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DEPARTMENT OF JUSTICE digital projection system, whichever is own, lease, or operate movie theaters to later. provide closed movie captioning 1 and 28 CFR Part 36 FOR FURTHER INFORMATION CONTACT: audio description to patrons with Rebecca Bond, Section Chief, Disability hearing and vision disabilities whenever [CRT Docket No. 126; AG Order No. 3779– such entities exhibit digital movies that 2016] Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307– are distributed with such features, as well as to have available a specific RIN 1190–AA63 0663 (voice or TTY). This is not a toll- free number. Information may also be number of fully operational captioning Nondiscrimination on the Basis of obtained from the Department’s toll-free and audio description devices. Title III of the ADA prohibits public Disability by Public ADA Information Line at (800) 514– accommodations from discriminating Accommodations—Movie Theaters; 0301 (voice) or (800) 514–0383 (TTY). against individuals with disabilities. 42 Movie Captioning and Audio You may obtain copies of the rule in U.S.C. 12182(a). It expressly requires Description alternative formats by calling the ADA Information Line at (800) 514–0301 owners, operators, or lessees of public AGENCY: Department of Justice, Civil (voice) and (800) 514–0383 (TTY). This accommodations to take ‘‘such steps as Rights Division. rule is also available on the may be necessary to ensure that no ACTION: Final rule. Department’s Web site at http:// individual with a disability is excluded, www.ada.gov. denied services, segregated or otherwise SUMMARY: treated differently * * * because of the This final rule amends the SUPPLEMENTARY INFORMATION: Department of Justice (Department) absence of auxiliary aids and services’’ regulation implementing title III of the Relationship to Other Laws unless doing so would result in an Americans with Disabilities Act of 1990 Section 36.103 of the Department’s undue burden or a fundamental (ADA), which prohibits discrimination regulation implementing title III of the alteration. 42 U.S.C. 12182(b)(2)(A)(iii). against persons with disabilities by ADA states that except as otherwise The Department’s existing regulation public accommodations and commercial provided in part 36, that part shall not implementing the obligation of covered facilities, including movie theaters. The be construed to allow a lesser standard entities to ensure effective rule adds specific requirements than the standards applied under title V communication with individuals with addressing the obligations of public of the Rehabilitation Act of 1973 (29 disabilities (28 CFR 36.303(a)–(c)) accommodations that own, lease, or U.S.C. 791) or the regulations issued by specifies that ‘‘open and closed operate movie theaters to provide Federal agencies under that title. In captioning,’’ and ‘‘audio recordings’’ are effective communication to patrons who addition, the title III regulation specifies examples of auxiliary aids and services. are deaf or hard of hearing, or blind or that part 36 does not affect the 28 CFR 36.303(b). have low vision. The rule requires that obligations of a recipient of Federal Despite the longstanding obligation to movie theater auditoriums provide financial assistance to comply with the provide effective communication, closed movie captioning and audio requirements of section 504 of the neither closed movie captioning nor description when showing a digital Rehabilitation Act of 1973 (29 U.S.C. audio description is universally movie distributed with such features 794) and any implementing regulations available at movie theaters across the unless doing so would result in an issued by Federal agencies. Finally, part United States. Data provided to the undue burden or a fundamental 36 does not invalidate or limit the Department by the movie theater alteration. The rule requires movie remedies, rights, and procedures industry in mid-2015 indicates that at theaters to have a specified number of provided under any Federal, State, or that time, approximately 70 percent of captioning devices and audio local law (including State common law) all movie theater auditoriums were description devices based on the that affords greater or equal protection already equipped to provide closed number of auditoriums in the movie to individuals with disabilities or movie captioning and audio description; theater that show digital movies. The individuals associated with them. These however, advocates and individuals rule does not impose any specific provisions remain unchanged. with hearing and vision disabilities requirements for movie theater Compliance with the Department’s ADA have reported that the availability of auditoriums that exhibit analog movies regulations does not ensure compliance these services continues to vary exclusively. with other Federal statutes. significantly depending on a movie theater’s location and ownership. In DATES: This rule is effective January 17, I. Executive Summary 2017. Public accommodations with addition, it is the Department’s view movie theater auditoriums showing A. Purpose of the Rule that the availability of closed movie digital movies on December 2, 2016 The Department of Justice is issuing captioning, and to a lesser extent audio must comply with the rule’s this final rule in order to amend its description, is largely due to successful requirement to provide closed movie regulation implementing title III of the litigation brought by State attorneys captioning and audio description in ADA (42 U.S.C. 12181 et seq.), which general or private plaintiffs representing such auditoriums by June 2, 2018. If a covers public accommodations and individuals with disabilities. As a public accommodation converts a movie commercial facilities—including movie result, although individuals with theater auditorium from an analog theaters. Public accommodations that hearing and vision disabilities are an projection system to a system that it own, lease, or operate movie theaters ever-increasing segment of the aging allows it show digital movies after have an existing obligation to provide population, in many cases they continue December 2, 2016, the public effective communication to persons to be unable to enjoy movies with accommodation must comply with the with disabilities through the use of family or friends, participate in rule’s requirement to provide closed auxiliary aids and services, and this rule conversations about recent movie movie captioning and audio description provides greater specificity as to what 1 In this rule, the Department uses the term in such auditoriums by December 2, those obligations are when showing ‘‘closed movie captioning’’ to refer to the provision 2018, or within 6 months of that digital movies. The rule explicitly of captions to movie theater patrons at their seats auditorium’s complete installation of a requires public accommodations that through the use of individual captioning devices.

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releases, or otherwise take part in any and audio description provide such Sixth, the rule requires movie theaters meaningful way in this important aspect features to patrons with hearing and that exhibit digital movies to provide of American culture. Because the ADA’s vision disabilities at all showings. The the public with notice as to the effective communication requirements rule does not require movie theaters to availability of captioning and audio apply to all public accommodations add captions or audio description for description. This provision is necessary (including movie theaters) and protect movies that are not produced or so that movie patrons who are deaf or the rights of persons with disabilities in distributed with these features. Nor does hard of hearing, or blind or have low every jurisdiction in the United States, the rule prohibit movie theaters from vision, can find out which movies are all movie theaters must ensure that they showing digital movies that are not accessible to them. meet those requirements by providing produced with captioning or audio Finally, the rule requires movie closed movie captioning and audio description or from choosing to show theaters that exhibit digital movies to description upon request to all patrons the analog version of a particular movie, have staff available who are able to who are deaf or hard of hearing, or blind even if that movie is also produced in operate and respond to problems with or have low vision, unless doing so digital format with captioning and audio all equipment necessary to deliver results in an undue burden or a description. The rule also specifies that captioning and audio description and to fundamental alteration. movie theaters that convert from analog show patrons how to use the individual The requirements of this rule are in projection systems to digital cinema devices whenever digital movies with addition to a movie theater’s current projection systems after the publication such features are shown. obligation to provide assistive listening date of the rule in the Federal Register As with other effective systems and receivers pursuant to must comply with the requirements of communication obligations under the sections 219 and 706 of the 2010 ADA the rule either 6 months from the date ADA, public accommodations do not Standards for Accessible Design (2010 of conversion or 24 months from the have to comply with these requirements Standards).2 Assistive listening publication date, whichever is later. to the extent that they constitute an receivers are effective for persons who Third, the rule requires movie undue burden or a fundamental are hard of hearing and who only theaters to have a minimum number of alteration. require sound amplification. They do fully operational captioning devices 3 not, however, provide effective C. Costs and Benefits and to provide them to patrons upon communication for individuals who are request. This requirement is based on In accordance with OMB Circular A– deaf or for individuals who are hard of the number of auditoriums at each 4, the Department has prepared a Final hearing and for whom sound movie theater that exhibit digital movies Regulatory Assessment (Final RA), amplification is insufficient. and is designed to ensure the which assesses the likely costs and Consequently, in order to achieve the availability of a sufficient number of benefits of the rule for all movie theaters goals and guarantees of the ADA and devices for use at peak attendance times subject to the rulemaking over the provide effective communication for by individuals who are deaf or hard of projected life of the rule (15 years). The such individuals, the Department is hearing. Final RA captures the total costs of this convinced that this rule is essential. Fourth, the rule requires movie rulemaking using a baseline, which B. Major Provisions theaters to have a minimum number of represents the Department’s best assessment of the current state of the The major provisions of this rule can fully operational audio description movie exhibition industry, including be summarized as follows. devices 4 and to provide them to patrons First, the requirements of this rule upon request. The rule permits movie the availability of closed movie apply only to public accommodations theaters to use the assistive listening captioning and audio description, if the that own, lease, or operate movie receivers that they are already required rule were not implemented. The theaters with auditoriums that show to provide to patrons pursuant to Department’s Final RA projects that the sections 219 and 706 of the 2010 total costs, benefits, or transfer movies produced in digital cinema 5 format (digital movies). The Department Standards in lieu of dedicated audio payments of this rule will not reach is deferring to a later date the decision description devices if those assistive $100 million in any single year, and whether to engage in rulemaking listening receivers have a second thus, the rule is not economically addressing the application of the channel available to deliver audio significant under Executive Order specific requirements of this rule for description. 12866. For movie theaters with auditoriums closed movie captioning and audio Fifth, the rule permits public exhibiting digital movies, total costs are description to movie theater accommodations to meet their composed of the following components: auditoriums that show movies obligation to provide captioning and • Acquisition costs for captioning exclusively in analog film format audio description in their movie hardware; (analog movies). theaters to persons with hearing and • Acquisition costs for audio Second, the rule requires that within vision disabilities through the use of description hardware; 18 months of the date of publication of alternative technologies, including open • Acquisition costs for captioning the final rule in the Federal Register, movie captioning, so long as that devices; public accommodations that own, lease, technology provides communication as • Acquisition costs for audio or operate movie theaters must ensure effective as that provided to movie description devices; that their movie theater auditoriums patrons without disabilities. that exhibit digital movies produced or 5 Transfer payments are the distributional effects distributed with closed movie captions 3 Section 36.303(g)(1)(iv) of this rule defines of a regulatory action that may arise through the ‘‘captioning device’’ as ‘‘the individual device that transfer of resources from one group to another but 2 28 CFR 36.104 (title III) (defining the ‘‘2010 a patron may use at any seat to view closed movie do not impact the total value of resources available Standards’’ as the requirements set forth in captioning.’’ to society. See Office of Management and Budget, appendices B and D to 36 CFR part 1191 and in 4 Section 36.303(g)(1)(iii) of this rule defines Circular No. A–4, Regulatory Analysis (Sept. 17, subpart D of 28 CFR part 36). The 2010 Standards ‘‘audio description device’’ as ‘‘the individual 2003), available at http://www.whitehouse.gov/ are available at http://www.ada.gov/ device that a patron may use at any seat to hear omb/circulars_a004_a-4/ (last visited Sept. 12, 2010ADAstandards_index.htm. audio description.’’ 2016).

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• Installation costs for captioning and in accordance with this final rule are represents the Department’s best audio description equipment; estimated to be $88.5 million over 15 estimate of the total costs that movie • Replacement costs for captioning years when discounted by 7 percent, theaters will incur as a result of this and audio description equipment; and $113.4 million over 15 years when rulemaking given the available data. • Staff training costs for the provision discounted by 3 percent. This total costs Unless otherwise stated, the Department of captioning and audio description estimate was calculated in the primary refers to cost estimates developed in the equipment; and analysis of the Department’s Final RA. primary analysis of the Final RA • Maintenance and administrative The primary analysis analyzes the cost throughout this rule. See chapters 2 and costs. impact of the final rule by making 3 of the Final RA for a more detailed Based on the Department’s assumptions about the available data, explanation of the primary analysis and calculations, total costs to the movie such as the current availability of closed the data and assumptions relied upon to exhibition industry to provide closed movie captioning and audio description develop the total costs estimate. movie captioning and audio description in movie theaters. The primary analysis

TOTAL COSTS BY COST CATEGORY IN PRIMARY ANALYSIS OVER 15 YEARS [$ millions]

Primary analysis Primary analysis Cost category 7% discounted 3% discounted

Captioning Hardware Acquisition Costs ...... $14.6 $17.2 Audio Hardware Acquisition Costs ...... 0.5 0.5 Captioning Device Acquisition Costs ...... 15.7 17.6 Audio Device Acquisition Costs ...... 2.4 2.8 Installation Costs ...... 1.0 1.1 Replacement Costs ...... 36.1 49.9 Training Costs ...... 9.9 13.1 Maintenance and Administrative Costs ...... 8.2 11.1 Total Costs ...... 88.5 113.4 * Totals may differ due to rounding.

The highest costs occur in the first 2 accordance with the 18-month these annual costs are well below the years of the analysis when movie compliance date. The table below $100 million mark that signifies an theaters incur upfront costs for presents the annual costs to the movie economically significant regulation acquiring and installing the captioning exhibition industry over the 15-year under Executive Order 12866. and audio description equipment in analysis, and it should be noted that

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Movie theaters vary greatly by number auditorium movie theaters. The upfront necessary equipment by the 18-month of auditoriums, which significantly costs per theater are calculated for the compliance date. The average upfront impacts overall costs per facility. Thus, average movie theater within each costs for a megaplex movie theater are the analysis breaks the movie exhibition venue type and presented in the table estimated to total $27,358, while the industry into four venue types based on below. The largest cost per year for any average upfront costs for a single- size: Megaplex movie theaters (16+ single movie theater with auditoriums auditorium movie theater are estimated auditoriums), multiplex movie theaters subject to the rulemaking would occur to total $3,562. (8–15 auditoriums), miniplex movie in the second year due to the upfront theaters (2–7 auditoriums), and single- costs to acquire and install the

AVERAGE PER MOVIE THEATER UPFRONT COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, UNDISCOUNTED [$]

Audio Audio Captioning description Captioning description Installation Total Venue type hardware hardware device device costs upfront acquisition acquisition acquisition acquisition costs

Megaplex ...... $16,158 $205 $8,728 $1,470 $797 $27,358 Multiplex ...... 10,772 205 5,819 980 533 18,309 Miniplex ...... 4,488 205 4,364 490 286 9,834 Single-Auditorium ...... 1,097 308 1,864 190 104 3,562 * Totals may differ due to rounding.

The Final RA also estimates the annualized costs of the $88.5 million in costs of the $113.4 million in total costs annualized costs of the rule by venue total costs over the 15-year period of are $9.5 million. type, as presented in the table below. analysis are $9.7 million. With a 3- With a 7-percent discount rate, the percent discount rate, the annualized

ANNUALIZED COSTS BY VENUE TYPE IN PRIMARY ANALYSIS [$ millions]

Annualized Annualized Venue type costs costs 7% discounted 3% discounted

Megaplex (16+ auditoriums) ...... $3.2 $3.1 Multiplex (8–15 auditoriums) ...... 5.0 5.0 Miniplex (2–7 auditoriums) ...... 1.0 0.9 Single-Auditorium ...... 0.6 0.5

Total ...... 9.7 9.5 * Totals may differ due rounding.

As part of this regulatory analysis and fewer burdens on small entities. Based revenue for firms categorized as small in accordance with the Regulatory on its analysis, the Department has businesses according to the Small Flexibility Act (5 U.S.C. 604), the determined that this rule will have a Business Association (SBA) size Department has conducted a Final significant economic impact on a standard for the movie exhibition Regulatory Flexibility Analysis (FRFA) substantial number of small entities in industry, which is $38.5 million in on the economic impact of this rule on the movie exhibition industry. However, annual revenue. For all firms with small entities. The FRFA has been used as described in further detail in section revenue greater than $100,000,6 the by the Department to help determine VI, infra, the Department has taken average upfront costs are less than 1.5 whether small entities would be appropriate steps to reduce the percent of average annual revenue. For disproportionately burdened. In economic impact of this rule while still all firms with revenues of $2,500,000 or addition, the Department has used the meeting the Department’s rulemaking greater, the average upfront costs are FRFA to examine other ways, if objectives under the ADA. less than 1 percent of annual revenues. possible, to accomplish the The table below presents the average Department’s goals while imposing upfront costs as a percentage of annual

6 Although the FRFA calculates the upfront costs transparency, most of these firms likely operate subject to the requirements of this rule. See infra as a percent of annual revenue for the category of single-auditorium movie theaters that exhibit section VI.D for further detail. firms with less than $100,000 in annual revenue for analog movies exclusively and are therefore not

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AVERAGE UPFRONT COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE CATEGORY, UNDISCOUNTED [2015 $]

Upfront Average Average Average costs as a Revenue category Establishments upfront upfront revenue per percentage per firm costs per costs per firm of revenue establishment firm (%)

Less than $100,000 ...... 1.01 $3,562 $3,591 $54,508 6.6 $100,000 to $499,999 ...... 1.02 3,562 3,631 256,537 1.4 $500,000 to $999,999 ...... 1.06 9,834 10,456 714,762 1.5 $1,000,000 to $2,499,999 ...... 1.15 14,071 16,223 1,542,318 1.1 $2,500,000 to $4,999,999 ...... 1.51 20,987 31,732 3,394,864 0.9 $5,000,000 to $7,499,999 ...... 1.89 20,987 39,575 5,497,029 0.7 $7,500,000 to $9,999,999 ...... 2.58 20,987 54,124 7,697,211 0.7 $10,000,000 to $14,999,999 ...... 4.12 20,987 86,368 12,013,115 0.7 $15,000,000 to $19,999,999 ...... 4.56 20,987 95,606 14,200,444 0.7 $20,000,000 to $24,999,999 ...... 6.00 20,987 125,920 14,314,600 0.9 $25,000,000 to $29,999,999 ...... 11.00 20,987 230,853 22,734,000 1.0 $30,000,000 to $34,999,999 ...... 16.50 20,987 346,280 * n/a * n/a $35,000,000 to $39,999,999 ...... 8.00 20,987 167,893 27,514,000 0.6 * Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.

The final rule, consistent with the persons with disabilities to take part in or satellite networks. Digital production, ADA’s mandate, explicitly addresses the social and cultural movie-going distribution, and exhibition have many equity and fairness considerations. The experience. As a result, the Department advantages over analog film, including Department believes that this regulation is confident that the qualitative benefits better and longer lasting image quality, will benefit millions of Americans, of this rulemaking justify the associated availability of higher resolution images, including those with and without costs. significantly lower production and disabilities. Although these benefits are II. The Movie Industry: Digital Movies distribution costs, ease of distribution, difficult to quantify, they are and the Availability of Captioning and availability of enhanced effects such as nonetheless significant. Foremost Audio Description 3D, ease of exhibition of live events or among the expected benefits from the performances, greater flexibility in regulation is the opportunity for a A. Transformation From Analog Films arranging or increasing show times to greater number of individuals who are to Digital Movies accommodate unanticipated audience deaf or hard of hearing, or blind or have Digital technology has revolutionized demand, and remote monitoring of low vision, to better understand what is the way movies are produced, delivered, projection. See Rajesh K, Digital being said and shown in digital movies and exhibited. For nearly 100 years, Cinema—Advantages and Limitations, exhibited at movie theaters so that they movie studios produced films excITingIP.com (Oct. 2, 2009), available may fully and equally participate in the exclusively in analog film format at http://www.excitingip.com/611/ movie-going experience to the same (analog movies), meaning that they were advantages-limitations-digital-cinema/ extent as persons without these typically shot with 35 mm film, cut and (last visited Sept. 12, 2016). disabilities. In addition to the benefits to spliced for editing, shipped to The shift to digital cinema has led to individuals with disabilities, individual movie theaters on several a precipitous decline in the filming, individuals without disabilities—who large, heavy reels, and exhibited with a distribution, and exhibition of analog will now be able to attend, enjoy, and conventional reel-to-reel movie movies, resulting in enormous discuss movies with their family and projector. All that changed at the uncertainty about the future of the friends that have disabilities—will also beginning of the twenty-first century analog film market. See Helen benefit from this rule. For example, with the development of digital cinema Alexander & Rhys Blakely, The because of this rule, a parent without a technology and the commercial Triumph of Digital Will Be the Death of disability can now attend the movies production of movies in digital cinema Many Movies, New Republic (Sep. 12, with a child who has a hearing or vision format (digital movies).7 2014), available at http:// disability. The parent will now be able Digital cinema captures images, data, www.newrepublic.com/article/119431/ to share the movie-going experience and sound as a digital cinema how-digital-cinema-took-over-35mm- with her child and discuss the film and ‘‘package’’ (DCP) that is stored on a hard film (last visited Sept. 12, 2016); see experience with the child. Similarly, drive or a flash drive. Digital movies are also John Belton, If Film is Dead, What individuals without disabilities who are physically delivered on high resolution is Cinema?, 55 Screen 460, 461–63 learning English as an additional DVDs or removable or external hard (2014), available at http:// language or may be working to improve drives, or can be transmitted to movie english.rutgers.edu/docman/ their literacy skills may also benefit theaters’ servers via Internet, fiber-optic, documents/104-screen-2014-belton-460- from the availability of closed movie 70-2/file.html (last visited Sept. 12, captioning. 7 Star Wars: Episode II—Attack of the Clones, 2016). In 2013, Fujifilm, one of the two released in 2002, was the first major motion picture While many movie theaters do to be shot entirely on digital video. See Helen major producers of movie film stock, provide captioning and audio Alexander & Rhys Blakely, The Triumph of Digital announced it was ceasing production of description to their patrons, many still Will Be the Death of Many Movies, New Republic movie film stock. In 2014, Kodak, the do not provide these auxiliary aids and (Sept. 12, 2014), available at http:// other major producer of movie film newrepublic.com/article/119431/how-digital- services at all or they do not provide cinema-took-over-35mm-film (last visited Sept. 12, stock, after first announcing it would them regularly, creating barriers for 2016). cease production of film stock,

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committed to produce only 449 million republic.com/article/119431/how- content.detail/id/594504/Local- linear feet (as compared to the 12.4 digital-cinema-took-over-35mm-film Theaters-Face-Tough-Times-as-35-mm- billion linear feet it produced in 2006). (last visited Sept. 12, 2016). This faces-extinction.html?nav=5016 (last See Michael Idato, Quentin Tarantino, JJ transition to digital projection systems visited Sept. 12, 2016); see also Colin Abrams Help Save Old-Fashioned Film has accelerated exponentially since Covert, Final Reel Plays Amid Digital Stock, Sydney Morning Herald (July 31, 2008 when the Department first sought Conversion, Star Tribune (Aug. 27, 2014), available at http:// public comment about whether it 2012), available at http:// www.smh.com.au/entertainment/ should engage in rulemaking. At that www.startribune.com/final-reel-plays- movies/quentin-tarantino-jj-abrams- time, the information provided to the amid-digital-conversion/167253335/ help-save-oldfashioned-film-stock- Department through public comment (last visited Sept. 12, 2016); Krista 20140731-zytlw.html (last visited Sept. indicated that only 5,000 of the 38,794 Langlois, As Analog Film Grows 12, 2016). auditoriums 9 (13 percent) had been Obsolete, Western Towns Struggle to Some movie studios have also begun converted to digital. See Advance Keep Theaters Afloat, High Country to release first-run movies exclusively in Notice of Proposed Rulemaking, News (Jan. 10, 2014), available at http:// digital cinema format. For example, Nondiscrimination of the Basis of www.hcn.org/blogs/goat/as-film-grows- both Paramount Pictures and Twentieth Disability; Movie Captioning and Video obsolete-western-towns-struggle-to-keep- Century Fox have completely stopped Description, 75 FR 43467, 43473 (July their-theaters-open (last visited Sept. 12, releasing movies in analog format. See 26, 2010). Based on data from July 2015 2016). Richard Verrier, End of Film: that NATO provided to the Department, C. Availability of Captioning and Audio Paramount First Studio to Stop the Department estimates that more than Description Distributing Film Prints, L.A. Times 98 percent of indoor movie auditoriums (Jan. 17, 2014), available at http:// (or 38,688 auditoriums) in the United Captioning makes movies accessible articles.latimes.com/2014/jan/17/ States have been converted to digital, to individuals who are deaf or hard of entertainment/la-et-ct-paramount- leaving only approximately 650 indoor hearing and who are unable to benefit digital-20140117 (last visited Sept. 12, analog projection systems.10 from the sound amplification provided 2016); Matt Alderton, Films Without As digital technology has advanced, by movie theaters’ assistive listening Film, Profile Magazine (2014), available the number of small movie theaters and receivers. Currently, captioning is at http://profilemagazine.com/2014/ those showing analog movies has also delivered to patrons in one of two twentieth-century-fox (last visited Sept. declined. From 2010 to 2014, single- formats: ‘‘open’’ and ‘‘closed.’’ ‘‘Open’’ 12, 2016). In its comment on the auditorium movie theaters and those movie captioning shows the movie Department’s 2014 Notice of Proposed with up to seven auditoriums declined dialogue and non-speech information in Rulemaking, the National Association of by approximately 25 percent while the written form on or near the screen with Theater Owners (NATO) reported that number of movie theaters with eight or the information visible to all patrons several other movie studios plan to stop more auditoriums increased. See Motion regardless of whether they need to view producing analog movies, and NATO Picture Association of America (MPAA), the captions. ‘‘Closed’’ movie captioning expects independent production displays the movie’s dialogue and non- 8 Theatrical Market Statistics 2014, at 25 companies to follow suit. (2014), available at http:// speech information in written form on B. Digital Conversion of Movie Theater www.mpaa.org/wp-content/uploads/ a captioning device, which is requested Auditoriums 2015/03/MPAA-Theatrical-Market- by the individual patron who wishes to view the captions. To accommodate the motion picture Statistics-2014.pdf (last visited Sept. 12, The motion picture industry and the industry’s shift to the distribution of 2016). Moreover, the number of analog movies in digital format, movie theaters auditoriums declined by more than 92% courts have consistently used the term across the nation have rapidly during that same time period. See id. ‘‘closed captioning’’ to refer to the transformed and have now nearly While small, independent movie provision of captions displayed on completed conversion of their theaters have been the slowest to captioning devices at the patron’s seat. auditoriums to digital projection convert to digital technology, the In the television context, however, the systems. These systems consist Department, consistent with industry term ‘‘closed captioning’’ has typically primarily of a digital server and a digital projections, anticipates that the vast referred to captions that, when projector and typically cost around majority of the remaining analog movie activated, are visible on the TV screen $60,000 to $150,000 per auditorium. See theaters will either convert to digital to all viewers. In this rule, in order to Helen Alexander & Rhys Blakely, The projection systems, or be forced to close avoid confusion with the term used for Triumph of Digital Will Be the Death of because of antiquated equipment and captions provided in the television Many Movies, New Republic (Sep. 12, the decline in the availability of first- context (as well as in other contexts), 2014), available at http://www.new run movies in analog format. See the Department has chosen to use the Lyndsey Hewitt, Local Theaters Face terms ‘‘closed movie captioning’’ and 8 See National Association of Theater Owners, Tough Times as 35 mm Faces ‘‘open movie captioning’’ to specifically Statement of Position on RIN 1190–AA63, CRT Extinction, Williamsport Sun Gazette refer to the captioning provided by Docket No. 126, Nondiscrimination on the Basis of (July 11, 2013), available at http:// movie theaters, except where quoting Disability by Public Accommodations—Movie the legislative history of the ADA or Theaters; Movie Captioning and Audio Description www.sungazette.com/page/ 4, available at http://www.regulations.gov/content specific court decisions. Streamer?documentId=DOJ-CRT-2014-0004- 9 Although the movie industry refers to Closed movie captioning first became 0401&attachmentNumber=4&disposition= ‘‘auditoriums’’ as ‘‘screens’’ throughout its available for analog movies in 1997 but attachment&contentType=pdf (last visited Sept. 12, commentary, the Department believes that ‘‘auditoriums’’ is more accurate. Therefore, the was never available at many movie 2016). NATO is the largest association of motion 11 picture theater owners in the world, and its Department refers to ‘‘auditoriums’’ throughout this theaters. The advent of digital cinema members include the nation’s ten largest movie rule. theater companies as well as hundreds of smaller 10 The remaining venues showing movies using 11 There still is only one technology that provides entities. Together, its member movie theaters analog projection systems are found at drive-in closed movie captioning for analog movies. That operate 32,000 of the 40,000 movie theater movie theaters, which are not subject to the technology, known as Rear Window Captioning, auditoriums in the United States. requirements of the final rule. Continued

