LEGAL AND ADVOCACY UPDATES: ALDA WORKING FOR ALL OF US PRESENTER: JOHN WALDO SEPTEMBER 15, 2016

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1 LEGAL AND ADVOCACY UPDATES: ALDA WORKING FOR ALL OF US PRESENTER: JOHN WALDO SEPTEMBER 15, 2016 JOHN WALDO: Every year at ALDAcon I present a legal update. Today I am going to discuss how ALDA got into advocacy, how I got involved in advocacy for ALDA. and what we have been doing. I am now the Chair of the ALDA Advocacy Committee, and we feel as though advocacy is a meaningful and important part of ALDA's mission. I'm so glad to be a part of that. One reason advocacy is important to us is because the Americans with Disabilities Act (ADA), when you look at it, you might think it is the Americans with Wheelchairs Act. It goes on and on and on about people with mobility issues. If you read the regulations, they are blueprints of how to build a building that works for people in wheelchairs. They did not forget Deaf and deafened people, but they did not know what to say about us. What they did say in the ADA essentially is that effective communication must be provided unless you can show that providing effective communication would be an undue burden. But what is effective communication? When does the financial cost of providing it pass it from a due to an undue burden? Nobody knows. Nothing in the regulations, and nothing in the statute actually talks about that. When a law that is written in adjectives rather than specific directives, it is essential to find someone who will tell you what it those adjectives mean in each particular individualized situation. And that is what the courts and the administrative agencies, primarily the Department of Justice (DOJ), do. Our rights, our lives, our access to public life basically depends on what the courts and the agencies do for or sometimes to us in any given period of time. What I've tried to do every year is come in and tell you, first of all, whether the score is good or bad; and, second, to remind us that if we want the world to be accessible, we are the ones who must step up and do the work. There actually is no such thing as an ADA Police Force that will go around and say, "you are not providing effective communication here. You had better do better." We are the ones who need to say that it is not effective for us, and we need to make it work. MOVIE CAPTIONING I've talked about ALDA's role in the captioning of movies. In theaters ALDA has taken on large theater chains like Cinemark, AMC, and Regal, and has gotten them to agree to provide captioning in their theaters. It appears as though the DOJ will finally create regulations telling every movie theater that they must equip all of their auditoriums with equipment necessary to show closed captioning. The DOJ is really very nice to us, to ALDA and to me, because they said in

2 explaining why this regulation is necessary, We have had litigation in California. We have had litigation in Washington. We have had litigation in Oregon. And the success of that has demonstrated that it is possible for every movie theater to provide captioning for every show in every auditorium, so we think that the rule nationwide ought to be the same as what these folks have been able to accomplish where they have filed a lawsuit." We are still waiting for those regulations to come out, however. Originally in 2010, the DOJ said they would require only about half of the auditoriums be equipped to show captioned movies, but they have updated things a great deal and in 2014 agreed to require 100% captioning. At that time, I got in touch with the other advocacy groups, the National Association of the Deaf (NAD), and the Hearing Loss Association of America (HLAA), to make sure we were in agreement. I suggested that we combine forces and get in touch with the National Association of Theater Owners to see if there are parts of these regulations that they can agree with and so that we would not have to fight about it. We sat down with the theater owners and talked. The outcome of those talks was that the theaters said that they could support 100% captioning. The DOJ was proposing to require a number of viewing devices that the theaters believed were excessive, and would not be used. We agree that there were very few reports of an insufficient number of devices (as opposed to frequent reports of devices not being operable), so we agreed that as long as there are always enough devices to meet demands, we would not insist on them purchasing so many devices. Our advocacy groups and the theater owners then filed a joint response to the DOJ that basically said, "we agree." That was in 2014, two years ago. We are still awaiting that decision. (Note the regulations were issued in late You can learn all about them at the 2017 ALDAcon). Providing accessibility is great, but if people don t know that they will be able to enjoy the event, they won t go. Since not every movie has captions, we still need to be told that the movie we are interested in seeing will be captioned. One of the annoying things theaters do is to acknowledge that not all movies are captioned, but then tell us to please call us for details. I always think that this "call us for details" business is the precise equivalent of a sign that says wheelchair entrance upstairs. Once businesses understand this issue, they usually agree to use a website or address, which is much better option for deaf and HOH people. In spite of these delays, it does appear that we may finally be able to cross off movies as a mission accomplished and move on to something else. What might that else be? LIVE-THEATER CAPTIONING At last year s ALDAcon I was asked to look into two separate live theater situations in California and one in Idaho. Our first attempts to get these live theaters attention were not successful. However, once they became aware that they would be taken to court and probably would not win, they agreed to provide a captioned performance for each

