August 16, 2013

VIA e-mail to reg.review@nigc.gov

Tracie Stevens, Chairperson

Daniel Little, Associate Commissioner

National Indian Gaming Commission

1441 L St., N.W., Suite 9100

Washington, DC 20005

Re: Comments on "Electronic One Touch Bingo System," 78 Fed. Reg. 37998 (June 

25, 2013)

Dear Chairperson Stevens and Commissioner Little: 

Below please find comments on behalf of the Miami Tribe of Oklahoma Business 

Development Authority ("MBDA") on the National Indian Gaming Commission's ("NIGC" or 

"Commission") proposal to recognize as Class II "server based electronic bingo system games 

that can be played utilizing only one touch of a button ('one touch bingo')." 78 Fed. Reg. at 

37998. As detailed below, MBDA strongly supports the NIGC's proposal, which is fully 

consistent with the text of the Indian Gaming Regulatory Act ("IGRA"), the legislative history, 

the NIGC's regulations and applicable case law. 

MBDA operates Rocket Gaming Systems ("Rocket Gaming") as a commercial 

enterprise.1 As one of the early pioneers of the high-speed electronic bingo industry, Rocket 

Gaming introduced its first product, Rocket Bingo, on August 22, 1997, linking seven tribal 

casinos across three states into live, real-time, networked bingo games. Nearly 16 years later, we 

continue as a technology leader in the Class II gaming industry, with games in over 100 tribal 

gaming facilities in 17 states, linking thousands of players on Rocket electronic player terminals 

on tribal lands to play against each other for prizes. Our Class II games have stood the test of 

time in a rapidly evolving industry, providing significant economic revenues both for MBDA 

and the many other tribes across the country that utilize our games.

MBDA agrees with the Commission's proposal "to reinterpret the position regarding one 

touch bingo as set forth in the Metlakatla Ordinance disapproval." 78 Fed. Reg. at 37999. The 

Metlakatla disapproval was issued in 2008 in response to a tribal ordinance amendment that 

sought to clarify that:

 

1 MBDA and WorldLink Gaming Corporation (the original developer of Rocket Gaming Systems) were 

merged on September 8, 1999, with MBDA being the surviving entity. 
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 2

Class II gaming includes an electronic, computer or other 

technologic aid to the game of bingo that, as part of an 

electronically linked bingo system, assists the player by covering, 

without further action by the player, numbers or other designations 

on the player's electronic bingo card(s) when the numbers or other 

designations are electronically determined and electronically 

displayed to the player. 

Id. This type of auto-daub aid feature often is referred to as "one touch" since, once activated, 

further action by the player during the game is not required. 

The former NIGC Chairman took the position in the Metlakatla ordinance disapproval

("Ordinance Letter") that the use of the aid feature described above would convert a Class II 

bingo game into a Class III game. The Ordinance Letter included two arguments to support this 

position: (1) the IGRA requirement that a bingo game must be won by the first person to cover 

the winning numbers requires competition, which is lacking in a bingo game played with one 

touch auto-daub; and (2) by "allowing the game system, rather than the player, to 'cover' the 

bingo card incorporates all characteristics of the game of bingo into an electronic machine and 

system, and thereby renders one touch bingo a Class III electronic facsimile of a game of 

chance." 78 Fed. Reg. at 37999.

As detailed below, MBDA agrees with the Commission that the two arguments expressed 

in the Ordinance Letter were incorrect as a matter of law. Contrary to the views set forth in that 

earlier letter, the use of the one touch auto-daub feature in connection with a linked bingo game

is consistent with the IGRA's definition of bingo and does not convert a Class II bingo game into 

a Class III facsimile. 

1. The Use of OneTouch Auto-Daub is Consistent with the IGRA Definition of 

Bingo.

As has been held by the federal courts, the three statutory requirements of bingo set forth 

in the IGRA are the sole legal requirements for a game to qualify as bingo. United States v. 162 

MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000); United States v. 103 Elec.

