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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After a year of correspondence with Wash-CAP, Seattle Arts and Lectures is making its popular Benaroya Hall presentations by prominent authors significantly accessible to patrons with hearing loss by captioning five of its 2009-10 events.

Captioned presentations include two Pulitzer Prize  winners, an award-winning screenwriter, two food-and-travel authors, and a medical journalist whose work is profoundly influencing the national debate about health-care reform.

The captioned schedule is as follows:

Oct. 7, 2009 -- Annie Proulx, Pulitzer-Prize winner for The Shipping News and author of Brokeback Mountain, a short story that became a much-praised and controversial movie.

Dec. 1, 2009 -- Richard Price, author of the novel Clockers, which bears a strong thematic resemblance to the award-winning HBO television series The Wire, to which Price contributed,  and screenwriter for many other movies.

Jan. 12, 2010 -- Jane and Michael Stern, food and travel writers devoted to America's back roads and to the unique and surprisingly excellent food one can find there.

March 9, 2010 -- Michael Chabon, Pulitzer-Prize winner for The Amazing Adventures of Kavalier and Clay and author of The Yiddish Policeman's Union, whose work consistently draws rave critical reviews.

May 3, 2010 -- Dr. Atul Gawande, a practicing surgeon and journalist, whose writing on health-care costs and quality have gained wide influence inside the Obama Administration.

All lectures are at 7:30 p.m. at Benaroya Hall in downtown Seattle. Because the captions will be visible from throughout the auditorium, patrons who want to see the captions will have the same array of ticket prices and options as all other patrons.

Single-event tickets go on sale Aug. 24. We have asked SAL to consider offering a season subscription to all of the captioned events.

SAL's decision to make the captions visible to all raises an interesting question. On the one hand, we appreciate being able to sit wherever we choose. On the other hand, because of the equipment required, universally visible captioning is considerably more expensive than captioning visible from only a portion of the auditorium, meaning that fewer events can be captioned. So the question is, which is better? We hope to get some feedback on that question as we work with SAL to plan future seasons.

By adding captions to its array of accommodations, SAL joins Seattle's Paramount, 5th Avenue and Seattle Repertory Theatres, as well as the Seattle Mariners and Seattle Seahawks, in making its offerings available to those of us who have a significant hearing loss but who communicate orally rather than through sign language. Those captioning efforts have been instigated at the request of and in cooperation with the Washington State Communication Access Project (Wash-CAP) in furtherance of Wash-CAP's objective of making Washington State a national model of accessibility for people with hearing loss. 

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Seattle Repertory Theatre will make much of its 2009-10 season accessible to people with hearing loss by offering captioned performances of its four at the Bagley Wright Theatre, Rep's main stage.

The productions and caption dates are:

39 Steps -- Thursday, Oct. 1

Equivocation -- Thursday, Dec. 3

Glengrarry Glen Ross -- Thursday,  Feb. 11

Fences -- Thursday, April 1

Tickets will go on sale Aug. 21. Seattle Rep marketing director Katie Jackman plans to send us an email link that we can post on this website to enable them to keep track of how many ticket purchases come from our readers and members.

The caption-area tickets will cost $35 each, significantly less than Rep's normal pricing of $41 to $48 for seats in that area.

Seattle Rep joins Seattle's Paramount and 5th Avenue theaters in offering one captioned performance of each of its dramatic productions. The captions, prepared in advance, are displayed in synch with the performance on a portable reader board. All three theaters have engaged c2net out of Boston to do that captioning.

Rep's initiation of captioning comes in response to requests from the Washington State Communication Access Project, and is one more small step towards our objective of making Washington's public places accessible to people with hearing loss. Wash-CAP was also responsible for instigating the captioned performances at Paramount and 5th Avenue.

Seattle Rep's captioning program is being funded in part by a grant from the Theatre Development Fund from New York City, which has also provided start-up funding for Paramount and 5th Avenue. Three of TDF's eight access grants this year have gone to Seattle theaters, a focus that TDF Accessibility Programs Director Lisa Carling says is the result of Wash-CAP's advocacy within the Puget Sound theater community.

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Seattle's Fifth Avenue Theatre this week released its schedule of captioned performances for the 2009-10 season.

The first captioned performance will be "Catch Me If You Can," a new musical version of the Leonardo di Caprio movie based on the truth-is-stranger-than-fiction biography of Frank Abegnale, an imposter-embezzler who used his gift of gab to pose as a professional in a number of fields, and made off with millions in the process.  The captioned performance will be Wednesday, August 12, at 7:30 p.m.

The rest of the schedule is:

"Joseph and the Amazing Technicolor Dreamcoat," Friday, Oct. 23, 8 p.m.

"White Christmas," Sunday, Dec. 27, 1:30 p.m.

"South Pacific," (the revival by Intiman Theatre's Bartlett Sher that won seven Tony Awards), Saturday, Feb. 20, 2 p.m.

"Legally Blonde," another movie-turned-musical, Friday, March 5, 8 p.m.

"On the Town," Friday, April 23, 8 p.m.

"Candide," Wednesday, June 2, 7:30 p.m.

Fifth Avenue is undertaking captioned performances at the request of the Washinton State Communication Access Project (Wash-CAP), a non-profit membership corporation whose goal is to make Washington's public places accessible to people with hearing loss. The captioning arrangement will be very similar to Seattle's Paramount Theatre -- a portable reader-board will be placed to one side of the stage, and the captions will be scrolled in synch with the performance.

Fifth Avenue will sell two tickets to the captioned section at a discounted price of $37. Buyers of those discounted tickets can buy two additional tickets at the regular price.

Season subscriptions to the captioned performances are available. You can get the details on the "Accessibility" page of Fifth Avenue's website, http://www.5thavenue.org/accessibility/.

For those who can't attend the special captioned performances, Fifth Avenue will offer scripts in illuminated binders at all performances.

Fifth Avenue joins Seattle's Paramount Theatre in becoming accessible to people with significant hearing losses by offering one captioned performance of each of its Broadway-type productions. Paramount's schedule for the remainder of 2009 is available on a prior post.

 

 

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One of our more recent entries announced that the Seattle Mariners would try to accommodate fans with hearing loss by making available portable video-game terminals that would display captions. A Wash-CAP board member tested the system last week, and said it is terrific.

