by Flip Michaels
1. Watch out for lotteries.
2. Watch out for lotteries.
3. Watch out for lotteries.
Get the point? I hope so. In the past few months, too many stations around the country found out the hard way. What's the hard way? Ohhh, that's a $12,500 fine from the FCC! That's right...only $12,500.
In December, the Commission fined one station and proposed to fine three others similar amounts for repeated violations of the FCC's anti-lottery broadcast provisions. That alone should force all of us to take a good, hard look at any advertisement that could be promoting a "lottery."
Okay, so what is the FCC's definition of a lottery? In Cheat Sheet format:
A lottery is a game or contest that contains each of three elements: 1) prize, 2) chance, and 3) consideration. All three elements must be in the advertisement to be construed as promoting a "lottery".
1. The element of "prize" is basically...a prize. If you can win something by playing, you've got #1.
2. The element of "chance" is when the outcome is not predetermined or is not a function of skill. This obviously encompasses the majority of the casino games. So, Las Vegas, beware!
3. Now, the element of "consideration" is a little tougher to explain. If you must "pay to play," then consideration is present in the payment of money. But, that's not the only way. For example, how about the availability of tickets? Or how about the ways to play a game? The easiest way to check for consideration is to ask, "Who will receive, and how will they get them?" If all the players are not on "reasonably equal footing," you've got #3.
Q & A:
What about state-run lotteries? If your station is licensed in a state that doesn't have a lottery, but some of your listeners live in a state that does, can they fine you for advertising that states' lottery?
Yes, but there are exceptions to the FCC's prohibitions against lottery ads allowing state-conducted lotteries only. I'd check it out. The Commission recently fined a licensee in Tennessee (no state-run lottery) $6,250 for running ads for the Kentucky State Lottery.
If a station is located in a state where privatized gambling is legal, should I still be concerned about lotteries?
Big time. A station in Nevada argued that the FCC's definition applies a federal standard, not a state. And since gambling is legal in Nevada, they couldn't prohibit a lottery broadcast. (sfx: buzzer) WRONG! The FCC ruled that federal law takes precedence in this instance.
What can we do to avoid the fines?
If you discover a lottery, take it off immediately! The FCC doesn't accept arguments like..."we didn't know." Then contact your GM immediately.
And, oh, by the way....A special thank you to Dave Zelzer of WDUZ/WQLH Green Bay, WI. It turns out that Dave has a copy of the frequency piece I mentioned in last month's Cheat Sheet. His copy credits a man named Thomas Smith! AND, it was written in 1885!! WOWSA!!! But wait that's not all!
Remember all the RAP write-up about our limits on library music/copyright infringements. Well, guess what? Someone got caught. WLKC-FM, Watertown, N.Y., was recently fined $4,000 for using a copyrighted, master recording of "See You In September" in a commercial for Suzuki North Sports of Watertown. It turns out that a member of the band "The Happenings" heard it and notified their lawyer. No joke.
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