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

In a significant expansion of movie access, the Landmark and AMC theater chains have agreed to add closed-captioning capacity to most if not all of their theaters in conjunction with their conversion to digital projection.

Landmark's commitment came in a personal meeting last week with Ted Mundorff, the chain's Chief Executive Officer. Mundorff said that the cost-sharing formula that the movie studios have offered to the major theater chains like Regal and AMC does not work with Landmark's emphasis on independent and art films, which means that digital conversion may take longer and may not include all of Landmark's theaters. He said that Landmark anticipates having its digital conversion plans finalized by the middle of 2012, and that when conversions are undertaken, Landmark will add closed-captioning capabilities. Closed captioning displays the captions on individual viewing devices, thereby not altering the movie-going experience of other patrons.

Although Landmark operates far fewer theaters than Regal, AMC or Cinemark, its commitment to captioning may in some respects be more significant than the commitments of those larger chains. Landmark theaters focus on showing movies that appeal to an adult audience in the best sense of the word, and that audience includes the older population groups that have the greatest prevalence of hearing loss. Thankfully, Mundorff agreed that making films accessible to people with hearing loss may benefit Landmark significantly more than it would benefit the typical suburban multiplexes that cater more to younger movie-goers.

Landmark plans to use Sony projector/servers in those theaters that it converts to digital projection. It will experiment with caption-display devices. It has installed the CaptiView modules at its theaters in Los Angeles and Baltimore, but is having some difficulty working the bugs out of the equipment that supposedly makes CaptiView compatible with Sony servers. Mundorff said Landmark is very interested in obtaining and testing the Sony eyeware that Regal is using on a trial basis in Seattle.

As to those theaters that Landmark will not convert to digital projection, Mundorff said he would investigate the feasiblity of installing Rear Windows Captioning devices. 

Mundorff also acknowledged that Landmark may be in a position to encourage more of the independent and art-house film-makers to include captioning as part of their package, and Mundorff committed to asking for captioning. Captions are done under contract with the studios by an operational arm of WGBH public television, and are furnished to the theaters without charge. According to WGBH, the one-time cost of captioning a typical movie is less than $2,000.

In Washington, Landmark owns the Egyptian, Harvard Exit, Guild 45th, Metro, Varsity and Crest theaters, all in Seattle. In California, Landmark owns the Landmar, NuArt and Regent in Los Angeles, the Hillcrest, Ken and La Jolla Village in San Diego, the Embarcadero, Bridge, Lumiere, Opera Plaza, Aquarius and Guild in San Francisco and the Peninsula, and the Albany Twin, California, Piedmont and Shattuck in the East Bay.  

AMC's formal announcement of a nationwide commitment to captioning came in the form of a corporate press release dated Dec. 20. That press release was anticlimatic. AMC orally made that commitment in an Aug. 10 meeting involving representatives of the Association of Late Deafened Adults (ALDA), myself and attorneys from the public-interest firm of Disability Rights Advocates in Berkeley. The meeting with AMC was a follow-up to the resolution of a lawsuit ALDA filed against Cinemark in California. In an amicable resolution of that action, Cinemark, America's third-largest movie-theater owner, committed to closed-captioning of all its first-run theaters in California upon conversion to digital projection, then made that commitment national in scope. Regal, America's largest theater owner, made a similar commitment.

AMC initially resisted any commitment to full captioning. In July, though, the King County Superior Court ruled in a lawsuit brought by the Washington State Communication Access Project (Wash-CAP) that AMC can afford to provide the necessary equipment to show all caption-equipped movies in captioned form, and ordered AMC to do so within 90 days of conversion to digital projection. Although it is appealing that order, AMC made a verbal commitment to full captioning shortly after that decision.

Although it has been a long time coming, I believe we are now moving towards a time when those of us with significant hearing loss will be able to enjoy any movie, any time, with our friends and families.

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Washington's Law against Discrimination requires movie theaters to install equipment to show closed captions, according to a ruling issued today by a King County Superior Court judge. AMC, America's second-largest theater chain, will therefore be required to install captioning equipment once it converts its theaters to digital projection.

The ruling by Judge Regina Cahan came in a lawsuit that the Washington State Communication Access Project (Wash-CAP) filed in 2009 against the corporate theater owners doing business in King County, which includes Seattle and the Bellevue area. I represented Wash-CAP in the case.

Our lawsuit was filed under Washington state law, not under the Americans with Disabilities Act (ADA). Our state law and regulations require businesses like movie theaters to undertake actions "reasonably possible in the circumstances" to make their goods and services "accessible," and further define "accessible" as "usable or understandable."

