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Validity of Federal Communications Commission's Proposed Rules That Certain Radio "Give-Away" Programs Are Lotteries


Lanelle Rimes

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On August 5, 1948, the Federal Communications Commission issued a notice that it proposed to issue rules relating to lotteries. Issued under the authority of Section 316 and 303(r) of the Communications Act of 1934 as amended, the notice stated that: "These rules would set forth with particularity for standard, FM and television broadcasting, certain types of programs which the Commission believes are in violation of Section 316 of the Communications Act of 1934, as amended, which prohibits the broadcast of 'any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon chance'. The rules are intended to afford broadcast licensees with as specific advance information as is possible as to the various types of programs which the Commission considers are in violation of the Section of the Act." Prior to the issuance of this notice, Section 316 of the Communications Act was repealed and re-enacted as Section 1304 of the Criminal Code, effective September I, 1948. When the repeal was brought to the attention of the Communications Commission, it issued a supplemental notice on August 26, 1948, reaffirming its intention to proceed with its rule making, but basing its authority on Sections 307(a), 308(b) and 309(a) of the Communications Act, which deal with the regulatory and licensing powers of the Commission. The supplemental notice stated that the proposed rules were to "assist the Commission, licensees and other interested persons in giving effect to the public policy embodied in the determination of Congress." While recognizing the repeal' of Section 316 of the Communications Act, the Commission contended that in order to determine whether the granting of a particular license "would serve the public interest, convenience or necessity," it must take into consideration "the Congressional mandate that no licensee should broadcast any program containing any advertisement, or information concerning any lottery." Pursuant to Section 1003 (b) of the Administrative Procedure Act, both the original and supplemental notices provided that: "Any interested party who is of the opinion that the proposed rules should not be adopted, or should not be adopted in the manner set forth in the Appendix hereto, may file with the Commission on or before September 10, 1948, a statement or brief setting forth his comment. At the same time persons favoring the rules as proposed may file statements in support thereof."

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