Gambling Devices, 223 F.3d 1091 (9th Cir. 2000). Nevertheless, the Ordinance Letter asserted 

that the use of one touch auto-daub prevents a game from qualifying as Class II bingo, even if it 

satisfies the IGRA requirements for bingo in all other respects. According to the Ordinance 

Letter, the "first person to cover" requirement in the IGRA definition of bingo requires 

competition between players and that there can be competition in a bingo game only if the 

players are permitted to "sleep" a bingo by not covering numbers or other designations that are 

drawn or electronically determined and displayed to the players that would result in a winning 

pattern. MBDA agrees with the Commission that the IGRA definition of bingo does not support 

such a requirement. 
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 3

In fact, nothing about the phrase "first person to cover" or any other aspect of the IGRA 

definition of bingo suggests that the ability to sleep a bingo is a required element of the game. 

Indeed, in determining whether a game satisfied the statutory elements of bingo, the courts have 

evaluated what it means for a player to "cover" the numbers on a bingo card when electronic 

covering is used. U.S. v. 103 Elec. Gambling Devices, No. 98-1984, 1998 WL 827586, at *6 

(N.D. Cal. Nov. 23, 1998), aff'd 223 F.3d 1091 (9th Cir. 2000). In rejecting the argument that 

MegaMania failed to satisfy the definition of bingo because of its electronic daub feature, the 

court stated that "[t]here is nothing in IGRA . . . that requires a player to independently locate 

each called number on each of the player's cards and manually 'cover' each number 

independently and separately." Id. To the contrary, the court emphasized that IGRA "merely 

require[s] that a player cover the numbers without specifying how they must be covered." Id. 

Thus, the manner in which players cover numbers on their card(s) is irrelevant.2

Whether or not one touch auto-daub aid is utilized, the game is still won by the first 

person to cover the winning bingo pattern based on the sequence of bingo numbers for that game 

and the other cards in play. The first player is the one who covers the winning bingo pattern in 

the fewest quantity of bingo numbers drawn/determined for that game. Nothing about the autodaub feature changes the quantity of bingo numbers necessary to be the first player with the 

winning bingo pattern. Even with auto-daub the "cover" function is performed during the game's 

natural progression, only after each release of balls, and thus IGRA's sequencing requirement 

that the cover take place after the release of bingo numbers continues to be satisfied. Auto-daub 

cannot operate independent of the player, and it has no impact on the outcome of the game. The 

statutory requirements of bingo are satisfied so long as numbers are covered when similarly 

numbered objects are drawn or electronically determined. The one touch auto-daub aid feature 

merely assists the player with tracking and covering numbers so the player will not miss a win. 3 

Further, the Ordinance Letter was fundamentally wrong that the element of competition 

in a bingo game is defined by the ability to sleep a bingo. Rather, the competition lies not in the 

ability to sleep, but in the fact that each player is competing against the other players in the game 

to be the first to cover a game-winning pattern on his/her bingo card based on the results of a 

random ball draw or selection of bingo numbers. Whether or not a player wins depends on the 

 

2 The Ordinance Letter cited a 2003 opinion from the NIGC Office of General Counsel as support. 

However, such opinions are not final agency action. Instead, they constitute only the legal opinions of the NIGC's 

lawyers. As explained by the Tenth Circuit Court of Appeals in Seneca-Cayuga Tribe of Oklahoma v. National 

Indian Gaming Commission, 327 F.3d 1019, 1043 (10th Cir. 2003): 

[A]n agency's opinion letter is not binding, nor, unlike an NIGC regulation 

enacted pursuant to the rigors of the Administrative Procedure Act, is it entitled 

to any deference. Instead, the NIGC's opinion letter is at most persuasive 

authority; it is entitled only to that weight that its power to persuade compels.

In the 2003 opinion the Office of General Counsel opinion cites to no authority in making its argument that IGRA's 

language implies a specific kind of either physical or electronic participation and is otherwise unpersuasive. 

