Comments of the American Foundation for the Blind
In the Matter of
CRT Docket No. 112
Department of Justice
Civil Rights Division
Advance Notice of Proposed Rulemaking
Nondiscrimination on the Basis of Disability: Movie Captioning and Video Description
Prepared by: Mark D. Richert, Esq.
Director, Public Policy
American Foundation for the Blind
1660 L Street, NW, Suite 513
Washington, DC 20036
Ph: 202-469-6833
Email: mrichert@afb.net
January 24, 2011
The American Foundation for the Blind (AFB) commends the U.S. Department of Justice (DOJ) for initiating an important dialog with the disability community concerning the most effective regulatory means for ensuring that the Americans with Disabilities Act (ADA) is as relevant as it can be in the information and entertainment age. When the ADA was first implemented through regulations and technical assistance in the early 1990s, AFB was honored to be the lead technical assistance author under contract through a DOJ grant in providing guidance to covered entities and the public concerning the rights and obligations created by the new law as they specifically relate to individuals living with vision loss. Over the past twenty years, AFB has continued to promote the ADA's effectiveness and proper implementation through the public policy and advocacy processes, and we are pleased to offer these comments in response to DOJ's stated intent to clarify ADA responsibilities in connection with video description in movie theatres.
As to the analysis of particular contextual queries raised in the above-captioned advanced notice of proposed rulemaking (ANPRM), we refer the DOJ to the excellent responses to questions prepared by our colleagues Lainey Feingold and Linda Dardarian, as well as the comprehensive comments offered by the American Council of the Blind and WGBH National Center for Accessible Media (NCAM). This extensive analysis should provide a wealth of guidance to the DOJ as it explores development of regulations and supporting technical assistance. However, our comments below elucidate an overall policy framework and posture which we urge the DOJ to assume in any rulemaking that DOJ ultimately undertakes. We are persuaded that this policy framework faithfully reflects the letter and spirit of the ADA, and that its use in the development of regulations will best position such proposed rules to both survive the rulemaking process and meet the needs of people with disabilities.
The Policy Objective
The overarching policy objective of any proposed rulemaking concerning the ADA's relevance to covered entities' video description responsibilities should be to ensure that ADA covered entities have no doubt that the ADA reaches into every aspect of a covered entity's interaction with people with disabilities, regardless of the nature or modality of that interaction. Particularly with respect to individuals with vision loss, a disability that has a direct impact on information acquisition, covered entities must understand that any multimedia or primarily visual communication in which they engage must be effective for people with disabilities. Technology can be a tremendous liberator for people with disabilities, but it can also be a significant obstacle to full participation. Such obstacles can arise anywhere when information accessibility has been neglected or when certain communications modalities are seen as somehow beyond the reach of the ADA.
If there is one overall criticism that can be lodged against the posture that DOJ is seeming to assume in each of the ANPRMs related to this docket, it is that there seems to be a piecemeal approach being taken. In other words, DOJ is singling out various technological modalities and seemingly applying categories of analysis to each of them to make distinctions that need not, and should not, be made. At the end of the rulemaking process being considered, covered entities should not be thinking that they are now required to ensure some sort of accessibility to a specific number of devices, technologies, or modes of delivering their information or benefits which they have hitherto not needed to address. Rather, covered entities should be reminded that the obligations that they have always had to ensure full participation by people with disabilities are not somehow limited or inapplicable to this or that specific modality which they expect customers and others to use. In short, their ongoing obligations to ensure effective communication to people with disabilities have broad and integrated application.
Extent of Rulemaking
We would therefore expect that any regulations to be proposed, by necessity and with prudent recognition of the overall access obligations that covered entities have always had, should require minimal drafting and leave as many specifics as possible and advisable to technical assistance. We believe that a general but unequivocal regulatory statement that reaffirms the ADA's applicability to covered entities' video description responsibilities, whenever such responsibilities may arise, as part of section 36.303 of the DOJ rules concerning auxiliary aids and services to be provided by public accommodations for instance, would be a strong and sufficient means for reminding covered entities of their responsibilities. It will then be imperative to develop the kind of excellent case-by-case analysis and contextual treatment that the Title II and Title III Technical Assistance Manuals have offered in the past. Clearly, given the DOJ's most recent refresh of the regulations implementing both Titles, revisions to the Technical Assistance Manuals are in order anyhow. We therefore strongly urge DOJ to include a general regulatory statement affirming that effective communication and the provision of auxiliary aids and services includes the provision of video description, and such a general provision could be accompanied in the text of the final rule by a nonexhaustive list of the kind of practical examples we discuss below. However, we urge DOJ to leave extensive detail for treatment through technical assistance.