"The device is very good," reports board member Dean Olson. "I was able to read it and then look up at the game. It's useful information -- like when the stories come up to read about the players."

What is being captioned is the Mariners' radio broadcast, which is also fed into the stadium. When the public-address announcer chimes in, that announcement overrides the broadcast, and  when that happens, the captions are of the PA announcer. So the captions convey the same information that is being piped into the stadium for the hearing fans.

The devices may be checked out at the Nintendo kiosk behind home plate. Dean reports that they took a credit card and charged $300 as collateral, but when he turned the device in after the game, they gave him the slip to tear up.

The Washington hearing-loss community will have a chance to check out those devices en masse on July 10. The Puget Sound Chapter of the Association of Late Deafened Adults (ALDA) and the Seattle Hearing, Speech and Deafness Center (HSDC) are promoting a night at the ballpark. There will be a section cordoned off for us, so we can sit together, say hi to our friends, and enjoy a summer night at the ball game. (The opponent will be the Texas Rangers).

The Mariners will set up a special button on the "special group" area of  the team website for us to order tickets, and the tickets won't be limited to hearing-loss folks -- we can all bring our friends and families. Let's have a big turnout to support the Mariners and their efforts to support us.

 

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Seattle's vibrant drama scene continues to become more accessible to people with hearing loss, as both the Intiman Theatre and the Seattle Repertory Theatre take concrete steps towards offering captioned performances and Paramount Theatre releases its full schedule of captioned shows in 2009.

Following our written requests for captioned performances, I had a very productive meeting earlier this week with Intiman's incoming and outgoing Board presidents and two of its key staff members. Intiman is receptive to the idea of captioning one performance of each of its annual productions, and is currently seeking financial support from the Theatre Development Fund of New York to make that possible. (One of TDF's missions is to enhance accessibility of live theater).

Seattle Repertory Theatre is in the same situation. It plans to start offering captioned performances beginning this fall, and it is looking for funding as well, also from TDF.

I suggested to the Intiman managers that rather than everyone making separate applications for a finite pot of money, the theaters apply jointly for a grant that would support captioning for both. I also suggested they consider forming a consortium to buy the equipment and recruit and train a captioner -- an approach that theaters in England have used to make theater captioning far more common there than here. (We had also raised this possibility with TDF itself, and the feedback we got was that Seattle might be an attractive place to try out this joint approach).

In the interim, Intiman is going to reserve scripts and penlights that will be available on request beginning this Friday, April 24.

Meanwhile, Seattle's largest theater, the Paramount, has released its schedule of captioned performances for 2009. "Frost/Nixon" will be captioned on May 10, "Rent" on June 21, "Wicked" on September 27, "August: Osage County" on November 1 and "Fiddler on the Roof" on November 29.  Tickets for the captioned performances will be available on line.

The Washington State Communication Access Project (Wash-CAP), a non-profit membership corporation dedicted to making Washington's public places accessible to people with hearing loss, began working with (or on, depending on your point of view), Seattle's live theaters a year ago to make their offerings available to us through captioning. At Wash-CAP's behest, the Paramount began captioning last August, and has now offered captioned performances of six Broadway musicals. Seattle's other large theater, Fifth Avenue, will begin presenting captioned performances in the fall of 2009, and we are working now to expand the use of captioning into some of our smaller venues.

 

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The Seattle Mariners and Nintendo, the Mariners' principal owner, are teaming up to make this season's games more accessible to fans with hearing loss. Their method -- a video gaming device.

Nintendo and the Mariners have been working for a couple of years on the Nintendo Fan Network, which allows someone to bring a portable Nintendo gaming console to the game, then use it during the game to access a number of interactive features. To promote use of the network and the purchase of the gaming devices, the Mariners are going to be loaning 150 of the devices to fans on a first-come, first-served basis, according to a story in this morning's Seattle Times.

After the Washington State Communication Access Project (Wash-CAP) approached the Mariners about captioning the public-address announcements at Safeco Field, the Mariners and Nintendo evidently figured out how to add captioning to its menu of  features accessible via the DSi gaming device. So we can set the device to display captions of those announcements as well as ordering food, checking scores, and all the other things that can be done.

Importantly, the Mariners will reserve some units specifically for the hard of hearing, and those won't be subject to the first-come, first-served rule. 

According to the Seattle Times story, the devices will be available from a kiosk on the main concourse near Section 142.

I get the feeling this is a work in progress, and the story suggests that this is something of an experiment in how best to make in-stadium communication accessible to those with hearing loss. Let's give it a try, thank the Mariners and Nintendo for trying to respond to our needs, and give them the feedback necessary to make the system really work.

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Everywhere we turn these days, we see signs that times are getting tough. Jobs and homes are being lost, businesses are failing.

You'd think that would be driving people to drink, but alcohol sales are way down too.

So what are people doing to try to keep their spirits up? Well, according to an article in today's New York Times, they are going to the movies in record numbers.

Not only is total revenue up -- partly a function of higher box-office prices -- but total attendance has taken a sharp jump. If the current trend holds, this year will see the biggest attendance spike in over 20 years.

What accounts for that? According to one academic whose specialty is the entertainment industry, "It's not rocket science. People want to forget their troubles, and they want to be with other people."

This trend could well prove to be an enormous blessing for those of us with hearing loss who have been advocating for greater access through captioning and better sound systems. The exhibitors have been arguing for years that accommodating our needs imposes an "undue" economic burden on them. But with labor and construction costs down, and movie-exhibitor profits up, this looks to be the perfect time for them to act.

We should find out soon whether the exhibitors' resistance to captioning has softened. The Washington State Communication Access Project (Wash-CAP) filed suit earlier this month against the multi-plex theater owners in King County (greater Seattle), asking for meaningful increases in the number and variety of captioned movies.

The defendant exhibitors are trying to arrange a meeting with us in early April to see if we can reach an early resolution. The robust box-office returns should give us another means for arguing that there is not time like the present for them to act.

 

 

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In response to an inquiry and request from the Washington State Communication Access Project (Wash-CAP), the audio portion of professional football in Seattle is going to become accessible to fans with hearing losses.