Despite that clear language, the theater defendants claimed that they had no legal obligation to provide captioning. Judge Cahan rejected that argument in 2010. She then scheduled a trial limited to the question of what each of the defendants could reasonably be expected to do. Prior to the scheduled May trial date, two of the major corporate defendants -- Regal and Cinemark -- essentially surrendered, and agreed to equip all of their King County theaters to show closed-captioned movies. Subsequently, they agreed to full captioning on a nationwide basis.

The May trial was submitted based on stipulated facts. AMC would not commit to any specific level of captioning, saying only that it would increase the amount of captioning offered at its Seattle-area theaters. Regal and Cinemark argued that because they had fully equipped all of their theaters, there was no remaining legal controversy, and the case against them should be dismissed. (We had dismissed the three smaller defendants for various reasons).

We argued that even though Regal and Cinemark had done what we asked, the court should still enter a ruling to the effect that all theaters have legal obligations to be accessible to people with hearing loss. That was important to us because that ruling becomes a precedent that may be useful in other parts of the state, and because it would give us the ability to ensure that those theaters both live up to their commitments and perhaps incorporate future improvements in captioning technology.

With respect to AMC, we presented financial information showing that AMC can readily afford the cost of equipping all of its theaters to show captions once they convert their theaters to digital projection. Moreover, she noted that because Regal and Cinemark are providing full captioning, AMC had to demonstrate why it couldn't do the same, but that AMC had not provided any evidence suggesting that it was not financially able to do so. Therefore, the judge ruled that within 90 days of converting to digital projection, AMC must equip enough theater auditoriums with captioning equipment to enable it so show in captioned form all movies that come with captions.

The judge made one other very important and welcome observation. Defendants had submitted evidence to the effect that very few people were using the captioning equipment that Cinemark has installed at its theater complex in Federal Way. That does not matter, the judge said. "The issue is not how many patrons have used the technology provided, but rather, whether an individual with a sensory disability has the legal right to have access to the movies when technology is now present to allow that access without impeding on other patron's experience and it is feasible for the defendant to provide it."

We hope that in light of this ruling, AMC will join Regal and Cinemark in making movies fully accessible to individuals with hearing loss throughout the country. 

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Regal and CInemark, the nation's first and third largest theater chains respectively, have reaffirmed their commitment to full movie captioning, and have stated that the capability will be in place by the end of 2012.

Regal's announcement came in the form of a corporate press release dated May 4. That release appears to clarify what had previously been mixed signals. While Regal officials filed a declaration in our Washington lawsuit saying that Regal planned full captioning, the official corporate position articulated in official filings with the federal Securities and Exchange Commission had been that Regal was "considering its options." Evidently, that consideration led to a formal decision to provide full accessibility for patrons with hearing loss.

The announcement appears to apply to all Regal theaters, including those that Regal operates under the Edwards or United Artist nameplates.

The press release also noted that Regal will partner with Captionfish, the website that lists captioned and subtitled movies around the country, and which is becoming the go-to site for captioning information.

Regal is going to employ closed captioning, in which the captions are visible only to individuals that obtain and use a personal viewing device. In Seattle, the first market where Regal has completed installation of captioning equipment, Regal is testing special eyewear -- glasses that project the captions on the lens itself. Although somewhat ungainly lookling, the glasses have received very positive reviews from Wash-CAP members who have used them.

The closed captioning will substitute for the open-caption showings that Regal has offered at a few locations, and which some users prefer. The trade-off, though, is that instead of only a few locations and a few often-inconvenient show-times, the closed captioning will be available every day for all showings of all movies for which captions have been prepared by the studios.

Cinemark has also committed to full closed captioning. While Cinemark had already equipped all of the auditoriums at its Federal Way and Olympia multiplexes in Washington to show closed-captioned movies, the nationwide commitment came in the form of a press release issued last week. The press release announced the amicable resolution of a lawsuit filed in California by the Association of Late Deafened Adults and two individuals. I represented the plaintiffs in that action, in partnership with Disability Rights Advocates, a public-interest law firm in Berekely, California.

The captioning capability will be introduced as part of Regal and Cinemark's conversion to digital projection, in which traditional film ceases to exist, and the movies are reduced to digital data, transmitted either over the internet or on computer discs to the individual theaters. Captions can be included in that digital package. The captions are transmitted wirelessly from the projector/servers in each auditorium to the viewing devices.

