# Appendix — United States v. New Jersey State Lottery Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1616%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 371

## Text

Supreme Court of the United States

Octoser TERM, 1973

No. 73-1471

UNITED STATES OF AMERICA AND FEDERAL
COMMUNICATIONS COMMISSION, pretirioners,
v.

NEW JERSEY STATE LOTTERY COMMISSION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT

INDEX

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Request for Declaratory Ruling Respecting New Jer-
sey State Lottery, filed by Jersey Cape Broadcast-
ing Corp., dated February i8, 1971 .............

Declaratory Ruling, FCC 71-722, adopted July 14,
ME kde s PESSAA CRA CASNSACAGEAEOAS VEER OS ERAAD

Fublie Notice, Broadcast of Lottery Information, FCC
71-763, released July 27, 1971 ............ceceees

Petition for Reconsideration of Declaratory Ruling,
FCC 71-722, and covering letter, dated August 16,
1971, filed by Attorney General, State of New
NE CAREC uOUcseccedunuds\eannadexebudesases

il Index Continued

Page
*Memorandum Opinion and Order, released July 27,
BOE anean ne bAceeesicndeesewedsssenana Pet. App. l3a

*Opinion of the United States Court of Appeals for
the Third Cireuit, filed January 2, 1974 ...Pet. App. la

*Judgment on Rehearing, dated January 2, 1974
Pet. App. lla

Order of the Supreme Court granting certiorari, dated
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*Not reprinted in Joint Appendix. Citations are to appendix
of Petition for Writ of Certiorari.

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Docket Entries

DATE
1972 FILINGS—PROCEEDINGS Filed

Sep. 25—Petition for Review of an Order of the Federal
Communications Commission, ree’d, filed (6) copies
Affidavit of service of above petition, filed.

Copy of Petition for Review mailed to Secretary of
ECC,

Copy of Petition for Review mailed to Attorney Gen-
eral of the United States.

Oct. 5—Appearance of Richard M. Conley, Esq. for peti-
tioncr New Jersey State Lottery Commission, filed.

Oct. 6—Appearance of Joseph A. Marino, Esq. for respond-
ent F.C.C., filed.

Oct. 10—Appearance of Howard E. Shapiro, Esq. for re-
spondent United States, filed.

Oct. 11—Appearance of Charles M. Firestone, Esq. for
respondent F.C.C., filed.

Oct. 11—Appearance of John W. Pettit, Esq. for respond-
ent F.C.C., filed.

Oct. 24—Motion by Commonwealth of Pennsylvania for
leave to intervene, filed. (4 ec.). Certificate of service
attached.

Oct. 24—Motion by the State of New Hampshire for leave
to intervene, filed. (4 ee.) Certificate of service in
motion.

Nov. 6—Certified list in lieu of the entire record, ree’d. and
filed. (2 copies).

Nov. 6—Motion by the State of New York for leave to in-
tervene, filed. (4 copies). Certificate of service attached.

Nov. 10—Motion by State of New York for leave to file
motion for leave to intervene out of time, filed. (4 ee.).
Certificate of service attached.

2
Nov. 13—Submitted on motion by Commonwealth of Penn-
sylvania and motion by State of New Hampshire for
leave to intervene. Coram: Aldisert, Gibbons and

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Hunter.

Noy. 13—Opposition by respondent, F.C.C., to motions for
leave to intervene by the State of New Hampshire,
Commonwealth of Penna, and State of New York, filed.
(4 cc.) Certifieate of service attached,

Nov. 15--Order (Aldisert, Gibbons and Hunter) granting
motions by Commonwealth of Pennsylvania and State
of New Liampshire for leave to intervene, filed.

Nov. 15—Appearance of David H. Souter, Hsq. for inter-
venor, State of New Hampshire, filed.

Nov. 22—Appearance of Raymond Keimam, Esq. for inter-
venor, Commonwealth of Pennsylvania, Bureau of
State Lotteries, filed,

Nov. 27—Reply ef The State of New York to Opposition by
respondent, Federal Communications Commission, to
motion to intervene, received (4 ce.) Certificate of
service aitached.