The plan is to provide requesting fans with a hand-held unit that will display in captioned form the announcements from the referees, the public-address announcements, and the audio portion of the in-stadium entertainment, including song lyrics. Because the devices will be portable, we'll be able to use them from any seat, and take them with us to the concourses or the rest rooms. And because they are individual, folks that hear won't have their experience altered by captions on a Jumbotron or reader-board, (and we won't hear the flak from people saying we're ruining their fun). 

The captions will be done in real time by qualified captioners, possibly remote but more likely on site. The specific system they have in mind at Qwest Field in Seattle is used at National Football League stadiums in Denver, Pittsburgh and Philadelphia, so it has a proven track record.

The only real problem I see in this approach is that a good football game can be a "full-body" experience, in which you need both hands for shucking peanuts, holding onto both beer and hot dog, and high-fiving your neighbors when something good happens. I could see potential for the devices getting dropped and broken, lost, and so forth. (Toting them into the rest rooms creates some yuck factors as well). My suggestion was that they find a way to put the devices into a carrying case of some sort, then put straps or bands on the devices so that we can wear them like wristwatches on a forearm, keeping the hands free.

As I said, this is for both of Seattle's professional "football" teams -- the Seahawks, who play American football, and the Sounders, who play what we call soccer and everyone else calls football. (I'm not sure what Europeans call American football, but someone from abroad once observed that it is a game that combines the two worst features of American life -- violence and committee meetings).

Officials anticipate that this system will be up and running by mid-Spring, perhaps in time for the Sounders opener on March 19, and certainly in time for the Seahawks season.

The gentlemen I met with today were Lance Lopes, the General Counsel, and David Young, an assistant general manager. If anyone wants to say "thanks" to these guys, Lopes' address is 12 Seahawks Way, Renton, WA 98056, email LanceL@seahawkssoundersfc.com, and Young's is 800 Occidental Ave. S, Suite 100, Seattle, WA 98134, email davidyo@seahawkssoundersfc.com.

Wash-CAP is dedicated to enriching the lives of people with hearing loss by making communications in Washington's public places understandable. We begin by contacting the facilities, explaining the problem, and asking for their help. Sometimes, that is all it takes, and today was one of those days.

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Some Hollywood type once opined that "there is no such thing as bad publicity." If that's the case, this has been a banner week for Wash-CAP, the Washington State Communication Access Project.

On Tuesday Feb. 17, the Seattle Post-Intelligencer ran what I thought was a very nice story about our movie-captioning lawsuit. The P-I does give readers the opportunity to comment, and boy, did they -- mostly hostile, of course, from people who think lawyers are crooks and laws don't really apply.

A couple of days later, the North Seattle Herald sort of piled on with an editorial opining that our lawsuit wasn't necessary. The editorial was obviously based only on the P-I story -- I doubt the editor had read our complaint, and certainly didn't talk to me or anyone on the Wash-CAP board. I fired off a response -- we'll see if that ever appears in print.

Some really good ink on Saturday, though, from the Kitsap Sun, our county-wide daily newspaper, reporting on our agreement with Washington State Ferries. The really surprising thing was the prominence they gave the story -- the top of Page One! And we even had a rare non-snarky response from somebody who said that captioning announcements on the boats could really help.

We've also been on the radio recently. I did an interview Wednesday on the movie case with Dori Monson of KIRO Radio in Seattle, our local Rush Limbaugh right-wing wannabee, who basically did a lot of hufing and puffing that amounted, in the end, to saying we just should stay home and rent the DVDs, and not appear in public. He was upset, apparently, at the thought that private businesses have to spend money to accommodate folks who, in his view, won't help themselves. I'd like him to spend a few days with any of us to learn how much work we all have to do to stay involved in the world.

I didn't hear it, (radio not being exactly user-friendly to the hard of hearing), but I was told by some friends who did that we got some nice mentions this morning on KOMO Radio, the other Seattle news station, about the WSF lawsuit and its resolution.

It's disheartening sometimes that the initial reaction from many folks is that we should simply go away. Change isn't easy, and unfortunately, too many people think that if we (or any other group) gets something, it must mean that they will get less.

I take some comfort, though, in the realization that acceptance of "the other" has been going on almost since time began. It's interesting, sometimes, to read the ancient laws laid down in Leviticus, for example. In some respects, the laws of 1,200 B.C. aren't that much different than modern law. The difference comes from who the law benefits -- 3,000 years ago, the law benefitted free male adults, while slaves, women and children were treated essentially like cattle.  Progress does come ... not as fast as we'd like, but it does happen.

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The Washington State Communication Access Project (Wash-CAP) and the Washington State Ferries have amicably resolved their lawsuit with an agreement that the ferries will begin to caption their public-address announcements made on board and at their terminals. The agreement is embodied in an order that will be signed by a court, giving it the same effect as if the case had gone to trial, and this was the decision.

Wash-CAP's lawsuit stated that passengers with hearing losses can't understand those announcements. While some are routine and relatively trivial, others are specific and extremely important -- lost items, cars with lights on or horns blaring, and so forth. And while this may come as something of a surprise to those of you who don't often ride the boats, low-priced or free tickets to sporting events and concerts are frequently offered over the PA system, and the race is indeed to the swift.

Under the agreement, WSF will immediately begin a process of collecting information about available captioning systems. Working with user groups such as Wash-CAP, WSF will then issue specifications, ask for bids, purchase a system and install it on its two largest boats, and at its terminals in Seattle and on Bainbridge Island. Following a six-month test, WSF will then either buy and install similar systems for all its boats and terminals, or we'll go back to the drawing board and try something else. (I'll post the agreement next week after the court signs it).

Exact timing is hard to pin down, because the Coast Guard has to improve most vessel installations, and until WSF knows exactly what kind of systems it will use, it can't develop a deployment schedule. The agreed order does require WSF to proceed diligently, and report to Wash-CAP, so we can hold their feet to the fire.

WSF is the nation's largest fleet of passenger ferries, carrying over 26 million passengers per year. With latest statistics indicating that 7.8 percent of the adult population suffers significant hearing losses, this agreement may mean that some 2 million riders per year will be able to understand messages they would otherwise miss.

Now for a good word about lawsuits. We'd corresponded for months with WSF before filing the suit, and couldn't get any specific commitments. Filing a lawsuit ensures two things. First, it ensures that the problem will come to the attention of the people in a bureaucracy or a large corporation that have the power to say "yes" and fix the problem. Second, it creates a time frame in which they must work. So we were able to get this problem resolved in just a little more than six months.

