Hearing Loss Law : Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

Internet videos are becoming a more important source of information, supplementing and sometimes completely replacing written communication. But too often, the makers of those videos forget about those of us who "hear" with our eyes as well as our ears. Especially with the fairly low-fi computer sound systems, non-captioned videos are often inaccessible to us.

Thanks to the persistence of one of our Wash-CAP members, the Spokane Regional Health District has now captioned all of its informational videos. When you go to the District's web-site, you can choose between the regular menu of videos or the "closed-captioned" menu -- click on the latter, and the videos appear with a "captions" icon that you can turn on or off.

The District originally took the position that written transcripts available upon request would be sufficient. We disagreed. In correspondence with the District, through its Spokane attorneys, we pointed out that Title II of the Americans with Disabilities Act requires public agencies to make all of their programs and services accessible to people with hearing loss, and the law further requires them to give primary consideration to the method of accessibility being requested. We also pointed out that the time and expense required to furnish a written transcript would be essentially the same as the time and expense required to prepare captions, so there was little money to be saved by their proposed alternative, and much to be gained in terms of more widespread and timely access by our proposed method.

After considering the alternatives, perhaps including our observation that it would cost them a great deal less to caption the videos than to debate the issue in court, the district complied, and now makes its on-line health advisories accessible to everyone.

The whole business of internet accessibility is an increasing concern. A bill introduced in the House of Representatives, H.R. 3101, would address the problem on a federal level. (Read about H.R. 3101 at the website of the Coalition of Organizations for Accessible Technology, or COAT). Since government agencies have to make all of their "programs and services" accessible, government-provided videos pretty clearly must be captioned. 

The great gap at the moment deals with on-line videos created by private businesses, who are not required to make their programs and services accessible, but only their places of business. Courts are divided on whether a website where goods are sold can be classified as a place of business for purposes of disability laws. The federal Ninth Circuit Court of Appeals has said that places of business are brick-and-mortar places only.

However, a federal district court in California has qualified the Ninth Circuit's rule somewhat by saying that if the inaccessibility of the website actually hinders one's ability to shop at the brick-and-mortar store, that may be a violation of federal disability law. We believe that logic should apply, at the very least, to on-line instructional videos for products sold at the brick-and-mortar store

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Seattle's Paramount Theatre, which pioneered open-captioned performances in the Northwest, will offer three captioned productions in the next six weeks.

This Sunday, Jan. 24, at 6:30 p.m., the captioned production will be Xanadu, a roller-skating pop-rock confection best known as a 1980s movie starring Olivia Newton-John. The music comes from Jeff Lynne, the under-appreciated leader of the Electric Light Orchestra. (You'll recognize the tunes even if you don't recognize the name). Tickets are available on-line at a special price of $38.50.

On Valentine's Day, Sunday Feb. 14, again at 6:30 p.m., the captioned production will be Annie, the musical re-creation of the long-running comic strip about a red-headed moppet and her dog Sandy. It was the longest-running comic strip ever, and one of the longer-running shows on Broadway, logging well over 2,000 performances. Again, tickets are available on-line for $38.50.

Then on Sunday, March 7, at 6:30 p.m., Paramount will do a captioned version of Chicago, a musical originally choreographed by Bob Fosse which was made into an Academy Award-winning movie and which is now back on stage. Here's a link to on-line ticket-purchasing, and the price again is $38.50.

Paramount is offering two other Broadway musicals in the Spring -- Dreamgirls in April and Fiddler on the Roof in May. Dreamgirls, based essentially on the rise to fame of The Supremes, became a critically acclaimed movie starring Beyonce Knowles and Jennifer Hudson, while Fiddler is the much-beloved recreation of life in a Jewish shtetl in the last century. No word yet on whether those productions will have a captioned performance, but assuming Paramount adheres to the pattern of captioning the last Sunday evening performance, the dates would be April 11 for Dreamgirls and May 30 for Fiddler.

