Are You Compliant? ADA publishes new rules requiring closed captioning and audio description

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The U.S. Department of Justice (DOJ) recently published its Final Rule under Title III of the Americans with Disabilities Act (ADA) requiring movie theatres to provide closed captioning and audio description for digital movies. The new regulations became effective on Jan. 17, 2017.

The Rule generally requires movie theatres to (1) maintain the equipment necessary to provide closed movie captioning and audio description at a patron’s seat when showing digital movies; (2) provide notice to the public about the availability of these technologies and (3) have staff on-site to provide the equipment and troubleshoot.

The DOJ has projected that compliance with the regulations will cost the movie theatre industry between $88.5 and $113.4 million over the next 15 years. Costs include acquisition of captioning hardware, audio-description hardware, and audio-description devices, as well as installation, replacement, training, maintenance and administrative costs.

Here are some key takeaways from the Rule:

1. Theatres That Screen Digital Movies

The Rule applies to movie theatres and other facilities, except drive-in theatres, that are used primarily for showing movies to the public for a fee. It requires movie theatres that show digital movies (i.e., images and sound captured on disk) to provide closed movie captioning and audio description at all scheduled viewings, when such movies are produced with those features, unless doing so would create an undue burden or a fundamental alteration. Nearly all indoor theatres display digital movies.

The Rule, however, does not apply to a movie theatre that shows only analog movies (i.e., 35mm). It also does not prevent a movie theatre from showing the analog version of a movie that is available in digital format, nor does it prohibit a theatre from exhibiting a digital movie that is not made available with closed movie captioning or audio description.

2. Minimum Requirements for Captioning and Audio Description Devices

Closed-captioning devices display written text of a movie’s dialogue and sounds. Audio description provides a spoken narration of a movie’s key visual elements and involves a separate script that is synchronized with a movie as it is shown.

The Rule sets forth the minimum number of closed-captioning and audio-description devices based on the number of screens showing digital movies. For example, a theatre with one screen must have at least four captioning devices, while a megaplex with 16+ screens must have at least 12. Each theatre must have at least two audio-description devices and provide more depending on the number of additional screens. Notably, open-captioning and assistive-listening receivers can provide alternative means of compliance.

Although there are no specific requirements at this time, theatres may want to consider providing additional devices if warranted by actual demand, given the ADA’s general requirement to provide effective communication.

3. Closed Captioning and Audio Description at Individual Seats

Movie theatres must install the necessary equipment that allows patrons to view the closed movie captions and hear the audio description at their individual seats. This includes the hardware equipment that delivers the closed movie captions or the audio description and the individual devices that receive them (e.g., handheld screens or glasses for closed captions and wireless headsets for audio description).

The Rule also requires, among other items, that captions be presented in clear, sharp images, and that closed-captioning devices be adjustable so that the captions are displayed as if they are on or near the screen.

4. Staff Training

Movie theatres must have at least one staff member who can locate, operate and troubleshoot captioning and audio-description equipment on-site at all times. That person must also be able to communicate effectively with patrons requiring the use of such devices.

5. Compliance Deadlines

Movie theatres showing digital movies with closed movie captioning and audio description on or after the effective date of Jan. 17, 2017, must notify the public about the availability of these features and have staff available to assist patrons with the equipment.

Movie theatres exhibiting digital movies on Dec. 2, 2016 must maintain the equipment necessary to provide closed movie captioning and audio description at a movie patron’s seat by June 2, 2018. A theatre that converts from an analog to a digital projection system after Dec. 2, 2016, must provide such equipment by the later of Dec. 2, 2018, or within six months of the conversion.

The Final Rule, while enhancing accessibility for movie patrons, presents pitfalls for the unwary. Non-compliance may invite class actions and government enforcement actions. As such, movie theatres should properly budget and prepare to meet the new regulations. Attention to ancillary issues is also important. For example, a theatre should consider the accessibility of its website and mobile applications when used to advise the public of its closed-captioning and audio-description features (among others). Proper staff training also goes a long way.

Carol C. Lumpkin and Stephanie N. Moot are partners at the Miami office of K&L Gates LLP.