Reel Time Bingo

September 23, 2003

Mr. Clifton Lind
President, C.O.O.
Multimedia Games, Inc.
8900 Shoal Creek Blvd., Bldg. 3
Austin, TX 78757

RE: Reel Time Bingo

Dear Mr. Lind:

The National Indian Gaming Commission (NIGC) Office of General Counsel (OGC) issues this Advisory Opinion as part of the Settlement Agreement signed by NIGC, Multimedia Games Inc. (MGAM) and the U.S. Department of Justice in Multimedia Games v. United States, No. 02-5161 (10th Cir.). The Agreement provided that MGAM would submit information on a game (Reel Time Bingo or RTB) that MGAM would substitute for the MegaNanza series of game, which were the subject of an April 15, 2002, Advisory Opinion that concluded that MegaNanza was a class III game. The parties have engaged in lengthy discussions about what characteristics a Class II game must have and whether and how Reel Time Bingo possesses those characteristics.

We base our opinion on: discussions held with Multimedia; game descriptions; live demonstration and play of the game at NIGC’s Washington office; and laboratory reports from Gaming Laboratories International and Nick Farley & Associates. The lab reports considered several themes of games or “skins,” including “Thunder Reel,” “Wild Spinner,” and “Meltdown” and evaluated the game as it was played when the reports were finished at the end of March 2003. The opinion stated herein is subject to Multimedia’s submission to the labs for source code verification. We will require you to provide both the source code for the game and the signature for the code so that we may conduct monitoring of games. If lab reports indicate that the game is played or operated differently than described in this opinion, we will withdraw the opinion.

Multimedia has specifically requested that this Advisory Opinion address RTB Version 1.2 with modifications required by our office before we can conclude that the game is class II. This opinion is limited to the play of RTB as described herein. It is our understanding that this particular game is not presently in play in Indian Country.

We have determined that RTB Version 1.2 is bingo and therefore a class II game under the Indian Gaming Regulatory Act (IGRA) when played as described in this Advisory Opinion. Consequently, the game may be offered on Indian lands without a tribal-state compact when otherwise played in accordance with the IGRA.

Game Description

Mechanics of the game: Reel Time Bingo is generated by a computer program that drives several displays offered by MGAM, “Meltdown,” “Fruit Cocktail Deluxe,” “Glory 7s,” “Black and White,” “Wild Spinner,” and “Thunder Reel.” The system is driven by three computers: the central host computer that maintains the database; the “ccCentral Computer” or Local Host, which monitors game activity; and the Remote Computer, which displays current game status and communicates with the ccCentral Computer.

The remote server is located in Goldsby, Oklahoma, on the Chickasaw Nation reservation. That server stores the master sets of electronic bingo cards, determines the numbers drawn for each game, and makes sure that a game does not begin without a minimum number of players.

The local server is the remote server’s emergency backup. It also deals individual cards to each player’s electronic player station (EPS).

The version examined by the laboratories required 15 players, either in one hall or linked between halls, for a game to begin. However, in some circumstances a game may be played with fewer than 15 players. For example, if a game is linked between halls and two (2) or more people have logged on and have waited 21 seconds, the system will allow the game to be played with as few as two (2) players. Also, if the game is not linked between halls and five (5) or more players have waited 21 seconds, the system will allow the game to be played with as few as five (5) players. In this latter scenario in which the game is not linked, if fewer than five (5) players log on, the system will wait for up to two (2) minutes for more players to log on. In all cases, if the requisite number of players does not log on in the requisite time, the system refunds players’ money. After more than 15 players log on, a new game is formed. New games may be formed within seconds of a previous game.

RTB uses two card perms, each with 100 decks. Each deck has 3003 cards. When the local host connects to the remote server, the remote server downloads a deck. After the cards have been electronically shuffled, the local server “deals” individual cards to each player’s Electronic Player Station (EPS).