A good word -- lots of them, in fact -- have to be said for the Washington Attorney General's office. Once that office got involved, we stopped arguing about whether WSF had to make its announcements understandable to folks with hearing loss, and started working cooperatively on how it was going to be done. 

Sometimes, lawsuits can make a bad situation worse. But other times, lawsuits can be the quickest and ultimately least expensive way to get a problem resolved. 

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Not unlike the old Western movies where the cavalry shows up at the last minute to save the day, the U..S. Department of Justice made a last-second appearance in the Arizona movie-captioning case, and urged that the truly awful trial court decison be reversed on appeal.

The decision in question, mentioned before on this blog, held that captions change the nature of a movie, and are therefore not required under the Americans with Disabilities Act. That decision effectively made ADA useless with respect to hearing loss by declaring that movie theaters -- and by extension, all other public facilities -- do not need to convert spoken information into a text (or sign-language) format, the only way to make that information accessible to people with more than mild hearing losses.

That case was appealed to the Ninth Circuit Court of Appeals -- the first movie-captioning case to reach the appeals-court level. Because that case will effectively decide what ADA requires in the way of movie captioning, a number of organizations, including Wash-CAP, filed friend-of-the-court briefs supporting the Arizona Attorney General's office, which brought the case, urging that the decision be reversed.

Last Friday, the United States Department of Justice asked for permission to file its own friend-of-the-court brief. That brief also urges reversal. The DOJ argues that while there was some indication that Congress did not intend the ADA to require open-captioned movies using the technology available in 1990, when ADA was passed, the statute does not address closed-captioning, which might be required. Moreover, DOJ was rather deliberately vague about whether ADA might require open captioning under today's technology, where captions aren't burned into the film's print, but are shown from a separate projector.

DOJ's involvement is highly significant, for two reasons. First, the federal government carefully selects those cases in which it gets involved, and does so sparingly. As a result, the briefs -- always carefully researched and well-reasoned -- are highly influential. More important, the Justice Department is specifically charged with issuing regulations to implement ADA, so its views with regard to a statute that it administers are particularly weighty.

(I don't know who deserves the credit for persuading DOJ to get involved. I spent some time lobbying a mid-level DOJ official at the Hearing Loss Association conference in Reno last June, but I don't pretend that our prompting was sufficient or decisive.)

I had always been reasonably optimistic that the Arizona decision would be reversed, but now, with the involvement of DOJ, I think that reversal is about as close to a certainty as one can get with an appeals court.

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The Washington State Communication Access Project (Wash-CAP) filed a lawsuit last week in Seattle against six owners of multi-plex theaters asking the theaters to show more captioned movies.

The 33-page complaint names as defendants three national theater chains -- AMC, Regal and Carmike -- two local multiplex owners -- Kirkland Cinemas and Lincoln Square cinemas -- and Landmark, a company that specializes in owning and operating historic theaters.

At present, both the AMC and Regal chains show some captioned movies, but relatively few. AMC shows first-run movies at seven different complexes with a total of 72 screens in King County, but has equipped only four of those screens to show captioned movies. Regal also has seven multiplex complexes in King County showing first-run movies on a total of 83 screens, but again, has equipped only four to show captioned movies. The other four defendants show no captioned films.

The complaint notes that of the 33 first-run films shown on January 17 -- intended to represent a typical Saturday -- 26 of them were available in captioned format, but only five of them were actually shown with captions. 

"While captioning is widely available, movie exhibitors, specifically including these defendants, have in general made only minimal use of captioning, if any use at all. It is that failure to use available technology, rather than the absence of technology, that has made movies generally inaccessible" to the hearing-loss population, and frequently to their spouses, families and friends, the complaint states.

Because of the sparse use of captioning technology, people with hearing loss who need captions to understand a movie sound track have fewer movies available to them, at far fewer locations and at far fewer times than do fully hearing patrons. Wash-CAP contends that such different treatment violates the Washington Law Against Discrimination and its implementing regulations, which require that public places like movies make their services understandable to patrons with disabilities like hearing loss.

The case is scheduled to go trial in July of 2010.

   

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The Washington State Communication Access Project (Wash-CAP) and Seattle Fifth Avenue Theatre have amicably resolved their lawsuit, and signed off on a settlement that will bring captioned theater to that venue beginning this season.

The agreement calls for Fifth Avenue to offer at least one captioned performance of each of its seven productions during the 2009-10 season. Because Fifth Avenue has not finalized its schedule of productions, it hasn't identified dates for the captioned performances. However, the agreement calls for at least some captioned performances to be on the weekend, and some to be during the evening. Fifth Avenue will offer season subscriptions to the captioned performances. Fifth Avenue will set up a specific link on its website to order tickets for the captioned performances.

Wash-CAP and Fifth Avenue tentatively agreed to such a resolution last August, and have been working out the mechanics and the details since.

Fifth Avenue will continue to offer Assistive Listening Devices, which benefit patrons with mild hearing losses, and lighted scripts for patrons with more serious losses. Those will be offered at all performances. The combination of lighted scripts and captioned performances, along with sign-language interpreted performances, makes Fifth Avenue the most accessible live theater in Western Washington.

At Wash-CAP's request, Seattle's Paramount Theatre began offering one captioned performance of each of its Broadway-type offerings beginning last August, and has presented four captioned performances to date. The captions, containing both dialogue and notations about sound effects, are prepared in advance and presented in synch with the performance by c2net of Boston, which will also caption the Fifth Avenue shows.  

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The battle lines are being drawn in the Ninth Circuit Court of Appeals, as that court  will decide whether the Americans with Disabilities Act requires movies to be captioned, and thereby become accessible to the hearing-loss population.

As we noted in an earlier post, a federal judge in Arizona ruled last spring that showing moves with captions would alter the "product" sold by movie theaters, and that because ADA does not regulate product content, the law therefore did not require theaters to show captioned movies. That case was appealed -- the first movie-captioning litigation to reach the appellate court level.

Generally speaking, the decision of the first federal court of appeals to decide an issue becomes a national precedent, so unless the United State Supreme Court were to step in or Congress were to intervene, the Ninth Circuit decision will essentially become the national rule.

