PPA has released its UIGEA regulations comment talking points

[TheEngineer]

The PPA has completed its research and has decided the appropriate direction we should take with our comments. The biggest thing of note is that we should try to get "unlawful Internet gambling" defined. This is our chance to neuter the regs. I hope everyone will post a few, and will be forward this to their poker playing friends. Thanks.


http://pokerplayersalliance.org/news...le.php?DID=293

On October 1st, the Department of the Treasury and the Board of Governors of the Federal Reserve issued proposed regulations which, if finalized, would direct banks, credit card companies and other payment systems to take certain steps to block payments for “Unlawful Internet Gambling.” These regulations are an outgrowth of the Unlawful Internet Gambling Enforcement Act (UIGEA) which was enacted last October.

The proposed rule is subject to a 60-day public comment period, during which companies, trade associations and individual people have the chance to express to the regulators their feelings about the proposed regulation. PPA is encouraging its members to file comments with both the Dept. of Treasury and the Federal Reserve urging the regulators to exempt poker from the effect of the regulations, and to avoid adopting regulations that impact on personal privacy.

We urge you to comment in your own words -- the regulators take individualized comments far more seriously than large numbers of obviously scripted comments. However, in an effort to help our members formulate their comments, we are providing the talking points below:

1. The proposed regulations should be modified to clarify that they don’t cover games predominantly determined by skill, such as poker, bridge, mahjong and backgammon. Section 5362(1)(a) of UIGEA defines a bet or wager as “the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance,…” “Subject to chance” can be interpreted in a variety of ways, but in a gambling context it should reasonably be taken to mean games like roulette or slots where players bet against “the house” and success is determined by chance. Poker players compete, not against the house, but against each other, and the success of a player over any significant time interval is determined by that players’ skill.

2. The regulators must define what is and isn’t “unlawful Internet gambling.” The federal and state laws governing Internet gambling are very ambiguous -- nearly all of them were written before the advent of the Internet, and it is not clear how they apply to Internet gaming. In the proposed rule, the regulators emphasize that it is not their intention to clarify this question, because to do so would require them to examine the laws of every state with respect to every gaming modality. Yet that is exactly what they are requiring every bank and payment system to do individually.

3. The regulators should refrain from implementing the regulations until the U.S. resolves its international trade disputes. The World Trade Organization has found the U.S. to be out of compliance with its obligations under the General Agreement on Trade in Services because of its attempts at prohibiting Internet gambling. This is likely to cost the U.S. economy billions of dollars in lost market share and export opportunities. The U.S. government is in negotiations with its trading partners over this matter. Inasmuch as these regulations arguably make that situation worse, the regulators should hold off on finalizing the regulations until the U.S. can resolve its international trade obligations.

4. The proposed regulations should not infringe on personal privacy. UIGEA deputizes banks and payment systems and turns them into the Internet morality police. These regulations should not compel banks to scrutinize the private transactions of individual poker players and others. To do so is hostile to the personal and financial privacy of every American with a credit card or checking account.

5. The UIGEA and the enforcing regulations should not apply to Internet poker nationwide. Federal case law has consistently held that the Wire Act applies only to sports betting and very few states have any laws against Internet poker. These regulations should be clear to only block those transactions which are in fact against the law. Games of skill which are not outlawed under current federal law – such as poker, chess, bridge and majong -- should be exempt from the UIGEA and the regulations.

[BarryLyndon]

I'm not sure if this argument is valid:

Forget about calling up our congressmen and what not. What we really should be doing is calling ESPN and have THEM spend some $$/time on getting this done. Are they? Have they, as a business, spoken against this bill? Can they?

They got the dough and they got leverage because they are owned by Disney, and we all can/should assume that Disney has its hands on some lobbying and [censored]. Well - since ESPN is hugely responsible for the boom of online poker and since online poker is a massive catalyist for the continued growth in profits for ESPN re: poker (video games and broadcasts and advertisement space), shouldn't ESPN be taking care of this business?

ESPN IS THE WSOP, and the WSOP is being taken over by online players.

Personally, I think that EVERY MAJOR ONLINE PLAYER should be on the phone with ESPN to talk to them about what they are prepared to do.

Barry

[TheEngineer]

[ QUOTE ]
Forget about calling up our congressmen and what not.

[/ QUOTE ]

I appreicate your sharing your idea about ESPN, but why would we "forget" everything else? We have lobbyists in D.C. who NEED our support (i.e., this is not some random letter writing campaign). I can see ADDING ESPN to our efforts, but why would we drop everything else? Even if ESPN were willing to carry our water, we'd still have to do our writing to support that effort.

Also, we can try ESPN, but it's unlikely they'll be with us, IMO. The NFL is STRONGLY against us, and it's hard to see ESPN lobbying strongly against the interests of the NFL. Sure, we should all call and write to ESPN, but let's not pin our hopes on them.