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spurred the development of voluntary then recorded and synchronized with equal enjoyment of the goods, services, standards to ensure that products that the movie, included on the audio facilities, privileges, advantages, or provide captioning would be compatible channels in the DCP, and delivered from accommodations of any place of public with the various digital cinema systems a server via infrared, FM, or Wi-Fi accommodation. 42 U.S.C. 12182(a). It available for purchase and used by systems to wireless headsets that specifically categorizes a movie theater movie theaters. As a result, closed patrons wear at their seats. (‘‘motion picture house’’) as a place of movie captioning became more widely Movie studios and distributors public accommodation. 42 U.S.C. available. See Michael Karagosian, determine whether a motion picture is 12181(7)(C). Under title III, public Update on Digital Cinema Support for produced and distributed with accommodations such as movie theaters Those with Disabilities: April 2013, captioning and audio description. In are barred from affording an unequal or available at http://www.mkpe.com/ 1997, movie studios began to lesser service to individuals or classes of publications/d-cinema/misc/ substantially increase the number of persons with disabilities than is offered disabilities_update.php (last visited movies produced with captioning in to other persons. 42 U.S.C. Sept. 12, 2016). response to the Federal 12182(b)(1)(A)(ii). Public There are currently two types of Communications Commission’s accommodations must also ‘‘take such individual devices that are produced to publication of regulations requiring steps as may be necessary to ensure that deliver closed movie captioning for programming shown on television no individual with a disability is digital movies to patrons. These devices (including movies) to be captioned. See excluded, denied services, segregated or receive a transmission from a server via 47 CFR 79.1. Additionally, the motion otherwise treated differently * * * an infrared transmitter or Wi-Fi picture industry’s transformation to because of the absence of auxiliary aids technology. One type of device utilizes digital cinema has made the delivery of and services’’ unless doing so ‘‘would a small, wireless screen attached to a captioning and audio description to fundamentally alter the nature’’ of the flexible goose neck that can be placed in movie theater patrons easier and less service, or ‘‘result in an undue burden.’’ the cup holder at any movie theater seat costly to provide. As early as 2010, the 42 U.S.C. 12182(b)(2)(A)(iii). The statute and adjusted to display captions near or movie industry indicated its specifies that auxiliary aids and services in a patron’s line of vision when looking commitment to provide closed movie include effective methods of making at the movie screen. Alternatively, captioning and audio description for aurally or visually delivered materials special eyeglasses are available that a almost all movies released in digital available to individuals with hearing 12 patron can wear that will exhibit the format. Although the Department does disabilities or vision disabilities, captions directly in front of the wearer’s not have data on the exact percentage of respectively, and expressly covers eyes while watching a movie. digital movies currently produced with ‘‘taped texts.’’ 42 U.S.C. 12103(1)(A)– Open movie captioning has captioning and audio description, the (B). sometimes been referred to as ‘‘burned- Department’s research indicates that While the ADA’s text does not refer to in’’ or ‘‘hardcoded’’ captions because in movie studios and distributors regularly movie captioning, the legislative history the early days of captioning they were include these accessibility features in does. The congressional House and burned in or incorporated into the the DCP at no extra charge to movie Senate committee reports accompanying analog film. Later advancements, theaters. Despite this availability, the legislation noted that ‘‘[o]pen however, enabled studios to however, captioning and audio captioning * * * of feature films superimpose the captions on the screen description are still not consistently playing in movie theaters * * * is not without making a burned-in copy or made available at all movie theaters, or required’’ by the ADA. H.R. Rep. No. having to deliver a special version of the at all showings, to patrons who are deaf 101–485, pt. 2, at 108 (1990); S. Rep. No. movie. Today, open movie captioning is or hard of hearing, or blind or have low 101–116, at 64 (1989). At that time, the available as a digital file that comes vision. only way to create open movie with the DCP. No additional equipment III. Movie Theaters’ Legal Obligation To captioning was to make a separate print is required in order for a movie theater Provide Captioning and Audio of the movie and then laser-etch, or to display the open movie captions for Description ‘‘burn,’’ the captions onto that separate a digital movie. The Department is print.13 The House and Senate A. The ADA and Its Legislative History aware that some movie theaters committees nonetheless endorsed open currently provide open movie The ADA, enacted in July 1990, is a captioning as a means to provide captioning at certain limited showings comprehensive civil rights law that individuals who are deaf or hard of but knows of no movie theater that broadly prohibits discrimination on the hearing equal access to the movies, routinely utilizes open movie basis of disability and seeks to guarantee stating that ‘‘[f]ilmmakers are, however, captioning for all screenings. that individuals with disabilities are encouraged to produce and distribute Audio description, which also became provided the same rights, privileges, open-captioned versions of films and available in 1997, enables individuals and opportunities as other members of theaters are encouraged to have at least who are blind or have low vision to hear the public. The ADA’s mandate covers some preannounced screenings of a a spoken narration of a movie’s key three broad, distinct areas: Employment captioned version of feature films.’’ S. visual elements, including, but not (title I), public services (title II), and Rep. No. 101–116, at 64; see also H.R. limited to, the action, settings, facial places of public accommodation (title Rep. No. 101–485, pt. 2, at 108. expressions, costumes, and scene III). The House committee report also changes. It requires specially trained Title III prohibits discrimination on emphasized that the types of writers to create a separate script that is the basis of disability in the full and accommodations and services provided to individuals with disabilities ‘‘should does not require a separate copy of the film, and 12 The MPAA announced in its comment on the keep pace with the rapidly changing works using a movie theater’s digital sound system. 2010 Advance Notice of Proposed Rulemaking that Captions are sent to a light-emitting display at the almost all new movies released in digital format rear of an auditorium that then reflects and will include closed movie captioning and audio 13 Limited copies of the open-captioned version superimposes the captions onto a panel mounted at description. See 2014 NPRM, 79 FR 44976, 44989 were made and given to only some movie theaters or near a patron’s seat so that the captions appear (Aug. 1, 2014), for a more detailed discussion of the and then only after the uncaptioned version had close to the movie image. MPAA’s comments on the 2010 ANPRM. already been distributed.

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technology of the times.’’ H.R. Rep. No. burden. 28 CFR 36.303(a). The a particular public accommodation. 101–485, pt. 2, at 108. It explained that overarching obligation imposed by the This compliance limitation is intended ‘‘technological advances can be auxiliary aids and services requirement to ensure that the needs of small expected to further enhance options for is that a public accommodation must businesses, as well as large businesses, making meaningful and effective furnish appropriate auxiliary aids and are addressed and protected. The opportunities available to individuals services where necessary to ensure Department defines a fundamental with disabilities’’ and ‘‘[s]uch advances effective communication with alteration as a ‘‘modification that is so may require public accommodations to individuals with disabilities. 28 CFR significant that it alters the essential provide auxiliary aids and services in 36.303(c)(1). The type of auxiliary aid or nature of the goods, services, facilities, the future which today would not be service necessary to ensure effective privileges, advantages, or required.’’ Id. communication varies in accordance accommodations offered.’’ U.S. Neither closed movie captioning nor with the method of communication Department of Justice, Americans with audio description existed when the used by the individual; the nature, Disabilities Act ADA Title III Technical ADA was enacted. Both, however, fall length, and complexity of the Assistance Manual Covering Public within the type of auxiliary aid communication involved; and the Accommodations and Commercial contemplated by the statute. Given the context in which the communication is Facilities III–4.3600 (1993), available at current availability of digital movies taking place. 28 CFR 36.303(c)(1)(ii). http://www.ada.gov/taman3.html. with closed movie captioning and audio Moreover, in order to be effective, The current section 36.303(g) description, as well as the individual auxiliary aids and services must be (renumbered as 36.303(h) in this final devices to provide those accessibility provided in accessible formats and in a rule) provides that if the provision of a features to movie patrons who are deaf timely manner. Id. For individuals who particular auxiliary aid or service by a or hard of hearing, or blind or have low are deaf or hard of hearing and who are public accommodation would result in vision, the Department believes that a unable to effectively use the assistive an undue burden or a fundamental rule requiring movie theaters to offer listening receivers currently provided in alteration, the public accommodation is closed movie captioning and audio movie theaters to amplify sound, the not relieved of its obligation to provide description for digital movies fits only auxiliary aid presently available auxiliary aids and services. The public comfortably within the meaning of the that would effectively communicate the accommodation is still required to ADA’s mandate. dialogue and sounds in a movie is provide an alternative auxiliary aid or B. Title III’s Implementing Regulation captioning. Likewise, for individuals service, if one exists, that would not who are blind or who have low vision, result in such a burden or alteration but Title III’s implementing regulation the only auxiliary aid presently would nevertheless ensure that, to the reiterates the statute’s requirements and available that would effectively maximum extent possible, individuals spells out in detail a public communicate the visual components of with disabilities receive the goods and accommodation’s obligation to furnish a movie is audio description. auxiliary aids and services to As stated above, a public services offered by the public individuals with disabilities. 28 CFR accommodation is relieved of its accommodation. 36.303(c)(1). The regulation’s list of obligation to provide a particular It has been, and continues to be, the examples of ‘‘auxiliary aids and auxiliary aid if to do so would result in Department’s position that it would not services’’ that public accommodations an undue burden or a fundamental be a fundamental alteration of the should provide includes ‘‘open and alteration. To that end, the Department’s business of showing movies in theaters closed captioning’’ as examples of title III regulation specifically defines to exhibit movies already distributed effective methods of making aurally undue burden as ‘‘significant difficulty with closed movie captioning and audio delivered information available to or expense’’ and, emphasizing the description in order to ensure effective individuals with hearing disabilities flexible and individualized nature of communication for individuals who are and ‘‘audio recordings’’ as an example any such determination, lists five factors deaf or hard of hearing, or blind or have of an effective method of making that must be considered when low vision. The service that movie visually delivered materials available to determining whether an action would theaters provide is the screening or individuals with vision disabilities. 28 result in an undue burden. 28 CFR exhibiting of movies. The use of CFR 36.303(b)(1)–(2). The Department 36.104.14 The undue burden captioning and audio description to updated this list in 2010 to reflect determination entails a fact-specific make that service available to those who changes in technology and the auxiliary examination of the cost of a specific are deaf or hard of hearing, or blind or aids and services commonly used by action and the specific circumstances of have low vision, does not change that individuals who are deaf or hard of service. Rather, the provision of such hearing, or blind or have low vision. 75 14 These factors include: (1) The nature and cost auxiliary aids is the means by which FR 56236, 56253–54 (Sept. 15, 2010). of the action; (2) the overall financial resources of these individuals gain access to movie The title III regulation states that a the site or sites involved in the action; the number theaters’ services and thereby achieve of persons employed at the site; the effect on public accommodation shall take those expenses and resources; legitimate safety the ‘‘full and equal enjoyment,’’ 42 steps that may be necessary to ensure requirements that are necessary for safe operation, U.S.C. 12182(a), of the screening of that no individual with a disability is including crime prevention measures; or the impact movies. See, e.g., Brief for the United otherwise of the action upon the operation of the excluded, denied services, segregated, site; (3) the geographic separateness, and the States as Amicus Curiae Supporting or otherwise treated differently than administrative or fiscal relationship of the site or Appellants and Urging Reversal at 15– other individuals because of the absence sites in question, to any parent corporation or 17, Arizona ex rel. Goddard v. Harkins of auxiliary aids and services, unless the entity; (4) if applicable, the overall financial Amusement Enters., Inc., 603 F.3d 666 resources of any parent corporation or entity; the public accommodation can demonstrate overall size of the parent corporation or entity with (9th Cir. 2010) (No. 08–16075); see also that providing such aids and services respect to the number of its employees; and the 2014 NPRM, 79 FR 44976, 44982–83 would fundamentally alter the nature of number, type, and location of its facilities; and (5) (Aug. 1, 2014).15 the goods, services, facilities, privileges, if applicable, the type of operation or operations of any parent corporation or entity, including the advantages, or accommodations being composition, structure, and functions of the 15 The Department received no public comments offered or would result in an undue workforce of the parent corporation or entity. challenging that position.

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C. Federal Appellate Case Law discretion to select the appropriate comments in response to 26 questions The Ninth Circuit is the only Federal technology should captioning and audio falling into six categories: Coverage of court of appeals to address the question description be required for patrons with any proposed rule; transition to digital whether the ADA requires movie hearing and vision disabilities. cinema; equipment and technology for theaters to provide captioning and audio Nonetheless, the Department inquired both analog and digital movies; notice; description to patrons who are deaf or whether it should require movie training; and cost and benefits of hard of hearing, or blind or have low theaters to exhibit all new movies with captioning and audio description. While vision. See Arizona ex rel. Goddard v. captioning and audio description at the Department did not propose specific Harkins Amusement Enters., Inc., 603 every showing or offer those features on regulatory language, it noted that it was F.3d 666 (9th Cir. 2010). In Harkins, the a limited basis. considering a rule that would require 50 Ninth Circuit reversed a district court Most of the commenters on the 2008 percent of movie theater screens decision dismissing a complaint for NPRM who addressed the issue of (auditoriums) 17 to offer captioning and failure to state a claim and held that captioning and audio description audio description over a 5-year period ‘‘closed captioning’’ and audio recommended that the Department issue and specifically sought comment on that description are ‘‘auxiliary aids and regulations requiring movie theaters to approach. 75 FR at 43474. services’’ that the ADA may require provide both features at all showings The Department received over 1150 movie theaters to provide. Id. at 668, unless doing so would result in an comments on the 2010 ANPRM. Almost 675. Evaluating the statute’s language, undue burden or a fundamental all commenters favored a rule that implementing regulation, and case law, alteration. These commenters urged the required movie theaters to provide the Harkins court reasoned that because Department to act promptly and not captioning and audio description, and a public accommodation has a duty to await completion of movie theaters’ the vast majority recommended that provide auxiliary aids and services, ongoing conversion to digital cinema these features be required at all movie including ‘‘closed captioning’’ and because the technology for captioning showings. Although industry audio description, a movie theater and audio description had been commenters recommended that unlawfully discriminates when it fails available for approximately ten years compliance be phased in over a 5-year to offer ‘‘closed captioning’’ and audio and few movie theaters provided either schedule with 20 percent compliance description to persons who have feature to their patrons. Commenters each year, most commenters difficulty hearing or seeing, absent proof affiliated with the movie industry recommended that the requirement be that those features would fundamentally opposed the Department requiring implemented immediately. alter the nature of the theater’s services movie theaters to offer captioning or C. The 2014 Notice of Proposed or constitute an undue burden. Id. at audio description and claimed that the Rulemaking on Movie Captioning and 675. cost of the necessary equipment would constitute an undue burden. They also Audio Description IV. Rulemaking History Regarding maintained that if the Department After considering all of the comments Captioning and Audio Description decided to issue a rule, the effective on the 2010 ANPRM and the rapid rate A. Prior to 2010 date should be delayed until movie at which movie theaters were converting theaters completed their conversion to from analog to digital projection On September 30, 2004, the digital cinema. See Advance Notice of Department published an Advance systems, the Department published a Proposed Rulemaking, Notice of Proposed Rulemaking on Notice of Proposed Rulemaking Nondiscrimination on the Basis of announcing its intention to update the August 1, 2014, entitled Disability; Movie Captioning and Video Nondiscrimination on the Basis of 1991 title II and title III ADA regulations Description, 75 FR 43467 (July 26, and to adopt revised ADA Accessibility Disability by Public Accommodations— 2010), for a more detailed discussion of Movie Theaters; Movie Captioning and Standards. 69 FR 58768 (Sept. 30, 2004) comments on the 2008 NPRM. (2004 ANPRM). While the 2004 ANPRM Audio Description, 79 FR 44976 (Aug. 1, did not mention movie captioning or B. The 2010 Advance Notice of 2014) (2014 NPRM). In the 2014 NPRM, audio description, several commenters Proposed Rulemaking on Captioning the Department proposed that movie suggested that the Department issue a and Video Description theaters be required to provide rule regulating these features. In 2010, uncertain about the status of captioning and audio description at all Subsequently, when the Department digital conversion, the availability of scheduled showings of any movie that issued a Notice of Proposed Rulemaking captioning and audio description is produced or otherwise distributed in June 2008, 73 FR 34508 (June 17, technology, and financial setbacks to with such features. 79 FR at 44977. The 2008) (2008 NPRM), proposing many public accommodations due to Department also proposed that each comprehensive updates to the title III the downturn in the economy over the movie theater have available a certain regulation relating to nondiscrimination ensuing 2 years, the Department number of captioning devices based on on the basis of disability by public published the Advance Notice of the number of seats in the movie theater accommodations and commercial Proposed Rulemaking, and have available a certain number of facilities, the Department announced Nondiscrimination on the Basis of audio description devices based on the that it was considering rulemaking that Disability; Movie Captioning and Video number of screens (auditoriums) in the would require movie theaters to provide Description, 75 FR 43467 (July 26, 2010) theater. 79 FR 44976. The Department captioning and audio description for (2010 ANPRM), specifically addressing further proposed that movie theaters ‘‘closed [movie] captioning’’ and ‘‘video patrons who are deaf or hard of hearing, 17 16 In the 2010 ANPRM, the Department used the or who are blind or have low vision. 73 description.’’ The Department sought term ‘‘screens’’ to describe the movie theater FR at 34530–31. facilities that needed to be capable of providing The 2008 NPRM did not propose any 16 The 2010 ANPRM used the term ‘‘video captioning and audio description, but the specific regulatory language addressing description’’ to refer to the provision of descriptive Department has replaced the term ‘‘screens’’ with information about a movie to persons who are blind the term ‘‘auditoriums’’ in the final rule. Although captioning and audio description. or have low vision. As discussed in this rule, the the terms are synonymous in the movie theater Rather, the Department emphasized that Department is now using the term ‘‘audio context, the Department believes that movie theaters should be left with the description.’’ ‘‘auditoriums’’ is more accurate.

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provide notice of the availability of D. Need for Regulatory Action 2. Movie Patrons With Hearing and captioning and audio description as Vision Disabilities 1. Movies in American Culture well as ensure that knowledgeable staff Individuals with hearing and vision are available to operate the equipment Going to the movies is a disabilities represent a significant and assist patrons in the use of the quintessential American experience. portion of the American population. captioning and audio description ‘‘Movie theaters continue to draw more According to the 2010 Census, 7.6 devices. 79 FR 44976–77. The people than all theme parks and major million Americans ages 15 and older Department sought public comment in U.S. sports combined.’’ MPAA, reported that they experience a hearing response to 21 multi-part questions Theatrical Market Statistics 2014, at 10 difficulty (defined as experiencing addressing a variety of areas, including (Mar. 2015), available at http:// deafness or having difficulty hearing a the state of the movie industry; the www.mpaa.org/wp-content/uploads/ normal conversation, even when proposed definitions and the 2015/03/MPAA-Theatrical-Market- wearing a hearing aid). Of those nomenclature to be adopted; the Statistics-2014.pdf (last visited Sept. 12, individuals, 1.1 million reported having compliance date; the basis for 2016). In addition, going to the movies a severe difficulty hearing. Census data determining the number of devices is an important part of the American also reflects that 8.1 million Americans required at each theater; the alternatives family experience. Long holiday ages 15 and older reported having some for analog as well as small theaters; and weekends offer the movie industry some difficulty seeing (defined as the Department’s methodology for of its biggest box office sales as families experiencing blindness or having estimating the costs and benefits of the gather for the holidays and attend the difficulty seeing words or letters in rule. movies together. ordinary newsprint even when normally wearing glasses or contact lenses). Of The Department received 436 It has long been recognized that those individuals, 2.0 million reported comments from a range of stakeholders, movies are undoubtedly a part of our that they were blind or unable to see. including individuals, both with and shared cultural experience and the See U.S. Census Bureau, U.S. without disabilities, advocacy groups subject of ‘‘water cooler’’ talk and Department of Commerce, P70–131, representing individuals with lunch-time conversations. More than Americans with Disabilities: 2010 disabilities, State and Federal entities, half a century ago, the Supreme Court Household Economic Studies at 8 movie industry representatives, private observed that motion pictures ‘‘are a (2012), available at http:// companies, and other organizations. The significant medium for the www.census.gov/prod/2012pubs/p70- Department received a joint comment communication of ideas,’’ and their 131.pdf (last visited Sept. 12, 2016). submitted by the National Association ‘‘importance * * * as an organ of public Hearing and vision loss are highly of Theater Owners in conjunction with opinion is not lessened by the fact that correlated with aging. Census data the Alexander Graham Bell Association they are designed to entertain as well as indicates that for people aged 65 or for the Deaf and Hard of Hearing, the to inform.’’ Joseph Burstyn, Inc. v. older, 4.2 million have difficulty Association of Late Deafened Adults, Wilson, 343 U.S. 495, 501 (1952). The hearing and 3.8 million reported having the Hearing Loss Association of Court emphasized that motion pictures difficulty seeing. Id. As the nation’s America, and the National Association ‘‘may affect public attitudes and population ages, the number of of the Deaf (Joint Comment), which behavior in a variety of ways, ranging individuals with hearing or vision loss included a variety of specific from direct espousal of a political or will increase significantly.19 Research recommendations.18 In addition, the social doctrine to the subtle shaping of indicates that the number of Americans Department participated in a roundtable thought which characterizes all artistic with hearing loss has doubled during sponsored by the Office of Advocacy of expression.’’ Id. When individuals who the past 30 years. See American Speech- the Small Business Administration at are deaf or hard of hearing, or blind or Language-Hearing Association, The which organizations representing small have low vision, have the opportunity to Prevalence and Incidence of Hearing movie theaters as well as individual attend and actually understand movies Loss in Adults, available at http:// with the aid of captioning or audio www.asha.org/public/hearing/disorders/ owners expressed their views. _ description, they are exposed to new prevalence adults.htm (last visited Overall, the commenters supported ideas and gain knowledge that not only Sept. 12, 2016). Similarly, experts the Department’s stated purpose for contributes to their development, predict that by 2030 rates of severe proposing the rule. Individuals and communication, and literacy, but more vision loss will double in industry representatives alike fundamentally, integrates them into correspondence with the country’s aging recognized that captioning and audio society. population. See American Foundation description in movie theaters is for the Blind, Aging and Vision Loss necessary in order to provide equal In response to the 2014 NPRM, Fact Sheet, available at http:// access to individuals with hearing and commenters with hearing and vision www.afb.org/section.aspx? vision disabilities. Nearly all disabilities consistently reported that FolderID=3&SectionID=44& commenters disagreed, however, with they were unable to take part in the TopicID=252&DocumentID=3374 (last the Department’s basis for determining movie-going experience because of the visited Sept. 12, 2016). These increases the number of devices required at each unavailability of captioning or audio movie theater, including the number of description at their local movie theaters. 19 The percentage of Americans approaching captioning devices required. Most Many individuals stated that the lack of middle age or older is increasing. The 2010 Census these accessibility features not only reported that from 2000 to 2010, the percentage of commenters also objected to the adults aged 45 to 64 years increased by 31.5 percent Department’s proposed 6-month affected their ability to socialize and while the population aged 65 and over grew at a compliance date. fully take part in group or family rate of 15.1 percent. By contrast, the population of outings, but also deprived them of the adults between 18 and 44 grew by only 0.6 percent. opportunity to meaningfully engage in U.S. Census Bureau, U.S. Department of Commerce, 18 The specific recommendations proposed in the C2010BR–03, Age and Sex Composition: 2010, at 2 Joint Comment and all other comments are the discourse relating to current movie (2011), available at www.census.gov/prod/cen2010/ addressed in the Section-by-Section Analysis. releases. briefs/c2010br-03.pdf (last visited Sept. 12, 2016).

