Senate Hearing on Making Movies and Inflight Entertainment Accessible

By Renee Dopplick, ACM Director of Public Policy
May 24, 2013

The Senate Health, Education, Labor and Pensions Committee held a legislative hearing last week on two bills that would address accessible entertainment in movie theaters and on airplanes. Witnesses included representatives from the FCC, the U.S. Department of Justice, the American Council for the Blind, the National Association for the Deaf, The Benetech Initiative, and the National Association of Theatre Owners. There were no witnesses from the airline industry or providers of inflight entertainment.

None of the witnesses disputed the need for improved accessible digital entertainment technologies, but they provided differing perspectives on whether the federal government should mandate new legal requirements, national standards, and implementation deadlines or defer to industry efforts.

Committee Chairman Tom Harkin (D-IA), who was the original sponsor of the Americans with Disabilities Act (ADA), introduced the two bills in March 2013. The bills would amend Title III of the ADA to require movie theaters and airlines to provide open captioning (visible to everyone), closed captioning (displayed and controlled on an individual basis), and video descriptions (narrative during pauses to describe the onscreen action for blind and visually impaired users).

The Captioning and Image Narration to Enhance Movie Accessibility (CINEMA) Act, S. 555, would require open captioning, closed captioning, and video descriptions at movie theaters with two or more screens.

The Air Carrier Access Amendments Act, S. 556, would require open captioning, closed captioning, and video descriptions for inflight entertainment programming on airplanes. The bill would authorize the Architectural and Transportation Barriers Compliance Board, known as the U.S. Access Board, to establish standards for touchscreen devices.

The witnesses generally agreed that the transition to digital formats and the voluntary adoption of an industry standard has made it easier and far less costly for movie providers and theaters to provide captioning and video descriptions. Further, recent advances in digital and mobile technologies, such as those leveraging Wi-Fi and infrared, have allowed movie theaters to increase their capacity to provide these services. The President and CEO of the National Association of Theatre Owners, John Fithian, said, “America’s cinema owners are installing captioning and description systems literally as fast as the manufacturers can produce them.” According to a May 2013 survey by the Association, 53% of movie theaters now have captioning and description systems. Fithian said the majority of those systems rely on technology that has only been available in the marketplace during the last year.

Not a topic of the hearing, major movie theater chains have been adding captioning services as the result of litigation under Title III of the ADA or the threat of litigation. For example, in 2010, the U.S. Court of Appeals for the Ninth Circuit held that the ADA requires movies theaters to provide closed captioning and descriptions, classified as “auxiliary aids and services” under Title III, unless these services would create a fundamental alteration or impose an undue burden. The Court also held that open captioning is not required as a matter of law, citing the DOJ’s commentary in the preamble to the federal regulations last revised in 1991. DOJ’s commentary states “[m]ovie theaters are not required by [28 C.F.R. ] § 36.303 to present open-captioned films.” The Court disagreed with the DOJ’s argument that new technologies superseded the commentary. Three months after the decision, the DOJ announced it was considering revising the regulations and sought public comment.

“If this court were to accept [the DOJ’s interpretation], the DOJ’s detailed interpretive guidance could be circumvented whenever a new technology for providing open captioning becomes available. Entities such as Harkins should be able to rely on the plain import of the DOJ’s commentary until it is revised. Because the commentary to Title 28, part 36.303 states that open captions are not required by § 36.303, we conclude that open captioning is not mandated by the ADA as a matter of law.”
Arizona v. Harkins Amusement Enterprises, 603 F.3d 666 (9th Cir. 2010)

The Harkins case was significant because it was the first case by a Circuit Court of Appeals on whether movie theaters are required to provide captioning and video descriptions under the ADA. Since then, additional lawsuits in federal and state courts have further spurred industry to act either in response to a court order or in fear of one. AMC, Cinemark, Landmark, and Regal are among the major movie theater companies to announce a commitment to provide captioning at their movie theaters.

Eve Hill, the Senior Counselor to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice, told the Committee that the DOJ solicited public comments in July 2010 on potential revisions to the implementing regulations for closed captioning and video descriptions by movie theaters under Title III of the ADA. She said the DOJ currently is reviewing the 1,100+ public comments in preparation for the next stage of rulemaking.

Hill commended the movie theaters for their apparent commitment to making movies accessible. However, she expressed concern that not every theater has announced plans to provide captioning and many theaters limit captioned showings to certain days or times.

An open question is whether movie theaters should be allowed to choose between offering open captioning, closed captioning, or both. Senator Harkin’s proposed CINEMA Act would mandate “providing, or making available,” both open and closed captioning. In the Advanced Notice of Proposed Rulemaking in 2010, the DOJ summarized feedback received in 2008 from the State Attorneys General, which supported allowing movie theaters to choose which type of captioning to provide and which type of technology to use to allow for flexibility, more choices, and advances in technologies.

The hearing details, archived video, and written testimonies from “The ADA and Entertainment Technologies: Improving Accessibility from the Movie Screen to Your Mobile Device” are available at:
Senate Health, Education, Labor and Pensions Committee