Convergence
We also urge DOJ to not silo covered entities' video description responsibilities from their responsibilities to afford access to their Internet communications or to equipment generally. Such siloing is implied by the DOJ's separate treatment of Internet information, equipment, and video description in distinct ANPRMs. Indeed, we believe that the convergence of technologies that we are already seeing today demands a holistic approach to rulemaking. To make this point clear, let us pose a scenario that is not entirely hypothetical.
If a company called MyPersonalMovieTheatre.com offers a wireless device for sale, rent or loan that displays on-demand movies currently running in conventional theatres across the country, such a company is a virtual movie theatre, a public accommodation, and has ADA obligations to ensure that patrons with disabilities can both use MyPersonalMovieTheatre.com and the wireless device. If we take the hypothetical a step farther and say that a wireless device per se is not involved but merely an app that the patron can download from MyPersonalMovieTheatre.com and use on his or her smart phone, the company nevertheless has an ADA obligation to ensure that the patron with disabilities can use the app. These ADA responsibilities compliment MyPersonalMovieTheatre.com's ADA obligations to offer captioning and description for its movies.
In other words, the DOJ should take an integrated and holistic approach to articulating the ADA's relevance in a world where such convergence of technology and modalities is only expected to increase exponentially. The DOJ cannot possibly anticipate every scenario in place today or in the future wherein equipment, software and/or Internet modalities may be used alone or in concert by covered entities. Any regulations should therefore state broad requirements in general terms but point to the application of such provisions through examples that recognize both the breadth of technological options and their possible convergence.
Effective Communication and Undue Burden
In spite of the oft propounded notion that Congress did not adequately foresee the impact that technology would have on all of our lives and, therefore, the ADA's relevance to such a changing environment, the Congress did in fact anticipate that the ADA would increase in its relevance in a technological age and that the appropriate lens through which to measure covered entities' responsibilities is the undue burden standard. As the legislative history provides:
"The Committee wishes to make it clear that technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities. Indeed, the Committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times." H.R. Rep. 101-485(II), at 108 (1990).
In the DOJ's preamble to its 1991 regulations, the DOJ declared that:
"[g]iven that § 36.304's focus is on the removal of physical barriers, the DOJ believes that the obligation to provide communications equipment and devices...is more appropriately determined by the requirements for auxiliary aids and services under § 36.303." 56 FR 35544, 35568.
In spite of the traditional position taken by the DOJ that communications equipment and devices are most properly dealt with by the auxiliary aids and services and effective communication regulations, the DOJ's video description and captioning ANPRM nevertheless raises issues and asks questions that seem to view the ADA's application to these areas through a built environment lens. We urge the DOJ to fundamentally reject any modeling of video description rules on the approaches that are used to address accessibility of physical facilities, i.e., the arbitrary establishment of limited scoping and distinctions between new and existing facilities.
Indeed, the DOJ already has in place a sufficient and strong framework into which covered entities' video description responsibilities fits well. As the recently refreshed auxiliary aids and services rule provides:
"The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability." 28 C.F.R. 36.303(c) (1) (ii).
In summary, a covered entity has met its ADA obligations when it provides timely access that allows the individual with a disability to benefit from the covered entity's offerings as discreetly and as independently as individuals without disabilities. In the Title II context, the methods used to achieve effective communication must accord with the preference of the individual with a disability, whereas in the Title III context, the methods used for achieving effective communication need not necessarily accord with the preference of the individual with a disability. However, in either case, the test for ADA purposes is whether the covered entity's communication is effective, i.e., provided timely and with protection of the user's privacy and independence.
The Inappropriateness of Scoping
We agree with our colleagues who have called upon DOJ to establish a 100% of all screens requirement on theatres. Nevertheless, we believe that the low cost of provision of video description per screen means that it will be inconceivable that a theatre could prove that providing video description in each of a theatre's auditoriums would result in an undue burden. We strongly believe that the auxiliary aids and services and effective communication regulations, as they would be meaningfully operationalized for a given theatre, demand that all screens allow for video description. To illustrate these conclusions, let us discuss the practical and technological realities both in play today and likely in the future. If we were to stipulate that Hollywood releases upwards of ninety percent of major film releases with video description, as is more or less the status quo today, then any rule the DOJ might adopt requiring fifty percent or less of screens to be accompanied with description would result in people with disabilities not being able to enjoy the full complement of such films. In other words, simply establishing some sort of arbitrary limit on the number of screens for a given theatre will inevitably limit access. The DOJ should not craft rules that lead to the illogical result that more movies are description-enabled than theatres are able to show.
