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DOUGLAS, J., dissenting.

and retained all property rights in it. 339 U. S., at 716-720.

If it were necessary for Texas to surrender all her property and political rights in the marginal sea in order to enter the Union on an "equal footing" with the other States, pray how can she get back some of those rights and still remain on an "equal footing" with the other States? That is the unresolved question in these cases. That is the question which points up the grievances of Alabama and Rhode Island. For what Texas (and a few other States) obtain by the present Act of Congress is what we held the "equal footing" clause forbade them to retain. The "equal footing" clause, in other words, prevents one State from laying claim to a part of the national domain from which the other States are excluded. 339 U. S., at 719-720. Today we permit that precise "inequality among the States" which we earlier said was precluded by the "equal footing" clause.

Alabama and Rhode Island can justly complain. So can the other States. Our Union is one of equal sovereigns, none entitled to preferment denied the others. That is what the "equal footing" standard means or it means nothing. Today powerful political forces are marshalled to wipe out our prior decisions for the benefit of a favored few. But those decisions were sound in constitutional theory and they should stand. If they presented a question suitable for judicial review, so does the present controversy.

FEDERAL COMMUNICATIONS COMMISSION v. AMERICAN BROADCASTING CO., INC.

NO.

117. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.*

Argued February 1, 1954-Decided April 5, 1954.

Regulations of the Federal Communications Commission providing for the denial of licenses to radio and television broadcasting stations which broadcast so-called "give-away" programs, in which prizes are given to persons selected by chance who answer certain questions correctly but who are not required to contribute any money or other valuable consideration, held invalid as going beyond the scope of 18 U. S. C. § 1304 and thus exceeding the rule-making power of the Commission. Pp. 285–297.

(a) Unless such "give-away" programs are illegal under 18 U. S. C. § 1304, the Commission cannot employ the statute to make them so by agency action. Pp. 289–290.

(b) The contribution of money or other valuable consideration by the contestants is an essential element of the offense proscribed by 18 U. S. C. § 1304, which forbids the broadcasting of "any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance." Pp. 290–291.

(c) The increased advertising value of a "give-away" program resulting from the requirement, direct or indirect, that home contestants listen to the program does not constitute a valuable consideration for purposes of 18 U. S. C. § 1304. Pp. 291-295.

(d) Section 1304 of 18 U. S. C. is a penal statute, and it must be construed strictly. P. 296.

110 F. Supp. 374, affirmed.

The District Court enjoined enforcement of certain provisions of regulations of the Federal Communications Commission relating to the broadcasting of so-called "give-away" programs. 110 F. Supp. 374. On direct

*Together with No. 118, Federal Communications Commission v. National Broadcasting Co., Inc., and No. 119, Federal Communications Commission v. Columbia Broadcasting System, Inc., also on appeal from the same court.

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Opinion of the Court.

appeal to this Court under 28 U. S. C. §§ 1253 and 2101 (b), affirmed, p. 297.

J. Roger Wollenberg argued the cause for appellant. With him on the brief was Daniel R. Ohlbaum.

Alfred McCormack argued the cause for appellee in No. 117. With him on the brief was George B. Turner.

Paul W. Williams argued the cause for appellee in No. 118. With him on the brief were Thomas E. Ervin and Dudley B. Tenney.

Max Freund argued the cause for appellee in No. 119. With him on the brief was Ralph F. Colin.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases are before us on direct appeal from the decision of a three-judge District Court in the Southern District of New York, enjoining the Federal Communications Commission from enforcing certain provisions in its rules relating to the broadcasting of so-called "giveaway" programs. The question presented is whether the enjoined provisions correctly interpret § 1304 of the United States Criminal Code, formerly § 316 of the Communications Act of 1934. This statute prohibits the broadcasting of ". . . any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance . .

The appellees are national radio and television broadcasting companies. They are, in addition, the operators

1 18 U. S. C. § 1304 (derived from former § 316 of the Communications Act of 1934, 48 Stat. 1088-1089, repealed by 62 Stat. 862, 866): "Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating 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

Opinion of the Court.

