Appendix — United States v. New Jersey State Lottery Commission

4 ris ee Stee... Meee. it TAP

- wy tenn =e) 15 oe

ak A VEN ie as cake 4 See

D — \ — rae, “rt ~

ae ry ’ r ay > es

"The ee ae:

;

>.

-

z

TS

me

7

P<

“4

»

et

ye

Ry

in #

4

a

we ~

-

¥

:

— ~\

-

( real :

oy} ais

a Non a

Gra a : ;

pas

ee

UNITED STATES OF AMERICA AND FEDERAL

\ COMMUNICATIONS COMMISSION, PETITIONERS,

Pale | ae wo |

© (WEW JERSEY STATE LOTTERY COMMISSION

ee ee e . . ; ps 4 ee

ae SM Ap

fell Se

Supreme Court of the United States

Ocroper Term, 1973

No. 73-1471

UNITED STATES OF AMERICA AND FEDERAL

COMMUNICATIONS COMMISSION, petitioners,

v.

NEW JERSEY STATE LOTTERY COMMISSION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

EE

Request for Declaratory Ruling Respecting New Jer-

sey State Lottery, filed by Jersey Cape Broadcast-

ing Corp., dated February 18, 1971 .............

Declaratory Ruling, FCC 71-722, adopted July 14,

ities cee ceneceeeceroeeoeocecces

Public Notice, Broadcast of Lottery Information, FCC

8

71-763, released July 27, 1971 ............-.e00- 12

Petition for Reconsideration of Declaratory Ruling,

FCC 71-722, and covering letter, dated August 16,

1971, filed by Attorney General, State of New

PPEPPTITITILET LETTE LETT TTT ee 13

ii Index Continued

Page

*Memorandum Opinion and Order, released July 27,

BERD cccccccccecevesenednncoacenetouss Pet. App. 13a

“Opinion of the United States Court of Appeals for

the Third Circuit, 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

SE Ee EOD cnncscoccsccnstoesaseneesnnpaneass 15

*Not reprinted in Joint Appendix. Citations are to appendix

of Petition for Writ of Certiorari.

Docket Entries

DATE

1972 FILINGS—PROCEEDINGS Filed

Sep. 25—Petition for Review of an Order of the Federal

Communications Commission, rec’d, filed (6) copies

Affidavit of service of above petition, filed.

Copy of Petition for Review mailed to Secretary of

F.C.

Copy of Peiition for Review mailed to Attorney Gen-

eral of the United States.

Oct. 5—Appearance of Richard M. Conley, Esq. for peti-

tioner 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 cc.) 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 ec.).

Certificate of service attached.

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

Hunter.

Nov. 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 ce.) Certificate of service attached.

Nov. 15—Order (Aldisert, Gibbons and Hunter) granting

motions by Commonwealth of Pennsylvania and State

of New Hampshire for leave to intervene, filed.

Nov. 15—Appearance of David H. Souter, Esq. for inter-

venor, State of New Hampshire, filed.

Nov. 22—Appearance of Raymond Keiman, Esq. for inter-

venor, Commonwealth of Pennsylvania, Bureau of

State Lotteries, filed.

Nov. 27—Reply of The State of New York to Opposition by

respondent, Federal Communications Commission, to

motion to intervene, received (4 cc.) Certificate of

service attached.

Nov. 27—Submitted on motions by The State of New York

for leave to intervene and 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 for leave to intervene and

for leave to file a motion to intervene out of time, filed.

Dec. 4—CC of above order tu 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.

Dec. 18—-Motion by intervenor, Commonwealth of Pennsy!-

vania, for leave to extend time for filing brief to Janu-

~—o he 1973, filed. (4 ec.). Affidavit of service at-

tached.

Dec. 27—Submitted on above motion by intervenor. Clerk.

DATE

1973 FiLINGS—PROCEFDINGS 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 on 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. 15—Brief for petitioner (New Jersey State Lottery

Commission, rec’d January 17, 1973, filed. (25 ce.). Affi-

_— . service by mail on January 15, 1973 attached

to brief.

Jan. 13—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 Broadcasting

Commission for leave to file brief as amicus curiae,

ed copies). Consent of counsel for all parties at-

tac

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.

4

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. 13—Submitted on above motion. CLERK

Mar. 13—Order (CLERK) granting motion by respondent,

Federal Communications Commission, for leave to file

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 York City’s Off-

Track Betting Corp., received for the information of

the Court from Alfred L. Nardelli, Esq. (4 ce.). Certif-

icate of service attached.

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

Sept. 18—Order (Seitz, Van Dusen, Aldisert, Adams, G@ib-

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 bane. Coram: Seitz, Chief Judge

and Van Dusen, Aldisert, Adams, Gibbons, Rosenn,

Hunter, Weis and Garth, Circuit Judges.