3 show. (We had to use step 2 which is the certified letter from the lawyer that is the implied "or else." The or else worked, and got the attention of friendly counsel.) Making sure that people seek the advice of friendly counsel is my new objective because usually friendly counsel lets the organization know that they will get their butts kicked if they don't respond to our ADA compliance issues. We don't always get to friendly counsel simply through the certified letter though. Sometimes it is necessary to file a lawsuit. One good thing lawsuits do that sometimes nothing else does is that lawsuit will always get the attention of friendly counsel. Sometimes, the friendly counsel will get back in touch with us and ask us what we think they ought to do. (This happened when we were dealing with a St. Louis live theater captioning situation that was going nowhere until we filed a lawsuit.) In our organizations in Washington and Oregon and also with ALDA, we have a three-fold objective. We want to be seen as knowledgeable, reasonable and formidable. When people are willing to talk to us, we try to be just as helpful as can be by explaining the various options so that we can find a way to make things work. All this emphasis on live theaters, and my own negative experience in New York City while attending a captioned play where the captioning system did not work, got me thinking about live theaters in general. I thought we might learn from our experience with the movie theater owners when we are dealing with live theater owners. With the movie theater owners, we started out with the big players who could afford to invest in good technology, which then got cheaper and cheaper as more people got interested in providing it. Obviously, to me anyway, the wellspring for live theater is Broadway. I had not realized that Broadway is a very tightly defined universe. There are forty-one Broadway theaters, all in the proximity of Times Square, and all with seating capacities of 500 people or more and what is more, it is a very concentrated ownership. Of those fortyone theaters, thirty-one have three owners. One owns seventeen theaters, another owns nine, and the other owns five. The three owners situation looks very similar to Regal, AMC and Cinemark. I asked myself if there is any equivalent way that we can deal in more global terms with the Broadway owners instead of approaching each theater individually. My first step was to find out what can they afford to do. There is a lot of literature and statistics telling us how much money Broadway theaters make and how much money they bring into the City of New York. Those forty-one theaters last year brought in over 1.3 billion dollars, from over 13 million visitors, two-thirds of whom come from outside of New York. People from all over the country come to Broadway. Broadway is a national treasure. Fortunately, it is a small enough group of theater owners that we I think we can really work with them and get something accomplished. After realizing this I contacted two other people interested in live theater captioning and we put together what we called the Broadway Project Proposal. We want to approach