347 U.S.

of radio and television stations licensed by the Commission. Each of the appellees broadcasts, over its own and affiliated stations, certain programs popularly known as "give-away" programs. Generally characteristic of this type of program is the distribution of prizes to home listeners, selected wholly or in part on the basis of chance, as an award for correctly solving a given problem or answering a question.2

The rules challenged in this proceeding, §§ 3.192, 3.292, and 3.656 of the Commission's Rules and Regulations,

means of any such lottery, gift enterprise, 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."

2 Examples of the "give-away" programs involved here are "Stop the Music" (American Broadcasting Company), "What's My Name" (National Broadcasting Company), and "Sing It Again" (Columbia Broadcasting System).

"Stop the Music" is described in American's complaint in No. 117 as follows: The home contestants are called on the telephone during the program. On the radio version, home contestants are selected at random from telephone directories. On the television version, home contestants are selected by lot from among those listeners who express in advance, through postcards sent to the network, their desire to participate. On both the radio and television versions, however, the home contestant is not required to be listening to the broadcast at the time he is called in order to participate. When called, the home contestant is asked to give the title of a musical selection that has just been played. In the event he was not listening, or for some other reason desires to have the tune repeated, the master of ceremonies hums or sings it to him over the telephone. If he answers correctly, he receives a merchandise prize; if not, he gets a less valuable "consolation" prize and a member of the studio audience is then given an opportunity to win the merchandise prize by identifying the same tune. If the home contestant answers correctly, he receives, in addition to the merchandise prize, an opportunity to identify another tune, called the "Mystery Melody." If he identifies this tune, he wins the "jackpot" prize, usually valued at several thousand dollars. Should he fail to identify the "Mystery Melody," another home contestant is called and the process is repeated. Addi

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Opinion of the Court.

were designed to prevent the broadcast of such programs.3 The rules are identically worded and apply, respectively, to standard radio broadcasting (AM), FM radio broad

tions to the "jackpot" prize are made each week so long as the "Mystery Melody" remains unidentified.

"What's My Name" is described in National's complaint in No. 118 as follows: Prizes are awarded to contestants for correctly identifying famous persons on the basis of clues given by the master of ceremonies and in a short skit performed by professional actors. All but one of the contestants on the program are chosen from members of the studio audience. The remaining contestant is chosen at random from postcards sent in by listeners, and is called on the telephone during the program. For answering the telephone, he is awarded a watchband manufactured by the sponsor of the program and is also given the opportunity to win a valuable "jackpot" prize in Government bonds by identifying the famous person described in the "jackpot" clues. If the home contestant fails to make a correct identification, the amount of the "jackpot" is added to the "jackpot" for the following week's program. The subject of the "jackpot" clues, however, is changed every week.

"Sing It Again" is described in Columbia's complaint in No. 119 as follows: Performers sing a popular song and then repeat it but this time with parody lyrics describing some person, place, or event. Contestants, selected at random from telephone directories, are called by long distance telephone during the program. If the contestant correctly identifies the subject described by the parody lyrics, he wins a merchandise prize and an opportunity to win a "jackpot" prize by identifying the "Phantom Voice," the voice of a famous but unrevealed person. Clues as to the identity of the "Phantom Voice" are given on the program and on other programs broadcast over the same network. The "jackpot" is increased week by week until the correct identification is made. If the home contestant fails to identify the subject of the parody lyrics, he receives a "consolation prize," and a member of the studio audience is given the opportunity to answer and win the merchandise prize.

347 CFR, 1952 Cum. Supp., §§ 3.192, 3.292, 3.656. The language of the rules is broad enough to cover contest programs drawing contestants solely from members of the studio audience. In the court below, however, the Commission took the position that such coverage was not intended, and the controversy was delimited to programs involving the distribution of prizes to contestants participating from their homes. 110 F. Supp. 374, 381.