The Caples Company, a Corporation v. The United States of America and the Federal Communications Commission
This text of 243 F.2d 232 (The Caples Company, a Corporation v. The United States of America and the Federal Communications Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Upon “Application for a Declaratory Ruling,” the Federal Communications Commission held that the television giveaway program known as “Play Marko” is a lottery under § 3.656 of the Commission’s rules and regulations. The owner of the program, who filed the application, brought this petition for review of the ruling.
“Play Marko” is similar to the familiar game of “Bingo.”1 The participating viewers use cards which may be obtained [233]*233free of charge in any quantity by any person, but only from “stores handling the sponsor’s products.”2 The participant is not required to register or make a purchase.
Petitioner contends that the Commission’s ruling is contrary to the Supreme Court’s decision in Federal Communications Comm. v. American Broadcasting Co., 1954, 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699, construing earlier anti-lottery regulations. The Court held that, since the regulations were bottomed squarely on a criminal statute, 18 U.S.C. § 1304 (based upon § 316 of the Communications Act of 1934, 47 U.S.C. § 316), the regulations must be as strictly construed as the statute.3 The statute, and therefore the regulations, said the Court, proscribe “(1) the distribution of prises; (2) according to chance; (3) for a consideration.” 347 U.S. at page 290, 74 S. Ct. at page 598, emphasis supplied. In that case, as in this, only the existence of consideration was in question. The Court found that, in the program there involved, “not a single home contestant is required to purchase anything or pay an admission price or leave his home to visit the promoter’s place of business; the only effort required for participation is listening.” Id. 347 U.S. at page 294, 74 S.Ct. at page 600, emphasis supplied. It held this effort alone insufficient consideration for the purposes of a penal statute.4
The Commission says American Broadcasting Co. is not controlling here because “Play Marko” requires something more than “listening,” in that the cards necessary for participation can only be obtained from the sponsor’s stores or outlets. The requirement of a visit by the participant, or someone on his behalf, is said to be a thing of value since it is of benefit to the sponsor.
[234]*234' We agree that the requirement of obtaining the cards from the sponsor’s stores or outlets is something more than ‘■‘listening” and, perhaps, makes the program here more objectionable. But the Commission tells us that its ruling “is not an expression of the Commission’s judgment as to the quality or desirability of the program but an interpretation of a Federal statute specifically prohibiting the broadcast of lotteries.” When the test laid down by the Supreme Court is applied, we conclude that “it would [still] be stretching the statute to the breaking point to give it an interpretation that would make such programs a crime.” Ibid. The undesirability of this type of programming is not enough to brand those responsible for it as criminals. Protection of the public interest will have to be sought by means not pegged so tightly to the criminal statute or in additional legislative authority.
Reversed.
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Cite This Page — Counsel Stack
243 F.2d 232, 100 U.S. App. D.C. 126, 1957 U.S. App. LEXIS 2918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-caples-company-a-corporation-v-the-united-states-of-america-and-the-cadc-1957.