4 those three major theater owners and propose to meet with them to engage with them in a process called structured negotiations about offering captioning. We plan to explain to them that we believe they probably are violating the ADA because they have so much money that it is not going to be an undue burden for them to increase the availability of captioned performances. We want to propose that rather than go into court and argue and, rather than have the judge make a final decision on what will work, we would like them to be willing to sit down and talk to us and come to an agreement. That's the plan. Hopefully they will say yes, and we will sit down and talk about it; otherwise, it's off to the courthouse. (Yesterday the ALDA board gave formal approval to ALDA's participation in this Broadway project. We will send a letter asking for structured negotiations sometime in the next week or two and try to get in the process by the end of the year. I hope we can work something out.) We have also been working to get captioning of live-music, comedy, and sports venues. CAPTIONING TECHNOLOGY At the same time that I was learning about the structure of Broadway theater ownership, I also found out about the various captioning technologies available to live theater. The way we usually view captioning in live theater involves a portable reader board set up on one side of the stage and then management sets asides seats somewhere where the patrons needing captioning can see, more or less, the reader board and the stage in the same line of sight. This set up works to varying degrees. One issue is that when they place the reader board on one side of the stage, they try to put the people who want to see the captions a little farther over to the side, which means that those people end up not being able to see a lot of the stage, which is a problem. The problem from the theater s point of view is it is necessary for them to block out seats for us -- usually fairly expensive seats. It becomes logistically difficult for them because they have to find a time when the seats already have not been sold so that they can do these captioned performances. (Many of these plays are sold out six or eight months in advance.) I think the logistical problems are a bigger reason than the financial problems as to why live theaters do not offer captioning for every performance. Fortunately, there are other captioning technology methods out there that may move us closer to our goal of having captions for every performance, not just one or two for each production. One is a system called icaptions which provides a hand-held reader device. The captions are prepared in advance and they are scrolled and synced, along with the lighting cues. The lighting cues change a lot as scenes change and supposedly the captions change along with them. That is the system provided to me a few weeks ago at the play Book of Mormon. (My experience was negative because the syncing was poor.)

5 Another company called Figaro Systems out of Santa Fe, New Mexico, has been active in captioning operas for a long time and they are trying to expand into the live theater market as well. The system they have developed for live theater involves the captions being prepared in advance, stored in the cloud, and then transmitted wirelessly to a viewing device like a cell phone or an ipad that you might have to hold in your hand, which can be a hassle. One very small live theater in Baltimore bought this Figaro system, and they discovered that Amazon markets a flexible clamp which is marketed for people who want to read in bed but do not want to hold their phone. This Baltimore theater provides both the devices and the clamp. I am told that they offer captions of every performance of every show and they give out five or six of these devices with every performance. I think this is a system that's really worth looking at. And there are a few other caption technology companies with Internet cloud-based systems that display the captions on electronic-type viewing devices. When you have three companies trying to do essentially the same thing, that is good because these systems will become cheaper. So to sum up, what we want from the Broadway theaters (who can afford to pay real time caption persons to come in with a reader board and move people around and for every performance) involves their agreeing to try and test one of these less expensive, more flexible systems. If we can get them to agree and it works, we hope is that it then will trickle down as devices and systems get cheaper and it becomes much easier for theaters all around the country to use. CAPTIONING THE INTERNET Another very important issue in all of our lives is the captioning of the Internet. The ADA was passed before the Internet really came into being, so nowhere is it mentioned. The question, then, is: Does the ADA require people whose business is online to provide effective communication? The answer seems to be it depends on which part of the country you are in. In some federal Circuits, they have held that the Internet is not covered by the ADA which applies to places of public accommodation; but other Circuit Courts in the East have been much more flexible on this and said that if Congress had thought about the Internet, Congress obviously would have included it as part of the ADA. That is a decent argument and it seemed to have worked at least in the first Circuit Court of Appeals in the northeastern part of the country. One example is when the National Association of the Deaf filed a lawsuit against Netflix a number of years ago demanding that Netflix caption their online content. Netflix at first said no because the ADA does not cover the Internet. The judge said maybe it does and maybe it doesn't, but we're not going to know until we go to trial. And then that may be appealed, etc. So, faced with that, Netflix decided to go ahead and caption. (We have also gotten captioning for all of Hulu's content. That was a settlement that was just announced last week.)