I hope you'll call ESPN, your congressman, your senators, and write a comment or two regarding the UIGEA regs. Thanks!

[BarryLyndon]

This is a little bit loose, but at the same time, if I can offer an idea or two, you are more than welcome to it:

To begin, I'm sorry if my statement was too brash. OBVIOUSLY, we should call our congressmen and all other pertinent parties in support of online poker. However, we should not tend to overvalue letters to our congressman and, at the same time, undervalue the institutions that really get things done: lobbyists and/or large money institutions.


Barry

[schwza]

i have a few comments on the talking points.

[ QUOTE ]
1. The proposed regulations should be modified to clarify that they don’t cover games predominantly determined by skill, such as poker, bridge, mahjong and backgammon. Section 5362(1)(a) of UIGEA defines a bet or wager as “the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance,…” “Subject to chance” can be interpreted in a variety of ways, but in a gambling context it should reasonably be taken to mean games like roulette or slots where players bet against “the house” and success is determined by chance. Poker players compete, not against the house, but against each other, and the success of a player over any significant time interval is determined by that players’ skill.

[/ QUOTE ]

poker, backgammon, bridge (and i assume mahjong) are clearly games that are "subject to chance." chance certainly plays a part in those games, big or small, and by the bill's language those games included. you're suggesting a significant change to the regulations, and you need to provide justification for your assertion that "“Subject to chance” ... should reasonably be taken to mean games like roulette or slots where players bet against “the house” and success is determined by chance."

basically you say that we should replace the bill's authors' language, "subject to chance," with much weaker language, "determined by chance" without saying why.

i think a better way to frame the talking points would be roll up the discussion of skill vs luck into point 5, and avoid discussing the "subject to chance" language as it's not very favorable to us. just stick with the case law that the wire act doesn't apply to poker. citations on some of these things would be useful too.

[ QUOTE ]
2. The regulators must define what is and isn’t “unlawful Internet gambling.” The federal and state laws governing Internet gambling are very ambiguous -- nearly all of them were written before the advent of the Internet, and it is not clear how they apply to Internet gaming. In the proposed rule, the regulators emphasize that it is not their intention to clarify this question, because to do so would require them to examine the laws of every state with respect to every gaming modality. Yet that is exactly what they are requiring every bank and payment system to do individually.

[/ QUOTE ]

i think this is the strongest point and you should lead with this. it would also be worth mentioning the discrepancies between the DOJ's interpretation of gambling law with some of the case law that is out there, as this makes banks' jobs even harder.

[ QUOTE ]
3. The regulators should refrain from implementing the regulations until the U.S. resolves its international trade disputes. The World Trade Organization has found the U.S. to be out of compliance with its obligations under the General Agreement on Trade in Services because of its attempts at prohibiting Internet gambling. This is likely to cost the U.S. economy billions of dollars in lost market share and export opportunities. The U.S. government is in negotiations with its trading partners over this matter. Inasmuch as these regulations arguably make that situation worse, the regulators should hold off on finalizing the regulations until the U.S. can resolve its international trade obligations.

[/ QUOTE ]

i would make this section a bit more forceful. first, delete the first sentence, as it makes it sound too much like we're still in the middle of some dispute that could go either way when in reality we've already lost. then i'd rewrite the point as follows:

The World Trade Organization has found the U.S. to be out of compliance with its obligations under the General Agreement on Trade in Services because of its attempts at prohibiting Internet gambling. these regulations bring us further out compliance by _______________ [not sure on details], and our noncompliance is likely to cost the U.S. economy billions of dollars in lost market share and export opportunities. The U.S. government is in negotiations with its trading partners over this matter. the regulators should hold off on finalizing the regulations until the U.S. can resolve its international trade obligations and take steps to rebuilding its credibility in the international trade community as we encourage china and other nations to live up to their WTO obligations.

[DeadMoneyDad]

[ QUOTE ]
I'm not sure if this argument is valid:

Forget about calling up our congressmen and what not. What we really should be doing is calling ESPN and have THEM spend some $$/time on getting this done. Are they? Have they, as a business, spoken against this bill? Can they?

They got the dough and they got leverage because they are owned by Disney, and we all can/should assume that Disney has its hands on some lobbying and [censored]. Well - since ESPN is hugely responsible for the boom of online poker and since online poker is a massive catalyist for the continued growth in profits for ESPN re: poker (video games and broadcasts and advertisement space), shouldn't ESPN be taking care of this business?

ESPN IS THE WSOP, and the WSOP is being taken over by online players.

Personally, I think that EVERY MAJOR ONLINE PLAYER should be on the phone with ESPN to talk to them about what they are prepared to do.