Game Play: Before play begins, a player may either open an account at a Point of Sale (POS) terminal or deposit money in the machine. At a POS, a cashier adds the amount the player chooses to the player’s account, which is entered into the POS computer, and the player chooses a PIN number. The player may then chose to have the cashier issue either a receipt with an account number or a Player Club Card with the account number encoded. The account number is registered in the gaming operation’s local computer. To increase an account’s value, a player may use a bill validator on an EPS or deposit more money into the account at the POS terminal. Cashing out is done only at the Point of Sale terminal, however.

Once money or the POS-issued card is inserted into the EPS, the system “deals” a card to the player, which appears on the upper left hand corner of the screen. The card has the appearance of a traditional bingo card, with a grid of five across and five down, with no free space. The player may reject the card that has been dealt by touching it on the EPS screen, whereupon an alternative card is shown. The player may continue to reject cards until one comes up that the player wants to play, whereupon the player stops touching the electronic cards. The player will continue to play this card until he or she stops playing or switches to another card after game play has stopped. In no case do players play duplicate cards.

After choosing a card, the player chooses the amount he or she wants to wager. The player then hits the “play” button on the player’s terminal.

Play of the game starts once the requisite number of players have logged onto the system. At that point, a random number generator (RNG) generates 75 numbers in rapid succession. The balls are revealed in the order in which they were generated and in at least two phases. The first phase reveals fewer balls than are required to create the game-ending pattern—in RTB, a V created by three spots—on one of the cards that have been dealt. A player wins when he or she is the first to cover numbers that create the game-ending three-point “V.”

Players cover their cards by daubing. The monitor cues all players to daub after each series of balls is revealed. Players daub either by hitting the button marked “play” on the front of the EPS or by touching anywhere on the touch screen on the EPS’s monitor. Numbers are not daubed individually. The game ends when a player daubs and covers the game-ending pattern.

Patterns other than the “V” also win prizes, so-called “interim” or “bonus” prizes. According to the GLI lab report, there are approximately fifty (50) possibly winning patterns. GLI Report, p. 5. However prize-winning patterns other than the game-ending pattern can be created only from patterns created by the first 30 numbers of the 75 that are generated. In addition, an interim prize can be won only if the player actually daubs to cover the pattern. If a player with an interim prize pattern does not daub, that player does not win a prize. Furthermore, if no interim prizes are generated within the first 30 balls, the only prize that will be awarded for the game is for the game-ending pattern.

If a player with a game-ending pattern does not daub, that is, when a player “sleeps the bingo,” the game continues, with more of the 75 numbers being displayed until another player has a game-ending pattern. If that person also sleeps the bingo, more numbers are revealed until the last possible player has the game-ending pattern. That person, like all other players have been, is cued to daub. Unlike other players, however, the last person to have a game-ending pattern must daub or else another game cannot begin. In other words, the last possible player to have the game-ending pattern cannot sleep the bingo. Once the game-ending pattern is daubed, the game ends. All daubs, except for that of the last person to have the game-ending pattern, must happen within a set amount of time, which appears to be approximately three (3) seconds. The monitor flashes the word “daub” and the number of seconds remaining in which the daub can happen. For the last possible person who has a game-ending pattern, “daub” flashes indefinitely.

Some games may have progressive prizes.

Display Patterns: The player has a choice of two visual formats in which to play RTB, a bingo card format and a spinning wheels format. In both, a bingo card appears in the upper left hand corner of the screen. The card is at least 2 1/8 inches both horizontally and vertically with numbers appearing in at least a 16-point font. Before the play button is touched, the card displays as gray numbers on a black background. When numbers forming a winning pattern—either game-ending or interim—are daubed, they change from gray on black to white numbers within a red circle. Numbers that are released within the first 30 but that do not form a winning pattern are displayed as black numbers within gray circles. Numbers that are revealed after the first 30 numbers are released display as white numbers on a black background.

In both formats—bingo and spinning reels—the space immediately below the bingo card shows the numbers generated by the RNG in the order they were generated and as they are released. In the bingo format, however, the upper left-hand corner bingo card appears also in a larger form to the right of the miniature bingo card, on the central part of the monitor. The effect is that the bingo card appears twice on the screen. In the spinning wheels format, the player sees what look to be spinning reels, not the magnified bingo card, in the main part of the screen. The player chooses between the two formats by touching the “card display” or “reel display” button on the bottom left-hand corner of the screen, which switches the display in the main part of the screen from the bingo card to rows of spinning wheels or other displays. While the numbers are being drawn in the bingo-card format, the bingo cards stay stationary. While the numbers are being drawn in the spinning-reels format, the main part of the screen looks like a slot machine display, simulating spinning wheels until the numbers are released, at which point the spinning stops.