Among the major theater chains, the holdout now is AMC, which has not yet committed to any particular amount of captioning. We think that will be a difficult position to maintain, especially in light of the commitments made by Regal and Cinemark. The first test of the legal soundness of AMC's position will come later this month, when we have final arguments in the lawsuit Wash-CAP filed against the major corporate theater chains in Seattle.

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Regal Cinemas, America's largest movie-theater chain, has made its first-run movie theaters fully accessible to people with hearing loss. Regal has equipped all auditoriums at its eight first-run King County multiplexes with the equipment necessary to show closed-captioned movies, and is now showing every movie for which captions have been prepared in captioned form.

By doing so, Regal has made Seattle America's most accessible city for movie-goers with a hearing loss such that they cannot understand the movie soundtracks even with the volume-enhancing assistive-listening devices that the theaters provide.

Unlike open captions, where the captions are superimposed on the movie print and visible to the entire audience, closed captions require patrons wanting the captions to pick up and use an individual viewing device provided by the theater.

Regal is experimenting with eyewear, special glasses that display the captions, which are sent to the glasses wirelessly. Wash-CAP members who have used the glasses have been very favorably impressed. They report that the viewer can match the depth of the captions to the viewer's place in the auditorium -- close, far or medium -- and at least for some movies can select a language other than English.

The glasses would seem to provide most of the advantages of open captioning, but because the captions do not alter the movie-going experience of other patrons, the captions are available for all showings. Regal had offered open-captioned movies in one auditorium at four of its King County multiplexes, but would only activate the captions for certain showings, which were generally at off-peak times. True, it's a minor hassle to pick up and return the glasses, and they are not fashion statements, but it's no bigger hassle than our hearing aids and CIs, which also open the world of sound to us.

Regal is taking the same approach to movie accessibility as Cinemark, the nation's third largest chain. Both have completed converting their King County theaters to digital projection, and after so doing, have provided full captioning capability. In so doing, those theaters have done everything Wash-CAP asked in a suit we filed in 2009 in King County Superior Court.

Regal and Cinemark have both stated publicly that they intend to make all of their first-run theaters across the country capable of showing captioned films. Cinemark has so equipped its only other Washington multiplex. Regal has not fully equipped its Washington theaters outside of King County, nor, to our knowledge, has it fully equipped many (if any) of its theaters outside of Washington, but we expect those companies will do so in the relatively near future.

While Regal and Cinemark have done what they can, that does not mean, unfortunately, that we can see every movie being shown at their theaters. For reasons we cannot understand, some studios still are not captioning all of their movies, even though the cost to do so runs as little as $2,000. Nor are 3-D movies captioned, even though the 2-D versions of the same movie may be. So the challenge now will be to persuade those reluctant studios to provide captions, especially with the likely proliferation of theaters equipped to use them.

Unfortunately, not every theater chain is following the lead of Regal and Cinemark. AMC theaters, America's second-largest chain, continues to take the position that it will equip some but not all of its theaters to show captions. We are currently in the process of addressing that question in our Seattle lawsuit, and would hope for a favorable ruling, a change in AMC's corporate position, or perhaps both.

We've waited a long time for our dream of meaningful access to movies to become a reality, but at least for Seattle audiences, it appears that the dream has come true. 

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Regal Cinemas, the nation's largest movie-theater chain, has committed that as it converts its first-run movie theaters to digital projection, it will provide the necessary equipment to display closed captions for all showings of all movies for which the studios have provided captions. Regal began that process in the greater Seattle area, where it has made all the auditoriums at its Auburn, Thornton Place, Landing and Bella Bottega complexes caption-capable.

As of today (Feb. 20), Regal is showing seven captioned movies at the Bella Bottega complex in Redmond, seven captioned movies at the Landing complex in Renton, eight at its complex in Auburn and ten at its Thornton Place complex in north Seattle.

The captioning pledge came in the form of a declaration from Regal chief operating officer Randy Smith submitted as part of Wash-CAP's ongoing litigation in King County, Washington, against the corporate theater owners that operate in the Seattle area. The case had been scheduled to go to trial in March of this year. Regal sought to avoid the trial by making a commitment to provide captioning.

Notably, Smith's statement did not just apply to the Regal theaters that are involved in the Seattle lawsuit. What he said was that as Regal converts theaters to digital projection, it will provide captioning capabilities, including at its Seattle theaters. The Seattle area appears to be the first location where this commitment has been implemented, at least in part.

Regal has in the past shown open captioned movies at a small number of its theaters. Regal believes that open captions, visible to the entire audience, are distracting and undesirable to hearing patrons. Therefore, it activates the open captioning only for a very few showings, generally at less-than-ideal times.

