Friday, April 10, 1998 | 10:46 a.m.
A television station broadcasting programs in Idaho was asked by a casino in Jackpot, Nev., to advertise the gambling establishment.
Could the station legally run the ad in light of a Federal Communications Commission ban on advertising gambling?
Gaming, lotteries and contests present special legal problems for broadcasters, a panel agreed at the National Association of Broadcasters convention this week in Las Vegas. And, it's even more difficult now because two different court jurisdictions have produced opinions on the issue that conflict with FCC regulations being enforced elsewhere in the nation.
The U.S. Supreme Court decided not to intervene in two matters involving casino ads. It refused to overturn a New Jersey court ruling that a federal ban on casino ads authorized by a state is unconstitutional. The high court also decided not to hear an appeal to a U.S. Court of Appeals Ninth Circuit ruling in a Las Vegas case calling the ban of casino ads unconstitutional.
The U.S. District Court in New Jersey reached the same conclusion as the appellate court. The plaintiffs in the New Jersey case, the NAB and Players International, have filed a petition in District Court there asking that the federal ban be lifted. They filed the petition in a bid to get the policy established by the New Jersey decision to apply nationwide. A decision is pending.
Since Nevada and Idaho are within the Ninth Circuit of the Court of Appeals, panelists concurred the Jackpot casino ad would be acceptable to air. But what about a station in Rock Springs, Wyo., advertising an establishment in Wendover, Nev.?
Charles Kelley, the head of enforcement for the FCC's legal department, said Wyoming isn't within that circuit and the rules, therefore, are different. The FCC's national ban stipulates an advertisement could only promote the nongaming aspects of a casino property -- accommodations, restaurants and attractions -- but not the gaming.
However, if the word "casino" were a part of the formal name of the business, it could be used as long as there were not repeated references to it as a gambling establishment.
Kelley said until the courts step in to clarify the matter, it'll be up to individual states outside the confines of the Ninth Circuit to determine the legality of certain ads. He recommended broadcasters consult with their respective attorneys general for a clarification. The Ninth Circuit includes most western states, Alaska and Hawaii.
The issue gets even more confusing in light of broadcasts that cross over state borders. If an ad originates from a state where a casino ad is legal, it's all right for the message to reach into a state where it isn't. Kelley said that occurs in lottery advertising on the East Coast where ads are placed on a North Carolina station that knows 85 percent of its listeners live in Virginia.
The differing rules presented special problems for Harrah's, one of the most geographically diverse casino companies in the nation, when it unveiled a national television campaign during the Academy Awards show last month.
Jef Bauer, director of marketing communication for Memphis, Tenn.-based Harrah's, said the Oscar-night campaign involved spot buying in the top 15 feeder markets to the casino properties. Because each of the markets operates under a different set of rules, Harrah's had to alter the spots to conform in some markets.
"The first ads we ran were titled 'The Wrecking Crew' and featured three businesswomen who, by night, become casino players," Bauer said. "In some markets, the phrase 'No machine is safe' appeared as text on the screen. But we couldn't use that in every market, so it was left off in some locations."
Panelists weren't eager to step into the realm of interpreting the future of advertising Internet gambling. While Kelley said the same federal bans prevail, there may be court tests ahead, since several Indian tribes with compacts with their respective states are investigating the feasibility of establishing World Wide Web sites to expand their reach beyond reservation boundaries.
Bauer said advertising Indian gaming establishments is virtually an "anything goes" scenario, as Harrah's has had no problem running spots for its Ak-Chin property on Phoenix television stations.
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