It appears from the lab reports that the spinning reel effect is derived from the bingo card. For example, in the “Wild Spinner” version of RTB, if the numbers that are generated create a pyramid pattern on the bingo card, the spinning-reels display shows three Sevens; if a “crazy small kite” pattern is formed on the bingo card, the spinning-reels display shows three double bars. (March 17, 2003, GLI Report, p. 6.)

There are approximately 50 pre-designated prize-winning patterns and one (1) game-ending pattern, the V. Winning patterns except for the game-ending pattern can be won only from the first 30 numbers that are generated. In a game played in the bingo format, after a game-ending pattern is generated and the daub button touched, red circles appear around the numbers that form the winning patterns. In a game played in the spinning wheel format, after a game-ending pattern is generated and the daub button touched, the payline running through the wheels becomes a blinking “winner” line and the shape of the winning pattern appears as a word written at the bottom of the screen. For example, when the winning pattern is the game-ending pattern, the word “Triangle” appears at the bottom of the screen. If the winning pattern is one of the interim-prize winning patterns, other words appear. For example, a box formed by four numbers in a corner generates the phrase “edge biscuit.”

Applicable Law

The Indian Gaming Regulatory Act (IGRA) governs gaming on Indian lands. The IGRA defines class II gaming in relevant part to include:

the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)—
1. which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,
2. in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and
3. in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards, including (if played in the same location) pull?tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo[.]

25 U.S.C. § 2703(7)(A). Games that are not within the definition of class II games are class III. See 25 U.S.C. § 2703(8).

NIGC regulations similarly define class II gaming to include:

Bingo or lotto (whether or not electronic, computer, or other technologic aids are used) when players:
1. Play for prizes with cards bearing numbers or other designations;
2. Cover numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined; and
3. Win the game by being the first person to cover a designated pattern on such card;
If played in the same location as bingo or lotto, pull-tabs, punch boards, tip jars, instant bingo, and other games similar to bingo[.]

25 C.F.R. § 502.3.

IGRA provides that class II games may utilize “electronic, computer or other technologic aids.” 25 U.S.C. § 2703(7). NIGC regulations define a technologic aid as “any machine or device that: (1) assists a player or the playing of a game; (2) is not an electronic or electromechanical facsimile; and (3) is operated in accordance with applicable Federal communications law.” 25 C.F.R. § 502.7(a).

In short, if a game contains the fundamental characteristics of a class II game and is played using an electronic or other technologic device, the determining factor in its classification is whether the electronic device is an aid to the play of a game, in which case the game is class II, or whether the electronic device is a facsimile of a game, in which case the game is class III. A game’s classification matters in that, under IGRA, class III games may be played only pursuant to a tribal-state compact. See 25 U.S.C. § 2710(d)(1)(C).

Analysis

To issue a game classification opinion for any electronic game, the NIGC must evaluate the elements of the game and determine whether the game is an “electronic aid” to the play of a class II game or an “electronic or electromechanical facsimile” of a game of chance or a slot machine. At issue with Reel Time Bingo is whether the game, which is played electronically, is class II or a facsimile of a slot machine.

The definition of bingo contained in IGRA consists of three specific criteria. Reel Time Bingo meets each of these and is thus bingo under the Act.