Closed captions are visible only to patrons who request and use a viewing device. Because closed captioning does not interfere with the movie-going experience of others, the theaters are willing to engage the captions for all showings.

Regal is apparently using a new device to show closed-captioned movies. The viewing device is attached to a gooseneck that fits into the seat cupholder. Unlike the more familiar Rear Windows system where captions are displayed in mirror image on an LED reader-board fixed to the rear wall of the theater and viewed on a reflector, the captions are transmitted wirelessly. This has the advantage of making the system equally usable from every seat in the theater, and it is also not subject to interruption if somebody stands up behind the viewer. The disadvantage,though, is that unlike the transparent Rear Window reflector that can be superimposed on the movie screen, the viewing device is solid. That means it has to be placed below or to the side of the screen, which means the captions and the movie are in different lines of sight, or the viewing device blocks some of the picture, not unlike the captions we seen on television.

Eyewear that displays captions is in the development stage. It is currently not available commercially, but may be developed and marketed in the future, and that may provide a better viewing experience than the devices that are now available.

At present, there is no well-developed technology for showing captions with 3-D movies, so most of the movies without captions at the Regal complexes are 3-D. Captions are provided by the studios, not by the theaters, and while most of the major-studio first-run releases are captioned, some are not, most notably (and ironically), "The King's Speech." So it appears to me that the Regal theaters that have provided full captioning capability are showing closed captions for all the movies that have captions available.

Regal is tying the provision of closed captioning to its program to convert its first-run theaters to digital projection, where film is replaced by digital data packages. Regal has converted all of its first-run theater complexes in King County to digital projection, and evidently plans to add captioning capability to the complexes in Issaquah, Bellevue, Tukwila and downtown Seattle that presently lack it.

Regal is following the same path as Cinemark/Century, the nation's third-largest theater owner, which has equipped all of the auditoriums at its two Washington complexes -- one in Federal Way and one in Olympia -- to show closed-captioned movies. Cinemark has essentially done everything we asked for in the lawsuit, and it appears the Regal will do so as well. We haven't received any specific information that Cinemark plans to equip its theaters in other parts of the country to show captions, but we would be surprised if they don't do that, because it would be difficult to explain how it was economically possible to offer full access in Washington but not possible to do so in other areas.

Lincoln Square in Bellevue has also committed to provide closed captioning in all of its theaters. In the interim, it is showing many of its movies with open captions at selected times.

The holdout new in our Seattle case is AMC, the nation's second-largest theater chain. It is taking the position that it should only be required to do what the federal Department of Justice may direct as part of the ongoing rule-making process. We don't think that is a viable argument. DOJ's proposal to require captioning for only 50% of the movies being shown at a given location has come under withering fire, and DOJ has provided at least some circumstantial indication that it will either jettison that proposal altogether or, at the very least, defer to court interpretations of what it is reasonable to expect each theater chain to do.

I'm aware that many of us with hearing loss would prefer open captioning. Unfortunately, the federal Americans with Disabilities Act and the implementing regulations make it quite clear that private businesses like theaters can choose the kind of accommodation they wish to provide, and the theaters have not been willing to provide open captioning, at least not for every showing. But there does not appear to be any legally viable way to require open captions.

I don't give up hope completely -- we may be able to persuade at least some theaters to voluntarily offer occasional open-captioned showings, perhaps upon request from some number of patrons. But rather than lament the absence of open captioning, I think we should direct our energies to working cooperatively with the theaters on finding the most effective means of showing closed-captioned movies.

The dominoes appear to be falling, and universal access to the movies may be a reality in very short order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A column in this morning's San Jose (Cal.) Mercury News takes another sympathetic look at the lawsuit filed last week in Oakland by the Association of Late Deafened Adults (ALDA) and two individuals against Cinermark theaters.

Author Patty Fisher recounts the frustration people with hearing loss face when trying to go to the movies. Her conclusion: with 36 million Americans having some degree of hearing loss, and that number climbing rapidly, the theaters ought to be doing whatever is required to get people away from their DVD viewers and into the theaters.

Her conclusion mirrors mine. The movie theaters are doing everything possible to create an experience that can't be duplicated at home -- witness the push for 3D movies. Yet they ignore the needs of those of us who are at home with our captioned DVDs by necessity rather than by choice.

My office is representing the California plaintiffs in tandem with Disability Rights Advocates of Berkeley, a public-interest law firm that specializes in precedent-setting litigation to benefit people with disabilities. We are asking the California court to certify the case as a class action.