Nov. 27—Submitted on motions by The State of New York
for leave to intervene an@ for leave to file a motion for
leave to intervene out of time. Coram: McLaughlin and
Adams.

Dee. 4—Order (McLaughlin and Adams) denying motions
by the State of New York fer leave to intervene and
for leave to file a motion to intervene out of time, filed.

Dec. +—CC of above order to C of D.C,

Dee. 15—Consent motion by petitioner, with affidavit in
support, for leave to extend time for filing brief and
appendix to and including January 15, 1973, filed. (4
ec.). Proof of service in letter dated December 14,
1972.

Dec. 21—Above consent motion granted. NO FURTHER
EXTENSIONS. Clerk.

—-

3

Dec, 1I8—Motion by intervenor, Commonwealth of Pennsyl-
vania, for leave to extend time for filing brief to Janu-
uary 15, 1973, filed. (4 ec.). Affidavit of service at-
tached.

Dee, 27-—Submitted on above motion by intervenor. Clerk.

DATE
i973 FILINGS—PROCEEDINGS Filed

Jan, 3—Order (Clerk) granting motion by Intervenor,
Commonwealth of Pennsylvania, for leave to extend
time to file brief to January 15, 1973, filed.

Jan. 12—Brief for Intervenor, Commonwealth of Pennsyl-
vania, filed. Certificate of service by mail cu January
11, 1973, attached.

Jan, 15—Appendix, ree’d. and filed.

Jan. 15—Affidavit of service of appendix by mail on Janu-
ary 12, 1973, filed.

Jan. i5—Brief for petitioner (New Jersey State Lottery
Commission, ree’d January 17, 1973, filed. (25 ee.). Affi-
davit of service by mail on January 15, 1973 attached
to brief,

Jan. 135—Statement of intervenor, the State of New Hamp-
shire, concurring in the positions taken by New Jersey
in that brief, and believes no purpose would be served
by New Hampshire’s filing a further brief; therefore
New Hampshire submits this statement in lieu of brief,
filed. (25 copies). Certificate of service attached.

Jan. 17—Motion by The Maryland Public Broadeasting
Commission for leave to file brief as amicus curiae,
filed. (4 copies). Consent of counsel for all parties at-
tached.

Jan. 15—Brief as amicus curiae of the Maryland Public
Broadcasting Commission, in support of the position
of the petitioner, filed. Certificate of service by mail on
Jan. 15, 1973 attached.

Mar. 5—Motion by respondent, Federal Communications
Commission, for leave to file brief out of time, filed.
(4 copies). Certificate of service attached.

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Mar. 9—Motion by petitioner for acceleration of oral argu-
ment on appeal, in which it states that counsel for re-
spondents have indicated that they do not intend to
oppose this motion, filed. (4 ce.) Proof of mailing in
letter dated March 7, 1973.

Mar. 12—-Submiited on above motion. CLERK

Mar. 13—Order (CLERK) granting motion by respondent,
Federal Communications Commission, for leave to tile
brief out of time, filed.

Mar. 13—Brief for respondent, Federal Communications
Commission, ree’d. March 5, 1973, filed.

Mar. 13—Certificate of service of respondent’s brief by mail
on March 1, 1973, filed.

Mar. 20—Submitted on above motion. Clerk.

Mar. 21—Order (CLERK) granting petitioner’s motion for
acceleration of oral argument on appeal and this case
will be listed for disposition on the merits at the ear-
liest convenience of the Court, filed.

May 3—Letter dated May 3, 1973 enclosing opinion and
order of the F.C.C. concerning New Yerk City’s Off-
Track Betting Corp., received for the information of
the Court from Alfred L. Nardelli, Esq. (4 ec.). Certif-
icate of service attached.

May 15—Argued. Coram: Van Dusen, Gibbons and Rosenn.

Sept. 18—Order (Seitz, Van Dusen, Aldisert, Adams, Gib-
bons, Rosenn, Hunter, Weis and Garth, C. J.) that the
Clerk of this Court list the above case for rehearing
before the court en bane at the convenience of the
Court, filed.

Oct. 4—Order dated October 3, 1973 (Seitz, J.) directing
case be listed for rehearing en bane without oral argu-
ment, filed.