The Washington State Communication Access Project (Wash-CAP) and a number of national organizations filed friend-of-the-court briefs arguing that the Arizona decision should be reversed. While our brief did argue that the Arizona court badly misconstrued the ADA, we also tried to speak from the perspective of people with hearing loss, and explain why captions are so important to us. 

The excellent brief from the Arizona Attorney General's office laid out the legal arguments, and those arguments were further fleshed out in friend-of-the-court briefs from the Alexander Graham Bell Association for the Deaf and Hard of Hearing, the National Association of the Deaf, and the national Disability Rights Network.

The defendant movie theaters and their friend-of-the-court allies will file briefs arguing for affirmance of the Arizona decision. Given the stately pace at which the law operates, we don't expect a final decision until 2010 at the earliest.

Although the NInth Circuit will decide what ADA requires of movie theaters, those theaters are also subject to state law, and the Ninth Circuit decision won't affect those obligations. Wash-CAP is considering whether our exceptionally broad Washington State Law Against Discrimination might provide a separate basis for seeking expanded movie captioning in our state.  

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Late last month, football fans with hearing loss scored big in the "other Washington" when a federal judge in Maryland ruled that the federal Americans with Disabilities Act (ADA) requires the Washington Redskins football team to caption all public-address announcements made in the stadium.

This precedent-setting ruling is the first ADA case involving sports stadiums, and the judge recognized its importance, saying, "there are hundreds of stadiums in the United States, and the number of disabled people who desire to enjoy professional sports is constantly increasing as the population grows."

The Redskins had argued that the service they offer to the public is simply the presentation of a football game, and that the information and entertainment delivered over the public-address system was immaterial. The court disagreed. In language that makes us want to stand up and cheer -- even to do a wave -- the judge said,

"Defendants provide more than a football game; they also provide public address announcements, advertisements, music, and other aural information to hearing fans at FedExField. Presumably Defendants provide this aural information to hearing fans for a reason. This aural information is a good, service, facility, privilege, advantage, or accommodation. Without some form of auxiliary aid or service, plaintiffs would not have equal access to this information. On the face of the statute, the Court believes and concludes that Title III of the ADA requires Defendants to provide deaf and hard of hearing fans equal access to the aural information broadcast over the stadium bowl public address system at FedExField, which includes music with lyrics, play information, advertisements, referee calls, safety/emergency information, and other announcements."

Based on the persuasive power of that decision, and because Washington State law is even more specifically protective of people with hearing loss than is federal law, the Washington State Communication Access Project (Wash-CAP) has sent letters to the Seattle Mariners and Safeco Field and to the Seattle Seahawks at Qwest Field asking them to institute captioning beginning no later than the 2009 seasons.

Those letters continue Wash-CAP's campaign to make Washington's public places accessible to those of us with hearing loss. We are working in 2008 to make live theater accessible. To date, the Paramount and Fifth Avenue Theatres in Seattle have agreed to offer captioned performances -- Paramount is doing so already and Fifth Avenue will begin doing so in 2009. We have begun dialogues with Seattle Rep, Intiman Theatre and Seattle Arts and Lectures. We are also engaged in what we hope will be productive discussions with Washington State Ferries that will lead to captioning the announcements made aboard WSF vessels and at WSF terminals.

We invite anyone interested in making Washington's public places more accessible to those with hearing loss to join Wash-CAP. Membership is free for the asking; simply send an email to john@wash-cap.com with the word "membership" in the subject line. Wash-CAP will then keep you posted on our efforts to expand access for those of us with hearing loss.   

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We received the 'official' word today from Paramount that the captioned performance of Phantom of the Opera will take place Wednesday, Oct. 1, and that the captioned performance of the recent Tony-winning sensation Spring Awakening will be on Sunday, Oct. 19. Special ticket prices will be offered for both performances.
 
I've attached the press release from Paramount announcing plans to caption their full season of Broadway offerings. You will note that Wash-CAP isn't mentioned, but that's fine -- if we get the results, we'll happily let the folks who are doing as we ask take the credit.
 
Here are the links we can use to purchase our tickets for the two shows.
 
https://purchase.theparamount.com/accessible/phantom.asp
https://purchase.theparamount.com/accessible/springawakening.asp
 
We hope to see everyone there Wednesday and again on the 19th -- and tell all your friends as well. The best way to ensure the future of captioned theater in Seattle is to patronize the performances.
 
 

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Seattle's Paramount Theatre has agreed to expand its open-captioned performances to include its entire lineup of Broadway shows.

The captioned performance of Phantom of the Opera will take place on Wednesday, Oct. 1. The captioned performance of Spring Awakening will be Sunday evening, Oct. 19.

Paramount has not yet furnished us with information about ticket prices, or about the best way to order tickets. However, because it has posted the dates for the captioned performances, we want to let the hearing loss population of Washington know in time to make their plans. We will post another announcement immediately when we learn more details.

After considerable discussion with the Washington State Communication Access Project (Wash-CAP), Paramount offered what we believe to be the first open-captioned theater performance in Washington on August 10, when it offered a captioned performance of A Chorus Line.

The captions were prepared in advance, then displayed on a portable readerboard in synch with the performance. The captions were principally visible from the seats at the orchestra level on the right of the stage. Paramount reserved a block of seats for those who specifically requested seats where the captions would be visible, and over 50 people specifically asked for those seats.

Like Chorus Line, Phanton is a familiar part of the Broadway canon. Paramount's presentation of a captioned performance will make it accessible perhaps for the first time to those of us with hearing loss. Spring Awakening is a new production -- a rock-era reworking of an early 20th Century German drama about coming of age in a repressive society. It was a breakout hit on Broadway last year, and swept the Tony Awards.

We're hoping the audience for captioned theater continues to build. As one of the patrons at Chorus Line put it, "for the first time, when my family goes out for dinner after the show, I can be part of the conversation about the play." That statement reflects Wash-CAP's mission of enriching the lives not only of those of us with hearing loss, but of our families and loved ones, by enabling us to participate in the hearing world. 

 

 

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After initially pleading poverty, and after Wash-CAP filed a court action, Seattle's 5th Avenue Theatre has now agreed tentatively that it will offer captioned performances beginning in the 2009-2010 season.

