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

As previously reported, the federal Department of Justice is considering adopting a regulation that would require movie theaters to show half of their movies with closed captions. Because Congress gave the DOJ the authority to adopt regulations interpreting the portion of the Americans with Disabilities Act that applies to movie theaters, a DOJ regulation would become the law of the land, and for that reason, getting it right is really important.

We were pleased to see DOJ finally getting involved with the critical issue of movie captioning. That said, though, we don't think the proposal for 50% access phased in over five years got it even close to right. In our opinion, there is simply no reason why the major corporate theater owners cannot equip every one of their theaters to show captions for all movies that have had captions prepared. We also think the five-year phase-in is unnecessary, since the major theater chains intend to fully convert to digital projection in far less time, and can easily equip their theaters to show captioned movies at the time they convert to digital.

DOJ held three public hearings on the movie-captioning proposal and three other proposals dealing with website access, access to 911 emergency services, and accessible furniture. The third and last hearing took place in San Francisco on January 10, and a number of us testified about movie captioning.

The hearing itself was a model of accessibility. All of the testimony was real-time captioned and ASL-interpreted. It was also streamed live over the internet. 

I testified on behalf of a number of organizations to the effect that captioning should be required, but that rather than impose any sort of performance standard like 50%, theaters should be required to provide full accessibility unless doing so would constitute an "undue burden," which would need to be determined on a case-by-case, business-by-business basis. Other very good testimony came from the attorneys directly involved in the Harkins movie-captioning case, Rose Daly-Rooney of the Arizona Attorney General's Office and from J.J. Rico of the Arizona Disability Law Center.

(Both thevideo and a written transcript are now available on line. My testimony is at 271:02 of the video).

I spoke afterwards to John Wodatch, who presided at the hearing. What I found curious was that even though DOJ was proposing a rule to require only 50% captioning, it filed a brief in Arizona saying that the proper standard was "undue burden," and that determining what constituted an "undue burden" was a matter for courts rather than for the DOJ. He indicated to me that the 50% requirement was really nothing more than a starting point, but that DOJ was very seriously considering the arguments that "undue burden" must be determined on an entity-by-entity basis rather than being suitable for an industry-wide rule. He also said he was impressed by the testimony from witnesses like J.J. Rico and me concerning the financial ability of the major movie theaters.

Comments on the proposed rule are being accepted through Monday, Jan. 26. Here are the comments I filed on behalf of several organizations. Individuals wishing to comment can go online to , www.regulations.gov/#!documentDetail;D=DOJ-CRT-2010-0007-0001, hit the "submit comment" button and file their personal comments that way.

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Without fanfare -- in fact, with almost no notice -- Cinemark/Century theaters have made that company's two Washington movie multiplexes completely accessible to people with hearing loss. Patrons with hearing loss such that they need captions to understand the dialog have eight different captioned movies to choose from at the Century Federal Way complex in Federal Way, and ten different captioned movies at the Century Olympia complex in that city's Capital Mall.

Cinemark, which operates under the Century brand name in Washington, is using relatively new closed-captioning display devices known as CaptiView. Viewers pick up a portable display unit mounted on a flexible gooseneck that sits in the theater-seat cup-holder. The dialogue and some additional aural information like "door slamming" is transmitted wirelessly, and displayed three lines at a time. A privacy screen minimizes the distraction to other viewers.

The captioning is available for every showing of every movie for which captions have been prepared. At the Federal Way complex, those movies include two brand-new releases, "Green Hornet" and "The Dilemma," and one 3-D movie, "The Chronicles of Narnia: The Voyage of the Dawn Treader." Additional captioned movies at the Federal Way comples are "Little Fockers," "The Fighter," "Black Swan," "Tangled" and "Country Strong." All of those movies are also available with captions at the Olympia complex, which is also showing "True Grit" and "Tron:Legacy" (2-D version) with captions.

Century has converted all of the theaters at both of those complexes to show movies using digital projection, in which film is replaced by digital information. The theaters do not caption the movies -- that is done under contract with the movie studios by a company affiliated with WGBH public television in Boston. The vast majority of major-studio movies are equipped with captions, but prior to digital conversion, very few theaters were equipped to display the captions

CaptiView has some advantages over both open captioning, in which the captions are visible to everyone in the audience and which hearing patrons sometimes claim is distracting, and over Rear Window Captioning, where captions are displayed in mirror image on a reader-board at the back of the theater and viewed to a reflector. Other patrons can't block the captions by standing up at the wrong time. Moreover, a central server can make all of the movies in a multi-screen theater accessible without the need for separate equipment in each individual auditorium.

CaptiView has raised some concerns, though, because using it does require patrons to glance away from the screen while reading the captions. Would that cause eyestrain and discomfort over the course of a full-length movie? No one really knows for certain, because the equipment has not been in wide use -- in fact, it appears that the Washington complexes may be the first in the nation to be equipped to show in captioned form all movies for which captions have been prepared.

Cinemark has been oddly quiet about this accomplishment. It has not advertised the availabilty of captions in its print advertising. Nor is the information readily available on line. If one goes to the general "Fandango" movie-time site, no captioning information is shown. One must either begin at the proprietary Cinemark website, or click on the theater name on the Fandango site to get to the page that mentions the captions. Unfortunately, that arrangement appears to prevent the Captionfish website, which tries to provide a full directory of captioned movies, from getting the information.

By making all captioned movies accessible in captioned form, Cinemark has provided exactly what Wash-CAP asked for in the lawsuit filed in early 2009 against Cinemark and five other defendants. While the case continues against the others, we are hopeful that some or all of those theaters will follow Cinemark's lead, and make their movies accessible to people with hearing loss.

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