Attorney General: Susan G. Townsley, Division of Special Revenue, 2004-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 2, 2004

Susan G. Townsley
Executive Director
Division of Special Revenue
555 Russell Road
Newington, CT 06111

Dear Ms. Townsley:

This is in response to your request for a reconsideration of a previous informal opinion, and request for a formal opinion, on whether you can give permission to Autotote Enterprises, Inc. (AEI) to install Color Tiny TIMs (CTTs) and Hand Held Personal Account Terminals (PATs) at the Mohegan Sun Race Book under the terms of the Mohegan Tribe State of Connecticut Gaming Compact. The informal opinion held that the devices violated the moratorium on telephone betting under Sec. 15(d) of the Compact and lacked necessary standards required by Sec. 8(a) of the Compact. See Informal Opinion, Attachment A. For the following reasons, we conclude that the use of the devices within the race book do not violate the provisions of the Compact, but the devices cannot be allowed until standards are promulgated for their use under Sec. 8(a) of the Compact.

The facts are as follows: Autotote Enterprises, Inc. (AEI) is the provider to the Mohegan Sun Race Book of off-track pari-mutuel wagering services through its hub at Sports Haven in New Haven. Autotote Systems, Inc. (ASI) provides totalizator computer service to Autotote Enterprises. Both AEI and ASI are wholly owned subsidiaries of Scientific Games Corporation (SGC) and both are licensees of the Division of Special Revenue.

Under AEI's present agreement with the Tribe, AEI would like to install CTTs and PATs for use at the Mohegan Sun Race Book. Holders of one-day accounts at the race book would use the CTTs and PATs to enter wagers. Currently, the race book has devices called Tiny Tims (as opposed to Color Tiny TIMs), which are installed at carrels and hard-wired into the tote system. Tiny Tims are self-service machines that are used by customers who have opened a "one-day" account at a teller window. They allow the patron to wager from the privacy of a carrel without returning to a teller window.

Like the Tiny Tims, CTTs and PATs are self-service machines. Unlike them, CTTs and PATs are wireless devices. CTTs are 2.5" x 9" x 6.5" and weight 3 pounds. According to the specs, they have a maximum range of approximately 100 feet, although both ASI and Mohegan Sun Race Book personnel believe that the range is closer to 1,000 feet. The batteries allow CTTs to be used for up to six hours on a single charge. PATs are 1" x 3-5/8" x 7" and weigh 11.8 oz. They use the Palm Operating System. They have a maximum range, in open space, of approximately 1,000 feet. This range diminishes when the signal must pass through walls. ASI tested the range of the PATs at Mohegan Sun and discovered that, with the exception of spaces around certain doors and windows, the signal is not strong enough to connect to the tote system through walls. Even in the spaces around windows and doors, the signal diminished after only a few paces. The batteries allow PATs to be used for up to 32 hours on a single charge.

CTTs have been approved for use at AEI's Connecticut Off-Track Betting Simulcast facility at Sports Haven since November, 20011, and they have been in use at other U.S. tracks for about five years, we are told.

The central concern is whether these devices are subject to the moratorium on telephone betting provided for in Sec. 15(d) of the Compact. This provision reads as follows:

(d) Moratorium on off-track pari-mutuel telephone betting. Notwithstanding the provisions of section 3(a)(xi), the Tribe shall have no authority under this Compact to conduct off-track pari-mutuel telephone betting unless and until it is determined by agreement between the Tribe and the State, or by a court of competent jurisdiction, that such gaming would not violate the Indian Gaming Regulatory Act on the ground that such gaming does not constitute Class III gaming activities on Indian lands within the meaning of 25 U.S.C.  2710(d)(1) (it being understood and agreed that there is a present controversy between the Tribe and the State in which the Tribe takes the position that such gaming is gaming on Indian lands within the meaning of the Act and the State takes the position that such gaming is not gaming on Indian lands within the meaning of the Act). Upon such determination the operation by the Tribe of off-track pari-mutuel telephone betting shall be subject to the applicable provisions of the Standards of Operation and Maintenance for Pari-Mutuel Gaming adopted pursuant to section 8 of this Compact.

