

outings, but also deprived them of the 

opportunity to meaningfully engage in 

the discourse that often surrounds 

movie attendance. Parents with 

disabilities also complained that they 

could not answer their children’s 

questions about a movie they saw 

together because the parents did not 

understand what had happened in the 

movie. 

Of perhaps greater significance to the 

discussion of the benefits of this rule, 

however, are issues relating to fairness, 

equity, and equal access, all of which 

are extremely difficult to monetize, and 

the Department has not been able to 

robustly quantify and place a dollar 

value on those benefits. Regardless, the 

Department believes the nonquantifiable benefits justify the costs of 

requiring captioning and audio 

description at movie theaters 

nationwide. 

ANNUALIZED COSTS AND BENEFITS OF PROPOSED RULE

[2015 Dollars, 15-year time horizon] 

7% Discount Rate 3% Discount Rate 

Baseline 1 

assumptions 

(one screen per-theater) 

Baseline 2 

assumptions 

(litigation-based) 

Baseline 3 

assumptions 

(NATO survey based) 

Baseline 1 

assumptions 

(one screen per-theater) 

Baseline 2 

assumptions 

(litigation-based) 

Baseline 3 

assumptions 

(NATO survey based) 

Costs (million $) 

Option 1—Four Year Compliance for Analog Screens 

$24.8 $21.1 $19.5 $23.1 $19.7 $18.3 

Option 2—Deferred Rulemaking for Analog Screens 

$20.4 $16.7 $15.2 $18.9 $15.6 $14.2 

Benefits 

The proposed rule would address the discriminatory effects of communication barriers at movie theaters encountered by 

individuals who are deaf or hard of hearing or are blind or have low vision. By ensuring that movie theaters screen those 

movies that are produced and distributed with the necessary auxiliary aids and services—captioning and audio 

description—and that theaters provide the individual devices needed to deliver these services to patrons with these 

particular disabilities, this rule would afford such individuals an equal opportunity to attend movies and follow both the 

audio and visual aspects of movies exhibited at movie theaters. Although the Department is unable to monetize or 

quantify the benefits of this proposed rule, it would have important benefits. For example, it would provide people with 

hearing and vision disabilities better access to the movie viewing experience enjoyed by others; it would allow such 

persons to attend and enjoy movies with their family members and acquaintances; it would allow people with hearing or 

vision disabilities to participate in conversations about movies with family members and acquaintances; and it would 

promote other hard-to-quantify benefits recognized in Executive Order 13563 such as equity, human dignity, and 

fairness. 

Question 17: The Department invites 

comment on methods and data for 

monetizing or quantifying the societal 

benefits of the proposed regulation, 

including benefits to persons who are 

deaf or hard of hearing or blind or have 

low vision, as well as to other members 

of the movie-going public or other 

entities. For example, the Department 

invites comments on methods and data 

for estimating the number of people 

with vision or hearing disabilities who 

would benefit from this rule, and 

addressing the challenges noted above 

in developing such an estimate, as well 

as comments on methods and data that 

could be used to estimate the value of 

the different types of benefits noted 

above. The Department also invites 

comments on its qualitative discussion 

of the benefits of this rule, which 

include equity, human dignity, and 

fairness. 

B. Regulatory Flexibility Act—Impact on 

Small Businesses 

1. Small Business Threshold 

Assessment—Methodology and 

Summary of Results 

Consistent with the provisions of the 

Regulatory Flexibility Act, the 

Department has also carefully 

considered the likely impact of the 

proposed regulation on small businesses 

in the movie exhibition industry. See 5 

U.S.C. 605(b); Memorandum for the 

Heads of Executive Departments and 

Agencies, Regulatory Flexibility, Small 

Business, and Job Creation, 76 FR 3827 

(Jan. 18, 2011). The Department has 

determined that this proposed rule will 

have a significant economic impact on 

a substantial number of small 

businesses. 

For motion picture theaters, small 

businesses constitute the vast majority 

of firms in the industry. The current size 

standard for a small movie theater 

business is $35.5 million dollars in 

annual revenue. In 2007, the latest year 


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45The size standard of $35.5 million can be found 

in U.S. Small Business Administration, Table of 

Small Business Size Standards Matched to North 

American Industry Classification System Codes at 

28, available at http://www.sba.gov/sites/default/

files/files/Size_Standards_Table.pdf (last visited 

July 14, 2014). 

46Proposed § 36.303(g)(2)(ii) states that ‘‘[m]ovie 

theaters may meet their obligation to provide 

captions to persons with disabilities through use of 

a different technology, such as open movie 

captioning, so long as the communication provided 

is as effective as that provided to movie patrons 

without disabilities.’’ This provision will allow 

theaters the option to choose newer and more cost 

effective technologies to provide effective 

for which detailed breakouts by 

industry and annual revenue are 

available, approximately 98 percent of 

movie theater firms met the standard for 

small business, and these firms 

managed approximately 53 percent of 

movie theater establishments.45 As 

noted earlier, the Department is 

considering two options for analog 

screens. Option 1 would delay the 

compliance date for analog screens for 

four years after publication of the final 

rule. Option 2 would defer rulemaking 

altogether for analog screens until a later 

date. The IRFA estimates for Option 1 

the average initial capital costs per firm 

for firms that display digital or analog 

movies. The average costs for small 

firms are estimated to be between 0.7 

percent to 2.1 percent of their average 

annual receipts for firms with digital 

theaters, and between 2.0 percent to 5.7 

percent of average annual receipts for 

firms with analog theaters. The 

Department has used the IRFA to 

examine other ways, if possible, to 

accomplish the Department’s goals with 

fewer burdens on small businesses. The 

vast majority of theaters with analog 

screens are small businesses and the 

Department believes that both of the 

options for analog screens under 

consideration in the proposed rule will 

result in fewer burdens on small movie 

theater businesses with analog screens. 

2. Initial Regulatory Flexibility Analysis 

a. Summary of Reasons for Proposed 

Regulation 

Because the Department’s rationale 

for proposing these requirements for 

movie captioning and audio description 

have already been discussed in full 

throughout this preamble (see, e.g., 

section II.C, supra), such reasoning is 

merely summarized here. There are, in 

sum, four primary reasons why the 

Department is proposing regulatory 

action at this time. First, for persons 

who are deaf or hard of hearing or blind 

or have low vision, the unavailability of 

captioned or audio-described movies 

inhibits their ability to socialize and 

fully take part in social and family 

outings and deprives them of the 

opportunity to meaningfully participate 

in an important aspect of American 

culture. Second, a significant—and 

increasing—proportion of Americans 

have hearing or vision limitations that 

prevent them from fully and effectively 

understanding movies without auxiliary 

aids such as captioning and audio 

description. Third, technological 

advancements mean not only that an 

ever-increasing number of movie 

theaters have been converted to digital 

cinema systems, but also that such 

theaters can exhibit movies with closed 

captions using commercially-available 

equipment at relatively low cost. And, 

lastly, despite the availability of these 

auxiliary aids and the general ADA 

obligation to provide effective 

communication to patrons with 

disabilities, individuals with disabilities 

in many parts of the United States 

continue to lack access to movies with 

captioning and audio description. 

Movie theaters’ collective compliance 

efforts to date simply have not resulted 

in equal access to movies exhibited at 

theaters nationwide for individuals who 

are deaf or hard of hearing or blind or 

have low vision. The Department is thus 

convinced that regulation is warranted 

at this time to explicitly require movie 

theaters to exhibit movies with closed 

captioning and audio description at all 

times and for all showings whenever 

movies are produced, distributed, or 

otherwise made available with 

captioning and audio description, 

unless to do so would result in an 

undue burden or fundamental 

alteration. This proposed regulation is 

necessary in order to achieve the goals 

and promise of the ADA. 

b. Summary of Objectives of, and Legal 

Basis for, the Proposed Regulation 

The proposed rule for captioning and 

audio description rests on the existing 

obligation of title III-covered facilities— 

such as movie theaters—to ensure that 

persons with disabilities receive ‘‘full 

and equal enjoyment’’ of their 

respective goods and services, 

including, as needed, the provision of 

auxiliary aids and services for persons 

who are deaf or hard of hearing or blind 

or have low vision. The proposed rule 

states that a movie theater owner or 

operator is required to exhibit movies 

with closed captioning and audio 

description for all screenings so long as 

the movie has been produced by the 

movie studio or distributor with 

captioning or audio description (unless 

doing so would result in an undue 

burden or fundamental alteration). The 

proposed rule imposes no independent 

obligation on movie theaters to provide 

captions and audio description if the 

movie is not available with these 

features. 