For the open-captioned performances, the captions are prepared in advance, and are displayed on a small reader-board placed in front of the stage on the right edge. Tickets purchased through the open-caption links will be in an area where both the captions and the on-stage action can be seen with minimal head-turning. Paramount began offering one captioned performance of each of its Broadway offerings in August of 2008 at the request of the Washington State Communication Access Project (Wash-CAP). Since then, Seattle's 5th Avenue Theatre and Seattle Repertory Theatre have also begun offering captioned performances.

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A federal appeals court in San Francisco heard oral arguments on Jan. 13 about whether movie theaters must offer services like captioning or audio descriptions so that those of us with sensory losses can enjoy the movies. And the arguments of one theater chain that all it needs to do is open the doors and let us in was, to put it mildly, poorly received.

Those of us who have spent a lot of time in appellate courts are usually pretty cautious about trying to predict a case's outcome based on the questions the judges ask. But there are sometimes a few clues, or "tells" that can indicate that, just maybe, things aren't going your way.

1) When the judges start making the other side's argument for them, that's a pretty good "tell."

2) When the judges say your clients are "being jerks," that's a pretty good "tell."

3) When the judges suggest that "someday," people will be laughing at your argument, then when you don't back off, proceed to do so, that's a pretty good "tell."

Well, I'm pleased to report that all of those things happened to the attorneys for the Harkins theater chain when the Ninth Circuit Court of Appeals heard arguments about whether the Americans with Disabilities Act requires movie theaters to show captioned (and audio-described) movies.

As you may know, the Arizona Attorney General's Office sued the Harkins theater chain, claiming that the business violated both ADA and Arizona state law by failing to show captioned and described movies. The AG was not suggesting that the theaters themselves had to provide the captions or descriptions, but only that they need to install the equipment necessary to show the captions and descriptions provided by the studios.

The theaters took the position that ADA does not regulate the contents of their products or services, and that they offer non-captioned movies. "We have the right to choose what services we provide, and that is our choice," said the attorney for the theaters. "We let everyone come into our theaters and see our (non-captioned) movies, and that is what ADA requires us to do."

The AG's office, on the other hand, said that captions are the kind of "auxiliary aid and service" that the ADA requires to enable people with hearing and vision losses to gain the "full enjoyment" of the businesses' offerings.

The judges basically said flat-out that they thought the theater argument is preposterous. Alex Kozinski, the chief judge, said, "What if we took the position that this building is a building with steps, and if someone in a wheelchair wants to come in, they can find somebody to carry them?"

Kozinksi went on, "Actually, that case happened, and some lawyer argued that being able to crawl up the steps was good enough. Today, people are laughing at that argument, and I wouldn't be surprised if in a few years, people are laughing at your argument."

The attorney didn't back down. And the judges started laughing.

"Captions just let them enjoy the same movie that everybody else sees," Kozinski said. "I don't know why you don't want to do this."

Kozinski went on to say that at best, it's only a matter of time before movie theaters have to comply. "You are going to lose," he said. "You might not even lose this case, but you will lose someday. Why don't you get out ahead and do the right thing instead of being jerks?"

Nor were the judges impressed with any argument about cost. I asked for CART for the hearing, which was provided. "That wasn't in our budget," Kozinski said, "but we pulled it together in a day. With what theaters are doing with 3D, the cost of this (providing equipment to show captions) is just a drop in the bucket."

Now I don't want to suggest that we're going to see every movie captioned at any time in the future. The judges seemed pretty clear in their view that open-captioning can change the moviegoing experience for hearing patrons, and that the interests of those patrons must be balanced against the benefit to those of us who need captions. I think it's quite clear that those theaters that offer open captions, visible to everyone in the audience, would not be required to caption every movie.

The judges also recognized that the pending change-over to digital display may mean that some things that can't be done now can be done in the future, and that today's captioning equipment may become obsolete. But the judges said issues of that nature should be worked out by the parties themselves.

In fact, that's just what the judges suggested. "You've got your general counsel here," Kozinski told the Harkins attorney, "and the AG's office is here. Why don't you just go down to the cafeteria and work out a schedule today?"

I would anticipate a "quick" decision from the court, but "quick" from an appellate court probably still means four to six months.

