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 *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' 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.
. “Play Marko” is described as follows:
After the cards have been procured, the person procuring the cards tunes in on the Marko television program, where the Master of Ceremonies draws numbers from a cage or bowl, which numbers are exhibited to the viewing audience on a master board. As the numbers are drawn and announced to the audience, the viewer checks his cards and covers the corresponding number on his card * • *. During the progress of the game, if the viewer succeeds in covering a vertical or horizontal line or diagonal row of five numbers, he has completed a Marko. * * * At the point where a possible Marko is reached, the Master of Ceremonies announces one or more telephone *233numbers on which viewers with Markos can call in, announcing that they have Markos.
When a viewer phones the studio and announces that he has a Marko, the Master of Ceremonies, by means of a master book which contains all Marko card combinations, can check the file number on the card which the viewer gives him, and thus can verify by looking at the master book whether that player has actually in fact a Marko. The first player whose card is thus verified is declared the winner. The winners of the Marko games are awarded prizes in merchandise or U. S. Savings Bonds, which are donated by or through the sponsor of the Marko program.
. The Commission limited its ruling to the situation “where most perssons will, or are required to go to a sponsor’s store or to an establishment handling the sponsor’s products in order to participate.
. The present regulations, 47 C.F.It. § 3.656, are similarly bottomed on the criminal statute. They provide:
(a) An application for construction permit, license, renewal of license, or any other authorization for the operation of a television broadcast station, will not bo granted where the applicant proposes to follow or continue to follow policy or practice of broadcasting or permitting “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 means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes.” (See 18 U.S.C. § 1304).
(b) The determination whether a particular program comes within the provisions of paragraph (a) of this section depends on the facts of each case. However, the Commission will in any event consider that a program comes within the provisions of paragraph (a) of this section if in connection with such program a prize consisting of money or thing of value is awarded to any person whose selection is dependent in whole or in part upon lot or chance, if as a condition of winning or competing for sucli prize, such winner or winners are required to furnish any money or thing of value or are required to have in their possession any product sold, manufactured, furnished or distributed by a sponsor of a program broadcast on the station in question.
. The give-away program involved in the American Broadcasting case required the home contestant to answer his telephone and, in some instances, to have s.ent his name to the station in advance of the broadcast. Since the Court did not refer to those required activities, it apparently viewed them as insignificant for decisional purposes.