The Department expects that 

implementation of the proposed rule 

will lead to consistent levels of 

accessibility in movie theaters across 

the country, and that patrons who are 

deaf or hard of hearing or blind or have 

low vision will be able to use captioning 

or audio description equipment to better 

understand movies being exhibited in 

movies theaters. 

The legal basis for the Department’s 

proposed regulation—discussed at 

length in other parts of this preamble 

(see section II.B, supra)—rests on both 

title III of the ADA and its existing 

implementing regulation. Title III 

prohibits public accommodations, 

which, by statutory definition, include 

movie theaters, from discriminating 

against any individual on the basis of 

disability in the full and equal 

enjoyment of their goods and services. 

42 U.S.C. 12182(a). Further, of 

particular import to the proposed 

regulation, title III also requires public 

accommodations to take whatever 

affirmative steps may be necessary ‘‘to 

ensure that no individual with a 

disability is excluded, denied services, 

segregated or otherwise treated 

differently * * * because of the absence 

of auxiliary aids and services’’ absent a 

showing of fundamental alteration or 

undue burden by such public 

accommodation. 42 U.S.C. 

12182(b)(2)(A)(iii). 

The Department’s recently-revised 

title III regulation reiterates these 

statutory requirements—which were 

first incorporated into the implementing 

regulation in 1991—and emphasizes 

that the overarching obligation of a 

public accommodation is to ensure 

effective communication with 

individuals with disabilities through the 

provision of necessary auxiliary aids 

and services. 28 CFR 36.303(c). While 

the type of auxiliary aid or service 

necessary to ensure effective 

communication depends on several 

factors, including the method of 

communication used by the individual 

and the communication involved, 

closed captioning and audio recordings 

are specifically referenced as aids or 

services contemplated by the rule. 28 

CFR 36.303(b)(1), (2). Here, in the 

context of movie screenings at movie 

theaters, captioning is the only auxiliary 

aid presently available that effectively 

communicates the dialogue and sounds 

in a movie to individuals who are deaf 

or whose hearing impairments 

otherwise preclude effective use of 

assistive listening systems.46 Likewise, 


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communication to movie patrons, if such 

technologies are developed in the future. 47The size standard of $35.5 million can be found 

in U.S. Small Business Administration, Table of 

Small Business Size Standards Matched to North 

American Industry Classification System Codes at 

28, available at http://www.sba.gov/sites/default/

files/files/Size_Standards_Table.pdf (last visited 

July 14, 2014). 48 Data taken from Excel file ‘‘static_us’’ 

downloaded from SBA Web site for ‘‘Firm Size 

Data,’’ available at http://www.sba.gov/advocacy/

849/12162 (last visited July 14, 2014). Calculations 

were also performed using a dataset from the 

Census Bureau’s American FactFinder. See http:// 

factfinder2.census.gov/faces/nav/jsf/pages/

index.xhtml (last visited July 14, 2014). Both 

datasets are derived from the 2007 Economic 

Census, but differ slightly. 

for individuals who are blind or who 

have low vision, the only auxiliary aid 

presently available that effectively 

communicates the visual components of 

a movie is audio description. 

c. Estimated Number and Type of Small 

Entities in the Movie Exhibition 

Industry 

The Regulatory Flexibility Act defines 

a ‘‘small entity’’ as a small business (as 

defined by the Small Business 

Administration Size Standards) or a 

small organization such as a nonprofit 

that is ‘‘independently owned and 

operated’’ and is ‘‘not dominant in its 

field.’’ 5 U.S.C. 601(6); see id. 601(3) 

and (4); 15 U.S.C. 632. For motion 

picture theaters (North American 

Industry Classification System Code 

512131), small businesses constitute the 

vast majority of firms in the industry. 

The current size standard for a small 

movie theater business is $35.5 million 

dollars in annual revenue.47 In 2007, the 

latest year for which detailed breakouts 

by industry and annual revenue are 

available, approximately 98 percent of 

movie theater firms met the standard for 

small business, and these firms 

managed approximately 53 percent of 

movie theater establishments. Data from 

the 2007 Economic Census, prepared for 

the Small Business Administration 

(SBA) and downloaded from its Web 

site, report that 2,004 movie theater 

firms operated 4,801 establishments that 

year; of those 2,004 movie theater firms, 

approximately 1,965 would meet the 

current SBA standard for a small 

business.48 These 1,965 firms operated 

2,566 establishments. 

DISTRIBUTION OF MOVIE THEATER FIRMS, BY REVENUE, 2007 

Number of firms Number of 

establishments 

Firms as % of 

total 

Cumulative total 

(%) 

Establishments 

% of total 

Cumulative total 

(%) 

Total Firms ....................... 2,004 4,801 100 ............................ 100 ............................

Firms with sales/receipts/

revenue less than 

$100,000 ....................... 333 333 16.6 16.6 6.9 6.9 

Firms with sales/receipts/

revenue of $100,000 to 

$499,999 ....................... 703 712 35.1 51.7 14.8 21.8 

Firms with sales/receipts/

revenue of $500,000 to 

$999,999 ....................... 318 339 15.9 67.6 7.1 28.8 

Firms with sales/receipts/

revenue of $1,000,000 

to $2,499,999 ............... 386 472 19.3 86.8 9.8 38.7 

Firms with sales/receipts/

revenue of $2,500,000 

to $4,999,999 ............... 109 197 5.4 92.3 4.1 42.8 

Firms with sales/receipts/

revenue of $5,000,000 

to $7,499,999 ............... 40 99 2.0 94.3 2.1 44.8 

Firms with sales/receipts/

revenue of $7,500,000 

to $9,999,999 ............... 24 60 1.2 95.5 1.2 46.1 

Firms with sales/receipts/

revenue of $10,000,000 

to $14,999,999 ............. 23 106 1.1 96.6 2.2 48.3 

Firms with sales/receipts/

revenue of $15,000,000 

to $19,999,999 ............. 13 105 0.6 97.3 2.2 50.5 

Firms with sales/receipts/

revenue of $20,000,000 

to $24,999,999 ............. 6 50 0.3 97.6 1.0 51.5 

Firms with sales/receipts/

revenue of $25,000,000 

to $29,999,999 ............. 8 79 0.4 98.0 1.6 53.2 

Firms with sales/receipts/

revenue of $30,000,000 

to $34,999,999 ............. 2 14 0.1 98.1 0.3 53.4 

Firms with sales/receipts/

revenue of 

$35,000,000+* .............. 39 2,235 1.9 100.0 46.6 100.0 

* Firms with sale/receipts/revenue of higher than $35,500,000 are not considered small businesses under SBA size standards. The SBA database presents data for these firms in six categories, which have been consolidated into one for this table. 

Source: Number of firms and number of establishments from Small Business Administration, Statistics of U.S. Businesses, Business Dynamics 

Statistics, Business Employment Dynamics, and Nonemployer Statistics. http://www.sba.gov/advocacy/849/12162 (last visited July 14, 2014). 

Downloaded from SBA Web site December 2013. 


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49See 5 U.S.C. 601 et seq. 

50The Small Business Size Regulations can be 

found at 13 CFR part 121. 

As part of a larger movement within 

the film producing industry, nearly all 

(if not all) film production is moving to 

digital, and the vast majority of, if not 

nearly all, movie theaters likely will 

convert to the digital format. Because of 

the cost of transitioning to digital, large 

firms are more likely to have already 

converted to digital, or plan to do so 

soon. For these same reasons, analog 

theaters are more likely to be small 

businesses. At the same time, per screen 

costs of captioning equipment are 

significantly higher for analog theaters 

than for digital theaters. 