While America's two largest theater chains, Regal and AMC, show some captioned films, although often at odd hours, Cinemark, the third largest chain, has done little or nothing to make its theaters accessible to people with hearing loss. Cinemark failed to respond to DRA's letter asking for a commitment to provide captioning, and has so far evidently failed to respond to any of the reporters covering the story who have asked for comment.

While the complaint and the stories reference Rear Windows Captioning (RWC), what we are actually seeking is effective means of making aurally delivered information available to those of us with hearing losses -- the definition of "auxiliary aids and services" in the Americans with Disabilities Act. The ADA requires so-called "public accommodations" -- privately owned open to the public -- to furnish auxiliary aids and services where necessary to provide patrons with full and equal enjoyment of their goods and services unless the business can demonstrate the providing such aids and services would fundamentally alter the nature of the business or impose an "undue burden."

The ADA gives public accommodations the right to select from among any effective means of communication, and the theaters are looking at a variety of display devices. The captions are prepared by the Media Access Group at WGBH public television, and distributed free of charge to the theaters. The theaters must only purchase and install the equipment necessary to display the captions. RWC is an existing and viable means of displaying captions, but the theaters may be able to find and install other equipment.

Because closed captioning, where captions are visible only to patrons who request viewing devices, does not significantly interfere with the movie-going experience for others, we do not believe closed captioning can constitute a fundamental alteration. Nor do we think the cost imposes an undue burden.  The quoted cost of $10,000 per theater represents a "worst-case scenario" cost of equipping an individuals theater -- volume discounts on equipment can cut that cost in half. Moreover, the theaters are spending well over ten times that amount to convert to digital display, where computerized data replaces celluloid film. And when those conversions are completed, the cost to provide captioning drops every considerably.

We continue to ask the question Judge Alex Kozinski of the Ninth Circuit Court of Appeals asked of counsel for the Harkins theater chain in a movie-captioning case out of Arizona -- why are the theaters fighting about this? In that case, the Ninth Circuit ruled in April in that case that ADA does indeed require theaters to offer auxiliary aids and services like closed captioning, yet Cinemark has so far done nothing in the way of either providing those services or even making a commitment to do so. We would hope that rather than continue to fight the captioning battle in many different areas of the country, the theaters would just do the right thing.

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 Seattle Arts and Lectures has announced that it will caption the presentations of seven authors this year, including an expert on affordable health care, two Pulitzer-Prize winning literary authors and a well-known children's author who will appear in his adult incarnation.

The captioned offerings begin Tuesday, Oct. 5, at 7:30 p.m. in Seattle's Benaroya Hall with T.R. Reid, a former journalist and radio commentator who will talk about the dysfunctional health care system in the United States, where we spend far more money on health care than any other nation but rank a dismal 37th in effectiveness. Reid has spent years examining the health-care systems of other nations that produce better results for far less money, and will share his insights into what those countries can teach us.

On Tuesday, Oct. 19, the speaker will be Sarah Paretsky, author of the best-selling detective works featuring female protagonist V.I. Warshawsky. A one-time community organizer in Chicago, Paretsky has written extensively about women's rights and social-justice issues.

On Tuesday, Nov. 9, Daniel Handler will appear. While Handler has written a number of literary books and short stories for adults, his best-known writing has been as children's author Lemony Snicket, whose 13-book "Series of Unfortunate Events" has sold more than 50 million copies.

On Wednesday, Dec. 8, Picasso biographer John Richardson will speak. His appearance coincides with an exhibition of Picasso masterpieces at the Seattle Art Museum.

On Monday, Jan. 4 (of 2011), Pulitzer-Prize winner Elizabeth Strout will appear. She was awarded the Pulitzer in 2008 for Olive Kitteridge, a series of interconnected stories set in small-town New England.

Prolific author Joyce Carol Oates will appear Monday, April 18. Oates has published over 50 critically acclaimed novels and dozens of short stories.

The captioned season concludes Tuesday, May 10, with an appearance by Richard Ford, who won a Pulitzer Prize for Independence Day, the middle volume of a trilogy chronicling the fictional life of Frank Bascombe.

The captioned presentations are all in the Mark Taper Auditorium at Benaroya Hall. Because the author discussions and question-and-answer sessions are unscripted, the captioning is done in real time by a highly skilled captioner. The captions are displayed on an LED board visible from throughout the auditorium.

Because the captions are available from all seats, no special area is set aside for patrons who need to see the captions. Tickets are available at their regular price, and may be ordered on line.

This is the second season that SAL has captioned some of its author appearances, an effort it undertook at the request of the Washington State Communication Access Project (Wash-CAP). We hope SAL will be able to expand their captioned offerings in the future to become fully accessible to people with hearing loss.