A. Statutory Criteria for Bingo

1. Cards Bearing Numbers

First, the Act requires that the game be played for prizes “with cards bearing numbers or other designations.” 25 U.S.C. 2703(7)(A)(i)(I). There is no statutory requirement that bingo be played with paper cards as in a traditional bingo game. In fact, case law and NIGC’s regulations provide that class II bingo games may be played with electronic cards. The U.S. Court of Appeals for the Tenth Circuit, in U.S. v. 162 Megamania Gambling Devices, 231 F. 3d 713 (10th Cir. 2000) ruled that a game, Megamania, was class II because it met the three statutory criteria for bingo, among them, that the game “is played with an electronic card that looks like a regular paper bingo card containing a grid of numbers….” Id. at 719. The Ninth Circuit also affirmed the class II status of Megamania, observing that the game consisted of “electronic game ‘cards.’” U.S. v. 103 Electronic Gambling Devices, 223 F. 3d 1091, 1093 (10th Cir. 2000). NIGC’s regulation on technologic aids, 25 C.F.R. § 502.7(c), explicitly names “electronic cards for participants in bingo games” as an example of an aid, which is allowable for class II games under 25 C.F.R. §502.3(a).

It can thus be said that Reel Time Bingo is played with cards in that the game, in both its bingo and spinning wheels formats, is played with electronic bingo cards. These are bona fide cards in that they are readily visible even when the game is played in the spinning wheels format. The cards have dimensions of 2 1/8 inch by 2 1/8 inch, have high color contrast among the screen, the grid, and numbers within the grid, and are in an easy-to-read 16-point font.

The fact that the electronic card is readily visible and is integral to the play of the game is critical to our opinion that Reel Time Bingo meets the first statutory criterion. We do not consider the mere existence of an electronic card on a screen to meet the criterion. The game must be played on the cards, and the results of the game apparent on the cards, independent of the spinning wheels or other pattern. Part of the integral role that the bingo card plays in the case of RTB is that the bingo format of the game drives the spinning wheels display. That is, the numbers that are drawn and the patterns they form are what determine the patterns that the spinning wheels take. It is also important that the card is readily visible and that a player is able to discern what prize, if any, has been won by seeing the pattern on the bingo card. In short, for a game to be bingo, the bingo card must not be irrelevant. If the bingo card plays no substantial role in the game, the first statutory criterion will not be met.

2. Holder of the Card Covers When Objects Are Drawn

The second statutory requirement is that “the holder of the card covers” the numbers on the card “when objects…are drawn or electronically determined….” 25 U.S.C. 2703(7)(A)(i)(II). Reel Time Bingo meets this requirement.

We note that the Act requires that the “holder” of the card, not just the possessor of a winning pattern, must cover the numbers when they are drawn. For this reason, it is important that all players, not just the winners, have the opportunity to daub when balls are released.

Also, as we have noted in previous opinions, IGRA requires that a player cover “when” objects are drawn. Webster’s Collegiate Dictionary (10th ed.) defines the conjunction “when” as: 1a: at or during the time that: WHILE…b: just at the moment that…c: at any or every time that…2: in the event that: IF…3a: considering that…b: in spite of the fact that: ALTHOUGH…4: the time or occasion at or in which….

Reel Time Bingo meets the requirement that a player cover when objects are drawn in that numbers are not stored in RTB. Instead, numbers are released sequentially and players all have the same opportunity to cover (or daub) immediately upon release of each series of drawn balls. Players purchase their cards prior to numbers being generated. Once numbers are generated, players are cued to daub their cards. As in paper bingo, players cover in response to the numbers being drawn that correspond to numbers on their cards.

3. Game Won by First Person Covering Previously Designated Pattern

The third statutory requirement of bingo is that the game must be won by the first person covering a previously designated arrangement of numbers or designations on such cards. 25 U.S.C. § 2703(7)(A)(i)(III). Reel Time Bingo meets this criterion by having the first person who covers one of several pre-designated patterns wins the prize associated with that pattern. The person who first daubs the game-ending pattern—a V created by three (3) covered spaces—in particular wins the prize given for ending the game.

The fact that the game allows for “interim” or “bonus” prizes by players other than the one with the game-ending pattern does not negate this finding. The U.S. Court of Appeals for the Ninth Circuit in U.S. v. 103 Electronic Gambling Devices, 223 F.3d 1091 (9th Cir. 2000) makes clear that the third statutory can be met even if prizes are won by players before there is a game winner:

The sum of the matter is that the IGRA requirement that a “bingo” game be “won” by the “first player” covering a pre-designated pattern does not mean the game must end when one player does so, so that everyone else wins nothing.