3 This is especially important when a player is playing multiple bingo cards, as is common in both Indian and 

non-Indian bingo halls. 
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 4

cards in play by that player and other players and the unique sequence of bingo numbers 

drawn/determined for that game. This competition between the players is present whether or not 

a player is permitted to "sleep" a bingo. As correctly noted by the Commission, "[w]hether a 

player presses a button one time or two, the player is engaging with the machine, participating in 

the bingo game, and competing with fellow players on the electronically linked bingo system." 

78 Fed. Reg. at 37999.

In other words, the use of the one touch auto-daub feature does nothing to disturb the 

competition between players. The aid feature can only be used in the context of an actual bingo 

game where multiple players with unique bingo cards compete and play against a common ball 

draw. The players play against each other in exactly the same way as they do in any other bingo 

game. The only difference is that the aid assists the player with tracking and covering the 

numbers, much like the agents the NIGC Office of General Counsel has consistently opined are 

permissible. See, e.g., Nat’l Indian Gaming Comm’n, National Indian Bingo Game 

Classification Op. (Nov. 14, 2000), available at

http://www.nigc.gov/Portals/0/NIGC%20Uploads/readingroom/gameopinions/bingo/nationalindi

anbingo111400.pdf).4 For this reason, MBDA agrees with the Commission that "the previous 

interpretation's requirement that the cover of the bingo card be done manually by the player 

through an additional pressing of a button is an additional requirement not mandated by the 

statute." 78 Fed. Reg. at 37999.

The Ordinance Letter suggested that it was based on how the game of bingo was 

"traditionally" played. However, the IGRA explicitly recognized that the game of bingo it 

authorized was not limited to the children's paper game, and explicitly authorized the use of 

technologic aids in connection therewith. Accordingly, it is the statutory definition of bingo and 

not tradition that controls whether a game meets the definition of Class II bingo. As explained 

by the Ninth Circuit: 

The Government's efforts to capture more completely the Platonic 

"essence" of traditional bingo are not helpful. Whatever a nostalgic 

inquiry into the vital characteristics of the game as it was played in 

our childhoods or home towns might discover, IGRA's three 

explicit criteria, we hold, constitute the sole legal requirements for 

a game to count as class II bingo.

There would have been no point to Congress's putting the three 

very specific factors in the statute if there were also other, implicit 

criteria. The three included in the statute are in no way arcane if 

one knows anything about bingo, so why would Congress have 

included them if they were not meant to be exclusive?

 

4

Further, the one touch aid feature requires the player to take an affirmative action to begin play and cannot 

operate unless at least two players have purchased bingo cards for that game.
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 5

Further, IGRA includes within its definition of bingo "pulltabs, . . . punch boards, tip jars, [and] instant bingo . . . [if played in 

the same location as the game commonly known as bingo]," 25 

U.S.C. § 2703(7)(A)(i), none of which are similar to the traditional 

numbered ball, multi-player, card-based game we played as 

children. . . . Instant bingo, for example, is as the Fifth Circuit 

explained in Julius M. Israel Lodge of B'nai B'rith No. 2113 v. 

Commissioner, 98 F.3d 190 (5th Cir. 1996), a completely different 

creature from the classic straight-line game. Instead, instant bingo 

is a self-contained instant-win game that does not depend at all on 

balls drawn or numbers called by an external source. See id. at 

192-93.

Moreover, § 2703(7)(A)(i)'s definition of class II bingo includes 

"other games similar to bingo," 25 U.S.C. § 2703(7)(A)(i), 

explicitly precluding any reliance on the exact attributes of the 

children's pastime.

103 Electronic Gambling Devices, 223 F.3d at 1096. See also 162 MegaMania Gambling 

Devices, 231 F.3d at 723. ("While the speed, appearance and stakes associated with MegaMania 

are different from traditional, manual bingo, MegaMania meets all of the statutory criteria of a 

Class II game, as previously discussed.").5 

 

5

In the preamble to its 1992 definition regulations, the NIGC stated:

[One] commenter suggested that class II gaming be limited to games involving 

group participation where all players play at the same time against each other for 

a common prize. In the view of the Commission, Congress enumerated those 

games that are classified as class II gaming (with the exception of "games 

similar to bingo"). Adding to the statutory criteria would serve to confuse rather 

than clarify. Therefore, the Commission rejected this suggestion.

