Valley Broadcasting Co. v. US
| Decision Date | 13 April 1993 |
| Docket Number | No. CV-S-92-400-PMP (RJJ).,CV-S-92-400-PMP (RJJ). |
| Citation | 820 F. Supp. 519 |
| Parties | VALLEY BROADCASTING COMPANY, d/b/a KVBC (TV), Channel 3, Las Vegas, Nevada, and Sierra Broadcasting Company, d/b/a KRNV (TV), Channel 4, Reno, Nevada, Plaintiffs, v. UNITED STATES of America and Federal Communications Commission, Defendants. |
| Court | U.S. District Court — District of Nevada |
COPYRIGHT MATERIAL OMITTED
Janet F. Rogers, Las Vegas, NV, Gerald Rourke, Washington, DC, for plaintiffs.
Greg Addington, Asst. U.S. Atty., Las Vegas, NV, Peter D. Coffman, Trial Atty., Federal Programs Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, for defendants.
Before the Court for consideration are Plaintiffs Valley Broadcasting Company and Sierra Broadcasting Company's Motions for Summary Judgment (# 18 and # 23) and Defendants United States of America and Federal Communications Commission's Cross-Motion for Summary Judgment (# 24).
Plaintiff Valley Broadcasting Company ("Valley") is a Nevada corporation licensed by the Federal Communications Commission ("FCC") to operate a television station, KVBC, in Las Vegas, Nevada. The primary geographic market which KVBC serves is Las Vegas and Southern Nevada. KVBC's transmitter, however, has the capacity to produce a grade B signal which reaches the Utah/Nevada border.1 Based on this, potentially 4% (13,200/302,200) of all households which may receive KVBC signals are Utah citizens. Similarly, Plaintiff Sierra Broadcasting Company ("Sierra") is a Nevada corporation licensed by the FCC to operate KRNV, a television station located in Reno, Nevada. Although the primary broadcast area for KRNV is Reno, approximately 19% (37,200/197,200) of the households which receive KRNV signals reside in California. See Cross-Motion for Summary Judgment (#24), Exhibit C.2
Plaintiffs desire to broadcast commercials related to legal gaming activities located in Nevada such as blackjack, craps, poker, roulette, slot machines, and other lawful games of chance. Reply (#28) at 3.3 Plaintiffs, however, have been deterred from doing so based on the FCC's enforcement of 18 U.S.C. § 13044 and 47 C.F.R. § 73.12115, which prohibit the broadcast of all promotional advertising involving casino gambling. Motion for Summary Judgment (# 18), Exhibit 3 at 3.6 In support of this policy, the FCC maintains that it has a substantial interest in inhibiting the growth of legalized gambling and its perceived social ills, as well as a federalism interest in furthering the public policies of California and Utah which prohibit casino gambling. See Cross-Motion for Summary Judgment (# 24) at 41-48: Reply (# 40) at 7-16.
Plaintiffs seek injunctive relief and a declaratory judgment from this Court that gambling and casino activities which are legal in the State of Nevada do not come within the scope of § 1304 or § 73.1211, or if they do, that the statute and regulation as construed by the FCC are unconstitutional. Plaintiffs argue that: (1) advertising casino gaming is not a "lottery, gift enterprise, or similar scheme" within the meaning of § 1304 and § 73.1211; (2) that § 1304 and § 73.1211 as applied to casino gambling violate the First Amendment's protection of commercial speech; and (3) the FCC's prohibition on advertising of casino gaming by television or radio stations, and not other forms of the media, violates the Equal Protection Clause.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986); California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988).
If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Commodity Futures Trading Commission v. Savage, 611 F.2d 270 (9th Cir.1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.
A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir. 1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982).
All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. Admiralty Fund v. Tabor, 677 F.2d 1297, 1298 (9th Cir.1982).
The trilogy of Supreme Court cases cited above establishes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327, 106 S.Ct. at 2555, quoting Fed.R.Civ.P. 1). See also Avia Group Int'l. Inc. v. L.A. Gear Cal., 853 F.2d 1557, 1560 (Fed.Cir.1988).
