Casino ad rules clarified
Several readers have written to point out that the article regarding Casino advertising in the last issue (2/27/06 RBR #40) required clarification. Since the advertisement of casino gambling could have federal and state criminal consequences please review the following, before making any decision regarding casino advertising.
As a general rule, federal law and the Commission's rules prohibit radio and television broadcasters from carrying advertising about or regarding lotteries, a classification that includes privately operated commercial casino gambling. See 18 U. S. C. §1304 and 47 C.F.R. § 73.1211 of the FCC's rules. At Section 73.1211 of its rules, the Commission provides the customary test for broadcast of a lottery as any activity where, in connection with such program, a prize consisting of money or other thing of value is awarded to any person whose selection is dependent in whole or in part upon lot or chance, and the winner is required to furnish any money or other thing of value or are required to have in their possession any product sold, manufactured, furnished or distributed by a sponsor of a program broadcast on the station in question.
In the previous article, it was mentioned that the United States Supreme Court held that 18 U.S.C. § 1304 "may not be applied to advertisements of private casino gambling . . . broadcast by radio or television stations located in [a state] . . . where such gambling is legal." Greater New Orleans Broadcasting Ass'n v. United States, 527 U.S. 173, 176 (1999). Subsequent to that ruling, and in light of that case, and Valley Broadcasting Co. v. FCC, 107 F.3d 1328 (9th Cir. 1997), the FCC issued a Public Notice that it will not enforce the federal law that prohibits the advertisement of commercial casino establishments. However, stations are cautioned to investigate state law to assure that there is no legal impediment to advertising casino gambling or other forms of lottery before accepting such advertisements.
A further exception to Federal 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.[1]
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"). The exemption is also reflected in the FCC rules at Section 1211, as well as additional exemptions for state lotteries.
Broadcasters can check the status of a compact by contacting the National Indian Gaming Commission at 202/632-7003.
Finally, broadcasters should also note that the Commission has now recognized in its rules an exception to the lottery advertising prohibition where conducted as a promotional activity and it is clearly only an occasional activity and is ancillary to the primary business of that organization.
Good Morning - Gain a personal edge on today's business day. Are you reading this from a forwarded email?