Compact Sec. 15(d).

The Compact does not define the term "telephone." Concerning the interpretation of tribal compacts, we have often noted:

In analyzing compact agreements, the ordinary rules of statutory and contract interpretation are employed. See Oklahoma v. New Mexico, 501 U.S. 221, 246, 111 S.Ct. 2281, 115 L.Ed. 2d 207 (1991) (concurring opinion); United States v. Utah, Nevada & California Stage Co., 199 U.S. 414, 423, 26 S.Ct. 69, 50 L.Ed.2d 251 (1905). In interpreting written agreements, the goal is to discern the intent of the parties. See Lodge 7004 Intern. Ass'n of Machinists v. United Aircraft Corp., 193 F. Supp. 69, 70 (D. Conn. 1961). The intention of the parties is to be ascertained from the language used, and the language must be given its common meaning and usage. Scribner v. O'Brien, 169 Conn. 389, 398, 363 A.2d 160 (1975). The agreement must be interpreted as a whole, with all relevant provisions considered together. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 134, 464 A.2d 6 (1983). Doubtful expressions should be interpreted in favor of the Tribe. 74 Am. Jur.2d Treaties, 33.

2002 Conn. Op. Atty. Gen. 23, supra at pp. 4-5.

In 1994, when the Compact was signed, the parties surely did not contemplate the use of CTTs and PATs. Particularly regarding PATs, if they existed at all, they were not commonly available or widely known to exist outside of the technical community. Telephone betting, on the other hand, was a common amenity available in Connecticut. Reg. Conn. State Agencies, Sec. 12-571-8a (1986) (Telephone betting). Rapid advances in telecommunications, computers, and the Internet have opened a new world of communication in recent years, and wireless communication is especially experiencing creative growth.

The task of applying older gambling rules to new inventions is an increasingly common phenomenon, as entrepreneurs seek to evade old prohibitions with new technologies that accomplish the same thing. Technological change does not render current laws obsolete. The plain meaning of a prohibition should be conclusive, except in the rare cases in which the literal application will produce a result demonstrably at odds with the intentions of its drafter. United States v. Cohen, 260 F.3d 68, 73 (2nd Cir. 2001) citing United States v. Ron Pair Enters., Inc., 498 U.S. 235, 242 (1989). In either case, the clear intent to impose a gambling prohibition will be given effect.

Applying these principles, we note first that the term "telephone" means "An instrument that converts voice and other sound signals into a form that can be transmitted to remote locations and that receives and converts waves into sound signals." American Heritage Dictionary (Fourth Ed. 2000). CTTs and PATs are not telephones under this definition because they do not communicate using voice or sound. Instead they transmit data wirelessly which eventually interface directly with the totalization system. Like telephone betting, however, they permit a person to bet from a distance without using a race book teller and with a telecommunication device. "'Telecommunication' is the science and technology of communication at a distance by electronic transmission of impulses, as by telegraph, cable, telephone, radio, or television." American Heritage Dictionary. The question of whether such new technology can be allowed requires an examination of whether it constitutes an illegal expansion of gambling opportunities, or a mere increase in convenience. See, 1986 Op. Conn. Atty. Gen. No. 66 (Letter to A. W. Oppenheimer, September 16, 1986) (patron activated computer terminals allowed).

Reading the telephone betting moratorium provision of the Compact in context to ascertain the intent of the parties, it is evident that the parties were concerned about the ability to bet at the Mohegan Sun Race Book from outside the reservation race book. Certainly, by adopting the moratorium on telephone betting, the parties were concerned about the ability of persons, located outside the reservation race book, calling in bets. New technological devices which allow betting outside the reservation race book could, therefore, violate the Compact's moratorium on telephone betting.

