COMMENTS OF HEARING LOSS ASSOCIATION OF AMERICA AND THE ALEXANDER GRAHAM BELL ASSOCIATION FOR THE DEAF AND HARD OF HEARING

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1 Before the U.S. Department of Justice Washington, D.C. In the Matter of: ) ) Nondiscrimination on the Basis of Disability by ) 28 CFR Part 36 Public Accommodations Movie Theaters; ) CRT Docket 126 Movie Captioning and Audio Description ) RIN 1190-AA63 COMMENTS OF HEARING LOSS ASSOCIATION OF AMERICA AND THE ALEXANDER GRAHAM BELL ASSOCIATION FOR THE DEAF AND HARD OF HEARING Hearing Loss Association of America (HLAA) and the Alexander Graham Bell Association for the Deaf and Hard of Hearing (A.G. Bell) submit these comments in response to the Notice of Proposed Rulemaking (NPRM) released by the U.S. Department of Justice (the Department) to revise its regulation implementing title III of the Americans with Disabilities Act (ADA) in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by movie theaters accessible to individuals who are deaf or hard of hearing or who are blind or have low vision by screening movies with captioning or video description. HLAA is the nation s leading consumer organization representing people with hearing loss. HLAA impacts accessibility, public policy, research, public awareness, and service delivery related to hearing loss on a national and global level. HLAA s national support network includes an office in Bethesda, Maryland, state organizations, and local chapters. The HLAA mission is to open the world of communication to people with hearing loss through information, education, advocacy, and support. The constituents of HLAA are directly impacted by title III of the ADA. A.G. Bell is a non-profit organization based in the District of Columbia. It has chapters throughout the United States and international affiliates worldwide. One of the oldest and preeminent organizations in deafness, A.G. Bell advocates for spoken language in deaf children and adults. A.G. Bell provides advocacy, resources and leadership for parents, professionals, and individuals who are deaf or hard of hearing. A.G. Bell has long advocated for movie captioning accessibility by participated as amicus curiae in court cases seeking movie captioning access, and advocating for captioning access at the legislative and rulemaking levels. A.G. Bell has also published several articles advocating movie captioning access in its publications

2 HLAA and A.G. Bell commend the Department for this NPRM, which requires movie theaters to display all movies that are produced with captioning with closed captions at all showings. As noted by the Department, achievement of this result can greatly improve the quality of life of people with hearing loss. Indeed, the United States Supreme Court has noted that the public interest is served when deaf viewers can understand shows through captioning. See Comm. Television of So. Cal. v. Gottfried, 459 U.S. 498, 508 (1983). Although Gottfried involved television, the same principle applies to movies in theaters. See, e.g., Ariz. ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 668 (9th Cir. 2010) (noting necessity of captions or subtitles for deaf viewers to understand a movie); Comment, Open and Closed, Captioning Technologies as a Means to Equality, 23 J. MARSHALL J. COMPUTER & INFO. L. 159, 169 (2004) ( There is no dispute that captions... are absolutely necessary for deaf people to gain communication access to aural medias, such as the television, [] and film ). Until very recently, people with significant hearing loss who relied on assistive listening devices have been able to enjoy seeing movies by themselves or with family members and friends, but those who rely on captions have not. The mandate prescribed by this NPRM has become practicable with the almost complete conversion to digital projection and distribution of films. To ensure that individuals with hearing loss can gain access to captioning, the Department proposes requiring a fixed number of captioning devices based upon the number of seats in the movie theater. HLAA and A.G. Bell have joined with the National Association of Theater Owners (NATO) and three other disability organizations to propose an alternative approach to the number of devices that theaters must have available. See the Joint Recommendation attached to these comments. HLAA and A.G. Bell believe that patrons with hearing loss will be better served over time by the flexible market-based approach in the Joint Recommendation. This joint proposal also addresses other aspects of the NPRM such as the compliance period, marketing, and equipment maintenance and staff training. More details about the application of the Joint Recommendation are presented in the answers to the Department s questions below. Question 1. The three parts of this question deal with the continued viability of analog theaters and the availability of analog movies. We lack knowledge to specifically respond to this question which can be answered only by the industry. However, to the extent that the information sought by the Department is related to Question 8, in which DOJ seeks comments on how to proceed to regulate compliance for analog movie screens, refer to our response to that question. Question 2. The Department seeks comments on the proposed definition of movie theater. For the reason stated by the Department that the technology does not presently exist, we accept the exclusion of drive-in theaters from the requirement to provide captioning devices at this time. However, since drive-in theaters are not outside the scope of title III, we recommend that the