While the first movie theaters were 

facilities with a single screen and 

auditorium, in recent years larger 

facilities are being built, some with a 

dozen or more auditoriums and screens 

each capable of showing movies at the 

same time. Yet, at this time, many single 

screen theaters remain open. The Initial 

RA prepared detailed costs estimates, 

over time, using four theater size 

categories based on data presented by 

the MPAA. To estimate the costs to 

small businesses, this IRFA examined 

the percentages of small businesses and 

the distribution of theaters and screens 

by theater size type, and made 

estimations regarding the likely 

prevalence of small businesses among 

each size type (see the table below). No 

Megaplexes are expected to be small 

businesses. 

THEATERS BY TYPE AND ESTIMATED PREVALENCE OF SMALL BUSINESSES

Theater type 

Projected 

number of 

theaters in 

2015 

Annual 

growth rate 

(percent) 

Likelihood of small businesses 

Megaplex—16+ screens .................................................................................... 718 2.0 No small businesses. 

Multiplex—8–15 screens .................................................................................... 1,893 2.0 Some small businesses. 

Miniplex—2–7 screens ....................................................................................... 1,500 ¥4.2 Many small businesses. 

Single Screen—1 screen ................................................................................... 996 ¥4.2 Nearly all small businesses. 

Total ............................................................................................................ 5,107 

Source: Estimated using data for 2008–2012 as in MPAA, Theatrical Market Statistics (2012), available at http://www.mpaa.org/wp-content/

uploads/2014/03/2012-Theatrical-Market-Statistics-Report.pdf (last visited July 14, 2014). 

ESTIMATES OF DIGITAL AND ANALOG THEATERS AND SCREENS IN 2015 

Number of 

digital theaters 

Number of 

digital screens 

Number of 

analog 

theaters 

Number of 

analog 

screens 

Megaplex—16+ screens .................................................................................. 718 12,924 0 0 

Multiplex—8–15 screens ................................................................................. 1,893 20,823 0 0 

Miniplex—2–7 screens .................................................................................... 452 1,807 1,048 4,192 

Single Screen—1 screen ................................................................................. 300 300 696 696 

Total .......................................................................................................... 3,363 35,854 1,744 4,888 

The proposed rule does not apply 

different requirements to firms by size. 

It does, however, seek public comment 

on two options for theaters with analog 

screens. Option 1 would delay the 

compliance date for analog screens for 

four years after publication of the final 

rule. Option 2 would defer rulemaking 

altogether for analog screens until a later 

date. As stated previously, the vast 

majority of theaters with analog screens 

are small businesses, and the 

Department believes that both of the 

options for analog screens under 

consideration in the proposed rule will 

result in fewer burdens on small movie 

theater businesses with analog screens. 

While this small business assessment 

necessarily draws on the Initial RA’s 

‘‘main’’ cost model, it also incorporates 

data specific to small businesses. As 

required by the Regulatory Flexibility 

Act,49 the cost model underlying the 

Initial RA’s small business assessment 

uses SBA-defined small business size 

standards.50 A dataset downloaded from 

SBA’s Web site presents data for 18 

different revenue size categories (12 of 

those categories for firms with estimated 

annual receipts of less than the $35.5 

million size standard for a small firm in 

this industry). These 18 revenue size 

categories were consolidated into four 

categories, with the following three 

meeting the SBA size standard for a 

small business: Firms with sales/

receipts/revenue of (a) $499,999 and 

under; (b) $500,000–$4,999,999; and (c) 

$5,000,000–$35,500,000. One of the 18 

revenue categories in the SBA dataset 

(firms with sales/receipts/revenue of 

$30,000,000–$34,999,999) had only two 

firms included. To prevent the release of 

proprietary financial information, the 

SBA dataset only includes the number 

of firms and their establishments in this 

category; it does not include any 

information on sales, receipts or 

revenues. Therefore, while the estimate 

of the total number of small businesses 

that could be impacted by the proposed 

rule includes these two firms, the 

calculations for costs of compliance by 

revenue category do not. 

Question 18a: Numbers of Small 

Businesses 

The Department is interested in 

receiving comments and data on all of 

the assumptions regarding the numbers 

of small entities impacted by this 

regulation, particularly on the numbers 

of small entities that have digital or 

analog screens (or both), the number of 

screens in each theater, the type of 

movies shown at these theatres (first-run 

commercial films, independent films, 

etc.), and the type of captioning 

equipment and devices these theatres 

already have. The Department is 

particularly interested in data regarding 

small analog theatres, such as the 

availability of analog film prints, the 

availability of movies with captions and 

audio description (in both analog and 

digital formats), the rate at which small 

theatres are converting to digital 

cinema, and the economic viability of 


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51This estimate of costs for small businesses 

assumes that the Department would proceed under 

Option 1 (four-year compliance date for analog 

screens). If the Department decides to adopt Option 

2 for the final rule and defer application of the 

requirements of the rule for analog screens, the 

costs for small businesses will be significantly less 

because the rule will only apply to small business 

digital theaters. 

52The distribution is slightly different using the 

dataset from American FactFinder: For firms with 

revenue $499,999 and under, 100 percent were 

assumed to be Single Screen; for those with revenue 

$500,000-$4,999,999, 7 percent were Single Screens 

and 93 percent Miniplexes; for those with revenue 

$25,000,000 to $35,500,000, 79 percent were 

Miniplexes and 21 percent Multiplexes. 

both small analog and small digital 

theatres. The Department would also be 

interested in data on the number of 

analog and digital theaters by theater 

type and annual receipts. Finally, the 

Department is interested in whether and 

to what extent small analog and small 

digital theaters are participating in 

certain cost-sharing programs to help 

convert theaters to digital technology, 

such as a virtual print fee (VPF) 

program. If they are not participating in 

such cost-sharing programs, why not? 

(See Question 1 for additional questions 

about analog theatres). 

Question 18b: Numbers of Small 

Nonprofit Entities 

The Department seeks comment and 

data on small nonprofits that operate 

theatres that would be covered by this 

proposed rule, particularly on the 

number of small entities in this 

category, and the potential costs and 

economic impacts of the proposed rule. 

Should the Department adopt a 

different compliance schedule for these 

theaters? 

d. Estimated Cost of Compliance for 

Small Entities 51

The SBA/U.S. Economic Census data 

was incorporated into the Initial RA’s 

estimation for impacts on small 

businesses. First, receipt data was used 

to develop assumptions regarding the 

distribution of ‘‘small businesses’’ 

among the four theater size types. The 

assignment of theater size type is critical 

to the estimation because it determines 

the number of screens and, therefore, 

total costs per establishment. 

Using the Initial RA cost model 

estimation of the number of theaters by 

size type in 2015, the IRFA distributed 

the number of establishments of small 

business movie theater firms beginning 

with all Single Screen establishments 

and then applied the remaining portion 

to Miniplex and Multiplex 

establishments. 

2015 DISTRIBUTION OF THEATERS

[Model projection] 

Theater size type Number of 

theaters Percentage 

Megaplex ................................................................................................................................................................. 718 14.1 

Multiplex ................................................................................................................................................................... 1,893 37.1 

Miniplex .................................................................................................................................................................... 1,500 29.4 

Single Screen .......................................................................................................................................................... 996 19.5 

Total .................................................................................................................................................................. 5,107 100 

For this distribution, Single Screen 

theaters made up 89.6 percent of 

establishments in the smallest revenue 

category. The remaining establishments 

in this category were assumed to be 

Miniplexes. All of the establishments 

with receipts between $500,000 and 

$4,999,999 were assumed to be 

Miniplex theaters. After allocating those 

theaters, the remaining Miniplex 

theaters estimated for 2015 were 

distributed to the largest revenue 

category. Because there were more 

theaters in the largest revenue category 

than the remaining estimated Miniplex 

theaters, the other theaters in this 

revenue category were assumed to be all 

Multiplexes (approximately 41 percent). 

