Chains’ Motion For Summary Judgment
Denied
Film Captioning: A
Troublesome Issue
by Steven John Fellman
NATO Washington Counsel
When the Americans With Disabilities Act
(ADA) was enacted by Congress in the early 1990s, Congress
issued a report
on the legislation specifically stating that open captioning
(subtitles) was not required for motion pictures. In the
regulations issued by the Department of Justice regarding
the ADA, it was specified that open captioning is not required
for motion pictures. In the legislative history of the
ADA there was a recognition that if new technology provides
innovations that enable public facilities to increase accessibility,
those innovations have to be considered within certain
limits. Public facilities are not required to alter the
product or service that they make available to the public.
Public facilities are not required to buy new technologies
at a cost that creates an undue financial burden.
There is a segment of the hearing-impaired
community characterized by persons who have no hearing,
or such profound hearing
loss that assistive listening devices cannot help them.
These individuals have been very vocal in expressing their
desires to have motion picture theatres show more captioned
films. They have indicated that they are not only interested
in open captioning but also in closed captioning. In the
closed captioning system that has been most publicized
to date, there is no visible captioning on the film print.
The theatre must purchase a system for projecting captioning
onto a display screen on the rear wall of the auditorium.
The captioning is reflected off the display screen and
picked up on a small transparent screen that a theatre
patron can place in his or her seat cup holder. By looking
at this screen, the hearing impaired patron is able to
read the captioning and, at the same time, patrons who
have no disability are not bothered by captioning on the
screen.
Most members of the deaf community prefer
open captioning. Others prefer closed captioning. According
to the federal
agency that prepares the Accessibility Guidelines under
the ADA, the majority of deaf patrons have indicated a
preference for open captioning. Many in the motion picture
creative community would prefer closed captioning. Several
distributors have made public statements indicating their
support for closed captioning systems. The number of films
available in a closed caption format is increasing.
Open captioning requires that subtitles
be burnt onto a print. This process is more costly for
distributors than
closed captioning, which involves the creation of a DVD
which then can be duplicated at almost no additional cost.
Open captioned films can be shown in any theatre on existing
equipment. Installation of a closed captioning system costs
between $12,000 – $20,000 per screen. Obviously,
this option is much more expensive for exhibitors.
A disability rights group filed a case in
Oregon claiming that motion picture theatres are required
to show captioned
films under the ADA. A magistrate judge ruled that the
theatres did not have to show captioned films and, further,
that the cost of captioning equipment was an undue financial
burden under the ADA. The magistrate’s opinion was
reviewed by a federal district judge and that judge ruled
that – since he agreed with the magistrate’s
conclusion that if captioning was required it would be
an undue financial burden – he did not have to address
the issue of whether or not captioning was required.
In a recent decision on a motion for summary
judgment (Ball v. AMC), U.S. District Court judge Gladys
Kessler denied
two theatre chains’ motions for summary judgment
on the issue of whether captioning was required under the
ADA. Judge Kessler was unwilling to rule as a matter of
law that the ADA does not require closed captioning. She
took the position that a limited amount of closed captioning
systems could well be required under the statute and this
case will now proceed to trial. In her opinion, the judge
noted that the ADA encouraged new technologies and closed
captioning of movies was in fact, new technology. She cited
the position of various distributors supporting closed
captioning and the fact that the number of films available
in a closed-captioned format were increasing, in support
of her opinion.
In its proposed revised ADAAG regulations,
the Access Board clearly states that captioning of motion
pictures is not
required by the ADA. Judge Kessler
rejected this conclusion in denying the motion for summary judgment. She reasoned
that deaf people should be able to enjoy movies. Distributors are promoting
closed captioning. Theatres may have to buy a limited number of closed captioning
systems.
The case will now go to trial, where this
issue will again be considered after all witnesses have
been heard.
Although NATO agrees with the Access Board
that the ADA does not currently require captioning of motion
pictures, this court’s decision points out
the necessity for all operators of public accommodations, including theatre
owners, to keep up-to-date with new technologies affecting accessibility. A
copy of Judge Kessler’s opinion is available from the NATO offices. 