[Another] commenter questioned whether the definition of bingo in the IGRA 

limits the presentation of bingo to its classic form. The Commission does not 

believe Congress intended to limit bingo to its classic form. If it had, it could 

have spelled out further requirements such as cards having the letters "B" "I"

"N" "G" "O" across the top, with numbers 1-15 in the first column, etc. In 

defining class II to include games similar to bingo, Congress intended to include 

more than "bingo in its classic form" in that class.

. . . Congress enumerated the games that fall within class II except for games 

similar to bingo. For games similar to bingo, the Commission added a definition 

that includes the three criteria for bingo and, in addition, requires that the game 

not be a house banking game as defined in the regulations. The Commission 

believes that Congress did not intend other criteria to be used in classifying 

games in class II.

Definitions under the Indian Gaming Regulatory Act, 57 Fed. Reg. 12,382, 12, 383, 12,387 (April 

9, 1992).
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 6

While Congress was clear that tribal bingo was not limited by traditional notions of the 

game, it was equally clear that it intended for tribes to have "maximum flexibility" to use 

"modern" technology to conduct bingo games. S. Rep. No. 100-446, at 9 (1988), reprinted in

1988 U.S.C.C.A.N. 3071, 3079. In this regard, it is relevant that this type of bingo aid feature 

predates passage of the IGRA in 1988.

6

 

It also is relevant that this very same bingo aid feature is widely permitted today by the 

federal government on U.S. military reservations and in many other non-Indian bingo facilities. 

The Commission's proposed interpretation is consistent with Congress' intent that tribes have 

"maximum flexibility" to use such "modern" technology to play bingo games, and in its statutory 

authorization for tribes to use such aids. As the Commission correctly noted, it "should give 

consideration to an interpretation of bingo that embraces rather than stifles technological 

advancements in gaming." 78 Fed. Reg. at 38000.

2. The One Touch Auto-Daub Feature Would Not Transform the Game of Bingo 

into a Class III Facsimile.

The use of the one touch auto-daub feature does not transform a game from Class II 

bingo into a Class III facsimile. As explained by the Commission: "the previous interpretation 

concluded 'as it is applied to bingo, . . . the "except when" language of 502.8 [] require[s] some –

even minimal participation in the game by the players above and beyond the mere pressing of a 

 

6

For example, an auto-daub aid feature for bingo was patented in 1986. As described in Electronic Card and 

Board Game, U.S. Patent No. 4,624,462 (Nov. 25, 1986):

The primary objective of the invention is to provide an electronic card and board 

game which relieves the player from the tedious and error-prone operation of 

manual marking matches on the game card. In particular, it is the objective of 

the invention to provide a completely automated bingo game in which the player 

does not have even to touch or watch the game card or the game board at any 

time during successive rounds of the game, whereas the caller has only to push a 

single button to control the game. It is the further objective of the invention to 

provide a design of the game board which facilitates a broad and easy selection 

of the game cards and games being played with the help of the same game 

board. An additional objective of the invention is to preclude unauthorized or 

untimely change of the game card by the player.

In fact, fully electromechanical linked aids to the game of bingo featuring full auto-daub were developed as early as 

1956 which allowed a player to "either participate in illuminating the numbers or sit back and watch his board 

operate automatically" and ensured that the "player does not have to watch or exert himself play a board to be 

assured of winning if in fact the board before him comes up with a winning combination." U.S. Patent No. 

2,760,619 (Aug. 28, 1956). See also, e.g., Electrically Operated Bingo Game Apparatus, U.S. Patent No. 3,671,041 

(June 20, 1072). Moreover, linked electronic gaming systems were well-known before 1988. See, e.g., Video 

Consultants of Nebraska, Inc. v. Douglas, 367 N.W.2d 697, 699 (Neb. 1985) ("Each location consists of one or more 

lottery game terminals connected to an agent terminal.")
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 7

button to begin the game.' We find this interpretation in error because whether a game 

constitutes bingo or not cannot be reduced to the number of times a button is pushed. Rather, as 

set out above, we must look to whether the statutory elements of the game are met." 78 Fed. 