3 Department state that if and when the requisite technology becomes available, the Department will initiate rulemaking to cover these theaters. In addition, we have two concerns that the proposed definition in (g) is inadequate to encompass the facilities that should be covered by the rule. First, the definition is limited to facilities that primarily display movies to the public. On one hand, the Department states that it intends to exclude museums, hotels and resorts, and cruise ships. On the other hand, the Department states that the title III regulation makes clear that public accommodations that exhibit movies but are not movie theaters, such as museums and amusement parks, must provide... auxiliary aids and services, including,... captioning. We urge the Department to clarify the definition to expressly include museums, hotels, resorts, cruise ships and amusement parks as well as other similar public accommodations that show movies as a secondary function. We see no basis to exclude these facilities from title III requirements. Second, the definition also is limited to facilities that charge the public a fee. Museums and amusement parks, among others, may not charge a separate fee to view a film beyond the cost of admission to the facility. There may also be instances where museums are open to the public without charging admission. We request the Department to clarify the definition of movie theater to include these types of facilities regardless of whether they charge a separate fee or any fee for admission to movies. As a final comment on this definition, it should be irrelevant whether the theaters operate as profit-making enterprises or as nonprofit organizations. The proposed definition of movie theater does not draw such a distinction, and we believe it should not. All public accommodations that exhibit movies should be subject to the requirements of this proposed rule. Question 3. This question pertains to audio description which is outside the scope of our area of expertise. Question 4. The more generic term, closed captioning, used in the description of auxiliary aids and services in (b) is well understood and is sufficient for purposes of this rule. See, e.g., Ball v. AMC Entertainment, Inc., 246 F. Supp.2d 17, 20 n.9 (D. D.C. 2003) (discussing differences between open and closed captioning); Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern Calif., 719 F.2d 1017, 1019 (9th Cir. 1983) (open captions seen by all viewers; closed captioning requires extra equipment to be seen by deaf viewer). Indicating its application to movies by using the term closed movie captioning is acceptable in this instance, but suggests that the generic term should, unnecessarily, be modified for other usages of captioning. Question 5. As in our response to Question 4, the generic term open captioning is well understood and sufficient for purposes of this rule. See, e.g., Ball, 246 F. Supp.2d at 20 n.9; Greater Los Angeles Council on Deafness, 719 F.2d at 1019.

4 Question 6. The attached Joint Recommendation does not establish different requirements, including a different compliance schedule, for theaters with digital screens that are small businesses. As the Department indicates in the NPRM, single screen theaters are almost all small businesses, and miniplex theaters include many small businesses. Our expectation is that these theaters should comply with the rule under the same schedule and meet the same requirements as theaters operated as large businesses. It is elementary that a reasonable accommodation often contemplates some financial burden resulting from the accommodation for people with disabilities. United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1417 (9th Cir. 1994). We believe that it will not be overly burdensome for theaters operating as small businesses to provide the same access on the same schedule as large business theaters. In rare instances where it may be a hardship for a small business to be fully compliant, the undue burden defense is available. It is important to note that our conclusion that the requirements should be the same for all theaters, regardless of business size, is conditioned upon adoption of the device scoping proposed in the Joint Recommendation. (See our response to Question 10.) Regarding small business theaters that continue to use analog screens, see our response to Question 8. Question 7. The Joint Recommendation in Section III provides that the proposed six-month compliance period be adjusted. Consumers would prefer that all theaters be in full compliance as soon as practicable and commend the Department for proposing a time limit of six months. However, we accept the position of theater owners and operators that six months may be insufficient time for all theaters to purchase and install equipment, train staff on its operation, and do full marketing of the availability of captioning. Therefore, under the prescription in the Joint Recommendation, all purchase orders for system equipment must be placed with manufacturers or suppliers within six months of the effective date of the final rule. The theaters shall be fully compliant within six months after delivery of the system equipment, and in all cases not more than two years after the effective date of the final rule. Question 8. From the standpoint of the consumer, it would be preferable to adopt a required compliance schedule for theaters that display analog movies. Experience tells us that initiating and completing a new rulemaking process is often lengthy and time-consuming. While the Department may undertake further rulemaking at any time if facts and circumstances change, there appears to be no clear basis to exempt theaters with analog screens indefinitely pending future rulemaking. Regarding the length of the compliance period, the NPRM provides no explanation for proposing a 4-year period. This amount of time strikes us as being unnecessarily and unjustifiably long. For digital screens, as indicated in our response to Question 7, we propose a maximum compliance period of two years. We believe the same two-year compliance period is appropriate

