More great coverage of the California captioning case
A column in this morning's San Jose (Cal.) Mercury News takes another sympathetic look at the lawsuit filed last week in Oakland by the Association of Late Deafened Adults (ALDA) and two individuals against Cinermark theaters.
Author Patty Fisher recounts the frustration people with hearing loss face when trying to go to the movies. Her conclusion: with 36 million Americans having some degree of hearing loss, and that number climbing rapidly, the theaters ought to be doing whatever is required to get people away from their DVD viewers and into the theaters.
Her conclusion mirrors mine. The movie theaters are doing everything possible to create an experience that can't be duplicated at home -- witness the push for 3D movies. Yet they ignore the needs of those of us who are at home with our captioned DVDs by necessity rather than by choice.
My office is representing the California plaintiffs in tandem with Disability Rights Advocates of Berkeley, a public-interest law firm that specializes in precedent-setting litigation to benefit people with disabilities. We are asking the California court to certify the case as a class action.
While America's two largest theater chains, Regal and AMC, show some captioned films, although often at odd hours, Cinemark, the third largest chain, has done little or nothing to make its theaters accessible to people with hearing loss. Cinemark failed to respond to DRA's letter asking for a commitment to provide captioning, and has so far evidently failed to respond to any of the reporters covering the story who have asked for comment.
While the complaint and the stories reference Rear Windows Captioning (RWC), what we are actually seeking is effective means of making aurally delivered information available to those of us with hearing losses -- the definition of "auxiliary aids and services" in the Americans with Disabilities Act. The ADA requires so-called "public accommodations" -- privately owned open to the public -- to furnish auxiliary aids and services where necessary to provide patrons with full and equal enjoyment of their goods and services unless the business can demonstrate the providing such aids and services would fundamentally alter the nature of the business or impose an "undue burden."
The ADA gives public accommodations the right to select from among any effective means of communication, and the theaters are looking at a variety of display devices. The captions are prepared by the Media Access Group at WGBH public television, and distributed free of charge to the theaters. The theaters must only purchase and install the equipment necessary to display the captions. RWC is an existing and viable means of displaying captions, but the theaters may be able to find and install other equipment.
Because closed captioning, where captions are visible only to patrons who request viewing devices, does not significantly interfere with the movie-going experience for others, we do not believe closed captioning can constitute a fundamental alteration. Nor do we think the cost imposes an undue burden. The quoted cost of $10,000 per theater represents a "worst-case scenario" cost of equipping an individuals theater -- volume discounts on equipment can cut that cost in half. Moreover, the theaters are spending well over ten times that amount to convert to digital display, where computerized data replaces celluloid film. And when those conversions are completed, the cost to provide captioning drops every considerably.
We continue to ask the question Judge Alex Kozinski of the Ninth Circuit Court of Appeals asked of counsel for the Harkins theater chain in a movie-captioning case out of Arizona -- why are the theaters fighting about this? In that case, the Ninth Circuit ruled in April in that case that ADA does indeed require theaters to offer auxiliary aids and services like closed captioning, yet Cinemark has so far done nothing in the way of either providing those services or even making a commitment to do so. We would hope that rather than continue to fight the captioning battle in many different areas of the country, the theaters would just do the right thing.
