United States District Court, District of Columbia
February 24, 2003
KEVIN BALL, ET AL. PLAINTIFFS,
AMC ENTERTAINMENT, INC. ET AL. DEFENDANTS.
The opinion of the court was delivered by: Gladys Kessler, District Judge
Plaintiffs are deaf and hard of hearing individuals residing in the
Washington, D.C., metropolitan area.*fn1 They bring this class action
against movie theater operators AMC Entertainment, Inc. ("AMC"), and
Loews Cineplex Entertainment Corp. ("Loews"). Plaintiffs allege that
Defendants violate the Americans with Disabilities Act ("ADA" or "Act"),
42 U.S.C. § 12101, et seq. (1992), by failing to provide them with
the reasonable accommodations necessary for full and equal enjoyment of
Defendants' services through implementation of captioning and other
interpretive aids.*fn2 This matter is before the Court on Defendants'
Motion for Summary Judgment. Upon consideration of the Motion,
Opposition, Reply, submission of Amicus Curiae, the January 22, 2003,
Motions Hearing, and the entire record herein, for the reasons discussed
below, Defendants' Motion for Summary Judgment is denied.
In 1990, Congress enacted the ADA to remedy the "serious and pervasive"
problem of discrimination against individuals with disabilities.
42 U.S.C. § 12101(a)(2). After thoroughly investigating the
problem, Congress concluded that there was a "compelling need to provide a
clear and comprehensive national mandate" to eliminate discrimination
against disabled individuals and integrate them "into the economic and
social mainstream of American life." S. Rep. No. 101-116, at 20 (1989);
H.R. Rep. No. 101-485, at 50 (1990). To effectuate its sweeping
purpose, the ADA forbids discrimination against disabled individuals in
major areas of public life, including public accommodations.*fn4
42 U.S.C. § 12181-12189 ("Title III"). Title III of the ADA states
No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or
leases to), or operates a place of public
42 U.S.C. § 12182(a).
While the ADA set out broad principles for the elimination of
discrimination against persons with disabilities, Congress assigned to
the Attorney General the specific duty and power to interpret that
statute and set standards for enforcement and compliance of Title III of
the Act. See 42 U.S.C. § 12186(b).*fn5 Congress also directed the
Architectural and Transportation Barriers Compliance Board ("ATBC Board")
to issue "minimum guidelines" for Title III. 42 U.S.C. § 12204(a).
guidelines — the ATBC Board's ADA Accessibility Guidelines
("ADAAG") — do not have any binding effect of their own, but
instead help shape the Attorney General's regulations, which must be
"consistent" with the ADAAG. 42 U.S.C. § 12186(c).
Plaintiffs, who have a disability recognized by the ADA,*fn6
that Defendants' failure to provide reasonable accommodations for deaf
patrons desiring to see first run movies*fn7
shown in Defendants' movie
theaters violates the ADA. Because Defendants' movie theaters are places
of public accommodation under the ADA,*fn8
Plaintiffs argue that such
accommodations are required by the Act and would not result in a change
of Defendants' services or an undue burden upon Defendants. Plaintiffs'
complaint seeks an injunction requiring Defendants "to implement the
captions and other interpretive aids" necessary to comply with the ADA,
which "includes but is not limited to: (a) open captioning devices and
(b) closed captioning devices, such as rear window captioning." Compl.
at p. 7 and ¶ 15.*fn9
II. Standard of Review
Summary judgment will be granted when the pleadings, depositions,
answers to interrogatories and admissions on file, together with any
affidavits or declarations, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). A fact is "material" if it might
affect the outcome of the action under the governing law. Anderson v.
Liberty Lobby, Inc. 477 U.S. 242 (1986). The party seeking summary
judgment bears the initial burden of demonstrating an absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In determining whether the movant has met this burden, a
court must consider all factual inferences in the light most favorable
to the non-moving party. McKinney v. Dole, 765 F.2d 1129, 1135 (D.C. Cir.
Defendants argue that the ADA and its implementing regulations do not
require Defendants' movie theaters to show movies captioned using rear
window captioning ("RWC")*fn10 because: 1) requiring exhibition of
captioned movies is explicitly precluded by the Act and DOJ regulations,
2) exhibition of RWC-compatible movies would change the nature or mix of
the goods or services Defendants offer,*fn11 and 3) installation of RWC
equipment in Defendants' movie theaters would be unduly burdensome. In
making these arguments, Defendants rely primarily on a Department of
Justice ("DOJ") regulation for implementing Title III, which states that
A public accommodation shall take those steps that may
be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or
otherwise treated differently than other individuals
because of the absence of auxiliary aids and
services, unless the public accommodation can
demonstrate that taking those steps would
fundamentally alter the nature of the goods,
services, facilities, privileges, advantages, or
accommodations being offered or would result in an
undue burden, i.e., significant difficulty or
28 C.F.R. § 36.303(a) (1992) (emphasis added). In opposing
Defendants' Motion for Summary Judgment,*fn12 Plaintiffs argue that
cost-efficient technology exists to allow deaf persons to attend first
run movies without fundamentally altering the nature of movies or
resulting in undue burden upon Defendant Theaters.*fn13
A. Requiring Exhibition of Closed Captioned Films, Including RWC, Is
Not Explicitly Excluded by the ADA or Its Implementing Regulations.