Meanwhile, the attorneys representing the movie theaters in our Washington case were in the audience. They asked me afterwards whether we could just put our case on ice for awhile, until the court rules on Harkins. They noted that we're "going to spend a lot of money" making motions in our case.

I said I wasn't interested in a stay. What I suggested instead is that they basically just throw in the towel on any argument that they don't have to do anything, and sit down and negotiate what and when they have to do things. Their response: "we'll report to our clients about what happened today, and get back to you."

The bottom line -- circle today's date on your calendar. This was the day that the movie theaters' arguments that "we don't have to do anything" crumbled.

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Next week in San Francisco, on Jan. 13, a federal appeals court will hear oral arguments in a case out of Arizona that may determine once and for all whether movie theaters may be required to show captioned movies to comply with the Americans with Disabilities Act.

Then two months later, on March 12, a superior court judge in Seattle will hear arguments over whether movie captioning may be required by the Washington state Law against Discrimination.

The Arizona Attorney General's Office brought an action against that state's Harkins theater chain contending that under ADA, theaters must show movies that are captioned for people with hearing loss, and that contain audio descriptions for people with vision loss. The AG's office didn't say that the theaters had to create the captions or descriptions -- those are contained on a computer disc that comes with many, although not all, first-run movies. The AG's office was simply stating that Harkins must equip at least some of its theaters to actually display those captions and provide the audio descriptions.

Harkins argued that it had no such obligation. It said that ADA does not regulate the content of goods sold or services offered, and argued that the "goods" or "services" it offers are non-captioned movies. The federal judge in Arizona agreed, and the case is now on appeal.

A number of other lawsuits have been filed requesting movie captioning, with mixed results. But the Harkins case is the watershed event for a couple of reasons.

First, the federal courts of appeal are the second-highest courts in the land, right below the U.S. Supreme Court. This will be the first movie-captioning case to reach the appeals-court level. The decision will be legally binding only in the Ninth Circuit states of Arizona, Nevada, California, Oregon, Washington, Idaho, Montana, Hawaii and Alaska. But as a practical matter, most federal courts will generally follow the first appellate-court decision to address a particular issue. So the case could essentially establish a national rule.

Second, if the decision is upheld, we can anticipate all sorts of other businesses arguing that by the same logic, they should not have to provide captions. If a movie theater's "product" is non-captioned movies, then surely, live theaters can argue that their "product" is non-captioned drama, and universities can argue that their "product" is non-captioned lectures.

Needless to say, we think the trial-court decision is profoundly wrong. Wash-CAP filed a friend-of-the-court brief in the Arizona case, and we've been in contact with the Arizona attorneys about the oral arguments. I'll be in San Francisco Wednesday listening to the arguments, and will file a blog entry about them. It generally takes an appellate court from six months to two years or more to announce a decision after oral argument, but sometimes -- not always, but sometimes -- the questions the judges ask at oral argument can give one an idea of what they are thinking.

The arguments will begin at about 11 a.m. Wednesday at the Browning Courthouse, 95 7th Street in San Francisco. We've worked with the court to have the proceedings captioned, and would encourage anyone in the area who is interested to attend.

While the Arizona case will likely establish what ADA requires, it won't directly impact the case Wash-CAP filed in King County Superior Court under our state law, which in many ways is far superior to the ADA, particularly for people with hearing loss. Our complaint claims that under state law, theaters must take those steps "reasonably possible in the circumstances" to make their movie soundtracks understandable. As with the Arizona case, the theaters deny having any such obligation.

We've worked cooperatively with the attorneys for the King County movie theaters to develop a set of stipulated facts. They will then file a motion claiming that they have no obligation, and we will file a cross-motion claiming that they do. Our case is scheduled for oral argument before Judge Regina Cahan in the King County main courthouse, 516 3d Avenue, at 10:00 a.m. on Friday, March 12.

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Seattle's Paramount Theatre has changed the date for presenting the captioned versions of its Christmas show, the Radio City Christmas Spectacular  featuring New York's famous Radio City Rockettes.

The captioned performance will be Wednesday, Dec. 30, at 7:30 p.m. 