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will likely lead to corresponding requires movie theaters to provide the Department that despite the increase increases in the number of people who because these devices only provide in the availability of captioning and will need captioning or audio sound amplification, and, for such audio description in many parts of the description. While not all of these individuals, amplification is insufficient country, these features are still not individuals will necessarily take to effectively communicate the dialogue consistently available at all movie advantage of the captioning and audio and sounds taking place in the movie.21 theaters. description that will be provided under The Department believes that access 3. Voluntary Compliance this rule, a significant portion of the to movie theaters for persons who are population could directly benefit from Some movie industry commenters deaf or hard of hearing, or blind or have their availability (see infra section V.A.4 asserted that because many movie low vision, should not depend upon for a more detailed discussion of the theater companies already provide where they live.23 The Department population eligible to receive benefits). captioning and audio description, the believes it is in the interest of both the Several commenters on the 2014 Department should refrain from movie theater industry and persons with NPRM objected to the Department’s regulating in this area and continue to disabilities to have consistent reliance on Census data and argued that rely on ‘‘voluntary compliance’’ by the requirements for captioning and audio such reliance caused the Department to movie theaters. However, individuals description throughout the United overstate the number of persons with with hearing and vision disabilities and States and that this is best accomplished hearing and vision disabilities who will other commenters noted that despite the through revising the ADA’s title III actually use the captioning and audio fact that captioning and audio regulation. As commenters noted, a description devices required by this description have been available for more consistent, nationally applicable rule. Others from the deaf, hard of than a decade and those features are regulation ensures that individuals with hearing, blind, and low vision widely available to movie theaters at no hearing and vision disabilities can go to communities asserted that the number additional charge, many movie theaters the movies with confidence knowing of individuals who experience hearing still only show movies with captioning that their movie theater offers these and vision disabilities is actually much and audio description at intermittent services. The Department is persuaded higher than reported in the most current times, and some movie theaters do not that it should move forward with this Census.20 According to these comments, offer these services at all. regulation so that the current and ever- individuals who have recently The Department recognizes that since increasing number of individuals with developed hearing or vision disabilities the publication of its 2010 ANPRM (see hearing and vision disabilities who are fail to define themselves as such for supra section IV.B) the number of movie unable to enjoy the services offered by purposes of the formal U.S. Census theaters that are showing movies with movie theaters are afforded equal access process. However, none of these closed movie captioning and audio to this facet of American life. commenters provided data sources description, as well as their regularity in V. Regulatory Process Matters concerning the number of persons who offering those features, has increased are deaf, hard of hearing, blind, or have significantly. This described increase is A. Executive Orders 12866 and 13563— low vision, that are as comprehensive as attributable in large part to settlements Summary of Regulatory Assessment of Federal or State disability rights the Census data. Thus, the Department Executive Orders 12866 and 13563 lawsuits brought by private plaintiffs or continues to rely on Census data and direct agencies to assess all costs and State attorneys general against believes it to be the most accurate benefits of available regulatory individual movie theater companies in available information regarding the alternatives and, if regulation is number of persons in the population particular jurisdictions within the 22 with these disabilities. United States. Commenters advised Deafened Adults, Inc. v. Cinemark Holdings, Inc., While the Department recognizes that No. 10548765 (Cal. Super. Ct. Nov. 30, 2010) it is unlikely that persons with hearing 21 ‘‘While we tend to think that the only factor in (complaint relating to later settlement requiring and vision disabilities attend the movies hearing loss is loudness, there are actually two Cinemark to provide closed movie captioning in all factors involved: loudness and clarity. Loss of its California theaters); Press Release, Cinemark with greater regularity than do persons generally occurs first in the high pitch, quiet range. Holdings, Inc., Cinemark and ALDA Announce without disabilities, some individuals A mild loss can cause one to miss 25–40% of Greater Movie Theatre Accessibility for Customers with hearing and vision disabilities speech, depending on the noise level of the Who Are Deaf or Hard-of-Hearing (Apr. 26, 2011), undoubtedly do not go to movies surroundings and distance from the speaker. When available at http://www.cinemark.com/ there is background noise it becomes difficult to pressreleasedetail.aspx?node_id=22850 (last visited because the absence of captioning and hear well, the speech may be audible but may not Sept. 12, 2016). audio description makes it impossible be understandable.’’ Self Help for Hard of Hearing 23 It is the Department’s understanding that for them to understand what is People of Oregon, Facing the Challenge: A persons who live in communities served only by happening. The Department also notes Survivor’s Manual for Hard of Hearing People smaller regional movie theater chains are less likely that many people with hearing loss are (revised 4th ed. Spring 2011), available at http:// to have access to captioned and audio-described www.hearinglossky.org/hlasurvival1.html (last movies than individuals with disabilities who live unable to use the assistive listening visited Sept. 12, 2016). in California, Arizona, or any of the major cities receivers that the ADA currently 22 See, e.g., Press Release, Illinois Attorney with movie theaters operated by Regal, Cinemark, General, Madigan Announces Settlement with AMC or AMC. The Department bases this belief on its 20 For example, a Johns Hopkins University Theatres (Apr. 4, 2012), available at http:// review of the information provided by Captionfish, _ epidemiological study conducted by Frank Lin, illinoisattorneygeneral.gov/pressroom/2012 04/ which is a nationwide search engine that monitors M.D., Ph.D., which is believed to articulate the first 20120404.html (last visited Sept. 12, 2016) which movie theaters offer both closed and open nationally representative estimate of hearing loss, (settlement providing for captioning and audio movie captioning and audio description and estimates that approximately 48 million Americans description technology in all AMC theaters in the updates its Web site regularly. See Captionfish, have hearing loss in at least one ear, and State of Illinois); Wash. State Commc’n Access Frequently Asked Questions, http:// approximately 30 million Americans have hearing Project v. Regal Cinemas, Inc., 293 P.3d 413 (Wash. www.captionfish.com/faq (last visited Sept. 12, loss in both ears. ‘‘Hearing loss’’ was defined as not Ct. App. 2013) (upholding trial court decision 2016). The Department also bases this belief on being able to hear sounds of 25 decibels or less in under Washington Law Against Discrimination information from comments that accessibility is speech frequencies. See News Release, Johns requiring six movie theater chains to provide scarce outside of major metropolitan areas. Hopkins Medicine, One in Five Americans Has captioning in the screening of movies in order to Advocacy groups commented that they consistently Hearing Loss (Nov. 14, 2011), available at http:// accommodate persons who are deaf or hard of receive complaints from individuals with hearing www.hopkinsmedicine.org/news/media/releases/ hearing); Consent Decree, Arizona ex rel. v. Harkins and vision disabilities who are denied equal access one_in_five_americans_has_hearing_loss (last Amusement Enters., Inc., No. CV07–703 PHX ROS at movie theaters operated by companies not subject visited Sept. 12, 2016). (D. Ariz. Nov. 7, 2011); Complaint, Ass’n of Late- to the various settlement agreements.

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necessary, to select regulatory movie theaters) in every jurisdiction in 2. Public Comments on the Initial approaches that maximize net benefits the U.S. and should be consistently Regulatory Assessment and Department (including potential economic, applied using a uniform ADA standard. Responses environmental, public health and safety The right to access movies exhibited This section discusses comments on effects, distributive impacts, and with closed movie captioning and audio the Initial Regulatory Assessment dated equity). Executive Order 13563 description should not depend on July 11, 2014 (Initial RA), provided in emphasizes the importance of whether the person with a disability support of the 2014 NPRM. The quantifying both costs and benefits, of resides in a jurisdiction where movie Department received 436 comments reducing costs, of harmonizing rules, theaters subject to a consent decree or during the 2014 NPRM comment period and of promoting flexibility. The settlement exhibit movies with closed from a variety of stakeholders, including Department has assessed the costs and movie captioning or audio description. movie industry representatives, benefits of this final rule and believes individuals with disabilities, advocacy that the rule’s benefits justify its costs, And, even in jurisdictions where groups representing individuals with and that the regulatory approach theaters exhibit movies with captioning disabilities, State and Federal entities, selected maximizes net benefits. and audio description, many do not In keeping with Executive Order make captioning and audio description academic organizations, private 12866, the Department has evaluated available at all movie showings. Thus, companies, and other private this rule to assess whether it would some persons who are deaf or hard of individuals. Many of these comments likely ‘‘[h]ave an annual effect on the hearing, or blind or have low vision, directly addressed the assumptions, economy of $100 million or more or still cannot fully take part in movie- data, or methodology used in the Initial adversely affect in a material way the going outings with family or friends, RA. economy, a sector of the economy, join in social conversations about recent The Guidance and Section-by-Section productivity, competition, jobs, the movie releases, or otherwise participate Analysis, Appendix F, infra, is the primary forum for substantive responses environment, public health or safety, or in a meaningful way in an important to the comments addressing the State, local, or tribal governments or aspect of American culture. communities.’’ E.O. 12866, § 3(f)(1). The proposed regulation generally. A Department’s Final RA shows that this The Department is convinced that summary and discussion of comments regulation does not represent an regulation is warranted at this time in as they relate to small entities can be economically ‘‘significant’’ regulatory order to achieve the goals and promise found below in section VI.B. of the ADA. Through this rule, the action within the meaning of Executive General Comments Regarding the Initial Department is explicitly requiring Order 12866. RA’s Cost Estimation The Department’s full Final RA can be movie theaters to exhibit digital movies found on the Department’s Web site at with closed movie captioning and audio The Department reviewed a number http://www.ada.gov. The Department description at all times and for all of comments suggesting that the refers to sections of the Final RA showings whenever movies are Department underestimated the costs of throughout. produced, distributed, or otherwise complying with this rule. Commenters made available with such features disagreed with a variety of cost 1. Purpose and Need for Rule and Scope estimates provided in the Initial RA. As of Regulatory Assessment unless to do so would result in an undue burden or a fundamental a threshold matter, the Department As described in greater detail in agrees that in some instances, the alteration. section III, supra, and section 1.1 of the estimates provided did not accurately Final RA, public accommodations that The purpose of the Final RA is to capture a particular cost of compliance. own, lease, or operate movie theaters capture the incremental costs of the For example, after reviewing the public have an existing obligation to provide rulemaking. As a result, the Final RA comments, the Department determined effective communication to persons only includes the costs that movie that the staff training costs estimated in with disabilities through the use of theaters will incur as a direct result of the Initial RA did not adequately auxiliary aids and services. This rule this rulemaking. It is the Department’s capture the costs to comply with the provides greater specificity as to how position that movie theaters that have operational requirements of the rule, these effective communication already acquired the necessary and the equipment unit costs used in obligations are met when showing equipment prior to the rulemaking have the Initial RA did not represent the most digital movies that are produced, done so consistent with their current market price of the available distributed, or otherwise made available longstanding obligation to provide equipment. As a result, the Department with captioning and audio description. effective communication as public has updated these estimates in response While there has been an increase in accommodations, and as a result, the to the public comments received. the number of movie theaters exhibiting costs associated with providing closed However, the Department is confident movies with closed movie captioning movie captioning and audio description that other estimates were reasonable and (and, to a lesser extent, audio in such auditoriums cannot be directly remain supported by the Department’s description) due in large part to attributed to this rulemaking. The independent research. In consideration successful disability rights litigation of all comments, the Department has analysis also assumes that movie brought by private plaintiffs and State made adjustments where appropriate. theaters with auditoriums currently attorneys general during the past few The comments at issue and related equipped to provide closed movie years, the availability of movies comments are specifically addressed exhibited with closed movie captioning captioning and audio description would below. and audio description varies also operate and maintain this significantly across the U.S. depending equipment in the absence of this rule. Comments Regarding the Cost of upon locality and movie theater Therefore, these costs are not included Captioning and Audio Description ownership. The ADA requirements for in the Final RA’s total costs estimation Equipment effective communication apply to all unless specifically noted. In the Initial RA, the Department public accommodations (including estimated the costs of compliance with

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the proposed rule by estimating the updated information. See section 3.4 of Therefore, while other large movie number of hardware units and device the Final RA for a more detailed theater establishments may choose to units the average movie theater within discussion of the captioning and audio use Sony’s technology, the Department each venue type 24 would need in order description unit costs and their impact has excluded this equipment from its to comply with the scoping on the Final RA. estimate of the upfront costs for single- requirements, which determine the In the Initial RA, the Department auditorium movie theaters. See section number of captioning devices and audio estimated the upfront costs for the 3.4 of the Final RA for a more detailed description devices a movie theater is captioning and audio description discussion of Sony equipment unit costs required to have and maintain. Because equipment by averaging the hardware and their impact on the Final RA. the proposed scoping for captioning and device unit costs of some Comments Regarding Other Cost devices was based on the number of equipment available on the market. One Estimates: Staff Training, Notice, seats within a movie theater, the commenter stated that the Department’s Installation, Replacement, and Department estimated the average seat methodology concerning the average Operation and Maintenance count across each venue type. The hardware and device unit costs for Department also estimated the average captioning and audio description In addition to the comments number of auditoriums across each equipment was insufficient because it addressing the captioning and audio venue type to estimate the number of only averaged the costs of the less description equipment cost estimates, audio description devices and hardware expensive equipment. According to the the Department received a number of units needed. One commenter noted commenter, many movie theaters comments addressing other cost that the Department’s estimates purchase the more expensive captioning estimates provided in the Initial RA. regarding the number of seats and glasses offered by Sony to satisfy These comments addressed the auditoriums were too low, especially for audience demand, and as a result, the Department’s estimate of staff training single-auditorium and miniplex movie Initial RA substantially underestimated costs, notice costs, acquisition and theaters. Because of this the cost of compliance by excluding the installation costs, replacement costs, underestimation, the commenter cost of Sony’s equipment from the and operation and maintenance costs. believed that small movie theater average cost estimates. A second Overall, commenters indicated that the establishments would be required to commenter pointed out that the intent Department either failed to include purchase many more captioning devices of the RA is to estimate the minimum these costs in its estimates or that the than the Department assumed in its cost cost of compliance, indicating that the Department’s estimate for these costs analysis. Based on industry survey Department’s methodology and estimate was too low. information provided by the National regarding the upfront costs were The Department originally included Association of Theater Owners (NATO) reasonable. staff training costs associated with the in its individual comment, the Executive Order 12866 requires the rule in its estimate of the annual Department has updated the Final RA Department to estimate the costs that operations and maintenance costs, but cost estimation to reflect new data movie theaters will incur as a result of the Department sought public comment regarding average auditorium counts this rulemaking. Currently, there is on the amount of additional time movie across venue types. Data concerning more than one manufacturer of the theaters would spend training their average seat count is no longer relevant equipment necessary to provide employees to operate the captioning and because the final rule’s scoping for captioning and audio description, and audio description devices and to assist captioning devices is based on the the cost for the equipment varies among patrons in their use. The Department number of auditoriums, rather than the the manufacturers. The Department has received a single comment in response number of seats, within a movie theater. not specified the manufacturer from to this question. One movie theater See section 3.3 of the Final RA for a which movie theaters must purchase the anticipated that movie theaters would more detailed discussion of the scoping equipment, and movie theaters retain spend an additional 15 minutes on requirements of this rulemaking and the discretion to purchase the employee training to ensure that their their impact on the Final RA. equipment of their choice. As a result, staff was knowledgeable about the The Department also received the Department has included the cost equipment and in compliance with the multiple comments concerning the unit for all available equipment, including rule’s operational requirements. In costs for the hardware and individual the Sony equipment, in its estimate of consideration of this comment, the devices as well as the Department’s the captioning and audio description Department has included a separate methodology regarding these estimates. equipment unit costs for miniplex, estimate for the staff training costs NATO provided the most recent unit multiplex, and megaplex movie associated with the operational cost data for all captioning and audio theaters. The Department has not added requirements of the final rule. The description equipment currently the cost of the Sony equipment to its information provided by the movie available on the market, and the estimate of hardware and device unit theater commenter serves as the basis Department has updated its cost costs for single-auditorium movie for the staff training costs estimate. See estimates in the Final RA to reflect this theaters because the Department section 3.7 of the Final RA for a more remains convinced that small movie detailed discussion of the data, research, 24 In the Initial RA, the Department used the term theater establishments are highly and assumptions used to estimate staff ‘‘theater type’’ to describe the movie industry’s unlikely to purchase the more expensive training costs. classification of movie theaters based on the equipment. As the Department’s The Department received only a few number of auditoriums within a movie theater independent research indicates, the less comments regarding its position that complex. In the Final RA, the Department has replaced ‘‘theater type’’ with ‘‘venue type’’ in order expensive cup holder captioning any cost associated with the notice to avoid potential confusion with the classification devices account for the largest requirement would be de minimis. One of movie theaters based on projection system (i.e., percentage of the captioning device commenter argued that requiring notice digital vs. analog) and the distinction between market share, and NATO advised the in all places where movie times are indoor movie theaters and drive-in movie theaters. The Final RA divides movie theaters into four Department that few movie theaters listed would cost the industry millions venue types: megaplex, multiplex, miniplex, and outside of the top movie theater chains of dollars annually because theaters single-auditorium. See section 2.1.4 of the Final RA. actually use Sony’s captioning glasses. would be required to invest in software

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upgrades, the purchase of new signage A couple of comments addressed the individuals who would go to the movies on an ongoing basis, the purchase of replacement costs estimated in the as a result of this rule or the number of digital display sets, and increased Initial RA, specifically the replacement captioned and audio-described advertising space to accommodate more costs of the individual devices. One screenings already shown, the text. However, this commenter did not commenter estimated that the useful life Department determined that the benefits provide any information or data to of the captioning devices is about 5 of the rule were difficult to quantify. support this position, and the only other years. According to NATO, industry Nonetheless, the Department commenter on this issue, a movie data indicates that between 2.5 percent determined that many individuals, both theater, agreed with the Department’s and 15 percent of individual devices those with and without disabilities, conclusion that notice costs would be must be replaced annually. The would benefit as a result of the rule, and de minimis. According to this movie Department has updated the estimate of that such benefits justified any theater, the notice costs associated with individual device replacement costs to associated costs. Furthermore, the the rule would be minimal for most reflect the industry data provided by Department fully expected that the exhibitors considering that the industry NATO. To incorporate the individual guarantee of access to movies screened has largely separated itself from print devices’ estimated 4-to-7-year useful at movie theaters for individuals with advertising in favor of online life, the Department estimates that 20 hearing or vision impairments would advertising and adding icons for percent of all captioning and audio spur some level of new demand for captioning and audio description would description devices purchased as a movie attendance and therefore lead to not be very difficult. result of this rulemaking will be increased box office receipts. Based on the Department’s replaced annually. For a more detailed A majority of commenters addressing independent research and the comments discussion of the data, research, and the Department’s benefit analysis received, the Department maintains its assumptions used to estimate the recognized the difficulty in quantifying position that the costs associated with replacement costs, see section 3.6 of the the benefits of the rule but agreed with the notice requirement are de minimis. Final RA. the Department’s conclusions The notice requirement does not require Several commenters also argued that concerning the direct and indirect a movie theater to implement a specific the Department’s estimate regarding beneficiaries that this rule would serve. form of notice. Movie theaters routinely operation and maintenance costs was Many comments focused on the number use ‘‘CC’’ and ‘‘AD’’ or ‘‘DV’’ to indicate too low. According to these of individuals with hearing and vision the availability of closed movie commenters, the maintenance costs disabilities, arguing that the U.S. Census captioning and audio description in include costs associated with vastly underestimates the number of their communications currently, replacement batteries, periodic system individuals who are deaf or hard of including on their Web sites and mobile testing, and upgrading software, and hearing, or blind or have low vision. apps, and the Department’s research because these costs are relative to the Commenters also stated that in addition indicates that the inclusion of such cost of the equipment, the Department to helping individuals who are deaf or symbols does not increase the cost of should consider the high cost of the hard of hearing, movie captioning has advertisements already placed or devices when estimating this cost. A the potential to increase the access and require software upgrades as one few comments seemed to express enjoyment of movies for a wide variety commenter indicated. For a more confusion that the operations and of people, including individuals with detailed discussion of those costs maintenance cost estimate in the Initial cognitive-communication disorders, associated with this rulemaking that the RA encompassed the costs associated language-based learning disabilities, Department has determined to be de with installation, replacement, and staff aphasia, central auditory processing minimis, see section 2.4.4.2 of the Final training. The Department has disorders, or individuals who are RA. considered these comments and has learning English or may be working to The Department also disagrees with included separate cost estimates for the improve their literacy skills. commenters who criticized the costs associated with installation, Organizations representing individuals Department’s failure to include accurate replacement, and staff training. with hearing and vision disabilities equipment unit costs and installation However, the Department’s independent commented generally that captioning costs in the Initial RA. As the research confirms that 3 percent of total and audio description provide the keys Department indicated in the Initial RA, equipment acquisition costs represents to American culture to the extent that the unit cost estimates for the available an accurate estimate of the annual these services help individuals with equipment included the cost to install operation and maintenance costs hearing and vision disabilities to be the equipment, and these unit cost associated with this rule, especially now more familiar with ‘‘everyday events,’’ estimates were based on the most up-to- that installation, replacement, and staff thus allowing them to be more socially date data available to the Department training costs are estimated separately. integrated into society. during the development of the Initial The relevant cost category has been One commenter, however, criticized RA. See section 4.6 of the Initial RA. renamed ‘‘maintenance and the Department’s benefit analysis. This The Department has updated the administrative costs’’ in the Final RA. commenter asserted that the Department equipment unit cost estimates, now For a more detailed discussion of the failed to justify the rule with relevant, referred to as ‘‘acquisition costs’’ in the data, research, and assumptions used to evidence-based research to demonstrate Final RA, to reflect the most recent data calculate the maintenance and that the proposed rule would advance concerning the unit costs for all administrative costs of this rule, see the intended benefits. The commenter available hardware and devices. The section 3.8 of the Final RA. further recommended that the Final RA also now calculates Department conduct an industry-wide installation costs as a separate cost Comments Regarding the Benefits survey of movie theaters and based on a movie theater’s upfront costs. Estimate individuals with hearing and vision For a more detailed discussion of the The Department discussed the disabilities to determine the number of data, research, and assumptions used to qualitative benefits associated with this individuals currently seeking captioning estimate the installation costs, see rule in the Initial RA. Without reliable and audio description and their section 3.5 of the Final RA. information about the number of willingness to pay for such services.

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The Department maintains its the costs associated with this auditoriums, and the overall cost of this position that the non-quantifiable rulemaking. See section V.A.4, infra, rule varies in direct relation to the benefits of this rule justify the costs of and chapter 5 of the Final RA for a more number of auditoriums exhibiting requiring captioning and audio detailed discussion of the benefits of digital movies within a movie theater, description at movie theaters this rulemaking. the Final RA breaks the movie nationwide. The Department received a exhibition industry into four venue number of comments from individuals 3. Costs—Summary of Likely Economic Impact types based on size: with hearing and vision disabilities, as • well as advocacy groups, indicating that This section presents the calculations Megaplex (16+ auditoriums); individuals with disabilities are used to estimate the total costs resulting • Multiplex (8–15 auditoriums); currently seeking these accessibility from the amendments to the title III • Miniplex (2–7 auditoriums); and services, but that these services are regulation, which require movie theaters • either consistently unavailable or to provide closed movie captioning and Single-Auditorium movie theaters. insufficient to meet their needs. With audio description when exhibiting Additionally, uncertainty exists the information received from such digital movies equipped with such regarding the extent to which movie comments and the Department’s features. As previously mentioned, total theaters would offer closed movie independent research, the Department costs to movie theaters subject to the captioning and audio description if the does not believe that conducting a rulemaking include the following Department had not undertaken this nationwide survey is necessary to components: rulemaking. Therefore, the Final RA confirm that this rulemaking will • Acquisition costs for captioning estimates costs against three different advance the intended benefits. As hardware; baseline scenarios, which are described • section 1(c) of Executive Order 13563 Acquisition costs for audio in greater detail in section 3.2 of the highlights, agencies would be remiss to description hardware; • Final RA. The primary analysis overlook the benefits ‘‘that are difficult Acquisition costs for captioning incorporates the Medium Accessibility or impossible to quantify, including devices; baseline, which is based on data equity, human dignity, [and] fairness.’’ • Acquisition costs for audio available in NATO’s 2015 Accessibility With respect to such benefits, this description devices; Survey. As shown in Table 1, under this rulemaking will not only ensure that • Installation costs for captioning and baseline around 72 percent of individuals who are deaf or hard of audio description equipment; hearing, or blind or have low vision, are • Replacement costs for captioning auditoriums operated in megaplex, afforded equal access to movie theaters and audio description equipment; multiplex, and miniplex theaters are across the country, but will also ensure • Staff training costs for the provision assumed to be equipped to provide that such individuals are afforded the of captioning and audio description closed movie captioning. Similarly, opportunity to participate in the social equipment; and approximately 71 percent of experiences that accompany a new • Maintenance and administrative auditoriums in these movie theaters are movie’s release. As a result, the costs. assumed to be equipped to provide Department remains convinced that this audio description. The analysis assumes rulemaking will significantly advance Key Assumptions that no single-auditorium movie theater the achievement of the intended Because movie theater complexes is already equipped to provide closed benefits, and that such benefits justify vary greatly by the number of movie captioning or audio description.