Defendants argue that requiring them to show closed captioned films at
their movie theaters is explicitly precluded by the ADA and its
implementing regulations. As this is an argument of statutory
interpretation, the court must begin with the plain language of the
statute. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 474
(1992). Where the language is clear, that is the end of judicial inquiry
"in all but the most extraordinary circumstances." Id., 505 U.S. at 474.
However, when the intent of Congress is not clear
from the language
itself, the court may "look to the general purpose of Congress in
enacting the statute and to its legislative history for helpful clues
. . . [and] must avoid an interpretation that undermines congressional
purpose considered as a whole." U.S. v. Braxtonbrown-Smith, 278 F.3d 1348,
1352 (D.C. Cir. (2002) (citing United States v. American Trucking
Ass'ns, Inc., 310 U.S. 534, 543 (1940)).
The Act itself contains no explicit language regarding captioning in
movie theaters, so Defendants rely on statements from the House Committee
Report to support their argument that closed captioning of films at their
movie theaters is explicitly precluded by the ADA. The Report states
that "[o]pen-captioning . . . of feature films playing in movie
theatres, is not required by this legislation." H.R. Rep. No. 101-458
(II), at 108 (1990).
According to Defendants, this single statement from the House Committee
Report signals unambiguous legislative intent that captioning in movie
theaters is not required, but their reliance on the Report is misplaced.
As our Court of Appeals recently stated, "reviewing legislative history
is like looking over a crowd and picking out your friends," Community
Care Foundation v. Thompson, ___ F.3d ___, 2003 WL 255450 (D.C. Cir.
Feb. 7, 2003) (internal quotations and citation omitted); Defendants have
only one friend in this particular crowd. The Report fully recognized
that technological advances might impose additional ADA requirements on
public accommodations in the future, stating that:
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 accommodation and services provided . . .
[under the ADA] should keep pace with the rapidly
changing technology of the times.
H.R. Rep. 101-485(II), at 108 (1990) (emphasis added); see also Kapche
v. City of San Antonio, 176 F.3d 840
, 847 (5th Cir. 1999) (remanding a
recent ADA action for the determination of whether new, improved
technology — not available when earlier, similar cases were decided
— existed that would permit diabetic drivers to operate a vehicle
When the ADA was signed into law in 1990, only open-captioning of
theatrical films was in use at that time and there were not yet any
systems available for providing closed captions in theaters.*fn14
Regardless of the House Committee Report's statement concerning open
captioning of films, Congress explicitly anticipated the situation
presented in this case. Therefore, the isolated statement that open
captioning of films in movie theaters was not required in 1990 cannot be
interpreted to mean that Defendants cannot now be expected and required
to provide closed captioning of films in their movie theaters.
Defendants also note that DOJ implementing regulations state that
"[m]ovie theaters are not required to present open-captioned films,"
28 C.F.R. § 36, Appendix
B(C) (1992) (DOJ's analysis of
28 C.F.R. § 36.303). Much like the House Committee Report's
assessment of captioning in movie theaters, the implementing regulations
were promulgated by the DOJ more than ten years ago. Accordingly, the
implementing regulations must also be read in light of clear
congressional intent that the ADA might require new technology be used,
as it is developed, to further accommodate disabled individuals.*fn15
Defendants also argue that they are not required to provide closed
captioning in their movie theaters because a recent draft of the ATBC
Board's ADA Accessibility Guidelines states that both the Guidelines and
ADA regulations "do not require captioning of movies for persons who are
deaf." Defs. Ex. G, Draft Final Americans with Disabilities Act and
Architectural Barriers Act Accessibility Guidelines (April, 2, 2002) at
125. However, Defendants' reliance on the draft ADA Accessibility
Guidelines is also misplaced.
