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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )
Liability of WTMJ, Inc.         )
Former Licensee, Station WIFC(FM))
Wausau, Wisconsin               )
                                )
For a Forfeiture                )
                                 
                                 
                  MEMORANDUM OPINION AND ORDER
                                

   Adopted:  April 14, 1999             Released:  April 16, 1999


By the Chief, Mass Media Bureau:

     1.  The Commission, by the Chief, Mass Media Bureau, acting pursuant to authority delegated by
Section 0.283 of the Commission's Rules, has under consideration a Memorandum Opinion and Order
("MO&O"), 8 FCC Rcd 4354 (MMB 1993), affirming a Notice of Apparent Liability ("NAL"), 7 FCC Rcd
6238 (MMB 1992), assessing a $6,250 forfeiture against WTMJ, Inc.  WTMJ, Inc. seeks review of that
MO&O.

     2.  The Bureau assessed a forfeiture against WTMJ, Inc. for violation of the anti-lottery provisions
of the United States Code, 18 U.S.C.  1304, and Section 73.1211 of the Commission's Rules, 47 C.F.R. 
73.1211.  Specifically, the Bureau found that Station WIFC(FM) impermissibly broadcast two announcements
for the Grand Royale Casino, operated by the Sakaogon Indian Tribe in Mole Lake, Wisconsin.  One
advertisement, which aired from June 22, 1991 to July 6, 1991, urged listeners to "[t]ry [their] luck on any
number of Vegas-style games!"  The second announcement, which aired from August 1, 1991, to August 3,
1991, encouraged listeners to "[e]njoy Vegas-style excitement" and "[g]et big cash payouts."  Under Section
73.1211(c)(3) of our rules, only Indian Gaming conducted in compliance with the Indian Gaming Regulatory
Act, 25 U.S.C.  2710 et. seq. (the "IGRA"), can be legally advertised.  The Bureau concluded that there was
no gaming at the Grand Royale Casino which was being legally conducted pursuant to the IGRA and,
accordingly, that gaming at that casino could not be advertised, even in general terms.

     3.  WTMJ, Inc., among other things, contends that the Commission acted too harshly in assessing a
forfeiture against it.  In this regard, WTMJ relates that when initially presented with these advertisements it
followed a strict, internal review procedure which included consultation with the Wisconsin Broadcasters
Association.  Based on its review and consultation, WTMJ, Inc. understood that it could air advertisements
with respect to Class II gaming conducted by the Grande Royale Casino pursuant to the IGRA.  WTMJ, Inc.
also understood that because no tribal-state compact was in place, it could not broadcast information about
Class III games.  Accordingly, it required the spots at issue to be edited to remove all reference to specific
games classified as Class III gaming.  WTMJ, Inc. contends that it was not until the Commission began its
investigation of these broadcasts that it became aware that the Grande Royale Casino only conducted Class
III gaming, and did not offer Class II gaming which could have been legally advertised.  WTMJ, Inc. argues
that the Commission should recognize the significant efforts it undertook to ensure that the advertisements at
issue complied with the Commission's Rules.  Moreover, it contends that the Commission should take more
notice of the fact that WTMJ, Inc. has a good broadcast record.  Given all the facts of this case, WTMJ, Inc.
argues that the forfeiture should be rescinded.

     4.  Upon review, we agree that more weight should be given to the significant efforts made by WTMJ,
Inc. to ensure that the broadcast of the spots at issue complied with Commission Rules.  In this case,
particularly in light of the fact that little guidance existed at the time on interpretation of the Indian Gaming
exception to our rules, we believe that imposition of a forfeiture is unduly harsh.  In reaching such a conclusion,
we also take note of WTMJ, Inc.'s overall history of compliance with our rules.  In the future, however, we
would expect that a licensee seeking to avail itself of the Indian Gaming exception to our lottery rule would,
at a minimum, verify what type of gaming is being conducted and whether or not a valid tribal-state compact
exists.  As we stated in the MO&O, "a licensee seeking to avail itself of an exception to a general prohibition
must take steps to assure itself that the exception applies."  8 FCC Rcd at 4354.

     5.  Accordingly, IT IS ORDERED, that the $6,250 forfeiture assessed against WTMJ, Inc. is
HEREBY RESCINDED.

     
                         FEDERAL COMMUNICATIONS COMMISSION




                         Roy Stewart
                         Chief, Mass Media Bureau