TABLE 1—MEDIUM ACCESSIBILITY BASELINE BY VENUE TYPE–CAPTIONING AND AUDIO DESCRIPTION

Audio Captioning Description Medium Medium Venue type Accessibility Accessibility Baseline Baseline % %

Megaplex ...... 72 71 Multiplex ...... 72 71 Miniplex ...... 72 71 Single-Auditorium ...... 0 0

Section 2.1.3 and section 3.2 of the Final RA. Finally, section 3.1.3 of the estimated in the Final RA’s total costs Final RA explain in detail the Final RA describes the assumptions estimation. These include repair costs methodology and data that provide the made in the analysis regarding the and costs to comply with the final rule’s basis for the Department’s assumptions growth of auditoriums and venue types, notice requirement. Repair costs are regarding the number of movie theater and section 3.3 of the Final RA provides expected to be de minimis because auditoriums currently equipped to detailed assumptions and information manufacturers, movie theaters, and the provide closed movie captioning and regarding the scoping requirements by Department’s independent research audio description. venue type. indicate that repair of the captioning The assumptions regarding the total Costs Determined To Be De Minimis and audio description equipment is number of auditoriums and the rare. If equipment breaks down, the distribution of these auditoriums by The Department has determined that answer is replacement rather than venue type (megaplex, multiplex, there are a few cost components repair, and such costs are captured by miniplex, or single-auditorium) are associated with this rulemaking that are the hardware and device replacement further detailed in section 3.1 of the de minimis and therefore have not been costs. Additionally, costs associated

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with the cleaning or occasional and audio description without much as movie theaters with auditoriums maintenance of the devices are captured difficulty. Currently, movie theaters currently exhibiting digital movies will by the ongoing maintenance and routinely use ‘‘CC’’ and ‘‘AD’’ or ‘‘DV’’ purchase and install the necessary administrative costs. Any additional to indicate the availability of closed equipment throughout 2016 and 2017 in repair costs for captioning and audio movie captioning and audio description accordance with the 18-month description equipment are thus in their communications, and the compliance date. However, the cost expected to be de minimis. Department’s research indicates that the estimation also includes the costs inclusion of such abbreviations does not The Department has further incurred by new auditoriums opening increase the cost of advertisements. after the 18-month compliance date. As determined that the costs associated Therefore, the additional time and cost a result, equipment acquisition and with the notice requirement will be de it will take a movie theater to add such installation costs are incurred over the minimis. Based on comments received information is negligible. and the Department’s independent entire 15-year analysis period in the research, the movie exhibition industry Upfront Costs primary analysis. Table 2 shows the has largely moved away from print The upfront costs of this rulemaking total equipment acquisition and advertising in favor of digital include the costs to acquire and install installation costs incurred over the 15- advertising, and as one commenter the necessary captioning and audio year period of analysis by venue type. indicated, digital advertising allows description equipment. Movie theaters Overall, the upfront costs to movie movie theaters to add information incur the majority of the upfront costs theaters are expected to total $34.2 concerning the availability of captioning during the first 2 years of the analysis, million when discounted at 7 percent.

TABLE 2—TOTAL UPFRONT COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, DISCOUNTED AT 7 PERCENT [$ Millions]

Captioning Audio Captioning hardware hardware device Audio device Installation Total Venue type acquisition acquisition acquisition acquisition costs upfront costs costs costs costs costs

Megaplex ...... $5.0 $0.1 $4.8 $0.8 $0.3 $11.0 Multiplex ...... 7.9 0.2 7.6 1.3 0.5 17.5 Miniplex ...... 0.9 0.0 2.0 0.2 0.1 3.3 Single-Auditorium ...... 0.8 0.2 1.3 0.1 0.1 2.5

Total ...... 14.6 0.5 15.7 2.4 1.0 34.2 * Totals may differ due to rounding.

Section 2.3 of the Final RA provides Ongoing Costs costs, staff training costs, and greater detail as to the Department’s maintenance and administrative costs. methodology and assumptions for In addition to the upfront costs, movie Table 3 shows the total ongoing costs by estimating the upfront costs of this theaters will incur ongoing costs as a venue type. Overall, the ongoing annual rulemaking. The data and research direct result of this rulemaking. The costs amount to $54.3 million over the providing the basis for these estimates ongoing costs quantified in the cost 15-year period of analysis when are presented in section 3.3 through estimation include captioning and audio discounted at 7 percent. section 3.5 of the Final RA. description equipment replacement

TABLE 3—TOTAL ONGOING COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, DISCOUNTED AT 7 PERCENT [$ millions]

Maintenance Replacement Training and Total Venue type costs costs administrative ongoing costs costs

Megaplex ...... $11.6 $3.5 $2.7 $17.8 Multiplex ...... 18.4 5.6 4.3 28.2 Miniplex ...... 4.0 0.7 0.8 5.5 Single-Auditorium ...... 2.2 0.1 0.5 2.8

Total ...... 36.1 9.9 8.2 54.3 * Totals may differ due to rounding.

Replacement costs are expected to be captioning and audio description replacement costs are discussed in $36.1 million over the 15-year period of devices as well as the captioning and greater detail in section 2.4.1 and analysis when discounted at 7 percent. audio description hardware. Table 4–6 section 3.6 of the Final RA. Replacement costs include the costs to of the Final RA shows the estimated Staff training is expected to cost replace all equipment necessary to replacement costs associated with each approximately $9.9 million over the 15- provide closed movie captioning and type of equipment. The data and year period of analysis when discounted audio description, including the assumptions used to estimate the at 7 percent. The rule requires staff to

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be available to provide patrons with movies. Section 2.4.2 and section 3.7 of Total Costs captioning and audio description the Final RA explain the data and The total costs in the primary analysis devices and to direct patrons on the assumptions used to estimate the staff are calculated based on the data and devices’ use. This requirement can most training costs. assumptions presented in chapters 2 easily be met by expanding the already Finally, maintenance and and 3 of the Final RA. As described in existing training for those employees administrative costs are expected to be section 3.2.2 of the Final RA, the who will be on-site to manage or $8.2 million over the 15-year period of primary analysis incorporates the oversee overall operations or the analysis when discounted at 7 percent. Medium Accessibility baseline, which is exhibition of the movies. Because the These costs include, but are not limited based on data available in NATO’s 2015 operational requirements of this to, the periodic ongoing maintenance, Accessibility Survey. Table 4 below rulemaking apply to all movie theaters system testing, and cleaning of devices shows the total costs in the primary subject to the rulemaking, including and other additional administrative analysis by cost category. The total cost those with auditoriums that currently costs. The data and assumptions used to impact of the rulemaking over the 15- provide closed movie captioning and estimate the maintenance and year period of analysis is $88.5 million audio description, the Department has administrative costs are discussed in when discounted at 7 percent, and estimated the staff training costs for all greater detail in section 2.4.3 and $113.4 million when discounted at 3 movie theaters exhibiting digital section 3.8 of the Final RA. percent.

TABLE 4—TOTAL COSTS BY COST CATEGORY IN PRIMARY ANALYSIS OVER 15 YEARS [$ millions]

Primary Primary Cost category analysis analysis 7% discounted 3% discounted

Captioning Hardware Acquisition Costs ...... $14.6 $17.2 Audio Hardware Acquisition Costs ...... 0.5 0.5 Captioning Device Acquisition Costs ...... 15.7 17.6 Audio Device Acquisition Costs ...... 2.4 2.8 Installation Costs ...... 1.0 1.1 Replacement Costs ...... 36.1 49.9 Training Costs ...... 9.9 13.1 Maintenance and Administrative Costs ...... 8.2 11.1

Total Costs ...... 88.5 113.4 * Totals may differ due to rounding.

The total costs are broken down by auditoriums. The costs to single- no single-auditorium movie theater is venue type in table 5. Auditoriums in auditorium movie theaters over the 15- already equipped to provide closed multiplex movie theaters account for year period of analysis are movie captioning or audio description. more than half of the total costs ($45.7 approximately $5.3 million when As a result, it is assumed that all single- million) over the 15-year period of discounted at 7 percent, and $6.3 auditorium movie theaters subject to analysis, which is consistent with the million when discounted at 3 percent. this rulemaking would need to purchase fact that multiplex movie theaters As detailed in section 3.2.3 of the Final the necessary captioning and audio operate approximately 52 percent of all RA, the primary analysis assumes that description equipment.

TABLE 5—TOTAL COSTS BY VENUE TYPE IN PRIMARY ANALYSIS OVER 15 YEARS [$ millions]

Primary Primary Venue type analysis analysis 7% discounted 3% discounted

Megaplex (16+ auditoriums) ...... $28.7 $37.2 Multiplex (8–15 auditoriums) ...... 45.7 59.1 Miniplex (2–7 auditoriums) ...... 8.8 10.8 Single-Auditorium ...... 5.3 6.3

Total Costs ...... 88.5 113.4 * Totals may differ due to rounding.

In table 6 below, the annualized costs Overall, the annualized cost to the rate, and $9.5 million when using a 3- are presented by venue type using 7- entire movie exhibition industry is $9.7 percent discount rate. percent and 3-percent discount rates. million when using a 7-percent discount

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TABLE 6—ANNUALIZED COSTS BY VENUE TYPE IN PRIMARY ANALYSIS [$ millions]

Annualized Annualized Venue type costs costs 7% discounted 3% discounted

Megaplex (16+ auditoriums) ...... $3.2 $3.1 Multiplex (8–15 auditoriums) ...... 5.0 5.0 Miniplex (2–7 auditoriums) ...... 1.0 0.9 Single-Auditorium ...... 0.6 0.5

Total ...... 9.7 9.5 * Totals may differ due to rounding.

Sensitivity Analyses rulemaking are difficult to quantify, the time, the Census Bureau estimates that Sensitivity analysis is an essential Department remains convinced that 3.1 percent of the U.S. population ages consideration for policy makers in there are significant qualitative benefits 15 and older have difficulty hearing, evaluating the rule due to the of this rulemaking that justify this which was a little more than 7.5 million uncertainty associated with certain key regulation at this time. individuals in 2010, and approximately variables used in the cost estimation. The benefits of this rule are difficult 1 million of them had ‘‘severe’’ The Department was able to find robust to quantify because the Department has difficulty hearing. See U.S. Census data regarding the costs of purchasing not been able to locate robust data on Bureau, U.S. Department of Commerce, captioning and audio description the rate at which persons with P70–131, Americans with Disabilities: equipment, the number of auditoriums disabilities currently attend movies 2010 Household Economic Studies at 8 in the country, and several other critical shown in movie theaters. Moreover, as (2012), available at http:// variables. However, there are some a result of the increased www.census.gov/prod/2012pubs/p70- input variables that carry uncertainty. accommodations required by this rule, it 131.pdf (last visited Sept. 12, 2016). No substantive comments with data on is reasonable to predict that some While not all of these individuals would these inputs were received in the public number of persons with disabilities will benefit from this rule, many of them comments on the 2014 NPRM. likely attend movies for the first time, will be direct beneficiaries, although The sensitivity analyses estimate the some number of persons with they are likely to benefit from this rule costs of this rulemaking when using the disabilities will likely attend movies at in different ways and to varying extents. following inputs: a rate that is different than they had The type and extent of benefits can • Low Accessibility and High previously, the number of persons who depend on personal circumstances and Accessibility baselines; attend movies as part of a larger group preferences, as well as proximity to • Alternate Medium Accessibility that includes a person with a disability movie theaters that otherwise would not baseline; will likely change, and the number of offer captioning or audio description but • Alternate captioning and audio persons with disabilities who would for this rule. Some persons with vision description device replacement rates; have attended movies anyway but under and hearing disabilities have effectively • Increased staff training frequency; the rule will have a fuller and more been precluded from going to movies at • Single-auditorium unit cost pleasant experience will likely also movie theaters because the only theaters estimates including Sony’s technology; change. The Department has no feasible available to them do not offer closed • Increased maintenance and way of projecting those figures. In movie captioning or audio description, administrative costs; and addition, the Department does not know offer open captioning but only at • Zero growth after five years. how many people with hearing or vision inconvenient times (such as the middle Detailed information and data disabilities currently have consistent of the day during the week), or offer regarding these sensitivity analyses can access to movie theaters that provide captioning or audio description for only be found in section 4.2 of the Final RA. closed movie captioning and audio a few films and not for every screening description. Finally, the Department is of those films. For these persons, the 4. Benefits—Qualitative Discussion of not aware of any peer-reviewed primary benefit will be the ability to see Benefits academic or professional studies that movies when released in movie theaters The individuals who will directly monetize or quantify the societal benefit along with other movie patrons, which benefit from this rule are those persons of providing closed movie captioning they otherwise would not have had the with hearing or vision disabilities who, and audio description at movie theaters. opportunity to do. They will have the as a result of this rule, would be able to Though the Department cannot value of that movie-going experience, as attend movies with closed movie confidently estimate the likely number well as the opportunity to discuss the captioning or audio description in of people who would directly benefit film socially at the same time as the rest movie theaters across the country for the from this rule, it has reviewed data on of the movie-viewing public. A person first time or on a more consistent basis. the number of people with hearing or with a hearing or vision disability who Individuals who will indirectly benefit vision disabilities in the United States. previously did not have access to a from this rule are the family and friends The Census Bureau estimates that 3.3 movie theater that provided closed of persons with hearing and vision percent of the U.S. population ages 15 movie captioning or audio description disabilities that would be able to share and older has difficulty seeing, which will experience this benefit to an extent the movie-going experience more fully translates into a little more than 8 that is different than the extent of the with their friends or loved ones with million individuals in 2010, and a little benefit experienced by a person with a hearing and vision disabilities. more than 2 million of those had hearing or vision disability who Although the anticipated benefits of this ‘‘severe’’ difficulty seeing. At the same previously did have access to a movie

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theater that consistently provided In addition to the direct beneficiaries should also lead to a decrease or near closed movie captioning and audio of the rule discussed above, others may elimination of confusion regarding what description. In addition, a person who be indirect beneficiaries of this rule. accommodations movie theaters must cannot follow a movie at all without the Family and friends of persons with provide. The current ADA title III assistance of closed movie captioning is these disabilities who wish to go to the regulation does not contain explicit likely to experience this benefit to an movies together as a shared social requirements specifying how movie extent that is different than the extent of experience will now have greater theaters should meet their effective the benefit experienced by a person who opportunities to do so. More adults who communication obligations, and this is can follow parts of a movie without the visit elderly parents with hearing or one of the reasons behind the multiple assistance of closed movie captioning. sight limitations would presumably be private lawsuits filed throughout the There is a social value in movie able to take their parents on outings and country. Setting explicit requirements at viewing for many people, not just an enjoy a movie at a movie theater the national level will lead to entertainment value. As noted together, sharing the experience as they harmonization across the country. previously, movies are a part of our may have in the past. The Department And finally, there are additional shared cultural experience, and the received numerous comments from benefits of the rule that relate to equity subject of ‘‘water cooler’’ talk and individuals who are deaf, hard of and fairness considerations generally. lunchtime conversations. The Supreme hearing, blind, or have low vision in See E.O. 13563 § 1(c) (underscoring the Court observed over 60 years ago that response to its 2014 NPRM describing importance of agency consideration of motion pictures ‘‘are a significant how they were unable to take part in the benefits ‘‘that are difficult or impossible medium for the communication of movie-going experience with their to quantify, including equity, human ideas’’ and ‘‘may affect public attitudes friends and family because of the dignity, [and] fairness’’). The and behavior in a variety of ways, unavailability of captioning or audio Department expects that the regulation ranging from direct espousal of a description. Parents with disabilities will allow for better integration of political or social doctrine to the subtle also complained that they could not persons with disabilities into the shaping of thought which characterizes answer their children’s questions about American social mainstream. Without all artistic expression. The importance a movie that they saw together because captioning and audio description at of motion pictures as an organ of public the parents did not understand what movie theaters, individuals with hearing opinion is not lessened by the fact that had happened in the movie. and vision disabilities commented that they are designed to entertain as well as There is also a distributional benefit they were unable to participate in the to inform.’’ Joseph Burstyn, Inc. v. of this rule as some areas of the United social experience that attending the Wilson, 343 U.S. 495, 501 (1952) States are more likely to have movie movies affords. Other commenters noted (footnote omitted). When individuals theaters with auditoriums that are that movie theaters’ common practice of who are deaf or hard of hearing, or blind already equipped to provide closed ‘‘relegating’’ movie patrons with hearing or have low vision, have the movie captioning and audio description and vision disabilities to ‘‘special opportunity to attend movies that they than others. As noted previously, the showings’’ of captioned or audio- can actually understand because of Department understands that persons described movies at off-peak days and captioning or audio description, they who live in communities served only by times did not constitute the ‘‘full and are exposed to new ideas and gain smaller, regional movie theater chains equal access’’ guaranteed by the ADA. knowledge that contributes to the are far less likely to have access to By requiring all movie theaters to development of their communication captioned and audio-described movies provide closed movie captioning and and literacy as well as their integration than individuals with disabilities who audio description when exhibiting a into society. live in California, Arizona, or any of the digital movie distributed with such As previously mentioned, some major cities with movie theaters features, the Department believes that persons with vision or hearing operated by Regal, Cinemark, or AMC. the ADA’s guarantees will be more fully disabilities may already have access to Thus, it is possible that more urban met. some movie theaters with captioning or areas, or certain cities or States, may The Department views the most audio description capabilities, but that have greater access than other areas, significant benefits of the rule to be access may be limited to only some cities, or States, creating or exacerbating those relating to issues of fairness, locations and times. Some of these geographical differences in equity, and equal access, all of which people may be patronizing movie opportunities that will be equalized by are extremely difficult to monetize, and theaters now but less often than they this rulemaking. the Department has not been able to otherwise would, or less often than they Moreover, while not formally robustly quantify and place a dollar would like, if captioning or audio quantified, the Department expects that value on those. Regardless, the description were available consistently this guarantee of access for individuals Department believes that the non- across all theaters. These people may with hearing or vision impairments to quantifiable benefits justify the costs of see more movies or save time that they movies screened at movie theaters will requiring captioning and audio currently must spend monitoring those spur some level of new demand for description at movie theaters few accessible movie theaters or movie attendance and, therefore, lead to nationwide. showings and perhaps additional time increased box office receipts. coordinating trips to the movies with Unfortunately, there is little data on the 5. Alternatives family and friends. If all movie theaters demand for movie-viewing in places of As required by Executive Order are accessible to those who are deaf or public accommodation by persons who 12866, the Department considered hard of hearing, or blind or have low are deaf or hard of hearing, or blind or various alternatives to this rule. Chapter vision, then some persons will now have low vision, and as such, preparing 6 of the Final RA provides detailed have greater choice among multiple estimates of the increase in movie information regarding these alternatives. locations and can make choices based theater attendance is difficult. Table 7 below summarizes the cost on other criteria such as location, times, Because the rule sets specific estimates for the primary analysis and and other amenities, just as Americans standards for equally effective other evaluated alternatives to the without these disabilities already do. communication at movie theaters, it regulation.

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TABLE 7—SUMMARY OF PRIMARY ANALYSIS AND ALTERNATIVE ANALYSES OVER 15 YEARS, DISCOUNTED AT 7 PERCENT [$ millions]

2-year 6-month NPRM Analog Cost category Primary compliance compliance scoping theaters analysis date date requirement included

Captioning Hardware Acquisition Costs ...... $14.6 $14.0 $15.5 $14.6 $17.3 Audio Hardware Acquisition Costs...... 0.5 0.4 0.5 0.5 0.6 Captioning Device Acquisition Costs ...... 15.7 15.1 16.6 36.1 15.7 Audio Device Acquisition Costs...... 2.4 2.4 2.6 4.4 2.5 Installation Costs...... 1.0 1.0 1.1 1.7 1.1 Replacement Costs...... 36.1 34.5 39.0 73.8 37.0 Training Costs...... 9.9 9.9 9.9 9.9 10.0 Maintenance and Administrative Costs ...... 8.2 7.8 8.9 13.9 8.8

Total Costs ...... 88.5 85.2 94.1 154.8 93.1 * Totals may differ due to rounding.

B. Executive Order 13132: Federalism of information’’ as defined by the PRA provisions of the Unfunded Mandates unless in advance the agency has Reform Act. Executive Order 13132, 64 FR 43255 obtained an OMB control number. 44 (Aug. 4, 1999), requires executive F. Duplicative or Overlapping Federal U.S.C. 3507. Additionally, an agency branch agencies to consider whether a Rules may not impose a penalty on persons for rule will have federalism implications. violating information collection The Department is not aware of any That is, the rulemaking agency must requirements when an information existing Federal regulations that impose determine whether the rule is likely to collection required to have a current duplicative, overlapping, or conflicting have substantial direct effects on State OMB control number does not have one. requirements relative to the and local governments, a substantial See id. requirements in the final rule for movie direct effect on the relationship between captioning and audio description. the Federal government and the States This rule includes a requirement that and localities, or a substantial direct movie theaters provide information to VI. Final Regulatory Flexibility effect on the distribution of power and the public about which movies are Analysis responsibilities among the different available with closed movie captioning As directed by the Regulatory levels of government. If an agency and audio description when publishing Flexibility Act of 1980, as amended by believes that a rule is likely to have the exhibition times for those movies. the Small Business Regulatory federalism implications, the agency See § 36.303(g)(8). The Department has Enforcement Fairness Act of 1996 must consult with State and local determined that this requirement (SBREFA), and by Executive Order elected officials about how to minimize qualifies as a collection of information 13272, the Department is required to or eliminate the effects. This rule subject to the PRA. Consistent with the consider the potential impact of the applies to public accommodations that PRA’s requirements, the Department proposed rule on small entities, exhibit movies for a fee that are covered published a notice in the Federal including small businesses, small by title III of the ADA. To the Register on June 10, 2016, requesting nonprofit organizations, and small Department’s knowledge there are no public comment on the potential costs governmental jurisdictions. This process State or local laws that specifically and burdens of this requirement. See 81 helps agencies to determine whether a address captioning and audio FR 37643. The comment period for this rule is likely to impose a significant description. As a result, the Department notice closed on August 9, 2016, and the economic impact on a substantial has concluded that this rule does not Department published a second notice number of small entities and, in turn, to have federalism implications. in the Federal Register on August 30, consider regulatory alternatives to 2016. See 81 FR 59657. The 30-day reduce that regulatory burden on those C. Plain Language Instructions comment period for the second notice small entities. The Department makes every effort to closed on September 29, 2016. This final rule applies to and affects promote clarity and transparency in its The information collection almost all small entities categorized as rulemaking. In any regulation, there is a requirement contained in this regulation ‘‘Motion Picture Theaters.’’ Small tension between drafting language that was approved by OMB on November 3, businesses constitute the vast majority is simple and straightforward and 2016, and has been assigned OMB of firms in the movie exhibition drafting language that adequately control number 1190–0019. industry. The current size standard for addresses legal issues to minimize E. Unfunded Mandates Reform Act a small movie theater business is $38.5 uncertainty. The Department operates a million dollars in annual revenue. See toll-free ADA Information Line—(800) Section 4(2) of the Unfunded U.S. Small Business Administration, 514–0301 (voice); (800) 514–0383 Mandates Reform Act of 1995, 2 U.S.C. Table of Small Business Size Standards (TTY)—that the public is welcome to 1503(2), excludes from coverage under Matched to North American Industry call to obtain assistance in that Act any proposed or final Federal Classification System Codes at 28 (July understanding this rule. regulation that ‘‘establishes or enforces 14, 2014), available at https:// any statutory rights that prohibit www.sba.gov/sites/default/files/files/ D. Paperwork Reduction Act discrimination on the basis of race, Size_Standards_Table.pdf (last visited Under the Paperwork Reduction Act color, religion, sex, national origin, age, Sept. 12, 2016). In 2012, the latest year (PRA), agencies are prohibited from handicap, or disability.’’ Accordingly, for which detailed breakouts by conducting or sponsoring a ‘‘collection this rulemaking is not subject to the industry and annual revenue are

