The US Department of Justice Request for Comments Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description has been followed up with 3 public hearings. The first was held on November 18, 2010, in Chicago, Illinois, the second on December 16, 2010 in Washington, DC. Transcripts and video rebroadcast of these hearings are available through this link. Webcasts of Public Hearings on Advance Notices of Proposed Rulemakings(ANPRM).
It should be understood that there are 4 ANPRMs, of which the cinema issues are only one.
The third hearing was held in San Francisco.
DCinemaTools has made a variation of the transcripts, including a partial transcript of the San Francisco hearing that is not yet posted. Our version is the same as the DoJ, except that speakers comments dealing with cinema issues are highlighted with a colored background. (When the official San Francisco transcript is available, it will be substituted for the transcript taken from the live broadcast.)
To say that the comments are interesting is an understatement. Any hope that they will have helped the two sides leave the adversarial field is unwarranted. For example, the DoJ asked for comments on a 50% compliance over 5 year plan, and NATO came back with a request for a 2 year delay before any conversation on timing could take place. (Washington transcript.)
However, this is all so new that testing is still underway to ensure that everything works in a theater setting.
We need to know that the equipment is reliable, that movie goers can use the equipment, and we need to get hard numbers on what captioning and video description will cost.
We don't have these answers. And we can't answer the 90 questions that are before us. But we believe that these answers will be available within the next 24 months.
On the other hand, Hearing Loss Association of America (HLAA), the lawyers for the Harkings and ALDA cases and the National Association for the Deaf (among others) stated that the technology is basically available now, compliance issues are basically discussions of monetary hardship and that the Americans with Disabilities Act requires "full and equal enjoyment." Here is an except from ALDA's lead attorney John Waldo's comment in San Francisco.)
That said though, we think the proposal that captioning should be required for only 50 percent of the movies phased in over five years is a giant step backward and is deeply flawed both legally and factually.
Our legal objection is that ADA clearly states that auxiliary aids and services like captioning are required unless the entity, singular and specific, the entity, can demonstrate that providing those aids and services would be an undue burden.
Because captioning is technically available, we think the undue burden inquiry is purely financial, and must be done on n individualized case by case basis, probably by a court. We don't believe that substituting a broad performance-based standard which may ask too much of some but require too little of others, is consistent with a statutory undue burden standard.
Our factual objection is that many of the larger corporate theater chains can in fact show 100 percent of movies in captioned form. CineMark, the nation's third largest theater chain has completed converting its Washington state theaters, that is only two multiplexes, to full digital projection. It has also equipped every one of those auditoriums to show captioned movies. We now have two fully accessible theaters, complexes in the State of Washington.
Regal, the largest theater chain, has informed us that essentially the incremental cost of captioning the second half of its 6800 theaters to show captioned movies would be about $3 million. That is big money, but put it in context. In 2009, according to publicly available documents, Regal paid over $110 million in dividends. Dividends. After the staff has been paid. After the leases have been paid. After the debt has been serviced. After you pay taxes on it. Dividends basically according to some are money that companies can't figure out anything else to do with.
So they pay it in dividends. I would submit that 3 percent of your annual dividend cannot constitute an undue burden.
The general comment is that implementation should be 100% in 1 - 3 years. (All hearings are typified in the included HLAA DoJ Response - included below.) While ALDA gets it partially wrong, in that this is a transition point where digital cinema closed caption systems are not working, they have made a powerful argument that will reverberate.
The question now becomes whether the adversarial stances will allow the DoJ a broad reach to insist upon compliance of the Americans with Disabilities Act, now 20 years old. Coupling this question with the potential results arising from implementation of the new EU wide Human Rights treaties will probably make HI/VI equipment manufacturers quite busy, only mitigated by any mandates to show a high percentage of open caption movies. [Conjecture from the editor who in full disclosure is not associated with any studio, exhibitor or manufacturer in the HI/VI field.]
| File | Description | File size |
|---|---|---|
 NAD Testifies at Dept. of Justice Hearing | National Association of the Deaf | National Association of the Deaf Testifies at Dept. of Justice Hearing | 75 Kb |
| NATO Verbal Testimony to DoJ Chicago Hearing | 18 Nov 2010 | NATO Verbal Testimony to DoJ Chicago Hearing | 18 Nov 2010 | 46 Kb |
| San Francisco | DoJ Hearings | Highlighted Cinema-centric comments | NATO/Representatives of the Hard of Hearing Community Respond to DoJ: Transcript DoJ hearing 10 Jan, 2011 Advance Notices of Proposed Rulemakings-SanFrancisco_CinemaHighlights | 343 Kb |
| NATO | HoH Representatives in Chicago DoJ Hearing.pdf | NATO/Representatives of the Hard of Hearing Community Respond to DoJ: Transcript DoJ hearing 18 Nov, 2010 Advance Notices of Proposed Rulemakings-Chicago_CinemaHighlights | 481 Kb |
| Transcript DoJ hearing 16 Dec, 2010 Advance Notices of Proposed Rulemakings-Wash | Representatives of the Hard of Hearing Community Respond to DoJ: Transcript DoJ hearing 16 Dec, 2010 Advance Notices of Proposed Rulemakings-Washington DC_CinemaHighlights | 518 Kb |
| Hearing Loss Association of America/DoJ Response | Response of the Hearing Loss Association of America to DoJ HI/VI Issues Request | 372 Kb |
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