Defendants contend that Plaintiffs do not have standing to challenge § 1304 and § 73.1211. More specifically, Defendants contend that Plaintiffs are not presently threatened with prosecution under § 1304, and that Plaintiffs have not given any particulars about the advertisements which they desire to broadcast. Cross-Motion for Summary Judgment (# 24) at 10. This Court disagrees.
As illustrated by the Exhibits submitted by Plaintiffs, the FCC actively enforces the provisions of § 1304 and § 73.1211 through the use of fines ranging up to $12,500. Second Motion for Summary Judgment (# 23), Exhibit 8. Moreover, Plaintiffs have clearly stated the nature and content of the advertisements which they desire to broadcast, and the FCC has historically found similar advertisements in violation of these provisions. Second Motion for Summary Judgment (# 23), Exhibits 8, 9, and 10. Accordingly, since Plaintiffs have demonstrated a reasonable threat of injury as a result of the FCC's enforcement of § 1304 and § 73.1211, this Court finds that Plaintiffs have standing to bring their present claims. See Adult Video Association v. Barr, 960 F.2d 781, 785-86 (9th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3371 (Nov. 2, 1992).
Plaintiffs argue that § 1304, by its terms, does not prohibit broadcasting advertisements relating to casino gaming. Plaintiffs insist that in order to fall within the scope of § 1304, the advertisement must relate to a "lottery, gift enterprise, or similar scheme." Plaintiffs contend that since casino games such as blackjack, craps, or roulette are qualitatively different than a "lottery" or "gift enterprise," such games cannot be considered "similar schemes" under § 1304.7
The seminal case which defines the terms "lottery, gift enterprise, or similar scheme" is F.C.C. v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699 (1954). In American Broadcasting, recognizing that the language and legislative history of § 1304 was somewhat unclear, the Supreme Court stated that there are three essential elements of a "lottery, gift enterprise, or similar scheme": (1) the distribution of prizes; (2) according to chance; (3) for consideration. Id. at 289-91, 74 S.Ct. at 597-98; see also 47 C.F.R. § 73.1211(b).
Applying these elements to the casino activities which Plaintiffs desire to advertise in Nevada leads to the inescapable conclusion that such games fall within the reach of § 1304. There can be no real dispute that the money bet in such games qualifies as consideration, the money received upon a successful wager constitutes a prize, and that winning these games is dependant largely on chance. Therefore, Plaintiffs' argument that casino gaming does not fall within the scope of § 1304 must be rejected.
To continue reading
Request your trial
-
United States v. Dicristina
...Gaming Regulatory Act, see Part V(B)(3)(a), infra] includes games of chance such as bingo or poker.”); Valley Broadcasting Co. v. United States, 820 F.Supp. 519, 522 (D.Nev.1993) (“Plaintiffs desire to broadcast commercials related to legal gaming activities located in Nevada such as blackj......
-
United States v. Dicristina
...Gaming Regulatory Act, see Part V(B)(3)(a), infra] includes games of chance such as bingo or poker."); Valley Broadcasting Co. v. United States, 820 F. Supp. 519, 522 (D. Nev. 1993) ("Plaintiffs desire to broadcast commercials related to legal gaming activities located in Nevada such as bla......
-
Players Intern., Inc. v. U.S.
......, Massachusetts Broadcasters Association, Inc., New Hampshire Association of Broadcasters, Inc., Illinois Broadcasters Association, H & D Broadcasting Limited Partnership, Raritan Valley Broadcasting Co., Inc., Plaintiffs, . v. . UNITED STATES of America and Federal Communications Commission, ......
-
Greater New Orleans Broadcasting Ass'n v. U.S.
...(1994); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388-9, 89 S.Ct. 1794, 1805-06, 23 L.Ed.2d 371 (1969).8 But see Valley Broadcasting Co., 820 F.Supp. at 525-27. In Valley Broadcasting Co., the district court struck down as unconstitutional section 1304 finding that it did not directly......