Nov. 15—ReSubmitted en banc. Coram: Seitz, Chief Judge
and Van Dusen, Aldisert, Adams, Gibbons, Rosenn,
Hunter, Weis and Garth, Circuit Judges.

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DATE \
1974 \ FILINGS PROCEEDINGS Filed

Jan, 2--Opinkon of the Court (Seitz, Chief IWle and Van
Dusen, AXdisert, Adams, c'ibbons, Rosenn, Hunter,
Weis and Garth, Circuit Judges), filed.

Jan. Juda granting the petition for review; revers-
ing the ordar of the Commission, filed July 27, 1972,
with costs taxed in favor of petitioner, filed.

Jan. 14—Bill of eQsts for petitioner, filed. service in letter of
1/11/74

Jan. 17—Motion by respondent for Stay of Mandate, filed.

Jan. 21—Order (Gibbons, Cireuit Judge) staying the issu-
ance of the mandate until February 15, 1974, Wiled.

Jan. 24— Motion by Netitioner for reconsideration and Vaca-
tion of order staying mandate, aud Brief in Support
thereof, reed, filtd. (10 copies) service attached. \

Feb. 1—Order (Seitz, Chief Judge and Van Dusen, Aldisert,
Adams, Gibbons, Rosenn, Hunter Weis and Garth, Cir-
cuit Judges) deny(ng motion by petitioner for ron.
sideratton and wae of order staying mandate, filed.

Feb, 19—Certified judgment in lieu of formal mandate
issued.
Feb. 19—Record released to secretary of F.C.C.,

Mar. 1-—Receipt for release of record rec’d from Secretary
of F.C.C., filed.

Apr. 5—Notice of filing (om April £, 1574) of petition for
writ of certiorari, ree’d from Clerk of 8.C., filed. (S.C.
No. 73-1471).

Jun 5—Certified copy of order dated May 28, 1974 ree’d
from Clerk of the Supreme Court granting the petition
for writ of certiorari, filed, (S.C. No. 73-1471)

6

Request for Declaratory Ruling Respecting New Jersey State
Lottery, filed by Jersey Cape Broadcasting Corp., Dated
February 18, 1971

Attorneys and Counsellors at Law
1830 Jefferson Place, N.W.
Washing*on, D.C. 20036
295-8900

Harry J. Daly

Leonard 8. Joyce

George R. Borsari, Jr.

Thomas J. Downs

Francis X. Welch

133 S. La Salle Street

Chicago 3, Illinois
Franklin 2-1056

475 Fifth Avenue
New York City

Lexington 2-2762
February 18, 1971

RECEIVED
Feb 18, 1971
F.C.C.

Office of the Secretary

THe Honorasie Ben F. Warpie, Secretary
ederal Communications Commission
ges :
Washington, D.C.
Jersey Car’ Broadcasting Corporation
Station WCMC-AM-FM-TV
Wildwood, New Jersey

Request for Declaratory Ruling
Respecting New Jersey State Lottery
Sir:

Request is hereby made on behalf of the licensee of Sta-
tions WCMC-AM-FM-TV, Wildwood, New Jersey for a
declaratory ruling by the commission as to whether or not

7

the announcement of the winning number of the state lot-
tery, each week, would constitute a violation of 18 USC
$1504, or Commission Rules or policies, respecting lot-
teries.

The facts are these. On Thursday morning, cach week,
a representative of the state of New Jersey draws one
multi-digited number as the winning lottery number for the
week. The person having the exact number wins the
grand prize; other persons having some of the digits win
iesser prizes. Approximately 11:30 A.M. each Thursday
Stations WCMC-AM-FM-TV are advised of the winning
inumber via its Associated Press teletype machine.

It has hecome known to area residents that the station
does become aware of the winning number shortly after it
is drawn, and, each Thursday the station is bombarded
with seores of telephone calls by residents requesting the
Winning number. The Keensee understards that area news-
papers and state agencies are bombarded with telephone
inquiries, also. All have attempted to discourage such
calls. The newspapers in the area publish the winning
number, but not until late afternoon or the next morning.