DATE

1974 FILINGS—PROCEEDINGS Filed

Jan. 2—Opinion of the Court (Seitz, Chief Judge and Van

Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter,

Weis and Garth, Circuit Judges), filed.

Jan. 2—Judgment granting the petition for review; revers-

ing the order of the Commission, filed July 27, 1972,

with costs taxed in favor of petitioner, filed.

Jan. 14—Bill of costs for petitioner, filed. service in letter of

1/11/74

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

Jan. 21—Order (Gibbons, Circuit Judge) staying the issu-

ance of the mandate until February 15, 1974, filed.

Jan. 24—Motion by petitioner for reconsideration and Vaca-

tion of order staying mandate, and Brief in Support

thereof, rec'd, filed. (10 copies) service attached.

Feb. 1—Order (Seitz, Chief Judge and Van Dusen, Aldisert,

Adams, Gibbons, Rosenn, Hunter Weis and Garth, Cir-

cuit Judges) denying motion by petitioner for recon-

sideration and vacation 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 reco;d rec’d from Secretary

of F.C.C., filed.

Apr. 5—Notice of filing (on April 2, 1974) of petition for

writ of certiorari, rec’d from Clerk of S.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 Deciaratory 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.

Washington, D.C. 20036

295-8900

Harry J. Daly

Leonard S. 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.

Office of the Secretary

Tue Honorasie Ben F. Wapve, Secretary

Federal Communications Commission

Washington, D.C.

Jersey Cape 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

§ 1304, or Commission Rules or policies, respecting lot-

teries.

The facts are these. On Thursday morning, each 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

lesser prizes. Approximately 11:30 A.M. each Thursday

Stations WCMC-AM-FM-TV are advised of the winning

number via its Associated Press teletype machine.

It has become 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 licensee understands 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-TYV be per-

mitted during regular newscasts to broadcast 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 broad-

casts would not constitute a lottery. The United States

Court of Appeals for the Second Circuit, 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 ‘‘directly 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.

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 the public and on the other

band 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 8. Joyce

Leonard S. Joyce

Counsel for Jersey Cape

Broadcasting Corporation

BEFORE THE

FEDERAL COMMUNICATIONS COM MISSION

WASHINGTON, D. Cc. 20554

FCC 71-722

63861

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 Broadcasting 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 broadcasting weekly on its

above stations, the winning New Jersey state lottery

ws

9

number. Each Thursday morning, a state official

draws one multi-digited number as the ‘ee | 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 broadcasting 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 statemeat.

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? It asserts that the case of New York State

118 U.S.C. § 1304 reads as follows:

Broadcasting 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 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 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 73.122 (AM), 73.292

(FM) and 73.656 (TV), are patterned after the statute.

10

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 public 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 (not

prohibited), it did not define ‘‘direct promotion of a lot-

tery.’ Accordingly, for specific guidance to broadcasters,

it remanded the case to the Commission to apply its ex-

pertise to the problem.

5. Subsequently, the Commission released, on March 2,

1970, a Supplemental Declaratory Ruling, 21 FCC 2d 846,

which adequately serves as a basis for the response to the

request now before us. Ten specific hypothetical situations

were dealt with, 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 types 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 broadcast. 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 broadcast would be,

in our view, a violation of 18 U.S.C. § 1304 and the Com-

mission’s Rules.

FeperaL 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 ‘‘ numbers game,’’ leading metro-

politan newspapers immediately discontinued the printing of this

figure.

* 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 vy. 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.

12

Public Notice, Broadcast of Lottery Information,

FCC 71-763, released July 27, 1971

Pusuic Notice

Federal Communications Commission—1919 M Street, NW

Washington, D. C. 20554

FCC 71-763—66155

July 27, 1971—B

Broapcast or Lorrery INFoRMATION

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 interest of 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

ad 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.

13

Petition for Reconsideration of Declaratory Ruling, FCC 71-722.

and Covering Letter. Dated August 16, 1971, Filed By

Attorney General, State of New Jersey

Grorce F’. Kueuer, Jr.

Attorney General of New Jersey

Attorney for New Jersey

Lottery Commission

State House Annex

Trenton, New Jersey 08625

By: Philip lL. Kagan

Deputy Attorney General

609/292-6567

Before The

FeperaL ComMuNICcATIONS COMMISSION

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 FCC licensee, WCMC-AM-FM TY, 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 broadcast 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 Cor oration. 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-

14

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.

7. 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 reason 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. Kvaier, Jr.

Attorney General of New Jersey

By: Puuapr I. Kagan

Philip I. Kagan

Deputy Attorney General

15

SUPREME COURT OF THE UNITED STATES

No. 73-1471

Unrrep States, et a., Petitioners,

v.

New Jersey State Lottery Commission

Filed May 28, 1974

The petition herein for a writ of certiorari to the United

States Court of Appeals for the Third Cireuit is granted.

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