5th Avenue, which chiefly offers Broadway-type musicals, had said on several occasions that captioning would constitute an "undue burden," and was therefore not required under either state or federal law. That answer was unacceptable to us in light of the fact that 5th Avenue's annual budget is over $19 million, and 5th Avenue said captioning one performance of each of its seven seasonal productions would cost "almost" $14,000. Our view was that if spending that amounts to less than one-tenth of one percent of the annual budget is an "undue" burden, then captioning would never be warranted.

After we filed suit, though, 5th Avenue said it would offer captioned performances (at least one per production) starting in 2009. While we couldn't understand exactly why the theater couldn't begin offering captions immediately, the practical reality was that our trial date wasn't until January of 2010, so 5th Avenue was offering us more than we could get in court. That being the case, we agreed in concept, believing that an imperfect compromise made more sense than a "perfect" trial.

There are still some details to be negotiated, but the attorneys for 5th Avenue have indicated that they don't believe those details will be insurmountable.

Before suit was filed, 5th Avenue had agreed to provide scripts in lighted binders, which will let those with hearing loss read along with the performance. While we thought that was a significantly less useful accomodation than real-time captioning, it is better than nothing. We have asked 5th Avenue to continue offering the lighted scripts, giving hearing-impaired patrons the option of either attending the designated captioned performance(s), or attending a different performance using the lighted scripts. We believe that combination will make 5th Avenue one of the more accessible theaters in the country for people with hearing loss.

Wash-CAP continues its focus on live theaters in Washington. We are continuing to work with The Paramount Theatre and with the various venues at Seattle Centre, where captioned performances have been offered in the past at our request. We will update this website as future captioned performances are confirmed.

 

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Captioned theater made its Washington State debut Sunday evening, Aug. 10, when Seattle's Paramount Theatre presented a captioned version of A Chorus Line.

The captions, provided and operated by the Caption Coalition (c2net) of Boston, were displayed on a portable message board set up in front of the stage in synch with the performance. David Chu, founder and CEO of c2net, was on hand to personally oversee the preparation and display of the captions. Paramount Theatre set aside a generous block of 80 tickets in the right-orchestra section of the theater, from where the captions were clearly visible.

Despite less than a month's notice, summer vacations and little public advertising (other than what we were able to do on this website and through Washington's hearing-loss organizations), we had over 50 people request seats in the caption area. Paramount Theatre manager Mason Sherry said afterwards that he thought the performance went well, and seemed optimistic about future captioned performances.

The news from Seattle's other major theater, though, has not been good. 5th Avenue Theatre, which bills itself as Seattle's largest theatrical employer, has declined to provide captioned performances, claiming that doing so would constitute an "undue burden." 5th Avenue said that captioning one performance of each of the seven productions it presents in any one season would cost $14,000, and it claims that it can't make room in an annual budget of some $19 million to provide for captioning.

If captioning were declared to be an "undue burden," 5th Avenue would not be required to provide it. However, in order to claim that providing an accommodation like captioning constitutes an undue burden, the facility must show that it can't reduce expenses, can't expect a revenue increase from the expected new audience, can't raise enough revenue by increasing admission charges to everyone, and can't find a sponsor.

Because 5th Avenue did not provide any information to substantiate its claim that captioning would constitute an undue burden, the Washington State Communication Access Project (Wash-CAP) filed suit last week in state court in Seattle. Our complaint did not ask for money damages, but asked that 5th Avenue provide captioned performances like the performance provided by Paramount. Trial is not scheduled to occur until January of 2010, but we hope to work out a settlement with 5th Avenue well before that date.

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We've been in constant touch with Seattle's Paramount Theatre representatives over the last 24 hours. We're happy to report that what was yesterday a pretty chaotic situation (which chaos was responsible for yesterday's semi-snarky post) has now been clarified, and it now appears that captioned live theater will indeed be available to Seattle audiences.

Paramount is setting aside 40 tickets for the captioned performance of A Chorus Line on Aug. 10 at 6:30 p.m. Tickets are available in that block at a discounted price of $38.

To get those tickets, call the Paramount box office at 206-467-5510 and state that you want tickets in the caption section. You can also use the Ticketmaster TTY line, 800-725-6244. Given the brief time between now and the performance, it hasn't been possible to arrange for on-line purchases of these tickets with Ticketron.

Anyone who pulled the trigger yesterday based on the information that was then available (including me) and bought tickets outside the caption section can exchange them by mailing the physical tickets back to Paramount, and explaining that they were purchased outside the caption section before learning about the block-seating arrangement..

Like many theaters, Paramount does have assistive listening devices (ALDs), and does offer sign-language interpreted performances. Unitl now, though, they have offered nothing for those of us who don't hear well enough to follow dramatic dialogue or sung lyrics even with the ALDs, but who don't use sign language. We've found that there is relatively little awareness that people in that hearing "gap" exist as a distinct group with distinct requirements which are very different from the needs of the culturally deaf, who use sign language.

We're hoping for a great turnout, and that this will be the first of many captioned-theater experiences in Seattle.

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After considerable prodding and a certain amount of nail-biting on our part, it appears that captioned theater will indeed make a Seattle debut when the Paramount Theatre offers an open-captioned performance of A Chorus Line on Sunday, Aug. 10, at 6:30 p.m.

The captions will be visible from the ground floor orchestra-right section. Here's a link to purchase tickets for that particular performance. (THIS IS NO LONGER OPERATIVE -- SEE SUBSEQUENT POST).

Since this is the debut of captioning, we can excuse some "opening night jitters." Nevertheless, this hasn't gone exactly smoothly. Paramount evidently didn't commit to the captioning until last week, and didn't post information on its website until today (July 16). It isn't clear whether Paramount has set aside a block of tickets in areas where the captions will be most visible, there is no special link on the website that lets us purchase those tickets, and there does not appear to be any price for the tickets except the normal (hefty) price for orchestra-section seats. So there is still a long ways to go before those who require captioning are treated on a par with folks who need an ASL-interpreted performance.

The best way to ensure that we have more captioned theater is to attend.  

One of the objectives of the Washington State Communication Access Project (Wash-CAP) is to make live theater performances accessible throughout Washington to those who are hard of hearing or deaf, and particularly for the vastly under-served population that doesn't use sign language. This is one small step, but it is in the right direction.

