** PART I RE: ADVERTISEMENT OF BINGO GAMES BY RADIO BROADCASTERS
ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN ATTORNEY GENERAL OPINION REGARDING THE LEGAL PROPRIETY OF OKLAHOMA RADIO STATIONS BROADCASTING ADVERTISEMENTS FOR BINGO GAMES. THIS OFFICE HAS DETERMINED YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER.
FOLLOWING OUR TELEPHONE CONVERSATION TO DISCUSS YOUR REQUEST, I UNDERSTAND YOUR QUESTION TO BE THE FOLLOWING:
MAY OKLAHOMA RADIO STATIONS BROADCAST ADVERTISEMENTS FOR BINGO GAMES OPERATED BY (1) INDIAN TRIBES, (2) INDIAN INDIVIDUALS OR (3) NON-INDIANS?
THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.
FEDERAL REGULATION Y
GENERALLY, BROADCASTING AN ADVERTISEMENT FOR GAMBLING IS A FEDERAL MISDEMEANOR, PUNISHABLE BY A FINE UP TO ONE THOUSAND DOLLARS ($1,000) AND IMPRISONMENT FOR NOT MORE THAN ONE YEAR. 18 U.S.C.A. 1304. IN ADDITION TO THESE CRIMINAL PENALTIES, A BROADCASTER WHO VIOLATES THE FEDERAL BAN ON GAMBLING ADVERTISEMENTS IS SUBJECT TO LICENSE REVOCATION AND ADMINISTRATIVE FINES UP TO TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) IMPOSED BY THE FEDERAL COMMUNICATIONS COMMISSION. 47 U.S.C.A. 312 AND 47 U.S.C.A. 503.
SPECIFICALLY, FEDERAL LAW PROHIBITS KNOWINGLY BROADCASTING THE ADVERTISEMENT OF "ANY LOTTERY, GIFT ENTERPRISE, OR SIMILAR SCHEME, OFFERING PRIZES DEPENDENT IN WHOLE OR IN PART UPON LOT OR CHANCE." 18 U.S.C.A. 1304. A LOTTERY IS ANY ACTIVITY IN WHICH A PRIZE IS DISTRIBUTED BY CHANCE TO A PERSON WHO HAS PAID SOMETHING OF VALUE TO PARTICIPATE IN THE GAME. FEDERAL COMMUNICATIONS COMMISSION V. AMERICAN BROADCASTING CO., 347 U.S. 284, 74 S.CT. 593, 98 L.ED. 699, 706 (1954), REHEARING DENIED. A BINGO GAME FOR WHICH A FEE MUST BE PAID TO PLAY FALLS WITHIN THIS DEFINITION OF A LOTTERY. SEE. E.Q., CAPLES CO. V. UNITED STATES, 100 U.S.APP. D.C. 126, 243 F.2D 232 (1957).
THIS RESTRICTION ON BROADCAST CONTENT DOES NOT VIOLATE THE FIRST AMENDMENT'S GUARANTEES OF A FREE PRESS AND FREE SPEECH. NEW YORK STATE BROADCASTERS ASSOCIATION V. UNITED STATES, 414 F.2D 990 (2ND CIR. 1969), CERT. DENIED,396 U.S. 1061, 90 S.CT. 752, 24 L.ED.2D 755 (1970). AND IT IS ENTIRELY APPROPRIATE FOR THE GOVERNMENT TO RESTRICT OR BAN THE AIRING OF GAMBLING ADVERTISEMENTS EVEN THOUGH THE GAMBLING ACTIVITY ITSELF IS LEGAL. NEW YORK STATE BROADCASTERS, 414 F.2D AT 996.
UNTIL 1975, CONGRESS PROHIBITED ALL GAMBLING ADVERTISEMENTS, BUT BEGINNING IN THAT YEAR, THE FEDERAL LEGISLATURE BEGAN CREATING NARROW EXCEPTIONS TO THE BAN. TODAY, FEDERAL LAW ALLOWS BROADCASTERS TO AIR COMMERCIALS FOR GAMES OF CHANCE OPERATED BY:
"1. THE STATE WHERE THE RADIO STATION IS LOCATED OR TO WHICH IT IS LICENSED TO BROADCAST SO LONG AS THE STATE OPERATES THE GAME PURSUANT TO STATE LAW;
2. A NOT-FOR-PROFIT ORGANIZATION THAT QUALIFIES FOR TAX-EXEMPT STATUS UNDER 26 U.S.C.A. 501 SO LONG AS THE GAME IS NOT PROHIBITED BY THE LAW OF THE STATE WHERE IT IS PLAYED;
3. A GOVERNMENTAL ORGANIZATION SO LONG AS THE GAME IS NOT PROHIBITED