interiorOn July 23 the Depart of Justice published a notice of proposed rulemaking on accessibility in movie theaters for those with vision and hearing disabilities. ( The public comment period begins today. The proposed rules will require most movie theaters to buy equipment so that customers with hearing disabilities and vision disabilities can participate in the movie watching experience.  There are numerous limits and caveats, but what I find most interesting is the analysis of costs and benefits, in which the DOJ admits that it has little or no data to support a claim that the benefits are worth the costs. Consider some of the DOJ’s admissions about its own ignorance:

“We cannot confidently estimate the likely number of people who would directly benefit from this proposed rule”

“The individual benefits are not uniform because persons who are deaf or hard of hearing or are blind or have low vision are likely to benefit from this proposed rule in different ways and realize benefits in different amounts.”

“The Department is unable to monetize or quantify the benefits of this proposed rule. . .”

“Data on movie-going patterns of persons who are deaf or hard of hearing or are blind or have low vision is very limited, making estimations of demand very difficult”

Instead of statistics, the DOJ relies on comments it has received, despite the fact that the interested parties — members of the entertainment industry and disabled individuals or their advocates — are very unlikely to present an unbiased view of the facts.

While the benefits of the rule are uncertain, the costs can be calculated with some certainty, and amount to around $200 million dollars, much of which will be incurred in initial capital costs. They seem modest on a per screen basis, but of course there is no evidence that even these modest costs will benefit anyone in the case of a particular theater. In addition, these costs relate only to the technology to provide devices in the move theater. The costs of creating movies with the necessary captioning and other information are not included at all. Finally, DOJ admits that it does not have sufficient information to say whether the costs imposed by the regulation would constitute an “undue burden” that would excuse implementation under the relevant sections of the ADA. Instead of trying to determine whether the costs constitute an undue burden, DOJ proposes to require compliance and make theaters pay for lawyers to defend the litigation that will inevitably follow, thus effectively increasing the cost of the regulation by the amount of money paid to plaintiff and defense counsel as the courts hash out what the DOJ has declined to calculate.

It is also clear that these costs will ultimately be passed on to all movie consumers in the form of higher prices.  The DOJ justifies this shifting of costs by invoking the value of “fairness, equity, and equal access,” along with the “opportunity to meaningfully engage in the discourse that often surrounds movie attendance,” by which DOJ means the chance to talk about movies with friends or colleagues. However, DOJ does not explain is why these values justify shifting the entire cost of accessibility away from disabled individuals and to movie consumers.  Many costs associated with accessibility are paid entirely by those with disabilities, such as the cost of hearing aids or special eyewear. While some of the cost associated with movie accessibility consist of infrastructure that must necessarily be borne by the theater, it seems some of the necessary equipment could be acquired by individuals who need it, thus making sure the cost of the equipment is justified by use. As the proposed regulation stand theaters will be obligated to buy individual devices that may spend most of the time gathering dust, just as most accessible parking spaces are never used.

The proposed rules have been years in the making, and it is clear that both a great deal of work and a great deal of thought went into them. At the end of the day, however, the entire regulatory edifice rests on speculation about the amount of good it will do. There is no doubt that the ADA was intended to promote the integration of those with disabilities into society, and that Congress recognized that many of the costs would be shifted to the broader society; however, it is equally clear that  Congress intended that the costs of the ADA not exceed some recognizable benefit. No one can disagree with the goal of these regulations, but they cannot be justified under the ADA without a better calculation of their real benefits.