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Bainbridge Cinemas, a locally owned five-screen complex on Bainbridge Island, Washington, has agreed with the Washington State Communication Access Project (Wash-CAP) to begin showing closed-captioned films on a regular basis this fall.

Bainbridge Cinemas will equip one of its five auditoriums to show captioned films using the Rear Windows Captioning system. 

Once Bainbridge Cinemas installs the necessary equipment, it will rotate its films through that auditorium, so that patrons will be able to see two captioned films per week. This rotation plan should mean that most if not all of the movies that Bainbridge Cinemas shows and for which captions are available will actually be shown in captioned form during the first two or three weeks of a film's release. All showings will be captioned.

The captions are contained on a computer disc furnished at no charge to the theaters. The captioning is actually done by the Media Access Group at WGBH public television in Boston, which developed and patented the Rear WIndows system. Roughly 80% of the first-run movies released by the major studios are captioned.

The Rear Windows system displays the written dialogue in mirror image on an LED board mounted on the rear wall of the theater. Patrons wishing to view the written dialogue pick up a reflector -- a transparent plastic panel attached to a flexible gooseneck on a heavy base that fits into the cupholder. The reflector may be adjusted so that the captions appear to the viewer either below or superimposed on the screen, like subtitles. Because the captions are not visible to other patrons who are watching the screen, they do not interfere with the viewing experience of others. 

The theater will keep track of the number of people who request reflectors and their movie companions. We've devised a formula to estimate how much additional revenue the theater receives from installing the captioning equipment, and have agreed that until the theater has recovered the cost of the equipment and installation, we won't ask them to equip another screen for captioning.

The theater will indicate in all of its advertising and on its marquee which movies will be captioned, so that Bainbridge Island residents who want to see captioned movies can plan accordingly.

Personally, I'm delighted by this arrangement for a number of reasons. First and most obviously, I live on Bainbridge Island, and this means my wife and I can go to movies here rather than travel 30-40 minutes to a theater. On a broader scale, I think we've devised an accessibility formula that might prove workable for other small, independent theaters located in relatively isolated communities -- areas that the big theater chains don't serve. Lastly, I'm delighted and grateful that Bainbridge Cinemas is able to devote its limited resources to providing access rather than to a court battle.

Kany Lavine, Bainbridge Cinemas president, anticipates installing the equipment in time for the holiday movie releases that begin appearing around Thanksgiving. Prior to that time, we'll work with Bainbridge Cinemas to promote Bainbridge Cinemas generally and captioned movies specifically throughout our island community.   

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Wash-CAP won the first round in our movie-captioning case against five corporate defendants when the court ruled that under Washington law, theaters must do what is "reasonably possible" to make their movie soundtracks understandable.

The order from Superior Court Judge Regina Cahan said that the specific steps each theater must take will be decided later at trial. 

Her ruling came on cross-motions from Wash-CAP and the theaters. The theaters argued that nothing in Washington law requires theaters to do anything more than open their doors to people with hearing loss, and treat us exactly the same as everyone else.

Wash-CAP argued that under Washington law, treating us just like everyone else wasn't sufficient. Our state law says that when "same service" -- treating us just like everyone else -- doesn't permit us to fully enjoy a business's services, the business must offer "reasonable accommodation." Our state law defines "reasonable accommodation" as taking those steps "reasonably possible in the circumstances" to make all services "accessible," which in turn is defined as "usable or understandable."

Judge Cahan agreed with us. While she did not specifically endorse captioning, and did not state exactly what any of the theaters must do, she did say the theaters would have to do whatever is "reasonably possible," and she intends to determine at trial exactly what that may be.

Trial is scheduled for March 21, 2011.

In a sense, this ruling is a little anti-climactic, coming as it does on the heels of last week's decision by the Ninth Circuit Court that the Americans with Disabilities Act can requires closed captioning. But for a number of reasons, a decision under our Washington state law will be better for Washington movie-goers than a decision under federal law. 

So now we see what the theaters do. Will they fight to the death in Washington -- not a particularly good venue for them in light of our excellent state law -- or will they fold their tents here and save their legal "firepower" to fight the Ninth Circuit decision?

What I think we can say with considerable assurance is that meaningful access to the movies for people with hearing loss is a whole lot closer to reality today than it was last week.

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 As we predicted and hoped, the Ninth Circuit Court of Appeals ruled today that the Americans with Disabilities Act requires movie theaters to show closed-captioned movies unless doing so would constitute an "undue burden."