The concern expressed in the compact does not exist in the present case. The facts which you supplied us indicate that the range, configuration and physical location of the devices currently permit communication only from the high stakes betting area within the race book in the Casino. Clearly, this was not the problem envisioned by the parties in creating the moratorium. Accordingly, the devices can be categorized as an increase in convenience for betting patrons, and not an illegal expansion of gambling opportunities. Nevertheless, it is equally clear that the range limits on these devices are temporary, technological barriers, not obligatory limits imposed by any rule of law. A rule is needed to establish the boundaries for lawful use of the devices.

The Compact prescribes that the Tribal gaming agency adopt standards of operation and management to govern off-track betting operations. Gaming Compact, Sec. 8(a). The purpose of the standards is to protect the public interest in the integrity of the gaming operations and to reduce the dangers of unsuitable, unfair or illegal practices and methods and activities in the conduct of the gaming. Id. Standards are promulgated under the following methods:

The Tribal gaming agency shall notify the State gaming agency of any revision of the standards of operation and management and shall either (i) certify that the revisions to the standards will have no material effect on the manner in which the standards protect the public interest in the integrity of the gaming operations and reduce the dangers of unsuitable, unfair or illegal practices and methods and activities in the conduct of gaming; or (ii) request the approval of the State gaming agency for such revised standards, which approval shall be deemed granted unless disapproved within sixty days of submission of the revised standards; the State gaming agency shall approve the revised standards upon request unless it finds that they would have a material adverse impact on the public interest in the integrity of the gaming operations, and shall disapprove only such portions of any proposed revised standards which are determined to have a material adverse impact on such public interest, setting forth with specificity the reasons for such disapproval; any disapproval of revised standards by the State gaming agency shall be subject to review in the manner provided by the laws of the State for review of administrative decisions which are subject to judicial review.

Compact, Sec. 8(a).

Pursuant to this provision, the Tribe has adopted standards for new inventions for betting introduced at the Casino in the past. See, e.g., Standard B-28:1 (2001) (PROBE Module, Screen Activated Machines, Walkabouts, Tiny TIMs), Attachment B. Otherwise the standards still contain a general prohibition on "any communication equipment designed for and capable of sending or receiving broadcast or messages of any kind." Standard B-8:1 (15) (2001), Attachment C. Accordingly, it would be appropriate for the Tribe to adopt standards for the devices in contemplation here.

A spokesman for the Tribe earlier informed us that the Tribe does not believe that CTTs or PATs violate the moratorium and the Tribe believes that standards are unnecessary because these devices are merely wireless versions of Tiny TIMs, which are already subject to standards. We disagree and believe that the Tribe must agree to abide by standards, which should be developed so as to confine use of the devices to the race book. Also, you note that technologic aids are often not considered games of chance, but merely assist a player on the playing of a game. 25 C.F.R. 502.7 (Bingo Aids). We do consider whether a device expands gambling opportunities or is merely a convenience for existing, allowable gaming. 1986 Op. Conn. Atty. Gen. No. 66, supra. In the instant case we agree that the devices do not expand the venues for gambling. However, considering the sensitive issues concerning range and remote wagering which prompted the parties to put a moratorium on the use of telephone betting, we believe that an explanation of what wireless devices may be allowed, the limits of their use, and protections against misuse must be specified clearly and in detail in an appropriate standard, especially in light of the general prohibition of communication equipment already in the standards.

In conclusion, we believe that CTTs and PATs can be used within the Mohegan Sun Race Book - - but only within that narrowly defined and delineated area - - without violating the moratorium on telephone betting established in Sec. 15(d) of the Compact. Any such use can be permitted only after the promulgation of appropriate standards for their use under Sec. 8(a) of the Compact consistent with this opinion.




RICHARD BLUMENTHAL
ATTORNEY GENERAL


Robert F. Vacchelli
Assistant Attorney General

RB/RFV/ni


1We were not asked for an opinion on the lawfulness of the use of this device at Sports Haven, and we attach no precedential value to the practice in this opinion. Sports Haven is not subject to the provisions of the Tribal-State Compact nor the moratorium on telephone betting provision of that Compact, which is the operative rule in consideration in this opinion.


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