New York State Broadcasters Ass'n v. United States

• Decision Date: 11 August 1969
• Docket Number: Docket 32981,No. 633,634,32982.,633
• Citation: 414 F.2d 990
• Parties: The NEW YORK STATE BROADCASTERS ASSOCIATION, Inc. and Metromedia, Inc., Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

414 F.2d 990 (1969)

The NEW YORK STATE BROADCASTERS ASSOCIATION, Inc. and Metromedia, Inc., Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents.

Nos. 633, 634, Docket 32981, 32982.

United States Court of Appeals Second Circuit.

Argued June 24, 1969.

Decided August 11, 1969.

Ephriam London, New York City, (John W. Tabner, Albany, Aaron Cantor, New York City, Franklin S. Bonem, on the brief), for petitioner The New York State Broadcasters Assn., Inc.

Robert A. Dreyer, Short Hills, N. J. (Alfred L. Schwartz, New York City, Thomas J. Dougherty, Washington, D. C., on the brief), for petitioner Metromedia, Inc.

Katrina Renouf, Washington, D. C. (Richard W. McLaren, Asst. Atty. Gen., Gregory B. Hovendon, Atty., U. S. Dept. of Justice, Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, Federal Communications Commission, on the brief), for respondents.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Ruth Kessler Toch, Sol. Gen., Julius L. Sackman, Asst. Atty. Gen., filed an amicus curiae brief on behalf of the State of New York.

Before HAYS and FEINBERG, Circuit Judges, and JAMESON, District Judge.^*

FEINBERG, Circuit Judge:

The New York State Broadcasters Association, Inc. and Metromedia, Inc. have petitioned for review of a declaratory ruling of the Federal Communications Commission on whether certain proposed broadcasts about the New York State Lottery would violate 18 U.S.C. § 1304, which prohibits broadcasting lottery information, and the Commission's regulations. The Commission specifically ruled as to some types of broadcasts but declined to do so with regard to others, relying instead on general statements of the purpose of the statute and regulations. For reasons set forth below, we hold that the declaratory ruling was incomplete and remand the matter to the Commission.

I

During its 1966 session, the New York State Legislature passed a measure that provided for a vote on a proposed amendment to the state constitution. The amendment authorized the creation of a state lottery and was approved by a substantial majority of New York voters in the November 1966 election. Thereafter, in April 1967, the Legislature passed the New York State Lottery Law, which provided for the sale of lottery tickets with the net proceeds of the sales to be used exclusively for educational purposes by state and local entities.

In June 1967 the Lottery commenced operation and in the meantime has become a familiar feature of the state landscape. Advertisements on billboards, in newspapers and on public transportation posters proclaim the chance of a lifetime to help education and at the same time win a lottery prize. Despite such promotional efforts, however, the Lottery has been a disappointment to its supporters, and the state has for the most part had to look elsewhere for the revenues to pay the increasing costs of education. Whatever the reasons for the failure of the Lottery to produce the expected revenues, at least some people believe that if would be more successful but for the almost total absence of lottery news, information and advertising on television and radio. As a consequence, the state has sought to increase interest in the Lottery by using radio and television, and this appeal is one result of that effort.

Petitioner The New York State Broadcasters Association, Inc. is an organization of radio and television broadcasters whose members own 175 broadcast stations, all of which are licensed by the Commission. Petitioner Metromedia, Inc. is one of the licensed broadcaster members of the Association; it owns and operates radio and television stations in New York and elsewhere. According to petitioners' brief, Metromedia and other members of the Association have undertaken to broadcast advertisements and other information about the New York State Lottery if such broadcasts will not result in revocation of or inability to renew their licenses. However, until now they have refrained from making such broadcasts for fear of violating the anti-lottery provisions of 18 U.S.C. § 1304 and the corresponding FCC regulations.