These distributions are summarized 

below. These distributions were then 

used to estimate the average cost per 

firm in each of the three consolidated 

small business revenue categories. 

DISTRIBUTION OF THEATER SIZE TYPE

FOR CONSOLIDATED REVENUE GROUPS

Consolidated revenue 

group 52 Theater size type 

$499,999 and under .. 89.6% Single Screen, 

10.4% Miniplexes. 

$500,000–$4,999,999 100% Miniplexes. 

$5,000,000 to 

$35,500,000.

58.8% Miniplexes; 

41.2% Multiplexes. 

THEATER EQUIPMENT REQUIREMENTS BASED ON SCOPING AND THEATER SIZE

Equipment 

Megaplex 

Avg: 18 

screens 

Multiplex 

Avg: 11 

screens 

Miniplex 

Avg: 4 

screens 

Single 

screen 

Captioning Hardware and Devices: 

Captioning Hardware Needed .................................................................................. 18 11 4 1 

Captioning Devices Needed ..................................................................................... 34 28 12 4 

Descriptive Listening Hardware and Devices: 

Audio Hardware Needed .......................................................................................... 18 11 4 1 

Audio Devices Needed ............................................................................................. 18 11 4 2 

Using the average costs per theater 

developed in the Initial RA, we were 

able to calculate the average costs per 

theater and per firm for the three 

consolidated revenue groups ($499,999 

and under; $500,000–$4,999,999; and 

$5,000,000–$35,500,000). Costs were 

first calculated on a per-establishment 

basis, and then using the average 

number of establishments per firm for 

each of the three consolidated revenue 

groups, translated into an average per 


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firm cost. This cost was then compared 

to the average receipts per firm for that 

consolidated revenue group. 

The resulting ratio of average costs to 

average receipts ranges from a low of 0.7 

percent (for digital firms with revenues 

of $5,000,000 to $35,500,000) to a high 

of 5.7 percent (for analog firms with 

revenues of $499,999 or less). The 

impact on firms with digital projection 

is comparatively smaller than the 

impact on firms maintaining analog 

projection. The ratio of average costs/

receipts is estimated to range from 0.7 

percent to 2.1 percent for all movie 

theater companies using digital systems. 

In contrast, the same ratio ranges from 

2.0 percent to 5.7 percent for all firms 

using analog projection. 

ESTIMATION OF COSTS FOR SMALL MOVIE THEATERS, BY FIRM SIZE, BASED ON 2015 SIZE/REVENUE DISTRIBUTION

Cost Firms $499,999 and 

under Firms $500,000 to $4,999,999 Firms $5,000,000 to $35,500,000 ** 

Digital 

Average receipts per firm * .............................. $188,384 to $201,973 $1,471,549 to $1,484,995 $9,705,377 to $12,437,259

Average cost per theater * ............................... $3,198 to $3,966 $10,063 to $10,586 $13,984 to $17,281 

Average cost per firm * .................................... $3,233 to $3,992 $12, 539 to $14,454 $81,176 to $103,309 

Ratio of average cost/receipts * ....................... 1.6% to 2.1% 0.8% to 1.0% 0.7% to 1.1% 

Analog 

Average receipts per firm * .............................. $188,384 to $201,973 $1,471,549 to $1,484,995 $9,705,377 to $12,437,259

Average cost per theater * ............................... $8,172 to $10,638 $30,204 to $31,884 $43,449 to $54,673 

Average cost per firm * .................................... $8,263 to $10,706 $37,638 to $43,534 $252,224 to $326,844 

Ratio of average cost/receipts * ....................... 4.1% to 5.7% 2.5% to 3.0% 2.0% to 3.4% 

* The ranges represent the figures calculated using the two datasets created from data from the 2007 Economic Census, which breaks out 

data by revenue category (downloaded from SBA’s Web site (http://www.sba.gov) and the Census Bureau’s American FactFinder Web site 

(http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml), respectively), but which differ slightly. Note that the composition of theater size 

types also varies per revenue group depending on the dataset used, and therefore the average cost per theater varies as well. 

** Note that the calculations for this category using the dataset downloaded from the SBA Web site do not include any data for the two firms in 

the revenue category for firms with sales/receipts/revenue of $30,000,000–$34,999,999 because no data on annual receipts for those two firms 

was included. The dataset downloaded from American FactFinder had different revenue categories from those downloaded from SBA’s Web site. 

To estimate those firms meeting the SBA size standards using the dataset downloaded from the American FactFinder Web site, all the firms with 

revenues less than $25 million, and half of those with revenues from $25,000,000 to $49,999,999 were counted as a way of estimating the number of entities that fall under $35.5 million within that revenue category. 

Average capital costs per theater type 

were estimated by multiplying the 

number of screens by the required 

analog or digital equipment and the 

scoped number of devices. These 

average costs are presented below. 

ESTIMATED AVERAGE RECEIPTS AND COSTS PER FIRM, DIGITAL AND ANALOG

Digital Analog 

Size of firms 

($) 

Average 

receipts 

per firm 

Average cost 

per theater 

Average cost 

per firm 

Ratio of 

average 

cost/receipts 

(percent) 

Average 

receipts 

per firm 

Average cost 

per theater 

Average cost 

per firm 

Ratio of 

average 

cost/receipts 

(percent) 

Less than $100,000 .......... $52,264 $3,198 $3,198 6.1 $52,264 $8,172 $8,172 15.6 

$100,000–499,000 ............ 252,862 4,326 4,381 1.7 252,862 11,791 11,942 4.7 

$500,000–999,000 ............ 711,456 10,586 11,285 1.6 711,456 31,884 33,990 4.8 

$1,000,000–2,499,000 ...... 1,581,824 10,586 12,945 0.8 1,581,824 31,884 38,988 2.5 

$2,500,000–4,999,000 ...... 3,298,550 10,586 19,132 0.6 3,298,550 31,884 57,625 1.7 

$5,000,000–7,499,000 ...... 5,888,575 10,586 26,200 0.4 5,888,575 31,884 78,913 1.3 

$7,500,000–9,999,000 ...... 7,954,042 10,586 26,465 0.3 7,954,042 31,884 79,710 1.0 

$10,000,000–14,999,000 .. 9,927,478 10,586 48,788 0.5 9,927,478 31,884 146,944 1.5 

$15,000,000–19,999,000 .. 14,045,000 22,436 181,213 1.3 14,045,000 72,219 583,306 4.2 

$20,000,000–24,999,000 .. 16,288,167 26,839 223,658 1.4 16,288,167 87,206 726,717 4.5 

$25,000,000–29,999,000 .. 21,415,875 26,839 265,035 1.2 21,415,875 87,206 861,159 4.0 

Based on data from Small Business Administration, Statistics of U.S. Businesses, Business Dynamics Statistics, Business Employment Dynamics, and Nonemployer Statistics, available at http://www.sba.gov/advocacy/849/12162 (data downloaded Dec. 2013). See Table 38 in the Initial Regulatory Assessment and Initial 

Regulatory Flexibility Analysis (available at http://www.ada.gov) for more information on how the figures in this table were calculated. 

DIGITAL CAPTIONING EQUIPMENT UNIT COSTS

Technology 

Digital captioning 

hardware cost 

(one needed per screen) 

Digital captioning 

individual device costs 

(multiple per screen/ 

theater may be needed) 

Digital audio description 

hardware cost 

(one needed per screen) 

Digital audio description 

individual device costs 

(multiple per screen/ 

theater may be needed) 

Doremi’s CaptiView ......................... $690 $430 $625 $125 

USL .................................................. 1,057 479 0 69 


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53The hardware required for Rear Window 

technology includes a LED display necessary to 

show captions in each analog projection 

auditorium, a Datasat/DTS XD20 interface, and 

individual Reflectors that are used by patrons. The 

cost for the LED display ranges from $2,850 to 

$3,975, depending on whether it is a 2- or 3-line 

display (a 2-line display is recommended); the LED 

display cost used in Regulatory Analysis is an 

average of the cost of the two sizes of display. The 

Datasat/DTS XD20 interface, which is an interface 

connecting the Rear Window LED display to the 

theater system, costs about $4,200 per auditorium. 