It is proposed that Station WCMC-AM-FM-TV be per-
mitted during regular newscasts to broadeast the following
statement:

‘The winning state lottery number drawn today is
(and then recite the winning number).’’

There would be no further comment whatever either dur-
ing that newscast or thereafter. It is proposed that the
station broadcast the winning number on three consecutive
newscasts commencing at 12:00 noon on Thursday, only.

It is respectfully submitted that the proposed bzoad-
casts would not constitute a lottery. The United States
Court of Appeals for the Second Cireuit, in the New York
State Broadcasters Association, Inc. v. United States of
America, 414 F2d 990 held that 18 U.S.C § 1304 prohibited,
only, information that ‘‘direetly promote a lottery,’’ but
that a bona fide news story is not barred despite the fact
that the news has an ‘‘incidental effect” of promoting a
lottery.

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In the above set of circumstances it is submitted that the
prime effect of the broadcast would be to inform the listen-
ing public of a legitimate news item about which they
have a keen interest, and, that only ‘‘incidently’’ is there
any promotion of a lottery. To permit such broadcasts
on the one hand would inform tie public and on the other
hand eliminate scores of telephone calls to local news
agencies and government officials, which considering all
the circumstances would be consistent with the laws of the
United States and would serve the public interest, con-
venience, and necessary.

Very truly yours,

Leonarp 8S. Joyce
Leonard 8S. Joyce
Counsel for Jersey Cape
Broadcasting Corporation

BEFORE THE
FEDERAL COMMUNICATIONS COM MISSION
WASHINGTON, D. Cc. 20554

FCC 71-722
63361
In the Matter of
Jersey Cape Broadcasting
Corporation
Declaratory Ruling
Adopted: July 14, 1971; Released: July 20, 1971

By the Commission: Commissioners Robert E. Lee and
Wells absent; Commissioner Johnson concurring in the
result.

1. This matter concerns a request for declaratory ruling
filed February 18, 1971, by Jersey Cape Broadeasting Cor-
poration (hereinafter Jersey Cape), licensee of Stations
WCMC-AM-FM-TV, Wildwood, New Jersey, with respect
to the following described situation:

Jersey Cape is desirous of broadeasting weekly on its
above stations, the winning New Jersey state lottery

9

number. Each Thursday morning, a state official
draws one multi-digited number as the winning New
Jersey state lottery number for the week. Although
local newspapers publish the winning number, such
publications are not available generally until late after-
noon or the next morning. The winning number is
received by Jersey Cape’s stations at approximately
11:30 a.m. each Thursday on a news service teletype.
Jersey Cape states that area residents have become
aware of the station’s early receipt of the winning
number, and that ‘‘each Thursday the station is bom-
barded with scores of telephone calls by residents re-
questing the winning number.’’ Jersey Cape ‘‘under-
stands that area newspapers and state agencies are
deluged by similar telephone inquiries, also.’’

2. Jersey Cape proposes to alleviate the above situation
by broadeasting each Thursday only, during three con-
secutive regular newscasts commencing at 12:00 noon, the
following statement:

‘The winning state lottery number drawn today is (and
then recite the winning number).’’

No further comment would accompany the statement.

3. Jersey Cape submits that broadcasting the above re-
cited statement would not constitute a violation of 18
U.S.C. § 1304! or of the Commission’s Rules respecting
lotteries.2. It asserts that the case of New York State

118 U.S.C. § 1304 reads as follows:
Broadeasting lottery information.

Whoever broadcasts by means of any radio station for which a
license is required by any law of the United States, or operat-
ing any such station knowingly permits the broadeasting of,
any advertisement of or information concerning any lottery,
gift emrprise, or similar scheme, offering prizes dependent
in whole or in part vpon lot or chance or any list of the prizes
drawn or awarded by means of any such lottery, gift enter-
prise, or scheme, whether said list contains any part or all of
such prizes shall be fined not more than $1,000 or imprisoned
not more than one year or both. Each day’s broadcasting shall
constitute a separate offense.

* The applicable Commission Rules, Section 75.122 (AM), 73.292
(FM) and 73.656 (TV), are patterned atte: the statute.

