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February 24, 2003


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.

I. Background*fn3

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 that
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 accommodation.

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). Those 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 argue 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. 1985).

III. Analysis

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 expense.
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 ...

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