The only device for individual use is the Rear 

Window Reflector, which fits into cup holders and 

costs $95 each. (Note: all these prices are taken from 

the ‘‘Rear Window® Captioning (RWC) Components 

Cost Overview’’ released by Median Access Group 

at WGBH August 2010, and adjusted for the fact 

that licensing fees are no longer required.) For 

audio description, the Williams Sound Audio 

System is compatible with analog captioning 

systems and was used to estimate video description 

equipment costs for analog systems. The Williams 

Sound Audio System requires an audio transmitter 

for each auditorium, which costs $467. Patrons may 

use a receiver and a headset, which cost $88 and 

$18, respectively. 

54Note that in the main Initial RA, all of the 

Megaplexes and Multiplexes are assumed to have 

converted to digital projection. This assumption 

was made because NATO had estimated at a 

Congressional hearing in May 2013 that 88 percent 

of screens in the nation now have digital projection, 

making it very unlikely that any large theater 

complex remains analog. If any Megaplexes and/or 

Multiplexes stayed with analog projection, their 

average costs for purchasing analog closed 

captioning and audio description equipment would 

be $141,578 and $87,206, respectively. 

ANALOG CAPTIONING EQUIPMENT UNIT COSTS

Technology 

Analog captioning 

hardware cost 

(one per screen needed) 

Analog captioning 

device costs 

(multiple per screen/ 

theater may be needed) 

Analog audio description 

hardware cost 

(one per screen needed) 

Analog audio description 

device costs 

(multiple per screen/ 

theater may be needed) 

Rear Window 53 ................................ $7,113 $95 $467 $106 

AVERAGE PER ESTABLISHMENT COSTS OF PURCHASING DIGITAL CLOSED CAPTIONING AND AUDIO DESCRIPTION

EQUIPMENT

Cost per digital theater Doremi USL Average digital 

cost 

Megaplex * ................................................................................................................................... $40,540 $36,554 $38,547 

Multiplex ....................................................................................................................................... 27,880 25,798 26,839 

Miniplex ........................................................................................................................................ 10,920 10,252 10,586 

Single Screen .............................................................................................................................. 3,285 3,111 3,198 

* Note that the Initial RA assumes that no small business firm has Megaplexes; this data is presented for informational purposes only, to help 

illustrate the differences in average costs per digital theaters by type. 

AVERAGE PER ESTABLISHMENT COSTS

OF PURCHASING ANALOG CLOSED

CAPTIONING AND AUDIO DESCRIPTION EQUIPMENT

Cost per analog theater 54 Rear window 

Megaplex .............................. ** 

Multiplex ................................ ** 

Miniplex ................................. $31,884 

Single Screen ....................... $8,172 

** Note that the Initial RA assumes that all 

Megaplexes and Multiplexes have transitioned 

to digital projection systems by the time this 

rule goes into effect. 

Question 19: Small Business 

Compliance Costs 

The Department seeks comment and 

data on the small business compliance 

cost estimates, including the costs 

associated with procuring and 

maintaining digital and analog 

equipment, the availability of this 

equipment, estimates of the average cost 

of this proposed rule by establishment 

and firm, and the ratio of average costs 

of this proposed rule to firm receipts. 

The Department is interested in 

comment on whether small theaters will 

incur higher prices in the purchase and 

installation of this equipment due to the 

lower volume needed. The Department 

also seeks public comment on its 

proposed scoping for individual 

captioning devices. Should the 

Department consider approaching 

scoping differently for small theatres? 

How so and why? (Please see Question 

10 for additional questions about 

scoping for captioning devices). How 

many devices capable of transmitting 

audio description to individuals should 

each movie theater have on hand for use 

by patrons who are blind or have low 

vision? (Please see Question 12 for 

additional questions about scoping for 

audio description). Do small theaters 

face any additional costs not already 

included in these cost estimates? The 

Department seeks comment and data on 

what, if any, particular requirement of 

this rule would cause a small business 

to claim that it is an undue burden to 

comply with the requirements of this 

proposed rule. 

e. Projected Reporting, Record-Keeping 

Requirements and Other Compliance 

Requirements of the Rule 

As noted below in section VI.F, 

discussing the Paperwork Reduction 

Act, the proposed regulation imposes no 

reporting or record-keeping 

requirements on any movie theaters 

regardless of size. The Department 

acknowledges that there may be other 

compliance-related administrative costs 

incurred by all movie theaters— 

including small entities—as a result of 

the proposed regulation, including such 

tasks as having theater staff keep track 

of individual captioning devices or 

audio description headsets. However, 

such compliance costs are expected to 

be neither disproportionately borne by 

small entities nor significant. The 

proposed scoping requirements for 

individual captioning devices are 

directly proportional to total seat count 

or screen. The proposed scoping for 

individual audio-description devices is 

minimal and only applies to those 

theaters that do not currently have 

assistive listening receivers with at least 

two channels. Thus, smaller movie 

theaters (such as Miniplexes and Single 

Screen Theaters) necessarily would 

have relatively few pieces of required 

captioning and audio description 

equipment to inventory and maintain. 

Moreover, any costs related to such 

administrative tasks are expected to be 

minimal. The Department has also 

asked whether it should take a different 

approach to scoping for individual 

captioning devices for small theaters. 

The rule will require that at least one 

person at the theater be able to provide 


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55See id. app. I: Operations and Maintenance, for 

more information on standard operations and 

maintenance costs, and the sources from which 

those were derived. 

56See the Initial RA, Section 7 for the Sensitivity 

Analysis with two alternative rates—5 percent and 

8 percent—for calculating operations and 

maintenance costs. 

57While the number of public comments received 

in response to the 2010 ANPRM was extraordinary, 

there were relatively few comments that specifically 

addressed the impact of captioning requirements on 

small theaters. No comments were received from 

representatives of independent movie theaters or 

from individual small (indoor) movie theater 

patrons with captioning and audio 

description and direct patrons on the 

equipment’s use. This requirement can 

most easily be met by expanding the 

training for those persons who will 

already be required to be on-site to 

manage or oversee overall operations 

and the start of the exhibition of the 

movies. In addition, theaters already 

provide staff to distribute assistive 

listening devices when requested by 

patrons and to direct patrons on how to 

use those devices. It is reasonable to 

assume that the same staff member 

would provide assistance with 

captioning and audio description 

devices as well. A separate staff with 

ADA expertise is not required. The costs 

of this part of the rule will include any 

additional training time and any time 

spent providing and collecting devices 

and demonstrating their use, if needed. 

The Initial RA uses a value equivalent 

to 3 percent of all the captioning and 

audio description equipment owned by 

the theater to capture the aforediscussed minimal operations and 

maintenance cost and incremental 

increase to staff time; costs of adding 

information that captioning or audio 

description is available when preparing 

communications regarding movie 

offerings, and other potential increases 

in administrative costs. This 3 percent 

is a factor commonly used in 

construction and equipment 

maintenance. See, e.g., Final Regulatory 

Impact Analysis of the Proposed 

Revised Regulations Implementing 

Titles II and III of the ADA, Including 

Revised ADA Standards for Accessible 

Design: Supplemental Results (Sept. 15, 

2010), available at http://www.ada.gov/ 

regs2010/RIA_2010regs/ria_supp.htm 

(last visited July 14, 2014).55 The 

Department expects that annual 

operations, maintenance, and training 

costs for analog theaters are estimated to 

average from a low of $245 for Single 

Screens to a high of $957 for 

Miniplexes; for digital theaters’ 

operations, maintenance and training 

costs are estimated to average from a 

low of $96 for Single Screens to a high 

of $1,156 for Megaplexes.56

Question 20: Other Costs for Small 

Businesses 

The Department invites comment on 

the estimation of operation and 

maintenance costs for this proposed 

rule, which include administrative costs 

to keep track of equipment, staff 

training and availability (see Question 

15 for additional questions related to 

staff training), maintenance and 

replacement of captioning and audio 

description hardware and individual 

devices, and the notice requirement (see 

Questions 14 and 16 for additional 

questions about the notice requirement). 