5 for theaters with analog screens. As noted by the Department, Rear Window Captioning (RWC) is available to provide closed captioning for analog movies. Open captioning for showings is another option. Theaters displaying analog films should be required to make these films accessible in a timely fashion or assert undue burden. We believe that two years after the effective date of the final rule is adequate time to implement closed captioning using equipment such as RWC. Question 9. To begin with, the proposed regulation in (g)(2) does not provide for open captioning upon request or any other circumstance. It strictly makes the use of open captions elective by the theater under all circumstances. We believe that theaters that are not in compliance with the requirement for providing closed captioning should be required to provide access by showings of open captioned films. These theaters are still obligated to assert an undue burden defense to full closed captioning. If the Department chooses to add to the regulation the use of open captions upon a timely request, guidance should be included to ensure that such requests are honored. In addition to requiring the theaters to clearly publicize the process, procedures, and time periods for making requests, the regulation should include specific criteria, such as the timeliness of the requests and for which showings (at reasonable times) requests will be accepted. Question 10. Section II of the attached Joint Recommendation contains a full explanation and description of our proposed approach for scoping of individual caption devices. The Department s proposed approach in (g)(2)(iii)(A) permanently fixes the number of required devices based on the total number of seats in the theater complex. This approach fails to take into account the demographics of people with hearing loss and the potential increase over time of the number of people with hearing loss as the population ages. Some theaters fully in compliance with the NPRM s scoping requirement may start out with, continue to, or subsequently find they have an insufficient number of closed captioning devices to meet consumer demand, while other compliant theaters may incur costs for what turns out to be excess inventory. Moreover, the Department notes, and we acknowledge, that reliable data is lacking to ascertain the number of people with hearing loss who will attend movies in general, and particularly for individual theater complexes of any size. The lack of a predictable fit between the number of devices and consumer needs is resolved by the flexible approach taken in the Joint Recommendation. We urge the Department to give full and serious consideration to this recommended approach to scoping. Question 11. We generally concur in the performance requirements of individual captioning devices delineated in (g)(2)(iii)(B). In accordance with Section V of the Joint Recommendation, we recommend that subsection (B)(4) be revised so that it states: Be properly maintained, clean and functional, and be easily usable by the patron. Ensuring that a device is functional means that the device operates consistent with the manufacturer s design.

6 We also request the Department to incorporate the following additional performance requirements. (a) For the benefit of all patrons, but particularly patronswith hearing loss who also have vision impairments, the captioning devices should have the ability to adjust the font size, the text color, and the background color and opacity. (b) Captioning must be complete, accurate, and in sync with the audio portion of the film (c) Nothing in the NPRM affects the number, or changes the scoping, of assistive listening devices (ALDs). The rule should make clear that patrons may request both a captioning device and an ALD, and an audio description device, either as separate devices or as a single unit. (d) Captioning devices should be adjustable or otherwise suitable for children old enough to read, so that these children with hearing loss may be given access to family oriented and other appropriate films. Finally, the rule should include a requirement that theaters consult with equipment developers and manufacturers, as well as with patrons with hearing loss, to support innovation and ensure that new and cutting edge captioning technologies meet or exceed all performance requirements needed by people with hearing loss. Question 12. This question pertains to audio description which is outside the scope of our area of expertise. Question 13. The adjusted compliance period in the Joint Recommendation (see response to Question 7) is constructed with the intent and expectation that all theaters can meet the prescribed deadline to be in compliance with their associated scoping requirements. However, the Joint Recommendation notes that individual theater owners are not precluded from raising an undue burden defense to full compliance. Neither HLAA, as a consumer organization, or A.G. Bell can provide the type of specific information sought by the Department. However, Question 13 suggests that the Department intends to define in this regulation a universal standard of undue burden. Doing so would be contrary to the well-established principle, as indicated in the NPRM, that the determination of undue burden requires a fact-specific, case-by-case analysis. See, e.g., Wilson v. North Carolina, 981 F. Supp. 397, 400 (E.D. N.C. 1997) (appropriateness of accommodation for deaf plaintiff is highly fact-specific inquiry). We suggest that any regulatory coverage in this section simply cite the definition of undue burden in including the factors to be taken into consideration. Question 14. Section IV of the Joint Recommendation has a comprehensive list of marketing actions and tools that theaters as well as consumer groups will undertake. We recommend that (g)(5) of the proposed rule be expanded to incorporate the following provisions from the Joint Recommendation:

7 (a) Theaters shall specify on the theater s website and/or ticketing website whether closed captioning and audio description are available on a movie-by-movie basis. (b) Movie theaters are not liable if third-party websites fail to include information about the availability of captioning and audio description at movie theaters. (c) Theaters shall supply captioned/audio described movie information to third party ticketing sites and strongly urge them to display the information. (d) Theaters shall post information at or near the box office or other ticketing locations about the availability of captioned/described movies. Such information shall include in plain language an explanation of how closed captioning and audio description devices work and how and where to obtain them. Also, accepted closed captioning and audio description symbols should be displayed. (e) Theaters shall have printed instructional information about their captioning systems available at the theater for use by patrons who are deaf or have hearing loss. Finally, it is our understanding that the cost of such marketing should not be problematical for any theater. Question 15. Section V of the Joint Recommendation spells out requirements for equipment maintenance and staff training. As prescribed in this section, we propose that the following paragraph be added to ((g)(6) of the proposed rule. Staff training. Theaters shall develop reasonable staff training programs and equipment maintenance programs to meet the needs of patrons. Staff training will be directed to those staff members responsible for maintaining and providing the devices to patrons. All staff members shall be trained as to the availability of closed captioned devices. Training will be reinforced on a regular basis. We must defer to the theaters on the question of the costs associated with training staff and assisting patrons above and beyond normal training costs. Question 16. We lack expertise to answer this question. Question 17. The NPRM cites census data as its source of self-reported number of Americans with hearing loss, which was a little more than 7.5 million in More reliable U.S. Government data has been compiled by the NIH, specifically the National Institute on Deafness and Other Communication Disorders (NIDCD). Again using self-reported data, the NIDCD finds that 36 million American adults have hearing loss. See This source yields a figure nearly five times the number of adults with hearing loss than derived from census data. Another, more scientific, survey of individuals with hearing loss was conducted by researchers at the Johns Hopkins School of Medicine. Instead of self-reporting, this estimate used data

8 gathered from 2001 to 2008 from the National Health and Nutritional Examination surveys in which the hearing of participants was actually tested. This study covered men and women of all races and ages, from across the country, thus representing the population of the U.S. Using the World Health Organization s definition for hearing loss (not being able to hear sounds of 25 decibels or less in the speech frequencies), the researchers found that overall, about 30 million Americans, or 12.7 percent of the population, had hearing loss in both ears. That number jumps to about 48 million, or 20.3 percent, for people who have hearing loss in at least one ear. See These numbers far exceed the number of people with hearing loss cited in the NPRM. We agree with the Department s analysis in the NPRM of the many direct and indirect benefits and beneficiaries of captioning of movies. Both HLAA and A.G. Bell have heard from our members that that when captioning of live theater performances was provided, people who thought they could no longer enjoy live theater returned to watch those shows. We fully expect any number of people who age into hearing loss who once enjoyed movies will return if they can understand the performance via captions. Regardless of how many people will be able go to the movies for the first time, or return to the movie theaters, we agree with the Department that this is essentially an issue of fairness, equity and equal access. The Americans with Disabilities Act was an attempt by Congress to level the playing field, to provide equal opportunity as a civil right to people with disabilities who had been excluded because of their disability. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001). Providing captioning in movie theaters opens the doors of theaters on an equal basis to millions of Americans with hearing loss. We agree with the Department that this nonquantifiable benefit justifies the costs of requiring captioning at movie theaters. Further, because it will bring people into theaters and back to the theaters, we believe there is great potential that these costs will be offset for these theaters by generating greater movie attendance revenue. Question 18. We lack knowledge about the number and status of small business entities. However, as noted in response to previous questions, the Joint Recommendation applies equally to small business theaters with digital screens. Also, see our response to Question 8 concerning analog theaters. Question 19. Consistent with the Joint Recommendation, the response to Question 10, covering scoping requirements, does not specify different requirement for theaters that operate as small businesses. Otherwise, information about compliance costs for small businesses is outside the scope of our expertise. Question 20. The cost data which the Department requests is outside the scope of our knowledge and expertise. Question 21.a. See the response to Question 8. We propose a two-year compliance period for theaters with analog screens.

9 Question 21.b. See the response to Question 6. The Joint Recommendation draws no distinction between theaters with digital screens operating as small or large businesses with regard to the regulatory compliance period. Question 21.c. We have no further information to respond to this question. We thank the Department for the opportunity to provide comments in this proceeding. Sincerely, Anna Gilmore Hall Executive Director Hearing Loss Association of America 7910 Woodmont Avenue, Suite 1200 Bethesda, MD Emilio Alonso-Mendoza Chief Executive Officer Alexander Graham Bell Association for the Deaf and Hard of Hearing 3417 Volta Place NW Washington, DC 20007