The ruling came in a case that the Arizona Attorney General's Office filed against the Harkins theater chain. The federal district court ruled that the ADA does not regulate the content of the goods and services offered by businesses, and that the theaters are in the business of showing non-captioned movies. That case was appealed.

The Ninth Circuit opinion said that while ADA does not generally regulate the content of goods and services, ADA does require businesses to provide "auxiliary aids and services," which are defined as including open and closed captioning. That specific provision applies to movie theaters, and controls over the general rule that ADA does not regulate content.

The court noted that when ADA was passed, a statement of purpose from the House of Representatives stated that ADA does not require theaters to show open-captioned movies. That interpretation has been adopted consistently by the federal Department of Justice, which is empowered to interpret ADA. The court said that while DOJ may change its interpretation, the theaters are entitled to rely on it until it is changed. Therefore, theaters are not required to show open-captioned movies.

The Arizona district court ruled that there was no basis for treating closed-captioned movies any differently. The Ninth Circuit disagreed. It said that open-captioning, in which captions are visible to the entire audience, may fundamentally alter the movie-going experience for others. But closed-captioning displays captions only to people who want to see them. "The difference between open and closed captioning is more than linguistic," the opinion states.

The case now goes back to the Arizona district court, where the theaters will be able to argue that closed captioning poses an "undue burden." Because closed captioning is readily available through the Rear Windows Captioning system, the "undue burden" issue is economic only -- how much can the theaters afford?

The theaters can ask for a rehearing, but because the decision was unanimous and issued very quickly, the judges likely regarded this as pretty much of a "slam-dunk" case, and are very unlikely to grant a rehearing. An appeal to the U.S. Supreme Court is always a possibility, and is somewhat worrisome given that court's general hostility to ADA cases. But the U.S. Supreme Court picks the cases it wants to consider, and the odds are against appealing parties -- only one out of every hundred petitions for review are granted.

Assuming the opinion stands, it will become the law in the Ninth Circuit states of Arizona, California, Nevada, Idaho, Montana, Washington, Oregon, Alaska and Hawaii, and may be persuasive in the rest of the country.

Our Washington case is currently under advisement. We brought that case under Washington law only, because our state law avoided some of the arguments made under ADA. However, the decision can't do anything but help our case.

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Last Friday, we argued important motions in our Washington movie-captioning case in Seattle Superior Court. Judge Regina Cahan listened attentively, indicated that she knew how important this case is, and indicated that she would need to consider the matter further rather than issue an immediate ruling.

Wash-CAP filed a motion for partial summary judgment. We are asking the judge to rule that the defendant movie theaters -- five corporations that operate multi-screen theaters in King County -- must take all reasonably possible steps to make captioned movies available.

Washington state law requires public accommodations like movie theaters to offer "reasonable accommodations" when treating disabled patrons just like everyone else would not yield full enjoyment of the businesses' goods and services. We asserted -- and the judge seemed to agree -- that those of us whose hearing loss is such that we can't follow a movie dialogue even with the volume-boosting assistive-listening devices that theaters don't fully enjoy the movie, meaning the theaters must provide "reasonable accommodations."

"Reasonable accommodations" are defined in Washington law as those steps "reasonably possible in the circumstances" to make a business' services "accessible." "Services" are defined broadly as "everything" the business offers, which we contend includes the movie soundtrack, and "accessible" is defined in state law as "usable or understandable." Since captions make movies understandable, we argued that under Washington law, the theaters are required to display captioned movies to the extent it is "reasonably possible in the circumstances" for them to do so.

In opposing our motion and asking that the case be thrown out entirely, the attorneys for the theaters offered a broad array of arguments. First, they argued that our state disability law does not regulate the content of goods or services that a business offers, and claimed that their "goods and services" are non-captioned movies. While we can never be certain -- a federal court in Arizona essentially bought that argument -- we don't think it will go far here. We pointed out that captions are prepared in advance for most -- not all, but most -- of the first-run movies that these defendants show, and that those captions are made available on CD-ROM discs furnished to the theaters at no charge. So we argued that in fact the theaters actually have captioned movies, but just refuse to install the equipment necessary to display the captions.

Second -- and this is the argument they really pushed -- the theaters argued that any requirement to undertake captioning should be made by the state Human Rights Commission through a process called agency rulemaking. Because of the emphasis the theaters placed on that argument, we filed a supplemental brief on Tuesday. The judge has accepted our brief, and given the theaters until Wednesday, April 28, to respond.

We expect the judge to issue her ruling shortly after she receives the theater response to our supplemental brief -- possibly the first week in May.