The Department is particularly 

interested in receiving comments about 

the costs and frequency of replacing 

captioning and audio description 

equipment. Are there other compliance 

costs, such as regulatory familiarization, 

that should be included in this small 

business analysis? 

f. Duplicative or Overlapping Federal 

Rules 

The Department is not aware of any 

existing federal regulations that impose 

duplicative, overlapping, or conflicting 

requirements relative to the 

requirements in the proposed movie 

captioning and audio description 

regulation. 

g. Discussion of Significant Regulatory 

Alternatives That Minimize Impact on 

Small Entities 

In crafting this proposed regulation 

for movie captioning and audio 

description, the Department has taken 

care to propose requirements that 

temper effectiveness with cost 

considerations. That is, while the 

Department believes this regulatory 

action is required to support and 

enforce the ADA’s effective 

communication mandate, the proposed 

requirements also are intended to 

regulate in a manner that is costefficient, easily understood by the 

movie exhibition industry, and—to the 

greatest extent possible—minimizes the 

economic impact on small entities. 

As detailed earlier in this preamble 

(see section IV, Section-by-Section 

Analysis, ‘‘Movie Captioning— 

Coverage, supra), the Department is 

proposing that all movie theaters 

covered by the rule, regardless of size, 

location, or type of movies exhibited, 

must exhibit captioned or audiodescribed movies (when available) for 

all screenings absent a showing of 

undue burden. Only such an across-theboard requirement fulfills the effective 

communication objective by permitting 

individuals who are deaf or hard of 

hearing or blind or have low vision 

disabilities to fully and equally 

participate in one of the most 

quintessential forms of American 

entertainment—going out to the 

movies—in the same manner as the rest 

of the movie going public. 

Yet, while the proposed regulation 

imposes captioning and audio 

description requirements on all movie 

theaters irrespective of size, there are 

nonetheless several provisions that 

serve to ameliorate their relative 

economic impact on small entities. For 

example, the Department’s regulatory 

proposal: 

• Proposes two alternatives for 

theaters with analog screens: A fouryear delayed compliance date (Option 

1), or deferral of the requirements of this 

proposed rule for analog screens 

(Option 2); 

• Establishes performance (rather 

than design) standards that enable small 

entities (as well as other movie theaters) 

to meet their captioning requirements in 

a flexible and cost-effective manner 

(§ 36.303(g)(2)(i)); 

• Specifies scoping requirements for 

individual captioning devices that are 

proportional to a theater’s total seat 

count (i.e., fewer seats means fewer 

devices are required), thereby ensuring 

that small theaters have reduced device 

costs (§ 36.303(g)(2)(iii)(A), (g)(3)(ii)); 

• Specifies a minimal number of 

individual audio-description listening 

devices that must be provided by a 

theater and permits ‘‘overlap’’ of 

scoping for audio-description listening 

devices and assistive listening headsets 

so long as such headsets are capable of 

receiving both types of audio signals 

(§ 36.303(g)(3)(ii)). 

Moreover, while not expressly 

referenced in the text of proposed 

§ 36.303(g), the Department has 

reiterated—at several points in this 

preamble—that those movie theaters 

that find that it is a significant difficulty 

or expense to comply with the 

requirements of this regulation will be 

able to assert the ‘‘undue burden 

defense’’ (see section II.B.2 supra, for an 

explanation of the factors that should be 

considered in asserting the defense). 

Throughout the last two decades, even 

without this regulation, movie theaters 

have been able to assert this defense 

when facing litigation alleging failure to 

provide effective communication to 

patrons with disabilities. Thus, while a 

large movie theater trade association 

suggested that many—if not most— 

small theaters would be forced out of 

business unless exempted entirely from 

any captioning requirements, the 

Department believes that such dire 

predictions are misplaced.57 The 


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operators other than representatives of drive-in 

theaters (which are not covered by this rule). The 

referenced comment from the movie theater trade 

association is the only comment by representatives 

of the theatrical or movie exhibition industry to 

address the potential impact of the captioning 

regulation on small theaters affected by this rule. 

‘‘undue burden’’ defense serves as a 

limit should there be regulatory 

compliance costs that under particular 

circumstances would impose significant 

difficulty or expense. Where the costs of 

screening closed-captioned or audiodescribed movies in compliance with 

the proposed regulation are sufficiently 

burdensome as to place a small theater 

at financial risk, then such costs 

would—by definition—pose an ‘‘undue 

burden.’’ Such a movie theater would 

then be entitled to provide alternate 

compliance measures for auxiliary aids 

or services (if any) that were affordable 

in light of its particular circumstances. 

Taken together, the foregoing 

considerations demonstrate the 

Department’s sensitivity to the potential 

economic (cost) impact of the proposed 

regulation on small theaters (such as 

Miniplexes and Single Screen Theaters) 

and—to the extent consistent with the 

ADA—mitigate potential compliance 

costs. 

In addition, the Department 

considered multiple alternatives for this 

rulemaking with a focus on choosing the 

alternative that best balances the 

requirements of the ADA with the 

potential costs to small business movie 

theaters. Among those alternatives 

weighed most heavily for the proposed 

rule are the two discussed below. 

Requiring only 50 percent of screens 

to have closed captioning and audio 

description. The Department considered 

a proposal limiting the requirement for 

closed captioning and audio description 

to only 50 percent of movie screens. 

This alternative was discussed in the 

July 26, 2010, ANPRM. The ADA 

requires places of public 

accommodation ‘‘to ensure that no 

individual with a disability is excluded, 

denied services, segregated or otherwise 

treated differently than other 

individuals because of the absence of 

auxiliary aids and services, unless the 

entity can demonstrate that taking such 

steps would fundamentally alter the 

nature of the good, service, facility, 

privilege, advantage, or accommodation 

being offered or would result in an 

undue burden.’’ 42 U.S.C. 

12182(b)(2)(A)(iii). After considering 

public comment and additional 

research, the Department has 

determined that it is not possible for 

movie theaters to meet their ADA 

obligation to provide equally effective 

communication to patrons with hearing 

and vision disabilities unless they have 

the capacity to show the movies that are 

available with captions and audio 

description at all showings when those 

same movies are available to patrons 

without disabilities; to only require 

access to 50 percent of movies being 

shown would be inappropriate. Unless 

a movie theater showed every movie on 

two screens in comparable auditoriums 

at all times—one screen showing the 

captioned and audio-described version 

and the other showing the same movie 

without captions and audio 

description—the Department is 

concerned that a 50 percent requirement 

would regularly lead to the 

circumstance where a movie theater 

would have a captioned or audio 

described movie, but would have no 

screen available on which to show it 

because all the appropriately equipped 

auditoriums were otherwise in use. 

The Department considered whether 

it would be possible for movie theaters 

to meet their effective communication 

obligations by switching movies into 

auditoriums equipped to show movies 

with closed captions and audio 

description when a patron with a 

hearing or vision disability needed 

those accessibility features. But, the 

Department’s research indicated that the 

business agreements regarding movie 

exhibitions limit this type of flexibility. 

Movie theaters regularly negotiate with 

film distributors regarding which 

auditoriums in a theater with more than 

one screen will show which films. 

Generally, if a film is expected to be 

very popular, it will open in the largest 

auditorium or in several auditoriums 

within the same complex. As the 

popularity decreases, the film will be 

moved from larger auditoriums to 

smaller auditoriums and from multiple 

auditoriums to a single auditorium. The 

timing of such moves will vary from 

theater to theater and from film to film. 