 

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The Washington Communication Access Project (Wash-CAP) filed suit today in state court in Kitsap County, Washington, asking for an order requiring Washington State Ferries to display the text of messages given aboard the system's vessels and at its terminals.

Our complaint notes that WSF operates the nation's largest ferry system, carrying 26 million passengers annually, and that it routinely makes public-address announcements that convey a broad array of information to its patrons. Those announcements, though, are unavailable to deaf and Hard of Hearing passengers.

The local press picked up on the lawsuit. It was the lead story in the Kitsap Sun on Tuesday, July 8, (complete with snarky but anonymous reader comments) and was in the Bainbridge Island Review on Wednesay, July 9.

I had carried on correspondence with WSF for several months before filing the suit. While WSF officials initially appeared responsive, saying at least that they acknowledged that the present system is problematic, they were very vague about any remedies. When pressed, they said that their systems aren't designed to display information broadcast over the PA system, but that they would investigate ways to contact crew members and request help.

At best, then, WSF was offering the kind of dependency that the D.C. Circuit recently rejected in the landmark case involving paper money and blind users. (And did you catch the absolutely lovely Associated Press story about the attorney who brought that suit?) Even then, I was skeptical, because WSF explicitly states that its crew members will not assist mobility-impaired passengers -- the only "accommodation" WSF will make to such passengers is to allow an attendant to ride free.

Wash-CAP felt a need to move relatively quickly against WSF because the ferry system is currently undertaking an in-depth review of its operational and capital needs. Wash-CAP wants to make sure that both the system and the State Legislature take the needs of the hearing-loss community into account as they make plans for the future.   

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A federal judge in Arizona has just come out with an absolutely awful decision about movie captioning. The case was brought by the Arizona attorney general's office, which asked that movie exhibitors provide captioning to make movies accessible to people with little or no hearing, and narrative descriptions to make movies accessible to people with little or no vision.

The court ruled that the Americans With Disabilities Act (ADA) requires neither captioning nor narrative descriptions. Worse than the result was the reasoning. The opinion states that converting dialog into captions or visual material into narrative would fundamentally alter the nature of movies.

Since the ADA does not require public facilities to fundamentally alter the nature of their services, this ruling would mean that far from needing to expand their offerings of captioned movies, theaters may in fact eliminate the limited offerings of captions they currently provide.

Because of the important place that movies occupy in our culture, expanding the availability of either open-captioned movies (where captions are visible from throughout the theater) or close-captioned movies (where captions are displayed only to patrons requesting them) has been a fundamental goal of the hearing-loss community.

The ADA itself has been interpreted as not requiring that all movies be open-captioned. Nevertheless, persuasion and litigation has produced mixed results -- limited availability of both open- and closed-captioned movies at a few theaters in a few locations. The trend in Washington, where litigation has been contemplated but not filed, has been positive but frustratingly slow. A few theaters offer close-captioned showings of selected films, while other theaters offer intermittent open-captioned showings of selected films. Similarly, a few theaters are offering narrated descriptions of selected films.

The Arizona decision is a giant step backwards. By declaring the conversion off aural material into text (or vice versa) to be a fundamental alteration and not required under ADA, the court is saying that no matter how easily or inexpensive that conversion might be, it is never required under federal law. Worse yet, nothing in the opinion is limited to movies -- the reasoning would also rule out captioning of live-theater presentations, lectures and so forth. We might be entitled to devices that will amplify the sound, but not to anything else.

The decision is being appealed to the Ninth Circuit Court of Appeals, which includes Washington, meaning that the rule of law that comes out of the case will apply here. A number of national advocacy organizations that represent the interests of both hearing-loss and  vision-loss constituencies are planning to file legal briefs urging that the decision be overturned. Wash-CAP is considering filing a brief pointing out the impact this decision could have in the State of Washington.  

Courts make bad decisions every day that we figure out how to live with. Once in a while, though, courts make decisions that are so unbelievably bad that you shake your head and say, "How could this happen?" This is one of those cases. This is also why we have appeals courts. Nothing is ever certain in the legal world, but this decision is so far off base that I have a relatively high degree of confidence that it will be overturned on appeal.

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Seattle's huge Paramount Theatre will offer a captioned performance of A Chorus Line in August of this year. That's a step in the right direction, even though it may be small and somewhat half-hearted.

When we get the exact date, we'll post that information on this site, and prod Paramount to post it on its website as well. Nothing will do more to spread the availability of captioning than a good turnout from the hearing-loss community.

Paramount's offer came in response to correspondence I have been conducting over the last several months with Paramount and with other Seattle theaters. I've been trying to make then aware of the unique needs of those of us in the hearing-loss community who do not use sign language, and especially those of us non-signers whose hearing loss is such that Assistive Listening Devices don't let us fully understand dialog and song lyrics.

I've referred to this group as the Significantly Hard of Hearing or SHOH, and I define that group specifically as those who don't gain full enjoyment of a performace through ALDs, but who do not sign, and therefore derive no benefit from ASL-interpreted performances. I've said that the SHOH require captioning in order to enjoy a theatrical performance.

The news from Paramount is not all good. Paramount says that it will seek feedback on the captioned performance from "the deaf and SHOH community." Paramount still makes the basic mistake of looking at us as one unified community. While we may have similar interests and similar sensory challenges, the accommodations we require are very different.

As I have pointed out to Paramount, asking those groups what they want is a waste of time. I'm absolutely certain that when you ask the culturally Deaf what accommodations they need, the answer will be, "ASL-interpreted performances," and if you ask the SHOH, the answer will be "captions." Just as it makes little sense to ask the SHOH to comment on the quality of an ASL-interpreted performance, it also makes little sense to ask the Deaf about the quality or adequacy of captions.

Ever the optimist, I'm hopeful that Paramount's response comes from naivete rather than from a deliberate effort to pit to groups against each other. In any event, the offer of a trial captioned performance is a step in the right direction, even if it might be a small and half-hearted step.

Rather than continuing to advocate as an individual for access to public facilities, my future work in this area will be undertaken in cooperation with the Washington State Communication Access Project, or Wash-CAP. I invite you to learn more about Wash-CAP, and join our efforts to open Washington's public places to those of us with hearing loss.

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The hearing-loss community got a big courtroom assist from the vision-loss community earlier this month.

