Are you thinking about accepting ads for a casino in your area? Or do you have a casino operator looking to buy time on your station? In general, such a flight is an FCC no-no, but there are exceptions when the client is an Indian tribe with an operation sited on tribal lands. Attorney Gregg P. Skall of Womble Carlyle Sandridge & Rice explains:

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As a general rule, federal law and the Commission's rules prohibit radio and television broadcasters from carrying advertising about privately operated commercial casino gambling, regardless of the station's or casino's location. [1] See 18 U. S. C. 1304 and 47 C.F.R. 73.1211 of the FCC's rules.

An exception to the law against advertising casino gambling exists for games conducted by Indian tribes on Indian Tribal lands. See Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §2720. The statute specifically provides that 18 U.S.C. § 1304, "shall not apply to any gaming conducted by an Indian Tribe pursuant to this Act."

Indian gaming is divided into three classes. Class I gaming is defined as social games solely for prizes of minimal value or traditional forms of Indian gaming in connection with tribal ceremonies. Class II gaming is defined as (1) bingo, including pull-tabs, lotto, punch boards, tip jars, and instant bingo, and (2) card games that are explicitly authorized by the state, or otherwise not explicitly prohibited, and are played at any location in the state. Class III gaming is defined broadly as all other forms of gambling and generally includes banking card games such as baccarat and blackjack (21), as well as roulette, craps, and slot machines.[2]

The IGRA permits the advertising and depiction of casino gambling conducted by Indian tribes under the following conditions:

1. Gaming must occur on tribal land and be operated by the tribe.

2. The gaming must be allowed by state law.

* State law is not preempted.

* If bingo is completely forbidden in the state, then bingo also cannot be played on the Indian reservation located in the state and, thus, cannot be advertised.

3. For Class III gaming, there must be a "tribal-state compact" between the state and the tribe; and the compact must be approved by the National Indian Gaming Commission before the Class III gaming can be advertised.

See 47 C.F.R. 73.1211(c)(3); Amendment of Sections 73.1211 ("Broadcast of lottery information") and 76.213 ("Lotteries") of the Commission's Rules, 4 FCC Rcd 4590 (1989).

Section 2720 exempts advertising about tribal casino gambling even if the broadcaster is located in or broadcasts to a jurisdiction with anti-gambling laws and policies. See Greater New Orleans Broadcasting Association, Inc. v. U.S., 527 U.S. 173 (1999) ("the exemptions in both of these 1988 statutes [referring to the IGRA and the Charity Games Advertising Clarification Act of 1988, 18 U.S.C. § 1307(a)(2)] are not geographically limited; they shield messages from § 1304's reach in States that do not authorize such gambling as well as those that do").

Broadcasters can check the status of a compact by contacting the National Indian Gaming Commission at 202/632-7003.

Gregg P. Skall

Womble Carlyle Sandridge & Rice