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

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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