Of course, theatres are not in a position to know how many movies will be description-enabled at any given time. The only common sense approach is to set a clear expectation that, no matter how many movies are description-enabled, a patron with disability who purchases a ticket at a given theatre for a given film that is description-enabled can in fact receive description. The relevant ADA question is whether the movie theatre provides effective communication for its movies to the patron with disability in question unless doing so is unduly burdensome. A movie theatre can neither predict with certainty how many movies will be description-enabled or which of such movies people with disabilities will want to attend. However, the ADA does not provide that a lack of certainty relieves a covered entity of their nondiscrimination obligations. The ADA expects covered entities to meet the needs of people with disabilities in spite of the lack of certainty unless doing so results in an undue burden. It is theoretically conceivable that technology may evolve to a point where it would not be physically necessary to install dedicated equipment in each of a theatre's auditoriums in order to offer description. Conceivably, in such circumstances, when an individual with a disability arrives at a given theatre, a headset or other device could be provided the individual that allows receipt of description for the movie of interest but which is somehow linked to a centralized system that is not auditorium specific. In such a scenario, questions about the number of auditoriums equipped with description capacity would be irrelevant. As of this writing, however, a theatre's auditorium can be equipped with description capacity for an average one-time cost of $1,500. In summary, then, DOJ should develop rules that result in an expectation on movie theatres that each of its screens have the capacity to be paired with description. The methods a given theatre chooses to employ to meet such obligation will remain the theatre's choice. However, effective communication will nevertheless need to be afforded the patron with disabilities unless the theatre can demonstrate that doing so would be unduly burdensome.
Application Beyond Theatres
It is all too easy for the DOJ to simply conceive of video description merely in the context of commercial movie theatres or in the Title III context generally. We strongly urge the DOJ not to limit any regulations it will hopefully develop to only these particular contexts. Indeed, Title II entities, especially educational institutions at the elementary, secondary and post-secondary levels, are increasingly making use of multimedia instructional materials. Unlike the Title III context where movie theatres might successfully argue that they have no obligation to create description for their movies (though we do not concede that compelling such description constitutes a fundamental alteration), Title II entities are not in a position to simply claim that movies and/or other visually-based media employed in the classroom need not be described. Indeed, Title II educational institutions have both a responsibility to ensure full participation and effective communication and to honor the preference of the individual with a disability in the provision of accommodations/modifications.
A K-12 public school, for instance, has an affirmative obligation to ensure the student with vision loss full access to the content of educational films and/or other visually-based material. The entity must either obtain such materials with description or create the description, but Title II does not allow the school to both fail to provide described content and to force a student with vision loss to cope with half measures or stop gap access, such as depending on a fellow student to explain the visual elements of the material. Title II must mean that, if the student prefers to have access to the material with description, description must be provided unless doing so constitutes a fundamental alteration or is an undue financial or administrative hardship. Given the enormous purchasing power of state and local educational systems which can and should be expected to require media to be described for students with disabilities whom such entities surely must know they will be serving, the financial and administrative hardships will be minimal when the provision of description of media is made a condition for the purchase of materials in the first place. Therefore, the DOJ should draft rules for both Title II and Title III that recognize the uniqueness and practical implications of both contexts as they relate to video description. Additionally, as we have tried to emphasize in these comments more generally, any rules the DOJ proposes should be crafted in terms of mere clarifications to the ADA's current applicability to description and should not imply the establishment of description requirements that have not hitherto been in place.
A Note on Nomenclature
Finally, we want to encourage the DOJ to adopt consistent references to description throughout its rules. We note that in the past, the DOJ has used the term "narrative description" to refer to the description of on-screen visual elements for individuals with disabilities. We know that the DOJ is also receiving comments encouraging the DOJ to use the term "audio description" rather than "video description" or "narrative description." The DOJ should be aware that there is no universally agreed upon term, though the term we believe to be most commonly recognized in the vision loss community is "video description." The use of the term "audio description" has been most typically tied to the provision of live description of on-stage performances in real time. We note that the recently enacted Twenty-First Century Communications and Video Accessibility Act (P.L. 111-260) establishes the term "video description" to refer to the mandated obligations of certain broadcast and cable television providers to afford viewers with described programming. We would encourage the DOJ to draft rules that are consistent with this new landmark law which, we firmly believe, will itself lead to even more description of motion pictures and a wide array of other content in the years to come.