Id. at 1098-1099. The court thus held that a game in which players won interim prizes before the game-ending prize was covered could be class II.

The Tenth Circuit has similarly held that

nothing in the Gaming Act or [NIGC] regulations prohibits more than one winner or “interim prizes” during a game of bingo.

U.S. v. 162 Megamania Gambling Devices, 231 F. 3d 713, 722. Thus, the fact that the first person to cover a pre-designated pattern does not end the game does not foreclose finding that the game is class II.

Reel Time Bingo also meets the requirements that the person actually cover the predesignated pattern. This requirement would not be met if players could, in one motion, start the game, win, and claim their prizes. Bingo requires participation of some degree. Merely hitting a start button and having numbers covered would not comply with the degree of participation that the statutory language—“the first person to cover”—implies. Likewise, an automatic daub, in which the player need not have any response to the numbers that are called, would not be acceptable. The statutory criterion is met in Reel Time because, after initiating play, players cover their numbers either by hitting the daub button on the game’s hardware or touching the monitor screen when cued.

We can conclude that RTB meets the third statutory criterion also because the game requires there to be at least two releases of numbers before a winning game-ending pattern is created. The statutory language, “won by the first person,” describes a contest or race among players to be the first to win. Central to “the game of chance commonly known as bingo” is the competition built up over the course of successive ball draws, as each player covers matching numbers or designations in an attempt to be the first to cover the winning pattern. ^[1] No such challenge exists where all of the balls are revealed at once. Said differently, if all the balls necessary to produce a game-winning pattern are drawn at once, the game will likely end with only one ball draw, thereby removing the contest element.

Our interpretation of the statutory definition, requiring balls to be released in multiple rounds during the course of the game, is supported by case law. In the Ninth and Tenth circuits’ opinions on MegaMania, the courts found that the game was Class II. U.S. v. 103 Electronic Gambling Devices, 223 F.3d 1091 (9th Cir. 2000); U.S. v. 162 MegaMania Gambling Devices, 231 F. 3d 713 (10th Cir. 2000). ^[2] The courts reached their decisions after an analysis of the play of the game and whether it met the statutory criteria for bingo. According to the courts, in MegaMania numbers are drawn by a bingo blower and released three balls at a time. If a player wants to continue playing the game after the first three balls are drawn, the player pays additional money to stay in the game for the release of the next three balls. The game is won by the first person to cover a five-space straight line on an electronic bingo card.

Intrinsic to the play of MegaMania are the successive rounds that a player must engage in to win the game. The game cannot be won after a single ball release. The Ninth Circuit’s ruling—limited as it was to the facts—recognizes an inherent character of bingo: that the game requires a player to participate in a process of numbers being revealed. MegaMania could be won by two successive ball draws and so we do not require more than two ball releases. But we do interpret IGRA’s definition of bingo, with the winner being the first to cover, as requiring more than one release. Consequently, the number of balls released must be some number less than the number of balls required for a player to achieve the win, that is, the game-ending pattern.

Our interpretation of the third statutory criterion is consistent with both case law and the statutory definition, and also honors what we understand “the game of chance commonly known as bingo” should be. We are wholly cognizant of the Ninth Circuit’s caveat that “Whatever a nostalgic inquiry into the vital characteristics of the game as it was played in our childhood or home towns might discover, IGRA’s three explicit criteria constitute the sole legal requirements for the game to count as class II bingo. “ 103 Electronic Gambling Devices, 223 F.3d at 1096. We are also aware that the lines between what constitute class II and class III games are being blurred by technological advances that Congress could not have foreseen and did not explicitly address in 1988 when it enacted IGRA, with its three simple statutory criteria for what constituted bingo. We nonetheless must continue to distinguish class II from class III games because Congress distinguished between them. The Committee Report on the bill that became IGRA noted that “both State and tribal governments have significant governmental interests in the conduct of class III gaming.” S. Rep. 100-446, p. 13. Having weighed the merits of different interpretations of the third statutory criterion, we find that requiring multiple ball releases is in keeping with the statutory language, case law, and with our concern that play of bingo must be distinguishable from the play of a slot machine, over which Congress intended tribes and states to compact.