Barry

[/ QUOTE ]

Forget ESPN, or even Disney, those crooks have no desire to risk a good thing.

What other major event with a prize pool the size of the WSOP is paid by the players??? Not only that the WSOP deducts for it's expenses!

The joke is with all the side business let alone the TV rights the WSOP is a profit before a sinle player sits down!

There are no expenses, in any other "sport" the pro's would be paid to play.

Give me a break!


D$D

[adanthar]

#2 is a terrible idea. You certainly *don't* want the regulations to spell out what 'unlawful' gambling is - what happens if they take you up on it and reach a conclusion you don't like? Up until the WTO matter is dealt with, I'd like my online poker gray, not black, thanks. Keep in mind that a bad result will have to be litigated in court by somebody whose bank account is directly affected, possibly even in every appellate circuit.

#1 has the same problem; you and I may think this, but, if pressed, the regulators could very well come to the exact opposite conclusion.

#3 and, to a lesser extent, #5, are the arguments that should be focused on. Don't ask the regulation drafters to come up with their own interpretations; instead, delay them and/or point them to existing case law. This is a much, much better approach than relying on people who likely know nothing about poker to decide whether it's a game of skill.

[Zetack]

[ QUOTE ]
[ QUOTE ]
2. The regulators must define what is and isn’t “unlawful Internet gambling.” The federal and state laws governing Internet gambling are very ambiguous -- nearly all of them were written before the advent of the Internet, and it is not clear how they apply to Internet gaming. In the proposed rule, the regulators emphasize that it is not their intention to clarify this question, because to do so would require them to examine the laws of every state with respect to every gaming modality. Yet that is exactly what they are requiring every bank and payment system to do individually.

[/ QUOTE ]

i think this is the strongest point and you should lead with this. it would also be worth mentioning the discrepancies between the DOJ's interpretation of gambling law with some of the case law that is out there, as this makes banks' jobs even harder.

[/ QUOTE ]

I think we could also mention the liklihood of legal activity being blocked because of the conservative nature of financial entities. If it is unclear whether or not internet poker is allowed in a particular jurisdiction, and the regs provide no guidance, what is a bank going to do? Likley they will act as if it is illegal. If, say, four years down the road, the statutes are interpreted to show that it was legal, then that's four years of a legal activity that I couldn't engage in because of the failure of clarity in the regs. Why should the legality or illegality of an act be trumped by the risk averseness of the financial processors?

[Todd Terry]

I posted this in Tournament Circuit, lost some of the formatting transferring it here:


Quote:
--------------------------------------------------------------------------------


1. The proposed regulations should be modified to clarify that they don’t cover games predominantly determined by skill, such as poker, bridge, mahjong and backgammon. Section 5362(1)(a) of UIGEA defines a bet or wager as “the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance,…” “Subject to chance” can be interpreted in a variety of ways, but in a gambling context it should reasonably be taken to mean games like roulette or slots where players bet against “the house” and success is determined by chance. Poker players compete, not against the house, but against each other, and the success of a player over any significant time interval is determined by that players’ skill.


--------------------------------------------------------------------------------



This is both wrong and irrelevant.

It is wrong because under no reasonable reading of the phrase "game subject to chance" could poker not qualify. It is a game. It is subject to chance. Regulations are promulgated by the executive branch to implement legislation passed by Congress. It would be improper for a regulation to take a position at odds with the clear language of a statute. If this silly argument advocating a bizarre reading of statutory language is to be made anywhere, it needs to be made to a court in a lawsuit challenging the UIGEA, not to a regulatory agency.

It is also completely irrelevant. The UIGEA applies to unlawful Internet gambling. If online poker is not unlawful, the UIGEA doesn't apply. If adopted, this argument regarding "game subject to chance" would only support an argument that the UIGEA doesn't apply to online poker even though it is unlawful, which is silly.


Quote:
--------------------------------------------------------------------------------

2. The regulators must define what is and isn’t “unlawful Internet gambling.” The federal and state laws governing Internet gambling are very ambiguous -- nearly all of them were written before the advent of the Internet, and it is not clear how they apply to Internet gaming. In the proposed rule, the regulators emphasize that it is not their intention to clarify this question, because to do so would require them to examine the laws of every state with respect to every gaming modality. Yet that is exactly what they are requiring every bank and payment system to do individually.


--------------------------------------------------------------------------------



The underlying legislation deliberately, explicitly took no position on defining unlawful Internet gambling. Therefore, regulations implementing that legislation cannot do so, period. In addition, it would be improper, and probably unconstitutional, for the federal government, let alone a federal regulatory agency, to take positions regarding the meaning of ambiguous state laws.

