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

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

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

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 §36.303(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 §36.303(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.

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

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 §36.303(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 §36.303(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 §36.303(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.”

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 §36.104 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
§36.303(g)(5) of the proposed rule be expanded to incorporate the following provisions from the
Joint Recommendation:

(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 §36.303((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 2010. 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
http://www.nidcd.nih.gov/health/statistics/Pages/quick.aspx. 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

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
http://www.hopkinsmedicine.org/news/media/releases/one_in_five_americans_has_hearing_loss.
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 non-
quantifiable 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.

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 20814

Emilio Alonso-Mendoza
Chief Executive Officer
Alexander Graham Bell Association for the Deaf and Hard of Hearing
3417 Volta Place NW
Washington, DC 20007