Tickets are available at a special price of $38.50. Here is a link for ordering the tickets on line. https://www.stgpresents.org/oc/radiocity.asp

For those of you who haven't yet attended a captioned theater performance, the dialogue and song lyrics are displayed on a portable reader-board placed in front of the stage. A block of seats is made available in an area of the theater that enables patrons to see both the on-stage action and the captions with minimal need to move our heads and eyes. The captions are prepared in advance, so they are error-free.

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Word had spread about the successes we've enjoyed in Washington through the Washington State Communication Access Project, (Wash-CAP), our organized group advocacy on behalf of people with hearing loss. Last weekend, I met with a group of folks in Oregon who are interested in forming a similar organization, tentatively called the Oregon Communication Access Project.

The meeting was organized by Clark Anderson, a retired hospital administrator from the Eugene area. Clark brought together a number of Oregonians who have been actively working on behalf of people with hearing loss. Their general consensus -- it makes sense to work as a group.

The overall objective in Oregon, as in Washington, will be to actually implement the provisions of federal disability laws that guarantee access to public places to people with hearing loss. The legal landscape in Oregon isn't quite as favorable -- while the federal Americans with Disabilities Act applies, Oregon does not have a state law like Washington's that goes beyond ADA's requirements.

We talked about the need for strategic planning and a systematic approach to implementing those plans. We talked about how our initial efforts to make live theater accessible in the Seattle area led us to learn about available technologies and providers, so that we could be resource people for businesses that want to reach out to people with hearing loss but aren't sure how to do it.

As was the case in Washington, the feeling in Oregon was that it is important to begin dealing with situations where the business's obligations are pretty clear-cut, and the advocacy efforts are therefore likely to succeed. In that light, efforts to make live theater dialogue and announcements at sports facilities understandable seemed particularly promising. Because of that, the early focus is likely to be on improving access at the Oregon Shakespeare Festival,  the Portland Center for the Performing Arts Broadway series and other major live theaters in Portland, the Hult Center for the Performing Arts in Eugene, and professional and college sports venues in Portland, Eugene and Corvallis.

This is great news for both Oregon and Washington. Working in two continiguous states will help generate awareness of the needs of the hearing-loss population and how those needs can be accommodated. Many people in both states cross the Columbia regularly to patronize attractions in the neighboring state.

I'll continue to advise OR-CAP on some of the technical details of getting started -- things like the mechanics of incorporation, the necessary corporate documents and the public outreach effort that is required. We hope they may benefit by what has worked well for us in Washington, and perhaps benefit just as much from things that we might have done a bit differently. We anticipate that by mid-January, the Oregon organization will be up and running, and opening doors there for those of us with hearing loss.

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Thanks to the good efforts of a number of Seattle's live theaters, those of us with hearing loss won't need to have a holiday season full of nothing but silent nights, as we'll have a menu of captioned performances available to us.

Tomorrow, Dec. 4, Seattle Repertory Theatre is offering a captioned performance of "Equivocation," a play in which Shakespeare is the principal character, not the author. King James has commissioned Shakespeare to write a play about a plot to assissinate the king, but when Shakespeare finds out that the "official" version of events isn't accurate, he has to choose between his artistic integrity or possibly his head. To ensure seats from where the captions will be visible, email the box office, boxoffice@seattlerep.org.

On Sunday, December 27, Seattle's Fifth Avenue Theatre will present a captioned performance of the holiday standby White Christmas, the Irving Berlin favorite. Fifth Avenue is offering tickets to the captioned performances for the special price of $37.50. Again, the best way to ensure that you'll be seated in the right spot is to email the Fifth Avenue box office, ticketing@5thavenue.org.

Finally, the New Year really will get kicked off on Jan. 3, 2010, when Seattle's Paramount Theatre presents the Rockettes and the Radio City Christmas Spectacular at 5 p.m. It appears that Paramount has changed its website design, and in the process, we've lost the on-line order button for captioned performances. For now, other than calling or visiting the box office, the best bet for those of us who don't use telephones easily might simply be to contact Mason Sherry, the theater manager directly by email, masons@stgpresents.org. Mason has been a terrific supporter of Paramount's captioning efforts, and he will find a way to let us order online tickets.