Reg. at 38000. The Commission's position is fully consistent with the statute and regulations. 

The IGRA provides that Class II gaming does not include "electronic or 

electromechanical facsimiles of any game of chance," 25 U.S.C. § 2703(7)(B)(ii), however, the 

term "facsimile" is not defined by the statute. The Commission has defined facsimile to mean:

Electronic or electromechanical facsimile means a game played in 

an electronic or electromechanical format that replicates a game of 

chance by incorporating all of the characteristics of the game, 

except when, for bingo, lotto, and other games similar to bingo, the 

electronic or electromechanical format broadens participation by 

allowing multiple players to play with or against each other rather 

than with or against a machine.

25 C.F.R. § 502.8 (emphasis added). Thus, the definition provides that a bingo game can be 

played in an "electronic or electromechanical format" without becoming a facsimile as long as 

the format requires the players to play with or against each other rather than with or against a 

machine.7

The Ordinance Letter failed to recognize that a format that requires players to play with 

or against each other necessarily is one that does not incorporate or replicate all of the features of 

the bingo game. The most fundamental aspect of the game – players competing against each 

other with different bingo cards against a common ball draw – is not electronic or automatic. 

The game is, in fact, a live bingo game that is taking place across a linked network of actual 

players. This remains the case whether or not auto-daub is used. Stated another way, the 

fundamental characteristics of the game are preserved, unaltered by the game's electronic format. 

As explained by the NIGC:

IGRA permits the play of bingo, lotto, and other games similar to 

bingo in an electronic or electromechanical format, even a wholly

electronic format, provided that multiple players are playing with 

or against each other. These players may be playing at the same 

facility or via links to players in other facilities. A manual 

component to the game is not necessary. What IGRA does not 

allow with regard to bingo, lotto, and other games similar to bingo, 

is a wholly electronic version of the game that does not broaden 

participation, but instead permits a player to play alone with or 

against a machine rather than with or against other players. 

 

7 The one touch auto-daub aid feature would, in the context of an electronically linked bingo game, assist the 

player and the playing of the game by tracking and covering bingo numbers for the player. As such, it falls squarely 

within the Commission's definition of electronic, computer, or other technologic aids found at 25 C.F.R. § 502.7. 
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 8

67 Fed. Reg. 41,166, 41,171 (June 17, 2002) (emphasis added).

The NIGC's existing definition of facsimile is consistent with legislative history and case 

law. The legislative history indicates that Congress did not intend the facsimile prohibition to 

restrict the use of electronics to play games that meet the IGRA definition of bingo. Instead, the 

term facsimile was used as shorthand for games where, unlike true bingo games, the player plays 

only with or against the machine and not with or against other players. As explained in the 

Senate Report:

The Committee specifically rejects any inference that tribes should 

restrict class II games to existing games [sic] sizes, levels of 

participation, or current technology. The Committee intends that 

tribes be given the opportunity to take advantage of modern 

methods of conducting class II games and the language regarding 

technology is designed to provide maximum flexibility. In this 

regard, the Committee recognizes that tribes may wish to join with 

other tribes to coordinate their class II operations and thereby 

enhance the potential of increasing revenues. For example, linking 

participant players at various reservations whether in the same or 

different States, by means of telephone, cable, television or 

satellite may be a reasonable approach for tribes to take. 

Simultaneous games participation between and among reservations 

can be made practical by use of computers and 

telecommunications technology as long as the use of such 

technology does not change the fundamental characteristics of the 

bingo or lotto games and as long as such games are otherwise 

operated in accordance with applicable Federal communications 

law. In other words, such technology would merely broaden the 

potential participation levels and is readily distinguishable from the 

use of electronic facsimiles in which a single participant plays a 

game with or against a machine rather than with or against other 

players.