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Broadcasters Association, Inc. v. United States of America,
414 F.2d 990 (2nd Cir. 1969), supports its position by hold-
ing that 18 U.S.C. § 1304 prohibits only program materials
which ‘‘directly promote a lottery,’’ but that a bona fide
news story is not barred despite the news having an ‘‘in-
cidental effect’? of promoting a lottery. Jersey Cape con-
tends that in the present situation, ‘‘the prime effect of
the broadcast would be to inform the listening publie of
a legitimate news item about which they have a keen in-
terest, and that only incidentally is there any promotion
of a lottery.’’

4. The New York State case does not, in our view. sup-
port Jersey Cape’s position. While the Court recognized,
at 414 F.2d 998, the distinction between information di-
rectly promoting a lottery (prohibited by 18 U.S.C. § 1304)
and information which is simply ‘news’? of a lottery (ot
prohibited), it did not define ‘‘direct promotion ef a lot-
tery.’’ Accordingly, for specific guidan:e to broadeasters,
it remanded the case to the Commission to apply its ex-
pertise to the problem.

d. Subsequently, the Comiunission released, on March 2,
1970, a Supplemental Declaratory Ruling, 21 FCC 2d 846,
which adequately serv+s as a basis for the response to the
request now before us. Ten specific hypothetical situations
were dealt w:in, and for each case a conclusion was reached
as to whether broadcasts would be prohibited. It was
there declared that although broadcasting legitimate news
stories concerning lotteries is permitted, certain type: of
items, which may be said to interest some listeners and
thus have some limited news value, do so directly promote
a lottery as to be prohibited from being broadeast. Into
this category were placed items, clearly comparable to the
proposal before us, such as ‘‘ Announcements (unpaid) of
the places where lottery tickets may be purchased, where,
how, and when winning tickets will be drawn, the amount
of prizes, and how the proceeds of the sales of lottery tic.
kets are and will be distributed.’’ Bona fide news an-
nouncements of the persons winning the top prizes, of in-
terest to the public generally, are protected by the First
Amendment, but not a long list of winners. The instant
proposal does not concern announcements of persons who

11

have won but rather the publicizing of the ‘‘winning num-
ber,’”’? the widespread dissemination of such information
being reasonably necessary or helpful to the conduct of
the lottery,® and of interest only to that limited class of
people who actually hold tickets.*

6. For these reasons, the proposed broadeast would be,
in our view, a violation of 18 U.S.C. § 1304 and the Com-
mission’s Rules.

FEDERAL COMMUNICATIONS COMMISSION
Ben F. WapLe
Secretary

* Some years ago, upon disclosure that the announcement of the
daily U.S. Treasury balance was being used to establish and an-
nounce the winning number in the ‘*nunibers game,’’ leading metro-
politan newspapers immediately discontinued the printing of this
figure.

4 The lottery prohibition is a criminal statute in Title 18 of the
U.S. Code and, as the Supreme Court held in Federal Communica-
tions Commission v. American Broadcasting Company, Inc., 347
U.S. 284 (1954), the authority of the Commission with respect to
its application is concurrent with that of the Department of Jus-
tice. In view of this, Commission action in this area is coordinated
with the Department of Justice, and this procedure has been fol-
lowed with respect to this proceeding.

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Public Notice, Broadcast of Lottery Information,
FCC 71-763, released July 27, 1971

Pvusuic Notice
Fede: al Communications Commission—1919 M Street, NW
Washington, D. C. 20554

FCC 71-763—66155
July 27, 1971—B

Broapcast or Lorrery INrorMATION

It has been brought to the attention of the Commission
that certain licensees and/or news services may be misin-
terpreting the declaratory ruling (FCC 71-722) handed
down by the Commission on July 14, 1971, which concerned
the broadcast of the winning New Jersey State lottery
number.

The ruling was given in response to a request for a de-
claratory ruling made by Jersey Cape Broadcasting Cor-
poration in which it was stated that the winning numbers
would be announced on news programs. The Commission
stated that such broadcasting of winning New Jersey State
lottery numbers was prohibited by 18 U.S.C. § 1304 and
Commission regulations.