The draft guidelines have not yet been adopted as a DOJ regulation,
thus they are not binding and not entitled to the Court's deference. See
Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 585
(D.C. Cir. 1997) (ADA regulations are entitled to Chevron deference only
after the ATBC Board's language is put out by the DOJ as its own
regulation); Paralyzed Veterans of America v. D.C. Arena L.P.,
950 F. Supp. 389, 391 (D.D.C. 1997) (ATBC Board is not the authoritative
agency on ADA matters, but rather has a supplementary, advisory role to
the DOJ). In addition, even if the DOJ did implement the draft ADAAG,
any explicit language not requiring movie theaters to provide closed
captioning could not be upheld if it was inconsistent with the Act's
requirement that public accommodations "take those steps that may be
necessary to ensure that no individual with a disability" is
discriminated against. 28 C.F.R. § 36.303(a) (1992).
Finally, the ADA explicitly states that public accommodations can be
required to make reasonable modifications for disabled individuals to
ensure non-discriminatory access to goods and services. See
42 U.S.C. § 12102(b)(2)(A)(ii). RWC clearly fits within the category
of auxiliary aids and services that can be required under the ADA,
because it serves as an "effective method of making aurally delivered
materials available to individuals with hearing impairments" by
"acquisition . . . of equipment or devices." 42 U.S.C. § 12102(a),(c).
In fact, the ADA implementing regulations clearly indicate that "open and
closed captioning" are included in the auxiliary aids and services
required to be provided by public accommodations.
28 C.F.R. § 36.303(b) (1992).*fn16
While Defendants contend that they have complied with the ADA's
auxiliary aid requirement by providing Assisted Listening Devices (ALDs)
in some of their movie theaters, it is undisputed that ALDs do not serve
all Plaintiffs in accessing Defendants' services.*fn17
Given that ADA
implementing regulations require public accommodations to ensure that
persons with disabilities are not denied a service "because of the use of
inappropriate or ineffective auxiliary aids," see 28 C.F.R. § 36,
Appendix B(C) (1992) (DOJ's analysis of 28 C.F.R. § 36.303),
Defendants' provision of ALDs does not satisfy ADA accessibility
While the ADA does not contain explicit language or clear Congressional
intent requiring or precluding closed captioning in movie theaters, the
Act does contain explicit, applicable language which prohibits Defendants
discriminating against deaf individuals "in the full and equal enjoyment
of the goods, services . . . or accommodations of any place of public
accommodation," 42 U.S.C. § 12182(a), and also requires them to
provide auxiliary aids to ensure that disabled patrons have access to the
services they provide. Accordingly, the Court finds that neither the ADA
nor the DOJ implementing regulations explicitly forbid requiring
Defendants' movie theaters to exhibit closed captioned films.
B. Exhibition of RWC-Compatible Films Would Not Change the Nature or
Mix of the Services Defendants Provide.
Defendants argue that the DOJ implementing regulations only require
them to make "reasonable modifications" of their policies, practices, and
procedures and provide auxiliary aids and services in order to ensure
nondiscriminatory treatment, but do not require them to "provide
different goods or services to meet the special needs of the disabled."
Defs.' Mot. at 6. However, it is clear that Congress intended the ADA to
require more than the general availability of services. Congress
expressly stated that the Act addressed the various forms of
discrimination encountered by disabled individuals, which included not
only "outright intentional exclusion" but also "failure to make
modifications to existing facilities and practices" and "relegation to
lesser services." 42 U.S.C. § 12101(a)(5).
Defendants' basic argument is that the ADA requires public
accommodations to make their goods or services generally accessible to
all patrons (i.e., deaf patrons must be able to buy tickets and sit in
the movie theater), but does not require them to provide different goods
or services to meet the needs of disabled patrons. In making this
argument, Defendants rely on a DOJ implementing regulation stating that
the ADA "does not require a public accommodation to alter its inventory
to include accessible or special goods that are designed for, or
facilitate use by, individuals with disabilities." 28 C.F.R. § 36.307
(1992). Defendants claim that § 36.307 clearly indicates they are
not required to show closed captioned movies, by comparing themselves to
bookstores that must accommodate purchases by blind patrons but are not
required to carry Braille books, and to video stores that must allow deaf
patrons to check out videotapes but are not required to stock captioned
videos. See 28 C.F.R. § 36, Appendix B(C) (1992) (DOJ's analysis of
28 C.F.R. § 36.307).
Nonetheless, Defendants fail to recognize that they are not
similarly-situated to bookstores and video stores that provide goods
because Defendants provide the service of screening first run movies.
Cf. Treadway v. Local 911, 2000 WL 875739, *1 (6th Cir. 2000) (finding
that "a benefit plan offered by an employer is not a `good' as defined by
the ADA"). The DOJ implementing regulation on which they rely concerns
"[a]ccessible or special goods." 28 C.F.R. § 36.307 (emphasis
added); see also Black's Law Dictionary 701 (7th ed. 1999) (goods are
"tangible or movable personal property other than money"). In
fact, when the DOJ considered requiring open captioning of films in movie
theaters, it did so with regard to auxiliary aids and services, not
goods. See 28 C.F.R. § 36, Appendix B(C) (1992) (under 28 C.F.R. § 36.303,
"[m]ovie theaters are not required to present open-captioned films").