6 I have to tell you parenthetically: The great thing about the ADA and hearing loss issues is that usually it is so much easier to just do it than to fight about it. We in hearing loss advocacy can get a long way with just bluff and bluster. The NAD also sued MIT, Massachusetts Institute of Technology, and Harvard because they did not make their online course information accessible to deaf and hard of hearing people. These two institutions receive federal funds. And if an entity receives federal funds, they have to make everything accessible according to the ADA. I think they are still working on trying to get that resolved. I know Harvard is on its third set of attorneys. Sometimes friendly counsel tells people what they do not want to hear. And then they try other counsel who also keep telling them what they do not want to hear. Several years ago, the DOJ wanted to take on this business of Internet accessibility head on. In 2010, the DOJ decided to require that Internet websites become accessible. Obviously, this is a huge deal for a lot of huge Internet companies (who also have huge amounts of money), and that have their own friendly lawyers who are not friendly with the DOJ lawyers. The DOJ has changed their objectives and tactics about this several times since then, claiming that things are changing so fast with the Internet. And it is true that technology changes so much faster than the regulatory process moves. For example, first time they set out the regulations, they asked 21 questions (which we answered). This last go around with the DOJ they asked 123 questions and gave us three months to answer them. It is a huge scramble right now to try to get everybody on board and get sensible answers to these 123 questions back to the DOJ by the middle of October (of 2016). This is something that obviously is not going to happen in this Administration, and who knows who the new Administration is going to be and what their temperature will be. We are still plowing ahead, though. Our frustration is that when the government decides it may issue regulations, it becomes an opportunity for the internet businesses to delay dealing with us in case there are defenses in those regulations that can be used to weasel out of compliance. The fact that those regulations are in the works but not out yet has become an obstacle to creating accessibility, so we are expressing as nicely as possible to the DOJ that these delays are actually hurting us right now; please get these regulations done quickly. We continue to live in the hope. As far as what the courts have done for us this year, the answer is: Very little, really. There just has not been a lot of activity in the litigation space. One important case did come out of Texas regarding providing interpreters for drivers education (which is required for people under 18). The students sued the State for not providing interpreters but the judge decided, no, because the State does not provide the service of drivers education, it is the small independent driver s ed schools that should be sued

7 even though you will probably lose. That case is now headed to the Supreme Court. We have been so leery, frankly, of creating any situation where the Supreme Court would review an ADA case because we just have not been expecting good results due to the 4-4 split. If they split 4-4, which is exactly what we expect is going to happen in this case, then the lower court decision will stand. The bottom line is we keep struggling along. The bottom line is it's all about us the deaf and hard of hearing folks. You can do it by yourself, or you can do it through ALDA because ALDA can act as an entity on behalf of any of its members. As long as there are real live people that are affected by this problem, ALDA can take action. And that does sometimes make it easier. INFORMATION ABOUT OBTAINING A LAWYER I want you to know how hiring a lawyer works in the disability rights world. The ADA in most of our state laws says if you go into court and if you win, then the other side has to pay your fees. I and many other disability rights lawyers basically work for absolutely nothing unless we go to court and we win. And then we collect from the other side. So if you go to a disability rights lawyer to discuss your problem with accessibility, and the lawyer says that it is going to cost you this much money for me to take a look at it, then my advice is to find another lawyer or get in touch with me. If I can't help you, I probably know someone who can in your community. I am a member of the Disability Rights Bar Association, whose members may only work for people with disabilities. It is a great group of amazingly good and smart lawyers. Questions? I think I'm done. AUDIENCE MEMBER: Can you explain how to go about using the ADA to get TV and Internet providers to assure they provide captioning that can be understood and not incomprehensible. When they use captioning but it is unreadable, are they complying with the law? JOHN WALDO: Any time we talk about television, we are talking about the Federal Communications Commission (FCC). The law regarding television captioning was part of the ADA, but it was basically broken out and put into another law called the Communications Act. We cannot go into court and enforce our right to quality captions. All we can do is complain to the FCC. There is an online complaint form. I think they're getting better about it. Again, we need to get some FCC people, like Karen Peltz Strauss, involved who are sympathetic to our situation. All we can do is keep trying. I'd love to hear your stories. I'll be here through Sunday. Come up to me and tell me what is bothering you in your community. Thank you.

8 (John Waldo is a practicing attorney who focuses on legal issues arising out of hearing loss, work that combines his 30-year plus years of legal experience with his lifelong experience as a person with significant hearing loss.)

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