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available, approximately 98 percent of meaningful way in an important aspect Proportion of Movie Theaters Qualifying movie theater firms met the standard for of American culture. as Small Entities small business, and these firms The Department believes that The Department received comments managed approximately 52 percent of regulation is warranted at this time to indicating that the vast majority of movie theater establishments. See U.S. explicitly require all movie theaters, movie theaters qualify as small entities, Census Bureau, Statistics of U.S. including those qualifying as small which is supported by the 2012 Businesses, available at https:// entities, to exhibit movies with closed Statistics of U.S. Businesses (SUSB) data www.census.gov/data/tables/2012/econ/ movie captioning and audio description and detailed below. See infra section susb/2012-susb-annual.html (see Data whenever these theaters exhibit digital VI.C. by Enterprise Receipt Size, U.S., 6-digit movies produced, distributed, or NAICS) (last visited Sept. 12, 2016). The Small Movie Theater Revenues and otherwise made available with such Department’s analysis leads it to Available Resources To Comply features unless to do so would result in conclude that a substantial number of One commenter reported that at least small movie theater firms will an undue burden or a fundamental alteration. As discussed above, the one segment of the movie exhibition experience a significant economic industry, art house cinemas, generally impact as a result of this rule. The Department is deferring rulemaking on application of these requirements to receive less than 50 percent of their Department therefore presents this Final revenue from ticket sales. Another Regulatory Flexibility Analysis (FRFA). movie theater auditoriums that exhibit analog movies exclusively. The final commenter asked the Department to The Department has used this analysis consider that almost half of movie to examine other ways, if possible, to rule for movie captioning and audio description rests on the existing theater gross receipts are paid directly to accomplish the Department’s goals with movie studios. Given these percentages fewer burdens on small businesses, and obligation of all title III-covered facilities, such as movie theaters— and the fact that the movie exhibition the Department has made a number of industry as a whole averages a 2 percent revisions to the final rule to reduce the regardless of size—to ensure that persons with disabilities receive ‘‘full profit margin, with small and cost impact on small firms in the movie independent theater owners often exhibition industry. and equal enjoyment’’ of their respective goods and services, operating at an even smaller or negative profit margin, commenters asked the A. Purpose and Objective of the Final including, as needed, the provision of Department to reconsider its Rule Relative to Movie Theaters auxiliary aids and services for persons interpretation of cost values relative to Categorized as Small who are deaf or hard of hearing, or blind annual revenue because these figures do As previously discussed throughout or have low vision. The final rule not directly represent funds that are this rule, the Department’s existing imposes no independent obligation on available to comply with this rule. regulation implementing the ADA’s title movie theaters to provide captioning The Department does not have access III auxiliary aids provision reiterates the and audio description if the movie is to publicly available data that provides obligation of covered entities to ensure not already available with these a consistent, independent source of equally effective communication with features. individuals with disabilities and movie theater profit by revenue The Department expects that category. As discussed in section VI.C identifies, among other things, ‘‘open implementation of the final rule will and closed captioning,’’ and ‘‘audio below, available data includes firm lead to consistent levels of accessibility 25 recordings’’ as examples of auxiliary receipt size from the 2012 SUSB. The in movie theaters across the country, aids and services. 28 CFR 36.303(a)–(c). Department believes that this dataset is and that patrons who are deaf or hard Recent technological changes in the the most relevant publicly available data of hearing, or blind or have low vision, movie exhibition industry—including on annual revenue figures for the movie will be able to use captioning or audio widespread conversion from analog film exhibition industry and is the best description equipment to better projection to digital cinema systems— source to assess the resources available understand movies being exhibited in make exhibition of captioned and audio- to movie theaters to comply with the all movie theaters. described movies easier and less costly rule. than before. In addition, it is the B. Public Comments Regarding the Alternatives To Reduce Burdens on Department’s understanding that, at this Effects of the Rule on Small Movie Small Movie Theaters time, nearly all first-run motion pictures Theaters Commenters made various released by the major domestic movie suggestions concerning alternatives to studios include closed movie captioning The Department received 436 reduce the regulatory burden for small (and to a lesser extent, audio comments during the 2014 NPRM movie theaters. These suggestions description). comment period from movie industry Despite these technological advances, representatives, individuals with pertained to the following areas: (1) The movie theaters do not consistently show disabilities, advocacy groups scoping for devices; (2) the compliance movies with captioning or audio representing individuals with date; (3) the deferral of rulemaking for description, and the availability of these disabilities, State and Federal entities, movie theaters exhibiting movies in features varies greatly across the academic organizations, private analog format; and (4) the deferral of country, with small movie theaters in companies, and other private rulemaking for a subset of small movie rural areas being less likely to provide individuals. Comments that directly theaters. The Department is aware of them. Thus, patrons who are deaf or addressed the assumptions, data, or 25 U.S. Census Bureau, Statistics of U.S. hard of hearing, or blind or have low methodology used in the Initial RA have Businesses, available at https://www.census.gov/ vision, are often shut out from the been previously discussed above in data/tables/2012/econ/susb/2012-susb-annual.html movie-going experience and cannot section V.A.2 and in section 1.3 of the (see Data by Enterprise Receipt Size, U.S., 6-digit fully take part in movie-going outings Final RA. This section summarizes the NAICS) (last visited Sept. 12, 2016). The information is available in an Excel file which lists with family and friends, join in social discussion of comments regarding the all information by NAICS Code. The relevant conversations about recent movie effects of the rule on small movie NAICS Code for Motion Picture Theaters (except releases, or otherwise participate in a theaters. Drive-Ins) is 512131.

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potential limitations to compliance for movies will even be available for movies still qualify as places of small movie theaters and has taken commercial showings. entertainment and are considered public measures to lessen the impact on those Third, the Department has extended accommodations under the ADA. Thus, firms. As explained in sections 1.4 and the compliance date for all movie they continue to be subject to the 6.1 of the Final RA and in section VI.F theaters subject to this rulemaking. longstanding general ADA requirement below, the Department has decided to Movie theaters now have 18 months to to provide effective communication defer the decision whether to engage in comply with the rule’s scoping under § 36.303, unless doing so would rulemaking with respect to movie requirements, and additional time is be a fundamental alteration of the theater auditoriums that exhibit analog afforded to movie theaters that convert program or service or would constitute movies exclusively, to reduce the auditoriums from an analog projection an undue burden. In addition, if a scoping requirements for both system to a digital projection system festival or limited showing programmer captioning and audio description after the compliance date of the rule. schedules the screening of a movie that devices, and to increase the time movie After considering the comments on the is already distributed with closed movie theaters have to comply with the rule’s 2014 NPRM, the Department has captions and audio description using a captioning and audio description concluded that 18 months allows movie movie theater auditorium that is subject scoping requirements (now 18 months). theaters sufficient time to order and to the requirements in paragraph (g) as These revisions are expected to reduce install the necessary equipment while discussed above, then the effective the cost impact to small firms in the accounting for potential manufacturer communication obligation would movie exhibition industry. backlogs or the need to raise the require the festival to ensure that the necessary funds to purchase the accessible features are available at all Response to Comments From the Small equipment. Business Administration Office of scheduled screenings of a movie Fourth, SBA specifically asked distributed with such features. Advocacy (SBA) whether the definition of ‘‘movie This section specifically addresses theater’’ was intended to encompass Finally, SBA asked that the comments of the SBA Office of small movie theaters that occasionally Department provide additional guidance Advocacy in response to the proposed show digital movies using a Blu-ray for small businesses regarding the rule. Most of the concerns expressed by projector, pop-ups and film festivals, or availability of the undue burden SBA were also expressed by other limited arrangement showings held at limitation. Under the ADA, a public commenters. alternative venues. The Department accommodation is relieved of its SBA’s comments on the 2014 NPRM believes that in most instances, the obligation to provide a particular focused on the following five issues: requirements of the rule will not apply auxiliary aid (but not all auxiliary aids) Lowering the scoping for captioning and in these circumstances. As the if to do so would result in an undue audio description devices; deferral of definition indicates, a ‘‘movie theater,’’ burden or a fundamental alteration. As coverage of analog theaters; providing a for purposes of this rulemaking, means stated earlier in the preamble and in longer compliance date for the ‘‘a facility * * * that contains one or existing technical assistance materials, requirements of the rule; the breadth of more auditoriums that are used the Department’s title III regulation the definition of ‘‘movie theater’’; and primarily for the purpose of showing specifically defines undue burden as the application of the undue burden movies to the public for a fee.’’ ‘‘significant difficulty or expense’’ and, defense for small business movie § 36.303(g)(1)(vii). Thus, an auditorium emphasizing the flexible and theaters. After consideration of these generally used for other purposes that individualized nature of any such comments and related comments from temporarily shows movies during a film determination, lists five factors that other commenters, the Department has festival, even if a fee is charged, would must be considered when determining made a number of changes in the final not fall within this definition. By whether an action would constitute an rule. contrast, a movie theater that primarily undue burden. 28 CFR 36.104; see also First, the Department has significantly shows digital movies to the public for a U.S. Department of Justice, ADA Title III lowered the scoping requirements for fee remains covered by the requirements Technical Assistance Manual Covering captioning and audio description of paragraph (g) even if it allows its Public Accommodations and devices in response to comments from auditoriums to be used for an annual Commercial Facilities III–4.3600 (1993), SBA and other commenters that the film festival. Theaters with analog available at http://www.ada.gov/ Department should not have used seat auditoriums that are not otherwise taman3.html. These factors include: (1) count as a means of determining the covered by the specific requirements of The nature and cost of the action; (2) the number of devices that would actually § 36.303(g) and temporarily bring in overall financial resources of the site or be needed to meet demand from people portable Blu-ray or other types of digital sites involved in the action; the number with hearing and vision disabilities. The projectors to show digital movies are of persons employed at the site; the revised scoping bases the required also not likely to fall within the effect on expenses and resources; number of devices on the number of requirements of paragraph (g) because legitimate safety requirements that are auditoriums in a theater showing digital the compliance date provision assumes necessary for safe operation, including movies rather than the number of seats. conversion of the theater to a digital crime prevention measures; or the Second, the Department has decided projection system. In addition, it is the impact otherwise of the action upon the to defer the decision whether to apply Department’s understanding that Blu- operation of the site; (3) the geographic the specific requirements of this rule to ray projection systems are not capable of separateness, and the administrative or movie theater auditoriums that show delivering closed movie captions to fiscal relationship of the site or sites in analog movies exclusively. As discussed patrons at their seat; these systems only question, to any parent corporation or in the section-by-section analysis, the have the capacity to show captions on entity; (4) if applicable, the overall number of movie theaters that only the screen, something not required by financial resources of any parent show analog movies is rapidly this rule. corporation or entity; the overall size of declining, and it is unclear whether The Department notes that film the parent corporation or entity with these theaters will be economically festivals, pop-up movie theaters, and respect to the number of its employees; viable in the future, or whether analog other alternative venues for showing and the number, type, and location of its

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facilities; and (5) if applicable, the type C. Characteristics of Impacted Small considered small businesses by the SBA of operation or operations of any parent Entities size standards, they are also considered corporation or entity, including the The Regulatory Flexibility Act defines small entities for purposes of this FRFA. composition, structure, and functions of a ‘‘small entity’’ as a small business (as An additional category of firms with the workforce of the parent corporation defined by the SBA Size Standards) or annual receipts between $35 million or entity. 28 CFR 36.104. This limitation a small organization such as a nonprofit and $40 million contains firms that may entails a fact-specific examination of the that is ‘‘independently owned and or may not have annual revenue below cost of a specific action and the specific operated’’ and is ‘‘not dominant in its the $38.5 million threshold. For the circumstances of a particular public field.’’ See 5 U.S.C. 601(3), (4). For purposes of this analysis, however, all accommodation. This limitation is also Motion Picture Theaters (except Drive- firms in this category are assumed to designed to ensure that the needs of Ins) (NAICS Code 512131), the SBA Size have revenues lower than the $38.5 small businesses, as well as large Standards categorize any firm with less million size standard and are therefore businesses, are addressed and protected. than $38.5 million in annual revenue as considered to be small entities. a small business.26 As a result, small The 2012 SUSB data on the movie The Department intends to publish entities constitute the vast majority of exhibition industry includes both digital technical assistance that will address firms in the movie exhibition industry. and analog movie theaters but excludes the requirements of the final rule and The latest data providing detailed drive-in movie theaters. The number the limitations on the obligations under breakouts of annual revenue by industry and percentage of firms and paragraph (g) prior to the time the rule comes from the 2012 Statistics of U.S. establishments by revenue category is takes effect. In addition, the Businesses (SUSB).27 This dataset presented in table 8. According to the Department’s wide-ranging outreach, provides information regarding the 2012 SUSB, 1,876 movie theater firms education, and technical assistance number of firms,28 establishments,29 operated 4,540 movie theater program continue to be available to and estimated annual receipts 30 (annual establishments. Approximately 1,833 of assist businesses to understand their revenue) for each of the 17 revenue size those firms (98 percent) are categorized obligations under the ADA. Additional categories in the movie exhibition as a small business according to the information about the ADA’s industry. According to this data, 12 of SBA size standard ($38.5 million) and requirements, including the requirement the 17 revenue size categories contain therefore are small entities for purposes to provide effective communication and firms with estimated annual receipts of of this FRFA. The 1,833 firms the limitations on that obligation, is also less than the $38.5 million SBA size categorized as small entities operated available on the Department’s ADA Web standard for a small business in this approximately 2,381 movie theater site at www.ada.gov. industry. Because these firms are establishments (52 percent of the total).

TABLE 8—MOTION PICTURE THEATERS (EXCEPT DRIVE-INS) FIRMS AND ESTABLISHMENTS BY REVENUE CATEGORY, 2012 STATISTICS OF U.S. BUSINESSES [NAICS 512131]

Cumulative Percentage Cumulative Number Percentage of total Number of of total total of Firms with annual revenue of firms total firms of firms establishments establishments establishments (%) (%) (%) (%)

Less than $100,000 ...... 244 13.0 13.0 246 5.4 5.4 $100,000 to $499,999 ...... 618 32.9 45.9 630 13.9 19.3 $500,000 to $999,999 ...... 332 17.7 63.6 353 7.8 27.1 $1,000,000 to $2,499,999 ...... 399 21.3 84.9 460 10.1 37.2 $2,500,000 to $4,999,999 ...... 125 6.7 91.6 189 4.2 41.4 $5,000,000 to $7,499,999 ...... 35 1.9 93.4 66 1.5 42.8 $7,500,000 to $9,999,999 ...... 19 1.0 94.5 49 1.1 43.9 $10,000,000 to $14,999,999 ...... 26 1.4 95.8 107 2.4 46.3 $15,000,000 to $19,999,999 ...... 9 0.5 96.3 41 0.9 47.2 $20,000,000 to $24,999,999 ...... 10 0.5 96.9 60 1.3 48.5

26 U.S. Small Business Administration, Table of industry that were specified under common services provided. Receipts excludes local, state, Small Business Size Standards Matched to North ownership or control. The firm and the and federal sales and other taxes collected from American Industry Classification System Codes at establishment are the same for single-establishment customers or clients and paid directly to a tax 28 (July 14, 2014), available at https://www.sba.gov/ firms. For each multi-establishment firm, agency. Receipts are acquired from economic sites/default/files/files/Size_Standards_Table.pdf establishments in the same industry within a state census data for establishments in industries that are (last visited Sept. 12, 2016). will be counted as one firm—the firm employment in-scope to the economic census; receipts are 27 The SBA’s Office of Advocacy partially funds and annual payroll are summed from the associated the Census Bureau to produce data on employer establishments.’’ U.S. Census Bureau, Statistics of acquired from IRS tax data for single-establishment firm size including the number of firms, number of U.S. Businesses: Glossary, available at https:// businesses in industries that are out-of-scope to the establishments, employment, and annual payroll www.census.gov/programs-surveys/susb/about/ economic census; and payroll-to-receipts ratios are and annual sales/receipts/revenue for employment glossary.html (last visited Sept. 12, 2016). used to estimate receipts for multi-establishment size of firm categories by location and industry as 29 The U.S. Census Bureau defines an businesses in industries that are out-of-scope to the part of the SUSB program. See U.S. Census Bureau, ‘‘establishment’’ as ‘‘a single physical location economic census. Statistics of U.S. Businesses Statistics of U.S. Businesses, available at https:// where business is conducted or where services or tabulations provide summed establishment receipts www.census.gov/data/tables/2012/econ/susb/2012- industrial operations are performed.’’ U.S. Census which creates some duplication of receipts for large susb-annual.html (see Data by Enterprise Receipt Bureau, North American Industry Classification Size, U.S., 6-digit NAICS) (last visited Sept. 12, System: Frequently Asked Questions (FAQs), multi-establishment enterprises. Receipts data are 2016). The information is available in an Excel file available at http://www.census.gov/eos/www/naics/ available for years ending in 2 and 7 only.’’ U.S. which lists all information by NAICS Code. faqs/faqs.html#q2 (last visited Sept. 12, 2016). Census Bureau, Statistics of U.S. Businesses: 28 The U.S. Census Bureau defines a ‘‘firm’’ as a 30 ‘‘Receipts (net of taxes collected from Glossary, available at https://www.census.gov/ ‘‘business organization consisting of one or more customers or clients) are defined as operating programs-surveys/susb/about/glossary.html (last domestic establishments in the same state and revenue for goods produced or distributed, or for visited Sept. 12, 2016).

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TABLE 8—MOTION PICTURE THEATERS (EXCEPT DRIVE-INS) FIRMS AND ESTABLISHMENTS BY REVENUE CATEGORY, 2012 STATISTICS OF U.S. BUSINESSES—Continued [NAICS 512131]

Cumulative Percentage Cumulative Number Percentage of total Number of of total total of Firms with annual revenue of firms total firms of firms establishments establishments establishments (%) (%) (%) (%)

$25,000,000 to $29,999,999 ...... 6 0.3 97.2 66 1.5 49.9 $30,000,000 to $34,999,999 ...... 4 0.2 97.4 66 1.5 51.4 $35,000,000 to $39,999,999 ...... 6 0.3 97.7 48 1.1 52.4 $40,000,000 and greater * ...... 43 2.3 100.0 2,159 47.6 100.0

Total Firms (Less than $40,000,000) 1,833 98 ...... 2,381 52 ......

Total Firms ...... 1,876 ...... 4,540 ...... * This category sums the firms and establishments included in the following categories: $40,000,000 to $49,999,999; $50,000,000 to $74,999,999; $75,000,000 to $99,999,999; $100,000,000 and greater.

Table 9 presents the number of firms, category. The calculated average annual revenue per establishment are also the number of establishments, and the revenue per firm and the average annual provided. annual revenue of firms by revenue size

TABLE 9—MOTION PICTURE THEATERS (EXCEPT DRIVE-INS) FIRMS AND ESTABLISHMENTS, ANNUAL REVENUE BY REVENUE CATEGORY, 2012 STATISTICS OF U.S. BUSINESSES [NAICS 512131]

Annual Number Number of revenue for Annual Annual Firms with annual revenue of firms establishments all firms revenue revenue per ($ millions) per firm * establishment *

Less than $100,000 ...... 244 246 $13.3 $54,508 $54,065 $100,000 to $499,999 ...... 618 630 158.5 256,537 251,651 $500,000 to $999,999 ...... 332 353 237.3 714,762 672,241 $1,000,000 to $2,499,999 ...... 399 460 615.4 1,542,318 1,337,793 $2,500,000 to $4,999,999 ...... 125 189 424.4 3,394,864 2,245,280 $5,000,000 to $7,499,999 ...... 35 66 192.4 5,497,029 2,915,091 $7,500,000 to $9,999,999 ...... 19 49 146.2 7,697,211 2,984,633 $10,000,000 to $14,999,999 ...... 26 107 312.3 12,013,115 2,919,075 $15,000,000 to $19,999,999 ...... 9 41 127.8 14,200,444 3,117,171 $20,000,000 to $24,999,999 ...... 10 60 143.1 14,314,600 2,385,767 $25,000,000 to $29,999,999 ...... 6 66 136.4 22,734,000 2,066,727 $30,000,000 to $34,999,999 ...... 4 66 ** n/a ** n/a ** n/a $35,000,000 to $39,999,999 ...... 6 48 165.1 27,514,000 3,439,250 $40,000,000 and greater ...... 43 2,159 10,520 244,639,651 4,872,397 * Calculated. ** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.

D. Costs to Impacted Small Entities number of auditoriums within a theater percentage of movie theaters by venue Annual revenue data from the SUSB exhibiting digital movies. Therefore, the type, calculated from the 2015 program is used, together with Final RA breaks the movie exhibition distribution of auditoriums by venue information regarding likely per-theater industry into four venue types based on type (table 3–3 of the Final RA) and the upfront and ongoing annual costs size: average number of auditoriums per • 31 (section 4.1.4 of the Final RA), to Megaplex (16+ auditoriums); venue type. The table indicates that estimate the impact of this rulemaking • Multiplex (8–15 auditoriums); approximately 40 percent of movie on small entities relative to their • Miniplex (2–7 auditoriums); and theater establishments are multiplex resources. As described in section 2.1.4 • Single-Auditorium movie theaters. theaters, and 43 percent are either of the Final RA, movie theater The FRFA uses the estimated number miniplex (22 percent) or single- complexes vary greatly by the number of of movie theaters by venue type to auditorium theaters (21 percent), with auditoriums that they contain, and the determine the cost impact per firm. the remaining 17 percent being per-theater cost varies according to the Table 10 presents estimates of the megaplex theaters.

31 See NATO, Statement of Position on RIN 1190– Movie Theaters; Movie Captioning and Audio Id=DOJ-CRT-2014-0004-0401&attachmentNumber= AA63, CRT Docket No. 126, Nondiscrimination on Description 22, available at http:// 4&disposition=attachment&contentType=pdf (last the Basis of Disability by Public Accommodations— www.regulations.gov/contentStreamer?document visited Sept. 12, 2016).

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TABLE 10—ESTIMATED NUMBER OF MOVIE THEATERS BY VENUE TYPE [2015]

Estimated Number of Average number of Percentage auditoriums number of movie of movie Venue type exhibiting ÷ auditoriums = theaters theaters by digital movies by venue by venue venue type (2015) type type (2015) (2015)

Megaplex ...... 12,812 ÷ 18 = 712 17 Multiplex ...... 20,322 ÷ 12 = 1,693 40 Miniplex ...... 4,666 ÷ 5 = 933 22 Single-Auditorium ...... 889 ÷ 1 = 889 21

Total ...... 38,688 ÷ ...... = 4,227 100

As previously discussed, movie ongoing costs to comply with the upfront costs incurred by the average theaters, including small movie theaters, requirements of this rulemaking. Table movie theater within each venue type. will incur upfront costs as well as 11 below presents the undiscounted

TABLE 11—AVERAGE PER MOVIE THEATER UPFRONT COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, UNDISCOUNTED [$]

Audio Audio Captioning description Captioning description Installation Total upfront Venue type hardware hardware device device costs costs acquisition acquisition acquisition acquisition

Megaplex ...... $16,158 $205 $8,728 $1,470 $797 $27,358 Multiplex ...... 10,772 205 5,819 980 533 18,309 Miniplex ...... 4,488 205 4,364 490 286 9,834 Single-Auditorium ...... 1,097 308 1,864 190 104 3,562 * Totals may differ due to rounding.

Because movie theaters will incur the auditoriums by venue type and discussed in section 3.3.1 of the Final highest costs to acquire the necessary estimates the relevant number of RA. The average number of auditoriums equipment, tables 12 through 19 provide captioning hardware units required by across each venue type was provided by the data used to estimate these costs. the scoping requirements using the one- NATO in its public comment on the Table 12 presents the average number of unit-per-auditorium assumption 2014 NPRM.

TABLE 12—CAPTIONING HARDWARE SCOPING REQUIREMENT PER VENUE TYPE

Captioning Average hardware units Venue type number required per of auditoriums venue type

Megaplex (16+ auditoriums) ...... 18 18 Multiplex (8–15 auditoriums) ...... 12 12 Miniplex (2–7 auditoriums) ...... 5 5 Single-Auditorium ...... 1 1

Similarly, table 13 presents the units required by the scoping average number of auditoriums across average number of auditoriums by requirements using the one-unit-per- each venue type was provided by NATO venue type and estimates the relevant movie-theater assumption discussed in in its public comment on the 2014 number of audio description hardware section 3.3.2 of the Final RA. The NPRM.

TABLE 13—AUDIO DESCRIPTION HARDWARE SCOPING REQUIREMENTS PER VENUE TYPE

Audio Average description Venue type number hardware units of auditoriums required per venue type

Megaplex (16+ auditoriums) ...... 18 1 Multiplex (8–15 auditoriums) ...... 12 1 Miniplex (2–7 auditoriums) ...... 5 1

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TABLE 13—AUDIO DESCRIPTION HARDWARE SCOPING REQUIREMENTS PER VENUE TYPE—Continued

Audio Average description Venue type number hardware units of auditoriums required per venue type

Single-Auditorium ...... 1 1

Tables 14 and 15 below estimate the figures are merely estimates based on description devices required at a minimum number of captioning devices the average number of auditoriums particular movie theater establishment required per venue type. The across each venue type. The exact depends on the number of auditoriums Department emphasizes that these number of captioning and audio showing digital movies.

