The U.S. Department of Justice, which is empowered to enact regulations implementing the ADA, had shown a mild interest in movie captioning as early as 2008, when it indicated that it might enact regulations at some future time. Then in July 2010, very shortly after the Harkins decision came down, DOJ proposed regulations that would require theaters to provide captioning in 50% of their auditoriums.
At this point, the Harkins case was back in district court on remand to ascertain the point, if any, at which captioning would be an undue financial burden. The theater then tried a Hail Mary move, and asked the court to stay any further action pending final DOJ regulations. DOJ filed a Statement of Position opposing the stay, saying that accessibility is required by ADA, that implementation should not await regulations, and that the question of undue burden was one uniquely suited for resolution in court.
Essentially, DOJ told not just the Harkins chain but essentially all theaters that they had two choices. They could either provide closed captioning, or they could be subject to piecemeal litigation in multiple jurisdictions that they would probably lose.
By early 2011, the major theater chains had essentially seen the light and given up. In part to resolve a follow-up case in California, Cinemark and Regal committed to every theater captioning nationwide. In our Washington State case, AMC committed only to doing what DOJ might ultimately require, and argued that providing captioning in every theater would be an undue burden because the cost of providing caption-viewing devices would exceed the revenue those devices might generate. AMC lost that argument in Washington State on the basis that undue burden must be measured based on overall ability to afford the accommodation, not on whether providing them is cost-effective. In less than a month after that state court ruling in Washington State, AMC also agreed to 100% compliance nationwide.
DOJ also realized that its 2010 proposed regulations for captioning at 50% of theaters was outmoded, because it was far less access than was actually being provided. DOJ issued new proposed regulations in 2014 calling for closed captioning in every auditorium of every theater once that theater converts to digital projection. The stated rationale for the regulations is to ensure that the results obtained through litigation are realized on a uniform, nationwide basis.
Final regulations were adopted on December 2, 2016. They are found at 28 CFR 36.303(g). They provide an 18-month phase-in, so the magic date is June 2, 2018 for most theaters. (Theaters that had not converted to digital projection by December 2, 2016 – the publication date for the regulations – have until December 2, 2018 to provide captioning.) The regulations state that caption-viewing devices must be adjustable so that captions can be viewed in the same line of sight as the screen. The regulations also require theaters to provide movie-by-movie notice that captioning is available.
And there we have it – an essentially completed project. But a lot of us remain disappointed that the DOJ and the courts have given controlling weight to the legislative history, and have refused to require open captioning, which most of us prefer. Is there any hope there?
John Waldo is counsel to the Association of Late Deafened Adults (ALDA), a nationwide support and advocacy group, and to the Washington State Communication Access Project (Wash-CAP) and the Oregon Communication Access Project (OR-CAP), two statewide advocacy groups.
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