S. Rep. No. 100-446, at 9 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3079 (emphases added).

Thus, as now recognized by the Commission, the use of technology, even if it allows 

fundamental characteristics of bingo to be played in an electronic format, does not necessarily 

make a bingo game a "facsimile." Rather, a bingo game played using technologic aids (which 

are expressly permitted by 25 U.S.C. § 2703(7)(A)(i)), only becomes a facsimile if the 
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 9

technology permits the player to play "with or against a machine rather than with or against other 

players."

8

 

The courts have agreed with this interpretation. In the MegaMania cases, the courts ruled 

that MegaMania is not an exact copy or duplicate of bingo and thus not a facsimile because the 

game of bingo is not wholly incorporated into the player station; rather, the game of bingo is 

independent from the player station, so that the players are competing against other players in the 

same bingo game and are not simply playing against the machine. See 103 Electronic Gambling 

Devices, 223 F.3d at 1100; 162 MegaMania Gambling Devices, 231 F.3d at 724.9 The addition 

of a one touch auto-daub aid feature does not change the fact that players are competing against 

each other in a common game.

Thus, no additional participation is required to prevent the game from becoming a 

facsimile. Instead, the NIGC definition of facsimile correctly recognizes that, regardless of the 

number of electronic aids used in a bingo game, the game does not become a facsimile if "the 

electronic or electromechanical format broadens participation by allowing multiple players to 

play with or against each other rather than with or against a machine." 25 C.F.R. § 502.8 

(emphasis added). As long as there are players playing against each other, the game is not a 

facsimile. 

 

8 A good example of a facsimile of a game of chance is video poker, when played in self-contained game 

terminals. Such a game, although it uses poker graphics and terminology, is a wholly electronic game that does not 

permit competition among players. 

9 The applicable test for distinguishing between aids and facsimiles was explained by the Tenth Circuit:

Courts reviewing the legislative history of the Gaming Act have recognized an 

electronic, computer or technological aid must possess at least two 

characteristics: (1) the "aid" must operate to broaden the participation levels of 

participants in a common game, see Spokane Indian Tribe v. United States, 972 

F.2d 1090, 1093 (9th Cir. 1992); and (2) the "aid" is distinguishable from a 

"facsimile" where a single participant plays with or against a machine 

rather than with or against other players. Cabazon Band of Mission Indians 

v. National Indian Gaming Comm'n, 14 F.3d 633, 636-37 (D.C. Cir.), cert. 

denied, 512 U.S. 1221 (1994) (Cabazon III). Courts have adopted a plainmeaning interpretation of the term "facsimile" and recognized a facsimile of a 

game is one that replicates the characteristics of the underlying game. See

Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir. 1994)

("the first dictionary definition of 'facsimile' is 'an exact and detailed copy of 

something.' " (quoting Webster's Third New Int'l Dictionary 813 (1976))), cert. 

denied, 516 U.S. 912 (1995); Cabazon II, 827 F. Supp. at 32 (same); Cabazon 

III, 14 F.3d at 636 (stating "[a]s commonly understood, facsimiles are exact 

copies, or duplicates.").

162 MegaMania Gambling Devices, 231 F.3d at 724 (emphasis added).
Tracie Stevens, Chairperson

Daniel Little, Commissioner

August 16, 2013

Page 10

Conclusion

MBDA is pleased that the Commission has decided to clarify that a game that is 

otherwise Class II bingo is not converted into a Class III game through the addition of a one 

touch auto daub feature. Congress provided a bright line test to distinguish electronically-aided 

Class II games from Class III games. That line is not based on the number of player "touches" 

required to interact with the game. Rather, Class II bingo includes any game that meets the three 

statutory requirements set forth by Congress. Such games may be played with any form of 

electronic, computer or other technologic aid, so long as the aid does not permit a single player 

to play alone with or against the machine. 

Sincerely,

Ronnie W. Harris

President & CEO