TABLE 14—CAPTIONING DEVICE SCOPING REQUIREMENTS PER VENUE TYPE [Estimated]

Minimum number of captioning Venue type devices required per venue type

Megaplex (16+ auditoriums) ...... 12 Multiplex (8–15 auditoriums) ...... 8 Miniplex (2–7 auditoriums) ...... 6 Single-Auditorium ...... 4

TABLE 15—AUDIO DESCRIPTION DEVICE SCOPING REQUIREMENTS PER VENUE TYPE [Estimated]

Minimum number of audio Average description Venue type number devices of auditoriums required per venue type

Megaplex (16+ auditoriums) ...... 18 9 Multiplex (8–15 auditoriums) ...... 12 6 Miniplex (2–7 auditoriums) ...... 5 3 Single-Auditorium ...... 1 2

Finally, the unit costs for the provided in NATO’s public comment on estimate, please see section 3.4 of the necessary equipment are presented in the 2014 NPRM. For further detail Final RA. table 16, Table 17, Table 18, and Table regarding the unit costs used to develop 19 below. This information was the total equipment acquisition costs

TABLE 16—CAPTIONING HARDWARE UNIT COSTS

Cost per captioning Technology hardware unit

Doremi Captiview ...... $864 USL ...... 1,371 Sony ...... 500 Average (Excluding Sony) ...... 1,118 Average (All Technologies) ...... 912

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TABLE 17—ADDITIONAL COST FOR AUDIO DESCRIPTION HARDWARE

Cost per theater Technology for audio description hardware

Doremi Captiview ...... $615 USL ...... 0 Sony ...... 0 Average (Excluding Sony) ...... 308 Average (All Technologies) ...... 205

TABLE 18—CAPTIONING DEVICE UNIT COSTS

Cost per Technology captioning device

Doremi Captiview ...... $453 USL ...... 479 Sony ...... 1,250 Average (Excluding Sony) ...... 466 Average (All Technologies) ...... 727

TABLE 19—AUDIO DESCRIPTION DEVICE UNIT COSTS

Cost per audio Technology description device

Doremi Captiview ...... $121 USL ...... 69 Sony ...... 300 Average (Excluding Sony) ...... 95 Average (All Technologies) ...... 163

In addition to incurring upfront costs, ongoing costs that the average movie can be found in section 3.6 (replacement movie theaters will also incur ongoing theater within each venue type will costs), section 3.7 (training costs), and costs to comply with the final rule. incur over the 15-year period of section 3.8 (maintenance and Table 20 below presents the estimated analysis. More detailed information administrative costs) of the Final RA. total ongoing costs and the annual about how these costs were calculated

TABLE 20—AVERAGE PER MOVIE THEATER ONGOING COSTS BY VENUE TYPE IN PRIMARY ANALYSIS, UNDISCOUNTED [$]

Total Total Total staff maintenance Total ongoing Ongoing costs Venue type replacement training costs and adminis- costs per year costs trative costs

Megaplex ...... $46,957 $7,058 $11,952 $65,968 $4,398 Multiplex ...... 31,373 4,705 7,999 44,077 2,938 Miniplex ...... 19,255 1,961 4,296 25,512 1,701 Single-Auditorium ...... 7,566 392 1,556 9,514 634 * Totals may differ due to rounding.

Table 21 summarizes the estimated average upfront costs (acquisition, administrative costs) by venue type. The per movie theater costs by venue type, installation) by venue type while the rightmost column shows the total as explained above and in further detail second column shows the average undiscounted cost to an average theater in section 4.1.4 of the Final RA. The ongoing annual costs (replacement, by venue type over the 15-year period first column in table 21 presents the training, and maintenance and of analysis.

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TABLE 21—AVERAGE PER MOVIE THEATER COSTS, UNDISCOUNTED [$]

Average annual per Average per theater theater ongoing upfront costs costs Total per theater Venue type (acquisition, (replacement, train- costs over period of installation) ing, maintenance analysis and administrative)

Megaplex ...... $27,358 $4,398 $93,325 Multiplex ...... 18,309 2,938 62,386 Miniplex ...... 9,834 1,701 35,346 Single-Auditorium ...... 3,562 634 13,076

The FRFA quantifies the impact on Based on this information, the FRFA estimated annual revenue per small entities by calculating the average makes the following assumptions auditorium. upfront costs and the ongoing costs as regarding the venue types operated by • Firms with annual revenues a percentage of average annual revenue. firms in each revenue category: between $1 million and $2.5 million As presented in the table above, the per • Firms with less than $499,999 in operate miniplex and multiplex movie movie theater costs are calculated by annual revenue operate single- theaters. Costs to firms with annual venue type. However, the SUSB auditorium movie theaters.33 As revenues between $1 million and $2.5 program provides no information presented in table 9, firms with less million are an average of the costs to regarding the venue types operated by miniplex and multiplex movie theaters. than $100,000 in annual revenue have firms in each revenue category. As a • Firms with annual revenues an average annual revenue of $54,065 result, the analysis uses the following between $2.5 million and $40 million per theater; firms with $100,000 to information to estimate the venue types operate multiplex and megaplex movie $499,999 in annual revenue have an operated by firms in each revenue theaters. Costs to firms with revenues average annual revenue of $251,651 per category: between $2.5 million and $40 million • The average annual revenue per theater. These average revenue figures are estimated using a weighted auditorium is approximately $200,000 are close to or below NATO’s estimated average 34 of the costs to multiplex and to $250,000.32 annual revenue per auditorium. megaplex movie theaters based on the • Industry research indicates that the • Firms with annual revenues from number of movie theaters presented in firms with the largest annual revenue $500,000 to $999,999 operate miniplex table 10. operate most megaplex and multiplex movie theaters (2–7 auditoriums). The Using the above assumptions, table 22 movie theaters, whereas the firms with average annual revenue in this category presents the estimated upfront and smaller annual revenues operate most is $714,762, which is equivalent to the ongoing annual costs for small entity miniplex and single-auditorium movie revenue generated by approximately movie theater firms, grouped into four theaters. three auditoriums according to NATO’s revenue categories.

TABLE 22—VENUE TYPE, UPFRONT COSTS, AND ONGOING COSTS BY REVENUE CATEGORY IN FRFA

Estimated Estimated annual upfront costs ongoing Firms with annual revenue of Venue type used to estimate costs to firms to average costs to movie theater average movie stablishment theater establishment

Less than $499,999 ...... Single-Screen ...... $3,562 $634 $500,000 to $999,999 ...... Miniplex ...... 9,834 1,701 $1,000,000 to $2,499,999 ...... Miniplex/Multiplex ...... * 14,071 * 2,320 $2,500,000 to $39,999,999 ...... Multiplex/Megaplex ...... ** 20,987 ** 3,370 * Average of Miniplex/Multiplex costs. ** Weighted Average of Multiplex and Megaplex costs based on number of theaters (table 10).

Table 23 below shows the upfront average costs per firm are derived from upfront costs per theater for each costs as a percentage of annual revenue the average number of establishments revenue category (second column). As for firms by revenue category. The per firm (first column) and the average the table shows, the upfront costs make

32 NATO, Attachment A, Spring 2014 33 According to the 2012 SUSB, firms with less Drive-Ins) is 512131. This figure is slightly less than Accessibility Survey Results, submitted in RIN than $499,999 in annual revenue operated 19.3 the estimate in table 10, which finds that 21 percent 1190–AA63, CRT Docket No. 126, percent of all establishments in 2012. See U.S. of all movie theaters are single-auditorium. Nondiscrimination on the Basis of Disability by Census Bureau, Statistics of U.S. Businesses, 34 According to table 10, there are approximately Public Accommodations—Movie Theaters; Movie available at http://www.census.gov/econ/susb/ (see 2,405 megaplex and multiplex theaters, of which Captioning and Audio Description, available at Data by Enterprise Receipt Size, U.S., 6-digit 712 are megaplexes and 1,693 are multiplexes. The https://www.regulations.gov/contentStreamer NAICS) (last visited Sept. 12, 2016). The weighted average assumes that 30 percent of the ?documentId=DOJ-CRT-2014-0004-0401& information is available in an Excel file which lists movie theaters in this revenue category are attachmentNumber=3&disposition=attachment& all information by NAICS Code. The relevant megaplex movie theaters (712/2,405) and 70 percent contentType=pdf (last visited Sept. 12, 2016). NAICS Code for Motion Picture Theaters (except are multiplex movie theaters (1,693/2,405).

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up less than 1.5 percent of annual of annual revenue for this category of remaining movie theaters with analog revenue for all firms except those with firms, the information available to the projection systems have not converted revenues of less than $100,000. For all Department supports its view that most to digital projection systems because firms with revenues of $2,500,000 or of these firms are likely operating single they cannot afford the high cost to do so greater, the upfront cost was less than 1 auditoriums that exhibit analog movies ($60,000 to $150,000 per auditorium 35). percent of annual revenues. exclusively and are therefore not subject Therefore, it is reasonable to assume As discussed previously, the data to the requirements of this rule. First, that most of the movie theater firms from the 2012 SUSB that is provided in according to industry experts, the with less than $100,000 in annual this section also includes data from average annual revenue per auditorium revenue operate movie theaters with movie theaters operating auditoriums is approximately $200,000 to $250,000, analog auditoriums that are not subject that exhibit analog movies exclusively, thus making it reasonable to assume that to this rulemaking. In addition, all which are not subject to the firms with annual revenue less than requirements of this rulemaking. Based $100,000 operate single-auditorium movie theaters with auditoriums on its own independent research and movie theaters. Second, the Department exhibiting digital movies—including analysis, the Department believes that received information from industry any firms with less than $100,000 in most firms with annual revenue less experts that the majority of single- annual revenue—continue to have than $100,000 are not subject to the auditorium movie theaters still use available to them the individualized and requirements of this rule. Although the analog projection systems. Third, fact-specific undue burden limitation FRFA calculates the costs as a percent commenters indicated that the specified in § 36.303(a).

TABLE 23—AVERAGE UPFRONT COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE CATEGORY, UNDISCOUNTED [2015 $]

Upfront costs Establishments Average upfront Average Average as a Revenue category per firm costs per upfront costs revenue percentage establishment per firm per firm of revenue

Less than $100,000 * ...... 1.01 $3,562 $3,591 $54,508 6.6 $100,000 to $499,999 ...... 1.02 3,562 3,631 256,537 1.4 $500,000 to $999,999 ...... 1.06 9,834 10,456 714,762 1.5 $1,000,000 to $2,499,999 ...... 1.15 14,071 16,223 1,542,318 1.1 $2,500,000 to $4,999,999 ...... 1.51 20,987 31,732 3,394,864 0.9 $5,000,000 to $7,499,999 ...... 1.89 20,987 39,575 5,497,029 0.7 $7,500,000 to $9,999,999 ...... 2.58 20,987 54,124 7,697,211 0.7 $10,000,000 to $14,999,999 ...... 4.12 20,987 86,368 12,013,115 0.7 $15,000,000 to $19,999,999 ...... 4.56 20,987 95,606 14,200,444 0.7 $20,000,000 to $24,999,999 ...... 6.00 20,987 125,920 14,314,600 0.9 $25,000,000 to $29,999,999 ...... 11.00 20,987 230,853 22,734,000 1.0 $30,000,000 to $34,999,999 ...... 16.50 20,987 346,280 ** n/a ** n/a $35,000,000 to $39,999,999 ...... 8.00 20,987 167,893 27,514,000 0.6 * Likely firms operating single-auditorium movie theaters that exhibit analog movies exclusively, and therefore not subject to this rulemaking. ** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.

Table 24 presents the average annual revenue category. For all firms, except or less, annual ongoing costs make up ongoing cost as a percentage of average those with annual revenues of $100,000 less than 0.3 percent of annual revenue. annual revenue for firms in each

TABLE 24—AVERAGE ANNUAL ONGOING COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE CATEGORY, UNDISCOUNTED [2015 $]

Annual Average Average Average ongoing cost Revenue category Establishment/ ongoing costs annual revenue per as a firm per ongoing firm percentage establishment cost per firm of revenue

Less than $100,000 * ...... 1.01 $634 $639 $54,508 1.2 $100,000 to $499,999 ...... 1.02 634 647 256,537 0.3 $500,000 to $999,999 ...... 1.06 1,701 1,808 714,762 0.3 $1,000,000 to $2,499,999 ...... 1.15 2,320 2,674 1,542,318 0.2 $2,500,000 to $4,999,999 ...... 1.51 3,370 5,096 3,394,864 0.2 $5,000,000 to $7,499,999 ...... 1.89 3,370 6,356 5,497,029 0.1 $7,500,000 to $9,999,999 ...... 2.58 3,370 8,692 7,697,211 0.1 $10,000,000 to $14,999,999 ...... 4.12 3,370 13,870 12,013,115 0.1 $15,000,000 to $19,999,999 ...... 4.56 3,370 15,354 14,200,444 0.1

35 See Helen Alexander & Rhys Blakely, The Movies, New Republic (Sep. 12, 2014), available at digital-cinema-took-over-35mm-film (last visited Triumph of Digital Will Be the Death of Many http://www.newrepublic.com/article/119431/how- Sept. 12, 2016).

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TABLE 24—AVERAGE ANNUAL ONGOING COSTS AS A PERCENTAGE OF ANNUAL REVENUE PER FIRM, BY REVENUE CATEGORY, UNDISCOUNTED—Continued [2015 $]

Annual Average Average Average ongoing cost Revenue category Establishment/ ongoing costs annual revenue per as a firm per ongoing firm percentage establishment cost per firm of revenue

$20,000,000 to $24,999,999 ...... 6.00 3,370 20,222 14,314,600 0.1 $25,000,000 to $29,999,999 ...... 11.00 3,370 37,074 22,734,000 0.2 $30,000,000 to $34,999,999 ...... 16.50 3,370 55,611 ** n/a ** n/a $35,000,000 to $39,999,999 ...... 8.00 3,370 26,963 27,514,000 0.1 * Likely firms operating single-auditorium movie theaters that exhibit analog movies exclusively, and therefore not subject to this rulemaking. ** Annual revenue data withheld and value set to 0 to avoid disclosing information of individual businesses.

E. Reporting, Recordkeeping, and Other use ‘‘CC’’ and ‘‘AD’’ or ‘‘DV’’ to indicate the Final RA for further information and Compliance Requirements the availability of closed movie detail regarding the alternatives that the The final rule imposes no new captioning and audio description in Department considered. their communications, and the recordkeeping or reporting Changes to the Compliance Date Department’s research indicates that the requirements. However, the final rule In the final rule, movie theaters have does require that movie theaters inclusion of such abbreviations does not require additional technical knowledge. 18 months to acquire and install the disclose to the public information necessary equipment to provide closed concerning the availability of captioning Moreover, the movie exhibition industry has largely moved away from print movie captioning and audio description and audio description for movies shown in their auditoriums exhibiting digital in their auditoriums. Specifically, advertising in favor of digital advertising. As one commenter movies. The Department also § 36.303(g)(8) of the final rule requires indicated, digital advertising allows considered other compliance windows, movie theaters to inform the public of movie theaters to add information including a 6-month and a 2-year the availability of captioning and audio concerning the availability of captioning compliance window. Some commenters description on all notices of movie and audio description without much suggested that the Department defer the showings and times at the box office difficulty or cost. requirements of this rule for small and other ticketing locations, on Web More detailed information on the movie theaters with annual revenue less sites and mobile apps, in newspapers, estimated burden and costs associated than $500,000 because these movie and over the telephone. This with the final rule’s notice requirement theaters might have financial difficulty requirement applies to any movie is provided in the Department’s 60-day complying with the requirements. theater showing digital movies with Paperwork Reduction Act Notice The Department ultimately decided captioning and audio description on or published in the Federal Register on that an 18-month compliance date was after January 17, 2017. Notices of movie June 10, 2016. 81 FR 37643. The the most appropriate choice for all showings and times posted by third Department published a second notice movie theaters exhibiting digital movies parties not subject to or under the in the Federal Register on August 30, and is only deferring application of the control of a covered movie theater are 2016. 81 FR 59657. The 30-day rule’s requirements for movie theater not subject to this requirement. comment period for the second notice auditoriums that exhibit analog movies As discussed throughout the Final closed on September 29, 2016. exclusively. The Department’s decision RA, movie theaters, including small regarding the 18-month compliance date entities, may incur costs as a result of F. Measures Taken To Limit Impact on in the final rule is based on the complying with the final rule. These Small Entities Department’s independent research and costs are detailed in section 7.4 of the The Department is aware of potential the information provided in comments Final RA and section VI.D above but do limitations to compliance for small during the 2014 NPRM comment period. not include the costs associated with the entities—specifically, small movie Based on this information, the notice requirement. As discussed in theater firms with less than $38.5 Department determined that 6 months section V.A.3 above, the Department million in annual revenue—and has may be an insufficient amount of time expects that the additional cost and taken measures to lessen the impact on for movie theaters to comply with the burden of noting which screenings will those entities. In addition to soliciting requirements of this rulemaking, be captioned or audio-described is de comments regarding methods to reduce especially small movie theaters. minimis when a movie theater is the regulatory impact on small movie However, the Department believes that already preparing a communication theaters, the Department also an 18-month compliance date gives listing movie titles and screening times. participated in a roundtable sponsored small movie theaters, especially those Therefore, the Department anticipates by the Office of Advocacy of the SBA at struggling financially as a result of the that the costs and burdens associated which organizations representing small unrelated costs of digital conversion, a with this requirement will also be de movie theaters as well as individual sufficient amount of time to plan and minimis for small entities. owners expressed their views. As a budget accordingly. Although some Additionally, the Department does result of the information provided, the commenters suggested a deferral for a not expect that movie theater personnel Department considered a variety of category of smaller movie theaters, the will need to acquire additional alternatives in the final rule. The Department found that to be professional skills to comply with this different alternatives considered and unnecessary because movie theaters do requirement. A specific form of notice is their relevance to small movie theaters not have to comply with requirements not required. Movie theaters routinely are summarized below. See chapter 6 of of the final rule to the extent that

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complying would constitute an undue as a result, small theaters that still have (iv) Captioning device means the burden or a fundamental alteration. analog projection systems tend to have individual device that a patron may use fewer financial resources than other at any seat to view closed movie Changes to the Scoping Requirements movie theaters. The Department rejected captioning. In the 2014 NPRM, the Department the alternative 4-year compliance date (v) Closed movie captioning means proposed scoping requirements for for analog movie theaters and is the written display of a movie’s captioning devices based on the number deferring until a later date the decision dialogue and non-speech information, of seats in a movie theater, which were whether to apply the rule’s such as music, the identity of the equivalent to approximately 2 percent of requirements to movie theater character who is speaking, and other seats. The Department further proposed auditoriums exhibiting analog movies sounds or sound effects. Closed movie that movie theaters maintain one audio exclusively. Because the remaining captioning generally requires the use of description device per auditorium, with analog movie theaters likely qualify as a captioning device for delivery of the a minimum of two devices per movie small entities, the deferral of rulemaking captions to the patron. theater. However, in light of the public with respect to analog auditoriums will (vi) Digital movie means a movie comments received and proposals made reduce the burdens on small movie exhibited in digital cinema format. by the movie exhibition industry and theaters. (vii) Movie theater means a facility, multiple disability advocacy groups, other than a drive-in theater, that is those scoping requirements have been List of Subjects for 28 CFR Part 36 owned, leased by, leased to, or operated reduced in the final rule. Because movie Administrative practice and by a public accommodation and that theaters are rarely at 100 percent procedure, Buildings and facilities, contains one or more auditoriums that occupancy, the Department determined Business and industry, Civil rights, are used primarily for the purpose of that the number of seats within a movie Individuals with disabilities, Penalties, showing movies to the public for a fee. theater is an inappropriate proxy for Reporting and recordkeeping (viii) Open movie captioning means determining the number of captioning requirements. the written on-screen display of a devices required. One commenter noted By the authority vested in me as movie’s dialogue and non-speech that the scoping requirements based on Attorney General by law, including 28 information, such as music, the identity seat count could disproportionately U.S.C. 509 and 510, 5 U.S.C. 301, and of the character who is speaking, and impact small movie theaters because 42 U.S.C. 12186 and 12205a, and for the other sounds and sound effects. many single-auditorium movie theaters reasons set forth in Appendix A to 28 (2) General. A public accommodation are historic establishments with many CFR part 36, chapter I of title 28 of the shall ensure that its movie theater seats but low occupancy rates. auditoriums provide closed movie Additionally, usage data indicates that Code of Federal Regulations is amended as follows: captioning and audio description audio description devices are used less whenever they exhibit a digital movie frequently than the proposed scoping PART 36—NONDISCRIMINATION ON that is distributed with such features. required. As a result, the Department THE BASIS OF DISABILITY BY PUBLIC Application of the requirements of adopted lower scoping requirements for ACCOMMODATIONS AND IN paragraph (g) of this section is deferred both captioning and audio description COMMERCIAL FACILITIES for any movie theater auditorium that devices based on the number of exhibits analog movies exclusively, but auditoriums showing digital movies ■ 1. The authority citation for part 36 is may be addressed in a future within a movie theater. The reduced revised to read as follows: rulemaking. scoping in the final rule substantially (3) Minimum requirements for lowers costs per movie theater and thus Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b), 12205a. captioning devices. A public reduces burdens on small movie accommodation shall provide a theaters. Subpart A—General minimum number of fully operational Auditoriums Exhibiting Analog Movies captioning devices at its movie theaters ■ Exclusively 2. In § 36.303: in accordance with the following Table: ■ a. Redesignate paragraph (g) as The Department considered giving paragraph (h); and Minimum movie theaters with auditoriums ■ b. Add new paragraph (g) to read as Number of movie theater required equipped to exhibit analog movies follows: auditoriums exhibiting number of exclusively 4 years to comply with the digital movies captioning rule’s requirements, as opposed to § 36.303 Auxiliary aids and services. devices deferring the decision whether to engage * * * * * 1 ...... 4 in rulemaking with respect to such (g) Movie theater captioning and 2–7 ...... 6 auditoriums (see section 1.4.1 and audio description—(1) Definitions. For 8–15 ...... 8 section 6.3 of the Final RA). Based on the purposes of this paragraph (g)— 16 + ...... 12 public comments and analysis of the (i) Analog movie means a movie most current data, the Department exhibited in analog film format. (4) Minimum requirements for audio ultimately decided to defer analog (ii) Audio description means the description devices. (i) A public auditoriums from coverage of this rule. spoken narration of a movie’s key visual accommodation shall provide at its As previously discussed, the movie elements, such as the action, settings, movie theaters a minimum of one fully industry continues to undergo facial expressions, costumes, and scene operational audio description device for significant changes in the production changes. Audio description generally every two movie theater auditoriums and distribution of movies, resulting in requires the use of an audio description exhibiting digital movies and no less the near elimination of first-run movies device for delivery to a patron. than two devices per movie theater. in analog film format. Most movie (iii) Audio description device means When calculation of the required theaters have converted to digital the individual device that a patron may number of devices results in a fraction, projection systems to the extent that use at any seat to hear audio the next greater whole number of they are financially able to do so, and description. devices shall be provided.

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(ii) A public accommodation may and other ticketing locations, on Web movie’’ in the NPRM, the Department comply with the requirements in sites and mobile apps, in newspapers, defined the term in the preamble and paragraph (g)(4)(i) of this section by and over the telephone, inform potential solicited comment on the state of analog using the existing assistive listening patrons of the movies or showings that movies and their availability. In the final receivers that the public are available with captioning and audio rule, the Department has added a definition accommodation is already required to of ‘‘analog movie’’ in order to distinguish description. This paragraph does not between movies shown in digital cinema provide at its movie theaters in impose any obligation on third parties format and movies shown in analog format. accordance with Table 219.3 of the 2010 that provide information about movie ‘‘Analog movie’’ is defined to mean ‘‘a movie Standards, if those receivers have a theater showings and times, so long as exhibited in analog film format.’’ minimum of two channels available for the third party is not part of or subject sound transmission to patrons. to the control of the public ‘‘Audio Description’’ (5) Performance requirements for accommodation. In the NPRM, the Department used the captioning devices and audio (9) Operational requirements. On or term ‘‘audio description’’ to refer to the description devices. Each captioning after January 17, 2017, whenever a spoken description of information describing device and each audio description public accommodation provides the visual elements of a movie to an device must be properly maintained by individual who is blind or has low vision captioning and audio description in a and who is unable to see the images and the movie theater to ensure that each movie theater auditorium exhibiting device is fully operational, available to action on the screen. Proposed digital movies, it shall ensure that at § 36.303(g)(1)(i) defined ‘‘audio description’’ patrons in a timely manner, and easily least one employee is available at the as the ‘‘provision of a spoken narration of key usable by patrons. Captioning devices movie theater to assist patrons seeking visual elements of a visually delivered must be adjustable so that the captions or using captioning or audio description medium, including, but not limited to, can be viewed as if they are on or near whenever a digital movie is exhibited actions, settings, facial expressions, the movie screen, and must provide with these features. Such assistance costumes, and scene changes.’’ Although the clear, sharp images in order to ensure includes the ability to— Department believes that the term ‘‘audio readability of captions. (i) Locate all necessary equipment description’’ is most commonly used to (6) Alternative technologies. (i) A that is stored and quickly activate the describe this service, it sought public public accommodation may meet its equipment and any other ancillary comment on whether to use this or some obligation to provide captioning and other nomenclature. systems required for the use of the All commenters addressing this issue audio description in its movie theaters captioning devices and audio to persons with disabilities through any agreed with the Department’s proposal and description devices; supported the use of the term and the technology so long as that technology (ii) Operate and address problems provides communication as effective as Department’s definition. In the final rule, the with all captioning and audio Department has retained the term ‘‘audio that provided to movie patrons without description equipment prior to and description,’’ and has slightly modified the disabilities. during the movie; definition for clarity to read as follows: (ii) A public accommodation may use (iii) Turn on open movie captions if ‘‘Audio description means the spoken open movie captioning as an alternative narration of a movie’s key visual elements, to complying with the requirements the movie theater is relying on open movie captioning to meet the such as the action, settings, facial specified in paragraph (g)(3) of this expressions, costumes, and scene changes. requirements of paragraph (g)(3) of this section, either by providing open movie Audio description generally requires the use captioning at all showings of all movies section; and of an audio description device for delivery to available with captioning, or whenever (iv) Communicate effectively with a patron.’’ requested by or for an individual who individuals with disabilities, including those who are deaf or hard of hearing or ‘‘Audio Description Device’’ is deaf or hard of hearing prior to the In the NPRM, at proposed start of the movie. who are blind or have low vision, about how to use, operate, and resolve § 36.303(g)(1)(iii), the Department used the (7) Compliance date for providing term ‘‘individual audio description listening captioning and audio description. (i) A problems with captioning devices and audio description devices. device’’ to refer to the ‘‘individual device that public accommodation must comply patrons may use at their seats to hear audio with the requirements in paragraphs (10) This section does not require the description.’’ The sole commenter on this (g)(2)–(6) of this section in its movie use of open movie captioning as a definition expressed concern that the term theaters that exhibit digital movies by means of compliance with paragraph (g) ‘‘individual audio description listening June 2, 2018. of this section, even if providing closed device’’ was unnecessarily long. The (ii) If a public accommodation movie captioning for digital movies Department agrees with the commenter and converts a movie theater auditorium would be an undue burden. has revised the name of the device from an analog projection system to a ■ 3. Appendix F to part 36 is added to accordingly in the final rule. The final rule read as follows: retains the text of the proposed definition system that allows it to exhibit digital with minor edits. movies after December 2, 2016, then Appendix F to Part 36—Guidance and ‘‘Captioning Device’’ that auditorium must comply with the Section-by-Section Analysis requirements in paragraph (g) of this In the NPRM, at proposed section by December 2, 2018, or within Section 36.303(g)(1) Definitions § 36.303(g)(1)(iv), the Department used the 6 months of that auditorium’s complete In the Notice of Proposed Rulemaking, 79 term ‘‘individual captioning device’’ to refer installation of a digital projection FR 44976 (Aug. 1, 2014) (NPRM), the to the ‘‘individual device that patrons may system, whichever is later. Department proposed § 36.303(g)(1), which use at their seats to view the closed (8) Notice. On or after January 17, set forth definitions for certain terms captions.’’ The sole commenter on this 2017, whenever a public specifically referenced in paragraph (g). The definition recommended that the Department shorten the nomenclature for this device to accommodation provides captioning Department sought public comment on these proposed definitions. ‘‘captioning device.’’ The Department agrees and audio description in a movie theater with the commenter and has revised the auditorium exhibiting digital movies, it ‘‘Analog Movie’’ name of the device accordingly in the final shall ensure that all notices of movie Although the Department did not rule. The final rule retains the text of the showings and times at the box office specifically propose a definition of ‘‘analog proposed definition with minor edits.