On March 6, 1968, in an attempt to clarify the Commission's position on various types of broadcasts, petitioners filed a request for a declaratory ruling that 18 U.S.C. § 1304 and the regulations did not apply to broadcasts about the New York State Lottery. More specifically, petitioners requested assurances that no sanction would be applied against a broadcaster who "broadcasts or proposes to broadcast" any of the following:

(1) news reports (by aural or visual-and-aural means) of recent events about or relating to the Lottery. The term "news reports" is intended to include accounts suitable for inclusion as news in a newspaper, of events of current interest concerning the Lottery or its operations, or that have some connection with the Lottery. Attached as Appendix II are a number of articles and news items relating to the Lottery that were published in newspapers. The material is included to exemplify material deemed newsworthy by newspaper publishers, and by this inquiry the Association and Metromedia seek to determine if such reports, articles and news items may be broadcast by radio and television stations;

(2) news reports (by aural and visual-and-aural means) about illegal lotteries or other illegal gambling (but not including information tending to aid or facilitate the planning or operation of an illegal lottery);

(3) announcements (unpaid) of the places where Lottery tickets may be purchased, where, how and when winning tickets will be drawn, the amounts of the prizes, and how the proceeds of the sales of Lottery tickets are and will be distributed;

(4) advertisements of the Lottery;

(5) live broadcasts or simultaneous accounts of public events relating to the Lottery (for example, the broadcast by television of the drawing of the winning Lottery tickets by a prominent actress or by a government official, or the broadcast of a speech given by a public official such as the statement made by Joseph H. Murphy, New York State Commissioner of Taxation and Finance, before a United States Senate Committee, in which Commissioner Murphy described the operation of the Lottery and its purposes and stated that banks in selling tickets for the Lottery were rendering a public service);

(6) interviews with persons holding winning Lottery tickets, relating, among other matters of general interest, to the number of tickets they purchased, their expectation of winning a prize, their reactions upon learning that they held winning tickets, and what they did or intend to do with the prize money;

(7) documentary programs on the Lottery, including such material as (a) statements by and questioning of public officials, prominent citizens and religious leaders who favor or oppose the Lottery, (b) descriptions (by aural and visual-and-aural means) of the way the Lottery operates and the proceeds are used, and (c) reporting the results of opinion polls on the Lottery;

(8) documentary programs exposing illegal lotteries, including such material as how and where they operate (and if it is the fact) the knowledge, indifference or participation of law enforcement officials, and showing effects of such illegal gambling on government, on the attitudes of the public, and on criminal conduct;*

(9) editorial comment on the Lottery, on its operation, on its purposes, on the promotion of the Lottery and on the public officials who administer it;

(10) panel discussions on various aspects of the Lottery, including those in which proponents and opponents, government officials who administer the Lottery, and others may participate, and in which questions and comments may be received from a studio audience.

* To exemplify the programs that are the subject of the request for a ruling, there is attached as Appendix III the script of a program broadcast in 1963 entitled "Biography of a Bookie Joint."

Before the Commission, the State of New York supported petitioners' request for a ruling and has filed an amicus brief in this court. In addition, the City of New York, interested both in its governmental and fiscal capacity and as a licensed broadcaster, filed a separate request and was a party before the Commission although it has taken no formal part in these review proceedings.

On September 25, 1968, the Commission issued its declaratory ruling,¹ holding that both the statute and the rules applied to state sponsored lotteries. With regard to the specific types of proposed broadcasts, the Commission ruled as follows:

7. * * * It remains to be determined, in light of the language of the statute and rules, what, if anything, may properly be broadcast concerning this lottery. What is sought is an interpretation of the phrase "the broadcasting of, any advertisement of or information concerning any lottery," which is found in both the statute and the rules. It is clearly not practicable to attempt to rule on all of the various materials submitted by the parties in the absence of particular factual situations. However, some generalized guidance can be given.

8. The statute is plainly directed at material which promotes lotteries. This includes any material which, in the generally accepted sense of the terms, is intended to advertise, promote or encourage the successful conduct of a lottery. In particular, of course, no advertisements of lotteries may be broadcast.

9. On the other hand, the phrase "any information" about lotteries, should not, in our view, be construed to bar ordinary news reports concerning legislation authorizing the institution of a State lottery, or of public debate on the course State policy should take. Licensee editorials on public policy in this area are also not, in our view, proscribed by the statute, and our rules are not to be read as prohibiting them. In the category of news, any material broadcast in normal good faith coverage, which is

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