Most times when Stacey Carroll – who has a profound hearing loss — goes to the movies, either the captions in the glasses only pick up every other line, or the device stops working altogether. She’s usually with other (hearing) people, who feel bad and leave the movie with her.

“When my boys wanted to go to Star Wars as a family, I brought my own car,” Carroll says. “I got two devices and neither worked; I drove home so the rest of my family could enjoy the movie. Even if they refund my ticket, the night out is ruined for me, and I have been in tears more than once over this.”

This is likely a familiar scenario if you have a hearing loss. Experiencing acute anxiety while waiting to see if a captioning device works at a movie theater is a common feeling. While we’re grateful for the technology, we have way too many vouchers that don’t sufficiently make up for a ruined outing.

Caption fail

The issue has attracted a lot of buzz lately, particularly with Nyle DiMarco’s recent public complaints. He went to the theater for the first time in five years and had trouble adjusting his CaptiView (the cupholder caption device) and had to change position because he had difficulty viewing the screen. His frustration led him to walk out after 10 minutes.

In Nyle’s case, however, his problems were his own doing. He clearly didn’t show up to the theater early enough to set up his CaptiView. In fact, he’s lucky one was available at all. Those of us who are well acquainted with CaptiView know that it can sometimes take a while to set it up properly, which includes being able to view the captions and the screen just like on a television.

What if we show up and do everything right, but the device fails us, like in Carroll’s case? This happened recently to Mary Reed, an avid moviegoer. While there’s an occasional glitch, the captions usually work. However, when she went to a renovated theater with a group of seven to see Ocean’s 8, she was met with ignorance and disdain when she requested closed captioning equipment for herself and her son. Not wanting to spoil the evening, Reed suggested that the rest of their party – including her daughter – go ahead as planned.

Reed knew there was a law, but wanted to arm herself with specific knowledge before the manager arrived, so she posted on Facebook. When he didn’t show, she found the movie playing at a theater five miles away. “The evening had a happy ending for the captioning worked great there, but we had to separate from our group to see it,” she says.

The law

So what IS the law? The Department of Justice published a Final Rule on the ADA as it applies to movie theaters, specifically referencing Title III, which covers public accommodation. American movie theaters have three main requirements. They must:

• have and maintain the equipment necessary to provide closed captioning and audio description at a movie patron’s seat whenever showing a digital movie produced, distributed, or otherwise made available with these features;
• provide notice to the public about the availability of these features; and
• ensure that theater staff is available to assist patrons with the equipment before, during, and after the showing of a movie with these features.

Exclusions include drive-in movie theaters and theaters that show only analog movies. The regulations specify how many devices each theater must have, require that they be kept in working order, and require that a staff person who knows how to operate the device be present at all times. These regulations took effect on June 2, 2018.

Virtually every movie released today is distributed as a digital data package, so it’s safe to assume that any theater showing first-run movies uses digital projection and is therefore subject to the new rules, says John Waldo, an attorney with hearing loss who has been working on movie access for about 10 years.

Waldo adds that if a theater website doesn’t indicate that captioning is available, the theater isn’t in compliance with the regulation, the exception being theaters that converted to digital projection after Dec. 2, 2016, as they have until Dec. 2, 2018 to comply.

Compliance

One problem with these regulations is that there isn’t a standard for what constitutes proper working order, leaving open questions like whether an occasional dropped line constitutes non-compliance. “As a general matter, though, caption-viewing devices that have been properly maintained, adequately charged, etc. will transmit virtually every line of captioning,” Waldo says. “Anything more than a very occasional omission probably requires some maintenance, but when that is done, there should be little quality difficulty.”

A temporary violation of ADA is excused if it is the result of the need for maintenance or repairs, but the theater must be able to show that it is taking actual steps to fix the problem and not simply shrugging its shoulders, says Waldo.

When noncompliance consists of equipment/maintenance failure, the remedy is usually a free pass to another show. If there are repeated failures, consider filing a complaint with the DOJ. Private citizens can’t recover damages or fines under the ADA, but some states permit them to recover damages – sometimes in a minimum amount – like $4,000 in California or $300 in Texas, says Waldo. If noncompliance consists a lack of caption equipment, a private lawsuit is worth considering, he says. “The patron still doesn’t get any money, only an order that the theater provide access,” says Waldo. “However, the theater will be stuck for attorneys’ fees, and that provides an incentive to them to provide access instead.”

Ultimately, it’s up to consumers to keep the theaters in check. “There is not, of course, any effective policing of captioning except what we do ourselves,” he admits. “And there is work to do.”

Actions

Tina Childress, an educational audiologist who is also a late-deafened adult and Rachel Arfa, an attorney who has profound hearing loss, were curious about trends in accessibility at movie theaters. When seeing movies together, they had both experienced problems with CaptiView and saw multiple comments on Facebook from others who had as well. They created an online survey to collect movie captioning feedback; it’s ongoing.

In Childress’ view, the issues include:

• Care/maintenance/use of equipment – equipment is getting older and isn’t always replaced/repaired in a timely fashion
• Consumers not knowing how to troubleshoot equipment
• Theaters not having a Plan B in place, which would include better staff training

Meanwhile, in the UK, there’s no ADA, but there’s the Equality Act of 2010, which states that organizations must make reasonable adjustments to their services to make them accessible. The problem is, there’s no real clarification as to what’s “reasonable,” says Ellen Parfitt, a profoundly deaf blogger and activist. “They think what they’re doing currently is reasonable, but is 1-3% reasonable?” she asks. “I don’t think so.”

The 1-3% refers to the average percentage of films a week that are subtitled. Parfitt created a petition a year ago, which is nearly at 5K signatures, to show cinemas the demand for subtitled showings. She is also working with a major hearing loss charity; once they’ve exhausted all options, legal proceedings are probably next.

Parfitt has also been gathering research and evidence of the number of subtitled cinema showings compared to non-subtitled screenings as well as people’s reactions to subtitles. She wrote a blog post about her efforts.

Back in the U.S., with national captioning regulation “we may actually be able to unfurl a ‘mission accomplished’ banner on this longstanding objective,” Waldo says. “But each of us, in our own communities, now have to take the final steps to making this a reality.”

Reed has done her part. She went home from the theater and raised Cain. The owner responded to her – both on Facebook and via email – and apologized. He reassured her that caption technology was on its way and that he would deal with the employees. “I will give his theater another chance,” she says.