Those theaters that do have the 

flexibility to switch auditoriums upon 

request to provide closed captioning or 

audio description would have other 

added costs associated with changing 

the auditoriums for showings. Costs 

could include the additional employee 

time and resources needed to physically 

switch the movie from one auditorium 

to another, as well as potential lost 

ticket sales if a more popular movie is 

displaced into a much smaller theater 

that sells out faster. Additionally, 

switching auditoriums to allow use of 

captioning or audio description 

equipment may result in auditorium 

changes for other patrons after they had 

purchased tickets and are possibly 

already seated. This would result in an 

inconvenience to many patrons, 

including the possibility that the switch 

would result in a different viewing 

experience than expected when 

purchasing a ticket due to differing 

auditorium sizes and comfort levels. 

The Department also believes that this 

alternative would carry a much higher 

litigation risk. Patrons with disabilities 

would not have any way of assessing 

whether the failure to show a particular 

movie with closed captions and audio 

description was because the theater was 

failing to comply with its obligations 

under the regulation to provide these 

auxiliary aids and services or because 

that particular movie was not available 

with closed captions or audio 

description. Whether a theater had the 

capacity to move a film to accommodate 

a patron with a disability and should 

have done so upon request, or whether 

the theater did everything to meet its 

obligations under the regulation, would 

become murky and create confusion that 

could result in an increased risk of 

litigation. 

Finally, this alternative favors larger 

movie theaters and disadvantages single 

screen theaters, which are more likely to 

be small businesses. Under a 50 percent 

requirement, at least one auditorium at 

every theater must have closed 

captioning and audio description 

capabilities. Thus, single screen theaters 

would see no reduction in costs under 

this alternative. 

As such, the Department has rejected 

this alternative due to concerns that 

requiring only 50 percent of screens to 

have closed captioning and audio 

description capabilities would not 

comply with the ADA itself, that this 

approach would require substantial 

changes to the movie theater business 

model, that the initial perceptions that 

this approach would have substantially 

lower total costs are actually 

misleading, and that this approach 

would not address in any meaningful 

way the concerns for small business 

single screen theaters. 

Compliance by analog theaters 

required in two years. The Department 

considered providing theaters with 

analog screens two years after the rule’s 

publication date to become compliant, 

as opposed to the six-month compliance 

date provided for digital screens. This 

delay was considered for analog movie 

screens because such a large number of 

theaters are in the midst of transitioning 

to digital cinema, that additional time 

might be necessary. In addition, the 

delayed compliance date would have 

allowed small theaters that remain 

analog more time to obtain the 

necessary resources to purchase the 

equipment to provide closed captioning 

and audio description. The 15-year, 


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45012 Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 

58See Memorandum for the Heads of Executive 

Departments and Agencies, Regulatory Flexibility, 

Small Business, and Job Creation, 76 FR 3827 (Jan. 

18, 2011). 

discounted costs for this alternative 

range from $189.4 million to $237.5 

million under a 7 percent discount rate, 

which are higher than the total costs for 

the proposed rule. 

Upon review of the higher cost 

burden for firms still using analog 

projection, and with consultation from 

the Small Business Administration’s 

Office of Advocacy, and as previously 

discussed, the Department is 

considering two alternative options for 

theaters with analog screens: (1) A fouryear compliance date for theaters with 

analog screens (Option 1); or (2) 

deferring application of the 

requirements to analog screens until a 

later date (Option 2). In making the 

decision, the Department also took into 

consideration the fact that those movie 

theaters that have not yet made the 

transition to digital systems are more 

likely to be small businesses than those 

movie theaters that are already 

exhibiting in digital format. The 

Department also considered publicly 

available information that movie studios 

are in the process of phasing out analog 

film, and it is anticipated that by 2015, 

studios will not be producing analog 

prints of first run films. On the basis of 

this information, it appears likely that 

movie theaters that rely on first-run 

films for revenue will either convert to 

digital or go out of business before the 

four-year compliance date (sometime in 

2018 or 2019), and thus there will 

actually be many fewer analog theaters 

that will need to comply with the rule 

if the Department proceeds under 

Option 1. If the Department proceeds 

under Option 2, there will be fewer 

small business theaters affected by the 

rule, because it will only apply to small 

business digital theaters. 

Question 21a: Significant Alternatives 

for Small Analog Theaters Under the 

RFA 

Is the four-year compliance date in 

Option 1 reasonable for those screens 

that will remain analog? If not, why not? 

Should the Department adopt Option 2 

and defer requiring theaters with analog 

screens to comply with the specific 

requirements of this rule? (See 

Questions 6 and 8). 

Question 21b: Significant Alternatives 

for Small Digital Theaters Under the 

RFA 

Is the proposed six-month compliance 

date for digital screens a reasonable 

timeframe to comply with the rule? Is 

six months enough time to order, install, 

and gain familiarity with the necessary 

equipment; train staff so that they can 

meaningfully assist patrons; and meet 

the notice requirement of the proposed 

rule? If the proposed six-month date is 

not reasonable, what should the 

compliance date be and why? (See 

Question 7). 

Question 21c: Other Significant 

Alternatives for Small Theaters Under 

the RFA 

The Department invites comment on 

ways to tailor this regulation to reduce 

unnecessary regulatory burdens on 

small businesses.58 For example: Should 

the Department have a different 

compliance schedule for digital or 

analog theaters that have annual 

receipts below a certain threshold? If so, 

what should the financial threshold be? 

(See Question 6). The Department is 

also interested in receiving comment 

and data on the use of the undue 

burden defense by small businesses. 

C. Executive Order 13132: Federalism 

Executive Order 13132, 64 FR 43255 

(Aug. 4, 1999), 3 CFR, 2000 comp. at 

206, requires executive branch agencies 

to consider whether a rule will have 

federalism implications. That is, the 

rulemaking agency must determine 

whether the rule is likely to have 

substantial direct effects on State and 

local governments, a substantial direct 

effect on the relationship between the 

Federal government and the States and 

localities, or a substantial direct effect 

on the distribution of power and 

responsibilities among the different 

levels of government. If an agency 

believes that a rule is likely to have 

federalism implications, it must consult 

with State and local elected officials 

about how to minimize or eliminate the 

effects. This proposed rule applies to 

public accommodations that exhibit 

movies for a fee that are covered by title 

III of the ADA. To the Department’s 

knowledge there are no State or local 

codes that specifically address 

captioning and audio description. As a 

result, the Department has concluded 

that this proposed rule does not have 

federalism implications. 

D. Plain Language Instructions 

The Department makes every effort to 

promote clarity and transparency in its 

rulemaking. In any regulation, there is a 

tension between drafting language that 

is simple and straightforward and 

drafting language that gives full effect to 

issues of legal interpretation. The 

Department operates a toll-free ADA 

Information Line (800) 514–0301 

(voice); (800) 514–0383 (TTY) that the 

public is welcome to call to obtain 

assistance in understanding anything in 

this proposed rule. If any commenter 

has suggestions for how the regulation 

could be written more clearly, please 

submit those suggestions by any one of 

the following methods, making sure to 

identify this rulemaking by RIN 1190– 

AA63: 

• Federal eRulemaking Web site: 

http://www.regulations.gov. Follow the 

Web site’s instructions for submitting 

comments. The Regulations.gov Docket 

ID is DOJ–CRT–126. 

• Regular U.S. mail: Disability Rights 

Section, Civil Rights Division, U.S. 

Department of Justice, P.O. Box 2885, 

Fairfax, VA 22031–0885. 

• Overnight, courier, or hand 

delivery: Disability Rights Section, Civil 

Rights Division, U.S. Department of 

Justice, 1425 New York Avenue NW., 

Suite 4039, Washington, DC 20005. 

E. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

(PRA), agencies are prohibited from 

conducting or sponsoring a ‘‘collection 

of information’’ as defined by the PRA 

unless in advance the agency has 

obtained an OMB control number. 44 

U.S.C. 3507 et seq. This proposed rule 

does not propose any new or revisions 

to existing collections of information 

covered by the PRA. 

F. Unfunded Mandates Reform Act 

Section 4(2) of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1503(2), excludes from coverage under 

that Act any proposed or final Federal 

regulation that ‘‘establishes or enforces 

any statutory rights that prohibit 

discrimination on the basis of race, 

color, religion, sex, national origin, age, 

handicap, or disability.’’ Accordingly, 

this rulemaking is not subject to the 

provisions of the Unfunded Mandates 

Reform Act. 