In a case that made national headlines, the District of Columbia Circuit Court of Appeals declared that U.S. paper money discriminates against the visually impaired, because there is no way other than through sight to identify the denominations of the bills. Pointing out that virtually every other country makes currency where the denominations can be separately identified by touch, the court declared that the Treasury Department had failed to demonstrate why it couldn’t do likewise.

The government – and indeed, one blind-advocacy organization – argued that this was a “no-harm, no-foul” situation, because blind folks could reliably depend on the kindness of strangers to identify the denomination of bills, and the complaining parties hadn’t demonstrated any actual harm. The court rejected that argument, noting that a prime purpose of disability law is to promote the independence of people with physical or sensory challenges -- in other words, to eliminate the need to rely on others.

Although that case was brought under the federal Rehabilitation Act, it has broad and very helpful implications for Wash-CAP’s efforts to expand access for those of us with hearing loss. The court declared that once plaintiffs showed that many other nations produced bills distinguishable by feel, the burden then shifted to the U.S. Treasury to demonstrate why it couldn’t do likewise. That is exactly the argument Wash-CAP is making to the Paramount and 5th Avenue Theatres in Seattle in requesting captioned performances – theaters in other cities do it, so why can’t you?

I worry about whether this case will hold up on appeal. It is solidly reasoned, in my view, but currency redesign is such a high-profile issue that the U.S. Supreme Court may be inclined to review the case, and the Supremes – especially Justices Scalia and Thomas – have been overtly hostile to disability claims. But the DC Circuit is an enormously influential court, so if the decision isn’t upset – or, if it is upset only on a procedural technicality, such as the technicality that provoked a dissent – this will become essentially the disability-law case that we will all cite all the time.

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PUBLIC FACILITIES: ADA requires that every "public facility" furnish aids and services that will enable us to fully enjoy the services provided. "Public facility" is a broad term that encompasses virtually every place we might patronize, including places like hospitals, doctors' and lawyer' offices, stores, theaters and so forth. While public facilities do not have to give primary consideration to our individual requests, they do have to accommodate us in the most integrated setting possible.

Again, the facility need not provide aids and services that would constitute an undue burden, and again, that is determined in reference to the enterprise as a whole. For example, a doctor cannot refuse to provide a sign-language interpeter for a deaf patient simply because the interpreter costs more than the amount charged to the patient -- the question is whether the doctor's entire practice is able to absorb that cost. Nor can the facility charge more to patrons who request aids and services.

There are some significant exceptions. Any entity operated by a religious organization is exempt from the public-facility requirement, even if the entity serves only a secular purpose. (Although they are not covered by the ADA, many churches have been among the leaders in providing aids and services). Bona fide private clubs are also exempt, but there are fairly stringent tests to determine which private organizations can claim this exemption. Organizations that require a membership fee but are open to all would seldom qualify, and if a private club rents its facilities to the public, at least some of its activities may be covered by ADA.

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GOVERNMENT ENTITIES. We're all entitled to participate in the civic life of our city, state and nation, and we're entitled to enjoy the benefits provided by the government. So in most instances, any facility or service operated by a state or local government must offer aids and services sufficient to ensure that communication with us is as effective as communication with those whose hearing is undiminished. In determining what aids and services to offer, public entities must give "primary consideration" to our preferences.

The most significant national case dealing with the duties of public entities towards those with hearing loss comes from Kitsap County. A man asked that his divorce trial be captioned. Instead, he was offered listening devices, a small and acoustically friendly courtroom, and the opportunity to move around so that he could speech-read the testifying witnesses. The Ninth Circuit Court of Appeal ruled those aids and services were insufficient. It reminded the county of its obligation to give "primary consideration" to the requests of the individual, and warned abainst furnishing aids and services based on "stereotypes," such as the belief that assistive listening devices are adequate for all individuals with a hearing loss, or that all of us benefit from sign-language interpretation.

In the wake of that decision, the Washington Supreme Court adopted General Rule 33, which applies to all non-federal courts in Washington. It provides that any participant in a court proceeding is entitled to the aids and services they request if they give two weeks' notice unless it would be impossible to provide the service an the date scheduled for the proceeding, and it would be impossible to continue the proceeding until the aids and services became available.

While GR 33 takes care of the access problem for parties, witnesses, jurors and attorneys, it leaves open the question of whether aids and services have to be provided for spectators. My own view is that ADA essentially requires equal treatment where possible, and that if a court proceeding is open to hearing spectators, then aids and services must be provided to make the proceeding equally open to those with hearing losses.

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Television captioning has been a godsend for those of us with significant hearing losses. The captioning makes television instantly accessible, and means that for all its faults, television is something we can fully enjoy ourselves, and is an experience we can share with our spouses and families.

Once in a while, though, it would be nice to do something different, like a play. We go along, but when we can't hear what's going on, it's not all that great for us ... and it isn't so great for the people we're with, either.

It doesn't have to be like this. Spoken dialog or sung lyrics can be reduced to text, letting us "hear" along with the rest of the audience. What's said or sung can be captioned in real time or in advance, and the captions displayed to some or all of the audience. For theaters that can't afford those elaborate electronic devices, hard-of-hearing patrons could be provided with a script and a penlight at virtually no cost.

There is no reason why every theater can't make every performance accessible to those with hearing loss. Continue reading this post to find out how we're progressing on this issue.

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Wash-CAP

The Washington State Communication Access Project

Enriching the World
For Those With Hearing Loss

We’ve lost some or all of our hearing. But that shouldn’t mean losing our social lives or our independence. We should be able to enjoy plays, lectures and movies, ride the ferry, catch a plane, attend a meeting, take a class or go to a restaurant with the same level of ease and enjoyment as those with full hearing.

With the cooperation of others, our loss of hearing need not mean a loss in the quality of our lives. All that is necessary is to reduce the spoken word to written form.

The good news is that the law requires that kind of cooperation, and the technology exists to make it possible. The bad news is that in reality, the cooperation that we need and that the law demands is the exception rather than the rule.

Wash-CAP intends to change that.

With your help, Wash-CAP can put us back into the world. Please join our effort.

www.wash-cap.com
www.hearinglosslaw.com

TO LEARN MORE ABOUT WASH-CAP, PLEASE READ THE REST OF THIS POST

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