Given that the closed captions for RWC-compatible films can be provided
to deaf individuals during normal screening of those films, installation
of RWC can be required under the ADA because it would not change the
nature of the service supplied by Defendants — screening first run
movies to the public.
Defendants also argue that requiring them to install RWC would result
in a change of the mix of the services they provide. Defendants claim
that the mix of movies they show would change because relatively few
RWC-compatible films have been released by the movie studios. See Def.
Mot. at 16 (since RWC first became available in 1997, only 2.8% of the
first run films released in the United States have been RWC compatible).
However, requiring installation of RWC does not require exhibition of
all RWC-compatible films. In fact, Plaintiffs only request that
Defendants provide the auxiliary aids necessary to ensure that deaf and
hard of hearing patrons are not denied access to the RWC-compatible
movies that Defendants screen. Furthermore, the number of RWC-compatible
films released has increased each year since 1997, and there is evidence
that the number of RWC-compatible films that are released will continue
to increase as more movie theaters install the technology.*fn18 In
addition, RWC-compatible movies that have already been released include
many popular movies that Defendants' theaters would normally exhibit.*fn19
Accordingly, Defendants have not demonstrated that the relief requested
by Plaintiffs would alter the mix of films they show.
Because closed captions for RWC-compatible films are provided free of
charge to Defendants' movie theaters and can be accessed by deaf
individuals during normal screening of those films to the general
public, Defendants have failed to show that installation of RWC and
exhibition of RWC-compatible films would fundamentally alter the nature
or mix of the service they provide.*fn20
It is clear that the relief
requested by Plaintiffs — installation of RWC in a fair number of
Defendants' screens to make closed captions available
to deaf patrons for
those RWC-compatible movies that Defendants would otherwise show —
would allow class members to enjoy the first run movies normally shown by
Defendants without fundamentally altering the nature or mix of the
service they provide. Thus, Defendants are not entitled to summary
judgment on this issue.
C. There Are Material Facts in Dispute Regarding Defendants' Burden for
Installation of RWC.
Defendants claim that installation of RWC for all their movie screens
in the D.C. area is not required under the ADA because it would result in
an undue burden. They estimate that it would cost approximately
$15,000-16,000 per screen to install RWC, resulting in total costs of
approximately $2 million for AMC's 125 screens in the D.C. metro area and
$1.5 million for Loews' 101 screens. See Defs. Ex. B, Pennington Decl.
at ¶ 10; Defs. Ex. C, Norris Decl. at ¶ 10. Defendants also
claim that requiring installation of RWC would be unduly burdensome given
their "enormous annual losses." Defs. Mot. at 15.*fn21
However, Plaintiffs argue that because they are only seeking
installation of RWC in approximately 20 screens per Defendant, each
Defendant would incur approximately $300,000 in costs using the
Defendants' own cost estimates. Plaintiffs also claim that the cost of
installing RWC has recently come down and is now approximately $11,225.00
per screen. Pls. Opp'n at 26; see also Pls. Ex. 1, Goldberg Aff. at
¶ 15. Plaintiffs further contend that Defendants' costs would be
offset by tax benefits and increased revenues from ticket sales to deaf
patrons and their families and friends. Finally, Plaintiffs argue that
Defendants' financial resources are more than adequate to cover RWC
installation costs given AMC's recent purchase of two movie chains for
more than $167 million and Loews' recent purchase of a movie chain for
There are clearly material facts in genuine dispute as to the undue
burden claim, and therefore, summary judgment is not appropriate on this
Defendants have failed to prove that installation of RWC is expressly
not required by the ADA or that such installation would fundamentally
alter the nature of the service they provide. Furthermore, there are
material facts in dispute as to Defendants' undue burden claim.
Accordingly, Defendants' Motion for Summary Judgment is denied. An Order
will issue with this Opinion.
Plaintiffs, deaf and hard of hearing individuals residing in the
Washington, D.C., metropolitan area, bring this class action against
Defendants, AMC Entertainment, Inc., and Loews Cineplex Entertainment
Corp., alleging violations of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 2000a, et seq. (1992). This matter is before the
Court on Defendants' Motion for Summary Judgment. Upon consideration of
the Motion, Opposition, Reply, submission of Amicus Curiae, the January
22, 2003, Motions Hearing, and the entire
record herein, for the reasons
stated in the accompanying Memorandum Opinion, it is this ___ day of
February, 2003, hereby
ORDERED, that Defendants' Motion for Summary Judgment is denied.