List of Subjects for 28 CFR Part 36 

Administrative practice and 

procedure, Buildings and facilities, 

Business and industry, Civil rights, 

Individuals with disabilities, Penalties, 

Reporting and recordkeeping 

requirements. 

By the authority vested in me as 

Attorney General by law, including 28 

U.S.C. 509 and 510, 5 U.S.C. 301, and 

section 306 of the Americans with 

Disabilities Act of 1990, Public Law 

101–336 (42 U.S.C. 12186), and for the 

reasons set forth in the preamble, 

chapter I of title 28 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 


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Federal Register / Vol. 79, No. 148 / Friday, August 1, 2014 / Proposed Rules 45013 

PART 36—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY BY PUBLIC 

ACCOMMODATIONS AND IN 

COMMERCIAL FACILITIES 

Subpart A—General 

■ 1. The authority citation for 28 CFR 

part 36 continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510; 42 U.S.C. 12186(b). 

■ 2. In § 36.303, 

■ a. Redesignate paragraph (g) as 

paragraph (h); and 

■ b. Add paragraph (g) to read as 

follows: 

§ 36.303 Auxiliary aids and services. 

* * * * * 

(g) Movie Captioning and Audio 

Description. 

(1) Definitions. For the purposes of 

this paragraph— 

(i) Audio description means provision 

of a spoken narration of key visual 

elements of a visually delivered 

medium, including, but not limited to, 

actions, settings, facial expressions, 

costumes, and scene changes. 

(ii) Closed movie captioning means 

the written text of the movie dialogue 

and other sounds or sound making (e.g. 

sound effects, music, and the character 

who is speaking). Closed movie 

captioning is available only to 

individuals who request it. Generally, it 

requires the use of an individual 

captioning device to deliver the 

captions to the patron. 

(iii) Individual audio description 

listening device means the individual 

device that patrons may use at their 

seats to hear audio description. 

(iv) Individual captioning device 

means the individual device that 

patrons may use at their seats to view 

the closed captions. 

(v) Movie theater means a facility 

other than a drive-in theater that is used 

primarily for the purpose of showing 

movies to the public for a fee. 

(vi) Open movie captioning means the 

provision of the written text of the 

movie dialogue and other sounds or 

sound making in an on-screen text 

format that is seen by everyone in the 

movie theater. 

(2) Movie captioning. (i) A public 

accommodation that owns, leases, leases 

to, or operates a movie theater shall 

ensure that its auditoriums have the 

capability to exhibit movies with closed 

movie captions. In all cases where the 

movies it intends to exhibit are 

produced, distributed, or otherwise 

made available with closed movie 

captions, the public accommodation 

shall ensure that it acquires the 

captioned version of that movie. Movie 

theaters must then exhibit such movies 

with closed movie captions available at 

all scheduled screenings of those 

movies. 

(ii) Other technologies. Movie theaters 

may meet their obligation to provide 

captions to persons with disabilities 

through use of a different technology, 

such as open movie captioning, so long 

as the communication provided is as 

effective as that provided to movie 

patrons without disabilities. Open 

movie captioning at some or all 

showings of movies is never required as 

a means of compliance with this 

section, even if it is an undue burden for 

a theater to exhibit movies with closed 

movie captioning in an auditorium. 

(iii) Provision of individual captioning 

devices. (A) Subject to the compliance 

dates in paragraph (g)(4) of this section, 

a public accommodation that owns, 

leases, leases to, or operates a movie 

theater shall provide individual 

captioning devices in accordance with 

the following Table. This requirement 

does not apply to movie theaters that 

elect to exhibit all movies at all times at 

that facility with open movie 

captioning. 

Capacity of seating in movie theater Minimum required number of individual captioning devices 

100 or less ............................................................................................................. 2. 

101 to 200 .............................................................................................................. 2 plus 1 per 50 seats over 100 seats or a fraction thereof. 

201 to 500 .............................................................................................................. 4 plus 1 per 50 seats over 200 seats or a fraction thereof. 

501 to 1000 ............................................................................................................ 10 plus 1 per 75 seats over 500 seats or a fraction thereof. 

1001 to 2000 .......................................................................................................... 18 plus 1 per 100 seats over 1000 seats or a fraction thereof. 

2001 and over ........................................................................................................ 28 plus 1 per 200 seats over 2000 seats or a fraction thereof. 

(B) In order to provide effective 

communication, individual captioning 

devices must: 

(1) Be adjustable so that the captions 

can be viewed as if they are on or near 

the movie screen; 

(2) Be available to patrons in a timely 

manner; 

(3) Provide clear, sharp images in 

order to ensure readability; and 

(4) Be properly maintained and be 

easily usable by the patron. 

(3) Audio description. (i) A public 

accommodation that owns, leases, leases 

to, or operates a movie theater shall 

ensure that its auditoriums have the 

capability to exhibit movies with audio 

description. In all cases where the 

movies it intends to exhibit are 

produced, distributed, or otherwise 

made available with audio description, 

the public accommodation shall ensure 

that it acquires the version with audio 

description. Movie theaters must then 

exhibit such movies with audio 

description available at all scheduled 

screenings. 

(ii) Provision of individual audiodescription listening devices. Subject to 

the compliance dates in paragraph (g)(4) 

of this section, a public accommodation 

that owns, leases, leases to, or operates 

a movie theater shall provide devices 

capable of transmitting audio 

description in accordance with one of 

the following: 

(A) A movie theater shall provide at 

least one individual audio-description 

listening device per screen, except that 

no theater shall provide less than two 

devices. 

(B) A movie theater may comply with 

this requirement by using receivers it 

already has available as assistive 

listening devices in accordance with the 

requirements in Table 219.3 of the 2010 

Standards, if those receivers have a 

minimum of two channels available for 

sound transmission to patrons. 

(4) Compliance date. (i) Digital movie 

screens. If a movie theater (as defined in 

this paragraph) has auditoriums with 

digital movie screens, those auditoriums 

must comply with the requirements in 

paragraph (g) of this section six months 

from the publication date of this rule in 

final form in the Federal Register. Once 

an analog movie screen has converted to 

digital cinema, it must comply with 

paragraph (g) within 6 months. 

Option 1 for paragraph (g)(4)(ii): 

(ii) Analog movie screens. If a movie 

theater (as defined in this paragraph) 

has auditoriums with analog movie 

screens, those auditoriums must comply 

with the requirements in paragraph (g) 

of this section four years from the 

publication date of this rule in final 

form in the Federal Register. 

Option 2 for paragraph (g)(4)(ii): 

(ii) Analog movie screens. Application 

of the requirements of paragraph (g) is 

deferred for analog movie screens but 

may be addressed in future rulemaking. 


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(5) Notice. Subject to the compliance 

dates in paragraph (g)(4) of this section, 

movie theaters shall ensure that 

communications and advertisements 

intended to inform potential patrons of 

movie showings and times, that are 

provided by the theater through Web 

sites, posters, marquees, newspapers, 

telephone, and other forms of 

communications, shall provide 

information regarding the availability of 

captioning and audio description for 

each movie. 

(6) Subject to the compliance dates in 

paragraph (g)(4) of this section, movie 

theaters must ensure that there is at 

least one individual on location at each 

facility available to assist patrons 

seeking these services at all times when 

a captioned or audio-described movie is 

shown. Such assistance includes the 

ability to: 

(i) Operate all captioning and audio 

description equipment; 

(ii) Locate all necessary equipment 

that is stored and quickly activate the 

equipment and any other ancillary 

equipment or systems required for the 

use of the devices; and 

(iii) Communicate effectively with 

individuals who are deaf or hard of 

hearing and blind or have low vision 

regarding the uses of, and potential 

problems with, the equipment for such 

captioning or audio description. 

* * * 

Dated: July 23, 2014. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2014–17863 Filed 7–31–14; 8:45 am] 

BILLING CODE 4410–13–P 


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