A long awaited Notice of Proposed Rule Making (NPRM) from the US Department of Justice (DOJ) for accessibility in cinemas was released late July that potentially impacts much of the US exhibition industry. This reports covers highlights of the NPRM, it reviews NATO’s actions, and offers suggestions for how such a rule could be improved.
The NPRM is a statement of proposed rules that would adjunct the Americans for Disabilities Act of 1990. It would require, with certain exceptions, 100% of cinemas to provide audiences with closed captions and audio description (VI-N audio in the jargon of standards). The aggressive timeline proposed for compliance is six months from the issue of the rule. The rule could be issued as early as this year.
Serious discussions about such a rule began in 2008, and substantial advances in technology have taken place since. All manufacturers today voluntarily incorporate in their products a standardized protocol that will drive third-party closed caption devices. In addition, at least one manufacturer, Doremi, builds lower cost closed caption capability directly into its products, which can be turned on for a small fee. Devices that support audio description in cinemas have been in service since the 90’s. With the introduction of closed captions, combination devices that also support audio description are now available.
The US National Association of Theater Owners (NATO) has continually taken strong positions in the conversation on rule making. More often than not, though, its positions have placed it on the losing side of the argument. In 2008 and again in 2010, the DOJ proposed that 50% of auditoriums be capable of supporting closed captions. NATO’s response in 2010 was that this number was too high, and that 25% was a better number. In the NPRM now issued, the DOJ’s response is to increase the number of required screens to 100%, indicating that NATO has lost substantial leverage in this discussion. NATO has since requested that the period for information gathering in response to the NPRM be extended from end of September to end of November this year. It will be telltale if the DOJ ignores NATO’s request.
Had NATO taken the high road in its 2010 response and said that 50% was a good idea, it may have retained some leverage and its members might be in better shape today. A public commitment would have put its members on the winning side of the argument, and could have mitigated public comments such as the one below, taken from the DOJ’s website in response to the new NPRM:
“this is an option that should already be available to the disabled community. why do we always have to fight and beg for what is right?”
(Public Submission ID: DOJ-CRT-2014-0004-0029)
The irony is that NATO’s members, collectively, have exceeded the original proposal for closed caption provision in 50% of screens. NATO was quick to point this out in its initial response posted this month. There is a significant difference in definition, though, between the DOJ and NATO. The DOJ refers to percentage of screens in a complex, and NATO refers to percentage of screens across the US. However, the DOJ’s new proposal of 100% and NATO’s loss of leverage makes such discussions moot.
NATO took other steps that could have led to its reduced position of importance to the DOJ. Rather than encourage members to promote closed caption capability, NATO took the opposite course, and encouraged members who had rapidly installed closed captions to not promote it. NATO’s concern was that such promotions would unfavorably highlight the not-so-rapid actions of certain other members. Such extreme conservatism merely tossed away a valuable opportunity for its fast-acting members to build capital within the deaf and hard-of-hearing communities. NATO also reduced any visible support for closed captions on its website. In its 2010 response to the DOJ, NATO referred to its Digital Cinema System Requirements document, last revised in 2008, which requires that digital cinema systems play closed caption tracks when included in the distribution, and support third party closed caption systems. That document, however, has since disappeared from NATO’s website. Notably, the primary website that the DOJ refers to in its NPRM for technical facts on closed captions is the MKPE.com website, underscoring another opportunity lost by NATO. (Full disclosure: I consulted with NATO from 2000-2011. I provided support for NATO’s 2008 discussions with the DOJ on accessibility, contributed to NATO’s 2010 response to the DOJ’s ANPRM, and led the development and authoring of NATO’s Digital Cinema System Requirements. The DOJ also engaged in dialog with me prior to the release of the NPRM.)
In general, US exhibitors should be in pretty good shape to meet the intent of the NPRM, but there are actions to take. While NATO reports that over 50% of screens now offer full electronic accessibility services, the actual number of screens that could readily update their systems should number over 90%. There is no upside to arguing for less than 100% of screens: such arguments will only further dilute NATO’s bargaining power, when more pertinent issues should be addressed. Of real concern is whether manufacturers can respond to orders, and whether installations can be completed, within a six-month period. It is also worth pushing back on the DOJ’s formula for the number of closed caption viewers required per complex. A single formula will likely lead to overstocking requirements in markets that won’t benefit from it. A more favorable position for exhibitors would be to require closed caption transmitters for each auditorium, and allow the exhibitor to purchase viewing devices in response to market demand. In exchange for wasted investments in capital equipment, investments in the promotion of accessibility services to the public would help build beneficial community capital, from which demand for closed caption viewers can be fairly gauged by exhibitors.
Before closing, it should be noted that some Hollywood studio executives expressed surprise that the DOJ did not target their companies to produce accessible content for every movie, i.e. closed captions and descriptive audio. This outcome is because ADA law only applies to places of public accommodation, a category that includes cinemas, but not studios. Studios are unlikely to ever be targeted under ADA, as there reportedly exists substantial case law where the supplier of content and materials to the place of public accommodation are determined to have no responsibilities under ADA.