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‘‘Closed Movie Captioning’’ Department to consider developing captioning and audio description at a movie The NPRM defined ‘‘closed movie additional regulations that would specifically theater that is subject to the requirements in captioning’’ as ‘‘the written text of the movie address public accommodations that are not paragraph (g), then the effective dialogue and other sounds or sound making covered by the proposed definition but communication obligation would require the (e.g. sound effects, music, and the character otherwise exhibit movies or other video festival to ensure that the accessible features who is speaking).’’ The NPRM further content. are available at all scheduled screenings of a provided that closed movie captioning be The Department declines to make any movie distributed with such features. available only to individuals who request it, changes at this time to address public The Department also received several and that, generally, it requires the use of an accommodations that do not meet the comments regarding the exclusion of drive- individual captioning device to deliver the definition of ‘‘movie theater’’ and are, in movie theaters in the proposed definition. captions to the patron. therefore, not subject to the requirements of Many commenters agreed that drive-in movie Commenters were equally split as to paragraph (g). The Department’s title III theaters should not be subject to the whether the Department should use ‘‘closed regulation has always made clear that all requirements of paragraph (g) because the movie captioning’’ or some other language to public accommodations must provide technology still does not exist to exhibit refer to the technology. Some commenters effective communication to the public movies with closed movie captioning and urged the Department to use the term ‘‘closed through the provision of auxiliary aids and audio description in this setting. A few captioning.’’ Other commenters disagreed, services, including, where appropriate, commenters pointed out innovative ways for however, and stated that the Department captioning and audio description. See drive-in movie theaters to provide captioning should avoid using the term ‘‘closed generally 28 CFR 36.303; 28 CFR part 36, and audio description and argued that such captioning’’ to distinguish it from the ‘‘closed app. A. The requirements of this rule were options are feasible. For example, one captioning’’ that is turned on at home by a not intended to supplant the general commenter suggested that drive-in movie person viewing the television. In the final obligation to provide effective theaters provide audio description through a rule, the Department is retaining the term communication through the provision of second low-power FM broadcast transmitter ‘‘closed movie captioning,’’ but the definition auxiliary aids and services. They are only or on a second FM channel. However, these is modified for clarity to read: ‘‘Closed movie intended to provide clarity about how commenters did not clearly identify captioning means the written display of a ‘‘movie theaters’’ must meet this obligation. technology that is currently available or movie’s dialogue and non-speech The Department notes that many public under development to provide closed movie information, such as music, the identity of accommodations that screen movies as a captioning in this setting. Finally, one the character who is speaking, and other secondary function already provide commenter expressed concern that if audio sounds or sound effects. Closed movie appropriate auxiliary aids and services, and description was broadcast at a drive-in captioning generally requires the use of a where the Department has identified the theater, it would likely be heard by patrons captioning device for delivery of the captions need for enforcement action, these types of who do not require audio description and to the patron.’’ public accommodations have been willing to would result in a fundamental alteration of comply with the ADA and the effective the movie-going experience for such patrons. ‘‘Digital Movie’’ communication requirement. See, e.g., Press The Department declines to change its The Department has added a definition of Release, U.S. Department of Justice, Justice position that drive-in movie theaters should ‘‘digital movie,’’ meaning ‘‘a movie exhibited Department Reaches Settlement with be excluded from the requirements of in digital cinema format.’’ National Museum of Crime and Punishment paragraph (g). Given the diminishing number to Improve Access for People with Disabilities of drive-in movie theaters, the current lack of ‘‘Movie Theater’’ (Jan. 13, 2015), available at http:// accessible technology to provide closed The NPRM proposed defining ‘‘movie www.justice.gov/opa/pr/justice-department- movie captioning and audio description in theater’’ as ‘‘a facility other than a drive-in reaches-settlement-national-museum-crime- this setting, and the fact that it is unlikely theater that is used primarily for the purpose and-punishment-improve-access (last visited that such technology will be developed in the of showing movies to the public for a fee’’ in Sept. 12, 2016). future, the Department remains convinced order to make clear which facilities are Two commenters asked the Department to that rulemaking regarding drive-in movie subject to the specific captioning and audio revise the definition of ‘‘movie theater’’ to theaters should be deferred until the description requirements set forth in clarify that public accommodations used as necessary technology becomes commercially § 36.303(g). The Department intended this temporary screening locations during film available. definition to exclude drive-in movie theaters festivals, such as pop-up tents, convention For the reasons discussed above, the as well as facilities that screen movies if the centers, and museums with theaters, are not Department has retained the text of the facility is not used primarily for the purpose subject to the requirements of paragraph (g). proposed definition of ‘‘movie theater’’ with of showing movies for a fee, such as According to such commenters, most movies minor edits. The final rule defines ‘‘movie museums, hotels, resorts, or cruise ships, screened at festivals are not ready for theater’’ as ‘‘a facility, other than a drive-in even if they charge an additional fee. The distribution, and typically have not yet been theater, that is owned, leased by, leased to, Department asked for public comment on the distributed with captioning and audio or operated by a public accommodation and proposed definition and whether it description. To the extent a film is already that contains one or more auditoriums that adequately described the movie theaters that distributed with these features, the are used primarily for the purpose of should be covered by this regulation. commenters argued that the myriad of showing movies to the public for a fee.’’ Commenters generally supported the logistics entailed in coordinating a festival Department’s proposed definition for ‘‘movie may preclude a film festival from making ‘‘Open Movie Captioning’’ theater,’’ but there were some concerns about such features available. The NPRM proposed defining ‘‘open movie the proposed definition’s scope. Some The Department does not believe that its captioning’’ as ‘‘the provision of the written commenters asserted that the definition of definition of ‘‘movie theater’’ encompasses text of the movie dialogue and other sounds ‘‘movie theater’’ should be expanded to the temporary facilities described by the or sound making in an on-screen text format include the institutions that the Department commenters that host film festivals. that is seen by everyone in the movie expressly excluded, such as museums, However, operators of film festivals, just like theater.’’ hotels, resorts, cruise ships, amusement any other public accommodation that While commenters were evenly split on parks, and other similar public operates a place of entertainment, are still whether the new regulation should use the accommodations that show movies as a subject to the longstanding general term ‘‘open movie captioning’’ or ‘‘open secondary function, whether or not they requirement under § 36.303 to provide captioning,’’ the Department chose the charge a fee. One commenter expressed effective communication unless doing so former to avoid confusion and emphasize concern that such entities might believe that would be a fundamental alteration of the that the term refers only to captioning they are otherwise exempt from any program or service or would constitute an provided at movie theaters. The final rule requirement to furnish auxiliary aids and undue burden. Moreover, if a festival defines ‘‘open movie captioning’’ as ‘‘the services to ensure effective communication, programmer schedules the screening of a written on-screen display of a movie’s and another commenter urged the movie that is already distributed with dialogue and non-speech information, such

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as music, the identity of the character who to being an unnecessary strain on small burden and listing factors to be considered in is speaking, and other sounds and sound businesses, considering the high cost of determining whether an action would result effects.’’ compliance for such movie theaters. in an undue burden). It does, however, The remaining commenters responding to provide clarity about how movie theaters can Section 36.303(g)(2) General this question stated that the Department meet their longstanding effective In the NPRM, the Department proposed at should adopt Option 1’s 4-year compliance communication obligations under the ADA. § 36.303(g)(2)(i) that ‘‘[a] public date for movie theaters displaying analog The Department notes that even if a movie accommodation that owns, leases, leases to, movies. These commenters reasoned that theater cannot initially install captioning and or operates a movie theater shall ensure that fairness and equality concerns justified audio description equipment in all of its its auditoriums have the capability to exhibit adoption of Option 1 because, in their view, auditoriums because it is an undue burden, movies with closed movie captions.’’ That Option 2 could incentivize more movie the movie theater is still obligated to comply paragraph further provided that in all cases theaters to delay their digital conversion, with renumbered § 36.303(h) and provide where the movies the theater intends to resulting in fewer movie theaters being alternatives to full compliance by providing exhibit are produced, distributed, or subject to the regulation, and individuals captioning and audio description in some of otherwise made available with closed movie with hearing and vision disabilities its auditoriums up to the point where the captions, the public accommodation must continuing to face unequal access to movie cost becomes an undue burden. In such a ensure that it acquires the captioned version theaters. A few disability groups argued that situation, the movie theater should take steps of those movies and makes closed movie because a movie theater is subject to title III to maximize the range of movie options for captions available at all scheduled screenings of the ADA regardless of whether it displays customers who are deaf or hard of hearing, of those movies. An identical provision analog movies or digital movies, adoption of or blind or have low vision, by dispersing the requiring movie theaters to exhibit movies Option 2 could be seen as carving out an available equipment throughout their with audio description was proposed at exception within the ADA where none exists auditoriums so that the theater is able to § 36.303(g)(3)(i). The Department proposed otherwise. exhibit as many movies as possible with applying the requirements for closed movie In consideration of these comments and captioning and audio description throughout captioning and audio description to all movie the Department’s independent research, the the day and evening on weekdays and screens (auditoriums) in movie theaters that Department has decided to defer until a later weekends. If, for example, a six-auditorium show digital movies and sought public date the decision whether to engage in movie theater can only afford to install comment as to the best approach to take with rulemaking with respect to movie theater captioning equipment in half of its respect to movie theaters that show analog auditoriums that exhibit analog movies auditoriums, and it has auditoriums with movies. The Department sought public exclusively. Thus, the final rule makes clear different capacities, it should install comment on whether it should adopt one of that the requirements of paragraph (g) apply captioning equipment in a large, a medium, two options regarding the specific obligation only to movie theaters with auditoriums that and a small auditorium. This distribution of to provide captioning and audio description show digital movies. The Department agrees equipment would permit exhibition of at movie theater auditoriums that display with commenters that very few analog movie different types of movies, as blockbusters analog movies. Option 1 proposed covering theaters remain, and that the number of such generally are shown in larger auditoriums movie theater screens (auditoriums) that movie theaters has declined rapidly in recent first and lower budget or older movies may display analog movies but giving them 4 years. The Department believes that it is only be shown in medium or small years to come into compliance with the prudent to wait until it is clear whether there auditoriums. requirements of § 36.303(g). Option 2 will be any movie theaters that continue to It has been, and continues to be, the proposed deferring the decision whether to show analog movies and whether analog Department’s position that it would not be a apply the rule’s requirements to movie movies will continue to be produced at all, fundamental alteration of the business of theater screens (auditoriums) showing analog or distributed with captioning and audio showing movies in theaters to exhibit movies movies and considering additional description. Although movie theater already distributed with closed movie rulemaking at a later date. auditoriums that exhibit analog movies captioning and audio description in order to Many commenters generally agreed with exclusively are not subject to the specific ensure effective communication for the provisions as they related to movie requirements of paragraph (g) at this time, individuals who are deaf or hard of hearing, theaters displaying digital movies. These such movie theaters are nonetheless public or blind or have low vision. The service that commenters stressed, however, that movie accommodations and subject to the effective movie theaters provide is the screening or theaters should in no way be prohibited or communication requirements of title III. exhibiting of movies. The use of captioning limited from exhibiting a movie that is not The final rule provides that ‘‘[a] public and audio description to make that service available with captioning or audio accommodation shall ensure that its movie available to those who are deaf or hard of description, or be required to add captioning theater auditoriums provide closed movie hearing, or blind or have low vision, does not and audio description when these features captioning and audio description whenever change that service. Rather, the provision of are not available. they exhibit a digital movie that is such auxiliary aids is the means by which Commenters were split in response to the distributed with such features. Application of these individuals gain access to movie Department’s question concerning the best the requirements of paragraph (g) is deferred theaters’ services and thereby achieve the approach to take with respect to analog for any movie theater auditorium that ‘‘full and equal enjoyment,’’ 42 U.S.C. movie theaters. A slight majority of exhibits analog movies exclusively, but may 12182(a), of the screening of movies. See, commenters supported deferral for movie be addressed in a future rulemaking.’’ e.g., Brief for the United States as Amicus theater auditoriums that exhibit analog The requirements of paragraph (g) do not Curiae Supporting Appellants and Urging movies exclusively. In support of Option 2, in any way prohibit a movie theater from Reversal at 15–17, Arizona ex rel. Goddard these commenters pointed to the state of the displaying a movie that has not been made v. Harkins Amusement Enters., Inc., 603 F.3d movie industry, the financial condition of available with captioning and audio 666 (9th Cir. 2010) (No. 08–16075); see also many small movie theaters, and the description features nor do the requirements NPRM, 79 FR 44976, 44982–83 (Aug. 1, unintended consequences of a 4-year require a movie theater to independently add 2014). The Department received no public compliance date. According to the such features to a movie that is not comments challenging that position. comments, there are very few remaining distributed with such features. In addition, movie theaters that display analog movies all movie theaters, regardless of size, status Section 36.303(g)(3) Minimum exclusively, and despite the industry’s urging of conversion to digital cinema, or economic Requirements for Captioning Devices that such movie theaters must convert to viability, continue to have available to them In the NPRM, the Department proposed digital to remain viable, many of these movie the individualized and fact-specific undue that movie theaters be required to have theaters have not converted because they burden limitation specified in § 36.303(a). available a minimum number of captioning cannot afford the high cost to do so. This regulation does not change the devices equal to approximately half the Therefore, these commenters argued that a availability of this compliance limitation nor number of assistive listening receivers regulation covering analog movie theaters the circumstances under which it can be already mandated for assembly areas by will have minimal overall impact in addition asserted. See 28 CFR 36.104 (defining undue sections 219 and 706 of the 2010 Standards.

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The calculation was based on a movie Studies at 8 (2012), available at http:// or operates a movie theater shall provide theater’s total seating capacity and 2010 www.census.gov/prod/2012pubs/p70-131.pdf individual captioning devices in accordance Census data estimating that 3.1 percent of the (last visited Sept. 12, 2016). Thus, the with the following Table [below]. This U.S. population ages 15 and older (7.6 proposed § 36.303(g)(2)(iii)(A) required that a requirement does not apply to movie theaters million) has difficulty hearing. See U.S. movie theater maintain captioning devices that elect to exhibit all movies at all times at Census Bureau, U.S. Department of for approximately 2–4 percent of all available Commerce, P70–131, Americans with seats and stated that: ‘‘a public that facility with open movie captioning.’’ Disabilities: 2010 Household Economic accommodation that owns, leases, leases to,

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.

The Department received more than 70 far exceed demand in those movie theaters Department set scoping requirements in comments on its proposed scoping that currently stock and advertise the accordance with the optimal number of requirements for captioning devices. All availability of such devices. To support this devices sufficient to provide accessibility to commenters disagreed with the formula in conclusion, NATO offered device usage data the disability community (based on relevant the NPRM, and with the exception of a very from five movie theater companies (which factors such as device usage, demand, and few individuals and a law school clinic, included a small business with a total screen weekend theater attendance) while commenters uniformly maintained that the (auditorium) count in the 1–75 range, three minimizing the burden on small businesses. Department’s proposed requirements regional companies with a total screen A few movie theaters maintained that any substantially overestimated the number of (auditorium) count in the 300–700 range, and minimum device requirement would be a captioning devices necessary for a variety of a national company with a 2000+ screen waste of resources and unnecessary because reasons. (auditorium) count) that stock and advertise movie theaters seek to satisfy their patrons’ Many commenters asserted that seating the availability of captioning devices on their needs, and as a result, many already capacity does not equate with the need for Web sites, at ticket counters, and on third- advertise and provide captioning devices captioning devices because movie theaters party Web sites. According to NATO, that upon request. are rarely at 100 percent seat occupancy, and data showed that even though four of these NATO and four advocacy groups not all Americans attend the movies five companies stocked far fewer captioning representing persons who are deaf or hard of simultaneously. They stressed that even at devices than the NPRM proposed, actual hearing 1 submitted a Joint Comment offering peak attendance times (weekends), average demand rarely, if ever, exceeded supply even a three-tiered approach to scoping that was seat occupancy rates are substantially less at peak attendance times. Other movie referenced and supported by many than half of capacity while small movie theaters and a trade association also commenters. First, the Joint Comment theaters in rural areas with one or two submitted tracking records to confirm the recommended that movie theaters obtain a auditoriums report even lower attendance same. minimum number of captioning devices rates. Other commenters noted that old Several commenters objected to the based on the number of screens (auditoriums) historic theaters often have large seating Department’s proposed scoping requirements displaying digital movies, in accordance with capacities, despite low attendance rates. And because they provided a fixed, nonadjustable the following: some noted that at large, multi-auditorium number that was not tied to actual consumer Single Screen: 4 devices complexes, not all auditoriums are demand and failed to account for variations Miniplex (2–7 screens): 6 devices simultaneously in use at all times. Thus, in attendance based on theater location and Multiplex (8–15 screens): 8 devices these commenters asserted that average patron demographics. These commenters Megaplex (16+ screens): 12 devices movie attendance during weekend hours, not noted that while movie theaters near areas Second, in order to address the limited the number of theater seats, most accurately with a high concentration of residents or circumstances when demand for captioning predicts anticipated demand for captioning students who are deaf or hard of hearing may devices exceeds minimum requirements, the devices. experience greatest demand for devices, a Joint Comment proposed that movie theaters Some commenters maintained that the movie theater in a small rural area may have record weekend demand for captioning Department’s proposed scoping requirements only a few requests. Many commenters also devices and adjust the number of devices significantly overestimated the need for expressed concern that because the biannually to be equal to 150 percent of the captioning devices because the percentage of Department’s proposed scoping requirements average weekend demand during a 6-month persons in the population who have would result in the vast majority of movie tracking period. For example, under this difficulty hearing does not reflect those who theaters having to purchase expensive formula, a movie theater that is initially will actually benefit from or use the devices. technology far in excess of what is needed or required to have 6 devices and calculates an In their view, captioning devices will not be would be used, those movie theaters would average actual weekend demand of 8 devices used by the vast majority of individuals who likely avoid investing in new, superior during a tracking period must increase the are deaf or hard of hearing because such technology as it becomes available. number of available devices to 12 (150 devices are only needed by persons who have Although commenters overwhelmingly percent of 8). Finally, the Joint Comment ‘‘severe’’ difficulty hearing, and assistive disagreed with the Department’s proposed recommended that the Department require listening receivers, which amplify the approach to scoping, most did not suggest a every movie theater company to submit an volume of sound, are already required and formula for determining the number of annual report of its tracking records to the available at movie theaters. These captioning devices that should be required. Department. commenters also cited statistics showing that Instead, they recommended that the number After considering all comments, census a significant percentage of Americans do not of required devices be based on one or more data, statistics regarding movie theater attend the movies at least once a year, and factors, including actual or average weekend attendance, actual usage data, and its while hearing loss disproportionately affects movie attendance, percentage of individuals seniors, they represent a smaller proportion who have severe hearing difficulty and will 1 Those advocacy groups are the National of persons who actually attend the movies. likely use the devices, demand for devices, Association of the Deaf, the Hearing Loss Commenters also stressed that in their number of movie theater seats, screen count, Association of America, the Association of Late experience, the Department’s proposed and patron demographics. For example, a Deafened Adults, and the Alexander Graham Bell scoping requirements for captioning devices Federal agency recommended that the Association for the Deaf and Hard of Hearing.

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independent research, the Department has recordkeeping practices with respect to the movie theater’s usage data to support the modified its approach to captioning device provision of assistive listening receivers or suggestion. One commenter, concerned that a scoping and has adopted a final rule that captioning and audio description devices, movie theater should be able to accommodate requires movie theaters to have on hand the and the Department lacks adequate data as to a larger group of blind or visually impaired minimum number of captioning devices the costs and the burdens of imposing such movie patrons, recommended at least eight proposed in the Joint Comment. Thus, the a requirement on all movie theaters. audio description devices per movie theater, final rule at renumbered § 36.303(g)(3)(i) Moreover, the Department has not previously or two devices per auditorium, whichever is states that ‘‘[a] public accommodation shall imposed this type of recordkeeping greater. Finally, one commenter proposed provide a minimum number of fully requirement on public accommodations, and requiring three audio description devices per operational captioning devices at its movie it declines to do so without more information auditorium to accommodate a larger user theaters in accordance with the following about the need and the costs. The pool, and to counteract a reduction in Table:’’ Department intends, however, to reach out to available devices that may arise in the event stakeholders in the future and obtain of equipment failure, or when devices are Minimum additional information about whether it being recharged. Number of movie theater required should consider engaging in supplemental The majority of commenters, however, auditoriums exhibiting digital number of rulemaking regarding a recordkeeping stated that the recommended scoping was movies captioning requirement and imposing a standard that excessive and too inflexible. These devices addresses situations when actual demand commenters reasoned that the proposed scoping failed to consider attendance 1 ...... 4 exceeds the rule’s minimum requirements. variability or demographics, and inhibited 2–7 ...... 6 In the interim, for those movie theaters that movie theaters from moving devices between 8–15 ...... 8 are located in the few places where there is 16+ ...... 12 an unusually high concentration of locations to effectively meet demographic individuals who are deaf or hard of hearing, needs. Commenters recommended basing the number of required audio description devices The Department imposes these the Department strongly encourages these on factors such as weekend attendance, requirements because its own research and public accommodations to voluntarily work annual attendance, tracked usage rates, and analysis confirms that they will easily satisfy with the local disability community to market demand. The Department received a maximum weekend demand for captioning identify and maintain an appropriate number large number of comments from movie devices at movie theaters across the nation in of captioning devices, or to utilize other theaters stating that current requests by almost every location. Thus, the Department approaches, including open movie patrons for audio description devices are believes that the final rule obligates movie captioning, to satisfy their patrons’ regular extremely low. Additionally, a trade theaters to provide the optimum number of and actual demand. captioning devices sufficient to provide association submitted comments stating that Section 36.303(g)(4) Minimum member companies reported signing out a accessibility to individuals with disabilities Requirements for Audio Description Devices who will need and use them, without maximum of 1–4 audio description devices at requiring movie theaters to purchase In order to ensure that individuals who are any time, and that these companies never equipment that may likely never be used. blind or have low vision have access to had more requests for devices than the Despite NATO’s and a number of other audio-described movies when such movies number of devices available. Based on this comments to the contrary, the Department are available, movie theaters must provide a information, the trade association has also decided not to impose specific reasonable number of audio description recommended that the Department require requirements at this time for providing devices. In the NPRM, the Department one audio description device for every two additional captioning devices when actual proposed at § 36.303(g)(3)(ii)(A) that movie auditoriums, with a minimum of two devices demand for them exceeds the rule’s theaters maintain one audio description per movie theater. minimum requirements. While the device per auditorium, with a minimum of In addition to comments criticizing the Department acknowledges that there are a two devices per movie theater. However, the proposed scoping, commenters also few movie theaters located in areas where Department noted at proposed addressed the Department’s belief that most there is an unusually high concentration of § 36.303(g)(3)(ii)(B) that ‘‘[a] movie theater movie theaters utilize multi-channel headsets individuals who are deaf or hard of hearing, may comply with this requirement by using to meet their assistive listening device comments, usage data, and independent receivers it already has available as assistive obligations. A couple of movie theaters research all indicate that only in those rare listening devices in accordance with the indicated that they have the dual-channel circumstances is there a reasonable requirements in Table 219.3 of the 2010 receivers. However, a trade association possibility that regular demand for devices Standards, if those receivers have a minimum commented that many movie theaters still may exceed the rule’s minimum of two channels available for sound rely on single-channel headsets to meet their requirements. That same information also transmission to patrons.’’ The Department assistive listening device obligations and that reflects that many movie theaters located in theorized that many movie theaters utilized the Department erred in assuming that most markets that consistently have an unusually the newer, multi-channel assistive listening movie theaters would not need to buy large number of patrons with hearing receivers, and as a result, most movie additional devices in order to comply with difficulties are already making voluntary theaters would not be required to purchase these scoping requirements. efforts to satisfy consumer demand. For additional devices in order to comply with In consideration of the comments received example, because open movie captioning is this requirement. and the Department’s independent research, popular with many movie patrons who are The Department received extensive the Department has adjusted the required deaf or hard of hearing, some movie theaters comments regarding the proposed scoping for number of audio description devices to one near schools that educate persons who are audio description devices. Although device for every two auditoriums. The deaf provide open-captioned screenings on- commenters overwhelmingly supported the Department believes that the available data demand, or in accordance with a convenient, proposed rule’s goal of ensuring access to supports its view that the revised scoping regular, and frequent schedule. In any event, audio description in movie theaters, only ensures that movie theaters will have the Department currently lacks adequate three commenters agreed with the proposed available an adequate number of devices information and data to craft an appropriate scoping. without requiring movie theaters to purchase standard to address these situations. Several commenters recommended a more equipment than is likely necessary. The In addition, the Department decided not to greater number of audio description devices final rule at renumbered § 36.303(g)(4)(i) impose a recordkeeping requirement on than the Department proposed in the NPRM reads as follows: ‘‘A public accommodation movie theaters at this time, even though to accommodate an increase in the number shall provide at its movie theaters a some commenters suggested that the of individuals who are blind or have low minimum of one fully operational audio Department do so in order to require movie vision who will likely attend the movies if description device for every two movie theaters to keep records of actual demand for accessible technologies are available. A few theater auditoriums exhibiting digital movies devices. The NPRM did not solicit commenters recommended two audio and no less than two devices per movie information about existing movie theater description devices per auditorium, citing a theater. When calculation of the required

