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PLAYERS INT'L, INC. v. UNITED STATES

December 19, 1997

PLAYERS INTERNATIONAL, INC., PLAYERS LAKE CHARLES, LLC, PLAYERS STAR PARTNERSHIP, SOUTHERN ILLINOIS RIVERBOAT/CASINO CRUISES, INC., NATIONAL ASSOCIATION OF BROADCASTERS, TEXAS ASSOCIATION OF BROADCASTERS, NEW JERSEY BROADCASTERS ASSOCIATION, MISSISSIPPI ASSOCIATION OF BROADCASTERS, LOUISIANA ASSOCIATION OF BROADCASTERS, MISSOURI BROADCASTERS ASSOCIATION, WEST VIRGINIA BROADCASTERS ASSOCIATION, 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, Defendants.



The opinion of the court was delivered by: RODRIGUEZ

 RODRIGUEZ, District Judge

 This matter is before the court on defendants' motion for summary judgment and plaintiff's cross motion for summary judgment on Count I (alleging First Amendment violations) and Count II (alleging equal protection violations under the Fifth Amendment) of its complaint. Plaintiffs are a casino developer/operator and its wholly owned subsidiaries, a national association of broadcast licensees, nine state associations of broadcast licensees, and two licensees of broadcast radio stations who either seek to purchase radio and television advertisements for casino gambling or to sell such broadcast advertisements for casino gambling. They commenced this action against the United States and the Federal Communications Commission ("FCC") seeking to enjoin the government from enforcing 18 U.S.C. § 1304 and its corresponding FCC regulation 47 C.F.R. § 73.121. *fn1" Plaintiffs assert they want to purchase or sell advertising time concerning gaming activities by casino enterprises which fail to qualify under any of the listed exemptions to 47 C.F.R. § 73.1211, and contend that as a result of the FCC enforcement of U.S.C. § 1304 its members have been "deprived of advertising revenues and are losing business to other nonbroadcast competitors that are able to advertise non-Indian casino gaming." (Plfs.' Br. at 8). *fn2" Plaintiffs further believe that the FCC's enforcement of § 1304 has "led to confusing and arbitrary set of unduly restrictive regulations" avowed to control the social harm caused by casino gambling (Plfs.' Br. at 3), but which are contravened by the "broad" exceptions which authorize the promotion of particular casino gaming activities, (Plfs.' Br. at 17). Finally, plaintiffs assert that the recent Supreme Court decision in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996), mandates a ruling in support of their position.

 Grounding their arguments in legal and social history with respect to public participation in casino gambling, defendants contend that § 1304 and its corresponding regulation are constitutionally sound, and that 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711, does not impact on the constitutionality of the laws and regulations at issue. Defendants conclude that a finding in favor of plaintiffs would offend § 1304 by upsetting the goals which aim to discourage public participation in casino gambling advanced through § 1304's corresponding regulation.

 I. LEGAL BACKGROUND

 Title 18 U.S.C. § 1304 provides:

 
Whoever broadcasts by means of any radio or television station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined under this title or imprisoned not more than one year, or both.
 
Each day's broadcasting shall constitute a separate offense.
 
(a) No license of an AM, FM, or television broadcast station, except as in paragraph (c) of this section, shall broadcast any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise or scheme, whether said list contains any part or all of such prizes.

 47 C.F.R. § 73.121. The exceptions to this regulation read as follow:

 
(c) The provisions of paragraphs (a) and (b) of this section shall not apply to an advertisement, list of prizes or other information concerning:
 
(1) A lottery conducted by a State acting under the authority of State law which is broadcast by a radio or television station licensed to a location in that State or any other State which conducts such a lottery. (18 U.S.C. 1307(a); 102 Stat. 3205).
 
(2) Fishing contests exempted under 18 U.S. Code 1305 (not conducted for profit, ie., all receipts fully consumed in defraying the actual costs of operation).
 
(3) Any gaming conducted by an Indian Tribe pursuant to the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.)
 
(4) A lottery, gift enterprise or similar scheme, other than one described in paragraph (c)(1) of this section that is authorized or not otherwise prohibited by the State in which it is conducted and which is:
 
(I) Conducted by a not-for-profit organization or a governmental organization (18 U.S.C. 13079a); 102 Stat. 3205); or
 
(ii) Conducted as a promotional activity by a commercial organization and is clearly occasional and ancillary to the primary business of that organization. (18 U.S.C. 1307(a); 102 Stat. 3205).

 47 C.F.R. § 73.1211.

 Plaintiffs argue that the exceptions, particularly the Indian exception, have a detrimental economic impact on non-Indian casinos, and lack of "substantive difference between such activities [promoted via the exceptions] and the gaming activities conducted by non-Indian, commercially operated casinos." (Plfs.' Br. at 17-18). In contrast, defendants argue that the benefits provided to the exempted groups are supported by legislative concerns for the groups' economy and self sufficiency. As for the Indian exception, defendants argue it "stems from the federal government's unique Constitutional and trust obligation toward the Indian tribes[,]" an obligation which is not applicable to the plaintiffs in this case. (Dfts.' Br. at 3).

 II. STANDARD

 Fed. R. Civ. P. 56(c) provides:

 
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admission 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 entry of summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about it might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable ...


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