The Commission noted that the proposed broadcast of
the winning lottery numbers was of interest only to that
limited class of persons who actually hold tickets and did
not have the general news inter... vr announcements of
the names of persons who have won.

The Commission’s ruling appears to have been inter-
preted in some quarters as holding that winning numbers
may be broadcast if they are given as part of a news item.
All licensees and other interested persons should note that
this is not a correct interpretation of the ruling, and that
the Commission considers such announcement of winning
lottery numbers to be prohibited by the statute and its
rules.

Action by the Commission July 23, 1971. Commission-
ers Bartley, Robert E. Lee, Johnson and H. Rex Lee.

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Petition for Reconsideration of Declaratory Ruling. FCC 71-722, :
and Covering Letter. Dated August 16, 1971. Filed By 3
Attorney General, State of New Jersey

Grorce F, Kte er, JR.

Attorney General of New Jersey

Attorney for New Jersey

Lottery Commission

State House Annex

Trenton, New Jersey 08625

By: Philip I. Kagan
Deputy Attorney General
609/292-6567

Before The
FeperaL Communications ComMMIssION
Washington, D. C. 20554
£ ;

In the Matter of Jersey )
Cape Broadcasting Corporation _ )

Petitioner, New Jersey Lottery Commission, by way of
a Petition for Re-Consideration says:

1. On February 18, 1971, Jersey Cape Broadcasting
Corporation, an F€C licensee, WCMC-AM-FM TV, re-
quested a declaratory ruling on whether a broadcast of
a particular news item would be violative of 18 U.S.C.
§ 1304 and Commission’s Rules. The item is as follows:

“The winning state lottery number drawn today
is (and recite the winning number).”’

2. On July 20, 1971 the Commission released a declara-
tory ruling, FCC 71-722, 63861, concluding that the pro-
posed broadeast would be in violation of 18 U.S.C. § 1304
and the Commission’s Rules.

3. This petitioner was not a party to the original re-
quest by Jersey Cape Broadcasting Corporation. It had
no opportunity to intervene therein as it had no notice or
knowledge of said request

4. Had this petitioner been a party to the original re-
quest, certain statistical surveys would have been made
available to the Commission. Said surveys show that on
a weekly basis approximately 2.75 million people pur-

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chase New Jersey State Lottery tickets within the State
of New Jersey. This class represents approximately 58%
of the adult population of the State of New Jersey (N.J.
S.A. 5:9-15 prohibits the sale of lottery tickets to anyone
under the age of 18 years). As such, this major segment
of the population is vitally interested in the proposed news
item.

5. The conclusion of the Commission that the proposed
news item is of interest to a ‘limited class of people’? and
therefore of limited news value is erroneous because of
the above.

6. The proposed news item is of significant news value
and if it promotes the New Jersey State Lottery, it does
so in an incidental manner.

«. The effect of the aforementioned ruling it to pre-
clude the petitioner from communicating a legitimate news
item to a major segment of the citizens of the State of
New Jersey through the broadcasting news media.

8. Therefore, this petitioner is aggrieved and adversely
affected within the meaning of 47 U.S.C. §405 by the
aforementioned declaratory ruling.

9. The original ruling by reasen of the erroneous con-
clusion is in violation of rights guaranteed by the Con-
stitution of the United States and contrary to the hold-
ing of the court in the case of N. Y. Broadcasters Assn.,
Inc. v. U. S. of America, 414 F.2d 990 (2nd Cir. 1969).
Wherefore:

The petitioner respectfully requests a re-consideration
of the aforementioned ruling in order to present to the
Commission its factual evidence and legal arguments.

Respectfully submitted,

Georce F. Kuater, Jr.
Attorney General of New Jersey

By: Pumr I, Kagan
Philip I. Kagan
Deputy Attorney General

15

SUPREME COURT OF THE UNITED STATES
No. 73-1471
Unirep States, Et au., Petitioners,
v.

New Jersey State Lorrery Commission

Order Allowing Certiorari
Filed May 28, 1974

The petition herein for a writ of certiorari to the United
States Court of Appeals for the Third Circuit is granted.

vy U.S. GOVERNMENT PRINTING OFFICE 1974—552-423/P. O. 297

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1616%3A01. Public record. Not legal advice.