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number of devices results in a fraction, the the devices are functional and deliver theaters, is not required by this legislation.’’ next greater whole number of devices shall complete and accurate captions and audio H.R. Rep. No. 101–485, pt. 2, at 108 (1990). be provided.’’ The Department has retained description. One commenter encouraged the The Senate Committee on Labor and Human the provision in proposed § 36.303(g)(3)(ii)(B) Department to require that movie theaters Resources included a statement in its report regarding the use of multi-channel assistive maintain the most recent technology in a on the ADA to the same effect. S. Rep. No. listening receivers to meet this requirement. range of device styles and consult with 101–116, at 64 (1989). As the House The Department notes that if movie theaters customers and consumer groups to decide Committee also recognized, however, are purchasing new receivers to replace which devices to purchase. Although the ‘‘technological advances * * * may require existing single-channel receivers, they may NPRM language focused on captioning public accommodations to provide auxiliary choose to purchase two-channel receivers devices, many of the comments urged the aids and services in the future which today and then use them to meet both their Department to ensure that both captioning would not be required because they would be requirements to provide assistive listening and audio description devices are maintained held to impose undue burdens on such receivers and audio description devices if use and readily available. entities.’’ H.R. Rep. No. 101–485, pt. 2, at of the two-channel receivers is compatible After considering all comments, the 108. with their audio description and assistive Department has decided to retain the The Department included a provision in listening systems. The Department does not, performance requirements as proposed in the the NPRM giving movie theater owners and however, intend this provision to discourage NPRM with minor structural edits and to operators the choice to use other technologies movie theaters from using induction loop make clear that the requirements for to comply with the captioning and audio systems for sound amplification while using maintenance and timely availability apply to description requirements of this rule. a different system for transmission of audio both types of devices. The Department Proposed § 36.303(g)(2)(ii) provided that description. Renumbered § 36.303(g)(4)(ii) declines to impose any additional ‘‘[m]ovie theaters may meet their obligation states that ‘‘[a] public accommodation may requirements related to ensuring the to provide captions to persons with comply with the requirements in paragraph functionality of the captioning and audio disabilities through use of a different (g)(4)(i) by using the existing assistive description devices provided by movie technology, such as open movie captioning, listening receivers that the public theaters. The rule imposes the responsibility so long as the communication provided is as accommodation is already required to on movie theaters to ensure that the effective as that provided to movie patrons provide at its movie theaters in accordance equipment is fully operational (meets all of without disabilities. Open movie captioning with Table 219.3 of the 2010 Standards, if the performance requirements in the at some or all showings of movies is never those receivers have a minimum of two regulation) and available. The Department required as a means of compliance with this channels available for sound transmission to believes that movie theaters are able to section, even if it is an undue burden for a patrons.’’ determine the best approach for ensuring theater to exhibit movies with closed movie compliance with the regulatory requirements captioning in an auditorium.’’ Section 36.303(g)(5) Performance and notes that § 36.211(b) (Maintenance of Commenters disagreed on whether this Requirements for Captioning Devices and accessible features) ‘‘does not prohibit provision struck an appropriate balance Audio Description Devices isolated or temporary interruptions in service between the cost to movie theaters, the In the NPRM, the Department proposed or access due to maintenance or repairs.’’ benefit to individuals with hearing and performance requirements for the individual The Department also declines to include vision disabilities, and the impact on the devices used by movie patrons at their specific technical specifications regarding the movie-going experience for individuals individual seats. Proposed captioning and audio description devices. without disabilities. The majority of § 36.303(g)(2)(iii)(B) stated that the The Department notes that its approach to comments on this provision concerned open individual devices needed to be adjustable; performance requirements for captioning and movie captioning. Although some be available to patrons in a timely manner; audio description devices is similar to the commenters expressed concern that an open- provide clear, sharp images; be properly approach the Department took with respect movie-captioning requirement would have an maintained; and be easily usable by the to performance standards for video remote impact on the cinematic experience of patron in order to ensure effective interpreting services. See § 36.303(f). hearing patrons, most commenters argued communication. The Department also declines to impose an that the Department should require open While the comments were generally obligation that movie theaters must upgrade movie captioning. Several open-movie- supportive of the existence of performance to the most recent technology. While the captioning requirements were proposed by requirements, there were differences of Department is in favor of technological commenters, including: Requiring open opinion expressed about the specifics of this development, such a requirement is beyond movie captioning at 100 percent of showings; provision. Some commenters supported the the scope of this regulation. Additionally, the requiring one open-captioned movie per day; Department’s language, but others expressed Department believes that many of the requiring dedicated open-captioned concern that the requirements as written concerns about current devices raised by auditoriums; or requiring open movie were vague and subjective. For example, a commenters (e.g., poor power connection or captioning if closed movie captioning is few commenters proposed that the poor signal) are adequately addressed by the unavailable for any reason. One commenter Department define specific quantifiable and requirements in paragraphs (g)(3) through who supported an open-movie-captioning technical standards, and several commenters (5)—that devices be fully operational and requirement asserted that 95 percent of the suggested that the Department develop a maintained. deaf and hard of hearing community prefers program to encourage the development of Renumbered § 36.303(g)(5) of the final rule open movie captioning to the use of better accessibility technology due to their retains the performance requirements captioning devices. concerns associated with the design and proposed in the NPRM, but it has been The commenters proposing an open-movie- quality of current technology. restructured for clarity. captioning requirement ultimately disagreed The Department also received conflicting with the Department’s interpretation of the comments with respect to adding Section 36.303(g)(6) Alternative legislative history as indicating congressional requirements beyond those proposed in the Technologies intent that the ADA did not require the NPRM. Several commenters suggested that Although commenters on the 2010 provision of open movie captions at movie the Department require captioning devices to Advance Notice of Proposed Rulemaking, 75 theaters. One commenter reasoned that have an adjustable font size while many FR 43467 (July 26, 2010) (ANPRM), because modern open movie captioning is disagreed, stating that an adjustable font size encouraged the Department to require open significantly different from the open movie requirement would be problematic. Other movie captioning at movie theaters, the captioning available in 1990, the legislative commenters believed that the Department Department declined to make such a history on this point represents a latent should require that all devices be clean, in proposal in the NPRM, noting that in the ambiguity. Therefore, in this commenter’s addition to being available and functional. debate leading up to passage of the ADA, the view, the Department is not bound by the Commenters also suggested requiring quality House Committee on Education and Labor legislative history concerning open movie assurance procedures, frequent testing, and explicitly stated that ‘‘[o]pen-captioning, for captioning and is free to require it. Other regular maintenance schedules to ensure that example, of feature films playing in movie commenters, however, agreed with the

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Department’s statement in the NPRM and without disabilities remains unchanged as groups and a few private citizens supported argued that because the legislative history that is the standard for effective the proposed 6-month compliance date. states that open movie captioning is not communication required by § 36.303(c). See These commenters asserted that because required as a means of compliance with the 28 CFR part 36, app. C (explaining that most movie theaters had already committed ADA, the rule should not mandate any public accommodations must provide to providing captioning and audio conditions concerning open-captioned appropriate auxiliary aids and services ‘‘to description to their patrons by the end of showings. ensure that communication with persons 2014, the 6-month compliance date was, in In response to the Department’s questions with disabilities is as effective as their view, reasonable. concerning the parameters of the option to communication with others’’). The vast majority of commenters, however, provide open movie captioning rather than The Department maintains its view that asserted that 6 months was not enough time closed movie captioning, several commenters Congress did not intend the ADA to require for the remaining movie theaters to comply suggested that the Department define what movie theaters to provide open movie with the requirements of this rule. These constitutes a ‘‘timely request’’ when a movie captioning. Although the technology to comments raised concerns about patron requests open movie captioning. provide open movie captioning has changed manufacturers’ ability to sustain the sudden, These commenters provided a variety of and enables movie theaters to provide the increased demand that the scoping suggestions, which ranged from the specific service more easily, open movie captioning requirements would likely create for (e.g., 1 hour or 1 day before the showing) to as it exists today remains visible to all movie captioning and audio description devices. the ambiguous (e.g., it should be reasonably patrons and has not changed in this respect. Industry commenters stated that movie easy). As a result, the Department’s position theaters already experience considerable Other comments also addressed whether remains consistent with the legislative delays between order date and delivery date the Department adequately addressed new history on this point, and the final rule and that, with increased demand and a technology. One commenter agreed that the retains the language (with some minor edits) limited supply, the prices of these devices ‘‘different technology’’ language in proposed § 36.303(g)(2)(ii), which would likely increase, especially for lower encompassed any future technology, but provided that ‘‘[o]pen movie captioning at volume purchasers. Industry commenters further suggested that the effectiveness of some or all showings of movies is never further advised the Department that a trained new technologies should be judged from the required as a means of compliance with this technician must install the captioning and baseline of ‘‘as effective as captioning and/or section, even if it is an undue burden for a audio description equipment and that their audio description devices.’’ Other theater to exhibit movies with closed movie experience indicates that there is a waiting commenters disagreed and criticized the rule captioning in an auditorium.’’ In the final period for such services. Commenters also for not addressing other currently available rule, however, the Department has moved expressed concern that the compliance date technologies, such as hearing loop systems, this language to new § 36.303(g)(10). proposed in the NPRM was drastically InvisivisionTM glasses, or smart phone The revised provision addressing other different from the phased compliance date applications. technologies, renumbered in the final rule as proposed in the ANPRM and that the After considering all of the comments, the § 36.303(g)(6), enables a public Department’s rationale for the change was Department has decided to retain the option accommodation to meet its obligation to insufficient. to comply with the captioning and audio provide captioning and audio description Finally, some commenters expressed description requirements of this rule through through alternative technologies that provide concern that small movie theaters in the use of any other technology that is or effective communication for movie patrons particular would have difficulty complying becomes available to provide effective with hearing and vision disabilities. Section with the requirements of the rule within the communication to patrons with hearing and 36.303(g)(6) further provides that a public proposed 6-month compliance date. vision disabilities, including open movie accommodation may use open movie Commenters advised that small movie captioning. The Department has clarified, captioning as an alternative to complying theaters would need additional time to raise however, that in those circumstances where with the captioning device scoping the necessary funds or adjust their budgets in a public accommodation chooses to use open requirements of this rule by providing open order to purchase the equipment. movie captioning at all showings of all movie captioning at all showings, or Based on these concerns, commenters movies available with captioning or at all whenever requested by or for an individual offered a variety of alternative compliance times it receives a request to turn on open who is deaf or hard of hearing. dates. The Joint Comment suggested that the movie captions prior to the start of the movie, Department require movie theaters to issue it is not also required to comply with the Section 36.303(g)(7) Compliance Date for purchase orders for the equipment within 6 specific requirement to obtain captioning Providing Captioning and Audio Description months of the final rule’s publication, but devices. However, if a public accommodation In the NPRM, the Department proposed at require fully functional and operational only makes open movie captioning available § 36.303(g)(4)(i) that all movie theaters with devices and trained staff either within 2 years to patrons who are deaf or hard of hearing auditoriums displaying digital movies must of the final rule’s publication or 6 months of at some showings of movies available with comply with the requirements of the rule system delivery, whichever came first. Other captioning, it will still have to comply with within 6 months of the publication date of commenters suggested compliance dates the requirements to provide captioning the final rule. The Department also proposed ranging from 1 year to 4 years. One major devices because it must provide effective to give movie theaters that converted their movie theater chain in particular communication at all showings of all movies auditoriums with analog projection systems recommended an 18-month compliance date, available with captioning. to digital projection systems after the stating that this is the amount of time that it The Department has made other changes to publication date of the rule an additional 6 currently takes to order and install the the structure and language of this provision months from the date of conversion to necessary equipment. Some commenters in response to comments and to better comply with the rule’s requirements. suggested a sliding compliance schedule preserve the intent and longevity of this Although the Department expressed the based on a movie theater’s gross revenue or paragraph. The final rule now reads ‘‘through belief that 6 months was sufficient time for a movie theater’s size, and others suggested any technology,’’ instead of ‘‘through use of movie theaters to order and install the a phased compliance date similar to the different technology.’’ Although the necessary equipment, train employees on schedule articulated in the ANPRM. Department declines to endorse specific how to use the equipment and assist patrons In consideration of these comments and technologies, the Department believes that in using it, and notify patrons of the the Department’s independent research, the the revised language better articulates the availability of these services, the Department Department agrees that 6 months may be an purpose of this paragraph to encompass requested public comment on the insufficient amount of time for movie current and future technologies that may reasonableness of a 6-month compliance theaters to comply with the requirements of serve individuals with hearing and vision date. paragraph (g) of this section, and the disabilities. The requirement that public The Department received many comments Department instead will require compliance accommodations provide auxiliary aids and both against and in favor of the proposed 6- beginning 18 months from the date of services to ensure communication as month compliance date. A minority of publication of the final rule. The Department effective as that provided to movie patrons comments from a few disability advocacy believes that an 18-month compliance period

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sufficiently accounts for potential delays that low vision, should be able to find this Therefore, the Department has decided to may result from manufacturer backlogs, information easily. Several other require movie theaters to provide notice on installation waitlists, and other commenters, however, asked the Department communications and advertisements circumstances outside a movie theater’s to limit the notice requirement to the box provided at or on any of the following: The control. This date also gives small movie office, ticketing locations, and the movie box office and other ticketing locations, Web theaters that are financially impacted as a theater’s Web site. Although such sites, mobile apps, newspapers, and the result of the unrelated costs of digital commenters raised concerns about the high telephone. conversion a sufficient amount of time to cost associated with a requirement that The Department declines to require a plan and budget accordingly. The covers all communications and specific form of notice to describe the Department declines to include a advertisements, they offered no other availability of captioning or audio requirement that movie theaters issue rationale for why they were proposing a description. The Department notes that purchase orders for the equipment within 6 limited requirement. movie theaters already appear to be using a months of the final rule’s publication because In addition to the scope of the requirement, relatively uniform method of advising the such a requirement is unenforceable without commenters also addressed the form of the public about the availability of captioning imposing recordkeeping and reporting notice required. One commenter requested and audio description. A review of Web sites requirements. that the Department require a uniform notice and newspaper advertising indicates that The final rule continues to provide by all movie theaters, and another movie theaters routinely use ‘‘CC’’ and ‘‘OC’’ additional time for movie theaters converting commenter suggested that the Department to indicate the availability of closed and open their auditoriums from analog projection require movie theaters to include within the movie captioning and ‘‘AD’’ or ‘‘DV’’ to systems to digital projection systems after the notice the universal symbols for captioning indicate the availability of audio description. publication date of the final rule. Once the and audio description as well as the type of As the Department specifically noted in the installation of a digital projection system is device available. NPRM and makes clear in the final rule, the complete, meaning that the auditorium has Other commenters pointed to industry rule does not impose obligations on installed the equipment needed to exhibit a realities in order to highlight their concerns independent third parties that publish digital movie, the movie theater has at least with the proposed provision. Some information about movies, and these third an additional 6 months to ensure compliance commenters expressed concern that movie parties will not face liability under the ADA with the requirements of the rule and provide theaters would be liable for a third party’s if they fail to include information about the closed movie captioning and audio failure to include information about availability of captioning and audio description when showing digital movies in captioning and audio description availability description at movie theaters. that auditorium. Renumbered in their communications although movie Renumbered § 36.303(g)(8) of the final rule § 36.303(g)(7)(ii) states that ‘‘[i]f a public theaters lack control over these requires that whenever a public accommodation converts a movie theater communications. Commenters also advised accommodation provides captioning and auditorium from an analog projection system the Department that there may be audio description in a movie theater to a system that allows it to exhibit digital circumstances where compliance with the auditorium exhibiting digital movies on or movies after December 2, 2016, then that notice requirement would be difficult for after January 17, 2017, its notices of movie auditorium must comply with the some types of media. These commenters showings and times, provided at the box requirements in paragraph (g) of this section contend, for example, that movie theaters office and other ticketing locations, on Web by December 2, 2018, or within 6 months of often book a film without knowing whether sites and mobile apps, in newspapers, and that auditorium’s complete installation of a it is captioned or audio-described and that over the telephone, must inform potential digital projection system, whichever is later.’’ print deadlines may materialize before that patrons of the movies that are being shown The Department believes that this approach information is available. with captioning and audio description. The will provide movie theaters in the process of After considering these comments and the final rule further provides that this obligation converting to digital projection after the information available to the Department, the does not extend to third parties that provide publication date of the rule a sufficient Department has revised its proposed notice information about movie theater showings amount of time to acquire the necessary language. The Department agrees that notice and times, as long as the third party is not equipment to provide captioning and audio may not be necessary on all forms of under the control of the public description. communications and advertisements but accommodation. disagrees that the notice obligation should be This provision applies to movie theaters Section 36.303(g)(8) Notice limited only to the box office, ticketing once they provide captioning and audio The Department believes that it is essential locations, and the movie theater’s Web site. description for digital movies on or after the that movie theaters provide adequate notice For example, telephone recordings serve an effective date of the rule, January 17, 2017. to patrons of the availability of captioned and especially important medium of Thus, movie theaters that already show audio-described movies. In the NPRM, the communication for individuals who are blind digital movies with closed movie captions Department proposed at § 36.303(g)(5) that or have low vision and who may not utilize and audio description must comply with this movie theaters provide information regarding Web-based or print media to access provision as soon as the rule takes effect. the availability of captioning and audio information concerning movie showings. Section 36.303(g)(9) Operational description for each movie in Similarly, newspapers serve an especially Requirements communications and advertisements important medium of communication for In response to the ANPRM, the Department intended to inform potential patrons of individuals who may not use Web-based received a significant number of comments movie showings and times and provided by media generally. Moreover, according to the from individuals with disabilities and groups the theaters through Web sites, posters, Department’s research, movie theaters utilize representing persons who are deaf or hard of marquees, newspapers, telephone, and other proprietary mobile phone applications to hearing and who are blind or have low vision forms of communication. inform potential patrons of movie showings strongly encouraging the Department to Commenters on the NPRM unanimously and times, and some already advertise the include a requirement that movie theater staff supported the inclusion of some form of a availability of captioning and audio know how to operate captioning and audio notice requirement in the final rule but description devices on these applications.2 description equipment and be able to differed on the scope of that requirement. communicate with patrons about the use of Some commenters supported requiring notice 2 The Department’s research indicates that the individual devices. Having considered those in all places where a captioned or audio- following movie theater companies operate mobile described movie is advertised, and another phone applications and advertise the availability of commenter asked the Department to include captioning and audio description on these id509199715?ls=1&mt=8 (last visited Sept. 12, as many forms of communication as possible platforms: Regal Entertainment Group, AMC 2016); Regal Cinemas, Inc., Regal—Movie Tickets Theatres, Cineplex Entertainment, and Harkins and Showtimes for Regal Cinemas, United Artists in the language of the final rule, including Theatres. See, e.g., American Multi-Cinema, Inc., and Edwards Theatres (Version 3.4.2, 2016) (mobile mobile phone applications. These AMC Theatres (Version 5.2.2, 2016) (mobile application software), available at https:// commenters reasoned that individuals who application software), available at https:// itunes.apple.com/us/app/regal-cinemas/ are deaf or hard of hearing, or blind or have itunes.apple.com/us/app/amc-theatres/ id502912815?mt=8 (last visited Sept. 12, 2016).

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comments, the Department included in the who are deaf or hard of hearing and blind or communicating effectively with patrons NPRM proposed § 36.303(g)(6), which have low vision regarding the uses of, and about the availability of captioning at a required movie theaters to ensure that at least potential problems with, the equipment for movie theater would not require a movie one individual was on location at each such captioning or audio description.’’ One theater to hire a sign language interpreter. facility and available to assist patrons commenter asserted that an ‘‘effective Communication with a person who is deaf or whenever showing a captioned or audio- communication’’ requirement in the hard of hearing about the availability of these described movie. The proposed § 36.303(g)(6) proposed paragraph (g)(6)(iii) was services or how to use the equipment further required that such individual be able superfluous given the overarching involves a short and relatively simple to operate and locate all of the necessary requirements in § 36.303(c). Other exchange and therefore can easily be equipment and be able to communicate commenters supported the proposed provided through signage, instructional effectively with individuals with hearing and language, stating that movie theater staff, guides, or written notes. vision disabilities about the uses of, and including managers, often are not Final § 36.303(g)(9) requires that whenever potential problems with, the equipment. knowledgeable on how to properly a public accommodation provides captioning All of the comments on the NPRM that communicate with individuals who are deaf, and audio description in a movie theater addressed this proposed language hard of hearing, blind, or have low vision. A auditorium exhibiting digital movies on or acknowledged that staff training regarding State government also pointed out that in the operation of equipment is vital to the Camarillo v. Carrols Corp., 518 F.3d 153, 157 after January 17, 2017, at least one theater proper functioning of the rule. A number of (2d Cir. 2008) (per curiam), the Second employee must be available to assist patrons commenters stated that on numerous Circuit held that a public accommodation’s seeking or using the captioning or audio occasions when they attempted to go to a failure to provide employee training on description equipment. The employee must movie advertised as having captioning or effective communication with individuals be able to quickly locate and activate the audio description, there was no staff with disabilities can constitute a violation of necessary equipment; operate and address available who knew where the captioning title III, specifically 42 U.S.C. problems with the equipment prior to and devices were kept or how to turn on the 12182(b)(2)(A)(iii). during the movie; turn on the open movie captioning or audio description for the The final rule retains the operational captions if the movie theater is relying on movie. Many of these commenters indicated requirements proposed in the NPRM in open movie captions to meet its effective that they were unable to experience the renumbered § 36.303(g)(9) and adds the communication requirements; and movie fully because of the lack of trained requirement that if a movie theater is relying communicate effectively with individuals personnel, even if the auditorium was on open movie captioning to meet the with disabilities about how to use, operate, properly equipped and the movie was requirements of paragraph (g)(3), it must also and resolve problems with the equipment. actually available with captioning or audio ensure that there is an employee available at This provision applies to movie theaters description. the theater who knows how to turn on the once they provide captioning and audio A handful of commenters requested that captions. The Department declines to add a description for digital movies on or after the the Department expand its proposed specific requirement that all personnel be effective date of the rule, January 17, 2017. operational requirement, emphasizing trained, as it believes that it is sufficient if Thus, movie theaters that already show concerns about movie theater staff’s current a movie theater has at least one digital movies with closed movie captions knowledge concerning the operation of knowledgeable employee on location at all and audio description must comply with this available equipment. One commenter times to ensure that the service is available provision as soon as the rule takes effect. encouraged the Department to specifically and provided without interruption. While the require all movie theater personnel to be Department agrees that it would be a good Section 36.303(g)(10) properly and uniformly trained in providing idea for movie theaters to implement Section 36.303(g)(10) in the final rule such services, and other commenters reasonable staff training programs and provides that ‘‘[t]his section does not require suggested that all movie theater personnel be periodic refresher courses, the Department the use of open movie captioning as a means trained as to the availability of these services. declines to take these recommendations and of compliance with paragraph (g), even if Other comments encouraged the Department has not included in the final rule specific providing closed movie captioning for digital to enumerate specific requirements to ensure logistical requirements concerning movie movies would be an undue burden.’’ The that movie theater staff is capable of theater staff training. NPRM proposed similar language at operating the captioning and audio The Department has decided to retain in § 36.303(g)(2)(ii). See discussion of comments description equipment, including a the final rule the language in proposed on final § 36.303(g)(6), supra. requirement that management document § 36.303(g)(6)(iii) requiring movie theater employee training and a requirement that staff to effectively communicate with Dated: November 21, 2016. employees receive periodic refresher courses. individuals who are deaf or hard of hearing, Loretta E. Lynch, A few commenters questioned the need for or blind or have low vision, regarding the Attorney General. the proposed language in § 36.303(g)(6)(iii), uses of, and potential problems with, the which required movie theaters to captioning and audio description devices. [FR Doc. 2016–28644 Filed 12–1–16; 8:45 am] ‘‘[c]ommunicate effectively with individuals The Department notes, however, that BILLING CODE 4410–13–P

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