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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