The requirement that the first person to cover wins is also met by RTB’s provision that allows the game to continue if a player sleeps his bingo or fails to daub when he or she has one of the predesignated patterns. Not allowing a player to sleep results in a game in which no one has to cover; the game would simply end, either with no one winning or with a person winning who has not had to cover. In RTB, if the player fails to daub, the player forfeits his prize and the game continues, with more numbers being revealed, until a player does cover a predesignated pattern.

B. Electronic Aid v. Facsimile

In addition to meeting the requirements for bingo, a game can be class II so long as it includes an electronic aid and is not an electronic or electromechanical facsimile. 25 C.F.R. 502.7(a). NIGC’s regulations define an electronic, computer or other technologic aid as:

Electronic, computer or other technologic aid means any machine or device that:
1. Assists a player or the playing of a game;
2. Is not an electronic or electromechanical facsimile; and
3. Is operated in accordance with applicable Federal communications law.
Electronic, computer or other technologic aids include, but are not limited to, machines or devices that:
1. Broaden the participation levels in a common game;
2. Facilitate communication between and among gaming sites; or
3. Allow a player to play a game with or against other players rather than with or against a machine.
Examples of electronic, computer or other technologic aids include pull tab dispensers and/or readers, telephones, cables, televisions, screens, satellites, bingo blowers, electronic player stations, or electronic cards for participants in bingo games.

25 C.F.R. § 502.7.

NIGC regulations define electronic or electromechanical facsimile as follows:

Electronic or electromechanical facsimile means a game played in an electronic or electromechanical format that replicates a game of chance by incorporating all of the characteristics of the game, except when, for bingo, lotto, and other games similar to bingo, the electronic or electromechanical format broadens participation by allowing multiple players to play with or against each other rather than with or against a machine.

25 C.F.R. §502.8. The electronic characteristics of Reel Time Bingo fall into the category of electronic aid.

First the EPSs on which the game may be played are linked in two ways. One, they are linked within the gaming operation so that players compete against each other in one location. We note that in this situation, five (5) players are required for a game to begin. Two, games may be linked through the central system, enabling players from different gaming operations or different reservations to compete against each other. In this scenario, the game may be played with as few as two (2) players. These characteristics meet the definition of electronic aid, in that they “broaden the participation levels in a common game”—that is, a single game—facilitate communication between gaming sites, and allow players to play against other players. 25 C.F.R. §502.7(b)(1), (2), (3).

We note, too, that the linking of EPSs creates a format that “allows multiple players to play with or against each other,” which is one of the exceptions to the definition of electronic facsimile for bingo games. The Reel Time Bingo game is set up to allow as few as two (2) but up to 15 multiple players to play. The game allows 21 seconds for up to 15 players to play when the game is linked between halls, but will allow two (2) players to play after the 21-second wait. It waits two (2) minutes for there to be 15 players when the game is not linked, but will allow five (5) players to play after the two-minute wait. The game is thus designed to allow multiple players and gives ample time for there to actually be multiple players. We can therefore say that the game broadens participation.

Moreover, participation among players, rather than against the machine, is encouraged by the successive ball releases. By requiring players to participate and actually play the game, rather than simply start the game and complete it in one ball release, RTB broadens participation as well as requiring the player to play against other participants rather than just against the machine.

In short, RTB is not a facsimile. It may therefore be classified as class II.

Sincerely yours,

/s/ Penny J. Coleman

Penny J. Coleman
Acting General Counsel

cc: NIGC Region Chiefs for distribution to tribes

^[1]This conclusion that Congress and the Commission intended class II bingo to be a competition with or against other players is also key to the distinction between class III facsimiles of a game, in which players play against a machine, and class II bingo aids, in which players play against each other.

^[2]The Ninth Circuit specifically found that MegaMania was bingo. The Tenth Circuit was not so specific: “Having determined MegaMania is a Class II game, we see no reason to go any further, and leave the specific question whether MegaMania is bingo or a ‘game similar to bingo’ for future resolution.” 162 MegaMania Gambling Devices, 231 F.3d at 725, n.10.