Unless the judge throws the case out, we expect the theaters to begin meaningful settlement negotiations with us. Because what is "reasonably possible in the circumstances" has an economic component to it, we won't really know what each of the defendants can reasonably do until we start looking at some of their economic data. But our objective is to develop a firm and binding commitment and specific schedule for making all of the defendants' theaters accessible to people with hearing loss.

Meanwhile in San Francisco, efforts to resolve the captioning case against the Harkins theater chain were unsuccessful, meaning that the Ninth Circuit Court of Appeals will likely go ahead and issue a ruling. That is the case in which the federal trial judge accepted the argument that the theaters' "product" is non-captioned movies. That decision was appealed to the Ninth Circuit.

As reported in prior posts, the appeals court judges ridiculed that argument, although they did not issue a decision. The attorneys for Harkins then asked the court to put a 30-day hold on its deliberations while the parties went to mediation. Fortunately, the mediation was unsuccessful.

The reason that failure of the mediation is fortunate is that if a case settles during the appeal process, the decision of the trial court stays on the books. Our impression from the oral arguments is that the chances of a favorable decision from the Ninth Circuit are high, and we would like to see that process go forward.

While our case in Washington was brought under state law and the Arizona case was decided according to the Americans with Disabilities Act, there may be considerable practical overlap. If theaters across the country are required under ADA to show some captioned movies, their obligation would cease at the point that doing so becomes an "undue burden," which is essentially the flip side of Washington's "reasonably possible in the circumstances." So what we are able to negotiate in Washington State may have some impact on future implementation of an ADA captioning requirement.

And even though our state law is separate and free-standing, a national decision would be of significant practical benefit to us in Washington, because if theaters across the country need to beef up their captioned offerings, there will be far greater demand for the necessary equipment. That could both increase the availability of the equipment and lower the price.

We've got our fingers crossed. 

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Lawyers for the Harkins movie theater chain, which took the position that they have no obligation to patrons with hearing loss other than to open the doors and let us in, are now waving the white flag of surrender. After getting lambasted by the Ninth Circuit Court of Appeal at oral argument, they filed a motion yesterday asking the appeals court to defer issuing a decision in the case while the parties try to reach a settlement.

While it's gratifying to see the opposition acknowledge that their clocks got cleaned by the appeals court, a settlement might not be very good news at all for folks outside of Arizona who want to see captioned movies. That's because if the parties to a lawsuit settle their case, the appeals court will not issue a decision. And without an appeals-court decision, the trial court's opinion remains "on the books" and can still be cited by theater chains other than Harkins who want to claim that they don't have any captioning obligations.

To briefly review, the Arizona Attorney General and the Arizona Center for Disability Law filed suit against the Harkins regional theater chain on behalf of both deaf and blind, claiming that both Arizona state law and the Americans with Disabilities Act required movie theaters to show captioned movies for folks with hearing loss, and audio-described movies for people with vision loss. The captions and descriptions are furnished without charge by the studios -- the theaters must simply install and deploy equipment needed to display those auxiliary aids.

The theaters argued that they have no obligation to do either of those things. They said that all ADA requires is that they treat everyone equally. Captioned movies, they claimed, are a different product than non-captioned movies, and ADA permits them to sell whatever product they choose -- and they don't choose to show captioned movies. The federal district court bought that argument, and issue a truly regrettable decision.

The case then went to the Ninth Circuit Court of Appeals, which heard oral argument last month. The judges essentially ridiculed the theater's argument, telling the theater attorneys at one point that "you will lose on this issue ... maybe not this case, but on this issue," and urged the parties to work out an agreement. 

The Harkins attorneys are now asking for the opportunity to do just that. While the judges indicated strongly that they won't accept the theaters' argument, they didn't actually issue a ruling. And the Harkins attorneys are now asking the judges to put their ruling on ice while the parties mediate and try to resolve the case.

While it's always nice to make peace and put an end to litigation, there's a danger involved. Any settlement would just bind the Harkins theaters in Arizona -- not any other theaters in any other states. The bad decision from the trial court, though, would remain on the books to jump up and haunt us at some future time even if the appeals court issues an order saying that the decision is "vacated."

What the appellate court wanted the parties to work out, we think, were the details -- how many screens would be equipped to show captioned films, how often would they be shown, etc. We completely agree that discussion ought to take place, but we think it should take place after the appeals court issues an opinion striking down the trial court's opinion.

We've made our views known to the folks in Arizona. It's their call, of course. But they have done such a great job getting what will be a landmark case this far, we hope they decide to let it play out. 

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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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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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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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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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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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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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