The captioning at all three theaters is being done by c2net from Boston, which converts the script into text form in advance, then displays the captions on a portable reader board visible from a bloc of seats set aside for those who request them.  The captioning effort has been partially funded by the Theatre Development Fund from New York City.

The captioning efforts were undertaken after requests from the Washington State Communication Access Project (Wash-CAP), a non-profit membership corporation whose purpose is to improve access to Washington's public places for people with hearing loss.

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The Washington State Ferries have issued a request for proposals for a visual paging system that will display in captioned form the announcements made on board WSF's vessels and at its terminals.

The request -- a legally required step for a state agency to make a significant purchase -- asks potential vendors to give specifications and quote prices for what it calls a "voice-to-text visual paging system modeled after the visual paging system at San Francisco International Airport."

Deadline for vendor responses is January 7 of 2010, and WSF expects to award a contract on February 1. (Read the full document here).

Numerous announcements are currently made by public-address systems on all of WSF's vessels and at its terminals, but those announcements are difficult for hard-of-hearing people to understand, and are totally inaccessible to deaf passengers. Both state and federal law require government entities such as the state ferry system to make communications effective to people with hearing loss.

According to the bid documents, the  system "must be capable of converting regular voice messages from a variety of assigned vessel crew and terminal personnel." Both routine and specialized announcements (such a information about cars with lights left on) will be displayed in text form on television-type monitors or on reader-board devices.

The purchased system will be installed first for a six-month trial run on the two large boats that service the Seattle-Bainbridge Island route, and at the Seattle and Bainbridge Island terminals. If the system proves reliable, it will then be expanded throughout the WSF system.

 WSF's actions are being taken to resolve a lawsuit filed against it by the Washington State Communication Access Project (Wash-CAP), a Washington non-profit membership corporation which has the objective of making Washington's public places accessible to people with hearing loss.

WSF operates one of the world's largest ferry systems, serving more than 23 million passengers annually. With studies indicating that almost 8 percent of the adult population have a hearing loss serious enough to interfere with their ability to understand speech, this system should benefit almost two million riders a year. 

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At a recent Seattle meeting of interested organizations, Washington State Ferries explained how it intends to convert its public-address announcements made on its vessels and at its terminals into text form, then to display those announcements to make them accessible to patrons with hearing loss.

The basic system will be modeled after the system used at San Francisco Airport, where all gate information and passenger pages are displayed in text on some 80 screens visible throughout the airport. Here are the notes from that meeting, as compiled by WSF.

The San Francisco Airport has a central communications center, where all messages originate. That allows the messages to be dictated by a very few speakers, which enables the information to be transcribed into text using a software program, without any additional human input. Because the WSF messages will originate on the individual vessels, a centralized system may not work in this application. WSF is therefore thinking about how to standardize the messages in such a way that vessel crews only have to type in the specifics, like the license number of a car or the name of a person.

The feedback from representatives of organizations that serve people with hearing loss was overall quite favorable, although people with both hearing and vision impairments noted that the proposed system could still leave some access gaps.

After evaluating feeback from the user groups, WSF will formulate a Request For Proposals, and follow state purchasing requirements to obtain and install a captioning system on the Bainbridge vessels and at the Seattle and Bainbridge terminals for a six-month trial. If the system performs satisfactorily, it will then be installed system-wide.

There are too many unknowns to predict with any certainty when the systems will be installed. The target to install the test system is the latter half of 2010.

WSF is undertaking this effort to resolve a lawsuit brought against it by the Washington State Communication Access Project, which alleged that WSF was violating the Washington State Law Against Discrimination by failing to communicate effectively with hearing-impaired patrons. After the suit was filed, the Attorney General's office worked smoothly with Wash-CAP to come to an agreed order implementing the communications improvements.

Washington State Ferries is the nation's largest ferry system, carrying some 26 million passengers annually. Assuming the prevalence of hearing loss among WSF passengers is similar to that in the nation as a whole, as many as 4 million passengers will benefit from a system-wide implementation of the agreement.

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