Not to mention, why are we asking the executive branch, which includes the DoJ who has taken the legally indefensible position that online poker violates the Wire Act, to define whether online poker is illegal? If they were to do so, which they won't for the reasons set forth above, we wouldn't like the answer.


Quote:
--------------------------------------------------------------------------------

3. The regulators should refrain from implementing the regulations until the U.S. resolves its international trade disputes. The World Trade Organization has found the U.S. to be out of compliance with its obligations under the General Agreement on Trade in Services because of its attempts at prohibiting Internet gambling. This is likely to cost the U.S. economy billions of dollars in lost market share and export opportunities. The U.S. government is in negotiations with its trading partners over this matter. Inasmuch as these regulations arguably make that situation worse, the regulators should hold off on finalizing the regulations until the U.S. can resolve its international trade obligations.


--------------------------------------------------------------------------------



This is a good point. It will probably fall on deaf ears, but it's worth saying.


Quote:
--------------------------------------------------------------------------------

4. The proposed regulations should not infringe on personal privacy. UIGEA deputizes banks and payment systems and turns them into the Internet morality police. These regulations should not compel banks to scrutinize the private transactions of individual poker players and others. To do so is hostile to the personal and financial privacy of every American with a credit card or checking account.


--------------------------------------------------------------------------------



Unfortunately, this battle was lost a long time ago. Banks already are de facto agents of federal law enforcement. If you don't want your privacy invaded, the only alternative is to keep $2.8 million dollars in cash in your home, like a former WSOP final tablist.

There was an amusing article a while back in the Economist regarding the Patriot Act reporting provisions for banks. The banks, rather than risk severe penalties, took an overly expansive view of what needed to be disclosed to the Feds and literally buried them in an avalanche of data that was so big as to be completely useless because they lacked the manpower and tools to be able to wade through it.


Quote:
--------------------------------------------------------------------------------

5. The UIGEA and the enforcing regulations should not apply to Internet poker nationwide. Federal case law has consistently held that the Wire Act applies only to sports betting and very few states have any laws against Internet poker. These regulations should be clear to only block those transactions which are in fact against the law. Games of skill which are not outlawed under current federal law – such as poker, chess, bridge and majong -- should be exempt from the UIGEA and the regulations.


--------------------------------------------------------------------------------



See point 2 above, this is essentially the same point as asking them to define "unlawful Internet gambling". While the sentence about federal case law is correct, it's been very few cases, and the legality of online poker has never been addressed directly by any court. I'd love to hear from either the PPA or the online poker industry why this has not been done via a declaratory judgment action. I'm pretty sure I know the answer.

[BarryLyndon]

[ QUOTE ]
[ QUOTE ]
I'm not sure if this argument is valid:

Forget about calling up our congressmen and what not. What we really should be doing is calling ESPN and have THEM spend some $$/time on getting this done. Are they? Have they, as a business, spoken against this bill? Can they?

They got the dough and they got leverage because they are owned by Disney, and we all can/should assume that Disney has its hands on some lobbying and [censored]. Well - since ESPN is hugely responsible for the boom of online poker and since online poker is a massive catalyist for the continued growth in profits for ESPN re: poker (video games and broadcasts and advertisement space), shouldn't ESPN be taking care of this business?

ESPN IS THE WSOP, and the WSOP is being taken over by online players.

Personally, I think that EVERY MAJOR ONLINE PLAYER should be on the phone with ESPN to talk to them about what they are prepared to do.

Barry

[/ QUOTE ]

Forget ESPN, or even Disney, those crooks have no desire to risk a good thing.

What other major event with a prize pool the size of the WSOP is paid by the players??? Not only that the WSOP deducts for it's expenses!

The joke is with all the side business let alone the TV rights the WSOP is a profit before a sinle player sits down!

There are no expenses, in any other "sport" the pro's would be paid to play.

Give me a break!


D$D

[/ QUOTE ]

lol, what are you talking about?

If you don't have lobbyists who have a vested interest in mainintaing online poker in the united states, you have no "economic benefit" or "social benefit" factor that is going to get Congress to care.

You need tangible benefits that Congress will see that will outweigh its own reasons for including online poker in the Act. So, saying that poker is a game of "skill" doesn't mean a [censored] thing, because you are not going to convince a Congressman that this nuance is more important than appealing to a religious/socially conscious community of voters.

Poker has a sufficient amount of business coverage and media coverage that lobbyists can become active in tailoring the language of this act. So, while we voice our opinions to Congressmen who have their secretaries read that [censored] while they are on the phone with colleagues/businesses/religious groups/etc. that really do matter, it's important to also appeal to potential lobbyists and cue in their minds what they are missing out on by choosing to attack another political venue this month.

and if I can't play online poker at night, I'm not gonna watch ESPN World Series either, because that would just [censored] depress me. So, yeah, Disney definitely has something to lose here.


Barry